Texas Laws

April 22, 2019

Self Defense Jury Charge in Family Violence Cases

Assault Family Violence is one the worst misdemeanor charges a defendant in Texas can face (the other being DWI). Worst as in the collateral consequences of a conviction, or even a plea for deferred adjudication, can be life-changing. As a result of the serious nature of these charges, many family violence cases end up set for trial. At its core, a family violence case is still an assault, and there many defenses to an assault charge, including self-defense. If you are looking at a jury trial for an assault, one thing your lawyer must prepare for is the jury charge. That is, what the jury will be instructed to do once evidence is considered. If you are trial strategy is based on self-defense, then you want the jury to be able to consider that defense in the jury charge.

What’s the law on self-defense in family violence cases?

It’s the same as self-defense for any other type of assault.

February 25, 2019

Intoxication Manslaughter in Texas- Penal Code 49.08

by Robert Guest

Intoxication Manslaughter is basically a regular DWI with an additional element, that the defendant’s intoxication caused the death of another. It’s a 2nd-degree felony, which means a possible 2-20 year TDC sentence and a fine of up to $10,000.

Let’s look at Texas Penal Code 49.08-

Sec. 49.08. INTOXICATION MANSLAUGHTER. (a) A person commits an offense if the person:

February 19, 2019

Am I Free To Leave? Consensual Encounters with Police

by Robert Guest

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?

January 4, 2019

Can I get a CHL with a DWI conviction?

by Robert Guest

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

June 26, 2017

New House Bill 3016 – Non disclosure of DWI’s

by Robert Guest

Good news in the world of DWI’s has emerged from the 85^th Texas Legislature. If certain criteria are met, now, it may be possible to file a petition for non-disclosure on DWI convictions. Texas House Bill 3016, Government Code 411.0731, defines the procedure and criteria. Section 411.0716(a) explains that this new act will apply to DWI’s committed before, on, or after September 1, 2017.

Does my DWI conviction qualify?

This new section will only apply to a person who has successfully completed a term of community supervision. This means that your community supervision was not revoked, you successfully served any jail time given and you paid all court costs, fines, and any other restitution imposed as part of the conviction.

January 5, 2017

Texas Penal Code 22.01(a)(1)(b)(1) Assault on a Public Servant

by Robert Guest

This is part 3 of our on-going series on Texas Penal Code Section 22.01 Assault. Today we are going to talk about way to make a regular Class A assault (bodily injury) a felony. That would be an assault against a public servant. Section (a)(1)(b)(1) defines assault on a public servant as an assault against-

a person the actor knows is a public servant while the public servant is lawfully discharging an official duty, or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant;

This requires that the defendant a) know the person is a public servant, and b) the public servant is performing is performing an official duty or (c) or in retaliation from the performance of an official duty. A third degree felony has a range of punishment of 2-10 years in TDC, and a possible $10,000 fine.

January 3, 2017

Texas Penal Code 22.01 Assault

by Robert Guest

There are many different offenses with the word “assault” in them in Texas. Assault by Contact, Assault on a Public Servant, Sexual Assault, Assault Family Violence, Assault by Contact (Class C) etc. Section 22.01 of the Texas Penal Code covers a broad range of conduct, everything from Class C misdemeanor assaults to Second Degree Felony Assault. Let’s dive into the statute and see what’s going on here.

First up, what is an assault in Texas?

Basically, it’s causing bodily injury, threatening bodily injury, or offensive physical contact. Specifically

April 3, 2014

What’s the law on kidnapping in Texas?

by Robert Guest

The Dallas Court of Appeals recently upheld a Rockwall County kidnapping conviction. Let’s look at the laws regarding kidnapping in Texas, and discuss the facts that led to the courts decision. Here’s the case- Wilson vs. State of Texas- I usually go through all the facts of the case, but this one has a really weird fact pattern, and I think that’s why the defendant got probation. It just not what you think of when you think of a kidnapping. So I’m going to skip it so we can cover some other areas.

First, what’s the law on kidnapping in Texas?

Good questions, let’s go to the opinion-

January 19, 2014

Does the Texas Transportation code (implied consent) trump the 4th amendment?

by Robert Guest

If there is one thing law enforcement hates, it’s the 4th Amendment’s requirement to get a warrant before searching. The reason? Warrants require an officer to have probable cause, and to explain said probable cause (in writing) before getting what they want (searching your house, stealing your blood etc). Warrants provide some degree of accountability for LEO, a very minor check on the almost limitless power of the State. Today let’s talk about searching your body, specifically your veins. In our DWI police state your blood is merely another piece of evidence for the State to gather, and they will hold you down GITMO style to do so.

The Supreme Court recently decided a case called McNeely vs. Missouri, which upheld the controversial position that holding down a DWI suspect and taking his blood without consent is a search, and a warrant is required unless there is some kind of emergency. I say this in controversial because a) prosecutors and law enforcement hate this idea and b) the Constitution usually doesn’t apply to DWI suspects.

So the Supreme Court rules on this blood search issue and now it’s up to Texas’ appellate courts to uphold this Constitutional safeguard. The problem is our appellate courts are largely pro-conviction police-state judicial activists who want the Government to win on appeal. Don’t believe me, today’s case of the day is Reeder Vs State from the Texarkana Court of Appeals.

January 7, 2014

DWI Blood Draws and Your Drivers License

by Robert Guest

When I first started DWI defense lawyering blood draws were pretty rare in DWI cases, but today they are becoming more common with the “no refusal” weekends etc. This has caused some problems as far the ALR/driver license suspensions are concerned. How does a blood draw affect your drivers license? Let’s take a look.

When Texas set up the ALR hearing system to suspend drivers licenses after DWI arrests they had breath tests in mind. That is, the State would know the bac result from the breath test at the time the defendant was arrested, so if the defendant failed, then the cops would notify DPS to suspend their license.

The law in Texas states that after being arrested you have 15 days to call DPS and ask for an ALR hearing to challenge your license suspension. If you don’t request a hearing, then your license will be suspended after 40 days (from the date of arrest). If you do request a hearing within 15 days your license is good until the hearing and then only if the judge rules against you (which usually happens, the ALR game is rigged so that DPS usually wins, because tuff on crime).