by Houston Criminal Defense Attorney

Can I own a gun if I was convicted of a Felony?

A convicted felon can own a gun if the conviction was based on a nonviolent offense.

by Houston Criminal Defense Attorney

Sometimes When You Win. . . Exonerations and Criminal Defense.

In the 1992 basketball film White Men Can’t Jump, it was explained:

Sometimes when you win, you really lose and sometimes when you lose, you really win and sometimes when you win or lose, you actually tie, and sometimes when you tie, you actually win or lose.

Make Sense?

Neither does the state of our Criminal Justice System.

Sometimes When You Win…

The National Registry of Exonerations Report revealed a record (get used to this word) number of United States exonerations in 2015: 149 exonerations in fact, with five exonerations coming straight outta death row. Of the 149 exonerations, wrongfully convicted persons served on average about 14-and-a-half years in prison.

Crime Breakdown:

Homicide:                   58 or 39 % (new record)
Drug Cases:                51 or 34% (42 or 82% of the drug exonerations came from Clutch City, Texas)
Sexual Assault:          15 or 10%

…You Actually Lose:

Why are there so many exonerations? Why are people averaging 14 ½ years in prison for something they did not do? Why since 2011 have exonerations nearly doubled? Is it the criminal defense attorneys?  The prosecutors? The judges?

The answer lies in the disconcerting reasons below (exonerations were based on either one or a combination of).

Official Misconduct: 65 or 44% (a new record)
Guilty Pleas 65 or 44% (another new record)
False Confessions 27 or 18% (and another new record)
No-Crime Cases: 75 or 50%
DNA: 26 or 17%

Note: Not accounted for, but an often cited reason for wrongful convictions is mistaken identity.

Official Misconduct:

There’s gonna be some stuff you gonna see
that’s gonna make it hard to smile in the future.

With nearly half of the exonerations coming from Houston, you don’t have to look very far to find shattered oaths littered by those sworn to protect and serve.

Look at the court’s findings in the David Temple case listing 36 instances of prosecutorial misconduct. Check out the Joseph Salazar case accused of attempting to disarm a peace officer, before criminal defense attorneys subpoenaed video that proved otherwise. Official misconduct isn’t just Houston’s problem, wrongdoing can be found across the country.  Official misconduct is particularly troubling given the role authority figures play in the system. These are the very people at the heart of justice. The very people who have the power and authority to ensure the truth is revealed. Yet, with at least three exonerations per week it is clear some officials have lost sight of their professional duties.

Guilty Pleas:

Why would someone plead guilty to a crime he didn’t commit? From the outside, it seems impossible. From the inside, it is a different story. Especially, for example, from the inside of jail under FBI Investigation. The justice system is a money system. If you don’t have the bank roll to bond out of jail or defend your case, a “deal” can put you back on the job and with your family. While the intentions at this stage may not be as malicious as above, innocent people are still stuck in prisons and with permanent convictions.

No Crime:

What? Huh?

How could someone be convicted of something that is not a crime?

A quick guilty plea for a low-level drug cases where subsequent lab results reveal otherwise is such an example. 51 wrongfully convicted drug cases were exonerated last year in Houston alone.

Convictions secured by “junk science” like Cameron Willingham’s arson accusation is another. Overall jurors want to do the right things.  They see a well-dressed, well-spoken, so-called government expert explaining “junk science” and it sounds believable.  The experts of the unsinkable ship, Titanic, sounded believable too.  “Junk science” has become a “fly in the ear” for many types of criminal offenses.

False Confessions:

People often find it difficult to believe someone would admit to a crime they did not commit. Unfortunately false confession can and do happen. Police “tunnel vision”, trained interrogation techniques, twisted words, lengthy interviews, and overmatched suspects are some of the many reasons false confessions occur. One exonerated case even involved police torture.

Still Work To Be Done

While a few major cities, including Houston, have deployed Conviction Integrity Units designed to prevent, identify and correct false convictions, there is still much work to be done. The growing number of exonerations fail to account for low-level offenders lacking the means, determination or desperation to prove their innocence. While they may not be facing death or lengthy prison sentences, the collateral consequences of a conviction carry a heavy weight. Until those with the ability to make changes for the betterment of the system do so, these flaws will remain. Criminal defense attorneys, prosecutors, and judges must demand better.  So sure, it is a great that falsely accused persons are being freed at a record rate, but they shouldn’t have been there in the first place.  In other words, sometimes when you win, you really lose.

by Houston Criminal Defense Attorney

Cleaning your Record.

POSTED BY: ADAMO / ADAMO

In our line of work there is no greater satisfaction than hearing a prosecutor say a case has been “dismissed” or a jury saying “not guilty”.

 

The battle however does not end in the courtroom.  A dismissal or not guilty is only the first part of clearing your name.

In this “age of information” a non-expunged dismissal or not guilty is no better than a conviction for purposes of a person’s record.  Failing to take advantage of erasing or sealing your records will result in unwanted explanations with employers, landlords, cops, and anyone with access to a computer.

 

So let’s break it down.

WHAT IS A “CRIMINAL RECORD?

A record is the collection of public information.  A criminal record will show the cause number of your case/s, the offense charged, your name, and the disposition (i.e. final result).  See Example:

Case (Cause)Number	Style	File Date	Court	Status	Type of Action/Offense
1313131313 CRIMINAL-Complete (C)	The State of Texas vs. Walter White (SPN: XXXXXXX) (DOB: 00/00/0000	00/00/00	17	Defendant:Disposed (D)Disposition:Dismissed (DISM)	OFFENSE CHARGED

WHO MAINTAINS THE RECORDS?

The Department of Public Safety (DPS) is the “hub” for all criminal history information collected in the state of Texas.  Arrests and case related information are reported to the Texas Crime Information center maintained by DPS.  Additionally, either the original reporting agency or DPS will pass along the information to the National Crime Information Center overseen by the FBI.

WHO HAS ACCESS TO THE RECORDS?

These records are available to the general public via open records requests and online portals of court record information (i.e. District Clerk Websites).  The records are sold to private vendors of criminal history record information, private background check companies, mug-shot websites and anyone else willing to spend a little money.  Officers and district attorneys have access to this information as well.

IS AN EXPUNCTION AND NON-DISCLOSURE THE SAME?

This will be explained in greater detail below.  The only consistency is they are both remedies limiting access to criminal history/record information.

IS THERE ANYTHING I CAN DO TO ASSIST?

Obtain your secure criminal history from DPS.  This will help us to identify your eligibility for either an expunction or non-disclosure.

Use this link to obtain your criminal history: https://records.txdps.state.tx.us/DpsWebsite/CriminalHistory/About.aspx

EXPUNCTION

OKAY, I GET IT.  AM I ELIGIBLE FOR AN EXPUNCTION?

Expunctions are governed by Tex. Code Crim Proc. Art. 55.01.

Generally…

YOU ARE ELIGIBLE IF:	YOU ARE NOT ELIGIBLE IF:
Acquittal (i.e. not guilty verdict).	You received court ordered community supervision under Tex. Code Crim. Proc. Art. 42.12 (i.e. deferred adjudication or probation), unless the offense was a Class C Misdemeanor.
	If you have been acquitted of an offense but convicted or remain subject to prosecution for at least one other offense.  Also known as the criminal episode exception.
Unfiled Cases.  If you were arrested but no charges have been filed.	The records relate to an arrest/warrant for a probation violation.
Successful Completion of Pretrial Intervention or Diversion.	The records relate to the suspension of a driver’s license.
Posthumous expunction.  Where a close relative of the deceased where the defendant was acquitted, pardoned, or found actually innocent.	The records of financial transactions.
	Bail – Jumping.
Acquitted on appeal by the court of appeals.
*The Statute of Limitations has run.

PRACTICE TIP:  Typically you are not eligible for an expunction until the statute of limitations has run, however more and more agencies are not opposing expunctions filed before that time.  This is especially true with misdemeanor offenses.

I AM ELIGIBLE, HOW DOES THE EXPUNCTION PROCESS WORK?

Briefly, a petition for expunction is drafted and filed with the court.  The court issues a hearing date.  Any agencies in possession of records pertaining to your arrest are served and notified of the petition.  Absent an objection an Agreed Order of Expunction can be signed and filed with the court.  If a party objects a hearing will be heard.  Once signed by the judge all agencies listed in the petition are ordered to destroy their records or return the records to the court to be destroyed.  The order prohibits law enforcement and other state agencies from releasing, maintaining, disseminating or using the records for any purpose.

MY RECORDS HAVE BEEN EXPUNGED, IF I AM ASKED “HAVE I EVER BEEN ARRESTED”, HOW DO I ANSWER?

NO!  You are granted the right to say “No” to the question, have you ever been arrested or charged with crime.  You can also answer the question “Have you ever had a criminal charge expunged?” with a profound “NO”.

There is one exception.

If you are testifying under oath in a criminal proceeding.  You can not say “No”, but can say “The matter in question has been expunged”.  See Tex. Code Crim. Proc. Art. 55.03.

NON-DISCLOSURE

I AM NOT ELIGIBLE FOR AN EXPUNCTION, BUT MAY BE ELIGIBLE FOR A NON-DISCLOSURE.  WHAT IS THE DIFFERENCE?

The primary difference is an expunction is the destruction or erasing of your records.  A non-disclosure results in “sealing” your records.  With a non-disclosure your records are blocked from the public.  Law enforcement, district attorneys, certain state agencies and licensing boards still have access to the records.

I SUCCESSFULLY COMPLETED DEFERRED ADJUDICATION, AM I  ELIGIBLE FOR A NON-DISCLOSURE?

Non-Disclosures are governed by Tex. Gov’t Code Section 411.081.

Generally…

YOU ARE ELIGIBLE IF:	YOU ARE NOT ELIGIBLE IF:
You have successfully completed deferred adjudication	You have been previously convicted or placed on deferred for:-An offense requiring registration as a sex offender;-Aggravated kidnapping;-Murder, Injury to a Child, Abandoning or Endangering a Child, Violation of a Protective Order, Stalking; or-An offense involving family violence
	You have been convicted or placed on deferred adjudication for any offense (not including Class C misdemeanors) during the term you were on deferred or within certain time periods.

IT SEEMS I AM ELIGIBLE FOR A NON-DISCLOSURE.  ARE THERE WAITING PERIODS?

OFFENSE	WAITING PERIOD
Most Misdemeanors	Eligible for Non-Disclosure immediately upon successfully completing deferred adjudication.
Certain Misdemeanors:-Kidnapping and Unlawful Restraint;-Sexual Offenses;-Assaultive Offenses;-Offenses against the family;-Disorderly conduct, obstructing, harassment, interference with a 911 call;-Weapons	Eligible for Non-Disclosure TWO YEARS after successfully completing deferred adjudication.
Felonies	Eligible for Non-Disclosure FIVE YEARS after successfully completing deferred adjudication.

PRACTICE TIP:  The waiting periods apply to the offense for which you plead guilty to and were placed on deferred adjudication for, not the offense for which you were originally charged.  For example:  Walter White is arrested for Felony Drug Possession.  His attorney, Saul, negotiates a plea bargain allowing Mr. White to plead guilty to misdemeanor drug possession and receive deferred adjudication.  Upon the successful completion of deferred adjudication Mr. White is immediately eligible to non-disclose his record (as opposed to waiting five years).

HOW DOES THE PROCESS WORK?

A petition for non-disclosure is drafted and filed with the court.  A hearing is set.  If the court finds it is in the “best interest of justice” for the records to be sealed, the judge will sign the petition’s order requiring DPS to notify all law enforcement agencies, jails, other detention facilities, magistrates, courts, prosecuting attorneys, correctional facilities, central state depositories of criminal records, and other officials or agencies subject to the order of the pertinent records to be sealed.

MY RECORDS HAVE BEEN NON-DISCLOSED OR SEALED, IF I AM ASKED “HAVE I EVER BEEN ARRESTED”, HOW DO I ANSWER?

While you can not deny being arrested (as you can with an expunction), you do not have to disclose the arrest and prosecution in applications for employment.

THE BOTTOM LINE

Erasing (expunction) or sealing (non-disclosure) your records is absolutely essential to keep from reliving the day you were arrested.  A clean slate can mean the difference between having a job, obtaining a license, having a place to live, or even traveling to another country.  Take advantage of this immeasurable tool.

Case Dismissed,

Law Office of ADAMO / ADAMO