Criminal Blogs

July 22, 2015

I was in Sarita, Texas, recently. That is Kenedy County. I had a possession of marijuana case, in county court, a Class B misdemeanor. There is what is referred to as a "border checkpoint" in Kenedy, on Highway 77, even though it is not on the Mexico-America border. The border patrol checks vehicles at a building on Highway 77, going North, with the famous drug sniffing dog, which "alerts" when your vehicle is at the checkpoint and it smells marijuana.
If it is a minor amount of marijuana, the Feds, refer the case to Kenedy County for prosecution. If it is a lot, more than say approximately 1 to 5 pounds, the United States Attorney's office prosecutes in federal court.

So again, beware if you are traveling to South Padre Island to visit. Because when you are coming back from South Padre on Highway 77 you will be stopped and searched in what is termed a "free air" search by the dog, which is often led around your vehicle to smell if there is marijuana in the vehicle. The station is manned 24 hours. And it would seem the dog can sniff a minor amount.

This is a Public Service Announcement sponsored by the law office of Mark A. Di Carlo, PLLC Attorney at Law.

July 18, 2015

So now if you are released on bond, awaiting trial, it is common to be ordered to have a leg monitor at about $300 upfront and $270 per month, and report to a probation officer at about $65 per month. So between the fees to make your bond, the monitor, monthly probation fees, I guess you will be pretty poor and unable to hire your own attorney. Is that coincidence or a purposeful policy?

July 14, 2015

Me to a D.A.: "I am going to object at trial if you try to play those DVDs. Unless you can play those videos from the hard drive of my client's computer, I don't think the judge will admit the videos into evidence." There is case law that states, the prosecutor cannot extract the videos from the hard drive using technical expertise, then transfer them to DVDs and play them to the jury from the DVDs.

July 11, 2015

Usually, a criminal defendant will receive notice of a "docket call" to appear in court, to let the court know if the prosecutor or defendant is ready for trial the following week. So generally it is a time when all, or many, of the courts' criminal defendants are supposed to appear in court.
The docket call is usually the Thursday or Friday before the trial date, which is often the following Monday. Then, the judge calls out all of the defendant's names. The state prosecutor is then supposed to announce, "ready for trial" or "not ready" and the reasons if they are not ready, like "Our main witness is not available for trial next week." Next, the attorney for the defendant announces the same thing, "ready for trial," "not ready" and the reasons they are not ready, and might request a continuance of the case if they are not ready. If a continuance is granted the judge might say, "Get another setting before you leave," which means another court setting for a status conference in court and another trial date.
A criminal defendant in Nueces County can easily have three or four docket call settings before they go to trial. In some of the county court at law courts in Nueces County, a criminal defendant does not have to appear at the docket call as long as the attorney appears.
If you are ready for trial, and the prosecutor is ready for trial, you will be assigned a case number such as 1, 2, 3, etc. If your case is number 1 you will be the first case to go to trial the next week.
Some of the judges of the courts have their court manager conduct the docket call, instead of doing the docket call themselves.

July 9, 2015

"If you do not want to fight your DWI, you have the option to take SPURS instead of probation. That is a weekend work program in Nueces County, where in you might work one day a week, usually on the weekends. You might pick up trash or work at the botanical gardens. That way you don't have to pay a fine, probation fees, report to a probation officer once a month and so on for one year. I think for a first-time DWI it's 30 days."

July 5, 2015

"No, it does not mean your assault case will be dropped because your wife is not 'pressing charges.' Your wife is not really bringing the charges. The state of Texas is. If you look at your indictment it states 'The State of Texas v. You.' Your wife is really just a witness, and she can be subpoenaed to come to court and testify against you at trial. I had two jury trials in 2014 when the wife did not want to testify and was tracked down and subpoenaed."

July 5, 2015

One of the field sobriety tests that a person is given when they are stopped for a DWI is the "horizontal gaze nystagmus test." The police officer asks you to follow a pen, and then he looks into your eyes looking for "nystagmus." I will say that I do not think the judges or juries usually take the test too seriously. Like the name itself, the test is too confusing, and the jury cannot see your eyes on the video.

June 25, 2015

The federal courts and state courts now make it nearly impossible to win an appeal on a criminal case, unless you allege and prove that your criminal lawyer was "ineffective." The obvious reason for that is to drive a wedge between the criminal defendant and their attorney; which will have the effect of making it more difficult to win the case at trial. Before, the criminal defense lawyer had the prosecutor and often the trial judge as an adversary in the courtroom; now an attorney also has his own client as a potential enemy.

It is remarkable that on appeal the courts have basically ruled that the state judge, a politician, cannot make a mistake on the law; and the state prosecutor, also a politician, cannot abuse their power, even though prosecutors, in particular have a history of abusing their power. Politicians are hardly perfect, as they have to raise money for their elections and are members of partisan political parties.

Incredibly, now only the criminal defense lawyer, who is not a politician, and is subject to possible lawsuits by the accused, state bar complaints by the accused, is working for the accused, can cause an unjust conviction, which can result in a reversal on appeal. Basically, the appeals courts and Texas Court of Criminal Appeals have made the criminal defense attorney the "incompetent" fall guy for any corruption that exists within the criminal justice system.

The courts are, therefore, responsible for a successful direct attempt to harm, and probably to ultimately destroy, the attorney-client relationship. So, when they say "you have the right to an attorney" it is questionable, because that attorney can hardly trust a client whom he or she expects will be encouraged to say they are ineffective if things go bad in the case. A new era in treachery.

June 22, 2015

Technically, your guilt at a criminal jury trial is supposed to be proven, "beyond a reasonable doubt." Basically, there is supposed to be enough evidence to charge you for a crime, if there is "probable cause" to believe you committed the offense. A motion to revoke your probation is supposed to be proved by a "preponderance of the evidence."

June 22, 2015

Went to small county this morning, for an out-of-town attorney who contacted me on Friday to appear for him on Monday, for a hearing to "expunge" an arrest for a felony. The prosecutor opposed the expunction because the full name of the client was not on the "petition for expunction"; the full Social Security Number; and, the driver's license number. There was not much I could say to the judge because the rule that covers these items, states they "must" be placed in the motion to expunge. The judge said to amend the petition and once amended the case will be reset for another date.

June 19, 2015

So, various counties in Texas set up, "local rules." And those "local rules," are in my opinion questionable, because your lawyer is licensed by the state, and is supposed to be able to practice in any county of the state of Texas. In my opinion, and without researching the subject, making your attorney responsible to know yet an additional set of "rules" is a violation of procedural due process of law. Practically, the only times I have seen the "local rules" used is when the state prosecutor or judge wants to do something questionable to your client. Ordinarily, even the local attorneys do not know these obscure "local rules."

June 18, 2015

If you request a court-appointed attorney in state court, the court will appoint an attorney for you. However, you will have to financially qualify. What they do not tell you, is that if you are placed on probation, you will have to pay your appointed attorneys fees back to the county over the length of your probation.
There are a few exceptions to the requirement that you pay back the county for your court-appointed attorney, one exception is if the case is dismissed and another exception is if you are found not guilty at a jury trial.
Court-appointed attorneys are usually paid less than what you would pay your own attorney, but not always. And, of course, when the court appoints an attorney, you do not get to select the attorney you want based upon their credentials, qualifications, or your own preferences.

June 14, 2015

The basic laws in Texas that covers criminal law in Texas are contained in the "Texas Penal Code" and the "Texas Code of Criminal Procedure."

The Texas Penal Code contains the crimes, their definitions and the possible sentences. For example, it will list "assault" and defines an "assault" and classifies it as a misdemeanor or felony, and the level of the felony or misdemeanor. The Texas Code of Criminal Procedure contains the application for the prosecution of those laws such as how one is charged; the procedures at trial; different provisions for various forms of probation; courtroom procedures such as what an "arraignment" before trial is; and so on.

Both of these books are available free online, using a simple Google search.

June 10, 2015

So, if jurors are only selected who say they can convict a defendant upon the uncorroborated testimony of the alleged victim, without any corroborating evidence; has the defendant been denied a jury trial because all of the evidence was not considered by the jury as they were basically told they did not have to consider all of the trial evidence, as long as they believed the alleged victim?

June 4, 2015

If you are given a prison sentence, you are supposed to be given credit by the judge for any jail time you served after your arrest, and while awaiting sentencing while in jail, etc. If you are not given all of the credit toward your sentence, you probably will not discover it until after you go to prison. If it is a substantial amount of time you did not receive, you will have to file a Texas Rule of Appellate Rule 23 Motion, a "Nunc Pro Tunc Proceeding," to have the judgment and sentence corrected by the judge to receive your good time credit.

June 3, 2015

If you are charged with any "sexual assault" of a child case, you are in for a difficult time. First, if you are offered probation, you will have to register for a sex offender, for anywhere from, I believe, it is five years to life. You will be restricted on where you can live and so on. Second, if you do not want probation and you want to go to trial, all the criminal defense lawyers know that the juries are more likely to convict for this charge than about any other crime. Lastly, the basic laws at trial are written against the alleged sex offender, so you can be convicted of one person's testimony with no corroborating or supporting evidence that substantiates your guilt. It is not like this for any other crime.

May 31, 2015

If the police officers beat you up for no reason, or for a questionable reason, you can expect to be charged with resisting arrest. That way the police have a justification for beating you up, and you will have a more difficult time in trying to sue the police for false arrest, assault, etc.

May 31, 2015

Yes, on a motion to revoke probation, and your revocation is revoked and you are given prison time, you are supposed to receive time jail credit toward that prison sentence. For example, you are supposed to receive credit for your sentence for the time when you are first arrested until you bond out of jail, or while you are waiting in jail for your motion to revoke hearing, etc. And you are supposed to receive that credit for time served in jail, even if the judge does not say at your revocation hearing, "and you will receive credit for all time served." The only exception I know, when you do not receive credit for time served, is if the judge states your probation is revoked, and maybe sentences you to five years and states, "The sentence is to be served day for day."

May 28, 2015

At the Falfurrias and Sarita, Texas, "border checkpoints" the dog walks around your car to see if you have drugs in it. (These checkpoints are highways on roads going north and south from the Mexican border to the U.S.) The dog allegedly "alerts" to the drugs, by barking, scratching, etc. The border patrol then searches the vehicle based upon probable cause and someone may be arrested for possession and delivery. At the trial, the border patrol agent says the dog "alerted" to drugs in the truck. Here are some ideas: "Your honor, I object to the testimony from the dog. First, it is hearsay, from someone as to what the dog said. Second, it deprives my client his right to confront his accusers and cross-examine them. Third, ..."

May 27, 2015

A person in jail, particularly in a federal detention facility, is likely to have their phone calls recorded. I have lost cases merely because the inmate made statements and admissions about their crime while in jail awaiting trial. Imagine the look on my face when the D.A. or the U.S. attorney played the recording for me.

May 27, 2015

Many clients do not want probation because they do not want to stop smoking marijuana. They fear they could not pass random urinalysis for marijuana. So some want a weekend work program instead or weekend jail time instead of probation.

May 27, 2015

A "state jail felony" is supposed to be a less serious crime than a third-degree felony. However, if you receive two years for a state jail felony and two years for a third-degree felony, you will serve a lot more time in prison for the state jail felony than for the third-degree felony. The reason for this must be a secret somewhere in the legislature in Austin.

May 25, 2015

Yeah, it is unfair but sometimes you have to post two bonds. One when you are arrested, and another, if it is a serious charge, when you are indicted and your bond is raised.

May 22, 2015

An "RFO" is a "repeat felony offender" indictment. An RFO is an indictment for a person charged with a first-degree felony and has one former felony. An "RFO" indictment is punishable by 15 years to life. An "HFO" is an indictment as a "habitual felony offender," punishable by from 25 years to life. The "HFO" indicted person has two prior felony convictions and the new felony is a first-, second- or third-degree felony. An "HFO" is also referred to as a "habitual." When the state alleges prior convictions in your indictment, like an RFO or HFO, they say your indictment has been "enhanced."

May 22, 2015

At a jury trial, one of the greatest advantages a prosecutor has, is that they get to do the final closing argument, and the accused does not get the right to respond. So, practically, at the end of the trial, the prosecutor can summarize all of the evidence that tends to prove your guilt, and accuse you of being guilty, and your lawyer is not allowed to respond.

May 20, 2015

MIP means "minor in possession," (of alcohol). PI. means "public intoxication," (of alcohol). DWI. means "driving while intoxicated" (of drugs, alcohol, or a combination of both). DUI. means "driving under influence" of alcohol; that is a person under 21 who is driving with a detectable amount of alcohol in their system. Usually, "possession" means possession of drugs. A "controlled substance" is a legal term for illegal drugs.

May 11, 2015

People ask me all the time, about what they should "do" when think they will be charged with a crime or if they are facing criminal charges. My standard answer is something like, "You should hire a lawyer. If you cannot afford to hire an attorney, ask the court to appoint an attorney for you. Do not make any statement to the police. If you are not yet charged, the court does not have to appoint you an attorney; so, try at least to get together some money to make your bond so you will not just sit in jail from the time you are arrested until you go to court."

May 4, 2015

I entered a plea bargain on a case recently, wherein an assistant district attorney was very fair in offering pretrial diversion probation, for a young veteran who had pretty severe emotional problems. If he completes it, his case will be dismissed. He was charged with domestic violence and possession of marijuana. See, some prosecutors, at times, can be fair!

May 2, 2015

So, if the police pick you up, and put you in a room, and are talking to you, just assume they are audio and video recording you. They are of the opinion they do not have to tell you they are taping you. If you are placed on trial later, the D.A. will probably be allowed by the court to play the DVD to the jury, even though your attorney objects. The attorney objection in showing the video will generally be, that it was an interrogation while you were in custody and you were not read your Miranda rights.

April 28, 2015

If the police have a warrant to seize your computer, it does not mean they have the right to view its contents. The warrant is supposed to specify they can search the computer, also. If it does not, you have the right to file in court a "motion to suppress" anything illegal found on the computer.

April 24, 2015

If you carry hydrocodone, Prozac or similar drugs outside of the prescription bottle, you have an excellent chance of getting arrested if they are found by police and then indicted. Ordinarily, the D.A. will dismiss the case if you have a valid prescription.

April 23, 2015

If you have been under a court restraining order for most things, or you have been "convicted" of a "misdemeanor crime of violence" you cannot purchase a firearm at a gunshow or at a retail store such as Wal-Mart. (See, ATF form 4473.) So be careful about agreeing to restraining orders or to pleading guilty to a "crime of violence."

April 22, 2015

If you are on trial for a crime, it could be a major victory if you are found guilty instead of a "lesser included offense." For, example, if you are indicted and put on trial for "murder," it might be a major victory if you are found guilty of "manslaughter" instead, as it may be easier to get probation.

April 15, 2015

For most misdemeanors in which you served deferred adjudication probation, you can file a "petition for nondisclosure" two years after you have completed probation. You have to wait five years to file a "petition for nondisclosure" after you have completed deferred adjudication probation.

April 13, 2015

I get telephone calls almost every week from people who want to get a misdemeanor or felony "expunged" because they have completed probation. And every week I tell people that there is no such procedure, unless they were on "pretrial diversion" or "deferred adjudication probation." A person who has been placed on regular probation, called "community supervision" in Texas has no right to expunge his record.

April 9, 2015

Generally, the punishment for the same crime is much more severe if the case is brought in federal court than in state. For some reason though, the feds are generally much easier on DWIs than the state. For example, if you are charged with a DWI while driving on South Padre Island, the feds would be easier on you than if you reached the freeway and were driving home.

April 6, 2015

The lowest class of misdemeanor is a "Class C." Most of the Class C misdemeanors I see locally are for public intoxication. A "Class C" misdemeanor is not punishable by jail time, but by a fine or court costs only. Class C misdemeanors are handled by city courts such as "municipal courts." Class A and Class B misdemeanors are handled by "county courts." Class A and B misdemeanors include DWI's and possession of marijuana.

February 16, 2015

If it is your first-time DWI in Nueces County, and there is no accident involved, and you desire to enter a plea bargain with the prosecutor — you are generally looking at one-year probation; $500 to $1,000 fine; repayment of attorneys fees if you have a court-appointed attorney; court costs of $300 to $750; maybe 30 to 50 hours of community service; and, a few other miscellaneous costs and classes over the period of your probation.

February 6, 2015

Many persons think if they are not read their Miranda rights, that they will automatically win their criminal case. This is seldom true. The failure of the police to read you your Miranda rights may, for example, give you the right to file a motion with the court to have a confession suppressed. So, if your confession is the primary evidence against you the failure to read you your Miranda rights may result in winning your case, if the court grants your motion to suppress.

January 28, 2015

When you are arrested for a DWI, your driver's license is suspended by the state of Texas. You have 15 days to appeal the suspension. If you appeal the suspension of your driver's license you are entitled to a hearing before a judge from Austin by telephone or by a live hearing. (In Corpus Christi, the hearings are off SPID, on Flynn Parkway.) Generally, your chances of winning the hearing are not very good. Usually, I advise clients to appeal the suspension by requesting a telephone hearing. That is because the attorney's fees are cheaper.

January 25, 2015

"Restitution" is often ordered by the court if you are placed on probation. So, if you punched someone in the face, and broke their front teeth out, and enter a plea of guilty for assault, you will probably be ordered to pay for their dental bills over the term of your probation for assault. Or if you embezzled money from your employer, you will probably be ordered to pay that money back to your employer over the term of your probation.

January 23, 2015

Now that the state has all this surveillance of persons, criminal defense attorneys often have a large number of video and audio recordings to listen to, and it can be very time-consuming. I have a case now with about 10 CDs and DVDs to listen to and watch. And they would be a lot more entertaining, if you did not have to strain yourself making out what is said. The audio quality is often very poor.

January 17, 2015

Do not expect a jury of your "peers" if you are on trial for a crime. At least not in the way you would practically think of your "peers." For example, I was in a jury trial last week in a small town. A young attorney went with me. I counted 22 school teachers of a total of about 66 possible jurors to pick from. Later, I was talking to the other attorney, and mentioned, "How could that be a 'jury of your peers'; unless you are a school teacher?" She said, "I thought the same thing." And then she said, "And then there were the people that worked for the prison or in the courthouse." I told her, "Maybe one of these days, I will represent someone with adequate financial resources, so I could research the hell out of this issue before trial, and make legally adequate objections, to bring this issue up to the court of appeals or even to the United States Supreme Court." How many times, have I went to trial and 70 percent of the possible jurors are employed by the school system, the police department, the local prison or jail and so on? A lot. How prospective jurors are being chosen, whether they are being chosen because they are registered voters or because they hold valid driver's licenses needs to change, so jurors are a more accurate cross-section of the community.

January 7, 2015

A criminal trial starts with the questioning of prospective jurors by the prosecuting attorney and the defense attorney. For example, the prosecutor might ask, "Have any of you ever had a bad experience with a police officer?" This is an attempt to eliminate jurors for bias who may have had a bad experience with a police officer and may be more likely to find the defendant innocent. And, a defense attorney might ask, "Is there any person here who has a close friend or relative in law enforcement?" This is an attempt to remove jurors who might be biased in favor of law enforcement officers and who may be more likely to convict the defendant.

January 6, 2015

I tell someone charged with a first-time offense, that their criminal "record" is like a credit card. That usually on your first conviction or two that you will not go to jail or prison. But eventually, if you keep picking up cases you will serve time. You will use up all of your credit. That is, in part, because, generally, one of the first things the prosecuting attorney usually does is look up your criminal record and offer you a plea bargain based upon the severity of your criminal record. Also, many repeat crimes are "enhanced"; so for example, your third DWI in Texas becomes a felony.

December 28, 2014

In a criminal case in Texas, generally, for any bail bond from about $500 to $2,000, you would have to pay a bondsman, about $200 to get out of jail. For any bond amount over about $2,000 you would generally pay 10 percent of the amount of the bond. For example, for a $5,000 bail bond you would pay a bondsman, $500. An attorney could also make your bond, and they might apply all, or some, of your bail bond to your attorney's fees. You could also just deposit the bond amount with the county. So for a $5,000 bond you could deposit the $5,000; and, when the case is over, you get the entire $5,000 back.

The only problem with this is it might take more time initially to figure out how to deposit the money, and at the end of the case it might be a bit complicated and lengthy to get your money back from the county.

December 25, 2014

So you pick up a public intoxication charge in Corpus Christi. And the police give you a ticket, and that ticket, is printed on a manila envelope with the address of the municipal court and a prepaid stamp. Basically that ticket states you can pay a fine of like $350, by just putting a check in this envelope and sending it in. Or else you can just go to the municipal court and pay, the $350 and that ticket will be disposed of. Kind of like a parking ticket. The ticket, printed on the envelope appears to be an easy and cheap way to get out of an embarrassing situation.

Hold on though. If you pay that ticket, you are pleading guilty. And you will have that adjudication of guilt for a public intoxication on your public "record" for the rest of your life. And it does not look good, in particular if you have a state or federal job, or you are seeking one, or you intend to go into an occupation, which requires a state or federal license. So, to state the obvious, it is not advisable just to pay such a ticket, unless you have a lengthy record anyway, or you are close to retirement age, so you do not really care about working anyway.

If you can afford to, hire an attorney. If you cannot, at least try to research your best options. In public intoxication cases, you are not entitled to a court-appointed attorney.

December 9, 2014

It is now a felony to be intoxicated while driving in Texas, and to have a child in the car 15 years of age or under.

It is considered a "state jail felony" punishable by up to two years in a "state jail facility" even if it is your first DWI.

November 29, 2014

Misdemeanor shoplifting charges are often turned into felony robbery charges. This occurs when, for example, if security sees someone shoplifting, and tries to stop them. If the shoplifters hit them, to try and escape, it becomes robbery. If the security guard follows the shoplifters and the shoplifters slam the car door on the security guard, it might be charged as robbery. And, in certain instances shoplifting can be made into a first-degree felony, punishable by up to life in prison, and charged as an aggravated robbery; if, for example, the security guard is physically injured by the shoplifter as the shoplifter tries to escape.

November 23, 2014

A "habitual felony offender," HFO for short, in Texas is someone who is charged with a felony, and has two prior felony convictions. The prison sentence is termed to be "enhanced," that is increased to a 25-year minimum sentence. The maximum sentence is increased to life in prison.

November 5, 2014

Let us say that you have agreed to a plea bargain for two years' probation, also known as "community supervision," in Texas. And the underlying sentence is two years in prison, also known as "the Institutional Division of the Texas Department of Criminal Justice." That is, you can be sentenced to up to two years in prison, if you violate your probation.

Many judges like to say something like this to you, when you enter such a plea bargain: "Mr. Jones, I am going to follow the recommendation of the prosecutor and the plea bargain, and I am going to sentence you to two years in the Institutional Division of the Texas Department of Criminal Justice." Then the judge likes to pause for a second or two or three. The defendant looks like he is going to have a heart attack because he thinks he has just been sentenced to two years in prison. Then the judge states, "And I am going to fully probate your sentence for two years under a period of community supervision."

Some of those judges, they are great little kidders!

November 2, 2014

A United States Supreme Court decision stated, about 10 years ago, that a person who is arrested must have their bond set within 48 hours. However, in Nueces County the common procedure is to "hold" someone in jail an additional 48 hours after they have posted bond, for certain charges, especially for cases of domestic assault. I doubt this is legal, and particularly doubt it is legal if they have already been in jail for 48 hours, and then post bond. The 48-hour hold is supposed to be a "cooling-off period"; but it is difficult to see why they need 48 more hours to "cool off" if they have already been in jail for 48 hours.

October 18, 2014

One of the difficult things about being charged with a crime is the amount of time involved in going to court appearances and so on, and consequently the amount of work you may miss.

To begin, when you are arrested, the state has up to 48 hours to set your bond. So you will be in jail from say three hours minimum to 48 hours. When you make your bond there could be an additional 48-hour hold on you, so you may have to remain in jail an additional 48 hours. That could total 96 hours.

Once released from jail, you may have to go to court six to eight times before trial, generally for one-half hour to one and one-half hours. So, let us say that is about six hours, for a total of 102 hours.

If you are given "pretrial conditions of bond," you may have to report to the probation office from once a week to once a month until you go to trial, depending upon the charge and the court your case is in. Let's say you go to the probation eight times, and each visit is one and one-half hours that is 12 hours, for a total of 114 hours.

If you go to trial on a felony, generally a jury trial will last from two to four days. So say that might easily be eight hours × three days equals 24 hours. That is now 138 hours. About three and one-half weeks work.

And, to make an editorial comment, that is all very punitive, if you are innocent and are acquitted of the crime. Then there is the issue of the amount of money it costs... to be discussed later.