by Houston Criminal Defense AttorneyVeteran Day
A Salute to all those who put their life on the line for this great nation!
by Houston Criminal Defense AttorneyTexas Gun Laws
Are you an advocate for 2nd Amendment or an activist for gun control?
Do you agree “guns don’t kill people…” or do you agree with Chris Rock’s “bullet control” theory?
Regardless of where you fall on this hotly contested issue, regardless of your beliefs, if you reside in Texas you reside in a pro-gun state.
What follows is an explanation of Texas gun laws as of today’s writing, including amendments that will go into effect for 2016.
Legal Definitions to Know
“Firearm” means what you think it means. A “Handgun” means what you think it means.
Who Can’t Own A Gun?
Federal Law is more restrictive than Texas Law. You should be aware of both.
Under Federal Law you cannot own a gun if you:
- have been convicted of a crime punishable by imprisonment for a term exceeding one year (lifetime ban, unless released from this provision by a court order or pardon);
- have been convicted of domestic violence;
- are a fugitive (i.e. on the run);
- are an unlawful alien or renounced U.S. Citizenship;
- received dishonorable discharge from the armed forces;
- are subject to a restraining order/protective order against an intimate partner or child of an intimate partner;
- have been adjudicated as a mental defective, been committed to a mental institution or are an unlawful user of, or addicted to any controlled substance.
Under Texas Law you cannot own a gun if you:
- have been previously convicted of a felony (exception for deferred adjudication and the ban extends for five years from the latest of your prison release date or release from community supervision);
- have a domestic violence conviction (same five year eligibility requirement as above);
- are subject to a restraining order or protective order.
The Dos:
If you passed the first section and are legally allowed to own a gun, then…
Do: Carry a handgun on your person if you are licensed to carry and the handgun is concealed or in a holster (beginning 2016).
Do: Transport a handgun in your car if you are licensed and it is in your holster.
Do: Carry or transport a shotgun or rifle.
Texas law permits most persons to carry or transport shotguns or rifles regardless of whether the firearm is concealed or in plain view.
Do: Keep your gun in a locked container or on “safety” at home.
Tex. Pen. Code. Section 46.13 makes it a crime if a child under the age of 17 is able to gain access to a firearm at your home.
Do: Feel safe to bring your weapon with you on a hunting or fishing trip. So long as the weapon is one commonly used in that activity.
Do: Bring your gun on a road trip (but keep your road trip in Texas).
Do: Bring your handgun with you to and from work (as long as it is not done habitually and you have permission from the owner of the premises).
The Do Nots (excluding some of the obvious)
Do Not: Transport a handgun in your car or someone else’s car in plain view (license or not).
Do Not: Carry while intoxicated (license or not).
Do Not: Carry into Six Flags, Sea World, or any amusement park (license or not).
Do Not: Carry into church (license or not).
Do Not: Carry into a liquor store, bar, restaurant, convenience store, or any licensed to sell alcohol or with a sign like that looks like this…
Do Not: Sell, rent, loan, or give a handgun to a child.
There is a provision allowing a person to sell, rent, loan, or give a handgun to a child, if you have written consent from the parents. The safer practice is to stay clear.
Do Not: Carry into a racetrack.
Do Not: Carry into a sporting event.
Do Not: Carry into a school or school sponsored event.
An exception is discussed below regarding public and private colleges.
Special Provisions:
Public and Private Universities:
Beginning in 2016 licensed handgun owners may carry concealed handguns in permitted areas of universities. Public universities are required to implement regulations and notices for such areas. Private institutions may opt out all together prohibiting handguns. Displaying your handgun or showing off your handgun is not allowed.
Defending your home and property:
A popular question for any defense attorneys.
In short:
You can stand your ground and defend your home and property with force, even deadly force, provided you believe deadly force is immediately necessary to protect yourself or someone has broken into your home.
In certain circumstances this law extends to your neighbor’s property as well.
Conclusion
The above is the “cliff-notes” edition of general gun rights in Texas. Rights, duties, and responsibilities under both Federal Law and Texas Law may change at any time. Staying on top of current gun laws is necessary to ensure you are responsibly carrying.
by Houston Criminal Defense AttorneyWANTED – dealing with an active warrant
We have a received a lot of phone calls recently from individuals that have active warrants for their arrest and want to know what the next step is.
While most charges are filed at the time of arrest, in some instances a crime is investigated, then presented to a district attorney (state crimes) or U.S. attorney (federal crimes) who files charges. Because you are not yet in custody a warrant is issued.
Typically you learn of the warrant because your mailbox gets stuffed with solicitation from bonding companies and attorneys. Other times you may learn an officer has come around your home or place of business. Your attorney may be in contact with the lead detective who will notify him/her of the warrant. Lastly, you may actually get picked up by an officer. If you are arrested, go peacefully and respectfully. You will have your time to fight the allegations, but that time is not when the officer is attempting to arrest you. If you are interrogated, simply state, “You would be happy to cooperate with your attorney present (and request your attorney).”
If you have an active warrant and are not yet under arrest the next step is turning yourself in. An attorney can assist you in this process. If a bond has already been set, and the crime is eligible for what is known as a “walk through” and you will spend very little time in custody before being bonded out. If a bond is not set, you will have to turn yourself in and have your attorney approach the judge who has jurisdiction over the case to ask for a reasonable bond. Once a bond is set the bonding process can begin. If a bond is set, but the alleged crime is not eligible for a “walk through” you will have to appear before a judge or magistrate to receive your admonishments (crimes not eligible for a “walk through” include assault, domestic violence, sexual assault, etc.)
Expected wait times:
- Walk through – approximately 1 hour
- Bond, but not eligible for walk through – 8 – 24 hours (depending on when you are able to get in front of a magistrate/judge)
- No Bond – 24 hours +
It is important to know that ignoring the warrant will not result in the charges going away. Turning yourself in with adequate legal representation is the first step towards the path of freedom.
by Houston Criminal Defense AttorneyWhat Happens in the Law Firm, Stays in the Law Firm: Attorney-Client Privilege
The Attorney-Client Privilege
The attorney-client privilege allows lawyers and clients to communicate freely. The attorney-client relationship hinges on communication. Communication helps the lawyer avoid surprises, obtain a quality result, and keep their client’s mind at ease.
More specifically, the attorney-client privilege protects confidential information learned by an attorney before and after being retained. So, most communications you have while looking for an attorney to hire will be protected. For the privilege to apply the communication must be made for the purpose of helping a lawyer provide legal services to the client and the communication must be confidential. See Texas Rules of Evidence 503 and Federal Rules of Evidence 501. This privilege extends to the attorney’s employees (e.g. paralegal) as well.
The attorney-client privilege belongs to you, the client, and certain safeguards must be implemented to ensure it is not waived.
How can the Attorney-Client Privilege can be waived?
Two examples of how the attorney-client privilege can be waived are:
- Client relays to the attorney they are ABOUT TO COMMIT an act that will likely end in death or substantial bodily harm to another person. Under these circumstances the attorney is required, under the law, to disclose the confidential communication.
- 3rd party waiver – “Loose Lips, Sink Ships.” Confidential information relayed to someone other than your attorney can waive the attorney-client privilege. This includes family members, friends, co-workers, partners, etc. For example, sending an email discussing facts of the case to someone other than your attorney can waive the privilege and later be used against you in court.
The attorney-client privilege is an important tool necessary for effective representation. As the client, you should feel comfortable and confident that communications with your lawyer will remain confidential. Understanding the privilege can help you rest easy knowing what happens in the law firm, stays in the law firm.
Disclaimer: This information is for informative purposes and does not establish a legal relationship. Every case is different and you should contact a qualified attorney to assist you.
by Houston Criminal Defense AttorneyNew Laws in effect for 2015
Scroll Below for new laws in effect for 2015.
by Houston Criminal Defense Attorney254 Texas Courthouses
Need a Texas Courthouse? There is a pic for that.
Credit to birdshooter.smugmug.com
by Houston Criminal Defense AttorneyWolf Inside the Chicken Coop – Visiting the DPS Crime Lab
Today DPS opened up their doors allowing us an inside look at their crime lab. In particular we were given presentations on DNA, Ballistics, Evidence Reception, Breath Alcohol and Blood Alcohol Testing, and Drug Testing. The experience was one every criminal defense attorney should undertake.
Receiving Evidence
Receiving Evidence
Why the method of receiving evidence is important?
A major concern with evidence of any kind, but especially biological evidence is contamination. Contamination can come from a number of sources. The receiving department has the responsibility of ensuring the integrity of the evidence has not been compromised. Compromised evidence can lead to wrongful convictions. Under the law the chain of custody must be known before any evidence is admitted into court (i.e. who handled the evidence and when did they handle it). The receiving department assists in ensuring the chain of custody is accurate and proper.
What to look for:
How was the package sealed?
- How is it taped?
- Is there evidence tape?
- Were staples used?
- Is the package torn or ripped?
- Is the package opened?
- Is there a proper chain of custody?
Trace Evidence
Trace evidence occurs when objects contact. Examples include, hairs, paint, shoe prints, fingerprints, glove prints, etc. Below are some of the machines used by DPS to attempt to reconstruct the crime scene using trace evidence.
Breath Test
While there has been a bit of delay for the release of the Intox9000, the anticipated release date is January 1, 2016. The Intox9000 will replace the Intox5000, which has provided breath alcohol samples since the early 80s. While there are a few new gadgets on the Intox9000, in essence it is simply a more user friendly version of the Intox5000. Meaning there are still a number of issues concerning its accuracy and reliability.
During this presentation it must be noted, when asked about the delay on the Intox9000, it was denied. Also, when asked by an individual if the Intox machines were in vehicles, the DPS employee responded they would never put one in a car. This is 100% false, as they have done just that (known as the BAT Van).
Intoxilyzer Breath Machines – 5000s and 9000s
Blood Alcohol Testing
The Gas Chromatograph – Flame Ionization Detector (GC-FID) pictured below is used to qualify and quantify alcohol in blood. This machine is based on separation science. As an example, picture a sloped driveway. You are standing by the garage with a number of different sports balls in front of you (e.g. basketballs, footballs, soccer balls, baseballs, golf Balls, etc.). As you turn the blower on and point it towards the balls, they will begin traveling toward the bottom of the driveway. Eventually they will all reach the base of the driveway, doing so at different speeds. Think of molecules in blood as those balls. The machine is able to identify the molecules (i.e. ethanol) via the speed at which they travel through the machine. Once the molecule has been qualified (identified), it can then be quantified.
Of note: DPS employees listed on the dry erase board the highest BACs of the year. Directly in front of that board was Garriott’s Medicolwegal Aspects of Alcohol, a book written by the leading scientists regarding alcohol. The three BACs listed on the dry-erase board were all well over 0.40. When asked, “0.40? Shouldn’t the person be dead?”, the DPS employees response, “Yes, they should be.” Yet the result was considered valid and business as usual? Despite the leading scientists stating death is a real possibility at 0.30? Disturbing answer.
Gas Chromatograph – Flame Ionization Detector (GC-FID)
Drug Testing
After a positive presumptive test. Drugs are then run through the Gas Chromatograph – Mass Spectrometry (GC-MS) for a confirmatory test. Similar to blood alcohol testing this science is based on separation.
Gas Chromatograph – Mass Spectrometry (GC-MS)
Ballistics
Think gun residue, shooting distance, serial # restoration, bullet cartridges, etc.
DNA
Specifically fingerprints and bodily fluids used to obtain information on potential suspects.
While it was difficult not to turn the presentation into a colorful cross-examination, the experience was both invaluable and informative. We appreciated the opportunity to take a look inside the chicken coop.
by Houston Criminal Defense AttorneyDestroying your neighbors irritating drone.
In an episode from the hit series TV show Modern Family, Phil, Luke, and Manny go to great lengths in an attempt to destroy the neighbors irritating drone.
Phil isn’t alone. With the increasing number of hobbyist drones, the suburban airspaces have turned into minor battlefields. The question becomes, is it legal to destroy your neighbor’s drone? In most instances no, of course, as with anything there are a few exceptions.
The History of Drones in the United States
A drone or unmanned aircraft vehicle (UAV) is an aircraft without a human pilot. Innovation for today’s drones began in the early 1900s as a way to train military personnel. Little more than remote-controlled airplanes, the drones were modified in the 1960s with the U.S., concerned about losing pilots during the Vietnam War began deploying drones for high-risk flying operations. Heading into the early 1990s and with technology advancing, the U.S. unveiled their armed UAV lineup for the Gulf War.
While drones were developed for and associated with military applications, they have become more common in everyday urban and rural life. Modern UAVs are used for aerial surveillance of crops, footage in filming, search and rescue operations, inspection of power lines and pipelines, counting wildlife, delivering supplies, crowd monitoring, etc. UAVs have also become a trendy hobby for people, which is why you may not be all that thrilled about your neighbors new toy.
Is it legal for your neighbor to fly a UAV?
Yes, although there are limitations on using drones and capturing images of persons on private property and images of private real property. See Texas Government Code, Section 423. Look for the laws surrounding drones to change and develop as people continue to take their latest hobby to the air.
Can I destroy my neighbors flying UAV because I don’t like it?
No. In fact you can be prosecuted under Federal Law 18 U.S.C. Section 32, stating in part:
(a) whoever willfully-
(1) sets fire to, damages, destroys, disables, or wrecks any aircraft in the special aircraft jurisdiction of the United States or any civil aircraft used, operated, or employed in interstate, overseas, or foreign air commerce
…shall be fined…or imprisoned not more than 20 years.
In 2011 the National Transportation Safety Board declared a drone an aircraft subject to FAA regulations. In other words the aforementioned Federal Law criminalizing the destruction of an aircraft applies to your neighbor’s irritating, drone hovering over your backyard.
What if I am under attack from my neighbor’s drone?
While self-defense has always had a bit of grey area in its application, if you believe force is immediately necessary to protect you, your family, or even your neighbors property, then yes you can take it down. Is the drone equipped with ammo? You can destroy. Is the drone trying to ram you? You can destroy.
What if the drone lands on my yard?
Unlike airspace (government property), your yard is your property. However, that doesn’t mean you can take a Louisville Slugger to the drone. In Texas, you may defend your property, but you must believe you are under attack.
What if the drone flies into my home?
If the drone comes crashing through your window and lands in your home, feel free to channel your inner – Dwayne “The Rock” Johnson and dust off your best “people’s elbow.”
Under the law, self defense may be used if a person unlawfully and with force enters your home. Here a drone (via a person) has unlawfully and with force entered your home.
What if the drone is a “Peeping Tom?”
Just because someone is snapping photos of you, doesn’t mean you can take a crane kick to their face.
So, technically speaking under Federal Law it seems you could be prosecuted for destroying or damaging the drone. Practically speaking, however, I find it difficult to believe any jury would find you at fault. On the other hand, the owner of the drone could face a variety of criminal penalties depending on what type, if any, images were captured.
Back to Phil…
So was Phil breaking the law? Maybe.
Under Federal Law, Phil could be prosecuted. Of course, he would argue that he was only defending himself and his family from the attacking drone. This may keep him out of harms way. That is of course if investigators believe he was in fact under attack and in fear of his or his family’s life.
Officers may take the easier route and just charge him indecent exposure (1:10) and Manny with theft (of the bike, 0:39).
What you should do.
If you encounter an irritating drone around your home, call the police. In most instances you should stay clear from destroying, damaging, or attempting to destroy or damage a drone. Just because you see a drone in the sky, doesn’t mean it is coming after you. While there are exceptions to the law, taking action (even if legally justified) does not mean you are “scot-free.” Not only could you find yourself facing a criminal investigation but civil penalties as well.
Because “droning” is relatively a new hobby, it will take time for laws to catch up. in the meantime realize the hobbyist controlling the drone is most likely just taking the toy out for a quick spin. If the drone makes you uncomfortable notify the proper authorities.
by Houston Criminal Defense Attorney10 Things You Should Know During a Traffic Stop
A recent article is circulating regarding 10 things one should know during a traffic stop. While some of the information is true, a few pieces are both confusing and untrue.
1) You have the right to remain silent, but upon request should produce your correct name, address, driver’s license & insurance.
2) If an officer has reasonable suspicion or probable cause a crime is or will be committed he/she can ask you to step out of the vehicle.
3) You have the right to ask the officer, why you are being ordered out of the vehicle, but he does not have to answer or give you a reason.
4) You can ask if you are free to leave. If the officer says yes, you may leave. If the officer says no, consider yourself detained for further investigation. Remember your right to remain silent.
5) You can ask if you are under arrest. If the officer says no, ask if you may leave. If the officer says you are under arrest, do not resist. Remember your right to remain silent.
7) You have the right to disagree with the officer, but your right does not extend to being physical with the officer.
8) You have the right to record, and in most instances are being recorded by the police vehicle’s dash camera.
9) You CAN absolutely refuse permission to search your vehicle.
10) Understand less is more. The officer may not have reasonable suspicion to detain or probable cause to arrest you. Don’t provide it by thinking you can talk your way out of the situation.