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?
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 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.
If you are facing a charge of drug possession in Texas and you are not a citizen of the United States, you should be aware of the laws regarding deportation for drug convictions.
What is the law on deportation for drug convictions?
Under federal law, an alien convicted of a drug offense, other than possession of a relatively small amount of marijuana, is deportable. See 8 U.S.C.A. § 1227(a)(2)(B)(i). Placement on deferred adjudication in Texas is considered a conviction for purposes of federal immigration law. See Moosa v. I.N.S., 171 F.3d 994, 1005–06 (5th Cir. 1999); Guerrero, 400 S.W.3d at 588 & n.52; see also 8 U.S.C.A. § 1101(a)(48)(A).
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.
Can a Roofing Contractor be Charged with Theft?
After every hail storm of tornado roofing contractors will defend on neighborhoods looking for repair work. Most contracts are honest and upright and do a great job. However, sometimes a roofing contractor is hired, paid, but then fails to fix your roof as agreed. Law enforcement may get involved, and even arrest a roofing contractor for theft, or they may tell the homeowner this is a “civil matter” and to file a lawsuit in small claims court instead. If you are charged with theft over a roofing case, most often the prosecutor will require restitution as a condition of any plea bargain, or even offer a better plea offer if you pay restitution upfront. This varies by county.
What is theft in Texas? How does that apply to roofing contractors?
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.
Dallas Criminal Defense Lawyer Blog