by Houston Criminal Defense AttorneyInfertility Doctors Beware – Infertility Fraud: It’s a thing and it’s about to be a crime in Texas.
What is Infertility Fraud
Infertility fraud is a sexual assault offense where a health care provider intentionally implants human sperm, eggs or embryos from an unauthorized donor. Currently, the Texas Penal Code does not have a section devoted to such rape by deception. However, in an effort to keep up with technological gains specifically related to infertility treatments, this is about to change.
The Senate Criminal Justice Committee approves infertility fraud bill.
The bill, now on its way to the Senate, makes infertility fraud a state jail felony with a punishment range of 180 days to 2 years in a state jail facility and up to a $10,000 fine. This sex crime may be prosecuted up to two years from the date the offense was discovered, but would only apply to future crimes. Thus, any infertility fraud that occurred prior to the passage of the bill could not be prosecuted criminally, although civil remedies still remain.
How does infertility fraud occur?
Infertility fraud has come to light in large part due to the availability and ease of access to DNA testing kits like ancestry.com and 23andme.com. Results have lead an imprint back to the office of the patient’s health care provider.
How does infertility fraud happen? It’s shockingly easy really.
Two common types of infertility treatments are Intrauterine Insemination (IUI) and In-Vitro Fertilization (IVF). The former involves placing washed sperm in the women’s uterus when she is ovulating using a catheter.
The latter, IVF, is more evasive and involves surgically collecting a woman’s eggs along with sperm from a male partner or donor. Once collected the egg and sperm are placed in a culture dish for fertilization and growth. At a certain point, the resulting embryo is placed back into the woman’s uterus.
In each infertility treatment, the sperm is left solely in the hands of the healthcare provider for washing (IUI) and insemination (IVF). It is at these points the opportunity to switch the donor’s sperm with, say a healthcare provider’s sperm exists. Up until now who would have ever known. No harm, no foul? Well, folks are feeling the harm and Texas is about to call infertility fraud a serious sexual assault foul.
The Adamo & Adamo Law Firm is a full service law firm representing citizens accused of sex crimes both nationally and throughout Texas.
by Houston Criminal Defense AttorneyTimes A Changing? Forfeiture Laws
What happens when the police seize your property?
by Houston Criminal Defense AttorneyCBD Oil, is it Legal? It’s complicated – CBD Oil Lawyer
CBD Oil, is it Legal? It’s complicated – CBD Oil Houston Lawyer
What is CBD Oil?
CBD oil (cannabidiol) is one of over 113 known cannabinoids found in the cannabis plant. What it lacks in psychoactive effects, it makes up for in health benefits and can assist in treating such ailments as: seizures, anxiety, depression, arthritis, sleep deprivation and PTSD. To date, CBD Oil remains unregulated by the Food and Drug Administration causing wide discrepancies in the product’s ingredients and quality. This matters, because it is how the oil is processed that impacts its legality.
Is CBD Oil Legal?
Before diving into the legality of CBD Oil under both federal and state law, we must understand how the two regulatory bodies interact. Federal law applies to the nation as a whole, whereas state law applies only to that particular state. Simple enough.
The supremacy clause says that if federal and state laws clash, federal law prevails. So, if a there is a contradiction between federal and state law, when you are in the state you can follow the state law, but the feds can still pick you up if the activity is illegal under federal law.
What Is CBD Oil legal under Federal Law?
Yes, if it is produced within federal guidelines. For CBD oil to fall within the DEA’s guidelines it must “consist solely of parts of the cannabis plant excluded from the Controlled Substance Act of marijuana.” That is, it must come from the “mature stalks of such plant, fiber produced from such stalks, oil or . . . and other . . . derivative, mixture, or preparation of such mature stalks.”
What Is CBD Oil legal under Texas Law?
CBD is legal at the state level where marijuana is legal for recreational use (e.g. Alaska, California, Colorado, DC, Maine, Massachusetts, Nevada, Oregon, Vermont). Twenty-nine states (and counting) have made marijuana legal for medicinal use in various quantities and CBD is also considered legal under those state laws, irrespective of the THC content of the source of the oil. Remember though, under federal law there are strict guidelines, so the CBD oil with higher concentrations of THC may be legal in Colorado, but illegal under federal law.
Is CBD Oil Legal in Texas?
No, unless you fall within the qualifications set by the Compassionate Use Act. That is:
- You possess CBD Oil in conformity with Texas State Law (made from the mature stalks of the Cannabis sativa plant); or
- You are prescribed the use of medical CBD oil and
- You use “low-THC” CBD.
Texas defines “low-THC cannabis” as having no more than 0.5% THC. In contrast, the feds define “low-THC cannabis” as having no more than 0.3% THC.
If you don’t fall within this exemption then possession of CBD oil containing any amount of THC is against Texas law and you could be punished up to 180 days in jail and/or up to a $2000 fine. That being said, our Houston CBD Oil Lawyers have received phone calls from persons accused of possessing CBD Oil who have initially been charged with felonies. This is because authorities are often unsure what the oil is.
In the end, be careful out there. Know what you are purchasing and even more importantly know what you are putting in your body. CBD Oil made from the mature stalks of the Cannabis sativa plant are likely in conformity with both Federal and Texas State law. If you choose to indulge, look for a products advertised as “industrial hemp” or “mature hemp.”
by Houston Criminal Defense AttorneyWinning at Voir Dire: 54 Steps to Jury Selection Success
Look at the photo above. What do you see?
A) Lava
B) An Ocean
C) A Desert
D) Mountains
E) Something Else
Ask others what they see. You will find people view this photo differently. People view this photo based on what they have experienced in life.
In the context of voir dire, think about a hung jury.
The jury has just sat through and seen all the same evidence and exhibits; has heard the same opening statements and arguments; and, has been read the same jury instruction from the court. Yet the decision makers were unable to unanimously reach the same conclusion.
Why?
Because just as our life experiences influence the way we see the photo above, our life experiences influence the way we interpret the evidence. Each juror’s conclusion, whether guilty or not, was made through their worldview. Life has stamped a colored imprint on the lenses of each juror’s eyes. This footprint has been strengthened over time and is unlikely to change in just thirty brief minutes.
This is why, contrary to what lawyers are often taught, a jury trial is won or lost the moment the jury panel walks into the courtroom, not at the conclusion of voir dire.
Once the trial lawyer understands that, they are better armed to find and strike any juror whose worldview is inconsistent with an acquittal. The ultimate goal of voir dire.
This is how.
Pre-Trial:
- Review applicable jury charge for potential challenges for cause.
- Review applicable law for potential challenges for cause.
- Identify the emotional (hot-topic) issues of your case.
- Develop a summary of your case.
- Bounce that summary off family, friends, and staff.
- Narrow-down the issues non-lawyers find important.
- Focus Groups: useful to discern what issues may be important to a jury, that wouldn’t be to an attorney.
- Focus Groups: not useful to predict what your jury panel is likely to believe because each panel will be different.
- Know the type of juror you are looking for in the box.
- Have a theory to your case.
- Draft relevant questions.
- Practice your questions until they become natural.
Trial (prior to voir dire beginning):
- Have help.
- Have a jury seating chart.
- Know how jurors are seated in the courtroom.
- Get the jury information sheets as soon as possible.
- Immediately assign prospective jurors a rating (Leader/Follower; For Me/Against Me)
- If the ratings suggest, request a shuffle.
- Write out jurors by name
- Engage the panel from the start. Begin voir dire by providing a context encouraging full participation.
- Begin with questioning “Leaders – Against Me.”
- Spend time with jurors who may actually be reached.
- Best practice is to have someone else take notes, so you can give your full attention to the panel.
- Don’t explain things to the prospective jurors; let them explain things to you.
- Refer to jurors by their last name.
- Don’t argue with a potential juror: this is the quickest way to ensure individuals will not express their strongly held opinions.
- Ask “Loaded” questions. “People have strong feeling about the burden of proof in a criminal cases. Some people would require the state to prove their case beyond a reasonable doubt. Other people feel beyond a reasonable doubt is to too high a burden. They would require the State to prove their case by clear and convincing evidence.
- Ask “Winning” questions, “Can you think of some reasons why a child may lie? Winning questions allow the jurors to provide pertinent answers to the theory of your case.
- Refer to answers from jurors throughout the course of your trial (e.g. opening, cross, closing, etc.)
- No legal words.
- Don’t be afraid of unfavorable answers or “poisoning” the panel.
- Loop unfavorable answers for cause with “Who has a different opinion from {juror}?”
- Loop favorable answers for cause with “{Juror} has said . . ., who has a similar opinion?”
- “Tell me more about that . . .”
- “Is it fair to say . . . “
- Ignore the good.
- Identify and engage the bad.
- “Can you think of any other reasons . . .”
- Thank jurors for their honest opinions.
- Protect the record. Identify juror’s head nods and answers by name.
- When challenging for cause (at bench) remind the juror what he or she previously said.
- Follow up with “Are my notes accurate?”
- Nail the strike down: “Is it fair to say that regardless of the law, the facts, or the judge’s instructions that you . . .”
Preemptory Strikes:
- Ask all decisions makers (see #12) to make a list equal to the number of preemptory strikes. No discussion at this point.
- Compare numbers.
- Use a preemptory strike on any juror who shows up on every list.
- If strikes remain, discuss.
- “Leaders – Against You” are struck first.
- “Leaders – Questionable” are struck second.
- “Followers – Against You” are struck third.
Additional Tips:
- Rid of jurors that have a point of view inconsistent with an acquittal in your case.
- Understand jurors make up their mind and then justify their decision.
Happy jury selection and good luck.
by Houston Criminal Defense AttorneyHarris County Misdemeanor Marijuana Diversion Program
Effective March 1, 2017, the District Attorney’s Office will unveil the Harris County Misdemeanor Marijuana Diversion Program (MMDP). This program aims to give citizens a chance to avoid misdemeanor marijuana arrests and convictions by completing a 90-day program while also seeking to use resources of the Harris County Criminal Justice system more effectively and efficiently.
To be eligible for participation in the Harris County Misdemeanor Marijuana Diversion Program a person must:
- Be 17 years or older;
- Be found to have four ounces or less of marijuana;
- Possess sufficient identifying information at the time of detention (stop);
- Have no additional criminal charges arising out of the instant detention. For example, a person found in unlawful possession of marijuana and Xanax would be ineligible;
- Have no outstanding warrants;
- Not currently on bond, deferred adjudication or probation for a Class B offense or greater; and
- Be stopped and detained in Harris County (Montgomery County, Waller County, Liberty County, Galveston County, Ft. Bend County, Chambers County, and Brazoria County do not apply).
Note: A person will still be eligible to participate if they have a prior criminal record and/or if they have participated in the program before.
A person is not eligible for the Harris County Misdemeanor Marijuana Diversion Program if:
- They are on bond, deferred adjudication or probation in Harris County or another jurisdiction for any offense other than a Class C (e.g. speeding ticket);
- Officers determine the person possesses marijuana with the intent to deliver (i.e. be careful how much cash you have);
- Is in possession of a concealed handgun and marijuana without a valid Concealed Handgun License (CHL). In this instance the person, assuming all other requirements are met, will only be charged with the Unlawful Carrying of a Weapon;
- Possess four ounces or less in a “drug-free zone”;
- Possess four ounces or less in a corrections facility;
- Is currently enrolled in the MMDP program; or
- Is found with cannabis wax, cannabis oils, etc. (these are controlled substances under Texas law and a felony).
Note: The officer can still detain and arrest you for driving under the influence of marijuana if probable cause exists that you were driving while intoxicated through the introduction of drugs.
Harris County Misdemeanor Diversion Program Requirements:
The Marijuana program requires a person to:
- Sign up for and complete the 4-hour MMDP cognitive decision-making class within 90 calendar days of his or her arrest;
- Not break the law before completion of the course (i.e. do not get arrested for another offense before the 90 day period is up); and
- Pay a $150 program fee.
MMDP Program Procedure:
When a person is stopped, and an officer finds a misdemeanor amount of marijuana, the officer should contact the Harris County District Attorney’s Office to confirm 1) probable cause exists for the detention (i.e. “the odor of marijuana”) and 2) if the person is eligible for the MMDP program. If the person is eligible, the officer will not make an arrest but instead will offer an agreement stating the marijuana program’s requirements and ask the person to sign. After signing the MMDP form, the person is released. If the person refuses to sign the MMDP form, they will be arrested, booked, and charged as if the program did not exist.
Once the person successfully completes the marijuana diversion program, no criminal charges will be filed and no criminal history of the event will exist. If the person agrees to but fails to complete the diversion program a formal criminal charge will be entered and an arrest warrant will be issued.
For Harris County misdemeanor marijuana cases filed before March 1, 2017
If you have been charged with possession of marijuana, 4 ounces or less, before March 1, 2017, you may still be able to take the class and have your case dismissed. Though as of this writing, the answer has not been finalized.
For additional questions feel free to contact our office, the Adamo & Adamo Law Firm at 713-237-8380 or email us at [email protected].
by Houston Criminal Defense AttorneyCrimination Camps
Barbed wire, watchtowers, and guards.
Unjust punishment and dehumanization.
Uninhabitable conditions.
Propaganda and financial incentives.
Mass incarceration.
Confinement without trial.
Many Americans living in the United States during the 1930s and early 1940s, didn’t think much about Germany. Little weight was given to secondhand reports. Confirmed reports were thought to be exaggerated and beyond-belief. It wasn’t until 1945 that Americans began to grasp the devastation left behind. By then it was too late. Millions had perished.
Unfortunately, we are often too late. Philosophical studies have concluded human beings are overwhelmingly cooperative. Our need to cooperate can lead us to turn a deaf ear on issues that don’t immediately impact us. Out of sight, out of mind. It isn’t until we are personally affected that we find ourselves in disbelief. Desperate for a solution to unjust punishment.
But, this isn’t about philosophy and this isn’t about the Third Reich, We aren’t going back in time. We don’t have to because all of the above can be found right here in the American justice system; the Texas justice system; the Harris County Justice system.
The Rise of Bail: The Beginning
Bail is an old-school tool originally used to assist in ensuring a person accused of a crime would appear for court. The theory was if a person put up their own money they were more likely to show up. Seems logical, although an outstanding warrant also seems logical.
Eventually, “entrepreneurs” discovered there were financial incentives tied to bond and formed bonding companies. A bonding company guarantees the bond for a non-refundable fee around 10% of the bond amount (although some bonding companies have been known to charge as much as 100% of the bond). If the accused fails to appear the bonding company is on the hook. Meaning, the original use of bail doesn’t even apply in today’s system.
When a person is arrested, they appear in front of a magistrate who assesses bail. Harris County magistrates rubber-stamp the amount from a bail schedule. While Texas law allows for personal recognizance bonds (zero money down), they are only used 7-8% of the time in Harris County. Once the bail amount is set, the accused (or accused’s family) is responsible for getting the necessary funds together to post bail.
In Harris County it is estimated up to 77% of the jail is made up of persons accused (emphasis on accused) of crime and
awaiting trial. Many of these accusations (emphasis on accusations) are low-level, non-violent offenses. Those unable to afford bail are left to sit. Mass incarceration.
Looking for the quickest exit, jail residents ignore collateral consequences attached to a criminal conviction by pleading guilty to crimes they did not commit. Doing so ensures they can get back to their homes, families, and jobs. It is a primary reason 95% of arrests end with a plea of guilty and is used to keep the court’s docket moving. Confined without trial.
In the last ten years, there have been nearly 200 deaths reported in the Harris County Jails. Knowing 77% of the jail is made up of Houstonians awaiting trial, 150 of those deaths are likely people with no business being in jail at all. These deaths have come at the hands of other inmates, uninhabitable conditions, disease, suicides, understaffed jails, and negligence.
The Axis Powers: Bail and Bail Conditions
The eradication of the presumption of innocence does not end once bail is posted. Certain accusations, carry with them bail conditions. Conditions the Texas Court of Appeals has held are necessary to secure the accused’s presence at trial, the safety of the victim, or the safety of the community. Burson v. State, 202 S.W.3d 423, 425 (Tex. App. – Tyler 2006, no pet.).
Take the real-world example below. One person has been convicted of Driving While Intoxicated and sentenced to a year probation. The other has been arrested for Driving While Intoxicated, posted bond, and been given bond conditions. Neither person has any prior criminal history. Disturbing is the inability to tell the difference.
Progressive leaders and civil right lawyers have recently made a strong push to rid of bail. As a result, many states have turned to personal recognizance bonds for an alternative. While this is a step in the right direction, as bail slowly diminishes pre-trial bond conditions are becoming more prevalent. When one door closes, another opens. Interlock devices, like the example from the DWI above, are cash cows with huge financial incentives.
Assume every person accused of DWI in Texas was ordered to have an interlock device as a condition of bail:
- Number of DWI arrests in Texas in 2015: 65,609
- Average Length of Time DWI is on court’s docket: 3 months
- Avg. Interlock Monthly Maintenance and Calibration Fee: $60
- (Monthly Fee * Docket Length) * # of DWI arrests = Total Interlock Fees.
- ($60 * 3) * 65,609 = $11,809,620.00 a year in interlock fees.
Throw in installation fees and that number grows.For interlock providers and investors business is good. Real good. As long as financial incentives outweigh the true purpose of justice, the system will be flawed. As long as we fail to make a difference, innocent lives will be adversely impacted. The writing is on the wall. Act, before it’s too late.
As long as financial incentives outweigh the true purpose of justice, the system will be flawed. As long as we fail to make a difference, innocent lives will be adversely impacted. The writing is on the wall. Act, before it’s too late. Act, before someone you care about, has their number called. Act, before your number is called.
by Houston Criminal Defense AttorneyWhat is Considered a Deadly Weapon in Texas?
What is a Deadly Weapon in Texas?
Pictures: (a) revolver (b) BB gun (c) car, (d) pillow (e) hot water, (f) underpants
a) both a and b
b) both c and d
c) both e and f
d) a only
e) All of the above
If you answered e) than you know Texas deadly weapons extend to a long list of objects.
Deadly Weapon Under Texas Law
Deadly Weapon applies to felony offenses and is defined in Texas Penal Code Section 1.07 as:
(A) a firearm or anyhing manifestly designed made, or adapted for the purpose of inflicting death or serious bodily injury (i.e. deadly weapon by design); or
(B) anything that in the manner or its use or intended use is capable of causing death or serious bodily injury (i.e. deadly weapon by use”).
Under subsection (B) objects that are generally not considered dangerous by design may become so by the manner in which they are used in the offense. Thomas v. State, 821 S.W.2d 616, 620 (Tex. Crim. App. 1991). The object must be used in a manner capable of causing death or serious bodily injury to fall into the deadly weapon class. McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000). To sustain a deadly weapon finding the evidence must demonstrate: (1) the object meets the definition of a deadly weapon; (2) the deadly weapon was used or exhibited during the transaction on which the felony is based; and (3) other people were put in actual danger.
“Firearm” means any device designed, made, or adapted to expel a projectile through a barrel by using the energy generated by an explosion or burning susbtance or any device readily convertible to that use.
“Serious bodily injury” means bodily injury that creates a substantial risk of death, or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.
Texas Deadly Weapon Short Long List
The following have all been found to be a deadly weapon by design: firearm, bayonet, shank
The following have all been found to be a deadly weapon by manner of use: axe handle, baseball bat, BB gun, belt buckle, board, bottle, club, drugs, dustpan, fire, flashlight, floor, foot, gasoline, class decanter, hammer, hand, HIV-positive person, knife, mixture of sedatives, motor vehicle, nailgun, nunchakus, pillow, rope, scissors, screwdriver, seminal fluid, spear, stick, straight razor, underpants, hot water.
Why It Matters: the Consequences of a Deadly Weapon Finding
A deadly weapon can be attached as a special issue in a number of criminal accusations such as, assault, aggravated assault, manslaughter, homicide, intoxication offenses, drug offenses, etc.
If a person is convicted of a crime involving a deadly, the person is ineligible to receive probation from a judge.
If a jury recommends probation and finds a deadly weapon was used or exhibited the judge may place the convicted in prison for a term of 60 to 120 days.
A deadly weapon finding also requires a person serve at least one-half of their prison sentence before being eligible for parole.
The question seems to be not what is, but what is not considered a deadly weapon in Texas.
by Houston Criminal Defense AttorneyFumbling the War on Drugs: The Unintentional Decriminalization of Drug Crimes.
With the 2016-17 football season approaching, Texas defense attorneys and prosecutors alike are scrambling to recover lawmakers recent fumble.
It’s no secret, legislatures had successfully reigned down on drug crimes. Penalty groups were expanded, punishments were enhanced, and sentences were lengthened. Capitol Hill in Austin acquired all the firepower needed to defeat Texas’ war on drugs.
Then along came a new and serious threat to the peace and dignity of the State. This threat was dangerous. It was underpunished. It was playing for the other team. It was synthetic drugs.
To stiffen punishment on these designer psychedelics (not listed in the Texas Controlled Substance Act) the lawmakers pushed a new subsection (d) to the Texas Health & Safety Code Section 481.103. The updated playbook would exclude some Federal Drug Administration (FDA) approved substances from Penalty Group 2 (PG2) (one of four primary drug penalty groups). The synthetic drugs would finally be penalized as felonies rather than misdemeanors. High-fives were exchanged as the bill rolled through the Senate, the House, and on to the Governor’s desk.
Game Over. So it was thought.
As the bill went to print, the plain language of the statute excluded all FDA approved substances from PG2. Amphetamine, lisexamfetamine, and dronabinol were a few of the substances listed in both Section 481.103 and the FDA, exempting drugs containing any quantity of those substances from felony prosecution. A hole, big enough for any criminal defense attorney to run through, opened. Prescription drugs like Adderall, Adderall RX, and Vyvanse contain amphetamines and lisexamfetamines. Street drugs like ecstasy, PCP, and speed have been known to contain amphetamines. Marijuana capsules and oils house dronabinol or delta-9-terahydrocannabinol (THC). Substances once playing under the bright lights of felony stadiums were demoted to outdated, empty misdemeanor fields, if at all. Prosecutors will argue Texas Health & Safety Code Section 481.119 applies, making it a misdemeanor offense to possess, manufacturer or deliver a miscellaneous substance not listed in a penalty group. Defense attorneys will argue, the substances are listed and specifically exempted. For now, it will be up to the courts to sort it out. For now, the pigskin is loose on crimnal courtroom floors across Texas.