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

Stack Sentence Concurrent Sentence

Stacking Sentences to Run Consecutively in Texas

By | Sentencing

The Importance Between Stacked and Concurrent Sentences

Stack Sentence Concurrent SentenceWhen a defendant is convicted of multiple crimes at the same trial, his sentences automatically run concurrently, unless there is an order for the sentences to be stacked (i.e. to run consecutively). When sentences are stacked, defendants are required to finish serving the sentence for one offense before they begin serving the sentence for another offense. So, if a defendant is convicted of multiple crimes, especially those with longer sentence ranges, the difference between stacking the sentences or running the sentences concurrently can be huge. Thus, it is very important to know when sentences must run concurrently, when sentences can be stacked, and who makes those decisions.

Who Decides Whether to Stack a Defendant’s Sentences or Run Them Concurrently?

In Texas, defendants have the right to elect to have the jury or a judge assess punishment. However, even when the jury assesses a defendant’s sentences in a case with multiple charges, it is up to the judge of the court to determine whether the sentences will be stacked or whether the sentences will run concurrently.

The trial court’s authority to stack sentences is derived primarily from article 42.08 of the Texas Code of Criminal Procedure. Under this article, when a defendant with multiple convictions is sentenced, the court must include in the subsequent judgment or judgments whether the sentences will run concurrently or consecutively. This general rule allowing stacking or concurrent sentences applies whether the sentences have been imposed or suspended. As a result, the trial court has broad discretion when pronouncing whether the sentences will be stacked or run concurrently. Nevertheless, there are certain occasions when the judge cannot stack a defendant’s sentence.

When is the Judge Prohibited From Stacking a Defendant’s Sentences?

Generally, when a defendant is found guilty of more than one offense arising from the same criminal episode and prosecuted in a single criminal action, the sentences must run concurrently (i.e. if a person is prosecuted in the same trial for DWI and Unlawful Carrying of a Weapon). However, there are exceptions to this rule that will allow for stacking. For example, if a defendant moves to sever his cases that arose from the same criminal episode, he runs the risk of having his sentences stacked. In addition, case law has permitted multiple convictions, arising out of the same criminal episode, for intoxication manslaughter and certain sex offenses under section 3.03(b) of the Texas Penal Code to be stacked.

What Criteria Does the Trial Court Use to Determine Whether to Stack a Defendant’s Sentence?

Trial Courts tend to consider the same factors used for determining the severity of a defendant’s sentence when deciding whether or not to stack sentences. For example, judges may consider:

  • whether the crimes and their objectives were predominantly independent of each other;
  • whether the crimes involved separate acts of violence or threats of violence;
  • whether the crimes were committed at different times or separate places; and
  • other aggravating or mitigating factors such as a defendant’s past record.

Are There Certain Circumstances When a Judge is Required to Stack Sentences?

Yes, but only in one scenario. As provided in Article 42.08, if a defendant is sentenced for an offense committed while the defendant was an inmate in TDC and the defendant has not completed the sentence he was serving at the time of the offense, the judge shall order the new sentence be stacked—to begin immediately upon the completion of the defendant’s previous sentence.

Can the Judge Stack a Probation Sentence with a Prison Sentence?

Yes. In Texas, a judge can choose to stack a probation sentence with prison sentence, but the judge must order the confinement sentence to run first and the probation thereafter.

In Conclusion . . .

To determine whether your case involves offenses that may be stacked, you should consult with your attorney. Stacking sentences is rare, but you should still seek proper legal advice when charged with multiple offenses. If you find yourself in this situation and need an attorney, give us a call.

Cell Phone Images Character Evidence

Satanic Cell Phone Images Admitted as Relevant Character Evidence

By | Sentencing

Second Court of Appeals Holds that Satanic Cell Phone Photos Were Relevant Character Evidence in Punishment Phase for Attempted Capital Murder Case


Cell Phone Images Character EvidencePantoja v. State (2nd Court of Appeals – Fort Worth, 2016)

A Cocaine-Fueled Binge Leads to an Attack

During an alcohol and cocaine-fueled binge, nineteen-year-old Rigoberto Pantoja attacked a group of friends in Mansfield, Texas one evening in September of 2014. After watching the Floyd Mayweather fight, Pantoja began talking to himself. Eventually, he pulled a gun and fired two times, hitting Pantoja’s friend in the face. Pantoja put the gun to the head of a second friend, but when the gun would not fire, Pantoja pulled a knife, stabbing the friend three times. He also stabbed a third friend. All of the victims survived the injuries. Pantoja was arrested and charged with aggravated assault and attempted capital murder.

At trial, Pantoja pled guilty to the aggravated assault and attempted capital murder charges before a judge. Pantoja requested a jury for the punishment phase of his trial, asking that the jury grant him community supervision (probation). At the punishment phase, the State called twelve character witnesses; Pantoja’s defense counsel called four, including his father who was set to testify about Pantoja’s Catholic upbringing and religious way of life.

Just before the defense called Pantoja’s father to the stand, and out of the presence of the jury, the State indicated to the Court that it intended to cross-examine Pantoja’s father about satanic images found on Pantoja’s cell phone, confiscated the night he was arrested. The Judge told the State to proceed with calling witnesses and that “whenever you are ready to ask question [regarding the satanic photos], approach up here and then I’ll make a ruling at that time.” After that conversation, the jury returned to the courtroom.

Cross-Examination Regarding the Defendant’s Cell Phone Images

The defense called Pantoja’s father who testified to Pantoja’s good nature. He said that his son helped around the house and helped out with the family’s living expenses. Pantoja’s father also spoke of his son’s strong Catholic faith and upbringing. The defense admitted photos from the father of Pantoja’s first communion, photos of Pantoja’s bedroom with a Virgin of Guadalupe poster on the wall, and photos of Pantoja’s car depicting a rosary hanging from the rearview mirror. The State cross-examined Pantoja’s father, asking, “Were you aware that your son kept pictures of satanic worship on his cell phone?” The father responded, “no.”

The jury assessed Pantoja’s punishment at eighty years’ confinement for both offenses, denying Pantoja’s request for community supervision. Pantoja timely appealed to the Second Court of Appeals, arguing that the satanic photos shown to the jury were highly prejudicial, had no probative value whatsoever, did not establish a material fact that related to any element of his offenses, and ultimately were not relevant to his case and sentencing.

Did the Trial Court Err By Allowing the Satanic Images to Go Before the Jury?

The Second Court of Appeals had to determine whether the trial court should have stopped the State’s cross-examination of Pantoja’s father regarding the Satanic images found on Pantoja’s cell phone. Did the photos have relevance to the case under the Texas Rules of Evidence? If so, were the photos highly prejudicial to the jury?

The Texas Rules of Evidence


Article 37.07 of the Texas Code of Criminal Procedure states that, “evidence may be offered by the State and the defendant as to any matter the court deems relevant to sentencing, including…his character [and] an opinion regarding his character…” Tex. Code Crim. Proc. Ann. Art. 37.07, § 3(a)(1) (West Supp. 2015). Evidence is relevant to a punishment determination if that evidence will assist the fact-finder in tailoring an appropriate sentence. Henderson v. State, 29 S.W.3d 616, 626 (Tex. App.—Houston [1st Dist.]2000, pet. ref’d.

Community Supervision

When a defendant requests community supervision, a trial court may reasonably deem any character trait that pertains to the defendant’s suitability for community supervision to be a relevant matter for the sentencer to consider. Sims v. State, 273 S.W.3d 291, 295 (Tex. Crim. App. 2008).

Character Evidence and Opinion Testimony

When character evidence is admissible—as in a community supervision request during the punishment phase—such character traits may be proven by testimony in the form of an opinion. Tex. R. Evid. 405(a); Wilson v. State, 71 S.W.3d 346, 349-51 (Tex. Crim. App. 2002). An opinion witness is generally to be asked “did you know” questions. Id. at 350.

Cross Examination of Character Witnesses

On cross-examination of a character witness, inquiry may be made about specific incidents of a person’s conduct, subject to the following limitations. Id. at 351.

  1. The incident must be relevant to the character traits at issue. Burke v. State, 371 S.W.3d, 252, 261 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d, untimely filed).
  2. The alleged Bad Act must have a basis in fact. Id.
  3. Before the questions are asked, the foundation for asking the question should be laid outside of the jury’s presence, so that the judge will have an opportunity to rule on them. Id.

The Second Court of Appeals Finds No Error

Here, the Court says that the father’s testimony about Pantoja’s strict Catholic upbringing and religious faith constituted “opinion” character testimony. Additionally, the Court says, his testimony was relevant under the Texas Rules of Evidence, pertinent to the request made for community supervision, as “a sentencer might rationally want to take into account testimony of his good character and that he had a stable home life…and that he possess an indicia of a religious upbringing.”

Further, this character testimony was provided by the defense. Because the defense called the father as a character witness, the State had the right to cross-examine the father “through did-you-know questions” about Pantoja’s character. “The State had the proper predicate for it’s ‘did you know’ question by establishing outside the presence of the jury the factual basis for the specific instances of Pantoja’s conduct (the satanic cell phone photos).” The Court overruled Pantoja’s appeal, and affirmed the trial court’s judgment.

12.44(a) and 12.44(b) State Jail Felony Reduction

Explaining Section 12.44 | Felony Reduced to Misdemeanor

By | Sentencing

What is Section 12.44(a) and Why Does it Matter to the State Jail Felony Defendant?

1244(a) and 1244(b) State Jail Felony Reduction Our Fort Worth criminal defense attorneys are routinely asked by family and friends of clients charged with State Jail Felony offenses about 12.44(a) and 12.44(b). Although it is sometimes elusive, our attorneys have had success in reducing State Jail Felony cases under Section 12.44. This article will discuss Sections 12.44(a) and 12.44(b) of the Texas Penal Code and explain why they are important to the State Jail Felony defendant.

State Jail Felony Punishment in Texas

In accordance with Section 12.35 of the Texas Penal Code, the confinement range for a State Jail Felony in Texas:

  • From 180 days to 2 years in a State Jail facility.

Any resulting conviction under Section 12.35 is considered a felony conviction for most purposes.

When a person is sentenced to confinement for a State Jail Felony offense, the sentence is served day for day. Aside from State Jail Diligent Participation Credit, a state jail sentence will last for every single day of the term, unlike a prison sentence, which may be cut short for parole or good time. For example, if someone receives a sentence for 12 months in state jail, that person will serve 365 actual days on the sentence.

What about 12.44?

Since parole and good time are not options for state jail time, Section 12.35 requires the defendant to serve that sentence day for day. However, section 12.44 of the Texas Penal Code allows for a reduction of the above consequences for someone charged with a state jail felony.

(a) A court may punish a defendant who is convicted of a state jail felony by imposing the confinement permissible as punishment for a Class A misdemeanor if, after considering the gravity and circumstances of the felony committed and the history, character, and rehabilitative needs of the defendant, the court finds that such punishment would best serve the ends of justice.
(b) At the request of the prosecuting attorney, the court may authorize the prosecuting attorney to prosecute a state jail felony as a Class A misdemeanor.

Please note section 12.44 has two subsections. The differences between them are significant.

What is the Difference Between 12.44(a) and 12.44(b)?


Under 12.44(a), at the discretion of the court, a state jail felony can be punished as a Class A misdemeanor. If convicted, the conviction results in a felony conviction. However, if sentenced to confinement, the defendant is allowed to serve time the same as if he were convicted of a Class A misdemeanor. That means the defendant can serve his time in the local county jail as opposed to a State Jail facility. That also may allow the defendant to have access to good time offered by the county jail in his jurisdiction (e.g. In Tarrant County, this could result in 2 for 1 credit or 3 for 1 if the defendant is a trustee).


Under 12.44(b), at the discretion of the prosecutor, a state jail felony can be converted to a Class A misdemeanor. If convicted, the conviction results in a misdemeanor conviction. If incarcerated, the defendant would serve his time in the county jail the same as described in the above paragraph.
Note: Both 12.44(a) and (b) require the sentence to be within the penalty range of a Class A misdemeanor (0-365 days confinement and a fine, if any, not to exceed $4,000).

Probation Under 12.44

Straight Probation and Deferred Adjudication probation are also allowed under both 12.44(a) and 12.44(b). Straight probation would result in a conviction for a felony if reduced under 12.44(a) and a conviction for a misdemeanor if reduced under 12.44(b). If you receive deferred adjudication probation under either a 12.44(a) or 12.44(b) reduction, a conviction can be avoided altogether if the probation is successfully completed. Any future probation revocation proceedings by the state would be limited at sentencing to the misdemeanor punishment provided by section 12.44 as discussed in the paragraphs above.

Note: A probated sentence under 12.44 cannot exceed 2 years – the maximum time allowed for a probated sentence for a Class A misdemeanor.

State Jail Felony Defense Attorneys, Fort Worth, Texas

Depending on the circumstances, if you or someone you know is charged with a state jail felony in Texas, Section 12.44 may be applicable. There are many factors that the prosecutor or judge will consider if your attorney requests a 12.44 reduction. It is important to discuss your specific circumstances with your attorney. Please feel free to contact Barnett Howard & Williams PLLC if you have questions.

Dangerous Weapon Enhancement

Federal Sentence Enhanced for Presence of Dangerous Weapon Even Though the Defendant Had No Knowledge of the Weapon

By | Sentencing

Should a defendant charged with possession of drugs be punished for a “dangerous weapon” found at the scene of the drug trafficking and owned by a co-conspirator, when he did not know about the gun in the first place?

Dangerous Weapon EnhancementThe Federal Fifth Circuit Court of Appeals thinks so.  See the Court’s opinion in United States v. Guerrero.

On September 5, 2012, police were investigating a ranch in McAllen, Texas as a possible stash house for drug-trafficking. Officers observed Adrian Rodriguez-Guerrero coming and going from the ranch along with three other men in a caravan. When the officers stopped the caravan, “because the vehicles appeared weighed down,” a dog alerted to the presence of drugs. The police found “boxes of limes with bundles of marijuana concealed among the limes.” The defendants subsequently consented to a search of the McAllen ranch. (I’m always left wondering why people, especially those in possession of drugs, consent to a search.) “There the [police] found…clothing…a loaded shotgun and 125 shotgun shells…plastic cellophane, limes, packing tape…lime boxes, latex gloves, a large scale, and several bundles of marijuana.” In a written statement accepting responsibility, Rodriguez-Guerrero said he was hired to do landscaping at the residence, but was asked to “load the marijuana into a truck at the [ranch]…acknowledg[ing] the [ranch] as a stash house [for drugs].”

Conspiracy to Possess and Distribute Marijuana Enhanced for Possession of a Dangerous Weapon

At trial, he pled guilty to conspiracy to possess with intent to distribute 100 kilograms or more of marijuana, receiving a “guidelines-range sentence of 104 months” imprisonment and four years of supervised release. His sentence included a two-level enhancement for possession of a dangerous weapon—the shotgun found at the McAllen ranch. The district court noted, “[the Court] is not finding Rodriguez-Guerrero possessed the shotgun; rather, it was reasonably foreseeable…that there would be a weapon involved in…the… drug trafficking crime.” The district court added, “the shotgun was a tool of the trade and it [is] reasonably foreseeable to [Rodriguez-Guerrero] that there would have been a weapon, especially [to] a person with the experience that he has in drug trafficking.” Rodriguez-Guerrero appeals to the Fifth Circuit Court of Appeals, stating that there was no evidence to support a finding that either he or a co-conspirator possessed the shotgun—possession which lengthened his prison sentence.

U.S. Federal Sentencing Guidelines Application When a Dangerous Weapon is a “Tool of the Trade”

The United States Sentencing Guidelines Manual provides a two-level sentencing enhancement if “a dangerous weapon was present, unless it is clearly improbable that the weapon is connected with the offense.” U.S.S.G. § 2D1.1(b)(1), cmt. n.11(A). “The government must prove weapon possession by a preponderance of the evidence…[and can do so] by showing a temporal and spatial relationship of the weapon, the drug trafficking activity, and the defendant.” United States v. Zapata-Lara, 615 F.3d 388-90.

Here, the Fifth Circuit Court reasons, the McAllen ranch was a stash house for drug-trafficking, used to “package and transport marijuana.” The ranch was a warehouse to store and move drugs, not a residence “in which drugs were also stored.” Next, several bundles of marijuana were found in the ranch’s master bathroom, making it “plausible [the Court reasons] to find that either Rodriguez-Guerrero or another co-defendant accessed the master bedroom, where the shotgun was found.” Further, the rounds of ammunition suggest that the gun was connected with the drug trade. Lastly, the gun and rounds of ammunition were found on the same day that police observed Rodriguez-Guerrero and the co-defendants at the ranch.

The Court concludes that the “facts identified by the [district] court plausibly establish a temporal and spatial relationship between the weapon, the drug-trafficking activity, and Rodriguez-Guerrero.” The purpose of the sentencing enhancement is to punish because of increased danger and violence when drug traffickers possess weapons. U.S.S.G. § 2D1.1(b)(1), cmt. n.11(A). “The mere fact that a weapon cannot be attributable to any specific drug trafficker does not decrease the danger of violence.” Even though Rodgriguez-Guerrero may not have possessed shotgun, or that he may not have known about the shotgun is irrelevant. The Court states, “there was [sufficient] evidence to support that the weapon must have been possessed by one of the conspirators in furtherance of the conspiracy.”

In short, the Court says that establishing the “temporal and spatial” relationship is enough for possession in these types of drug trafficking cases; and, possession of a weapon could lead to enhanced, or increased prison sentences in federal courts.

Possession of Methamphetamine in Fort Worth

Federal Courts No Longer Distinguish Between Pure Meth and Botched Meth When Calculating Weight

By | Drug Crimes

Possession of Methamphetamine in Fort WorthHere’s a Breaking Bad question for you: If Walt lets Jesse cook a batch of Meth and Jesse screws it up, such that it is unsellable, can they be punished for the amount of bad methamphetamine that they cooked in addition to the amount of good methamphetamine (if there were such a thing)? This 5th Circuit tells us in United States v. Ramirez-Olvera.

Antonio Ramirez-Olvera was convicted of possessing methamphetamine (meth) with the intent to distribute, violating 21 U.S.C. § 841(a)(1) and (b)(1)(B); he received a sentence of 240 months imprisonment, which is ten years below the bottom of the federal sentencing guidelines range for this offense.  Arguing that the district court excessively punished him, as the court did not distinguish between d-methamphetamine (“d-meth”) and l-methamphetamine (“l-meth”) for the sentencing guidelines’ equivalency table, Ramirez-Olvera appealed to the United States Court of Appeals for the Fifth District.

See the opinion in United States v. Ramirez-Olvera (5th Circuit, 2015)

How Should the Court Determine the Weight of Meth in a Possession Case?

The issue before the Court is whether federal courts must distinguish between the types of meth when deciding punishment, or, whether courts can punish based on a “lump sum” of the meth. As you can imagine, higher amounts generally mean a longer prison sentence.

Had the district court used only the d-meth in its calculations, Ramirez-Olvera’s prison sentence might have, in theory, been shorter. Relying on DEA lab reports,Ramirez-Olvera’s probation officer generated a presentence report that recommended, he “should be held responsible for 7.7 [total] grams,” combining both the l-meth and d-meth seized fromRamirez-Olvera’s home and car.

The Court discusses types of methamphetamine, highlighting the differences scientifically and practically. “D-meth and l-meth are stereoisomers of meth…consist[ing] of identical molecules [that are] differently arranged.” United States v. Acklen, 47 F.3d 739, 742 (5th Cir. 1995). D-meth causes psychological and physical changes in humans. L-meth, on the other hand, “produces little or no physiological effect when ingested.” Id. Further, L-meth is a “weak form of [meth], is rarely seen and is not made intentionally, but rather results from a botched attempt to produce d-meth.” U.S. Sentencing Guidelines Manual § 2D1.1(c)(1)(2014). In other words, l-meth is an accidental byproduct when creating d-meth goes awry; L-meth has little to no cash value.

The Court reviews this case anew, focusing on the plain meaning of the Federal Sentencing Guidelines for drug crimes; the Guidelines are the authoritative, controlling source of law. United States v. Moore, 733 F.3d 161-63 (5th Cir. 2013). Amendment 518, “a 1995 amendment to § 2D1.1, indicates that courts need not distinguish between d-meth and l-meth when determining the quantity of…meth attributable to a defendant.” U.S. Sentencing Guidelines, [Sentencing Commission Dicta], §2D1.1(c)(1)(2004). Under this amendment, “l-meth [is to] be treated the same as d-meth…thereby simplifying guideline application [from this point forward].” Id. Further, the Court “ha[s] relied on Amendment 518 to hold [in an unpublished case] that any distinction between d-meth and l-meth is now immaterial when calculating drug quantity under the guidelines. United States v. Beltran, 91 F. App’x 349 (5th Cir. 2004).

The Court affirms the district court’s opinion, holding that under Amendment 518 to the sentencing guidelines, meth no longer is to be categorized for sentencing purposes; l-meth and d-meth are to be added together to render the quantity courts will use in assessing punishment. All meth created, pure and botched, will be added together to determine a defendant’s prison sentence.

What is a 3g Offense

Texas 3G Offenses and the Impact on Sentencing and Parole

By | 3G Offenses

Article 42.12 Section 3(g), Texas Code of Criminal Procedure | 3G Offenses in Texas

What is a 3g OffenseA feature of the Texas Criminal Code that generates frequent questions is “3G offenses.” The offenses are called 3G offenses because they were codified in section (3)(g) of Article 42.12, Code of Criminal Procedure. The code has now been updated and the 3(g) offenses are listed in Texas Code of Criminal Procedure, Section 42A.054. As a practical matter, 3G offenses are generally considered more serious crimes. Many of the crimes are “aggravated” offenses, meaning that some circumstance makes the offense worse than the base offense.

The 3G offenses are:

  • Murder
  • Capital Murder
  • Murder in specific aggravating circumstances, such as murdering a victim under 10 years of age, murder while committing another felony, murdering more than one victim, murdering a law enforcement officer or fireman acting in their official capacity, murder for hire or retaliatory murder against a judge
  • Indecency with a child by contact
  • Aggravated kidnapping–Kidnapping with the intent to hold the victim for ransom or as a hostage or with the intent to sexually or physically abuse the victim
  • Aggravated sexual assault–Sexual assault in specific aggravating circumstances, such as a victim under 14 years of age, an elderly or disabled victim, using “date rape” drugs such as rohypnol or ketamine, causing serious bodily harm to the victim or another person, or attempting to kill the victim or another person in the course of the crime
  • Sexual Assault
  • Aggravated robbery–Robbery plus threat of bodily harm, exhibiting a deadly weapon or putting an elderly or disabled individual in fear of injury or death • Sexual assault
  • Injury to a child (if offense is first degree felony)
  • Sexual performance by a child under 18 years of age
  • Criminal solicitation for commission of a capital offense (if offense is first degree felony)
  • Compelling prostitution by force, threat, or fraud or, if the victim is less than 18 years of age, by any means
  • Trafficking of persons
  • Drug offenses committed within 1,000 feet of a school, youth center, or playground or on a school bus when the defendant has previously been convicted of a similar offense
  • Burglary with the intent to commit another felony
  • Any felony where a deadly weapon is used or exhibited during the commission of the crime or during the flight from the crime–Deadly weapon includes any firearm or other device designed to cause death or serious bodily injury or capable of doing so.

The important considerations for individuals convicted of a 3G offense are the implications for their sentencing and prospects for parole. Although the laws have changed over the years as various offenses have been added to the list, the current provisions apply to any crime committed on or after September 1, 2007.


Probation or Deferred Adjudication on 3G Offenses

Under the Code of Criminal Procedure, a judge cannot accept a plea bargain for straight probation (community supervision) on a 3G offense. A judge can, however, accept a plea bargain for deferred adjudication as long as the underlying sentence for the offense is 10 years or less. Deferred adjudication is similar to probation, except the judge defers a finding of guilt for the specified time of probation, and if the defendant successfully completes the probation, the charge is ultimately dismissed and no final conviction is entered on the defendant’s record.

If a defendant exercises his right to trial on a 3G offense and is found guilty, only the jury can give probation. When a jury gives probation at trial for a 3G offense, it is considered straight probation because a final conviction of guilt is entered on the defendant’s record.

Parole on 3G Offenses

Conviction for a 3G crime also affects an individual’s prospects for parole. For any other offense, parole eligibility occurs when time served plus time for good conduct equals the lesser of 15 years or one-fourth of the sentence. However, for a 3G offense, an individual is not eligible for parole until actual time served, with no allowance for good conduct credit, equals the lesser of 30 years or one-half of the original sentence. If the original sentence was for any period less than four years, the individual is not eligible for parole until actual time served of two years.

Free Consultation with an Experienced Fort Worth Criminal Defense Lawyer

If you have been charged with a 3G offense, you need to speak with a criminal defense attorney as soon as possible. Our attorneys have years of experience handling 3G offenses in Texas. Call our team today to set up a free consultation in our Fort Worth office. We will take the time to answer your questions and help you take the next steps to protect your liberty.

Winning By Losing in a Jury Trial

By | Jury Trial

Let me make an admission…sometimes we lose at trial. There, I said it. We don’t win every case. Sometimes the evidence is not in our favor. Sometimes the State is able to prove every element of the alleged offense. And we typically know that going into it.

It begs the question, “Why take the case to a jury trial if you suspect you are going to lose?” Here’s why…because in many situations, going to trial is the only way to get a good result.

For instance, we had a client that was charged with a low level misdemeanor offense. The State was offering a plea bargain of 18 months probation, a $1,250 fine, and numerous classes in exchange for a guilty plea. We considered this offer to be too steep in relation to the alleged offense. Our client agreed. But the State was not willing to budge on the offer. So we set it for trial.

After a hard fought trial, the jury came back with a guilty verdict, which is what we suspected all along. Then we went to the judge for punishment. The State continued to recommend 18 months probation and a $1250 fine. The judge, however, awarded our client 2 days of labor detail and a $750 fine. Two short days later, the entire ordeal was but a fleeting memory for our client. No probation. No monthly reporting. No random drug tests. No classes.

We would have never received such a low punishment offer from the State. We also would have never received such a low sentence from the judge if we hadn’t gone to trial and filled her in on the extenuating and mitigating circumstances of the case and our client.

In criminal defense, a moral victory is still a victory and sometimes you win by losing.

Kidnapping Defense Lawyers, Fort Worth

Release to a Safe Place: Mitigation of Aggravated Kidnapping

By | Kidnapping

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

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

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

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

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

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

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

Fort Worth Texas Jury Trial Criminal Law

When the Jury’s Sentence is Outside the Punishment Range

By | Jury Trial

Jury Trial Sentencing in Texas

Fort Worth Texas Jury Trial Criminal LawEvery level of criminal offense in Texas has a corresponding punishment range for the jury to consider.  With the exception of enhancements or other minor differences, the Texas punishment ranges are as follows:

  • Class B Misdemeanor = 0-180 days County Jail and $0-$2,000 fine
  • Class A Misdemeanor = 0-365 days County Jail and $0-$4,000 fine
  • State Jail Felony = 6 months – 2 years State Jail and $0-$10,000 fine
  • 3rd Degree Felony = 2-10 years Prison and $0-$10,000 fine
  • 2nd Degree Felony = 2-20 years Prison and $0-$10,000 fine
  • 1st Degree Felony = 5-99 years Prison and $0-$10,000 fine

A jury verdict on sentencing should be within the punishment range to the particular offense.  But what happens if the jury deviates from the punishment range?

The Court of Appeals for the Seventh District (Amarillo) recently considered this scenario in Melton v. State. In Melton, the defendant was facing 2-20 years and up to a $10,000 fine if convicted.  The jury returned a sentence of 15 years in prison and a $15,000 fine.  Of course, the $15,000 fine was outside the punishment range.

The court of appeals wrestled with the option of remanding the case back to the trial court for a new sentencing hearing on BOTH the term of confinement and the fine or the fine only.  Ultimately, the court reasoned:

Article 37.10(b) contemplates that a jury can assess more than one type of punishment, to-wit: “punishment that is authorized by law for the offense and punishment that is not authorized by law for the offense . . . .” Because this statutory provision contemplates the situation where the period of confinement is authorized by law and the amount of the fine is not authorized by law, we conclude the Legislature intended to allow the reformation of a judgment as to the issue of the fine only.

Accordingly, the COA remanded the case back to the trial court for a new sentencing hearing on the fine only.  The term of confinement was sustained.

Parole by Mistake: No Credit Toward Sentence

By | Parole

If a person convicted of aggravated rape is paroled by mistake, is that person entitled to street-time credit for the period between his release and the revocation of his release?

The 5th Circuit said NO in Rhodes v. Thaler.

Rhodes v. Thaler, 713 F.3d 264 (5th Cir. 2013): Mandell Rhodes, Jr. was convicted of aggravated rape in 1980. He was paroled in 2004, but returned to prison in 2006 after violating a condition of his release. Rhodes claimed that he was denied street-time credit for the two years that he was on parole which “could have been used to accelerate his automatic release to mandatory supervision.”

According to Rhodes, Texas law required that when an inmate is released in error through no fault of his own, he is entitled to be credited with all earned street-time credit upon his return to prison. The denial of such credit, he argued, was a violation of due process.

Rhodes sought habeas relief in federal district court. The district court denied his petition. Through a Certificate of Appealability, the 5th Circuit was granted jurisdiction to decide the appeal and consider Rhodes’s argument that his street time should have been restored because he was erroneously released to parole. According to the 5th Circuit, Rhodes’s petition could only be granted if one of his constitutional rights had been violated.

In order to prevail under due process, Rhodes must have had a “liberty interest” in his claimed street-time credit. If he did not have a liberty interest in that street-time credit, he was due no more process than he received. In determining whether Rhodes had a liberty interest in the street-time credit he demanded, the 5th Circuit looked to Texas’ law of releasees that was in effect when his release was revoked.

At the time Rhodes’s parole was revoked, Texas’ “street-time credit statute,” Tex. Gov’t Code §508.283, controlled. According to §508.283, “if the parole, mandatory supervision, or conditional pardon of a person described by §508.149(a) is revoked, the person may be required to serve the remaining portion of the sentence on which the person was released. The remaining portion is computed without credit for the time from the date of the person’s release to the date of revocation.” According to the Court of Criminal Appeals, §508.149(a) includes persons- like Rhodes- who have been convicted of aggravated rape.

Therefore, because Rhodes was not entitled to street-time credit for that period, he had no protected liberty interest that was subject to due-process protection. Rhodes was only entitled to federal habeas relief if he was deprived of street time credit without due process. Because Rhodes had no protected liberty interest in the street-time credit that he claimed to have accrued, his due-process right was not violated. Therefore, the district court’s denial of Rhodes’s habeas petition was affirmed.