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Criminal Law Legislative Updates 2013

By | Legislative Update

Texas Penal Code Fort Worth Criminal AttorneysBelow is a summary of the most recent Texas legislative updates 2013 as they relates to Criminal Law:

– In an attempt to reduce wrongful convictions in Texas, Senate Bill 1611 requires prosecutors to open their files to defendants and keep records of evidence they disclose. While the United States Supreme Court has long required prosecutors to disclose evidence that is “material either to guilt or punishment,” Senate Bill 1611 requires disclosure of not only all police reports and witness statements, but also any other evidence that is material to any matter regardless of whether such evidence is “material to guilt or punishment.”

Senate Bill 344 allows courts to overturn convictions in cases where the forensic science that originally led to the verdict has changed. During an appeals process, Senate Bill 344 authorizes courts to grant relief on applications for writs of habeas corpus if there is currently available relevant scientific evidence that was not available at the time of conviction. The current relevant scientific evidence is only admissible if the evidence was not ascertainable through reasonable diligence at the time of trial.

Senate Bill 1238 authorizes the Texas Forensic Science Commission to investigate unaccredited forensic disciplines such as arson, fingerprinting, breath-alcohol testing, ballistic examinations, and unaccredited entities.

House Bill 1847 requires prosecutors to complete at least one hour of ethics training relating to the duty to disclose exculpatory and mitigating evidence.

Under Senate Bill 825, an exoneree is permitted to file a grievance up to four years following release from prison against a prosecutor alleged to have violated the ethics rule regarding the duty to disclose. This bill further prohibits a private reprimand for such a violation.

– In an effort to reduce the possibility of a false confession being admitted at trial by a person who does not speak or understand English, House Bill 2090 requires that a written statement by an accused be in the language that he or she can read and understand before it can be admitted as evidence in a criminal proceeding.

– Upon a second conviction for a “sexually violent offense” against a child under the age of 14, House Bill 1302 requires an automatic life sentence in prison without parole. Furthermore, House Bill 1302 specifically prohibits registered sex offenders from working at amusement parks or seeking employment as cab, bus, or limousine drivers.

Under Senate Bill 124, the offense of Tampering With A Governmental Record is enhanced from a Class A misdemeanor to a 3rd Degree Felony if the governmental record was a public school record, report, or state-mandated assessment instrument. If the actor’s intent was to defraud or harm another, the offense is enhanced instead to a 2nd Degree Felony.

– In an effort to address human trafficking, House Bill 8 enhances all Prostitution offenses from a Class B misdemeanor to a 2nd Degree Felony if the person solicited is younger than 18, regardless of whether the actor knew the age of the person solicited at the time of the offense. House Bill 8 also significantly alters the definition of the crime of Possession of Child Pornography. Accordingly, a person commits the crime of Possession of Child Pornography if they knowingly or intentionally “access with the intent to view” child pornography.

– If the underlying official proceeding in a criminal case involves family violence, Senate Bill 1360 enhances the penalty to the greater of a 3rd Degree Felony or the most serious offense charged in the criminal case. Senate Bill 1360 also provides a statutory forfeiture-by-wrongdoing provision, which specifies that a party to any criminal case, who causes a witness to be unavailable for trial through his wrongful acts, forfeits the right to object to the admissibility of evidence or statements based on the unavailability of the witness.

Senate Bill 275 enhances the penalty for the offense of leaving the scene of an accident resulting in the death of a person from a 3rd Degree Felony to a 2nd Degree Felony. – Upon conviction for a 1st Degree Felony Engaging in Organized Crime offense, Senate Bill 549 enhances the minimum penalty from five to fifteen years in prison. In addition, there is an automatic life sentence without parole upon conviction of Engaging in Organized Crime if the underlying offense is an Aggravated Sexual Assault and the defendant is 18 or older and the victim was either younger than six; or if the victim was younger than 14 and the person caused serious bodily injury or placed the victim in fear of death, serious bodily injury, or kidnapping; or if the victim is younger than 17 and suffered serious bodily injury.

House Bill 2539 places a duty on computer technicians to immediately report the discovery of an image on a computer that is or appears to be child pornography. It is a Class B misdemeanor offense if the computer technician fails to make such report.

Senate Bill 12 suspends evidentiary Rules 404 and 405 in trials for certain sex offenses by allowing the admission of evidence during the guilt-innocence phase of the trial regarding a separate enumerated sex offense that the defendant has committed. While evidentiary Rules 404 and 405 prohibit the use of evidence of a person’s character or character trait to prove that on a particular occasion the person acted in accordance with the character or trait, Senate Bill 12 allows such evidence for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant. Senate Bill 12 further requires the trial judge to make a determination that the defendant committed the separate offense beyond a reasonable doubt prior to the introduction of this evidence and outside the presence of the jury.

Senate Bill 2 was passed in an effort to address the United States Supreme Court’s decision in Miller v. Alabama, which held that mandatory sentences of life in prison without the possibility of parole are unconstitutional for juvenile offenders (those under the age of 18). This posed a unique issue for 17 year olds in Texas, who are treated as adults and not juveniles. Prior to the passage of Senate Bill 2, the only punishment available for an individual (17 and older) who was convicted of capital murder was either an automatic life sentence in prison without the possibility of parole or the death penalty. In an effort to address the unconstitutionality of this punishment on those younger than 18, Senate Bill 2 provides that an individual younger than 18 who is convicted of capital murder be punished with an automatic life sentence in prison with the possibility of parole.

House Bill 434 expands the list of those who are authorized to draw blood from an individual during a DWI investigation. Under previous law, only a physician, qualified technician, chemist, registered nurse, or licensed vocational nurse was authorized to take a blood specimen at the request or order of a peace officer for purposes of intoxication-related offenses. Now, the list of those authorized to draw blood also includes emergency medical technicians and paramedics. This bill allows for a person’s blood to be drawn without having to transport the individual to a separate facility, such as a hospital, during an intoxication-related investigation.

House Bill 1862 removes switchblade knives from Texas’ prohibited-weapons statute. There are no longer criminal consequences to possessing, manufacturing, transporting, repairing, or selling a switchblade knife.

Senate Bill 821 brings Texas law up to date by adding “hot drafts” to “hot checks” statutes to allow prosecution of those who pay with hot drafts by adding “sight order,” along with checks, for purposes of theft by check to allow prosecution for insufficiently funded electronic transfers or “hot drafts.”

If you have a question about how these changes in the law might affect your criminal case, please call us at (817) 993-9249.

KNOW YOUR RIGHTS – Being Accused in Texas

By | Criminal Defense

KNOW YOUR RIGHTS – Being Accused in Texas

Be informed. Be aware. Maintain your composure. Your Liberty is at stake. Every day, Texas citizens have interactions with Texas law enforcement. If you have an encounter with law enforcement it is extremely important that you realize that a police officer does not represent you and is not looking out for your legal interests. Only an attorney can do that. You must stay informed and aware of your rights in order to ensure that the Government does not abuse its power. Under the United States and Texas Constitutions and the Texas Code of Criminal Procedure, every citizen has the following rights:

  • THE RIGHT to be informed of the specific offense(s) alleged to have been committed.
  • THE RIGHT to remain silent. Any statement a person makes, oral, written, or non-verbal [nodding of the head] may be used as evidence against that person in a trial by the State of Texas in court or in other judicial proceedings.
  • THE RIGHT to an attorney for any offense other than a class c misdemeanor.
  • THE RIGHT to obtain an attorney of the person’s own choosing, at that person’s expense, for any offense.
  • THE RIGHT to consult with an attorney and to have a lawyer present during any interrogation.
  • THE RIGHT to terminate an interview or interrogation at any time.
  • THE RIGHT to refuse to give consent to search.
  • THE RIGHT against self-incrimination.

NEVER TALK TO OR FOLLOW THE ADVICE OF INVESTIGATORS  WITHOUT FIRST OBTAINING THE ADVICE OF AN ATTORNEY

GENERAL ADVICE

A suspect has a legal, moral and constitutional right to remain silent and place the burden of overcoming the presumption of innocence and proving his or her guilt beyond a reasonable doubt on the officers, investigators, and attorneys for the government. A suspect should never make an oral, written, or non-verbal statement concerning suspected criminal conduct, even to close friends or relatives without first consulting an attorney. Your best friend can turn out to be your biggest problem at trial and your family members can sometimes be compelled to testify against you. Also, BEWARE of the fact that a routine law enforcement tactic is to monitor and record phone or personal conversations between a suspect and the alleged victim or other persons which may play a role in the case. Criminal investigators work to protect the interest of the government and not the interests of the suspect. ONLY a suspect’s personal attorney can and will work to protect the interests of the suspect. During an interview or interrogation, some officers or investigators may use the “good guy-bad guy” technique in which one acts rough and tough and the other one sympathizes and tries to “help” the suspect. The officers or investigators can legally lie to or deceive a suspect in an effort to get a statement, so be careful! These people are highly trained to elicit incriminatory statements from suspects. The safest thing to do is to simply refuse to talk (or even listen to) the investigators. The request for an attorney must be a clear, unequivocal insistence to speak to an attorney; Comments like “do I need an attorney” or “I think I want an attorney” are NOT sufficient to invoke the right to counsel and to terminate the interview. A suspect may be ordered by a judge to give certain samples (handwriting, hair samples, blood, etc). When possible, consult an attorney before doing so or as soon as possible afterwards, especially if ordered to do so over your objection. NEVER CONSENT to the taking of evidence, except for your fingerprints and photograph. Make the investigator get a search warrant. An investigator does not have authority to direct that a suspect produce evidence, except photographs and fingerprints. If a suspect finds that an appointment has been made for him/her with a physician, drug/alcohol counselor, social worker, or psychiatrist, the suspect should contact an attorney first because conversations between suspects and anyone other than his/her attorney(s) are not privileged or confidential under the law. Communications between a suspect and his/her attorney or agent for the attorney (paralegal) are privileged, unless the communication clearly contemplates the future commission of an illegal act.

SEARCHES AND SEIZURES

A suspect should NEVER CONSENT to a search of his/her person or property without first consulting an attorney. A suspect should make it perfectly clear to the authorities that he/she does not consent, but if the authorities persist, a suspect should never physically resist. There are many theories upon which a search may be legally justified and an attorney will examine he facts of the search at a later time to determine if law supported it. If a suspect legitimately consents to the search, however, there are no legal issues. IMPORTANT: A person who does consent to a search may withdraw that consent at any time during a search. IF YOU CONSENT TO A SEARCH, ANY EVIDENCE FOUND COULD BE USED AGAINST YOU! Force the authorities to get a lawful search warrant.

APPREHENSION, ARREST, AND CONFINEMENT

In many cases, investigators do not physically “arrest” a suspect. After questioning or contact by the investigators, the suspect is usually released. When confronted by investigators, a suspect should never run away or physically resist apprehension, arrest, or confinement, whether that person is innocent or guilty. He/she should always go along peacefully with the authorities, while asking that an attorney be made available before any questioning. Any resistance or flight, even if innocent, can be considered as evidence of guilt. Additionally, resisting apprehension can lead to additional charges being added and/or pre-trial confinement. Pre-trial confinement can occur under very limited circumstances, where the officer or investigator determines that the suspect is a “flight risk,” a danger to the community or to himself, or is likely going to continue the misconduct if not put into pre-trial confinement.

POLYGRAPHS

Polygraphs are frequently used by law enforcement personnel. Under no circumstance should a suspect agree to take a polygraph with the law enforcement agency without advice of counsel. Remember it is permissible for investigators to lie to the suspect, so a suspect could actually “pass” a polygraph, but be told by the examiner that he “failed” the polygraph; the fact that a person is actually telling the truth in no manner means that the polygraph will indicate no deception. Polygraphs are notoriously unreliable, so much so that they are inadmissible in court.

GOOD CONDUCT BEFORE TRIAL

Waiting for your trial date to arrive will be a very difficult time for you. It is extremely important however that you avoid any additional problems prior to trial. As difficult as it will be, you must maintain an excellent attitude at all times and strive to be a productive member of society.

The Uncertainty of Criminal Trial

By | Trial Advocacy

This past week in Tarrant County, Texas I watched a sexual assault trial that I never dreamed would end in a conviction.  We were not defending the case, but I found it interesting, so I went to watch part of the trial.  While the defendant was not particularly likable, it didn’t seem to me that she was a criminal.  I knew the jurors would not like her, but I didn’t think they would convict her of a felony offense.  But that’s the thing about trial.  I don’t get to sit on the jury.  It only matters what 12 citizens think about the case.  I can think about criminal cases in purely legal terms, but jurors are often swayed by emotion.

This case reminded me that there is always a risk in going to trial.  An inherent uncertainty.  Even when you feel pretty confident about your case.  Thankfully, our criminal defense firm has been fortunate enough to get some favorable verdicts in recent trials, but those could have gone the other way very easily.  It is a sobering reality for criminal defense lawyers that someone’s life and future is in your hands.  Even more sobering, however, is the realization that at trial it’s only partly in your hands.  All we can do is prepare, prepare, prepare, and put forth our very best effort.

You’ll Get a Jury Trial and Like It!

By | Jury Trial

Spalding“I want a hamburger…no, a cheeseburger.”

“Spalding!”

Although every criminal defendant is innocent until proven guilty and has the absolute right to a trial on the merits, there are times when it is in the defendant’s best interest to plead guilty to receive a lesser sentence or probation.  Sometimes, that is the best advice I can give.  In these times, our goal is to mitigate the sentence.

However, if you can believe it, the State does not always offer a fair an acceptable plea bargain on sentencing.  In these cases, one of the options is for the defendant is to plead open (i.e. without the protection of a deal) to the judge.  This is a tactical choice.  Some cases are better for a judge and others for a jury. But in Texas it is not exactly the defendant’s choice.

In my Marine Corps days, operating under the military justice system, an accused has the right to sentencing by a jury or by judge alone.  It is the defendant’s choice alone and no one can interfere with that choice.  Seems fair enough, right?

In Texas, however, if a defendant wants to plead guilty and waive his right to a jury, thereby allowing the judge to impose the sentence, the State (i.e. the prosecution) has to consent to it.  If the judge allows a defendant to plead guilty and waive his right to a jury trial without the State’s consent, the judge risks a mandamus action directing him to vacate the judgments.

That is exactly what happened in Travis County in the case of State v. Gonzales (In Re Escamilla).

As the appellate court noted:

Article 1.13 of the code of criminal procedure provides that, other than in a capital felony case in which the State will seek the death penalty, a criminal defendant may enter a plea and waive his right to a jury trial as long as the waiver is made “in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the state.” Tex. Code Crim. Proc. Ann. art. 1.13(a).

The 3rd District Court of Appeals (Austin), in a memorandum opinion, granted mandamus relief and directed the trial court to vacate its judgment. Now they’ll have to see what a jury thinks of the case.

Best Fort Worth Criminal defense attorneys

Accomodating Public Attendance at a Prison Trial

By | Jury Trial, Public Trial

Lilly v. State

Best Fort Worth Criminal defense attorneysThe Sixth Amendment of the United States Constitution guarantees an accused the right to a public trial in all criminal prosecutions.

Appellant Conrad Lilly, was charged with two counts of assault on a public servant while he was in prison.  The trial court sua sponte convened his trial in the prison-chapel courtroom in lieu of the local courthouse.  Appellant objected to his case being tried in the prison chapel and moved for a change of venue, arguing that his 6th Amendment right to a public trial was violated because “prisons are not open to the public and are more like military zones than public places.”  The trial court denied his change of venue request and the 11th Court of Appeals (Eastland) affirmed.

To support his claim, appellant pointed out the following facts to show that, as applied in his case, the prison chapel trial violated his constitutional rights:

  1. The prison is protected by double razor fences, locked metal doors, and high-security procedures;
  2. Only people listed on an inmate-defendant’s approved visitor list could enter the branch courthouse to attend proceedings (only 10 names can appear on that list and the names can only be modified once every 6 months);
  3. Media and other members of the public would be prohibited from entering unless TDCJ officials in Huntsville preapproved the media’s request;
  4. People attempting to attend the proceeding could be denied entrance if they wore offensive clothing; and
  5. Unaccompanied minors and people released from confinement within the last two years are prohibited from entering the prison at all.

In this case, “the court of appeals held that Appellant’s trial was not closed to the public because there was no evidence that anyone was ‘dissuaded from attempting’ to attend, and no one was actually prohibited from attending his trial.”  The Texas Court of Criminal Appeals disagreed with this analysis.  The focus of the inquiry, the CCA explained, “is not whether the defendant can show that someone was actually excluded.  Rather, a reviewing court must look to the totality of the evidence and determine whether the trial court fulfilled its obligation ‘to take every reasonable measure to accommodate public attendance at criminal trial.'”

[E]ven though many of the individual admittance policies in this case would not, standing alone, necessarily amount to a per se closure, the cumulative effect of the Unit’s policies undermines our confidence that every reasonable measure was taken to accommodate public attendance at Appellant’s trial.

Having found that Appellant’s trial was indeed closed to the public, the CCA further held that the trial court failed to make findings of fact on the record that justified closing Appellant’s trial.  Because Appellant’s 6th Amendment right to a public trial was violated, the CCA reversed the judgments of the court of appeals and the trial court, and remanded the case for a new trial.

The CCA refrained from considering or commenting on whether prison trials are inherently violative of the 6th Amendment, noting that there could be occasions where a “public trial” is held in a prison.

Texas Penal Code Fort Worth Criminal Attorneys

New Criminal Laws in Texas 2011

By | Legislative Update

This month’s Texas Bar Journal alerts us to a few new criminal laws in Texas that our elected officials have just added to the books.  Below are some of the more interesting (imo) additions:

Bath Salts – House Bill 2118 outlaws the possession of bath salts, or the chemicals contained in bath salts.  Apparently, folks were using bath salts as alternatives to cocaine, LSD, ecstasy, and methamphetamine.  This is now a felony offense.

Spice – Senate Bill 331similarly bans the possession of synthetic marijuana (i.e. “K2” or “Spice”).  Depending on the quantity of the substance possessed, this new offense will be a Class B misdemeanor up to a first-degree felony.

Sexting for Minors – Under Senate Bill 407, Texas teenagers that send naked photographs via text message will no longer be deemed to have sent “child pornography.”  Sexting will now be considered a Class C misdemeanor for a first offense.