Fort Worth Criminal Law & Personal Injury Blog

Feb 26

5

Difference in Deferred Adjudication Straight Probation in Texas

What is the Difference Between Deferred Adjudication and Straight Probation?

By Jason Howard | Criminal Defense

Probation in Texas: Make Sure You are Headed Down the Right Path. What is Deferred Adjudication?

Difference in Deferred Adjudication Straight Probation in Texas When we are counseling new clients, we routinely address the punishment range that is available for the charged offense and whether probation is an option in their case. It is important to note that all criminal offenses (except class C citations) are punishable by incarceration. However, first-time offenders and those charged with misdemeanors and non-aggravated felonies will often receive probation when prosecutors, judges, and juries agree that community supervision (probation) is a better alternative to jail time in the given situation. For some offenses, however, probation is not an option (see our previous article on 3g offenses in Texas).

For those of you that prefer the bullet points up front, here is the short answer regarding the difference between straight probation and deferred adjudication:

Straight Probation in Texas

A person on Straight Probation in Texas must report to probation and complete required terms as set by the judge
In a straight probation, the case results in a Criminal Conviction
In straight probation, there is no option have the case expunged or non-disclosed upon completion of probation
If revoked on a straight probation, the penalty range is limited to the underlying jail term (see more below).

Deferred Adjudication in Texas

A person on Deferred Adjudication in Texas must report to probation and complete required terms as set by the judge
A Deferred Adjudication Case Does NOT result in a Criminal Conviction
In a Deferred Adjudication in Texas, there is an option to have the case non-disclosed upon completion (in most cases)
Under a Deferred Adjudication, If revoked, the judge may sentence anywhere in the full punishment range for the offense.

Deferred Adjudication vs. Straight Probation

In Texas, there are two types of community supervision in criminal cases: regular community supervision (or what is typically referred to as “straight probation”) and deferred adjudication (or “deferred probation.”) The difference between them is significant. Chapter 42.12 of the Texas Code of Criminal Procedure covers with both types of probation in Texas.

Straight Probation in Texas

Let’s discuss straight probation first. As an example, assume someone is facing a charge for a Class A Misdemeanor. The penalty range is 0-365 days in jail. A straight probation offer from the state might look like this:

180 days in jail probated for 12 months.

If you agree to this offer and decide to take it, at the time of the plea the judge would ask for your plea of guilty, find you guilty and assess punishment at 180 days in jail. However, he would not require you to actually serve the jail time. Rather, he would probate the jail time and place you on community supervision for a period of 12 months. If you successfully complete the straight probation by reporting as directed and abiding by the terms and conditions, you would not be required to serve jail time for the conviction.

Straight Probation Comes With a Criminal Conviction

With straight probation, the most significant consequence is the conviction itself. When you plead guilty, the judge finds you guilty and a conviction is rendered. You avoid jail time by the sentence being probated, but the conviction remains on your record. A conviction, even if probation, can never be expunged from your record (regardless of the passage of time), so it is important to be wise with your decision to take a plea agreement in which straight probation is offered.

If you receive straight probation and fail to comply with the terms and conditions, the state can seek to have your probation revoked. At a revocation hearing or sentencing, the judge’s sentencing ability is limited by the underlying sentence received at the time of your original plea. So, in the above example, if you received a sentence for 180 days in jail probated for 12 months and are later revoked, the judge cannot sentence you beyond the 180 days (even though the penalty range for a class A misdemeanor is up to 365 days.)

Deferred Adjudication in Texas

Chapter 42.12 section 5 offers a different type of probation than the straight probation discussed above. It’s called deferred adjudication. Let’s go back to our example and say your facing a Class A Misdemeanor with a penalty range of 0-365 days. A deferred adjudication offer might look like this:

18 months probation

If you agree to this offer, you would plead guilty at the time of the plea. However, the judge would withhold finding you guilty and instead place you on probation for a period of 18 months. The reporting and terms and conditions would mirror those of a straight probation. If you successfully complete the probation and are discharged, you would not be required to serve jail time and you would not receive a criminal conviction.

Deferred Adjudication Does Not Come With a Criminal Conviction

With deferred adjudication, the most significant benefit is the case is dismissed upon discharge and no conviction rendered. You not only avoid jail time, but a conviction as well. You also may be eligible to file for a non-disclosure after discharge in most cases. Section 411.081 of the Texas Government Code is the law covering when and if you can file for a non-disclosure after discharge from deferred adjudication.

As with straight probation, if you receive deferred adjudication and fail to comply with the terms and conditions, the state can seek to have your probation revoked. However, there are some significant distinctions at a revocation hearing or sentencing on a deferred adjudication case. First, the judge’s sentencing ability is unlimited. This means he can use the entire penalty range. In our example, if you receive deferred adjudication for 18 months for a class A misdemeanor and are later revoked, the judge can sentence you anywhere in the penalty range of 0- 365 days. Also and more importantly, if revoked, the judge will find you guilty resulting in a conviction.

Contact Our Fort Worth Criminal Defense Firm if You Have Questions About Deferred Adjudication or Straight Probation in Texas

This was a rough overview of the different types of probation in Texas on criminal cases. Of course, there are always factors that can effect if and which type of probation is available as an option to you. The attorneys at Barnett Howard & Williams PLLC would be glad to discuss your situation and provide more information about these options. Please feel free to give us a call at (817) 993-9249.

NOTE:
→ DWI offenses are not eligible for deferred adjudication in Texas. If you’d like to see that changed, contact your state representatives’ offices and voice your opinion

Feb 24

2

Warrantless Search Mattress Protective Sweep Texas

Warrantless Search Under a Man’s Mattress Held Constitutional

By Brandon Barnett | Search & Seizure

United States v. Garcia-Lopez (5th Circuit, 2016)

FACTS: On February 5, 2014, the Wharton County Deputy Sheriff’s Department served a felony arrest warrant on Yonari Garcia at his father’s trailer home. Yonari’s father told law enforcement that Yonari was not home, however, consented to a search of the trailer. Upon entry, Garcia-Lopez, Yonari’s brother, made a beeline for a bedroom, closing and locking the door. Law enforcement followed Garcia-Lopez and demanded that the door be unlocked. Garcia-Lopez opened the door and the police entered, continuing the search for Yonari. Garcia-Lopez asked if he could sit on his bed and eat his dinner while police searched the room. The police obliged the odd request. A minute later, law enforcement discovered two sets of bullet-proof vests in plain sight, prompting a background check. Garcia-Lopez was a convicted felon and having the body armor was a violation for being a felon in possession of body armor, U.S.C. § 922(g)(1). The police arrested Garcia-Lopez after being in the home a total of three minutes. After the arrest, police continued searching the Garcia-Lopez’s room. Concerned Yonari might be sheltered in a hollowed-out mattress, the police lifted the bed up, discovering ammunition and three handguns sandwiched between the mattress and box springs. After a total of seven minutes inside the trailer, the police left with Garcia-Lopez under arrest.

See the 5th Circuit’s full opinion in United States v Garcia Lopez.

Garcia-Lopez Indicted for Federal Firearms Charges

In March 2014, Garcia-Lopez was indicted on six counts of being a felon in possession of a firearm in violation of USC §§ 922(g)(1) and 924(a)(2). During an evidentiary hearing, the district court denied Garcia-Lopez’s motion to suppress the guns found under the mattress because law enforcement was originally in the trailer for a legitimate purpose and they had a right to search the home pursuant to the valid arrest warrant for Yonari. The court added that upon the valid search of the premises, law enforcement found contraband and arrested Garcia-Lopez. Further the court stated that upon his arrest, law enforcement had the right to make a protective sweep, so long as it did not last an unreasonable amount of time. Additionally, there was testimony that indicated that suspects have been known to hide in hollowed-out mattress to evade arrest. According to the district court, the search for Yonari and seizure of the guns was proper in every way. Garcia-Lopez was sentenced to forty-six years imprisonment and two years of supervised release. Garcia-Lopez appealed to the Fifth Circuit Court of Appeals, arguing that law enforcement’s belief that Yonari might have been hiding in the bed was unreasonable, and thus, unconstitutional.

Was Lifting the Mattress an Unconstitutional Search or a Lawful Protective Sweep?

The Court of Appeals must determine whether the act of “lifting up the mattress” and seizing the guns violated Garcia-Lopez’s constitutional rights. In other words, was lifting the mattress an unconstitutional search under the Fourth Amendment’s protection against unreasonable searches and seizures?

Under the Fourth Amendment, warrantless searches are pre se unreasonable. Coolidge v. New Hampshire, 403 U.S. 443, 474-75 (1971). A protective sweep may be conducted with [a lower threshold of] reasonable suspicion, probable cause is not necessary. Maryland v. Buie, 494 U.S. 325-27 (1990). “There must be articulable facts which, taken together with the rational references from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing danger to those on the arrest scene.” Id. A protective sweep [must be] quick and…limited to the safety of the police. Id. Evidence seen in plain view during a lawful sweep can be seized and admitted into evidence during trial. United States v. Jackson, 596 F. 3d 236, 242 (5th Cir. 2010).

5th Circuit Holds that the Warrantless Search of the Mattress was Reasonable

Here, the Court of Appeals held that the district court’s finding of reasonable suspicion was correct because of the amount of evidence supporting such a claim. First, law enforcement became suspicious because of the standoff over the locked door. Second, Garcia-Lopez’s odd request to sit back down on the bed while the police conducted the search is suspicious in light of the circumstances. Third, the belief that a suspect could be hiding in a hollowed-out mattress is reasonable given police training and data supporting such a claim. Fourth, the search lasted a total of seven minutes—a reasonable amount of time to conduct a protective sweep. In sum, the Court says it was logical under the specific facts of this case to suspect that Yonari might have been hiding in the mattress. The Court affirms the district court’s judgment—the warrantless search under Garcia-Lopez’s mattress was not unconstitutional under the circumstances.

Feb 22

6

Bait Cars, Backpage, and the Entrapment Defense

By Brandon Barnett | Prostitution, Theft

Bait Cars Backpage Entrapment Texas Our firm has represented many defendants in Fort Worth with cases stemming from a bait car or a Backpage ad. For those of you not familiar with either, let me explain Bait Cars and Backpage.

What is a Bait Car?

A Bait Car is vehicle owned by the police department and equipped with GPS devices and cameras. But, the car looks like any regular car on the street. The police typically place something valuable inside the Bait Car, such as a paint spray rig, and then they park the car (with the keys inside) on the side of the street in a low-income part of town. If someone tries to steal the bait car or the valuables inside, the GPS is triggered, the camera is activated, and the police are alerted. In most cases, the person does not get very far before a patrol car arrives to arrest them for theft.

What is Backpage?

I doubt I can fully explain what Backpage is or how it is used, but in the cases that we see, Backpage is a website (akin to Craigslist) where escorts and ladies of the night advertise their services. Potential Johns can browse the Backpage website to arrange an interlude of momentary love. The police have been using Backpage and arranging for a female officer to meet men at a local motel room posing as a prostitute. With backup officers waiting in the bathroom, the John is arrested for Solicitation of a Prostitute when they arrive to meet the woman/officer they contacted on Backpage.

Is it Entrapment for the Police to Use a Bait Car or to Advertise on Backpage?

We get this question in every Bait Car or Backpage case. To answer the question, we typically explain that fairness and equity are not the same as the legal defense of entrapment. Just because the police conduct doesn’t seem fair or because we think the police are “creating the crimes,” does not mean that it is entrapment.

Section 8.06 of the Texas Penal Code defines the affirmative defense of Entrapment:

“It is a defense to prosecution that the actor engaged in the conduct charged because he was induced to do so by a law enforcement agent using persuasion or other means likely to cause persons to commit the offense.”

The Penal Code goes on to explain that: “Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.”

Therein lies the rub. By using a Bait Car and by advertising escort services on Backpage, the Fort Worth police are “merely affording a person an opportunity to commit an offense,” so under the law, entrapment would not apply to these situations. Don’t get me wrong, we hate Bait Cars and Backpage. We wish the police would use their time and resources toward real crimes, rather than “creating opportunities” for people to commit crimes. Why in the world would we want to create opportunities for people to commit crimes in the first place? That is similar to setting up a keg right outside the AA meeting with a sign for free beer.

Whether we like it or not, entrapment does not apply as an affirmative defense in these cases. Regardless, our attorneys still fight hard to get bait car and Backpage cases dismissed, reduced, or mitigated any way we can. Anecdotally, we’ve seen that a lot of prosecutors don’t like these cases any more than we do. Hopefully, we will see bait cars and Backpage go away soon, but until then, know that Entrapment won’t help you if you choose the wrong car or the wrong escort.

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Feb 18

6

Brass Knuckles, Silencers and Prohibited Weapons in Texas

What Weapons Are Illegal to Possess in Texas?

By Brandon Barnett | Weapons Charges

Prohibited Weapons in Texas | Are Brass Knuckles Illegal in Texas?

Brass Knuckles, Silencers and Prohibited Weapons in Texas Yes, brass knuckles are illegal to possess in Texas. Under Texas’ Open Carry laws, qualified Texans can now carry a handgun in a holster on their waist just like they could in the Wild West. But there are still many other weapons that are illegal to possess or carry in Texas. Section 46.05 of the Texas Penal Code outlines the weapons that are prohibited to possess in Texas. The following is the list of weapons that are prohibited weapons in the state of Texas under Section 46.05:

Explosive weapons*
Machine guns*
Short-barrel firearms*
Firearm silencers*
Brass knuckles
Armor-piercing ammunition
Chemical dispensing devises
Zip guns; and
Tire deflation devices

*However, explosive weapons, machine guns, short-barrel firearms, and firearm silencers will not be considered prohibited weapons if the item is registered in the National Firearms Registration and Transfer Record. There is no such exception for brass knuckles in Texas.

What are the Consequences of Possessing Brass Knuckles or a Prohibited Weapon in Texas? | What is the Punishment for Possession of Silencers?

A person commits a criminal offense if they intentionally or knowingly possess, manufacture, transport, repair, or sell any of the prohibited weapons.

Possession of an explosive weapon, machine gun, short-barrel firearm, firearm silencer, armor-piercing ammunition, chemical dispensing device, or a zip gun is a third degree felony, punishable from 2-10 years in prison and a fine of up to $10,000
The possession of a tire deflation device is a state jail felony, punishable from 6 months to 2 years in a State Jail Facility and a fine of up to $10,000.
Finally, the possession of brass knuckles is a Class A misdemeanor, punishable by 0 – 365 days in county jail and a fine up to $4,000.

Defending Against a Brass Knuckles Charge | What Defenses are Available in a Prohibited Weapons Case?

For persons charged with possession of brass knuckles and other prohibited weapons offenses, there are several defenses that are recognized under the law.

It is a defense if the person’s conduct was in connection to the performance of official duty by the armed forces or National Guard, a governmental law enforcement agency, or a correctional facility.
Also, it is an affirmative defense if the person was dealing with a tire deflation device or armor-piercing ammunition solely for the performance in one of those official duties.
An affirmative defense is also provided to a person dealing with a short-barrel firearm or tire deflation device solely as an antique or curio.
Lastly, it is a defense if the possession of a chemical dispensing device if the person is a commissioned security officer and has received training on the use of the device by a training program provided by the Texas Commission on Law Enforcement or approved by the Texas Private Security Board of the Department of Public Safety.

Prohibited Weapons and Brass Knuckles Defense Attorneys in Fort Worth, Texas

If you are under investigation for a prohibited weapons case or if you have been charged with possession of a prohibited weapon, contact our team of Fort Worth criminal defense attorneys today. We provide a free consultation on every criminal case. As avid hunters with military experience, we are familiar firearms laws and defenses in Texas. Contact us today at (817) 993-9249.

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Feb 12

8

The Statutory Rape Dilemma in Texas

By Luke Williams | Sex Crimes

Statutory Rape Texas Of the various types of criminal cases we defend in Fort Worth, Texas, Statutory Rape can be one of the more frustrating. First, a word of clarification; the term “Statutory Rape” does not actually appear in the Texas Penal Code. What I refer to as Statutory Rape is actually Sexual Assault of a person under 17 years of age (and over 14 years of age) under Section 22.011(a)(2). To understand what I mean about our frustration, consider this example (based on a true story).

The Story of Sam | A Common Statutory Rape Example

A 22 year-old attractive young man, let’s call him Sam, is filling up his car (a BMW) at a gas station when an attractive young woman (Nadia) approaches him and tells him how she admires his car. Nadia then tells Sam that she thinks he is cute and gives Sam her phone number. Nadia is younger than Sam, but he’s not exactly sure how much younger. She is fully developed and is dressed in mature clothing. Over the next few days Nadia and Sam send each other text messages. The messages are flirty at first and then Nadia turns the conversation toward sexual things. Sam is a bit surprised by how forward Nadia is, but he welcomes the banter. Sam then asks Nadia how old she is because he’s always heard the old adage “16’ll get ya 20.” Nadia tells Sam that she is 18 and says that she’ll show him an ID indicating the same when they get together. She then asks Sam to come pick her up in his BMW and take her to a park near her house. Sam agrees.

At the park, Nadia shows Sam her Texas ID, which says that she is indeed 18 years old. Sam and Nadia then engage in consensual sex, after which Sam takes Nadia home. Sometime during the next few days, Nadia’s mother gets ahold of her cell phone and notices the messages between her and Sam. When she confronts Nadia, Nadia admits that she and Sam had sex. Nadia’s mother is furious and calls the police to report Sam for child sexual assault. The police conduct a quick investigation wherein Sam admits to having sex with Nadia. After all, he thought he was doing nothing wrong since she was 18. The police then arrest Sam for statutory rape for having consensual sex with a 16 year-old. Nadia is only 16.

Statutory Rape is a Strict-Liability Offense

Statutory rape (Sexual Assault under Texas Penal Code Section 22.011(a)(2)) is a strict liability offense in Texas. What does this mean? It means that a person is guilty if:

The person is older than 18 years of age; and
The person intentionally or knowingly has sex with someone younger than 17 years of age.

*There is an exception to the law is the actors are less than 3 years apart in age, meaning that if the minor is 16 and the partner is 19 (but not more than 3 years older) then he will not be charged.

Other than the 3-year age gap exception, there are no other exceptions to statutory rape in Texas, hence strict liability. There is no Consent defense; consent is irrelevant for this offense. There is not Mistake of Fact defense when the minor lies about her age and no Mistake of Law defense for when the actors don’t know what the age of consent is in Texas. That is why we call this one of the more frustrating offenses in the Texas Penal Code.

Let’s take Sam’s case. Sam genuinely had no idea that Nadia was only 16. In fact, short of asking for her birth certificate, he showed due diligence in finding out her age before they had sex. He asked about her age and even saw her identification, which we now know was a fake ID. How can the state punish Sam when he tried to do everything right (fornication arguments aside)?

We often encounter this scenario or one like it. Our Fort Worth sexual assault defense attorneys have been able to get charges reduced under these circumstances. Many times, if we are hired before the grand jury considers the case, we will request to make a presentation to the grand jury and highlight these facts, urging the grand jury to no-bill the case and dismiss it. When we are negotiating with prosecutors on these types of cases, we do everything we can to get the charge amended to a different offense that doesn’t require sex offender registration (e.g. Injury to a Child). We have had considerable success in doing this, but it can be fact dependent (and personality dependent).

Sex Offender Registration for Consensual Sex with a Minor

Make no mistake; a conviction for statutory rape requires the offender to register as a sex offender in Texas. In fact, Statutory Rape is a lifetime registration offense. So although it may seem like a minor offense based on an age technicality, it is terribly serious. Further, even if your attorney is able to get your case reduced to a non-sex offense and you do not have to register as a sex offender, the court might still require you to undergo sex offender caseload on probation. You should fight this requirement as the sex offender caseload can be extremely difficult (and frustrating), especially when you never had the intent to commit a crime in the first place.

Free Consultation with a Fort Worth Statutory Rape Defense Attorney

If you are under investigation or have been charged with a Statutory Rape offense, contact our team of Tarrant County criminal defense attorneys. Our attorneys have the knowledge and experience to defend your future and your name with care and compassion. Contact us today at (817) 993-9249.

Feb 10

8

New Law Requires Certain Sex Offenders to Have Identifying Mark on Their Passports

By Brandon Barnett | Sex Crimes

Sex Offender Passport Law On February 8, 2016, President Obama signed International Megan’s Law after it unanimously passed in Congress. International Megan’s Law has been put into place to prevent child exploitation and other sexual crimes through advanced notification of traveling sex offenders. The law will implement new notification requirements for sex offenders as well as require unique identifying marks on sex offender’s passports.

Read the language of the bill here.

Who is Required to Have an Identifying Mark on Their Passport under the International Megan’s Law?

The new law provides two categories of “covered” sexual offenders that will have to have this mark on their passport:

Sex offenders convicted of a sex offense against a minor; and
Any individual that is required to register in the sex offender registry of any jurisdiction in the National Sex Offender Registry because of an offense against a minor.

What Are the New Requirements for Sex Offenders Traveling Abroad?

Covered sex offenders must now provide to the appropriate official any information relating to their intended travel outside of the United States, including anticipated dates and all flight information, address or other contact information while outside of the U.S., purpose for travel, and any other travel-related information. The sex offender must update any changes to this information. If a sex offender knowingly fails to provide such information they shall be fined, imprisoned for not more than 10 years, or both.

What Will Occur When Sex Offenders Decide to Travel Abroad?

The Angel Watch Center will be established to perform activities required by the law to gain information on sex offenders traveling abroad. The Center, not later than 48 hours before scheduled departure, will use all relevant databases, systems and sources of information to:

Determine if individuals traveling abroad are listed on the National Sex Offender Registry
Review lists of individuals who have provided advanced notice of international travel, and
Provide a list of those individuals to the United States Marshals Service’s National Sex Offender Targeting Center (Targeting Center) not in the system to determine compliance with sex offender registration requirements.

When Will Advanced Notice Be Given to Destination Countries?

The Center may give relevant information to an individual’s destination country if the individual was identified as having provided advanced notice of international travel, or if after completing the Center’s activities described above, the Center receives information pertaining to a sex offender from the Targeting Center.

Additionally, the Center may immediately give relevant information to the destination country if the Center becomes aware of a sex offender traveling outside of the U.S. within 24 hours of their intended travel and simultaneously completes the Center’s activities, or if within 24 hours of intended travel, the Center has not yet received the information pertaining to the sex offender from the Targeting Center.

What is the Process for Issuing Passports to Sex Offenders?

The Secretary of State cannot issue a passport to a covered sex offender unless the passport contains a unique identifier. Further, a passport previously issued without an identifier may be revoked. The unique identifier has not been determined yet.

The Secretary of State may reissue a passport without a unique identifier if an individual reapplies for a passport and the Angel Watch Center provides written determination that the individual is no longer required to register as a covered sex offender.

What About Sex Offenders Entering Into the United States?

Upon receiving notification that an individual who has committed an offense of a sexual nature is attempting to enter the United States, the Center will immediately share all of the information on the individual with the Department of Justice and other Federal, State, and local entities as appropriate.

Conclusion

Under this new law, sex offenders who have committed offenses pertaining to a minor child will now be required to give notification of any intended international travel and will likely have to have a passport with a unique identifying mark. Sex offenders who already have passports should be prepared for reissuance of one with the identifying mark. This mark will alert officials that this individual has committed an offense against a child. Further, destination countries will be notified of any relevant information on the sex offender. It is important to stay up to date on the requirements and implications set forth by International Megan’s Law to avoid any unintentional violations of the new requirements.

The law is still new and right now there are more questions than answers. Interested parties should be diligent to stay informed as the implementation of this law is rolled out.

Feb 09

3

Military Defendants in Texas Military Veteran Attorney

3 Things To Avoid When Representing a Military Defendant

By Brandon Barnett | Veterans

Criminal Defense Attorneys Defending a Military Defendant Must Be Careful Not to Make These Mistakes

Military Defendants in Texas Military Veteran Attorney Texas has its fair share of military bases and military servicemembers. Sometimes those servicemembers get into trouble, be it for DWI, Domestic Violence, or other criminal offenses. The military defendant, who usually has no criminal history, is not savvy with the Texas criminal justice system and must rely solely on the criminal defense attorney he selects to represent them. Below are some of the mistakes that I’ve seen when a non-military criminal defense attorney represents a military defendant. These are my opinions and should not be attributable to the United States Marine Corps or any government agency.

Mistake #1 – Allowing Your Client to Wear His Uniform to Court

You should not ask or allow your military criminal client to wear his service uniform to court. I understand that you may think his uniform will win him favor with the judge or the prosecutor, but it doesn’t. Anecdotally, I’ve spoken with several judges and prosecutors on this issue and it never inures to your client’s benefit. Whether you believe it or not, the general public (including judge and prosecutors) holds our military to a higher standard than the average defendant. Rightly or wrongly, they expect more from them and don’t like to see them as a criminal defendant. By allowing your client to wear his uniform, you skyline him and lower our Armed Forces in public esteem in the process. Unless it is an absolute emergency and his uniform is the only thing keeping your client from appearing in court naked, please ask him to wear the same thing your other clients wear to court. A court setting for a criminal case is the last place your client wants to be noticed in his dress uniform.

Mistake #2 – Not Considering the Military Consequences of a Disposition

When representing military servicemember, you need to ask and learn about the military consequences of the criminal case. Some criminal case dispositions trigger mandatory reporting to the member’s chain of command, which could (and often does) result in negative consequences in the military. Other types of cases (e.g. Domestic Violence) can result in your client losing the right to possess a firearm, which makes them non-deployable and virtually useless to their command. If your client does not know what his obligations are to his Service, seek out another attorney with military experience and ask them. DO NOT CALL YOUR CLIENT’S COMMAND OR THE BASE LEGAL COUNSEL. There is no privilege with base personnel and they will often be required to report your call to your client’s commander.

Mistake #3 – Not Requesting Your Client’s Military Record (OMPF)

Every servicemember has an OMPF or Official Military Personnel File. The OMPF will tell you everything you need to know about your client’s service. It will show you awards, deployments, performance ratings, disciplinary actions, and more. If you plan on using your client’s service as a positive mark in his favor, you should do your research to make sure that his service has indeed been positive. Your client may have below average ratings, several minor disciplinary infractions, and a Letters of Reprimand in his file. Or he may have combat awards, Letter of Appreciation, and early promotion recommendations. A savvy prosecutor will know all of this. The military shares information with the DA when requested. So before you drape yourself and your client in the flag, you should probably learn a little more about how “honorable” his service has been.

Military Veteran Representing Military Defendants in Texas State Courts

Brandon Barnett is a criminal defense attorney in Fort Worth, Texas with Barnett Howard & Williams PLLC. He is a veteran of the US Marine Corps and Operation Iraqi Freedom. He currently serves a reserve Military Judge for special and general courts-martial. Mr. Barnett teaches Military Justice at Texas A&M University School of Law in Fort Worth. For a free consultation of your Texas criminal case or to consult with Mr. Barnett about the potential military consequences of a criminal disposition, contact him at (817) 993-9249.

Feb 04

4

Who Qualifies as a “Victim” Under the Mandatory Victims Restitution Act?

By Brandon Barnett | Fraud

Definition of “Victim” under the MVRA, leaves HUD out in the Cold | Who Qualifies for Relief Under the Mandatory Victims Restitution Act?

United States v. Benns (5th Circuit, 2016) is a case regarding the Mandatory Victims Restitution Act (MVRA). In this case, the US Court of Appeals for the Fifth Circuit held that HUD is not a victim of the defendant’s crime, even though the HUD was out a considerable amount of money after defendant forged a credit application. Read more about USA v. Benns below.

Anxious Couple Seeks Help for Mortgage Default

Desperate for relief from a mortgage in arrears, Michael and Brenda Arnold conveyed ownership rights of their Arlington home to Rickey Benns. At the time of the conveyance, Benns agreed to rent the home and pay the mortgage from the profits made from future tenants. The mortgage loan, held by Bank of America and insured by the United States Department of Housing and Urban Development (“HUD”), remained in the Arnold family’s name. Unfortunately, Benns reneged on his agreement and failed to pay off the mortgage, triggering foreclosure proceedings against the Arnolds, unbeknownst to them.

Looming Foreclosure Leads to Desperate Acts of Forgery

In an attempt to prevent foreclosure of the property, Benns secretly tried to refinance the property. Benns forged Arnolds’s signatures on loan modification documents and used a false pay stub to trick the bank into believing the Arnolds were creditworthy and still owned the property. After the application was denied by the bank, the property was eventually foreclosed on and sold below market value. Because Bank of America’s mortgage was insured by HUD, HUD paid the bank $54,906.59—the difference between what HUD paid Bank of America following foreclosure and the later sale price of the property.

A Plea is Entered and Restitution is Ordered

Benns plead guilty to one count of making false statement on a credit application, a violation of 18 U.S.C. § 1014. Upon entering the guilty plea, Benns “accepted the accuracy of a factual resume prepared by the government…author[izing] restitution to the victims of the community…includ[ing] restitution arising from all relevant conduct, not limited to that arising from the offense of conviction alone.” Benns was sentenced to twenty-seven months imprisonment, five years of supervised release, and ordered to pay restitution, totaling $544,602.42, under the federal Mandatory Victims Restitution Act (“MVRA”). Benns appealed to the United States Court of Appeals for the Fifth Circuit, arguing that HUD was not a victim of his convicted offense.

What is the Mandatory Victims Restitution Act (“MVRA”)?

The MVRA requires district courts to order restitution payments to crime victims during sentencing. 18 U.S.C. § 3663A. Under federal law, a victim is defined as, “a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered.” Id. Typically, restitution is limited to losses arising from underlying conduct of a defendant’s offense of conviction. Hughley v. United States, 495 U.S. 411, 412-13 (1990); United States v. Espinoza, 677 F.3d 730, 732 (5th Cir. 2012); United States v. Maturin, 488 F.3d 657, 660-61 (5th Cir. 2007). To be a considered a victim under the MVRA, a person or organization must “suffer a foreseeable loss as a result of the conduct underlying the convicted offense.” Id. The government must establish, by a preponderance of the evidence, direct or proximate causation between the conduct underlying the offense and the actual loss suffered by the victim. United States v. Reese, 998 F.2d 1275, 1282 (5th Cir. 1993).

The Big Issue: Is HUD really a victim of Benns’s forgery scheme?

The United States Court of Appeals for the Fifth Circuit must determine whether HUD was a victim of Benn’s convicted offense. If the Court finds that HUD was a victim, then HUD will receive restitution under the MVRA. If the Court finds that HUD was not a victim, then Benns’ restitution award, which was imposed by the district court, could be amended or vacated altogether.

The Court of Appeals for the Fifth Circuit Weighs In with a Surprising Twist

Here, the Court weighs the argument made by the government against the facts of the case. The government argues that HUD’s loss was a direct result of Benn’s false credit application because the filing of the application itself delayed the foreclosure, which resulted in HUD selling the property at a loss. However, the Court states that the government did not produce evidence that the false credit application resulted in a delay, or that such a delay resulted in a greater loss for HUD than if HUD had sold the property any sooner than it actually did. The Court holds, because of the lack of evidence connecting the false credit application with the loss incurred by HUD, HUD is not to be considered a “victim” under the MVRA and, accordingly, cannot receive an award of restitution. “Benns was indicted and pleaded guilty to one count of filing a false credit application…it therefore does not follow that the behavior underlying Benn’s offense was the cause of HUD’s loss.”

Restitution could have only been awarded had the government established a direct or proximate causation between Benn’s false credit application and HUD’s loss when HUD sold the property at a foreclosure auction. The Court says the government failed to do so. Even though HUD was out $54,906.59, the Court does not consider HUD to be a victim of Benn’s convicted offense and vacates the restitution award.

Feb 02

4

Pointers on Being a Judge Fort Worth Criminal Defense

7 Pointers on Being a Judge

By Brandon Barnett | Ethics

Some Words of Wisdom From the Top Military Appellate Bench

Pointers on Being a Judge Fort Worth Criminal Defense This week I am taking a break from my Fort Worth criminal defense cases to attend a Continuing Legal Eduction at the Air Force Judge Advocate General’s School at Maxwell Air Force Base in Montgomery, Alabama. I am a reserve military judge in the Marine Corps and this is one of the annual training requirements for military judges. In one of our periods of instruction, the Chief Judge from the Court of Appeals for the Armed Forces (the highest court in the military justice system) gave us seven helpful tips on Being a Judge. I found them to be simple yet incredibly insightful. As you read these, you’ll notice that they not only apply to military judges, but state judges, prosecutors, and criminal defense lawyers as well.

Be Kind
Be Patient
Be Dignified
Don’t Take Yourself Too Seriously
Don’t Be Dismayed When You are Reversed* (*or overruled for the trial lawyers)
Remember That There are No Unimportant Cases
Don’t Forget Your Common Sense

Simple, insightful, and easy to apply to our practice every day. We would all do well to observe these tips as often as possible. Practicing criminal defense in Fort Worth, I am fortunate to observe my colleagues, adversaries, and judges applying these pointers all the time. But sometimes there are cases or opposing counsel that tempt us to violate some of these rules (especially rules 1-3). I am thankful for the reminders and will continue to apply them to my practice both on the bench in the military and in the courtroom in Fort Worth.

Some of my other favorite quotes that tie in with this advice:

“Be polite, be professional, but have a plan to kill everybody you meet.”

-General James “Mad Dog” Mattis, USMC (Retired)

“All you have to do is follow three simple rules. One, never underestimate your opponent. Expect the unexpected. Two take it outside. Never start anything inside the bar unless it’s absolutely necessary. And three, be nice.”

-Dalton (Patrick Swayze), Roadhouse

Jan 27

7

12.44(a) and 12.44(b) State Jail Felony Reduction

Explaining Section 12.44 | Felony Reduced to Misdemeanor

By Jason Howard | Sentencing

What is Section 12.44(a) and Why Does it Matter to the State Jail Felony Defendant?

1244(a) and 1244(b) State Jail Felony Reduction Our Fort Worth criminal defense attorneys are routinely asked by family and friends of clients charged with State Jail Felony offenses about 12.44(a) and 12.44(b). Although it is sometimes elusive, our attorneys have had success in reducing State Jail Felony cases under Section 12.44. This article will discuss Sections 12.44(a) and 12.44(b) of the Texas Penal Code and explain why they are important to the State Jail Felony defendant.

State Jail Felony Punishment in Texas

In accordance with Section 12.35 of the Texas Penal Code, the confinement range for a State Jail Felony in Texas:

From 180 days to 2 years in a State Jail facility.

Any resulting conviction under Section 12.35 is considered a felony conviction for most purposes.

When a person is sentenced to confinement for a State Jail Felony offense, the sentence is served day for day. Aside from State Jail Diligent Participation Credit, a state jail sentence will last for every single day of the term, unlike a prison sentence, which may be cut short for parole or good time. For example, if someone receives a sentence for 12 months in state jail, that person will serve 365 actual days on the sentence.

What about 12.44?

Since parole and good time are not options for state jail time, Section 12.35 requires the defendant to serve that sentence day for day. However, section 12.44 of the Texas Penal Code allows for a reduction of the above consequences for someone charged with a state jail felony.

Sec. 12.44. REDUCTION OF STATE JAIL FELONY PUNISHMENT TO MISDEMEANOR PUNISHMENT.
(a) A court may punish a defendant who is convicted of a state jail felony by imposing the confinement permissible as punishment for a Class A misdemeanor if, after considering the gravity and circumstances of the felony committed and the history, character, and rehabilitative needs of the defendant, the court finds that such punishment would best serve the ends of justice.
(b) At the request of the prosecuting attorney, the court may authorize the prosecuting attorney to prosecute a state jail felony as a Class A misdemeanor.

Please note section 12.44 has two subsections. The differences between them are significant.

What is the Difference Between 12.44(a) and 12.44(b)?

12.44(a)

Under 12.44(a), at the discretion of the court, a state jail felony can be punished as a Class A misdemeanor. If convicted, the conviction results in a felony conviction. However, if sentenced to confinement, the defendant is allowed to serve time the same as if he were convicted of a Class A misdemeanor. That means the defendant can serve his time in the local county jail as opposed to a State Jail facility. That also may allow the defendant to have access to good time offered by the county jail in his jurisdiction (e.g. In Tarrant County, this could result in 2 for 1 credit or 3 for 1 if the defendant is a trustee).

12.44(b)

Under 12.44(b), at the discretion of the prosecutor, a state jail felony can be converted to a Class A misdemeanor. If convicted, the conviction results in a misdemeanor conviction. If incarcerated, the defendant would serve his time in the county jail the same as described in the above paragraph.
Note: Both 12.44(a) and (b) require the sentence to be within the penalty range of a Class A misdemeanor (0-365 days confinement and a fine, if any, not to exceed $4,000).

Probation Under 12.44

Straight Probation and Deferred Adjudication probation are also allowed under both 12.44(a) and 12.44(b). Straight probation would result in a conviction for a felony if reduced under 12.44(a) and a conviction for a misdemeanor if reduced under 12.44(b). If you receive deferred adjudication probation under either a 12.44(a) or 12.44(b) reduction, a conviction can be avoided altogether if the probation is successfully completed. Any future probation revocation proceedings by the state would be limited at sentencing to the misdemeanor punishment provided by section 12.44 as discussed in the paragraphs above.

Note: A probated sentence under 12.44 cannot exceed 2 years – the maximum time allowed for a probated sentence for a Class A misdemeanor.

State Jail Felony Defense Attorneys, Fort Worth, Texas

Depending on the circumstances, if you or someone you know is charged with a state jail felony in Texas, Section 12.44 may be applicable. There are many factors that the prosecutor or judge will consider if your attorney requests a 12.44 reduction. It is important to discuss your specific circumstances with your attorney. Please feel free to contact Barnett Howard & Williams PLLC if you have questions.