News and Insights

To the average person, the offense of Forgery probably doesn't sound like something that occurs on a regular basis. The term "forgery" usually conjures up the image of a shady artist carefully recreating some poor, unsuspecting victim's signature and then passing themselves off using the victim's identity. While an act like this most certainly would be forgery, the offense in Texas actually encompasses a broad range of activities and, because of that, it is much more common than most people realize.

The definition of forgery is laid out in Sec. 32.21(b), which states that,

a person commits an offense if he forges a writing with intent to defraud another.

Simple enough, right? Not quite. The simple definition of forgery begs multiple questions. For instance, what is the definition of "forge?" And, what is the definition of "writing?" This is where the net gets bigger.

The legislature defined "forge" in Sec. 32.21(1) to include a wide range of acts. These include altering, making, completing, executing, or authenticating any writing with the intent to defraud in addition to issuing, transferring, registering the transfer of, passing, publishing, or otherwise uttering a writing that is forged. What is a "writing" you ask? Well, the legislature decided to stretch the net even further by defining a writing as a printing or any other method of recording information as well as money, coins, tokens, stamps, seals, credit cards, badges, trademarks, symbols of value, right, privilege or identification.

Most forgery cases in Texas deal with the writing or passing of forged checks or fake currency. Occasionally, we see cases involving credit or debit cards charged as forgery (although there is another offense in the code more accurate to charge these types of offenses). While we see quite a few of these more common offenses involving checks, I can't say that we've ever seen as case of forgery involving publishing a symbol of privilege with the intent to defraud.

But, as you can see the net is wide and I'm sure someplace, sometime one of those exotic forgery fishes will be caught up in the State's tangled web.

Under Texas Penal Code § 20.04(d), a kidnapper who voluntarily frees his victim in a safe place reduces his or her punishment level for aggravated kidnapping from a first-degree to a second-degree felony. In construing a "safe place," Texas courts consider seven factors:

1. the remoteness of the location,
2. the proximity of help,
3. the time of day,
4. the climate,
5. the condition of the victim,
6. the character of the location and surrounding neighborhood, and
7. the victim's familiarity with the location or neighborhood.

However, these factors are merely aids in defining what constitutes a "safe place," which is made on a case-by-case basis, bearing in mind the totality of the circumstances.

In Butcher v. State, the appellant kidnapped the nine year-old complainant at knife point while the complainant was walking to school. After putting the complainant in his car, the appellant drove her to his apartment, bound her hands, and put her in his closet. After eight hours, the appellant decided to release the complainant and dropped her back off at the site of the kidnapping.

The appellant argued that because he returned the complainant back to the site of abduction during day-time, he released her in a safe place since the complainant's mother allowed her "to walk to and from the school bus stop by herself before this incident, [the complainant] did not ask a passing mailman for help after she was released, and that [the complainant's] mother described [the complainant] as independent."

Applying the factors to Butcher, the Texas Criminal Court of Appeals held, nonetheless, that because the site of the kidnapping was "desolate," the complainant was released in the middle of the road, the appellant kept the complainant's cell phone, and the complainant's family did not have a home phone, the site of the kidnapping was not a safe place.

Moreover, the Texas Court of Criminal appeals distinguished Butcher with Storr v. State. In Storr, the appellant had kidnapped the complainant, but, similarly, released him back at the site of the abduction. The Court held that the area was a safe place because the complainant was college-aged, released at a post office during business hours near his university, and he had available transportation. However, the complainant in Butcher was nine years old, released in the middle of a desolate road, did not have available transportation or a phone, and returned home with nobody there, thus rendering the site of the kidnapping unsafe.

Mosquitoes are pesky little things. They land on you, insert a sharp needle-like nose into your arm and suck your blood without even asking for permission. Well, like the hard slap of a hand on top of one of these pests, Texas courts are finally falling in line behind the Supreme Court's ruling in Missouri v. McNeely (133 S. Ct. 1551 (2013)) striking down warrantless blood draws of a driver's blood in DWI cases.

Last month, the Second District Court of Appeals in Burks v. State held that a warrantless, nonconsensual blood draw - even conducted pursuant to the mandatory-blood-draw and implied-consent provisions of the Texas Transportation Code violates the Fourth Amendment to the United State's Constitution.

The defendant in the Burks case was pulled over for changing lanes without signaling. A North Richland Hills police officer pulled him over and developed probable cause to arrest him for DWI. Because the defendant had been convicted twice before for DWI, the officer relied on Texas Transportation Code 724.012 to take the defendant's blood without consent and without a warrant. Texas Transportation Code 724.012 provides that an officer may obtain a blood sample from a defendant without consent and without a warrant if the defendant on two or more occasions had been previously convicted or placed on community supervision for Driving While Intoxicated.

The Second Court of Appeals specifically held that this type of blood draw, despite being authorized by a state statute, still violates the Fourth Amendment's protection from unreasonable searches and seizures. In addition to the Supreme Court's ruling in McNeely, the court here relied on the Texas Court of Criminal Appeals decision in State v. Villarreal (No. PD-0306-14, 2014 WL 6734178 (Tex. Crim. App. Nov. 26, 2014), which held also that a warrantless, nonconsensual draw of a DWI suspect's blood does not categorically fall within any recognized exception to the Fourth Amendment's warrant requirement, nor can it be justified under a general Fourth Amendment balancing test.

What does all this mean? As we've said in the past, the demise of warrantless blood draws for drivers in Texas continues to remain imminent and cases like Burks continue to reinforce the fact that the teeth of the United State's Constitution bite much harder than the needle of an unreasonable search and seizure.

If you're reading this, odds are that you've been ticketed for one or more traffic offenses at some point in your life.  Among the ticket-receiving public, misconceptions and misunderstandings abound regarding whether you should "fight" a ticket. Below is some advice from a former municipal prosecutor in the Dallas Fort Worth metroplex...

1) It is unlikely that you can just "talk to a prosecutor" and get your ticket dismissed.
Two to three times a week, most courts hold conferences between the prosecutor and citizens who have violated traffic offenses. During these conferences, most people go to the prosecutor immediately to ask for a dismissal on their citation. I would venture to say that in a metropolitan area, a municipal prosecutor gets asked for a dismissal between 25-50 times per week. Starting your conversation off with a prosecutor by asking for a dismissal is the least effective approach for negotiating a favorable result. The concept of a dismissal is WIDELY misunderstood and the bottom line is that dismissals are rare.

2) Instead of demanding your dismissal, start by pointing out legitimate issues with your ticket.
There are legitimate issues with citations. Those issues can result in dismissals. But for every one legitimate issue, there are one-hundred ridiculous excuses. A municipal prosecutor has heard them all and there is a really good chance that the prosecutor has heard your specific excuse many, many times. Most of the time, people come go to court with an assumption about the law and they hang on to it with everything they are worth. Do some research before coming to court to determine whether you have a "legitimate issue" or just "another excuse". Whether that means consulting with an attorney or jumping onto Google, come to court with a little research and you may actually put the prosecutor in a better mood.

3) Document your defense.
If you have documentation (especially on vehicle equipment issues, inspections, registrations, licenses, and insurance), bring it to court and have it ORGANIZED and ready for the prosecutor to look at. If there is some legitimate discrepancy between the status of your vehicle or license (on the date of the citation) and the citation you received you might actually get that all-elusive dismissal, but you had better have documentation to support your defense.

4) "Fine, I'll take it to trial."
It's got a nice ring to it, but the reality of a trial is that most cases will come down to the officer's testimony versus the defendant's testimony. More than likely, the officer will testify that he's been an officer for multiple years, been through training and education specifically for observing and enforcing traffic violations. He'll also testify that he spends 90% of his 8-10 hour shift in and amongst traffic observing traffic and that he was focused solely on looking for your vehicle violating a traffic law. Meanwhile, you'll testify (if you choose to testify) that you're number one priority was not following the traffic laws (I dare you to say that it was), but that you were on the way to work, dropping kids off at school, going to the grocery store or had some other objective in mind. The bottom line with trial: The officer will testify that he observed you commit a traffic violation and you'll testify you didn't and the judge or jury will decide who they believe.

5) If you really want a chance...
..hire an attorney. He or she will analyze your citation based on current law and the rules of evidence and procedure and not just based on what you heard from your neighbor's friend's ex boyfriend. Ultimately, you may decide that hiring an attorney would cost more than it is worth, but it you really want a fighting chance, you should hire an attorney.

In 2002, the United States Supreme Court determined that the Eighth Amendment to the U.S. Constitution's prohibition against cruel and unusual punishment bars the execution of mentally retarded persons. Atkins v. Virginia, 536 U.S. 304 (2002).

The Court reasoned that neither retribution nor deterrence could be achieved by executing mentally retarded persons and that, because mentally retarded persons have a reduced ability to participate in their own defense, there is an enhanced risk that they would be sentenced to death unnecessarily.  However, the Supreme Court left it to the individual states to determine which offenders fit the definition of "mental retardation," in order to enforce this constitutional restriction.

In Ex Parte Briseno, the Texas Court of Criminal Appeals established non-mandatory guidelines to determine "that level and degree of mental retardation at which a consensus of Texas citizens would agree that a person should be exempted from the death penalty." 135 S.W. 3d 1 (2004).  If an offender meets the definition of mental retardation, then the guidelines are designed to consider some more subjective criteria. The definition of mental retardation that the CCA adopted was:

(1) Significantly subaverage general intellectual functioning, generally shown by an IQ of 70 or less, (2) accompanied by related limitations in adaptive functioning, (3) the onset of which occurs prior to the age of 18.

If a person meets that definition, the following guidelines were designed to help factfinders in criminal trials focus upon weighing the evidence as indicative of mental retardation or of a personality disorder:

• Did those who knew the person best during the developmental stage - his family, friends, teachers, employers, and authorities - think he was mentally retarded at that time, and, if so, did they act in accordance with the determination?
• Has the person formulated plans and carried them through, or is his conduct impulsive?
• Does his conduct show leadership, or does it show that he is led around by others?
• Is his conduct in response to external stimuli rational and appropriate, regardless of whether it is socially acceptable?
• Does he respond coherently, rationally, and on point to oral or written questions, or do his responses wander from subject to subject?
• Can the person hide facts or lie effectively in his own or others' interests?
• Putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense require forethought, planning, and complex execution of purpose?

The CCA cautioned that these factors should not be considered in isolation, but rather in the context of the concerns expressed by the Supreme Court in the Atkins decision.

In 2012, the CCA considered a capital murder habeas case (Ex Parte Sosa) wherein the applicant alleged that he was mentally retarded at the time of the offense.  The habeas court found that the applicant established mental retardation.  The CCA cited some inconsistencies and ultimately remanded the case back to the convicting court for the judge gather more information and consider the Briseno factors in determining whether the applicant was (or is) indeed mentally retarded.

This is an interesting area of law to me.  I've had the occasion to dig into some literature on autism, and at first glance it would seem that some autistic indviduals (those that are higher on the spectrum) might satisfy the factors laid out by the CCA.  Of course, the Briseno and Atkins cases deal only with the death penalty and capital punishment, but as far as retribution and deterrence go, this could be good extenuation and mitigation evidence for the factfinder to consider in other cases as well.