News and Insights

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.

Statements by Child Victim to Teacher Were Admissible "Non-Testimonial" Under the Supreme Court's Confrontation Clause Jurisprudence.

The Sixth Amendment's Confrontation Clause protects a defendant's right to confront witnesses against him and raises the issue of how-to-treat admissibility of out-of-court statements.  In a landmark 1980 case, the Supreme Court adopted a standard allowing out-of-court statements to be admitted if they are deemed reliable and trustworthy.

In 2004, the Court adopted what this Court called a "different approach," adopting the position that testimonial statements--out-of-court statements as a substitute for in-court testimony--are inadmissible unless the witness is unavailable to testify in court and the defense had an earlier opportunity for cross-examination.

In 2006, the Court adopted the "primary purpose" test, under which statements made during the course of police interrogation for the primary purpose of meeting an ongoing emergency are not testimonial and are therefore admissible. Only statements made in the course of an investigation for the primary purpose of proving facts relevant to later prosecution are potentially inadmissible.

In 2011, the Court expanded the primary purpose test by requiring the determination of whether a statement is testimonial to consider all the relevant circumstances. Specifically, the Court said statements made to police officers in an informal setting are less likely to be testimonial than a police station interrogation.

All of the cases up to this point had one fact in common--the statements were made to law enforcement officers. The Court had declined to decide the issue of whether the same rules would apply to statements made to individuals other than police officers.

Breaking Confrontation Clause Caselaw | Fort Worth Criminal Defense Attorneys

In Ohio v. Clark, the Court finally had the opportunity to address the question regarding statements made to individuals other than police officers. In Clark's child abuse trial, statements made by the three-year-old victim to his teachers that Clark had caused his injuries were admitted into evidence. The three-year-old did not testify because of an Ohio law that generally determined children younger than ten years of age incompetent to testify.

The trial court ruled the child's statements were not testimonial and allowed them to be admitted. Clark was convicted and sentenced to 28 years imprisonment.

A state appellate court reversed the decision. The Ohio Supreme Court upheld the decision of the Appeals Court, concluding the primary purpose of the teachers' questioning was gathering evidence, not addressing an ongoing emergency. The court considered the teachers agents of the state under the state's mandatory reporting law and found the child's statements functionally equivalent to live in-court testimony that was inadmissible.

The United State Supreme Court disagreed and decided the child's statements were made in the context of an ongoing emergency regarding suspected child abuse. The teachers needed to know who might have abused the child so they would know whether it was safe to release the child to his guardian and to help prevent future attacks. During the spontaneous and informal questioning, the teachers never told the child his statements might be used to punish Clark. The Court found it unlikely the child intended his statements to be a substitute for trial testimony.

The Court declined to adopt a categorical rule that all statements to persons other than law enforcement officers are testimonial, but considered the identity of the questioners in this case and concluded that statements made to individuals not principally charged with uncovering and prosecuting criminal behavior, such as teachers, are less likely to be testimonial.

The Court rejected the argument that the mandatory reporting law transformed teachers into agents of the state, concluding the teachers would have taken steps to protect the child even in the absence of the law. The Court also rejected Clark's claim that the child's statements should have been inadmissible because the jury perceived them to be testimonial, noting that theory would render almost all out-of-court statements offered by the prosecution inadmissible.

The Court concluded that because the child's statements were not made for the primary purpose of creating an out-of-court substitute for trial testimony, they were not testimonial and were therefore admissible.

Although the ruling in the case was unanimous, in an unlikely pairing, Justices Scalia and Ginsburg argued the 2004 decision regarding testimonial statements was adequate to decide this case. They argued the majority's characterization of the 2006 and 2011 cases as different approaches or alternative tests was an attempt to return to the 1980 standard of reliability when the only issue is whether the statement is made by a witness and is unconfronted.

Justice Thomas argued the Court should in fact return to the 1980 standard of trustworthiness and reliability and apply the same standard to statements made to private individuals and those made to police officers. Thomas characterized the primary purpose test as an "exercise in fiction" and concluded in this case, the child's statements did not meet the standards of reliability and trustworthiness to fall under the prohibition of the Confrontation Clause

Search & Seizure Update | Fort Worth Illegal Search & Seizure Attorneys

Late in the evening, two San Antonio police officers saw a truck driven by Arthur Warren. The truck matched the description of a vehicle that was suspected of transporting a large shipment of narcotics. When the officers saw Warren's truck, they observed that the license plate on the trailer was not illuminated, and they saw the truck swerve across the median and across the double white line.

The officers stopped Warren's vehicle. Officer Dupee testified that he saw a can of beer inside the truck. Officer Galvan asked Warren to get out of the truck, and the officers performed a field sobriety test on Warren.

The officers asked Warren if they could search the truck and trailer. Officer Dupee testified that Warren said, "Yes, go right ahead." Officer Galvan saw something peculiar as he searched the truck and signaled Officer Dupee to handcuff Warren. Officer Dupee told Warren that he was not under arrest, but he was just being detained. Officer Dupee testified that Warren's demeanor changed from "nice and compliant" to "upset and depressed." Warren gave the officers the keys to a compartment where they found marijuana.

Warren testified that he did not give consent to search the truck and trailer, but rather said, "Well, you're going to anyway." He further testified that the officers handcuffed him only after he became upset about how they were searching the car on the trailer.

In a pre-trial motion, Warren moved to suppress the evidence (the marijuana) as a violation of his Fourth Amendment protection against unreasonable search and seizure. The trial judge denied the motion. Warren made a plea agreement and received six years deferred adjudication.

On appeal, Warren claimed that the State had failed to prove that he voluntarily consented to the search of his truck and trailer and that any consent that might have been given was tainted because Warren was detained for an extended time.

As with any appellate review of a motion to suppress, the Court of Appeals gave almost total deference to the trial court's determination of the facts and assessment of credibility of witnesses. The Court then reviewed the trial court's application of the law to the facts.

An exception to the Fourth Amendment protection against warrantless searches is a search where voluntary, uncoerced consent is given. The State bears the burden of proving that the search was voluntary. Warren argued that the State did not meet this burden.

The trial judge determined Officer Dupee to be credible when he stated that Warren gave consent to the search voluntarily and not under duress. Warren's claim that he felt he had no choice but to consent was considered, but the Court of Appeals noted that case law provides for a presumption that if someone's constitutional rights are about to be violated, the individual will assert those rights.

The Court of Appeals gave deference to the trial court's assessment of Officer Dupee's and Warren's credibility and upheld the conclusion that Warren's consent was voluntary.

As for the length of the detention, the Court noted that police cannot use a traffic stop as a "fishing expedition" to discover unrelated criminal activity. Once the purpose of a traffic stop is satisfied, additional reasonable suspicion is required for further detention. The trial court had found that the detention was initially related to the tip that narcotics were being transported in a vehicle matching the description of Warren's truck and that Warren's erratic driving justified the officers investigating whether he was intoxicated.

Even if the officers had satisfied their investigation of Warren's intoxication, they were justified in continued detention due to the traffic violations they had observed and their observation of Warren's bloodshot eyes and the beer can in the cab of the truck. Based on the officers' testimony that Warren had consented to the search of the vehicle, the trial court found that the detention was not extended illegally. The Court of Appeals agreed that the officers had probable cause to initiate the stop, that Warren consented to the search and that the length of the detention was not unreasonable.

This case highlights two principles of Fourth Amendment law. First, while the State is required to prove the voluntary nature of a consent to search, the court is not required to accept the defendant's position on that issue if the circumstances indicate that consent was voluntary. Second, while police officers may not extend a traffic stop to search for other possible unrelated violations, as long as the officers have reasonable suspicion of illegal activity and are investigating that suspicion, the driver can be detained until the officers' investigation is complete.

This case reinforces our advice in previous articles...DO NOT GIVE CONSENT TO SEARCH!  Make the officers get a warrant.  It's their job and your right!

Article 42.12 Section 3(g), Texas Code of Criminal Procedure | 3G Offenses in Texas

A feature of the Texas Criminal Code that generates frequent questions is "3G offenses." The offenses are called 3G offenses because they were codified in section (3)(g) of Article 42.12, Code of Criminal Procedure. The code has now been updated and the 3(g) offenses are listed in Texas Code of Criminal Procedure, Section 42A.054. As a practical matter, 3G offenses are generally considered more serious crimes. Many of the crimes are "aggravated" offenses, meaning that some circumstance makes the offense worse than the base offense.

The 3G offenses are:

• Murder
• Capital Murder
• Murder in specific aggravating circumstances, such as murdering a victim under 10 years of age, murder while committing another felony, murdering more than one victim, murdering a law enforcement officer or fireman acting in their official capacity, murder for hire or retaliatory murder against a judge
• Indecency with a child by contact
• Aggravated kidnapping--Kidnapping with the intent to hold the victim for ransom or as a hostage or with the intent to sexually or physically abuse the victim
• Aggravated sexual assault--Sexual assault in specific aggravating circumstances, such as a victim under 14 years of age, an elderly or disabled victim, using "date rape" drugs such as rohypnol or ketamine, causing serious bodily harm to the victim or another person, or attempting to kill the victim or another person in the course of the crime
• Sexual Assault
• Aggravated robbery--Robbery plus threat of bodily harm, exhibiting a deadly weapon or putting an elderly or disabled individual in fear of injury or death • Sexual assault
• Injury to a child (if offense is first degree felony)
• Sexual performance by a child under 18 years of age
• Criminal solicitation for commission of a capital offense (if offense is first degree felony)
• Compelling prostitution by force, threat, or fraud or, if the victim is less than 18 years of age, by any means
• Trafficking of persons
• Drug offenses committed within 1,000 feet of a school, youth center, or playground or on a school bus when the defendant has previously been convicted of a similar offense
• Burglary with the intent to commit another felony
• Any felony where a deadly weapon is used or exhibited during the commission of the crime or during the flight from the crime--Deadly weapon includes any firearm or other device designed to cause death or serious bodily injury or capable of doing so.

The important considerations for individuals convicted of a 3G offense are the implications for their sentencing and prospects for parole. Although the laws have changed over the years as various offenses have been added to the list, the current provisions apply to any crime committed on or after September 1, 2007.

 

Probation or Deferred Adjudication on 3G Offenses

Under the Code of Criminal Procedure, a judge cannot accept a plea bargain for straight probation (community supervision) on a 3G offense. A judge can, however, accept a plea bargain for deferred adjudication as long as the underlying sentence for the offense is 10 years or less. Deferred adjudication is similar to probation, except the judge defers a finding of guilt for the specified time of probation, and if the defendant successfully completes the probation, the charge is ultimately dismissed and no final conviction is entered on the defendant's record.

If a defendant exercises his right to trial on a 3G offense and is found guilty, only the jury can give probation. When a jury gives probation at trial for a 3G offense, it is considered straight probation because a final conviction of guilt is entered on the defendant's record.

Parole on 3G Offenses

Conviction for a 3G crime also affects an individual's prospects for parole. For any other offense, parole eligibility occurs when time served plus time for good conduct equals the lesser of 15 years or one-fourth of the sentence. However, for a 3G offense, an individual is not eligible for parole until actual time served, with no allowance for good conduct credit, equals the lesser of 30 years or one-half of the original sentence. If the original sentence was for any period less than four years, the individual is not eligible for parole until actual time served of two years.

Free Consultation with an Experienced Fort Worth Criminal Defense Lawyer

If you have been charged with a 3G offense, you need to speak with a criminal defense attorney as soon as possible. Our attorneys have years of experience handling 3G offenses in Texas. Call our team today to set up a free consultation in our Fort Worth office. We will take the time to answer your questions and help you take the next steps to protect your liberty.

Drug Crimes Can Come With Added Costs | Fort Worth Drug Crimes Defense Attorneys

Robert Ehrke was convicted of a drug crimes case - possession of between one and four grams of methamphetamine in a drug-free zone - and sentenced to seventy-five years in prison. The weight (1.6 grams) and composition of the substance were determined by a Department of Public Safety chemist.

In a pre-trial motion, Ehrke requested the trial court to provide for independent testing of the substance. Ehrke's attorney argued that, because 1.6 grams was so close to the 0.99 gram for a lighter sentence, independent testing was justified.

The trial court agreed it was required to allow Ehrke's counsel to inspect and examine the substance. However, because Ehrke did not demonstrate the need for the test or any reason why a second test would have different results, the judge denied the motion for independent testing. Ehrke's counsel's offer to secure payment for the testing did not change the judge's decision.

The Court of Appeals agreed with the trial court. The court based its decision on Ehrke's failure to show a particular need for independent testing or how an independent chemist would arrive at a different result.

On appeal to the Court of Criminal Appeals, the CCA identified two issues: (1) whether Ehrke had a right to inspection of the substance by an independent expert and (2) whether the state was required to pay for such an inspection.

The Court noted the Code of Criminal Procedure provided for a defendant to inspect evidence material to the state's case, but only if the defendant showed good cause for a request to inspect evidence. However, courts had found inspection mandatory if the evidence is material to the defendant's case.

The CCA said that in a controlled substance case, if the defendant asks to inspect the substance, the court must allow inspection because the substance will necessarily be material to the defense--no showing of good cause is required.

The CCA addressed the question of what an "inspection" entails. Obviously, simply looking at the substance, which is apparently all the trial court offered Ehrke's counsel, would not determine either its substance or its weight. The Court stated that in a controlled substance case, the right to pay for an independent chemist to analyze the substance is absolute.

On the second issue, the CCA acknowledged an indigent defendant's right to a court-appointed (read "court-paid") expert but said the defendant has the burden to provide specific justification for appointment of the expert. In Ehrke's case, the CCA said, no specific justification had been provided. Even though Ehrke's counsel explained the rationale for his request, he did not provide any evidence to question the original analysis by the DPS chemist, did not explain how independent testing was required for his defense and did not provide information regarding the complexity of the testing. According to the CCA, an absolute right to state-funded independent testing would be too great a financial burden to the County; therefore, appointment of an expert is required only if there is some preliminary evidence of a significant issue of fact to justify the appointment.

The Court remanded the case to the trial court for proceedings on the first issue.

The bifurcated decision in this case is perplexing. The Court said chemical analysis of an alleged controlled substance will always be material to a defendant's case and discarded the Code's requirement of a showing of good cause, making the right to independent testing absolute.

However, in the second issue, the Court seems to have abandoned its notion of materiality for a standard of affordability. On the part of the defendant, the Court cited case law that the state is not required to provide an indigent defendant with everything a wealthier defendant might be able to afford. More importantly, the Court concluded the financial burden to the County of paying for independent chemical testing in all controlled substance cases would be too great.

Examples abound of wealthy defendants procuring a better defense than an indigent defendant.  However, if an issue is always material to an indigent defendant's case to the point of making the right to independent testing absolute, it seems odd that the indigent defendant's right can be defeated by fiscal concerns of the County, which is in a much better position to pay for testing.

Contact our Drug Crimes Defense Attorneys Today for a FREE Consultation of Your Case at (817) 993-9249

Our Fort Worth criminal defense attorneys are experienced in defending drug crimes cases, including possession, possession with intent to distribute, manufacture, and more. If you are under investigation or have a pending charge, don't wait. Contact us today.