Category Archives:Cases

July 27, 2016 Cases
2

When to Turn Down a Dismissal

While a Dismissal Sounds Like a Win, There are Times When a Dismissal Isn’t Good Enough

Today in court my client and I turned down a dismissal.  I know, that sounds dumb.  Why on earth would we turn down a dismissal?  Well the reason is, sometimes even a dismissal can be unfair.

The problem with some agreements for dismissals is that defendants are required to “earn” a dismissal.  In other words, sometimes defense lawyers can make an agreement with the prosecutors where defendant will do “X” in exchange for a dismissal.

If a DA decided to outright dismiss a case with nothing in return, of course no one would ever turn it down.  That is ultimately the goal in a criminal case, to get the charges dismissed.  But sometimes things are worth fighting for.

When It Makes Sense to Turn Down a Dismissal

I have run into the situation I am facing with my client many times before.  Without going into specifics in this particular case, since it is pending, I can use an old case I had as an example of when the same thing happened.

I had a case a few years ago where my client was charged with Assault of a Family Member.  It was a ridiculous charge in my opinion, because when I looked at all of the evidence the complainant was the one who was assaulting my client.  In that kind of case you want to fight for a dismissal, because frankly it is a bunch of crap.

We fought the case for months, and eventually the district attorney knew the case was weak.  But instead of just dismissing the case, they asked my client to take a BIPP class and do 32 hours of community service in exchange for the dismissal.

BIPP: Domestic Violence Class

Now sometimes this is a great deal, but not for an innocent defendant who is tight on funds.  To better understand, the BIPP class is a domestic violence class which lasts 18 weeks and defendants are required to pay about $25 for every class.  That is $450 for the class.  If you were totally innocent would you think it is fair that you have to waste 18-30 hours of your life on a class, and pay $450 of your hard earned money (on top of the attorney and bond that you had to pay!)?  Of course you would not think it is fair.  So we rejected that deal to the “shock” of the DA.  We set it for trial (more wasted time), and of course it was dismissed on trial day.  It wasted a ton of my time too preparing for a trial, but it was worth it for my client.

That’s kind of the same boat I am in now.  It’s a totally different case, set of facts, prosecutor, courts, etc, but it is an innocent client being asked to pay for a dismissal.  We didn’t do it then, and we won’t do it now.

So yes, we rejected a dismissal today, and the fight goes on.

July 26, 2016 Cases
3

Pretrial Intervention Program for Retail Theft

The Retail Theft Pretrial Intervention Program has some requirements and several steps that our clients need to do

Today I helped a client enter the Retail Theft Pretrial Intervention Program here in Harris County.  I wanted to expand on this retail theft program in case anyone is interested in participating.  This program is only for individuals who are first time offenders who are caught shoplifting from a retailer.  You are NOT ELIGIBLE, if you are:

  1. Charged with Theft, and the property is valued at over $750
  2. Charged with Theft, and the property was not recovered
  3. Charged with Theft, and you owe the victim some sort of restitution
  4. Charged with “Theft by Employee”

Steps for Pretrial Intervention Program for Retail Theft

Step 1 is the initial court appearance.  During this time the chief prosecutor screens the defendant for eligibility.  The defense counsel is given a referral form and a sample agreement to go over with defendant.  At that point everyone reads and signs the referral form.  Once everyone is on the same page the attorney gets a reset date for 100 days from the court date (to allow defendant to complete the program).  After court the defendant is required to go directly to the Harris County Community Supervision and Corrections Department Central Assessment Unit at 49 San Jacinto on the 3rd floor to receive more instructions.

Step 2 is the Harris County Community Supervision and Corrections Department Intake.  As I previously mentioned, the defendant must appear for intake immediately after court on the same day they are referred.  The defendant reviews the agreement with HCCSCD staff and signs the agreement.  Defendant is given an invoice and instructions on submitting payment for the program.  The payment of $130 is also paid at 49 San Jacinto on the 3rd floor.  The defendant will have 2 weeks to submit proof of payment to the HCCSCD Retail Theft Intervention Program Coordinator.  If someone does not have the funds to pay, they can be assessed for indigence at this time.

Step 3 is the HCCSCD Agreement.  Defendant is placed on a 90 day program with the following conditions:

  1. Defendant is to complete an 8 hour cognitive skills class (in addition to the $130 fee)
  2. Defendant must not break the law again during this time

The defendant is signed up for the cognitive skills class upon submission of payment.  Defendant must sign in and attend the full 8 hours in order to receive credit for the cognitive skills class.

Step 4 is the good part: The dismissal!

The retail theft case will be dismissed off docket upon proof of successful completion of the program requirements at the expiration of the 90 days.

July 21, 2016 Cases
0

Juvenile Record Sealing Process

Juvenile Record Can Be Sealed, But It Isn’t Automatic

Today I was able to help a young lady seal her juvenile records.  I get calls all the time from young adults, or parents asking why something from years ago is popping up on a criminal background check.  The answer is, juvenile records are not automatically sealed.

There is a system in Texas that makes it harder for individuals to get someone’s juvenile criminal record, but the records are not sealed automatically, so it is possible to have them pop up (and it does happen often).  This particular client was about to start a professional school program, so record sealing was very important to help her get her career started.

Can My Juvenile Record Be Sealed?

Many people ask me if their record can be sealed.  The answer is no, you are not eligible to get your record sealed if:

You have received a determinate sentence (which is basically a sentence where is starts off in TYC with the possibility of moving to the adult prison TDCJ) adjudication for one of these types of cases:

  • Murder, Attempted Murder, Manslaughter
  • Sexual Assault
  • Aggravated Assault or Aggravated Robbery
  • Causing Injury to a Child, Elderly Person, or Disabled Person
  • Deadly Conduct with a Firearm
  • Big drug case (usually more than 200 grams)
  • Criminal Solicitation
  • Indecency with a Child
  • Arson
  • Conspiracy to commit any of the above 5
  • You have to register to the Texas Sex Offender Registration Program.
  • Your case was certified, and you were charged as an adult
  • You have engaged in “habitual felony conduct” (which is usually 3 cases over 3rd degree felony) for which you received a determinate sentence.

If your case is eligible to be sealed, you file your petition with the court where you were charged, and request a hearing date.  At the hearing date the judge will decide whether or not to grant the sealing.  In my cases I always contact the Assistant District Attorney in the case to ask if they are opposed or unopposed to my petition.  If they are unopposed it is usually very easy, and the Judge signs no questions asked.  But if it is opposed you must be prepared to give the reasons why an individual deserves to have their record sealed (both legally and in the interest of justice).

Juvenile Record Sealing: What Happens Next

Once the judge signs the order, I send certified court copies of the order to all of the agencies that have my clients records and they are given up to 61 days to comply.  Usually the agencies comply much quicker than 61 days, but they are given up to that amount of time.

Juvenile record sealing can be confusing, but it is very important to protect your record!

July 20, 2016 Cases
0

An Unlawful Carrying of a Weapon Case

The Complexity of Unlawful Carrying of a Weapon Cases and Concealed Weapons

I worked on an Unlawful Carrying of a Weapon case recently that was ultimately dismissed through a pre-trial diversion.  The unlawful carrying of a weapon law can be confusing.  In this particular case, my client’s boyfriend was pulled over, she was in the passenger seat.

After talking with the officer she told him she had a gun in her purse and gave it to him, she was not licensed to carry a gun.  She was arrested.  Had she been in her own vehicle, or driving this vehicle she would not have been arrested since the gun was concealed.

Details About the Complexity

Confused?  Here is the penal code section on unlawful carrying of a weapon:

Sec. 46.02.  UNLAWFUL CARRYING WEAPONS.  (a)  A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club if the person is not:

  1. On the person’s own premises or premises under the person’s control; or
  2. Inside of or directly en route to a motor vehicle or watercraft that is owned by the person or under the person’s control.
    1. A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun in a motor vehicle or watercraft that is owned by the person or under the person’s control at any time in which:
      1. the handgun is in plain view, unless the person is licensed to carry a handgun under Subchapter H, Chapter 411, Government Code, and the handgun is carried in a shoulder or belt holster; or
      2. the person is
        1. engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic or boating;
        2. prohibited by law from possessing a firearm; or
        3. a member of a criminal street gang, as defined by Section 71.01.

When You can Carry a Gun

So if we break this down, if you DO NOT have a license to open carry a gun, it is ok to have a concealed weapon if

  1. You are on your own premises or a premise under your control

OR

  1. You are in or walking to your car/boat that you own, or that is under your control

It is ILLEGAL if:

  1. The gun is in plain view (must be concealed)
  2. If you are complying legally as above BUT are in the process of committing a class B misdemeanor or higher. (For example, you are legally concealing the gun in your car you are driving while you have some marijuana in your pocket, or while you are driving drunk)

My client’s problem was that she was in a car that was not hers, and was not under her control.  Luckily we were still able to get a dismissal, but its definitely a lesson learned for her.

July 18, 2016 Cases
0

Domestic Violence Charges by the State of Texas

Domestic Violence and how Texas Can Handle the Charges

I get calls all the time, and I get questions by my clients about why they or their loved ones are being charged with domestic violence (assault – family member) if they told the police that they did not want to press charges.  Yes….the State of Texas can “pick up the charges”.

I have seen the same fact pattern over and over.  A couple gets into an argument and someone calls the cops.  When the police arrive, the person who called says, “he/she hit me”.  The officers do their investigation and then ask the complainant if they want to press domestic violence charges.  Many times they say no, but their loved one still gets charged with domestic violence. This confuses many people.  What happens is the officer typically gets on the phone, calls one of the Assistant District Attorneys who is working intake, they explain to the ADA what they saw, and what they learned, and the ADA makes the decision whether to accept charges or not.  So the decision of whether or not a person gets charged with domestic violence is ultimately up to the ADA.

This is hard to understand for a lot of people, and its easy to see why they are confused.  I mean why should a person be charged if the complainant doesn’t want them to be?

The States Point of View on Domestic Violence Charges

The State feels that these cases are unique in the sense that the personal ties between the individuals can impact their judgment.  They feel that many times individuals were assaulted, but don’t want their significant other to go to jail because they love them, or for many other reasons (fear, the fact that they make the money, etc).

You make think it’s impossible to prove a case without a complainant (and many times it is very tough), but the State can still use certain items (on a case by case basis) to try to prove their cases.  Some of these items are:

  • 911 calls
  • Witness Statements
  • Medical Records
  • EMS Records
  • Photographs of Injuries and Scene
  • Recorded Video of Scene, etc

The fact of the matter is, sometimes the evidence that a person gives to an officer, is actually what gets the defendant charged in the end. This is even if they don’t want to press domestic violence charges.

This is a semi-complex area of law when the complaining witness is not available or unwilling to testify. Still, the short answer to the question of whether the State can go forward with charges when the complainant does not want to press domestic violence charges is…Yes.