Criminal Defense Legal Blog
March 9, 2017
Are fake guns illegal?
February 8, 2017
What is a sanctuary city?
January 24, 2017
What is shock probation?
I’ve been charged with a crime but I’m not here legally...
14 December 2016
Illegal immigration. The words alone make some people furious and others deeply saddened. This has been a hot-button issue throughout this year’s national election, but has been an issue in Texas for years. It has unfairly and grossly been used as leverage over different groups of people and somehow the American public has managed to remove all humanity from the issue.
I’m here legally, but what are illegal immigrants?
Illegal immigrants are people who come to live in the United States, but are unauthorized to live here for an extended period of time. This means that, for whatever reason, they do not possess the correct materials for citizenship. For all of you shouting, “Well if they want to be here, they can become citizens,” it is not an easy process. In Texas, the path to citizenship can take years and can be extremely burdensome, especially for one trying to provide for his or her family in the process. On top of that, illegal immigrants are especially susceptible to being charged with border crimes, because of the huge increase in resources devoted stopping these crimes by the Department of Homeland Security.
What is a border crime?
Border crimes include drug distribution, drug smuggling, drug trafficking, drunk driving, smuggling of illegal immigrants and hiring of illegal immigrants. They can also include other crimes committed by those who are undocumented.
What if I’m here illegally and have been charged with a border crime?
Even though you are here illegally, you still have rights! Every human in the United States has rights under the Fourteenth Amendment to the US Constitution. This amendment states that, “No state shall… deprive any person of life, liberty or property, without due process of the law; nor deny to any person within its jurisdiction the equal protection of the laws.” You are a person under this law and you will be given the opportunity to defend yourself in court. However, this is no walk in the park and must be treated extremely carefully if you are hoping to beat highly trained prosecutors in this case.
Domestic Violence Statistics Need a Little Explaining
5 November 2016
Domestic violence is a nationwide problem, but in our state of Texas, it is being put under the microscope. October 2016 was Domestic Violence Awareness Month, which means the state and federal government have been releasing numerous statistics they have been collecting over the last year. The data provided by the Texas Council on Family Violence is turning heads:
- Family violence incidents increased from 185,817 in 2014 to 194,872 last year
- 158 women in 2015 were killed in domestic violence disputes as compared to 132 women in 2014
- Adults and children receiving services such as counseling and legal advocacy decreased from 61,119 in 2014 to 45,478 in 2015
WOW, those numbers…
Did you notice that last statistic? If domestic violence incidents across the board are increasing, what explains the fact that the amount of people receiving counseling and legal advice for domestic violence disputes is actually decreasing? There are several potential theories. One is that “situational couple violence,” which is an occasional shove, slap or verbal aggression, is oftentimes committed by women. Men who are the victims of this violence don’t always report it, whether it’s because of embarrassment or a feeling of normalcy surrounding occasional violence in the home. When these statistics are drawn, the numbers come from a mixture of police records and surveys. Men are much more likely to report that they have been victims of abuse at one time on a survey than they are to file a report with the police or press charges.
What can I do to make sure I’m not included in those numbers?
If there is a questionable situation involving your spouse or family member, things can escalate very quickly. The best option you have is to go immediately to a trusted San Antonio criminal defense attorney. This may sound terrifying if you are not in the wrong, but trust us when we tell you that these cases can get heated. Even though domestic violence details are described under “Assaultive Offenses” in the Texas Penal Code, domestic violence cases will oftentimes be judged harder than other assault cases. Some of these cases can rest completely on accusations with no hard evidence to back up claims.
K2 is the new Russian roulette and you need to protect yourself
14 October 2016
Since August 24th, over 100 people have been rushed to the hospital with K2-related illnesses in our neighboring city of Austin, TX. Autopsy reports issued recently even show several deaths caused by this drug, with more suspected. K2 is a mystery to many and sounds more like a member of a rock band than a drug. Here’s what you need to know:
First of all, let’s get something straight. K2 is synthetic marijuana. According to the National Institute on Drug Abuse, synthetic marijuana is “a man-made, mind-altering chemical that is either sprayed on dried, shredded plant material so it can be smoked or sold as a liquid to be vaporized and inhaled in cigarettes and other devices.” Oftentimes, it is marketed as incense or potpourri and plastered with labels that say, “do not ingest,” to ward off law enforcement.
Unfortunately, this drug is oftentimes highly toxic and can cause symptoms ranging from vomiting to psychotic episodes and heart attacks. According to Dr. Philip Fagan, “it’s probably closer to a combination of methamphetamines and cocaine in terms of the reactions it causes in people – and people are just totally out of control when they use K2.”
Since new synthetic drug creations are popping up on a regular basis, it is hard for laws in Texas to keep up with them. Many of these types of K2 are technically legal because of confusion and the length of time it takes to get a law passed in Texas. This uncertainty leads many consumers to falsely believe that synthetic marijuana is a safe and natural alternative to pot. Even the colorful packaging of K2 makes it look more like an enhancement vitamin found at a drug store rather than a toxic chemical. Drug addiction experts compare picking up a package of K2 to playing Russian roulette.
K2 is not something to joke about. If you or someone you know has been found in possession of K2 or another synthetic drug, you need an experienced attorney that fully understands these new laws. Call Daniel & Hudson Law Offices immediately.
Fake money will buy jail time, not happiness
8 September 2016
Cashiers beware! Authorities in east Texas have warned several nearby cities that counterfeit money has started circulating. However, this isn’t your typical counterfeit story. Here’s what we know so far:
Gregg County Sheriff’s Office spokesman Josh Tubb says they are investigating several cases of fake money use. However, it is believed there are more. Interestingly, this money has been printed for use in movies, so it is made to look as real as what is currently in your wallet. On the front of the bill, the words “for motion picture use only” are printed, but since it looks so authentic, some cashiers have not noticed it. Tubb says that fast food restaurants and gas stations have to be particularly careful since they are usually busy with quick transactions.
We did some digging and found a package of $50,000 worth of hundred dollar bills for (real) $35 online. This is a huge problem for not only east Texas businesses, but businesses across the state. The bills used recently have also gotten through the bank deposit process, until caught by someone who noticed the detail.
If this money is re-entered into the economy by someone who received it (example: waiter receives tip in form of fake cash, uses it without realizing it’s fake at Target and gets caught and turned over to the police), huge defensive measures will be needed to protect him/her from potential charges.
According to Texas Penal Code 32.21, to “forge” means, “to alter, make, complete, execute, or authenticate any writing,” while, “writing includes printing… money, coins, tokens… symbols of value.” Under Federal law, the attempt to use or create counterfeited currency is illegal and is punishable by up to 20 years in prison and a fine. This charge is given if the prosecutor can prove that the payer attempted to defraud the receiver.
Bexar County Jail had 924 suicide attempts in the last 7 months
8 August 2016
The following headline from a recent article has been dropping peoples’ jaws across the country:
Melvin McKinney, Victor Casas, Jonathan Campos and Jesus Jose Lopez hanged themselves with sheets off their beds in their cells. None of these men were under a mental health watch.
Probably even more shocking, Bexar County Jail has had 924 suicide attempts just this year, according to James Keith, spokesperson for the Bexar County Sheriff’s Office. The average jail detainee population is about 3,500 daily, as stated on the Bexar County website.
These numbers are shocking – we had to do a double-take and confirm them. So we ask a new question -- If the inmate suicide numbers are so high, what is causing them?
Susan Stefan, author of Rational Suicide, Irrational Laws, believes that our society is too quick to put the tag of “mental illness” on attempted and completed suicides. The National Alliance on Mental Illness states that, “research has found that about 90% of individuals who die by suicide experience mental illness.” Stefan argues that this number is unreliable because it is calculated from asking the deceased’s loved ones if they believed they showed signs of mental illness after the fact.
What does this mean for inmates specifically? If we stop putting the “mental illness” label on inmates that may show 3 of the 5 possible signs, we can start addressing people’s individual needs. Currently, healthcare professionals who work at the jail fear that if they report that someone may be suicide-prone and that person commits suicide, they will be held liable for not giving them enough care and support. Overseers’ fear of liability must change to reduce the numbers of suicides and attempts in jails.
Blue warrants make me feel blue
21 June 2016
Oops – you’ve violated your parole by wandering a little farther outside of your home’s radius than what is allowed. Now what? Before immediately thinking, “oh no, I’m definitely going to jail,” sit back and understand that you have options.
There is most likely now a blue warrant out for your arrest. This is issued by your parole officer because he or she feels that the violations are serious enough to re-consider your parole. The purpose of giving a blue warrant is to potentially stop one from “doubling up” on criminal activity, if that is something one is leaning towards.
A BLUE WARRANT IS ISSUED – WHAT DO I DO NEXT?
When a blue warrant is issued, you will be arrested and given the option to participate in a hearing with the Judge. Your best bet is to take this offer. If witnesses are presented that can confirm that you have been abiding by the rules of your parole, there is a chance you can get this warrant lifted. However, there is usually no bond available for a blue warrant. This means that if the warrant is not revoked, you will not have the chance to bond out of jail time. Oftentimes, one of three options will be decided: 1) reinstatement of parole with possible added conditions, 2) temporary jail holding, or 3) revocation.
Changes in the blue warranting process are currently being discussed. Blue warrants have been known to contribute to overcrowding of jails and back-ups in the court system. As of September 1, 2015, Senate Bill 790 was put into place, which opens the possibility of getting a bond after a blue warrant has been processed. There are strict guidelines surrounding this bond process, however, and candidates for this bond must fall into a narrow category.
If a blue warrant has been issued for your arrest, call Daniel & Hudson Law Offices immediately. You will need an experienced attorney to stand by your side.
11 May 2016
According to the Centers for Disease Control and Prevention, suicide is the 10th leading cause of death in the United States, with approximately 105 deaths by suicide occurring each day. With an increased number of bullying-related suicides in Texas, some interesting questions have risen on the topic. These include, “can suicides truly involve more than one person?” and “how do we know if one’s words caused someone to go over the edge?”
We’re going to call this “suicide encouragement,” which is a relatively new topic. Whether someone screams, “jump” to a tortured soul teetering on the top of a building or someone posts a harsh comment on a Facebook photo, both are examples of suicide encouragement… BUT are they? How do we determine what exactly made a victim of suicide commit the crime?
When talking about suicide encouragement, arguments surrounding suicide assists and “mercy killings” also rise. Mercy killing is a fancy word for ending the life of someone who is suffering from something that does not seem to be getting any better. This most often refers to incurable diseases and old age, but one can argue that it applies to other forms of suicide stemming from mental illnesses, such as depression or schizophrenia. Stories of suicide assists have dated back to the 5th century BC and every generation since then has taken on differing views of the process.
Now, we’re not here to debate the ethicality or morality of suicide encouragements and assists. We are criminal defense attorneys specializing in making sure that the fair and right thing is done in court, so we’re concerned with laws. The Texas Health and Safety Code, Section 166.45-51 states that euthanasia is neither condoned nor authorized. Any act or omission that causes one’s death is also illegal, except for allowing a person to die naturally without any outside interference. This law is applied to cases that involve suicide encouragement, even when the law was written specifically for suicide assists and mercy killings.
Imagine all the Texas laws organized into one single book. Now, if you flip through the book, you will find a completely blank page. Many people in Texas, particularly in Bexar County, are working to fill this page with a law specifically regarding suicide encouragement. While this is being created, the best way to be involved is to stay informed. Let your elected officials know how you feel and help create governing rules for your state.
Police Body Cameras
14 April 2016
Things have officially changed. When you go into a public area and something crazy happens, no matter what the situation, people immediately grab their phones to record. Argument? Record it. Proposal? Record it. Two cute dogs playing together? Record it.
In all seriousness, we live in a constant cycle of viral videos and information overload. With increased media attention centered on police brutality, more people are bringing out their cameras when they witness anything from arrests to pat-downs to simple discussions. Some argue there is no evidence better than a video. However, there are usually factors outside of the immediate situation that greatly influence what happens in front of the camera. Oftentimes these “outside factors” will not be weighed as heavily in court because the visuals that videos provide resonate very well with jurors and judges. The story is not always as it seems and video evidence can blur the line even further.
However, in some situations, police body cameras have already proven to be effective in proving police wrongdoing. Take Charlie Sampson, for example. Sampson was pulled over for rolling through a stop sign when police found meth in his car. The cops put him in the backseat of their cruiser while they drove to his house to search for more drugs. While they were driving, cameras caught videos of Sampson obviously ill and begging for medical attention. After they arrived at his house, several of his family members called 911 but the cops at the scene called dispatch as well to cancel their request for paramedics. Later, Sampson was pronounced dead upon arrival at the hospital. Currently, the family is in the process of a wrongful death lawsuit and outcome is looking hopeful. Many believe that without this video, the chances of this case getting swept under the rug would have been far greater.
Will these body cameras cut down on charges pressed against Texas citizens? Or will video evidence be used to “find” charges to press against them? These are questions we have all been pondering. If you have a question (or an answer), contact Daniel & Hudson Law Offices. We’d love to hear from you!
Is your personal cell phone all that personal anymore?
17 March 2016
You’ve surely heard all the buzz surrounding The Federal Government vs. Apple case. The government asked, “can you please open up this cell phone for us?” and Apple replied, “heck no… that’s not what we’re here for!” The main issue in this case is the fact that the software needed to crack this code doesn’t exactly exist and if Apple makes that software for this phone it could easily get into the hands of a bad guy. Ultimately it is a battle between privacy and security. Which one should we prioritize? Until we have a golden box that contains all the “right” answers to tough questions like that, we’ll just look at cases we’ve had closer to home. These affect whether or not your cellphone records can be used in court against you.
In 2014, Anthony Granville was arrested for causing a disturbance on a school bus in Texas. After he was arrested, police got word that there may be inappropriate photos on his cellphone. One of the officers retrieved the phone, found a photo and printed it as evidence against him in his case. However, the judge said, “that’s not yours to show,” and slapped the officer on the hand. It was determined that a cellphone should not be treated the same way as other tangible property (such as a pen or a napkin) in a case. Shortly after that decision was made, the Supreme Court decided that cell phones could not be searched without a warrant since they were starting to contain more and more personal information. It’s amazing, really – this tiny computer that can do more than we ever thought imaginable. This decision was a huge deal because it was one of the first times this whole “privacy thing” became an issue.
Currently Texas takes cellphone search issues on more of a case-by-case basis. However, you can be confident in knowing that an officer cannot go through your phone without a warrant, and warrants can often be tough to obtain. Have you had issues with your cellphone as evidence in a case? Let Daniel & Hudson Law Offices know!
What to do when your court-appointed attorney just isn’t working out
10 February 2016
It is believed that communication is oftentimes the weakest link in any business transaction. Getting the wrong birthday present for someone because of communication problems usually doesn’t end up being all that terrible. However, lack of good communication with your attorney can mean the difference between probation and jail.
Firing an attorney and seeking out a new one is never a happy situation. Even if you hire a new one the very next day, you will lose valuable time spent on your case. Whether it’s because of dysfunctional communication or lack of care, this is always the last resort.
Before taking any drastic measures, you should make sure that the problem between you and your attorney cannot be fixed. It is also important to remember that the Sixth Amendment “guarantees the rights of criminal defendants… the Assistance of Counsel for his defense.” This means the court will assign a public defender to you and you will have no say in who is chosen. Because of this, replacing an attorney is a sticky process.
Steps for replacing your court-appointed attorney:
- 1) Inform your current attorney of your concerns and see if they are willing to compromise with you (be aware of the vibe that you’re giving off when you’re frustrated).
- 2) Contact the lawyer’s supervisor with your concerns. Sometimes the supervisor will give you a new attorney (very rare… not too much paperwork involved).
- 3) If the first two do not work, contact the court and ask for a hearing to request new counsel and inform your current attorney of this change. Make sure that you have concrete reasons for your desire to have a new attorney (“I don’t like the way they talk” does not hold up in a court of law).
- 4) Remember that your contender is now your lawyer and you will need to present facts to the judge in a true and researched manner (keep in mind this person you are arguing with is trained to fight).
- 5) Respect the judge’s decision. He/she will inform you of the next steps.
Before starting this process, do a little soul-searching. Ask yourself if it is truly worth it to burn this bridge. If you have any more questions about finding a new attorney, feel free to contact Daniel & Hudson Law Offices.
New Steps Taken To Fight Cyber-Bullying
29 January 2016
David Molak was a 16-year-old Eagle Scout who was cyber-bullied extensively for months at Alamo Heights High School. Even with a loving family, a new school, supportive friends and hobbies that he enjoyed, David fought his way through the darkness but could not see the light. On January 4, 2016 he took his own life.
Mobile devices and social networks are meant to connect people who would not otherwise make contact. They’re meant to make those “wow, this is a small world!” occurrences happen more often. Unfortunately, there are good and bad sides to everything. Mobile phone owners are constantly bombarded with messages. Some get overloaded with “Have you eaten?” and “Are you exercising?” from their mom. Others engage in group texts where Emojis run rampant. But for some, there are dreaded rings notifying them that someone commented on their picture or sent them a private message.
On the other side of that coin, there are the people that cause the rings; the ones that post the comments. A victim of bullying can no longer get away from his bullies on nights and weekends. He can no longer hold his breath at 8:30am on a Monday and think, “I only have to go for 8 hours and then I’ll be done.” This is our problem -- instant gratification for bullies and around-the-clock harassment for victims.
Because of the dramatic increase in cyber-bullying in Texas, lawmakers are now being urged to look into previous bullying laws and how they can fit this new age of cyber attacks.
Challenges in enacting these laws and facts to be considered:
- Comments online are not necessarily always “prosecutable.” Under the current system, it is difficult to link some hateful comments to a teen’s suicide as the cause.
- Many social sites allow users to post anonymously, and while others may have a good idea of who’s behind the screen, there is no hard evidence.
- Bullies could be residing in different states and therefore outside of Texas jurisdiction.
It’s no secret that passing or changing a law is a tough process, especially when all that the law protects isn’t quite understood. We hope for David’s sake something is done and others recognize this can be a punishable offense.
Open Carry laws are open for interpretation
14 January 2016
If you’ve turned on your TV in Texas at least once in the last week, you’ve heard some confusion surrounding the new Open Carry laws. As of January 1, 2016, you are now legally allowed to carry a handgun (open or concealed) with a proper license.
Of course with this huge change, there are many rules that apply to this law -- rules that always come with exceptions. Here’s a quick description of the information the law gives us, which seems to be up for interpretation.
- Handguns that are not concealed must be in a shoulder or belt holster, whether they are loaded or unloaded. There is no distinction in the law between loaded and unloaded guns.
- No additional fee or second license will be needed to open carry for those who already have their Concealed Handgun License (CHL). The title will change from CHL to License to Carry (LTC). This also means there are no additional training courses required for those who already have their CHL. These courses will begin for new applicants after January 1st.
- Carrying a handgun openly in a vehicle is legal if the gun is “on or about” one’s person, which means approximately arm’s length away.
The following are locations/situations where carrying a gun (openly or concealed) is forbidden:
- At a correctional facility on a day of execution
- At a polling place on Election Day
- At a meeting of a governmental body with proper notice posted that follows the Texas Penal Code’s statute
- At any high school, collegiate or professional sporting event (unless the gun is used in an event)
- In an establishment that has a proper notice posted and derives 51% or more of its income from selling alcoholic beverages
- Inside the secured area of an airport (however you may carry it into a terminal if it is in a package intended for shipment purposes and checked as baggage legally)
- On private property if the owner provides a proper notice verbally or written in at least one inch block letters in an obvious place that follows the Texas Penal Code’s statute. This also applies for amusement parks, religious places of worship, hospitals, racetracks and nursing homes.
After reading this cheat sheet, you probably have at least 100 questions (don’t worry – you’re not alone). It’s no secret that laws up for interpretation cause some amount of chaos when they first take effect. If you are confused about any of them, please give Daniel & Hudson Law Offices a call.
Marijuana Laws in Texas
1 December 2015
What comes to mind when you think of marijuana? You may think about the smell of your neighbor’s apartment during college or possibly the movie Dazed and Confused. Maybe it is something you feel should be legalized and is not any more unsafe than alcohol or that it should be regulated to decrease the number of people who die from synthetic drugs. Whatever your stance is, the laws in Texas regarding marijuana are mostly up for interpretation as defining marijuana is more difficult than it seems.
In most drug cases, the defining moment is if it can be proved that you possessed a certain substance, how much you had and if it is illegal. It seems clear-cut until we realize that figuring out what the substance you are in possession of is a complicated task.
Charges faced when getting arrested with possession of marijuana aren’t only defined by how much you have, but how you were planning to use it. For example, possession of 2 oz or less for personal use can get you a minimum of 180 days in jail with up to a $2,000 fine while possession of 7 grams or less (about .25 oz) that you intend to sell can get you a minimum of 365 days in jail with up to a $4,000 fine. This means that possession of the same amount intended for personal use will receive a lesser punishment than the same possession intended for sale.
While there are clear guidelines set for amounts and punishments for possession of marijuana, there is still room for interpretation in defining what marijuana technically is. In many cases, instead of sending the suspected drug to a lab to test, officers will report that they found a “green, leafy substance.” Oftentimes the officer’s guess is enough to put someone behind bars with a drug charge since lab testing can be expensive.
Luckily, these circumstances offer flexibility in possession of marijuana cases. Probation, drug treatment programs and community service are also common penalties for lesser amounts and first-time offenses.
Police Brutality: Four Questions To Ask
13 November 2015
Police officers are constantly the subjects of breaking news. No matter what your personal stance is there’s no arguing police are portrayed as the troublemakers in many situations instead of the heroes they are meant to be.
Think about an argument you’ve had with someone. Almost always the dialogue is not decoded in the same way by both parties in the argument (which is why there is a problem in the first place). With two unique viewpoints, miscommunication often occurs. Excessive force used by police officers is not much different, especially when the media is involved. Oftentimes we don’t see what happens before a camera starts recording an incident, or don’t know of prior offenses the officer or subject may have.
Because of these differing opinions, cases dealing with excessive force by police officers are sometimes tricky to interpret. “Excessive force” is defined as abuse from an officer that is neither appropriate nor reasonable for the situation. Oftentimes this can be measured by a “balancing scale” system that answer these questions:
While we all hope that every police officer is genuine and does his/her job for the greater good of protecting the people, there will always be cases of one crossing the line. In today’s world with such quick dissemination of information, you must be smart about taking a step back and asking these questions before forming your opinion.
What would you do if you couldn’t drive?
23 October 2015
You get into a car accident and the next thing you know, you’re searching for defense attorneys to fight a battle you didn’t see coming. At this point, your driver's license is revoked and you no longer have a way to go meet your attorney without hiking up a hefty taxi charge. The next few weeks look like a domino effect of negativity as you foresee the possibility of not only no grocery shopping, but possibly no job as well. You think to yourself, “what happens next? Driving is a necessity for me!”
If you are in this situation and your driver's license has been revoked or suspended by a judge, there is a possibility you can get an Occupational Drivers License, also known as an Essential Need License. This license will allow you to drive only to specific places at specific times, such as work, school, and certain stores.
You may not obtain an occupational license if your license has been revoked due to mental or physical disability, major safety concerns, or if it is not found that driving is essential for your life. The judge will determine if it is essential for you to drive after hearing both the defendant (you) and the prosecution speak at a hearing.
In preparation for this hearing, you must have a signed petition and order for occupational drivers license (but remember, don’t sign them until you’re in front of a notary!). Attached to these documents, you will need a copy of your driving record, an SR-22 (previously mentioned in our previous blog post), a copy of the order that suspended your license, and a letter from your employer and/or school with your schedules enclosed.
If your wish is granted, the signed order may serve as a temporary license for 45 days until you get your actual license. However, if your license was suspended due to an alcohol, DWI, or drug-related offense, the judge may ask you to wait for 90 or 180 days before allowing you to drive with an occupational license. With an alcohol-related offense, the judge may also call for a Breathalyzer to be installed in your car that you would need to breathe into before starting your car (but that’s a story we’ll save for another time).
You may log into www.texas.gov to see your driving eligibility status at any time.
Hate is a Strong Word
6 July 2015
In light of the recent attacks in Charleston, South Carolina, we'd like to take a moment to discuss the term "hate crime." If you don't already know, a gunman attended a bible study at Emanuel AME Church on June 17, 2015. After about an hour, he allegedly stood up and proceeded to shoot and kill 9 churchgoers. Witnesses claim he shouted racial slurs and told them he was doing this because they were black. Sometimes the term "hate crime" is used so often, it lacks a true meaning. Technically, according to the FBI, a hate crime is “a criminal offense committed against a person, property or society which is motivated, in whole or in part, by the offender’s bias against a race, religion, disability, sexual orientation, or ethnicity/national origin." 45 states in the US have laws specifically regarding hate crimes, and Texas is one of them. On top of that, 31 states specifically outlaw violence based on sexual orientation, also including Texas.
In Texas, under Penal Code Section 12.47, sentencing for a crime labeled as a "hate crime" is increased to the next highest offense. For example, if one was charged with murder and it involved a hate crime, the punishment would be increased automatically to the next category if one was found guilty. On top of that, Article 42.014 of the Texas Penal Code mandates that the judge (to his/her discretion) may also order the defendant to attend an educational seminar on tolerance and acceptance. The Hate Crimes Statistics Act of 1990 requires the collection of hate crime data, on a federal level. This process helps the government define what dangers of hate crimes are most relevant to society and develop laws and policies to combat those issues.
When forgiveness is the better option
30 May 2015
For some reason in our society, getting mediation by talking to a specialist is not considered the “go-to” option. When someone is told, “you should go see a counselor about that” it seems almost like an insult. We are expected to have a handle on our lives and never let emotions get the best of us when dealing with our numerous differences. This way of thinking tends to breed very big issues when things build up and take over our thinking.
Because of this, dispute resolution centers have been created to help with the overflow of cases being taken to court. Have you ever heard someone say that they got into a fight with their sibling and pressed charges, only to want to take back those charges the next day? Unfortunately, you cannot go to the court and say, “Oops, I take it back! We’re friends again.” In these cases, mediation or dispute resolution centers are extremely helpful in solving the case outside of court without burning important bridges.
Bexar County, for one, offers free services designed to settle these issues. According to Bexar County’s website, 82% of participants in the dispute resolution program said that it kept them from going to court with their case. With the growing number of cases being taken to court and increasing amount of people in prison, this is one of the most helpful programs introduced in the county.
Remember to take this into consideration when you or a loved one has a court-solved issue. As Sandra Day O’Connor, Retired Associate Justice of the Supreme Court said, “the courts of this country should not be a places where resolution of disputes begins. They should be the places where the disputes end after alternative methods of resolving disputes have been considered and tried.”
Self Defense Part 2: Defense of a Third Party - Should You Be A Hero?
27 April 2015
The rules of self defense are somewhat self explanatory when one is defending him or herself. The situation gets a little stickier when a third person is involved. The difference between jail time and a pat on the back in “I did it to protect them” cases is very slight.
In defense of a third party cases, the acts of all three (or more) people are very important. The same rules from self defense apply to defense of a third party, as well as a few others.
You may use force to defend a third party if:
Defense of third party situations arise oftentimes in domestic violence cases, and in many different ways. Since most domestic disputes happen at a home owned by two of the parties (refer back to the Castle Doctrine), it is sometimes difficult to tell if one broke the law or not. Not knowing your rights when it comes to defending someone could land you charges and jail time.
Self Defense: When You Can and When You Can’t
5 April 2015
Self defense is pretty confusing. We hear of numerous people who claim that their acts were out of self defense only to find out what they did was against the law. This 3 part series will discuss the situations in which one can use deadly force, according to Title 2, Chapter 9 of the Penal Code: self defense, defense of a third party, and protection of property.
In the state of Texas, it is reasonable to use physical force if one believes it is necessary to protect him or herself from a violent, unlawful act by another. The tricky part when knowing when or when not to use force is all about one’s knowledge of intentions. Courts will drill one on what his or her intention was behind the act when looking into a self defense case.
You may use force if:
You may NOT use force if:
The self defense line can be a tricky one to walk, so it is important to know your rights and when you can/cannot use force.
New Conviction Integrity Unit gives wrongfully convicted a second chance
1 March 2015
Bexar County is now jumping on the bandwagon (after Dallas and Harris counties) by establishing a Conviction Integrity Unit. This new unit will look into convicted cases with new evidence and new ideas to make sure that no one in Bexar County Jail is innocent.
District Attorney Nicholas LaHood passionately spoke of this idea when he was campaigning for his position and has decided to put it into action. The Conviction Integrity Unit will be headed by Jay Brandon, a veteran criminal defense attorney and former staff attorney for the Texas Fourth Court of Appeals.
Many critics are nervous that this will create lags in the court system if the majority of Bexar County cases are looked into again. “Our policy will be not automatically to oppose all claims,” said Brandon. “If a defense lawyer is retained or appointed on such a post-conviction claim, we will work closely and cooperatively with the lawyer to ensure access to evidence and files in our possession.”
For many, this comes as a new sigh of relief. There has always been a system in place in Bexar County for submitting appeal applications, but it has not been the county’s focus.
According to Jay Brandon, the first step in transitioning to this new system is to have an open mind and all other rules and restrictions will be dealt with as they need to be.
What to tell your kid in case they get pulled over
31 January 2015
We’ve all heard the stories. A teenage girl gets pulled over at midnight and winds up dead in a ditch because the “cop” who pulled her over wasn’t a cop after all. It’s absolutely terrifying to think about, but here are some tips your child needs to know to ensure safety while getting pulled over.
1) Do not pull over until you are in a safe, well-lit area. With that being said, think about the reason for getting pulled over. Were you speeding? Were you weaving on the road? Did you use your turn signal? If you were not doing anything wrong, there may be a chance that those lights may not be from a legitimate cop.
2) Do not get out of the car.
3) Stay calm and remember the officer is as nervous as you are. Traffic violations can easily turn very dangerous for officers; so don’t think that they are just trying to be rude. Keep your hands on the wheel the whole time and use your Sunday School manners.
4) When all is said and done, you do not have to admit to anything. A simple “I did not know, I’m sorry” is perfectly sufficient. Signing the citation is not admitting you were in the wrong, it is a promise that you will either 1) pay your fine or 2) go to court. While the statistics of getting pulled over by a fake cop are very slim, it is always a good idea to let your child know what to do in case he/she gets pulled over. Staying calm and knowing your rights could be the difference between a citation and a sticky situation.
Your Miranda Rights
9 January 2015
At the time of an arrest, you may be overwhelmed with a number of feelings such as fear or confusion. In some cases, you might be so frightful of the circumstances that you don't realize that the officers arresting you are actually neglecting to implement your rights. Under the Fifth Amendment of the United States Constitution there are a number of rights that have been enlisted to protect the arrestee from unlawful treatment.
Also known as your Miranda Rights, this law states that:
- You have the right to remain silent when questioned by the officer
- You have the right to know that anything you say at that time can be used against you in court
- You have the right to contact an attorney for representation
- If you are unable to afford an attorney on your own, the court will appoint one for you if you so choose
The goal behind this law is to make those who are being arrested aware of their circumstances and the fact that if they would rather not accidentally incriminate themselves, they can remain silent and wait until their lawyer arrives to give them legal guidance. In the event that your arresting officer has failed to read you your Miranda rights in its entirety, or at all, this can be used in your defense. For example, if they fail to warn you that “whatever you say can and will be used against you in a court of law” a defense lawyer may be able to have whatever you said made inadmissible because your rights were violated.
Protecting your rights in the wake of a criminal arrest is imperative. At Daniel & Hudson we are dedicated San Antonio criminal defense lawyers who will do just that for you. If you have been accused of a crime, regardless of the severity, we will do whatever it takes to fight on your behalf.
How Can Police Determine if a Driver is Driving While Intoxicated (DWI)?
8 November 2014
Police can make the determination of whether or not a driver has been drinking too much in a few different ways. One of the most common ways is through field sobriety tests. These tests allow the officer to observe the suspect and how they perform on physical and mental tasks. If the driver's performance on these tests is inadequate, that can serve as evidence of intoxication. The suspect can then be arrested and further testing may be conducted. Another method used is simple observation.
Some signs that a driver is under the influence on the road include:
- Swerving in their lane or between lanes
- Not stopping at a stop sign or red light
- Driving significantly under the speed limit
Once pulled over, the officer may continue to observe the driver's ability to speak, the scent coming from the driver, the driver's movements and more. The last method of determining the driver's level of intoxication is using blood alcohol content (BAC) chemical tests.
Officers can measure the amount of alcohol in a person's blood by using any of the following tests:
- Breath test
- Blood test
- Urine test
If these tests show results that a driver's BAC level is above the legal limit, they are considered to be driving under the influence. At the same time, the validity of these methods are questionable. Field sobriety tests have significant margins of errors and oftentimes the performance of the officer can make any results invalid. On top of that, errors are often make when it comes to the chemical tests and there may be valid explanations for the observations that the officer made. Let a skilled DWI attorney help you challenge the evidence that law enforcement has gathered against you. Call our San Antonio Criminal Defense team today at 210.222.2297 for the aggressive DWI defense that you need.
Don't forfeit your DWI case
24 September 2014
Fact 1: If you plead guilty in a DWI case, you stand no chance of winning.
Fact 2: If you go to trial you always have a CHANCE to win. At Daniel & Hudson, our criminal defense law firm has many weapons in our arsenal that we deploy to sink the State's case against you.
If you decide to go to trial, six (6) jurors have to agree, beyond a reasonable doubt, that you are guilty of DWI. This is certainly more advantageous than having a judge or prosecutor decide if you are guilty or not since jurors have real life experiences that possibly could make them sympathetic to you and your situation.
It is also very possible that your case won’t even need to go to trial. Below are six common pre-trial tactics our criminal defense lawyers use to try and dismiss your case:
1. Contest the constitutionality of any search and seizure of your person.
2. Contest the constitutionality of your stop.
3. Contest the constitutionality of the administration of roadside tests.
4. Contest the constitutionality of the probable cause of your arrest.
5. Contest the constitutionality of the reading, or lack of, of your Miranda rights.
6. Contest the use of any blood or breath test.
Either in the courtroom or outside the courtroom, we have the experience and the aggressiveness to win. We hope you will consider and trust us to defend you with your DWI case. Please give us a call at 210.222.2297 today to get started.
This was a first for us
5 August 2014
by Douglas Daniel
Recently we had someone come into our office with a case involving "synthetic marijuana.” This was a first for us. We had never been retained before by anyone with that charge. Since that initial case, we have handled several cases involving synthetic marijuana.
I first ran across the term synthetic marijuana when I read the police report on our first case. I began to look in the Health and Safety Code, specifically the Texas Controlled Substances Act, for such a term. As I said, we had never had such a case and I had never seen the term in the Code. I found that the term is not one that appears in any Statute.
The indictment in the case contained the charge that the defendant had committed an offense by possessing a substance contained in Penalty group 2A of the Controlled Substances Act. The term synthetic marijuana is not contained in that penalty group. That penalty group lists a number of synthetic chemical compounds identified by acronyms such as Am-2201, JWH-004, JWH-007 and hundreds more. Each of these is a separate controlled substance. The term synthetic marijuana is not used.
The history of law enforcement and synthetic marijuana is one of cat and mouse. Initially, a chemical compound was produced that, when ingested produced numerous effects including those typically associated with the use of marijuana. This chemical compound was then sprayed onto a small portion of dried leaves and small twigs or potpourri and sold as incense. Effects such as hallucinations, typically associated with more intense drugs were also experienced. These drugs were tested by government laboratories and determined to be dangerous enough to warrant being regulated and controlled. They were then listed in schedules, or lists, in the Controlled Substances Act and declared to be illegal to possess. The makers of these synthetic compounds would then just go into their laboratories and slightly alter the make-up of the compound, spray it on the selected medium, and then sell it as a legal compound. When the government got hold of the new compound, it would take a significant amount of time, oftentimes weeks or even months, to determine the actual chemical make-up of the new compound such that it could be listed in the schedules and be declared illegal. During the time period between when it is introduced to the market and the time when the State declares it to be illegal, these manufacturers are able to get away with selling their product without prosecution for their activities.
And that is the fact that causes the law enforcement community a real problem. You cannot tell simply by looking at this stuff whether or not it is illegal. You cannot tell with the naked eye what the chemical make-up is of whatever is sprayed on the medium. And if it is not immediately apparent from its appearance that a substance is illegal, how can a warrantless arrest be justified? And if the chemical analysis of the substance has not been performed, how can someone swear out a warrant alleging that they observed someone breaking the law?
In the initial case that we had, when the substance that was seized from our client was sent to the lab, it came back as having been sprayed with a chemical compound that was indeed listed in the penalty group in the CSA. However, it was not added to the penalty group until after the date that our client had possessed it. Another words, when our client had been in possession of it, it was legal. Our question for the DA and the Court was, "What was the probable cause of the arrest of our client if there was no way for a law enforcement officer to know whether or not our client was in possession of an illegal substance?" If the Judge ruled that there was no probable cause for the arrest, then the likelihood that the State would be able to successfully prosecute our client would be substantially reduced.
I would like to tell you that our first client charged with this offense walked away unscathed and that the entire case was dismissed. But the fact of the matter is that he was on probation and facing a Motion To Revoke his probation as a result of this possession charge. Faced with the prospect of losing altogether, the DA offered to continue him on probation in exchange for our client's abandoning his Motion To Suppress. Our client chose the guaranteed probation rather than risk an adverse finding from the Court on his motion and doing what most certainly would have been prison time.
The moral of this story is that if you are faced with a charge of possession of synthetic marijuana, make sure you hire a lawyer who is familiar with the subject and has done research in this area and is experienced with fighting this type of case in court. We, the lawyers here at Daniel and Hudson PLLC, have had experience with this type of case and have been successful in making arguments that benefit our clients. We hope you will consider us for this type of case and all your other criminal defense needs.
For a free, confidential consultation contact the Law Offices of Daniel & Hudson at 210-222-2297. We are available 24 hours a day, 7 days a week.