BHW offer two annual scholarships - one for a Military Veteran Law Student, the other for a Military Dependent Undergraduate Student. See who won in 2017!

2018 BHW Scholarship Winners | Veteran Law Student & Military Dependent

By | Scholarship

Barnett Howard & Williams PLLC Announces the Recipients of the 2018 Scholarship Awards

BHW offer two annual scholarships - one for a Military Veteran Law Student, the other for a Military Dependent Undergraduate Student. See who won in 2017!This was the third 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 many 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.

2018 Winner – Military Veteran Law Student Scholarship

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

GREGG STARR

Gregg Starr is a Army veteran that served as an Infantry Officer in Operation Enduring Freedom. Mr. Starr will be attending Northwestern Pritzker School of Law in Chicago, Illinois. Congratulations Gregg Starr. Best wishes as you continue toward your law degree.

2018 Winner – Military Dependent Scholarship

The winner of the 2016 Military Dependent Undergraduate Scholarship is:

ELENA POLINSKI

Elena Polinski is the daughter of a retired United State Marine Master Sergeant.  Ms. Polinski will be attending Coastal Carolina University in Conway, South Carolina and is pursuing a degree in Marine Biology. Congratulations Elena! Best wishes as you pursue your dreams.

More Information About Our Scholarship Opportunities:

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

Military Veteran Law Student Scholarship

Military Dependent Scholarship

DWI Costs Texas

14 Ways a Texas DWI Conviction Can Cost You | A Look at the Numbers

By | Criminal Defense

“DWI – YOU CAN’T AFFORD IT”

DWI Costs TexasYou’ve seen the blue and white signs posted all over Texas roadways that read “DWI – You Can’t Afford It.” The signs offer a simple warning, but they don’t detail the actual costs related to a DWI arrest. So, we thought we’d help give you a general idea of what to expect financially if you or someone you know is faced with a DWI charge in Texas. The figures that we provide may not be 100% accurate for every case or situation but are drawn from our experience in representing well over 500 Texans charged with all types of DWI offenses.

1. Attorney Fees (Varies)

The cost of hiring a DWI attorney is probably the first thing that comes to mind for most folks when they consider the cost of a DWI. As you know, if you are charged with a DWI in Texas, having solid, experienced DWI representation is paramount. Keep in mind that your attorney can often help you save or offset some of the costs we will discuss in detail below, so it is important to retain counsel that is experienced in handling DWIs in your jurisdiction.

*A word of warning… “Nothing is more expensive than a cheap lawyer.” The range of DWI attorney’s fees is broad and can vary by experience and expertise. Contact our DWI defense team to learn about our fees for DWI representation.

2. Bail Bond Costs (Est. $100 – $2,500)

After being arrested for DWI, paying the bond to secure jail release will be the first expense incurred. Depending on the type of DWI charge and the jurisdiction, judges across the state set bond amounts that we’ve seen range from $500 – $10,000. Bail Bondsmen typically charge 10-15% of the total bond amount, but that amount you pay the bondsman is kept by the bondsman. You can also pay a Cash Bond. A cash bond requires payment in full of the bond amount, but the money is returned to you upon disposition of the case (minus any administrative fees charged by your county.) Some counties offer bond release programs for low-risk offenders. This option is often the cheapest route initially, but there can be monthly reporting requirements that require additional fees.

*If you plan to pay a bail bondsman, you will probably pay between $100 and $500.

*If you pay the full cash bond, you can estimate between $500 and $2500 in our experience.

3. Ignition Interlock and/or Alcohol Monitoring ($65 – $250 monthly)

Counties vary on how and when they require an ignition interlock device or alternative alcohol monitoring device as a condition of bond. If required in your case, the court will require you to maintain the device as a condition of your bond. Additionally, if you are convicted and placed on probation for certain DWI offenses, the law requires the ignition interlock device requirement. There are several different companies that offer these devices and we’ve seen the monthly costs of the devices range from $65-105 monthly. Some companies require deposits or administrative fees at the time of device installation.

*If you are required to install an ignition interlock device on your vehicle, the monthly cost will range from $65 – $150.

*If you are required to have a home alcohol monitor or use a wearable SCRAM device that measures alcohol 24/7, the monthly cost will range from $65 to $250.

4. Occupational Driver’s License Costs ($180 – $420)

If, during your arrest for DWI, you refuse to provide a specimen of breath or blood, or the specimen that you provide is over the legal limit of .08, DPS will seek to suspend your license for a period of 90 days – 2 years. You have a right to a hearing on that suspension (a good attorney will request a hearing on the suspension and contest it.) However, if the license is ultimately suspended, you should be eligible for an occupational driver’s license.

An occupational license gives you the ability to drive for employment purposes as well as essential household duties. In order to obtain an occupational license, you must file a petition with the court. The filing fees associated with a Petition for Occupational License range from $45-$285, depending on the court.

Once the occupational license is granted, the order granting the license has to be processed by DPS. At that time, DPS will charge a $125 license reinstatement fee and $10 fee to process the plastic occupational license. It is important to note that a request for occupational license requires proof of financial responsibility also known as an SR22.

5. SR22 Insurance Costs ($25 to $125 monthly)

An SR22 is proof of your financial responsibility. Ultimately, you will maintain your liability insurance. The SR22 is an additional endorsement that monitors your status as an insured driver and confirms for DPS that you are insured. The costs of an SR22 can vary from $25-$125 monthly depending on the insurance company and how the SR22 is requested.

6. DWI Fines (Est. $500 – $1,250)

If you are ultimately convicted of DWI, whether as a result of a plea agreement or after a jury trial, the court will typically impose a fine. The fines misdemeanor DWI convictions in Texas range from $0 – $4,000 and the fines for felony DWI convictions range from $0 – $10,000. Regardless of the charge, fines are typically negotiated by your attorney during plea negotiations with the prosecution.

* If you are found Not Guilty of your DWI charge, there are no fines imposed.

7. Court costs (Est. $300 – $400)

True to their name, “court costs” are the costs charged by the court for processing your case. Court costs are only incurred when there is a guilty finding or a guilty plea and they usually range from approximately $300-400.

* If you are found Not Guilty of your DWI charge, there are no court costs.

8. DWI Probation Fees (Est. $60 monthly)

If your DWI case results in a probation sentence, the judge will order you to pay a monthly supervision fee to the probation department. We’ve seen these fees waived and seen them imposed up to $60 monthly depending on the person’s financial status.

9. DWI Eduction Program Costs (Est. $100 – $125)

If you are convicted and placed on probation, you will be required to complete a 12 hour DWI Education Program class. The cost of the DWI Education program class is typically around $100-125.

10. Victim Impact Panel (Est. $50 – $70)

Another requirement that is typically imposed by the court as a condition of probation is the Victim Impact Panel (VIP). VIP is a presentation by Mothers Against Drunk Driving (M.A.D.D.) or similar organizations where people or family members of people affected by intoxicated offenses describe their experiences with those situations.

* The fee for attending the panel is usually $50-70.

11. Substance Abuse Evaluation (Varies)

If sentenced to probation, you will be required to submit to an assessment to confirm whether you have any underlying alcohol or drug-related disorders. Once the assessment is performed, there will be a recommendation made if there are findings of alcohol or drug-use issues. Those recommendations can range from individual counseling to outpatient treatment to residential treatment. As you know, these services are not free and can be very expensive.

12. Restitution to Impacted Party or Labs (Varies)

If you were involved in an accident where property damage or medical bills are incurred by a third party, you can be required to provide restitution to that person or persons. We also see restitution requested by the labs that perform blood alcohol analysis for the state (typically around $180).

13. DPS License Surcharges ($3,000 – $6,000)

License surcharges are usually the last cost incurred, but also the most expensive. Texas has a highly controversial program known as the “Texas DPS Driver Responsibility Surcharge Program.” The purpose of the program is to penalize people convicted of DWI with an additional financial penalty related to their driver’s license. If not paid, the consequence is an automatic, indefinite suspension of their driver’s license until paid.

The surcharges range from $3,000 – $6,000 depending on the type of DWI charge.

14. Insurance Rate Increase (Varies)

Many people report their car insurance rates skyrocketing after a DWI conviction. In the alternative, several insurance companies will deny future coverage altogether. This can be one of the most expensive consequences of getting a DWI and it is hard to forecast the exact impact because it will last for a long time.

Conclusion

While every DWI arrest is different, it is easy to see how a DWI conviction in Texas could end up costing $15,000 in the long run. Hiring an attorney experienced in handling DWI cases is essential. The majority of these costs are only applicable if you are convicted. The best thing you can do is hire an attorney who can review your case to determine what problematic issues there are for the state and whether the state has the evidence they need for a conviction. If they don’t, you might be able to avoid some of these costs altogether. If you or someone you know is charged with a DWI, please give Barnett, Howard & Williams, PLLC a call at (817) 993-9249. We will gladly offer a free in-person consultation to sit down and discuss your case with you.

Personal Injury Statute of Limitations

Time Limitations for Personal Injury Claims in Texas

By | Personal Injury

Personal Injury Statute of LimitationsIf you’ve been injured by someone else’s negligent or intentional act, you have a set amount of time to file a lawsuit seeking a remedy for your injury. This time limit is known as a statute of limitations and it is outlined in Chapter 16 of the Texas Civil Practice & Remedies Code.

The Statute of Limitations is Two Years for Most Claims

In most instances, the statute of limitations for personal injuries is two years from the date of the accident or injury, meaning a lawsuit must be filed no later than two years from that day. Lawsuits filed after this two-year period will be summarily dismissed unless you meet one of the few exceptions to the statute. Missing this statutory deadline means giving up the ability to ever pursue a remedy (also known as damages) for your injury claim.

There Are Very Few Exceptions to the Limitations Period

If you are under a legal disability the statute of limitations is tolled (suspended) until the disability is removed. These legal disabilities include:

  • Minor person under the age of 18
    • The statute is tolled until his/her 20th birthday, two years after reaching the age of majority (Weiner v. Watson, 900 S.W.2d 316, 321)
  • Persons of “unsound mind” who are “unable to participate in, control, or understand the progression and disposition of a lawsuit.” (Grace v. Colorito, 4 S.W.3d 765, 769)
    • It would have to be proven to the court that a person did not have the “mental capacity” to pursue litigation for a definite period of time.

If you believe you have a personal injury claim it is better to seek out the advice of a qualified personal injury attorney sooner rather than later. A Texas personal injury attorney can help you evaluate your claim’s statute of limitations and take steps to protect your rights.

Accident Report Police Report

How to Obtain an Accident Report in Texas

By | Car Wreck

Accident Report Police ReportIf you or a loved one has been injured in an accident, an experienced Personal Injury Attorney can assist in obtaining all relevant records, including accident reports. Accident reports contain basic but necessary information needed to begin a personal injury claim.

Why Do Law Enforcement Officers Write Accident Reports?

Under Texas law, a law enforcement officer investigating a motor vehicle accident must submit a written report of any accident involving injury, death, or property damage believed to be greater than $1000 within ten days of the date of the accident (Texas Transportation Code, Subchapter D, Sec. 550). If no injuries occurred, or if the damage to property was less than $1000, no report is required.

Who Can Get an Accident Report?

The Texas Transportation Code states that accident reports can be made available to any of the following persons/entities after submitting a written request and paying any required fees:

  • any person involved in the accident;
  • a person authorized to represent any person involved in the accident;
  • a driver involved in the accident;
  • an employer, parent, or legal guardian of a driver involved in the accident;
  • the owner of a vehicle or property damaged in the accident;
  • a person who has established financial responsibility for a vehicle involved in the accident;
  • an insurance company that issued an insurance policy covering a vehicle involved in the
    accident;
  • an insurance company that issued a policy covering any person involved in the accident;
  • a person under contract to provide claims or underwriting information to a person with financial responsibilities for the vehicle or to an insurance company that issued a policy for a vehicle damaged in the accident or an individual injured in the accident
  • a radio or television station that holds a license issued by the Federal Communications
    Commission;
  • a newspaper;
  • any person who may sue because of death resulting from the accident;

How Can I Get My Accident Report?

If you were involved in an accident, and an officer prepared a report, you may obtain a copy of your report by going to the website of the county, city, or municipality in which the accident occurred and submitting a written request. If an accident occurred outside city limits, you can go to the investigating agency’s website, i.e. Sheriff’s Office or Department of Public Safety. Be advised, you may be required to pay a fee for your report. Included below are some helpful links to various DFW city websites where you can request your report or find out more information.

County Websites to Request Accident Reports

DFW Metroplex City Websites to Request Accident Reports

Accident reports are important in personal injury cases because they contain information about the at-fault party, their insurance company, and the responding officer’s determination as to how the accident occurred and who was at fault, all information that an attorney would need to begin pursuing a personal injury claim. If you or someone you love has been injured in an accident, an experienced personal injury attorney can help you obtain your accident report as well as provide you valuable information, support, and guidance while pursuing your personal injury claim.

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.

Fireworks Laws Texas Keller Southlake

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

By | Criminal Defense

Do Not Lose Your Liberty on Independence Day

You have probably seen the notices spread across social media from local police departments, warning that setting off fireworks (including sparklers) is illegal inside of city limits. We know that you’re probably going to do it anyway, but we wanted to let you know what Texas law provides regarding fireworks on the 4th of July.

Texas Fireworks Law

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

Specifically, under state law, a person may not:

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

Texas Occupations Code, Subchapter F, Sec. 2154.251

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

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

Fireworks City Ordinances

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

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

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.

TSA Airport Gun Charges Texas

What to do if Arrested for Bringing a Gun to the Airport (Accidentally)

By | Weapons Charges

Unlawful Carrying of a Weapon at an Airport in Texas

TSA Airport Gun Charges TexasWe love our guns in Texas. After all, those licensed to carry a handgun can now choose to conceal the handgun or wear it on their hip like in the old west. But carrying a handgun comes with its risks. Many places are designated as “off limits” for handguns. Chief among them is the airport. And everyday, well-meaning folks forget about their trusty handgun when they pack their bags and head to DFW International Airport, only to be reminded by a less-than-friendly TSA agent as they attempt to pass through security. In fact, Texas is the #1 state for airport gun seizures in the country (and DFW International Airport leads the way in Texas).

What Can Happen if I Accidentally Bring a Gun Through Security at DFW Airport?

Generally, if you carry a firearm through the security checkpoint at an airport, you can be detained and arrested. Carrying a firearm, either on your person or in your carry-on luggage, is a violation of Texas Penal Code Sections 46.02 and 46.03. The detention and arrest could take several hours and might cause you to miss your flight as you move through the process. The DFW Airport Police could also confiscate your handgun. If you are arrested for bringing a handgun to the airport, your case will be filed with the Tarrant County District Attorney.

How Serious is an Arrest for Bringing a Firearm to the Airport in Texas?

Depending on how the authorities choose to proceed, you could be charged with 3rd Degree Felony or a Class A Misdemeanor. A 3rd Degree Felony carries a range of punishment from 2-10 years in prison and a fine up to $10,000. A Class A Misdemeanor carries a punishment range of 0-365 days in the County Jail and a fine up to $4,000. We handle several airport gun cases every year and in our experience, the Tarrant County DA typically files the case as a Class A misdemeanor, while cases that originate in Dallas Love Field Airport usually see the higher felony charge.

What Should I Do After I am Arrested for an Airport Gun Charge?

After you post bond and are released from custody, you need to hire a lawyer to help defend you on the charges. You should also consider signing up for a local gun safety course so that you can demonstrate that you understand the severity of your mistake and are taking steps to ensure that it does not happen again. Other than that, follow the advice of your attorney. Do not attempt to get your gun back. Your lawyer can help you do that with a court order, if appropriate, once the case is closed.

I Have an LTC (CHL). Are There Any Exceptions for Me?

Yes. In 2015, the Texas legislature added some language to Section 46.03 to provide for LTC holders who accidentally forgot about their weapon. Section 46.03 now provides:

(e-1) It is a defense to prosecution under Subsection (a)(5) that the actor:
(1) possessed, at the screening checkpoint for the secured area, a concealed handgun that the actor was licensed to carry under Subchapter H, Chapter 411, Government Code;  and
(2) exited the screening checkpoint for the secured area immediately upon completion of the required screening processes and notification that the actor possessed the handgun.
(e-2) A peace officer investigating conduct that may constitute an offense under Subsection (a)(5) and that consists only of an actor’s possession of a concealed handgun that the actor is licensed to carry under Subchapter H, Chapter 411, Government Code, may not arrest the actor for the offense unless:
(1) the officer advises the actor of the defense available under Subsection (e-1) and gives the actor an opportunity to exit the screening checkpoint for the secured area;  and
(2) the actor does not immediately exit the checkpoint upon completion of the required screening processes.

So, basically, they are going to give you a chance to leave the secured area as soon as your mistake is realized. They cannot arrest a valid LTC holder unless the person refuses to leave the secured area immediately.

How Can I Lawfully Carry a Firearm on a Flight?

To carry a firearm on a flight, you must place the firearm in your checked baggage and declare it at the time you check your bags. Also, you should check the TSA guidelines before packing to ensure that you follow all of the rules and regulations.

TSA Sent Me a Demand for Money After I was Arrested. What Should I Do?

The law allows for TSA to send a civil demand letter for money damages. TSA officials consider the “severity” of your violation and then send a demand for money within the range that they consider appropriate. They will typically allow for your to pay less than the demanded amount if you pay quickly.

*See this sample TSA Civil Demand Letter.

You may pay the full demand, file a written response, or contact TSA to see if you can work out an arrangement. We have been able to help our clients pay less than what is demanded, but every case is different.

Will I Receive a Conviction on My Record For This?

It depends. Many of our clients that were charged with Unlawfully Carrying a Weapon in the airport have had their cases dismissed. But again, every case is different. The key is to contact an attorney right away so that your rights may be preserved throughout the criminal justice process.  Our team regularly handles airport gun cases arising out of DFW International Airport or Love Field Airport. We have offices in Keller and Fort Worth and offer free consultations.

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.

CBD Oil Legal Texas

Is CBD Oil Legal in Texas? No, Unless You Fit These Qualifications

By | Drug Crimes

What is CBD Oil?

CBD Oil Legal TexasCBD Oil, which is short for cannabidiol oil, is a cannabinoid extract that is alleged to have the health benefits of cannabis (e.g. pain relief, easing of inflammation, anxiety management and the treatment of epilepsy) without the psychoactive effects of marijuana. CBD Oil is sold as a supplement in marijuana dispensaries, nutrition stores, and even as an additive in smoothies. While the popularity of CBD Oil is growing substantially, the product remains unregulated by the U.S. Food and Drug Administration, leading to wide discrepancies in the product’s ingredients and quality. The variety of ingredients and compounding methods may have significant ramifications for consumers depending on Federal and state law and the interpretation of those laws by state law and health code enforcement agencies.

Is CBD Oil Legal Under Federal Law?

Yes, if it is produced within federal guidelines.

The 2014 Farm Bill allows a certain amount of leeway to the states to experiment with industrial hemp without falling into the reach of the Controlled Substances Act.1 The Industrial Hemp Farming Act amends the Controlled Substances Act to exclude ‘Industrial Hemp’ and defines industrial hemp as any part of the Cannabis sativa plant with a THC concentration of not more than 0.3 percent. However, in 2016 the Drug Enforcement Agency released an administrative ruling considering CBD Oil to be a Schedule One drug, comparable to heroin, peyote and LSD, operating on the theory that it is extracted from the same parts of the Cannabis sativa plant that contain THC, the active ingredient of marijuana. CBD consumers and manufacturers assert that CBD can also be extracted from the non-intoxicating parts of the Cannabis sativa plant that produce hemp, however, a recent 9th Circuit decision affirmed the DEA’s authority to classify CBD Oil as within their administrative purview.2

For CBD Oil to be considered legal in the Federal system under the DEA’s guidelines it must “consist[] solely of parts of the cannabis plant excluded from the CSA definition of marijuana.” In the definition of marijuana given by the Controlled Substances Act, the “mature stalks of such plant, fiber produced from such stalks, oil or . . . any other . . derivative, mixture, or preparation of such mature stalks” are excluded from the definition. Presently the DEA considers an extraction process using only the parts of the cannabis plant that are excluded from the CSA definition of marijuana to be “not practical.” This is because the extraction process used would “diminish any trace amounts of cannabinoids that end up in the finished product.”

Is CBD Oil Illegal Under the Laws of the Various Individual States?

Yes, CBD is legal, but not in all states.

At the state level, CBD Oil is considered legal in the states where marijuana is legal for recreational use (Alaska, California, Colorado, DC, Maine, Massachusetts, Nevada, Oregon, Vermont). Twenty-nine states have made marijuana legal for medical use in various quantities and CBD is also considered legal under those state laws, irrespective of the THC content of the source of the oil. In states that have not decriminalized marijuana, CBD Oil is also likely illegal.

Is CBD Oil Legal In Texas?

NO, unless you fall within the qualifications set by the Compassionate Use Act.

If you are prescribed the use of medical CBD oil and use ‘low-THC” CBD, then the use is legal. Texas has legalized marijuana for medical use only, but only in a very narrow set of circumstances. The Compassionate Use Act of 2015 authorizes the prescription of “low-THC cannabis,” defined as having no more than 0.5% THC for patients diagnosed with intractable epilepsy and entered into the state-maintained “compassionate-use registry.”3 The Act requires prescription by two physicians however, it is currently illegal under federal law for a physician to “prescribe” marijuana. Under a 2000 court ruling, it is legal for physicians to “recommend” marijuana to their patients but the language of the Compassionate Use Act calls for a prescription, setting up a conflict with Federal law.4 Additionally, to qualify for the medical use of CBD, the patient must have tried two FDA-approved drugs and found them to be ineffective. There are currently three dispensaries licensed by Texas to sell qualifying products to authorized consumers.

If you do not fall within the qualifications set by the Compassionate Use Act, then possession of CDB oil containing any amount of THC is against Texas law. The State definition of marijuana closely tracks the Federal definition. The Texas Health and Safety Code defines marijuana as “the plant Cannabis sativa . . . and every compound, manufacture, salt, derivative, mixture, or preparation of that plant or its seeds.” The Code excludes “the mature stalks of the plant or fiber produced from the stalks [and] a compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, fiber, oil.” Texas does not currently have legislation allowing for the cultivation of hemp, though industrial hemp derived from the mature stalks of the Cannabis sativa plant may be sold and consumed.

What is the Penalty for Possession of CBD Oil in Texas?

In Texas, if you possess CBD oil with any trace of THC, you could be charged with a Felony for Possession of a Controlled Substance in Penalty Group 2, which (depending on the weight in grams) can carry a range of punishment from 180 days in a state jail facility up to 20+ years in prison and a fine not to exceed $10,000. Several of our clients have been arrested for possessing CBD oil after officers performed a field test and discovered that yielded a positive result for THC.

What To Look For In CBD Oil In Texas

CBD Oil made from the mature stalks of the Cannabis sativa plant are likely in conformity with both Federal and Texas State law. Consumers seeking to purchase CBD Oil in Texas should look for a product advertised as being the product of “industrial hemp” or “mature hemp.” Products advertised as containing “THC” or “CBD Oil” should be avoided because of potential conflict with State and Federal laws.

  • Texas consumers with intractable epilepsy may seek to join the Compassionate Use Registry and get a prescription for CBD Oil containing less than 0.5% THC from an authorized dispensary.
  • Physicians should be mindful that “prescribing” CBD Oil to Texas residents under the Compassionate Use Act may fall into conflict with existing Federal law.
  • Retailers that are not one of the three state-authorized dispensaries authorized by the Compassionate Use Act should take care to carry only products that do not advertise themselves as containing CBD Oil but instead focus on being the product of industrial hemp.

Where Can I Purchase CBD Oil with 0% THC?

While there are many CBD oil stores popping up all over Texas, we have found one near our office that sells CBD Oil with 0% THC in it. They test it to confirm the THC content so that you can be sure of what you are getting. Visit Your CBD Store at https://yourcbdstorekeller.com to learn more or purchase their CBD products online.

Sources:

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