News and Insights

Second Court of Appeals (Fort Worth) holds that Aggravated Assault by Threat does not require personal presence of the victim

In Hernandez v. State (Tex. App.--Fort Worth August 6, 2015), the Second Court of Appeals in Fort Worth, Texas looked that the issue of whether the evidence was sufficient to prove Assault by Threat when appellant brandished a gun to a crowd while looking for the victim.

FACTS: The appellant, Daniel Hernandez, got into an argument with the victim and exchanged hostile words in the parking lot outside a food stand owned by the victim. Appellant told the victim "you're going down" before he drove left the area in his vehicle. The appellant ultimately returned to the parking lot armed with a gun.

The victim, who had learned that appellant was back and was armed, hid inside of a building behind the food stand. The victim watched from the window as the defendant waved the gun to the crowd that had gathered in the parking lot. The defendant specifically encountered one individual in the crowd, a friend of the victim, and pointed the gun at him. The defendant then left. Approximately ten minutes later, someone shot up the victim's pickup truck, which was parked outside a nearby home.

Hernandez was convicted by a jury in the 367th District Court in Denton County and was sentenced to 63 years confinement. He appealed his conviction, arguing that the evidence was legally insufficient to sustain a guilty verdict when the alleged victim was not present during the aggravated assault.

A majority of the 2nd Court of Appeals found the evidence legally sufficient to support the conviction for aggravated assault (by threat) with a deadly weapon. The Court concluded that the evidence showed that "Appellant was hunting [the victim] with a gun and was verbally threatening to take him down" near the food stand, "that is, in the location Appellant expected to find him." The Court reasoned that "it did not matter that the defendant could not find the victim at the location; his actions still rendered him liable for an assault by threat with a firearm. Appellant's inability to find [the victim] in the crowd did not change Appellant's conduct."

Justice Dauphinot dissented. She reasoned that there was no evidence that the defendant "knew that Complainant was watching him" from the building. In her view, the evidence must have established that the defendant specifically knew the victim was present in order to find he intentionally or knowingly placed the victim in fear of imminent bodily injury.

Contact our Fort Worth Aggravated Assault Defense Attorneys at (817) 993-9249

The criminal defense lawyers at Barnett Howard & Williams handle aggravated assault cases including cases involving deadly weapons in Fort Worth, Tarrant County, and Denton County. Contact us today for a free consultation of your criminal case.

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.