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.

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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 restitution. See 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.
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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.

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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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It is the role of the judge to remain impartial in your criminal case. This means the judge will treat both sides equal, fair, and, just. But, depending on what stage your case is at, maybe a jury trial, bench trial, or punishment hearing, the judge may have more room to ask some questions that could sound as if he or she is acting on behalf of the prosecution.

What can happen if the judge goes beyond allowed questioning of a witness?

There is a point where the judge can ask questions that affect his or her impartiality and abandon their neutral position. In the Texas 5th District Court of Appeals case, White v. State, the court explains that there are two dangers of a judge going beyond allowed questioning: (1) it may seem that by his or her questioning, the judge is communicating his opinion of the case to the jury and could persuade the jury to think the same and (2) the judge may lose his impartiality and start to support one side than the other.

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Can a prosecutor insult a defense lawyer at trial?

In the Texas 5th District Court of Appeals case, Gutierrez Jr. v. Texas, the issue known as “going over the shoulder of counsel” is argued. Surprisingly, prosecutors may sometimes throw an insult or two at the defense table. At times an objection can be made and the trial will proceed, but there are few instances where these insults can warrant a mistrial.

In the case mentioned above, the prosecutor told the jury “don’t believe what the defense attorney is saying, he is paid, he has been appointed in this case actually.” The defense counsel objected and moved for mistrial. The objection was sustained but the mistrial was denied.

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Our firm has represented numerous clients with offenses involving weapons. The most common question we receive from the clients that we represent in these situation is “can I get my gun, knife, weapon, back?” The answer is, as always, it depends.

When you can’t get your weapon back.

Texas Code of Criminal Procedure 18.19(e) explains that if you are convicted of an offense involving the USE of a weapon, your weapon must be forfeited to the state. Then the state can either sell or destroy that weapon. But, it may be possible under the Texas code to get your weapon back.

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What is self-defense?

Texas Penal Code section 9.31 says that a person is justified in using deadly force when and to the degree the person reasonably believes the deadly force is immediately necessary – to protect themselves from another’s use or attempted use of deadly force or to prevent another who is in immediately attempting aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

When is self-defense viable?

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What is an expunction?

An expunction is available to a someone arrested for a crime, but never convicted, or to a person given deferred on a Class C misdemeanor. Expunctions are for arrests only, they serve as a way to have the arrest taken off of your record.

The process.

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What is reasonable suspicion for a traffic stop in Texas?

Reasonable suspicion in general.  

The Texas case, Hamal v. State, explains that an officer has sufficient reasonable suspicion when he or she is aware of specific articulable facts, that when combined with rational inferences from those facts, would lead the officer to suspect that a person has committed, is committing, or will soon commit a crime.

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The 6th and 14th Amendments of the United State Constitution guarantee an accused party the right to “be confronted with the witnesses against him.” Meaning that if you are charged with a crime and proceed with trial, you have a right to cross-examine testimonial statements by the witness.

Crawford v. Washington 541 U.S. 36, 68 (2004) says that these statements are not admissible against the accused unless the person who made the statement is unavailable and the accused had a chance to cross-examine them.

What are testimonial statements?

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