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 In Texas,  a person’s  previous criminal convictions may come back to haunt the present.  If you are facing a criminal charge in Texas, you must carefully consider the number and type of any previous criminal convictions.  In some situations, a previous conviction or convictions may be used to “enhance” or raise the punishment level in the charge you are now facing.

Your previous convictions may have no impact, a minor impact or in some cases a major impact with lengthy mandatory minimum terms of imprisonment.  So, how does the law work?

1st degree felony charges:  If you face a first degree felony, one prior non state jail felony conviction raises your statutory range from 5-99 or life to 15-99 years or life.  Two prior sequential non state jail felony conviction raise the minimum punishment to an eye popping 25 years.

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We are often asked questions about  conditions that people may be asked to complete if they are placed on community supervision.    Below are listed some of the most common, with details provided.  Each case is unique and conditions that may be appropriate in one case are completely inappropriate in another.

SENTENCE RECOMMENDATION AND OTHER PROGRAMS

DWI Education:

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Most people have a general understanding that they have a Constitutional right to a “speedy trial.”  What does that really mean, and how can it be utilized to help someone charged with a criminal case? Both the U.S. and Texas constitutions provide a speedy trial right.  Meaning that the Government, whether that be the State of Texas or the Federal Government, must afford you a trial within a certain period of time or your right to a speedy trial has been violated.  If your constitutional right to a speedy trial has been violated, the law requires that the case against you be dismissed.

As you see, the violation of your right to a speedy trial is a serious matter that my lead to the dismissal of charges against you.  When the Court is considering whether your right to a speedy trial has been violated, the Court considers 1) the length of the delay, 2) the reason of the delay 3) the assertion of the right to speedy trial and 4) the “prejudice” that you may have suffered as a result of the delay.  The four factors I list all must be considered.

Courts have found delay to be “presumptively prejudicial” as it approaches one year.   If your case has been pending for a year or more, that level of delay could be considered prejudicial to your speedy trial right.  The second factor is the reason for the delay.   If the reason for the delay is that the state was not diligent, that weighs in your favor.  If the reason for the delay is that you took steps to delay resolution of the case, that weighs against you.  The third factor, ” assertion of the right” means that you must actively make the court aware of the delay and demand  speedy trial.  The fourth factor deals with the prejudice you may have suffered.  “Prejudice” can take many forms, even sometimes just  anxiety and concern on the part of the accused.  Prejudice does not necessarily require that you suffer some sort of impairment to your  defense.  Though prejudice may involve some apparent impairment of the defense, the law is clear that prejudice may involve only anxiety and concern, or expense or impairment of employment prospects.

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So called “mandatory minimum” sentences for numerous Federal crimes were established a generation ago by the United States Congress. From a policy and financial standpoint, many people have come to the conclusion that the societal benefits are now substantially outweighed by the human costs and the costs purely in terms of dollars. This point of view is shared by many (though certainly not all) in Congress across all political stripes. This topic is starting to generate bipartisan Congressional support among some Senators and Representative of both parties. In fact, legislation was proposed in the Senate known as the Sentencing Reform and Corrections Act of 2015. Among other items, this proposed law would reduce and/or eliminate mandatory minimum sentences and expand the “safety valve” eligibility. The bill has not been passed, though it may move to the Senate floor for consideration this year.

What is interesting to me about the bill is that it is sponsored by such a politically diverse group of Senators. The bill has found support form a large number of former federal prosecutors and senior Government officials including two former FBI Directors and a U.S. Attorney General.

The proposed changes to the mandatory minimum are fully supported by the Charles Colson Task Force on Federal Corrections. The Colson task force describes itself as a:

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Texas Penal Code 33.07  potentially criminalizes speech that is protected under the First Amendment.  Furthermore, it is overbroad.  The statute is so sweeping it would appear on its face to potentially criminalize satirical websites, Twitter or Facebook accounts aimed at politicians or other public figures. 33.07 was adopted in 2011 and higher courts have not yet ruled upon its constitutionality.  The Fourteenth and Fifth Courts of Appeals have avoided addressing the First Amendment claim on jurisdictional or other procedural grounds.

The Statute

ONLINE IMPERSONATION. (a) A person commits an offense if the person, without obtaining the other person’s consent and with the intent to harm, defraud, intimidate, or threaten any person, uses the name or persona of another person to:

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In 2014, the United States Sentencing Commission approved an Amendment to the United States Sentencing Guidelines (The Guidelines).  The Guidelines are the mechanism by which people are ordinarily sentenced in Federal criminal cases.  The Amendment lowered the so called Base Offense Level for many types of drugs by two points and it became effective on November 1, 2014.  The United States Sentencing Commission promulgated a policy statement making the reduction retroactive. The fact that the amendment is retroactive allows for those already sentenced to in a federal drug case come back to the Court and request a sentence reduction.

What does this mean?  It means that  many individuals sentenced in federal drug conspiracy cases prior to November 2014 received a lengthier Guidelines sentence than they would receive now.  This is due to the two point base offense level reduction authorized by the Sentencing Commission and approved by Congress.  The law allows for people sentenced prior to the November 2014 amendments to petition the U.S. District Court to reduce their existing sentence based on the changed base offense level.  The two point reduction may sound almost insignificant, but a two point reduction can results in a sentence lowered by many months or even years.

Do I qualify?  Does a family member qualify?

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The United States Court of Appeals for the Fifth Circuit recently issued an opinion that may significantly impact the way that Federal drug prosecutions are carried out in Texas.  On October 15, 2015 the Court decided United States v. Haines, No. 13-31287, 2015 WL 6080523. The Haines Court held that the Sixth Amendment to the U.S. Constitution requires that a  jury make a defendant specific finding, beyond a reasonable doubt,  of the drug quantity to each individual defendant to establish the  statutory minimum sentence.

Under the law as it existed prior to Haines, the only question for the jury to decide concerning drug quantity was the amount involved in the overall scope of the conspiracy.  The question of the amount applicable as to each individual defendant was a sentencing question for the Court on a lower standard of proof.  In the post Haines world, if the Government seeks to convict someone of  federal conspiracy to possess with the intent to distribute drugs in an amount that carries enhanced statutory minimum sentences, the Government must prove that the individual person involved is personally responsible for an amount of drugs that triggers the statutory enhancement.  For example, under 21 United States Code section 841(b)(1)(A), a conspiracy involving 5 kilograms or more of  a cocaine mixture subjects a person to a mandatory statutory minimum of ten years imprisonment.

Prior to Haines, to subject someone to that mandatory minimum sentence, all the Government would need to prove is that they were guilty of a conspiracy to possess with the intent to distribute, and the the overall scope of the conspiracy involved 5 kilograms or more.  Now, to subject someone to that mandatory minimum, they must proved not only guilt as the the conspiracy, but also that the individual person is personally responsible for an amount sufficient to trigger the enhanced minimum penalty.

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The state’s highest criminal court recently held a portion of  the Texas “Improper Photography” statute unconstitutional.  The Court struck down the section of that law that prohibited visually recording or taking a photograph of another without the subject’s consent, and with the intent to arouse or gratify the sexual desire of any person.

On September 17, 2014 the Texas Court of Criminal Appeals announced its decision in the case of Ex Parte Ronald Thompson.  In Thompson,  The Court held by an 8-1 majority that the taking of photographs and visual recordings of another without their consent is expressive conduct implicating the First Amendment guarantee of free speech, and therefore beyond the authority of the Government to regulate.  This opinion specifically invalidates section 21.15(b)(1) of the Texas Penal Code.  The First Amendment protections serve to invalidate the law even though, the Court said, the act of taking a photograph or visually recording another without consent was only criminalized under 21.15(b)(1) where the actor’s intent in making the recording or taking the photograph was done so with the intent to arouse or gratify the sexual desire of any person.   As stated by the Court in this case:

  banning otherwise protected expression on the basis that it produces

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The U.S. Court of Appeals for the Fifth Circuit ruled in July that the police do not need a warrant to access mobile phone subscribers cell phone tower data. The Fifth Circuit, which has the final word on matters of Federal law in Texas, held that warrantless access to such information by police is not a violation of the Fourth Amendment’s prohibition against unreasonable search and seizure.

Instead, according the the Fifth Circuit, the information is merely a business record created and maintained by the private cell companies. Further, the Government is not involved in the creation or storage or the accumulated data, and for a variety of reasons, the Court held that an individual has no expectation of privacy in the data.

What does this mean? As a practical matter, the phone in your pocket or purse is a de facto tracking device. If you use a cell phone you may be tracked to a relatively small area by use of the cell phone tower data. This data is now accessible without a warrant.

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In the practice of law, I am asked questions on Expunctions and Non Disclosures on an almost daily basis. Many people are confused by the two. An Expunction Order and an Order of Non Disclosure are two very different legal remedies, with different eligibility requirements.

Though this article cannot be a comprehensive legal guide, I want to explain the basic differences between Expunctions and Non Disclsoure.