Dallas Criminal Defense Lawyer Blog

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.

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.