Author Archives: Eric Benavides
Record Sealing, Non-Disclosure Petition and Expunctions Differences
As an attorney who does a lot of work in this area, I have learned that many people are confused by the difference between Sealing a Record, a Petition for Non-Disclosure and Expunctions. People typically call and tell me they want to expunge their record. But there are different things that different people are eligible for.As an attorney who does a lot of work in this area, I have learned that many people are confused by the difference between Sealing a Record, a Petition for Non-Disclosure and Expunctions. People typically call and tell me they want to expunge their record. But there are different things that different people are eligible for.
Record Sealing
Record sealing is for juvenile crimes. In the state of Texas you can seal most criminal records. This ensures that nothing is visible once the individual starts applying for jobs in the future. The big difference with juvenile crimes as opposed to adult crimes is that you may be eligible to seal your juvenile record even if you were convicted of the crime. In adult court, if you are convicted there is no possibility of getting the crimes off of your record.
The only time a juvenile record will not be sealed is if the juvenile:
- Received a determinate sentence
- Is currently registered as a sex offender
- Was certified and tried as an adult
Some lawyers do not tell their clients that they must seal their juvenile records, and some people assume the case is automatically sealed, but that is not the case.
Non-Disclosures
Non-disclosures are for individuals who were placed on deferred adjudication and completed the deferred adjudication successfully. A non-disclosure will make your record hidden (non-disclosed) for the general public. However, governmental agencies and law enforcement will be able to see the record for the rest of your life. Non-disclosures are good protection from jobs/apartments/schools, etc that might hold a case against you even though it was dismissed.
There are some misdemeanor crimes that are eligible immediately for a non-disclosure, others require a 2 year waiting period. Felonies that are eligible have a 5 year waiting period from the day your deferred adjudication is terminated. For a personal consultation, please call our office.
You are NOT ELIGIBLE TO A NON-DISCLOSURE if you have been previously convicted of or placed on probation for any of the following:
- Sexual performance by a child
- Possession of production of child pornography
- Unlawful restraint, kidnapping, or aggravated kidnapping of anyone under the age of 17
- Attempt, conspiracy, or solicitation to commit any of these listed offenses
- Capital murder
- Murder
- Indecency with a child
- Sexual assault
- Aggravated sexual assault
- Prohibited sexual conduct (incest)
- Aggravated kidnapping
- Compelling prostitution
- Injury to a child, elderly individual, or disabled individual
- Abandoning or endangering a child
- Violation of protective order or magistrate’s order
- Stalking
- Burglary of a habitation with the intent to commit any of the above offenses
- Any other offense involving family violence
You also will not be eligible to get a non-disclosure if you were convicted of another crime after you finished your deferred adjudication.
Expunctions
Even though your case might have been dismissed, no billed, or if you were found not guilty the arrest record is still visible to the general public.
To combat this, the State of Texas allows you to destroy (expunge) your criminal record. If you have an adult arrest record, you can have it expunged if:
- You went to trial on your case and you were found NOT GUILTY
- Your case was dismissed by the State (not through deferred adjudication)
- You complete deferred adjudication probation for a CLASS “C” misdemeanor
- Another person was accidently arrested under your name
- You are victorious in an appeal in the Texas Court of Criminal Appeals
- You receive a pardon from the President of the USA or the Governor of Texas
Expunctions are complete destructions of the criminal record, to where no one should know anything ever happened to you unless they have a personal recollection of the situation. If you are confused on whether or not you are eligible just call our office and we can walk you through the options.
Aggravated Sexual Assault Case Dismissed!
BIG WIN this past week in a Criminal Case for the attorneys at Benavides & Serrano.BIG WIN this past week in a Criminal Case for the attorneys at Benavides & Serrano.
Client was charged with aggravated sexual assault of a Child. Client is a legal permanent resident and was in danger of being deported. Not to mention he was looking at up to 99 years in prison! After fighting the case for over a year, the state finally dismissed all charges against him. He is finally able to sleep peacefully at night, and just started a new job.
If you have sexual assault case or similar, please contact our attorneys today for a free consultation.
Law of Parties in Texas
As a criminal defense lawyer in Houston I see many types of cases. Some of the hardest types of charges for my clients to understand are charges where they claim they were not the ones responsible for the action, or they did not know it was going to be as bad as it turned out.
As a criminal defense lawyer in Houston I see many types of cases. Some of the hardest types of charges for my clients to understand are charges where they claim they were not the ones responsible for the action, or they did not know it was going to be as bad as it turned out.
For example, I had a client charged with aggravated robbery with a deadly weapon. My client decided with a few friends that they were going to fight with a kid and steal his shoes. When the person they wanted to fight showed resistance, one of his friends pulled out a gun and robbed him at gunpoint. My client did not understand why they would charge him with a deadly weapon, when he did not have the gun.
Another case I had was a burglary of a habitation. In this case my client was the getaway driver. Her friends broke into a house and stole items, while my client served as a lookout and as the driver. When they were caught, she did not understand why she was being arrested for burglary of a habitation since she never went into the house.
The answer for both lies in section 7.02 of the Texas Penal Code. Section 7.02 states:
§ 7.02. CRIMINAL RESPONSIBILITY FOR CONDUCT OF ANOTHER.
(a) A person is criminally responsible for an offense committed by the conduct of another if
- acting with the kind of culpability required for the offense, he causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense;
- acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; or
- having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense.
(b) If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.
So with this section that they often call the “law of parties”, a person can be charged with a crime if they are acting with the individuals who actually committed the crime. These matters can sometimes get very complicated, and if you have a similar situation it is very important that you get assistance from a criminal defense attorney in your area.
Waiting Periods on Misdemeanor Non-Disclosures
If you read my older blog entry on Non-Disclosures, you know that a non-disclosure is a type of sealing of a record for an adult who successfully completed Deferred Adjudication. On a deferred adjudication the case is dismissed upon completion, there is never a conviction, and the arrest record can be partially non-disclosed to the general public (but not the government or law enforcement). If you read my older blog entry on Non-Disclosures, you know that a non-disclosure is a type of sealing of a record for an adult who successfully completed Deferred Adjudication. On a deferred adjudication the case is dismissed upon completion, there is never a conviction, and the arrest record can be partially non-disclosed to the general public (but not the government or law enforcement). The reason you need a non-disclosure is because if someone does a background check on you they will be able to see that you pled guilty, were giving deferred adjudication, and your case was dismissed. The problem with that is that anyone who knows anything about the law is going to know that you pled guilty, and that the case was only dismissed because you did probation. This can be a problem when you are applying for jobs, schools, apartments, etc. So Non-Disclosures are very important for your record. The problem is the rules are confusing.
I get a lot of calls about Non-Disclosures and what the waiting periods are before you are eligible to proceed. On a felony case, if your case is eligible, you have to wait 5 years after you finish your deferred adjudication. You will be eligible after the 5 years as long as you have not been convicted of another crime before you file your petition for non-disclosure.
Misdemeanors are a little different. Some misdemeanors are eligible immediately, meaning you can try to get a non-disclosure the day after your deferred adjudication completion is official. But there are other cases that you are not eligible to file your petition until 2 years after the day that your case gets dismissed.
There are the cases the misdemeanor charges that carry a 2 year waiting period before you can get a non-disclosure:
- Abuse of Corpse
- Advertising for placement of child
- Aiding suicide
- Assault
- Bigamy
- Cruelty to Animals
- Deadly Conduct
- Destruction of Flag
- Discharge of Firearm
- Disorderly Conduct
- Disrupting meeting or procession
- Dog Fighting
- False Alarm or Report
- Harassment
- Harboring runaway child
- Hoax Bombs
- Indecent Exposure
- Interference with Emergency Telephone Call
- Leaving a Child in a Vehicle
- Making a Firearm Accessible to a Child
- Obstructing Highway or Other Passageway
- Possession, Manufacture, Transport, Repair, or Sale of Switchblade Knife or Knuckles
- Public Lewdness
- Riot
- Silent or Abusive Calls to 911 Service
- Terroristic Threat
- Unlawful Carrying of a Weapon
- Unlawful Possession of Firearm
- Unlawful restraint
- Unlawful transfer of certain weapons
- Violation of protective order preventing offense caused by bias or prejudice
So if you were charged with any of these crimes you are not allowed to apply for the non-disclosure for 2 years. If your crime is not listed then it is immediately eligible (unless it’s one of the types of crimes that is never eligible – see my past blog on non-disclosures for a list of those).
If after reading this you are still confused, please feel free to give me a call and I will give you a more personal consultation.
Understanding Alcohol Intoxication
Intoxication is defined the same in either a Driving While Intoxicated (DWI) or Public Intoxication (PI) case in Texas. I had a very interesting situation that came up recently. I had a client who had been arrested for DWI. He was leaving the bar late at night with some friends and while driving home late at night one of his friends got sick. The friend had a little too much to drink and needed to throw up. My client who was driving, pulled over on the highway to let his friend handle his business. Within a couple of minutes an officer pulled in behind them to see if they needed any help. When they smelled alcohol and saw some guy puking they decided to conduct a DWI investigation on my client.
They went through the normal standard field sobriety tests (Horizontal Gaze Nystagmus, One Leg Stand, Walk and Turn) and determined that my client was intoxicated. He was arrested for DWI and taken to the station. At the station they asked him to submit to a breath test to which my client agreed. He took the test and blew a .04, well below the legal limit in Texas.
Now if you have any common sense, this just doesn’t seem right. At the end of the day the definition of intoxication is the same for both DWI and PI. What happened next was interesting. Officers usually get people to take breath tests by saying, “If you blow under the legal limit you are free to go”. Well in this case I think the officers were either embarrassed or upset, so they decided to charge him with Public Intoxication.
Per the Texas Penal Code, Intoxicated means:
(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or
(B) having an alcohol concentration of 0.08 or more.
So you are intoxicated in Texas if you lose your physical faculties, lose your mental faculties, or if your alcohol concentration is .08 or more. My client was not intoxicated by law in Texas, but somehow the officers thought it was ok to charge him with a “small” misdemeanor because it wasn’t that “serious”.
Lucky the prosecutor understood the law and dismissed this case after the first hearing. It’s sad that my client had to waste time and money, but justice prevailed.