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Jan 27
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12.44(a) and 12.44(b) State Jail Felony Reduction

Explaining Section 12.44 | Felony Reduced to Misdemeanor

By Sentencing

Texas Court Excludes BAC Evidence From Unqualified DWI Expert

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.

Jan 25
Love3
Cell Tower Records Criminal Defense

Murder Case Hinges on the Privacy of Cell Tower Records

By Murder

Was it an Unlawful Warrantless Search Under the 4th Amendment for the DA to Obtain Cell Tower Records From a Third Party and Use Them Against a Defendant Charged with Murder?

Ford v. State (2015) | San Antonio Murder Mystery

JCell Tower Records Criminal Defenseon Ford and Dana Edwards dated off and on for two years in the small town of Alamo Heights, Texas. After a long break-up, the former couple saw each other at a friend’s New Year’s Eve party. The group of friends drank heavily and played “Apples to Apples,” an interactive game that required the participants to reveal their thoughts on personal topics. During the game, the subject of marriage came up and Ford was singled out about his on-again-off-again relationship with Edwards. Angry, Ford left the party before everyone else.

The next day, Edwards’s parents were expecting her in Fredericksburg, but she never showed. Worried, her parents drove to her condo, where they found her dead. Because she sustained lacerations and trauma to her head, the police opened up a murder investigation.

The State Gathers Evidence

On January 2nd, Ford volunteered to give a statement. In his statement, Ford said he left the party around 11:30 pm, went home, and fell asleep. Ford said that his new cell phone had been in his possession the entire night.

The investigators obtained video footage of the streets bordering Edwards’s condo, footage that conflicted with Ford’s official statement. At 11:24 pm, the camera captured a white SUV, similar to Ford’s vehicle, turn into the victim’s condo complex. At 1:00 am, Edwards’s car entered the complex. At 3:16 am, with the headlamps turned off, the white SUV exited the complex. No one could definitively say the white SUV belonged to Ford, as the license plate and registration stickers could not be determined because of the quality of the video.

A week later, the San Antonio District Attorney’s Office filed an application under Article 18.21 § 5(a) of the Texas Code of Criminal Procedure, and in compliance with Communications Act, to obtain Ford’s historical cell-site-location records from AT&T Wireless.

Ford’s Case Goes to Trial

At trial, a radio network engineer from AT&T Wireless testified about the records. The engineer said that AT&T can tell where a cell phone is located by examining the sector information. He explained, “when a person sets up a call, receives a call, or sends a text, the person does so in communication with…sectors in the cell-phone network…[which] enables [AT&T] to look up the records for a particular phone number…determin[ing] [the] cell phone’s proximity to a cell…tower.” Ford v. State, 444 S.W.3d 171, 190 (Tex. App.—San Antonio 2014). This is also true when the phone is not being actively used, as “unanswered texts and calls…automatic downloads….cause the [phone] to…ping the network to alert the network that the [phone] is in a particular…area.” Id.

According to AT&T, Ford’s cell records indicate that the numerous pings place Ford at the party, then at the victim’s condo complex and finally, at his home. The “ping” time frame also matches the timestamps from the camera footage for the unknown white SUV. Id.

The jury found Ford guilty of murder, sentencing him to forty years in prison. Ford appealed, and the court of appeals affirmed the verdict and sentence, relying upon the third party doctrine. Justice Chapa dissented in the court of appeals case, stating, in a nutshell, that Ford retained a reasonable expectation of privacy in his physical movements and location; he did not voluntarily surrender his expectation of privacy; and because the State did not secure a warrant before obtaining the records, Ford’s Fourth Amendment rights were violated. Ford appealed to the Criminal Court of Appeals (“CCA”).

The Big Issue | Privacy of Cell Tower Records

Did the State of Texas’ warrantless acquisition of historical cell-site-location information—recorded by a 3rd party cell-phone service provider—violate the Fourth Amendment? Did Ford have a reasonable expectation of privacy in his movements and location?

What does the law say about the expectation of privacy in cell phone records? What is the Third Party Doctrine?

The Fourth Amendment Guarantees , “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. CONST. amend. IV. A person may appeal a verdict under a privacy theory if (1) he has a subjective expectation of privacy in the place or object searched, and (2) society…recognize[s] that expectation as reasonable. State v. Granville, 423 S.W.3d, 399, 405 (Tex. Crim. App. 2014).

The Third Party Doctrine allows for acquisition of information revealed to a third party (such as a cell phone company or a bank). Case law reflecting this doctrine suggests that information that must be disclosed [in the normal course of business] for the phone company to provide the requested service, is not off-limits to law enforcement and is not a violation of the Fourth Amendment. However, courts across the United States remain divided on this issue.

The Texas Court of Criminal Appeals Weighs in on Cell Phone Records and the Third Party Doctrine

Here, the CCA says that the DA’s office did not violate Ford’s Fourth Amendment rights because Ford had no legitimate expectation of privacy in records held by AT&T, records kept in the normal course of business, pointing to his location and movements in the past. AT&T uses the records for its own business purposes to improve network functionality. Moreover, phone service providers are required, by the FCC to locate a cell phone when a 911 call is placed. In re Application (Fifth Circuit), 724 F.3d at 611-12. Therefore, “The type of non-content evidence, lawfully created by a third-party telephone company for legitimate business purposes, does not belong to defendant[s], even if it concerns [a defendant].” United States v. Davis, 785 F.3d 498, 511 (11th Cir. 2015) . Acknowledging that Fourth Amendment claims may survive with in the case of GPS devices, or in long-term monitoring of individuals, the CCA affirms, holding, “In the circumstances [of this case], we do not see a jurisprudential reason to stray from the third-party doctrine.”

What could Ford v. State mean for you?

Generally speaking, your cell phone records, by way of the third-party doctrine, are subject to review by law enforcement and could be used against you in criminal proceedings in Texas. The CCA is saying that a reasonable person does not have a reasonable expectation of privacy in his or her cell tower records.

Jan 24
Love4
Child Erotica Defense Attorney Fort Worth

Child Erotica is Not Probable Cause for Possession of Child Pornography

By Computer Crimes

10th Circuit Holds that Possession of Child Erotica Does Not Give Rise to the Likelihood of Possession of Child Pornography

Child Erotica Defense Attorney Fort WorthPaul Edwards was charged with possession of child pornography (which is illegal) after officers executed a search warrant based on his possession of child erotica (which is not illegal). The search of Edwards’s home resulted in the discovery of thousands of images and videos of child pornography. Edwards filed a motion to suppress the images on the grounds that the affidavit failed to prove his possession of child erotica amounted to probable cause to believe that he also possessed child pornography. The court denied this motion and Edwards entered a conditional guilty plea, reserving his right to appeal the denial, and was sentenced to 63 months in jail followed by 7 years of supervised release.

Full Court Opinion: United States v. Edwards (USCA 10th Circuit, 2015)

The Probable Cause Affidavit that Led to the Search and Arrest

Edwards was identified by agents that were investigating a website for individuals suspected of child exploitation as an internet user that had shared 715 images of the same prepubescent girl, approximately 10 years old. In some of the photos the girl was clothed and in others she was “scantily clad.” The government acknowledged that the agents did not observe Edwards posting or viewing child pornography. Instead, the affidavit described the photos as child erotica and only provided evidence that Edwards possessed legal child erotica. The officer explained in the affidavit that those who collect child pornography are likely to collect child erotica but made no distinction that a possessor of child erotica is highly likely to also possess child porn. This opinion was used by the magistrate in issuing the warrant and again by the trial court in denying Edwards’s motion to suppress.

The Legal Significance: Child Erotica vs. Child Pornography

While it is legal to possess child erotica, it is illegal to possess child pornography. Here, child erotica is defined in the affidavit as “materials or items that are sexually arousing to persons having a sexual interest in minors but that are not, in and of themselves, obscene or that do not necessarily depict minors in sexually explicit poses or positions.” The affidavit further explains that child erotica “includes things such as fantasy writings, letters, diaries, books, sexual aids, souvenirs, toys, costumes, drawings, cartoons and non-sexually explicit visual images.”

Child pornography is any visual depiction, whether authentic or computer generated, of a minor engaging in sexually explicit conduct. 18 U.S.C. §2256(8). To cross the line from legal child erotica to prohibited child pornography, there must be nudity that displays the genital area of the child and that display must also be lascivious. United States v. Horn, 187 F.3d 781. A photo is lascivious if it focuses on the genital area of a child and the apparent purpose of the photo is to arouse sexual desire. United States v. Kemmerling, 285 F3d 644.

Participation in Legal Conduct Does Not Prove Participation in Criminal Conduct

In many situations courts are hesitant to presume that defendants are more likely to engage in certain illegal activities based on their participation in a certain legal activity, as they should be. Similarly, here, the appellate court found that there is no sufficient connection between the posting of child erotica, a legal activity, and the possession of child porn that establishes probable cause to believe that child porn will be found in the home of the person who posted child erotica.

While some courts have found that the possession of child erotica is one factor that can be used to support probable cause of the possession of child porn, no court has found that one factor to be probative in making a probable cause determination. Instead, the courts look to the totality of the circumstances surrounding defendant’s said possession of child erotica to prove that such circumstances amount to the high probability that defendant is also in possession of child pornography.

The appellate court found that the affidavit lacked information based on the officer’s experience about the type of materials possessors of child erotica are highly likely to maintain and lacks any evidence to show that Edwards was a collector of child pornography. Further, the court determined that the information in the affidavit failed to provide a “substantial basis” to find probable cause that child porn would be found in Edward’s home.

Ultimately, this case is the perfect example that mere possession of child erotica cannot be used to prove that a defendant has committed the offense of possession of child pornography.

Jan 20
Love1
Paxton Fantasy Football Illegal

Texas Attorney General Says Fantasy Football Constitutes Illegal Gambling in Texas

By Gambling

Is Fantasy Football Illegal in Texas? AG Paxton Says “Yes.”

Paxton Fantasy Football IllegalYesterday, Texas Attorney General Ken Paxton issued an opinion stating that participating in daily fantasy football websites is illegal gambling in Texas. The opinion specifically states that participating in daily fantasy sports leagues is illegal gambling under section 47.02 of the Texas Penal Code.

Section 47.02 of the Texas Penal Code states that a person commits an offense if he or she makes a bet on the partial or final result of a game or contest or on the performance of a participant in a game or contest.

The key term that the Attorney General focused on in the opinion is the term “bet.” A “bet” is defined as an agreement to win or lose something of value solely or partially by chance. Texas Penal Code 47.01(1). Attorney General Paxton specifically stated that because the outcome of games in daily fantasy sports leagues depends partially on chance, an individual’s payment of a fee to participate in such activities is a “bet.”

Under 47.02 of the Texas Penal Code, gambling is a Class C misdemeanor offense, wherein offenders could face a fine of up to $500.00. Gambling under Section 47.02 of the Texas Penal Code is a fine-only offense that does not involve jail time as a punishment.

Can I keep playing daily fantasy sports?

It’s up to you. If you continue to play daily fantasy sports in Texas, you would be participating in illegal gambling as the law is interpreted by Attorney General Ken Paxton. Again, according to the attorney general, participating in daily fantasy football league sites constitutes a Class c misdemeanor.

Opponents of the AG’s opinion argue that daily fantasy sports involves skill to really win.  Mark Cuban, owner of the Dallas Mavericks, is one of the outspoken people who disagrees with the Paxton opinion.  He believes that just about everything in life and business involves chance and could be considered gambling as Paxton defines it.

What is important to remember though is that the attorney general cannot and will not be responsible for the actual investigation or prosecution of these cases. Local law enforcement and local district attorneys would be the responsible agencies for enforcing this law. Investigation of these cases would have to be tedious and would require a significant amount of resources in order to prosecute the lowest level of offense under Texas law. Whether the State would go to the extent needed to prove these types of gambling charges beyond a reasonable doubt is yet to be seen.

The law does allow a defense to prosecution for gambling if the person engages in gambling in a private place, no person receives any economic benefit other than personal winnings; and except for the advantage of skill or luck, the risks of losing and the chances of winning are the same for all participants.

What does this Fantasy Sports AG opinion mean for the average Texan?

The opinion means that, according to the State’s highest-ranking attorney, participating in daily fantasy sports leagues is illegal gambling. Now, it’s up to each local jurisdiction’s law enforcement agencies, prosecutors and courts to decide if prosecuting these cases is a priority or not. Law enforcement uses discretion on a daily basis as to what crimes and actions they should focus the bulk of their enforcement actions on. It’s unknown at this time if or whether law enforcement will spend the resources necessary to prosecute these cases.

Hopefully, if you choose to continue to play daily fantasy football, you are good at it and can cover your potential fines. We’ll have to wait and see which, if any, jurisdictions choose to enforce this opinion. Based on the resources it would take, I seriously doubt that we’ll see any citations written for this. Good luck out there!

Read the Texas AG Paxton Fantasy Football Opinion

Jan 15
Love2
Theft By Deception Texas

Justice of the Peace Convicted of Theft By Deception for Use of Airline Voucher

By Theft

Theft By Deception?  County Official Uses Airline Flight Voucher (Purchased with Government Charge Card) to Buy a Plane Ticket for his Son.

Theft By Deception TexasIn Fernandez v. State, the Texas Court of Criminal Appeals considered the case of a Val Verde County Justice of the Peace who used an airline voucher for a flight that was unrelated to a government purpose.  The CCA discusses the offense of Theft by Deception in Texas, explaining what it means and what it doesn’t mean.  It is an interesting case because it seems so petty – the amount was only 300 dollars and some change.  Why didn’t the JP simply purchase a new ticket for his son?  Read more.

Travel Plans Arranged

James Fernandez was charged with “theft by deception” in 2012. Fernandez, serving as a Justice of the Peace in Val Verde County, wanted to travel to Orlando, Florida for a work-related conference in June of that year. After obtaining permission to travel to the conference and to use his government-issued credit card for airfare, Fernandez asked his office clerk to book the flight. The clerk made flight arrangements with Southwest Airlines.

Travel Plans Cancelled

Just before the conference, Fernandez became ill and cancelled his flight itinerary. Per Southwest Airlines’ refund policy, the airline issued a “refund-voucher” to Fernandez, in his name, valid for travel until February 2013. The refund-voucher was valued at $381.60, a dollar-for-dollar match to the amount originally paid for the ticket to Orlando.

In August, Fernandez asked his office clerk for the flight information from the cancelled Orlando trip. Once the clerk located the information, Fernandez told the clerk to give the flight reservation number to his son, Fernandez Jr.. The clerk complied.

Routine Audit Leads to an Investigation

During a routine review of the County’s flight budget, the County Auditor contacted Southwest, attempting to get a full refund of the flight. At that time the Auditor learned that the refund-voucher from the Orlando ticket had been used by Fernandez for a flight to Phoenix, Arizona in August. The auditor also learned that Phoenix flight incurred additional fees, fees that were not paid for by the county. Relying on Val Verde County’s policy that prohibits the use of county property for personal use, the auditor reported the transaction, triggering an investigation by the Attorney General.

Too Late to Repay, Fernandez Goes to Court

Soon after, Fernandez tried to pay for the airline voucher, but the auditor refused to accept his payment. Fernandez was charged with “theft by a public servant by way of deception.” At trial, Fernandez Jr. testified that his father had intended to repay the county, nevertheless, Fernandez was convicted—a conviction upheld by the Fourth Court of Appeals. Fernandez appealed to the Court of Criminal Appeals (“CCA”) for relief, arguing that State failed to prove he induced consent by way of deception at the time he misappropriated the government’s refund-voucher. The CCA must determine whether Fernandez committed “theft by deception” when he purchased online airfare for government-related travel with a government credit card, but canceled, using the refund-voucher for personal travel without “correcting the impression” that the refund-voucher would be used for future government-related travel.

What is Theft by Deception Under Texas Law?

Texas law defines theft as, “the unlawful appropriation of property with the intent to deprive the owner of the property.” Tex. Penal Code § 31.03(a). “Appropriation is unlawful if it is without the owner [of the property’s] effective consent.” Id. § 31.03(b)(1). Consent is defined as, “assent in fact, whether express or apparent,” and is “not effective if it is induced by deception or coercion.” Id. § 1.07(a)(11); §31.01(3)(A). Deception means, “failing to correct a false impression…fact that is likely to affect the judgment of another in the transaction, that the actor previously created…by words or conduct, and that the actor does not now believe to be true.” Id. § 31.01(1)(B). The burden of proof is on the State to prove “that the owner of the misappropriated property was induced to consent to its transfer because of a deceptive act of the defendant.” Geick v. State, 349 S.W.3d 542, 548 (Tex. Crim. App. 2011); Daugherty v. State, 387 S.W.3d 654, 659 (Tex. Crim. App. 2013).

The CCA Decides

Here, the CCA explains that “consent” is a key issue—that the initial consent Fernandez received from his office to use the government credit card to make the flight reservation was not the consent that is the basis of the conviction. Rather, it was the consent Fernandez obtained when he asked his clerk to send the information to his son, “because without the voucher number, Fernandez would have been unable to access the [information]” to book the flight to Phoenix. Further, the county, by way of its agent [the clerk], assented to the refund-voucher’s use because the agent gave the cancelled flight information to Fernandez and his son in August.

Moreover, the CCA says that the consent was obtained through deception. Fernandez established with his office that he would be attending a work-related conference in June, thus creating the impression that county funds were being used for a work-related purpose. Once the flight was cancelled, the refund-voucher that was issued is to be considered the county’s property, “just as the ticket to Orlando had been [considered county property].” Fernandez failed to correct the impression that he was using the ticket/refund-voucher for work-related travel, instead using the refund-voucher for personal travel without telling anyone in the Val Verde County’s business office. “By remaining silent, [Fernandez] left intact the impression he created…that the [refund-voucher] would be used for county-approved travel.” The CCA affirmed the decisions rendered by the trial and appeals courts.

Judge Johnson filed a concurring opinion that simplified the majority’s opinion. “When [Fernandez] failed to…tell the county….that he had not used the original ticket…and [did not] surrender the voucher, [Fernandez] failed to correct the impression of appropriate travel on county business that he had previously created.” This alone was the deception that is required to support the conviction.

_______

Barnett Howard & Williams PLLC is a criminal defense law firm in Fort Worth, Texas.  Our criminal defense attorneys handle all felony and misdemeanor offenses in Tarrant County and surrounding areas.  For more information about our attorneys, visit our Firm Profile page.

Jan 11
Love1
Making a Murderer | Fort Worth Criminal Defense Attorney

Making a Murderer: The Power of the Jury

By Jury Trial

Can a Single Juror Make a Difference? Ask Steven Avery.

Making a Murderer | Fort Worth Criminal Defense AttorneyWe, like many of you, have been sucked into the sad, frustrating, and very real tale of the murder trial of Steven Avery in Manitowoc County, Wisconsin brought forth in the Netflix documentary “Making a Murderer.” While much has been made of Steven Avery’s guilt or innocence, the coerced confession from his nephew Brandon Dassey (see full confession transcript HERE), and the possible foul play of the law enforcement in Manitowoc County, one major key to the case has been largely overlooked – the power of the jury. Without a guilty verdict from the jury, there is no frenzy over a viral documentary and certainly Steven Avery is a free man.

Recently, the filmmakers have reported to the press that a member of the jury now admits that he or she believed Avery was not guilty. This juror, wishing to remain anonymous, claims to have changed their vote to “guilty” after succumbing to fear and pressure. In reality, the juror believed, and still believes, that Avery was framed for murder. Speaking to the filmmakers, the juror said “I’m the reason the justice system failed.” Is the juror right?

Criminal Verdicts in Texas Must Be Unanimous. Every Juror Vote Counts.

Jury deliberations are secret, so only the jurors themselves could ever say for sure exactly why they arrive at a certain verdict for a case. In a criminal case, a jury verdict must be unanimous, which ensures that each juror’s vote is important and not diluted in a simple majority. If this one juror had summoned the courage to stay true to their “not guilty” vote, it would have caused a mistrial. A mistrial forces authorities to make the difficult decision of whether or not to retry the accused. Who knows what would have happened in a hypothetical second trial of Steven Avery.

For years, this juror has shouldered guilt from this trial, proving that the decisions juries are asked to make are indeed difficult ones. The next time you are on a jury, take a lesson from this case. Stand up for what you believe in and refuse to cave to pressure or fear. Do not be overpowered by the person with the loudest voice in the jury room. Remember, your vote holds the power of incarceration or freedom.

I hope we didn’t spoil the documentary for you, but if you haven’t watched it, this post does not even scratch the surface of the things you will see in this series.  We suggest you watch it and consider the case for yourself.  If nothing else, you’ll see that there are two sides to every story and you’ll understand to importance of having a fair and conscientious jury in a criminal trial.

Jan 05
Love3
Federal Prosecutor Tips

5 Things I Wish Defense Attorneys Knew in Federal Criminal Cases

By Criminal Defense

Guest Blog Post: Former Federal Prosecutor Offers Tips for Defense Attorneys in Federal Criminal Cases

Former Assistant United States Attorney and long-time U.S. Marine prosecutor Glen Hines provides some tips regarding Federal criminal cases from his time as an AUSA in Arkansas.  The views contained in this post are his own and not those of the Department of Justice, the United States Marine Corps or any other government organization.

Below are the top five unsolicited practice points for defense attorneys practicing in the Federal justice system:

Number 1 Icon

Read up on the U.S. Attorneys’ Manual.

Although this is non-binding guidance to AUSAs, they rarely deviate from it. Be aware of the Principles of Federal Prosecution, at Section 9-27.000, because you can use these to get your client a better outcome in some cases. This will give you a good idea of DOJ policy on issues like charging decisions, non-criminal alternatives to prosecution, plea agreements and their provisions, and cooperation issues. These policies form the AUSA’s mindset to any federal case. If the AUSA on your case deviates from the USAM to the detriment of your client, ask him or her why they are doing it.

Number 2 icon

Get out ahead of the government’s case.

This is easier said than done in practice; unfortunately, by the time most of your clients get around to retaining you, they have likely already been indicted. But in the rare event one hires you beforehand, it’s an opportunity for you to shape the case before it even gets started. Don’t be afraid to proffer your client. If you think he has something to offer the government that might help them get a bigger fish, most offices have a standard use immunity agreement to cover whatever your client tells them during the proffer. Moreover, as stated above, if you can get in touch with the AUSA on your case, you might be able to obtain a non-criminal alternative to prosecution; for instance in financial cases you could offer the government that your client agree to a civil, financial forfeiture and “pretrial diversion” (Section 9-22.000) in lieu of indictment.

Number 3 icon

Know the Federal Sentencing Guidelines.

They drive everything. For some reason, a lot of defense attorneys avoid federal cases because they are afraid of having to deal with the guidelines, but it really isn’t rocket science. This is very important because almost every case I did as an AUSA, I pulled up the guidelines first to see what the case was going to be worth, the idea being, why should the government spend the resources to indict a case if the punishment was going to be very minimal? Know generally how to calculate the range, know about enhancements and deductions, and especially know that your client gets 3 points off the applicable range for timely pleading and “acceptance of responsibility.” See section 3E1.1.  Your client is going to want to know how much time he is going to have to do if he pleads as opposed to going to trial and getting convicted, so you need to be able to calculate that number. A helpful calculator (not affiliated with any governmental entity) is on the internet HERE. Always check your numbers against what the AUSA comes up with.

Number 4 icon

“The squeaky wheel gets the grease”/Return my phone calls.

This goes along with #2 above. The defense attorney who calls or emails me about his case will get their call or email returned. If I know you are paying attention to your client’s case and hearing from you, it’s more likely I will view you as a straight-shooter and try to work with you on a potential deal. If I never hear from you and you never return my calls or emails, I will assume you want to go to trial and I’ll start preparing to do so.

Number 5 icon

The AUSA is not going to deal your case out at the last minute.

Do not turn down a plea offer because you think the AUSA is going to knuckle under at the last minute and give you a sweetheart deal as the jury is walking in for voir dire. I know this happens on the state level, but as said before, the AUSA does not have the discretion to fashion some kind of sentence deal; the guidelines drive sentencing. If you wait that long, expect to go to trial. AUSAs typically don’t have the huge caseload state deputy district attorneys do, so they try fewer cases and are only more than willing to roll the case out to the jury when the time comes.

Glen Hines Former Federal ProsecutorGlen. R. Hines (LinkedIn) is a former Assistant U.S. Attorney and a reserve Marine Corps Lieutenant Colonel and judge advocate. The majority of his 18-year, active-duty and reserve military career has been served as a prosecutor and Military Judge. He is a graduate of George Washington University (LLM-Highest Honors) and the University of Arkansas, Fayetteville (JD). He has written on national security, federal and military criminal law, and gun control issues.  See his past article at Task & Purpose.

Dec 22
Love1
Luke Williams Speaks About Ethan Couch

Possible Punishment Scenarios for Ethan Couch Once He is Apprehended

By Juvenile

What will happen to Ethan Couch?

Luke Williams Speaks About Ethan CouchWe’ve recently been asked about fugitive Ethan Couch, the Texas teenager that was adjudicated of intoxication manslaughter, and the potential consequences for the “affluenza” teen once he’s caught. Juvenile determinate sentencing in Texas is an area of law with which most people are unfamiliar.  In this post, attorney Luke Williams explains some of the possible punishment scenarios for Ethan Couch under the juvenile justice and adult criminal justice systems.

Has Ethan Couch violated his probation?

Once Ethan Couch is apprehended, the State will have to prove, by a preponderance of evidence, that the teen violated a term or condition of his probation. Because juvenile records are confidential under Texas law, the public or press has not been made known of the details of Couch’s probation up to this point. But typically – at the very least – a juvenile probation in Tarrant County requires a juvenile to abstain from the use of drugs and alcohol, avoid persons or places who are using drugs and alcohol, and report regularly to the juvenile probation department.

In light of the recent Twitter video showing what purports to be Ethan Couch at a party involving alcohol and drinking games, there could potentially be evidence that he violated his probation by being amongst persons and at a place where persons are using alcohol. This could be difficult to prove. But, the more pressing problem for the teen now is his disappearance. He would undoubtedly have been required to check in with the juvenile probation department on a regular basis or when requested. At this point, as evidenced by the arrest warrant that has been activated for him, we know that he not checked in with probation as required. So, the State will likely have a much easier case to prove that he’s violated his probation by absconding.

Juvenile Probation is Discharged When the Probationer Turns 19 Unless the State Acts to Transfer

Ethan Couch’s probation term is scheduled to extend beyond his 19th birthday. However, the juvenile court will have to discharge Couch on his 19th birthday unless the court has acted earlier to transfer the probation to the appropriate criminal adult County Community Supervision and Corrections Department. This can (and likely will) be done by motion of the state prosecutor in Couch’s case. If transferred, Couch would be under the jurisdiction of the county’s adult probation department and would face adult prison time should the probation be revoked. This would be the normal course of events had Couch not absconded.

What happens once the Ethan Couch is found?

If Couch is caught before he turns 19, and if the court finds that he has violated his probation, the court can either:

  • Keep him on juvenile probation with changing anything (highly unlikely);
  • Modify his probation to add new terms and conditions and keep him on probation; or
  • Revoke his probation to commit him to the custody of Texas Juvenile Justice Department (TJJD) for a determinate sentence that “does not exceed the original sentence assessed by the court” (10 years). The court could commit the juvenile for a shorter sentence than originally assessed, but not for a longer one. See our earlier post to read more about determinate sentences.

If Couch is caught after he turns 19, we can presume that the State will have filed a motion to transfer the probation to adult supervision. If the probation is transferred to adult court, and Couch is found to have violated the probation, then the court could sentence him to serve his original sentence (up to 10 years) in the Texas Department of Corrections – Institutional Division (otherwise known as the adult penitentiary).

Again, because juvenile records are confidential under Texas law, details of Couch’s probation up to this point are unclear. So, there could be other details and/or Orders issued by the judge in Couch’s case that could change or negate the possible scenarios mentioned above.

Regardless, the fact that Couch remains missing is not a good thing for his future.

Dec 21
Love17
No Refusal Weekends for DWI in Fort Worth, Texas

No Refusal Weekends in Texas | DWI Blood Search Warrant

By DWI

What you need to know about No Refusal Weekends in Texas | Fort Worth DWI Attorneys

No Refusal Weekends for DWI in Fort Worth, TexasThroughout the year, as various holidays approach (Christmas, New Year’s, Super Bowl weekend, 4th of July, etc.), we receive questions about “No Refusal Weekends,” in which police agencies crack down on driving while intoxicated or DWI. It is important that Texas motorists understand the rules of the road, so that every holiday season remains merry and bright. Many have seen the “No Refusal” notices on electronic road signs, heard the “No Refusal” advertisements on the radio, or watched stories on the news related to “No Refusal” for suspected drunk driving. What is “No Refusal” and how does the law impact your holiday travel? Understanding a few basic things about the law could help you in the event of a traffic stop or a detention by a law enforcement officer.

What is No Refusal Weekend?

No Refusal Weekend refers to a short period of time, typically a holiday weekend or the weekend of a special event, such as the Super Bowl, where law enforcement advertises the ability to conduct routine traffic stops, detaining motorists for suspected DWI. During the stop, law enforcement requests a blood or breath sample, and, if the motorist refuses to comply, law enforcement immediately contacts a judge or magistrate who is designated “on call” during the No Refusal time frame. If the law enforcement officer conveys to the judge that (1) there was reasonable suspicion to detain the motorist for a traffic or criminal offense, and, (2) there is probable cause to believe the motorist is driving under the influence of drugs or alcohol, then the judge quickly issues a search warrant for the sample. Tex. Transp. Code §§ 724.011(a), 724.012(b), 724. At that point, law enforcement may call for a phlebotomist to take the sample on site, or may transport a motorist to a facility to obtain the sample. If all goes according to plan, “no refusal” speeds up the process by which law enforcement obtain samples used for DWI/DUI arrests. Further, the sample becomes evidence for trial.

What is the purpose of No Refusal Weekend?

The entire No Refusal process from detention to arrest is faster in theory, the goal being to catch motorists who are driving under the influence quickly, and to capture the highest blood alcohol content (“BAC”) possible. In Texas, a BAC level of .08 is considered legally intoxicated. No Refusal Weekend differs from a DWI stop on regular days by it’s speed — the quick phone call to an “on call” judge who is waiting by the phone to issue warrants — and it’s deference to law enforcement in the moment. So what does this mean for you, the Texas motorist?

You have the right to refuse blood and breath tests initially.

The term No Refusal sometimes confuses motorists. Many believe they cannot refuse a law enforcement officer’s request for a sample during a No Refusal period. Not true. On No Refusal Weekend motorists still have the right to refuse to provide blood and breath during a traffic stop. However, if law enforcement obtains a search warrant for blood, the motorist must comply; failure to comply may result in additional charges. Once the officer has a warrant in hand, the rules change. But before the officer obtains a warrant, you can refuse to provide breath or blood and you may refuse to submit to field sobriety tests. For notifications about when No Refusal Weekends begin in the Dallas Fort Worth area, and to know your rights if you are stopped by an officer, download our free App from the App Store or Google Play — know your rights before you go out!

*Note: Refusal of a breath or blood test may result in temporary loss of driving privileges, even if the officer later obtains a warrant to conduct the search.  The courts will typically grant an occupational driver’s license to work and household tasks.

Warrantless searches for blood alcohol content in DWI cases violate the Fourth Amendment.

The No Refusal law comes from an “implied consent” provision in the Texas Transportation Code. The 2007 law states, “if a person is arrested for…operating a motor vehicle in a public place…while intoxicated…the person is deemed to have consented…to submit to the taking of one or more specimens of the person’s breath or blood for analysis to determine the alcohol concentration or the presence in the person’s body of a controlled substance, drug, dangerous drug, or other substance.” Tex. Transp. Code §§ 724.011(a), 724.012(b), 724. However, in 2014, the Texas Court of Criminal Appeals held that “warrantless, nonconsensual testing of a DWI suspect’s blood does not…fall within any recognized exception to the Fourth Amendment’s warrant requirement, nor can it be justified under a…Fourth Amendment balancing test.” State v. Villareal, PD-0306-14 (Tex. Crim. App. 2014).  See also, the US Supreme Court’s opinion in Missouri v. McNeely. In summary, a motorist may refuse a blood or breath test upon an initial request by law enforcement, but after a warrant is obtained from a judge, a motorist may not refuse at that point because it is mandatory—hence the name No Refusal.

Please take the time to know your responsibilities and rights before heading out on No Refusal Weekends in Texas. Download our App on the App Store or on Google Play for the latest information on No Refusal Weekends. Have a safe and happy holiday season! This article is for educational purposes only and does not take the place of legal advice. If you are in need of a DWI attorney, please contact our office for a free consultation at (817) 993-9249.

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Dec 20
Love31
Texas front license plate law

License Plate Law in Texas | Front License Plate | Two Plate Rule

By Traffic Offenses

One License Plate or Two: Does Your Car Need a Front License Plate In Texas?

Texas front license plate lawHow many license plates does your vehicle need in order to comply with Texas law? Do you need one or is there a two plate rule? Should you drill holes into the front bumper of your car to install a front license plate, or will you be alright with a rear plate only? If you are reading this article, perhaps you have exhaustively Google-searched license plate laws out of frustration. Find out what the Texas Transportation code says about license plates and what the implications are for you, the Texas motorist.

Do I need a Front License Plate in Texas? Yes. Texas law requires that every vehicle maintain a license plate in the front and rear of the vehicle.  The current fine for failing to display a front license plate in Texas is $200.00.

Do I need a Front License Plate in Texas? | An Error In the Texas Transportation Code Created a License Plate Loophole

Since 1934, Texas law has required that Texas motorists display a front and a rear license plate. In 2011, House Bill 2357 modified the statutory language making driving a vehicle without displaying a front and a rear license place both illegal and punishable by a fine. In January of 2012, Texas lawmakers revised the transportation code, once again, to include several new provisions. However, in the process of making revisions, the provision mandating a penalty for vehicles not in compliance with the “two plate rule” was accidentally stricken from the Texas Transportation Code. From January 2012 to September of 2013, law enforcement could not lawfully issue citations for failure to display a front license plate. Unfortunately, this brief period of time also created a lot of confusion around the “two plate rule” that reverberates to the present day.

Texas Lawmakers Amend the Code to Close the Loophole | Front License Plate Now Required in Texas

The two plate rule was originally created for the purpose of making identification of vehicles and their owners more efficient for automatic plate readers and law enforcement agencies. In 2012, the Texas A&M Transportation Institute (“TTI”) issued a report, citing overall effectiveness of the two plate rule, unlike states that only required one rear license plate on a vehicle. TTI found that front license plates were (1) easier to read in the daylight; (2) helpful in toll billing; (3) aided law enforcement in tracking down violators of the transportation code by way of automatic plate readers; and (4) allowed Homeland Security and U.S. Customs and Border Protection to process and screen vehicles more effectively and quickly. Thus, the front license plate requirement in Texas.

Aware of the inadvertent loophole created by omission of the penalty provision, lawmakers amended the transportation code in September of 2013 to mandate punishment for Texas motorists who do not display both the front and the rear license plates. Motorists who do not have a front license plate risk incurring a Class C misdemeanor charge, punishable by fine not to exceed $500.

Implications For the Texas Motorist | Texas Front License Plate Law | Penalty for Front License Plate Violation

Currently, the penalty for operating a vehicle without a front license plate is $200.00 – subject to change with subsequent legislation. However, there may be more to this than meets the eye. Generally speaking, when a vehicle is out of compliance with mandatory safety and administrative regulations (such as only having a rear license plate), by statute, Texas law enforcement has “probable cause” to conduct a traffic stop. At minimum, such a traffic stop could include pulling the vehicle over, running a check of the license plate, researching the driver’s license and registration of the motorist, and issuing a citation for violating the two plate rule.

In sum, a Texas motorist who drives without both plates risks being pulled over for a lawful traffic stop and fined at least $200.00 for a misdemeanor traffic offense.

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