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Criminal Defense

Facebook Evidence in a Criminal Case

Facebook Likes and Twitter Tweets as Evidence in a Criminal Case

By | Criminal Defense

Facebook Evidence in a Criminal CaseIn the age of social media it seems more and more that our identities are being fast tied to what we post, like, love, or retweet on social media. Our firm handles criminal cases on a daily basis and in the course of our work we’ve seen an increasing reliance by law enforcement and prosecutors on social media websites like Facebook, Twitter, and Instagram. More often than not, investigators are scrolling through the entirety of a person’s social media profiles scouring the information for incriminating statements, pictures or conversations. A Facebook picture or an Instagram post that one might consider innocent, humorous, or obscure could end up being a key piece of evidence used against that person in a court of law.

Here’s what you need to know about social media and the law.

Anything you post on Facebook, Twitter, and Instagram can and will be used against you.

Period. The general rule that citizens need to know is that by exposing information about yourself on social media you are essentially waiving your privacy rights. A person can’t scream at the top of their lungs in an open room the most private fact about themselves and then expect it to go unheard. The same is true about social media. By posting on sites like Facebook, Twitter,and Instagram, you are essentially consenting to whatever information you disclose to be made public.  Even if your profile is set to private, your friends could end up sharing your content. Once public, that information is now available to everyone…including the government. If you are under investigation or suspect you might be under investigation for a criminal offense, and you have social media profiles, never post anything if you think it has even a remote possibility of hurting your case.

What can be done to protect my privacy on sites like Facebook, Twitter, and Instagram?

Don’t post! The first thing you can do is to place a limit and a premium on your social media activity. Some people feel like social media websites are the perfect forum for venting frustrations, making off-color jokes or personally attacking others. If you think about what you are posting in terms of who might potentially see your post, then you should limit the things you say. Remember, anything you post will be considered public information.  If the temptation is too strong to post on social media, then you should really consider disabling your account altogether (at least while your criminal case is pending).

Can Social Media Privacy Settings be used to protect my information?

Privacy settings are the second step in preventing the government or any other unwanted viewers from obtaining your social media information. The majority of the more popular social media websites allow you to limit who can see your information and what can be seen. Putting strict limits on who and what can be seen on your Facebook, Twitter, and Instagram pages can be very effective in preventing unwanted eyes. But is it enough? For the general public, yes, it is. Further, law enforcement agents typically do not have special privileges to see information that has been set to “private” either. But, there are other ways of getting your information and viewing your profiles. Law enforcement has been known to create fake profiles with attractive pictures to entice users into accepting friend requests and allowing them to view information intended for friends only. There is nothing that legally prevents law enforcement from taking such actions.

If my Facebook, Twitter, and Instagram accounts are set to “Private,” is that enough to protect my information?

Ultimately, no. Even if a person hasn’t unwittingly accepted a friend request from an officer or agent and has limited access to their profile via privacy settings, law enforcement can still get a subpoena, court order or search warrant for your social media information.

According to their website, Facebook will only disclose records in accordance with the Stored Communications Act (“SCA”), 18 U.S.C. Sections 2701-2712 and in response to:

  • A valid subpoena issued in connection with an official criminal investigation is required to compel the disclosure of basic subscriber records (defined in 18 U.S.C. Section 2703(c)(2)), which may include: name, length of service, credit card information, email address(es), and a recent login/logout IP address(es), if available.
  • A court order issued under 18 U.S.C. Section 2703(d) is required to compel the disclosure of certain records or other information pertaining to the account, not including contents of communications, which may include message headers and IP addresses, in addition to the basic subscriber records identified above.
  • A search warrant issued under the procedures described in the Federal Rules of Criminal Procedure or equivalent state warrant procedures upon a showing of probable cause is required to compel the disclosure of the stored contents of any account, which may include messages, photos, videos, wall posts, and location information.

So, even if your privacy settings won’t allow anyone to view your profile, law enforcement agencies may still be able to get that information by way of a subpoena, court order or search warrant.

Assume that unwanted eyes will see what you post on Twitter, Facebook, and Instagram.

If you’re under investigation for a criminal offense or charged with a criminal offense, you need to assume that unwanted eyes will see what you post on Twitter, Facebook, and Instagram. Our attorneys have handled cases involving cases where the government has used Facebook, Twitter, and Instagram postings against our clients. We don’t want that to happen to you. Call one of our attorneys and speak to us about what you can do to protect your information and ultimately your rights.

NOTE: The United States Supreme Court has confirmed that the police CANNOT search your cell phone to discover Social Media evidence, text messages, phone call, or anything else without a proper search warrant.

Difference in Deferred Adjudication Straight Probation in Texas

What is the Difference Between Deferred Adjudication and Straight Probation?

By | Criminal Defense

Probation in Texas: Make Sure You are Headed Down the Right Path. What is Deferred Adjudication?

Difference in Deferred Adjudication Straight Probation in TexasWhen we are counseling new clients, we routinely address the punishment range that is available for the charged offense and whether probation is an option in their case.  It is important to note that all criminal offenses (except class C citations) are punishable by incarceration. However, first-time offenders and those charged with misdemeanors and non-aggravated felonies will often receive probation when prosecutors, judges, and juries agree that community supervision (probation) is a better alternative to jail time in the given situation.  For some offenses, however, probation is not an option (see our previous article on 3g offenses in Texas).

For those of you that prefer the bullet points up front, here is the short answer regarding the difference between straight probation and deferred adjudication:

Straight Probation in Texas

  • A person on Straight Probation in Texas must report to probation and complete required terms as set by the judge
  • In a straight probation, the case results in a Criminal Conviction
  • In straight probation, there is no option have the case expunged or non-disclosed upon completion of probation
  • If revoked on a straight probation, the penalty range is limited to the underlying jail term (see more below).

Deferred Adjudication in Texas

  • A person on Deferred Adjudication in Texas must report to probation and complete required terms as set by the judge
  • A Deferred Adjudication Case Does NOT result in a Criminal Conviction
  • In a Deferred Adjudication in Texas, there is an option to have the case non-disclosed upon completion (in most cases)
  • Under a Deferred Adjudication, If revoked, the judge may sentence anywhere in the full punishment range for the offense.

Deferred Adjudication vs. Straight Probation

In Texas, there are two types of community supervision in criminal cases: regular community supervision (or what is typically referred to as “straight probation”) and deferred adjudication (or “deferred probation.”) The difference between them is significant.  Chapter 42.12 of the Texas Code of Criminal Procedure covers with both types of probation in Texas.

Straight Probation in Texas

Let’s discuss straight probation first. As an example, assume someone is facing a charge for a Class A Misdemeanor. The penalty range is 0-365 days in jail. A straight probation offer from the state might look like this:

180 days in jail probated for 12 months.

If you agree to this offer and decide to take it, at the time of the plea the judge would ask for your plea of guilty, find you guilty and assess punishment at 180 days in jail. However, he would not require you to actually serve the jail time. Rather, he would probate the jail time and place you on community supervision for a period of 12 months. If you successfully complete the straight probation by reporting as directed and abiding by the terms and conditions, you would not be required to serve jail time for the conviction.

Straight Probation Comes With a Criminal Conviction

With straight probation, the most significant consequence is the conviction itself. When you plead guilty, the judge finds you guilty and a conviction is rendered. You avoid jail time by the sentence being probated, but the conviction remains on your record. A conviction, even if probation, can never be expunged from your record (regardless of the passage of time), so it is important to be wise with your decision to take a plea agreement in which straight probation is offered.

If you receive straight probation and fail to comply with the terms and conditions, the state can seek to have your probation revoked. At a revocation hearing or sentencing, the judge’s sentencing ability is limited by the underlying sentence received at the time of your original plea. So, in the above example, if you received a sentence for 180 days in jail probated for 12 months and are later revoked, the judge cannot sentence you beyond the 180 days (even though the penalty range for a class A misdemeanor is up to 365 days.)

Deferred Adjudication in Texas

Chapter 42.12 section 5 offers a different type of probation than the straight probation discussed above. It’s called deferred adjudication. Let’s go back to our example and say your facing a Class A Misdemeanor with a penalty range of 0-365 days. A deferred adjudication offer might look like this:

18 months probation

If you agree to this offer, you would plead guilty at the time of the plea. However, the judge would withhold finding you guilty and instead place you on probation for a period of 18 months. The reporting and terms and conditions would mirror those of a straight probation. If you successfully complete the probation and are discharged, you would not be required to serve jail time and you would not receive a criminal conviction.

Deferred Adjudication Does Not Come With a Criminal Conviction

With deferred adjudication, the most significant benefit is the case is dismissed upon discharge and no conviction rendered. You not only avoid jail time, but a conviction as well. You also may be eligible to file for a non-disclosure after discharge in most cases. Section 411.081 of the Texas Government Code is the law covering when and if you can file for a non-disclosure after discharge from deferred adjudication.

As with straight probation, if you receive deferred adjudication and fail to comply with the terms and conditions, the state can seek to have your probation revoked. However, there are some significant distinctions at a revocation hearing or sentencing on a deferred adjudication case. First, the judge’s sentencing ability is unlimited. This means he can use the entire penalty range. In our example, if you receive deferred adjudication for 18 months for a class A misdemeanor and are later revoked, the judge can sentence you anywhere in the penalty range of 0- 365 days. Also and more importantly, if revoked, the judge will find you guilty resulting in a conviction.

Contact Our Fort Worth Criminal Defense Firm if You Have Questions About Deferred Adjudication or Straight Probation in Texas

This was a rough overview of the different types of probation in Texas on criminal cases. Of course, there are always factors that can effect if and which type of probation is available as an option to you. The attorneys at Barnett Howard & Williams PLLC would be glad to discuss your situation and provide more information about these options. Please feel free to give us a call at (817) 993-9249.

NOTE:
DWI offenses are not eligible for deferred adjudication in Texas. If you’d like to see that changed, contact your state representatives’ offices and voice your opinion

Recording Conversations Wiretapping Texas

Can I Record a Conversation Without the Other Party’s Consent in Texas?

By | Criminal Defense

Recording Conversations Without Consent in Texas | Wiretapping Laws

Recording Conversations Wiretapping TexasWith red light cameras at nearly every street corner, video surveillance in businesses and homes, web cams on computers, and recording capabilities on mobile phones – we must navigate carefully in a digital world. We’ve seen titillating news reports exposing a secret audio tape of a public figure having scandalous phone conversations, or video surveillance of questionable traffic stops that escalate in shocking fashion. You may have had a suspicious feeling that you were being recorded, or on the other hand, felt as if you needed to record a conversation with another for your own protection.

With privacy seemingly harder to come by as compared with days long past—what does Texas law say about recording conversations? Is it illegal to record a phone conversation with another person? What about in person?

The short answer is: YES, you can record a conversation with another person without that person’s consent. But this answer requires more explanation.

Recording Phone Calls in Texas | Texas is a One-Party Consent State

Under Texas Law, it is a crime intercept or record any wire, oral or electronic communication without the consent of at least one party. The good news is that you count as one party and if you’re recording then you have probably given yourself consent to record the conversation. Generally speaking, state wiretapping laws turn on whether the state is a one-party consent state. While some states require the consent of all of the parties to a conversation prior to recording, Texas permits the recording of telephone calls, so long as the consent of one of the parties is obtained. As stated, if you are one of the parties on the phone call, then you may consent to having your own conversation recorded—you need not alert the other party. Additionally, a parent may give vicarious consent to the recording of a child’s conversation if the parent has a good faith objectively reasonable belief that the recording is necessary for the welfare of the child.

However, if during a phone call there are multiple parties who are in different states, then be aware that other state laws may require pre-recording consent of all of the parties. In this scenario, if the recording party obtains consent from the other parties before the recording begins, then the recorder is not in violation of wiretapping laws.

See this link to learn more about the various state wiretapping laws.

Recording In-Person Conversations in Texas | Can I Record Someone Else’s Public Conversation?

Texas law (Penal Code §16.02) does not permit you to record in-person communications when the parties have an expectation that such communication is not subject to interception (i.e. If there is a reasonable expectation of privacy). If you wish to record a conversation to which you are not a party, all of the parties must give consent before the recording device is turned on. If you are a party to the conversation, record away.

Further, you are able to record in-person communication at a public place, like a mall food court or at a football game for example, where parties do not have the expectation of privacy. Remember—if you say it in a public place, within earshot of others who may overhear, you do not have an expectation of privacy in those statements. Generally, such statements may be recorded without violating that state’s wiretapping laws.

A Word of Caution of Recording Conversations in Texas

Please be aware that there are both federal and state wiretapping laws that may limit your ability to making recordings of telephone calls or in person conversations. This article addresses state wiretapping laws in Texas only. Additionally, if a person has violated a state or federal wiretapping statute, he may be both charged criminally and be sued civilly by the damaged party.

Further, while a person may have successfully recorded a conversation under state and federal wiretapping laws, the act of disclosing the recording to other third parties could be, in and of itself, punishable criminally or civilly under other legal theories (such as slander, for example).

If you are faced with a wiretapping charge, or have questions about wiretapping, please contact an attorney who will address both the state and federal regulations as they are related to the facts of your specific case. Wiretapping charges are potentially serious felonies that could land a person in jail or prison, with fines ranging from $200 to $10,000. If you are faced with charges related to wiretapping in Texas, please contact our offices at (817) 993-9249 for a consultation.

Summary on Texas Wiretapping

  • A person can record a conversation to which you are a party in Texas without violating wiretapping laws, so long as the other party is in a “one party consent” state.
  • A person can record a conversation (to which he is not a party) if one of the participants gives him permission.
  • A person can record a conversation when, in a public setting, the participants do not have a reasonable expectation of privacy.
  • It is almost always illegal to record a phone call or private conversation to which one is not a party, does not have consent from at least one of the parties, and could not naturally overhear the conversation.

This article is for educational purposes only and should never be substituted for legal advice.

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Federal Prosecutor Tips

5 Things I Wish Defense Attorneys Knew in Federal Criminal Cases

By | Criminal Defense

Guest Blog Post: Former Federal Prosecutor Offers Tips for Defense Attorneys in Federal Criminal Cases

Former Assistant United States Attorney and long-time U.S. Marine prosecutor Glen Hines provides some tips regarding Federal criminal cases from his time as an AUSA in Arkansas.  The views contained in this post are his own and not those of the Department of Justice, the United States Marine Corps or any other government organization.

Below are the top five unsolicited practice points for defense attorneys practicing in the Federal justice system:

Number 1 Icon

Read up on the U.S. Attorneys’ Manual.

Although this is non-binding guidance to AUSAs, they rarely deviate from it. Be aware of the Principles of Federal Prosecution, at Section 9-27.000, because you can use these to get your client a better outcome in some cases. This will give you a good idea of DOJ policy on issues like charging decisions, non-criminal alternatives to prosecution, plea agreements and their provisions, and cooperation issues. These policies form the AUSA’s mindset to any federal case. If the AUSA on your case deviates from the USAM to the detriment of your client, ask him or her why they are doing it.

Number 2 icon

Get out ahead of the government’s case.

This is easier said than done in practice; unfortunately, by the time most of your clients get around to retaining you, they have likely already been indicted. But in the rare event one hires you beforehand, it’s an opportunity for you to shape the case before it even gets started. Don’t be afraid to proffer your client. If you think he has something to offer the government that might help them get a bigger fish, most offices have a standard use immunity agreement to cover whatever your client tells them during the proffer. Moreover, as stated above, if you can get in touch with the AUSA on your case, you might be able to obtain a non-criminal alternative to prosecution; for instance in financial cases you could offer the government that your client agree to a civil, financial forfeiture and “pretrial diversion” (Section 9-22.000) in lieu of indictment.

Number 3 icon

Know the Federal Sentencing Guidelines.

They drive everything. For some reason, a lot of defense attorneys avoid federal cases because they are afraid of having to deal with the guidelines, but it really isn’t rocket science. This is very important because almost every case I did as an AUSA, I pulled up the guidelines first to see what the case was going to be worth, the idea being, why should the government spend the resources to indict a case if the punishment was going to be very minimal? Know generally how to calculate the range, know about enhancements and deductions, and especially know that your client gets 3 points off the applicable range for timely pleading and “acceptance of responsibility.” See section 3E1.1.  Your client is going to want to know how much time he is going to have to do if he pleads as opposed to going to trial and getting convicted, so you need to be able to calculate that number. A helpful calculator (not affiliated with any governmental entity) is on the internet HERE. Always check your numbers against what the AUSA comes up with.

Number 4 icon

“The squeaky wheel gets the grease”/Return my phone calls.

This goes along with #2 above. The defense attorney who calls or emails me about his case will get their call or email returned. If I know you are paying attention to your client’s case and hearing from you, it’s more likely I will view you as a straight-shooter and try to work with you on a potential deal. If I never hear from you and you never return my calls or emails, I will assume you want to go to trial and I’ll start preparing to do so.

Number 5 icon

The AUSA is not going to deal your case out at the last minute.

Do not turn down a plea offer because you think the AUSA is going to knuckle under at the last minute and give you a sweetheart deal as the jury is walking in for voir dire. I know this happens on the state level, but as said before, the AUSA does not have the discretion to fashion some kind of sentence deal; the guidelines drive sentencing. If you wait that long, expect to go to trial. AUSAs typically don’t have the huge caseload state deputy district attorneys do, so they try fewer cases and are only more than willing to roll the case out to the jury when the time comes.

Glen Hines Former Federal ProsecutorGlen. R. Hines (LinkedIn) is a former Assistant U.S. Attorney and a reserve Marine Corps Lieutenant Colonel and judge advocate. The majority of his 18-year, active-duty and reserve military career has been served as a prosecutor and Military Judge. He is a graduate of George Washington University (LLM-Highest Honors) and the University of Arkansas, Fayetteville (JD). He has written on national security, federal and military criminal law, and gun control issues.  See his past article at Task & Purpose.

Fort Worth Failure to Register as Sex Offender Defense Lawyer

Failure to Register is Not a Separate and Distinct Sex Offense

By | Criminal Defense, Sex Crimes

Is Failure to Register as a Sex Offender a Sex Offense Itself?

Fort Worth Failure to Register as Sex Offender Defense LawyerAt his trial, Eric Putnam pleaded guilty for “failure to register as a sex offender,” a violation of 18 U.S.C. § 2250 that “carries a statutory range [of punishment] for supervised release of five years to life.” 18 U.S.C. § 3583(k). A Pre-Sentence Investigation Report (“PSR”), calculated Putnam’s punishment for supervised release at 15 years, treating his conviction of Failure to Register as an additional sex offense under section 5D1.2(b)(2). PSRs are reports used by federal courts to assist the court in measuring a defendant’s punishment under the US Sentencing Guidelines Manual. Courts have discretion in determining type and length of punishment, sometimes deviating from the recommendation of the PSR. For Putnam, the district court adopted the PSR, sentencing him to ten months imprisonment followed by a supervised release term of 15 years.

See the Fifth Circuit’s opinion in United States v. Putnam

Putnam appealed the 15-year term of supervised release, contending the district court erroneously treated his conviction for Failure to Register on the sex offender registry as a separate sex offense in and of itself. Because Putnam failed to object to the length of the sentence at the time of trial, essentially waiving his right to appeal the sentence on the merits, he must show (1) that a “plain error” was made at the sentencing phase of his trial, and, (2) that the “plain error” affected his substantial rights. United States v. Warren, 720 F.3d 321, 332 (5th Cir. 2013); United States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc). The “Plain Error Doctrine” refers to Federal Rule of Criminal Procedure 52(b) that permits federal courts of appeals to consider “plain errors” even though they were not brought to the district court’s attention at the time of trial.

Here, the government “concedes that a plain error [did] occur with respect to the Guidelines calculation for the length of…the supervised release term.” In earlier case law, the Fifth Circuit has held, “that failure to register under the Sex Offender Registration and Notification Act does not qualify as a sex offense under section 5D1.2(b)(2) of the Guidelines.” United States v. Segura, 747 F.3d, 323,329-31 (5th Cir. 2014). The Court agrees with the government and with Putnam—that a plain error did in fact occur at trial, and that the recommended sentence on the PSR should have included a supervised release from one to five years, instead of the range of five years to life.

Next, the Court explained, “Putnam has met his burden of showing that the [plain] error affected his substantial rights…[because] but for the district court’s misapplication of the [Sentencing] Guidelines, Putnam would have received a lesser sentence.” United States v. Mudekunye, 646 F.3d 281, 289 (5th Cir. 2011) (per curiam). A defendant meets the burden of showing that plain error affected his substantial rights when:

  1. the district court mistakenly calculates the wrong Guidelines range;
  2. the incorrect range is significantly higher than the true range; and
  3. the defendant is sentenced incorrectly. Id.

Here, Putnam fulfills all three requirements—the district court miscalculated his range of punishment; the range was significantly higher (three times the correct amount); and Putnam was sentenced incorrectly. Although the courts may use discretion in sentencing—sometimes giving a longer sentence to a habitual offender, or someone with a long criminal history—Putnam had only one prior, lesser conviction. The district court did not have a compelling reason to go above the correct sentencing guidelines.

Lastly, the Court determined whether the plain error affected the “fairness, integrity, and reputation of the judicial proceeding.” Courts “often exercise…discretion to correct error when it result[s] in a custodial sentence in excess of the correct Guidelines recommendation.” United States v. Hernandez, 690 F.3d 623, 621-22 (5th Cir. 2012). Here, “miscalculation of a supervised release” is [un]common…but [nevertheless] is a substantial restraint on liberty.” United States v. Segura, 61 F.App’x 119, at *1 (5th Cir. 2003).

In sum, the Court concluded that there was, indeed, an error in Putnam’s case that resulted in a sentence ten years above the correct Guidelines range, “satisfying all the plain error inquiries.” The Court vacated the sentence and remanded to the district court for proper sentencing.

Felony Hindering Apprehension

Hindering Apprehension for a Sealed Federal Charge

By | Criminal Defense

“Run, Baby, Run!” Girlfriend’s Warnings, Personal Tattoos, and Attempts to Flee From US Marshals, Do Not Rise to the Level of “Felony Hindering Apprehension” Says the CCA

Felony Hindering ApprehensionKeiona Nowlin and her boyfriend, Demarcus Degrate, were riding in a car when a United States Marshal, executing a sealed, federal warrant on the boyfriend, pulled up behind them. After the Marshal activated the siren and lights, the couple pulled over and Degrate fled on foot. The Marshal chased Degrate. Moments later, as two Marshals arrived at the scene, they observed Nowlin screaming, “Run baby run…get away” while she also fled on foot. The Marshals detained Nowlin “to find out why she was running.” At that point, Nowlin fled the Marshals’ car. Nowlin was placed under arrest for escape.

See the CCA Opinion in Nowlin v. State.

After the arrest, Nowlin said she “knew the cars the Marshals drove…and…did not want Degrate to be arrested…[because] he was out on bond for state charges.” The Marshal noted that Nowlin had Degrate’s name tattooed near her collarbone; the trial court inferred the tattoo as indicative of an intimate relationship. The trial court found Nowlin guilty of third-degree felony hindering apprehension, sentencing her to four years imprisonment.

Nowlin appealed to the court of appeals, arguing that she was not warning Degrate of impending apprehension because “he was already aware of the [Marshal’s] presence.” Nowlin contended that because she did not know the contents of the sealed federal warrant, she could not have known Degrate was charged with a felony. The court of appeals disagreed, holding that her statement at the scene, “run baby run…get away,” provided sufficient evidence of providing a warning to Degrate. The court of appeals pointed to statements made at the scene that she knew “he was out on bond for state charges…and…she did not want her man to get arrested.” The court of appeals added that her tattoo was proof of her close relationship with Degrate, and that she likely knew of the felony-level charges he was facing.

Nowlin appealed to the Court of Criminal Appeals, arguing that because the federal indictment was sealed and secret, she could not have known about the indictment itself; that no evidence exists that she knew of the felony-level charges Degrate faced; and, that her tattoo was not proof of a close relationship where she would have had knowledge of the charges. The State argues that the evidence was sufficient: that the tattoo is evidence of a close relationship that implies she knew intimate details of Degrate’s life; that she knew Degrate faced serious state-level charges, and that her attempt to flee from the US Marshal is evidence of her knowledge of the “serious nature of Degrate’s crimes.” In an interesting turn of events, the State offered an alternative to acquittal–that an alternative charge could be misdemeanor-level hindering apprehension, and the sentence could be amended to reflect a lesser charge.

“In order to show that the evidence presented was legally sufficient to support a conviction of felony hindering apprehension, the State must prove:

  1. the defendant warned another person of impending discovery or apprehension;
  2. the defendant had the intent to hinder that individual’s arrest; and,
  3. the defendant had knowledge that the individual was under arrest for, charged with, or convicted of a felony.

Tex.Penal Code § 38.05(a), (d).

An individual acts with knowledge when he is aware that the circumstances exist. Tex. Penal Code § 6.03(b). In a nutshell, the State must show Nowlin was aware that her boyfriend was under arrest for, charged with, or convicted of a felony. The Court of Criminal Appeals (“CCA”) now decides whether the evidence is sufficient to show that Nowlin knew Degrate was charged with a felony offense.

Here, the CCA does not agree with the trial court and court of appeals. “The state offense that Degrate was on bond for cannot serve as the basis for [Nowlin’s] conviction.” The CCA notes that there was no evidence at trial that named the type and level of the state offense, therefore, the trial court had no way of knowing if the offense was a felony or not. Also, there was no mention of whether Nowlin knew what type of charge her boyfriend was facing. Therefore, because there was insufficient evidence regarding the state offense, the state offense cannot serve as the basis for Nowlin’s conviction.

Further, Degrate’s federal indictment was sealed. There was no way for Nowlin and Degrate to know about the charges before their arrests. “With this mandated secrecy and the lack of evidence that he was told about the indictment during the attempt to arrest him, Degrate could not have known that he was under indictment for felon in possession of a firearm.” It would have been impossible for Degrate to have told Nowlin about the felony charge because he would not have known about it.

Lastly, the inferences made about Nowlin’s close relationship with Degrate—including the tattoo on her collarbone and her attempt to escape the Marshall—do not apply here. “While the inferences that the court of appeals makes would likely be reasonable ones had there been any evidence of Degrate himself having knowledge of the indictment, no such evidence was ever presented.”

The CCA found that the evidence was insufficient to support a felony-level hindering apprehension charge. The CCA reforms Nowlin’s convictions to a misdemeanor hindering apprehension charge, instructing the trial court to conduct a new punishment hearing to reflect the lesser charge.

Accomplice Wtiness Rule Texas

Texas’ Accomplice Witness Rule

By | Criminal Defense

Accomplice Wtiness Rule TexasCriminal law disfavors the testimony of an accomplice, for good reason.  The policy behind this is clear – factfinders should be leary of trusting those who have a substantial stake in the litigation, especially those with a direct liberty interest.  A few years back, the 2nd District Court of Appeals (Fort Worth) provided a good synopsis of the Accomplice Witness Rule, which I felt was worth sharing.  The following excerpt is taken from Clark v. State (June 17, 2010).

What is the Accomplice Witness Rule in Texas criminal law?

The accomplice-witness rule is a statutorily imposed sufficiency review andis not derived from federal or state constitutional principles that define the legal andfactual sufficiency standards.  An accomplice is a person who participates before, during, or after the commission of the crime and can be prosecuted for the same offense as the defendant or for a lesser-included offense.  Article 38.14 of the code of criminal procedure provides that “[a] conviction cannot be had upon the testimony of anaccomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.”

When evaluating the sufficiency of corroboration evidence under the accomplice-witness rule, we “eliminate the accomplice testimony from consideration and then examine the remaining portions of the record to see if there is any evidencethat tends to connect the accused with the commission of the crime.”  The corroborating evidence need not prove the defendant’s guilt beyond a reasonable doubt by itself.  Nor is it necessary for the corroborating evidence to directly link the accused to the commission of the offense.  Rather, the evidence must simply link the accused insome way to the commission of the crime and show that “rational jurors could conclude that this evidence sufficiently tended to connect [the accused] to theoffense.”  Additionally, “[p]roof that the accused was at or near the scene of the crime at orabout the time of its commission, when coupled with other suspicious circumstances, may tend to connect the accused to the crime so as to furnish sufficient corroboration to support a conviction.”  But “mere presence alone of a defendant at the scene of a crime is insufficient to corroborate accomplice testimony.”

I omitted the citations, so you should click on the link above and go to page 15 of the opinion if you wants the various cites for the law above.

Impersonating a Public Servant in Texas

Man Pretends to be a Dallas District Attorney and Receives 2 Years in Prison

By | Criminal Defense

Impersonating a Public Servant in TexasWhen I think of someone impersonating an attorney, my mind goes to Joe Pesci and My Cousin Vinny.  In the movie Vincent Gambino only impersonated a criminal defense lawyer (not a public servant) so nobody seemed to care (except the judge), but in Texas, Impersonating Public Servant (including a district attorney) is a serious matter.  Robert Cornwell found this out after he pretended to be a Dallas County Assistant District Attorney in hopes of helping his friend with a DWI case.

In May of 2012, Robert Cornwell called Montgomery County Assistant District Attorney Kourtney Teaff, identifying himself as an assistant district attorney from Dallas County, attempting to “resolve [his friend’s] [DWI] case.” Cornwell claimed access to criminal histories, case files, and fingerprint cards. He mentioned speaking with governmental offices, and prosecuting his nephew for drug possession. Cornwell insisted on using his personal cell phone number because he and Teaff “were on the same team.” Becoming suspicious of the “highly unusual” requests coming from another district attorney, Teaff recorded the conversations. According to the trial court, Cornwell always used his real name, he had never been an attorney in Texas, he never attempted to claim official authority over Teaff, and he intended that “Teaff should consider the requests a personal favor.” Cornwell was sentenced to two years imprisonment for impersonating a public servant.

See the opinion in Cornwell v. State

What does “Impersonating a Public Servant” mean in Texas?

Impersonating a Public Servant is a Third Degree Felony with a punishment range of 2-10 years in prison and up to a $10,000 fine.  A person violates Section 37.11(a)(1) of the Texas Penal Code when the person impersonates a public servant in combination with the requisite intent…[which] can be satisfied with either the submission theory (“with intent to induce another to submit to his pretended official authority”) or the reliance theory (“with the intent to induce another…to rely on his pretended official acts.”).

Cornwell appealed to the Court of Appeals, arguing that the evidence was insufficient to show either theory of intent—submission or reliance—because he did not persuade Teaff to submit to any asserted authority he might have over her. The Court of Appeals rejected Cornwell’s argument, “concluding that the evidence was…sufficient to support a jury finding that he had impersonated a public official with intent to induce another to rely on his pretended official acts—the reliance theory.” Cornwell then petitioned the Court of Criminal Appeals (“CCA”) for discretionary review.

Here, the CCA determines whether the Court of Appeals was incorrect in misconstruing the meaning of the Section 37.11(a)(1) of the Texas Penal Code, as only “a few Texas appellate courts have directly addressed the reliance theory of intent, and specifically, the meaning of pretended official acts.” See Ex Parte Niswanger, 335 S.W.3d at 617 & n.11; Tiller v. State, 362 S.W.3d 125, 128 (Tex. App.—San Antonio 2011, pet. ref’d.); Tovar v. State, 777 S.W.2d 481,489 (Tex. App.—Corpus Christi 1989, pet. ref’d.).

The CCA Clarifies what “Impersonating” means (and doesn’t mean).

The CCA explained that Section 37.11(a)(1) can be broken down into two parts: the culpable act (actus reus, the bad act) and a culpable mental state (mens rea, the guilty mind). To violate the statute, the State must prove:

  1. that the impersonation happened and
  2. that the impersonator had the specific intent to induce another to submit or to rely upon.

“An accused may not be convicted on a simple showing that he falsely held himself out to be a public servant.”

Because it was undisputed that Cornwell did impersonate a public servant—an assistant district attorney from Dallas County—satisfying the first part of the statute, the CCA focused on Cornwell’s mental state, specifically the reliance theory—the evidence that shows Cornwell’s intent to induce another to rely upon his pretended official acts. The CCA explained that Cornwell attempted to persuade Teaff he was “an experienced assistant district attorney by relating various claims of conduct he had undertaken as an assistant district attorney” namely, “putting his nephew in jail, reviewing case files, and investigating matters in the capacity of assistant district attorney.” The CCA is adamant that, “the only reason [Cornwell] could have had for relaying these pretended official acts to Teaff was to enhance the credibility of his claim to be an assistant district attorney.” “By calling and speaking to an assistant district attorney as a member of the same team, [Cornwell]…hoped to gain [Teaff’s] trust and goodwill.” Further, Cornwell did not ask for favor[s] in his capacity as a private citizen or concerned friend, rather, he asked under the guise of being an assistant district attorney. The CCA states, such “purported actions exceed mere false identification as a public servant.” The CCA agreed with the Court of Appeals, affirming Cornwell’s conviction and sentence.

There are no shortcuts to due process. The Texas Penal Code prescribes strict punishment for those impersonating officers of the court. There is no doubt that criminal charges and allegations can make the accused feel panicked and overwhelmed, however, the old adage “desperate times call for desperate measures,” will not hold water in court where impersonation is concerned. If you or a loved one are facing criminal charges, contact an actual Texas attorney who will explain the proper steps in dealing with the legal system. Contact our office today for a free consultation at (817) 993-9249.

Community Caretaking Fort Worth

“Hunched Over” Passenger Not Enough Distress to Invoke the Community Caretaking Exception

By | Criminal Defense, DWI

Community Caretaking Fort WorthWhile conducting a preventative patrol on the Fourth of July in 2013, a Fort Worth police officer stopped at a red light beside Cameron Byram’s vehicle. Both vehicles had the windows rolled down. The officer testified at trial that he noticed a female passenger in Byram’s car “hunched over…[and that he]…didn’t see any movement at all [from] the female.” The officer smelled alcohol coming from Byram’s car, and felt Byram was “not attending to the female passenger.” The officer shouted over to Byram, asking if she was alright, but Byram faced forward and drove away when the light turned green. Believing the female passenger needed medical attention, coupled with Byram’s actions “as an attempt to avoid contact with the police,” the officer stopped Byram’s car to conduct traffic stop. The officer checked on the passenger and called for medical attention, which she later refused. Next, the officer investigated and arrested Byram for driving while intoxicated (DWI). The officer testified that Byram had not committed a traffic offense, nor were there any technical violations on Byram’s car—he only stopped the car to perform a safety check.

Byram v. State (2nd Court of Appeals – Fort Worth, 2015)

***UPDATE – This case was REVERSED by the Texas Court of Criminal Appeals in 2017. See opinion.

After his motion to suppress the evidence for the DWI charge was denied, Byram entered a guilty plea. The trial court assessed punishment at ninety days in jail and a $750 fine, but suspended the sentence, placing him on community supervision for eighteen months. Byram appealed.

The issue before the Fort Worth Court of Appeals is whether the community caretaking exception to the Fourth Amendment applies to the facts of the case, or, whether the police officer had reasonable suspicion to stop Byram.

The Fourth Amendment provides a safeguard against unreasonable searches and seizures. U.S. Const. amend. IV; Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007). A warrantless arrest is considered unreasonable unless it fits into an exception, such as the community caretaking exception. Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 2135 (1993); Torres, 182 S.W.3d at 901. A search or seizure “is not unreasonable” when community caretaking is the goal, however, the exception is “narrowly applied” in the “most unusual of circumstances.” Wright, 7 S.W.3d at 152.

“Courts consider four non-exclusive factors in determining whether the officer’s belief that the defendant needed help was reasonable: (1) the nature and level of the distress exhibited by the individual; (2) the location of the individual; (3) whether or not the individual was alone or had access to assistance other than that offered by the officer; and (4) to what extent the individual, if not assisted, presented a danger to himself or others.” Corbin v. State, 85 S.W.3d 272, 277 (Tex. Crim. App. 2002).

First, the Court of Appeals concludes that the passenger did not exhibit distress. “The passenger did not appear to be in any great distress, she was located in a busy area of town where there were nearby hospitals, she was not alone [in the car], she was in public, and she did not appear to be a danger to herself or others.” Further, the Court of Appeals states, “We…cannot conclude that the…community caretaking exception, when applied to a hunched over passenger…indicates that the passenger presented a danger to herself or others.”

Second, the Court of Appeals determines that the officer lacked reasonable suspicion to be able to perform a safety check. “[While] we do not question the good faith of [the officer’s] subjective suspicion that Byram might have been involved in an alcohol-based offense…so long as consumption of alcohol is not illegal…permitting…investigation of persons for alcohol-based offenses solely on whether the odor of alcohol is present invites unwarranted police intrusions.” Byram’s traffic stop violated his Fourth Amendment rights.

Justice Sue Walker dissents, stating the passenger was exhibiting signs of distress because she “was not moving and appeared unconscious.” The passenger was also in a vehicle driven by a man “who appeared unconcerned about her well-being.” The passenger’s access to assistance was doubtful because Byram did not respond to the police officer’s question about her condition. Lastly, the passenger was a danger to herself because she appeared unresponsive and unable to ask for help. “Thus, all four factors…support the reasonableness of the officer’s belief that she needed assistance.”

Law enforcement officers must abide by local, state and federal procedural and substantive laws when conducting traffic stops and arrests. If you or a loved one is facing DWI charges or traffic violations, please contact our office today for a free consultation at (817) 993-9249.

Sharen Wilson Tarrant County District Attorney

Tarrant County District Attorney Sharen Wilson Oversees all Fort Worth Prosecutors

By | Criminal Defense

Tarrant County District Attorney Sharen Wilson

Sharen Wilson Tarrant County District Attorney

Sharen Wilson, who took office in 2015, is the elected Tarrant County District Attorney. She is the top of all Fort Worth prosecutors, managing a large office of Assistant District Attorneys, investigators, support staff, and even a therapy dog.  Prior to assuming her new role as the Tarrant County District Attorney, Sharen Wilson presided over Criminal District Court Number 1 as a District Judge.  Her office receives cases from the various police departments across Tarrant County, investigates the cases, and files misdemeanor or felony criminal cases.  The Assistant District Attorneys under Sharen Wilson present cases to grand juries and manage dockets in the 20 Tarrant County criminal courts and the Courts of Appeals.  If you are interested in observing a criminal trial in Tarrant County, check out the Tarrant County Trial Board for a list of cases each week.

Fort Worth Prosecutors | Tarrant County DA

The Tarrant County District Attorney office has over 150 Fort Worth prosecutors and over 50 investigators. The office has a budget of $38 million dedicated to criminal prosecutions and investigations in Tarrant County.  Colloquially, every Assistant District Attorney is referred to as a “Tarrant County DA” or “prosecutor,” but the ultimate authority over criminal prosecutions is retained by Sharen Wilson.  Fort Worth prosecutors are known across the state as fair and collegial attorneys.  They have a reputation for taking a fair look at each case and providing all available information to the defense bar in a timely manner.  Although the Tarrant County District Attorney office is one of the largest in the state, in one of the largest counties in the state, the office and its staff carry themselves with small-town values.  While each criminal case is different and may have its own challenges, our criminal defense attorneys have always been satisfied with the professionalism of the Tarrant County DA office.

Free Consultation of Tarrant County Criminal Cases

Our Fort Worth criminal defense attorneys square off every day with the Tarrant County DA office. We have a proven track record of favorable results for our clients. We understand that every case and every client are different. We take a personal approach to every client and pursue every option to address our clients’ individual needs. For a FREE consultation of your Tarrant County criminal case, contact our team at (817) 993-9249.