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Third Party Consent – The Curse of the Purse

 Posted on September 04, 2019 in Uncategorized

This post is the first entry in our “Know Your Legal Rights” series of blog posts related to police vehicle stops, detentions, and arrests. These posts are case studies based on real-life situations faced by defendants in the State of Texas, and are provided as general-interest information.They are not intended to be, and are not, legal advice. Every case is unique. So if you get pulled over and arrested, please seek the advice of legal counsel.

Today’s Question: Can a driver consent to a police search of a passenger’s purse?

Imagine you catch a ride with a friend. A few miles into the drive, you see flashing red and blue lights in the rear view mirror. Moments later you are parked on the side of the road having a conversation with a police officer.

You start getting nervous when the officer asks both you and the driver to get out of the vehicle. You’re really nervous when you hear your friend give the officer permission to search the vehicle. You realize you’ve left your purse on the passenger seat. You also know there’s a vial of THC oil inside — and in Texas that’s a serious felony offense. What can you do? What rights can you assert? How can you protect yourself?

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“Actually Not Guilty” – For those who thought they had drugs but really didn’t

 Posted on August 11, 2019 in Writs of Habeas Corpus

If you’re accused of possessing a controlled substance, you shouldn’t take a deal until the lab report comes back. That’s the advice dispensed recently in a concurring opinion in the Court of Criminal Appeals per curium case Ex parte Saucedo, WR-87,190-02.

Easy for a high court judge to say. But sometimes reality forces your hand. You can’t stomach multiple court dates. You’re accused of possessing marijuana and no one will pay for a lab report. Or you know you’re guilty and just want to get the case over with. So you take a deal.

But what if the lab report eventually comes back and proves everyone wrong (including you)? If the report shows the stuff in your possession wasn’t a controlled substance, or even if the report just shows it was a different controlled substance that what the indictment or information alleged, you can probably get your plea overturned.

The legal mechanism to do that is a writ of habeas corpus. The argument you would use is that your plea was involuntary. Why involuntary? Because if you’d known at the time that all you were possessing was a baggie of oregano or laundry detergent, then you would have rejected the plea offer.

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Should your Texas marijuana case have been dismissed?

 Posted on July 13, 2019 in Writs of Habeas Corpus

As many of you know, the Texas Legislature recently passed a law legalizing hemp. You may not be aware that the new hemp law has led to the dismissal of hundreds of weed cases, and that your recent conviction may be legally suspect.

If you have been convicted of or entered a plea to a possession of marijuana case since June 10, 2019, you may have a legal basis to get your conviction or disposition overturned. You should consult a post-conviction attorney for more information.

The New Law

House Bill 1325adds provisions to the Texas Agricultural Code that authorize farmers to grow hemp and entrepreneurs to legally create pretty much any hemp-based product they want.

The law also changes the legal definition of marijuana. It amends articles 481.002(5) and (26) of the Texas Health and Safety Code to modify the list of things that are not marijuana. Specifically, any substance containing less than .3% of delta-9 tetrahydrocannabinol is no longer considered a controlled substance. So hemp is legal to possess, as is other popular products such as CBD oil, as long as they the testable percentage of THC is below .3 percent.

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Beware of schemes targeting registered sex offenders

 Posted on July 12, 2019 in Uncategorized

Life is hard enough for a registered sex offender in the State of Texas. Jobs are difficult to come by. Friends and family often abandon them. There is constant judgment, ridicule, and the threat of harm by strangers.

Now, there’s a cadre of conmen out there tying to shake registered sex offenders down for money.

The scheme works like this: you get a call on your cell phone, often showing a legitimate number on the caller ID, such as a court house or county administration building. The person on the other end of the line says he’s a United States Marshall and that he’s got a warrant out for your arrest. He then claims that he has recorded conversations of you soliciting an underage person for sex. Knowing you are already registered as a sex offender, the person states he can recall the warrant and avoid release of the embarrassing material if you pay a fee. In one instance I am aware of, the con artist said he needed $850 to recall the warrant.

The whole thing is complete bs, but the target is still concerned enough by the call to sometimes pay the fee. Why? Because the last thing a sex offender wants is attention of any kind. He’d rather get ripped off than risk his parole or probation officer or the court getting phony calls about him making illegal solicitations.

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Texas Parole FI -1 (further investigation) time table update

 Posted on June 11, 2019 in Uncategorized

As of June 2019, TDCJ inmate release upon granting of parole has slowed down significantly, according to conversations I have had with both clients and TDCJ parole personnel.

The slow down appears to be due primarily to TDCJ staff shortages. I’m hoping the bottleneck is not permanent, but my sources seem skeptical that the problem will be alleviated any time soon.

For now, I’m hearing the projected time tables are as follows:

If you are granted parole and are not required to take any classes, then you should receive your parole certificate within 30-60 days.

After receiving your parole certificate, it can be anywhere from two to four weeks before you receive an actual release date and named release facility.

After receiving your release date, you should then expect actual transfer and release within four to seven days.

That’s right — an FI – 1 parole release means that it could still be over three months before your loved one actually steps out into the free world.

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TDCJ good time credits explained

 Posted on November 16, 2018 in Parole

Defendants contemplating a plea bargain deal for prison time need to know how much time they will actually serve before being eligible for parole. One key component to understanding your parole eligibility calculation is the “good time credits” awarded by TDCJ. When doing ball park eligibility calculations, family members sometimes rely on the general rule of thumb that if the inmate doesn’t get in trouble, he gets one day of good time credit for each “calendar” day he serves (Inmates normally refer to calendar as “flat time”).

But the actual rules are more complicated. Although you certainly don’t need to understand every nuance in the law, a general grasp of what good time you can earn (and what can be taken away) is important when planning for a post-prison future.

The first thing to know is that the statutory framework for awarding good time is hard to understand if you don’t already have knowledge of how TDCJ classification works. For anyone sentenced on or after September 1, 1987 (referred to awkwardly in the system as “70th Legislature offenders”) you earn a certain amount of days of good conduct time per 30 days calendar time served. The specific number of days you can earn depends on your classification. For example, if you’re designated as “Line CLass I” you can earn a maximum of 20 days per 30-day period. In addition, the statue authorizes TDCJ to award a “Line Class 1” inmate 15 days of work time credit. So, if you start out classified as Line Class 1, get a job and keep it, and don’t get in administrative trouble, you’ll bet cruising along earning 65 days total credit for each 30-day period – 30 days flat time, 20 days good time, and 15 days work time.

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record-based grounds for relief

 Posted on October 04, 2018 in Writs of Habeas Corpus

Generally speaking, an inmate or person convicted of a crime is not allowed to raise grounds for relief in an application for writ of habeas corpus based entirely on events that occurred during trial. Such grounds are described as “record-based” because they are a part of the reporter’s record. The Court of Criminal Appeals established the prohibition against raising such claims in the context of Article 11.07 writ jurisprudence (i.e. writs filed post-conviction under Article 1107 of the Code of Criminal Procedure), but the general prohibition against “record-based” claims could also be applied to writs filed to challenge misdemeanor convictions and other types of statutory and non-statutory writs.

The rationale behind the prohibition is simple. If the claim is record-based, then it could have been raised on direct appeal. If the defendant did raise the issue on appeal, then the Court of Criminal Appeals considers it resolved – you don’t get “another bite at the apple.” Conversely, if you didn’t raise that issue on appeal, then you have effectively waived the issue – you had your chance to bite the apple, but didn’t, so . . . no apple for you. I promise no more apple metaphors.

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How to avoid the Eighth Amendment when arguing that a sentence is grossly disproportionate

 Posted on September 24, 2018 in Uncategorized

The Texas legislature has given judges and juries broad discretion in assessing punishment, especially for 1st Degree felonies. If you’re convicted of a 1st-degree crime and have no criminal history or enhanceable aspects to the offense, you face anywhere from 5 to 99 years in prison.

This can lead to unfair discrepancies in sentencing for defendants that commit the same kinds of crimes. Sometimes the personality and history of the person on the bench ends up being more important than the facts of the case (e.g. is the judge a “hard nosed” ex-prosecutor, a former civil attorney with sympathies for those with substance abuse problems, or a women’s advocate who absolutely hates family violence cases). And, if you’re going to the jury for punishment, it’s basically a complete wildcard.

Texas repeat offender statutes complicate matters. If you’ve been consecutively convicted of two prior felonies, the prosecutor can indict you as a habitual offender. Upon conviction, your minimum prison sentence is 25 years.

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False Promises and Parole Boards

 Posted on September 07, 2018 in Parole

Texas parole blogs often warn inmates that they should never waive a right to a revocation hearing. This is good advice, but unfortunately the intended audience is usually already incarcerated and doesn’t get to hear it.

So this entry is for those individuals newly released to parole who are currently in good standing with their PO but who need to know the consequences of waiving their right to a revocation hearing. Rather than dryly outline the procedures — blue warrant, arrest, meeting with PO, preliminary hearing, revocation hearing — I think an illustrative PO tactic is better. At least it gives you some strategic insight.

There comes a point in any revocation when the PO attempts to “sell” the parolee on waiving his rights to a revocation hearing. Usually, this occurs with the two actors — PO and parolee — facing each other, with wire mesh or safety glass between them. Often each person will have a plastic jail phone receiver pressed up against his or her ear.

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After conviction, what can you appeal?

 Posted on September 06, 2018 in Appeals

It seems like a simple question. Most of my clients believe that when you appeal a conviction you get to let the appellate court know all the mistakes that were made during trial. Unfortunately, it’s not that simple.

There are two factors that limit the complaints (or points of error) that you can raise on appeal.

The first limiting factor is the concept of preservation. Although there are some exceptions, for the most part you only get raise issues on appeal that were preserved during the trial. The usual steps to preservation are: 1) make an objection; 2) make sure the trial court rules on your objection; and 3) if you are trying to admit something into evidence, make sure you make a record of what you wouldhave admitted if allowed. If these steps are not taken, the appellate court will not be able to review your complaint, even if it was an otherwise valid legal issue.

The second limiting factor is the record itself. Sometimes bad things happen at trial, but no one records it. A juror may act inappropriately. A key witness may say something out in the hallway that contradicts her testimony under oath. A prosecutor may hide evidence. A defense attorney may provide his client erroneous advice. As serious as the above examples are, if they are not pointed out on the record, the appellate court can’t do anything about them, at least not while the case is on direct appeal.

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