Fort Worth Criminal Defense

What is the Lautenberg Amendment?

The Lautenberg Amendment to the Gun Control Act enacted in the Fall of 1996 provides that those with a conviction for a misdemeanor crime of domestic violence cannot use, possess, or transport a firearm or ammunition.

Senator Frank Lautenberg was the chief sponsor of this amendment. The purpose behind this amendment is to keep firearms out of homes where a domestic violence relationship exists. Lautenberg presented it with the idea that domestic violence and firearms are a deadly combination and enacting this amendment would lessen the likelihood of a victim to die during a domestic violence episode. 142 Cong Rec S 11872. Additionally, since there was already a firearm ban in place for felony convictions, this Amendment combats the devastating loophole that previously allowed persons with misdemeanor convictions of domestic violence to fall through the cracks and be permitted to own firearms. United States v. Hayes, 555 U.S. 415.

When Does the Lautenberg Amendment Apply?

The Lautenberg Amendment will not have any impact until a person has a misdemeanor conviction of domestic violence. 18 U.S.C. § 922(g)(9). That is, a misdemeanor that

“has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.”

18 U.S.C. § 921(33).

A defendant will not be considered convicted unless they were represented by an attorney or “knowingly and intelligently” waived that right and the case was prosecuted at a jury trial or the defendant “knowingly and intelligently” waived that right by a guilty plea or otherwise properly waived that right. Id.

If you have been charged with a qualifying misdemeanor conviction, the amendment has no impact on you until you have received a final conviction. However, if you are subject to a protective order, the Gun Control Act and the State of Texas separately provide that you cannot use, possess, or transfer firearms. 18 U.S.C. § 922(d)(8); Tex. Fam. Code § 85.022(b)(6); Tex. Pen. Code § 46.04(c).

In Texas, if you have disposed of your case through deferred adjudication, which is not a final conviction, and you successfully complete the deferred adjudication, the amendment will not impact you since the statute requires a conviction. 18 U.S.C. § 921(33). Additionally, the conviction element of this statute will not be satisfied if the conviction is expunged, set aside, or the defendant has been pardoned. Id.

What Impact Does the Lautenberg Amendment Have on the Military Defendant?

Prior to the Lautenberg Amendment, 18 U.S.C. § 925(a)(1) provided a military and law enforcement exception to the Gun Control Act. The Lautenberg Amendment contains no similar exception.

What this means for the military defendant that gets a conviction is that his service could be compromised since they can no longer use, possess, or transfer a firearm. This conviction can impact their ability to re-enlist, cause a transfer to a military occupational specialty (MOS) that doesn’t require the handling of firearms, and affect the ability to be deployed. Many servicemembers that receive a domestic violence conviction will be processed for administrative separation.

According to the Supreme Court, What Cases are Considered Misdemeanor Convictions of Domestic Violence?

In Voisine v. United States, the Supreme Court clarified that the federal firearm ban under the Lautenberg Amendment applied to every case where the underlying conduct was an act of domestic violence, regardless of whether the state court made an affirmative finding of domestic violence (or family violence in Texas). This means that persons with misdemeanor convictions anywhere from a Class C simple assault* to a Class A assault with or without a domestic violence finding are banned from using, possessing and transferring firearms if their victim was one with whom they had a domestic relationship.

Voisine v. United States dealt with two domestic violence-related cases from Maine where both defendants’ previous convictions were based on reckless conduct, not intentional or knowing conduct. Thus, they argued that the Lautenberg Amendment didn’t apply to them. The Supreme Court ruled that the firearm ban did apply to them for two reasons:

1. Reckless use of force is use of force the same as if it was intentional or knowing; and
2. The legislative history and plain language of the statute lead to such a conclusion.

Looking to the statutory definition of an applicable misdemeanor conviction provided above, there is no specific mental state required. The definition provides that the Amendment applies to any misdemeanor under federal, state, or tribal law that was committed by a person through use of physical force against a victim with whom they have a domestic relationship.

*Class C is the same level as a traffic ticket.

Texas Specific Firearm Bans for Domestic Violence Convictions

In Texas, a person who has been convicted of a misdemeanor involving family violence cannot possess or transfer a firearm or ammunition for 5 years after they are released from confinement or after they have completed and been released from community supervision following the conviction. Tex. Pen. Code § 46.04(b).

The Texas Family Code defines family violence as “an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault.” Tex. Fam. Code § 71.004. Additionally, under Section 22.01 of the Texas Penal Code an assault involving the person’s family or household occurs if the person causes bodily injury to another, threatens a person with “imminent bodily injury,” or causes physical contact with someone that they know or should know would find “offensive or provocative.” From these definitions you can see that a misdemeanor conviction of domestic violence in Texas expands the qualifying convictions beyond those that qualify under the Lautenberg Amendment.

If a person is convicted of a misdemeanor offense of family violence the court must notify them that it is against the law for them to possess or transfer firearms or ammunition. Tex. Code Crim. Proc. art. 42.0131. Additionally, if a defendant decides to enter a plea of guilty or nolo contendere for a misdemeanor involving family violence the court must, before accepting the plea, admonish the defendant with the following:

“If you are convicted of a misdemeanor offense involving violence where you are or were a spouse, intimate partner, parent, or guardian of the victim or are or were involved in another, similar relationship with the victim, it may be unlawful for you to possess or purchase a firearm, including a handgun or long gun, or ammunition, pursuant to federal law under 18 U.S.C. Section 922(g)(9) or Section 46.04(b), Texas Penal Code. If you have any questions whether these laws make it illegal for you to possess or purchase a firearm, you should consult an attorney.”

Tex. Code Crim. Proc. Art. 27.14.

Texas law does not require the defendant to surrender firearms or ammunition once the possession is prohibited. Neither does Texas law specifically authorize or require the removal of firearms or ammunition from the scene of a domestic violence incident.

In short, Texas law provides a prohibition of gun possession for five years after release from confinement or probation in more circumstances than under the Lautenberg Amendment. However, if your conviction is also a qualifying conviction under the Lautenberg Amendment then your right to possess a firearm is indefinitely prohibited. If you find yourself in that situation your only option to restore your firearm rights is to request a full pardon and restoration of civil rights in your pardon paperwork.

Are You Currently FacingDomestic Violence Assault Charges in Tarrant County?

Whether you have already been convicted or are currently facing charges of assault it is extremely important to know the heavy consequences that are attached to convictions where the underlying conduct is considered domestic violence. There are many misconceptions out there on whether federal firearm ban applies to a specific assault case. It is important that you know for a fact whether it applies to you so that you don’t risk violating federal law. If you are facing charges for an offense involving family violence under Texas law, contact our criminal defense team and schedule a free consultation to discuss and determine what consequences you are facing and whether the federal and/or Texas firearm ban applies to you.

Can My Spouse be Forced to Testify Against Me in a Criminal Trial in Texas?

Everyone knows (or should know) of the attorney-client privilege which prohibits the calling of an attorney to testify as a witness against his client and protects the attorney-client relationship. But what about the husband-wife relationship? Are spouses afforded any protection from having their spouse testify against them in a criminal trial?

Yes. In Texas there are two "Husband-Wife" privileges that apply to the marital relationship: spousal immunity and the marital communication privilege. Many people are aware that certain privileges arise but often do not know exactly what protections these privileges provide. The following article discusses both of the matrimonial privileges in Texas.

See the full text of Texas Rule of Evidence 504 - Spousal Privileges

What is Spousal Immunity? How does Spousal Immunity work in Texas?

Spousal immunity is the privilege that exists in a criminal trial for the defendant’s spouse not to be called as a witness in certain situations.  Tex. R. Evid. 504(b). This privilege applies to spouses that are married to the defendant during trial and are asked to testify as to matters that occurred during the spouse's marriage to the defendant. The non-defendant spouse holds this privilege; meaning he or she is the one who may invoke the privilege not to testify and it is ultimately his or her decision. Tex. R. Evid. 504(b)(3). Thus, if the spouse wants to voluntarily testify for the State, she may do so regardless of whether the defendant objects to the spouse's testimony.

Spousal immunity does not stop the defendant from calling their current spouse as a witness. If a defendant chooses to do so the spouse cannot assert this privilege and will be required to testify. With that, if the defendant does not call the spouse and surrounding evidence suggests the spouse could testify to relevant matters the State is allowed to comment about that. 504(b)(2).

Exceptions to Spousal Immunity in Texas

There are two exceptions to spousal immunity in Texas.

• First, the privilege does not apply in a criminal proceeding in which the defendant has committed against the spouse (e.g. Domestic Violence) or prosecution for bigamy.
• Second, the privilege does not apply when the spouse is called to testify about matters that occurred before they were married to the defendant.

What is the Texas Marital Communication Privilege?

Under Texas Rule of Evidence 504(a), spouses have the privilege to prevent testimony of certain communications made during the marriage from one spouse to the other spouse.  Unlike the spousal immunity privilege, the marital communication privilege may be invoked by either the defendant or the spouse being called as a witness. Additionally, this privilege survives divorce; meaning it applies whether or not the defendant and the spouse are still married as long as the communications were made while they were married. Tex. R. Evid. 504(a)(2).

This privilege only applies to communications that were intended to be confidential, that is, they were made privately with no intent to disclose to anyone other than the spouse. A communication will still be confidential if someone overheard the conversation if the defendant spouse made the statement without knowledge or intent that the other person would hear the conversation. Basically, the requirement is that the communication made was intended for the spouse’s ears only.

Exceptions to the Marital Communications Privilege in Texas

There are two exceptions to the confidential communications privilege.

• First, if the communication was made in whole or in part to aid in the commission of a crime the privilege does not apply.
• Second, the marital communication privilege does not apply in prosecutions for crimes against the defendant’s spouse, any minor child, or a member of the defendant or defendant spouse’s household.

In conclusion, there are certain situations where matters occurring between spouses are kept within the sanctity of the marriage and will not come out in court. However, as you can see these privileges are very specific and it is important to be aware of what exactly is privileged and when such privileges apply.

See the full text of Texas Rule of Evidence 504 - Spousal Privileges

There are many consequences for persons arrested and charged with a crime in Texas.  One of the often overlooked considerations is whether and to what extent a criminal accusation impacts one's authorization to carry a weapon with a License to Carry (LTC), formerly a Concealed Handgun License (CHL). The reality of gun possession in today’s political climate is that the restrictions are many and increasing.

Texas has very specific guidelines regarding qualifications for obtaining a License to Carry a Handgun. But, what most do not realize is that there are also strict regulations in place while a person possesses that license – especially if a person is arrested and charged with a crime.

What happens to my License to Carry or CHL if I’m arrested and charged with a crime?

Texas Government Code 411.187 spells out the scenarios that require the Texas Department of Public Safety (DPS) to suspend one’s LTC or CHL. In regards to criminal charges, the department SHALL suspend an LTC if the license holder is charged with the commission of:

• a Class A or Class B Misdemeanor;
• an offense under Section 42.01 of the Texas Penal Code (Disorderly Conduct); or
• any Felony offense.

In addition, a person’s LTC or CHL will be suspended if a person is arrested for any offense involving family violence or disorderly conduct and is subject to an active protective order.

How long will my License to Carry be suspended if I’m arrested and charged with a crime?

Unfortunately, the law is clear that the suspension will remain in place until the dismissal of the charges or for the duration of the protective order (in a family violence case.) Texas Government Code 411.187(c)(3).

What happens to my LTC or CHL if I’m convicted of the charge?

If you are convicted of any felony or of the offense of “Unlawful Carrying of a Handgun by a License Holder,” your license to carry a handgun will be revoked permanently. Texas Government Code 411.186 (3) & (4).

If you are convicted of a class A or class B misdemeanor, your license will remain suspended and you will only be able to re-apply for a new LTC when you once again meet the initial eligibility requirements.

A person is eligible for a LTC if they have not, in the five years preceding the application, been convicted of a Class A or Class B misdemeanor or disorderly conduct. What this essentially establishes is a 5-year waiting period from the time of your conviction to the time when you can apply again for your handgun license.

What about being convicted of offenses involving family violence?

Offenses involving family violence carry more significant consequences. If you are convicted of a Class C, Class B or Class A misdemeanor involving family violence, then Federal Law prohibits you from owning or possessing a firearm. Also, under Federal Law, even a plea to deferred adjudication constitutes a conviction and bars a person from owning or possessing a firearm. Because of this, a conviction for any misdemeanor involving family violence would prohibit you from ever being eligible to obtain your concealed handgun license in Texas. See Texas Government Code 411.172 (a) (9).

This week, the Texas Court of Criminal Appeals released Henley v. State. In a 4-3 decision the divided court held that the defendant was not allowed to offer “defense of a third party” as a legal argument in his assault case, because it “was not material to, nor probative of, any fact that was of consequence to the determination of this action.”

Henley v. State (Tex. Crim. App. 2016)

Henley was Charged with Domestic Violence in Tarrant County and Offered a “Defense of Others” Argument at Trial

Mr. Henley was charged with misdemeanor assault causing bodily injury to a family member (domestic violence). Henley was alleged to have pulled his ex-wife out of her car by her hair, punched her in the face several times, and hit her head against the concrete driveway.

At trial, Henley asserted a “defense of others” defense, which is an extension of the traditional self-defense argument. The rationale he provided for this defense was that he did not think his ex-wife was a fit parent because her new husband had sexually and possibly physically assaulted the children. The mother’s new husband was not present during the altercation and did not pose any immediate threat, but Henley tried to argue nonetheless that he was defending his children from being exposed to a physically and sexually abusive environment.

The trial judge did not allow Henley to present the defense of others claim and he was convicted. The 2nd District Court of Appeal (Fort Worth) reversed the trial court, holding that Henley should have been allowed to present his defense. The State appealed to the Court of Criminal Appeals.

What is the Standard to Assert Defense of a Third Party?

To claim defense of a third person, a defendant must reasonably believe his intervention was immediately necessary to protect the third person from the threat of force.

The question in this case was not, “is defense of a third person an effective defense when considered by the jury?” Rather the question was “should the defendant be allowed to bring that defense at all under these facts?”

A Divided CCA Holds that the Trial Judge Did Not Err in Denying Henley the Ability to Raise Defense of a Third Person

The slim majority said no,. Henley should not be able to bring this defense because his aim was not to offer material or probative evidence, but rather to introduce evidence of how bad of a mother. Henley’s ex-wife is, and perhaps try to finagle a jury nullification. The majority saw Henley’s attempted defense as nothing more than an attempt to circumvent the judicial and evidentiary process and try to make an emotional appeal to the jury rather than a factual one.

The dissenting judges (Keller, Hervey, and Newell) argued that the defense should have been allowed because anything thing that is of consequence to the determination of the action more probable or less probable than it would be without the evidence should be deemed relevant and therefore admissible. Further, the question of whether Henley’s defense claims were reasonable belonged to the jury not the judge. It was the jury who should decide if Henley, in fact, acted reasonably on that day in question.

What are the Implications of this Holding for the Defense of Third Person Claim in Texas?

This case demonstrates that Defense of a Third Person is not as easy as simply claiming it. There must be evidence to show that the defense is reasonable. The evidence must show that the “intervention was immediately necessary to protect the third person from the threat of force” or it could be disallowed by the trial judge. The valid defense of others is still viable; as viable as it ever was. It simply must fit the facts.

Did Rougned Odor Assault Jose Bautista Under Texas Law?

If you live in Texas, have a pulse and have absolutely any contact with the outside world, you are very aware of the incident that occurred between Texas Ranger’s infielder Rougned Odor and the Toronto Blue Jays' Jose Bautista during last Sunday’s game. If you have no idea what I’m referring to, STOP reading, watch this video and then come back and finish reading. Bautista was attempting to break up a double play at second base by taking a hard slide at Odor’s legs (which Odor avoided). After the slide, Bautista quickly stood to his feet and squared up to Odor. Odor pushed Bautista and both men went to throw a punch, but Odor was quicker and landed a strike directly on Bautista’s jaw, causing Bautista’s sunglasses to fly and the benches to clear in an all-out brawl between both teams. Under Texas law, if Odor caused Bautista physical pain or even if this physical contact was offensive, Odor could theoretically be charged with assault.

Assault Under Texas Law

Some know (but most don’t) that it doesn’t take much to be charged with a Class A misdemeanor Assault in Texas, even less for a Class C Assault. A person commits the offense of assault in Texas if that person intentionally, knowingly or recklessly causes bodily injury to another. Bodily injury as defined by Texas law means physical pain, illness or any impairment of physical condition.

Theoretically, a simple pinch could result in a class a misdemeanor assault if it causes another pain. The law further goes on to provide that a person commits the offense of assault if a person causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative (that is a Class C and is punishable by fine only).

What are Rougned Odor’s Defenses to a Charge of Assault?

While it is highly unlikely (and unprecedented in a sports context) that Odor would be charged with assault for his actions against Bautista on Sunday, he does have some viable defenses under Texas law.

Self-Defense

In analyzing the situation, it could be argued that Odor’s actions were a result of self defense. Texas law provides that a person can be justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force. Watching the incident again, one can see that Bautista clearly committed an illegal slide by attempting to interfere with Odor’s legs. Had Odor not been able to dodge the attempt, it’s possible that this type of slide could have caused bodily injury to him, hence the reason this type of slide is illegal. Immediately upon rising to his feet, Bautista turns to face Odor in what could be perceived as a threatening stance. Odor, in an effort to distance Bautista from himself gives Bautista a shove to the chest. The shove results in Bautista winding his right hand back which could also be reasonably perceived as preparing to strike Odor. Odor, with reactions obviously much quicker than the sluggish Bautista, literally beats him to the punch and ensures that no further harm can befall him at the hands of Bautista. A reasonable jury could conclude that Odor’s reactions were justified and immediately necessary to protect himself from Bautista’s efforts to cause him harm.

Consent

In addition to the potential defense of self defense, Odor could also raise the defense of consent. Under Texas law, a victim’s effective consent or the actor’s reasonable belief that the victim consented to the actor’s conduct is a defense to an assault charge as long as the conduct did not threaten or inflict serious bodily injury. In addition, consent is a defense to assault if the victim knew that the conduct was a risk of his occupation. Could a jury reasonably conclude that Bautista consented to the assault due to the fact that he should have known that a solid right hook to the jaw was a risk of his occupation - especially following an illegal slide? There are unwritten customs in professional baseball. Anyone who’s followed professional baseball for any significant amount of time has witnessed a fight break out in the course of such extreme competition. Ultimately, a jury could conclude that under these laws there was consent and that Bautista should have known that this type of action was a risk of his occupation.

Will Rougned Odor be Criminally Charged with Assault?

No, he won’t. Fights like this happen on the field of professional sports on a fairly regular basis (even more so on the ice during professional hockey games). In addition to clear defenses, law enforcement has broad discretion to determine whether a crime has been committed and prosecutors have broad discretion whether to pursue cases or not. It’s clear that that discretion is used regularly when these things happen (and I’m sure my prosecutor friends will comment and give even more reasons why this type of thing would never warrant criminal charges). Regardless of the national media coverage of the fight, Odor is now a folk hero in DFW. No, the only indictment being issued from this fight is an indictment on Bautista’s prior behavior and unsportsmanlike conduct. I’m not sure if this saga is over, but I would have to say that Bautista’s sentence has now been served — right off the end of Rougned Odor’s right fist.

Is it unusual for a misdemeanor case go to a grand jury? Simply put, YES.

Most misdemeanor cases in Texas are charged by way of a document called an ”information." An information does not have to be issued by a grand jury. The information can simply be prepared and reviewed by a District Attorney and then subsequently filed in a court with proper jurisdiction. Felony cases, on the other hand, must be indicted by a grand jury unless a defendant chooses to waive indictment and proceed without one.

What is a Grand Jury?

A grand jury in Texas is a group of 12 lay people qualified under the Texas Code of Criminal Procedure. These people must be citizens of the county in which the grand jury sits amongst other basic qualifications. Ultimately, the grand jury’s job is to listen to facts presented to them regarding the cases that they review and determine if probable cause exists for the State to continue forward to court. The grand jury does not have to be convinced beyond a reasonable doubt as to the person’s guilt; they simply need to determine whether it is probable that the person committed the alleged offense based on the facts and testimony presented.

People often mistake a grand jury for a petit jury like they see in movies and television. A grand jury is very different from the juries that hear and decide the final trial. During a grand jury proceeding, there are no arguing defense attorneys or heated opening and closing statements, and there is no judge that physically presides over the process. The grand jury meets together in private room with prosecutors and witnesses. A major distinction of the grand jury is that all grand jury proceedings are secret. The Texas code of criminal procedure clearly states that all grand jury proceedings “shall be secret.” Another basic distinction is that the grand jury is organized and run solely by the district attorney’s office. The grand jury is essentially a tool used by and for the district attorney.

Why is Johnny Manziel's Misdemeanor Allegation Going Before the Dallas Grand Jury?

So – now that you know what a grand jury is and what they do – what does this mean for Johnny Football? If the filing of an "information" is the normal course of action for misdemeanor cases in Texas, why will Dallas County grand jurors review Johnny Manziel’s case tomorrow? That answer rests solely with the Dallas County District Attorney. We can only speculate as to why this may be.

Manziel’s case is obviously high profile for Dallas. If the Dallas DA’s office were to take the case and simply file it with an information or not reject it without the review of the grand jury, they face scrutiny from both sides of the aisle. If they file the case, Manziel’s supporters would claim that the DA’s office is trying to unfairly make an example of his celebrity status and constant publicized antics. However, if they refuse to file the case, Manziel’s critics and domestic abuse activists might claim that his popularity, money, and status are unfairly allowing him out of another sticky situation.

So, what better way to take the District Attorney’s name off of the ultimate decision than to let the Dallas County community – a.k.a. the grand jury – make it? More than likely this is precisely why, unlike most other misdemeanor cases in Dallas County, the grand jury will review Johnny Manziel’s case.

Does this make Johnny Manziel's Case a Felony?

No. A grand jury can hear a misdemeanor case just like it can hear a felony case, we just do not see grand juries used for misdemeanor cases very often. If the grand jury votes to issue an indictment, Manziel only faces a misdemeanor charge for Assault (Bodily Injury) to a Family Member.  This offense is a Class A misdmeanor which carries a punishment range of 0-365 days in county jail and a fine up to $4,000.

Ultimately, this may just be the fairest way for the State to proceed and review Johnny Football’s case and precisely the right time to use the grand jury for a misdemeanor case. As a defense attorney, I wish all of my misdemeanor clients got the benefit of a grand jury review, but the volume of cases is just too high for the State to be expected to process all felonies and misdemeanors through a grand jury.

The jury is still out on Johnny Football’s NFL career, but tomorrow the Dallas county grand jury gets to decide if even more juries lie ahead for this once seemingly-invincible Heisman Trophy winner.

Links to more Manziel Grand Jury Articles:

• Why Bringing Johnny Manziel's Case to a Grand Jury is Abnormal
• Johnny Manziel's case will be heard by grand jury Thursday
• Is Johnny Manziel smarter than a ham sandwich?

Baiza v. State | How Slowly Should an Officer Read Miranda Warnings?

We all know that the police must read the Miranda warnings before they question someone that is under arrest.  But what does that look like in a practical sense? Can the officer read the Miranda warnings like the side effect warnings in a prescription drug commercial, where we can't understand them? Or does he have to read them slowly, ensuring that the person being questioned fully understands each provision?  This issue recently came up in Baiza v. State, an appellate case in the 11th Circuit Court of Appeals.

Gregory Baiza was convicted for sexual assault of his wife and sentenced to twelve years in prison. Baiza was in a common-law marriage with his wife and had two children together. There was an argument between the two when Baiza found out that his wife was pregnant with their third child. Baiza’s wife claims that Baiza forced himself on her after this argument. Eventually the police were called on the scene.

After Baiza’s wife left for the hospital, she decided to press charges on Baiza. A detective came over to get a statement from Gregory Baiza but he refused. The detective then placed Baiza under arrest. Baiza, however, admitted during the second recorded statement that his wife told him to stop but that he kept going - a statement that would ultimately lead to his conviction for rape at trial.

Baiza argued to the Eleventh Court of Appeals that this admission during the recorded statement should not have been allowed into evidence at the trial court. Baiza argued that when the detective read Baiza the Miranda warnings, he read them so fast that they were unintelligible. Specifically, Baiza argued that he did not hear the warning that he was allowed to terminate the interview at any time.

Strict Compliance with Miranda Rules Not Required, But the Reading of Rights Must be Intelligible

In reviewing this issue, the Eleventh Circuit notes that strict compliance with the Miranda rules is not required, but rather a “substantial compliance” will suffice. “Thus, the warnings given to an accused are effective even if not given verbatim, so long as they convey the ‘fully effective equivalent’ of the warnings.” In order for an admission to be allowed in court, the warnings must also be on the recording. The court listened to the recording to determine if the detective gave the prescribed warnings to Baiza. The detective read the warnings from a card to Baiza. The court slowed down the audio and determined that the detective did in fact inform Baiza that he has the right to terminate the interview. However, the Eleventh Circuit determined that when played at actual speed, the “right to terminate” warning is unintelligible.

The Eleventh Circuit determined that because the “right to terminate” warning was unintelligible, that the warnings were not given and that the trial court erred when it allowed the admission into evidence. The Court then went on to find that they did not have fair assurance that the error did not influence the jury or that the error influenced the jury only slightly by incorrectly allowing this admission into evidence. For these reasons, the Eleventh Circuit reversed the judgment and remanded for a new trial.

It is very difficult to get a case overturned, even when evidence has been incorrectly admitted. But here, the Court finds that even though the detective read Baiza his Miranda warnings, reading them so quickly as to make a key part unintelligible was enough to keep out an admission by Baiza from evidence. Specifically, the court finds that the “right to terminate” is a crucial part of the Miranda warnings and that a detective or officer cannot read them so quickly as to make them unintelligible or any admission shall not be admitted into evidence.

Read the full opinion in Baiza v. State.

What Should the Trial Judge Do When the Jury Returns an Unauthorized Verdict?

At the trial of Reginald Nixon for burglary of a habitation and evading arrest, the jury returned a guilty verdict and sentence of 7 years for the burglary and 9 years for the evading. However, the verdict form contained a handwritten note that read: “*To be served consecutively, not concurrently.” A consecutive sentence would mean that the two verdicts are added together to make the actual prison term 16 years. The jury had previously asked the judge whether the sentences would run concurrently and the judge refused to answer them, advising them to simply continue with their deliberations. Without an answer to their question, the jury took the matter into their own hands.

The problem with the jury’s verdict of 7 years and 9 years to run consecutively is that it is not an authorized sentence. Under Texas law, the sentences in Nixon’s case were required to run concurrently rather than consecutively. As a result, the trial judge refused to accept the sentences and reform them to run concurrently (as he was urged to do by Nixon’s counsel). Instead, the judge sent the jury back with a note advising them that the sentences cannot run consecutively. The jury soon returned with new verdicts of 16 years confinement for each offense, which the judge accepted.

Nixon appealed, again urging that the trial judge erred by failing to accept and reform the original jury verdicts. The 2nd Court of Appeals (Fort Worth) affirmed the trial court’s judgments and “reasoned that while the judge may have had the authority to reform the verdict under Article 37.10, he also had the authority to refuse the verdict and return the jury to their deliberations pursuant to this Court’s opinion in Muniz v. State [573, S.W.2d 792 (Tex. Crim. App. 1978)].”

The Texas Court of Criminal Appeals granted review and now reverses the holding of the 2nd Court of Appeals. The CCA highlighted the changes that were made in 1985 when the legislature enacted Section 37.10(b) of the Texas Code of Criminal Procedure. This change distinguished between “informal” and “unauthorized” verdicts. For unauthorized verdicts, Section 37.10(b) provides:

If the jury assesses punishment in a case and in the verdict assesses both punishment that is authorized by law for the offense and punishment that is not authorized by law for the offense, the court shall reform the verdict to show the punishment authorized by law and to omit the punishment not authorized by law.

CCA explained that the lower court’s reliance on Muniz was misplaced since Section 37.10(b) was not enacted at the time Muniz was decided. Further, the verdict form in Muniz was incomplete, unlike the verdict in this case, which was complete but contained an unauthorized portion.

The CCA concluded by holding:

Although the terms of confinement were 45 authorized punishments, the attempted cumulation was punishment unauthorized by law. Article 37.10(b)’s plain language is clear that, when the jury assesses punishment and returns a verdict assessing punishment that is both authorized and unauthorized by law, “the court shall reform the verdict to show the punishment authorized by law and to omit the punishment not authorized by law.” Accordingly, we hold that the judge erred in failing to accept the initial punishment verdicts and omit the jury’s unauthorized attempt to stack the terms of confinement.

Judge Alcala and Judge Yeary dissented.

In the age of social media it seems more and more that our identities are being fast tied to what we post, like, love, or retweet on social media. Our firm handles criminal cases on a daily basis and in the course of our work we’ve seen an increasing reliance by law enforcement and prosecutors on social media websites like Facebook, Twitter, and Instagram. More often than not, investigators are scrolling through the entirety of a person’s social media profiles scouring the information for incriminating statements, pictures or conversations. A Facebook picture or an Instagram post that one might consider innocent, humorous, or obscure could end up being a key piece of evidence used against that person in a court of law.

Here’s what you need to know about social media and the law.

Anything you post on Facebook, Twitter, and Instagram can and will be used against you.

Period. The general rule that citizens need to know is that by exposing information about yourself on social media you are essentially waiving your privacy rights. A person can’t scream at the top of their lungs in an open room the most private fact about themselves and then expect it to go unheard. The same is true about social media. By posting on sites like Facebook, Twitter,and Instagram, you are essentially consenting to whatever information you disclose to be made public.  Even if your profile is set to private, your friends could end up sharing your content. Once public, that information is now available to everyone…including the government. If you are under investigation or suspect you might be under investigation for a criminal offense, and you have social media profiles, never post anything if you think it has even a remote possibility of hurting your case.

What can be done to protect my privacy on sites like Facebook, Twitter, and Instagram?

Don’t post! The first thing you can do is to place a limit and a premium on your social media activity. Some people feel like social media websites are the perfect forum for venting frustrations, making off-color jokes or personally attacking others. If you think about what you are posting in terms of who might potentially see your post, then you should limit the things you say. Remember, anything you post will be considered public information.  If the temptation is too strong to post on social media, then you should really consider disabling your account altogether (at least while your criminal case is pending).

Can Social Media Privacy Settings be used to protect my information?

Privacy settings are the second step in preventing the government or any other unwanted viewers from obtaining your social media information. The majority of the more popular social media websites allow you to limit who can see your information and what can be seen. Putting strict limits on who and what can be seen on your Facebook, Twitter, and Instagram pages can be very effective in preventing unwanted eyes. But is it enough? For the general public, yes, it is. Further, law enforcement agents typically do not have special privileges to see information that has been set to “private” either. But, there are other ways of getting your information and viewing your profiles. Law enforcement has been known to create fake profiles with attractive pictures to entice users into accepting friend requests and allowing them to view information intended for friends only. There is nothing that legally prevents law enforcement from taking such actions.

If my Facebook, Twitter, and Instagram accounts are set to “Private,” is that enough to protect my information?

Ultimately, no. Even if a person hasn’t unwittingly accepted a friend request from an officer or agent and has limited access to their profile via privacy settings, law enforcement can still get a subpoena, court order or search warrant for your social media information.

According to their website, Facebook will only disclose records in accordance with the Stored Communications Act (“SCA”), 18 U.S.C. Sections 2701-2712 and in response to:

• A valid subpoena issued in connection with an official criminal investigation is required to compel the disclosure of basic subscriber records (defined in 18 U.S.C. Section 2703(c)(2)), which may include: name, length of service, credit card information, email address(es), and a recent login/logout IP address(es), if available.
• A court order issued under 18 U.S.C. Section 2703(d) is required to compel the disclosure of certain records or other information pertaining to the account, not including contents of communications, which may include message headers and IP addresses, in addition to the basic subscriber records identified above.
• A search warrant issued under the procedures described in the Federal Rules of Criminal Procedure or equivalent state warrant procedures upon a showing of probable cause is required to compel the disclosure of the stored contents of any account, which may include messages, photos, videos, wall posts, and location information.

So, even if your privacy settings won’t allow anyone to view your profile, law enforcement agencies may still be able to get that information by way of a subpoena, court order or search warrant.

Assume that unwanted eyes will see what you post on Twitter, Facebook, and Instagram.

If you’re under investigation for a criminal offense or charged with a criminal offense, you need to assume that unwanted eyes will see what you post on Twitter, Facebook, and Instagram. Our attorneys have handled cases involving cases where the government has used Facebook, Twitter, and Instagram postings against our clients. We don’t want that to happen to you. Call one of our attorneys and speak to us about what you can do to protect your information and ultimately your rights.

NOTE: The United States Supreme Court has confirmed that the police CANNOT search your cell phone to discover Social Media evidence, text messages, phone call, or anything else without a proper search warrant.

In Texas, our “failure to protect” statute is an omission statute—Injury to a Child by Omission—meaning it aims to encourage parents to remove their children from dangerous and violent environments. If a parent "fails to protect" their child from certain known dangers, that parent can be charged with Injury to a Child by Omission, a felony level offense in Texas. The statute also covers injury to an elderly or disabled individual. If the person charged with Injury to a Child by Omission is a domestic violence victim, it is important to be aware of the Affirmative Defense Texas provides.

Texas’ Injury to a Child by Omission Offense | Failure to Protect

Section 22.04 of the Texas Penal Code provides that a person commits an injury to a child if he recklessly by omission, causes to a child: (1) serious bodily injury; (2) serious mental deficiency, impairment, or injury; or (3) bodily injury. Id. § 22.04(a).

An omission is conduct constituting an offense if: (1) the actor has a legal or statutory duty to act; or (2) the actor has assumed care, custody, or control of a child. PENAL § 22.04(b).

The Texas Family Code provides that a parent, guardian, conservator or foster parent of the child has the legal duty of care, control, and protection of the child. The State must prove that the defendant either intended or was aware that serious bodily injury would occur from their omissions. Patterson v. State, 46 S.W.3d 294.

Affirmative Defense to Prosecution for Domestic Violence Victims

In the early 90s, Texas established an affirmative defense for people charged with Injury to a Child by Omission. An affirmative defense is a complete and absolute legal defense. In the Failure to Protect scenario, a person can claim the affirmative defense if the following requirements are met:

1. there be no evidence that the defendant had any knowledge of a previous injury to the child and that they failed to report the injury;
2. the defendant “was a victim of family violence...committed by the same person “who is also charged with an offense against the child”; and
3. the defendant reasonably believed, at the time they failed to act, that any attempt to prevent the person from hurting the child “would have an effect.”

TEX. PENAL CODE ANN. § 22.04(l)(2) (West 2011).

The Reality of Prosecution for Failure to Protect in Texas

Most often, mothers are the ones charged with Failure to Protect in Texas. In 2014, there were 19 women in Texas prisons serving time for Injury to a Child by Omission with sentences starting at ten years, all the way up to 45 years. Seven of these women were domestic violence victims. In fact, a Tarrant County woman who was also a victim to the violence of the man who injured her child is currently serving 40 years. Hopper v. State, 2013 WL 4679166 (Tex. App.—Fort Worth Aug. 29, 2013, pet. ref’d.) Furthermore, the woman serving 45 years was a case out of Dallas County where she was also a victim to the violence of the man who injured her child. It is unknown whether these women asserted the affirmative defense at trial.

As mentioned above, there are serious consequences attached to Injury to a Child by Omission and it is important to recognize all possible defense options. Many people do not know that the affirmative defense regarding domestic violence exists. If you are charged with an Injury to a Child by Omission and are also a victim of the abuser’s violence, this defense might apply to you. Contact our team today to find out what steps can be taken in your case. Regardless of whether this affirmative defense applies in your case, our attorneys will still fight hard to get your case dismissed or mitigated in any way they can.

Baby On Board: What Does Texas Law Say About Keeping Our Kids Safe in the Car?

We’ve all seen those yellow “Baby on Board” signs proudly displayed by new parents on the back windows of cars. In a perfect world, drivers would slow down and car accidents involving children would never be an issue. But we don’t live in a perfect world. The Insurance Institute for Highway Safety (“IIHS”) reports that car accidents cause one in four unintentional injury deaths in children younger than 13. The IIHS explains that while most crash deaths occur among children traveling as passengers, proper restraint use dramatically reduces these fatalities.

Such statistics are a sobering reminder that we must do all we can do to ensure that our kids are safe while traveling in a car. So what can Texas families do to make our daily commutes safer for our children? What does Texas law say about keeping our kids safe in the car?

Car Seat Laws in Texas

The car seat law in Texas, meaning the rules for which you can be issued a Class C citation, are provided in the Transportation Code. Section 545.412(a) of the Texas Transportation Code states:

“A person commits an offense if the person operates a passenger vehicle, transports a child who is younger than eight years of age, unless the child is taller than four feet, nine inches, and does not keep the child secured during the operation of the vehicle in a child passenger safety seat system according to the instructions of the manufacturer of the safety seat system.”

SUMMARY OF TEXAS CAR SEAT LAW:

• 8 years - Children must remain in some sort of car seat or booster seat system until they are 8 years old;
• 4'9" Tall - If a child younger than 8 is taller than 4'9", he or she may ride in a normal seat without a booster; and
• Follow manufacturer instructions - It is a violation to use a safety seat improperly.

One of the important parts of the Texas car seat law is that seat must be properly installed according to the manufacturer’s instructions. USA Today reports that nearly half of all car seats are installed improperly.  Many law enforcement agencies are trained to understand proper car seat installation. While it is unlikely that an officer will issue you a citation if you have a car seat that happens to be improperly installed, you should still make sure to get your car seat checked out for the safety of your child.

DEFENSE: It is a defense to prosecution that the individual is operating their vehicle during an emergency or for a law enforcement purpose.

PENALTY: Failure to comply with §545.412(a) may result in a fine ranging from $25 to $250, plus court fees.

Car Seat Guidelines in Texas

Some additional car seat tips are provided as safety guidelines or best practices, meaning that there is not a law on the books in Texas covering this.  However, these are good practices that are taught by doctors and child car safety experts:

• All infants and toddlers should ride in a rear-facing car seat until they are at least two years old, or until they max out the weight or height limits per the manufacturer’s limits.
• Children two to four years old may ride in a forward-facing seat according to the manufacturer’s recommendations.
• Use a booster seat for children four to eight years old, according to the maximum height or weight limits provided by the manufacturer.
• Most seat belts will fit a child that is 4'9" tall (normally around 10 years old).  If your child is not 4'9" tall, you should consider keeping them in a booster seat to ensure proper seatbelt fit.

Seat Belt Laws in Texas

Under Texas law, all passengers in a motor vehicle must wear a seatbelt.  There are a few exceptions, like for postman, paper delivery crews, or garbage men; but for the average driver and passenger on the Texas roads, you must wear a seat belt. Section 545.413(a) of the Texas Transportation Code covers seat belt laws in Texas.  The law states:

“a person commits an offense if the person, who at least 15 years of age, rides in a passenger vehicle while the vehicle is being operated and is occupying a seat that is equipped with a safety belt, and is not secured by a safety belt.”

Further, §545.413(b) states that:

“a person commits an offense if the person operates a passenger vehicle that is equipped with safety belts and allows a child, who is younger than 17 years old and not required to be in a safety seat system, to ride in the vehicle without requiring the child to be secured by a safety belt.”

Can a Teenager Ride in the Bed of a Pickup Truck? No. Under Texas law, no person under 18 years of age may ride unrestrained in the bed of a pickup truck.

PENALTY: A violation of the seat belt law in Texas can result in a fine of $25 to $200 depending on the situation.

For teenagers, who are legally permitted to ride in the front passenger seat, the Texas Department of Transportation advises that wearing a seat belt while sitting in the front seat improves survival of a car accident by 50%. To be effective seat belts must be used properly—lap belts need to fit snugly on the hips and shoulder belts should go over the shoulder and across the center of the chest. Texas law says that safety belts—designed for adult use only—are not adequate for children under 8.

Front Seat and Back Seat Passenger Laws in Texas

There is not a law in Texas regarding who may ride in the front seat.  The driver must follow the car seat and seat belt laws, but there is not a law prohibiting any person or child from riding in the front seat. However, according to the safety "guidelines," anyone under age thirteen should be restrained in the back seat due to concerns with airbag impact.

Can I Leave My Kids Alone In the Car in Texas?

Yes, but only for 5 minutes.  In 2010, thirteen children in Texas were killed by vehicular heatstroke. As a result, the Texas legislature enacted laws dealing with the amount of time children can be left in a vehicle unattended. Under Texas Penal Code §22.10(a), “a person commits an offense if he intentionally or knowingly leaves a child in a motor vehicle for longer than five minutes, knowing that the child is (1) younger than seven years of age; and (2) not attended by an individual in the vehicle who is 14 years of age or older."

An offense under this section is a Class C misdemeanor. However, if the child is injured as a result of being left in the car, the crime can be increased to a felony, punishable by up to two years in jail and a $10,000 fine.

For More Information About Car Safety in Texas:

• American Academy of Pediatrics Car Seat Guidelines 
• Safe Kids Tarrant County
• Safe Riders Texas 
• Safer Car Installation Assistance
• Seat Check.Org 
• Texas Click It or Ticket 

Our firm has represented many defendants in Fort Worth with cases stemming from a bait car or a Backpage ad. For those of you not familiar with either, let me explain Bait Cars and Backpage.

What is a Bait Car?

A Bait Car is vehicle owned by the police department and equipped with GPS devices and cameras. But, the car looks like any regular car on the street. The police typically place something valuable inside the Bait Car, such as a paint spray rig, and then they park the car (with the keys inside) on the side of the street in a low-income part of town. If someone tries to steal the bait car or the valuables inside, the GPS is triggered, the camera is activated, and the police are alerted. In most cases, the person does not get very far before a patrol car arrives to arrest them for theft.

What is Backpage?

I doubt I can fully explain what Backpage is or how it is used, but in the cases that we see, Backpage is a website (akin to Craigslist) where escorts and ladies of the night advertise their services. Potential Johns can browse the Backpage website to arrange an interlude of momentary love. The police have been using Backpage and arranging for a female officer to meet men at a local motel room posing as a prostitute. With backup officers waiting in the bathroom, the John is arrested for Solicitation of a Prostitute when they arrive to meet the woman/officer they contacted on Backpage.

Is it Entrapment for the Police to Use a Bait Car or to Advertise on Backpage?

We get this question in every Bait Car or Backpage case. To answer the question, we typically explain that fairness and equity are not the same as the legal defense of entrapment. Just because the police conduct doesn’t seem fair or because we think the police are “creating the crimes,” does not mean that it is entrapment.

Section 8.06 of the Texas Penal Code defines the affirmative defense of Entrapment:

“It is a defense to prosecution that the actor engaged in the conduct charged because he was induced to do so by a law enforcement agent using persuasion or other means likely to cause persons to commit the offense."

The Penal Code goes on to explain that: “Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.”

Therein lies the rub. By using a Bait Car and by advertising escort services on Backpage, the Fort Worth police are “merely affording a person an opportunity to commit an offense,” so under the law, entrapment would not apply to these situations. Don’t get me wrong, we hate Bait Cars and Backpage. We wish the police would use their time and resources toward real crimes, rather than “creating opportunities” for people to commit crimes. Why in the world would we want to create opportunities for people to commit crimes in the first place? That is similar to setting up a keg right outside the AA meeting with a sign for free beer.

Whether we like it or not, entrapment does not apply as an affirmative defense in these cases. Regardless, our attorneys still fight hard to get bait car and Backpage cases dismissed, reduced, or mitigated any way we can. Anecdotally, we’ve seen that a lot of prosecutors don’t like these cases any more than we do. Hopefully, we will see bait cars and Backpage go away soon, but until then, know that Entrapment won’t help you if you choose the wrong car or the wrong escort.