Self Defense Deadly Force in Texas

The Castle Doctrine: Understanding Self Defense in Texas

By | Self-Defense

Know your Rights and Responsibilities Before Using Deadly Force for Self Defense in Texas

Self Defense Deadly Force in TexasYou may have heard about Texas Stand Your Ground Law or The Castle Doctrine.  These ideas refer to “standing your ground” in your “castle” against intruders by using deadly force to protect yourself.  But do you know when you can use force and what kind of force can be used? Understanding the Texas gun laws is incredibly important so that you know exactly what you can and cannot do when protecting yourself or your home, car, or business.

What exactly is the Castle Doctrine? When Can Deadly Force be used for Self Defense Purposes?

In Texas, Section 9 of the Texas Penal Code provides legal justifications for the use of force in a limited set of circumstances when a person has no duty to retreat. For example, a homeowner in his own home does not have a duty to retreat and may use deadly force to protect himself against an armed intruder. This would be the same for a business owner in his place of business and a truck driver in his own truck.

Texas law provides for a justifiable defense at trial when using deadly force if the person claiming self defense:

  1. Reasonably believed the deadly force was immediately necessary;
  2. Had a legal right to be on the property;
  3. Did not provoke the person against whom deadly force was used; and
  4. Was not engaged in criminal activity at the time the deadly force was used.

What is Considered Self Defense in Texas?

Self Defense will be a justifiable defense so long as the type of force used is reasonable and necessary in the moment to protect against an attacker. A person may use force against another when they reasonably believe it is immediately necessary to protect from another’s “use or attempted use of unlawful force.” A person may use deadly force in self defense under Section 9.31 of Texas Penal Code if he:

  • Knew the intruder unlawfully with force entered into his home, vehicle, or place of employment; or
  • Was being kidnapped; or
  • The intruder was attempting to sexually assault, rob, kidnap, or murder.

What is the Difference Between Deadly Force and Threat of Force?

Threat of force is when a person displays a weapon as a threat, showing that they will use deadly force to cause death or serious bodily injury if necessary. Texas Penal Code §9.04.  Threat of Force is a precursor to the use of Deadly Force.

For example, a landowner, on his property, sees a trespasser running towards him. If the landowner decides to turn in such a way to display his holstered, loaded gun which causes the trespasser to run off the property, Texas law says this is likely a justifiable threat of force.

When is Defense of Another Person Justifiable?

A person is justified in using force or deadly force to protect a third party if he believes intervention is immediately necessary and would be justified in using force or deadly force to protect himself against the unlawful force in the same circumstance.

However, use of force is not justified if in the use of force to protect a third party, the person gets the circumstances wrong and ends up seriously injuring or killing an innocent third party.

For example, a man sees his friend in a fight and intervene by using deadly force to protect his friend and kills the third party. The man did not realize that the third party was actually using force as self defense against his friend. In this situation, the man would not be able to use defense of others as a justification for killing the third party.

Protection of One’s Own Property

Under Texas Penal Code §9.42, a person may use deadly force against another to protect land or property if:

  1. He is the owner of the land;
  2. He reasonably believes using the force is immediately necessary to prevent arson, burglary, or robbery; and
  3. He reasonably believes that the land or property cannot be protected or recovered by any other means.

Know Your Rights and Responsibilities

In conclusion, while Texas law does have a few justifications for use of force and deadly force, the justifications are only proven in a very limited set of circumstances. Further, even if a person has a justification for using force, he may still be arrested and face trial. Additionally, even though an actor may have been justified in using force, he may still face civil litigation and penalties associated with the use of force against another.

Using force for self defense purposes is a serious response and should only be used in truly dangerous and threatening situations. Texas law makes it abundantly clear that those who use force will only be justified in doing so if they meet specific criteria, given the circumstances, and acted as a reasonable person would have under the same or similar circumstances.

 

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Texas DPS Drivers License Surcharges

Texas Drivers License Surcharge | REPEALED September 2019

By | Traffic Offenses

UPDATE: In 2019, the Texas Surcharge Program was repealed by law and all surcharges were forgiven as of September 1, 2019. 

Contact DPS Regarding Your Surcharge Account

For assistance with questions about your Surcharge account, you can contact Texas DPS Municipal Services Bureau (MSB) at:

1-800-688-6882

Check Your DPS Account at www.txsurchargeonline.com

If you are unsure whether you have a pending TX DPS surcharge or if you would like to pay your Texas DPS surcharge, you can do this online at www.txsurchargeonline.com. Surcharges in Texas are frustrating and sometimes confusing. If you need clarification on your TX surcharge, you should contact the Texas Department of Public Safety by phone or on their website at www txsurchargeonline com.

Scholarship Winners BHW 2019

2019 BHW Scholarship Winners | Veteran Law Student & Military Dependent

By | Scholarship

Barnett Howard & Williams PLLC Announces the Recipients of the 2019 Scholarship Awards

Scholarship Winners BHW 2019This was the 4th year for our law firm to offer scholarships. In honor of the sacrifices of our military veterans, we decided to that the scholarships should be connected to military service. The first scholarship is a $500 award for a Military Veteran Law Student and the second scholarship is a $500 award for a Military Dependent undergraduate student. Throughout the year, we received several applications from very deserving students. We appreciate all of the students that took the time to apply for the scholarships and wish them all the best in their studies. For those students that were not selected, we invite you to apply again next year as we plan to continue the scholarship offers as an annual award.

2019 Winner – Military Veteran Law Student Scholarship

The winner of the 2019 Military Veteran Law Student Scholarship is:

CPT ANTHONY TAYLOR, U.S. ARMY

Anthony Taylor is an Army veteran that served as a Pathfinder Platoon Leader in the 82nd Airborne Division’s lite Pathfinder Company and deployed to Afghanistan as a Ranger Platoon Leader in the 75th Ranger Regiment. Captain Taylor will be attending Northwestern University’s Pritzker School of Law in Chicago this Fall. Congratulations Anthony Taylor. Best wishes as you continue toward your law degree.

2019 Winner – Military Dependent Scholarship

The winner of the 2019 Military Dependent Undergraduate Scholarship is:

TYLER CAIN

Tyler Cain is the son of a U.S. Marine infantry veteran. His father was wounded in combat and is currently 100% disabled. Motivated by his father’s struggles, Tyler hopes to earn a degree in Political Science and work as a lobbyist and diplomat. He is enrolled in Coastal Carolina University. Best wishes Tyler, as you continue in your studies.

More Information About Our Scholarship Opportunities:

For more information about how to apply for these scholarships in future years, please visit the scholarship pages:

Military Veteran Law Student Scholarship

Military Dependent Scholarship

DWI Deferred Adjudication Texas

Deferred Adjudication for DWI Offenses in Texas | New Law Effective Sept 1, 2019

By | DWI

Finally, Common Sense Prevails Regarding First-time DWI Offenses

DWI Deferred Adjudication TexasFor years, I’ve had the difficult task of trying to explain to clients facing a first-time DWI charge why their case is treated more harshly under the law than other misdemeanor criminal offenses like assault, prostitution, theft, drug possession, etc. In Texas, you can be charged with one of the latter crimes and have the option of deferred adjudication probation. Deferred adjudication probation has not been an option for DWI offenses in Texas. Until now.

Effective September 1st, 2019, a first-time DWI offense may qualify for deferred adjudication probation in Texas. The Texas legislature passed legislation that was signed into law by Governor Abbott that will amend Texas Code of Criminal Procedure Art. 42A.102(b) and make deferred adjudication probation available for some first-time DWI offenses.

What is Deferred Adjudication Probation?

Deferred adjudication probation typically requires the same terms and conditions as regular probation. So, why is it a better option? In Texas, if you receive regular or “straight” probation, the judge is required to enter a finding of guilt in your case which results in a criminal conviction.

Deferred adjudication probation is different because the judge “defers” that finding of guilt and, if you successfully complete the probation, the case results in a dismissal of the charge. Thus, you avoid the penalties and consequences that result from having a criminal conviction on your record.

The New Provisions are Effective September 1st, 2019 and Are Not Retroactive.

Deferred adjudication probation on first-time DWI offenses will apply ONLY to offenses committed on or after September 1st, 2019. That means all offenses committed prior to that date will be governed by previous law that does not allow deferred adjudication probation for DWI offenses.

Are All DWI Offenses Eligible for Deferred Adjudication Under the New Law?

The new law also limits which types of first-time DWI offenses will qualify. Deferred adjudication will NOT be available for first-time DWI offenses if:

  • If it is adjudicated that your blood or breath alcohol concentration was .15 or higher at the time the analysis was performed (see Texas Penal Code 49.04(d).)
    Or
  • You held a commercial license or commercial learner’s permit at the time of the DWI arrest

Also, if you are charged with a subsequent DWI after receiving a previous conviction or convictions for DWI, you are disqualified.

The Interlock Trade-Off

For years, defense attorneys and prosecutors (yes – even prosecutors!) have lobbied for making deferred adjudication probation an option for first-time DWI offenders. However, MADD staunchly opposed the idea. So, what’s changed MADD’s position? MADD agreed to the new law because it makes first-time DWI offenders (who previously were NOT required to have an ignition interlock device as a condition of probation) now have it as a requirement. The new law requires the judge to order the ignition interlock device as a condition of probation if you receive deferred adjudication probation for a DWI offense (see the amendment to Texas Code Crim. Procedure Art. 42A.408(e-1).)

There is, however, an exception to this requirement under TCCP Art. 42A.408(e-2) of the new law. If you submit to a substance abuse evaluation and the judge determines (based on that evaluation) that the ignition interlock requirement is “not necessary for the safety of the community,” then the judge may waive the requirement. This is certainly something you would want to discuss with your attorney.

What Will My Record Look Like if I Receive Deferred Adjudication Probation for a DWI Offense?

Although successful completion of deferred adjudication probation results in a dismissal of the underlying criminal charge, there is still a criminal record that must be addressed following the dismissal. The new law limits your remedy options to a nondisclosure (sealing of the record) and even that is not guaranteed.
You will not qualify for a nondisclosure if:

  • You have previously been convicted of or placed on deferred adjudication probation for another offense (other than a traffic offense that is punishable by fine only.)
    Or
  • There is sufficient evidence to show that offense resulted in a motor vehicle accident involving another person (including a passenger in the motor vehicle operated by you.)

It’s also worth noting there is a two-year waiting period after discharge from probation to petition the court for a nondisclosure.

Can a Future DWI Arrest Be Enhanced Even if I Wasn’t Convicted on the First One Under the New Law?

If, after your successful completion of deferred adjudication probation and dismissal by the court, you are arrested again for DWI, the new law allows the state to use the prior for enhancement purposes. If your case is dismissed, how can the state use it as a prior conviction? This can make for a candid debate, but, at the end of the day, this was another MADD trade-off conceded by the legislature that you should be aware of when considering long-term consequences of the new law.

DEFERRED SOUNDS GOOD – WHERE DO I SIGN? NOT SO FAST!!!

If, after September 1st, 2019, you or a loved one are faced with a first-time DWI charge and qualify for deferred adjudication probation, it might appear to be an easy option. However, we can’t stress enough how important it is that you retain a qualified DWI attorney who can analyze your case to determine If the state has enough evidence to prove their case or if there are legal or evidentiary issues present that may prove problematic for the state. The experienced DWI Attorneys at Barnett, Howard & Williams, PLLC are here to help determine what your best options truly are. So, please feel free to give us a call.

Fireworks Laws Texas Keller Southlake

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

By | Criminal Defense

Do Not Lose Your Liberty on Independence Day

Fireworks Laws Texas Keller SouthlakeIndependence 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:

  1. 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;
  2. Sell at retail, explode, or ignite fireworks within 100 feet of a place where flammable liquids or flammable compressed gasses are stored and dispensed;
  3. Explode or ignite fireworks within 100 feet of a place where fireworks are stored or sold;
  4. Ignite or discharge fireworks in or from a motor vehicle;
  5. Place ignited fireworks in, or throw ignited fireworks at, a motor vehicle;
  6. Conduct a public fireworks display that includes Fireworks 1.3G unless the person is a licensed pyrotechnic operator;
  7. 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
  8. 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.

Texas CBD Legal 2019

CBD Update: Texas Legislature Clarifies the CBD Issue

By | 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 2019On 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

Chest Pain Auto Accident Reasons

Reasons for Chest Pain After an Auto Accident

By | Car Wreck

Why Do I Have Chest Pain After an Auto Accident?

Chest Pain Auto Accident ReasonsCar 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.

Deadly Weapon DWI Couthren v State

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

By | DWI

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

Deadly Weapon DWI Couthren v StateOne 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.”

Milton v State Improper Closing Argument 2019

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

By | Trial Advocacy

When Does a Closing Argument Go Too Far?

Milton v State Improper Closing Argument 2019What 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.

Contractor Fraud Construction Fraud Texas

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

By | Fraud

Contractor Fraud Construction Fraud TexasHave 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.