Articles Posted in criminal law

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On June 15, 2017 the Governor signed a bill into law that will significantly change eligibility for “Orders of Non Disclosure,” to allow people who have been convicted of Driving While Intoxicated to  obtain such an Order.  An “Order of Non Disclosure” is a Court Order to any agency in possession of your criminal history record information to seal the record and not disclose it to third parties.  In other words, an Order of Non Disclosure allows one to shield the fact of their case from public view and scrutiny.  An Order of Non Disclosure prevents the general public from viewing your criminal history.  This is helpful in a number of ways, for example an Order of Non Disclosure would prevent prospective employers from viewing your record.  This would also apply to apartment complexes that are considering renting you an apartment, etc.   The are exceptions to the Non Disclosure order in terms of who may access the record, but it is a fantastic tool to prevent the general public from ever knowing that you have a previous criminal case.

Until now, people convicted of Driving While Intoxicated in Collin County, Texas (or anywhere in Texas for that matter) were prohibited by law from obtaining a Non Disclosure Order.  That is about to change.    Effective September 1, 2017 people convicted of Driving While Intoxicated will be able to obtain an Order of Non Disclosure even if  convicted of DWI.  The following conditions must be met in order to qualify.

  • The Driving While Intoxicated Conviction you seek to Nondisclose must be a first offense.
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This week the United States Supreme Court delivered a significant ruling on free speech and the First Amendment.  In an 8-0 ruling ,the Court held that a North Carolina law preventing registered sex offenders from accessing the internet, for the purpose of engaging with social media platforms such as Facebook and Twitter impermissibly restricted free speech in violation of the first amendment.   The case,  known as Packingham v. North Carolina  came about when Mr. Packingham, a registered sex offender, logged on to Facebook and wrote a post expressing gratitude for the dismissal of a traffic citation.

For this he was indicted under the North Carolina law which makes it a felony for a registered sex offender “to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages.”  Justice Kennedy wrote the opinion for the Court and he stressed the importance of social media in present day society as the place where we now discuss religion and politics, search for employment, chat with friends and even scheduled events.  Referring to social media as the “modern public square”  the Court held that the North Carolina law was not consistent with the Constitutional guarantee of free speech.

 

How might this impact Texas?  While Texas  criminal statutes do not prohibit a registered sex offender from accessing the internet, state parole laws  most certainly do and the prohibitions are fairly stringent.  In addition, a no internet access condition is sometimes imposed by agreement or by the Court in situations where a registered sex offender is being placed on community supervision.    Though the Texas laws were not directly at issue in Packingham, the Court’s robust interpretation of free speech in this context does call into question the continuing validity of broad laws that prohibit registered sex offenders from generally accessing social media.

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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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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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A conviction for even misdemeanor possession of marijuana in Texas carries with it several consequences of which you may be unaware.  The hidden consequences will be found nowhere in a plea agreement or judgment of conviction, but may nevertheless affect your life negatively.

1.  Federal Student Loan Aid

  Congress established law, codified at 20 U.S.C. section 1091 that prohibits students convicted of any offense under any Federal or State law involving the possession or sale of a controlled substance, from receiving any grant, loan, or work assistance for: