Tampering with Evidence Texas 37.09

Tampering with Evidence under Texas Law | Section 37.09 TX Penal Code

By | Evidence

Tampering with Evidence Texas 37.09During routine traffic stops, police officers sometimes end up arresting individuals for the third-degree felony offense of Tampering with Evidence. How does this happen you ask? If, during the course of a traffic stop, an officer observes the driver toss an item or two out of the window, and those tossed items are later determined to be drugs and/or drug paraphernalia, the officer might just arrest the person for tampering with evidence pursuant to section 37.09 of the Texas Penal Code. The important question though, is whether section 37.09 was intended to prohibit this type of conduct?

What is the Purpose of Section 37.09 – Tampering with Evidence?

Texas Penal Code Section 37.09 provides:

(a) A person commits an offense if, knowing that an investigation or official proceeding is pending or in progress, he:
     (1) alters, destroys, or conceals any record, document, or thing with intent to impair its verity, legibility, or availability as evidence in the investigation or official proceeding;  or
     (2) makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent to affect the course or outcome of the investigation or official proceeding.

Texas courts have found that the purpose of section 37.09 is to uphold the integrity of our criminal justice system. 20 Tex. Jur. 3d Criminal Law: Offenses Against Public Administration § 63 citing Wilson v. State, 311 S.W.3d 452 (Tex. Crim. App. 2010); Haywood v. State, 344 S.W.3d 454 (Tex. App.—Dallas 2011 pet. ref’d). This includes prohibiting anyone from “creating, destroying, forging, altering, or otherwise tampering with evidence that may be used in an official investigation or judicial proceeding.” Id. However, section 37.09 is not without limitation.

What is the Scope of Section 37.09?

Early case law suggests the scope of 37.09 is very limited. But, as you will read below, the Court of Criminal Appeals rejects this notion by allowing the fact finder the ability infer the intent to tamper.

In Pannell v. State, 7 S.W.3d 222 (Tex. App.—Dallas 1999, pet. ref’d) the court of appeals held that section 37.09 requires a defendant to know that the item “altered, destroyed, or concealed, was evidence of an investigation, that is pending or in progress, as it existed at the time of the alteration, destruction, or concealment.” Id. In this case, the defendant threw a marijuana cigarette out of the window while he was being pulled over for speeding. Id. Because the officer was only investigating a speeding violation when the defendant threw the marijuana out of the window, the court held that there was no evidence that an investigation in which the marijuana would serve as evidence was “pending or in progress.” Id. The court explained that only after the officer observed the defendant throw out the marijuana did the investigation change to involve drugs. As a result, the court determined there was no evidence of tampering. This analysis, however, has been rejected, albeit not explicitly overruled, in Williams v. State, 270 S.W.3d 140 (Tex. Crim. App. 2008).

In Williams, an officer was conducting a traffic stop and decided to conduct a pat down search of the driver (i.e. defendant) for weapons. During the pat down a crack pipe fell onto the pavement, and the defendant immediately stomped on the pipe, crushing it with his foot. When deciding whether or not the above actions constituted tampering, the Court of Criminal Appeals rejected the lower court’s analysis, which stated that the traffic stop became a drug investigation once the officer and the defendant noticed the pipe on the pavement, and only then was there tampering. In rejecting this analysis, the Court held that requiring a change in the investigation, as the appellate court’s analysis and Pannell does, adds an additional mens rea element not required by section 37.09.

Thus, the Court held that when an officer is investigating a traffic stop and the suspect anticipates that the officer will begin a drug investigation if the officer finds evidence of drugs, and in accordance with that anticipation, the suspect destroys the drugs before the officer becomes aware of them, the suspect has tampered with evidence. As such, there is no requirement for the officer to “see the pipe” or “see the marijuana” before the suspect throws it out of the window in order for that action to constitute tampering. The determination will be made by the finder of fact using circumstantial evidence to draw inferences.

In Conclusion . . .

In conclusion, if the only evidence the State has of tampering is the fact that the defendant threw the item out of the window, without any other indicia of tampering, then the act alone does not rise to level of tampering under section 37.09. However, there are many reasonable circumstances, ever so slight, that could lend the fact finder to make an inference of intent to tamper. With that being said, because the offense of tampering is extremely fact-based, we recommend you reach out to our experienced attorneys to better understand your options.

Texas Stowers Doctrine Insurance Settlements

The Stowers Doctrine | Good Faith in the Settlement of Claims

By | Car Wreck, Personal Injury

What is the Texas Stowers Doctrine?

Texas Stowers Doctrine Insurance SettlementsUnder the typical liability insurance policy both the insurer and the insured have mutual obligations and rights. The insured pays a premium to their insurance company to protect against unexpected losses and claims. On the other hand, the insurer has a duty to defend against claims covered under the policy and a right to control the defense of litigation should it arise.1 Included in the right to control litigation is the insurer’s authority to make the decisions concerning policy coverage, the merits of claims made by third parties against the insurance company, and the settlement of such claims.2 But what happens when an insurance company refuses an offer to settle within the policy limits?

According to the Stowers Doctrine, the insurer has an implied duty to act in good faith and accept reasonable settlement demands within policy limits.3 This is called the Stowers duty. Through this duty the insurer protects the insured against judgements in excess of policy limits. Under the Stowers Doctrine, if an insurance company negligently failed to accept a reasonable offer within policy limits and a jury then returns a verdict in excess of the policy limits, the insurance company may be liable for the entire verdict, even though it exceeds policy limits.4

History of the Stowers Doctrine

The Stowers Doctrine originated in 1929 from the Texas Supreme Court case G.A. Stowers Furniture Co. v. American Indemnity, Co., 15 S.W.2d 544 (Tex.). Stowers Furniture Co. had an auto insurance policy with American Indemnity for $5,000. During the policy term, a furniture employee’s truck was involved in an accident and suit was brought by the injured passenger, claiming $20,000 in damages. While the suit was pending, the injured party served Stowers with a letter offering to settle for $4,000—within policy limits. The letter gave a deadline to accept the offer and provided proof of the excessive damages. American Indemnity refused to settle and went to trial with the intention of saving money. They lost at trial and a jury awarded the injured party more than twice the amount of the policy. The terms of the insurance policy stated iStowers was responsible for a judgment in excess of the policy limits. Stowers paid the judgement and then sued the insurance company for reimbursement.

The Texas Supreme Court held that American Indemnity owed a duty to Stowers to exercise ordinary care in the settlement of claims. American Indemnity was responsible for protecting the insured up to the policy limit. The Court remanded the case to the district court to allow testimony of the serious nature of the passenger’s injuries to determine if American Indemnity was negligent in refusing the settlement offer.5 If American Indemnity rejected a reasonable settlement within the policy limits, they would potentially be liable for the entire judgement, even that in excess of the policy.6

The purpose behind Stowers is to put pressure on insurance companies to settle claims for the policy limit. Because insurance companies have complete power over litigation, they have a corresponding duty to their insured to exercise the same degree of care that a prudent person would exercise under similar circumstances. Failing to exercise such care is deemed negligent on the part of the insurance company.7 Put simply, the insured is protected from the insurance company taking a risk when a reasonable person would have settled.

How Does a Stowers Demand Work?

The Stowers Doctrine is a tool unique to Texas law and has created a new type of settlement demand: the Stowers demand. This demand is a time-sensitive letter sent to a third-party insurance carrier with an offer to settle within the insured’s policy limits.8 For a Stowers demand to be valid, five requirements must be met:

  1. the claim against the insured is within the scope of coverage;
  2. liability is reasonably clear;
  3. the demand is within the limits of the policy;
  4. the settlement terms are such that an ordinarily prudent insurer would accept it when considering the likelihood and degree of the insured’s potential exposure to an excess judgment; and
  5. the demand offers the insurer an unconditional, full release for liability.9

If these requirements are met and the insurer fails to accept the offer by the deadline, the defendant’s insurance company may be held responsible for verdict in excess of its insured’s policy limits.10

Footnotes:

  1.  Stephen G. Cochran, Texas Practice Series: Consumer Rights and Remedies § 5.13 (3d ed. 2017).
  2.  Id.
  3.  American Physicians Ins. Exch. v. Garcia, 876 S.W.2d 842, 846 (Tex. 1994).
  4.  See G.A. Stowers Furniture Co. v. American Indemnity, Co., 15 S.W.2d 544, 547 (Tex. 1929).
  5.  Id. at 548
  6.  Id. at 547
  7.  Texas Farmers Ins. v. Soriano, 881 S.W.2d 312, 314 (Tex. 1994).
  8.  American Physicians Ins. Exch. v. Garcia, 876 S.W.2d 842, 844–45 (Tex. 1994).
  9.  Id. at 849; Trinity Universal Ins. Co. v. Bleeker, 966 S.W.2d 489 (Tex. 1998).
  10.  See Ecotech Int’l, Inc. v. Griggs & Harrison, 928 S.W.2d 644, 646 (Tex. App.—San Antonio 1996, writ denied); Stowers Doctrine, Int’l Risk Mgmt. Inst.
E-Cigarette Exploding Battery Texas

Pants on Fire! Who is Liable if your E-Cigarette Explodes in Your Pocket?

By | Personal Injury

Vape Batteries and E-Cigarette Explosions:
Who is responsible for injuries or deaths caused by an “Industry-Wide” problem?

There has been plenty of debate on the health and safety effects of “vaping”, but the most dangerous aspect of electronic cigarettes is likely the potentially explosive lithium-ion batteries used to power them.

Since 2009, there have been over 200 reported incidents of fires and explosions, and at least one death, caused by exploding e-cigarettes in the U.S. As more products enter the market, the number of these explosions will continue to rise, as will the number of injuries and deaths.

If you or a loved one have been injured by an exploding e-cigarette, you may be entitled to compensation from the manufacturer or seller of the device. Our law firm has represented individuals that have suffered injuries from an exploding battery and we know how to pursue compensation.

What is an E-Cigarette?

An “electronic cigarette” refers to several different types of devices within a larger class. These devices come in varying shapes and sizes and are sometimes called e-cigs, personal vaporizers (VPs), mods, electronic nicotine deliver systems (ENDS), and vape pens. They are powered by lithium-ion batteries which produce a heated vapor that looks like smoke.

Risk of Injury Due to Explosion of Lithium-ion Batteries in E-Cigs is Exceedingly Dangerous

In 2016, the U.S. Fire Administration issued a report concluding that lithium-ion batteries should not be used in e-cigarettes due to the inherent risks of injuries due to explosion and fire. In reaching this conclusion, the agency examined 195 reported cases of e-cigarette battery explosions.

“The e-cigarette/lithium-ion battery combination presents a new and unique hazard to consumers. No other consumer product places a battery with a known explosion hazard such as this in close proximity to the human body. It is this intimate contact between the body and the battery that is most responsible for the severity of the injuries that have been seen.”

(McKenna, Lawrence. “Electronic Cigarette Fires and Explosions in the United States 2009-2016.” National Fire Data Center, U.S. Fire Administration.)

Who is Responsible if a Vape Pen Explodes?

In Texas, the manufacturer is generally responsible for the safety of its products. Only when the manufacturer is insolvent or beyond the reach of Texas courts can the sellers be held liable. Tex. Civ. Prac. & Rem. Code Sec. 82.003 (“Liability of Nonmanufacturing Sellers”).

Because most e-cigarettes and lithium-ion batteries are produced in China, it is often the vape shop or other retailer that sold the defective product who is responsible for the damages. As such, consumers should always purchase from reputable retailers who are more likely to be financially solvent and/or have insurance to cover the damages.

Under Texas law, any party who participated in the design, manufacture, or marketing of a defective product may be held responsible for damages. In the case of e-cigarettes, these products could be considered fundamentally defective because almost every product currently on the market requires the use of a lithium-ion battery, which is known to be potentially deadly.

Many of the risks associated with lithium-ion battery explosions occur due to improper handling of the devices. Because so little information is provided to consumers about proper handling, those responsible for the marketing of the devices may still be liable for any damages as a result of injuries or death.

If you or a loved one has been injured or killed by an exploding e-cigarette, it is important that you consult with a qualified attorney as soon as possible who can give you advice specific to your case. Our team of experienced attorneys is here to help.

CBD Oil Legal Texas

Is CBD Oil Legal in Texas? Perhaps, But it Must Fit These Qualifications

By | Drug Crimes

What is CBD Oil?

CBD Oil Legal TexasCBD Oil, which is short for cannabidiol oil, is a cannabinoid extract that is alleged to have the health benefits of cannabis (e.g. pain relief, easing of inflammation, anxiety management and the treatment of epilepsy) without the psychoactive effects of marijuana. CBD Oil is sold as a supplement in marijuana dispensaries, nutrition stores, and even as an additive in smoothies. While the popularity of CBD Oil is growing substantially, the product remains unregulated by the U.S. Food and Drug Administration, leading to wide discrepancies in the product’s ingredients and quality. The variety of ingredients and compounding methods may have significant ramifications for consumers depending on Federal and state law and the interpretation of those laws by state law and health code enforcement agencies.

Is CBD Oil Legal Under Federal Law?

Yes, if it is produced within federal guidelines.

As of December 20, 2018, the Fed Gov has legalized hemp that has a tetrahydrocannabinol (THC) concentration of no more than 0.3% by removing it from Schedule I of the controlled substances act. States and Indian Tribes may regulate the production of Hemp by submitting a plan to the USDA. This bill also makes hemp producers eligible for the federal crop insurance program and certain USDA research grants.

With the passing of the new 2018 Farm Bill, hemp and hemp-derived products have been officially removed from the purview of the Controlled Substances Act, such that they are no longer subject to Schedule I status. Meaning that so long as CBD is extracted from hemp and completely pure (with less than 0.3% THC on a dry weight basis of THC, something the DEA doubts is possible) and grown by licensed farmers in accordance with state and federal regulations, it is legal as a hemp product.

However, in 2016 the Drug Enforcement Agency released an administrative ruling considering CBD Oil to be a Schedule One drug, comparable to heroin, peyote and LSD, operating on the theory that it is extracted from the same parts of the Cannabis sativa plant that contain THC, the active ingredient of marijuana. CBD consumers and manufacturers assert that CBD can also be extracted from the non-intoxicating parts of the Cannabis sativa plant that produce hemp, however, a recent 9th Circuit decision affirmed the DEA’s authority to classify CBD Oil as within their administrative purview.2

For CBD Oil to be considered legal in the Federal system under the DEA’s guidelines it must “consist[] solely of parts of the cannabis plant excluded from the CSA definition of marijuana.” In the definition of marijuana given by the Controlled Substances Act, the “mature stalks of such plant, fiber produced from such stalks, oil or . . . any other . . derivative, mixture, or preparation of such mature stalks” are excluded from the definition. Presently the DEA considers an extraction process using only the parts of the cannabis plant that are excluded from the CSA definition of marijuana to be “not practical.” This is because the extraction process used would “diminish any trace amounts of cannabinoids that end up in the finished product.”

Is CBD Oil Illegal Under the Laws of the Various Individual States?

Yes, CBD is legal, but not in all states.

At the state level, CBD Oil is considered legal in the states where marijuana is legal for recreational use (Alaska, California, Colorado, DC, Maine, Massachusetts, Nevada, Oregon, Vermont). Twenty-nine states have made marijuana legal for medical use in various quantities and CBD is also considered legal under those state laws, irrespective of the THC content of the source of the oil. In states that have not decriminalized marijuana, CBD Oil is also likely illegal.

Is CBD Oil Legal In Texas?

NO, unless you fall within the qualifications set by the Compassionate Use Act.

If you are prescribed the use of medical CBD oil and use ‘low-THC” CBD, then the use is legal. Texas has legalized marijuana for medical use only, but only in a very narrow set of circumstances. The Compassionate Use Act of 2015 authorizes the prescription of “low-THC cannabis,” defined as having no more than 0.5% THC for patients diagnosed with intractable epilepsy and entered into the state-maintained “compassionate-use registry.”3 The Act requires prescription by two physicians however, it is currently illegal under federal law for a physician to “prescribe” marijuana. Under a 2000 court ruling, it is legal for physicians to “recommend” marijuana to their patients but the language of the Compassionate Use Act calls for a prescription, setting up a conflict with Federal law.4 Additionally, to qualify for the medical use of CBD, the patient must have tried two FDA-approved drugs and found them to be ineffective. There are currently three dispensaries licensed by Texas to sell qualifying products to authorized consumers.

If you do not fall within the qualifications set by the Compassionate Use Act, then possession of CDB oil containing any amount of THC is against Texas law. The State definition of marijuana closely tracks the Federal definition. The Texas Health and Safety Code defines marijuana as “the plant Cannabis sativa . . . and every compound, manufacture, salt, derivative, mixture, or preparation of that plant or its seeds.” The Code excludes “the mature stalks of the plant or fiber produced from the stalks [and] a compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, fiber, oil.” Texas does not currently have legislation allowing for the cultivation of hemp, though industrial hemp derived from the mature stalks of the Cannabis sativa plant may be sold and consumed.

What is the Penalty for Possession of CBD Oil in Texas?

In Texas, if you possess CBD oil with any trace of THC, you could be charged with a Felony for Possession of a Controlled Substance in Penalty Group 2, which (depending on the weight in grams) can carry a range of punishment from 180 days in a state jail facility up to 20+ years in prison and a fine not to exceed $10,000. Several of our clients have been arrested for possessing CBD oil after officers performed a field test and discovered that yielded a positive result for THC.

If the CBD oil does not contain any THC, is it currently a Schedule V substance not in any penalty group. Possession of CBD with no THC can be charged as a Class B Misdemeanor with a punishment range of 0 – 180 days in jail and a fine up to $2,000.

What To Look For In CBD Oil In Texas

CBD Oil made from the mature stalks of the Cannabis sativa plant are likely in conformity with both Federal and Texas State law. Consumers seeking to purchase CBD Oil in Texas should look for a product advertised as being the product of “industrial hemp” or “mature hemp.” Products advertised as containing “THC” or “CBD Oil” should be avoided because of potential conflict with State and Federal laws.

  • Texas consumers with intractable epilepsy may seek to join the Compassionate Use Registry and get a prescription for CBD Oil containing less than 0.5% THC from an authorized dispensary.
  • Physicians should be mindful that “prescribing” CBD Oil to Texas residents under the Compassionate Use Act may fall into conflict with existing Federal law.
  • Retailers that are not one of the three state-authorized dispensaries authorized by the Compassionate Use Act should take care to carry only products that do not advertise themselves as containing CBD Oil but instead focus on being the product of industrial hemp.

Where Can I Purchase CBD Oil with 0% THC?

While there are many CBD oil stores popping up all over Texas, we have found one near our office that sells CBD Oil with 0% THC in it. They test it to confirm the THC content so that you can be sure of what you are getting. Visit Your CBD Store at https://yourcbdstorekeller.com to learn more or purchase their CBD products online. But remember that even though many agencies are not choosing to arrest or prosecute for  zero THC CBD oil, the Tarrant County DA’s office is still filing these cases if a person is arrested.

Sources:

  1. H.R.2642 – 113th Congress (2013-2014): Agricultural Act of 2014.
  2. Hemp Industries Association v. USDEA, No. 17-70162
  3. SB339  Texas Compassionate Use Program
  4. Conant v. McCaffrey  WL 1281174
Judge Writing On Paper At Desk

Unanimity Instruction Required and Not Given, But No harm, Says CCA

By | Jury Trial

Trial Court Failed to Give Unanimity Instruction to the Jury

The Court of Criminal Appeals recently handed down an opinion regarding a unanimity jury instruction in an aggravated sexual assault case. The issue before the Court was whether the trial court erred when it failed to instruct the jury that it must be unanimous in deciding how the sexual contact occurred when there were multiple allegations. The Court of Criminal Appeals found the jury instruction to be erroneous but concluded no harm occurred.

French v. State, (Court of Criminal Appeals 2018).

The Facts—The Defendant Was Convicted for Aggravated Sexual Assault of a Child

The defendant was originally indicted on a single count of aggravated sexual assault of a child. The indictment alleged that the defendant caused the penetration of the child’s anus by the defendant’s sexual organ. Before trial though, the indictment was amended to add “contact with” and “penetration of” the sexual organ of the child by the defendant’s sexual organ. As a result, the indictment presented four options for a conviction: (1) the defendant contacted the child’s anus with his sexual organ; (2) the defendant penetrated the child’s anus with his sexual organ; (3) the defendant contacted the child’s sexual organ with his sexual organ; and/or (4) the defendant penetrated the child’s sexual organ with his sexual organ.

At trial, the jury instructions authorized the jury to convict the defendant on any one of the four theories. In addition, the trial court explicitly instructed the jury that they need not all agree on the manner in which the sexual assault was committed. This instruction essentially authorized the jury to convict the defendant without agreeing as to which orifice he had “contacted or penetrated”—even though there was little to no evidence presented that defendant ever contacted or penetrated the child’s sexual organ. This prompted the defendant to object and ask the court for a unanimity instruction regarding the manner in which the sexual assault was committed. However, the court overruled the objection and the defendant was subsequently convicted.

The Court of Appeals Reversed the Defendant’s Conviction—Holding the Trial Court Erred in Failing to Submit a Proper Instruction Which Caused “Some Harm”

On appeal, the defendant argued that the jury charge failed to follow the juror unanimity requirement because it did not require the jury to agree as to which orifice he contacted and/or penetrated. For double jeopardy purposes, he argued the theories were considered distinct and separate offenses, each of which demanded juror unanimity for a conviction. The court of appeals agreed, and it held that the trial court erred by failing to submit proper instructions. In light of this error, the court of appeals determined that the erroneous jury charge was sufficient to invoke the “some harm” standard under Almanza, which required a reversal.

The Court of Criminal Appeals Reversed the Court of Appeals’ Judgment—Finding No Actual Harm Occurred

On petition for discretionary review, the State did not contest the erroneous jury charge. Rather, it argued that any error in the jury charge as to the unanimity requirement did not result in harm to the defendant. The Court of Criminal Appeals agreed.

In analyzing whether there was “some harm,” the Court of Criminal Appeals considered the trial court’s error with respect to the four factors set out in Almanza: “(1) the entire jury charge, (2) the state of the evidence, (3) the jury arguments, and (4) any other relevant information as revealed by the record as a whole.”
The Court of Criminal Appeals noted that in concluding that “some harm” occurred the court of appeals only relied upon the second Almanza factor—the state of the evidence. That court identified there was “some evidence in the record” for the jury to potentially conclude that the defendant penetrated both the child’s anus and sexual organ with his own sexual organ. And, since there was “some evidence” it believed that the jury could have regarded itself as authorized to convict different ways without reaching any agreement on a specific theory beyond a reasonable doubt.

However, even considering the above reasoning, the Court of Criminal Appeals determined there was no harm suffered when taking into consideration all four of the Almanza factors. The Court explained that “the risk that a rational juror would have convicted the defendant on the basis that he contacted and/or penetrated the child’s sexual organ with his own—and not also on the basis that he contacted and/or penetrated the child’s anus—is so ‘highly unlikely’ as to be ‘almost infinitesimal.’” Not only was there overwhelming evidence at trial that suggested anal contact and penetration occurred, there was no encouragement for a specific finding, and the defendant’s only defense was that it never happened. All of this supports the Court’s conclusion that the harm was merely hypothetical and not actual. As such, the Court reversed and remanded the case even in light of the error.

Stack Sentence Concurrent Sentence

Stacking Sentences to Run Consecutively in Texas

By | Sentencing

The Importance Between Stacked and Concurrent Sentences

Stack Sentence Concurrent SentenceWhen a defendant is convicted of multiple crimes at the same trial, his sentences automatically run concurrently, unless there is an order for the sentences to be stacked (i.e. to run consecutively). When sentences are stacked, defendants are required to finish serving the sentence for one offense before they begin serving the sentence for another offense. So, if a defendant is convicted of multiple crimes, especially those with longer sentence ranges, the difference between stacking the sentences or running the sentences concurrently can be huge. Thus, it is very important to know when sentences must run concurrently, when sentences can be stacked, and who makes those decisions.

Who Decides Whether to Stack a Defendant’s Sentences or Run Them Concurrently?

In Texas, defendants have the right to elect to have the jury or a judge assess punishment. However, even when the jury assesses a defendant’s sentences in a case with multiple charges, it is up to the judge of the court to determine whether the sentences will be stacked or whether the sentences will run concurrently.

The trial court’s authority to stack sentences is derived primarily from article 42.08 of the Texas Code of Criminal Procedure. Under this article, when a defendant with multiple convictions is sentenced, the court must include in the subsequent judgment or judgments whether the sentences will run concurrently or consecutively. This general rule allowing stacking or concurrent sentences applies whether the sentences have been imposed or suspended. As a result, the trial court has broad discretion when pronouncing whether the sentences will be stacked or run concurrently. Nevertheless, there are certain occasions when the judge cannot stack a defendant’s sentence.

When is the Judge Prohibited From Stacking a Defendant’s Sentences?

Generally, when a defendant is found guilty of more than one offense arising from the same criminal episode and prosecuted in a single criminal action, the sentences must run concurrently (i.e. if a person is prosecuted in the same trial for DWI and Unlawful Carrying of a Weapon). However, there are exceptions to this rule that will allow for stacking. For example, if a defendant moves to sever his cases that arose from the same criminal episode, he runs the risk of having his sentences stacked. In addition, case law has permitted multiple convictions, arising out of the same criminal episode, for intoxication manslaughter and certain sex offenses under section 3.03(b) of the Texas Penal Code to be stacked.

What Criteria Does the Trial Court Use to Determine Whether to Stack a Defendant’s Sentence?

Trial Courts tend to consider the same factors used for determining the severity of a defendant’s sentence when deciding whether or not to stack sentences. For example, judges may consider:

  • whether the crimes and their objectives were predominantly independent of each other;
  • whether the crimes involved separate acts of violence or threats of violence;
  • whether the crimes were committed at different times or separate places; and
  • other aggravating or mitigating factors such as a defendant’s past record.

Are There Certain Circumstances When a Judge is Required to Stack Sentences?

Yes, but only in one scenario. As provided in Article 42.08, if a defendant is sentenced for an offense committed while the defendant was an inmate in TDC and the defendant has not completed the sentence he was serving at the time of the offense, the judge shall order the new sentence be stacked—to begin immediately upon the completion of the defendant’s previous sentence.

Can the Judge Stack a Probation Sentence with a Prison Sentence?

Yes. In Texas, a judge can choose to stack a probation sentence with prison sentence, but the judge must order the confinement sentence to run first and the probation thereafter.

In Conclusion . . .

To determine whether your case involves offenses that may be stacked, you should consult with your attorney. Stacking sentences is rare, but you should still seek proper legal advice when charged with multiple offenses. If you find yourself in this situation and need an attorney, give us a call.

Confrontation Clause Violation When Accuser Does Not Appear at Trial

By | Confrontation Clause

Tarrant County Trial Court Admits Testimony in Violation of the Confrontation Clause

The Second Court of Appeals recently released a memorandum opinion, which reversed a defendant’s conviction due to a confrontation clause violation. The issue was whether the trial court (Criminal District Court Number 1, Tarrant County) erred in allowing an officer to testify about certain statements the alleged victim made regarding a prior assault allegation.

McDowell v. State—2nd Court of Appeals (2018)

The Facts—Defendant Was Convicted for Felony Domestic Violence

On August 21, 2016, officers were alerted to a domestic disturbance in progress. When officers arrived at the scene they made contact with the victim and the victim’s friend who had reported the disturbance. While talking with the two females, officers noticed multiple bruises on the victim and learned that the suspect (i.e. Defendant), who had allegedly assaulted the victim, was still inside the home. Officers subsequently entered the residence and arrested Defendant.

At trial, dash-cam video showing the accusations made by the two females was admitted. In addition, one of the officers testified to additional statements made by the victim suggesting that the defendant had a history of violence. These additional statements, however, were not included in the dash cam video. Defendant objected to these statements under Crawford because the victim did not appear at trial. Nonetheless, the trial court allowed the out-of-court statements to be admitted over objection.

In addition to the officer’s testimony regarding the hearsay statements, the jury heard from two other witnesses about the cycle of domestic violence. The State then referenced this testimony in relation to Defendant’s history of domestic violence during closing arguments. As a result, Defendant was convicted. Defendant later appealed his conviction arguing that the trial court erred when it allowed the officer to testify to the victim’s statements in violation of the confrontation clause of the 6th Amendment.

Court of Appeals Reverses and Remands Case—Holding the Trial Court Erred in Admitting the Officer’s Testimony

Generally, the Confrontation Clause bars admission of testimonial statements of a witness who does not appear at trial. In determining whether certain statements were testimonial in nature, “the Court looks to see whether circumstances were present at the time the statements were made that would indicate the existence of an ongoing emergency.” If such circumstances existed, the statements are admissible.

Here, the victim did not appear at trial. As such, the Court of Appeals attempted to analyze whether the victim’s statements were testimonial in nature by determining whether they were made during the ongoing emergency. However, the Court was unable to do so because there was no evidence from the State regarding when these statements were made. The Court concluded that without knowing the timing at which the statements were made, there was no way to determine the existence of an ongoing emergency. The Court explained that once there is an objection to the admission of evidence on confrontation grounds the burden shifts to the State. Here, the State was silent in regard to the confrontation objection. And, without the State providing more evidence, the Court could not conclude that the statements were nontestimonial. Accordingly, the Court held that the trial court erred in admitting the statements.

The Court then conducted a harm analysis to determine whether the error impacted the jury’s verdict, which would require a reversal. In making its determination, the Court noted that the majority of the officer’s testimony was based on the inadmissible statements. These statements portrayed a history of violence rather than just one instance. Further, the other witnesses’ testimony hinged on these inadmissible statements. Thus, because the inadmissible statements were a crucial part in establishing the elements of the offense, the Court could not say beyond a reasonable doubt that the trial court’s error did not contribute to Defendant’s conviction and, therefore, a reversal was required.

Christmas Holiday Arrests Texas

Top 5 Reasons for Arrests During the Christmas Holiday Season

By | Criminal Defense

Christmas Holiday Arrests TexasWhen you think about the Christmas season, you probably think about family time, presents, good food, and celebration. We think about those things too, but as criminal defense attorneys, we also think about the reasons that some of our clients get arrested during the holiday season. For this article, we took a look at the last 6 years of holiday season arrests (for clients that we represented) and compiled an (anecdotal) list of the top 5 reasons that folks get arrested during the Christmas/New Year’s season. Our goal is that this list will serve as a warning, so that your holiday season can be filled with the good stuff, rather than jail, bail, and calls to our office. Here goes:

5. Shoplifting

Many retailers slash their prices and offer steep discounts in the weeks leading up to Christmas and even bigger discounts after Christmas, but we have yet to see any retailer offer the “five finger discount” for their merchandise. Regardless, we see plenty of shoplifting cases during the Christmas season, making it our #5 reasons that people get arrested during Christmas. Depending on the regular price value of the item (not the discounted price), shoplifting theft charges can range from misdemeanors to felonies. Learn more about Theft law in Texas here.

4. Package Theft

In a similar vein to shoplifting, our #4 reason for holiday arrests is package theft. Many shoppers choose the convenience of online shopping and have their Christmas purchases delivered right to their front door. Some people see this as an easy target, following behind UPS or FedEx trucks to steal those would-be Christmas gifts from the front porch. However, with the increase in doorbell cameras, it is getting easier to catch the porch pirates in the act. Further, some law enforcement agencies have begun using dummy packages to bait thieves into getting caught. Package theft can range from a misdemeanor to a felony depending on what unknown treasure lay inside the brown box.

3. Airport Contraband (Guns and Drugs)

Going to visit grandma can require air travel for many families. This means that thousands more people than usual flood through DFW Airport between Thanksgiving and New Year’s. It matters not from where these travelers hail. From Maryland to Oregon to France, if a person is arrested at DFW Airport, their case will be filed in Tarrant County, Texas and they will have to travel back to DFW to attend court. During the holidays, we see a surge in airport arrests when people bring items into the airport that are not allowed. These mostly consist of:

Even if the state from which a traveler is coming has legalized marijuana and the state to which they are traveling has legalized marijuana, if they are caught possessing marijuana in the airport, they will be arrested and charged. The combination of airport gun arrests and airport drug arrests make these types of cases our #3 reason for holiday arrests.

2. Assault Family Violence

In the movie Christmas Vacation, Clark Griswold showed an enormous amount of restraint when his extended family pushed him to the limit (especially Cousin Eddie), but not everyone is blessed with such a cool head. Christmas time brings added stressors into the family environment that can sometimes lead to verbal or physical altercations between family members, so much so, that these arrests rank at #2 in our book. Depending on the nature of the assault, a domestic violence arrest can be charged as a misdemeanor or a felony. Learn more about Family Violence under Texas law.

1. Driving While Intoxicated

With all of the Christmas and New Year’s parties and the increase in No Refusal Weekends, it is not hard to guess that DWI arrests are #1 on our list. Driving While Intoxicated in Texas can range from a misdemeanor (if it is a first or second offense) to a felony (if there is a child in the car or if the person arrested has been convicted of DWI twice in the past). Our advice is to plan ahead and do not even take your car to a Christmas party when you plan to drink. Catch a ride from a friend or take an Uber or Lyft. That would be a lot cheaper than hiring an attorney and a lot less hassle too. Learn more about Texas DWI law here.

We Hope You Never Need Us, But We’re Here if Your Do.

We wish you a very merry Christmas and a happy New Year. As always, we hope you never need us to represent you or one of your loved ones for a criminal offense. This is even more true during the Christmas season. Hopefully this list will help you avoid trouble that looms during the holiday season. If you do happen to need us, we are only a phone call away at (817) 993-9249.

Organized Retail Theft Lang

Organized Retail Theft: Does it Take Two to Tango? | Lang v. State (2018)

By | Theft

Organized Retail Theft LangThe Court of Criminal Appeals recently handed down an opinion on the applicability of Texas’ organized retail theft statute. The issue facing the court was whether the statute defining the offense of organized retail theft permits a conviction for ordinary shoplifting by a single actor rather than requiring a group or collaborative effort.

CCA Opinion: Lang v. State (Tex. Crim. App. 2018)

The Facts—Defendant Stole Merchandise from HEB and Was Convicted Under Texas’ Organized Retail Theft Statue.

Defendant was shopping at HEB when an employee noticed her placing merchandise into reusable shopping bags. Some of the bags were inside of Defendant’s cart and one was tied to the side of her cart. The employee thought this behavior was unusual, so she kept an eye on Defendant. When Defendant went to check out, the employee observed her place all but one of the reusable bags onto the conveyor belt—leaving the bag that was tied to the side of the cart untouched. After paying, Defendant began to leave the store. Defendant was subsequently stopped by employees and questioned about the bag that was tied to her cart, which was full of unpaid merchandise. The unpaid items totaled $565.59, whereas the paid-for merchandise totaled only $262.17. At that time, the store called the police and Defendant was eventually arrested, charged, and convicted of organized retail theft.

Defendant appealed her conviction arguing that the evidence was legally insufficient to support her conviction. More specifically, Defendant claimed that the offense of “organized retail theft” could not be committed by a single actor because the statute requires group action or collaborative effort. The court of appeals rejected this argument for the reasons listed below.

Court of Appeals Affirms the Trial Court’s Decision—Claiming that Organized Retail Theft Does Not Require Multiple Actors.

In making their decision the court of appeals looked to the statute’s language, which provides that a person commits an offense if she “intentionally conducts, promotes, or facilitates an activity in which the person receives, possesses, conceals, stores, barters, sells, or disposes of: (1) stolen retail merchandise; or (2) merchandise explicitly represented to the person as being stolen retail merchandise.” The court contended that nowhere in the statutory language was there explicit terms requiring group behavior. As a result, the court held that the language was not ambiguous and used plain meaning to interpret the statue.

Using dictionary definitions, the court concluded that the statutory terms “conducts, promotes, or facilitates,” did not require multiple actors. The court also explained that reading those statutory terms in context, established that what is conducted, promoted, or facilitated is an “activity,” not another person. Thus, “leaving the store after stealing the retail merchandise” was sufficient activity to meet the elements required by the statute. Accordingly, the court of appeals upheld the defendant’s conviction and another appeal ensued.

Court of Criminal Appeals Reverses and Remands Case—Determining that Organized Retail Theft Requires Multiple Actors.

On appeal Defendant maintained that the offense of organized retail theft could not be committed by a single actor. She did not dispute the facts, rather, as a matter of law, she disputed whether the facts were adequate to establish the offense of organized retail theft. To evaluate this argument the Court of Criminal Appeals analyzed the statute’s language and compared it with the court of appeals’ analysis and Defendant’s argument. In doing so, the Court determined that the language could reasonably be interpreted in more than one way, and therefore, extra-textual sources, such as legislative history must be considered.

To make this determination the Court looked at the statute’s use of the past participle of steal (e.g., “stolen”). The court explained that use of “stolen” indicated that the “activity” covered by the statute takes place with respect to items that have already been stolen. Thus, the question then becomes “what type of ‘activity’ suffices to satisfy the statute’s requirements.” “Is it enough, as the court of appeals suggested, for a person to shoplift items of retail merchandise and then attempt to leave the store with the stolen items, thereby conducting an activity (leaving the store) in which the person possesses the retail merchandise she has just stolen?” Or, as Defendant suggested, does the statute require proof of some activity distinct from the type of conduct associated with shoplifting? In other words, “does the statute require proof of something more than the mere continued possession of the stolen retail merchandise during an attempt to leave the store?” Not immediately knowing the answer to these two reasonable interpretations, the Court decided it had to look to legislative history to help find the right answer.

After examining the statute’s legislative history, the Court found that the organized retail theft statute was intended to reach conduct distinct from that of ordinary shoplifting. To support its decision, the Court cited the statute’s bill analysis and a senate research report. Both pieces of legislative history similarly stated that organized retail theft is a highly organized criminal activity, dependent on multiple actors, and organized by a central figure. Further, the sources stated that organized retail theft is distinct from ordinary shoplifting in that it involves professional theft rings that move quickly across state lines in order to steal and move large amounts of merchandise—requirements that are clearly not present during ordinary shoplifting.

As such, when considering the legislative history in conjunction with the ambiguous statutory language, the Court concluded that it supports the notion that the organized retail theft statute was not intended to apply to the conduct of an ordinary shoplifter acting alone but rather to multiple actors involved in highly organized theft rings. Thus, the Court reversed and remanded the case.

Keller, P.J., filed a concurring opinion.

Yeary, J., filed a dissenting opinion.

stealing presents Christmas theft package

Don’t Be a Grinch: Punishments for Christmas Package Theft in Texas

By | Theft

stealing presents Christmas theft packageThroughout the year, package thefts occur on a fairly regular basis. But, as Christmas draws near and package delivery increases, so too do the thefts. While packages left on doorsteps and out in the open may seem to be easy targets for thieves, the consequences of getting caught are rarely considered. Would-be porch pirates should certainly think through their intended capers as many houses are equipped with doorbell cameras these days that capture clear video of any movement at or near the doorway.

What Can Happen to Individuals Who Steal Packages?

Grinchy thieves can face stiff penalties for stealing packages. In Texas, theft is classified by the amount of property that is stolen. Depending on the amount of the items stolen, a person caught stealing packages can face anywhere from a Class C misdemeanor punishable by a fine of up to $500 up to a First Degree Felony facing 99 years or life in the penitentiary. The latter would require someone stealing an item worth more than $300,000. While this may be unlikely, a thief wouldn’t know what he or she is stealing until he opens up that box. In addition, if committed within the same criminal episode, the aggregate amount of the items stolen could increase the punishment ranges for the offense as well.

What Happens When Multiple Individuals Act as a Team to Steal Packages?

The consequences of people acting in a team to steal packages can increase the acts to the offense of Engaging in Organized Criminal Activity. In Texas, a person commits the offense of Engaging in Organized Criminal Activity if with the intent to establish, maintain, or participate in a combination or in the profits of a combination or as a member of a criminal street gang, the person commits or conspires to commit theft. Tex. Penal Code 71.02. This increases the punishment one category higher than the offense originally committed. Most often, these types of cases are filed as 3rd degree felonies which carry a range of punishment of between 2-10 years in prison and up to a $10,000 fine.

Punishments for package theft can be harsh. While a person may be stealing property worth only a few dollars, they may also be stealing property worth thousands. The potential punishment a person faces for package theft may not deter thieves but there are certain other things that citizens can do to prevent these acts from occurring.

How to Prevent Package Thefts

The primary means by which package thefts are being prevented are with the increasing use of video surveillance. Individuals looking to steal packages off of front porches are becoming more and more aware of doorbell cameras and other small home surveillance cameras. The increased media coverage of these incidents and the increased capture of thieves by way of theses surveillance methods is enhancing deterrent efforts.  Amazon has also begun testing out a service that allows delivery drivers to leave packages inside your home.

Despite the fact that security cameras are gaining in popularity (and the media reports on a regular basis of people being caught because of them), package thefts have not been eliminated. There are still those individuals that choose to ignore the possibility of getting caught and the potential consequences. And, for those folks, maybe it would help to reflect on the words of The Grinch, “Maybe Christmas doesn’t come from a store. Maybe Christmas…perhaps…means a little bit more!”

But for those individuals who persist and ignore the warnings and advice – and reflections from the Grinch – the BHW phone line is always open – just don’t say we never told you so!