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.

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).

We get asked a lot about attorney bonds in Kaufman County.  First, let’s talk about-

What is an attorney bond?

You know how someone is stuck in jail and they have to post a bond to get out? Well, they have a few choices. Let’s say Bill is in the Kaufman County jail on a $5,000 bond for possession of meth. Bill can pay $5,000 cash (a cash bond), hire a bond company (bail bondsman) and pay them a % (varies), or get an attorney to post bond (and usually hire them on the case as well).

What happens if you are facing a criminal charge for assault family violence, while you are getting divorced? Our law firm handles both criminal defense, and family law matters. We have seen cases in which one party, let’s say the Husband, is charged with family violence against his Wife, and a divorce is pending.

The first issue that’s going to come up is usually a protective order. If Husband was arrested for assault family violence, then often the judge (magistrate) who sets his bond will issue an emergency order of protection. This order will often forbid the defendant (in our case, Husband) from many things including returning to the residence, threatening the Victim (complaining witness), or possessing a firearm. If you are getting divorced this will essentially ban a defendant from accessing the marital residence.

If you have been arrested and are facing a divorce with a protective order you will want to see understand what options you have to challenge the protective order and to challenge a finding of family violence being entered.

We talk to a lot of people who have a defense lawyer and are looking to switch. One of the most common reasons defendants want to change attorneys is a lack of communication. These defendants are frustrated that they hired an attorney but can not get an update, or a callback, or any information regarding their case. Their stress and anxiety are only made worse the more serious the charge. No one who is facing prison time wants to pay a lawyer thousands of dollars only to be ignored.

What’s going on? Why won’t your lawyer call you back?

The first reason is they may not have time. A lot of defense lawyers are solo and work alone. However many cases their law practice has, there is only one lawyer to work on all of them. Being a lawyer is stressful, and if you are the only lawyer you might handle stress by focusing only on the most serious problems that have an immediate deadline. So if your case is not set for trial (I’m writing this during COVID so there aren’t any trials, but still, I’m assuming that trials will hopefully resume someday), then it might not be a priority for your defense lawyer.

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