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Jan 08
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Fort Worth criminal investigation

Private Investigator: An Indispensable Criminal Defense Asset

By Criminal Defense

Investigating Every Case to Uncover the Real Truth | Fort Worth Criminal Defense Lawyers

Fort Worth criminal investigationEvery criminal allegation exists in a gray area. If one were to focus solely on the police report, a criminal case might seem black and white. But it’s not. There are secrets, personalities, motivations, half-truths, unnamed witnesses, and much more lurking in the shadows of every case. One of the keys to a successful defense is to uncover those facts not articulated in the police report and give the case a context. This is why we use a private investigator as part of our defense team.

A good private investigator is indispensable to a full and complete criminal defense. You would be surprised to hear what people will tell an investigator (while being recorded). Perhaps it’s because people like to feel important, or maybe some folks just aren’t completely aware of what they are saying, but a good private investigator can blow a case wide open simply by hitting the streets to interview witnesses and others connected to the case.

Our investigator is a retired police officer that spent over 30 years on the force in the Dallas Fort Worth Metroplex, including many years as an undercover narcotics officer. He can look at a police report and spot errors in the investigation at the drop of a hat.

If you have been charged with a criminal offense in Tarrant County, Texas and you know that there is more to your case than what is contained in the police report, give us a call and we will coordinate with our investigator to get started uncovering “the rest of the story.” Contact us today for a free consultation.

Jan 07
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Jessica’s Law: Continuous Sexual Abuse of a Child

By Sex Crimes

A Review of Jessica’s Law in Texas | Sex Crimes Defense Attorneys

The 80th Texas legislature enacted the “Jessica Lunsford Act” (H.B. 8) to create a criminal offense of Continuous Sexual Abuse of a Child (Texas Penal Code 21.02).  The chart below details the particulars of the offense of Continuous Sexual Abuse of a Child under Section 21.02.

The elements of Jessica’s Law:

  • The sexual abuse may be committed against 1 or more victims. (Texas Penal Code 21.02 (b)(1))
  • The complaining witness must be a child younger than the age of 14. (Texas Penal Code 21.02(b)(2))
  • This offense does not apply to juvenile offenders. (Texas Penal Code 21.02(b)(2))
  • A jury is not required to agree unanimously on which specific acts of sexual abuse the defendant committed or the exact date when those acts were committed. (Texas Penal Code 21.02(d))
  • The jury must agree unanimously that the defendant committed 2 or more acts of sexual abuse during a duration of 30 days or more. (Texas Penal Code 21.02(d))
  • An affirmative defense does exist for the offense. If the defendant was not more than 5 years older than the complaining witness; did not use duress, force, or threat; and was not a registered sex offender, then the defendant may raise these points as an affirmative defense. (Texas Penal Code 21.02(g))

Punishment:

  • For a first time offense, regardless of prior criminal history, the range of punishment is 25 to 99 years or life in prison. (Texas Penal Code 22.02(h))
  • Any subsequent offense will result in life in prison without parole (Texas Penal Code 12.42(c)(4))
  • Even for a first time offense, there is no deferred adjudication community supervision (Texas Code of Criminal Procedure Art. 42.12, Section 5(d) (3)), no judge-ordered community supervision (Texas Code of Criminal Procedure Art. 42.12, Section 3(e)(1)), or no jury-recommended community supervision (Texas Code of Criminal Procedure Art. 42.12, Section 4(d)(1)).
  • Essentially, probation in any form or fashion is not an option under Jessica’s Law.
  • Additionally, a defendant convicted under this law has no eligibility for parole. (Texas Government Code Section 508.145 (a)).

Aside from a capital murder charge, the offense of Continuous Sexual Abuse of a Child is now considered the highest level of offense a person in Texas can be charged with. We’ve had several years to watch juries handle these types of cases and we’ve seen that juries tend to punish severely when presented with continuous sexual abuse of a child.

If you or a loved one is facing a serious criminal charge in Tarrant County, Texas, please call our experienced criminal defense attorneys today at (817) 993-9249. We offer free consultations.

Jan 05
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Search & Seizure: Officer’s Mistake of Law

By Search & Seizure

United States Supreme Court | Search and Seizure Update

We expect that police officers know the law.  After all, they are charged with upholding the law.  But what happens when an officer makes a traffic stop based on an incorrect understanding of the law and then finds evidence of another crime during his improper stop?  The Supreme Court recently considered this scenario in the case outlined below:

In Heien v. North Carolina, a North Carolina police officer stopped a man for driving with one broken brake light.  The driver later gave consent to the officer to search his vehicle. The officer discovered cocaine charged the driver with trafficking cocaine. The driver argued that the officer made a mistake of law for stopping him on one faulty brake light and not two (which is what NC law requires) therefore evidence should be suppressed.  The NC vehicle code makes clear that the officer was mistaken when making the traffic stop.

The Supreme Court granted cert to review the case and the question of whether an officer who makes a mistake of law still gives rise to reasonable suspicion. They Court ruled that the officer’s mistake of law was objectively reasonable and that ultimately, the Officer had reasonable suspicion to conduct the traffic stop.  In so holding, Chief Justice Roberts wrote “The Fourth Amendment requires government officials to act reasonably, not perfectly, and gives those officials ‘fair leeway for enforcing the law.'”

While not dealing with specific state law in Texas, the ruling in this case did address reasonable suspicion as it relates to unreasonable searches prohibited by the 4th Amendment.  Article 38.23 of the Texas Code of Criminal Procedure states:

No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

While Article 38.23 of the Texas Code of Criminal Procedure provides an exception if an officer is acting in objective good faith reliance on a warrant, it does not give a reasonable suspicion exception to conduct a search.  Clearly, the Heien opinion will be cited by the State to support searches even when the initial stop is conducted illegally.  We will just have to wait and see how our Texas Courts will react in light of Heien v. North Carolina.

Dec 23
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Texas Contractor Convicted for Theft: Upheld by High Court

By Theft

Can a bad contractor be convicted for theft?

If you’ve ever gone through a home renovation or something similar, you have likely experienced periods of frustration with your contractor or construction crew.  This may stem from missed deadlines, shoddy workmanship, mistakes, or general incompetence. In extreme cases, you might have felt duped by the contractor, so much that you think he should be held criminally liable for the promises on which he failed to deliver.

Can a contractor be held criminally liable for his failures?  Texas law says YES (in certain circumstances).

In a recent case out of the Texas Court of Criminal Appeals, the court upheld the felony criminal conviction of a contractor for theft when he accepted money and failed to deliver under the contract for services.  The court explained that in most cases, dissatisfied consumers will have to resort to the civil courts, but in extreme cases, a contractor could be convicted of theft when he accepts money and utterly fails to perform.

You can read the full opinion of the court regarding Contractor Theft.

Barnett Howard & Williams PLLC is a criminal defense law firm in Fort Worth, Texas.  Call us today for a free consultation of your criminal matter at (817) 993-9249.

Oct 23
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Avoiding a Criminal Charge By Avoiding Obscure Traffic Offenses

By Traffic Offenses

Obscure Texas Traffic Offenses | Fort Worth Criminal Attorneys

Many of our criminal cases begin with traffic offenses. Something as simple as failing to signal for a lane change can quickly become a DWI investigation if the officer suspects the driver has been drinking. Often, during a traffic stop an officer will ask for consent to search the vehicle and then, depending on what might be in the car, the traffic stop turns into an arrest for possession of an illegal substance or contraband. (Tip: Never give consent to search. Ever.)

We put our heads together to think about some of the more obscure traffic violations about which drivers may not know. We have listed four of them below. The officers on the road know about them, so you should too.

Sec. 544.010(c) – Stopping before the crosswalk or white line. When you approach a streetlight or stop sign you must stop before the white line (or crosswalk line), regardless of where the stop sign or streetlight is positioned. Many times the actual stop sign will be a few yards in front of the line, just begging you to inch a little closer. Resist the urge to stop at the sign. There’s probably a traffic cop right around the corner just waiting for you to mess this one up. (If you are a person that remembers rhymes better…Stop at the line, not at the sign!)

Sec. 545.104(a) – Signal intent to start from a parked position. This is one that I’ll admit I did not know about. When you are parallel parked on a street and you wish to enter the roadway, you must signal your intent to do so. Put on your turn signal and then begin driving into the roadway. (Signal when parked, before you depart.)

Sec. 545.104(b) – Signal turn/lane change 100 feet prior to turn/lane change. We all know that we must signal when making a turn or changing lanes, but many folks do not know that it must be done 100 feet prior to the movement. If you must make a quick turn, any signal is better than none, but the rule says 100 feet. (Before you change lanes or turn on the street, you must signal for 100 feet.)

Sec. 547.322(f) – Separate lamp must be mounted to rear license plate and be visible from 50 feet. You cannot rely on your taillights to illuminate your license plate in Texas. Your license plate, like a special work of art hanging in the lobby of some fancy building, must have its own light so that everyone can clearly read your vanity plates proclaiming IMCOOL. Further, the license plate must be visible from 50 feet away. (When driving at night, do what’s right. Give your license plate a light.)

Oct 16
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Our Greatest Achievement

By Criminal Defense

We were asked this week to name our law firm’s greatest achievement.  Hmm… We’ve experienced quite a few successes over the past several years; acquittals, dismissals, no bills.  We’ve built strong relationships with people in the Fort Worth community.  We’ve been fortunate enough to help many clients.  But our greatest achievement…

After some thought, we knew our greatest achievement.

Our greatest achievement is the warm hug or firm handshake of a grateful client.

Just the other day we completed a criminal case in Tarrant County where the client’s parents had come to court to watch.  After the case was over we had a chance to speak with the parents in the hallway of the courthouse.  Our client’s mother was so thankful and through her tears asked if she could give us a hug.  That was the biggest compliment we could ever receive.  It was the overflow of her heart and in that moment, we knew we had made a difference in their lives.

We absolutely love what we do.  We get to help real people.  We are thankful for the opportunities to be a blessing.  We know that it is no accident when a client walks into our office.  Praise God for His plans and His purposes.

Jul 07
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No More Warrantless Searches of Cell Phones

By Search & Seizure

Is it a violation of the 4th Amendment prohibition against unreasonable search & seizure for a police officer to search a suspect’s cell phone without a warrant?

U.S. Supreme Court Holding: YES – The 4th Amendment prohibits officers from searching a suspects cell phone for information without a warrant.

Riley v. California; U.S. v. Wurie, (Consolidated by the Supreme Court in one case) 2014 U.S. LEXIS 4497 (U.S. June 25, 2014)

Riley v. California: In this case, Police officers arrested Appellant and searched the cell phone he was carrying incident to his arrest. The officers discovered photographs and videos on Appellant’s cell phone that were admitted as evidence against him at trial. As a result, Appellant was convicted. The California Court of Appeal affirmed the conviction, holding that the warrantless search of Appellant’s cell phone incident to his arrest was lawful.

U.S. v. Wurie: In this case, Police officers arrested Appellant for distribution of crack cocaine and seized two cell phones from him. Officers searched the call log on one of the cell phones and determined the phone number labeled “my house” was associated with a nearby apartment. Officers went to the apartment and saw the name “Wurie” written on the mailbox. The officers obtained a warrant, searched the apartment and found drugs and firearms.

Appellant filed a motion to suppress the evidence seized from his apartment, arguing the officers violated the Fourth Amendment by searching his cell phone incident to arrest. In reversing Appellant’s conviction, the First Circuit Court of Appeals held the search incident to arrest exception to the Fourth Amendment’s warrant requirement did not authorize the warrantless search of data on cell phones seized from individuals arrested by police officers.

The Supreme Court consolidated the cases, holding that police officers generally may not search digital information on a cell phone seized from an individual who has been arrested, without first obtaining a warrant.

Previously, the court held police officers could conduct warrantless searches of arrestees and possessions within the arrestees’ control, incident to a custodial arrest. The court concluded such searches were reasonable in order to discover weapons or any evidence on the arrestee’s person so that evidence could not be concealed or destroyed.

The court concluded this rationale does not apply to modern cell phones. First, digital data stored on a cell phone cannot be used as a weapon to harm an arresting officer or aid an arrestee in escaping. The court emphasized that police officers may still examine the physical aspects of phone to ensure that it will not be used as a weapon. For example, the court noted a police officer may examine a cell phone to determine whether there is a razor blade hidden between the phone and its case. However, once an officer has secured a phone and eliminated any potential threats the data on the phone cannot harm anyone.

Second, the court stated the government provided little evidence to believe that loss of evidence from a seized cell phone, by remote wiping of the data on the phone, was a common occurrence. Even if remote wiping were a concern, the court listed two ways remote wiping could be prevented. First, the officer could turn the phone off or remove its battery. Second, the officer could put the phone inside a device, called a Faraday bag, that would isolate the phone from radio waves. The court added that Faraday bags are cheap, lightweight, and easy to use and a number of law enforcement agencies already encourage their use. In addition, the court commented that if a police officers are truly confronted with individualized facts suggesting that a defendant’s phone will be the target of an imminent remote wiping attempt, they may be able to rely on exigent circumstances to search that phone immediately.

The court further recognized that cell phones are different from other objects that an arrestee might have on his person. Before cell phones existed, a search of an arrestee generally constituted a small intrusion on the arrestee’s privacy. However, modern cell phones are, in essence, mini-computers that have immense storage capacity on which many people keep a digital record of nearly aspect of their lives. Consequenly, the warrantless search of a cell phone consitutes a significant intrusion upon a person’s privacy. If police officers wish to search a cell phone incident to arrest, they need to obtain a warrant.

Jun 04
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US Supreme Court Decides Restitution Issue in Child Pornography Case

By Computer Crimes

In any criminal case involving sexual exploitation of a child in the making, possessing, or distributing of child pornography, there is an issue of restitution to consider.  More specifically, if the child suffered monetary damages, who is responsible to pay restitution to the child to make him/her whole?  Is it the person that created the images, the person that distributed them on the internet, the end user that downloads and possesses the images, or everyone?  The courts were split on this issue.   Some held that every person along the way should pay their share of the damages.   Other courts held that each person is responsible for the total damages.

The Supreme Court has now weighed in the issue and has held that every offender is liable for their share of the damages, not more.   Below is the synopsis of the case wherein the Supreme Court considered this issue.

Issue: Is a person who was convicted of possession of child pornography liable to pay full restitution to the victim (the child subject) or should the court limit damages to only that which was proximately caused by the convicted person’s actual role in the exploitation?

Paroline v. United States, 134 S. Ct. 1710 (2014)– Petitioner Randall Paroline pled guilty to possessing 150 to 300 images of child pornography, including two images of a girl named “Amy” being abused by her uncle at the age of eight or nine years old.  Amy’s uncle took a number of photographs depicting her in sexually abusive poses, and distributed the materials over the Internet.   However, Amy first learned that images of her abuse were being trafficked on the Internet when she was 17.  This new information caused renewed trauma from the events that took place when she was a young girl and it made it difficult for her to recover from the abuse.

Amy then sought restitution under 18 U.S.C. §2259 from Paroline even though he was not the originator of the pictures. Paroline argued that a victim’s damages must be proximately caused by the defendant’s conduct because any other result would turn child exploitation restitution proceedings into a procedural nightmare. Amy argued that §2259 did not require proximate causation for a victim to be entitled to full damages; otherwise, the victims of child abuse would bear the burden of collecting tiny shares of restitution from several defendants and might never receive full recovery.

The District Court declined to award restitution because the Government had failed to meet its burden of proving what losses, if any, were proximately caused by the Paroline’s offense. The Fifth Circuit held that §2259 did not limit restitution to losses proximately caused by the defendant, and each defendant who possessed the victim’s images should be made liable for the victim’s entire losses from the trade in her images, even though other offenders played a role in causing those losses.

The Supreme Court vacated and remanded the Fifth Circuit’s decision and held that restitution is proper under §2259 only to the extent the defendant’s offense proximately caused a victim’s losses. Victims should be compensated and defendants should be held accountable for the impact of their conduct on those victims, but defendants should only be made liable for the consequences and gravity of their own conduct, not the conduct of others. Where it can be shown both that a defendant possessed a victim’s images and that a victim has outstanding losses caused by the continuing traffic in those images but where it is impossible to trace a particular amount of those losses to the individual defendant by recourse to a more traditional causal inquiry, a court applying §2259 should order restitution in an amount that comports with the defendant’s relative role in the causal process that underlies the victim’s general losses. Therefore, in determining the proper amount of restitution, a court must assess as best it can from available evidence the significance of the individual defendant’s conduct in light of the broader causal process that produced the victim’s losses.

In short: each defendant pays his or her fair share of the victim’s losses in a child pornography matter.

Apr 28
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U.S. Supreme Court Clarifies Definition of “Domestic Violence” for Lautenberg

By Domestic Violence

Issue presented to the Court: Whether Appellant’s state court assault conviction qualified as a “misdemeanor crime of domestic violence” thereby prohibiting him from possessing a firearm under federal law (18 U.S.C. §922(g)(9)).

United States v. Castleman, 134 S. Ct. 1405 (2014)- In 1996, Congress passed 18 U.S.C. §922(g)(9), which criminalizes the possession of firearms by certain individuals.  This section makes it a federal crime for a person convicted in state court of a “misdemeanor crime of domestic violence” to own, possess, or transfer a firearm if the misdemeanor involved the use or attempted use of physical force.  In 2001, James Castleman was convicted in Tennessee of misdemeanor domestic assault for “intentionally or knowingly causing bodily injury to the mother of his child.” In 2008, federal agents learned that Castleman was selling firearms on the black market.  A grand jury indicted Castleman on two counts of possession of a firearm in violation of §922(g)(9) because of his previous “misdemeanor crime of domestic violence” conviction.

Castleman moved to dismiss the §922(g)(9) charges, arguing that his Tennessee conviction did not qualify as a “misdemeanor crime of domestic violence” because it did not have the “use of physical force” element under §922(g)(9).  The District Court agreed and dismissed the §922(g)(9) counts, reasoning that Castleman’s misdemeanor domestic assault conviction did not qualify as a crime of domestic violence because ‘physical force’ must entail violent contact and that one can cause bodily injury without violent contact, e.g., by poisoning.  The Sixth Circuit affirmed on different grounds.  It held that the degree of physical force required for a conviction to constitute a “misdemeanor crime of domestic violence” is the same as the required for a “violent felony” under the Armed Career Criminal Act, §924(e)(2)(B)(i)-violent force- and that Castleman could have been convicted for causing slight injury by nonviolent conduct.

In a 9-0 decision, the United States Supreme Court overturned the lower courts, holding that Castleman’s conviction of misdemeanor domestic assault qualified as a “misdemeanor crime of domestic violence” for purposes of 18 U.S.C. §922(g)(9). According to the Court, §922(g)(9)’s “physical force” requirement is satisfied by the degree of force that supports a common-law battery conviction- namely, “offensive touching.” Justice Sotomayor, writing for the majority, explained, “Such acts of violence may be relatively minor, and could include hitting, slapping, shoving, grabbing, pinching, hair pulling, or a squeeze of the arm that causes a bruise.” She went on to say, “an act of this nature is easy to describe as ‘domestic violence’ when the accumulation of such acts over time can subject one intimate partner to the other’s control.” Once the court determined that “physical force” was at least offensive touching, the Court then looked to Castleman’s conviction of ‘intentionally or knowingly causing bodily injury’ to the mother of his child.  Because the knowing or intentional causation of bodily injury necessarily involves the use of physical force, his conviction qualified as a “misdemeanor crime of domestic violence” that fell within the scope of §922(g)(9).

So, what are the implications of U.S. v. Castleman going forward?  Now that the scope of §922(g)(9) has been clarified, federal prosecutors seem to have more legal authority to prosecute prior convicts based on state law convictions.  More specifically, if the defendant has been previously convicted for a misdemeanor crime of domestic violence, where the criminal act was any form of offensive touching, the person may be convicted for illegal gun possession under §922(g)(9) if he or she is subsequently caught with a firearm.

Apr 14
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Warrantless Search: DWI Blood Draw Struck Down as Unconstitutional

By DWI, Warrantless Search

Issue before the Court: “In the absence of exigent circumstances or consent, does Texas Transportation Code §724.012(b)(3)(B) violate the Texas and U.S. constitutional prohibitions against unreasonable searches and seizures where the statute requires law enforcement officers to seize a specimen of a DWI arrestee’s blood without a search warrant in all cases where the officer believes the arrestee has been previously convicted of DWI two or more times?”

Sutherland v. State (2014)- On the night of February 2, 2011, Austin PD Officer Housmans initiated a traffic stop after a vehicle changed lanes without using a turn signal.  Once the vehicle had pulled over, Housmans approached the driver, appellant Sutherland, and, after speaking with him for “a bit,” asked the appellant to step out of the vehicle.  Housmans administered field sobriety tests on appellant, and arrested appellant based on his performance on the tests and on his suspicion that the appellant was driving while intoxicated.  Appellant refused to provide a breath specimen. Dispatch provided Housmans with Texas DPS records showing that appellant had two or more previous convictions for DWI.  The appellant was then transported to the Travis County jail where, ultimately, a blood sample was drawn without appellant’s consent and without a warrant.

Following the trial court’s denial of a motion to suppress evidence of his intoxication, appellant pleaded guilty to the charges but reserved his right to appeal the trial court’s ruling.  The appellant appealed his conviction for felony DWI.  The appellant challenged the constitutionality of the procedure and authority under which a sample of his blood was taken without his consent.  Appellant contends that the trial court erred by denying his motion to suppress the results of the testing done on the sample of his blood taken in such a manner.

Housmans claimed that he relied on the provision of the Texas Transportation Code that required him to obtain a sample of a suspect’s blood whenever he learns that the individual has been convicted two or more times of DWI.  Appellant maintained that, regardless of the mandatory language of the Transportation Code, constitutional protections against unreasonable searches and seizures require that a warrantless search be supported by an established exception to the Fourth Amendment’s warrant requirement, in this case, the exigent circumstances exception.  Appellant further contended that no established exception-exigent circumstances or otherwise – applied here.

According to the Seventh Court of Appeals- Amarillo, the arresting officer was not faced with exigent circumstances such that the natural dissipation of alcohol from appellant’s bloodstream would support a warrantless seizure of a specimen of appellant’s blood.  The arresting officer did not describe any factors that would suggest he was confronted with an emergency or any unusual delay in securing a warrant.  He testified that he made no effort to obtain a warrant because he believed that the law required that he obtain a blood sample under the circumstances presented to him.  The appellant was not transported to the hospital for medical care, the scene of the traffic stop was not very far from the booking facility, and transportation time was not a factor that could be said to lend to the exigency of the circumstances.  Furthermore, while the unavailability of a magistrate may affect whether an exigency exists to justify a warrantless blood draw, a magistrate is available twenty-four hours a day, every day at the Travis County central booking facility.  Therefore, based on these facts, the trial court erred by denying the defendant’s motion to suppress.  Reversed and remanded.