Megans Law Sex Offender Passport

Passports Revoked for Sex Offenders Pursuant to New Law

By | Sex Crimes | No Comments

Megan’s Law and the Implications for Passports of Registered Sex Offenders

Sex Offender Passport LawIn February of 2016, we wrote about President Obama signing Megan’s Law and the implications that the law would have on passports.

Effective January 11, 2018, in accordance with Megan’s Law, the U.S. State Department has started to revoke passports issued to registered sex offenders. The law was passed October 31, 2017 but is now in effect. This law prevents the Department of State from issuing passports to sex offenders without a unique identifier printed on the person’s passport and authorizes the State Department to immediately revoke all passports currently held by registered sex offenders that do not contain this identifier.

Required Endorsement for Sex Offender Passports

Passports re-issued to registered sex offenders will now bear an endorsement on the passport, which will read:

“The bearer was convicted of a sex offense against a minor, and is a covered sex offender pursuant to 22 United States Code Section 212b(c)(l).”

According to federal law, endorsements cannot be printed on passport cards, so qualifying individuals will not be issued passport cards.

This new procedure by the State Department does not prohibit registered sex offenders from leaving the country. But, it certainly leads to the presumption that this identifying marker on these passports could very likely lead to these individuals being denied entry into other countries.

In the coming weeks, the Department of State will be sending letters to those individuals covered under this law notifying them that their passports are now revoked.

There are a wide number of crimes that can lead to a person being on the sex offender registry. These crimes can include sexual assault of a child, indecency with a child, online solicitation of a minor and viewing or sharing child pornography (either inadvertently or on purpose).

For more information, visit the Department of State website.

 

Drone Laws TX Drone Registration

Rules for Drones | Drone Registration and Penalties for Failure

By | Criminal Defense | No Comments

Drone Laws TX Drone RegistrationDrones or Quadcopters were a popular Christmas gift this year. While many new drone owners are probably preoccupied with learning to fly without getting the propellers stuck in trees or crashing them over their neighbor’s fence, they need to take a moment to learn about the federal registration rules for unmanned aircraft.

*Federal drone registration had been struck down by an appeals court in May of 2017, but the National Defense Authorization Act that was passed in December 2017 reinstated drone registration.

Do I Have to Register My Drone?

Maybe. Any unmanned aircraft system (“drone”) that weighs more than .55 pounds must be registered with the FAA. Depending on the size of the drone, it can be registered under:

  • Part 107, Small UAS Rule,
  • Section 336, the Special Rule for Model Aircraft, or
  • 14 CFR Part 47, the Traditional Aircraft Registration

Registration Under The Special Rule for Model Aircraft

Most people register their drone under this provision. The Special Rule for Model Aircraft allows for registration of a drone between 0.55 lbs and 55 lbs for recreational use only. Under this registration:

  • A person is allowed to fly their drone within their line of sight,
  • A person is required to follow the community-based and nationwide guidelines,
  • A person is not allowed to fly their drone over an airport or to interfere with emergency response units, and
  • A person must notify an airport when they are flying within five miles of an airport.

In order to register under the Special Rule for Model Aircraft, you must:

  • Register as a “modeler” with the FAA,
  • Be at least 13 years’ old,
  • Be a legal United States citizen or legal permanent resident, and
  • Label your drone with the registration number in case it is lost or stolen.

This registration, which can be completed online costs $5 and lasts for 3 years.

Registration of Drones Between 0.55 lbs and 55 lbs Under the Smalls UAs Rule

The Small UAS Rule allows for registration of a drone between 0.55lbs and 55lbs for recreational and commercial use. Registration is REQUIRED by the FAA. Under the Small UAs Rule a person may:

  • Fly their drone at or below 400 feet (Class “G” airspace)
  • Fly during daylight or civil twilight
  • Fly at or below 100 miles per hour.

With a drone registered under Part 107, the pilot:

  • Must yield to manned aircraft
  • Cannot fly directly over people,
  • Cannot fly from a moving vehicle unless you are in a sparsely populated area.

In order to obtain your registration under the Small UAs Rule, you must:

  • Be at least 16 years old,
  • Have a valid credit card, email address, and physical/mailing address,
  • Pass an aeronautical knowledge test at an FAA-approved testing center,
  • Undergo a Transportation Safety Administration security screening, and
  • Denote the make and model of your aircraft when applying for registration.

The Small UAS Rule registration, which can be completed online costs $5 and lasts for 3 years.

Traditional Aircraft Registration for Drones Greater Than 55 Lbs

Traditional Aircraft Registration must be completed for any unmanned aircraft weighing over 55 pounds. The paperwork for drones greater than 55 pounds can be found on the FAA website and must be turned in via regular mail. Drones over 55 lbs will require an N-number that you have to submit to the FAA. The FAA website lays out the necessary information for an application.

This registration costs $5 and lasts for 3 years.

What is the Penalty for Flying a Drone Without Registering it?

Failure to register an unmanned aircraft can result in regulatory penalties up to $27,500 and criminal penalties up to $250,000 and/or imprisonment for up to 3 years. Penalties are determined on a case by case basis and will vary based on the judge.

The FAA provides on its website:

“There is no one-size-fits-all enforcement action for violations. All aspects of a violation will be considered, along with mitigating and aggravating circumstances surrounding the violation. In general, the FAA will attempt to educate operators who fail to comply with registration requirements. However, fines will remain an option when egregious circumstances are present.”

Do you have to register your drone if you only fly over your own property?

Even if flying over your own property, the FAA still requires registration of your drone. The penalties for failure to register an unmanned aircraft will apply even if the drone does not leave your property.

What Other Drone Rules Should I Be Aware of?

Every registration allows for different flight regulations, so pay close attention to what you register for and what that particular registration allows you to do. The FAA has developed an app called “B4UFLY” which gives you important information about your location and the flight restrictions in that area. This app is recommended by the FAA to help avoid violations of the registration limitations. For any additional questions/concerns, visit the FAA website.

DWI No Refusal Christmas Fort Worth

Twas the Night Before No Refusal Weekend in Tarrant County

By | DWI | No Comments

Tarrant County No Refusal Period for the Christmas and New Year’s Holidays

Tarrant County typically implements a No Refusal period during major holidays.  Being in the Christmas spirit, we thought that our No Refusal warning would be better if it rhymed.  Enjoy our Christmas No Refusal poem.

DWI No Refusal Christmas Fort Worth

Twas the night before Christmas, the police are all out,
Searching for drunk drivers that might be about.
They’ll be near the parties at restaurants and taverns.
They’ll pull your car over for bizarre driving patterns.
They’ll give the field test, “walk the line, heel to toe,”
And if you misstep, to the pokey you’ll go.
They’ll ask you to blow in the breath test device,
To see how much eggnog you’ve had on this night.
And if you refuse, to a magistrate they’ll dash,
To get a search warrant as quick as a flash.
So take an Uber this Christmas, a lesser price you’ll pay.
Don’t drink and drive on this No Refusal Holiday.

False Report Child Abuse Texas

Penalties for Falsely Reporting Child Abuse or Neglect in Texas

By | Child Abuse | No Comments

False Report Child Abuse TexasUnder Section 261.101 of the Texas Family Code, persons are required to report if they have cause to believe that a child’s physical or mental health or welfare is being or has been adversely affected by abuse or neglect. The report is to happen immediately (or within 48 hours if the reporting person is a professional). The law further grants “immunity” to the person who reports or assists in the investigation if that person had “good faith” when they made the report.

What is a “Good Faith” Report of Child Abuse or Neglect?

Put simply, a “good faith” report is an honest and sincere report. The law wants to encourage folks to report so that the State can investigate and ensure that children are not being abused or neglected. However, falsely (or without good faith) reporting child abuse to CPS or other agencies is not to be used as an act of retaliation or aggression toward others. A false report damages the child’s welfare in itself because the child will be subjected to an investigation where none should have been pursued. Unfortunately, we have seen this occur in the context of highly contested family law cases and in some criminal cases as well. More recently, there were allegations of a false report made to smear a political opponent.

What are the Legal Penalties for Falsely Reporting Child Abuse or Neglect in Texas?

Section 261.107 provides the civil and criminal penalties associated with falsely reporting child abuse in Texas. This section provides that “a person commits an offense if, with the intent to deceive, the person knowingly makes a report…that is false.”

Criminal Penalty for False Report

Knowingly making a false report of child abuse or neglect in Texas is a State Jail Felony offense. The punishment range for this offense is 180 days to 2 years in a State Jail Facility and a fine up to $10,000. Further, if a person has been previously convicted of this same offense, a second offense is a Third Degree Felony which subjects the person to a prison term of 2 years up to 10 years.

Attorney’s Fees Reimbursement for the False Report

As a monetary penalty in connection with the criminal case, the court shall order any person that is convicted of making a false report to pay the reasonable attorney’s fees incurred by the person against whom the report was originally made.

Civil Penalty for False Report

The Family Code further provides that any person who engages in false reporting is liable to the State of Texas to pay a civil penalty of $1,000. The Texas Attorney General is responsible for bringing the action to recover the civil penalty.

What Do I Do if Someone Has Made a False Report to CPS About Me?

First of all, contact an attorney. Depending on the posture of the investigation, you may need representation and advice to help get through the allegations, even if they are false. If, however, CPS has already ruled out the allegations and no criminal action has been pursue, you should first gather your evidence. We have been with people at the police station when they made reports that they had been targeted by false CPS allegations. It is our experience that the police agency will want you to bring proof that the report was false or made in bad faith. Simply because CPS closed out the investigation and determined that there was “No Reason to Believe” that the allegations were true does not necessarily mean that the reporting individual acted in bad faith. Collect your text messages, social media messages, witness statements, and other evidence before you go to the police station to claim that you were the victim of a knowing false report. Because the State wishes to encourage reporting, it is reluctant to punish a person who reports unless there is clear cut evidence that the report was made in bad faith.  Again, it is best to contact an attorney to help you through this.

stealing presents Christmas theft package

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

By | Theft | No Comments

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.

What Can Happen to Individuals Who Steal Packages?

Porch pirates 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!

Seal DWI Conviction Texas

Denton County’s First DWI Non-Disclosure Granted

By | DWI | No Comments

Seal DWI Conviction TexasWhen Governor Abbott signed the new DWI sealing law allowing for first-time DWI convictions to be non-disclosed, we began to pull records for our past DWI clients to see if any of them were eligible to have their conviction sealed. We filed the first DWI non-disclosure petition in Denton County as soon as the law took effect in September 2017. Our client was exactly the type of person for whom this new law was written:

  • He was convicted of Class B DWI
  • He successfully completed all terms of his probation
  • More than 5 years have elapsed since he completed probation
  • He had no other arrests on his record either before or after this DWI conviction

Sealing a DWI with a BAC Exceeding 0.15

One of the wrinkles in our client’s non-disclosure petition involved his blood alcohol content. The new DWI sealing law does not allow DWI convictions to be non-disclosed if the person was convicted of having a BAC over 0.15 (Texas Penal Code Section 49.04(d)). Our client’s case involved a BAC over 0.15, but he was not convicted under Section 49.04(d), but rather under 49.04 without any finding of a particular BAC. Our client’s DWI case happened before the legislature added paragraph (d) to the DWI law in 2011. So, as we saw it, our client still qualified for the new sealing law.

The DWI Non-Disclosure Hearing

Having alleged all of the qualifying conditions in our petition, there wasn’t much to the hearing when the time came. The Denton County District Attorney did not oppose our petition and we were able to take the proposed order to the judge without the need for an evidentiary hearing. We were prepared with the offense report, clerk’s records, and criminal history for our client, but none was needed. The judge gladly signed the order for non-disclosure and our client became the very first person in Denton County to have his DWI conviction non-disclosed.

Our client, who has only had this one encounter with the criminal justice system, was thrilled that this uncharacteristic mistake can finally be put behind him. We look forward to helping more people seal their DWI convictions in both Tarrant and Denton Counties. To see if you might be eligible to have your DWI case sealed, contact our team today at (817) 993-9249.

*If you are a Texas attorney and need assistance drafting a petition or order for a DWI non-disclosure, please reach out and we will be glad to help.

Radar Detector Illegal Texas

Are Radar Detectors Illegal to Use in Texas?

By | Traffic Offenses | No Comments

Radar Detector Illegal TexasLets face it, most of us have received a speeding ticket at some point in our lifetime. As a result, radar detectors have become commonplace for drivers that want to take preventative measures to avoid receiving a ticket. Such preventative measures bring up an important question: are radar detectors illegal? Can I get a ticket for using a radar detector?

In Texas, using a radar detector in a passenger vehicle is legal with certain restrictions.
Under federal law, however, using a radar detector in any commercial vehicle that has a weight of 10,000 pounds or more is strictly prohibited. Commercial drivers are treated as professional drivers, and thus, different laws apply to them. 49 C.F.R. § 392.71(a).

Is it Legal to Mount a Radar Detector on My Windshield?

Although radar detectors are legal in Texas, a person may still be ticketed if they have mounted their radar detector on their windshield, side, or rear window, and that placement obstructs or reduces the operator’s clear view. Whether or not the placement obstructs an operator’s view is up to the officer’s discretion. As such, to avoid the hassle all together, it is best not to mount your radar detector on your windshield.

Radar Detectors on Military Bases

According to the Department of Defense instructions, persons are strictly prohibited from using radar or laser detection devices on military bases. Department of Defense, DoD Instruction 6055.04, DOD TRAFFIC SAFETY PROGRAM pg. 12 (2013).

What is the Difference Between a Radar Detector and a Radar Jammer?

Over the years, many devices have been created to help prevent speeders from being ticketed. The most common device is the radar detector, which is designed to locate radar signals out of the air. However, radar detectors have become less effective due to advances in technology and policing. This has generated the need for LIDAR/RADAR jamming devices. Unlike the traditional radar detector, a jamming device transmits a radio frequency signal that blocks or otherwise interferes with the operation of police LIDAR/RADAR by overloading its receiver with false information. Jamming devices can cause significant damage to police equipment. Moreover, such devices not only prevent police from detecting the speed of the vehicle with the device, but also the vehicles in the surrounding area.

Accordingly, in 2011, Texas passed HB 1116 to prohibit a person from using, attempting to use, installing, operating, or attempting to operate a radar interference device in a motor vehicle operated by the person. A person who commits an offense under this section may be charged with a class C misdemeanor. Tex. Transp. Code § 547.616. A Class C misdemeanor is punishable by a fine not to exceed $500.

Takeaways….

While many people believe radar detectors promote unsafe driving, advocates refute this contention by explaining that radar detectors alert drivers to their speed and remind them to drive the speed limit, and thus, safer.

In conclusion, spending money on a radar detector may help you dodge a speeding ticket and possibly even drive safer, but there are other laws that may be implicated when using such devices.

Lee v State Continuous Sexual Abuse Texas 2017

Can an Out-of-State Conviction Be Used to Establish “Continuous” Abuse?

By | Sex Crimes | No Comments

Texas Court of Criminal Appeals Holds That An Out-of-State Conviction Cannot Be Used to Establish “Continuous Sexual Abuse” Under Texas Law

Lee v State Continuous Sexual Abuse Texas 2017The Court of Criminal Appeals recently handed down an opinion regarding the use of an out-of-state act to support a conviction in Texas. The issue faced by the Court was whether the commission of an out-of-state aggravated sexual assault could support a conviction for continuous sexual abuse of a child under Texas law.

Lee v. State (Tex. Ct. Crim. App. 2017)

The Facts—The Trial Court Found Defendant Guilty of Continuous Sexual Abuse of a Child

In this case, Ronald Lee (Defendant) was convicted of continuous sexual assault of a child and the jury assessed a life sentence. During trial, evidence showed that Defendant committed aggravated sexual assault against his young stepdaughter twice, once in New Jersey and once in Texas. Both assaults were temporally separated by at least 30 days.

Texas Penal Code Section 21.02 prohibits the commission of two or more acts of sexual abuse over a specified time. Although committed in two separate states, the trial court permitted the evidence of both sexual assaults in New Jersey and Texas in order to convict Defendant.

The Court of Appeals Affirmed the Conviction, Holding that the Evidence was Legally Sufficient to Support the Conviction

On appeal, Defendant claimed that the evidence presented—the alleged act in New Jersey—was insufficient to support his conviction in Texas. The court of appeals held that because Defendant was charged and convicted under Texas Penal Code Section 21.01 for continuous sexual abuse, Texas has jurisdiction if part of the prohibited conduct element occurred in Texas. Further, the court determined that the location of the sexual abuse was not an element of the offense; thus, the State’s only obligation was to prove that the court of prosecution had venue—proper jurisdiction. As a result, because one of the alleged acts of sexual abuse occurred in Taylor County, the court of appeals said that the evidence was sufficient to prove venue.

The Court of Criminal Appeals Reforms the Judgment to a Lesser-Included Offense Conviction, Holding the Evidence was Legally Insufficient to Support the Original Conviction

Defendant appealed the appellate court’s decision to affirm his conviction. He argued that the alleged act of abuse in New Jersey was not sufficient proof required under the Texas Penal Code, which requires two or more violations of penal code sections. Each of these required offenses must be a violation of Texas law. Texas only has jurisdiction over an offense if either an action element or result element of the offense occurs inside the state. Because “act of sexual abuse” requires an act that is a violation of Texas law, Defendant’s act in New Jersey may not be considered one of the required offenses for a conviction under Section 21.02. The Court of Criminal Appeals determined that Texas had jurisdiction of continuous sexual abuse of a child, but the evidence in this case was insufficient to support the conviction because one of the acts was not a violation of Texas law.

When an appellate court finds that the evidence was insufficient to support a charged offense, but the jury found the defendant guilty of a lesser offense supported by sufficient evidence, then the appellate court must reform the judgment to reflect the lesser-included offense and remand for new punishment. In this case, the Court of Criminal Appeals concluded that the jury found Defendant guilty of aggravated sexual assault, which was the lesser-included offense, and remanded the case for a punishment hearing.

Judge Yeary’s Concurring Opinion

Fraudulent Prescription Forms Texas

Fraudulent Prescription Form Versus Alteration of Legitimate Prescription

By | Drug Crimes | No Comments

Can a Defendant Be Convicted for Using a “Fraudulent Prescription Form” When They Only Altered the Information on an Otherwise Valid Prescription?

Avery v. State, 359 S.W. 3d 230 (2012)

Fraudulent Prescription Forms TexasIn 2012, the Texas Court of Criminal Appeals released an opinion concerning whether a defendant may be convicted under Texas Health and Safety Code Section 481.129(a)(5)(B) for using a “fraudulent prescription form” when the facts showed that the defendant altered the dosage information on an otherwise valid prescription that had been written by the defendant’s physician.

The Facts — The Trial Court Denied Defendant’s Motion and Defendant was Convicted for Using a Fraudulent Prescription Form

In 2009, Defendant received a prescription for forty 2.5-milligram Lortab pills from her doctor after she complained of knee and back pain. Before dropping off the prescription at the pharmacy, Defendant attempted to scribble out the “2.5” and make it look like “7.5.” The pharmacist became suspicious and called the doctor’s office to confirm the prescription. The nurse confirmed the Defendant’s prescription was for 2.5-milligram pills and the pharmacist called the store security, who then contacted police.

During trial in which the defendant had been charged with using a fraudulent prescription form, Defendant moved for a directed verdict of acquittal. Defendant argued that, while there was evidence of forgery, there was no evidence that she used a “fraudulent prescription form” as alleged in the indictment. Defendant further argued that the prescription form was not fraudulent, but only that what the doctor wrote was altered. Therefore, there was no evidence that Defendant committed fraud by using a fraudulent prescription form.

However, the State responded that even by altering an otherwise legitimate prescription form, as Defendant did when attempting to change the dosage, Defendant had created a fraudulent prescription form. The trial court denied Defendant’s motion and the jury found Defendant guilty. Defendant was sentenced of 25 years’ confinement and a $1,500 fine.

The Court of Appeals Vacated the Trial Court’s Judgment and Entered a Verdict of Acquittal, Holding Defendant’s Actions More Closely Resembled Actions in a Different Subsection of Statute Instead of that Listed in the Indictment

Section 481.129 of the Texas Health and Safety Code governs the offense of fraud under the Texas Controlled Substances Act. According to Section 481.129(a)(5)(A), a person commits an offense if they possesses, obtains, or attempts to possess a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge.

Section 481.129(a)(5)(B) differs slightly in that a person commits the offense if they possess or attempt to possess a controlled substance through the use of a fraudulent prescription form.

Section 481.075 of the Texas Health and Safety Code governs the “Official Prescription Program,” which prescribers must follow in order to prescribe Schedule II Controlled Substances. This section describes the elements of an “official prescription form” as the controlled substance prescribed as well as the quantity of that controlled substance. The State argued that since the prescriber’s written words are part of the “official prescription form,” the Defendant turned the entire document into a “fraudulent prescription form” when she altered the written words.

The Court of Appeals, however, accepted neither party’s argument in full and believed its job was to determine whether Defendant’s actions were “more” like the “misrepresentation, fraud, [or] forgery” or like the “use of a fraudulent prescription form.” The Court of Appeals determined that the action may fall under either description, but cannot fall under both. Thus, the Court of Appeals ruled that Defendant’s actions—altering the writing—more closely resembled “forgery” than the “use of a fraudulent prescription form.”

Accordingly, the Court of Appeals vacated the trial court’s judgment and entered a verdict of acquittal.

The Court of Criminal Appeals Affirmed the COA, Holding that Defendant’s Alteration of Information on the Legitimate Prescription Violated a Different Statute than that for which Indicted

The Court of Criminal Appeals first addressed factual matters in the Court of Appeals’s opinion. Beginning with discussing the original indictment, it did not specify which Schedule of controlled substance Lortab is on. The Court of Appeals identified it is a Schedule II controlled substance, but also cited to definitions that describe Lortab as a combination drug that may be Schedule III. The pharmacist’s testimony identified Defendant’s Lortab as a Schedule III controlled substance mixture.

Secondly, as a result of a different schedule drug, Section 481.075 would not be applicable as it only applies to Schedule II controlled substances and does not mention Schedule III substances. Further, there was nothing in the record that led the Court of Criminal Appeals to believe that Defendant used an “official prescription form.”

The Court of Criminal Appeals analyzed how the Court of Appeals discussed the history and intent of the statutes, and determined that, based on statutory inferences and common language, “prescription form” refers to a pre-printed form that is used to write information on it. Further, the Legislature intended to create a legal distinction between completed prescriptions and the prescription forms.

After analyzing the statute applied in the Court of Appeals, the Court of Criminal Appeals determined that Subsection (B) of Section 481.129(a)(5) only governs the use of a fraudulent prescription form. Further, the Court of Criminal Appeals ruled that the writing on the form is not an element of that offense.

In the case at hand, the State originally charged Defendant with attempting to obtain a controlled substance “through use of a fraudulent prescription form.” The evidence presented by the State adduced that Defendant fraudulently altered the information written on the legitimate prescription form. Although the evidence would have supported a conviction had Defendant been charged under another statute, the evidence does not support a conviction for the offense Defefndant was charged with.

Although the Court of Criminal Appeals disagrees with the reasoning of the Court of Appeals, it agrees in its judgment and affirms the Court of Appeals’s judgment of acquittal.

Self-Defense Jury Charge Texas

When is a Defendant Entitled to a Jury Instruction on Self-Defense?

By | Self-Defense | No Comments

Self-Defense Jury Charge TexasThe Court of Criminal Appeals recently released an opinion regarding when a defendant is entitled to a self-defense charge. The issue facing the Court was whether there was some evidence, from any source, that would support the elements of self-defense and whether self-defense was authorized when a deadly weapon was used in response to verbal provocation.

Gamino v. State, Court of Criminal Appeals (2017)

The Facts—The Trial Court Denied Defendant’s Request for a Self-Defense Instruction and Defendant was Subsequently Convicted.

On August 11, 2013, Cesar Gamino (Defendant) and his girlfriend were leaving downtown Fort Worth as the local bars were closing. While Defendant and his girlfriend were walking back to his truck they passed by a group of men who were heard saying lewd comments. Believing the comments were directed at his girlfriend, Defendant confronted the men. Khan, one of the men, told Defendant they were not talking about his girlfriend. According to Khan, Defendant then said “I got something for you,” went to his truck, retrieved a gun, and pointed it in their direction. Two police officers working nearby heard Defendant’s comment and saw Defendant with the gun. Defendant was subsequently arrested and charged with aggravated assault with a deadly weapon. Khan was also arrested and charged with public intoxication.

During trial, Defendant testified that the men threatened him and his girlfriend by saying “grab her ass” and that they would “F her if they wanted to,” and that they would “kick [his] ass.” Defendant further testified that one of the men got up and moved towards him in an aggressive manner. This behavior, coupled with the fact that Defendant was disabled, caused him to believe he and his girlfriend were in danger. As a result, Defendant testified that he reached into his truck, grabbed his gun and told the men, “[s]top, leave us alone, get away from us.” Defendant’s girlfriend also testified that he was in fact disabled and that the men had confronted them and threatened her—causing her to fear for her life.

At the end of the trial, the defense asked for a self-defense instruction in the jury charge and the trial court denied the request.

The Court of Appeals Reversed the Trial Court’s Decision—Holding Defendant was Entitled to a Self-Defense Instruction Regardless of the Fact that he was Charged with Aggravated Assault with a Deadly Weapon.

Section 9.31 of the Texas Penal Code governs self-defense. According to Section 9.31, a person is justified in using force against another when and to the degree that person reasonably believes the force is immediately necessary to protect himself against another person’s use or attempted use of unlawful force. Verbal provocation by itself is not enough.

Section 9.32 governs the use of “deadly force” in self-defense cases. In the case at hand, the lower court charged Defendant with using a deadly weapon. However, even if a defendant uses a deadly weapon, deadly force as defined in section 9.32 may not apply if it meets the requirements of Section 9.04.

Under Section 9.04, a threat to cause death or serious bodily injury by the production of a weapon as long as the actor’s purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.

The Court of Appeals determined that Defendant reasonably believed his use of force was immediately necessary to protect against Khan’s use or attempted use of unlawful force, and Defendant produced his gun for the limited purpose of creating an apprehension. Thus, the Court of Appeals ruled that under Defendant’s version of events, the use of his gun did not constitute the use of deadly force, and Defendant was not disqualified from receiving a self-defense instruction even though he was charged with aggravated assault with a deadly weapon because he met the requirement of Section 9.04.

Accordingly, the trial court erred by not submitting an instruction on self-defense to allow the jury to decide the issue of self-defense.

The Court of Criminal Appeals Affirmed the COA—Holding that the Jury Should Have Been Given the Opportunity to Assess Whether Appellant’s Conduct was Justified as Self-Defense.

The Court of Criminal Appeals agreed that the trial court erred in taking away the self-defense issue from the jury. According to Texas case law, it is error for a trial court to deny a self-defense instruction if there is some evidence, from any source, that will corroborate the elements of a self-defense claim—even if the evidence is weak, contradicted or not credible.

The State argued, as well as the dissent, that Defendant was not entitled to a self-defense instruction because he did not admit to threatening the victim with imminent bodily injury. This argument was based on the idea that self-defense is a confession and avoidance justification, and the confession was missing here. The Court however disagreed, inferring a confession.

Here, Defendant testified that he displayed his gun and yelled, “stop,” “get away,” and “leave us alone.” Accordingly, the court held it to be reasonable for the jury to infer that if the men did not stop, Defendant would have used his gun for protection. As such, even though the evidence was contradicted by the State, Defendant believed the display of his gun was immediately necessary to protect himself against the use or attempted use of unlawful force, and that he displayed his weapon for the limited purpose of creating an apprehension that he would use deadly force if necessary.

Using the Court of Appeals’ analysis, the Court of Criminal Appeals affirmed their judgment holding that the jury should have been given the opportunity to analyze Defendant’s actions as self-defense.

See also the Gamino Dissenting Opinion