Articles Posted in Criminal Defense

Recently, following the eighteen year anniversary of 9/11, the United States Department of Justice Office of Public Affairs issued a press release regarding the sentencing of a resident of North Texas to 240 months’ imprisonment in a federal penitentiary for conspiring to provide support to a terrorist organization overseas. The defendant’s arrest and conviction demonstrate the FBI’s continued efforts to combat terrorism domestically and abroad. If you are a Texas resident charged with conspiracy or any other crime it is in your best interest to meet with a skillful Texas criminal defense attorney to discuss your case and what defenses you may be able to set forth.

The Investigation and the Defendant’s Arrest

Reportedly, the defendant, who is 18 years old, was arrested and charged with conspiring to prove material support to LeT, a foreign terrorist organization based out of Pakistan, following an extensive investigation by the FBI. The defendant pleaded guilty as charged. Specifically, he admitted he communicated with his co-conspirator online, encouraging the co-conspirator to join  LeT and providing him with contact information of a facilitator who could help the individual travel to Pakistan to join LeT. The defendant then contacted the facilitator, who was an undercover FBI agent, to advise that he would kill the co-conspirator if he was a spy. The defendant also stated that he would recruit additional fighters for LeT, and made arrangements with the facilitator to go to Pakistan and join LeT.

The Defendant’s Sentencing

It is alleged that during the defendant’s sentencing hearing, the FBI presented evidence that the defendant’s recent acts were consistent with a pattern of ongoing behavior. For example, the defendant repeatedly posted online statements in support of violent extremism. He also made several posts threatening to harm people who opposed his extreme beliefs and searched the internet for methods of carrying out such attacks.

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When a person is accused of a crime, he or she has the constitutional right to confront any witnesses relied upon by the prosecution. If the prosecution is permitted to rely upon testimony from witnesses the defendant has not had a chance to cross-examine, it may constitute a violation of the defendant’s rights and any conviction based on that testimony may be unjust. In a recent case decided by the United States Court of Appeals for the Fifth Circuit, the court ruled that a defendant’s right to confront witnesses was violated by testimony from a police officer regarding information about a drug transaction involving the defendant that was provided by a confidential informant. If you are charged with drug trafficking or any other crime it is critical to retain a seasoned Texas drug crime defense attorney to assist you in presenting a vigilant defense.

Facts of the Case and Procedural Background

Reportedly, the defendant was arrested following an investigation regarding methamphetamine trafficking. Specifically, the police received a confidential tip that a drug transaction was going to take place in a parking lot. A surveillance team monitored the lot and observed the defendant pull up next to another person in a different vehicle, after which the two vehicles drove off together. An officer observed the drivers of the two vehicles meeting briefly, then driving off separately. The police began following the defendant, and after he committed a traffic violation, attempted to stop him.

It is alleged that the defendant sped up and drove away, temporarily evading arrest. The police searched the area and found a gun and a bag of methamphetamines on the side of the road. The defendant was charged with possession of methamphetamines with the intent to distribute. During the trial, the arresting officer testified that he did not actually see a drug deal happen between the defendant and the other driver. The officer then stated, however, that after the alleged drug transaction he called his confidential source, who confirmed that the transaction occurred. The defendant was convicted. He appealed, arguing in part that the officer’s testimony regarding his confidential source violated his rights pursuant to the Confrontation Clause.

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Sex crimes are often hard to prove, as they largely rely on circumstantial evidence regarding whether the defendant had consent. Many statutes defining sex crimes include lack of consent as an element of the crime the State must prove to obtain a conviction, but do not require the defendant to set forth any proof. Recently, the American Bar Association weighed in on the issue of whether the criminal statutes should be overhauled to impose a burden on the defendant to prove affirmative consent. If you are a resident of Texas charged with a sex crime it is crucial to retain an assertive Texas sex crime defense attorney to help you protect your rights.

The Proposed Resolution

The American Bar Association (ABA), is not a governing body but is a voluntary association that sets academic standards for law schools and adopts policies on legislative issues. Recently, the ABA was presented with a controversial issue via Resolution 114, which originally recommended that criminal codes be modified to include “affirmative consent” as an element of sexual offenses. In other words, the burden of proof would essentially shift from the State, who is required to prove each element of a crime beyond a reasonable doubt, to the defendant, who presently does not have a burden of proof in criminal trials. Requiring proof of affirmative consent means that the defendant must prove that he or she obtained consent from his or her partner before and during any sexual activity. Additionally, any change or advances in the activity may require renewed consent.

Prior to the vote, the language of the resolution was modified in part, to change the word assent, which was deemed unclear, to consent, and to include a phrase indicating that the defendant was still presumed innocent and the burden of proof remained with the State. While the modifications would mirror the consent standard of many colleges the standard would be impossible to meet on a practical level, and would likely lead to increased plea bargains.

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In many states, a person can face criminal and civil penalties if he or she falsely accuses another person of a crime. One high profile example of the consequences you may face if you are suspected of making false accusations is the recent case involving an actor who alleged he was a victim of a hate crime earlier this year in Chicago. While the actor was cleared of all criminal charges arising out of the incident, he now faces civil liability for the purported costs of investigating the crime. Currently, the actor is attempting to have the civil claims dismissed, arguing that they are unfounded. If you live in Texas and are charged with making a false police report you should consult a knowledgeable Texas criminal defense attorney as soon as possible to discuss your case.

Criminal and Civil Allegations Against The Actor

Reportedly, in January of 2019, the actor reported to Chicago police that he was attacked outside of his apartment by men making racist and homophobic comments. The incident was initially treated as a hate crime, with numerous political and entertainment figures speaking out against the crime. Shortly after the alleged crime was reported, however, the two men who were named as people of interest in the crime by the Chicago police alleged that the actor  hired them to stage the attack.

The police then ceased investigating any crime against the actor to turn the investigation on the actor himself. While it seemed that the actor may be convicted for filing a false police report, the case against him was dropped and the file was sealed. The actor was ordered to pay the City of Chicago for the costs of investigating the crime by April 4th but failed to do so. Subsequently, the City of Chicago filed a civil lawsuit against the actor seeking the costs associated with investigating the attack, as well as penalties for making a false report.

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Most people are familiar with the phrase “double jeopardy” and generally understand it to mean that you cannot be convicted twice for the same criminal offense. While many people understand the basic concept of double jeopardy, the precise protections the Double Jeopardy Clause of the United States Constitution provides is not always entirely clear. Recently, the United States Supreme Court made great strides towards narrowing and defining the Double Jeopardy Clause, in a case in which the Court analyzed whether similar crimes charged by the state and federal government constitute the “same offense.” If you are charged with one or more crimes, you should speak with a skilled Texas criminal defense attorney to discuss whether you may be afforded protection from multiple convictions under the Double Jeopardy Clause.

Factual Background of the Subject Case

Reportedly, the defendant was driving his car in Mobile, Alabama when he was stopped by a police officer due to a damaged headlight. The police officer searched the defendant’s car and found a loaded gun. The defendant was previously convicted of second-degree robbery, a violent felony, and therefore was prohibited from owning a firearm under Alabama law. He was subsequently charged with violating the state law barring him from possessing a gun and pleaded guilty. The defendant was then indicted for the same crime under federal law. He filed a motion to dismiss, arguing that the federal charge was the same as the state offense and therefore, exposed him to double jeopardy. The district court denied his motion and the issue was ultimately appealed to the United States Supreme Court.

What Constitutes the Same Offense?

The Court affirmed the district court ruling, upholding the separate sovereigns doctrine. Under this doctrine, the state and federal government are considered separate sovereigns, and therefore, a state criminal charge and a federal criminal charge do not constitute the same offense. The Court noted that while the separate sovereignty doctrine is often referred to as an exception to the Double Jeopardy Clause of the Fifth Amendment, it is not an exception but is explicitly provided for in the text. Specifically, the Court noted that the Double Jeopardy Clause prohibits more than one prosecution for the “same offense”, not for the same actions or conduct. The court explained that “offense” is the term used to refer to a violation of a law, and sovereigns draft laws. Therefore, if the same conduct constitutes a violation of distinct laws from separate sovereigns, it is not the same offense.

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An arrest record can follow a person for years and may cost him or her employment opportunities and financial hardship, even if the person was not convicted or was ultimately pardoned. In certain cases, however, a person can seek an expunction and have all records and files relating to the arrest removed.  Expunction is not available in all cases, however, as illustrated in a recent Texas appellate court case, where the court reversed a prior order granting an expunction, on the basis it was improperly granted. If you were previously arrested and would like to seek an expunction you should consult a skilled Texas criminal defense attorney to discuss whether you may be able to request the removal of any records relating to your arrest.

Facts Regarding the Defendant’s Arrest

Reportedly, the defendant was arrested for, and charged with, larceny and theft by check. She pleaded guilty to a reduced charge of issuance of bad checks. She was subsequently convicted and fined and ordered to pay court costs. Almost thirty years later, she filed a petition to expunge her arrest records, stating she was not convicted of an offense relating to her arrest. The Texas Department of Public Safety filed a response stating that the arrest resulted in a final conviction. Following a hearing, the court issued an order granting expunction. The Department of Public Safety appealed.

Grounds for Expunction

Expunction is a right provided for under the Texas Criminal Procedure Code. Under the applicable statute, a person who was arrested for a felony or a misdemeanor is entitled to have the records and files relating to his or her arrest expunged if he or she was tried for the offense for which he or she was arrested and was subsequently acquitted. A person is also entitled to an expunction if he or she was convicted of the offense for which he or she was arrested but was then pardoned. Lastly, a person may seek an expunction if he or she has been released and the charge did not result in a final conviction and is no longer pending.
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In the legal realm, “negligence” typically refers to a civil claim in which an injured party alleges that another person breached a duty of care owed to the injured party and thereby caused the injured party harm. In Texas, however, there are certain instances in which a person can face criminal charges due to negligence. For example, a Texas bartender is currently facing criminal negligence charges for allegedly serving an intoxicated patron.  If you are charged with criminal negligence or another crime it is critical to engage a skillful Texas criminal defense attorney to assist you in formulating a strong defense.

Facts Regarding the Alleged Criminal Negligence

Reportedly, the bartender was working at a bar in Plano in 2017, when she served alcoholic beverages to a 32-year-old man, despite evidence that he was already intoxicated. Text messages obtained from the bartender’s phone indicate that the man had a knife in the bar and stated he was going to “go do some dirty work.” The bartender also texted a friend about the man’s excessive drinking. The bartender, who socialized with the man outside of the bar, called the police after the man left the bar to report his behavior.

It is alleged that after the man left the bar, he went to the home of his estranged wife where a party was being held. He then fatally shot his wife and seven other individuals. The man was killed by police who responded to the shooting. Following his death, it was determined that his blood alcohol level was over four times the legal limit for driving in Texas.
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HOUSTON (CN) – Unsealing a 43-count indictment, federal agents said they arrested 43 people Wednesday morning and seized millions of dollars from a Houston home, breaking up a cocaine-and-heroin trafficking operation involving an associate of the Gulf Cartel.

Houston DEA Special Agent in Charge Will Glaspy said the main target of the dragnet, dubbed Operation Wrecking Ball, is Mexican national Carlos Alberto Guajardo. Though Guajardo is the first of 56 people named in the indictment, he is still at large.

Under Texas law, if the evidence is insufficient to convict a defendant of a crime, he or she may be convicted of a lesser included offense. In some cases, a defendant may choose to enter into a plea bargain to a lesser included offense to avoid a possible conviction for the greater offense. Typically, either the State or the defendant will ask the court to submit an instruction to the jury regarding a lesser including offense.

As a Texas appellate court recently held, however, the court may choose to provide the jury with an instruction as to a lesser included offense regardless of whether either party requested the instruction. If you face criminal charges, you should retain a capable Texas criminal defense attorney to help you fight to protect your rights.

The Defendant’s Charges and Trial

Allegedly, the defendant was stopped by the police while he was on a bus. He submitted to a pat-down, which ultimately led to the revelation that he was carrying 332 grams of cocaine. He was charged with possession of cocaine with intent to distribute, to which he plead not guilty. The defendant did not testify at his trial but did not dispute that he possessed the cocaine. Rather, the contested issue at trial was whether the defendant intended to distribute the cocaine. During his closing, the defendant’s attorney argued that because the State had not produced sufficient evidence that the defendant intended to distribute the cocaine, the defendant was not guilty of the charged offense.

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In 2015, the Texas Court of Criminal Appeals held that Moore did not have an intellectual disability and was eligible for the death penalty. The Supreme Court vacated the decision. The appeals court reconsidered but reached the same conclusion in 2018. The Supreme Court again reversed, noting evidence that “Moore had significant mental and social difficulties beginning at an early age. At 13, Moore lacked basic understanding of the days of the week, the months of the year, and the seasons; he could scarcely tell time or comprehend the standards of measure or the basic principle that subtraction is the reverse of addition … because of his limited ability to read and write, Moore could not keep up with lessons. … Moore’s father, teachers, and peers called him ‘stupid’ for his slow reading and speech. After failing every subject in the ninth grade, Moore dropped out of high school … survived on the streets, eating from trash cans.” The court of appeal employed the correct legal criteria, examining: deficits in intellectual functioning—primarily a test-related criterion; adaptive deficits, “assessed using both clinical evaluation and individualized . . . measures”.; and the onset of these deficits while the defendant was still a minor. The court focused on adaptive deficits and found the state’s expert witness more credible and reliable than the other experts The Supreme Court held that the opinion repeated the analysis previously found improper; it relied, in part, on prison-based development, considered “emotional problems, ” and employed some “lay stereotypes of the intellectually disabled.” Moore has shown he is a person with intellectual disability.

Read the full opinion HERE.

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