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.

Texting and Driving in Texas

 

By: Kara L. Carreras

Until yesterday, Texas was one of only four states that did not have a ban on texting while driving. Governor Abbott signed off on House Bill 62 yesterday; so, effective September 1, 2017, it will be illegal to text while driving in Texas. The bill can be found at this link: http://www.capitol.state.tx.us/BillLookup/Text.aspx?LegSess=85R&Bill=HB62

Here is what you need to know:

This amendment adds a new offense to the Texas Transportation Code §545.4251 and states that it is illegal to operate a motor vehicle and text on an electronic device aka cell phone while the vehicle is moving. This offense will be a class C ticket punishable by a fine only, but if someone is accused of causing serious bodily injury or death because of texting and driving the case can be charged as a Class A misdemeanor punishable up to 1 year in jail.

The legal requirements to prove the offense of texting while driving state that the texting must take place in the presence or within view of a police officer; although other evidence can be used. What type of “other evidence” can be used? No one knows yet, but here are defenses and exceptions to this law. Do you use your music app while driving? There is a defense for that. Also, if you use a GPS/navigation app, no need to worry. If you rely on these functions while you drive, the law makes exceptions for that and allows you to use them. The problem is that an officer may go ahead and issue you a citation/ticket, and then you will have to head to a municipal judge to show that you qualify for one of the defenses listed in the Code. Another part of the law says that officers will not be allowed to take possession or inspect your cell phone without your permission. The caveat to that is if officers have a legal reason to search or take possession under Texas Penal Code or Code of Criminal Procedure, they can confiscate on other grounds.

Some critics of this bill think that it will be just another way for officers to make contact with suspects and conduct warrantless stops on vehicles. Officers can pull you over if there is probable cause or reasonable suspicion that you are committing a criminal offense; this can include speeding, invalid registration, and now texting while driving. For now, we advise that you start getting used to the fact that you will not be able to text while your vehicle is in motion. If you text and drive in Texas, it could cost you!

Texas Second Chance Bill

 

 

 

 

 

 

Orders for Non-disclosure in Texas
Texas Second Chance Bill-HB3016

By: Kara L. Carreras

Just last week the Texas Senate approved and amended Texas’ “Second Chance” Bill.  The bill originated in the House (HB3016).  The idea behind the bill is to support lower level offenders and give them the chance to become productive members of society without the stigma of criminal convictions.   An order for nondisclosure (OND) is governed by Texas Government Code §411.0736.  In the past, the OND only allowed the sealing of records to certain individuals who successfully completed deferred probation for lower level drug, theft and other similar type offenses.

This bill has support from many criminal justice reform agencies, including Texas Public Policy Foundation as well as Mothers Against Drunk Driving.  Texas’ crime rate has been decreasing and there is a huge focus on rehabilitation programs for drugs and alcohol.  This is one step closer to allowing offenders to get their lives back.  If this bill passes (which is very likely) these new amendments will apply to cases on or after September 1, 2017.  So here are the details:

The proposed bill broadens the scope of the Order for Non-Disclosure by allowing those convicted of a DWI (so long as the blood results are less than 0.15 and there was not an accident involved) to be eligible for the non-disclosure.  In Texas, DWI and murder are two types of cases where the law does not allow for the option of deferred adjudication probation. (Deferred adjudication is a special type of probation that, if successfully completed, does not become a conviction on one’s criminal record).  So, as the law stands now, anyone who completes probation for a DWI is ineligible for an Order of Non-disclosure.  The new proposal will change that rule.  Persons with NO PRIOR RECORD can become eligible for the sealing or Order for Non-disclosure if they successfully complete probation along with a 6-month interlock ignition device program.  If the 6-month interlock requirement is not met, the waiting period to obtain a non-disclosure is 5 years from the date of discharge of the sentence.

The bill also expands the non-disclosure for sealing additional state jail drug & marijuana felonies after successful completion of community supervision.  These cases will require a waiting period after being discharged from probation, but still offers the chance at change and a clean slate in the eyes of the public.

An order for non-disclosure still allows the government and certain state agencies to see criminal history.  If you are interested in having your records sealed or non-disclosed give our experts a call.  We have successfully obtained Orders for Non-disclosures and Expungements in Texas.

 

Supreme Court Criminal/Death Penalty Cases

by Kara L. Carreras

supremecourt

It’s spring in Washington D.C. and not only does that mean cherry blossoms, but it means that the United States Supreme Court is very busy hearing arguments on pending cases and granting future hearings. Many of the cases granted certiorari (or granting hearings) are death penalty cases. A few months ago, the United States Supreme Court added 16 new cases to their Spring term and they are adding several more. Many of those heard this year and set for argument are criminal death penalty cases from Texas.

Some of the cases relate to racial bias, the rights of an accused person being given the ability to adequately prepare for their defense with the use of meaningful expert assistance, and others focus on intellectually disabled individuals.

Just yesterday the Supreme Court granted a hearing this coming fall for AYESTAS v. DAVIS, No. 16-6795. This case involves a Texas man convicted and sentenced to death in Harris County (Houston area). The only question before the Court is whether Federal appeals court erred by denying access to funds and resources to investigate his appellate claims, including the fact that he may have a mental disability. The claim is that the original state defense attorneys did not thoroughly investigate the potentially mitigating arguments in Ayestas’ defense.

Another Texas case that we have watched very closely is: MOORE v. TEXAS, No. 15-797. This case was decided March 28, 2017, on a 5-3 vote. The case centered around what are acceptable medical standards that can be used in determining the intellectual functioning of a defendant in a capital/death penalty case. The Court struck down Texas’ application of using outdated “legal-type” standards to determine intellectual disability. The Court stated that when determining intellectual disability of a person, the state must be “informed by the medical community’s diagnostic framework.” The majority stated that using outdated/”outlier” medical standards gives an “unacceptable risk” that an intellectually disabled person could be executed.

BUCK v. DAVIS, No. 15-8049 (decided February 22, 2017) is probably the most notorious case, nationally, and this one is from Teas as well. The issue raised in this case was one of racial bias. Duane Buck was one of 7 Texas cases that involved an expert psychologist by the name of Walter Quijano, who told juries at sentencing that blacks and Hispanics were “more likely to commit future crimes.” Six of the 7 defendants were given new sentencing hearings based on this racially biased claim, but Buck was not and his case made it to the United States Supreme Court.

The question before the Supreme Court was one of national importance; to what extent is the criminal justice system going to allow for bias based on race? In an easy 6-2 decision, Chief Justice John Roberts explained that the “law punishes people for what they do, not who they are.”
McWilliams v. Dunn, No. 16-5294- is a case set for oral argument April, 24, 2017. This case centers around the constitutional right that a defendant should receive meaningful expert assistance in preparation and presentation of his defense.

In this case, the defense counsel for James McWilliams requested expert assistance for neurological evaluations which were denied. Just moments before McWilliams sentencing hearing in state, court defense counsel received information related to the possibility of his client having an intellectual disability. The defense counsel, again, requested a continuance so that he could get a medical expert to further evaluated his client. His requests were denied and McWilliams was sentenced to death by the judge in Alabama.

Question Presented: Whether, when the Supreme Court held in Ake v. Oklahoma that an indigent defendant is entitled to meaningful expert assistance for the “evaluation, preparation and presentation of the defense” it clearly established that the expert should be independent of the prosecution.

Cert papers and the decision below are available here: http://www.scotusblog.com/case-files/cases/mcwilliams-v-dunn/

Davila v. Davis, No. 16-6219- is also set for argument April 24, 2017, and is a Texas Death Penalty case. The issue is more of a technical one asking whether Davila can raise the claim of ineffective assistance of counsel at the federal court level when the original appellate attorney did not raise the question of ineffective assistance of the original state attorney. So, part of the question is whether the federal appellate attorney made a mistake in not raising the issue to begin with. Usually, when an error argument is not raised initially, it is assumed the issue is waived. Many federal jurisdictions are split on this issue, so the decision of this case will answer the question once and for all.

Question presented: Whether the rule that ineffective state habeas counsel can be seen as cause to overcome the procedural default of a substantial ineffective assistance of trial counsel claim also apply to procedureally defaulted, but substantial ineffective assistance of appellate counsel claims.
Cert papers and the decision below are available here: http://www.scotusblog.com/case-files/cases/davila-v-davis/

So, Is Marijuana Legal in Texas?

By Kara L. Carreras

Lately, we have heard a lot of rumblings in Texas about the legalization of Marijuana. So, what is the real scoop? In the United States, 28 states have legalized the use of medical marijuana. Many of these states have broad legalization including treatment for cancer, HIV, glaucoma, PTSD and many other medical diagnoses. Some states legalize for recreational use too.

In June 2015, the Texas Legislature passed The Texas Compassionate Use Act (Senate Bill 339). The bill was signed by Governor Abbott, but the reality is that the Act is essentially useless. The bill created a registry for physicians (specifically, psychiatry/neuropsychiatry) to dispense low-dose THC to Intractible epileptic patients. Intractable epileptic patients are defined within the Bill as patients who have tried at least two other seizure treatment programs that have failed to control symptom of seizures.

leafTexas began accepting applications for dispensing organizations on February 23, 2017. Texas Department of Public Safety is in charge of licensing the dispensaries and the Act also requires DPS to license at least three dispensaries by September 1, 2017. Although the law sounds great in theory, marijuana is still illegal within the federal system and many of treating physicians are just not willing to risk losing their DEA licenses to prescribe other types of drugs to patients. Other issues are the licensing fees themselves. Suppliers wanting to get licensed in Texas are going to have to dish out more than $400,000 for a two-year contract.

Marijuana laws have a long way to go in Texas. If you or your family member is accused of possessing Marijuana in Texas make sure you find a qualified criminal defense attorney that can give you the right advice for your situation. Goza & Carreras has represented thousands of Texas citizens accused of drug offenses and we have the expertise you need. Give us a call at 1-866-I-GOT-POT

Be Prepared for the Super Bowl 2017

football

By Kara Carreras

Super Bowl® 51 is slated to be an “Instant Classic”, but don’t get caught unprepared and in jail Sunday!

The Atlanta Falcons and New England Patriots game is already being touted as an instant classic! On the one hand, we have the Atlanta Falcons with their high-powered, fast offense and a super-fast defense. Julio Jones is the League’s best wide receiver and they have the possible League MVP in Falcons quarterback, Matt Ryan. New England has the best coach and arguably the best quarterback in League history…Tom Brady! The Patriots are a good all round team and Brady makes everyone around him perform even better. With just a few more days to this historical game there are other things that should be on your mind too…

Texas is such a huge football state, and this year’s is set to bring even bigger celebrations in our state. We want you to have a great time, but we don’t want you to have to call us first thing Monday morning with a DWI charge against you. Here are the facts: Texas leads the United States in drunk driving deaths (according to 2013 study by Mothers Against Drunk Driving). You can be sure that enforcement and patrols all around the state, especially in Houston, will be on the lookout for intoxicated drivers on Sunday. Harris County Constable, Mark Herman says that he is already preparing more patrols for his area in Houston this weekend. Over the last 6 years DWI arrests on Super Bowl Sunday have looked like this: (these stats do not account for the entire weekend)

•2015: 65

•2014: 182

•2013: 147

•2012: 211

•2011: 207

•2010: 199

Planning ahead is the single most important thing you can do to prevent your arrest. Get a designated driver or hitch a ride with a non-drinking friend. If everyone in your group is drinking, plan to Uber or Taxi. You can split the fares on Uber. Have the number ready or download the app today! A $20-$60 taxi/Uber ride will save you thousands of dollars in legal fees, not to mention the stress of having to deal with the criminal justice system. If you do find yourself in the situation of having to hire an attorney for your DWI. Call experienced lawyers who know just what to do. Enjoy this Sunday. It will be a classic!

Inauguration Day 2017 – A History of Traditions

InaugurationBy Kara Carreras

With the President-Elect Trump’s inauguration coming in just a few days, everyone is a buzz about exactly how the 2017 transition will operate. Donald Trump will be our 45th President and this is the 58th Inauguration Day in United States history. What most media outlets are reporting is who is going and more importantly, who is not going. Regardless of who may or may not attend this is a chance to learn more about our Country’s peaceful transition of power and the traditions behind the Inauguration.

President’s inauguration is driven more by tradition than constitutional mandate. The only significant constitutional guideline for inauguration is the date and the text of the oath. The text of the oath is derived from Section II Article I of the United States Constitution and states, “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States.” Interestingly, if January 20th falls on a Sunday, the President takes his oath privately on Sunday followed by the public ceremony on Monday. From 1793-1933 the inauguration took place in March 4, which was the day the federal government began operations in 1789. This is a transition that has taken place many times in our Country’s history, but this year this tradition is of great interest to all.

As a bit of a background to Presidential inauguration, we must begin with our first President. President George Washington was sworn into office on April 30, 1789, in our Nation’s first capital of New York City. He was sworn in at noon on the balcony of Federal Hall. George Washington and his wife danced in celebration after his inauguration. This dance has transformed into many formal celebrations balls. In 1801, Thomas Jefferson became the first President sworn into office in Washington D.C. The location chosen for our Capitol as it stands today. Jefferson’s first inauguration was the first peaceful transfer of power under our current governmental system. After Jefferson’s second inauguration, he rode his horse from the Capitol to the President’s home. Many Navy shipmen and musicians gathered to watch, and thus began the tradition of the processional parade. In 1885 Grover Cleveland’s parade lasted two hours and dawned 25,000 marching in the processional. The President customarily chooses who marches in the parade and in 1865 Abraham Lincoln included, for the first time, African Americans to march along-side him. The only President to skip the tradition of the parade is Reagan in 1985 who chose to cancel the parade due to dangerously freezing temperatures and winds. By 1829, Andrew Jackson had 20,000 in attendance at his reception and ended up sneaking out of a White House window. The first televised Inauguration was Harry S. Truman in 1949.

Attendees to the inaugurations have been usually members of Congress, high-ranking members of armed forces, judiciary, and former Presidents. To date, there have only been five former Presidents that did not attend the inauguration of an incoming president. John Adams and John Quincy Adams were both very upset over their losses to Thomas Jefferson and Andrew Jackson, respectively, and choose not to attend. Andrew Jackson did not attend the inauguration of Ulysses S. Grant and neither did Woodrow Wilson (although he did ride with Warren G. Harding to the Capitol). And of course, the most famous to date, Richard Nixon did not attend the inaurguation of Gerald Ford….for obvious reasons. So, will this year’s list of former Presidents “trump” the other attendees? We shall see…..

Whatever your political views, this is a time to reflect on our Country’s history, traditions and the chance to see, first hand, the peaceful transition of power that has gone on for over 200 years.

Sexual Offender Registration: Does it make rehabilitation impossible?

By Brian Goza

Everyone knows, at least in general terms, about the sexual offender registration laws. The offenders’ pictures are in the paper. There are websites and apps that have all the information: pictures, offense, address, etc. This is the reality of the world that these people live in.

I understand, and don’t disagree with the basic premise of the requirements. Protect the public, especially children, from sexual predators. No one is in favor of putting children at risk. These laws are designed with that as a goal.

It doesn’t stop with mere registration. While on supervision, whether it be through parole following a prison term, or community supervision (probation), certain sex offenders are not permitted to live in delineated “child safety zones”. These include areas near public swimming pools, schools, day care centers, and playgrounds. Many municipalities have enacted ordinances that prohibit those subject to sexual offender registration from living in the same areas even after they have been released from probation or parole.

In the vast majority of sexual offense cases the offender will at some point return to society. Whether by discharge of their sentence or by receiving deferred adjudication probation. Presumably, the goal is to have these individuals become rehabilitated so that they will be productive, law abiding citizens. They will be in the free world so it would be in everyone’s best interests to reintegrate them to the extent possible.

Sex offender registration, and particularly residency restrictions can undermine efforts to reintegrate. Many individuals are prohibited from living where they otherwise would, usually with supportive family. These individuals are then forced to acquire other, less stable, living arrangements, such as extended stay hotels. This can cause the individual to be in an environment that is less conducive to rehabilitation.

As a result, residency restrictions have come under fire. Recently, Marion, Texas abandoned an ordinance that would prohibit sex offenders from living within 1000 feet of a child safety zone. The Marion ordinance included bus stops in the definition of child safety zone. This effectively blanketed the city and made Marion off limits to sexual offender registrants. When facing legal challenge, the city repealed the law. Courts in multiple states have struck down such restrictions.

Everyone is in favor of protecting the public, and especially children. There is a glaring lack of evidence that residency restrictions contribute to that goal.

Collin County Jury Convicts Enrique Arochi in Largely Circumstantial Case.

By Brian Goza

Last Thursday, September 22, a Collin County jury found Enrique Arochi guilty of aggravated kidnapping in the disappearance of Christina Morris. The verdict followed more than a week of testimony and two full days of deliberations.

Christina Morris, a 23-year-old Fort Worth resident was last seen on surveillance video in a parking garage at the Shops at Legacy in Plano at around 4:00 a.m. On August 30, 2014. She had been at a friend’s apartment and was walked to the garage by Enrique Arochi who had been at the same gathering. She was reported missing by her family four days after anyone saw or had contact with her. Her car was found in the garage that she was seen entering with Arochi. Arochi’s car, a 2010 Camaro was seen on video leaving the garage.

The case against Arochi was a difficult one to prove. The evidence was largely circumstantial. The only physical evidence was traces DNA found in the trunk of Arochi’s car. Cel phone records show that Arochi and Morris were in the same area after leaving the garage. The presiding judge, Mark Rusch, rejected efforts of the prosecutors to put in evidence of “deviant pornography” and other highly damaging circumstantial evidence which was obtained in a search based on an insufficient search warrant.

The defense pointed to the lack of hard evidence arguing that the State had failed to meet their burden of proof. They also pointed to the victim’s boyfriend, Hunter Foster, as a possible suspect. Foster is currently serving a 33-month federal sentence for distributing the drug “Molly” in a north Dallas nightclub. The victim’s mother has indicated that although shocked by Foster’s drug involvement, she does not believe he in connected to her daughter’s disappearance.

The jury deliberated two days prior to finding Arochi guilty. The court granted the defense request to sequester the jury during deliberations. When the jury returned for the second day of deliberations the court learned that one of the jurors had fallen ill. Judge Rusch released the juror stating that the juror “looked like death warmed over”. They reached their verdict at around 7 p.m. Thursday night.

The police and prosecutors who continue to pursue the case against Arochi appear to believe wholeheartedly that Arochi killed Morris and disposed of her body. At least in part because no body has been found, the State has proceeded Ina charge of aggravated kidnapping instead of murder or capital murder. Aggravated kidnapping, like murder, is a first degree felony. It is punishable by anywhere from 5 years to 99 years in prison. Unlike a murder conviction, Arochi is eligible for probation following his conviction for aggravated kidnapping.

The punishment case against Arochi is set to begin Tuesday, delayed one day due to the judge being sick.