Criminal Law

DWI, Drugs, Assault, Probation Revocation, Sexual Offenses, Theft, Juvenile Defense. Felony and Misdemeanor Offenses in State and Federal Court

DWI

Driving While Intoxicated, DWI and Your Drivers License Forney, Texas DWI Defense Lawyer.

Juvenile Law

Sexual Offenses, Drug Offenses, Assault and Violent Crimes, Theft, Truancy/School Related Criminal Charges.

You are standing on a sidewalk outside your apartment complex while smoking a cigarette, a police officer approaches and asks what you are doing, and if you know anything about a crime that occurred earlier that day. Do you have to speak with the police? Can you leave?

The police don’t have to arrest you to speak with you. And if you aren’t in custody, or subject to custodial interrogation, the police don’t have to read you your rights (Miranda warnings). Many clients ask if the police can “just start asking questions” and tell me “they never read me my rights.” In the case of consensual encounters, the police can just ask you questions, without reading you your rights.

What is a consensual encounter?

It’s pretty rare that a defendant gets revoked on probation within 30 days. If you do, then consider filing a motion for new trial. In the right case, it’s like a get out of jail free card, and the new trial motion will effectively start the probation over. You have to really screw up your community supervision to get revoked so fast. One thing to consider is whether you really want to be on probation, that’s something you can go over with your lawyer. It might be easier to just sit out the sentence, especially on a misdemeanor.

What’s the law on new trial motions in Texas probation cases?

The filing of an effective and timely motion for new trial, retroactively renders the judgment nonfinal. Lundgren v. State, 434 S.W.3d 600 (Tex.Crim.App. 2014). When a timely Motion for New Trial is filed, the terms of probation begin when the motion for new trial is overruled. Id. See also McConathy v. State, 544 S.W.2d 668 (Tex.Crim.App. 1976). In Lundgren v. State, the state moved to revoke defendant’s probation one week after the judgment for his initial DWI charge. Lundgren v. State, 434 S.W.3d 596 (Tex.Crim.App. 2014).   Defendant filed a motion for new trial on the first DWI offense, and the Court of Criminal Appeals of Texas ruled that, the motion for new trial rendered the judgment as nonfinal. Id. at 598. Therefore, defendant’s community supervision for his first DWI offense did not begin until the motion for new trial was overruled. Id. at 600.

In Texas you have a right to bail under the State Constitution. However, in recent years the Texas Constitution has been amended to allow no bonds to be set in certain cases. Texas has a Bill of Rights, and the Bail provision are under section 11 of Article 1. If you are trying to bond lowered, or have an issue with bail, the Constitution of Texas is something you should look at.

Sec. 11. BAIL. All prisoners shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident; but this provision shall not be so construed as to prevent bail after indictment found upon examination of the evidence, in such manner as may be prescribed by law

Sec. 11a. DENIAL OF BAIL AFTER MULTIPLE FELONIES. (a) Any person (1) accused of a felony less than capital in this State, who has been theretofore twice convicted of a felony, the second conviction being subsequent to the first, both in point of time of commission of the offense and conviction therefor, (2) accused of a felony less than capital in this State, committed while on bail for a prior felony for which he has been indicted, (3) accused of a felony less than capital in this State involving the use of a deadly weapon after being convicted of a prior felony, or (4) accused of a violent or sexual offense committed while under the supervision of a criminal justice agency of the State or a political subdivision of the State for a prior felony, after a hearing, and upon evidence substantially showing the guilt of the accused of the offense in (1) or (3) above, of the offense committed while on bail in (2) above, or of the offense in (4) above committed while under the supervision of a criminal justice agency of the State or a political subdivision of the State for a prior felony, may be denied bail pending trial, by a district judge in this State, if said order denying bail pending trial is issued within seven calendar days subsequent to the time of incarceration of the accused; provided, however, that if the accused is not accorded a trial upon the accusation under (1) or (3) above, the accusation and indictment used under (2) above, or the accusation or indictment used under (4) above within sixty (60) days from the time of his incarceration upon the accusation, the order denying bail shall be automatically set aside, unless a continuance is obtained upon the motion or request of the accused; provided, further, that the right of appeal to the Court of Criminal Appeals of this State is expressly accorded the accused for a review of any judgment or order made hereunder, and said appeal shall be given preference by the Court of Criminal Appeals.

Most people assume that the criminal justice system in Texas is fair, or at least makes sense. It’s only when they get arrested do they discover how FUBAR this “justice” system can be. Here is one example, say you get arrested for a DWI, you end up pleading to a traffic ticket, and the State dismisses the DWI case. You’d think you could have that DWI case expunged right? WRONG.

The Dallas Court of Appeals recently ruled on that very issue in EX PARTE JOAN REIMHERR FALLIS.

Fallis was arrested for DWI in Gillespie County. As part of a plea bargain, the DWI was dismissed and Fallis pled guilty only to illegal parking. Later Fallis wanted this DWI off her record, after all, it was dismissed so that seems reasonable right? Yeah, not so much.

Kaufman County is growing and in anticipation for reaching the 110,000 person mark in the next census, created a bail bond board. The board has approved the following companies to write bonds in Kaufman County. If you have a friend or loved one stuck in the Kaufman County jail, or the Forney jail, you need to call someone below for bail, and call us for criminal defense.

AAA Bail Bonds

972 932-1800

Texans love guns. We love booze. We live in a state with crappy public transportation. The result? A lot of people with concealed handgun licenses (CHL) get arrested for DWI in Texas. And a lot of people who want to get a CHL have a DWI conviction on their record.

The answer is no, you can’t get a CHL after a DWI conviction, at least for a while.

A misdemeanor DWI conviction will disqualify you from getting a CHL for a period of 5 years. Don’t take my word for it. Here is a DPS statement on the subject

Much has been written about why innocent people plead guilty to serious charges. Basically, it’s because the possible sentence and penalties (prison/fines) for going to trial are so great that the risk-averse will avoid trial when possible. But why do innocent people plead guilty when the stakes are low? Like Class-C misdemeanor low? That’s a simpler explanation, the cost of fighting the case is so much higher than the penalty, that most won’t bother trying to avoid the penalty.

Example- You are involved in an argument with a neighbor over loud fireworks on New Year’s Eve. Neighbor says you pushed him, you tell the cops that Neighbor fell down because he was drunk. The police show up, don’t know who to believe, and write you a ticket for assault since you aren’t claiming the neighbor did anything illegal. The police would probably prefer to not write any citations, but they are worried that the next time you guys argue someone might get hurt, so this creates a record of events and is a decent way to CYA the situation in case of future conflict.

Now you are facing a Class C Assault By Contact in your local Muni Court. Too many local municipal courts in Texas are run as profit-making ventures. Cities hire Municipal court judges and prosecutors (city attorneys), and often do so with the goal of maximizing fines (revenue).

In Texas, many defendants are ordered to pay restitution as part of their sentence. But what happens if the parties can’t agree on the amount of restitution? For example, if Joe Defendant is guilty of assaulting Vince Victim, how much should Vince get for his medical bills and treatment? Or pain and suffering? What about physical therapy or the cost of gas for driving to the doctor’s office?

In Texas a crime victim has a statutory right to restitutionSee Tex.Code Crim.Proc.Ann. art. 42.037 (West 2018). This right has some important limits.  (1) the restitution ordered must be only for the offense for which the defendant is criminally responsible; (2) the restitution must be only for the victim or victims of the offense for which the defendant is charged; and (3) the amount must be just and supported by a factual basis in the record. Burt v. State, 445 S.W.3d 752, 758 (Tex. Crim. App. 2014).
If the parties can not agree on an amount of restitution then the trial court must resolve any disputes. Tex.Code Crim.Proc.Ann. art. 42.037(k). At a restitution hearing, the standard of proof is a preponderance of the evidence, that means a 50.01% showing via the evidence that an amount is proper.

It is not as crazy as it sounds.

Defensive theories, while totally credible, can sometimes be perceived as outrageous. In some of these cases, different types of evidence is used to prove a defensive theory. But, this evidence must meet the requirements of the Federal Rules of Evidence and be relevant to the case.

Let’s say you are facing an aggravated sexual assault of a child charge and one of your theories is that the child artificially inseminated herself and got the idea from the popular television show Law & Order SVU, sounds crazy right? Well, believe it or not, there is a case on it.

For any officer to make a traffic stop he or she must have reasonable suspicion. But, what is reasonable suspicion? Well, based on the famous case, Terry v. Ohio, the officer must have the belief based on specific articulable facts that criminal activity is afoot. But still, what does reasonable suspicion mean? Just like most law driven answers, “it depends” and “it’s determined on a case by case basis.”

Does an officer have reasonable suspicion for a traffic stop when the vehicle is in the same area of reported gunshots?

In the 5th district court of appeals case, Texas v. Montiel-Contreras, the answer is yes. Here, the defendant, charged with DWI, after being pulled over in the same complex where gunshots were heard. The officer heard gunshots coming from the defendant’s area on top of numerous 911 calls made that night describing hearing shots and seeing a black man with a gun.

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