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After the evidence is presented at a criminal trial, both sides have the opportunity to make closing arguments. There are limits to what the State can say to a jury, and in theory it is erroneous when the State cheats and makes improper closing arguments. However, in Texas our historically ultra-authoritarian appellate courts are largely unwilling to hold prosecutors accountable for trial conduct, so don’t count on your conviction being overturned for improper closing arguments.

Defendant’s Failure To Testify At Trial

A prosecutor’s comment on a defendant’s failure to testify violates both the federal and state constitutions as well as Texas statutory law. Randolph v. State, 353 S.W.3d 887, 891 (Tex. Crim. App. 2011); see also U.S. CONST. amends. V, XIV; TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC. ANN. art. 38.08; Griffin v. California, 380 U.S. 609, 615 (1965). The implication that the State’s comment referred to a defendant’s failure to testify, however, must be “a clear and necessary one.” Randolph, 353 S.W.3d at 891. Indirect or implied allusions, or language that might be construed as such, do not constitute a violation. Id. A prosecutor’s argument amounts to a comment on a defendant’s failure to testify only if the prosecutor manifestly intends the comment to be, or the comment is of such character that a typical jury would naturally and necessarily take it to be, a comment on the defendant’s failure to testify. Wead v. State, 129 S.W.3d 126, 130 (Tex. Crim. App. 2004). A defendant has a separate privilege not to testify at either the guilt or punishment phases of a trial. Randolph, 353 S.W.3d at 891.

What is aggravated assault with a deadly weapon in Texas?

A defendant commits the offense of aggravated assault with a deadly weapon if the defendant commits assault as defined in penal code section 22.01 and uses or exhibits a deadly weapon during the commission of the assault. See TEX. PEN. CODE ANN. § 22.02(a)(2). A defendant commits assault under section 22.01 if the defendant “intentionally, knowingly, or recklessly causes bodily injury to another.” Id. § 22.01(a)(1). A firearm is a deadly weapon. See id. § 1.07(a)(17)(A).

How does self-defense apply in an aggravated assault with a deadly weapon case?

Our last blog post talked about a consensual encounter with law enforcement. Basically, if the police just walk up and start talking to you, you can leave, but they don’t have to Mirandize you. If you aren’t sure if it’s a consensual encounter or interrogation, ask if you are free to leave.

How long can a consensual encounter last in Texas? Well, since you are technically free to leave (even though you will feel pressured and threatened when an armed police officer starts asking you questions), they can last forever. That’s why it’s important to ask if you can go.

One more time what is a consensual encounter?

It’s pretty rare that a defendant gets revoked on probation within 30 days. If you do, then consider filing a motion for new trial. In the right case, it’s like a get out of jail free card, and the new trial motion will effectively start the probation over. You have to really screw up your community supervision to get revoked so fast. One thing to consider is whether you really want to be on probation, that’s something you can go over with your lawyer. It might be easier to just sit out the sentence, especially on a misdemeanor.

What’s the law on new trial motions in Texas probation cases?

The filing of an effective and timely motion for new trial, retroactively renders the judgment nonfinal. Lundgren v. State, 434 S.W.3d 600 (Tex.Crim.App. 2014). When a timely Motion for New Trial is filed, the terms of probation begin when the motion for new trial is overruled. Id. See also McConathy v. State, 544 S.W.2d 668 (Tex.Crim.App. 1976). In Lundgren v. State, the state moved to revoke defendant’s probation one week after the judgment for his initial DWI charge. Lundgren v. State, 434 S.W.3d 596 (Tex.Crim.App. 2014).   Defendant filed a motion for new trial on the first DWI offense, and the Court of Criminal Appeals of Texas ruled that, the motion for new trial rendered the judgment as nonfinal. Id. at 598. Therefore, defendant’s community supervision for his first DWI offense did not begin until the motion for new trial was overruled. Id. at 600.

In Texas you have a right to bail under the State Constitution. However, in recent years the Texas Constitution has been amended to allow no bonds to be set in certain cases. Texas has a Bill of Rights, and the Bail provision are under section 11 of Article 1. If you are trying to bond lowered, or have an issue with bail, the Constitution of Texas is something you should look at.

Sec. 11. BAIL. All prisoners shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident; but this provision shall not be so construed as to prevent bail after indictment found upon examination of the evidence, in such manner as may be prescribed by law

Sec. 11a. DENIAL OF BAIL AFTER MULTIPLE FELONIES. (a) Any person (1) accused of a felony less than capital in this State, who has been theretofore twice convicted of a felony, the second conviction being subsequent to the first, both in point of time of commission of the offense and conviction therefor, (2) accused of a felony less than capital in this State, committed while on bail for a prior felony for which he has been indicted, (3) accused of a felony less than capital in this State involving the use of a deadly weapon after being convicted of a prior felony, or (4) accused of a violent or sexual offense committed while under the supervision of a criminal justice agency of the State or a political subdivision of the State for a prior felony, after a hearing, and upon evidence substantially showing the guilt of the accused of the offense in (1) or (3) above, of the offense committed while on bail in (2) above, or of the offense in (4) above committed while under the supervision of a criminal justice agency of the State or a political subdivision of the State for a prior felony, may be denied bail pending trial, by a district judge in this State, if said order denying bail pending trial is issued within seven calendar days subsequent to the time of incarceration of the accused; provided, however, that if the accused is not accorded a trial upon the accusation under (1) or (3) above, the accusation and indictment used under (2) above, or the accusation or indictment used under (4) above within sixty (60) days from the time of his incarceration upon the accusation, the order denying bail shall be automatically set aside, unless a continuance is obtained upon the motion or request of the accused; provided, further, that the right of appeal to the Court of Criminal Appeals of this State is expressly accorded the accused for a review of any judgment or order made hereunder, and said appeal shall be given preference by the Court of Criminal Appeals.

Kaufman County is growing and in anticipation for reaching the 110,000 person mark in the next census, created a bail bond board. The board has approved the following companies to write bonds in Kaufman County. If you have a friend or loved one stuck in the Kaufman County jail, or the Forney jail, you need to call someone below for bail, and call us for criminal defense.

AAA Bail Bonds

972 932-1800

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 restitutionSee 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.

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.

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.

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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