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

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

COVID-19 State Orders Texas

What Happens if I Refuse to Obey the COVID-19 Orders?

By | Criminal Defense

Texas Legal Consequences During the Coronavirus Pandemic

COVID-19 State Orders TexasWith the declaration of a state of disaster in Texas by Governor Greg Abbott on March 13,2020 comes some new consequences that Texas citizens need to be aware of.

We previously posted a blog addressing enhancements that have gone into place for certain criminal offenses. But, there are also new laws activated as a result of state, local and interjurisdictional emergency management plans.

Broadly speaking, Texas Government Code (TGC) 418.173 establishes a penalty for citizens failing to comply with emergency management plans.

Specifically, TGC 418.173 states:

(a)  A state, local, or interjurisdictional emergency management plan may provide that failure to comply with the plan or with a rule, order, or ordinance adopted under the plan is an offense.
(b)  The plan may prescribe a punishment for the offense but may not prescribe a fine that exceeds $1,000 or confinement in jail for a term that exceeds 180 days.

Most local Texas governments have already established emergency management plans. County Judges in Dallas and Austin, for example, have published their Orders regarding these plans on their local websites and are regularly amending them.

The Emergency Order for Tarrant County can be found here.

It’s important that citizens know that with the disaster declaration in effect, violation of these Orders can result in a person being arrested. For practical purposes, that means that if local government is limiting community gatherings and business closures, a violation of those Orders could result in an arrest.

Information coming from our local government is changing on almost a daily basis now. Check with your local jurisdiction for their emergency management plans and be aware of the consequences of violating those plans.

There are a number of special powers and provisions established with the declaration of a statewide emergency effecting many different areas of law. The full text of the extent of those can be found in Chapter 418 of the Texas Government Code.

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.

TSA Airport Gun Charges Texas

What to do if Arrested for Bringing a Gun to the Airport (Accidentally)

By | Criminal Defense, Weapons Charges

Unlawful Carrying of a Weapon at an Airport in Texas

TSA Airport Gun Charges TexasWe love our guns in Texas. After all, those licensed to carry a handgun can now choose to conceal the handgun or wear it on their hip like in the old west. But carrying a handgun comes with its risks. Many places are designated as “off limits” for handguns. Chief among them is the airport. And everyday, well-meaning folks forget about their trusty handgun when they pack their bags and head to DFW International Airport or Love Field, only to be reminded by a less-than-friendly TSA agent as they attempt to pass through security. In fact, Texas is the #1 state for airport gun seizures in the country (and DFW International Airport leads the way in Texas).

 

CALL US TODAY – (817) 993-9249

 

What Can Happen if I Accidentally Bring a Gun Through Security at DFW Airport or Love Field Airport?

Generally, if you carry a firearm through the security checkpoint at an airport, you can be detained and arrested. Carrying a firearm, either on your person or in your carry-on luggage, is a violation of Texas Penal Code Sections 46.02 and 46.03. The detention and arrest could take several hours and will likely cause you to miss your flight as you move through the process. The DFW Airport or Love Field Police will also confiscate your handgun. If you are arrested for bringing a handgun to the airport, your case will be filed with the Tarrant County District Attorney (for DFW Airport case) or Dallas County District Attorney (for Love Field cases).

How Serious is an Arrest for Bringing a Firearm to the Airport in Texas?

Depending on how the authorities choose to proceed, you could be charged with 3rd Degree Felony or a Class A Misdemeanor. A 3rd Degree Felony carries a range of punishment from 2-10 years in prison and a fine up to $10,000. A Class A Misdemeanor carries a punishment range of 0-365 days in the County Jail and a fine up to $4,000. We handle several airport gun cases every year and in our experience, the Tarrant County DA typically files the case as a Class A misdemeanor, while cases that originate in Dallas Love Field Airport usually see the higher felony charge.

What Should I Do After I am Arrested for an Airport Gun Charge?

After you post bond and are released from custody, you need to hire a lawyer to help defend you on the charges. You should also consider signing up for a local gun safety course so that you can demonstrate that you understand the severity of your mistake and are taking steps to ensure that it does not happen again. Other than that, follow the advice of your attorney. Do not attempt to get your gun back. Your lawyer can help you do that with a court order, if appropriate, once the case is closed.

 

CALL US TODAY – (817) 993-9249

 

I Have an LTC (CHL). Are There Any Exceptions for Me?

Yes. In 2015, the Texas legislature added some language to Section 46.03 to provide for LTC holders who accidentally forgot about their weapon. Section 46.03 now provides:

(e-1) It is a defense to prosecution under Subsection (a)(5) that the actor:
(1) possessed, at the screening checkpoint for the secured area, a concealed handgun that the actor was licensed to carry under Subchapter H, Chapter 411, Government Code;  and
(2) exited the screening checkpoint for the secured area immediately upon completion of the required screening processes and notification that the actor possessed the handgun.
(e-2) A peace officer investigating conduct that may constitute an offense under Subsection (a)(5) and that consists only of an actor’s possession of a concealed handgun that the actor is licensed to carry under Subchapter H, Chapter 411, Government Code, may not arrest the actor for the offense unless:
(1) the officer advises the actor of the defense available under Subsection (e-1) and gives the actor an opportunity to exit the screening checkpoint for the secured area;  and
(2) the actor does not immediately exit the checkpoint upon completion of the required screening processes.

So, basically, they are going to give you a chance to leave the secured area as soon as your mistake is realized. They cannot arrest a valid LTC holder unless the person refuses to leave the secured area immediately. There is no such exception for non-LTC holders. Licensed concealed firearm holder from other states should also be given the same opportunity to leave the secured area immediately in order to avoid arrest.

How Can I Lawfully Carry a Firearm on a Flight?

To carry a firearm on a flight, you must place the firearm in your checked baggage and declare it at the time you check your bags. Also, you should check the TSA guidelines before packing to ensure that you follow all of the rules and regulations.

TSA Sent Me a Demand for Money After I was Arrested. What Should I Do?

The law allows for TSA to send a civil demand letter for money damages. TSA officials consider the “severity” of your violation and then send a demand for money within the range that they consider appropriate. They will typically allow for your to pay less than the demanded amount if you pay quickly.

*See this sample TSA Civil Demand Letter.

You may pay the full demand, file a written response, or contact TSA to see if you can work out an arrangement. We have been able to help our clients pay less than what is demanded, but every case is different.

Will I Receive a Criminal Conviction on My Record For Accidentally Bringing My Gun to the Airport?

It depends. Many of our clients that were charged with Unlawfully Carrying a Weapon in the airport have had their cases dismissed. In fact, most have had their cases dismissed. But again, every case is different. The key is to contact an attorney right away so that your rights may be preserved throughout the criminal justice process.  Our team regularly handles airport gun cases arising out of DFW International Airport or Love Field Airport. We have offices in Keller and Fort Worth and offer free consultations.

 

CALL US TODAY – (817) 993-9249

Pretext Phone Call Texas Sexual Assault

Pretext Phone Calls in Sexual Assault Investigations

By | Sex Crimes

Pretext Phone Call Texas Sexual AssaultDid you ever get the feeling like someone is recording your conversation? Texas is a one party consent state meaning your conversations can be recorded and listened to by third parties as long as one party to that conversation consents. In sexual assault investigations, especially where the victim knows the suspect, investigators often use recorded phone calls between the suspect and the complaining witness of the alleged assault. These recorded calls are called “pretext” phone calls. Not only will these phone calls be used to build a case against a suspect but might also be used in court against the suspect.

What is a Pretext Phone Call?

A pretext phone call is a tool used by police officers in the early stages of investigation, especially in sexual assault investigations. It is a tape recorded phone call between the victim and the suspect made by the victim or a close friend of the victim. The phone calls will be made under the supervision of police officers and most preferably the lead investigator or detective. The victim will be provided with all of the equipment necessary to record the phone call. Additionally, the victim will be given direction by the officers on the time of day or night to call the suspect, what type of questions to ask the suspect, and what to prepare for. The victim will be told to ask questions in certain ways that are more likely to solicit an incriminating response instead of just going full speed ahead with the “Why did you rape me?” question, which, for good reason, will cause the suspect to shut down or become defensive stating they did no such thing. An example of a question a victim might told to ask is “Why did you have sex with me after I pushed you way and told you to stop?”

The purpose of pretext phone calls is to, hopefully, obtain an incriminating statement by the suspect. The statements made by the suspect will be used to build the case against the suspect by corroborating information that the victim has told the police officers and help make victim testimony more credible in front of a jury.

Pretext Phone Calls—Used in Drug or Alcohol Related Sexual Offenses and Where the Victim and Suspect Know Each other

Pretext phone calls are often utilized in cases where the victim and suspect know each other. This is because the victim will already have the suspects phone number and vice versa or the victim can come up with a creative way for how they got the suspect’s number, i.e. “I got your number from John Doe, our mutual friend.” Also, they can be particularly helpful in drug and alcohol related sexual assault cases where they knew each other, even if only acquaintances. In such an instance, the victim will be directed to ask questions such as, “You knew I was out of it and didn’t know what was going on, but you had sex with me anyway. Why?”.

When Can Pretext Phone Calls Be Made Under Texas Law?

Preferably, pretext phone calls should be made before the suspect knows there is an investigation against him. For legality purposes, pretext phone calls must be made before a suspects Sixth Amendment right to counsel attaches. Rubalco v. State, 424 S.W.3d 560. The Sixth Amendment right to counsel attaches “at the first appearance before a judicial officer at which the defendant is told of the formal accusation against him and restrictions are imposed on his liberty.” Id.

Thus, if there are no Sixth Amendment issues, pretext phone calls will likely be admissible against the suspect in trial. Id.

Be Aware That Your Phone Conversations Might Be Used Against You

Being in the state of Texas we should all be aware that every phone conversation we have can legally be recorded but you should be especially aware if the conversation gets serious. If you have any “hunch” that an investigation against you might be underway for an alleged sexual assault, contact our experienced attorneys today to learn your rights during these investigations.

Driving Around Barricade Crime Texas

Is Driving Around a Water Barricade a Criminal Offense?

By | Criminal Defense

Rules of the Road During Flood Season in Texas

Driving Around Barricade Crime TexasFor four years in a row, Texas has experienced significant flooding due to unusual amounts of rainfall. Many people have lost their lives in cars that were swept away in rushing water and many houses have been ruined by flooding across the state.  First responders are on high alert and have been involved in numerous high water rescues.

One story made the news in 2016 when a man was rescued after his car entered a flooded roadway and was filled with water.  Johnson County had to use a drone to fly overhead and locate the man and then emergency personnel executed a rescue.  But what made this story different was what happened to the man after he was rescued.  Johnson County Sheriff’s slapped handcuffs on the man and arrested him for driving around a barricade.

Driving Around a Water Barricade is a Class B Misdemeanor in Texas

Section 472.022 of the Texas Transportation Code governs “OBEYING WARNING SIGNS AND BARRICADES” and provides (in relevant part):

(a) A person commits an offense if the person:
(1) disobeys the instructions, signals, warnings, or markings of a warning sign; or
(2) drives around a barricade.
(d)(2) if a person commits an offense under Subsection (a) where a warning sign or barricade has been placed because water is over any portion of a road, street, or highway, the offense is a Class B misdemeanor.

In Texas, the punishment range for a Class B Misdemeanor is 0-180 days in jail and a fine not to exceed $2,000.

While arrests after a water rescue are not the norm, this certainly provides another reason not to drive around a high water barricade. You would think that the potential danger to life and property would be enough, but sometimes folks need a little more motivation. Johnson County has given us that.

Consent to Fighting Texas

Can Adults Consent To A Fistfight in Texas? Not Exactly.

By | Assault

Put Up Your Dukes! Here’s What Texans Need to Know Before They Decide to Engage in a Fistfight.

Consent to Fighting TexasIt’s no secret that folks don’t always get along. Sometimes, especially down in Texas, arguments can lead to fights. When two adults decide to go to fisticuffs, they can reasonably assume that one (or both) of them are going to get hit. But, are the bruises and black eyes the end of it? Can either of these heroes be charged with a criminal offense for their part in the fight? Maybe. It depends.

Consent as a Defense to a Texas Assault Charge

Section § 22.06 of the Texas Penal Code governs consent as a defense to assaultive conduct. This section allows a party accused of assault or aggravated assault or deadly conduct in violation of sections § 22.01, § 22.02 or § 22.05 of the penal code to assert consent of the victim as an affirmative defense to prosecution so long as serious bodily injury is not inflicted and the assaultive conduct is not a requirement of membership in a criminal street gang. While Section § 22.06 is a defense, it does not grant an actor automatic immunity from prosecution. Ultimately, whether both parties to a fistfight demonstrate consent or the reasonable appearance of consent is a fact-intensive inquiry and is a matter for a jury to decide.

-An Illustration-

In Miller v. State, a father and his adult son engaged in fisticuffs over the usual father-son trivialities. The son admitted in an affidavit to egging his father on, inviting him to “come on, hit me,” lunging at his father in a threatening manner and pushing him. The father hit his adult son, bloodying his face and loosening some teeth. After their fight, the bloodied son was discovered by police offers conducting a routine traffic stop. The father was charged with assault in violation of the Texas Penal Code § 22.01. At trial, the father requested a jury instruction on consent but was denied. He was convicted of assault and appealed. The Court of Appeals, Houston 14th District, reversed the trial court, finding that a jury instruction on consent was appropriate given the facts of the case.[1]

What Constitutes Consent to a Fistfight in Texas?

The consent defense to assaultive conduct applies both when the victim gives effective consent to engage in mutual combat as well as when the actor has a “reasonable belief” of the victim’s consent.[2] When evaluating whether a consent defense might apply, courts look to the circumstantial evidence surrounding the fracas. This evidence is evaluated in the light most favorable to the defendant and must merely support the defense’s assertion of the victim’s consent, it does not necessarily have to be believable. Evaluating the credibility of the alleged consent is a question for the jury.[3]

Though juries must be given instruction on consent if the evidence calls for it, the “true meaning” of a combatant’s words are a variable to be considered. In a decision decided on a technicality the court recognized that words like “go ahead,” “come on,” “slap me,” “do it” were not indicative of consent but were “a backhanded warning of potentially dire consequences to the threatener” in those particular circumstances.[4] The court agreed, however, that this is a question for juries to consider with a consent instruction.

In Miller v. State, the victim son, invited his father to “come on, hit me.” The son later explained to police that he was “all jazzed up” and eager for a fight. The victim then kicked and punched his father before his father punched his son. The appellate court took the provocations of the victim to be a part of the calculus for determining mutuality.[5] It is also notable that no parties called the police, that the police encountered the situation through happenstance and pressed charges on their own authority.

What Constitutes “Serious Bodily Harm” Under Texas Law?

Consent is not a defense to assaultive conduct that results in serious bodily harm. Serious bodily harm is defined as “bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”[6] Courts have not produced a definitive demarcation line on what types of assaultive conduct constitute serious bodily harm and what fall short. Serious bodily harm is evaluated on a case-by-case basis[7] accounting for the “disfiguring and impairing quality of the bodily injury.”[8] Injuries are evaluated at the time of the infliction, irrespective of subsequent ameliorating treatment.[9]

Courts have found that the loss of teeth can constitute a serious bodily harm when paired with a sore neck and a week-long hospital stay[10] however, so far, courts have only found the loosening of teeth to rise to the level of serious bodily injury when paired with other serious injuries including fractured facial bones.[11] Blows to the head may or may not constitute serious bodily harm depending on whether they lead to concussion. Similarly, memory loss may or may not constitute serious bodily harm depending on whether it is a product of concussion.[12] Ultimately, if the State alleges serious bodily harm, it is a question of fact for the jury to decide.[13]

In Miller v. State, the state did not allege serious bodily harm and the Court found that the loosening of teeth and the temporary loss of consciousness with no accompanying memory loss did not rise to the level of serious bodily harm.

Jury Instructions On Consent Are Mandatory When Supported By Evidence

In a prosecution for assault, aggravated assault, or deadly conduct in violation of sections § 22.01, § 22.02, or § 22.05 of the Texas Penal Code, the judge must give the jury an instruction on consent and, when charged by the prosecution, serious bodily injury, if the accused has raised any evidence supporting the defense.[14]

“An accused has the right to an instruction on any defense raised by the evidence, whether that evidence is weak or strong, unimpeached or contradicted, and regardless of what the trial court thinks about the credibility of the evidence.”[15]

It is the purview of the jury to determine whether or not the accused had a reasonable belief of consent before engaging in combative behavior. Once the issue of consent is submitted to the jury, the court shall charge the jury that reasonable doubt on the issue requires that the defendant be acquitted.[16]

-Conclusion-

Though a fistfight between consenting adults may well fall into the excepted area carved out by Section § 22.06 of the Texas Penal Code, there are many pitfalls that ought to be avoided. When two parties enter into combat it can sometimes be difficult to establish the mutuality of consent. While consent can be implied from the actions of the participating parties including threatening and inviting speech or belligerent physical action, the more explicit the assertion of consent, the better. If there is sufficient doubt about one party’s eagerness to enter into combat, the consent defense may not apply.

Additionally, when engaging in consensual mutual combat, care must be taken by both parties to not traverse the divide between simple assault and serious bodily harm. Because of the nebulous nature of what constitutes serious bodily harm and the unpredictability in how courts interpret the statute, this can be an especially tricky area to navigate. The difference between a loose tooth and a lost tooth may mark the difference between whether § 22.06 applies.

Finally, both the consent of the parties as well as the gravity of the injuries inflicted are questions for a jury to decide. Though § 22.06 should be introduced as an instruction for a jury to consider when supported by evidence, a person accused of assault still may likely have to undertake the time and expense of a criminal prosecution.

 

[1]          Miller v. State, 312 S.W.3d 209 (Tex. App. – Houston [14th District] 2010).

[2]          § 22.06.

[3]          312 S.W.3d at 212.

[4]          Allen v. State, 253 S.W.3d 260, 268 (Tex. Crim. App. 2008).

[5]          312 S.W.3d at 211.

[6]          Tex. Penal Code Ann. § 1.07 (West).

[7]          312 S.W.3d at 213.

[8]          Blea v. State, 483 S.W.3d 29, 34–35 (Tex. Crim. App. 2016).

[9]          Goodman v. State, 710 S.W.2d 169, 170 (Tex.App.-Houston [14th Dist.] 1986, no pet.).

[10]        Hatfield v. State, 377 S.W.2d 647, 648 (Tex. Crim. App. 1964).

[11]        Pitts v. State, 742 S.W.2d 420, 421 (Tex. App. – Dallas 1987).

[12]        Powell v. State, 939 S.W.2d 713, 718 (Tex.App.-El Paso 1997, no pet.).

[13]        312 S.W.3d at 213.

[14]        Tex. Penal Code Ann. § 2.03 (West).

[15]        Id. at 212.

[16]        § 2.03.

Radar Detector Illegal Texas

Are Radar Detectors Illegal to Use in Texas?

By | Traffic Offenses

Radar Detector Illegal TexasLets face it, most of us have received a speeding ticket at some point in our lifetime. As a result, radar detectors have become commonplace for drivers that want to take preventative measures to avoid receiving a ticket. Such preventative measures bring up an important question: are radar detectors illegal? Can I get a ticket for using a radar detector?

In Texas, using a radar detector in a passenger vehicle is legal with certain restrictions.
Under federal law, however, using a radar detector in any commercial vehicle that has a weight of 10,000 pounds or more is strictly prohibited. Commercial drivers are treated as professional drivers, and thus, different laws apply to them. 49 C.F.R. § 392.71(a).

Is it Legal to Mount a Radar Detector on My Windshield?

Although radar detectors are legal in Texas, a person may still be ticketed if they have mounted their radar detector on their windshield, side, or rear window, and that placement obstructs or reduces the operator’s clear view. Whether or not the placement obstructs an operator’s view is up to the officer’s discretion. As such, to avoid the hassle all together, it is best not to mount your radar detector on your windshield.

Radar Detectors on Military Bases

According to the Department of Defense instructions, persons are strictly prohibited from using radar or laser detection devices on military bases. Department of Defense, DoD Instruction 6055.04, DOD TRAFFIC SAFETY PROGRAM pg. 12 (2013).

What is the Difference Between a Radar Detector and a Radar Jammer?

Over the years, many devices have been created to help prevent speeders from being ticketed. The most common device is the radar detector, which is designed to locate radar signals out of the air. However, radar detectors have become less effective due to advances in technology and policing. This has generated the need for LIDAR/RADAR jamming devices. Unlike the traditional radar detector, a jamming device transmits a radio frequency signal that blocks or otherwise interferes with the operation of police LIDAR/RADAR by overloading its receiver with false information. Jamming devices can cause significant damage to police equipment. Moreover, such devices not only prevent police from detecting the speed of the vehicle with the device, but also the vehicles in the surrounding area.

Accordingly, in 2011, Texas passed HB 1116 to prohibit a person from using, attempting to use, installing, operating, or attempting to operate a radar interference device in a motor vehicle operated by the person. A person who commits an offense under this section may be charged with a class C misdemeanor. Tex. Transp. Code § 547.616. A Class C misdemeanor is punishable by a fine not to exceed $500.

Takeaways….

While many people believe radar detectors promote unsafe driving, advocates refute this contention by explaining that radar detectors alert drivers to their speed and remind them to drive the speed limit, and thus, safer.

In conclusion, spending money on a radar detector may help you dodge a speeding ticket and possibly even drive safer, but there are other laws that may be implicated when using such devices.

Self-Defense Jury Charge Texas

When is a Defendant Entitled to a Jury Instruction on Self-Defense?

By | Self-Defense

Self-Defense Jury Charge TexasThe Court of Criminal Appeals recently released an opinion regarding when a defendant is entitled to a self-defense charge. The issue facing the Court was whether there was some evidence, from any source, that would support the elements of self-defense and whether self-defense was authorized when a deadly weapon was used in response to verbal provocation.

Gamino v. State, Court of Criminal Appeals (2017)

The Facts—The Trial Court Denied Defendant’s Request for a Self-Defense Instruction and Defendant was Subsequently Convicted.

On August 11, 2013, Cesar Gamino (Defendant) and his girlfriend were leaving downtown Fort Worth as the local bars were closing. While Defendant and his girlfriend were walking back to his truck they passed by a group of men who were heard saying lewd comments. Believing the comments were directed at his girlfriend, Defendant confronted the men. Khan, one of the men, told Defendant they were not talking about his girlfriend. According to Khan, Defendant then said “I got something for you,” went to his truck, retrieved a gun, and pointed it in their direction. Two police officers working nearby heard Defendant’s comment and saw Defendant with the gun. Defendant was subsequently arrested and charged with aggravated assault with a deadly weapon. Khan was also arrested and charged with public intoxication.

During trial, Defendant testified that the men threatened him and his girlfriend by saying “grab her ass” and that they would “F her if they wanted to,” and that they would “kick [his] ass.” Defendant further testified that one of the men got up and moved towards him in an aggressive manner. This behavior, coupled with the fact that Defendant was disabled, caused him to believe he and his girlfriend were in danger. As a result, Defendant testified that he reached into his truck, grabbed his gun and told the men, “[s]top, leave us alone, get away from us.” Defendant’s girlfriend also testified that he was in fact disabled and that the men had confronted them and threatened her—causing her to fear for her life.

At the end of the trial, the defense asked for a self-defense instruction in the jury charge and the trial court denied the request.

The Court of Appeals Reversed the Trial Court’s Decision—Holding Defendant was Entitled to a Self-Defense Instruction Regardless of the Fact that he was Charged with Aggravated Assault with a Deadly Weapon.

Section 9.31 of the Texas Penal Code governs self-defense. According to Section 9.31, a person is justified in using force against another when and to the degree that person reasonably believes the force is immediately necessary to protect himself against another person’s use or attempted use of unlawful force. Verbal provocation by itself is not enough.

Section 9.32 governs the use of “deadly force” in self-defense cases. In the case at hand, the lower court charged Defendant with using a deadly weapon. However, even if a defendant uses a deadly weapon, deadly force as defined in section 9.32 may not apply if it meets the requirements of Section 9.04.

Under Section 9.04, a threat to cause death or serious bodily injury by the production of a weapon as long as the actor’s purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.

The Court of Appeals determined that Defendant reasonably believed his use of force was immediately necessary to protect against Khan’s use or attempted use of unlawful force, and Defendant produced his gun for the limited purpose of creating an apprehension. Thus, the Court of Appeals ruled that under Defendant’s version of events, the use of his gun did not constitute the use of deadly force, and Defendant was not disqualified from receiving a self-defense instruction even though he was charged with aggravated assault with a deadly weapon because he met the requirement of Section 9.04.

Accordingly, the trial court erred by not submitting an instruction on self-defense to allow the jury to decide the issue of self-defense.

The Court of Criminal Appeals Affirmed the COA—Holding that the Jury Should Have Been Given the Opportunity to Assess Whether Appellant’s Conduct was Justified as Self-Defense.

The Court of Criminal Appeals agreed that the trial court erred in taking away the self-defense issue from the jury. According to Texas case law, it is error for a trial court to deny a self-defense instruction if there is some evidence, from any source, that will corroborate the elements of a self-defense claim—even if the evidence is weak, contradicted or not credible.

The State argued, as well as the dissent, that Defendant was not entitled to a self-defense instruction because he did not admit to threatening the victim with imminent bodily injury. This argument was based on the idea that self-defense is a confession and avoidance justification, and the confession was missing here. The Court however disagreed, inferring a confession.

Here, Defendant testified that he displayed his gun and yelled, “stop,” “get away,” and “leave us alone.” Accordingly, the court held it to be reasonable for the jury to infer that if the men did not stop, Defendant would have used his gun for protection. As such, even though the evidence was contradicted by the State, Defendant believed the display of his gun was immediately necessary to protect himself against the use or attempted use of unlawful force, and that he displayed his weapon for the limited purpose of creating an apprehension that he would use deadly force if necessary.

Using the Court of Appeals’ analysis, the Court of Criminal Appeals affirmed their judgment holding that the jury should have been given the opportunity to analyze Defendant’s actions as self-defense.

See also the Gamino Dissenting Opinion

Misapplication of Fiduciary Property Texas 32.45

Misapplication of Fiduciary Property in Texas | Texas Penal Code 32.45

By | White Collar

Misapplication of Fiduciary Property—What is it?

Misapplication of Fiduciary Property Texas 32.45Misapplication of fiduciary property is a charge that is aimed at protecting beneficiaries of trusts, estates, receiverships and the like. Pursuant to Section 32.45 of the Texas Penal Code, a person commits the offense of misapplication of fiduciary property by intentionally, knowingly, or recklessly misapplying property he holds as a fiduciary in a manner that involves substantial risk of loss to the owner of the property. Tex. Penal Code Ann. § 32.45(b). “Substantial risk of loss” means a real possibility of loss. Casillas v. State, 733 S.W.2d 158, 163¬–64 (Tex. Crim. App. 1986). However, the possibility need not rise to the level of a substantial certainty (which is required for theft)—the risk of loss need only be more likely than not. Id.

Who is a “Fiduciary” Under Texas Law?

The penal code sets out four distinct groups that are considered fiduciaries pursuant to Section 32.45. These include:

  • A trustee, guardian, administrator, executor, conservator, and receiver;
  • An attorney in fact or agent appointed under a durable power of attorney;
  • An officer, manager, employee, or agent carrying on fiduciary functions on behalf of a fiduciary; or,
  • Any other person acting in a fiduciary capacity.

Id. at § 32.45(a)(1).

“Acting in a fiduciary capacity” is not defined in the penal code. However, the Texas Court of Criminal Appeals determined that because “fiduciary” has such a common meaning it should be construed according to its plain meaning. Berry v. State, 424 S.W.3d 579 (Tex. Crim. App. 2014).

The plain meaning of fiduciary means, “holding, held, or founded in trust or confidence.” More notably, a person who acts as a fiduciary is one “who has a duty, created by his own undertaking, to act primarily for another person’s benefit in matters connected with such undertaking.” Gonzalez v. State, 954 S.W.2d 98, 103 (Tex. App.—San Antonio 1997, no pet.). For example, courts have held that a person acts in a fiduciary capacity “when the business which he transacts, or the money or property which he handles, is not his or for his own benefit, but for the benefit of another person as to whom he stands in a relation implying and necessitating great confidence and trust on the one part and a high degree of good faith on the other part.” Gonzalez v. State, 954 S.W.2d 98, 103 (Tex. App.—San Antonio 1997, no writ).

Additionally, a person acting in a fiduciary capacity embraces any fiduciary, including a joint adventurer or partner. Coplin v. State, 585 S.W.2d 734 (Tex. Crim. App. 1979). This does not, however, include everyday business dealings. Berry, 424 S.W.3d at 584. The Court of Criminal appeals assume such transactions are entered into for a mutual benefit and, therefore, neither party is expected to act solely for the benefit of the other. Id.

What does it mean to “Misapply” Property?

The definition of “misapply” is fairly broad under the penal code. Pursuant to Section 32.45, a person who is a fiduciary misapplies property held as a fiduciary if the person deals property contrary to:

  • An agreement under which the fiduciary holds the property; or
  • A law prescribing the custody or disposition of the property.

Evidence that a defendant aided another person in misapplying property is sufficient, pursuant to the law of parties, to convict a defendant of misapplication of fiduciary property—even if the defendant did not personally handle the misapplied funds. Head v. State, 299 S.W.3d 414 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d). Furthermore, a defendant need not receive a benefit in order to misapply property. Talamantez v. State, 790 S.W.2d 33,37 (Tex. App.—San Antonio 1990, pet. Ref’d). Nor does it matter if a defendant donated the property to charity. Little v. State, 699 S.W.2d 316, 318 (Tex. App.—San Antonio 1985, no pet.).

Therefore, misapplication can occur by an omission or failure to act where a duty to act exists. Coleman v. State, 131 S.W.3d 303, 309-10 (Tex. App.—Corpus Christi 2004, pet. ref’d).

What does it take to Prove up an Agreement?

The government must prove the defendant knew of the agreement for misapplication to occur. Amaya v. State, 733 S.W.2d 168 (Tex. Crim. App. 1986). But, similar to “fiduciary,” Section 32.45 does not define “agreement.” Thus, the Court of Criminal Appeals construes agreement according to its plain meaning. Bynum v. State, 711 S.W.2d 321, 323 (Tex. App.—Amarillo 1986), aff’d, 767 S.W.2d 769 (Tex. Crim. App. 1989). To prove up an agreement, the State must be able to demonstrate a harmonious understanding or an arrangement, between two or more parties, as to a course of action. Id. Additionally, there is nothing in Section 32.45 that requires the agreement to be in writing or proved directly. Id.

Possible Defenses?

An effective defense to a charge of misapplication of fiduciary property is mistake of fact—otherwise negating the culpability required for the commission of the offense. Section 32.45 is designed to punish intentional, knowing or reckless misapplication of property. Thus, if it can be proved that the improper use or application of the property was the result of mere negligence, by mistake of fact, the statute will not apply. Other defense vary depending on the facts of the case.

What are the Penalties?

Texas has broad laws governing the use of property by a fiduciary. The charges can range from a Class C misdemeanor to a first-degree felony, based on the amount or value of property that is “misapplied.”

According to the Texas value ladder, an offense under this section is a:

  • Class C misdemeanor if the value of the property misapplied is less than $100;
  • Class B misdemeanor if the value of the property misapplied is $100 or more but less than $750;
  • Class A misdemeanor if the value of the property misapplied is $750 or more but less than $2,500;
  • State Jail Felony if the value of the property misapplied is $2,500 or more but less than $30,000;
  • Felony of the third degree if the value of the property misapplied is $30,000 or more but less than $150,000;
  • Felony of the second degree if the value of the property misapplied is $150,000 or more but less than $300,000; or
  • Felony of the first degree if the value of the property misapplied is $300,000 or more.

Id. at § 32.45(c).

Moreover, there is also an additional enhancement (to the next higher category) if it can be shown that the beneficiary was a person 65 years or older. § 32.45(d).

When Does Misapplication of Fiduciary Property Usually Occur?

This charge can arise in several different contexts. To name a few, misapplication of fiduciary property can occur:

  • When trustees misapply trust property;
  • When the holder of power of attorney makes a gift to herself;
  • When a business partner improperly diverts funds for personal use; or,
  • When an attorney misapplies a client’s funds.

These examples demonstrate that Section 32.45 covers many situations and may result in serious consequences. Thus, if you are under investigation or have been charged with the offense of misapplication of fiduciary property, it is necessary you seek help.

Misapplication of Fiduciary Property Defense Attorneys

Our criminal defense team handles Misapplication of Fiduciary Property cases in Tarrant County, Texas and surrounding areas. If you are under investigation for w financial crime or white collar offense, contact our firm today for a free case evaluation.