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Jul 09
Love8
Boating While Intoxicated Boating Offenses Texas

7 Common Boating Offenses in Texas | #3 Can Lead to Serious Prison Time

By DWI

Boating While Intoxicated Boating Offenses TexasFor a lot people in Texas, the summer is filled with swimming, boating, wakeboarding, and drinking. These activities can be fun and harmless, but sometimes they can take a turn for the worse. Here’s a list of some of the most common criminal offenses that can be committed on a boat in Texas lakes and possible punishments that go along with them. Please keep these in mind to ensure that you have a fun and safe time on the water this summer.

1. Boating While Intoxicated in Texas (BWI)

There is nothing wrong with drinking on a boat, but the boat driver must be careful not to have too many. Under Texas Penal Code 49.06, a person is Boating While Intoxicated if the person is intoxicated while operating a watercraft. To be considered intoxicated, one must not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body or have an alcohol concentration of 0.08 or more. This is the same definition of intoxication that exists under the DWI statutes in Texas.

A “watercraft,” as defined in the Boating While Intoxicated law, is a vessel, one or more water skis, an aquaplane, or another device used for transporting or carrying a person on water, other than a device propelled only by the current of water.

Boating while intoxicated is a Class B misdemeanor, with a minimum term of confinement of 72 hours. It is punishable by:

  • up to 180 days in jail
  • a fine of up to $2,000, or
  • both confinement and fine

2. Underage Operation of a Boat

In Texas, according to the Parks and Wildlife Code, no person may operate a motorboat powered by a motor with a manufacturer’s rating of more than 15 horsepower on the public waters of this state unless the person is at least 13 years of age or is supervised by another person who:

  • is at least 18 years of age;
  • can lawfully operate the motorboat; and
  • is on board the motorboat when under way.

Children that are 13-17 years of age can lawfully operate a recreational vessel (like a jet ski) if they complete a boater education course.
Underage operation of a Boat is a Class C Parks and Wildlife Code misdemeanor and can be punished by a fine of $25 to $500.

3. Failure to Report a Boating Accident in Texas (Felony Offense)

The Texas Parks and Wildlife Code regulates the boating guidelines in Texas. According to Section 31.104, when involved in a boating accident, the operator is required to:

  • Render to other persons affected such assistance, as may be practicable and necessary in order to save them from or minimize any danger.
  • Give his name, address, and identification of his vessel in writing to any person injured and to the owner of any property damaged in the collision, accident, or other casualty.

Also, according to Section 31.105 the accident must be reported to the department on or before the expiration of 30 days after the incident. The report should include a full description of the collision, accident, or casualty in accordance with regulations established by the department.

It is the responsibility of each boat operator who is involved in an accident to contact TPWD or your nearest law enforcement agency if the accident:

  • Results in death; (within 48 hours) or
  • Injuries to a person requiring medical treatment beyond first aid; or
  • Causes damage to vessel(s) or property in excess of $2,000.00

Failure to report is a Parks and Wildlife Code Felony and can be punished by confinement in the Texas Department of Criminal Justice for at least 2 but less than 10 years. In addition to imprisonment, a Parks and Wildlife Code felony may be punished by a fine of $2,000 to $10,000.

4. Speeding While Boating

I’ll bet you’ve never noticed any speed limit signs on the lake. Neither have I. However, a person can still violate Texas law if they go too fast in their boat. The Texas Parks and Wildlife Code states that no person may operate any boat at a rate of speed greater than is reasonable and prudent, having due regard for the conditions and hazards, actual and potential, then existing, including weather and density of traffic, or greater than will permit him, in the exercise of reasonable care, to bring the boat to a stop within the assured clear distance ahead. So it appears that the speed limit is whatever a reasonably prudent person would say that it is. If you’re a daredevil, then ask your cautious friend if you’re going too fast.

Speeding is an offense under this section is a Class C misdemeanor and can be punished by a fine not to exceed $500.

5. Failure to Have Life Jackets on Board

Texas Parks and Wildlife Code Section 175.15 requires that there is at least one personal flotation device on board a recreational vessel for each person. Further, each child must be wearing their life jacket while on board.

Failure to have proper life jackets is a Class C misdemeanor and can be punished by a fine not to exceed $500.

6. Fishing Without a License in Texas

A valid fishing license with a freshwater or saltwater endorsement is required to take fish, mussels, clams, crayfish or other aquatic life in the public waters of Texas. However, you do not need a fishing license/package if you:

  • are under 17 years of age.
  • were born before January 1, 1931.
  • are a mentally disabled person who is engaging in recreational fishing as part of a medically approved therapy, and who is fishing under the immediate supervision of personnel approved or employed by a hospital, residence or school for mentally disabled persons.
  • are a mentally disabled person who is recreational fishing under the direct supervision of a licensed angler who is a family member or has permission from the family to take the mentally disabled person fishing

Fishing without a license is an offense under this section is a Class C misdemeanor and can be punished by a fine not to exceed $500.

7. Public Intoxication

Public Intoxication applies on the water, just as it does on land in Texas. Under the Texas Penal Code, a person commits the crime of public intoxication if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another.

Public intoxication is a Class C misdemeanor and can be punished by a fine not to exceed $500.

Texas Criminal Defense Attorneys and Summer Water Enthusiasts

We enjoy the Texas lakes as much as anyone and we hope that you will too. Like we always say, we hope you never need us, either for a criminal offense or for an accident, but we are here if you do. For a free consultation about your legal matter, contact Barnett Howard & Williams PLLC at (817) 993-9249.

Jun 28
Love5
Consent to Fighting Texas

Can Adults Consent To A Fistfight in Texas? Not Exactly.

By Assault

Put Up Your Dukes! Here’s What Texans Need to Know Before They Decide to Engage in a Fistfight.

Consent to Fighting TexasIt’s no secret that folks don’t always get along. Sometimes, especially down in Texas, arguments can lead to fights. When two adults decide to go to fisticuffs, they can reasonably assume that one (or both) of them are going to get hit. But, are the bruises and black eyes the end of it? Can either of these heroes be charged with a criminal offense for their part in the fight? Maybe. It depends.

Consent as a Defense to a Texas Assault Charge

Section § 22.06 of the Texas Penal Code governs consent as a defense to assaultive conduct. This section allows a party accused of assault or aggravated assault or deadly conduct in violation of sections § 22.01, § 22.02 or § 22.05 of the penal code to assert consent of the victim as an affirmative defense to prosecution so long as serious bodily injury is not inflicted and the assaultive conduct is not a requirement of membership in a criminal street gang. While Section § 22.06 is a defense, it does not grant an actor automatic immunity from prosecution. Ultimately, whether both parties to a fistfight demonstrate consent or the reasonable appearance of consent is a fact-intensive inquiry and is a matter for a jury to decide.

-An Illustration-

In Miller v. State, a father and his adult son engaged in fisticuffs over the usual father-son trivialities. The son admitted in an affidavit to egging his father on, inviting him to “come on, hit me,” lunging at his father in a threatening manner and pushing him. The father hit his adult son, bloodying his face and loosening some teeth. After their fight, the bloodied son was discovered by police offers conducting a routine traffic stop. The father was charged with assault in violation of the Texas Penal Code § 22.01. At trial, the father requested a jury instruction on consent but was denied. He was convicted of assault and appealed. The Court of Appeals, Houston 14th District, reversed the trial court, finding that a jury instruction on consent was appropriate given the facts of the case.[1]

What Constitutes Consent to a Fistfight in Texas?

The consent defense to assaultive conduct applies both when the victim gives effective consent to engage in mutual combat as well as when the actor has a “reasonable belief” of the victim’s consent.[2] When evaluating whether a consent defense might apply, courts look to the circumstantial evidence surrounding the fracas. This evidence is evaluated in the light most favorable to the defendant and must merely support the defense’s assertion of the victim’s consent, it does not necessarily have to be believable. Evaluating the credibility of the alleged consent is a question for the jury.[3]

Though juries must be given instruction on consent if the evidence calls for it, the “true meaning” of a combatant’s words are a variable to be considered. In a decision decided on a technicality the court recognized that words like “go ahead,” “come on,” “slap me,” “do it” were not indicative of consent but were “a backhanded warning of potentially dire consequences to the threatener” in those particular circumstances.[4] The court agreed, however, that this is a question for juries to consider with a consent instruction.

In Miller v. State, the victim son, invited his father to “come on, hit me.” The son later explained to police that he was “all jazzed up” and eager for a fight. The victim then kicked and punched his father before his father punched his son. The appellate court took the provocations of the victim to be a part of the calculus for determining mutuality.[5] It is also notable that no parties called the police, that the police encountered the situation through happenstance and pressed charges on their own authority.

What Constitutes “Serious Bodily Harm” Under Texas Law?

Consent is not a defense to assaultive conduct that results in serious bodily harm. Serious bodily harm is defined as “bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”[6] Courts have not produced a definitive demarcation line on what types of assaultive conduct constitute serious bodily harm and what fall short. Serious bodily harm is evaluated on a case-by-case basis[7] accounting for the “disfiguring and impairing quality of the bodily injury.”[8] Injuries are evaluated at the time of the infliction, irrespective of subsequent ameliorating treatment.[9]

Courts have found that the loss of teeth can constitute a serious bodily harm when paired with a sore neck and a week-long hospital stay[10] however, so far, courts have only found the loosening of teeth to rise to the level of serious bodily injury when paired with other serious injuries including fractured facial bones.[11] Blows to the head may or may not constitute serious bodily harm depending on whether they lead to concussion. Similarly, memory loss may or may not constitute serious bodily harm depending on whether it is a product of concussion.[12] Ultimately, if the State alleges serious bodily harm, it is a question of fact for the jury to decide.[13]

In Miller v. State, the state did not allege serious bodily harm and the Court found that the loosening of teeth and the temporary loss of consciousness with no accompanying memory loss did not rise to the level of serious bodily harm.

Jury Instructions On Consent Are Mandatory When Supported By Evidence

In a prosecution for assault, aggravated assault, or deadly conduct in violation of sections § 22.01, § 22.02, or § 22.05 of the Texas Penal Code, the judge must give the jury an instruction on consent and, when charged by the prosecution, serious bodily injury, if the accused has raised any evidence supporting the defense.[14]

“An accused has the right to an instruction on any defense raised by the evidence, whether that evidence is weak or strong, unimpeached or contradicted, and regardless of what the trial court thinks about the credibility of the evidence.”[15]

It is the purview of the jury to determine whether or not the accused had a reasonable belief of consent before engaging in combative behavior. Once the issue of consent is submitted to the jury, the court shall charge the jury that reasonable doubt on the issue requires that the defendant be acquitted.[16]

-Conclusion-

Though a fistfight between consenting adults may well fall into the excepted area carved out by Section § 22.06 of the Texas Penal Code, there are many pitfalls that ought to be avoided. When two parties enter into combat it can sometimes be difficult to establish the mutuality of consent. While consent can be implied from the actions of the participating parties including threatening and inviting speech or belligerent physical action, the more explicit the assertion of consent, the better. If there is sufficient doubt about one party’s eagerness to enter into combat, the consent defense may not apply.

Additionally, when engaging in consensual mutual combat, care must be taken by both parties to not traverse the divide between simple assault and serious bodily harm. Because of the nebulous nature of what constitutes serious bodily harm and the unpredictability in how courts interpret the statute, this can be an especially tricky area to navigate. The difference between a loose tooth and a lost tooth may mark the difference between whether § 22.06 applies.

Finally, both the consent of the parties as well as the gravity of the injuries inflicted are questions for a jury to decide. Though § 22.06 should be introduced as an instruction for a jury to consider when supported by evidence, a person accused of assault still may likely have to undertake the time and expense of a criminal prosecution.

 

[1]          Miller v. State, 312 S.W.3d 209 (Tex. App. – Houston [14th District] 2010).

[2]          § 22.06.

[3]          312 S.W.3d at 212.

[4]          Allen v. State, 253 S.W.3d 260, 268 (Tex. Crim. App. 2008).

[5]          312 S.W.3d at 211.

[6]          Tex. Penal Code Ann. § 1.07 (West).

[7]          312 S.W.3d at 213.

[8]          Blea v. State, 483 S.W.3d 29, 34–35 (Tex. Crim. App. 2016).

[9]          Goodman v. State, 710 S.W.2d 169, 170 (Tex.App.-Houston [14th Dist.] 1986, no pet.).

[10]        Hatfield v. State, 377 S.W.2d 647, 648 (Tex. Crim. App. 1964).

[11]        Pitts v. State, 742 S.W.2d 420, 421 (Tex. App. – Dallas 1987).

[12]        Powell v. State, 939 S.W.2d 713, 718 (Tex.App.-El Paso 1997, no pet.).

[13]        312 S.W.3d at 213.

[14]        Tex. Penal Code Ann. § 2.03 (West).

[15]        Id. at 212.

[16]        § 2.03.

Jun 22
Love3
Sex Offender Deregistration Texas

Sex Offender Deregistration | Early Termination of Offender Registration

By Sex Crimes

Sex Offender Deregistration TexasIn 2005, the Texas legislature enacted House Bill 867, which allows for the early termination of the requirement for an individual to register as a sex offender if it is determined that the person is no longer a continuing threat to society.

If you have been required to register as a sex offender in Texas, you may be eligible for this deregistration after a minimum time of registration. Whether you will be eligible for early termination will depend on whether the registerable offense meets specific criteria under State and Federal laws. In addition to determining whether your offense meets these criteria, there are other procedures you must follow and a judicial order that must be granted in order to obtain early termination. Because of the intricacies of this process and the requirement of filing for the judicial order, we recommend that you hire an experienced criminal defense lawyer to help you with the sex offender deregistration process.

Do I Qualify for Early Termination of My Obligation to Register as a Sex Offender?

1. ONLY 1 CONVICTION: The first requirement to qualify for deregistration as a sex offender is that you must only have one single reportable adjudication or conviction that requires registration under Texas Code of Criminal Procedure Chapter 62.

2. EXCEED THE FEDERAL MINIMUM TIME: The second requirement is that the minimum registration period for your reportable conviction must exceed the minimum required registration under Federal Law. Eligible offenses can be found here. For most offenses, the Federal minimum is 10 years. Texas Code of Criminal Chapter 62 specifically states that if an offense is not on this list, then it does not qualify.

Application to the Council on Sex Offender Treatment

To determine eligibility, you must submit an application to the Council of Sex Offender Treatment. To do this, you must fill out the Initial Eligibility Checklist. You will also need to obtain your Texas Department of Public Safety and FBI criminal histories. It might take a few weeks, but the Council on Sex Offender Treatment will respond by sending you a letter telling you whether you are an eligible candidate for deregistration.

If Eligible, What are the Next Steps to Deregister as a Sex Offender in Texas?

Just because an offense meets the initial requirements of deregistration, it does not mean that the person automatically qualifies for deregistration. While initially eligible, the person must move to the next steps of the procedure.

Deregistration Evaluation

Once it is determined that an offense is eligible, the next step to deregister is to undergo a risk assessment known as a Deregistration Evaluation. The person applying for deregistration is financially responsible for paying for this risk assessment and this assessment must be conducted by one of the 22 deregistration specialists that have been authorized by the Texas Council on Sex Offender Treatment. Your attorney can put you in contact with one of these specialists to have them conduct the assessment.

Judicial Order from the Original Court

The final step is to obtain an Order Granting Early Termination from a judge. To obtain an Order you must submit a Motion for Early Termination to the judge in the court that originally presided over your case. This motion must also be accompanied by certified copy of the risk assessment report prepared by the specialist in addition to a written explanation of the offense’s eligibility. After filing this Motion, the court will likely grant you a hearing by the judge where you will have an opportunity to present evidence to pursuade the judge to sign the Order Granting Early Termination. Because of this process, it’s highly recommended that you have an attorney who can help you with this process and hearing.

Are There Any Other Processes to Avoid Registering as a Sex Offender?

Under Texas Code of Criminal Procedure Section 42.017 and 42A.105, there are some limited remedies available to a person that’s otherwise required to register as a sex offender due to an offense of Indecency with a Child or Sexual Assault. Specifically, for these offenses, if:

  1. at the time of the offense, you were not more than four years older than the victim or intended victim and the victim or intended victim was at least 15 years of age, and
  2. the conviction is based solely on the ages of the defendant and the victim or intended victim at the time of the offense. Also, this must be the result of a single reportable adjudication or conviction.

If the above criteria are met, then under Texas Code of Criminal Procedure 62.301, a person may petition the court anytime at or after the date of the person’s sentencing for an exemption to register as a sex offender. An order issued under this exemption does not expire, but the court is required to withdraw the order if a person receives a subsequent reportable conviction or adjudication.

What Happens if an Order for Early Termination of the Duty to Register as a Sex Offender is Granted?

If deregistration is granted, then a person is no longer required to register as a sex offender. Getting an order for early termination does not destroy the records or remove the conviction from a person’s record, but it does mean that the threat of a new felony case being filed for failure to register is no longer a possibility. Your name will also be removed from the Texas Sex Offender Registry database.

Free Consultation | Tarrant County Deregistration Attorneys

If, after reading this article, you believe that you or a loved one might qualify for sex offender deregistration, contact our team today for a free case evaluation. We would be happy to help you get the sex offender registration requirement behind you. Contact us at (817) 993-9249.

Jun 08
Love2
Baylor Football Ukwuachu Sexual Assault

Baylor Football Player Sam Ukwuachu’s Sexual Assault Conviction Reinstated

By Sex Crimes

Baylor Football Ukwuachu Sexual AssaultBaylor 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
Love2

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

By 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
Love4
Innocent DNA Transfer in Laundry

Innocent Transfer of DNA Through a Load of Laundry

By DNA

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

Innocent DNA Transfer in LaundryWhen 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
Love7
Oliva Overturned DWI 2nd Elements

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

By 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 Overturned DWI 2nd ElementsOliva 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
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Personal Injury Case Mediation

What to Expect When Your Personal Injury Case Goes to Mediation

By Personal Injury

Personal Injury Case MediationAs 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
Love7
Video Footage Evidence Fowler

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

By Evidence

Video Footage Evidence FowlerTechnology 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
Love8
Pre Sentence Investigation PSI Texas

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

By 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:

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

In a felony case:

  1. Punishment is to be assessed by a jury;
  2. The defendant is convicted of or enters a plea of guilty to capital murder;
  3. The only available punishment is imprisonment; or
  4. 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.