As a seasoned criminal attorney and former prosecutor, Marilee H. Brown has handled hundreds of criminal cases ranging from traffic fines to robberies to DWIs and sexual assaults.
If you have been arrested and charged with a crime, you have certain guaranteed Constitutional rights when it comes to your defense. The best way to ensure your rights are being protected is to hire expert legal representation.
Also, an experienced attorney may be able to plea bargain with prosecutors to obtain a lesser charge or a more lenient punishment, if not dismissal. If you find yourself facing a jury trial, you need an attorney to closely analyze the facts and evidence to advocate your innocence. Texas law categorizes crimes with the following ranges of punishment:
Misdemeanors include lower level offenses such as traffic tickets, minor drug offenses, minor assaults, thefts of value under $1500.00, criminal trespass, first and second DWI offenses, and other general minor misconduct.
Felonies are more serious crimes that are punishable by prison time, higher fines, and possibly longer probation terms. Some examples are offenses with the higher quantities of drugs, assaults with serious bodily injury, sexually related crimes, any kind of burglary of a building or habitation, robbery, theft of property over $1500.00, fraud, and offenses with deadly weapons.
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Effective legal representation can help you by identifying the strengths and weaknesses of a case, negotiating with prosecutors for a lesser charge, deferred adjudication, probation, or even a dismissal.
New laws have been passed and are now in effect in the State of Texas, which have a major effect on the evidence you receive, as the Defendant, in your case.
Now, through the discovery process, once a timely request has been made by the Defendant, the State is required to produce copies or allow inspection of:
which are not otherwise privileged, that contain evidence material to any matter involved in the case and that are in the possession of the State. A copy of your own statement may be provided to you; however, you may only view any witness or victim statements with the copies being retained by your attorney. Important to note, these documents are to be viewed by you, as our client, and only you.
Documents containing identifying information about victims and witnesses, however, must be redacted in order for us, as the attorney, to allow you to view the documents. You may notice that some of information in the documents have been blacked out, this is known as redaction and is required, under Article 39.14 of the Texas Code of Criminal Procedure. Information that must be redacted includes: identifying information of any victim or witness, including their name, address, telephone number, driver's license number, social security number, date of birth, bank account information or any other information that could make it possible to identify the victim or witness.
The Supreme Court has ruled that police must obtain a search warrant to view information stored on a suspects or an arrestee's cell phone. The ruling is from a California case where an officer arrested a person for a traffic violation. The officer searched their cell phone and found information that led to the suspect being charged with drug and weapons offenses.
Warrantless searches are usually found to be an unreasonable invasion into citizen's constitutionally protected privacy. However a warrantless search may be reasonable when it falls within a specified exception to the warrant requirement. The exception that applies here is the search incident to a lawful arrest. When an officer arrests a citizen, the officer may search the general area on or around the suspect. Officers may also search small items that may contain evidence of a crime such as a cigarette pack which could contain drugs. Officers can also search cars in which suspects are driving or riding in provided there is sufficient reason to believe the car may contain evidence. These exceptions protect officer's safety and prevent suspects or arrestees from destroying evidence.
The court unanimously agreed however, that a search of a cell-phone differs greatly from these types of searches because cell-phones usually contain immense amounts of data that could unintentionally invade a person's privacy. Chief Justice Roberts wrote in his opinion, "Modern cell phones implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet or a purse." He added, "Many of these devices are in fact minicomputers" that "could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers."
Still just because officers may not have an unimpeded right to search your phone doesn't mean they cannot ultimately wind up looking through its contents. The ruling made clear only that a warrant will usually be required prior to a search. Additionally, officers may still find that a search is reasonable under yet another exception. If there are circumstances to believe that public safety is at risk or evidence may be lost or destroyed, an officer may have reason to search your phone without a warrant. For now though, the general rule will be no cell phone searches without a prior search warrant.
On January 1, 2014, the Michael Morton Act goes into effect in the state of Texas. This historic change in the law is the result of Morton being wrongfully convicted of his wife's murder back in 1987. In that case, the prosecutor deliberately withheld from defense counsel evidence that would have exonerated him. Instead, Morton was sentenced to life in prison. He spent nearly 25 years behind bars before being released once the evidence was finally made available.
As a result of that horrific episode in Texas criminal jurisprudence, this new law levels the playing field regarding the exchange of information between prosecutors and defense attorneys in criminal cases. In short, it will allow defense attorneys much greater access to information that could negate the guilt of or reduce the punishment of the offense for which their client has been charged. The amended statute is found in section 39.14 of the Texas Code of Criminal Procedure. However, this new statute will concern ONLY crimes committed on or after January 1, 2014.
Previously, defense attorneys did have access to exculpatory, mitigating and impeaching evidence; but, it was incumbent upon them to prove that this information was material to their client's defense. Under the Act, defense attorneys will no longer be required to show that the information is material in order for it to be turned over. Essentially, the prosecution must provide virtually every piece of evidence in their file requested by defense attorneys in preparation for their client's defense. Thus, defense attorney's now have in place an open file rule that is more truly "open" than in years past. In fact, prior to 1966, defense counsel were routinely barred from seeing ANYTHING in the prosecutions file. That year, Article 39.14 loosened restrictions on discovery somewhat. Still, defense attorneys often had to, among other things, submit motions for discovery specifically designating what was to be discovered and to show good cause why they wanted the evidence. And with stringent requirements such as those in place, courts very often ruled against the information's release.
There are some limitations in place. Some notes, reports and communications between prosecutors, investigators and staff are still considered privileged and beyond the reach of the defense. Additionally, defense counsel must submit a written request to be provided copies of the evidence. However, upon a timely written request from the defendant, the state shall "as soon as practicable, produce and permit discovery," of the requested materials.
The biggest limitation of the new law is that the discovered information is only to be utilized on a "need to know" basis. In other words, defense counsel may NOT share evidence with anyone outside of the defense team. This means defendants are not entitled to be provided with copies of the information, but are to be informed of the information as it pertains to their defense. Defendants may view the material, but are not entitled to an individual copy. For pro se defendants (defending yourself), prosecutors shall permit the defendant to inspect and review the items. Copying of the material is not required in cases where a pro se defendant is involved. This is the trade-off for the state being so open.
The bottom line is, under the new provisions of the Michael Moore Act, if you are a criminal defendant and you want information regarding your case, it is much easier now because you may simply ask and you shall receive.
New laws have been passed and are now in effect in the State of Texas, which have a major effect on the evidence you receive, as the Defendant, in your case.
The George Zimmerman case in Florida, where 17-year old Treyvon Martin was shot and killed in what a jury found to be justified force by Zimmerman, has sparked debate over whether there should be a "duty to retreat" or "stand your ground" in hostile confrontations.
In Texas, we have what is called the "Castle Doctrine."
John owns a castle. John can defend his castle with justifiable force. Put simply, force may be justified in defense of self, a third person, or property if reasonable and necessary to protect against another's use of unlawful force. John does not have a duty to retreat if (1) John has a right to be present at the location where the deadly force is used (2) John did not provoke the person against whom the deadly force is used, and (3) John is not engaged in criminal activity at the time deadly force is used.
The provisions of Texas Penal Code Sections 9.21 - 9.43 relate to the affirmative defenses of Necessity, Self-Defense and Justifiable Force. They are extensive with many caveats to this basic concept, so to be fully informed, one should review these Penal Code provisions with a fine-toothed comb.
Summarized from Voice for the Defense; May 2013, Volume 42, No. 4
Bailey v. United States, 133 S. Ct. 1031 (2013)
Usually detaining someone requires a showing of probable cause. Under Terry v. Ohio, 392 U.S. 1 (1968), there is an exception that allows a person to be detained during the execution of a search warrant. The rationale for this exception is to ensure officer safety, facilitate completion of the search, and prevent the person from fleeing the scene. In Bailey v. United States, 133 S. Ct. 1031 (2013), the court found that this exception should be limited to the immediate vicinity of the premises to be searched. The exception did not apply to a defendant who left the general area of the apartment to be searched and was stopped and detained over a mile away, even though the officers found keys on the defendant connecting him to the apartment being searched.
Florida v. Harris, 133 S. Ct. 1050 (2013)
Drugs found by a narcotics dog can be suppressed if the dog is found to be unreliable, and therefore there was a lack of probable cause to search the car after the dog alerted. In Florida v. Harris, 133 S. Ct. 1050 (2013), the court found that the State did not have to present "an exhaustive set of records" to establish a dog's reliability. A totality of the circumstances test must be used to determine probable cause, and just because there was a lack of records does not mean there is an automatic finding that the dog was unreliable. The State in this case presented substantial evidence on the dog's training and his proficiency in finding drugs.
In today's climate of pending gun control legislation, you may find yourself wondering, "What are my rights?" This question can be further complicated by missteps in your past. Rest assured, just because of a previous run-in with the law, your firearm possession rights are not necessarily "under the gun." Here are a few pointers for knowing your rights to possess a handgun or other firearm subsequent to an arrest.
First, it is important to look at the terms of your adjudication. Felony deferred adjudication only prevents possession of firearms in your house if the conditions of probation prohibit it. The court usually orders a prohibition on firearm possession in deferred adjudication and probation, but not in every case. In fact, by retaining an attorney it may be possible to recover your gun from the police even while the case is pending. Check Article 18.19(c) of the Texas Code of Criminal Procedure for details.
Second, the applicable law may be different, depending on your situation. For instance, under the Texas Penal Code, Section 46.04, a convicted felon may only possess a firearm on the premises where he/she lives. However, under federal law, the same offense may result in being forever prohibited from gun ownership. See 18 U.S.C. Section 922(g).
In short, misdemeanor supervision will probably not affect firearms rights unless it is for domestic violence; deferred felony supervision normally allows possession of firearms for hunting, but not the purchase of more guns or ammunition or interstate transportation; and regular or shock probation prohibits the possession, shipment, transportation and receipt of guns.
Gun laws can be confusing at times. Knowing when to carry, whether a permit is necessary and how to carry requires careful study of federal and state statutes. You can start by looking at Texas Government Code Section 411.172 and Texas Penal Code Section 46.02. Generally speaking, in Texas, you are allowed to carry your handgun in your home, vehicle and, if allowed, your workplace. There are certain exceptions and stipulations to each of these areas, so it is important to consult with an attorney before "pulling the trigger" on carrying your firearm.
** This article is not intended to be legal advice, but as a general summary reference of the issues discussed. Please refer to the state statutes directly, as listed herein for further guidance or questions.
Summarized from A Short Memo on the Community Caretaking Function by Tip Hargrove III; Voice for the
Defense; June 2012; Volume 41, No 5.
Police officers have many functions in our community. To perform a traffic stop, there must be reasonable suspicion that a crime has been committed. But what about when a police officer sees someone that he believes to be in distress? Is he allowed to stop that person even though there is no suspicion that a crime has been committed? Texas courts have said that yes, in some circumstances, this is permitted.
So when is it okay for a police officer to stop and help a person when they have no reasonable suspicion that a crime has been committed? The Texas Court of Criminal Appeals has determined that the relevant factors in determining whether or not an intrusion is reasonable are: (1) the nature and level of distress exhibited by the individual, (2) the location of the individual, (3) whether or not the individual was alone and/or had access to assistance independent of that offered by the officer, and (4) to what extent the individual, if not assisted, presented a danger to himself of others.
Cases in the lower courts have shown that a passenger throwing up out of a car window while moving, or even a passenger in a car stopped on the side of the road and throwing up outside of the car, is not enough to justify a "community caretaker" stop. The Court of Criminal Appeals said that the "community caretaking" exception is to be narrowly applied and that the first factor, the nature and level of distress shown by the individual, is the most important in deciding whether the stop was justified. So if the person shows a higher level of distress, such as bleeding from a head wound, then the stop would likely be justified.
The following is a summary of many of the legislative changes that took effect in September of 2011 that relate to criminal offenses.
Prohibition of Glass on State-Owned Rivers
A person commits an offense if the person knowingly possesses a glass container within the boundaries of a state-owned riverbed in a county that is located within 85 miles of an international border and in which at least four rivers are located. An offense is a Class C misdemeanor. See Health and Safety Code §365.035.
Radar Interference Devices
A person, other than a law enforcement officer, may not use, attempt to use, install, operate, or attempt to operate a radar interference device in a motor vehicle. A person may not purchase, sell, or offer for sale a radar interference device. A "radar interference device" is defined to include a radar jamming device, jammer, scrambler, or diffuser and to exclude a ham radio, band radio, or similar electronic device. An offense is a Class C misdemeanor. See Transportation Code §547.616.
Fraudulently Obtaining a Controlled Substance
A person commits an offense if the person, with intent to obtain a controlled substance or combination of controlled substances that is not medically necessary for the person or an amount of a controlled substance or substances that is not medically necessary for the person, obtains or attempts to obtain from a practitioner a controlled substance or a prescription for a controlled substance by misrepresentation, fraud, forgery, deception, subterfuge, or concealment of a material fact. A material fact includes whether the person has an existing prescription for a controlled substance issued for the same period of time by another practitioner. Offense is punishable as follows: (1) second degree felony if a schedule I or II controlled substance; (2) third degree felony if a schedule III or IV controlled substance; (3) class A misdemeanor if a schedule V controlled substance. See Health and Safety Code §481.129.
Engaging in Organized Crime
This section was amended to now include "causing the unlawful delivery, dispensation, or distribution of a controlled substance or dangerous drug." See Penal Code §71.02.
Texas Controlled Substances Act; Penalty Group 2
Adds synthetic marijuana, commonly known as K2, to the list of controlled substances. See Health and Safety Code §481.103.
Electronic Transmission of Certain Visual Material Depicting a Minor; "Sexting"
Creates the new offense for minors of "sexting". It is an offense for a minor to intentionally or knowingly: (1) promote by electronic means to another minor visual material depicting a minor, including the actor, engaging in sexual conduct, if the actor producing the visual material knew that another minor produced it; or (2) possess in electronic format visual material depicting another minor engaging in sexual conduct, if the actor produced the visual material or knew that another minor produced the visual material.
Offense is punishable as a Class C misdemeanor; unless the actor promoted the material with the intent to harass, annoy, alarm, abuse, torment embarrass, or offend another, or if the actor has one or more previous convictions for "sexting," in which case it may be punishable as a Class A or B misdemeanor.
Defenses to "Sexting": (1) If the visual material depicted only actor or another minor who is not more than two years older or younger and with whom the actor had a dating relationship at the time of the offense or was the spouse and was promoted or received only to or from the actor and the other minor. (2) If the actor did not produce or solicit the visual material, possessed the visual material only after receiving the material from another, and destroyed the material within a reasonable time. See Penal Code §43.261.
Illegal Dumping; Discarding Lighted Materials
A person commits an offense if the person discards lighted litter, including a match, cigarette, or cigar, onto open-spaced land or a public or private road and a fire is ignited as a result of the conduct. An offense is a Class C misdemeanor. See Health and Safety Code §365.012.
Enhancements to current offenses:
Driving While Intoxicated
If a person commits the offense of driving while intoxicated and the person's BAC is 0.15 or higher, the penalty is enhanced from a Class B misdemeanor to a Class A misdemeanor. See Penal Code §49.04.
If a person commits intoxication assault and the victim suffers a traumatic brain injury that results in a persistent vegetative state, the penalty is enhanced from a third degree felony to a second degree felony. See Penal Code §49.09.
Fraud in Fishing Tournaments
A person commits an offense if, with intent to affect the outcome of a fishing tournament, the person alters the length or weight of a fish or the person enters a fish in the tournament that was taken in violation of any provision of this code or a proclamation or regulation of the commission. Offense is a Class A misdemeanor, except that if the offense occurred during a tournament in which any prize is worth $10,000 or more in money or goods, the offense is a third degree felony. See Parks and Wildlife Code §66.02.
Expunction and Sealing of Records:
New Waiting Periods for Expunctions
For Class C misdemeanors committed by juveniles, all records and files, including those held by law enforcement, are automatically confidential and may not be disclosed to the public.
The Texas Constitution was amended to allow the Governor to pardon a person who successfully completes a term of deferred adjudication community supervision.
Changes in Criminal Procedure Law:
I Had No Idea That Would Happen: Collateral Consequences of Family Violence Cases
By: Sam Bassett
There are several collateral consequences in family law cases that arise when a finding of family violence is made or when a person is arrested for family violence. Emergency Protective Orders allow a judge to issue a protective order without a prior hearing if the person was arrested for a family violence-related offense. In a case where serious bodily injury is alleged or where a deadly weapon is involved, a judge must issue this type of protective order before the defendant can be released from jail. The second type of protective order can be filed by the District Attorney, and are often filed by private attorneys on behalf of their clients. These applications must contain a sworn statement by the victim, describing the family violence that occurred and the need for protection. The court must make a finding that there is a clear and present danger of family violence; that family violence has occurred and that family violence is likely to occur in the future.
Family violence can also affect a person's right to carry a weapon, and may result in that person's deportation. Texas state law provides that a person who has been convicted of assault family violence cannot possess a firearm for a period of five years after their release from jail or probation. Additionally, a person who has been served with an emergency protective order may not possess a firearm until the order expires. Any alien who is convicted for a crime of domestic violence or who violates a protective order is subject to deportation. If the alien is in the United States illegally and is convicted of a crime of domestic violence that alien may never be granted legal alien status.
A finding of family violence will affect child custody arrangements and may make the victim eligible for spousal maintenance. A court cannot appoint the parties as joint managing conservators if there is credible evidence that a party has a history or pattern of child neglect, or physical or sexual abuse against the other parent or a child. A victim of family violence in a divorce proceeding may be eligible for spousal maintenance regardless of the length of the marriage. Normally, without a finding of family violence, the marriage must have lasted at least ten years and meet other requirements in order for a spouse to be eligible for spousal maintenance. The amount of maintenance can be up to $2,500 per month and can last for up to 3 years.
Summarized from Voice for the Defense Vol. 40 No. 1
COMAL COUNTY VETERANS TREATMENT COURT
Comal County has recently opened a new treatment court aimed toward aiding Veterans who have been confronted with misdemeanor criminal issues. Under the Comal County Veterans Treatment Court, Veterans are able to participate in a minimum 12 month long program narrowly tailored to their specific needs. The Veterans Treatment Court, through the VA and local affiliates, offers financial planning assistance, help with transportation, options for drug and alcohol rehabilitation, aid with mental health, along with a program created to help keep all participants accountable and on track. Each track of the program has four stages leading to a community transition period, all designed to enable Veterans to address the goals set out by the Veteran at the beginning of the program. Under Track 1, which includes all eligible misdemeanor offenses except DWIs, the Veteran will be placed on pre-trial intervention and upon successful completion of the program, able to have the arrest and charge expunged from their records. Under Track 2, for DWI offenses, the Veteran will be placed on probation with a low $500.00 fee for the entire program, including fines and court costs.
In addition to the services provided, the Veterans Treatment Court offers numerous incentives, including pre-trial intervention, which allows the Veteran to have the arrest and charge expunged from their record, actual help through the program in having one’s records expunged rather than having to seek out another attorney, and possible reduction in charges for eligible high blood alcohol concentration DWIs originally charged as Class A misdemeanors to Class B misdemeanors will the blood alcohol concentration (BAC) suppressed.
As members of the legal community, Hazel Brown & Miller’s partners are committed to being a part of the Veterans Treatment Court by volunteering time and resources to the Court in order to provide proper representation for the Veterans throughout the process. Veterans will have a defense counsel present for all hearings who will be able to answer any questions and advocate for the Veteran through each phase, ultimately leading to successful completion, rehabilitation, and transition.
If you or someone you know may be a potential candidate for this specialty court (as a Veteran), you may apply through Comal County Court at Law # 2 per the application at think link:
Texas Legislature Shows New Lenience for a Second Chance at a Clean Record
At some point, everyone has made a mistake or has been in the wrong place at the wrong time. Unfortunately for some, that can result in a criminal record, which shows an arrest, charge, or conviction. When permitted by Texas Law, an individual is allowed to permanently remove information about an arrest, charge, or conviction from their permanent record. This is called an expunction. Once an individual is expunged, all information is removed from the criminal record and that person can deny the incident ever occurred.
If expunction is not available as an option due to the nature of the offense, charge or conviction, it may be possible to obtain an Order for Nondisclosure. A nondisclosure order does not completely destroy all record of any offense, but will limit the accessibility of the records. Records subject to a nondisclosure order are removed from public record and cannot be released or accessed by certain private parties. However, the records will remain available to certain government agencies and will be admissible in certain court actions.
In order to obtain an order on non-disclosure a petition must be filed with the court that was involved with the original offense. A hearing will be conducted after proper notice to the required parties and the court will determine, at that time, whether to grant the order. However, due to a recent change in legislation, non-disclosures now expand to certain non-violent misdemeanor convictions. The changes allow for immediate/cheaper non-disclosures for a small class who successfully completes deferred adjudication misdemeanors. This type of deferred adjudication is available for misdemeanors other than a misdemeanor involving: kidnapping, trafficking of persons, sexual offenses, assaultive offenses, offenses against the family, disorderly conduct, public indecency, weapons, or organized crime. A person, in order to qualify for this type of deferred adjudication must also have never been convicted or placed on deferred adjudication for another offense except for traffic violations punishable by fine only. If a qualified person successfully completes deferred adjudication, and the court has determined they have satisfied the requirements, the court shall issue an order of non-disclosure of criminal history record at the same time they discharge and dismiss the charges against the person, if the case was discharged at least 180 days after that person was placed on deferred adjudication. If the charges against a person are dismissed before 180 days have passed since the person was placed on deferred adjudication then the court will issue the order for non-disclosure as soon as practicable. This recent change in the law makes it easier for an individual to seal their records, which in turn would make it easier for an individual to obtain a job, and enjoy other benefits associated with having a “clean” record.
If you think you may qualify for an expunction or nondisclosure, call Hazel Brown & Miller at (830) 629-6955.
* This article is for informational purposes and does not constitute legal advice.
© 2016 Hazel Brown & Miller, PLLC
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