All posts by DougCollins

Marijuana Law in Texas: Has Anything Changed?

Dozens of shops selling cannabidiol (CBD) oil are popping up all over Texas, but that doesn’t mean it’s legal just yet. The Lone Star State, like so many others throughout the country, is considering changing its stance on marijuana. In fact, there are currently several bills being debated in the Texas Legislature. Until one is formally passed, though, any form of marijuana, CBD oil, or THC is still illegal for the majority of Texans.

Current Status of Marijuana in Texas

The fact that so many shops are openly selling CBD oil and other marijuana-related products is one reason so many in Texas are confused about the drug’s status in the state. Another reason is that so many surrounding states are beginning to legalize the drug in some form.

Louisiana, Arkansas, and Oklahoma have all legalized medical marijuana, with some legislators in those states pushing for further legalization. In early March, New Mexico passed a bill to fully legalize the drug for any adult over the age of 21. Doesn’t it make sense that Texas would also legalize CBD and other marijuana products?

Legislators don’t think so. In Texas, legalization is a long way away, if it ever happens at all. The current law states that a charge of possession is a Class B misdemeanor if the amount is less than two ounces. Even this minor marijuana charge carries penalties of up to 180 days in jail and a maximum fine of $2,000. CBD oil with any trace of THC is considered a Felony in Texas and carries a range of punishment up to 20 years in prison (depending on the weight of the substance).

The only individuals allowed any access at all to any marijuana products are those with intractable epilepsy. This was passed into law with Texas’ Compassionate Use Act in 2015. Anyone else found with marijuana or CBD on their person is subject to charges. The April issue of Fort Worth Magazine, writer Jonathan Richardson discusses the legal issues of CBD in our community. District Attorney, Sharen Wilson, is quoted in the article stating that CBD oil is only legal in Texas to those who are prescribed and being treated by a physician for epilepsy. This means that if you are currently using CBD oil that contains THC, you are at risk for being arrested for a felony!

However, while Texas has always taken a strong stance against marijuana, that too could change in the near future.

Decriminalizing Marijuana in Texas

It was in early March of 2019 that legislators debated House Bill 63, which would decriminalize marijuana possession in Texas. Lawmakers in the House Criminal Jurisprudence Committee eventually approved the bill, leaving decriminalization to Lieutenant Governor Dan Patrick in the Senate. While this does provide some hope for those who would like to relax the marijuana laws in the state, others are doubtful it will go much further. (See also, HB 186 & HB 551).

This is the third time a law like this has passed the House, but one has never gotten past the Senate. In 2017, it took a decriminalization bill one month longer than the current proposed bill to pass the House. Once it did, it remained one of several bills that were never voted on.

This, in addition to the fact that Lt. Governor Dan Patrick has stated he does not wish to see the weakening of any marijuana laws in the state, makes it fairly clear that marijuana will remain illegal and criminal in the state of Texas. The Hemp Industries Association stated in a February interview with NBC5 that they plan to push for changes in Texas this year.

Need Help with a Marijuana Charge? A Texas Drug Lawyer Can Help

With legislators continuing to debate the laws on marijuana in Texas, it’s no wonder people are confused. Unfortunately for some, that confusion can lead to charges. When this is the case, a board-certified Texas criminal defense lawyer can help.

If you’ve been charged with a marijuana offense, contact us today to learn how we can help. We will fight for your rights and create a solid defense to help you beat the charges and retain your freedom. No one should ever face these charges alone. The stakes are simply too high. Call us today so we can begin reviewing your case. 817-369-3838

Why Selecting a Board Certified Criminal Defense Attorney Is Important

board-certified

According to the Texas Board of Legal Specialization (TBLS), there are over 100,000 lawyers practicing in the state. Of those, only 7,400 are Board Certified. While this number may seem small, Texas still has more Board Certified criminal defense attorneys than any other state.

Certification is not mandatory, but it is difficult to achieve. In order to become certified, lawyers must go through a rigorous process to prove they are specialists in a specific area of law. For those facing charges, choosing a Board Certified criminal defense attorney means choosing the best.

 

What “Board Certified” Means

 

According to the State Bar of Texas, Board Certified lawyers are the only attorneys who can claim to be a specialist in their area of law. In order to earn that right, they must meet certain requirements.

An attorney must have practiced for at least five years in order to be eligible to even take the board exam. A significant portion of those years must have concentrated on the area of specialty. Attorneys must also prepare three references to be submitted before sitting for the exam.

Over the course of the six-hour exam, attorneys are tested on Texas criminal law, federal criminal law, and ethics. They must demonstrate extensive knowledge of the law, and show that they are committed to excelling in their specialty area.

After an attorney earns Board Certification status, they must continue to focus on their specialty legal field, and take annual legal education courses.

 

Why Choose a Board Certified Criminal Defense Lawyer

 

Any time an individual faces a legal situation, they want to work with the very best. This is particularly true when a person is facing criminal charges and the possibility of losing their freedom. Board Certified attorneys are the very best in their field, and they have taken the necessary steps to prove it.

Board Certified attorneys are often more knowledgeable in one particular area of law than other attorneys without a specialty. This is because they are able to focus on the many facets of just one area of law, instead of knowing only the basics of many different areas.

Certified attorneys have a vast knowledge of state and federal constitutional law and how it is applied to a case. A Board Certified criminal defense attorney will have the necessary experience during trial preparation to give the accused the best chance at success in the courtroom.

 

How to Find a Texas Board Certified Criminal Defense Lawyer

 

It is often difficult for individuals to know whether or not a criminal defense lawyer is Board Certified. The TBLS has made this easier though, with a simple search function on their website. The search results will display the name of lawyers, as well as their location and contact information.

Anyone who is facing charges should not trust just anyone else with their defense; a Board Certified criminal defense attorney in Texas has earned their mark of excellence. They want to put their experience and skill to work for those accused of committing a crime.

Probation and Community Supervision in Texas

By Kara Carreras

In Texas, community supervision is the term we use for probation. If a judge or jury grants probation, (aka community supervision), the probationer will be ordered (by the judge) to abide by various types of conditions and restrictions. Some conditions of probation may include drug testing, drug/alcohol classes, AA, NA, outpatient or inpatient drug treatment, parenting classes. This is by no means an exhaustive list, but they are just some common conditions of probation. Most of the time a person’s conditions of probation depend on the results from a risk assessment performed by the probationer as well as the facts of the original offense. A probationer is required to report and Texas has two types of probation:

1. Deferred Adjudication
2. Straight Probation

In deferred adjudication cases, a person pleads guilty, however the judge does not actually find the person guilty. From there, the judge instead places the person on probation for a specified time, and if the person successfully completes their probation there would not be a final criminal conviction. In many cases a person can apply to have their records sealed once they successfully complete the deferred adjudication probation. You can NEVER receive deferred adjudication from a jury. This option is only available if you enter into a plea.

“Straight” probation, on the other hand, does result in a final criminal conviction—this is a key distinction between basic “community supervision” or probation and deferred adjudication. In this situation, a person pleads guilty and the judge enters a finding of guilt against the accused. Like deferred adjudication, the person would be required to complete the terms of their probation or face their probation being revoked and serving the sentence that was previously suspended.

 

“Deferred Adjudication”

 

1. No finding of guilt

2. If revoked, full range of punishment available to sentence probationer

3. Early termination request can be made at any time

 

“Straight Probation”

 

1. Guilty

2. If revoked, jail or prison sentence limited to original plea

3. Only eligible for early release after serving 33% or 50% of probation

 

Granting Judge-Ordered Community Supervision

 

Whether deferred adjudication or straight probation, the judge takes into consideration, factors such as what is in the best interest of justice, the defendant and the public.
It is important to know that a judge may not deny probation to a defendant based solely on the defendant’s inability to speak, read, write, hear, or understand English.

 

Limitations on Judge-Ordered Community Supervision

 

Now, let’s take a closer look at some of the conditions that must be met before a judge can order probation. First, a defendant is not eligible for probation if they are sentenced to a term of imprisonment that is more than 10 years.

Further, a judge may not order community supervision for the following offenses (see Texas Code of Criminal Procedure 42A.054 for exhaustive list):

• Criminal Solicitation (First Degree)
• Murder
• Capital Murder
• Aggravated Kidnapping
• Trafficking of Persons
• Indecency with a Child
• Sexual Assault
• Aggravated Sexual Assault
• Injury to a Child, Elderly Individual, or Disabled Individual (First Degree)
• Aggravated Robbery

 

Modifications to Community Supervision Conditions

 

Generally, only the judge may modify the conditions. The judge of the court having jurisdiction of the case may, at any time during the period of community supervision, modify the conditions of community supervision.

Simply because you are eligible for community supervision, does not guarantee you will get it. Most certainly you should be aware of what your options are if you are facing a probation revocation or if you are seeking early release from probation. You should consult with an attorney who will fiercely advocate for you. We have successfully defended contested probation revocations and we have obtained probation and early release in many difficult cases.

Can Police Search My Cell Phone?

By: Kara L. Carreras

Recently, the United States Supreme Court handed down a decision related to searches and seizure of cell phones and their data contents. With the ever-changing technological advances related to cell phones and wireless technology what is considered private?
The Fourth Amendment of the U.S. and Texas Constitution afford people the right to be protected from unreasonable searches and seizures. That means that searches without a warrant are generally illegal. So how do you determine what is a reasonable and unreasonable search?

To secure a warrant, police need to have knowledge of facts and circumstances that reasonably lead them to believe a person has committed a crime. For example, an officer sees or smells marijuana, or the person admits he has marijuana are facts and circumstances that would lead a reasonable person to believe that the crime of possession of marijuana has been committed. That is an easy example but that is the basics of probable cause.

But what about your cell phone? Can police just seize that phone and comb through your personal content, contacts, etc.? The government has argued several times that cell phone content and digital history should be subject to many of the warrant exceptions of the Fourth Amendment, but over and over we have seen the Supreme Court and Texas Courts uphold the privacy interests of citizens in their digital content.
Remember, if you consent to a search of your cell phone, computer or any other device, the police do not need a warrant. Anything the police find on your phone, computer etc. can and will be used against you when you consent.

Sometimes, when you don’t consent to a search the police will try to gather the information in other ways. Police can subpoena cell phone records to see what numbers a person dialed or texted. These are considered third party records that police can obtain from businesses that keep the records for business purposes and are In 1979 the Supreme Court handled a case called Smith v. Maryland where it was recognized that numbers dialed on a phone not expected to be private and therefore a warrant is not needed. The court noted that there is potentially a privacy interested in the actual conversation, but not the phone number itself.

However, when someone is arrested with their cell phone in their possession the government has sought to seize those cell phones and search the digital data under the guise of a “search incident to lawful arrest” (an exception to the warrant requirement). The government in Riley v. California and U.S. v Wurie seized cell phones of two arrested persons and searched inside their phones and discovered evidence of gang involvement and one of the cases led police to an apartment where guns and other contraband were found. In an easy 9-0 decision, the Supreme Court of the United States laid down the rule that contents of a digital cell device are subject to warrant requirement. Privacy interest of citizens in their digital contents is so great that a search is considered unreasonable without a warrant.

In June 2018, the U.S. Supreme Court in a 5-4 decision, went further to protect the privacy of citizens in Carpenter v. U.S.. This case involved a person accused and convicted of robbing several stores in different states. The government subpoenaed cell phone site data from the defendant’s cell phone company. These records provided cell site location information-CSLI (exact location) of the defendant for over 120-day period. The government was able to use those records to track defendant’s movements and align them with the times the robberies were committed. The Supreme Court noted that there is a reasonable expectation of privacy of citizens in their physical movements and cell site location records that can potentially go back as far as 5 years are something that should be protected against unreasonable seizures.

The Supreme Court has left open the possibility that digital contents can be subject to the warrant exception of exigent circumstances. In a life-threatening situation that calls for immediate action to save lives or prevent further harm, a digital search without a warrant may be justified. The Court noted that the exceptions could apply on a case-by-case basis.