Articles Posted in Criminal Appeals

In a November 2023 case before an appeals court in Texas, the defendant asked for a review of the trial court’s decision to deny his motion to suppress evidence. Reviewing the defendant’s appeal, the higher court ultimately disagreed with his argument and affirmed the original verdict. The court’s opinion highlights the difficulty of suppressing incriminating evidence when a defendant commits multiple offenses in a row, serving as a reminder for Texans of just how difficult it can be to successfully suppress evidence in criminal cases.

Facts of the Case

According to the opinion, officers on patrol one evening used an automated license plate reader to discover that a nearby vehicle’s owner was wanted on multiple outstanding arrest warrants. Additionally, the officers noticed that the vehicle did not match the one for which the vehicle’s tags had been issued.

The officers put on their lights and attempted to conduct a traffic stop. The defendant stopped at first, but then he proceeded to flee the scene. What ensued was a high-speed chase that lasted approximately one hour. Eventually, officers used spike strips to stop the defendant in his car. The officers then arrested the defendant for avoiding arrest.

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In a recent criminal case before an appeals court in Texas, the State appealed a previous ruling in the defendant’s favor regarding his conviction for tampering. Originally, the defendant was charged with tampering in 2017, and he was ultimately found guilty as charged. The defendant appealed, and the court of appeals reversed the conviction. The State appealed, however, and the higher court ultimately reversed the verdict that was in favor of the defendant.

Facts of the Case

According to the opinion, an officer on the highway was on patrol in his car when he saw the defendant driving by, going 84 miles per hour in a 75-mile-per-hour zone. The officer activated his lights and began following the defendant, attempting to make a traffic stop.

As the officer followed the defendant, he noticed that the defendant threw several brown objects out of his window. One of the objects flew directly into the officer’s windshield, and the others fell to the ground.
The defendant eventually stopped his car, and the officer issued a traffic ticket. The officer then went back to look for the objects that the defendant threw from his car, finding five joints with marijuana wrapped in brown cigar paper. Officers later arrested the defendant and charged him with possession of marijuana and tampering.

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Recently, the Court of Appeals for the Fifth District of Texas at Dallas issued an important decision holding the state’s stalking statute unconstitutional. While lawmakers are responsible for writing and passing laws, courts must interpret the laws as they are written. However, courts are also the final arbiter in determining whether a law is constitutional. While most laws pass constitutional muster, some do not, as evidenced by the court’s recent decision.

The Facts of the Case

The defendant in the case was arrested and charged with felony stalking for conduct taking place between January 1, 2007, and April 24, 2018. More specifically, the complaint alleged that the defendant engaged in conduct that caused the complaining witness “to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended” and “would cause a reasonable person to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended.” Evidently, the defendant posted comments on social media and made other public statements that the complaining witness considered threatening.

At the time, the Texas stalking statute made it a crime to commit more than one act of “electronic-communications harassment” under § 42.07. That statute provides that a person repeatedly sends “electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.” Thus, the stalking statute directly references the harassment statute, making it a stalking offense to engage in a continued course of harassment.

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What is burglary of a habitation in Texas?

Burglary of a habitation is a 2nd-degree (2-20 TDC) felony in Texas. The law forbids entering a  “habitation” without permission from the owner and then attempting or committing theft. See TEX. PENAL CODE § 30.02(a).

What is a habitation?

Let’s say you have a trial and lose. The judge or jury sentences you to 5 years in prison, but your lawyer is going to file an appeal. Can you get released on bond while the appeal is pending?

BOND AFTER CONVICTION IN TEXAS

If you’ve been convicted in a case and sentenced to prison time it is still possible to be released on bond pending the outcome of an appeal. Texas Code of Criminal Procedure Article 44.04(b) allows for bond in all cases in which the defendant is sentenced to less than 10 years and the offense is not listed under 42A (we used to call these 3G offenses).

It’s hard to second guess a defense lawyer’s work on a case, and it’s something we are asked to do often. When someone takes has a trial or enters an open plea to the court (pleading guilty with no agreed sentence) and gets a result they don’t want they usually pivot to see if their lawyer was defective. A bad result can frame the whole attorney-client experience in hindsight. It’s one reason that setting expectations and letting clients manage their own risks is so important. The risk of pleading guilty or not, having a trial or not, is always the clients’ risk to take or not. As criminal defense lawyers, we can advise clients on what their options are, but we never choose for them.

What about pleading true to a probation revocation? 

Pleading true to allegations in a motion to revoke without a plea bargain leaves a defendant open any sentence in the range of punishment if on deferred, or up the maximum number of years in the sentence if the plea is straight probation (straight probation means you are convicted).

What does the “same criminal episode” mean? 

Section 3.10 of Chapter 3 of the Texas penal code defines a “same criminal episode” as “the commission of two or more offenses, regardless of whether the harm is directed toward or inflicted upon more than one person or item of property, under the following circumstances: …. or (2) the offenses are the repeated commission of the same or similar offenses

https://statutes.capitol.texas.gov/Docs/PE/htm/PE.3.htm 

A recent case from the Dallas Court of Appeals (Woodland vs State) discusses the use of prior convictions in “he said/she said” sexual assault cases. First, what is a “he said/she said” sexual assault case? It’s when the main evidence in a case is the complaining witness testifies, and so does the defendant. We are going to skip the issue of if a defendant should or should not testify in right now.

Can prior convictions be used against a defendant in sexual assault cases? The answer is, probably if the prior convictions are germane to the new offense. So a DWI might not be admitted, but a case regarding sexual assault or sexual misconduct can be. There is a general rule that prior convictions may not be used to show “character conformity”, that is, that the defendant is guilty because he is a criminal. But, in sexual assault cases there is a special provision, 38.37 of the Code of Criminal Procedure, that allows prior convictions to be used against a defendant.

Here is a quote from the court-

In law, must and shall are important words. Must and shall indicate that an action is required, it has to happen, it is a part of the process, proceeding, or hearing that can’t be ignored. Contrast that with “may”, which implies that it doesn’t matter if the thing happens or not.

One thing that is supposed to happen in a criminal case, is that the Judge must inform the defendant about the range of punishment before he pleads guilty. That is, the defendant must know how much time he’s look at before he says “I’m guilty”.  Here is the shall if you want to read it-

Texas Code of Criminal Procedure 26.13

What is a stacked sentence?

Good question. A stacked sentence is one in which two sentences are to be served consecutively or one after another. So if Bob has two cases for possession, and gets 5 years TDC in each case, then a stacked sentence would require him to serve these sentences back to back.

Contrast that with a concurrent sentence, which lawyers call “CC”. If Bob has two charges for possession and gets the same 5 years in each case, then both sentences run at the same time. So Bob does one 5 year sentence.

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