Articles Posted in Texas Law

On June 1st, 2015 Governor Greg Abbot (R, Texas) signed the “Compassionate Use Act” Offering what he said would be “healing and hope for children who are afflicted by relentless seizures caused by epilepsy. The “Compassionate Use Act” established the first medical marijuana program in Texas. That same year Georgia and Tennessee also legalized the use of medical marijuana in some form.

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At the date of writing, there are currently twenty-six states with full medical marijuana programs, and thirty-eight states that allow for some use of medical marijuana. With some much activity on the state level, and victories easier to achieve on the state level, many wonder why there is a need to worry about reforming the federal government’s marijuana laws. Unfortunately, state marijuana reform is limited; and hangs precariously in the political balance.

State Marijuana Reform, a Patchwork

A Clean Slate Concept
Unbeknownst to many citizens, the Texas Legislature passed a law which allows more individuals to seal their record. Known as the Second Chance bill, SB 1902 took effect in September 2015 with tremendous opportunity for those charged with certain crimes and placed on deferred adjudication probation or regular probation.  If you have been charged with a non-violent misdemeanor such as theft, criminal trespass, possession of marijuana, or other drug-related offense, you may have the chance to clean your record from the public.

Your Right to Seal Records

Certain first-time offenders may have the right for an automatic sealing of their record from the public. To be eligible for this streamline process, you must have not been charged with a misdemeanor in Chapters 20, 21, 22, 25, 42, 43, 46, 71 Texas Penal Code or any charge associated with family violence. Also, you must have successfully completed deferred adjudication probation, qualified by the judge for automatic sealing, and not received any new charges.

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Live Podcast Interview with Chris Legier @ Show 1002

Guest: Gilbert Garcia, Attorney Gilbert G. Garcia Law Firm

Topics Include:

Fotolia_69031331_Subscription_Monthly_M.jpgEvery American citizen has a reasonable expectation of privacy. This Constitutional protection applies to many aspects of modern life. It extends over things such as a person’s house, car, and telephone. However, the government can get past this shield of privacy. Law enforcement and the judicial branch work hand in hand to acquire warrants to get past a person’s right of privacy. If the government believes a person is committing criminal behavior, then it will try to stop whatever that person is doing by piercing his privacy. In this regard, one of the government’s most powerful tools is wiretapping.

A wiretap is a government interception of electronic communications. Typically speaking, a wiretap catches phone calls, but it can be extended now to get other modes of real-time communications made over the internet, such as Skype calls. Different law enforcement agencies conduct wiretaps for different reasons. For example, the DEA will conduct a wiretap for the purpose of preventing drug trafficking.

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When a suspect is in police custody and being questioned by an officer, Texas law requires police officers to meet multiple conditions and give the suspect various warnings before statements made by the suspect can be used against him at trial. By being aware of these requirements, Texas residents can gain insight into the protections Texas law provides to those accused of a crime.

Take for example the case of Steven Woods. The defense was able to establish that the interrogating officers did not fulfill the requirements needed to admit Woods’ oral statements, and therefore, the highest criminal court in Texas ruled that the trial court made a mistake by admitting Woods’ statement against him. Texas law requires that among the warnings officers must provide when questioning an individual who is in custody, officers must inform the individual that he has the right to terminate the questioning at any time. In Wood’s case, officers failed to meet this requirement, thus his statement should not have been admitted against him at trial.
The other warnings officers must provide include telling the suspect/defendant that:
1. s/he has the right to remain silent;
2. s/he does not have to make any statement at all;
3. any statement made may be used as evidence against him in court at trial and;
4. s/he has the right to have a lawyer present to advise before and during any interrogation. (If the suspect cannot hire a lawyer, he has the right to have a lawyer appointed.)

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iStock_000006746569XSmall.jpgUnlike federal law, which more broadly allows officers to make warrantless arrests based on probable cause, Texas laws specify the circumstances when officers can make arrests without a warrant. Understanding these circumstances may better help Texas residents understand the limitations of their rights in police encounters. Knowing the scope of police power can also help Texas residents make smarter choices in their day-to-day actions to avoid undue arrest and imprisonment. There are seven primary types of arrests not requiring an arrest warrant.

On View Arrests: An officer can arrest an individual if the officer views that individual committing any crime in the officer’s presence or within the officer’s view. For an officer to use this type of arrest, the officer must view some part of the crime and play some role in the arrest.

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iStock_000009135835_ExtraSmall.jpgIn Texas, Marijuana is an illegal substance that is subject to forfeiture by the state. While this may be of no surprise, you may not be familiar with the forfeiture process and how it works. The government has different modes and methods of dealing with controlled substances. Some of these processes do not even require a court order, they occur automatically due to statutory regulation. This article discusses and describes the process the government implements after it seizes controlled substances, such as marijuana.

Let’s look at a hypothetical traffic stop situation. A driver gets pulled over and the officer looks in his back seat and sees a sizable amount of marijuana. After the driver gets arrested, the officer seizes the marijuana and seals it in an evidence bag. It is at this point that the seized marijuana is put into the custody of the police. This entire process, from seizure, to storage, record keeping, court, and then finally destruction is called the “Chain of Custody” (COC). There are very detailed and strict rules regulating how the police can handle evidence while it is in their custody. If they break one of these rules, the “chain” of custody is broken and the compromised evidence becomes subject to objection and scrutiny.

Assuming the COC is maintained, the case will end with a verdict. The seized marijuana is then subject to “summary destruction”. Tex. Health & Safety Code Ann. § 481.154 . Summary destruction is a process that differs among departments, but there are three certain rules that process must follow: “(1) more than one person to witness the destruction of the property or plants; (2) the preparation of an inventory of the property or plants destroyed; and (3) the preparation of a statement that contains the names of the persons who witness the destruction and the details of the destruction.” Id. After the seized marijuana is destroyed, “a document prepared under a rule adopted under this section must be completed, retained, and made available for inspection by the director.” Id. With this document, the seized marijuana is recorded and properly disposed of per statute.

iStock_000006052358XSmall.jpgThe right to remain silent is a hot topic of Constitutional rights. In a brief nutshell, this is how the right to remain silent works. A defendant’s silence cannot be used in Court to show his or her guilt. When a defendant can invoke this right, however, is a little bit of a tricky concept. First and foremost, the defendant has to be under arrest to invoke his right to remain silent. If a police officer arrests a suspect, the officer must read the suspect his Miranda rights, which includes the right to remain silent. There are other areas where silence receives different Constitutional treatment, such as the right to remain silent and not testify during trial. A criminal defendant’s silence is usually protected by the Constitution and not allowed to be used by the prosecution to prove guilt.

However, a recent Supreme Court decision has created new limits and rules on the right to silence. This decision is based on a recent Texas criminal case involving Genovevo Salinas. The defendant in this case was at a party that got out of hand. Shots were fired at the party and two men were killed as a result. The police found Salinas at the party and brought him in for questioning. Salinas had a shotgun that he turned over to the police and he began answering their questions. He was being cooperative until the police asked him why the shotgun shells that were found at the crime scene matched Salinas’s shotgun. Salinas did not answer this question and instead remained silent. At this point, Salinas was not under a formal arrest and was not given his Miranda warnings as a result.

Salinas was eventually charged with murder. During his trial, the prosecution aggressively used his silence about the shotgun during closing arguments. Salinas was convicted and appealed his case. His case eventually made it to the Supreme Court. When it reached the Supreme Court Justices, the main issue was whether the defendant’s silence could be used during the closing argument. The Court held, in a 5-4 decision, that the silence was usable because it was pre-Miranda silence. The Texas Court of Criminal Appeals explained that “pre-arrest, pre-Miranda silence is not protected by the Fifth Amendment right against self-incrimination, and that prosecutors may comment on such silence regardless of whether a defendant testifies.” Justice Samuel Alito further explained “Salinas’ Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer’s question. It has long been settled that the privilege ‘generally is not self-executing’ and that a witness who desires its protection must claim it.” So if you remain silent before you get arrested, that silence can be used to show your guilt unless you CLAIM your right to remain silent.

criminal background check.jpgWhen the Government charges a defendant with a crime, the defendant has a right to a fair trial. What defines a fair trial is a rather extensive topic that is subject to rigorous debate. Discovery, which is the part of the trial where evidence is examined and exchanged between the government and defense attorney, is a key element to a fair trial. Most often discovery can result in a plea bargain or the case being dismissed altogether. In a criminal case, discovery mostly imposes duties to disclose information upon the Government. There is very little the defense has to tell the government; for example, the defense may be required to disclose the use of expert witnesses or the use of an insanity defense.

When the defense cannot fully access or discover evidence, serious due process problems arise. Currently, the government sometimes employs a trial method that completely disguises and conceals critical evidence in drug cases. Across the Country, a secretive U.S. DEA unit is using intercepted phone calls, wirtetaps, informants and a massive database of telephone records to help prosecutors and law enforcement allegedly catch drug dealers. This unit is called the Special Operations Division (SOD) and it operates in a thick cloak of secrecy. The heightened confidentiality that SOD information receives is creating problematic situations that undermine the rights that a criminal defendant has to a fair trial.

When the prosecutor or other government officials receive SOD documents, they are marked with “Law Enforcement Sensitive”. This categorization keeps the documents confidential and prevents the defense attorneys from knowing that they exist. In fact, sometimes the prosecutor does not even know that SOD documents were used in the trial that he or she is prosecuting. Law enforcement covers up SOD documents with a process called “Parallel Construction”, and the following example will demonstrate how this works: a police officer receives a SOD document detailing when and where a drug transaction will occur. It lists the people involved and describes how they look and what they will be driving. But, the document notes that the police officers cannot make any mention of the received information, so the officers are supposed to monitor the situation and create other reasons to stop the suspects.

iStock_000005542834XSmall (2).jpgUnmanned Aerial Vehicles (UAVs) revolutionized the War in Afghanistan. These drones allowed the military to perform a variety of operations while reducing the threat of injury to human soldiers. In the battlefield, it may be somewhat easy to rationalize the use of UAVs, especially against a foreign terrorist threat. Your feelings might dramatically change when you think about your local police force using UAVs to fight crime. This idea may seem a little bizarre and unrealistic. However, there are Texas counties currently allowing Law Enforcement to use UAVs and others who are engaging in UAV pilot programs.

UAVs enable the police to conduct unmanned surveillance over public and private areas. The main focus of UAV surveillance is to monitor or observe criminal behavior. While monitoring public areas is seemingly reasonable, the invasion of privacy UAVs present is cause for concern. For example, the Austin police department used a UAV in 2009. The Austin police department was executing a search warrant on a suspect’s house. The suspect was a drug trafficker and was believed to be heavily armed and dangerously. The police were concerned that the suspect was capable of shooting down a helicopter, so they conducted a sweep of the property with a UAV before executing the search warrant. This UAV, called the Wasp, was particularly special because it was the size of a small bird, which would be undetectable to the unwary eye.

Feelings about drones differ amongst Texas counties. Currently, Harris County does not to take part in UAV pilot programs. It initially participated in a UAV program, but it withdrew its participation in 2007. On the other hand, Montgomery County has a $300,000 Shadowhawk helicopter drone (developed from Vanguard Industries). It is a 50 pound helicopter with an extremely powerful camera mounted in the front with infrared capabilities. Assigned to man this drone are Sgt. Melvin Franklin, a licensed pilot, and Lt. Damon Hall, who is head of the department’s crime lab and crime scene unit. Montgomery County paid with this money with a homeland security grant. This drone is intended “to assist the County in a number of critical operations to include emergency management, search & rescue, and S.W.A.T. operations.”