Aug 30
7
Husband Wife Privilege Texas Rule 504

Can One Spouse be Forced to Testify Against the Other?

By | Criminal Defense, Jury Trial

Can My Spouse be Forced to Testify Against Me in a Criminal Trial in Texas?

Husband Wife Privilege Texas Rule 504Everyone knows (or should know) of the attorney-client privilege which prohibits the calling of an attorney to testify as a witness against his client and protects the attorney-client relationship. But what about the husband-wife relationship? Are spouses afforded any protection from having their spouse testify against them in a criminal trial?

Yes. In Texas there are two “Husband-Wife” privileges that apply to the marital relationship: spousal immunity and the marital communication privilege. Many people are aware that certain privileges arise but often do not know exactly what protections these privileges provide. The following article discusses both of the matrimonial privileges in Texas.

See the full text of Texas Rule of Evidence 504 – Spousal Privileges

What is Spousal Immunity? How does Spousal Immunity work in Texas?

Spousal immunity is the privilege that exists in a criminal trial for the defendant’s spouse not to be called as a witness in certain situations.  Tex. R. Evid. 504(b). This privilege applies to spouses that are married to the defendant during trial and are asked to testify as to matters that occurred during the spouse’s marriage to the defendant. The non-defendant spouse holds this privilege; meaning he or she is the one who may invoke the privilege not to testify and it is ultimately his or her decision. Tex. R. Evid. 504(b)(3). Thus, if the spouse wants to voluntarily testify for the State, she may do so regardless of whether the defendant objects to the spouse’s testimony.

Spousal immunity does not stop the defendant from calling their current spouse as a witness. If a defendant chooses to do so the spouse cannot assert this privilege and will be required to testify. With that, if the defendant does not call the spouse and surrounding evidence suggests the spouse could testify to relevant matters the State is allowed to comment about that. 504(b)(2).

Exceptions to Spousal Immunity in Texas

There are two exceptions to spousal immunity in Texas.

  • First, the privilege does not apply in a criminal proceeding in which the defendant has committed against the spouse (e.g. Domestic Violence) or prosecution for bigamy.
  • Second, the privilege does not apply when the spouse is called to testify about matters that occurred before they were married to the defendant.

What is the Texas Marital Communication Privilege?

Under Texas Rule of Evidence 504(a), spouses have the privilege to prevent testimony of certain communications made during the marriage from one spouse to the other spouse.  Unlike the spousal immunity privilege, the marital communication privilege may be invoked by either the defendant or the spouse being called as a witness. Additionally, this privilege survives divorce; meaning it applies whether or not the defendant and the spouse are still married as long as the communications were made while they were married. Tex. R. Evid. 504(a)(2).

This privilege only applies to communications that were intended to be confidential, that is, they were made privately with no intent to disclose to anyone other than the spouse. A communication will still be confidential if someone overheard the conversation if the defendant spouse made the statement without knowledge or intent that the other person would hear the conversation. Basically, the requirement is that the communication made was intended for the spouse’s ears only.

Exceptions to the Marital Communications Privilege in Texas

There are two exceptions to the confidential communications privilege.

  • First, if the communication was made in whole or in part to aid in the commission of a crime the privilege does not apply.
  • Second, the marital communication privilege does not apply in prosecutions for crimes against the defendant’s spouse, any minor child, or a member of the defendant or defendant spouse’s household.

In conclusion, there are certain situations where matters occurring between spouses are kept within the sanctity of the marriage and will not come out in court. However, as you can see these privileges are very specific and it is important to be aware of what exactly is privileged and when such privileges apply.

See the full text of Texas Rule of Evidence 504 – Spousal Privileges

Aug 13
180
United States Age of Consent Map

What is the Age of Consent in the United States?

By | Sex Crimes

Is There a Uniform Age of Consent for all 50 States in the United States?

No, there is not a uniform age of consent. The “Age of Consent” is the minimum age at which a person may consent to participation in sexual intercourse. A person younger than the legal age of consent cannot legally consent to sexual activity. The age of consent in the United States ranges from 16 to 18 years old depending on the state, meaning that a person 15 years of age or younger cannot legally consent to sexual contact. Each state enacts its owns laws which set the age of consent.  If someone engages in sexual activity with a person younger than the age of consent in that state, the person could be charged with Statutory Rape or other offenses depending on the nature of the contact.

What follows is a map depicting the age of consent for all 50 states and a chart outlining the same.

*Note: This chart was current as of 2016, but could be subject to change over the years. Please do not rely on this chart to make any decisions that could impact your life. Check your own state’s age of consent laws to make sure you are fully informed, because ignorance of the law will not be a defense for you if charged with a child sexual offense.

United States Age of Consent Map

United States Age of Consent Map

United States Age of Consent Chart

STATE LEGAL AGE OF CONSENT
Alabama 16
Alaska 16
Arizona 18
Arkansas 16
California 18
Colorado 17
Connecticut 16
D.C. 16
Delaware 18
Florida 18
Georgia 16
Hawaii 16
Idaho 18
Illinois 17
Indiana 16
Iowa 16
Kansas 16
Kentucky 16
Louisiana 17
Maine 16
Maryland 16
Massachusetts 16
Michigan 16
Minnesota 16
Mississippi 16
Missouri 17
Montana 16
Nebraska 17
Nevada 16
New Hampshire 16
New Jersey 16
New Mexico 17
New York 17
North Carolina 16
North Dakota 18
Ohio 16
Oklahoma 16
Oregon 18
Pennsylvania 16
Rhode Island 16
South Carolina 16
South Dakota 16
Tennessee 18
Texas 17
Utah 18
Vermont 16
Virginia 18
Washington 16
West Virginia 16
Wisconsin 18
Wyoming 18

 

“Romeo and Juliet Law” in Texas | An Exception to the Age of Consent in Texas

As mentioned in the chart above, the age of consent in Texas is 17. Texas, as well as many other states, has created a so-called “Romeo and Juliet” law, an exception to the statutory rape and age of consent law. Romeo and Juliet laws are targeted toward teenagers and young adults who engage in sexual relations with someone under the age of consent (17 in Texas), but who are still close in age to the sexual partner. The Romeo and Juliet provision creates a close in age exemption and keeps these would-be offenders from being classified as sex offenders.

Under Texas law, if a person over the age of 17 has consensual sexual intercourse with someone under the age of 17, but there is also no more than a three-year age difference between the two partners, the Texas Romeo and Juliet law will not allow the older person to be charged with statutory rape or be classified as a sex offender.

Fort Worth Sexual Assault Defense Attorney
Thank You BHW!

Their expertise and reputation helped us achieve the outcome we deserved. My cases were dismissed completely!

- (5 star review)

Aug 10
3
Apple Fake gun Toy Gun Emoji

Is It a Crime to Use a Fake Gun or Toy Gun in Texas?

By | Weapons Charges

How Do Toy Guns or Fake Guns Fit Into the Criminal Justice System?

Apple Fake gun Toy Gun EmojiIn the wake of the recent rise in gun violence, Apple made a big announcement last week that the pistol emoji is being replaced with a water gun emoji. It is no secret that 2016 has been a year filled with gun violence from the shootings in Orlando to the police shootings in Dallas. As a result, gun control has become a hot topic.  While Apple has declined to comment on the change, many believe this is a conscious step for gun control advocacy and others believe this change was fueled because of the individuals facing criminal charges for the use of the gun emoji on social media or in text messages. This change poses the questions of whether, in Texas, it is a crime to point a fake gun at someone and whether you can be charged for a deadly weapon offense when you only used a fake gun or toy gun.

Can You Be Charged With A Deadly Weapon Offense For Pointing a Fake Gun or Toy Gun at Someone in Texas?

If you were to point an Airsoft gun out a car window towards a person in another car, would Texas law find that you committed assault or an aggravated assault? It depends. If there is uncontroverted evidence shown at trial that the “gun” used was actually a fake gun or toy gun then you could only be convicted of assault. However, if all that is presented at trial is your testimony that it was an Airsoft gun and the victim’s testimony that he was in fear because he believed it was a real gun, the issue can get more complicated.

Does a Toy Gun Fit Into the Definition of Deadly Weapon?

Under the Texas Penal Code, a defendant may be found guilty of aggravated assault if he “uses or exhibits a deadly weapon” for the purposes of threatening another with imminent bodily injury. TPC §22.01(a)(2) and §22.02(a)(2). The Texas Penal Code’s definition of deadly weapons includes “anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.” To determine whether a fake gun or toy gun could possibly be found as a deadly weapon courts look to the broad definition of a “gun” which may include non-lethal devices. Arthur v. State, 11 S.W.3d 386, 389 (Tex. App.—Houston [14th Dist.] 2000, pet. refused). Such non-lethal devices are BB guns, blow guns, Airsoft guns, and water guns, among others. Id. A lot of these toy guns appear realistic or are easily modified to appear realistic which leads to confusion in a criminal case. So much so that in attempt to be proactive, New York’s gun laws require toy guns to be of bright color in order to avoid such confusion.

“A toy gun is not manifestly designed to inflict death or serious bodily injury.”

If uncontroverted evidence is presented that the “gun” used was simply a toy gun there cannot be a deadly weapon finding because “a toy gun is not manifestly designed to inflict death or serious bodily injury” no matter how realistic it appears to the victim and witnesses. Cortez v. State, 732 S.W.2d 713, 715 (Tex. App. 1987) . When it comes to BB guns and pellet guns it becomes more complicated. In Alonzo v. State, a trial for aggravated robbery, where a store manager was placed in fear when defendant brandished a BB gun, the Court found that there could be no deadly weapon finding because no evidence was produced to show that a BB fired from the gun was capable of causing death or serious bodily injury. Alonzo v. State, No. 07-12-00244-CR, 2014 Tex. App. LEXIS 3703, at *10 n.5 (App. Apr. 7, 2014). However, in Murray v. State, another trial for aggravated robbery, where an expert testified that the BB gun used by defendant was not a firearm but could potentially cause serious bodily injury, as warned in its manual, the court found that this evidence is sufficient to support an aggravated robbery conviction. Murray v. State, Nos. 05-13-00070-CR, 05-13-00084-CR, 05-13-00090-CR, 2014 Tex. App. LEXIS 6201, at *59 (App. June 9, 2014).

Ultimately, when it comes to carrying around toy guns, the best practice is to get one that looks as little like a real gun as possible to avoid any confusion. Because, as case law has shown us, if it looks like a deadly weapon, a court might find it to be a deadly weapon.

Aug 09
2
2016 Scholarship Winners BHW

2016 Scholarship Winners | Veteran Law Student & Military Dependent

By | Scholarship

Barnett Howard & Williams PLLC Announces the Recipients of the 2016 Scholarship Awards

2016 Scholarship Winners BHW

This was the first 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.

2016 Winner – Military Veteran Law Student Scholarship

The winner of the 2016 Military Veteran Law Student Scholarship is:

JAMES CROWDER

James Crowder is a Marine Corps veteran that served in Operation Enduring Freedom. Mr. Crowder currently attends University of Houston Law Center. Congratulations James Crowder. Best wishes as you continue toward your law degree.

2016 Winner – Military Dependent Scholarship

The winner of the 2016 Military Dependent Undergraduate Scholarship is:

AMANDA OBLANDER

Amanda Oblander is a US Navy dependent whose husband is currently serving in Coronado, CA. Mrs. Oblander currently attends the University of Phoenix and is pursuing a degree in marketing. Congratulations Amanda Oblander. Best wishes 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

Aug 04
2
Deportation Crime Enhancement

Enhancement for Crimes Committed Deportation Illegal Reentry into the US

By | Sentencing

Deportation Crime EnhancementWhat happens when someone who illegally enters the country commits a crime? Further, does it matter is that person was previously deported from the United States? Does federal law provide for sentencing enhancements to extend the prison terms for wrongdoers in this position? The answer is yes—and no. Read on to see how the Fifth Circuit Court of Appeals analyzes federal statutes and sentencing guidelines that could support such an enhancement for the defendant, but decides against doing so.

US v. Rodriguez (5th Circuit, 2016)

A 2002 Theft and Deportation Set the Stage

In 2002, Benito Sanchez-Rodriguez, an “undocumented immigrant,” was convicted in Florida for “Dealing in Stolen Property,” a violation of a state law. Pleading guilty at trial, Rodriguez was sentenced to three years’ imprisonment, which was suspended for three years’ probation. Six months later, he was deported to Mexico because he had no legal status to remain in the US. Over a decade later, in 2014, Rodriguez was arrested for DWI in Texas. While under arrest, the federal government charged him will illegal entry into the US. Ultimately, Rodriguez was indicted on one count of illegal reentry into the US, a violation of federal statute 8 U.S.C. § 1326(a) and (b)(1).

Rodriguez Faces Criminal Charges, Again

In August of 2015, Rodriguez plead guilty to the illegal entry indictment and the district court accepted his plea. Before the sentencing phase, a US Probation Officer prepared a “pre-sentence investigation report” (“PSR”), relying upon the United States Sentencing Guidelines (“USSG”). The PSR assigned Rodriguez base offense level of 8, which was raised by 8 additional levels because of the 2002 “Dealing in Stolen Property” conviction (an aggravated felony qualifier), for a total base offense level of 16. U.S.C. § 2LI.2(b)(1)(C). The PSR added that because Rodriguez took responsibility by entering a guilty plea, the total base offense level was reduced by 3, for a final total of 13. The PSR recommended that with a base offense level of 13, Rodriguez should face between 24 to 30 months in federal prison. Rodriguez objected both on the record and in writing, arguing that the 2002 conviction was not an aggravated felony qualifier, however, the district court adopted the PSR’s recommendations. Accordingly, he was sentenced to 27 months’ imprisonment.

Rodriguez Appeals to the Fifth Circuit, Argues Florida Statute Overbroad

Rodriguez now appeals to the Fifth Circuit for relief, arguing, that the 2002 conviction is not an aggravated felony qualifier for sentencing purposes because the Florida law “Dealing in Stolen Property” is overly broad. The Fifth Circuit must determine whether Rodriguez’s prior 2002 conviction qualifies as an “aggravating felony offense” under the USSG, because if so, he faces a longer prison term and could potentially set a precedent for the federal “aggravated felony qualifier” status of this Florida law.

Federal Law: Sentencing Enhancements

A defendant’s base offense level will be increased by 8 levels if the defendant previously was deported, or unlawfully remained in the US after conviction for an aggravated felony, without regard to the date of the conviction for the aggravated felony. U.S.S.G. § 2LI.2(b)(1)(C); U.S.S.G. § 2LI.2 cmt. N.3(A); United States v. McKinney, 520 F.3d 425, 429 (5th Cir. 2008). An aggravated felony is defined as a “theft offense, including receipt of stolen property, or burglary offense, for which the prison term is at least one year.” 8 U.S.C. § 1101(a)(43)(G).

Federal Cases: Determining Aggravated Felony Qualifiers

A “categorical approach” is used to determine whether a prior conviction is an offense under the USSG. Taylor v. United States, 495 U.S. 575, 602 (1990); United States v. Rodriguez-Negrete, 772 F.3d 221, 224-25 (5th Cir. 2014). Courts compare the elements of a statute forming the basis of the defendant’s conviction with the elements of the generic crime (the offense as it is commonly understood). United States v. Schofield, 802 F.3d 722, 727-28 (5th Cir. 2015). If the offense of conviction has the same elements as the generic crime, then the prior conviction may serve as the predicate, because anyone convicted under that law is guilty of all of the elements. Descamps v. United States, 133 S. Ct. 2276, 2281, 2283 (2013).

Similarly, a “modified categorical approach” is used by courts to analyze the elements of a divisible statute (a criminal statute that is comprised of several varied offenses). In a two-step “modified categorical approach,” the court first reviews indictments and jury instructions, among other documents, to determine which part of a statute formed the basis of a defendant’s prior conviction. Next, the court compares the elements of the crime of conviction with the element of the general crime.

The Fifth Circuit Weighs In

Here, the Fifth Circuit adopted the modified categorical approach to analyze the case. Here, the “generic crime” is a theft offense—the “Dealing in Stolen Property” conviction from 2002. Because the provision does not clearly define “theft offense,” the Fifth Circuit applied the generic definition of theft, “a taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of ownership.” United States v. Medina-Torres, 703 F.3d 770, 774 (5th Cir. 2012)(per curiam). Burke v. MuKasey, 509 F.3d 695, 697 (5th Cir. 2007).

The court examined the Florida statute reads, “Traffic means to (a) sell, transfer, distribute, dispense or otherwise dispose of property; (b) to buy, receive, possess, obtain control of, or use property with the intent to sell, transfer, distribute, dispense, or otherwise dispose of property.” Fla. Stat. § 812.012(8). Next, the Court reviewed Rodriguez’s charging document, which read, “Rodriguez knew or should have known that the property was stolen.” The Court examined Florida case law that showed that Florida applies the statute to conduct outside of the generic definition of theft—which created a problem when applying this conviction to the sentencing enhancement provision as outlined in the PSR. Without the enhancement provision, Rodriguez’s sentence would likely not have been as long with a lower base offense level. Accordingly the Fifth Circuit vacates the 27-month prison term and remands the case for resentencing only.

Jul 28
7
License to Carry Handgun LTC CHL

License to Carry a Handgun After Arrest or Criminal Charge in Texas

By | Weapons Charges

License to Carry Handgun LTC CHLThere are many consequences for persons arrested and charged with a crime in Texas.  One of the often overlooked considerations is whether and to what extent a criminal accusation impacts one’s authorization to carry a weapon with a License to Carry (LTC), formerly a Concealed Handgun License (CHL). The reality of gun possession in today’s political climate is that the restrictions are many and increasing.

Texas has very specific guidelines regarding qualifications for obtaining a License to Carry a Handgun. But, what most do not realize is that there are also strict regulations in place while a person possesses that license – especially if a person is arrested and charged with a crime.

What happens to my License to Carry or CHL if I’m arrested and charged with a crime?

Texas Government Code 411.187 spells out the scenarios that require the Texas Department of Public Safety (DPS) to suspend one’s LTC or CHL. In regards to criminal charges, the department SHALL suspend an LTC if the license holder is charged with the commission of:

  • a Class A or Class B Misdemeanor;
  • an offense under Section 42.01 of the Texas Penal Code (Disorderly Conduct); or
  • any Felony offense.

In addition, a person’s LTC or CHL will be suspended if a person is arrested for any offense involving family violence or disorderly conduct and is subject to an active protective order.

How long will my License to Carry be suspended if I’m arrested and charged with a crime?

Unfortunately, the law is clear that the suspension will remain in place until the dismissal of the charges or for the duration of the protective order (in a family violence case.) Texas Government Code 411.187(c)(3).

What happens to my LTC or CHL if I’m convicted of the charge?

If you are convicted of any felony or of the offense of “Unlawful Carrying of a Handgun by a License Holder,” your license to carry a handgun will be revoked permanently. Texas Government Code 411.186 (3) & (4).

If you are convicted of a class A or class B misdemeanor, your license will remain suspended and you will only be able to re-apply for a new LTC when you once again meet the initial eligibility requirements.

A person is eligible for a LTC if they have not, in the five years preceding the application, been convicted of a Class A or Class B misdemeanor or disorderly conduct. What this essentially establishes is a 5-year waiting period from the time of your conviction to the time when you can apply again for your handgun license.

What about being convicted of offenses involving family violence?

Offenses involving family violence carry more significant consequences. If you are convicted of a Class C, Class B or Class A misdemeanor involving family violence, then Federal Law prohibits you from owning or possessing a firearm. Also, under Federal Law, even a plea to deferred adjudication constitutes a conviction and bars a person from owning or possessing a firearm. Because of this, a conviction for any misdemeanor involving family violence would prohibit you from ever being eligible to obtain your concealed handgun license in Texas. See Texas Government Code 411.172 (a) (9).

Jul 27
3
Possesion of a Firearm by a Felon

Defining “Felon in Possession (of a Firearm) in Furtherance of a Crime”

By | Weapons Charges

5th Circuit Holds that Prosecutors need not provide evidence for each one of the Ceballos-Torres ‘Felon in Possession in Furtherance of a Crime’ factors.

Possesion of a Firearm by a FelonUS v Walker (5th Circuit 2016)

At trial, Henry David Walker pleaded guilty to conspiracy to possess with intent to distribute meth and possession of a firearm in furtherance of a drug-trafficking crime, violations of 21 U.S.C. §§ 846, 841(a)(1) and 18 U.S.C. § 924(c)(1)(A). On record at the arraignment hearing and post-plea, Walker admitted to possessing nine firearms, including a 32-caliber firearm, two 22-caliber rifles, two 20-gauge shotguns, two revolvers, and a 9-millimeter semiautomatic gun—all of which were found at the scene of the arrest. US v. Walker, 218 F.3d 415. The district court sentenced Walker to concurrent terms of 151 months in prison for the conspiracy charge, and an additional 60 month statutorily-imposed mandatory sentence for the possession of a firearm in furtherance of a drug-trafficking crime. Walker appeals to the Fifth Circuit Court of Appeals, arguing that “factual basis” established after the guilty plea was insufficient to prove that he possessed the firearms in furtherance of a drug-trafficking crime.

The Big Issues before the Fifth Circuit: Did the Government Satisfy the “Felon in Possession” Requirements?

Walker’s plea came before the factual basis for the charge was established on record—was the apple put before the cart? The Court must determine whether a factual basis can be established after a guilty plea, and if so, whether the factual basis for Walker’s conviction was sufficient. The Court must also determine whether prosecutors need to provide evidence for each “felon in possession” factors.

Federal Law Regarding Felon in Possession in Furtherance of a Crime

A guilty plea is insufficient in itself to support a criminal conviction—the court must satisfy itself, through an inquiry of the defendant or examination of the relevant materials in the record, than an adequate factual basis exists for the elements of the offense.” Fed. R. Crim. P. 11(b)(3); United States v. Adams, 961 F.2d 505, 508 (5th Cir. 1992).

Any person who, during and in relation to any crime of violence or drug trafficking crime…uses or carries a firearm, or who in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime …be sentenced to a term of imprisonment of not less than 5 years…” 18 U.S.C. § 924(c)(1)(A)(i).

The mere presence of a firearm is not enough—possession of a firearm is ‘in furtherance’ of the drug trafficking offense when it furthers, advances, or helps forward that offense. United States v. Palmer, 456 F.3d 484, 489-90 (5th Cir. 2006); United States v. Ceballos-Torres, 218 F.3d 409, 410-411.

Factors that help courts determine whether the possession of the firearm was in furtherance of a drug-trafficking crime include: (1) type of drug activity; (2) accessibility of the firearm; (3) type of weapon; (4) whether weapons are stolen; (5) whether the possession is legitimate or illegal; (6) whether the gun is loaded; (7) proximity to the drugs or money; and, (8) the time and circumstances under which the weapons are found. Ceballos-Torres at 414.
The Fifth Circuit Analyzes the Ceballos-Torres Factors to Determine Walker’s Fate

Walker appeals to the Fifth Circuit, arguing that his case more closely aligns with United States v. Palmer, a case in which the Fifth Circuit reversed a defendant’s conviction based on lack of support under the Ceballos-Torres factors. The Fifth Circuit compares the three cases to analyze the factors.

 
WALKER PALMER CEBALLOS-TORRES
 Claiming no evidence of proximity of guns to the drugs.  Gun was locked in a safe.  Guns found alongside a substantial amount of drugs.
 Ammo matched the guns; most guns loaded.  Gun was not loaded.  Weapons loaded.
 Claiming no evidence of accessibility of the gun (no easy access). Ammo in the house did not match the gun. Ammo present that matched the guns.
 Walker is not a meth supplier.  Defense claimed he bought the gun for self-defense. Convicted felon in possession of a firearm.
 Nine firearms.  One unloaded firearm.  Multiple firearms.
 Denies weapons used in the furtherance of drug-related activity.  Denied the gun was used in relation to drug trafficking.  Court found weapons were in furtherance of drug-related crimes.

Here, the Fifth Circuit say that “the factual basis need not provide evidence for every single one of the Ceballos-Torres factors for a court to conclude that the defendant possessed a firearm in furtherance of a drug-trafficking crime,” rather, they are examples a court “might include” in its analysis “to help determine” a judgment. Further, the government need not provide evidence supporting each and every factor to determine guilt.

Because Walker possessed the firearms at his residence alongside the meth he supplied to dealers, he was a convicted felon at the time of the possession of the firearms, and because there were so many weapons present at the scene, the Fifth Circuit affirmed the district court’s conviction and sentence.

Jul 19
2
Texas Police Protection Act

New Law To Increase Penalties for Violence Against Police Officers

By | Legislative Update, Police Violence

Texas Governor, Greg Abbott, Proposes Police Protection Act, Which Would Stiffen the Punishment for Violence Against Law Enforcement

Texas Police Protection ActOn Monday, Governor Greg Abbott called on both citizens and Texas lawmakers to get behind his proposed Police Protection Act in the 2017 legislative session. “While our state and the nation continue to mourn the heroes lost in Dallas, it is time for us to unite as Texans to say no more,” says Governor Abbott. The proposed legislation will strengthen penalties against those who are convicted of crimes where police officers are the target. Just this month alone, five Dallas police officers have been fatally shot and nine others injured when a shooter targeted police following a public demonstration. This past weekend, three Baton Rouge police officers were gunned down by a shooter who was also targeting law enforcement officers.

The purpose of the Police Protection Act (the “Act”) is to “make clear to anyone targeting law enforcement officials that their actions will be met with severe justice.” Under the proposed Act, Governor Abbott will extend hate crime protections to law enforcement officers, increase criminal penalties for any crime in which the victim is a law enforcement officer, whether or not the crime qualifies as a hate crime, and create a culture of respect for law enforcement by organizing a campaign to educate young Texans on the value that law enforcement officers bring to their communities, among other provisions. “At a time when law enforcement officers increasingly come under assault simply because of the job they hold, Texas must send a resolute message that the State will stand by the men and women who serve and protect our communities,” says Governor Abbott.

Governor Abbott’s proposed Act would make the police a protected class, where penalties for those perpetrating crimes against law enforcement would be increased incrementally. For example, assaults on police officers could be reclassified from Class C felonies to Class B felonies, and so on. Further, the Act will support efforts by Texas State Senator, John Coryn, and his proposed “Back the Blue Act,” which makes it a federal crime to kill, attempt to kill, or aspire to kill a police officer.

In recent weeks, lawmakers in other states have also made legislative provisions that protect police in the wake of the officer-targeted shootings. In North Carolina, Governor Pat McCrory signed a bill into law this week that makes dashcam video and bodycam footage exempt from public record, except under narrow sets of circumstances. In May, Louisiana Governor John Bel Edwards signed the “Blue Lives Matter” bill into law that makes an assault on veterans, police officers, emergency responders, and firefighters a possible hate crime. Louisianans convicted of misdemeanor hate crimes against officers will be fined $500 and face an additional sentence of up to six months.

In Texas, word of Governor Abbott’s proposed Act is already gaining favorable ground. Grimes County Sheriff Donald Sewell emphatically states, “The Sheriff’s Association of Texas is very pleased to hear our Governor is behind an effort to protect peace officers across our state…and we support our Governor. We look forward to working with the Governor during the 2017 legislative session to pass these important protections.” Dallas Police Association President, Rob Pinkston, echoes Sewell, saying “The Dallas Police Association applauds Governor Abbott’s bold plan in response to the recent wave of attacks on police officers.”

About the violence on law enforcement, Governor Abbott tweeted, “Texas is saying no more,” and, “We must unite and strengthen our commitment to protect law enforcement.” Ray Hunt, President of the Houston Police Officer’s Association says, “Governor Abbott’s solution is the right approach for Texas law enforcement officers and the people of Texas who support them.” Texas lawmakers will review the Police Protection Act in the 2017 legislative session, which begins January 10, 2017.

 

 

Jul 14
5
THC Controlled Substance Analogue Designer Drug

Controlled Substance Analogue Ratio Equates to Higher Federal Sentence

By | Drug Crimes

THC Controlled Substance Analogue Designer DrugSynthetic Cannabinoids became popular in the 2000’s when they were first marketed as “legal herbs.” In 2008, chemical analysis revealed that these designer drugs were more than just herbs.  The military, in particular, had a big problem with Spice and K2 (two forms of synthetic marijuana) in the late 2000’s, because they gave users a similar (or greater) high than marijuana, but they were not included in any federal schedule of controlled substances.  As these substances became more popular and widely consumed, the DEA banned their use in 2010 using emergency temporary powers and then later by placing them on Schedule I of Controlled Substance Act.

How Do Controlled Substances Analogues (Designer Drugs) Fit Into the Federal Drug Control Scheme?

 

United States v Malone (5th Circuit Court of Appeals – 2016)

Thomas Malone and his business partner Drew Green owned NutraGenomics Manufacturing, LLC, a distributor of JWH-018, a synthetic cannabinoid substance, also known as “Spice” and “K2” on the street. However, in 2011 federal and state legislatures banned JWH-018 and other similar designer drugs or synthetic cannabinoids. Malone and Green began selling other synthetic cannabinoids, namely, AM-2201, known as “Mr. Miyagi…a mixture of AM-2201 and vegetable material that visually resemble[s] marijuana.” Eventually, Malone and Green ordered the mass manufacture of Mr. Miyagi, selling in bulk to a distributor in Louisiana. Although labeled as potpourri, Mr. Miyagi was supposed to be smoked like marijuana.

Malone Faced Federal Indictment For Possession and Distribution of Mr. Miyagi

A federal grand jury returned an indictment, charging Malone with one count of conspiracy to distribute and possess with intent to distribute AM-2201, and, one count of conspiracy to commit money laundering. Malone decided to take a plea agreement, pleading guilty to one count of conspiracy to distribute and possess with the intent to distribute a Schedule I Controlled Dangerous Substance, a violation of 21 U.S.C. §§846, 841(b)(1)(c), 813, 802(32)(A). The district court accepted Malone’s guilty plea of distributing not less than 1400 kilograms of AM-2201, and ordered a pre-sentence report. A pre-sentence report “PSR” is a report created by a probation office in anticipation of the punishment phase of a trial—the PSR in this case set out to determine “the base offense level using the marijuana equivalency of the most closely related controlled substance to AM-2201.”

Pre-Sentencing Report’s Mathematical Formula Indicated Severe Penalty

The PSR listed Tetrahydrocannabinol, THC, as the most closely related controlled substance to AM-2201. Further, the federal Drug Equivalency Tables indicated that a 1 to 167 ration be applied to convert the 1400 kilograms of AM-2201 into marijuana for the purpose of sentences under the federal Sentencing Guidelines. Using this mathematical equation, it was determined that Malone should be sentenced for 233,800 kilograms of marijuana—the highest level set forth by the Drug Equivalency Tables. At trial, each side put forth an expert witness arguing for and against the use of the THC and the THC ratio set forth in the PSR.

Battle of the Experts at Trial

The Government’s Expert

The Government called Dr. Jordan Trecki to testify that THC is the most closely related substance to AM-2201. Dr. Trecki relied on a scientific study “showing that both THC and AM-2201 bind to the same cannabinoid receptor” in the brain. Second, he testified about a study on rats where the rats could not tell the difference between THC and AM-2201. Third, he discussed AM-2201’s potency and effects on humans. Dr. Trecki told the court that THC and AM-2201 are close in chemical make-up and in effect on the structures of the brain. Dr. Trecki said, however, that there was no scientific basis for the 1:167 ratio.

Malone’s Expert

Malone’s attorney called Dr. Nicholas Cozzi, who stressed the importance of comparison of the two drug compounds—THC and AM-2201—in humans, not just in animals. Dr. Cozzi criticized Dr. Trecki’s analysis because Trecki “combined the results of several studies” and that the studies were not conducted on humans, rather they were animal studies. Dr. Cozzi stated that marijuana, not THC, was the most closely related substance to AM-2201 because it’s smoked and inhaled, like marijuana, and because both substances are consumed for their effect. Dr. Cozzi agreed with Dr. Trecki on one point—that the 1:167 ratio was not rooted in science.

The Big Issue Before the Fifth Circuit

Relying heavily on Dr. Trecki’s expert testimony, the District Court sentenced Malone to 117 months imprisonment and three years of supervised release following prison. The court noted that “the ratios in sentencing guidelines are often arbitrary… [however] the ratios seek to outline the relative harm of certain drugs.” Malone appeals to the Fifth Circuit Court of Appeals.

The Fifth Circuit must determine whether THC really is the most closely-related substance to the controlled substance analogue, AM-2201, and if so, whether the 1:167 ratio is a reasonable conversion for sentencing purposes.

The Fifth Circuit Weighs In

Here, the Fifth Circuit points out that the district court spent a day holding an evidentiary hearing on the equivalency of AM-2201 to other drugs, “it is significant that the district court gave this matter studied attention.” The court notes that each side had the ability to present an expert witness and to cross examine. “Nothing in the record leaves us with…the conviction that a mistake [was made].”

Second, the Fifth Circuit compares AM-2201 and marijuana, disagreeing with Dr.Cozzi’s assertion that both drugs are smoked and inhaled in the same manner. “Marijuana is not consumed way…there is no evidence that a user would smoke a pure form of AM-2201, just as a user would not smoke pure THC.”

Third, the Fifth Circuit says that the district court did not have to “engage in a piece-by-piece analysis of empirical grounding behind…[the] sentencing guidelines.” United States v. Duarte, 569 F.3d 357, 366-67 (5th Cir. 2009). Accordingly, the Court says that only the Commission on sentencing guidelines can change the guidelines, and therefore, does not rule on this issue. The Fifth Circuit agrees with the holding and reasoning of the district court—Malone’s sentence is affirmed.
*This case consolidates two cases, United States v. Malone and United States v. Green.

Jul 07
3
Exigent Circumstances Warrantless Blood Draw

Understaffing of Police Cannot Create the “Exigency” to Justify a Warrantless Blood Draw

By | DWI

In a Warrantless DWI Blood Draw Case, State Offers “Understaffing of Police” as an Exigent Circumstance.

Exigent Circumstances Warrantless Blood DrawBonsignore v State (2nd Court of Appeals – Fort Worth, 2016)

After traveling eighty miles an hour in a forty miles per hour zone, Jeremy Bonsignore pulled into a Waffle House and started walking toward the restaurant. Unknown to Bonsignore, law enforcement had been following him for several minutes. Once the officer pulled into the parking lot, he activated his lights and began yelling at Bonsignore to stop walking. Bonsignore turned around, stumbled, and lost his balance. The officer noted the presence of a strong odor of alcohol and that Bonsignore’s eyes appeared glassy.

Bonsignore admitted to having a few drinks earlier in the day, which prompted the officer to conduct several field sobriety tests. Bonsignore failed them and then abruptly refused to do anymore tests or provide a breath or blood sample. Bonsignore was placed under arrest at 1:49 am. Dispatch informed the officer that Bonsignore had two prior DWI convictions, which could amount to Bonsignore being a repeat DWI offender, a felony offense. With this information in mind, the officer instructed a second officer to take Bonsignore to the hospital for a mandatory blood draw. The blood draw was conducted at 2:55 am. Bonsignore did not consent to the taking of his blood and the officer did not obtain a warrant.

Warrantless Blood Draw Issue at Trial

Before trial began, Bonsignore filed a motion to suppress the results of the blood draw, arguing that the blood draw was warrantless, and therefore, unconstitutional. The motion was never officially ruled upon, although the court did take the motion under advisement. During trial, when asked why he ordered the blood draw, the officer said that Bonsignore’s “two prior convictions were his only authority for obtaining the blood draw.” The officer did not attempt to obtain a search warrant, and he acknowledged that Bonsignore did not give his consent to a blood draw.

The officer testified that he relied solely on the statute, Texas Transportation Code 724.012, for authority to order the draw against Bonsignore’s will. Pleading guilty to the charges, the trial court issued Bonsignore a two-year sentence. Bonsignore appealed, arguing that his motion to suppress the evidence should have been ruled upon because the blood draw was taken without his consent and without a search warrant, violating the ruling in Missouri v. McNeely, 133 S. Ct. 1552 (2013). The State argues that (1) Bonsignore’s blood-alcohol level would dissipate over time, (2) he was a repeat felony offender, and (3) the police department was small and understaffed, and that obtaining a warrant in this case would have been overly-burdensome for the officers that night.

Is “Dissipation” an Exigent Circumstance to Justify a Warrantless Search?

In the wake of the McNeely case, the Second Court of Appeals must determine whether Bonsignore’s blood draw was constitutional, and, whether the State may rely on an exigency “emergency circumstances” argument as an exception to the Fourth Amendment.

Texas Transportation Code

Section 724.012(b)(3)(B) states that blood or breath samples may be required to be taken when the suspect is arrested for DWI and he refuses to give the specimen voluntarily, so long as the suspect has two prior DWI convictions, “although [the code] does not expressly authorize taking the specimen without a warrant.” State v. Swan, 483, S.W.3d 760, 764 (Tex. App.—Fort Worth 2016, no pet.).

However, “the explicit refusal to submit to blood testing overrides the existence of any implied consent and that implied consent that has been withdrawn by a suspect cannot serve as a substitute for the free and voluntary consent that the Fourth Amendment requires.” State v. Villarreal, 475 S.W.3d 784, 800.

Precedent Case Law: Missouri v. McNeely

“The natural metabolism of alcohol in the bloodstream [does not] present a per se exigent circumstance justifying an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases.” McNeely, 133 S. Ct. at 1556, 1558.

The Second Court of Appeals Weighs In

The Second Court of Appeals agreed with Bonsignore. “The police may not create their own exigency to make a warrantless arrest or search.” Parker v. State, 206 S.W.3d 593, 598 (Tex. Crim. App. 2006). “Exigent circumstances do not meet Fourth Amendment standards if [law enforcement] deliberately creates the [circumstances].” Id.

Here, the Court held, law enforcement knew that it was not a “No Refusal Weekend” in Texas. Further, the police department knew that it only had three officers on duty the entire night Bonsignore was arrested. In fact, understaffing the department was a typical occurrence. There was nothing out of the norm about the number of officers on duty that night. “Deliberately scheduling an insufficient number of patrol officers on an evening shift does not constitute an exigent circumstance.” State v. McClendon, NO. 02-15-00019-CR, 2016 WL 742018 (Tex. App.—Forth Worth, Feb. 25, 2016, no pet.).

Additionally, the department had a protocol for obtaining warrants, even in the absence of magistrates “on call.” Also, there was no earth-shattering emergency or problem that prevented the officers from making attempts to secure a warrant for Bonsignore’s search. The Court makes a point to highlight the efficiency of fax machines for the purposes of securing warrants, “thanks to the fax machine, [law enforcement] could …request a search warrant” and “thanks again to a fax machine…once [law enforcement] had the search warrant, [they] could fax it directly to a hospital instead of driving [the warrant] there.” The argument that the police department is small was unpersuasive for the Second Court of Appeals. For these reasons, the Second Court of Appeals reversed the trial court’s ruling, and remanded the case to the trial court for a new trial.