March 2016

Judge Deborah Nekhom to preside over Tarrant County's new DWI Court Program for Misdemeanor DWI Cases

Tarrant County has many specialty court programs for various types of criminal cases, but for DWI cases, the only specialty program available was limited to felony-level cases - the Felony Alcohol Intervention Program (FAIP). Not anymore. After much debate, Tarrant County started a new specialty court designed for misdemeanor DWI cases (it is not currently listed on the county's website). The program officially began on March 30, 2016.  Judge Deborah Nekhom in County Criminal Court 4 is the presiding judge over the new DWI Court and she is dedicated to making it a success.

DWI Court is Designed for High-Risk / High-Need Offenders

The goal of the new DWI Court is to identify high-risk DWI defendants and intervene so that they do not end up with a felony DWI down the road. With the help of defense attorneys and clinical specialists, the program seeks to identify defendants with significant substance abuse issues, who are in need of serious help. While the specifics of the program are still being ironed out, our firm has been told that there will be strict oversight and accountability for all participants so that they can have the best chance of successfully completing the program and their DWI probation.

What are the benefits of the Tarrant County DWI Court?

The main benefit of participating in the new DWI Court is that participants will receive the counseling and support they need to overcome their addiction and live a health, productive, alcohol-free and drug-free lifestyle. In addition, some of the following benefits have been discussed and are being implemented:

• Probation time is reduced after completion of the program, allowing participants to enter into a non-reporting status;
• Waiver of DWI fines (up to $4,000)
• No program fees
• *Dismissal of the underlying DWI charge and allowance for a Non-Disclosure (*this expires on 1/1/17 with changes to the Texas Government Code)

Several other benefits are being considered and are not ripe for public discussion at this point.

How Do I Get a Client into the DWI Court?

If you have a client that would be a good candidate for misdemeanor DWI Court, you should get him or her an assessment ASAP to determine whether they are classified as high-risk / high-need. You should then discuss the option of DWI court with the presiding judge of your client's DWI case. If, after seeing the assessment, the judge agrees that DWI court is a good option, he or she will transfer the case to CCC4 after your clients enters a plea of guilty to the DWI.

Contact Us for More Information About DWI Court

I realize that this article does not provide a lot in the way of specifics about the new program, but it only started yesterday and there are not a lot of specifics to publish at this point. If you have some questions, our DWI defense attorneys would be happy to answer them if we can. Contact our office at (817) 993-9249.

In Luis v. United States, the Supreme Court Addressed Whether and to What Extent, Federal Authorities Can Seize Assets Unrelated to Criminal Activity.

Many federal defendants have been in the position of needing to hire an attorney but having all of their assets frozen.  Not anymore.  The United States Supreme Court ruled this week that the federal government cannot, before trial, seize the assets of the defendant if those assets are unrelated to the criminal allegation and are needed to fund a defense attorney.

See Luis v United States (US S.Ct. 2016)

Luis v. United States - Case Background

In Luis, a Miami woman named Sila Luis was accused of Medicare and banking fraud. The criminal charges alleged that she illegally used kickbacks and other criminal schemes to fraudulently obtain over $45 million. Luis only had $2 million left when federal prosecutors obtained a court order seizing all of her assets — both those assets related to the crime and those unrelated to it. She challenged the federal seizure order arguing that she needed the unrelated (untainted) assets in order to retain an attorney for her trial.

A majority of Supreme Court justices agreed with Luis. that allowing the government to take her untainted assets would violate her Sixth Amendment right to counsel of her choice.

When Can the Federal Government Seize a Defendant's Assets?

18 U.S. Code Section 1345(a)(2) provides that a court may freeze before trial certain assets belonging to a defendant accused of violations of federal health care or banking laws. Those assets include (1) property “obtained as a result of” the crime, (2) property “traceable” to the crime, and (3), as relevant here, other “property of equivalent value.”

Writing for four of the justices, Justice Stephen Breyer explained that the frozen assets

belongs to the defendant, pure and simple." He added that, as a practical matter, to accept the government's position could have grave consequences for a defendant who is actually innocent, whose assets are all untainted and, if seized, would leave the defendant without her lawyer of choice to defend against meritless charges.

He went on, "[t]o permit the Government to freeze Luis' untainted assets" in this case, Breyer wrote, "would unleash a principle of constitutional law that would have no obvious stopping place."

Chief Justice Roberts, Justice Ginsburg, and Justice Sotomayor joined the Justice Breyer's opinion. Justice Thomas wrote separately, with a slightly different analysis, explaining that the 6th Amendment right to counsel of choice would be meaningless if we did not allow a defendant to use his or her property to pay for that attorney.

Justices Kennedy and Alito dissented and would hold that there is no real way to distinguish between tainted and untainted assets since money is fungible.

TAKEAWAY: The government may not seize assets in a federal case if the assets are not connected to the alleged criminal activity and if those assets are needed to hire an attorney for the defense.

Jury unanimity is required in every jury trial, whether it be felony or misdemeanor. This means that the jury must unanimously agree that the State has proven or failed to prove all elements of an offense beyond a reasonable doubt. If a jury cannot reach a unanimous verdict of guilty or not guilty, then the judge will declare a mistrial. With some offenses, however, it can be a little unclear as to what jury unanimity actually requires. This is specifically so with aggregated theft cases.

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 combined determine the grade of the offense. Tex. Penal Code §31.09. Under Section 31.09, aggregate theft may be and often is considered as one offense. Even though it is considered one offense, each individual underlying theft act (where the amounts are aggregated) is considered an element. The Court of Criminal Appeals of Texas has held that for evidence to be sufficient the state must prove beyond a reasonable doubt that the defendant unlawfully appropriated “enough property to meet the aggregated value alleged.” The state is not required to prove each underlying appropriation. However, the Court, until recently has left one question unanswered: Does the jury have to unanimously agree on all underlying theft transactions?  Meaning, if the defendant is alleged to have committed 10 separate theft acts (pursuant to a common scheme), do the jury have to agree on each, or some, or none?

Kent v. State—What is the Jury Unanimity requirement in Aggregate Theft cases?

Until recently there had been no holding by the Court of Criminal Appeals of Texas on whether jurors are required to unanimously agree on each underlying transaction that is used to comprise an aggregated theft charge. In Kent v. State the Court finally addressed this exact question.

See the full CCA opinion in Kent..

Kent was a mortgage broker indicted for theft from four complainants in an amount exceeding $200,000. The thefts were alleged to have occurred over a period of time and pursuant to one scheme or continuing course of conduct. At trial, the defense requested a paragraph in the jury instructions that outlined each individual theft allegation and called for a unanimous verdict on each. The trial judge denied the defense request to include this paragraph.  The jury found Kent guilty of aggregate theft. On appeal, the Kent complained that the trial judge erred by refusing to include his requested paragraph in the jury instructions.  The appellate court reversed and remanded the case for a new trial, holding that the jury should have been instructed that they must unanimously agree beyond a reasonable doubt on each underlying transaction used to comprise an aggregate theft charge.

The State appealed to the Court of Criminal Appeals of Texas to determine whether this was correct. Reversing the lower courts holding, the CCA held that for an aggregated-theft case,

unanimity requires that the jurors agree that the threshold amount has been reached and that all the elements are proven for each specific instance of theft that the individual juror believes to have occurred. Every instance of theft need not be unanimously agreed upon by the jury.

In other words, it is only required that the jurors unanimously agree that two or more thefts pursuant to a common scheme, when combined, exceeded the threshold amount beyond a reasonable doubt, not that they unanimously agree on exactly which thefts were comprised to reach that amount.

Takeaway: When facing aggregated theft charges it is important to know that the jury does not have to unanimously agree that each underlying theft alleged in the indictment has been proven beyond a reasonable doubt. Bottom line, it’s the aggregated amount that matters. This is only a brief explanation of how the jury unanimity requirement plays a role in a case and if you should have any more questions contact our Fort Worth criminal defense team.

Many of you have heard of the new development in the OJ Simpson case, the discovery of a knife that was found on Simpson’s property sometime around 2002 or 2003 (interesting that this is coming to light during the airing of the OJ Simpson TV drama on FX). A construction worker, who gave the knife to a former LAPD officer that was working as a security officer, reportedly uncovered the knife on or around Simpson’s property. For reasons that are unclear, the knife was just recently turned over to LAPD in early March. This is big news because the knife used in the murders of OJ’s wife, Nicole Simpson and her friend, Ron Goldman, was never found and Simpson was ultimately acquitted in 1995 for their murders. So what does this discovery mean for OJ Simpson and the murder charges that of which he was acquitted back in 1995? LAPD is testing the knife for DNA and hair, and it has been unofficially reported that no DNA exists, but if they find something, what can they do?

Can Simpson be retried for the murder of his wife and her friend?

No, he cannot be retried. Jeopardy has attached and Simpson is protected from being retried on the same offense after being acquitted. The 5th Amendment of the United State’s Constitution provides that no person shall be “subject for the same offense to be twice put in jeopardy of life or limb.” In other words, a person shall not be put on trial for the same offense after receiving a not guilty verdict. This is commonly known as the protection again Double Jeopardy. Further, the Doctrine of Res Judicata (claims preclusion) bars relitigation of a claim that has been validly and finally adjudicated.

Because OJ Simpson was acquitted for the murder of his wife and her friend, this means that he is protected by the Constitution from Double Jeopardy and cannot be taken to trial for their murders again even if new "evidence" is discovered. This answer would not change even if DNA evidence came back showing a link to one of the victims. Further, under the Doctrine of Res Judicata, since there was a valid and final judgment in regards to the guilt of Simpson in these murders, the State of California is barred from reopening Simpson’s case.

Is there any way around Double Jeopardy?

The only way around double jeopardy is to be federally indicted for some other offense arising from the same events. The state and federal authorities are separate sovereigns. Here, it would not be a Double Jeopardy violation for Simpson to receive a federal indictment for violation of the victims’ civil rights, but it would be incredibly unlikely.

Takeaway: If you have already been found not guilty for an criminal charge, the 5th Amendment and Doctrine of Res Judicata protect you from being brought to trial on that same charge.

Frequently the public’s perception as to what officers can and cannot do during encounters is convoluted and even wrong. Many people are unaware of what their 4th Amendment rights actually afford them when it comes to contact with police officers. First, it’s important to know that an officer is completely free to approach whomever he wants and have a consensual encounter with someone whether or not he has a specific reason. However, an officer cannot detain you on a simple hunch, the police officer must have reasonable suspicion of criminal activity. Then comes the question of what exactly is reasonable suspicion.

What is Reasonable Suspicion?

According to Fourth Amendment law, reasonable suspicion exists when there are specific articulable facts that, when combined with rational inferences from the facts, would lead a reasonable officer to believe crime was afoot. The police officer must have more than a hunch that a crime was in progress. If a police officer detains, frisks, or searches someone without reasonable suspicion that officer has violated the 4th Amendment and evidence coming from that unlawful detention must be suppressed.

The 4th Amendment in Action - Brodnex v State of Texas (2016)

In a case just decided by the Court of Criminal Appeals of Texas, the Court overturned a conviction because it found the officer did not have reasonable suspicion to detain the defendant, thus, violating the 4th Amendment.

In Brodnex v. State, the defendant was arrested and convicted of possession of a controlled substance. The arresting officer observed Brodnex and a female walking in an area known for narcotic activity around 2 a.m.. The officer approached the two individuals, asked them their names and what they were doing. When Brodnex identified himself, the officer asked him “Didn’t you just get picked up?” and Brodnex replied “Hell no.” The Officer then searched Brodnex and found a cigar tube with crack cocaine.

The Officer’s reasons for detaining Brodnex were:

• The time of day;
• The area’s known narcotic activity, and
• His belief, based on what other officers had told him, that Brodnex was a “known criminal.”

Brodnex filed a motion to suppress challenging both the stop and search. The trial court denied the motion and the appellate court affirmed.

The CCA Overturns the Conviction for Lack of Reasonable Suspicion

The Court of Criminal Appeals of Texas held that Brodnex was illegally detained because at the time of detention, under the totality of the circumstances, the facts apparent to the officer “did not provide him with a reasonable suspicion for the detention.” Therefore, the crack cocaine should have been suppressed. The court's holding relied on the fact that the officer had simply seen Brodnex walking, not doing anything that would suggest he was engaged or about to engage in criminal activity. Additionally, the court found that the officer’s limited personal knowledge of Brodnex’s criminal history was not enough to support the belief that Brodnex was lying about not being picked up.

Know Your Rights

This case explains that the officer must have sufficient information that links the suspect to a particular crime before reasonable suspicion exists. While the time of day and high-crime area are factors that Texas courts consider, those alone are insufficient to develop reasonable suspicion. Since reasonable suspicion is based on the totality of the circumstances, it is often not completely clear as to whether a particular set of facts rises to the level of reasonable suspicion.

If you are facing criminal charges that resulted from a detention or search that might not have been supported by reasonable suspicion, any evidence found from might be able to be suppressed. Contact our criminal defense team today to discuss your case and determine whether a reasonable suspicion issue is present.

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