Articles Posted in Criminal Defense

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.

Under Texas law, a sentence must be orally pronounced in the presence of the suspect. When an oral sentence conflicts with a written judgment, the oral sentence generally prevails. In Ette v. Texas, however, the Court of Criminal Appeals of Texas held that this general rule does not apply when the written judgment includes a sentence imposed by a jury. If you face criminal charges, you should seek the assistance of a Texas criminal defense attorney as soon as possible to analyze the facts of your case and assist you in formulating a defense.

Facts of the Case

Reportedly, a jury found the suspect guilty of misapplication of fiduciary property. The jury assessed the suspect’s penalties as ten-year confinement and a $10,000.00 fine, and recommended a suspension of the confinement but not of the fine. The trial court read the verdict aloud, after which the judge verbally sentenced the suspect to ten years of confinement, but no fine. The suspect appealed the imposition of the fine, arguing it should not be imposed because the judge did not orally pronounce it at the time of sentencing, and oral pronouncements had previously been held to override written judgments. The court of appeals rejected the suspect’s argument and held that the fine should be imposed. The court stated the oral and written pronouncement should be combined to reflect the jury’s verdict. The court of appeals further stated that the suspect had notice that the court intended to impose a fine due to the jury verdict. The suspect then petitioned the Court of Criminal Appeals of Texas for review.

In a Texas criminal trial, a jury deliberating on a suspect’s guilt is given instructions as to the elements of the crime the suspect is charged with, and advised they must find each element is satisfied to find the suspect guilty. As shown in Niles v. Texas, where a jury is not properly informed of the charges a suspect faces, a suspect can be wrongfully convicted and unjustly sentenced for a crime he or she did not commit.  As such, if you are facing criminal charges, it is essential to retain a Texas criminal defense attorney who will ensure the jury is properly instructed as to the crimes alleged, to prevent an inappropriate conviction.

Facts of the Case

The suspect was a Houston firefighter. Allegedly, during a shift it was revealed that the suspect did not have a valid driver’s license, and he was ordered not to drive and directed to get a valid driver’s license before his next shift. In response, he purportedly stated he was going to start shooting people, and later stated he was going to kill everyone in the fire station. The suspect had several guns in his vehicle and explained in detail the manner and order in which he would kill people. The suspect made similar comments on other occasions, after which he was advised not to return to the fire station.

Under Texas law, a party seeking to introduce evidence at a trial must comply with statutory requirements. Texas criminal defense attorneys frequently object to the admission of evidence that was obtained illegally, and are able to prevent such evidence from being used against their client. Recently, the question arose as to whether the state has to prove statutory compliance where there is no inference the evidence it seeks to introduce was obtained in violation of a statute. The Court of Criminal Appeals of Texas addressed this issue in White v. Texas, and ultimately held that the question could not be answered with a bright-line rule. As such, it remains unclear who bears the initial burden of proof regarding whether evidence was obtained in compliance with applicable statutes.

In White, Defendant was charged with organized criminal activity and money laundering. At his trial, the prosecution introduced an audio recording of a conversation between Defendant, his co-defendant, and an individual named Brandon, in which they discussed a plan to steal funds from a client. Defendant objected that the recording was inadmissible because it was obtained in violation of illegal wiretapping laws. The court overruled his objection and Defendant was convicted. He appealed, arguing that because the state failed to prove the recording was obtained legally his conviction should be overturned. The Fifth Court of Appeals affirmed his conviction. On further appeal, the Court of Criminal Appeals of Texas found the recording was not barred by the rule of criminal procedure prohibiting illegally obtained evidence and affirmed Defendant’s conviction.

In evaluating whether Defendant’s conviction should be overturned, the Court of Criminal Appeals stated that while the proponent of evidence generally must prove to the court the basis for its admissibility, the burden is not triggered unless a specific objection is made to the evidence.  The court noted that the court of appeals erroneously placed the burden of proof regarding the admissibility on Defendant rather than the state, but nevertheless held the recording was admissible based on the evidence as a whole. Specifically, the state presented uncontroverted witness testimony regarding the fact that Brandon, one of the parties to the conversation in the recording, made the recording and provided it to the state, prior to any objection as to its admissibility. As such, since the state presented evidence the recording was obtained legally and Defendant did not present any evidence to the contrary, the court held the recording was properly admitted.

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