Articles Posted in Uncategorized

If you are trying to figure out good time credit for parole purposes it’s important to know about line classes and work time.

What is good time credit?

Let’s look at the government code.

Picking up where we left off on speedy trial rights in Texas, there is a 4 part balancing test, part 2 of that test is the reason for the delay.

What’s the law on Reason for Delay in Speedy Trial cases?

The State carries the burden of justifying its delay. See Cantu, 253 S.W.3d at 280. In

So you are a criminal defendant in Texas, and it’s been a few years since you were arrested, you remember hearing about a “right to speedy trial” and want to know if your case can be dismissed. Maybe, that depends on the trial judge. In Texas, we allow the State to appeal dismissed cases, which is weird, but whatever. Defendants can also appeal a denial of a speedy trial motion to dismiss. So you need to know how an appellate court will review a speedy trial claim.

What’s the law on Speedy Trials in Texas?

The Sixth Amendment to the U.S. Constitution guarantees the accused in a criminal prosecution the right to a speedy trial. See U.S. CONST. amend. VI. The right to a speedy trial attaches once a person is either arrested or charged. Cantu v. State, 253 S.W.3d 273, 281 (Tex. Crim. App. 2008). A speedy trial claim is analyzed on a case-by-case basis by weighing and balancing the following factors: (1) length of delay, (2) the reason for the delay, (3) the defendant’s assertion of his right, and (4) the prejudice inflicted on the defendant by the delay. Barker v. Wingo, 407 U.S. 514, 530 (1972). These “are related factors, which must be considered together along with any other relevant circumstances.” Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002) (citing Barker, 407 U.S. at 533). “No one factor possesses ‘talismanic qualities,’ thus courts must ‘engage in a difficult and sensitive balancing process’ in each individual case.” Id. (quoting Barker, 407 U.S. at 533).

When I’m getting a client ready for trial I ask them to write down any notes/questions they have during testimony. One of the most common things I see written down is that a witness is lying, or that a witness told someone else a different story. Witness 1 in a criminal case says that A happened. A week before trial Witness 1 told Person 2 that A didn’t happen, that instead B happened, how can you get that prior inconsistent statement (to Person 2 that B happened) into evidence?

Let’s look at Texas Rule of Evidence 613.

To be admissible under this rule, a prior statement must be inconsistent with the one given at trial. Madry, 200 S.W.3d at 769 (citing Lopez v. State, 86 S.W.3d 228, 230 (Tex. Crim. App. 2002)). If a party fails to establish the required predicate, the trial court should sustain an objection to extrinsic proof of the prior inconsistent statement. Id. (citing Ferguson v. State, 97 S.W.3d 293, 296 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d)).

When you make the mistake of talking to the police, or a detective, anyone from law enforcement, you take the risk that the statements you make will be used against you in court. Unless you are in custody, or subject to custodial interrogation, the may not have to Mirandize you or warn you about your right to remain silent. If you just start taking, then what you say is fair game in court. It’s why you should never talk to the police or a detective, and instead hire a lawyer to talk for you.

What’s the law in Texas on using a defendant’s statements against him/her?

A defendant’s statement may be admitted into evidence against him if it appears that he made the statement freely and voluntarily, without compulsion or persuasion. Tex. Code Crim. Proc. art. 38.21. Article 38.22 of the code, entitled “When statement may be used,” establishes the procedural safeguards for securing the privilege against self-incrimination. See Joseph v. State, 309 S.W.3d 20, 23 (Tex. Crim. App. 2010). No oral statement of an accused made as a result of a custodial interrogation may be admitted against the accused in a criminal proceeding unless (1) the statement was recorded and (2) before the statement but during the recording, the accused was warned of his rights and knowingly, intelligently, and voluntarily waived those rights. See Miranda, 384 U.S. at 444–10

If you are going to appeal a conviction on speedy trial ground, you need to know the law in Texas regarding speedy trials. Texas courts employ a balancing-test, which usually ends up balancing away your right to a speedy trial.

What’s the law on speedy trials in Texas? 

“The Sixth Amendment guarantees a defendant in a criminal prosecution the right to a speedy trial.” Hopper v. State, 520 S.W.3d 915, 923 (Tex. Crim. App. 2017) (citing U.S. CONST. amend. VI); see Barker v. Wingo, 407 U.S. 514, 515 (1972). The right to a speedy trial cannot be quantified in days or months. Barker, 407 U.S. at 523; see State v. Davis, 549 S.W.3d 688, 697 (Tex. App.—Austin 2017, no pet.). Thus, Texas courts “analyze federal constitutional speedy trial claims ‘on an ad hoc basis’ by weighing and then balancing the four Barker v. Wingo factors.” Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008).

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?