Dallas Criminal Defense Lawyer Blog

November 23, 2021

Dallas Appellate Court Finds the Texas Stalking Statute Unconstitutional

Recently, the Court of Appeals for the Fifth District of Texas at Dallas issued an important decision holding the state’s stalking statute unconstitutional. While lawmakers are responsible for writing and passing laws, courts must interpret the laws as they are written. However, courts are also the final arbiter in determining whether a law is constitutional. While most laws pass constitutional muster, some do not, as evidenced by the court’s recent decision.

The Facts of the Case

The defendant in the case was arrested and charged with felony stalking for conduct taking place between January 1, 2007, and April 24, 2018. More specifically, the complaint alleged that the defendant engaged in conduct that caused the complaining witness “to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended” and “would cause a reasonable person to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended.” Evidently, the defendant posted comments on social media and made other public statements that the complaining witness considered threatening.

At the time, the Texas stalking statute made it a crime to commit more than one act of “electronic-communications harassment” under § 42.07. That statute provides that a person repeatedly sends “electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.” Thus, the stalking statute directly references the harassment statute, making it a stalking offense to engage in a continued course of harassment.

November 10, 2021

Texas Court Rejects Defendant’s Motion to Suppress Incriminating Evidence

by Robert Guest

In a recent opinion from a Texas court involving a DWI, the defendant’s request for incriminating evidence to be suppressed was denied. The defendant was found guilty of driving while intoxicated and appealed by arguing that the court improperly admitted his blood sample as evidence at trial. The court disagreed, ultimately denying the defendant’s appeal.

The Facts of the Case

According to the opinion, an officer in Texas stopped the defendant after observing his vehicle weaving from one lane to the other. The officer also saw that the defendant’s middle brake light was out and was concerned about the vehicle’s defective equipment. During his testimony, the officer explained that he originally looked for the defendant’s car because a bartender had called the police station saying she was concerned that the defendant might be heavily drinking and driving after having departed her establishment.

After stopping the defendant’s vehicle, the officer noticed the smell of alcohol, slurred speech, bloodshot eyes, and that the defendant was sleepy and swaying. While the defendant admitted to drinking alcohol, he refused to submit to a blood test. Based on the officer’s statements, however, a judge found that there was probable cause for a search warrant, and decided that the officer was legally allowed to take a sample of the defendant’s blood regardless of whether or not the defendant was willing to give it. The defendant’s blood sample was thus obtained and eight days later, was delivered to the Texas Department of Public Safety. An analysis of the sample showed that the defendant’s blood-alcohol level had been .170 grams of alcohol per 100 milliliters of blood. He was convicted for driving while intoxicated.

October 24, 2021

What is Delta 8 and Is It Legal in Texas?

by Robert Guest

While Texas has taken some small steps in light of the national shift towards the decriminalization and legalization of marijuana, the drug is largely still illegal except for those with a valid prescription. The continued prohibition on marijuana possession—even in small amounts—has led many to seek out legal alternatives to marijuana. However, as lawmakers catch on to these new substances, they quickly respond by passing new laws and using existing laws to prosecute these look-alike drugs.

What Is Delta 8?

Delta 8, or Delta-8 tetrahydrocannabinol, is one of about 100 cannabinoids produced naturally by the cannabis plant. While Delta 8 is a naturally occurring substance, cannabis plants produce only a minimal amount of Delta 8. Delta 8 provides a similar “high” to smoking or ingesting marijuana. However, when someone consumes marijuana in its traditional form, it is Delta 9 THC that creates the intoxicating effect. However, taking Delta 8 will cause the user to test positive on a drug test.

Because marijuana plants produce so little Delta 8, most Delta 8 products are created using hemp-derived cannabidiol (CBD). Currently, at least for now, Delta 8 products are available in smoke shops and CBD stores across Texas for customers over the age of 21. However, the legality of Delta has recently been called into question.

October 15, 2021

Texas Court Denies Defendant’s Request for Reconsideration in Sexual Assault Case

by Robert Guest

In a recent opinion from a Texas court involving sexual assault, the defendant’s request for a new verdict was denied. The defendant was found guilty of aggravated sexual assault of a child under the age of fourteen. At trial, the plaintiff, a child who was ten years old at the time of the assault, testified about the incident. The trial court found the defendant guilty, and on appeal, he countered that the plaintiff’s testimony was insufficient to prove his guilt. The court disagreed and affirmed his guilty verdict.

Facts of the Case

According to the opinion, the plaintiff is a minor who lived in a two-story apartment with her brother, her mother, and her mother’s boyfriend. In the spring of 2017, her mother’s boyfriend invited his sister and her boyfriend, the defendant, to move into the apartment with them. There were then six people living in the apartment – the kids, their mother, and her boyfriend living upstairs, plus the boyfriend’s sister and the defendant living downstairs.

One evening, when the plaintiff was ten years old, she went downstairs to put a cup away in the kitchen. The defendant suddenly approached her as she was about to leave the kitchen. He dragged her to the floor, pulled her shorts down, and began touching her leg and chest. The defendant penetrated her anus with his penis, assaulting her until the plaintiff’s brother came downstairs. The plaintiff quickly put her clothes back on and at first, no one found out about the incident. It was not until five months later that the defendant reported to her aunt what had happened. An investigation ensued, and the defendant was charged with aggravated sexual assault of a child under the age of fourteen.

September 30, 2021

Texas Court Rejects Defendant’s Claim That He Did Not Prevent Girlfriend from Appearing in Court

by Robert Guest

In a recent opinion from a Texas court involving charges of domestic violence, the defendant’s request for a new verdict was denied. The defendant was found guilty of the second-degree felony offense of family violence assault by impeding the normal breathing of his girlfriend, as well as the third-degree felony offense of family violence. At trial, the prosecution argued that the defendant kept his girlfriend from being able to appear and testify in court. On appeal, the defendant said that this information was false and that he did not keep his girlfriend from coming to trial. The court disagreed and affirmed the guilty verdict.

The Facts of the Case

According to the opinion, police officers went to the defendant’s home after a neighbor called 911 to report domestic violence. Upon arrival, the officers knocked on the defendant’s door; the defendant, who was sweeping up glass from the living room floor, said that he and his girlfriend were “just getting into it.” The defendant’s girlfriend, on the other hand, reported to the officers that she and her boyfriend had argued and he had assaulted her. According to the defendant’s girlfriend, the defendant had punched her in the stomach and struck her with a broom ten times on the shoulders. When she ran outside, the defendant hit her in the head and pulled her into the house by her hair. At the end of the incident, she had red marks on her throat, bruising on her left arm, and a broken blood vessel in her eye.

Leading up to trial, investigators repeatedly tried to serve the defendant’s girlfriend with papers saying she had to appear in court. When they tried to deliver the papers, the defendant claimed that he and his girlfriend were no longer a couple and that he could not do anything to help the investigators locate her. Later, the investigators learned that the defendant and his girlfriend were still, in fact, together, despite what the defendant had claimed when the investigators asked for his help.

September 16, 2021

Texas Supreme Court Reverses Dismissal of Drug Charges

by Robert Guest

The Fourth and Fourteenth Amendments to the U.S. Constitution protect defendants from unreasonable searches and seizures of themselves, their homes, and their property. Evidence gathered in violation of the Fourth Amendment cannot be used against a defendant at trial. Thus, defendants who can prove that the evidence used against them was collected in violation of the Fourth Amendment may be entitled to the dismissal of the charges against them.

The Texas Court of Appeals recently heard an appeal by the State of Texas that challenged the suppression of evidence obtained against a defendant who had been accused of possession of drugs. The defendant in the recently decided case was driving a vehicle when he was recognized by a law enforcement officer as a known criminal offender. According to the facts discussed in the appellate opinion, the officer began to follow the defendant and witnessed him commit a traffic violation as he pulled into a gas station. The officer pulled behind the defendant and signaled him to stop, at which point the defendant exited his vehicle and behaved suspiciously. The officer engaged with the defendant and notified him that he was stopped for a minor traffic violation. The officer asked the defendant for consent to search his person and vehicle, which the defendant initially gave.

After another officer arrived on the scene, the defendant revoked the consent to search his vehicle and made statements suggesting that the officers were going to get a canine unit to search his car. As a result of the defendant’s statements, the officers called a canine unit, which took 38 minutes to arrive. The canine unit alerted the officers to the presence of marijuana in the car, which was ultimately found after a search was performed. As a result of the drugs being found, the defendant was charged with possession of a controlled substance.

August 24, 2021

The Common Types of Texas Sex Offenses

by Robert Guest

Sex offenses are some of the most serious charges anyone can face in Texas. Not only does a conviction for a sex crime often result in a lengthy prison sentence, but it can carry other life-changing consequences. For example, if you are convicted of a sex crime you will almost certainly be required to register as a sex offender, possibly for the rest of your life. You will also be limited in where you can live and work.

Not all sex offenses are created equal, however, and some crimes that are considered sex offenses (and require sex offender registration) may come as a surprise. The following are a few of the most common Texas sex crimes:

Possession or distribution of child pornography;
Public lewdness;
Indecent exposure;
Maintaining an improper teacher/student relationship;
Voyeurism;
Sexual assault (rape);
Prostitution; and
Obscenity.

Notably, most sex offenses do not require someone to actually perform a sex act; it is a crime to engage in an act in furtherance of the commission of a sex crime. For example, leaving the house to meet up with a minor you met in an online chatroom for the purposes of engaging in any type of sexual relationship can result in criminal prosecution. In most cases, the crime is punishable to the same extent as if you carried out the sex act.

August 10, 2021

The Texas Castle Doctrine: When You Can Lawfully “Stand Your Ground”

by Robert Guest

Self-defense is one of the oldest and most sacred defenses in all of criminal law. While self-defense applies in a variety of situations, it is also one of the most misunderstood defenses. One particular area of self-defense that is especially important to understand is the “Castle Doctrine.”

The Castle Doctrine is a very old legal concept that is based on the idea that a person’s home is their castle, and they should be able to defend against intruders without fear of violating the law themselves. It is also referred to as the Stand Your Ground law. Texas has a very broad Castle Doctrine that provides ample protection to those defending their homes.

Essentially, the Castle Doctrine makes legal conduct that would otherwise be considered illegal, provided the elements of the doctrine are met. Specifically, the Castle Doctrine allows you to use force you reasonably believe to be necessary to stop another person from trespassing on your property or, in some cases, taking your property. The most protection is afforded to those who are in their home at the time; however, the Castle Doctrine also applies to vehicles.

April 27, 2021

Burglary of a Habitation in Texas- Does the garage count?

by Robert Guest

What is burglary of a habitation in Texas?

Burglary of a habitation is a 2nd-degree (2-20 TDC) felony in Texas. The law forbids entering a “habitation” without permission from the owner and then attempting or committing theft. See TEX. PENAL CODE § 30.02(a).

What is a habitation?

March 28, 2021

Bond Pending Appeal In Texas

by Robert Guest

Let’s say you have a trial and lose. The judge or jury sentences you to 5 years in prison, but your lawyer is going to file an appeal. Can you get released on bond while the appeal is pending?

BOND AFTER CONVICTION IN TEXAS

If you’ve been convicted in a case and sentenced to prison time it is still possible to be released on bond pending the outcome of an appeal. Texas Code of Criminal Procedure Article 44.04(b) allows for bond in all cases in which the defendant is sentenced to less than 10 years and the offense is not listed under 42A (we used to call these 3G offenses).