Fort Worth Criminal Defense

DWI Caselaw Update | Fort Worth Criminal Defense Lawyers

The Fifth Amendment protection against double jeopardy is often viewed as a guarantee against having to stand trial for an offense if an individual has already been found not guilty in a previous trial. It also applies to situations where a defendant is charged with more than one offense: Is it double jeopardy if a defendant receives multiple punishments for the same transaction for multiple offenses?

Yousef Benson was convicted of two offenses as a result of a 2010 traffic accident that seriously injured another individual--intoxication assault and felony DWI.  The offense of intoxication assault occurs when a person "by accident or mistake . . . while operating a motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another."  Felony DWI occurs when a person "is intoxicated while operating a motor vehicle in a public place" and the person has been previously been convicted of two DWI offenses.

The appellant argued that the two offenses should be considered the same offense, which would prevent the imposition of multiple punishments. The state argued that the offenses were separate and that multiple punishment was allowed. The principle point of contention was whether the previous conviction requirement for felony DWI is an element of the offense or is a punishment enhancement.

The Court of Criminal Appeals performed an "elements" analysis. The elements analysis looks at the specific elements of each crime. If each crime has the same elements, then a court presumes that the offenses are the same for purposes of double jeopardy. Conversely, if two offenses have different elements, the presumption is that the two offenses are separate. In either case, the presumption can be rebutted by showing that the legislature clearly intended the opposite result.

In Benson, the CCA focused on felony DWI's requirement of two previous convictions. In some cases, such requirements are viewed as creating a separate offense; in other cases, they are considered an enhancement of the level or the punishment for the offense. As Benson acknowledged, the CCA had already held in earlier cases that the required prior convictions for felony DWI constitute an element of the offense, calling them "specific attendant circumstances" that help define the offense. In other words, intoxication assault and felony DWI are presumed to be separate offenses, and a defendant can receive a sentence for each offense.

The CCA then turned to the question of whether there was evidence to rebut the presumption: Did the legislature intend for the two offenses to be treated as one? The court acknowledged that the two offenses are in the same chapter of the criminal code, a factor that supports the same-offense position. But the court looked at the language of the statute and concluded that if the legislature had intended the two offenses to be the same, they would have structured the statutory language differently.

The court also looked at the name of the offenses, pointing out that both offenses have some form of the word "intoxicate" in their names, although used as a modifier in each name rather than as a noun. The court concluded that this factor slightly favored the same-offense position.

The court noted that the two offenses have the same punishment ranges. Although this factor can favor either position, the court concluded that it slightly favored treating the same-offense view.

The court looked at the focus of the offenses and found intoxication assault to be a result-oriented offense (causing serious bodily injury) and felony DWI to be a conduct-oriented (driving while intoxicated) or circumstances-oriented (two prior convictions) offense. Unlike intoxication assault, felony DWI does not even require a victim. This analysis favored treating the offenses as separate.

Finally, the court considered the history of the two offenses and concluded that the various revisions of the criminal code supported the position that the two offenses are separate.

In its final analysis, the court recognized some factors supported Benson's argument (same offense). However, the court considered the factors supporting the state's position (separate offenses) as "more substantial." In the court's view, the evidence did not support the view that the legislature intended one punishment. Therefore, separate punishment for each offense was not a violation of Benson's right to protection from double jeopardy.

How Do I Drop a Family Violence Case in Tarrant County?

In our practice as criminal defense lawyers, we often get calls about Family Violence (Assault of a Family Member) cases. These cases typically result from an argument that got out of hand, wherein one party called the police to help diffuse the situation, not knowing that the police would take someone to jail. Many times there seems to be a bit of confusion regarding whether the "victim" of the alleged assault can "drop" the case after the other person is arrested and charged with Family Violence.

In Fort Worth, the Tarrant County District Attorney's office has a "No-Drop Policy" on Family Violence cases. The No Drop Policy basically means is that once the case is filed with the District Attorney's office, it is NOT the alleged victim's choice whether to drop the charges. It is entirely in the prosecutor's discretion how to handle the case if the victim does not want to go forward.

Despite the No Drop Policy, there are things that an alleged victim can do to express his or her desire that the case not be prosecuted. This begins with the Alternatives Class offered through Safe Haven. Before the District Attorney's office will allow an alleged victim to sign an Affidavit of Non-Prosecution, they require that the alleged victim attend this 4-hour class.

After the alleged victim attends the Alternatives Class at Safe Haven, he or she may then elect to speak with the victim coordinator at the District Attorney's Office. In this interview, the alleged victim will be allowed to talk with the victim coordinator and tell them why they believe the case should not be prosecuted. This is also the time in which the alleged victim will sign the Affidavit of Non-Prosecution.

These steps can go a long way in achieving a favorable outcome on domestic violence cases. If you or a loved one needs help navigating these options, please call us today. We handle Family Violence cases on a daily basis and have a proven track record of good results. Some helpful numbers are contained below.

Alternatives Class at Safe Haven - (817) 536-5496

Tarrant County Victim Coordinator - (817) 884-3535

I grew up with Sheriff Andy Taylor. And his trusty sidekick Deputy Barney Fife. If you've never seen the Andy Griffith Show, shame on you. It is an American classic about life in the small rural town of Mayberry, North Carolina. I would venture to say I've seen every episode (the black & white ones) at least four times each (syndicated reruns of course, because the show originally aired in the '60s).

One of the things I loved about Sheriff Andy Taylor was his innate sense of right and wrong. While Barney Fife was out there trying to arrest jaywalkers and moonshiners and everyone else who broke a minor municipal code, Andy saw the big picture. Andy may have very well been justified to make arrests or detain citizens for investigation, but he was more concerned with what was right and decent. And when he suspected or observed actual criminal activity he took action.

As criminal defense lawyers in Fort Worth, Texas, we read police reports every single day. In many of the police reports we read, the officer's actions are more akin to Barney Fife than Andy Taylor. I get the feeling that many officers have the mindset of "arrest everybody and let the DA sort it out." When officers are called out on a family assault or domestic violence call, somebody is getting arrested. Period. The officers don't try to deescalate the situation or truly figure out what the couple needs. They generally listen to the parties and arrest the one that has fewer injuries (regardless of which person may have called the police).

We've also seen numerous arrests of young people for committing youthful hijinks, such as trespassing on school property. Sheriff Taylor would have taken the kid home and made him tell his parents what he was doing. He wouldn't arrest the kid. But officers in DFW are making arrests in these scenarios.

Of course, we only see the cases where there are arrests. There may indeed be officers out there that are getting it right. But, we still see too many arrests when something less would have achieved the right result. Don't get me wrong.  We're not against law and order. We are champions of justice, and justice does not always mean arrest and prosecution. Perhaps the police academy training should begin with a rerun of The Andy Griffith Show. Personally, I recommend the episode where the cow thief was putting shoes on the cows.

Tarrant County District Attorney Sharen Wilson

Sharen Wilson, who took office in 2015, is the elected Tarrant County District Attorney. She is the top of all Fort Worth prosecutors, managing a large office of Assistant District Attorneys, investigators, support staff, and even a therapy dog.  Prior to assuming her new role as the Tarrant County District Attorney, Sharen Wilson presided over Criminal District Court Number 1 as a District Judge.  Her office receives cases from the various police departments across Tarrant County, investigates the cases, and files misdemeanor or felony criminal cases.  The Assistant District Attorneys under Sharen Wilson present cases to grand juries and manage dockets in the 20 Tarrant County criminal courts and the Courts of Appeals.  If you are interested in observing a criminal trial in Tarrant County, check out the Tarrant County Trial Board for a list of cases each week.

Fort Worth Prosecutors | Tarrant County DA

The Tarrant County District Attorney office has over 150 Fort Worth prosecutors and over 50 investigators. The office has a budget of $38 million dedicated to criminal prosecutions and investigations in Tarrant County.  Colloquially, every Assistant District Attorney is referred to as a "Tarrant County DA" or "prosecutor," but the ultimate authority over criminal prosecutions is retained by Sharen Wilson.  Fort Worth prosecutors are known across the state as fair and collegial attorneys.  They have a reputation for taking a fair look at each case and providing all available information to the defense bar in a timely manner.  Although the Tarrant County District Attorney office is one of the largest in the state, in one of the largest counties in the state, the office and its staff carry themselves with small-town values.  While each criminal case is different and may have its own challenges, our criminal defense attorneys have always been satisfied with the professionalism of the Tarrant County DA office.

Free Consultation of Tarrant County Criminal Cases

Our Fort Worth criminal defense attorneys square off every day with the Tarrant County DA office. We have a proven track record of favorable results for our clients. We understand that every case and every client are different. We take a personal approach to every client and pursue every option to address our clients' individual needs. For a FREE consultation of your Tarrant County criminal case, contact our team at (817) 993-9249.

United States Supreme Court | Search and Seizure Update

We expect that police officers know the law.  After all, they are charged with upholding the law.  But what happens when an officer makes a traffic stop based on an incorrect understanding of the law and then finds evidence of another crime during his improper stop?  The Supreme Court recently considered this scenario in the case outlined below:

In Heien v. North Carolina, a North Carolina police officer stopped a man for driving with one broken brake light.  The driver later gave consent to the officer to search his vehicle. The officer discovered cocaine charged the driver with trafficking cocaine. The driver argued that the officer made a mistake of law for stopping him on one faulty brake light and not two (which is what NC law requires) therefore evidence should be suppressed.  The NC vehicle code makes clear that the officer was mistaken when making the traffic stop.

The Supreme Court granted cert to review the case and the question of whether an officer who makes a mistake of law still gives rise to reasonable suspicion. They Court ruled that the officer's mistake of law was objectively reasonable and that ultimately, the Officer had reasonable suspicion to conduct the traffic stop.  In so holding, Chief Justice Roberts wrote "The Fourth Amendment requires government officials to act reasonably, not perfectly, and gives those officials 'fair leeway for enforcing the law.'"

While not dealing with specific state law in Texas, the ruling in this case did address reasonable suspicion as it relates to unreasonable searches prohibited by the 4^th Amendment.  Article 38.23 of the Texas Code of Criminal Procedure states:

No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

While Article 38.23 of the Texas Code of Criminal Procedure provides an exception if an officer is acting in objective good faith reliance on a warrant, it does not give a reasonable suspicion exception to conduct a search.  Clearly, the Heien opinion will be cited by the State to support searches even when the initial stop is conducted illegally.  We will just have to wait and see how our Texas Courts will react in light of Heien v. North Carolina.

We were asked this week to name our law firm's greatest achievement.  Hmm... We've experienced quite a few successes over the past several years; acquittals, dismissals, no bills.  We've built strong relationships with people in the Fort Worth community.  We've been fortunate enough to help many clients.  But our greatest achievement...

After some thought, we knew our greatest achievement.

Our greatest achievement is the warm hug or firm handshake of a grateful client.

Just the other day we completed a criminal case in Tarrant County where the client's parents had come to court to watch.  After the case was over we had a chance to speak with the parents in the hallway of the courthouse.  Our client's mother was so thankful and through her tears asked if she could give us a hug.  That was the biggest compliment we could ever receive.  It was the overflow of her heart and in that moment, we knew we had made a difference in their lives.

We absolutely love what we do.  We get to help real people.  We are thankful for the opportunities to be a blessing.  We know that it is no accident when a client walks into our office.  Praise God for His plans and His purposes.

In any criminal case involving sexual exploitation of a child in the making, possessing, or distributing of child pornography, there is an issue of restitution to consider.  More specifically, if the child suffered monetary damages, who is responsible to pay restitution to the child to make him/her whole?  Is it the person that created the images, the person that distributed them on the internet, the end user that downloads and possesses the images, or everyone?  The courts were split on this issue.   Some held that every person along the way should pay their share of the damages.   Other courts held that each person is responsible for the total damages.

The Supreme Court has now weighed in the issue and has held that every offender is liable for their share of the damages, not more.   Below is the synopsis of the case wherein the Supreme Court considered this issue.

Issue: Is a person who was convicted of possession of child pornography liable to pay full restitution to the victim (the child subject) or should the court limit damages to only that which was proximately caused by the convicted person's actual role in the exploitation?

Paroline v. United States, 134 S. Ct. 1710 (2014)- Petitioner Randall Paroline pled guilty to possessing 150 to 300 images of child pornography, including two images of a girl named "Amy" being abused by her uncle at the age of eight or nine years old.  Amy's uncle took a number of photographs depicting her in sexually abusive poses, and distributed the materials over the Internet.   However, Amy first learned that images of her abuse were being trafficked on the Internet when she was 17.  This new information caused renewed trauma from the events that took place when she was a young girl and it made it difficult for her to recover from the abuse.

Amy then sought restitution under 18 U.S.C. §2259 from Paroline even though he was not the originator of the pictures. Paroline argued that a victim's damages must be proximately caused by the defendant's conduct because any other result would turn child exploitation restitution proceedings into a procedural nightmare. Amy argued that §2259 did not require proximate causation for a victim to be entitled to full damages; otherwise, the victims of child abuse would bear the burden of collecting tiny shares of restitution from several defendants and might never receive full recovery.

The District Court declined to award restitution because the Government had failed to meet its burden of proving what losses, if any, were proximately caused by the Paroline's offense. The Fifth Circuit held that §2259 did not limit restitution to losses proximately caused by the defendant, and each defendant who possessed the victim's images should be made liable for the victim's entire losses from the trade in her images, even though other offenders played a role in causing those losses.

The Supreme Court vacated and remanded the Fifth Circuit's decision and held that restitution is proper under §2259 only to the extent the defendant's offense proximately caused a victim's losses. Victims should be compensated and defendants should be held accountable for the impact of their conduct on those victims, but defendants should only be made liable for the consequences and gravity of their own conduct, not the conduct of others. Where it can be shown both that a defendant possessed a victim's images and that a victim has outstanding losses caused by the continuing traffic in those images but where it is impossible to trace a particular amount of those losses to the individual defendant by recourse to a more traditional causal inquiry, a court applying §2259 should order restitution in an amount that comports with the defendant's relative role in the causal process that underlies the victim's general losses. Therefore, in determining the proper amount of restitution, a court must assess as best it can from available evidence the significance of the individual defendant's conduct in light of the broader causal process that produced the victim's losses.

In short: each defendant pays his or her fair share of the victim's losses in a child pornography matter.

The United States Supreme Court heard oral arguments a couple of weeks ago on Fernandez v. California.  HERE is Scotusblog's page on the case.

The case boils down to whether and to what extent a person may deny consent to search that is given by a co-tenant.  Below are the facts of the case.  A link to the oral argument audio is posted below.  We will be watching for a decision on this case as it stands to affect search and seizure law across the country.

FACTS: Police officers investigating an assault and robbery saw Appellant run into an apartment building.  Once they were inside the building, officers heard screams coming from one of the apartments.  The officers knocked on the door and Roxanne Rojas opened it.  When the officers asked Rojas to step outside so they could conduct a sweep of the apartment, Appellant stepped forward and told the officers not to enter.  The officers arrested Appellant for the assault and robbery and removed him from the scene.  The officers obtained consent from Rojas to search the apartment.  The officers seized weapons, gang paraphernalia and other evidence.

The trial court denied Appellant's motion to suppress the evidence recovered from the apartment.  The California Court of Appeal held Rojas' consent to search the apartment she shared with Appellant was valid.

In Georgia v. Randolph, the United States Supreme Court held police officers may not conduct a warrantless search of a home over the express refusal of consent by a physically present resident, even if another resident consents to the search. After Randolph, in United States v. Murphy, the Ninth Circuit Court of Appeals extended Randolph, holding if a defendant expressly withholds consent to search, a warrantless search conducted after the defendant has left or been removed from the residence is not valid, even if a co-tenant subsequently consents. However, the Fourth, Fifth, Seventh, and Eighth Federal Circuit Courts of Appeals, as well as the Colorado and Wisconsin State Supreme Courts have rejected the Ninth Circuit's analysis in Murphy.  These courts have held even if a defendant expressly refuses consent to search his residence, a co-tenant's consent obtained after the defendant leaves or is lawfully removed will support a warrantless search by police officers.

The issue before the Supreme Court is whether a defendant must be personally present and objecting when police officers ask a co-tenant for consent to conduct a warrantless search or whether a defendant's previously stated objection, while physically present, to a warrantless search is a continuing assertion of his Fourth Amendment rights which cannot be overridden by a co-tenant.

The Court heard oral arguments in this case on November 13, 2013.  To listen to the audio from the arguments, click HERE.

*UPDATE:  Supreme Court issues decision in Fernandez.

PROSECUTOR POST - Here is a helpful tip from a Texas prosecutor on Trial Advocacy in the criminal courtroom:

After years of practicing in criminal courts, I've seen numerous courtroom styles from criminal defense attorneys. One of the most prominent is the "grandstand" (a.k.a. Posturing). I would define the "grandstand" as attempted behavior exhibited by an attorney to establish dominance in the courtroom. Please note that word - attempted. From yelling to whining to stomping around and slamming things on counsel's table, I've seen it all. Sometimes this behavior isn't intentional but actual passionate investment, but more often than not I can see it's a show for the client.

The client wants the bulldog lawyer in the courtroom. At least that's what I hear. I think some of what I'm referencing is an attempt by these lawyers to be that bulldog by "grandstanding." However, in my experience, these attorneys that "grandstand" in court, end up looking like the yipping chihuahua instead of the bulldog. And it's funny to see the look on the defendant's face when he realizes he's hired the yipping chihuahua.

The more effective style I've seen is the old German Shepherd approach. The attorney that comes in and exudes that high level of comfort in the courtroom. He's professional to everyone (including state's counsel) and acts in a way that sends the message to his client - "yes, I've been here several times before." Does he "grandstand?" No. He establishes dominance by respecting the balance b/w the defense, the state and the bench. Does he bark? Sometimes. But only when there's cause. And when he barks everyone hears it and respects it.

Although polygraph tests are used from time to time in criminal justice matters, they have always been inadmissible at court because they are inherently unreliable.

HERE, Sarah Roland, a Denton County Criminal Defense Attorney, informs us about a troubling opinion from the Texas Court of Criminal Appeals.  A turning of the tide, if you will.  In Leonard v. State, the CCA overturned the 11th Court of Appeals (Eastland) and held that a polygraph test was admissible during a probation revocation adjudication against a person that was serving probation for a sex offense.

Because adjudication hearings are administrative proceedings, in which there is no jury and the judge is not determining guilt of the original offense, we hold that the results of polygraph exams are admissible in revocation hearings if such evidence qualifies as the basis for an expert opinion under Texas Rules of Evidence 703 and 705(a).

While the CCA is not saying that polygraphs will be admissible in an actual criminal trial, this "opinion is troubling," as Sarah puts it.  I agree.

Texas Stacking Sentences in Sexual Offenses

Nguyen v. State.

Section 3.03(b)(2)(B) of the Texas Penal Code authorizes consecutive sentences when the State convicts a defendant of multiple sex crimes arising from the same criminal episode. An interesting situation occurred when Appellant was charged in two separate indictments with aggravated sexual assault and sexual assault of two of his daughters. While the initial charges fell under Section 3.03(b)(2)(B), Appellant pled guilty to two counts of injury to a child (not a sex offense). He received a five year deferred adjudication sentence. Five months after he was placed on community supervision, the State filed a motion to revoke based on a violation of the “no contact” condition. The Judge revoked Appellant’s community supervision and sentenced him to 10 years confinement in each of the two cases, to run consecutively. Appellant appealed the sentence, arguing that Section 3.03(b)(2)(B), authorizing consecutive sentences in sex crimes cases, did not apply to his convictions because he had not been “formally” convicted of a sex offense.

The primary language at issue in the case was the portion of Section 3.03(b)(2)(B) that stated:

“(B) for which a plea agreement was reached in a case in which the accused was charged with more than one offense.”

The State argues that this provision, by its plain language, permits the trial judge to impose consecutive sentences for multiple nonsexual offenses if the defendant was originally charged with qualifying sexual offenses. Appellant argued that because 3.03 (b)(2)(A) excludes any nonsexual offense, the legislature never intended to authorize consecutive sentences for nonsexual offenses.

The Texas Court of Criminal Appeals held that the statutory language of Section 3.03(b)(2)(B) was ambiguous as to the specific issue brought up by Appellant’s case. Finding that the language of the statute was ambiguous, the Court looked to the legislative intent behind passing Section 3.03(b)(2)(B). The Court explained that,

the history shows that the legislature enacted this provision to ensure that defendants who, pursuant to a plea bargain, are placed on deferred adjudication for certain sex offenses are subject to the same requirements, disabilities, and punishments that had previously been applied only to those formally ‘convicted’ of a sex offense.

This case showed the willingness of the CCA to read a statute as a whole and to look to the legislative intent of the entire section vice a small portion. In the law, as in politics and elsewhere, a sentence or two taken out of context can be a dangerous thing.

The “charged with” language could have been easily misconstrued by isolating only subsection (B) and reading it apart from the rest of Section 3.03. It can also be misconstrued to not only read it in isolation, but to ignore the legislative intent behind the statute in the first place. Like anything, small snippets of statutes can be isolated and taken out of context. The State tried to capitalize on another poorly worded statute but the CCA looked past that argument to determine the meaning of 3.03 as a whole.

Finding that Section 3.03(b)(2)(B) refers only to plea bargain agreements resulting in convictions for child sex offenses, the CCA agreed with the Court of Appeal’s decision to modify the trial court’s judgment and ordered Appellant’s sentences on his two convictions for injury to a child to run concurrently.

Texas Penal Code Section 22.021(a) provides that a person commits aggravated sexual assault if the person intentionally or knowingly causes the penetration “by any means” of the anus or sexual organ of a child younger than 14 years of age. Section 22.021(d) provides that “it is a defense to prosecution…that the conduct [constituting the offense] consisted of medical care for the child and did not include any contact between the anus or sexual organ of the child and mouth, anus, or sexual organ of the actor[.]

During the trial of Walter Cornet, for the alleged aggravated sexual assault of his eight year-old step-daughter, the defendant sought to use the medical care defense. The defendant alleged that after his step-daughter complained to him that her older brothers had had sex with her, he, acting as a parent, conducted an examination of her genitals (anus and labia) using his fingers. The trial court refused to instruct the jury on the medical care defense. The defendant was convicted.

On appeal to the 8th District Court of Appeals (El Paso), the Court affirmed the conviction and held that:

the [medical care] defense “is not meant to apply…in cases…when the parent suspects his child has been sexually abused and proceeds, without any medical education, training, or experience, to examine the area.”

The Texas Court of Criminal Appeals accepted appellant’s petition for discretionary review to settle the issue. Can a parent, untrained in the medical field, claim the medical care defense, under Section 22.021(d) of the Texas Penal Code? The CCA said YES and overturned the 8th Court’s decision.

Writing for a 5-4 majority (on this issue only), Judge Price explained in Cornet v. State:

The text of the statute makes it abundantly clear that it is the nature of the “conduct,” not the occupation of the actor, that characterized the availability of the defense. Nowhere in [Section 22.021(d)] is there any mention or suggestion that the availability of the defense is limited to health-care professionals; and for this Court of read such a restriction into the defense would impermissibly “add or detract from [the] statute.”

The CCA remanded the case to the lower court to conduct a harm analysis.

Judge Cochran dissented. She states that “[w]hen asserting a ‘medical care’ defense, the defendant bears the burden of offering some evidence that his conduct was, in fact, a legitimate, accepted medical methodology.” She goes on to note that:

[i]f this [procedure performed by appellant] meets any common-sense description of accepted or acceptable medical care, the children of Texas are in big trouble. Never mind that there was not a scintilla of evidence that appellant had any medical training, medical expertise, or that this “home exam” methodology was accepted by any medical provider anywhere as an acceptable one. There is no legal defense to sexual assault for a step-father, fried, priest, or big brother to “check-out” the situation by penetrating the anus and genitals of a child because that child had told him that she had had sex with anyone.

Judge Cochran believes that appellant’s defense fails as a matter of law.