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


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.

U.S. Supreme Court Decision Potentially Makes It More Difficult to Deport Immigrants Convicted of Violent Crimes

Just last month, in a 5-4 decision, the United States Supreme Court held that a federal statute dealing with the deportation of immigrants convicted of “violent felonies” was unconstitutionally vague. This means the court found that the law at issue in the case was too broad, and not defined well enough to properly determine who was subjected to the law.

The court also held that the statute violated the Due Process Clause of the Fifth Amendment; meaning that the Statute violated basic Constitutional protections given to all individuals in the United States, regardless of their citizenship. The case before the court was Sessions v. Dimaya.

In a surprising turn of events, Justice Gorsuch, considered a conservative Justice, sided with the four liberal-leaning justices. Justice Gorsuch, you will recall, was President Trump’s nominee to replace the famously conservative Justice Scalia on the court and has traditionally sided with the other conservative Justices. The Court’s decision on this topic contrasts much of President Trump’s campaign platform, as it potentially makes it more difficult to deport immigrants convicted of violent crimes.

Case Background

The individual challenging the law, James Garcia Dimaya was a native of the Philippines. Mr. Dimaya had resided lawfully in the United States since 1992. During that time Mr. Dimaya was convicted twice of first-degree burglary under California state law. (Cal. Penal Code Ann. §§ 459, 460(a)). Following his second offense, the government sought to remove/deport, Mr. Dimaya.

Both an immigration judge and the Board of Immigration Appeals found that in California, first-degree burglary is a “crime of violence” under the laws of the United States, thus permitting Mr. Dimaya’s deportation. The Board reasoned that the offense “carrie[d] a substantial risk of the use of force.” See Sessions v. Dimaya, 138 S. Ct. 1204, 1211 (2018).

The idea behind the Immigration Court’s ruling was that a non-citizen convicted of a violent crime, can be deported, or removed from the Unites States. The issue in the case before the Supreme Court, was what is the definition of “crime of violence”, as defined in subsection b. Subsection b was classified as the residual, or catch-all clause, and was supposed to incorporate crimes that subsection a did not adequately cover.

18 U. S. C. §16(b) says that  “crime of violence” means:

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

The court reasoned that the section of law was vague because it “required a court to picture the kind of conduct that the crime involves in ‘the ordinary case,’ and to judge whether that situation presents”, a degree of risk that has not yet been well-defined. For a court to try to “imagine” the different circumstances tends to generate more unpredictability and arbitrariness than the United States Constitution allows.

The Court decided that overly vague laws are unconstitutional because they do not provide ordinary people with “fair notice” of the conduct a statute describes. See Sessions v. Dimaya, 138 S. Ct. 1204, 1212 (2018). See also Papachristou v. Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). See Sessions v. Dimaya, 138 S. Ct. 1204, 1216 (2018), See also Johnson v. United States, 135 S.Ct. 2551, 2554 (2015) for further analysis of the case.

What will the Legislature do next? It seems uncertain, but for now, this is certainly a win in the fight for all immigrants accused of crimes in the United States.

Felony Criminal Enhancements in Texas

Texas law allows for harsher punishments for repeat and habitual offenders. This means that when you have been previously convicted of certain crimes, the State can enhance, or increase your range of punishment on your current charge.

The range of punishment refers to the amount of time and/or fine that a person can receive as punishment, if convicted of a crime. The range starts with the minimum penalty and goes all the way up to the maximum penalty.

Enhancements affect the range of punishment by increasing the minimum range of punishment to a higher classification of crime. Commonly, enhancements can occur simply based on the fact that a person has been previously convicted of certain crimes. The short answer to the question is, yes, the law in Texas mandates that a repeat or habitual offender face a higher range of punishment than they ordinarily would, had there been no prior conviction(s).

To understand how enhancements work, it is important to understand what the ordinary ranges of punishment are for felony offenses. The key to this is first determining what degree of felony you are being charged with.

All felony offenses are broken down into different degrees. Chapter 12 of the Texas Penal Code identifies punishments for all classifications of offenses. For a complete list of punishments, please refer to Chapter 12 of the Texas Penal Code.


For example, we will be looking at a few pieces of different felony punishments, and the potential jail time and fines you could face if you are charged with a felony. The degrees of felonies, along with their general ranges of punishment, are in order from least to greatest, and are as follows:

State Jail Felony Punishment (Tex. Pen. Code Ann. § 12.35)

  • Confinement in a state jail for any term of not more than two years or less than 180 days.
  • In addition to confinement, a fine not to exceed $10,000 may be assessed.

Third Degree Felony Punishment (Tex. Pen. Code Ann. § 12.34)

  • Imprisonment in the Texas Department of Criminal Justice for any term of not more than 10 years or less than 2 years.
  • In addition to imprisonment, a fine not to exceed $10,000 may be assessed.

Second Degree Felony Punishment (Tex. Pen. Code Ann. § 12.33)

  • Imprisonment in the Texas Department of Criminal Justice for any term of not more than 20 years or less than 2 years.
  • In addition to imprisonment, a fine not to exceed $10,000 may be assessed.

First Degree Felony Punishment (Tex. Pen. Code Ann. § 12.32)

  • Imprisonment in the Texas Department of Criminal Justice for life or for any term of not more than 99 years or less than 5 years.
  • In addition to imprisonment, a fine not to exceed $10,000 may be assessed.


Now that you know what the ordinary punishments are supposed to be, the question becomes, how will I know if my charges have been enhanced?

First, you should look to the indictment, or formal charging document, to see if there is an enhancement paragraph within that document. The enhancement paragraph is often included near the bottom of an indictment.

The paragraph is located below the allegations and will include the reason, or past crime the State is using to enhance the charge. If the reason your charge is being enhanced is a prior conviction, the State must have proof of your past conviction. This is typically done by using a past judgment of conviction. The judgment should state what crime you were found guilty of, where you were convicted, and will most often contain your fingerprint.

Remember, just because the Government or prosecutor is alleging an enhancement (prior conviction) it does not mean that they can prove it or that you have to plead guilty to that enhanced charge. You need to work with your attorney to find out your best options.


Though it should be noted that there are exceptions to the general rules, let’s walk through some enhancement scenarios below.

Examples of Enhancements

State Jail Felony → Third Degree Felony

If it is shown on the trial of a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two state jail felonies under Section 12.35(a), on conviction the defendant shall be punished for a felony of the third degree. (Tex. Pen. Code Ann. § 12.425(a)).


If you are charged with a state jail felony, and you have previously been convicted of two state jail felonies, if convicted, you can be punished as if the state jail felony were a third degree felony.

Third Degree Felony → Second Degree Felony

If it is shown on the trial of a felony of the third degree that the defendant has previously been finally convicted of a felony other than a state jail felony punishable under Section 12.35(a), on conviction the defendant shall be punished for a felony of the second degree. (Tex. Pen. Code Ann. § 12.42(a)).


If you are charged with a third degree felony, and you have previously been convicted of a felony (not including state jail felonies under section 12.35(a)), if convicted, you can be punished as if the third degree felony were a second degree felony.


Second Degree Felony → First Degree Felony

If it is shown on the trial of a felony of the second degree that the defendant has previously been finally convicted of a felony other than a state jail felony, on conviction the defendant shall be punished for a felony of the first degree. (Tex. Pen. Code Ann. § 12.42(b)).


If you are charged with a second degree felony, and you have previously been convicted of a felony (not including state jail felonies under section 12.35(a)), if convicted, you can be punished as if the second degree felony were a first degree felony.

First Degree Felony

If it is shown on the trial of a felony of the first degree that the defendant has previously been finally convicted of a felony other than a state jail felony, on conviction the defendant shall be punished by imprisonment in the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 15 years. In addition to imprisonment, an individual may be punished by a fine not to exceed $10,000. (Tex. Pen. Code Ann. § 12.42(c)(1)).


If you are charged with a first degree felony, and you have previously been convicted of a felony (not including state jail felonies under section 12.35(a)), if convicted, you will be punished by imprisonment in the Texas Department of Criminal Justice for life, or for any term from 15-99 years. In addition to imprisonment, a fine of $10,00 may be assessed.

Ultimately, when you make certain mistakes, those mistakes can come back to haunt you in the form of an enhancement. Do not leave your future to chance. At Goza & Carreras, we are aggressive trial attorneys and will fight for you! 817-369-3838

Can You Make My Record Go Away? Expunctions in Texas

Everyone makes mistakes, and sometimes those mistakes lead to a criminal record or conviction. In Texas, and many other jurisdictions, obtaining an expunction is considered the ideal remedy to “erase” the records dealing with a person’s arrest, and subsequent criminal record. An expunction is the permanent removal of records related to an arrest or criminal proceeding. Generally, the records are held by governmental agencies, but sometimes schools and other agencies may have the records as well.

When a person is granted an expunction, a Judge orders the agencies listed in the petition, (or request for expunction) to destroy any and all documents connected to that arrest. To break it down further, successfully obtaining an expunction means there are no longer any records of your arrest. It is as if the arrest NEVER happened. Further, an expunction allows you to deny the arrest ever happened. Having a clean record can be the key to getting a job, housing, or other goals that can be hindered by a criminal record.

While many people are deserving of expunctions, the ability to expunge a record is not based on fairness or favoritism. It is important to understand that expunctions can only be granted where a person is eligible under the law.

Not all cases are eligible for expunction. While Chapter 55 of the Texas Code of Criminal Procedure provides an expansive list of expunction eligibility, common scenarios for expunction include:

1. Cases in which an individual was arrested, but was never ultimately charged with the crime.
2. Crimes that ultimately ended in a dismissal.
3. Cases in which a person has been acquitted, or found not guilty of criminal charges.

In most cases, the statute of limitations must lapse or expire before an individual is eligible for an expunction. The statute of limitations is the period of time (by law) that the Government has to file a case against you. For most misdemeanors, the statute of limitations is two years. While it can certainly vary, the statute of limitations on most felonies is five years. There are of course, exceptions to every rule. When a person has been acquitted of criminal charges, they are entitled to an expunction within 30 days of the acquittal. (Tex. Crim. Proc. Code Ann. § 55.02).

According to the Texas Code of Criminal Procedure, the law in Texas does not permit records to be expunged in cases that resulted in court-ordered community supervision, also known as probation and deferred adjudication. (Tex. Crim. Proc. Code Ann. § 55.01). Limitations such as this, on the ability to expunge a record highlight the importance of understanding how the outcome of your case can affect your future. It is important to have attorneys who give you the tools to make informed decisions about what outcome is right for you, and the potential consequences of those decisions.

We have successfully obtained Expunctions in Texas. Take the first step in cleaning up your criminal record–Call Kara Carreras at 817-369-3838 to find out if your case is eligible for an expunction.


What is the Difference and What is best for me?

By: Brian Goza

When defending a case, the priority is always to have your client exonerated. Every case should be approached with that as the objective. All available evidence should be examined with that in mind. But, what happens if the evidence needed for the state to gain a conviction is clearly present?

When the prosecutor clearly has the upper hand, many cases are resolved by plea agreement. This means that the accused will enter a plea of either guilty or no contest, also referred to as nolo contendere. What are the differences between the two pleas and what are the legal effects?

When there is a plea bargain, generally the defendant will enter a plea of guilty. A guilty plea is a judicial admission that the accused committed the acts that the state has alleged which constitute a criminal offense. In felony cases, these allegations are contained in the state’s indictment. In misdemeanors, they are contained in a document called an information.

The other alternative is a plea of no contest to the prosecutor’s allegations. A plea of no contest is not an admission that the accused committed the act alleged in the charging instrument. Pleading no contest serves only as an admission that there is sufficient evidence for a judge or jury to find the defendant guilty, and that the defendant has chosen to not challenge that evidence.

The legal effect of the two pleas is very similar. Either is sufficient for the judge to find the defendant guilty, or that sufficient evidence exists to establish the defendant’s guilt, if the defendant receives deferred adjudication. There are several aspects of the two pleas which would at times make a plea of no contest more advantageous for the defendant.

First, in a plea of no contest, because the defendant does not admit that that committed the alleged acts, a defendant who believes that he did not commit the crime may except a punishment from the court. This limits a defendant’s potential exposure that is inherent in going to trial.

Second, unlike a plea of guilty, a plea of no contest may not be used against a defendant in a civil proceeding. This fact can have significant importance when a criminal defendant could be held liable civilly for monetary damages caused by their actions in commission of the crime. For instance, when a person is arrested for DWI and there is an accident it can be very important to plead no contest instead of guilty in a plea bargain agreement. A no contest plea would allow the defendant to dispute the issues of whether he was driving, and whether he was intoxicated if sued civilly for monetary damages resulting from the accident.

It is within the discretion of the court to except or reject any plea. Most judges, however, are more hesitant to except no contest plea then a guilty plea. It is important to make the nature of the plea, either no contest or guilty, part of plea negotiations with the prosecutor.

Competency to Stand Trial in Texas

By Brian Goza

In Texas, you must be competent to stand trial before proceeding in any criminal case. For most cases in criminal practice, this issue doesn’t arise. Defendants are presumed by law to be competent. Sometimes though, a defendant may exhibit behavior that raises a question as to whether or not they are competent.

A competent defendant in Texas must have sufficient present ability to consult with his attorney with a reasonable degree of rational understanding and must have a rational and factual understanding of the proceedings against him. To be found incompetent, it must be shown by a preponderance of the evidence that the defendant lacks at least one of these abilities.

The question of competency is usually raised by the filing of a motion to test competency of the defendant. This motion may be filed by either the counsel for the defense or by the prosecutor. Additionally, the court may also suggest incompetence if it becomes aware of circumstances that could lead to the belief that the defendant lacks competence. The court then performs an informal inquiry to determine whether or not the defendant should undergo a full competence evaluation. The court may then appoint an independent expert, usually a psychiatrist or psychologist, to evaluate the defendant.

After a finding of incompetence, the goal of the justice system is to have the defendant treated so that he can regain competence to stand trial. In most cases, this is done on an inpatient commitment to a mental health facility such as a State School. In limited cases, when the defendant is deemed not a danger, the treatment may be performed on an outpatient treatment. When the defendant has regained competency, he returns to court to face the charges against him.

It’s important to remember that the question of competency to stand trial is not tantamount to a finding of insanity. Insanity is a defense to the changed conduct and therefore deals with the defendant’s mental state at the time of the alleged offense. The question of competency deals with the defendant’s present mental fitness to stand trial. The standards for an insanity defense are different and higher than those for a finding of incompetence.

Many times, defendant’s may be found incompetent despite the existence of significant and difficult issues such as bi-polar disorder, addiction and substance abuse, debilitating anxiety and depression disorder, schizophrenia and many other psychiatric disorders. If the defendant is found incompetent, it is in no way a get out of jail free card.

Conditions of Probation: What did I sign up for?

By Brian Goza

In criminal practice, cases are frequently resolved by agreement, or “plea bargain”, that calls for the defendant to received either deferred adjudication or a suspended sentence and community supervision. Both of these are what most people call “probation.”
Probation can be in many forms. In some cases, it may be unsupervised where all that is required is that the probationer not violate the law for a couple of months. It can also be very restrictive and last up to ten years. The Judge has the authority to set the terms and conditions of probation in all cases.
In most cases, the terms and conditions of probation are pretty basic and usually include the following:
• Commit no new criminal offenses.
• Avoid harmful or injurious habits. Consume no illegal drugs. Avoid excessive consumption of alcohol.
• Don’t be around people of bad character (other people breaking the law).
• Report to a probation officer, usually monthly.
• Home visits by probation officer.
• Maintain employment.
• Stay within a certain county unless given permission to leave.
• Support all dependents.
• Have no firearms.
• Pay restitution if applicable, and all fines and court costs.
• Perform community service in an amount of hours set by the Judge.
• Submit to urine testing. The urine sample may not be diluted.

Keep in mind that those are the BASIC conditions of probation. Under 42A.301 of the Texas Code of Criminal procedure, following acceptance of the plea agreement by the court, a risk and needs assessment will be performed in most cases. Depending upon the results of the assessment additional conditions may be imposed by the court. These may include:
• Electronic monitoring
• Curfew
• Parenting Classes
• Compliance with CPS conditions
• No contact with certain individuals
• Psychological/ Sexual Evaluation
• Driver Safety course
• Substance Abuse Evaluation that could result in outpatient treatment, Education classes, Residential (inpatient) treatment, AA/NA.
• Speculating caseload (Example: Economic crime as mental health caseload)
• Alcohol monitoring device
• Education classes
• Cognitive classes
• No alcohol
• No contact, or no unsupervised contact with children younger than 17.

To be successful on probation you must follow all the rules the Judge gives you. And, you may not know ALL the rules at the time you are placed on probation. Be sure to ask your lawyer not just what your conditions of probation will be, but what they MIGHT be as well.