Fort Worth Criminal Defense

Texas Hate Crimes

One of the highest-profile hate crimes in the nation to occur in recent years involved the unprovoked massacre of a historic South Carolina church carried out by Dylann Roof.  Shortly, thereafter, there was the largest mass shooting in American history that occurred in Orlando at a gay night club.  These terrible incidents opened up the flood gates for a national dialogue on the real prevalence and impact of hate crimes in the nation.

In the state of Texas, hate crimes are no less of an issue than any other area of the nation, and their investigation remains a top priority for investigators and social interest groups working against them. The available statistics on hate crime frequency in Texas illustrate the ongoing need for officials to continue their heavy investment of effort in working against discrimination-motivated victimization based on race, religion, gender, sexual orientation, and all other personal identifiers.

Legal Definition of Hate Crime in Texas

Under Article 42.014 of the Texas Code of Criminal Procedure, a hate crime occurs if the:

defendant intentionally selected the person against whom the offense was committed or intentionally selected property damaged or affected as a result of the offense because of the defendant's bias or prejudice against a group identified by race, color, disability, religion, national origin or ancestry, age, gender, or sexual preference. 

The FBI defines a hate crime as "a criminal offense against a person or property motivated in whole or in part by an offender's bias against a race, religion, disability, sexual orientation, ethnicity, gender, or gender identity."

Out of all the FBI Civil Rights program's priorities, hate crimes are the highest on the program's list. The FBI considers those who perpetuate and preach intolerance and hatred to be catalysts for terrorism, and the Bureau treats them as such.

The Texas Hate Crimes Act, recorded in Chapter 411.046 of the Texas Government Code, categorizes any crimes that are perceivably motivated by "prejudice, hatred, or advocacy of violence" as hate crimes. Like the FBI's classification determiners, these crimes are linked to any prejudices directed at gender, gender identity, religion, disability, race, ethnicity, sexual orientation, disability and religion.

The following statistics collected by the Texas Department of Public Safety are the most recent available for comprehensive insight into hate crime prevalence, locations, offenders, victims and offenses in the state of Texas.

What is the Penalty for a Hate Crime Offense in Texas?

In a criminal case, if the judge or jury makes an affirmative finding that the offense is a Hate Crime, Section 12.47 of the Texas Penal Code outlines the punishment enhancement.  For offenses other than a Class A Misdemeanor or First Degree Felony, the underlying offense is enhanced to the next higher category of offense. For instance, if the offense is a Class B Misdemeanor and the jury returns an affirmative finding that the offense was motivated by prejudice toward the victim's race, the offense is increased to a Class A Misdemeanor.  First Degree Felonies are not enhanced under Section 12.47 because they already carry a penalty range of 5-99 years in prison. If the underlying offense is a Class A Misdemeanor, it will remain a Class A Misdemeanor but the minimum jail sentence is increased to 180 days. Enhancements for hate crimes are limited to offenses under Title 5 of the Texas Penal Code, or Section 28.02, 28.03, or 28.08, Texas Penal Code."

Texas Hate Crime Volume

The Texas DPS reported that there were 166 reports of hate crimes in 2014. The hate crimes involved 198 offenders and 190 victims. The most common bias was race and ethnicity, the second most common bias was sexual orientation, and the third most common bias was religiously-motivated. The 2014 figure on hate crime reports was a 23 percent increase from the 2013 figure.

Texas Hate Crime Locations

The DPS reported that hate crimes most commonly occurred in residential homes, at 30.4 percent. Next to residences, the second-most frequent places for hate crimes to occur were roads/highways/streets/alleys, at 16.1 percent. The third most frequent areas for hate crimes to occur were parking lots and garages, at 12.5 percent.

Texas Hate Crime Offenders

The DPS hate crime report's data on offenders showed that the 198 hate crime offenders were 67.7 percent white, 18.7 percent black, 1.5 percent Asian, 1.0 percent multiracial, and 11.1 percent unknown. The information on Texas hate crime offender demographics was analyzed with the understanding that hate crimes can be perpetuated by different offenders sharing the same race.

Texas Hate Crime Victims

The DPS report's data on hate crime victims categorized the victims based on the following categories: individual, business, financial institution, government, religious organization, society/public, "other", and unknown. Individuals were the most frequent victim type, at 84.2 percent. The second most frequent victim type was "business", at 8.4 percent, followed by government and religious victims at 3.2 percent.

Specific Texas Hate Crime Offenses

The most common type of hate crime offense was simple assault, at 15 percent. The second most frequent hate crime offense was vandalism, at 25.7 percent, followed by intimidation at 18.6 percent.

History of Nationwide Hate Crime Investigation by the FBI

The FBI has historically investigated hate crimes in which the offending party was motivated by the national origin, religion, or ethnicity of the victim. The role of the FBI in hate crime investigation was notably increased after the Civil Rights Act of 1964. In the past, investigators were restricted to cases in which the victim of a hate crime was engaging in an activity under federal protection.

After the 2009 Hate Crimes Prevention Act of 2009, investigators gained a freedom to investigate hate crimes without as much red tape. In addition, the 2009 act also gave investigators clearance to freely investigate hate crimes committed out of a bias against the sexual orientation, gender, disability or gender identity of the victim.

Conclusion

Though the time and manpower investment in hate crime investigation remains heavy, the need for vigilance remains high. According to the FBI's 2015 report, there were 5,479 hate crime incidents nationwide in 2014; these incidents involved 6,418 offenses to the Uniform Crime Reporting (UCR) program, creating 6,727 victims nationwide. Though the figure was down from the 2013 rate, in which there were 5,928 incidents and 6,933 offenses, the issue remains a top priority for investigators in Texas and the nation at large all year round.

What is the Lautenberg Amendment?

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.