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November 16, 2017

Self-Defense, when is it reasonable?

What is self-defense?

Texas Penal Code section 9.31 says that a person is justified in using deadly force when and to the degree the person reasonably believes the deadly force is immediately necessary – to protect themselves from another’s use or attempted use of deadly force or to prevent another who is in immediately attempting aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

When is self-defense viable?

October 31, 2017

Expunctions, they can be reversed.

by Robert Guest

What is an expunction?

An expunction is available to a someone arrested for a crime, but never convicted, or to a person given deferred on a Class C misdemeanor. Expunctions are for arrests only, they serve as a way to have the arrest taken off of your record.

The process.

October 30, 2017

What is reasonable suspicion for a traffic stop in Texas?

by Robert Guest

What is reasonable suspicion for a traffic stop in Texas?

Reasonable suspicion in general.

The Texas case, Hamal v. State, explains that an officer has sufficient reasonable suspicion when he or she is aware of specific articulable facts, that when combined with rational inferences from those facts, would lead the officer to suspect that a person has committed, is committing, or will soon commit a crime.

July 7, 2017

Testimonial Statements and the Confrontation Clause

by Robert Guest

The 6^th and 14^th Amendments of the United State Constitution guarantee an accused party the right to “be confronted with the witnesses against him.” Meaning that if you are charged with a crime and proceed with trial, you have a right to cross-examine testimonial statements by the witness.

Crawford v. Washington 541 U.S. 36, 68 (2004) says that these statements are not admissible against the accused unless the person who made the statement is unavailable and the accused had a chance to cross-examine them.

What are testimonial statements?

June 26, 2017

New House Bill 3016 – Non disclosure of DWI’s

by Robert Guest

Good news in the world of DWI’s has emerged from the 85^th Texas Legislature. If certain criteria are met, now, it may be possible to file a petition for non-disclosure on DWI convictions. Texas House Bill 3016, Government Code 411.0731, defines the procedure and criteria. Section 411.0716(a) explains that this new act will apply to DWI’s committed before, on, or after September 1, 2017.

Does my DWI conviction qualify?

This new section will only apply to a person who has successfully completed a term of community supervision. This means that your community supervision was not revoked, you successfully served any jail time given and you paid all court costs, fines, and any other restitution imposed as part of the conviction.

May 19, 2017

Can an expert testify that a child is telling the truth?

by Robert Guest

Many cases involving child abuse have expert witnesses involved. Child abuse and sexual assault cases have medical experts, therapists, or counselors who are called to testify. However, Texas law limits the ability of experts to tell a judge or jury that a child is honest.

Texas law prohibits an expert to testify or make a direct comment as to whether the child’s statements are truthful. In other words, the expert cannot specifically say “yes, the child is telling the truth” or “the child is lying”. Direct comments about the truthfulness of the statement are not allowed.

However, the expert may testify to certain behaviors of the child that may lead the court to believe that the child has been coached or manipulated to tell a certain story about the abuse.

May 9, 2017

Does the State have to produce any photos to convict someone of improper photography?

by Robert Guest

You can be convicted of improper photography in Texas, without any photographs.

Everyone has a camera these days. Even crappy cell phones usually have an 8-megapixel HDR camera on board. Your Instagram feed is full of strange photographs, and some stuff you’d rather not see. But in Texas, some photographs are illegal.

What is improper photography in Texas?

May 8, 2017

Texas Penal Code Article 22.07: Terroristic Threats, what are they?

by Robert Guest

For some of us, when we hear of a person making terroristic threats we think of a person causing trouble for political or religious reasons. But, according to the Texas Penal Code, just the mere threat of violence to a person or a person’s property is enough and the purpose behind the threat is not considered.

You can be charged with a terroristic threat charge if you threaten violence to a person or their property and (1) cause any type of reaction from an officer, volunteer, or any other agency that deals with emergencies; (2) put ANY person in fear of immediate injury to their self (3) prevent the use or interrupt the use of a building, public place, employment, aircraft, automobile, or other public place (4) cause interruption with any public communication, transportation, public water, gas, or power supply or any other public service (5) put the public or a number of people in fear of bodily harm or (6) influence the conduct or activities of a branch or agency of the federal government, the state, or a political subdivision of the state.

Nowhere in the code is it defined that these threats must be made with any sort of political or religious views as the basis of the threat. So basically under section (2) of 22.07 the State could snag anyone with this charge if that person threatens serious, immediate violence to a person who believes that an injury is immediate. Which is similar to Penal Code 22.01 Assault, where a person threatens another with immediate injury to their body.

May 3, 2017

I plead guilty to a case and the prosecutor agreed to dismiss another charge, can I have the dismissed case expunged?

by Robert Guest

Many defendants face multiple cases out of a single arrest. For example, we see a lot of DWI cases where the defendant will also have marijuana possession or UCW (carrying a gun while DWI). Or a felony drug cases that also has a misdemeanor drug case out of the same arrest (e.g. meth and Xanax). It’s not unusual for the prosecutor to offer a plea bargain in which one case is dismissed and the defendant pleads guilty to another case. In the examples above we could expect an offer where the defendant pleads to the felony meth case, and a misdemeanor Xanax case is dismissed. That stuff happens all the time.

Most people expect that a dismissed case can be expunged. It makes sense right? You weren’t convicted, so it should be eligible to come off your record. But this is Texas so we are always looking for unique ways to screw defendants.

A recent Dallas Court of Appeals case, Texas Department of Public Safety v. J.A.M, held that a defendant can not expunge a case if they plead to ANY offense out of particular arrest. So if you have multiple cases arising from a single arrest, you can be put on probation for any of the offenses if you want to expunge the dismissed cases.

February 21, 2017

What happened to 3g offenses? What is 42A.054?

by Robert Guest

I hate when things change. Just when you think you understand the law in Texas, you find out that everything has changed. Well, in this case, they’ve changed, but they are still the same. Ever since I’ve been a lawyer aggravated or “3g” offenses were those that had limited probation availability. However, as of 1/1/17, the entire probation section of the code of criminal procedure has been replaced with……. section 42A!

That’s right, we have a brand new section that is basically a reboot of the old section. This was a cleanup job designed to make the cluster fuck of laws that was chapter 42 well, a little less clusterfucked. If I was starting out as a lawyer, or if I was a layperson who wanted to understand probation in Texas, I’d greatly appreciate the new streamlined 42A.

So what happened to 3g offenses? They still exist. But now they are section 42A.054 offenses. They even come with a title that explains what they are. Here’s the new section-