Category Archives: Uncategorized

GUILTY or NO CONTEST?

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.

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/

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.