Fort Worth Criminal Law & Personal Injury Blog

Jun 20

Fireworks Laws in Texas | Could a Sparkler Really Cost You $2,000?

By Luke Williams | Criminal Defense

Do Not Lose Your Liberty on Independence Day

Fireworks Laws Texas Keller Southlake Independence Day is right around the corner. You will probably start seeing the notices spread across social media from local police departments, warning that setting off fireworks (including sparklers) is illegal inside of city limits. We know that you’re probably going to do it anyway, but we wanted to let you know what Texas law provides regarding fireworks on the 4th of July.

Texas Fireworks Law | Are Sparklers Illegal Inside of City Limits?

While state law in Texas permits possessing and using fireworks, it’s important to note that where and when a person can possess them is still highly regulated. There are State laws that limit the use and display of fireworks but use is predominantly regulated by way of city ordinances.

Specifically, under state law, a person may not:

Explode or ignite fireworks within 600 feet of any church, a hospital other than a veterinary hospital, an asylum, a licensed child care center, or a public or private primary or secondary school or institution of higher education unless the person receives authorization in writing from that organization;
Sell at retail, explode, or ignite fireworks within 100 feet of a place where flammable liquids or flammable compressed gasses are stored and dispensed;
Explode or ignite fireworks within 100 feet of a place where fireworks are stored or sold;
Ignite or discharge fireworks in or from a motor vehicle;
Place ignited fireworks in, or throw ignited fireworks at, a motor vehicle;
Conduct a public fireworks display that includes Fireworks 1.3G unless the person is a licensed pyrotechnic operator;
Conduct a proximate display of fireworks that includes Fireworks 1.3G or Fireworks 1.4G as defined in NFPA 1126 Standards for the Use of Pyrotechnics Before a Proximate Audience unless the person is a licensed pyrotechnic special effects operator and has the approval of the local fire prevention officer; or
Sell, store, manufacture, distribute, or display fireworks except as provided by this chapter or rules adopted by the commissioner under this chapter.

Texas Occupations Code, Subchapter F, Sec. 2154.251

These violations are Class C Misdemeanors, which can be punishable by a fine up to $500.

Fireworks licensing violations are Class B Misdemeanors which can result in a jail term up to 180 days and a fine not to exceed $2,000.

Fireworks City Ordinances | Local Fireworks Rules in Fort Worth, Keller, and Southlake

In addition to State law, most cities in Texas regulate the use and display of fireworks by way of specific city ordinances. For example, Fort Worth, Texas has enacted an ordinance making the sale, discharge or possession of fireworks within the incorporated city limits a Class C misdemeanor punishable by up to a $2,000.00 fine. Similar ordinances exist in Keller and Southlake, and most other Texas cities.

Before your celebrations, it’s always best to review the above regulations under the Texas Occupations Code and check your local city ordinances online to ensure that you’re legally possessing, using and displaying fireworks.

Jun 11

CBD Update: Texas Legislature Clarifies the CBD Issue

By Luke Williams | Drug Crimes

Gov. Greg Abbott has now signed House Bill 1325 into law, clarifying the legality of hemp-derived, low THC CBD products in Texas.

Texas CBD Legal 2019 On June 10, 2019, Gov. Abbot signed HB 1325 which modified sections of the Texas Agriculture Code and sections of the Texas Health and Safety Code.

The first major modifications come by way of the Texas Agriculture Code. The code now defines and legalizes “hemp” and establishes a legal production plan for the regulation of hemp and hemp-based products.

The Definition of Hemp

“Hemp” is now defined in in Section 121.001 0f the Texas Agriculture code as

“the plant Cannabis sativa L. and any part of that plant, including the seeds of the plant and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol [THC] concentration of not more than 0.3 percent on a dry weight basis.”

This definition is essentially the previous definition of marijuana under the Health and Safety Code but now isolates plants that contain less than .3% THC as being legal “hemp”.

By providing a clear definition of “Hemp” including plants or products that contain .3% THC or less, the legislature has resolved the issue that previously existed making the possession of any amount of THC regardless of it’s origin a felony level offense in Texas.

The Texas Agriculture Code has also been amended to establish a legal production plan for the regulation and sale of hemp and hemp-based products. The Code now establishes a licensing process for businesses looking to grow or sale hemp products.

New Rules for Peace Officers

The amendments to the Code also now give powers and duties to Peace Officers who come into contact with hemp regard to determining whether a plant or substance is marijuana or hemp. Under Sec. 122.358 of the Texas Agriculture Code, a peace officer may now inspect and collect a reasonable sized sample of any material from the plant Cannabis sativa L. found in a vehicle to determine the THC concentration of that material. Unless the officer has probable cause to believe the plant material is marijuana, the peace officer may not seize the plant material or arrest the person transporting the plant material. This would include hemp-derived CBD oil containing .3% THC.

In regards to the Health and Safety Code, HB 1325 has amended the code to exclude hemp (and more importantly the THC in hemp) as defined by Section 121.001 from the definition of a Controlled Substance. The bill also now specifically excludes hemp as defined by Section 121.001 (and the THC in hemp) from the definition of “Marijuana” in Section 481.002 (26) of the Health and Safety Code.

House bill 1325 has significantly clarified the previously confusing state of the law concerning CBD products in Texas. We advise those that are selling, buying or possessing CBD products to read the text of the bill for more details.

https://legiscan.com/TX/text/HB1325/id/2026154/Texas-2019-HB1325-Enrolled.html

Jun 04

Reasons for Chest Pain After an Auto Accident

By Jesse Lotspeich | Car Wreck

Why Do I Have Chest Pain After an Auto Accident?

Chest Pain Auto Accident Reasons Car accidents are common sights on Texas roads. Whether on busy highways or country backroads, accidents happen daily. Even though improvements in vehicle safety features continue to lower a driver’s risk of injury or death on roadways, the chances of completely avoiding an injury as a result of a collision are pretty slim. Most drivers will walk away with at least some bruising, small cuts and scrapes, or whiplash. These drivers would most likely consider themselves lucky to have avoided more serious injuries. Unfortunately, though these “minor” injuries are easily seen, they may not necessarily be the complete extent of a person’s injuries.

Should I Be Worried if I Experience Chest Pain After a Car Wreck?

Following an accident, a person may begin experiencing chest pain. If his external injuries were little more than some scrapes or bruises, he may be inclined to attribute the chest pain to the similar soft tissue pain that many experience in even low-speed accidents. This thinking could be very dangerous. Pain in your chest following an accident could indicate an injury to your ribs, your lungs, or even your heart. You should take every pain symptom seriously and get a full and thorough examination by a doctor to rule out any great chest injuries that could have occurred.

Common Causes of Chest Pain Following a Car Wreck

Having handled several hundred car accident cases, we have seen our share of chest injuries following a car crash. Some of the more common causes are:

Muscle Strains
Bruised Ribs or Broken Ribs
Internal Injuries (Heart and Lungs)

Chest Pain Injuries from Seatbelts and Airbags

The number of lives saved by seatbelts and airbags is undeniable. However, each year seatbelts and airbags are responsible for face, neck, and chest injuries. The impact to a chest from a sudden stop can break ribs and bruise delicate heart tissue. In the latter case, symptoms may not appear for weeks or months following an accident and can be incredibly painful when they do appear.

What to do if You Experience Chest Pain After an Auto Accident

If you are experiencing any chest pain following a car accident in Texas, it is extremely important that you seek medical attention quickly. Left untreated, chest pain can develop into more serious, sometimes life-threatening, conditions. If you or your loved one has suffered personal injuries due to a car wreck, please speak with an attorney. Our attorneys can help point you in the right direction to the best doctors that can help you with your pain and suffering. We do not charge a fee on injury cases unless we collect damages for you. Call us today at (817) 993-9249 or contact us online.

May 08

Is a Vehicle Always a “Deadly Weapon” in a DWI Collision Case?

By Jason Howard | DWI

Direct Evidence at Trial Must Reflect “Manner of Use” to Support Deadly Weapon Finding | Couthren v. State

Deadly Weapon DWI Couthren v State One of the common factors in any DWI case is that there must be a motor vehicle involved. Every time. When someone who is under the influence of drugs and/or alcohol chooses to drive a motor vehicle, should the car itself be considered by Texas courts to be a “deadly weapon?” When do ordinary, daily objects, such as cars, become “deadly weapons” for the purpose of charging enhancements and raising the stakes in a criminal case?

Slip Opinion: Couthren v. State (Tex. Crim. App. 2019)

Driver Hits Pedestrian after Drinking

Donald Couthren was driving on a frontage road in Bryan, Texas early one morning in 2012. He had been drinking Four Loko earlier in the evening and was impaired. Frank Elbrich was walking along the same road and stepped out in front of Couthren’s vehicle. Elbrich’s head hit the windshield and he landed on the ground. Couthren stopped his vehicle, scooped up Elbrich, and put Elbrich into his car, with the idea of taking him to the hospital. In a strange turn of events, Couthren, instead, drove to a house to exchange cars, and ended up in altercation with the people in the house. The police were called as a result. When police arrived, they noticed that Elbrich was bleeding and non-responsive. They saw that the windshield was broken, as well. The police noted that Couthren smelled of alcohol and swayed from side to side when he walked. Couthren admitted to hitting Elbrich when “[he] stepped in front of his vehicle.” Couthren did not consent to a blood draw and refused to comply with field sobriety tests. Police arrested Couthren for driving while intoxicated (DWI).

Felony DWI Trial with Deadly Weapon Enhancement

Couthren was indicted and tried for felony DWI. The State alleged a “deadly weapon” finding, claiming that the Couthren’s vehicle was a deadly weapon. A deadly weapon finding enhances the charge, increasing the term of imprisonment. Accordingly, the jury convicted Couthren and agreed with the deadly weapon finding and assessed a punishment of six years imprisonment. On appeal, Couthren argued that there was not enough evidence to support the deadly weapon finding. The lower appeals court upheld the trial court’s finding, utilizing a “two-step” approach to determine whether the evidence was sufficient. The two-step approach consisted of (1) an evaluation of the manner in which Couthren used his car during the felony and (2) an analysis of whether vehicles are capable of causing death or serious bodily injury. Couthren v. State, No. 13-16-00543-CR, 2018 WL 2057244, at 5 (Tex. App.—Corpus Christi, May 3, 2018) (mem. op., not designated for publication).

Appeal to the Texas Court of Criminal Appeals | Is a Vehicle Always a “Deadly Weapon?”

Couthren appealed the lower appeals court’s ruling, to the Court of Criminal Appeals to determine whether the first step (“manner of use”) was a proper evaluation. Specifically, Couthren argued that the lower appeals court relied on the fact that there was a collision and that he had been drinking, to uphold the deadly weapon finding. Further Couthren argued, there must be evidence of a dangerous or reckless operation to support a finding that a car was used as a deadly weapon.

The CCA examined several laws, that when applied together, could create a deadly weapon finding in a DWI collision scenario. Texas Penal Code Section 49.04(a) which prohibits a person from operating a motor vehicle in public while intoxicated. TEX. PENAL CODE §49.04(a). Further, other statutes in Texas provide for a third-degree felony enhancement if it can be proven that a defendant had to prior DWI convictions. TEX PENAL CODE §49.09(b)(2). The Texas Code of Criminal Procedure, Section 42.12 states that, “When it is proven that a defendant used or exhibited a deadly weapon, a trial court shall consider a deadly weapon finding in the judgment.” Moore v. State, 520 S.W.3d 906, 908 (Texas Crim. App. 2017).

The CCA looked to precedent cases to guide their analysis. The CCA determined that there must be evidence that the manner of driving was capable of causing death or serious bodily injury apart from the fact of a collision and a defendant’s intoxication. Brister v. State, 449 S.W.3d 490, at 495 (Tex. Crim. App 2014). Further, the CCA noted that it has “expressly rejected the argument that all felony DWI cases warrant an automatic deadly weapon finding.” Id.

Deadly Weapon Finding Reversed for Lack of “Manner of Use” Evidence to Support it

Here, the CCA noted that there was very little evidence showing the manner in which Couthren used his car during the DWI offense. For example, “we do not know if he applied his brakes…or…if there were other cars on the road.” The CCA stated that the arguments put forth by the State regarding “manner of use” on appeal were conclusions inferred from underlying facts. The CCA stated, “reasonable inferences must be supported by the evidence presented at trial.” Tate v. State, 500 S.W.3d 410 (Tex. Crim. App. 2016). In this case, “the only direct evidence of Couthren’s manner of driving before and at the time of impact was Couthren’s testimony at trial that he was driving 30 miles per hour and that he swerved to avoid hitting Elbrich.” Accordingly, the CCA determined that the facts as presented at trial did not amount to a deadly weapon finding, “in this case we lack specific testimony in the record about manner of use.” The CCA reversed the deadly weapon finding.

While the case before the CCA was decided in Couthren’s favor, it is important to note that it was not without controversy. Four justices joined in a strong dissent. Distinguishing the case at bar from the case law relied upon for the decision, Cates v. State and Brister v. State, the dissenting justices pointed out that because “the offense [in Cates] was failure to stop and render aid and the collision occurred before the offense occurred,” the collision itself could not “be the basis for a finding that a deadly weapon was used during the later offense.” The dissenting opinion states, “the collision did occur during Couthren’s DWI offense and the collision caused serious bodily injury to Mr. Elbrich.”

Apr 12

Milton v State Improper Closing Argument 2019

Lions, and Babies, and Appeals! Oh my! | When Demonstrative Evidence Goes Too Far

By Brandon Barnett | Trial Advocacy

When Does a Closing Argument Go Too Far?

Milton v State Improper Closing Argument 2019 What do Atticus Finch, Lt. Daniel Kaffee, and Jake Brigance have in common? Each of these fictional movie attorneys are known for zealously representing their clients by delivering intense cross examinations and galvanizing closing arguments. Finch, defending a wrongly-accused man in a time a place where justice was compromised by racial bias, implored the jury to seek justice by tapping into a higher power, “In the name of God do your duty.” Stuck at the crossroads of respecting formal rank and seeking justice in a military court-martial, Lt. Kaffee made the choice to double down on Col. Jessep during cross examination, poking at the Colonel’s pride. Col. Jessep took Lt. Kaffee’s bait, screaming, “You can’t handle the truth!” Jake Brigance took a more creative approach. Asking jurors to close their eyes, Brigance described a depraved series of events that caused his client to murder two people. The jury agreed with the justification, and acquitted Brigance’s client.

Under the Texas Disciplinary Rules of Professional Conduct, an attorney must render competent and diligent representation to their clients, “and with zeal in advocacy upon the client’s behalf.” “1.01 Competent and Diligent Representation,” www.legalethicstexas.com, accessed April 6, 2019. Where is the line drawn for zealous representation in a closing argument? Can demonstrative evidence used in a closing argument go too far? The Court of Criminal Appeals of Texas (“CCA”) says it can.

Milton v State (Tex. Crim. App. 2019) | Improper Closing Argument?

In 2015, Damon Milton robbed a drug store by asking a cashier to give him the money from the cash register. Milton never showed a weapon, and he pretended to shop until customers were not around. He always kept his hands out and visible. According to the police report, Milton did not have a weapon. Additionally, there was some circumstantial evidence that Milton had committed the same robbery to the same drug store the day before. At trial, Milton was found guilty of robbery.

During the sentencing phase of the trial, the State entered into evidence and played before the jury a 35-second video of a baby dressed in zebra-striped clothing at a zoo sitting in front of a protective glass enclosure. Behind the glass was a lion, ferociously trying to get to the baby. The State argued that Milton deserved a long sentence because of his criminal background and because of the crime. Additionally, the State entered into evidence Milton’s criminal history which included forgery, attempted unauthorized use of a motorized vehicle, and robbery by threat.

Defense for Milton objected to the video, on the grounds of relevance and prejudice. Moreover, “there [was] no indication that any of his past convictions involved crimes that were particularly brutal or gruesome…[nor]…any indication that…[there were any] crimes against children.” The State responded that the video illustrated that “motive plus opportunity equals behavior.” In other words, that getting away with a light sentence could embolden Milton to commit future crimes; or that if Milton would be locked away in prison, then he would not be able to commit a future crime, as imprisonment “removes the opportunity.”

Further, the State described the video to the jury, “the motive of that lion is never-changing, never changing, it’s innate…with the glass, the scene is funny, without the glass, a tragedy.” The State added, “we know that the [defendant] is such a bad guy…it’s almost laughable, just like that lion…nothing funny when the [defendant] is outside of prison, that’s a tragedy…[he] is never changing his motive.” The jury assessed Milton’s punishment at 50 years. Milton appealed to the court of appeals, arguing that the trial court’s allowing the video was an abuse of its discretion. On appeal, the State argued that the video was an impassioned plea for law enforcement and community protection, saying it was acceptable to argue that the defendant was a “vicious lion trying to eat a baby and the court needed to stop him.” The court of appeals upheld the trial courts holding, though the court noted that the State’s analysis was “tenuous.” Milton appealed to the CCA.

CCA Holds that Closing Arguments Should Not Inflame a Jury with Things Not Before Them

The CCA had to determine whether the demonstrative video shown at the sentencing phase of the trial was out of step. “The purpose of a closing argument is to facilitate the jury in properly analyzing the evidence presented…so that it may arrive at a just and reasonable conclusion based on the evidence alone, and not on any fact not admitted into evidence.” Campbell v. State, 610 S.W.2d 754, 756 (Tex. Crim. App. 1980). “It should not arouse the passion or prejudice of the jury by matters not properly before them.” Id. “Arguments that go beyond summation of the evidence, reasonable deduction from the evidence, answer to arguments made by opposing counsel, or law enforcement please, too often place before the jury unsworn…testimony of the attorney.” Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973). Even though jurors are not stupid, they are human, which is why courts prohibit highly prejudicial evidence.

Accordingly, the CCA concluded that the video could be considered unfairly prejudicial “because it encouraged the jury to make its decision upon matters outside of the record by inviting a comparison between [Milton] and hungry lion.” “The State may strike hard blows, but it must not strike foul ones.” Jordan v. State, 646 S.W.2d 946 (Tex. Crim. App. 1983). There are limits to demonstrative aids in closing arguments. The CCA reversed the court of appeals opinion and remanded to the appeals court for a harm analysis.

Apr 01

Contractor Fraud Construction Fraud Texas

My Contractor Pulled a Houdini! Now what? | Construction Fraud Under Texas Law

By Brandon Barnett | Fraud

Contractor Fraud Construction Fraud Texas Have you sustained property damage in a powerful storm? If so, you probably had to call a contractor to do necessary repairs. It is sometimes customary in the construction industry for contractors to ask homeowners to pay for some of the work up front, and pay the remaining balance upon completion. Some contractors will ask you to fork over a hefty deposit to someone you do not know, yet you are trusting to get the job done. You are not alone. The good news is that most contractors will operate above the board. Even though social media reviews and ratings sites, such as Angie’s List, are sensible ways of vetting contractors and service providers in 2019, they cannot predict future white collar crimes perpetrated by individuals who are focused on scamming construction deposits out of desperate homeowners.

What Happens if Your Contractor is a Crook? | Construction Fraud in Tarrant County

What legal remedies are available to homeowners in Texas when a contractor pulls a Houdini, vanishing into thin air, cash in hand, without completing the repair work? Contractual breach is the most common civil cause of action. Generally, a contractual breach occurs when (1) there is an existing contractual agreement that is (2) performed (paid for) by one party, yet (3) the other party did not perform as agreed to, which (4) caused damages to the performing (paying) party. Material breach of a roofing contract may occur without intention, when a contractor takes too long to complete a project, or perhaps uses substandard materials, for example. This civil cause of action addresses the damages to the individual, but does not hold the wrongdoer accountable in a criminal court.

So what about those instances in which a scammer intentionally preys upon homeowners in the hopes of pocketing the cash and skipping town? Is this a criminal act?

Construction Fraud Prosecutions in Texas

Tarrant County, Texas has recently begun focusing prosecution efforts on contractor fraud. Homeowners in Tarrant County may call their local police agency to make an initial report. Additionally, homeowners may call the Tarrant County District Attorney’s White Collar Crime and Public Integrity Unit, created by Sharen Wilson, the District Attorney in Tarrant County. Wilson stated in a recent news article, “Construction fraud is a crime, and our citizens need to be protected from it.”

When homeowners call the DA’s office, they will talk with a representative to see if the wrongdoing rises to the level of a complaint. If a complaint is filed, the DA’s office reviews the facts of the complaint for potential prosecutable offenses based on a variety of legal theories in criminal law. If the DA’s office finds elements of criminality, an investigation ensues which may result in criminal charges for the wrongdoer.

Construction Fraud Under the Texas Penal Code

The Texas Penal Code does not specifically provide a code section for construction or contractor fraud crimes. What are some of the legal theories and statutes the DA’s office is using to go after these home repair Houdinis? The Tarrant County DA’s office has prosecuted construction and roofing contractors who have absconded with the funds for misappropriation of fiduciary property, theft, insurance fraud, and elder financial abuse, to name a few.

Recently, the Tarrant County DA’s White Collar Crime Team prosecuted a man for theft from elderly victims. For his crimes, this man received three years in jail and an order to make restitution of $77,000.00 to his elderly victims. On multiple occasions, the man used aliases to approach homeowners in the mid-cities and Fort Worth areas, soliciting demolition and repair work. He accepted large sums of money, but never completed the work, or, did substandard work.

In January of 2019, another man pled guilty to Theft of $150,000- $300,000, for scamming 41 residents in the Arlington, North Richland Hills, and Mansfield areas, out of funds they paid him for roofing repairs. This man’s scheme involved sending employees door-to-door to sign customers up for repairs. The employees took checks from the victims, but the roofing work never began. As part of his plea agreement, the man was ordered pay the victims $230,000.00 in restitution.

Each of these types of cases is fact-specific and context-laden. Tarrant County has decided to take a strong stand against construction fraud. “We have made it a priority to put white-collar criminals on notice in Tarrant County—we will not tolerate scammers preying on our residents,” says Matt Smid, chief of the DA’s White Collar Crime Team. The county has also taken steps to provide the public with information regarding scams and fraud that is targeted at seniors. If you feel that you have been a victim of contractor fraud, you do have some options in Tarrant County.

Special Note to Attorneys who represent victims or perpetrators of constructions scams, implicating civil and criminal causes of action: Texas Disciplinary Rule of Professional Conduct 4.04(b) states that a lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to gain advantage in a civil matter. According to the Texas Center for Legal Ethics, “giving notice required by law or applicable rules of practice, or procedure as a prerequisite to instituting criminal charges, does not violate the Rule, unless the underlying criminal charges were made without probable cause.”

Feb 15

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

By Brandon Barnett | Evidence

Tampering with Evidence Texas 37.09 During 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.

Feb 06

Texas Stowers Doctrine Insurance Settlements

The Stowers Doctrine | Good Faith in the Settlement of Claims

By Jesse Lotspeich | Car Wreck, Personal Injury

What is the Texas Stowers Doctrine?

Texas Stowers Doctrine Insurance Settlements Under 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:

the claim against the insured is within the scope of coverage;
liability is reasonably clear;
the demand is within the limits of the policy;
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
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:

Stephen G. Cochran, Texas Practice Series: Consumer Rights and Remedies § 5.13 (3d ed. 2017).
Id.
American Physicians Ins. Exch. v. Garcia, 876 S.W.2d 842, 846 (Tex. 1994).
See G.A. Stowers Furniture Co. v. American Indemnity, Co., 15 S.W.2d 544, 547 (Tex. 1929).
Id. at 548
Id. at 547
Texas Farmers Ins. v. Soriano, 881 S.W.2d 312, 314 (Tex. 1994).
American Physicians Ins. Exch. v. Garcia, 876 S.W.2d 842, 844–45 (Tex. 1994).
Id. at 849; Trinity Universal Ins. Co. v. Bleeker, 966 S.W.2d 489 (Tex. 1998).
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.

Jan 07

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

By Jesse Lotspeich | 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.

Jan 05

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

By Luke Williams | Drug Crimes

What is CBD Oil?

CBD Oil Legal Texas CBD 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:

H.R.2642 – 113th Congress (2013-2014): Agricultural Act of 2014.
Hemp Industries Association v. USDEA, No. 17-70162
SB339 Texas Compassionate Use Program
Conant v. McCaffrey WL 1281174