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Criminal Defense Archives | Fort Worth Criminal Defense, Personal Injury, and Family Law

Fireworks Laws Texas Keller Southlake

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

By | Criminal Defense

Do Not Lose Your Liberty on Independence Day

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

Texas Fireworks Law | Are Sparklers Illegal Inside of City Limits?

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

Specifically, under state law, a person may not:

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

Texas Occupations Code, Subchapter F, Sec. 2154.251

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

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

Fireworks City Ordinances | Local Fireworks Rules in Fort Worth, Keller, and Southlake

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

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

SBA Loans Criminal History

SBA Loans Limitations Based on Criminal History

By | Criminal Defense

Can I apply for an SBA Loan if I have a criminal history?

SBA Loans Criminal HistoryCountless small businesses have been impacted by the COVID-19 pandemic. The US Government has several different loan programs offered through the Small Business Administration aimed at helping small business get through the crisis and maintain jobs for their employees. Many of the SBA loan programs for the COVID-19 crisis can be found on the SBA website COVID-19 section.

One of the questions that we have received during the last couple of weeks is whether a person with a criminal history can apply for an SBA loan. The answer is…it depends. It depends on the nature of the criminal offense.

What will disqualify me from applying for an SBA loan?

When it comes to criminal history, the following will disqualify a company and make it ineligible for SBA assistance.

If an owner of the company (who owns 20% or more) answers YES to any of the following questions taken from the SBA application, then the company is NOT eligible to apply for SBA assistance:

  • Are you currently incarcerated?
  • Have you been adjudicated for a felony in the preceding 5 years? This includes
    • Felony conviction;
    • Plea of guilty to a felony offense;
    • Plea of nolo contendere (no contest) to a felony;
    • Participating in a pre-trial diversion program for a felony offense;
    • Probation or Deferred Adjudication for a felony offense.
  • Are you currently on probation for a felony or a misdemeanor?
  • Are you currently on parole?
  • Are there pending criminal charges against you that have not yet been adjudicated (felony or misdemeanor)?

*NOTE: There is also a question on the Economic Injury Disaster Loan that asks whether an applicant has been arrested (even if the charge was dismissed) for any criminal offense (other than a minor motor vehicle violation). It is unclear whether an arrest by itself is a disqualifier or just a point of inquiry.

If a 20% (or more) owner answers YES to any of those questions, then the company will not even be able to complete its application for SBA assistance.

In the past, it seemed that the SBA was only concerned with felony criminal history (see 13 CFR 120.110), but the new applications for the COVID relief do not distinguish between felonies and misdemeanors when it comes to either active probationers or individuals with pending charges.  This is especially difficult for individuals that have a pending criminal charge to which they have pleaded not guilty and not yet received their day in court. To sink their business while at the same time presuming them innocent is not in keeping with the spirit of the presumption itself.

Please be reminded that it is a federal offense to falsify a loan application, so please don’t do that.

Paycheck Protection Loan Application

Economic Injury Disaster Loan

Reckless Texas Penal Code

What does Recklessness Mean in Texas Criminal Law?

By | Criminal Defense

Defining “Recklessness” Under the Texas Penal Code

Reckless Texas Penal CodeThere are some criminal offenses that require the state the prove that the defendant acted “recklessly” or with “criminal recklessness.” In a colloquial sense, we (including prosecutors) often think of recklessness as another word for carelessness, but it actually has a specific definition in the Texas Penal Code.

Defining “Recklessness,” Tex. Penal Code Section 6.03(c) states that “a person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist, or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.”

What Does the Texas Court of Criminal Appeals Say About Recklessness?

Unpacking the legal standard of recklessness, The Texas Court of Criminal Appeals reasons that…

“Criminal recklessness must not be confused with (or blended into) criminal negligence, a lesser culpable mental state.” Williams v. State, 235 S.W.3d 742, 751 (Tex. Crim. App. 2007). “Criminal negligence depends upon a morally blameworthy failure to appreciate a substantial and unjustifiable risk while recklessness depends upon a more serious moral blameworthiness – the actual disregard of a known substantial and unjustifiable risk.” Id.

Criminal negligence and recklessness differ from one another only in terms of mental state:

  • Criminally negligent defendant “ought to be aware” of a substantial and unjustifiable risk;
  • Reckless defendant is subjectively aware of an identical risk but disregards it

The two prongs of gross negligence or recklessness are:

  • Subjectively, the defendant must have actual awareness of the extreme risk created by his or her conduct.
  • Objectively, the defendant’s conduct must involve an extreme degree of risk (the “extreme risk” prong is not satisfied by a remote possibility of injury or high probability of minor harm, but the likelihood of serious injury to the plaintiff).

Reckless conduct…

  • Is the conscious disregard of the risk created by the actor’s conduct;
  • Mere lack of foresight, stupidity, irresponsibility, thoughtlessness, ordinary carelessness, however, serious the consequences may be, do not suffice to constitute criminal recklessness;
  • Criminal recklessness is of a gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects; or that entire want of care which would raise the presumption of a conscious indifference to consequences; or which shows such wantonness or recklessness or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others, which is equivalent to an intentional violation of them.

Recklessness: Texas Case Law Examples

Williams v. State, 235 S.W.3d 742 (Tex. Crim. App. 2007): The defendant was convicted after her children died in an accidental house fire while her boyfriend was babysitting. The defendant took the children to a house without working utilities and left them under her boyfriend’s care with a candle lit in their bedroom. The court held that there was legally insufficient evidence that defendant consciously disregarded a substantial and unjustifiable risk that the children would suffer serious bodily injury in a house fire. The court also said that the defendant’s stupidity did not constitute reckless disregard. The defendant was not criminally responsible for the result

Mills v. State, 742 S.W.2d 831, 1987 Tex. App. LEXIS 9214 (Tex. App. Dallas Dec. 18. 1987, no writ): The defendant’s conviction was upheld where circumstantial evidence supported the conclusion that defendant placed a child in a tub of hot water. The Court found that the jury could reasonably have found defendant acted recklessly with regard to that child’s care in violation of Tex. Penal Code § 6.03(c).

Ehrhardt v. State, No. 06-02-00208-CR, 2003 Tex. App. LEXIS 7248 (Tex. App. Texarkana Aug. 26, 2003): Where the evidence in an assault trial showed defendant struck the victim in the face, the court found that the defendant was reckless as to whether her conduct would result in bodily injury.

Criminal Negligence Texas

Defining Criminal Negligence Under Texas Law

By | Criminal Defense, Criminal Negligence

What is Criminal Negligence in Texas?

Criminal Negligence TexasIn Texas, there are some criminal offenses for which a person can be liable if they acted with “criminal negligence.” When most people think of “negligence,” they think of a civil standard used in lawsuits for money damages. But criminal negligence, the courts have reasoned, is different from ordinary civil negligence.

Section 6.03(d) of the Texas Penal Code states that “a person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.”

How does Criminal Negligence Differ from Civil Negligence in Texas?

Civil or simple negligence means the failure to use ordinary care, that is, failing to do that which a person of ordinary prudence would not have done under the same or similar circumstances. Montgomery v. State, 369 S.W.3d 188, 193 (Tex. Crim. App. 2012). Conversely, conduct that constitutes criminal negligence involves a greater risk of harm to others, without any compensating social utility, than does simple negligence. Id. The carelessness required for criminal negligence is significantly higher than that for civil negligence; the seriousness of the negligence would be known by any reasonable person sharing the community’s sense of right and wrong. Id. The risk must be substantial and unjustifiable, and the failure to perceive it must be a gross deviation from reasonable care as judged by general societal standards by ordinary people. Id.

For example: The Texas Court of Criminal Appeals has held that criminally negligent homicide requires not only a failure to perceive a risk of death, but also some serious blameworthiness in the conduct that caused it (i.e., risk must be “substantial and unjustifiable,” and the failure to perceive that risk must be a “gross deviation” from reasonable care).

In finding a defendant criminal negligent, a jury is determining that the defendant’s failure to perceive the associated risk is so great as to be worthy of a criminal punishment. The degree of deviation from reasonable care is measured solely by the degree of negligence, not any element of actual awareness. Whether a defendant’s conduct involves an extreme degree of risk must be determined by the conduct itself and not by the resultant harm. Nor can criminal liability be predicated on every careless act merely because its carelessness results in death or injury to another.

Case Law Examples of Criminal Negligence Standard in Texas

McKay v. State, 474 S.W.3d 266 (Tex. Crim. App. 2015): The Court of Criminal Appeals holding insufficient evidence of criminal negligence to support Defendant’s conviction for injury to a child after he spilled hot water on the two-year-old child while he was in the kitchen, because there was no evidence that Defendant failed to perceive a substantial and unjustifiable risk to the child. There was no showing that the child was often underfoot or that defendant knew the child could likely be under his feet while moving around in the kitchen.

Queeman v. State, 520 S.W.3d 616 (Tex. Crim. App. 2017): The Court of Criminal Appeals holding insufficient evidence to support defendant’s conviction of criminally negligent homicide because the evidence presented does not show that Defendant’s failure to maintain a safe driving speed and keep a proper distance from other vehicles was a gross deviation from the standard of care that an ordinary diver would exercise under all the circumstances as viewed from Defendant’s standpoint at the time of his conduct.

Tello v. State, 180 S.W.3d 150 (Tex. Crim. App. 2005): The Court of Criminal Appeals upheld Appellant’s criminal negligent homicide conviction reasoning that Appellant should have perceived a substantial and unjustifiable risk of death from using a faulty trailer hitch without safety chains on a public road. The homemade trailer unhitched from Appellant’s truck and killed a pedestrian.

Pre Sentence Investigation PSI Texas

What is a Pre-Sentence Investigation (PSI) in a Texas Criminal Case?

By | Criminal Defense

Making an “Open Plea” in a Criminal Case

Pre Sentence Investigation PSI Texas*This article relates to State cases only. It does not apply to Federal cases.

In Texas, when a defendant pleads guilty to a criminal offense, the sentencing is most often agreed upon by both the State Prosecutor and defendant prior to the plea. But, there are situations that arise wherein a defendant wishes to enter a plea of guilty, but does not agree to accept the sentencing recommendation that is being made by the State. The defendant may request that the judge assess an appropriate sentence, believing that the judge might be more fair-minded than the DA in this particular case. This situation is referred to as an “Open Plea.” In an open plea, after a defendant pleads guilty, both parties may put evidence on for the judge in order for the court to determine an appropriate sentence.

Pre-Sentence Investigation (PSI) as Part of an Open Plea

In addition to witness testimony, prior to sentencing a defendant, Texas Law (Texas Code of Criminal Procedure Art. 42A.252) requires a community supervision officer to prepare and submit a written report to the court. The report should include:

  • the circumstances of the offense with which the defendant is charged;
  • the amount of restitution necessary to adequately compensate victims of the offense;
  • the criminal and social history of the offender; and
  • any other information relating to the offender or the offense requested by the judge.”

The probation officer gathers this information during a pre-sentence investigation or PSI.

The Law Regarding PSIs in Texas | When is a PSI Required?

The law requires a pre-sentence investigation in every case, UNLESS:

In a misdemeanor case:

  1. The defendant requests that a report not be made and the judge agrees;
  2. The judge finds that there is sufficient evidence in the record to permit sentencing without the report; and
  3. The judge explains this finding on the record.

In a felony case:

  1. Punishment is to be assessed by a jury;
  2. The defendant is convicted of or enters a plea of guilty to capital murder;
  3. The only available punishment is imprisonment; or
  4. The judge is informed that a plea bargain exists, under which the defendant agrees to a punishment of imprisonment, and the judge intends to follow that agreement.

Unless one of these scenarios are present, the court is required to conduct a pre-sentence investigation. For agreed pleas to probation or deferred adjudication, the practice by the Tarrant County courts is that pre-sentence investigation is not often conducted, even though the law would seem to dictate otherwise.

The Mechanics of a Pre-Sentence Investigation

The PSI is an interview conducted by a specialized probation officer who – along with a defendant’s attorney – gathers as much information as possible to aid in a Judge’s decision on punishment. The officer gathers the police agency’s version of the facts and the defendant’s version of the facts regarding the underlying offense. The officer will also contact the victims named in the case to obtain a victim impact statement. The probation officer also does an extensive search of the defendant’s prior criminal record as well as his or her family, financial, and education history. The officer can also include other items in the PSI such as additional physical and mental health history.

At the pre-sentence investigation interview, the attorney representing the defendant can also submit other extraneous materials to be included in the officer’s report to the court. These items can include character reference letters, additional psychological evaluations that have been conducted prior to the investigation, and additional statements by the defendant related to his or her version of the case. It is prudent for the defense attorney to contact all of the people that have submitted character letters that ensure that their letter is an accurate reflection of their feelings regarding the defendant. Many times, the probation officer, and/or the prosecutor will also reach out to these folks, so it is best to confirm their character statements at the outset.

At the conclusion of the PSI, the officer in charge prepares a written report which includes his or her assessment of the defendant’s risk to re-offend, positive and negative factors to consider, and a supervision plan should the Court choose to place the defendant on probation. For cases involving restitution, the PSI will also include a restitution recommendation.

Taking Responsibility in an Open Plea

Defendants entering an open plea to the court waive their right to a jury trial. So, when conducting the pre-sentence investigation, the probation officer will confirm that the defendant is taking responsibility for his or her crime. This is an important part of the process. If the defendant has entered a plea of guilty to the crime in court but then denies the offense at the PSI, the officer will stop the investigation and return the case to court. One of the primary advantages, from a strategic standpoint, of entering an open plea is to communicate to the court that the defendant is taking on full responsibility for the crime. This is done in hopes that the court will take that into consideration when determining an appropriate sentence. It is this attitude of acceptance that typically garners the best results in an open plea. This is sometimes referred to in layman’s terms as throwing oneself on the “mercy of the court.”

Getting the Most Out of the PSI

Defense attorneys whose clients have opted for an open plea and a pre-sentence investigation can help their cause by supplementing the officer with as much positive information as possible. As mentioned above, it’s important for an attorney to gather additional character letters and to explore outside mental and psychological evaluations that might be conducted to be included in the report to the court. Additionally, if the defendant has already been serving community service, taking rehabilitative classes, or saving toward restitution, you should explain that and provide records to back it up.

Once the PSI is completed and submitted to the judge, the court will set the case for a sentencing hearing. At the sentencing hearing, testimony from both the defendant and character witnesses will be taken into consideration. But, it’s the pre-sentence investigation report that will typically be the most important item that the court reviews.

Not all cases involve a pre-sentence investigation. But, when a PSI is conducted, it can provide the most thorough review of a case and defendant’s background aiding in a court to assess a fair and just punishment.

Co Defendant Suppression New Trial Arizmendi

When a Co-Defendant’s Wins a Suppression but You Already Pled Guilty

By | Criminal Appeals

“Buyer’s Remorse”—Rolling the Dice on Plea Deals

Co Defendant Suppression New Trial ArizmendiThe Court of Criminal Appeals recently handed down an opinion concerning a motion for a new trial based on evidence obtained from a co-defendant’s motion to suppress hearing. The issues facing the Court were whether the defendant, who had recently entered into a plea deal, satisfied the requirements for granting a new trial on the basis of such evidence; and, whether the defendant’s ineffective assistance of counsel claim was properly brought before the court.

State of Texas v. Arizmendi (Court of Criminal Appeals, 2017)

The Facts — Trial Court Granted Defendant’s Motion for New Trial in the “Interest of Justice.”

Rosa Arizmendi, Defendant, was convicted (after pleading guilty) for being in possession of more than 400 grams of methamphetamine with intent to deliver after officers stopped her co-defendant’s vehicle, of which she was a passenger. Both Defendant and Co-defendant were arrested as a result of the stop. On April 28, 2015, Defendant entered into a plea deal, receiving twenty-five years confinement and a $5,000 fine. Additionally, Defendant voluntarily waived her right to appeal.

Six days later, a hearing for a motion to suppress was held regarding Co-defendant’s case. The video of the stop was introduced into evidence, and the arresting officer testified, noting that he initially noticed the vehicle because it looked clean and subsequently stopped the vehicle for crossing over the while line delineating the roadway from the improved shoulder. However, the trial court concluded that Co-defendant’s vehicle was not in any violation of Texas law. The Court explained that the vehicle only came in close proximity of and possibly touched the inside portion of the white line, which is not a violation of Texas law. Thus, granting Co-defendant’s motion. See, State v. Cortez, 501 S.W.3d 606 (Tex. Crim. App. 2016).

Based on this information, Defendant filed a motion for new trial, “in the interest of justice,” alleging the verdict in her case was contrary to the law and evidence. Defendant’s motion referred to Co-defendant’s hearing alleging a lack of probable cause or other lawful reasons for the stop. Furthermore, Defendant asserted the officer’s testimony was new evidence not available at the time of Defendant’s guilty plea. Defendant’s counsel further asserted that because she failed to tell Defendant that a motion to suppress was an option, Defendant received ineffective assistance.

The State argued that Defendant waived her right to appeal as a result of the plea deal and had not presented any new evidence likely to result in a different ruling. Noting, all evidence could have been discovered had Defendant been diligent. The State further asserted that Defendant was merely suffering from “buyers remorse.” Moreover, the State contended Defendant’s ineffective assistance claim was not apart of the original motion for new trial and, therefore, was untimely. However, the trial court rejected these arguments and granted Defendant’s motion for new trial “in the interest of justice,” and the State appealed.

The Court of Appeals Affirmed the Trial Court’s Decision — Holding Defendant Satisfied the Requirements for Granting a New Trial Based on Newly Discovered Evidence.

On appeal the State contended that the trial court abused its discretion in granting Defendant’s motion and further reiterated its previous assertions.

The Court of Appeals, however, rejected the State’s arguments. The Court held Defendant’s motion was not barred because the trial court implicitly granted Defendant permission to appeal when it set Defendant’s motion for hearing. The Court also determined Defendant did, in fact, present new evidence. The video of the stop did not contain audio and, therefore, the testimony was new because it was not available at the time of Defendant’s plea. Accordingly, since the Court found there was new evidence they declined to rule on the ineffective assistance claim and affirmed the trial court’s ruling.

The Court of Criminal Appeals Reversed and Remanded — Holding Defendant did not Satisfy the Requirements for Relief.

The State appealed again and the Court of Criminal Appeals reversed the lower courts’ decisions. Here, Defendant pled guilty pursuant to a plea deal and after learning of her co-defendant’s favorable outcome Defendant filed a motion for new trial. The Court concluded that Defendant’s assertions were without merit because her failure to discover “new evidence” was a result of her own lack of due diligence. Furthermore, the “new evidence” Defendant asserts was either cumulative, collateral, or would not have brought about a different result.

To obtain relief the Court noted Defendant must satisfy the following four-prong test:
• The newly discovered evidence was unknown or unavailable to Defendant at the time of trial;
• Defendant’s failure to discover or obtain the new evidence was not due to the defendant’s lack of due diligence;
• The new evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching; and,
• The new evidence is probably true and will probably bring about a different result in a new trial.

Defendant asserted the following as newly discovered evidence:
• The trial court’s ruling on Co-defendant’s motion to suppress;
• The testimony of the arresting officer at Co-defendant’s suppression hearing; and,
• The arresting officer’s statement about Defendant’s vehicle being a clean vehicle.

First, the Court explained that the trial court’s ruling on the motion to suppress was not evidence; it was only a legal determination. And, furthermore, even if it was considered evidence Defendant’s failure to discover was due to her own lack of due diligence. Second, the officer’s testimony was evidence, but aside from the testimony regarding the clean vehicle, it was merely cumulative and Defendant had access to the video, which conveyed the very same facts as the testimony. Furthermore, the Court determined the officer’s testimony regarding the clean vehicle was collateral, at best. The Court explained that the officer’s subjective intent was irrelevant to the ruling. Moreover, Defendant could have sought a police report or even filed her own motion to suppress to obtain such evidence—just as her co-defendant did. Finally, the Court concluded that Defendant’s ineffective assistance claim was not properly before the court because it was not made within thirty days of the judgment and, therefore, was untimely.

Thus, all evidence Defendant asserts as “new” was either cumulative, collateral, or would not have brought about a different result. As such, the Court reversed the lower courts’ decisions and remanded with instructions to reinstate Defendant’s judgment and sentence.

This case prompted two concurring opinions and a dissent. See below.

Arizmendi Hervey Concurrence
Arizmendi Newell Concurrence
Arizmendi Alcala Dissent

Takeaways

It is paramount that defense attorneys review all evidence and timely seek any additional evidence that may be relevant to a client’s case. Moreover, it is crucial for attorneys to provide clients with all possible options and outcomes before entering into a plea deal. Here, Defendant had all the same options as her co-defendant; however, Defendant was not properly counseled and, consequently, Defendant will spend twenty-five years in prison while her co-defendant remains free.

Animal Cruelty Texas Animal Abuse

Animal Cruelty Laws in Texas | Cruelty to a Non-Livestock Animal

By | Animal Cruelty

Animal Cruelty Texas Animal AbuseTexas is home to many animal owners. Whether residents own household pets, like cats and dogs, or livestock, most animal owners are responsible and ensure that their “fur babies” are provided with proper care. However, there are times when cases arise involving individuals who abuse or neglect their animal or someone else’s. If this occurs, there may be grounds for a police investigation and serious criminal charges. So, what conduct falls under animal cruelty laws in Texas and what are the potential criminal consequences?

What Constitutes Animal Cruelty?

Animal cruelty laws in Texas apply to domesticated animals, which are further divided into two categories:

  • Livestock animals
  • Non-livestock animals

Cruelty to non-livestock animals accounts for a majority of animal cruelty cases and, therefore, a proper understanding of Section 42.092 of the Texas Penal Code, governing animal cruelty to non-livestock animals, is essential.

Non-livestock animals are generally what most people would consider “household pets.” Section 42.092 defines a non-livestock animal as a domesticated living creature, including any stray or feral cat or dog, and a wild living creature previously captured. This would include dogs, cats, rodents and reptiles. Generally speaking though, animal cruelty laws do not apply to wild animals that are not captured—such as deer, wild hogs, mountain lions, etc.

Section 42.092 encompasses an array of behavior that is considered animal cruelty to non-livestock animals. To be charged with animal cruelty under this section, a person must have performed these “cruel acts” intentionally, recklessly or knowingly. The types of cruel behavior the statute covers include:

  • Torturing an animal (causing unjustifiable pain or suffering);
  • Killing an animal in a way that is considered cruel or leads to serious bodily injury of the animal;
  • Administering poison to an animal;
  • Failing to provide a reasonable amount of food, water, care and shelter to an animal;
  • Abandoning an animal;
  • Transporting or confining an animal in an unreasonable or cruel way;
  • Causing an animal to engage in a fight with another animal (if the animal is not a dog—dog fighting has its own Section in the penal code);
  • Without the owner’s consent, causing bodily injury to an animal;
  • Using a live animal as a lure in a dog race; or,
  • Seriously overworking an animal.

Some of these definitions are broad and can potentially cover a wide range of abuse.

Potential Consequences

Misdemeanor Animal Abuse

A person who intentionally, knowingly or recklessly fails to provide a reasonable amount of food, water, care and shelter; abandons an animal; transports or confines an animal in a cruel manner; causes bodily injury to an animal; or seriously overworks an animal will be punished with a Class A misdemeanor.

An individual convicted of a Class A misdemeanor may be sentenced to up to a year in county jail and a fine of up to $4,000. Additionally, a person who has been previously convicted two times for animal cruelty will have their punishment enhanced to a state jail felony. (see below for definition)

Felony Animal Abuse

3rd Degree Felony: A person who intentionally, knowingly or recklessly tortures; kills; administers poison to or causes serious bodily injury of an animal may be guilty of a Third Degree Felony. An individual convicted of a Third Degree Felony may be sentenced from 2 years to 10 years in prison and a fine up to $10,000.

A person who intentionally, knowingly or recklessly causes one animal to fight with another; or, uses a live animal as a lure could be punished with a State Jail Felony. A State Jail Felony may be sentenced from 180 days and up to two years in a state jail facility and a fine up to $10,000.

Additionally, a person who has been previously convicted two times for animal cruelty will have their punishment enhanced by one felony degree.

Defenses

Section 49.092 of the Texas Penal Code provides several defenses to prosecution of animal cruelty of non-livestock animals. For example, it is a defense if:

  • The animal is killed in self-defense;
  • The animal is killed or injured upon discovering the animal injuring or killing the person’s livestock or damaging the person’s crops;
  • The conduct occurs for legal hunting or agriculture practices; or
  • The conduct occurs for true scientific research.

While there are many potential defenses, a conviction for animal cruelty can be extremely serious and it may jeopardize a person’s future animal ownership rights. Thus, it is essential to seek help if you have or may be charged with animal cruelty.  Contact our team of criminal defense attorneys for a free consultation about your animal cruelty allegation.

Texas Grand Jury What is a Grand Jury

What is a Grand Jury? | The Role of the Grand Jury in Texas Criminal Law

By | Grand Jury

Texas Grand Jury What is a Grand JuryYou may hear on the news that a case is going to the Grand Jury and wonder, What exactly is a Grand Jury? Is a grand jury to same thing as a regular jury? Can does a grand jury have special powers that a regular jury doesn’t have? Where does a grand jury fit into my case? This article seeks to answer those questions and clear up some of the myths about grand juries in Texas.

What is a Grand Jury?

A grand jury is group of 12 citizens that review felony criminal charges to determines whether probable cause exists for the case to continue forward. This is NOT the same type of jury that hears the case at trial.  The Grand Jury does not decide guilt or innocence, only probable cause. If the grand jurors determine that there is probable cause, then they vote to indict the case. An indictment is an essential part of every criminal case. If the grand jurors determine that there is not probable cause to believe an offense has been committed by the named defendant, then they vote to issue a no-bill. A no-bill typically means the case is dismissed and the District Attorney will not proceed with prosecution of the case.

How are the Grand Jurors Selected to Serve?

Prior to 2015, grand juries were chosen by “jury commissioner” appointed by district court judges. This process was known as the “pick-a-pal” system. The law changed in September 2015 and now grand jurors are selected in a random fashion, akin to the trial jury selection system. The jury pool is taken from registered voters in the county in which the court presides. Prospective jurors cannot have been convicted of any felony offense or a misdemeanor involving moral turpitude (like theft). They must also not have any criminal charges pending against them.

What is an Indictment?

An indictment is the formal accusation of a crime, issued by a grand jury. Prior to an indictment, the district attorney typically makes an allegation through a complaint. A complaint can become an indictment only after the grand jury votes to issue the indictment.  Only an indicted felony case can proceed to trial (where the real jurors decide whether a defendant is guilty or not guilty).

What is a No-Bill?

If a grand jury decides that a felony charge is not supported by probable cause, then it votes to return a no-bill on the case. This literally means that there was “no bill of indictment” issued. Sometimes, instead of a complete no-bill, a grand jury will indict a lesser-included charge, taking the felony to a misdemeanor.

The Mechanics of the Grand Jury Process in Texas

It is important to understand that the grand jury process is a secret proceeding. The defendant and his attorney do not have a right to be present in the hearing room or to present evidence unless the district attorney permits them to make a presentation. It is discretionary for the DA to allow either a paper submission or live testimony offered by the defense. During the grand jury hearing for a particular case an Assistant DA will explain the charge and the legal elements that the state is required to prove. The ADA will then run down the evidence from the police report and other video/audio recordings, giving the grand jurors a brief synopsis of the facts. The jurors can ask questions of the ADA and request further evidence if needed. In some cases, the ADA will call witnesses like police officers or victims to give testimony regarding the alleged offense. Most cases can be completed with the grand jury in a matter of hours, but the occasional complex case might take longer.

How is a Grand Jury Difference from a Regular Jury?

The grand jurors serve a term (approximately three months), usually coming to the courthouse a couple of day each week. A regular jury comes for jury service and will only hear one case. A grand jury only hears a brief version of the facts from the side of the state while the regular trial jury will hear the full version of the facts from both sides as well as cross-examination of the witnesses. Grand jurors can only vote to indict or no-bill. They cannot find a person guilty or not guilty – only a trial jury can do that. So, in a sense, the trial jury actually has the “grand” power.

Should the Defense Make a Grand Jury Presentation?

In our experience, it can be incredibly helpful to make a defense presentation to the grand jury. This can mean the difference between a felony indictment, a misdemeanor lesser charge, or a complete dismissal. Sometimes the best presentation is a written presentation and other times the defense would be better served to address the grand jurors in person. It really depends on the case and the overall strategy of the defense team. Grand jurors like to ask questions, so being there to answer them is usually a good thing (if you have good explanations).

Texas Statute of Limitations

Statute of Limitations in Texas | How Long Does the State Have to Bring Charges?

By | Criminal Defense

How Long Does the State Have to Bring a Criminal Case Against Me?

Texas Statute of LimitationsTexas law sets out the statute of limitations, the period during which formal charges must be brought against the defendant for most offenses. These time periods range from two years to over twenty years, and for some offenses there is no limitation period at all. The applicable limitation period depends on the particular offense that is alleged.

The various statutes of limitations mean that the state must present an indictment or information within said time period or prosecution will be time barred. The presentation of an indictment occurs when the grand jury has made its decision and the indictment is received by the court. Tex. Code Crim. Proc. Ann. Art. 12.06. The presentation of an information occurs when it has been properly filed in court. Tex. Code Crim. Proc. Ann. Art. 12.07. The limitations period is tolled while the case is pending after an information is filed or indictment issued. Tolling means that the time will not be counted against the limitations period.

Generally, the time period is measured based on the date the offense was committed. When computing the time period, the day on which the offense was committed and the day on which the charge was presented are excluded. Tex. Code Crim. Proc. Ann. Art. 12.04. Thus, the clock starts running the day after the offense was committed and is paused when the indictment or information is presented. Additionally, any time the defendant was absent from the state is excluded when computing the time period. Tex. Code Crim. Proc. Ann. Art. 12.05(1).

What Are the Time Periods in the Texas Statutes of Limitations?

Texas law provides that for all misdemeanor offenses there is a standard period of limitations of two (2) years. Tex. Code Crim. Proc. Ann. arts. 12.02. Thus, for any given misdemeanor charge, the State must bring prosecution within two years from the commission of the crime.

There are several periods of limitations provided for the various felony offenses, as well as a catch all time period of three years for all other felonies not specifically provided for. Tex. Code Crim. Proc. Ann. art. 12.01(7). See the chart below for the time period provided for certain major felony offenses.

TEXAS PERIODS OF LIMITATIONS FOR FELONY OFFENSES

PERIOD OF LIMITATIONS FELONY OFFENSE
(A) Five Years

 

See Tex. Code Crim. Proc. Ann. art. 12.01(4).

  • Theft or Robbery,
  • Kidnapping or Burglary (except as provided in (E)),
  • Injury to Elderly or Disabled (unless 1st Degree),
  • Abandoning or Endangering Child, and
  • Insurance Fraud
(B) Seven Years

 

See Tex. Code Crim. Proc. Ann. art. 12.01(3).

  • Money Laundering
  • Credit Card or Debit Card Abuse
  • Medicaid Fraud
  • False statement to obtain property or credit; and
  • Fraudulent Use or Possession of Identifying Information
(C) Ten Years

 

See Tex. Code Crim. Proc. Ann. art. 12.01(2).

  • Theft of any estate by an executor, administrator, guardian, or trustee
  • Theft by a public servant of government property
  • Forgery or uttering, using, or passing of a forged instrument
  • Sexual assault (except as provided in (F)),
  • Injury to an elderly individual or disabled individual (if punishable as a first degree felony), and
  • Arson
(D) Ten Years from the Victim’s 18th Birthday

 

See Tex. Code Crim. Proc. Ann. art. 12.01(6).

  • Injury to a Child
(E) Twenty Years from the Victim’s 18th Birthday

 

See Tex. Code Crim. Proc. Ann. art. 12.01(5).

  • Sexual Performance by a Child younger than 17
  • Aggravated Kidnapping with intent to sexually abuse a victim younger than 17, and
  • Burglary of a Habitation with the intent to sexually abuse a victim younger than 17
(F) No Time Limitation

 

See Tex. Code Crim. Proc. Ann. art. 12.01(1).

  • Murder or Manslaughter
  • Leaving the Scene of an Accident which Resulted in Death
  • Indecency with a Child
  • Sexual Assault or Aggravated Sexual Assault of a Child
  • Continuous Sexual Abuse of a Child
  • Sexual Assault if DNA testing indicated that the perpetrator’s identity could not be readily determined
  • Sexual Assault if there is probable cause to believe that the defendant has committed the same or similar offense against 5 or more victims
(G) Three Years

 

See Tex. Code Crim. Proc. Ann. art. 12.01(7).

  • All other Felonies.

Periods of Limitations for Aggravated Offenses, Attempt, Conspiracy, and Solicitation

The limitation period for criminal attempt is the same as provided for the offense attempted. Tex. Code Crim. Proc. Ann. art. §12.03(a). Additionally, the limitation period for criminal conspiracy or organized crime is that of the most serious offense that is the subject of the conspiracy or organized crime. §12.03(b) Further, the limitation period provided for criminal solicitation is the same as the period of the felony solicited. §12.03(c). Finally, an aggravated offense has the same period of limitation as provided for the primary crime. §12.03(d)

In conclusion, these limitations are set out to protect defendants from having to face charges where evidence is stale and witnesses are unavailable due to the long period of time the State has waited to bring prosecution. The Texas Code of Criminal Procedure is very specific in how it has laid out the periods of limitations so that there will be no question as to the time period for a particular offense and how that time period should be computed.

*Note: The above provided chart is not all-inclusive but instead focuses on only some of the major felony offenses. An exhaustive list can be found in Section 12.01 of the Texas Code of Criminal Procedure.

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.

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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.