Fort Worth Criminal Law & Personal Injury Blog

Jun 18

Is CBD Oil Legal in Texas? No, Unless You 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.

The 2014 Farm Bill allows a certain amount of leeway to the states to experiment with industrial hemp without falling into the reach of the Controlled Substances Act.¹ The Industrial Hemp Farming Act amends the Controlled Substances Act to exclude ‘Industrial Hemp’ and defines industrial hemp as any part of the Cannabis sativa plant with a THC concentration of not more than 0.3 percent. 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 Class B misdemeanor for Possession of a Controlled Substance (Not in a Penalty Group), which carries a range of punishment from 0-180 days in the county jail and a fine not to exceed $2,000. 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.

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.

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

Jun 15

May I Legally Refuse Field Sobriety Tests if Stopped for DWI?

By Jason Howard | DWI

Yes. You may legally refuse field sobriety tests in Texas. This article explains why you should consider refusing.

Field Sobriety Tests Can Be the Best Evidence for the State in a DWI Trial

Field Sobriety Test Fort Worth When a driver is stopped in Texas and the officer suspects that the driver may be intoxicated, the officer will typically run through a standard DWI roadside investigation. This investigation begins by simply observing the driver (bloodshot eyes, odor of alcohol) and asking some questions:

“Where are you coming from this evening?”
“Have you had anything to drink tonight?”
“Is that urine all over you pants?” (Just kidding, okay not kidding)

If the officer sees enough to warrant a further investigation, they will ask the driver to step out of the car.

“Let’s Make Sure that You’re Okay to Drive Tonight.”

Once the driver steps out of the car, the officer will typically position them in front of the squad car so that the dash cam can capture the interaction (to be used later at trial if needed). The officer will then explain that they are going to do some tests just to “make sure that you’re okay to drive.” Note: The officer WILL NOT ask permission to conduct the field sobriety tasks. He will jump right in and hope that you just go along with it. There are 3 standard tests that are explained in more detail on our DWI page.

The Field Sobriety Tests are Not Designed for You to Pass

The 3 standard tests are (1) the HGN test (Horizontal Gaze Nystagmus), which is the “light-in-the-eyes-test,” (2) the Walk the Line test, and (3) the One Leg Stand test. I don’t have enough time to go into the many problems with the tests, but to list a few:

The Eye Test requires the officer to conduct it perfectly and the camera can never capture the test so we are left with officer testimony alone;
The Walk the Line test is difficult even for sober people because it requires the person to take tiny heel to toe steps on an imaginary line in all weather conditions; and
The One Leg Stand test is also difficult for a sober person to maintain for 30 seconds and if the person puts their foot down at 27 seconds it is a strike against them.

Throughout the years, the tests have been debunked and challenged by experts as unreliable, but the courts are still allowing them as proof of intoxication (the loss of mental or physical faculties). In short, the tests set you up to fail. So why would a driver who is suspected of DWI take the tests if they didn’t have to?

You DO NOT Have to Submit to Field Sobriety Tests in Texas

Even though the officer might act as if you must take the tests, you don’t. If he asks you to exit the vehicle then you must get out of the car. But as soon as he tries to start the HGN (eye test) on you, you can (and probably should) politely refuse to take the test. Take note of what I said…Politely Refuse. Do not be a jerk about it and go into a diatribe about how you read this blog and you know these test are no good and that you will not do them. Remember this is all being captured on audio and video; audio and video that will be exhibit #1 at a trial if it goes that far. Simply inform the officer that you do not wish to participate in the field sobriety tests.

Can I Still be Arrested if I Refuse to Perform the Field Sobriety Tests?

Yes you can (and probably will) be arrested if you refuse to perform the FSTs. If the officer already felt like he had enough evidence to administer the tests, then he will probably go ahead and arrest you for DWI if you refuse to take them. But hey, you were probably going to get arrested anyway. Now, however, there will be less evidence against you. You have an absolute right not to give evidence against yourself. This constitutional right applies equally in the DWI context.

Should I Take the Tests if I Haven’t Had that Much to Drink?

You are an adult, so it is really up to you, but our advice (from over 10 years of handling DWI cases) is NO. You should not perform the field sobriety tests. Your DWI case becomes tougher to defend if you look intoxicated on the video. Even if you haven’t had that much to drink, there are many reasons why you might appear intoxicated on the video:

Your footwear (high heels, flip flops, etc)
The wind is blowing hard
It is cold outside and you are shivering
You have an old injury that causes you to limp
You have bad balance (even on a good day)
You are extremely nervous

We have seen each of these scenarios on actual DWI videos.

Next Time, Please Take an Uber

We hope you will listen to our advice regarding DWI field sobriety tests. Better yet, we hope that you’ll just pay the $40 for an Uber or taxi from the bar or restaurant and avoid this altogether. But if you didn’t take our advice and you didn’t call and Uber, call us and we’ll be happy to be your advocates.

*This article did not discuss whether you may legally refuse a Breath Test or a Blood Test. We’ve written on that many times and the answer is YES. You may refuse breath and blood tests UNLESS the officer has a warrant for your blood. If they have a warrant, you may not refuse.

Jun 08

Baylor Football Player Sam Ukwuachu’s Sexual Assault Conviction Reinstated

By Brandon Barnett | Sex Crimes

Baylor Football Ukwuachu Sexual Assault Baylor Sexual Assault Case: Ukwuachu v. State (Tex. Crim. App. 2018)

Anyone who lives in the state of Texas has heard about the sexual assault scandal at Baylor. One of the cases that triggered the investigation of how Baylor handles sexual assault accusations recently took an interesting turn. Former Baylor football player Sam Ukwuachu was found guilty of sexual assault in 2015. He has been fighting that conviction ever since. The prosecution achieved this conviction with the help of text messages sent from the victim to her friend. Ukwuachu’s defense attorney argued that earlier text messages sent to the same friend would help to show the complete nature of the relationship and could be compelling evidence that the woman consented to sex. However, the trial court decided that those text messages were inadmissible under Texas’ Rape Shield Laws and Ukwuachu was ultimately convicted. The process did not stop there.

Ukwuachu Appealed the Sexual Assault Conviction

Ukwuachu appealed his conviction arguing that the earlier text messages should have been admissible and the trial erred by refusing to admit them. In 2017, the 10th Court of Appeals sided with Ukwuachu, reversing the conviction and ruling that the trial court abused its discretion by refusing to admit the messages. The court reasoned that under Texas Rules of Evidence 412 and 107, the messages should have been allowed even though Ukwuachu’s attorney did not present the evidence under Rule 412.

Texas Court of Criminal Appeals Overturns the Lower Court, Reinstates Conviction

This week, Texas’s highest criminal court issued its opinion on the case. Ukwuachu v. State (Tex. Crim. App. 2018). The CCA held that the 10th Court of Appeals erred when it reversed the conviction. In a plurality opinion, the CCA held that the trial court did not abuse its discretion in not allowing the text messages.

Texas Rule of Evidence 412 and 107

Rule 412 is also known as the “Rape Shield” law. It is a rule of exclusion that prevents the admission of evidence of a sexual assault victim’s “past sexual behavior.” TEX. R. EVID. 412(a)(1). It also makes any evidence in the form of depictions of specific instances of the victim’s sexual conduct inadmissible. TEX. R. EVID. 412(a)(2). However, it has many exceptions.

The exceptions the TRE 412 include when the evidence:

is necessary to rebut or explain scientific or medical evidence offered by the prosecutor;
concerns past sexual behavior with the defendant and is offered by the defendant to prove consent;
relates to the victim’s notice or bias;
is admissible under Rule 609; or
is constitutionally required to be admitted

Rule 107 is known as the Rule of Optional Completeness. Rule 107 states,

“[w]hen part of an act, declaration, conversation, writing or recorded statement is given in evidence by one party, the whole on the same subject may be inquired into by the other, and any other act, declaration, writing or recorded statement which is necessary to make it fully understood or to explain the same may also be given in evidence, as when a letter is read, all letters on the same subject between the same parties may be given.”

Under this rule, there are two avenues to the admission of evidence. The first is if partial evidence is introduced, any remaining part of that same evidence may be introduced so long as it is on the same subject. Second, other evidence, even evidence that is not a part of what has already been introduced, may be introduced if it is necessary to explain or help the trier of fact fully understand the part that was introduced. Basically, the courts do not want the parties to present a false picture to the jury by selectively presenting pieces of the whole.

Rule 107 was the focal point at the trial court regarding the admission of the “other text messages.” The defense argued that the order messages were necessary to help the jury to fully understand the messages that were already in evidence. The state (and the trial court) disagreed.

Why Was the Conviction Reinstated?

The CCA explained that at the trial court, neither party discussed Rule 412 and how it would apply to the text messages. Instead, both the state and the defense argued based on Rule 107. Accordingly, it was inappropriate for the 10th court to decide the appeal using Rule 412. When analyzing Rule 107, the Judge noted that the text messages could have been interpreted in multiple ways. They could have been part of the same conversation, they could have been necessary to explain the messages already introduced to the jury, or they could have fallen into neither category, making them inadmissible. The trial court determined that the messages fell into neither category and were inadmissible. The CCA explained that this was not error because it fell under the trial court’s discretion. Judge Walker wrote:

Arguably, both parts of the text stream are within the same conversation, because a text message conversation can span a long period of time and the messages at issue in this case were all sent on the same night over what was, at most, a one hour and forty-five minute time period. On the other hand, the earlier text messages that defense counsel sought to have admitted appear to be during a time when the victim was traveling with Appellant to Appellant’s apartment, and the later text messages that the State introduced appear to be during the time that the victim was actually at Appellant’s apartment, including the time after the assault occurred. This latter interpretation is the one that the trial court made during the hearing.

A court only abuses its discretion if its decision lies outside the zone of reasonable disagreement. Since the trial court’s decision in this case fell within a reasonable zone of disagreement, its decision to deny the introduction of the text messages should stand. This means that Sam Ukwuachu’s original conviction is reinstated.

The case was remanded back to the lower court.

May 31

Supreme Court Holds Police May Not Search Vehicle in Driveway Without a Warrant

By Brandon Barnett | Search & Seizure

Collins v. Virginia – US Supreme Court Considers Whether Police May Search a Vehicle in a Driveway Without a Warrant

Collins v. Virginia (US Supreme Court 2018)

In Collins v. Virginia, police officers were looking for a motorcycle that they suspected was stolen. They tracked the motorcycle to a home where it appeared to be parked in the driveway and covered by a tarp. Officers walked up the driveway, removed the tarp, discovered the motorcycle and conducted a search of the license plates. The license plate search indicated that the motorcycle was indeed stolen. The officers then replaced the tarp over the motorcycle and waited in their car for the driver of the motorcycle. When Collins appeared, they arrested him.

Collins’s Motion to Suppress the Warrantless Search

In the trial court, Collins made a motion to suppress evidence, claiming that the officers violated his 4th Amendment right when they entered the curtilage of his home and conducted a warrantless search of the driveway. The trial court denied the motion and Collins was convicted of Receipt of Stolen Property. The Virginia appellate court and State Supreme Court affirmed Collins’ conviction, reasoning that the “automobile exception” to the warrant requirement applied to the search in this case.

What is the Automobile Exception to the Warrant Requirement?

Generally, the “automobile exception” to the 4th Amendment allows officers to search a vehicle without a warrant if they have probable cause. The rationale behind this exception is that automobiles should be treated differently than houses because of the “ready mobility” of the automobile. Virginia argued that the automobile exception should apply in this case, because the motorcycle was capable to being driven away from the home.

Supreme Court Overturns the Virginia Courts, Defining the “Curtilage” of the Home to Include the Driveway

The US Supreme Court, Justice Sotomayor writing for a nearly unanimous court, held that the officers violated Collins’ 4th Amendment right to be free from unreasonable searches and seizures. The Court emphasized that the area of the driveway where the motorcycle was parked was a protected area of the home.

[T]he part of the driveway where Collins’ motorcycle was parked and subsequently searched is curtilage. When Officer Rhodes searched the motorcycle, it was parked inside a partially enclosed top portion of the driveway that abuts the house. Just like the front porch, side garden, or area “outside the front window,” that enclosure constitutes “an area adjacent to the home and ‘to which the activity of home life extends.’ “

Justice Sotomayor further explained that:

Nothing in this Court’s case law suggests that the automobile exception gives an officer the right to enter a home or its curtilage to access a vehicle without a warrant. Such an expansion would both undervalue the core Fourth Amendment protection afforded to the home and its curtilage and “ ‘untether’ ” the exception ” from the justifications underlying’ ” it.

In holding that the search violated the 4th Amendment, the Court reversed the decision of the Virginia Supreme Court and remanded to case back to the state.

Takeaway

The curtilage of the home extends to the driveway and items that might be found therein. Of course, if the officers had been able to view the license plates from the street, without removing the tarp, things would likely be different. However, as it stands, the Supreme Court is unwilling to adopt any rule that would allow police to enter the curtilage of the home to conduct a warrantless search.

May 29

Innocent Transfer of DNA Through a Load of Laundry

By Brandon Barnett | DNA

What is Transfer DNA and Why is it Important in Criminal Cases?

Innocent DNA Transfer in Laundry When a person thinks of DNA evidence, they typically think of blood, semen, or some sort of bodily fluid left at a crime scene that indicates a suspect in a crime. However, this is no longer the case. With the advances in technology, DNA can be detected from just sitting near another person. In a study done by Australian forensic scientist Roland van Oorschot, he found that in 50% of volunteers who sat at a table and shared a jug of juice they ended up with another’s DNA on their hands. The volunteers never touched one another and some of the DNA found was from individuals who were not even at the table. They found that DNA was much easier to transfer than anyone had previously thought. This means that at any given crime scene, there could be hundreds of DNA profiles. The DNA found by investigators could be from an innocent person or the suspect. This is concerning because, while there is a way to discover whose DNA it is, there is not a way to discern how it got there. Who’s to say they won’t find yours?

The DNA Phantom Case From Germany

That is exactly what happened in the case of the Phantom of Heilbronn. In Germany, DNA from one woman was found at crimes scenes ranging from murders to thefts. This woman’s DNA was connected to 40 crimes extending as far back as 1993 and covering the countries of Germany, Austria, and France. However, the DNA that was found did not belong to the perpetrator, it belonged to a woman who made the cotton swabs used to collect DNA samples from the crime scene. Even though the cotton swabs went through the proper sterilization process, they still contained traceable amounts of DNA. The Phantom of Heilbronn is an example of how easily DNA can be innocently transferred to a crime scene.

How DNA Can Be Transferred Through Laundry in Child Sexual Assault Cases

When it comes to child sexual abuse cases, researchers have found that DNA can be transferred innocently by the laundry even after clothes are supposed to be “clean.” A Canadian study discovered that when undergarments are washed with sheets containing bodily fluids, the undergarment too will have DNA on them. The DNA from the sheets transfers to the undergarments in the washer and the washer itself. This is problematic because a person’s DNA can end up on every household member’s clothing in one wash. This DNA can later be collected during an investigation, but investigators might make the wrong assumption as to how it got there.

To help distinguish between innocent DNA transfer from laundering and DNA that was left during a crime, the researchers studied the location of the DNA on the items of clothing. In the process of this experiment, the findings strongly suggest that bodily fluids that were transferred during laundering were absorbed deeper into the fabric. Swab samples that yield significant quantities of bodily fluids are indicative of the fluid being deposited directly on the clothing as opposed to transfer during laundering. DNA that is transferred during the laundering process is both found in a different location and lesser in quantity than DNA deposited through abuse.

What Does This Mean for the Future of DNA Analysis?

The findings from this research are important for the future of DNA evidence, especially in the case of child sexual abuse cases. This research shows that DNA does not immediately indicate sexual abuse. This research emphasizes that the mere presence of DNA on a child’s undergarments does not confirm abuse. Investigators should gather all available evidence before they come to a conclusion.

May 24

Oliva v. State – Prior DWI is a Punishment-Only Issue for DWI (2nd)

By Brandon Barnett | Criminal Defense

Existence of a Single Prior Conviction for Misdemeanor DWI is a Punishment-Only Issue in a Case for DWI (Misdemeanor Repetition), says the CCA

Oliva v State (Tex. Crim. App. 2018)

It is well established in both Texas statutes and case law that the existence of two prior DWI misdemeanors will enhance the third DWI to a felony-level offense. See Texas Penal Code § 49.09(b); Ex Parte Benson, 459 S.W.3d 67, 75-76 (Tex. Crim. App. 2015). A variable “three strikes and you’re out” type of statute, the law was enacted as a legislative response to deter potential repeat offenders from creating dangerous and preventable hazards on Texas roads. In this statutory enhancement scenario, the third strike becomes the offense itself, thus, the third DWI offense is an element of the felony. As a result, the defendant is punished according to the felony sentencing guidelines.

But what happens when the defendant only has one strike—one prior misdemeanor DWI on his record? Would it make any difference if that DWI happened nearly a decade prior, on an otherwise clean driving and criminal record? Recently, the Court of Criminal Appeals sought to determine the legal significance of companion statute TPC § 49.09(a), whereby the defendant had only one prior misdemeanor DWI offense. TPC § 49.09(a) states that the “existence of a single prior conviction elevates a second DWI offense from a Class B misdemeanor to a Class A misdemeanor.” The CCA had to decide whether having one single prior DWI constituted an element of the crime or whether the one single prior DWI was only relevant in the punishment phase.

Law Enforcement Responds to Phone Call Reporting a Mysterious Person

Early in the morning in May of 2015, two Houston-area police officers responded to a call from dispatch about a suspicious person. Tex. R. App. P. 47.2(b), accessed 24 May 2018 via https://law.justia.com/cases/texas/fourteenth-court-of-appeals/2017/14-15-01078-cr.html. Sitting slumped over in a parked car was Jose Oliva, illegally parked with the engine on, in a lane of moving traffic. Concerned for Oliva’s health and safety, law enforcement attempted to alert Oliva, but he remained unresponsive. Police opened the car door and Oliva fell out onto the curb. Once Oliva woke up, law enforcement administered a field sobriety test; Oliva failed and was arrested. Blood testing later confirmed that Oliva had a blood alcohol level equivalent to having just ingested nine alcoholic drinks within the hour. Oliva was charged with DWI “by information” which mentioned a previous DWI on Oliva’s record.

What is an Information?

In Texas, a person may be charged via an indictment or via an instrument called an information. Article 21.20 of the Texas Code of Criminal Procedure defines an “information” as a written statement filed and presented in behalf of the State by the district attorney, charging the defendant with an offense. Oliva’s information described the May of 2015 DWI arrest and it mentioned a prior misdemeanor-level DWI offense on his record.

Oliva Heads to Court

During the trial, Oliva’s prior DWI was never mentioned, even though it was present on the information before trial. The jury convicted Oliva of DWI. Finding that he also had a prior DWI as alleged on the information, Oliva’s conviction was then increased, or enhanced, to DWI 2nd, which carried a sentence of 180 days confinement. Oliva appealed to the Fourteenth Court of Appeals in Houston.

On appeal, the appellate court held that under the statute’s plain language meaning, one singular prior DWI conviction is an element of the offense of Class A misdemeanor DWI under section 49.09(a)—much like the “three strikes and you’re out” felony-enhancement statute of 49.09(b). The appeals court reasoned that a fact that elevates the degree of an offense is necessarily an element of the offense and that § 49.09 lacked the “shall be punished” language present in other statutes containing punishment-only enhancements.

The State of Texas petitioned the Court of Criminal Appeals to review this case once again, to determine whether the introduction of a defendant’s prior DWI is proper at the guilt-innocence phase of a criminal trial, or whether such a disclosure is only relevant under 49.09(b) during the punishment phase. Such distinction could have implications for bias, or taint, at trial, among other defense strategies. To recap, Texas Penal Code § 49.09(a) provides that the existence of a single prior conviction elevates a second DWI offense from a Class B misdemeanor to a Class A misdemeanor.

The CCA Weighs In on Whether the Prior DWI is Actually an Element of DWI 2nd that Must Be Introduced to a Jury at Trial

Is the prior DWI conviction an element of the offense, or is the prior conviction a punishment-only issue? The Court of Criminal Appeals made a surprising conclusion, holding that the existence of a single prior conviction for misdemeanor DWI is a punishment-only issue. Broadly, the CCA reasoned that introducing the prior before the punishment phase

“would seem to benefit the State in most cases because it would enable the State to introduce evidence of the prior conviction at the guilt stage of trial instead of having to wait until the punishment stage.”

The CCA Analyzes the Statute

First, the CCA looked to the wording of the statute to find its “plain language” meaning. “In construing the meaning of, and interplay between, these statutes, we give effect to the plain meaning of the text, unless the text is ambiguous or the plain meaning leads to absurd results that the legislature could not have possibly intended.” Here, the CCA found that the plain language meaning was ambiguous and could lead the interpreter to conclude mixed, confusing results.

Second, the CCA took a closer look at how the statute was labeled in the Code to see if the legislature labeled the statute as guilt-innocence phase element. Unfortunately, this was not the case here, and the CCA had to look to grammatical construction. Texas case law has informed Texas courts, generally, that the Penal Code’s most obvious and common method of prescribing elements of an offense is prefacing incriminatory facts with the language, “A person commits an offense if ______.” Ex parte Benson, 459 S.W.3d 67, 85 (Tex. Crim. App. 2015). Unfortunately, the DWI statutes were not written with clarity as to preface incriminatory facts—the prior DWIs—with language specifying that “an offense is committed if____.”

Third, the CCA reasoned that it would have to deep dive into existing case law to assist with determining the meaning of the statute. Looking to Calton v. State, the CCA suggested that “a statute could unambiguously prescribe an element of an offense by setting forth a fact that would increase the degree of the offense; a punishment enhancement “does not change the offense, or the degree of the offense of conviction, as there can be no enhancement until a person is first convicted of an offense of a certain degree.” 176 S.W.3d 231, 233-34 (Tex. Crim. App. 2005).

Next, looking to Ex parte Benson, another DWI case, the CCA held that “a prior conviction that merely enhances the offense level would not be an element of the offense.” Benson, 459 S.W.3d at 74-75. In conclusion, the CCA held that although the statutory language is ambiguous, various factors suggest that the legislature intended that § 49.09(a) prescribe a punishment-only issue.

It is important to note that Justices Keasler and Yeary filed a dissenting opinion about the CCA’s holding. In the dissent, the Justices aver that the CCA should adhere to the language of the case law in Calton, regardless of the wording of a particular statutory provision, so long as the provision is not explicitly labeled a punishment issue. Even though this case law is not supported by authority, the dissent claims that the interests of swift justice “would be better served by the wholesale adoption of this language…[as] such adoption would simplify our analysis by creating an easy, bright-line rule.” Further, the dissent also states that Calton’s language is consistent with the use of the phrase “degree of offense” in connection with the word “convicted” in the statute that prescribes the requisites of a criminal judgment, Article 42.01, so that the prior DWI conviction should be introduced at the guilty-innocence phase of a criminal trial.

Which is More Important, Swift Justice or a Fair Trial?

In sum, this ruling is a win for those who have made a couple of DWI mistakes, but are not repeat, habitual offenders. For defense attorneys, knowing exactly when evidence of a prior DWI can be admitted on the record during a criminal trial is paramount to developing a successful legal strategy. Should evidence of a prior DWI be introduced too early, the judge or jury may become biased, or tainted, against the facts and evidence in the case before them. If the evidence is introduced at the punishment phase, for the purposes sentencing enhancements only, the defendant may have more solid footing to defend against the DWI charge before the court.

May 21

What to Expect When Your Personal Injury Case Goes to Mediation

By Jesse Lotspeich | Personal Injury

Personal Injury Case Mediation As a Fort Worth personal injury attorney, I have participated in hundreds of mediations where I represented victims of car accidents, work place negligence, defective products, assault, electrocution, and other manner of claims involving injury or death. In my experience, mediation may be the most effective tool for allowing all parties to best understand all aspects and perspectives about their case—the good, bad, and ugly—and to make an informed decision about whether to settle their case or move forward toward trial.

What is Mediation?

Mediation is a guided negotiation facilitated by a neutral third party, the mediator. As defined by Texas Civil Practice and Remedies Code Section 154.023:

(a) Mediation is a forum in which an impartial person, the mediator, facilitates communication between parties to promote reconciliation, settlement, or understanding among them.

(b) A mediator may not impose his own judgment on the issues for that of the parties.

Unlike a judge or an arbitrator, a mediator does not have the power to decide a case or to enter a judgment or award. Neither can a mediator force the parties to accept a settlement. Rather, the role of the mediator is to help open the lines of communication between the parties in a confidential setting.

What to Expect During a Personal Injury Mediation

Mediations frequently begin with what’s known as a “joint session” or “caucus.” The plaintiff, his or her lawyer, the defense lawyer, the insurance adjuster, and the mediator will gather in a conference room. When meeting the defendant’s representatives, I encourage my clients to shake hands and politely introduce themselves. Once the introductions have been made, the lawyers may put on brief presentations emphasizing what they feel is important about their respective cases. The parties do not put on evidence and the plaintiff will not be asked to testify. The parties will then break off into separate rooms with the defendant’s lawyer and adjuster in one room and the plaintiff and his or her attorney in another.

The mediator then spends time with each group getting to know the case and the parties involved. As a neutral third party with no stake in the outcome of the case, a mediator is in the unique position to offer a new perspective on the case. Good mediators will challenge the parties’ assertions and help them look at the case from different angles.

At some point during the process, the mediator will begin to carry demands and offers from one room to the other. The party to make the first “move” will depend on whether a demand or offer was previously extended. If the plaintiff made a demand to which the defendant never responded, the defendant should make the first move and vice-versa. Each party will respond with a counter-demand or offer of their own until the case either resolves or the parties reach an impasse.

Over the course of the mediation, the mediator will push both sides to consider potential weaknesses in their own cases while acknowledging the potential strengths of their opponents’. With each round of offers and demands, the gap between the parties will, ideally, begin to narrow until the parties are able to come together on a final number to settle the case.

What Happens if My Case Settles at Mediation?

If mediation is successful, the mediator will prepare an agreement for the participants to sign that generally sets forth the basic elements of the parties’ settlement agreement with the understanding that a more detailed and thorough agreement will be prepared by the lawyer for the defendant, subject to modifications made by the plaintiff’s lawyer. However, a mediation agreement is enforceable once signed, and either party to the agreement may require the other parties to be bound by its terms.

The mediation agreement will generally include a time frame for the defendant or its insurer to deliver checks to the plaintiff’s counsel for distribution. It is not uncommon, however, for this process to be delayed in order for the plaintiff’s lawyer to negotiate hospital liens, subrogation interests from health insurers, and outstanding medical bills.

What Happens if My Case Does Not Settle at Mediation?

When the parties are unable to reach an agreement at mediation, the mediator may make what is referred to as a “mediator’s proposal” in which the mediator proposes a settlement amount to each of the parties. The parties are instructed to confirm to the mediator by a certain date whether they accept or reject the proposal. The parties’ decisions to accept or reject are kept confidential and made known only to the mediator. Mediator’s proposals can be an effective tool when more time or settlement authority is needed to bring the case to a close.

Mediators will generally make a proposal only in cases where they feel there is at least some chance that both parties will accept. When the gap between the parties is too wide, a mediator’s proposal is unlikely to work and the parties are free to continue litigating the case or they may choose to continue negotiations with or without the assistance of the mediator. Depending on the case, the parties may choose re-mediate as the case gets closer to trial and fewer unanswered questions remain.

Even when a mediation fails to resolve the parties’ disputes, it has been my experience that almost all mediations are worthwhile experiences. The parties generally walk away from a failed mediation with a better understanding of the main issues in their case and are better able to focus their efforts going forward.

May 17

Is a Video of a Video Admissible in a Criminal Trial?

By Brandon Barnett | Evidence

Video Footage Evidence Fowler Technology has dramatically changed the landscape of criminal law procedure, and ultimately criminal convictions, in Texas. Updated DNA testing exonerates the wrongly-accused, while incriminating the guilty. Traffic cameras are commonplace on Main Street, clocking speeding motorists who are subject to fines and penalties—and bad feelings. Recently in Arkansas, recordings from Amazon’s Echo artificial intelligence device have been used by prosecutors as evidence in a murder trial. As digital evidence evolves rapidly, so must the evidentiary rules supporting admissibility. In this late-breaking case, the Texas Court of Criminal Appeals considers one man’s conviction for theft and burglary vis a vis the admissibility of “picture only” video footage.

State v. Fowler (Tex. Crim. App. 2018)

Fresh Tire Marks Lead to a Suspicious Dollar Store Receipt

Law enforcement was called to the scene of a burglary at a business in Royse City, Texas. Police discovered disarray; cut wires, mangled cables, and bolt cutters were seized as evidence, but no suspects were apprehended. One month later, police were called to investigate the same scene for another burglary. This time, ATV tracks led police to a nearby field where they found a receipt from the local Family Dollar store mere feet away from a stolen ATV. Even more curious were the items listed on the receipt, which included duct tape and utility knives. Police used the date, time stamp, and the address on the receipt to request video footage from inside the store. Employees at Family Dollar provided investigators with time and date-stamped footage that corresponded with the receipt found at the scene of the crime. Police recorded the incriminating footage on their body cameras, as recording from a VHS cassette proved time-consuming and clunky. Although the footage was non-audio “picture only,” it showed a suspect purchasing the items that were reflected on the receipt found at the crime scene. Further, the footage time and date stamps placed the individual inside of Family Dollar at a certain time, on a particular day.

Leveraging all of the information learned from the receipts, the fact that the ATV was stolen, and the video footage, law enforcement soon had a suspect—Jamel Fowler. Fowler was convicted of theft of property for stealing the ATV and was sentenced by a jury to two years imprisonment. Fowler appealed. On appeal, the court reversed the trial court’s conviction and sentencing, holding that “trial court committed reversible error by admitting an unauthenticated videotape exhibit into evidence.” The State of Texas appealed to the Court of Criminal Appeals to determine whether prosecutors may prove authenticity of video footage without the testimony of someone who either witnessed what the video depicts or is familiar with the functioning of the recording device. In other words, is the video of a video at Family Dollar admissible as evidence against Fowler? In order to answer that question, the CCA looked to Texas Rule of Evidence 901.

Texas Rule of Evidence 901 and the Authenticity Requirement

Texas Rule of Evidence 901 governs the authentication requirement for the admissibility of evidence. Typically, to satisfy the requirement of authenticating evidence, the person offering the evidence must produce items or data sufficient to support a finding that the item or data is what the proponent claims it is.

“Authenticity may be established with evidence of distinctive characteristics and the like, which include [t]he appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.”

TEX. R. EVID. 901(b)(4); see Druery v. State, 225 S.W.3d 491, 502 (Tex. Crim. App. 2007). Conclusive proof of authenticity before allowing admission of disputed evidence is not required.

Applying Rule 901 to a “Picture Only” Video of a Video

May the proponent of a video sufficiently prove its authenticity without the testimony of someone who either witnessed what the video depicts or is familiar with the functioning of the recording device? The Court answers that, yes, it is possible, given the facts.

Here, the Court acknowledged the argument of the defense in the appeal: “The court of appeals’s point is well-taken—the State could have done more [to prove up the evidence presented]. However, even though the most common way to authenticate a video is through the testimony of a witness with personal knowledge who observed the scene, that is not the only way.”

The Court reasoned that video recordings without audio are treated as photographs and are properly authenticated when it can be proven that the images accurately represent the scene in question and are relevant to a disputed issue. Huffman v. State, 746 S.W.2d 212, 222 (Tex. Crim. App. 1988). The Court stated that (1) the officer’s in-person request of the manager of the Family Dollar store to pull the surveillance video on a certain date at a certain time; (2) that the distinctive characteristic that there is a date and time stamp on the videotape; and (3) the fact that the date and time on the videotape correspond to the date and time on the receipt that was found within three feet of the ATV; (4) the fact that the videotape pulled by the manager reveals Fowler at the store on that date at that time purchasing the items listed on the receipt that was found near the stolen ATV, were enough, together, to authenticate the video. The video was sufficiently authenticated to be admissible into evidence. The evidence strongly pointed to Fowler and, accordingly, his conviction was upheld.

May 08

What is a Pre-Sentence Investigation (PSI) in a Texas Criminal Case?

By Luke Williams | Criminal Defense

Making an “Open Plea” in a Criminal Case

Pre Sentence Investigation PSI Texas *This article relates to State cases only. It does not apply to Federal cases.

In Texas, when a defendant pleads guilty to a criminal offense, the sentencing is most often agreed upon by both the State Prosecutor and defendant prior to the plea. But, there are situations that arise wherein a defendant wishes to enter a plea of guilty, but does not agree to accept the sentencing recommendation that is being made by the State. The defendant may request that the judge assess an appropriate sentence, believing that the judge might be more fair-minded than the DA in this particular case. This situation is referred to as an “Open Plea.” In an open plea, after a defendant pleads guilty, both parties may put evidence on for the judge in order for the court to determine an appropriate sentence.

Pre-Sentence Investigation (PSI) as Part of an Open Plea

In addition to witness testimony, prior to sentencing a defendant, Texas Law (Texas Code of Criminal Procedure Art. 42A.252) requires a community supervision officer to prepare and submit a written report to the court. The report should include:

the circumstances of the offense with which the defendant is charged;
the amount of restitution necessary to adequately compensate victims of the offense;
the criminal and social history of the offender; and
any other information relating to the offender or the offense requested by the judge.”

The probation officer gathers this information during a pre-sentence investigation or PSI.

The Law Regarding PSIs in Texas | When is a PSI Required?

The law requires a pre-sentence investigation in every case, UNLESS:

In a misdemeanor case:

The defendant requests that a report not be made and the judge agrees;
The judge finds that there is sufficient evidence in the record to permit sentencing without the report; and
The judge explains this finding on the record.

In a felony case:

Punishment is to be assessed by a jury;
The defendant is convicted of or enters a plea of guilty to capital murder;
The only available punishment is imprisonment; or
The judge is informed that a plea bargain exists, under which the defendant agrees to a punishment of imprisonment, and the judge intends to follow that agreement.

Unless one of these scenarios are present, the court is required to conduct a pre-sentence investigation. For agreed pleas to probation or deferred adjudication, the practice by the Tarrant County courts is that pre-sentence investigation is not often conducted, even though the law would seem to dictate otherwise.

The Mechanics of a Pre-Sentence Investigation

The PSI is an interview conducted by a specialized probation officer who – along with a defendant’s attorney – gathers as much information as possible to aid in a Judge’s decision on punishment. The officer gathers the police agency’s version of the facts and the defendant’s version of the facts regarding the underlying offense. The officer will also contact the victims named in the case to obtain a victim impact statement. The probation officer also does an extensive search of the defendant’s prior criminal record as well as his or her family, financial, and education history. The officer can also include other items in the PSI such as additional physical and mental health history.

At the pre-sentence investigation interview, the attorney representing the defendant can also submit other extraneous materials to be included in the officer’s report to the court. These items can include character reference letters, additional psychological evaluations that have been conducted prior to the investigation, and additional statements by the defendant related to his or her version of the case. It is prudent for the defense attorney to contact all of the people that have submitted character letters that ensure that their letter is an accurate reflection of their feelings regarding the defendant. Many times, the probation officer, and/or the prosecutor will also reach out to these folks, so it is best to confirm their character statements at the outset.

At the conclusion of the PSI, the officer in charge prepares a written report which includes his or her assessment of the defendant’s risk to re-offend, positive and negative factors to consider, and a supervision plan should the Court choose to place the defendant on probation. For cases involving restitution, the PSI will also include a restitution recommendation.

Taking Responsibility in an Open Plea

Defendants entering an open plea to the court waive their right to a jury trial. So, when conducting the pre-sentence investigation, the probation officer will confirm that the defendant is taking responsibility for his or her crime. This is an important part of the process. If the defendant has entered a plea of guilty to the crime in court but then denies the offense at the PSI, the officer will stop the investigation and return the case to court. One of the primary advantages, from a strategic standpoint, of entering an open plea is to communicate to the court that the defendant is taking on full responsibility for the crime. This is done in hopes that the court will take that into consideration when determining an appropriate sentence. It is this attitude of acceptance that typically garners the best results in an open plea. This is sometimes referred to in layman’s terms as throwing oneself on the “mercy of the court.”

Getting the Most Out of the PSI

Defense attorneys whose clients have opted for an open plea and a pre-sentence investigation can help their cause by supplementing the officer with as much positive information as possible. As mentioned above, it’s important for an attorney to gather additional character letters and to explore outside mental and psychological evaluations that might be conducted to be included in the report to the court. Additionally, if the defendant has already been serving community service, taking rehabilitative classes, or saving toward restitution, you should explain that and provide records to back it up.

Once the PSI is completed and submitted to the judge, the court will set the case for a sentencing hearing. At the sentencing hearing, testimony from both the defendant and character witnesses will be taken into consideration. But, it’s the pre-sentence investigation report that will typically be the most important item that the court reviews.

Not all cases involve a pre-sentence investigation. But, when a PSI is conducted, it can provide the most thorough review of a case and defendant’s background aiding in a court to assess a fair and just punishment.

May 03

Should I Pay My Red Light Camera Ticket?

By Luke Williams | Traffic Offenses

Red Light Camera Ticket Texas Anytime someone gets a ticket in the mail from a red light camera, the same questions run through their mind. Do I really have to pay this ticket? Is that even me driving? How do they know whether that is me? What happens if I don’t pay this ticket? Why do we even have those cameras anyway? There are a ton of rumors out there and plenty of people ready to tell you that you do or don’t have to pay that ticket, but what is the actual answer? Section 707 of the Texas Transportation Code governs red-light traffic cameras but there are certain ordinances that counties adopt that add onto or affect the Code.

What are the Penalties Associated with Red Light Camera Tickets in Texas?

Red-light camera tickets are considered civil violations and are not considered a conviction.* §707.018. The Code provides that the civil penalty may not exceed $75 and the late payment penalty may not exceed $25. §707.007. If you fail to pay your ticket an arrest warrant will not be issued and it will not be recorded on your driving record. §707.019. Additionally, according to the City of Fort Worth’s Red-Light Camera Safety Program, these violations are not reported to your insurance companies or driver’s license bureau.

Let’s recap. If you fail to pay your red light camera ticket:

No conviction
No arrest warrant
Not on driving record
Not reported to insurance
Not reported to driver’s license bureau

So far so good. Looks like nothing will happen if you don’t pay the ticket. But wait, there’s more.

Will Failure to Pay Your Red Light Camera Ticket Affect Your Credit Score?

Section 707.003(h) of the Code provides that information of failure to pay a red light ticket cannot be reported to a credit bureau. According to The Dallas Morning News, even the counties, such as Dallas, that had enacted their red-light camera contract before the Texas law went into place in 2007 can no longer report delinquent violations to credit bureaus. This apparently went into effect June 1st after TransUnion, Experian, and Equifax notified the city of Dallas that they would no longer honor the reports of unpaid tickets.

No credit bureau reporting

Could Failure to Pay Your Red Light Camera Ticket Affect Your Ability to Register Your Vehicle?

There had to be a catch with these red light camera tickets. This is where they can get you. If a driver fails to pay their red-light camera penalty after it is sent to collections, that information may be sent to the Texas Department of Motor Vehicles and a scofflaw hold, or a vehicle registration hold, will be placed on the vehicle’s registration until all unpaid penalties have been paid. §502.010; §707.017. This does not mean that every county decides to go through the trouble of placing scofflaw holds. As for Fort Worth, according to Fort Worth’s violation information website scofflaw holds will be placed if violation fees remain unpaid. To the contrary, www.trashyourticket.com lists Tarrant County as one of the counties that does not place a hold on your registration. (This information is based on either news articles or reports from people with outstanding tickets). Additionally, since Dallas can no longer report to credit bureaus the plan is to start using registration holds to maintain their red-light camera safety program.

The county assessor-collector is responsible for enforcing these holds, however according to his article “The Wright Stuff” in Taxing News, Tarrant county tax assessor-collector Ron Wright stated that he will “not block vehicle registrations because of unpaid red light camera fines” and even signed a letter to Governor Greg Abbott calling for a ban on the traffic cameras, along with other Texas officials. While this may be a personal decision on Wright’s part, legislature is in the process of making this opinion a law.

Senate Bill 87, sponsored by Texas Senators Bob Hall, Sylvia Garcia, and Donald Huffines, aims to prohibit county assessor-collectors from placing a hold on vehicle registration if the owner is “delinquent in the payment of a civil penalty”, referring to the civil penalty incurred from a red light traffic camera. The bill passed with 30 “yea” votes and one “nay” on March 29, 2017 and it was referred to the House of Representatives Transportation Committee on May 8, 2017. If the bill makes it all the way through, it would render red light camera tickets unenforceable.

No hold on your registration.

Bottom line: If you decide not to pay your red-light camera ticket, it will not affect your credit score, it will not be reported to your insurance company or the driver’s license bureau, you will not be convicted of anything, and a warrant for your arrest will not be issued, but it is remotely possible that it could affect your ability to renew your vehicle’s registration. However, you have the Tarrant County tax assessor-collector’s word that the registration holds will not be enforced. Thus, there isn’t that much that cities can do to you if you fail to pay your ticket. To register your vehicle, even if you have a scofflaw hold, you must register by mail or in person at a local tax collector-assessor office so that it can be overridden.

Ultimately, it’s your choice if you want to take that risk, but now you have all of the facts in order to make that decision.

*Note that all of the information in this article is referring to tickets you receive in the mail after running a red light with a camera, not a ticket received from an officer. It is vitally important to pay attention to traffic signals and stop at red lights for your safety and the safety of others.