Dallas Criminal Defense Lawyer Blog

In Texas a Defendant has the right to make a statement before a sentence is imposed. This common law right of allocution is now found in the Code of Criminal Procedure Section 42.07, which instructs the Judge to ask the Defendant “whether he has anything to say why the sentence should not be imposed against him.” When this happens, most Defendants don’t say anything. Their arguments have been made already by defense counsel, evidence has been submitted through a PSI or other witnesses, or there is a plea bargain and the Defendant knows what sentence to expect.

However, sometimes a Defendant is being sentenced without an agreement and might want one last chance to speak before the Judge pronounces sentence. If the Judge forgets to ask a Defendant if he has anything to say, and pronounces a sentence anyway, the law in Texas requires that a Defendant object or forever waive his right to allocution. Now this is not an uncommon approach. Texas appellate courts have been tilting the scales in favor of the State for a while now. We convict scores of innocent people in Texas for a reason, it’s easy to do so here. One way in which appellate courts bend over backwards to uphold convictions is by saying the Defendant “waived error”, and actually wanted the thing they are now objecting to, to happen.

For example, if you are in front the Judge and she is about to sentence you, and she forgets to ask you if you have anything to say, your lawyer has to object, and point out that this Judge, who has your life in her hands, has made a mistake, and to please let the Defendant speak before you decide if he goest to prison or not. That’s a risky move to make. Judges are people, and they don’t like being corrected or objected to.

Here’s an article by our immigration lawyer Elizabeth Alvarez.

Many times if a person is being detained by ICE, their first instinct is to simply pay the bond, but that may not always the best course action. There are many financial and legal factors that go into making this choice that you need to consider carefully before making a decision.  

For instance, in addition to paying your criminal attorney to secure the bail or bond you have to consider to what degree there is a likelihood that ICE will detain you, and whether you would have to pay another bond to be released from ICE custody.  If so, you need to consider where you might be likely to end up were you be detained by ICE, and if you cannot post both bonds (and pay for your attorney), which detention location is better for you and your family 

I’ve done a few hundred consultations in my career. I almost always ask about a potential client’s criminal history (sometimes for ticket case I don’t, or sometimes in other consults I forget, it happens). We also have intake forms that ask about your criminal history. Potential clients who have the most criminal history, are often reluctant to explain their entire criminal resume.

They are afraid that I won’t believe them if I know about their past. They want to avoid starting the conversation by telling me they’ve been arrested before, or been to prison before. There is also a weird belief that being arrested for a different category of offense somehow doesn’t count.

For example, I’ve had people arrested for a violent offense who had prior convictions for drugs not tell me because “those were drug cases, this is my first assault.” There is this weird reflex to rationalize not disclosing cases that are in the wrong category of offense. This is your first assault, great, but if you have prior cases for ANYTHING, let your lawyer know.

I’ve been getting a lot of calls on this issue lately. People who were in a car accident and left the scene and now don’t know what to do. Let me stop the post right here and offer some free legal advice. HIRE A LAWYER IMMEDIATELY! YOU WILL MAKE A BAD SITUATION WORSE IF YOU DON’T. SERIOUSLY.

Am I going to be arrested?

Depends. If you hurt someone or injured others it is almost certain the police will issue an arrest warrant as soon as they have evidence you were driving and fled the scene. For cases that are only property damage, it’s different and we have resolved those type of cases without an arrest before, but it’s not always possible. The police can easily issue a warrant and it’s not something we can litigate to stop if they do. So be prepared to get arrested and have some money ready for bail just in case. We can help you find a local bail bondsman to assist.

Prison sucks, and any prison sentence can feel like cruel and unusual punishment in Texas. Can a sentence be too long to be constitutional? Theoretically yes, the Constitution places limits on how long someone can be sentenced, but in practice, it’s an argument that our appellate courts routinely reject.

How can a prison sentence be unconstitutional?

The 8th amendment forbids cruel and unusual punishment. Over the years the Supreme Court has indicated that a sentence could be so long that it is disproportionate to the crime committed, and therefore unconstitutional. However, our Texas Court of Criminal Appeals (kind of a Supreme Court for criminal cases in Texas) is run by former prosecutors who don’t mind how long people rot in prison.

Good news for some marijuana defendants in Texas. It may be more difficult for the government to convict you now that hemp is legal. The issue is in the way the law now defines legal hemp products. Texas recently legalized hemp, and defined hemp as cannabis Sativa l. with a THC % of .3 or under. What’s wrong with that? Well, Texas defines illegal marijuana as cannabis sativa l. with a THC level of over .3%. So when the police find your plant material, or vape oil, or gummies, the only difference between being illegal or not is the % of THC in the product. This is awesome because the drug labs that the State uses to test marijuana don’t have the equipment currently to test for THC %. The State has millions of tax dollars to waste buying new drug lab equipment, so expect the market to supply some solution eventually. Texas Prosecutors are already aware of these issues and are brainstorming how to convict you anyway, at least with plant material cases.

Does this change in the law apply to those currently charged with possession of marijuana?

I’m not sure, that’s going to have to be litigated, but defense lawyers are going to argue it does and prosecutors our going to argue it doesn’t. The law that makes hemp legal in Texas is already in effect. So possession cases after June 14th will be affected. Those before will have some extra litigation on their hands if they want to use a hemp defense.