Articles Posted in Criminal Defense

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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Read the full article HERE.

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.

The Fifth Circuit denied a petition for review of the the BIA’s decision affirming the IJ’s determination that petitioner was removable because she was convicted of a drug offense. Petitioner argued that she was not removable because she was convicted for possessing a small amount of marijuana for personal use. The court held that the BIA’s interpretation of 8 U.S.C. 1227(a)(2)(B)(i)’s personal-use exception was reasonable. Applying the BIA’s circumstances-specific approach, the court held that petitioner’s conviction did not fall within the personal-use exception. In this case, substantial evidence supported the BIA’s findings that petitioner possessed 54.6 pounds of marijuana—substantially more than the personal-use exception’s 30-gram threshold.

Read the full opinion HERE.

Consult an Experienced Texas Criminal Defense Attorney

Read original article from Courthouse News Services here.

Two legal rights groups filed a federal class action Wednesday claiming some New York inmates with mental disabilities who served their time are illegally kept behind bars because there are no beds for them at community mental health centers.

According to the complaint filed in Manhattan federal court by the Legal Aid Society and Disability Rights New York, the Empire State’s practices have “administratively” lengthened the terms for mentally disabled inmates who have finished out their sentences but may become homeless after they leave prison.

Recently, a teenage prankster who was alleged to have thrown eggs at other motorists was charged with murder after one of his alleged targets chased him and caused an accident with a third driver who died in the accident (read the full article here).

The moral of this story is that a person can be charged with ANY crime that results from that person’s conduct, even if he did not intend the more serious harm that occurred.

Under Texas Penal Code section  6.04, the law states that:

WASHINGTON (CN) – Justices Neil Gorsuch and Sonia Sotomayor teamed up for a dissent Monday after the Supreme Court rejected an appeal over forensic witnesses in criminal trials.

breathalyzerEarly on in the 4-page opinion, Gorsuch quotes precedent to laud cross-examination as possibly “the greatest legal engine ever invented for the discovery of truth.”

“The Constitution promises every person accused of a crime the right to confront his accusers,” Gorsuch wrote.

Under the laws of Texas and the United States Constitution, a person cannot be tried more than once for the same offense. While the court can hold a second trial if the first trial results in a mistrial, the state cannot re-try a defendant who has been acquitted during a trial on the charges for which he or she was acquitted. In Traylor v. Texas, the Court of Criminal Appeals of Texas clarified that a jury note stating the jury unanimously agreed the defendant was not guilty on a charged offense did not constitute an acquittal, and therefore, it found a second trial was permissible.  If you are accused of a crime, it is vital to retain a Texas criminal defense attorney to advise you of your rights and potential defenses for the charges against you.

Facts of the Case

Reportedly, the defendant was charged with first-degree burglary of a habitation. His indictment alleged that he intentionally entered the home of his ex-mother-in-law and assaulted her. During his trial, the jury was charged on both first-degree burglary and the lesser offense of second-degree burglary. A conviction for first-degree burglary required a finding that the defendant used a deadly weapon, while a conviction for second-degree burglary did not. After some deliberation, the jury advised the court via a note that the votes were unanimous for a finding of not guilty on the first-degree burglary charge and that there were five votes for guilty and seven for not guilty on the lesser charge. The court asked the jury to continue deliberating.

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