Criminal Law - Practice area
Criminal Law

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

DUI - Practice area
DWI

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

Juvenile Law - Practice area
Juvenile Law

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

The Fourth and Fourteenth Amendments to the U.S. Constitution protect defendants from unreasonable searches and seizures of themselves, their homes, and their property. Evidence gathered in violation of the Fourth Amendment cannot be used against a defendant at trial. Thus, defendants who can prove that the evidence used against them was collected in violation of the Fourth Amendment may be entitled to the dismissal of the charges against them.

The Texas Court of Appeals recently heard an appeal by the State of Texas that challenged the suppression of evidence obtained against a defendant who had been accused of possession of drugs. The defendant in the recently decided case was driving a vehicle when he was recognized by a law enforcement officer as a known criminal offender. According to the facts discussed in the appellate opinion, the officer began to follow the defendant and witnessed him commit a traffic violation as he pulled into a gas station. The officer pulled behind the defendant and signaled him to stop, at which point the defendant exited his vehicle and behaved suspiciously. The officer engaged with the defendant and notified him that he was stopped for a minor traffic violation. The officer asked the defendant for consent to search his person and vehicle, which the defendant initially gave.

After another officer arrived on the scene, the defendant revoked the consent to search his vehicle and made statements suggesting that the officers were going to get a canine unit to search his car. As a result of the defendant’s statements, the officers called a canine unit, which took 38 minutes to arrive. The canine unit alerted the officers to the presence of marijuana in the car, which was ultimately found after a search was performed. As a result of the drugs being found, the defendant was charged with possession of a controlled substance.

Sex offenses are some of the most serious charges anyone can face in Texas. Not only does a conviction for a sex crime often result in a lengthy prison sentence, but it can carry other life-changing consequences. For example, if you are convicted of a sex crime you will almost certainly be required to register as a sex offender, possibly for the rest of your life. You will also be limited in where you can live and work.

Not all sex offenses are created equal, however, and some crimes that are considered sex offenses (and require sex offender registration) may come as a surprise. The following are a few of the most common Texas sex crimes:

  • Possession or distribution of child pornography;
  • Public lewdness;
  • Indecent exposure;
  • Maintaining an improper teacher/student relationship;
  • Voyeurism;
  • Sexual assault (rape);
  • Prostitution; and
  • Obscenity.

Notably, most sex offenses do not require someone to actually perform a sex act; it is a crime to engage in an act in furtherance of the commission of a sex crime. For example, leaving the house to meet up with a minor you met in an online chatroom for the purposes of engaging in any type of sexual relationship can result in criminal prosecution. In most cases, the crime is punishable to the same extent as if you carried out the sex act.

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Self-defense is one of the oldest and most sacred defenses in all of criminal law. While self-defense applies in a variety of situations, it is also one of the most misunderstood defenses. One particular area of self-defense that is especially important to understand is the “Castle Doctrine.”

The Castle Doctrine is a very old legal concept that is based on the idea that a person’s home is their castle, and they should be able to defend against intruders without fear of violating the law themselves. It is also referred to as the Stand Your Ground law. Texas has a very broad Castle Doctrine that provides ample protection to those defending their homes.

Essentially, the Castle Doctrine makes legal conduct that would otherwise be considered illegal, provided the elements of the doctrine are met. Specifically, the Castle Doctrine allows you to use force you reasonably believe to be necessary to stop another person from trespassing on your property or, in some cases, taking your property. The most protection is afforded to those who are in their home at the time; however, the Castle Doctrine also applies to vehicles.

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).

Prior Offenses At Trial- Texas Rule of Evidence 609

Defendants who have a lengthy criminal history often think the State can’t use their past convictions against them at trial. They are kind of right. We generally don’t allow the State to argue that since you’ve been a criminal in the past, you are guilty of what you are charged with now. But in many circumstances, the State can use prior convictions against you in trial. The State must follow certain rules to talk about your prior convictions at trial. One of those rules is Texas Rule of Evidence 609, but there are others (38.37CCP for example). Let’s look at 609 today.


Texas Rule of Evidence 609

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).

Most of the country is moving past the days of arresting everyone for marijuana possession. Many states have robust medical marijuana programs, and some states have even legalized recreational marijuana. Texas is not one of those states. We have some of the most punitive, and embarrassingly stupid marijuana laws in the country. Possession of any usable amount of marijuana is a Class B misdemeanor, with a penalty of up to 6 months in jail. That’s for leafy weed. Remember when I said our state’s marijuana laws are stupid? Possession of any edible or vape pen is always a felony. Which is mind-bogglingly inane. 

So what can you expect if you are caught with marijuana in Kaufman County?

First of all, our DA’s office still prosecutes these cases like they matter. So if you think the District Attorney won’t care enough to file your case or take you to court you are mistaken. If you are arrested for possession of marijuana in Kaufman County you are going to jail, and then going to court. 

COVID has wrecked what was a predictably oppressive criminal justice system in Kaufman County. In the days before COVID, we could pretty accurately predict how long it would take for your case to get filed and then how long it would take before you had to set it for trial or pre-trial. Since the first court shutdown in March, that’s all gone by the wayside. It’s not easy to predict how long it will take for a case to get filed since agencies are working on different schedules now, and the usual time frame to get a case filed can be shorter for some cases. Since prosecutors aren’t in trial, they can be in the office more handling intake. It can be longer for other cases to get filed, such as cases that need lab testing or many witness interviews.

We are still setting cases for trial in Kaufman County, but since March 2020, there are have been only 3 criminal trials in Kaufman County. Kaufman County has four courts that hear criminal cases in Kaufman County. They used to average 1-2 trials a month each. Now they average zero a month.

So what’s happening to all those criminal cases? Many are getting reset indefinitely. The plea offers haven’t gotten much better, so defendants who don’t want to take a deal are just waiting to see if things improve. If you are looking at pen time, most people would rather wait and see what happens anyway.

The internet age has brought about new ways for humans to treat each other poorly. Anyone who has dared to post a comment online has probably been insulted, called terrible things, or otherwise tormented. Before the cell phone, you had to actually see a person or call their landline to be awful towards them. Nowadays, you’ve got dozens of apps that can give you instant access to someone. Cyberbullying is also a problem, and that’s probably what led to the creation of the Online Harassment law in Texas.

What is Online Harassment?

We start with the general harassment provision in the Penal Code, which is 42.07, and go down to subsection (a)(7).

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