by Houston Criminal Defense Attorney

Don’t try to do it without us #adamoandadamo #criminaldefense #criminaldefenseattorney

by Houston Criminal Defense Attorney

Super Bowl LI: Good decisions gone bad.

In case you live in a bubble, on February 5^, 2017, Houston will host the 51^st NFL Super Bowl. While the game will attract millions of worldwide viewers, it is the events leading up to the game that will draw the most attention. Houstonia Magazine has been running a feature, highlighting everything you need to know in preparation for Super Bowl LI. Perhaps more important than the parties is understanding what to do when the wheels come off during one. So if you or your mate’s motto is “bad decisions make for good stories”, keep reading.

First Quarter: 5^th Amendment.

You didn’t plan on being out long, but you bumped into Johnny Football. Before long, you’re dropping your flag football college intramural stats. Next thing you know someone in his entourage hands you a shot. And another. And another. Time flies when you are partying with JFF and now it’s 2:00 AM. Uber is running 5X their normal rate and, besides, you feel invincible. You hop in your car to head home. It’s just a few blocks away, but valet turned your auto lights off and the eyes of Texas are now staring down upon you. Red and blue flashing lights appear in your rear-view mirror. Two officers approach your driver side window. “You had anything to drink tonight?”

You have the right to remain silent, but you also need the ability. Know that anything you say will be used against you. Remember two lines: “Am I free to leave?” If the answer is “yes”, leave. If the answer is “no”, then “I’d be happy to cooperate with my attorney present.” No more, no less.

Second Quarter: Bail

You drop $250 for a once-in-a-lifetime chance to attend the Playboy Party. You’ve fallen in love eight times tonight, but the ninth time it’s for real. That is until some bro slides in on your wife-to-be. Words turn to insults. Insults turn to shoving. Unknown to your adversary, you’ve been trained by Miyagi Dojo and unleash a crane kick in the middle of the crowd. Of course, crane kicks are better suited for 1980s Hollywood, and yours lands on the face of wife-to-be number nine. “That’s assault Brotha” and the men in blue have taken notice. Walking away in cuffs, you get the attention of your buddy, “get me outta here.”

There are 2 ½ options for bail in Harris County:

(1) Post a Surety Bond: Contact a bonding agency or Harris County criminal defense attorney who will cover the bond for a fee of approximately 10-15% of the total bond, So if the bond was $20,000, you would pay $2000 to the bondsman and he would cover the total bond.  The $2000 fee is non-refundable.

(2) Post a Cash Bond: If you post a Cash bond, you will pay 100% of the bond amount. For example, if the Bond is $500, you pay $500. If the bond is $10,000, you would pay $10,000. Once the person’s case is disposed of or complete, the amount posted will be refunded.

To post a cash bond:

• Go to the Jail Public Information Inquiry or call the Jail Information Line at 713-247-5400 / 713-837 – 0311 and type in the necessary information.
• Print the search result page or write down the person’s location, arrest number, name and date of birth.
• For any offense greater than a Class B Misdemeanor take cash along with your photo ID to 49 San Jacinto, Houston, TX 77002 (phone: 713-755-8040). Be prepared to wait in line.

(1/2) Hope for a Personal Recognizance (PR) Bond: a PR bond is where the person is released upon his or her own promise to appear. These bonds are reserved for low-level, low-risk persons with no criminal history. Neither a bondsman nor a cash bond is needed for release. While still unique in Harris County (hence the ½), these bonds are gaining traction.

Third Quarter: Appearing For Court

Bail has been posted, you have been processed and 6-8 hours later you are saying goodbye to your new jailhouse friends. You are dazed. You are confused. You are tired and you are hungry. If anything, keep track of your bond papers. On them, you will find your court number, court date, and court time. In Harris County, the court date could be as soon as the next day. Don’t be late for court, your bond may be revoked. Time to lawyer up.

Fourth Quarter: Odds and Ends

Phone Call: In jail, there will be phone access. If you receive a collect call, answer it and keep it simple. These phone calls are recorded. If the person in jail is calling your cell phone, you’ll need to set up an account at www.GTL.net in order for them to get through to you.

Vehicle Towed: If the person was arrested for an incident involving a car, it was likely towed away. Call the Wrecker tow line, 713-308-8580, or go to houstonpolice.Org, Find my Towed Car, where you can search by license plate and/or VIN number.

If you learn there is no bond (i.e. the person is on probation for another case, on bond for another case, violent charges, or the person is considered a flight-risk) contact a Harris County Criminal Defense Attorney, who will get a bond set (same advice applies if an extremely high bond is set).

Harris County Criminal Justice Map:

by Houston Criminal Defense Attorney

Annual Declaration of Independence Reading – Texas Lawyers

Seven years ago Houston criminal defense attorney Rob Fickman organized the first reading of the Declaration of Independence at the foot of the Harris County Criminal Courthouse. Alongside fourteen other attorneys, the reading represented unification, strength, and freedom. Since 2010, declaration readings have spread across Texas as criminal lawyers send a powerful message in support of all who have placed their lives on the line for American freedom. For 2016, it is anticipated every Texas county will have a representative reading the Declaration of Independence. Quite an accomplishment in seven years and certainlty a powerful message.

 

by Houston Criminal Defense Attorney

Deal or No Deal?

Recent headlines have been filled by criminal charges against NFL star running back Adrian Peterson. From the get go Peterson maintained his innocence. In a statement issued September 15 he said, “I never intended to harm my son. I will say the same thing once I have my day in court”.  On November 3, 2014 his day in court came and when asked how do you plead to the charges, he responded, “no contest”  Wasn’t he just insisting he was innocent? Maybe he was innocent; maybe he wasn’t. Regardless, the system doesn’t care.

The American Injustice System?

Mr. Peterson was formally indicted and charged for the offense of Injury to a Child under Tex. Pen. Code 22.04 (a)(3). This offense is a state jail felony, with a punishment range up to two years in prison and/or up to a $10,000 fine. State jail felony convictions are day for day (i.e. 365 days means 365 days).   He plead “no contest” (i.e. guilty) to reckless assault, a Class A misdemeanor and received a two year deferred adjudication conditioned upon a $4000 fine, plus court costs, and eighty hours of community service. Upon successful completion of the deferred adjudication he will be eligible for a non-disclosure. Make no mistake about it this was a good deal. He avoids jail time; he avoids a felony; he avoids a final conviction; and he can have his record blocked in the future. In just a few months he went from “having his day in court” with the possibility of a felony conviction and up to two years in state jail, to a “no contest” misdemeanor conviction and zero days in an orange jumpsuit.

Welcome to the American Justice System. But he was guilty, you say. Maybe he was, but let’s assume he wasn’t. In fact, let’s assume it was you who was arrested for a crime you did not commit. Let’s assume you faced the very situation Mr. Peterson did, deal or no deal? What if you were wrongfully charged with murder with the possibility of life in prison, but were offered a lesser charge of ten years in prison? Would you take the ten or would you seek your day in court? William Kelly found himself in that very situation and took the ten. Two years later DNA revealed the State had the wrong guy and Mr. Kelly was exonerated. He isn’t alone.

A statistic released by the Innocence Project (an organization dedicated to exonerating those who have been wrongfully convicted) revealed of the three hundred people the project has proven were wrongfully convicted of rape and murder, at least 10%, plead guilty to those crimes. Think about that. Thirty people stood up in court, walked to the bench, looked the judge in the eye, and said they were guilty of a crime they DID NOT COMMIT. Criminologists recently estimated of the 2.2 million Americans in prison, over 2 million are there because of plea bargains. Of those 2 million, somewhere between 2 – 8 % plead guilty to crimes they DID NOT COMMIT. That means 40,000 – 160,000 people are sitting in jail for something they did not do.

But why would an innocent person plead guilty? United States District Court Judge Jed S. Rakoff, in his recent article for the New York Review of Books, “Why Innocent People Plead Guilty” reasoned innocent people often plead guilty to avoid the potential, lurking harsh sentence at trial. He notes the scenario can be seen played out at your local courthouse time and time again. The accused is charged with a crime. The prosecutor offers a lesser punishment or even a lesser charge in exchange for a guilty plea. To assist in making the accused’s decision, the prosecutor threatens with enhancements, additional charges, or “take it or leave it” offers. The court is anxious to move their docket. The prosecutor is anxious to get a conviction. The accused has been living the nightmare for over a year and is tired. The pressure has taken its toll. The deal is accepted. The accused pleads guilty. But, is he? Rakoff expresses his concern that prosecutors have too much power, acting with “virtual impunity”, in determining the fate of an accused.

How did the American Justice System get to this point? Judge Rakoff explains, as crime rates rose over the years, plea bargaining offered a way out. Cases could be resolved without burdening the system with additional trials. The accused could avoid jail or less jail time. The government could get a conviction without using further money, resources, and time.  As crime rates continued to rise (especially drug and violent crimes) and with the passing of “tough on crime” legislation, plea bargains began occurring at extremely high rates.  It is estimated approximately 95% of criminal cases, not dismissed, result in a deal. Judge Rakoff states, the flaw is in deals determined largely by the prosecutor and government policy, with little judicial input.  Subtle, small things such as the mood of a government employee that day can have its effect.  I would add defense attorneys unwilling to set cases for trial add to the high number of plea bargains. The judge expresses the system in the United States has evolved into a far cry from what Thomas Jefferson and co. contemplated, what the movies and television portray, or what the average American believes.  Justice Rakoff isn’t alone in his opinion. The Human Rights Watch, published a 132-page report titled An Offer You Can’t Refuse, highlighting similar problems in today’s justice system.

Of course, the American Justice System is not entirely flawed. It is still the best justice system in the world. Watch any high-profile, foreign case for confirmation.  Further, plea bargains are necessary to keep the system moving.  When done properly, a plea bargain can result in a win for both the accused and the government.  However, if innocent people are pleading guilty to crimes they did not commit; if innocent people are sitting in jail for crimes they did not commit, then our system needs help. There was a time in America where the jury-trial served not only as a truth-seeking mechanism but also as means of achieving fairness.  Have we lost sight of that original goal?

So it begs the question, if you were falsely accused of a crime, what would you do? Deal or No Deal.

by Houston Criminal Defense Attorney

State vs. Michael Phelps – DWI Defense

On October 1, 2014 at 1:40 a.m., Michael Phelps was arrested for Driving While Intoxicated.  Media outlets, sponsors, and high ranking swimming officials have been quick to assume intoxication, but was he?  What follows is an explanation of the events we know occurred, included an explanation of the breath test machine.

The National Highway Traffic and Safety Administration (NHTSA) is the “go-to” authority in detecting possibly impaired drivers.  They developed the Standardized Field Sobriety exercises to assist and coordinate police conduct during DWI stops and investigations.  NHTSA provides a 24 hour (three-day) course that teaches the background, administration and scoring for standardized field sobriety exercises.  The goal is to aid police officers to know when to stop drivers who may be intoxicated and conduct an investigation to confirm or deny their suspicions.  The problem is the police officers may have only taken this class once, often years ago, and often fail to follow the proper procedures and protocol taught by NHTSA.

NHTSA breaks the DWI investigation into three stages:

1) Vehicle in Motion; 2) Personal Contact; 3) Pre-Arrest Screening

The following is based on the FACTS we know thus far.

Phase One Vehicle in Motion:

Phelps was allegedly clocked going “84 in a 45” and “drifting out of his lane”.  Pending evidence the radar was calibrated and used correctly the stop will likely be held lawful.

Speeding is a lawful reason for an officer to stop a citizen.  Speeding is not however, an indication of intoxication.  Common sense would tell you people speed every day, whether or not they have alcohol in their system. NHTSA lists a number of visible cues to identify intoxicated drivers and speeding is not one of them.  Drifting is considered a cue of intoxication, but reading the reports literally one may conclude this was merely a single drift.  If he was traveling 84 mph, in a range rover, a drift would be expected and normal.  The highest criminal court in Texas, the Court of Criminal Appeals has said this much, stating “driving in and of itself is controlled weaving”.

At this stage it is unknown whether or not a video from the police vehicle exists.  If a video exists it may clear up some of the above.  If a video does not exist, it can be inferred it was favorable to Mr. Phelps.

Phase Two: Personal Contact:

Personal contact encompasses the face-to-face encounter with the officer and the subject (Mr. Phelps).  During this phase the officer should be making the decision whether or not he will have the subject perform the field sobriety exercises.  The officer is using his sense of sight, sense of hearing, and sense of smell sight in making the decision.

Sight:  The officer noted Red/Bloodshot Eyes;

Sound: The officer noted “mushed speech” and “admission to drinking”

Smell:  officer noted “smelled alcohol”

(other clues the officer could have noted but did not are soiled clothing, fumbling fingers, alcohol container, drugs or drug paraphernalia, bruises, bumps, or scratches, unusual actions, inconsistent responses, abusive language, unusual statements, “cover up” odors, etc.)

Red/Bloodshot eyes:  The officer is taught there are a number of things other than alcohol that can cause red/bloodshot eyes.  Fatigue is one.  We know Phelps came from a casino; It was almost 2 a.m.; he had been staring at cards and dice for hours; there may have been cigarrete smoke in close proximity.  I have been to a Casino or two in my day.  I have played cards.  I have never left a casino floor without red/bloodshot eyes.  Red/Bloodshot eyes in Phelps’ situation is normal.

Smelled Alcohol/Admission to Drinking:  Phelps said he had “3-4 beers”.  Despite what prominent Texas billboards may say it is not against the law to drink and drive.  Admitting to “3-4 beers” and smelling like alcohol is normal.

Mushed Speech”: Did the officer mean slurred speech?  A scene video would help explain “mushed speech”.  It would also be interesting to compare interviews Phelps has done over the years vs. how he sounds on the police video.  Mushed speech is not recognized by NHTSA as a sign of intoxication.

Phase Three: Pre-Arrest Screening (the field sobriety exercises):

a) Horizontal Gaze Nystagmus (HGN or “pen” test)

During the HGN test the officer has the suspect follow the motion of a small stimulus (i.e. pen) with their eyes only.  The officer is looking for involuntary jerking or bouncing of the eyes as they move toward the side.  Each eye is examined for three specific clues (6 total clues).

While I have yet to find a report indicating whether or not Phelps failed this test, my experience in how officers grade this test tells me he did.  I once had an officer fail an individual (6 clues) with only one eye (the other eye was a glass eye).  There are a number of factors that can effect the results of the HGN test.   For example, the test must be administered properly (happens less often than you would think); Additionally, there are multiple types of nystagmus unrelated and indecipherable from alcohol related nystagums.

A scene video would be the best indication to whether the test was administered properly.

b) Walk and Turn (walk the line)

We are told Phelps broke-heel-to toe stance; counted out loud; had difficulty with balance while walking; and had difficulty with balance while turning.

The clues the officer is trained to look for are: cannot balance during instructions (i.e. breaking heel-to-toe during the instruction phase); starts too soon; stops while walking; does not touch heel-to-toe (i.e. 1/2+ space between heel and toe an any step); Steps off line; Uses arms for balance (i.e. raising arms for balance more than 6″); Improper Turn; and incorrect number of steps.  If the officer notes 2/8 clues, you fail.  In fact, you can fail this test before you have taken a single step (see cannot balance during instructions and starts too soon).  In Phelps’ case the only standardized clue noted is broke heel-to-toe stance or cannot balance during instructions.  That would be 1/8 clues and a passing grade.  Without seeing the report, I’m assuming the officer added uses arms for balance and improper turn.  Giving Phelps 3/8 clues and meaning he did more things right than wrong.  Counting out loud is not a clue and the officer actually instructs the subject to count out loud during this exercise.

c) One Leg Stand

Here the officer is taught the four standardized clues are: sways while balancing; uses arms for balance; hops; puts foot down.  2/4 clues is an indication of impairment.

From what we know, Phelps “swayed slightly” and “didn’t look at elevated foot”.  I won’t address not looking at the elevated foot because that is not a standardized clue.  Subtracting that we are left with “swayed slightly”.  Again, a video would assist to see just how much sway there was, but even if Phelps did sway (remember he is on one leg), that would only be 1/4 clues and a passing grade on the one leg stand.

THE BREATH TEST = 0.14 –

Note: the breath test is being examined under the machine used in Texas (Intox5000EN)

The breath test machine currently in use in Texas is the Intoxilyzer 5000EN, manufactured by CMI, Inc.  CMI continues to service Texas’ machines, but the machine itself has been replaced at CMI by the Intoxilyzer 8000 and now the Intoxilyzer 9000.  Needless to say the Intoxilyzer500EN is outdated.  In fact it uses the same micro processing chip as ATARI.  Remember pong?

http://youtu.be/5uuxFhUc8tg

In Texas, intoxication must be proved at the time of driving, not the time of the test.  The time of the breath test is certainly important.  If the test was a few hours later the State will be unable to prove Michael Phelps was over 0.08 at the time he was driving.

Additionally, in order for there to be a valid test, and to protect against “residual mouth alcohol” (think a burp, belch, regurgitate, etc.), a certified breath test operator MUST administer a 15 minute waiting or observation period.  If this is not done correctly, the test is not considered scientifically reliable and is inadmissible as evidence.

Speaking of science, the 0.14 could be walked down to below a 0.8 taking into consideration:

– The machine’s recognized tolerance of +/- 0.02 (i.e. 0.12)

– The machines recognized potential error of +/- 0.01 (i.e. 0.11)

– The machines partition ratio.  The partition ration is the assumption the concentration of alcohol in the person’s blood is 2100 time the concentration of alcohol in the person’s breath or 2100/1.  Why does this matter?  The partition ration can affect the overall result and studies have shown the ratio can vary from 1000/1 to 3005/1.  Taking the 0.11, and using a partition ratio of 1000/1 would put Mr. Phelps at (0.11/2100 * 1000 = ) at 0.05, well below the illegal 0.08.

– Breath Temperature, Interferents,  Acid Reflux Disease, Breathing Patterns, etc. are all things that can influence a false high on the machine.

In conclusion, after seeing Mr. Phelps’ video and assuming he looks normal, his case is certainly defendable.  People trust their eyes.  If he looks good on video, if he doesn’t look intoxicated, jurors will trust what they see over the mysterious machine that should have been retired long ago with ATARI.  A machine the manufacturer, CMI, refuses to warrant “fit for its intended purpose”.  While the media is quick to assume Mr. Phelps was intoxicated, the FACTS seem to weave a different story.

 

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by Houston Criminal Defense Attorney

Collateral Consequences of Criminal Convictions

Posted By: ADAMO / ADAMO

A criminal conviction can follow you around like luggage.

So before you enter into a plea of guilty you need to understand the potential consequences of doing so.  If you are charged with a drug, sex, or violent offense you need to be on high alert.

I. Possible Financial Consequences

1. Loss of Employment

FELONY CONVICTIONS and convictions for CRIMES OF MORAL TURPITUDE* can lead to the automatic revocation of and ineligibility for a wide variety of federal and state licenses.  Once upon a time, one could enter a plea of deferred adjudication and be assured the offense would never be used against them.  This has since changed, and deferreds are routinely used as disqualifications to employment.

To see a list of potential Texas licenses that may be impacted click here.

*A Crime of Moral Turpitude includes, but is not limited to: Issuance of a bad check with the intent to defraud; prostitution; theft; swindling; false report to police officer; assault by a man against a woman; indecent exposure; bigamy by a lawyer; failure to identify; delivery of a controlled substance; violation of a protective order involving family violence; failure to stop and render aid (sometimes).

2. Loss of Funding and Assistance

A. Education Funding

i. Federal Loans/Grants

• Federal education grants are unavailable to those incarcerated in federal or state penal institutions (self-explanatory).  A conviction for possession or sale of a controlled substance can make a person temporarily or permanently ineligible for federal loans or grants under the Drug Free Student Loans Act of 1998.

ii. State Loans/Grants

• Similarly, Tex. Ed. Code §54.633 states one who commits a felony or class A misdemeanor, or an offense under the Texas Controlled Substances Act, forfeits a prepaid higher education scholarship.  This includes offenses of possession of marijuana, possession or delivery of drug paraphernalia, and falsification of drug test results.  Thus, even a minor Class C misdemeanor offense (i.e. drug paraphernalia) may result in the loss of education funding.
• Many schools have adopted “zero tolerance” policies covering potential consequences for any type of criminal offense occuring both on and off campus grounds.  Check your schools disciplinary code for additional information.

B. Federally Funded Assistance Programs

• Lifetime ban on food stamps and federally funded public assistance for felony drug convictions. 21 USC 862a.
• Mandatory ineligibility for federal health care benefits for federal distribution convictions. 42 USC 1320a-7.
• Federal grant, license contracts, and other benefits are restricted for felony drug convictions.  21 USC 862.
• Exclusion of federal subsidized or funded housing for drug offenders.  42 USC 1437(1)(b).

C. Asset Forfeiture

• Asset forfeiture is a possibility in both state and federal courts.  Your home, business, automobiles, and “cash stash” can all become property of the government.  Asset forfeiture typically applies in narcotic cases, but if you are charged with a Felony DWI your vehicle may be forfeited.  In order for the government to successfully become owners of your property they must prove, generally, that the asset is “connected to” the charged offense or criminal activity.

D. Surcharges (paid to keep your license)

• Certain convictions result in license suspensions and surcharges.
  • DWI – 1st offense = $1,000 per year for 3 years;
  • DWI – 2nd offense = $1500 per year for 3 years;
  • DWI – BAC > 0.16 = $2000 per year for 3 years;
  • Driving with Invalid License = $250 per year for 3 years.

II.  Possible Rights and Privilege Consequences

A. Possession of Firearms

i. Texas Law

• A convicted felon is prohibited from possessing a firearm.  Tex. Pen. Code §46.04.  This includes an individual placed on probation, unless their “rights have been restored” under Tex. Code Crim. Proc. art. 42.12 §20 where the court sets aside the veridic or permits the defendant to withdraw the plea and dismisses the complaint.
• A conviction of misdemeanor family violence under Tex. Pen. Code §22.01, prohibits a person from possessing a firearm before the fifth anniversary of the later of: (1) the release from confinement or (2) the date of discharge from probation.  Tex. Pen. Code 46.04(b).
• A conviction will affect a person’s ability to obtain a concealed handgun license (CHL).  Tex. Gov. Code § 411.172.
• Texas law allows a convicted felon to possess a gun at his/her residence after five years has passed since the release from confinement or community supervision, parole or mandatory supervision, whichever date is later.  Tex. Pen. Code §46.04.

But…

In Texas you must pay attention to federal laws too.  Courts have ruled, if a state law has any exception to the restoration of rights regarding firearms (and Texas does under Tex. Code Crim. Proc. art. 42.12 §20) then the felony conviction prohibits one from possessing, transporting, etc. firearms and ammunition.  524 U.S. 308.  See also U.S. v. Daugherty, 264 F3d 513 (5th Cir. 2001) (where the court affirmed the conviction of felon in possession who had successfully completed probation).

ii. Federal Law

• A conviction for an offense carrying a maximum punishment of more than one year in prison prohibits the person from possessing, shipping, receiving, or transporting a firearm or ammunition.  18 USC 922(g).
• If a person is has been placed on deferred adjudication or is still under indictment they are prohibited from acquiring firearms or ammunition.
• A person convicted of misdemeanor domestic violence is prohibited from possessing, shipping, receiving, or transporting a firearm.  18 USC 922(g)(9).

B. Driver’s License Restrictions

Graffiti	Discretionary one year suspension.
Racing (under 18 years of age)	Mandatory one year suspension
Theft of Motor Fuel	180 days for 1st offense;1 year for 2nd offense
Furnishing Alcohol to a Minor	180 days for 1st offense;1 year for 2nd offense
Possession of Fake I.D.; Allowing another to use one’s Driver’s License; Falsifying information on an application for a driver’s license; Using a driver’s license to represent one is over 21 when they are under 21	90 days – 1 year
Criminally Negligent Homicide (with a motor vehicle); Evading arrest; Intoxication assault; DWI with Child Passenger; Intoxication manslaughter; Any State Jail Felony offense with a motor vehicle involving personal injury or death	1 year suspension
Alcohol/Drugs and Minors: DWI, Minor (under 21); Purchase or attempt to purchase alcohol by minor; Drug offense under the Tex. Controlled Substance Act	1 year suspension (with exceptions);30 days – 1st offense; 60 days – 2nd offense; 180 days – 3rd offense; 180 days – 1 year
Drug offense under the Tex. Controlled Substance Act (adult)	180 days

C. Loss of Passport Privileges

• An issued passport may be revoked, even for misdemeanor drug offense, if the government finds that the criminal offense should give rise to such disqualifications.  22 USC 2714(b)(2).

D. Civil Rights

1. Voting: a convicted felon may not vote in a public election.  A conviction is considered final whether the sentence is imposed immediately or suspended (i.e. probation).   A convictions is not final if it is on appeal.  This ineligibility lasts until the offender has been “…fully discharged…or completed a period of probation ordered by the court.”  Tex. Election Code §11.002(4).

2. Public Office:  A convicted felon may not run for, or be appointed to, public elective office in Texas.  Probation counts as a conviction.  Except in limited circumstances (i.e. pardon), the offender is barred from life.

3. Jury Service:  A person convicted of, or currently charged with a misdemeanor theft may not serve on a jury.  This may apply to one serving a deferred adjudication.

E. Divorce/Child Custody

1. Evidence of abusive physical force against a spouse, child’s parent, or any person younger than 18 years of age and within two (2) years of a divorce being filed can be considered in regard to sole or joint conservatorship.  Tex. Family Code §153.004.

2. Evidence of a history or pattern of physical or sexual abuse may be considered by the court in awarding joint managing conservatorship (JMC).  A finding of such removes the presumption that the appointment of parents as JMC’s is in the best interest of the child.

3. The court may not allow access to a child if it is shown by a preponderance of evidence there is a history or pattern of family violence during the two (2) years preceding the date of filing the lawsuit.

4.   A conservator convicted or placed on deferred adjudication for:  indecency with a child; sexual assault, or aggravated sexual assault, is considered a material and substantial change of circumstances sufficient to justify a temporary order and modification of an existing order regarding conservatorship or possession and access to a child.  Tex. Family Code §156.104(a).

5.  A party may obtain a protective order if there are facts and circumstances of family violence.

F. Sex Offender Registration:  results in the imposition of significant restrictions and requirements, including losing your right to privacy in             electronic communication or data.

III. Immigration Consequences

if you are not a citizen of the United States you should consult an immigration attorney while your criminal case is pending.  Your criminal defense attorney may be able to refer you to a qualified immigration attorney.

1. Deportation/Removal

• You are not a U.S. citizen; AND
  • you commit a crime of moral turpitude;
    • with a punishment range of at least one year; AND
    • the crime is committed within five (5) years after admission to the United States or you commit two or more crimes that did not arise out of a single scheme of criminal misconduct any time after admission to the United States.

OR

• you commit an “aggravated felony”.
  • For an extensive list of what constitutes an aggravated felony see §101(a)(43) of the Immigration and Nationality Act (INA).
    • Examples include such crimes as murder; rape; drug or firearms trafficking; sexual abuse of a minor; child pornography; money laundering; fraud; tax evasion greater than $10,000; theft or violent crime with a sentence order of a least one year; treason; perjury with a sentence of at least one year; etc.
  • See also §247 of the INA for additional deportable offenses.

• Under 101(a)(48)(A) of the INA the definition of a conviction includes deferred adjudication.

The importance of knowing these issues can not be understated.  Too often we receive phone calls from individuals unable to escape the cloud of previous mistakes.  Make sure you are under the guidance of a qualified attorney.  BE PREPARED.

 

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