Bail…

Under the provisions of Article 1, Section 11 of the Texas Constitution and Article 1.07 of the Texas Code of Criminal Procedure, all persons accused of a crime (except capital crimes) are eligible to post bail.

Article 17.15 of the Code of Criminal Procedure states:

The amount of bail to be required in any case is to be regulated by the court, judge, magistrate or officer taking the bail; they are to be governed in the exercise of this discretion by the Constitution and by the following rules:
(1) The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.
(2) The power to require bail is not to be so used as to make it an instrument of oppression.
(3) The nature of the offense and the circumstances under which it was committed are to be considered.
(4) The future safety of the victim of the alleged offense and the community shall be considered.

The 8th Amendment to the United States Constitution states:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Texas courts recognize that the primary object or purpose of bail is to secure the presence of the defendant in court upon the trial of the accusation against him. Ex parte Vasquez, 558 S.W.2d 477, 479 (Tex.Cr.App. 1977). While bail should be sufficiently high to give reasonable assurance that the undertaking will be complied with, the power to require bail is not to be used so as to make it an instrument of oppression. Ex parte Bufkin, 553 S.W.2d 116, 118 (Tex.Cr.App. 1977).

If a person is unable to post bail, it has been my experience that, in most cases, a bond reduction can be negotiated with the State. The trial court must approve the negotiated bond reduction. If the State will not agree to a bond reduction, the next step is to file a Writ of Habeas Corpus with the trial court.

Pre-Trial Diversion…

Pre-trial intervention programs in Texas are authorized by Section 76.011 of the Texas Government Code. Pre-trial diversion is an agreement between a person accused of committing a crime in Texas and the State of Texas.

Under the terms of the agreement, if the person complies with the conditions set out in the agreement, the State will dismiss the criminal charges. The agreement is very similar to probation, but not as rigorous. By statute, the maximum term for a pre-trial diversion is 2 years. Each county in Texas has great flexibility in setting up a pre-trial intervention program in that county.

As a general rule, pre-trial diversion is available to first time offenders who have been charged with a non-violent crime. When available, pre-trial diversion is a great way to resolve a criminal matter.

Possession of Illegal Drugs – Affirmative Links…

There are many instances when law enforcement officers find illegal contraband, for example, marijuana, cocaine, methamphetamine or United States currency, in a vehicle occupied by more than one person. In most of these cases everyone is arrested and charged with possession of an illegal drug (or money laundering when currency is found). The question then becomes: Is a person guilty of possession simply by being present where illegal drugs are found? The answer: No.

Conviction for possession of illegal drugs requires proof that the defendant possessed the drugs knowingly or intentionally. Brown v. State, 911 S.W.2d 744, 747 (Tex.Cr.App. 1995 En Banc).

The Texas Court of Criminal Appeals has also held that: “To prove unlawful possession of a controlled substance, the State must prove that: (1) the accused exercised control, management, or care over the substance; and (2) the accused knew the matter possessed was contraband. Whether this evidence is direct or circumstantial, it must establish, to the requisite level of confidence, that the accused’s connection with the drug was more than just fortuitous. This is the whole of the so-called ‘affirmative links’ rule.” (Citations omitted). Poindexter v. State, 153 S.W.3d 402, 405-406 (Tex.Cr.App. 2005).

The mere presence at a place where contraband is being used or possessed by others does not justify finding that a person is in joint possession or is a party to an offense. When the accused is not in exclusive possession of the place where contraband is found, there must be additional independent facts and circumstances which affirmatively link the person to the contraband in such a way that it can be concluded that the accused had knowledge of the contraband and exercised control over it in order to convict the accused of possession of a controlled substance. Robinson v. State, 80 S.W.3d 730, 735 (Tex.App. – Houston [1st Dist.] 2002).

The “affirmative links rule” in a prosecution for possession of a controlled substance is designed to protect the innocent bystander from conviction based solely upon his fortuitous proximity to someone else’s drugs. Poindexter at 406.

Proof of an affirmative link between the accused and the contraband is needed to establish knowledge or intent to possess the contraband when the accused is not in exclusive possession of the place where the contraband is found. Robinson at 735.

Why My Client Is Different…

Well over 90 percent of criminal cases are resolved by way of plea negotiations with the State or the Federal Government. I believe the best outcomes are achieved when I can show that my client is different from the “average” person charged with a drug-crime or money laundering. It is important to understand that the various prosecutors I work with on a daily basis see hundreds of cases a year and thousands of cases during their careers as prosecutors.

If I can show that my client is different – in a positive way – I can often negotiate a better resolution for my client.

Case in point. I recently represented a young man from California. He was stopped in Potter County while on a cross-country trip. While searching his vehicle, law enforcement officers found a small amount of marijuana and some edibles believed to contain an illegal substance. My client was subsequently charged with possession of a controlled substance. The lab report showed that the edibles contained Tetrahydrocannabinol (Hashish). Because the edibles weighed over 400 grams, my client was facing 5 to 99 years, or life in prison. Through medical records we were able to show the prosecutor that my client had a medical condition and that traditional treatments had severe side effects on my client. Under the supervision of a medical doctor in California, my client was being treated with medical marijuana. The marijuana and edibles he had in his position were prescribed by his doctor. The state prosecutor was swayed by our arguments and agreed to let my client plead to a lesser Class A misdemeanor charge. My client went from facing life in prison to a maximum sentence of one year in the county jail. Because he was place on deferred adjudication probation as part of our plea agreement – he has the opportunity to have the case dismissed and not have a final conviction on his record.

Granted this was a rare case. However, by showing that you are different from what the prosecutor typically sees, you are more likely to achieve a better resolution of your case.

Community Supervision – Deferred Adjudication Probation…

As I wrote in my July 14 post, under the provisions of Article 42.12 of the Texas Code of Criminal Procedure, trial courts are given the authority to place a person on community supervision, also known as probation, in lieu of incarceration. I noted that there are two types of community supervision commonly known as straight probation and deferred adjudication probation.

The topic of this post is deferred adjudication probation.

Article 42.12 §5(a) states:

… when in the judge’s opinion the best interest of society and the defendant will be served, the judge may, after receiving a plea of guilty or nolo contendere, hearing the evidence, and finding that it substantiates the defendant’s guilt, defer further proceedings without entering an adjudication of guilt, and place the defendant on community supervision.

This provision applies when a person enters a plea of guilty or nolo contendere to the trial court. A person cannot receive deferred adjudication probation from a jury.

Under deferred adjudication probation, the court would defer the proceedings without a finding of guilty and place the person on community supervision for a certain period. In most felony cases, the maximum length of the probation period is ten years. While on probation, the person would be required to comply with certain terms and conditions.

If the person successfully completes the probation period, he would be discharged from probation, the charges filed against him would be dismissed, he would not have a final conviction on his record and he would never serve time in prison.

If it is believed that the person has violated a condition of probation, the State may file a motion to revoke community supervision. The court would then conduct a hearing to determine if the person in fact violated a condition of community supervision. If the court determines the person did violate a condition of probation, the court may revoke the community supervision and impose sentence anywhere within the range of punishment prescribed by law.

The four most important points to remember about deferred adjudication probation are: (1) the person avoids serving time in prison if he successfully completes the probation term; (2) the person will not have a final conviction on his record if he successfully completes the probation term; (3) the charges filed against the person will be dismissed if he successfully completes the probation term; and (4) If the person violates a term or condition of probation, the Court may find him guilty and may impose sentence anywhere within the range of punishment prescribed by law.

Possession of Controlled Substance Charge Dismissed…

In May of 2011, one of my clients was stopped in Hartley County for speeding. He was headed north on US Highway 87. (DPS officers in Hartley County & Dallam County have stepped up their efforts at drug interdiction in the last year or so along Highway 87 which is a major route between the high plains of Texas and Colorado.) During the course of the traffic stop, the state trooper asked for consent to search the vehicle. My client denied consent to search his vehicle. The state trooper then called for a drug-sniffing canine to do a free-air search of the vehicle. According to the dog handler, the dog hit on the vehicle. The officers then conducted a search of the vehicle and found edibles containing Tetrahydrocannabinol (hashish) and a few mushrooms containing Psilocybin.

My client was arrested and subsequently charged with two counts of possession of a controlled substance.

We filed a motion to suppress alleging that the officer did not have reasonable suspicion to detain my client until a drug dog arrived on the scene. We also challenged the purported hit by the drug dog. After an evidentiary hearing on the motion to suppress, the Court granted our motion and suppressed all evidence in the case. In July of this year, the State dismissed the criminal charges filed against my client.

Community Supervision – Straight Probation…

Under the provisions of Article 42.12 of the Texas Code of Criminal Procedure, trial courts are given the authority to place a person on community supervision, also known as probation, in lieu of incarceration.

There are two types of community supervision commonly known as straight probation and deferred adjudication probation. The topic of this post is straight probation.

Article 42.12 §3(a) states:

A judge, in the best interest of justice, the public, and the defendant, after conviction or a plea of guilty or nolo contendere, may suspend the imposition of sentence and place the defendant on community supervision or impose a fine applicable to the offense and place the defendant on community supervision.

Article 42.12 §4(a) states:

A jury that imposes confinement as punishment for an offense may recommend to the judge that the judge suspend imposition of the sentence and place the defendant on community supervision. A judge shall suspend the imposition of sentence and place the defendant on community supervision if the jury makes that recommendation in the verdict.

These provisions apply when a person is convicted of a crime by a jury or by the court, or when a person enters a plea of guilty or nolo contendere.

Under straight probation, the person would be found guilty and therefore have a final conviction on his record. In a felony case, the person would be sentenced to a term of confinement in prison. However, imposition of sentence would be suspended and the person would be placed on community supervision for a certain period. In most felony cases, the maximum length of the probation period is ten years. While on probation, the person would be required to comply with certain terms and conditions.

If the person successfully completes the probation period, he would be discharged from probation and would never serve time in prison.

If it is believed that the person has violated a condition of probation, the State may file a motion to revoke community supervision. The court would then conduct a hearing to determine if the person in fact violated a condition of community supervision. If the court determines the person did violate a condition of probation, the court may revoke the community supervision and impose the original sentence.

The two most important points to remember about straight probation are: (1) the person avoids serving time in prison if he successfully completes the probation term; and (2) the person will have a final conviction on his record.

Stolen Valor Act – Unconstitutional…

In 2006, it became illegal in this country to lie about your military service.

The Stolen Valor Act made it a federal misdemeanor to falsely represent oneself as having received any U.S. military decoration or medal. If convicted, a person faced imprisonment in a federal prison for up to six months. If the decoration lied about was the Medal of Honor, imprisonment could have been up to one year.

This week, the United States Supreme Court, in United States v. Alvarez, ruled that the Stolen Valor Act was an unconstitutional abridgment of the freedom of speech under the First Amendment, striking down the law in a 6 to 3 decision.

Another stupid law bites the dust.

Traffic Offense – Driving in Left Lane…

This is Part Five of a five part series on analyzing traffic stops. In this series, I discuss four specific traffic laws commonly used by law enforcement officers in the Amarillo area to initiate traffic stops. As I mentioned in my April 28 post, the legality of traffic stops are analyzed under the two-prong test set out in Terry v. Ohio.

Under Texas statutory law, it is unlawful to drive in the left lane under certain circumstance. § 544.004 of the Texas Transportation Code entitled “Compliance with Traffic-Control Device” provides:

(a) The operator of a vehicle or streetcar shall comply with an applicable official traffic-control device placed as provided by this subtitle unless the person is:

(1) otherwise directed by a traffic or police officer; or
(2) operating an authorized emergency vehicle and is subject to exceptions under this subtitle.

(b) A provision of this subtitle requiring an official traffic-control device may not be enforced against an alleged violator if at the time and place of the alleged violation the device is not in proper position and sufficiently legible to an ordinarily observant person. A provision of this subtitle that does not require an official traffic-control device is effective regardless of whether a device is in place.

§ 544.011 of the Texas Transportation Code entitled “Lane Use Signs” provides:

If, on a highway having more than one lane with vehicles traveling in the same direction, the Texas Department of Transportation or a local authority places a sign that directs slower traffic to travel in a lane other than the farthest left lane, the sign must read “left lane for passing only.”

As I have mentioned in this series on analyzing traffic stops, probable cause to stop a vehicle is determined by the two-prong test set out in Terry v. Ohio. If an officer has a reasonable basis for suspecting a person has committed a traffic offense, the officer may legally initiate a traffic stop. Garcia v. State, 827 S.W.2d 937, 944 (Tex.Crim.App. 1992). Texas courts have held that driving in left lane, after passing a sign that read “left lane for passing only” provides reasonable suspicion of traffic violation to justify a traffic stop. Green v. State, 935 S.W.3d 541, 545-546 (Tex.App. – Texarkana 2002, no writ history). See also Baker V. State, 50 S.W. 3d 143 (Tex. App. – Eastland 2001, pet. ref’d.).

The issue in these cases is: Where was the traffic-control sign in relation to the traffic stop and is reasonable to believe that the driver of the vehicle saw the sign?

Again, these types of cases are challenged by filing a motion to suppress evidence and requiring the State to offer evidence to show the Court the officer had probable cause to stop the vehicle.

Traffic Offense – Failure To Drive In A Single Lane…

This is Part Four of a five part series on analyzing traffic stops. In this series, I discuss four specific traffic laws commonly used by law enforcement officers in the Amarillo area to initiate traffic stops. As I mentioned in my April 28 post, the legality of traffic stops are analyzed under the two-prong test set out in Terry v. Ohio.

The topic of this post is § 545.060 of the Texas Transportation Code entitled “Driving on Roadway Laned for Traffic.” § 545.060 provides in pertinent parts:

(a) An operator on a roadway divided into two or more clearly marked lanes for traffic:

(1) shall drive as nearly as practical within a single lane; and
(2) may not move from the lane unless that movement can be made safely.

Section 545.060 of the Texas Transportation Code creates one offense: moving out of a marked lane when it is not safe to do so. Hernandez v. State, 983 S.W.2d 867 (Tex.App. – Austin 1998, no writ history). See also Atkinson v. State, 848 S.W.2d 813, 815 (Tex.App – Houston [14th Dist.] 1993, writ ref’d.). The Court in Hernandez stated: “We believe the statutory language shows a legislative intent that a violation of section 545.060 occurs only when a vehicle fails to stay within its lane and such movement is not safe or is not made safely”. Hernandez, 983 S.W.2d at 871. See also Fowler v. State, 266 S.W. 3d 498 (Tex.App. – Fort Worth 2008, writ ref’d.) for a good discussion of cases involving Section 545.060 of the Texas Transportation Code.

Interpretation of this statute by the courts is well settled – as a result, I don’t see as many cases where the traffic stop is based on a violation of § 545.060.

As with other traffic stops, probable cause for a stop based on § 545.060 is determined by applying the two-prong test in Terry v. Ohio.

Again, these types of cases are challenged by filing a motion to suppress evidence and requiring the State to present evidence establishing that the officer had probable cause to stop the vehicle.