August 2015

Is it a violation of one's Fourth Amendment rights against unreasonable warrantless search and seizure if an officer finds drugs in a vehicle through a nonconsensual search?  The United States Court of Appeals for the 5th Circuit said YES in United States v. Cotton.

U.S. v. Cotton- In February 2011, Appellant was driving his rental car when he was pulled over by a police officer who had received a tip that Appellant may be carrying drugs. The officer conducted a traffic stop and asked Appellant twice for consent to search his car. Appellant replied both times that the officer could search only his luggage. After searching through Appellant's luggage, the officer examined the driver side rear door, which had loose screws and tool marks. The officer pried back the door panel and discovered crack cocaine inside. The officer arrested Appellant who then made incriminating statements to the officer.

The 5th Circuit held that the officer impermissibly extended his search beyond the scope of the Appellant's consent and therefore violated the Appellant's Fourth Amendment right. According to the 5th Circuit, "when conducting a warrantless search of a vehicle based on consent, officers have no more authority to search than it appears was given by consent." Appellant's consent allowed the officer to only search luggage in areas of the car where luggage might be found. The officer exceeded the bounds of his limited consent when, instead of only searching the luggage, he searched the entire vehicle for drugs.

The 5th Circuit compared Cotton to U.S. v. Solis, which involved an officer who unexpectedly came across heroin during a consensual search of a defendant's bedroom. When the officer moved a cooler to use as a step, heroin was revealed. The defendant sought to suppress the evidence but the 5th Circuit held that because the cooler was moved only to effectuate the search for the gun, for which consent had been voluntarily given, the officer did not exceed the scope of the consent. Therefore, the heroin was admissible evidence.

However, in Cotton, after searching Appellant's luggage, the officer expanded his search by examining other parts of the car. The 5th Circuit held that because the officer did not have authority to search discrete locations where luggage would not likely be found, evidence of the crack cocaine must be suppressed as the officer violated Appellant's Fourth Amendment right.

If your 4th Amendment rights have been violated and you are facing criminal prosecution, give us a call for a free consultation.  Our attorneys will aggressively defend your rights against government intrusion.

Why did I get a letter from Wal-Mart demanding that I pay them $350?

When a person is arrested for theft or shoplifting in Fort Worth and comes to consult with one of our Fort Worth criminal defense attorneys, one of the most common issues we're asked about is what to do about a civil demand letter.

What is a civil demand letter?

When a person is arrested for shoplifting, many times the larger retailers will follow up the arrest with a civil demand letter. These letters demand payment of a civil penalty to the retailer. Typically, these letters will be sent directly from the store, a law firm or debt collector and they usually ask for between $200.00 - $400.00 (regardless of the amount that was stolen). The key to remember is that this is civil demand and is separate from the criminal case. What happens with the civil demand letter will have no bearing on the criminal case.

Should I pay Wal-Mart on the demand letter?

Your options when you receive a dmeand letter after an arrest for theft are:

1. Pay the penalty if you want to stop the letters from being sent, or
2. Don't pay and force them to sue if they choose to.

Technically, the amount that the store is demanding is not owed but is something the store feels like it could sue for. What's important to remember is that for a store to sue a shoplifter for these types of damages, they would have to pursue their cause of action under the Texas Theft Liability Act.

What if the store recovered the property on the scene?

Under this act, a person may be liable for damages resulting from the theft. But, the act specifically states that a store may only recover the amount of actual damages sustained not to exceed $1000.00. The key term here is "actual damages." In the majority of shoplifting cases, the property being stolen is recovered. In that case, there would be no "actual damages" because the store has not suffered any true loss. If so, the store would not be able to prove that they've suffered any actual damages and would not be able to recover a judgment.

So, whether or not they would be successful in a lawsuit is one issue. Another is whether the retailer feels like expending the fees to bring a suit is even worth it if even the most they could recover would be $1000.00. I have yet to have a client (and have yet to speak with any other attorneys with clients) who has received one of these letters being actually sued by one of these retailers - regardless of whether they pay or not.

Ultimately, whether you pay a retailer after receiving one of these civil demand letters is up to you. But, don't expect the trial of the century if you don't.

Contact our Fort Worth Theft Defense Attorneys if You Have Received a Civil Demand Letter

Our criminal defense attorneys, with offices in Fort Worth, Keller, and Grapevine, are experienced in all types of theft cases in Tarrant County. Contact us today for a FREE consultation at (817) 993-9249.

Tarrant County Veterans Court Programs | Fort Worth Criminal Defense Lawyers

Texas has more military veterans than any other state. In the wake of the recent wars in Iraq and Afghanistan, many have difficulty transitioning from military service to civilian life. Some veterans suffer from PTSD or Traumatic Brain Injuries and others fall into addiction. Plagued by these ailments, some Texas veterans find themselves in the criminal justice system.

Recognizing a need, Texas has led the nation in addressing veteran criminal issues through special courts. Beginning in 2009, these court were designed to provide treatment and accountability for veterans in an effort to keep them out of the criminal justice system. There are currently 20 veterans courts in the state.

Under current law, which created the veterans courts programs, only veterans who suffer from an injury received while serving in a combat zone or other similar hazardous duty area are eligible to participate in a veterans court. Some veterans that have suffered similar injuries the occurred outside of a combat zone are not eligible despite the fact that the struggle for rehabilitation remains the same.

This has been a point of frustration for Fort Worth criminal defense attorneys who regularly handle cases involving Texas veterans.  We were often met with opposition when trying to admit a veteran to the specialty court program.

New Legislation Expands Veterans Court Eligibility

S.B. 1474, which takes effect on 9/1/15, broadens the eligibility for veteran participation in these special courts. The bill would provide the courts with more flexibility over who was admitted into the program by removing the requirement that any illness or injury have occurred "in a combat zone or other similar hazardous duty area." There is also another provision that gives courts discretion to admit a veteran if he/she does not fit any of the other categories. Finally, the amendments allow a veteran who is being supervised by a veterans' court program to transfer counties to another program if desired. These are all good changes that will help veterans and make these specialty courts worthwhile.

See the 2015 Veteran's Court Update.

Legislative Changes to Texas DWI Laws | Fort Worth DWI Defense Attorneys

DWI Update:  Some clients want to see their DWI video.  Some don't.  Some want to take it home and show their friends and some want to dig a deep hole and bury it away forever.  Since the passing of the Michael Morton act, regardless of their clients' wishes, criminal defense lawyers could not provide a copy of the DWI video without first obtaining a court order or prosecutor permission.  This all changes on 9/1/15.

This past legislative session, the Texas legislature passed House Bill 3791 which amends Chapter 2 of the Texas Code of Criminal Procedure by adding the following paragraph:

Art. 2.139. VIDEO RECORDINGS OF ARRESTS FOR INTOXICATION OFFENSES.

A person stopped or arrested on suspicion of an offense under Section 49.04, 49.045, 49.07, or 49.08, Penal Code, is entitled to receive from a law enforcement agency employing the peace officer who made the stop or arrest a copy of any video made by or at the direction of the officer that contains footage of:

(1) the stop;

(2) the arrest;

(3) the conduct of the person stopped during any interaction with the officer, including during the administration of a field sobriety test; or

(4) a procedure in which a specimen of the person's breath or blood is taken.

Now (beginning 9/1/15) DWI defendants are entitled to receive a copy of the DWI video (if they want it).  There is no clarification regarding whether the defense attorney, or the DA may provide the copy, but at a minimum it may come from the police agency.

DWI Trial Lawyers | Free Consultations

Barnett Howard & Williams PLLC practices DWI defense in Fort Worth, Texas.  Our office is located in Sundance Square in downtown Fort Worth.  Call (817) 993-9249 for free consultation of your DWI case.

Changes to Texas Theft Laws | Fort Worth Theft Crimes Attorneys

• Theft Under $50 Theft Under $100
• Theft $50 - $500 Theft $100 - $750
• Theft $500 - $1,500 Theft $750 - $2,500
• Theft $1,500 - $20,000 Theft 2,500 - $30,000
• Theft $20,000 - $100,000 Theft $30,000 - $150,000
• Theft $100,000 - $300,000 Theft $150,000 - $300,000

The new values for these offenses will apply to all offenses committed on or after September 1, 2015.  For offenses that pre-date 9/1/15, that theft offenses will remain under the old statutory scheme.

The New Value Ladder

The Texas Penal Code uses a standard value ladder in cases of theft and many other property and economic crimes to determine the grade of an offense. On September 1, 2015, HB 1396 changed the standard value ladder for theft in Texas—this is the first time this has happened since 1993. Under the value ladder, as the value of property lost increases, the seriousness of the crime increases. Below are the updated values:

• Under $100 is a Class C Misdemeanor;
• $100 or more, but less than $750 is a Class B Misdemeanor;
• $750 or more, but les than $2,500 is a Class A Misdemeanor;
• $2,500 or more, but less than $30,000 is a State Jail Felony;
• $30,000 or more, but less than $150,000 is a Third Degree Felony;
• $150,000 or more, but less than $300,000 is a Second Degree Felony; and
• More than $300,000 is a First Degree Felony.

The change in law also includes a savings clause. This clause provides that the change in law applies only to an offense committed on or after the effective date of the article. As such, an offense is committed before the effective date of the article if any element of the offense occurs before the effective date. This savings clause is an important factor when dealing with aggregate theft.

What is Aggregate Theft?

Aggregate theft is an offense where two or more thefts were committed “pursuant to one scheme or continuing course of conduct” and the amounts are combined to determine the grade of the offense. Tex. Penal Code § 31.09. Pursuant to Section 31.09 of the Texas Penal Code, aggregate theft may be considered as one offense—it is a sum of all its parts. The Court of Criminal Appeals has held that the State need only prove beyond a reasonable doubt that the defendant unlawfully appropriated enough property to meet the aggregated value alleged. Since the value alleged will determine the grade of offense charged, applying the correct statute is essential.

How Does the New Value Ladder Apply to Aggregate Thefts?

The Court of Criminal Appeals has held time and time again that we are to interpret statutes in accordance with their plain meaning unless the language is ambiguous or the plain meaning would lead to absurd results. Thus, applying the plain meaning of the savings clause found in Section 31.09, the former law’s penalties apply to the offense of aggregated theft if any element of a continuing theft was committed before the effective date of the new law. The Court of Criminal Appeals held that this “interpretation does not lead to absurd results because one could reasonably conclude that the legislature intended for the old penalties to attach to a scheme or continuing course of conduct that was begun before the effective date of the new law.” Dickens v. State, 981 S.W.2d 186, 187-88 (Tex. Crim. App. 1998). Thus, if a defendant is being charged with aggregate theft and any element of their charge occurred before September 1, 2015, former law will apply to determine the grade of the offense.

Theft Crime Defense Lawyers | Fort Worth Criminal Defense Firm

The Fort Worth criminal defense attorneys at Barnett Howard & Williams PLLC handle all ranges of property crimes from simple shoplifting to armed robbery and everywhere in between. If you are under investigation for a property or theft offense or have already been charged, contact Barnett Howard & Williams PLLC today for a free consultation of your case at 817.993.9249.