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Should your Texas marijuana case have been dismissed?
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.
Beware of schemes targeting registered sex offenders
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.
Texas Parole FI -1 (further investigation) time table update
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.
TDCJ good time credits explained
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.
record-based grounds for relief
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.
How to avoid the Eighth Amendment when arguing that a sentence is grossly disproportionate
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.
False Promises and Parole Boards
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.
After conviction, what can you appeal?
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.
Timing is everything: “final convictions” and Article 11.07 writs
New clients often ask me when they can apply for a writ of habeas corpus under Article 11.07. Unless they’ve been prison for awhile, my normal answer is, “Not yet.”
Article 11.07 refers to a section of the Texas Code of Criminal Procedure that establishes the procedures for filing an application for writ of habeas corpus afterbeing convicted of a felony offense. This may sound straight forward, but there are some procedural rules that limit when such an application can be filed.
First, your conviction has to be final. Or to use a technical phrase, “mandate” has to have issued. Mandate only issues when you have exhausted the direct appeals process. It’s probably easier to explain this with an example.
Let’s say a family member is convicted of felony aggravated assault (I’ll call this guy Paul). Once Paul finds out that he had been found guilty and is sentenced to prison, he has 30 days to file a notice of appeal (if Paul gets probation instead of prison, he can’t file a writ under Section 11.07, but must file under Section 11.072, a statute I will cover in a separate post). Filing the notice of appeal gives the intermediate appellate court jurisdiction over the case. If Paul doesn’t file the notice within 30 days of being sentenced, he loses the ability to file a direct appeal (unless an attorney sweeps in and manages to get a brief time extension), and mandate will issue. Paul can then file a writ of habeas corpus application under Section 11.07.
Marijuana Edibles in Texas: Worth the Risk?
As marijuana becomes legal in more States, the States where is it still illegal (Texas) are happily continuing to arrest and prosecute those that possess it. As you come back from Colorado with your legally purchased marijuana, you should know that not all marijuana is treated the same in Texas.
Possession of marijuana in its plant form will most likely be a misdemeanor – you have to work to get to a felony – we are talking over 4oz. If you are interested you can look at the statute here: Health and Safety Code section 481.121. This visual guide found on Leafly.com gives you an idea of how much marijuana you can carry and still be in the misdemeanor range.
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From our office in Conroe, Texas, we provide representation for clients in communities throughout Montgomery County, including Magnolia, Pinehurst, Montgomery, Panorama Village, Willis, Splendora, Patton Village, New Caney, Porter, and The Woodlands, as well as other areas surrounding Houston, including Spring, Katy Richmond, Friendswood, Galveston, Harris County, Fort Bend County, and Galveston County. We also represent clients throughout the state of Texas, including San Antonio and Bexar County, San Marcos and Hays County, Austin and Travis County, Georgetown and Williamson County, Dallas and Dallas County, Waco, El Paso, Corpus Christi, Abilene, Temple-Killeen, Forth Worth, Midland-Odessa, Lubbock, Tyler, and Tarrant County, and Denton and Denton County.
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