Pitfalls of Probation: What You Need to Know BEFORE You Sign Up

Sometimes, probation is a great offer on your case. If you are offered probation on a serious felony in which a long prison term is also an option under the law, you need to seriously consider taking it despite the multiple restrictions on your freedom you will experience.

However, on misdemeanors and state jail felonies, it’s a different story. You may be better off pleading to a short term in jail to finish the case. Or, in the alternative, if you are offered a reduction or a dismissal in exchange for doing something, like a class or a community service, you need to do it to avoid probation.

There are many, many pitfalls to probation. Many people approach probation as if it is an easy way to avoid jail or get out of jail quickly if you are in jail pretrial, but this is absolutely not the case and you need to rid yourself of this assumption. Probation is not easy and you have the threat of jail hanging over your head the entire time.

When you are on probation, you are seriously restricted in your freedom in many, many ways. You are given certain requirements and certain policies by which you must abide, and if you fail to do so your probation officer is going to file what is called a “motion to revoke probation”. Once this motion is filed, it will generate a warrant. You are usually given a no bond on that warrant, meaning you will not be allowed out on any type of bond. If a judge chooses to set a bond, it is really, really unlikely you will be allowed out of jail on a personal bond. If you cannot get a surety bond, you will be in jail until the motion to revoke probation is resolved.

I will discuss three common ways you might violate your probation:

• Committing a new offense: You will get a motion to revoke probation filed if you commit a new offense of a Class B misdemeanor or above. Do not think under any circumstances that your probation officer is “cool” and will not file a motion if you get arrested again. S/he will and you will go back to jail even if you are released on the new offense already. If you cannot make bond on the new offense, then you will be held on the motion to revoke and the new offense.

• Drug and alcohol use: It is absolutely a violation of your probation to use alcohol at all or any kind of illicit drug or prescription drug if it is not prescribed to you. If you go into a probation meeting looking like you are intoxicated or hung over, the probation officer is going to test you – and if you test positive s/he is going to file a motion to revoke. There is no room for just a single positive test.

• Absconding or missing meetings with no phone call or attempt to reschedule: missing meetings with your probation officer is not allowed. If you miss meetings and make no attempt to reschedule, you will get a motion to revoke filed.

I get many phone calls from people who want off probation and tell me that “they did not realize this is what they were getting into” when they pled to probation. I represent many clients on revocations of probation. Probation is not an easy path. Jail sounds like a terrible fate, but it is important to remember that you may go back to jail anyway if you are filed on for revocation.

If you are facing a probation revocation, call me today to talk about the possibilities of how to resolve your case.

What is deferred adjudication?

What is a deferred adjudication?

Deferred adjudication is a common way of resolving criminal cases in Texas, but it is often misunderstood. I will attempt to correct some common misconceptions.

What it is:

A deferred adjudication in many counties must be offered by the state in plea negotiations – that is just the county custom -- but it is possible for a judge to place you on deferred adjudication as well.

In a case in which someone has been offered deferred adjudication, the defendant will plead guilty to the allegations in exchange for the finding of guilt to be “deferred” by the court for a period of time. It is a guilty plea -- it is not a dismissal of the case. The court will find that there is enough evidence to substantiate the defendant’s guilt but if the court goes along with the state’s recommendation of deferred adjudication or on his own volition decides to, the conviction will not be entered.

You waive your constitutional rights when entering into a deferred adjudication. You waive your right to a trial, a right to appeal, and a right to remain silent, and these rights cannot be restored. You cannot be on deferred for a year and then decide you want a trial --- that ship has sailed and you cannot change your mind.

If there is strong evidence of guilt, a deferred can be a good resolution, but if it is a weak case, you may want to go ahead and press for a trial. A deferred adjudication is a serious undertaking. Why? Because when a conviction is deferred, you are placed on a tough probation. You must abide by all the standard terms of probation, such a drug and alcohol monitoring, meeting with a probation officer, performing community service, and classes and counseling. It is not fun, and it is not easy.

If you do not do well on this deferred probation, you will be subject to a “motion to adjudicate guilt” outlining why you no longer deserve to have a deferred and why a conviction should be entered. This motion causes a warrant to issue, but you are entitled to a bond amount being set by a judge. Most judges are very slow to give personal bonds on a probation case, so you are looking at having to bond out with a bail bonds man.

If you plead true to these allegations in the motion to adjudicate, you may be continued on a deferred, but you also may be convicted and placed on a “straight” probation OR you may be placed in the penitentiary.

NOTE: Deferred adjudications that are done successfully are NOT automatically sealed. Many times, you are eligible for the case to be sealed, but it is not done the minute you are released. You must petition for it and get a court order in a separate styled case. Once it is sealed, law enforcement and the state’s prosecutors will still be able to see that you were placed on deferred.

ALSO NOTE: Deferred adjudication is a conviction for immigration purposes. The government only cares that you pled guilty – not that the conviction was deferred. They care about your admission – not what the court did after that.

LAST NOTE: There are some criminal offenses in which deferred adjudication is not an option. The most common instance of this is DWI – the state CANNOT offer a deferred in a DWI and the judge CANNOT extend that to those charged with DWI. It is not possible.

Deferreds are not an easy undertaking. It is advisable to only accept one if there is substantial evidence of your guilt and the risks of trial are too high. If you are an immigrant with potential consequences of a conviction, you will not benefit from deferred. If you are not ready to abstain from drugs and alcohol, deferred is not going to work. I talk to a lot of people who “wish” they had never taken a deferred and tell me “the case was weak” but they pled to get it over with or get out of jail. Don’t be one of those people.

Possession of Marijuana

Possession of Marijuana

I am posting/reposting this in light of SXSW and Spring Break.

Possession of marijuana can range from a Class B misdemeanor, punishable by up to 6 months in jail and a fine not to exceed $2000, to a first degree felony, punishable by 5 years to ninety nine years in the penitentiary, depending on the amount discovered in your possession by the police. It is one of the most common criminal charges in Texas. A conviction for possession of marijuana can have serious ramifications on your life. You need a good attorney for a charge of possession of marijuana.

Possession of two ounces or less is a Class B misdemeanor and the most common marijuana charge. Many times, particuarly in Travis County, “time served” –the time you were in jail on the arrest, even if it is only one or two days– is offered for a possession of marijuana Class B offense. This is not without consequences however easy it might sound. It is important to remember that a conviction for POM, even at the Class B level, can have immigration consequences, affect your ability to gain employment and housing, and can disqualify you from receiving federal financial aid to go to school. Sometimes, a lawyer can work out a deal to keep the conviction off your record if you are willing to do something in exchange – usually this involves taking a class and doing some community service at a non profit. Although not as simple as pleading guilty and receiving time served, it can be very beneficial to preserve a clean record.

One of the ways a lawyer can be beneficial for even a POM in which a small amount of marijuana is involved is by analyzing the facts of the case and the tactics the police used to find the marijuana. Each person in the United States, even an immigrant without status, has a 4th Amendment right against unreasonable search and seizure. They need reasonable suspicion of an offense to detain you, and they need probable cause to search you and your belongings, including your car. If the police violated this 4th Amendment right a lawyer can argue this to the prosecution, and the judge if necessary in a hearing, and this could lead to the case being dismissed by the prosecution or the marijuana being “suppressed” by the judge – meaning it cannot be used as evidence against you. If the evidence against you is supressed by the judge, often the prosecution will dismiss the case if there is no other evidence of your guilt of POM.

A few words of caution for marijuana users:

It is a bad idea to drive around in your car smoking marijuana. If you do carry marijuana with you regularly, do not smoke it in your car and keep it in an airtight container. The smell of marijuana is enough probable cause to search the entire vehicle for the marijuana they smell. Do not let what could be a simple traffic stop in which you could receive a citation for a moving violation turn into a night in jail because of the odor of marijuana. You may not think the smell is that strong, but to a trained officer it may very well be.

Also: there is no such thing as a “Class C” possession of marijuana. There is a Class C possession of drug paraphernalia offense – which you can receive if the police find a used pipe—but not a Class C for actual marijuana. Even for a small amount you will receive a Class B. If you have received a “ticket” for marijuana, IT IS NOT A CLASS C. It is not something you can resolve by paying. It is a “cite and release” for Class B or A POM. Cite and release is an option under the Code of Criminal Procedure that allows police officers to write a cite to someone for misdemeanor POM instead of arresting that person and taking that person to jail. Austin Police Department and Travis County Sheriff’s Office both employ cite and release. I am not aware of any other agencies in texas that does. It is within the officer’s discretion to employ cite and release, and they can only do it for misdemeanor POM. If it amounts to a felony, you are not eligible for cite and release. DO NOT IGNORE THE CITE. Ignoring it will result in a warrant issued for your arrest and a subsequent charge for Class A misdemeanor bail jumping/failure to appear. On the cite, you will be given a court date in Justice of the Peace 5. You will need to go to JP 5 on that date. You will be processed, given a personal bond, and you will be “booked” into jail at the bonding desk at the courthouse, and then released automatically, instantaneously on the personal bond you are given. You will not be taken to the actual jail– unless you have other warrants out for your arrest that the officers at the bonding desk find. If you have other warrants out, you will indeed be taken into custody. Expect this process to take 2-3 hours. Bring your ID. You will be given a court date on your personal bond that you must be present at unless you hire an attorney first.

Lastly, as a lawyer I do not judge marijuana smokers. I think it is far less dangerous drug than alcohol. It can have its downsides, particularly legal ones, but it is not my business to tell my clients to stop smoking marijuana. I personally think it is should be legal and support all efforts by legislators in Texas to decriminalize possession. We are putting far too many people in jail for small time possession of marijuana and it is harming us socially and economically.

Dropping the Charges: Fact v Fiction

“Dropping Charges” : Fact vs. Fiction

When someone is charged with a crime against another person – who we call the “complaining witness” -- and an arrest is made and charges filed, there is often talk after the fact about that complaining witness “dropping the charges”. I will explain a little about the realities surrounding this here.

Once the case is accepted by the prosecution, either the County Attorney or the District Attorney, efforts will be made to contact the complaining witness to get his or her input. The complaining witness will be asked if what s/he told the police is true, what happened, what his/her history with the Defendant is, if violence has ever happened before the incident charged in this instance, and what the complaining witness wants done. At this point, the complaining witness can recant, deny the incident happened, change his/her version of the events, and tell the prosecution s/he does not want to pursue a conviction – ie that s/he wants the charges “dropped”.

If the prosecution never talks to the complaining witness, that may or may not be good for the Defendant. It may be interpreted by the prosecution in a way that is helpful to the Defendant because it may mean that if the case is set for trial, the main state’s witness will not be located in order to be subpoenaed, and will therefore be unavailable to testify at trial.

If the witness says s/he will not testify and wants to “drop the charges”, the prosecution will have to evaluate how strong the evidence is against the Defendant if the complaining witness will not testify. There may be evidence that, in the prosecution’s estimation, is enough to convict the Defendant even without the complaining witness. The 911 call, photos, independent witnesses at the scene who witness the alleged crime, and physical evidence among other things all may be enough to try and convict a Defendant without the complaining witness. If that is true, it may be the case that the complaining witness’s wish to “drop the charges” may be disregarded. This will be especially true if the complaining witness does not recant and tells the prosecution that the incident happened as s/he said it did but s/he simply does not want to pursue punishing the Defendant.

The prosecution may go forward even if the complaining witness does not wish to do so. If the defense attorney sets the case for trial, the complaining witness may still be subpoenaed. At that point, if the case is called for trial, the complaining witness is under subpoena, but does not show up, the prosecution at that point may indeed be willing to dismiss the case or severely reduce the harshness of the plea offered. It all depends on the strength of the other pieces of evidence in the state’s possession.

Sometimes, the Defendant may tell his lawyer that the complaining witness wants to sign an “affidavit”. This is referring to an “affidavit of non-prosecution”. This affidavit can be helpful – it is about the same as the complaining witness telling the prosecution that s/he does not want to pursue charges.

Complaining witnesses who have relationships with Defendants often ask the Defendant’s attorney what s/he should do if and when s/he receives a subpoena. Please be aware the Defendant’s attorney cannot advise the complaining witness to disregard that subpoena. It is unethical, as the Defendant’s attorney does not represent the complaining witness and cannot give legal advice. It is also criminal activity that can be charged as “witness tampering”, which is a felony in Texas and punished with possible time in the penitentiary. Lastly, if the Defendant has contact with the complaining witness about the case it may be criminal activity if there is a protective order in place and could possibly lead to charges of Violation of Protective Order. Also, if the state can show that the Defendant did anything that can be interpreted as threatening or intimidating toward the complaining witness to get her/him not to testify, the state can proceed on a "forfeiture" hearing in which they can argue that the Defendant has forfeited his right to confront the witness because of wrongdoing on his/her part -- and if they win the complaining witness's statement gets to come in without her/his presence at trial.

What might happen to a complaining witness if s/he disregards a subpoena? Potentially, technically if the witness is hand served with the subpoena, s/he may be “attached” if s/he disregards the subpoena and taken to court by the police to testify. If at that point s/he refuses to testify, s/he may be held in contempt of court and jailed until s/he agrees to testify. That is theoretically what could happen. This however is rare – but it does happen. Harris County is embroiled in a scandal right now where a complaining witness was jailed for refusing to testify and many in the County disagree with those actions. In reality, in Travis County and most counties, the prosecution is reluctant to attach people it perceives to be victims of crime in fear and hesitation to “revictimize” them. The answer to what is going to happen to a complaining witness who disregards a subpoena is essentially nothing. However, if the complaining witness passes up a chance to testify, it is probably gone forever. Not always, but probably. In very serious cases, if a complaining witness decides to cooperate after the case has been dismissed due to lack of evidence in the form of the testimony of the complaining witness, and the statute of limitations has not run, the case could be refiled. This can happen in very serious child sex abuse cases for example.

The point is: the state does not have to dismiss the case simply because the complaining witness wants the state to do so or because s/he says that s/he is not going to cooperate. That is simply one factor in the calculation the state makes in determining what their offer to the Defendant is going to be. A complaining witness saying s/he wants to “drop the charges” does not at all mean the case ends there.

Also, a word to the wise: just because a complaining witness is telling you s/he wants to drop the charges does not mean s/he told that exact same thing to the state. I have seen many Defendants surprised to find that the complaining witness who promised to “drop the charges” shows up to testify at trial. Its not always wise to count on witnesses not showing up.

What is a cite and release?

What is a “cite and release”?

I have mentioned “cite and release” in prior articles. I will explain more about this option here.

Cite and release is an option under Texas law that allows police to write a citizen a citation when there is probable cause to arrest them for a Class B or Class A misdemeanor. The police write this citation instead of taking the person to jail.

If you receive a citation for a Class A or B misdemeanor, you still have to answer for this allegation. On the citation, there will be a court date. In Travis County, this court date will be in Justice of the Peace Precinct 5. You will report on that court date for magistration and release on personal bond. After reporting in Precinct 5, you will be sent to Pretrial Services to fill out the personal bond form and do an interview to gather some information for your release on personal bond. After that is finished, you will go back to Justice of the Peace Precinct 5 and be magistrated by the judge. You will be told your rights in the process and told what the charge is, and a bond will be set. Then the judge will sign your personal bond.

After your personal bond is signed, you will be sent to the bonding desk for a “walk-through”. At the bonding desk, you will be placed temporarily under arrest. Your booking photo will be taken and your fingerprints will be taken. Then you will be released on the personal bond signed by the judge with a court date to appear in the County Court at Law.

After that, the regular process for Class A and Class B misdemeanors will begin.

Common misconceptions about cite and release abound. The most common is that a cite and release is a Class C ticket. Any time you receive anything from an officer, you need to read it very carefully. You need to determine if it is truly a Class C ticket that can be paid, or a cite and release on which you need to do a walk through. If you have an encounter with the police in which they discover marijuana, and you receive a “ticket” – that is a cite and release. It is not a Class C; there are no Class C marjiuana offenses in Texas, no matter how small the amount was. Do not think you can blow off a cite and release like you can a Class C ticket—you will be charged with a Class A bail jumping and failure to appear. If/when you are arrested for the original offense for which you missed your walk through date, you will also probably have a charge for Class A bail jumping and will have to bond out for both.

Another common misconception is that officers HAVE to give you a cite and release for certain offenses. This is not true. Austin Police and Travis County Sheriff’s Office are two of the only agencies in the state who participate in the cite and release option. Other agencies in the Central Texas area and throughout the state likely do not participate in the program and you should not expect to get cite and release from any agency outside APD and Travis County. Even if you have an encounter with APD or Travis County, they are not required to write you a cite and release. You can still get taken to jail if if the officers deem it appropriate.

Cite and release is only available for Class A and B misdemeanors. It is not available for felonies.

If you get a cite and release or a Class C, or you received something from a police officer and do not know what it is, I am happy to evaluate your situation and determine what you are facing.

What is a deferred adjudication?

What is a deferred adjudication?

Deferred adjudication is a common way of resolving criminal cases in Texas, but it is often misunderstood.  I will attempt to correct some common misconceptions.

What it is:

A deferred adjudication in many counties must be offered by the state in plea negotiations – that is just the county custom -- but it is possible for a judge to place you on deferred adjudication as well.  

In a case in which someone has been offered deferred adjudication, the defendant will plead guilty to the allegations in exchange for the finding of guilt to be “deferred” by the court for a period of time.  It is a guilty plea -- it is not a dismissal of the case.  The court will find that there is enough evidence to substantiate the defendant’s guilt but if the court goes along with the state’s recommendation of deferred adjudication or on his own volition decides to, the conviction will not be entered. 

You waive your constitutional rights when entering into a deferred adjudication.  You waive your right to a trial, a right to appeal, and a right to remain silent, and these rights cannot be restored.  You cannot be on deferred for a year and then decide you want a trial --- that ship has sailed and you cannot change your mind.

If there is strong evidence of guilt, a deferred can be a good resolution, but if it is a weak case, you may want to go ahead and press for a trial.  A deferred adjudication is a serious undertaking.  Why?  Because when a conviction is deferred, you are placed on a tough probation.  You must abide by all the standard terms of probation, such a drug and alcohol monitoring, meeting with a probation officer, performing community service, and classes and counseling.  It is not fun, and it is not easy. 

If you do not do well on this deferred probation, you will be subject to a “motion to adjudicate guilt” outlining why you no longer deserve to have a deferred and why a conviction should be entered.  This motion causes a warrant to issue, but you are entitled to a bond amount being set by a judge.  Most judges are very slow to give personal bonds on a probation case, so you are looking at having to bond out with a bail bonds man. 

If you plead true to these allegations in the motion to adjudicate, you may be continued on a deferred, but you also may be convicted and placed on a “straight” probation OR you may be placed in the penitentiary. 

NOTE:  Deferred adjudications that are done successfully are NOT automatically sealed.  Many times, you are eligible for the case to be sealed, but it is not done the minute you are released.  You must petition for it and get a court order in a separate styled case.  Once it is sealed, law enforcement and the state’s prosecutors will still be able to see that you were placed on deferred. 

ALSO NOTE:  Deferred adjudication is a conviction for immigration purposes.  The government only cares that you pled guilty – not that the conviction was deferred.  They care about your admission – not what the court did after that.

LAST NOTE:  There are some criminal offenses in which deferred adjudication is not an option.  The most common instance of this is DWI – the state CANNOT offer a deferred in a DWI and the judge CANNOT extend that to those charged with DWI.  It is not possible. 

Deferreds are not an easy undertaking.  It is advisable to only accept one if there is substantial evidence of your guilt and the risks of trial are too high.  If you are an immigrant with potential consequences of a conviction, you will not benefit from deferred.  If you are not ready to abstain from drugs and alcohol, deferred is not going to work.  I talk to a lot of people who “wish” they had never taken a deferred and tell me “the case was weak” but they pled to get it over with or get out of jail.  Don’t be one of those people.  

Theft of Property: the truth on shoplifting

Theft of Property (ie “Shoplifiting”):  Some Issues to Keep in Mind

I defend many, many people accused of theft of property, what we casually call “shoplifting”.

I see some common themes in these cases that I will try to address here.

You are really gambling when you attempt to shoplift out of a big store.  Walmart, Target, HEB, and department stores all take loss prevention very seriously and spend a great deal of money on technology and staff to try to stop shoplifting.  They may not get you every single time but they might and if you make a habit out of it you will get caught. 

There are security cameras all over the big stores.  They may be being monitored from somewhere else in the store.  There are people in the aisles in plain clothes that work for the stores that are watching people.  Unfortunately, if you are a person of color they are probably watching you with more suspicion.  It is not fair, but you need to be aware of it. 

If they see you conceal items, they aren’t going to stop you at first.  You may get some confidence and feel like no one knows.  However, the reason they aren’t doing anything to you is because it is not illegal to conceal items in the store.  You haven’t broken the law yet so there’s no reason for them to stop you or get your attention.  It is not illegal until you walk past “all points of sale” and attempt to leave with the concealed items.  That’s when you’ve broken the law and if they know you have items that you have not payed for, loss prevention officers will make an attempt to detain you.

Yes, it is legal for them to detain you.  They can detain you to prevent the theft of items even if they aren’t peace officers.  Any private citizen can use force in Texas to stop a theft of property. They can use force to detain you.  Do not fight them.  Do not use force to try to get past them.  If you do, you can be charged with assault, or worse, robbery.  It’s not worth it.

They will detain you until the police arrive.  All the big chains always pursue charges against you for theft.  Some of the little ones may let you go if they recover the property but they don’t have to do so.  And yes, even if they get the property back you can still be charged with theft if you attempted to leave the store with the items. 

If the items are under $100 when they ring them up at the register, they will charge you with a Class C misdemeanor theft, write you a ticket with a court date – that you should not blow off – and let you go.  If it’s above $100 but below $500, it’s a Class B misdemeanor.  The police have the option of arresting you and taking you to jail, but the officer may also write you a Class B cite and release.  This is not a Class C ticket.  This is a citation to return to court to bond out on a personal bond on a Class B misdemeanor with a court date in County Court.  Do not blow this off or you will also be charged with a Class A misdemeanor of Failure to Appear/Bail Jumping.  If you get charged with both the theft and the FTA, when you get arrested you will have to bond out on both and it complicates the entire process and costs you more money. 

Shoplifting is a bad idea.  This is a crime of poverty but it’s not usual to see people stealing food and necessary items.  Sunglasses seem to be a very commonly shoplifted item, along with makeup, underwear, and other small items.  DVDs and small electronics are also common and can run in value up to a resulting Class A misdemeanor or state jail felony charge.

Be very careful:  a theft, even in the Class B range, with three or more convictions prior to the date of arrest can result in you being indicted on a state jail felony theft.  The punishment range on a state jail felony is six months up to two years in the state jail.

Call me today if you are charged with theft of property. 

Pitfalls of Probation

Pitfalls of Probation:   What You Need to Know Before You Sign Up

Sometimes, probation is a great offer on your case.  If you are offered probation on a serious felony in which a long prison term is also an option under the law, you need to seriously consider taking it despite the multiple restrictions on your freedom you will experience. 

However, on misdemeanors and state jail felonies, it’s a different story.  You may be better off pleading to a short term in jail to finish the case.  Or, in the alternative, if you are offered a reduction or a dismissal in exchange for doing something, like a class or a community service, you need to do it to avoid probation. 

There are many, many pitfalls to probation.  Many people approach probation as if it is an easy way to avoid jail or get out of jail quickly if you are in jail pretrial, but this is absolutely not the case and you need to rid yourself of this assumption.  Probation is not easy and you have the threat of jail hanging over your head the entire time. 

When you are on probation, you are seriously restricted in your freedom in many, many ways. You are given certain requirements and certain policies by which you must abide, and if you fail to do so your probation officer is going to file what is called a “motion to revoke probation”.  Once this motion is filed, it will generate a warrant.  You are usually given a no bond on that warrant, meaning you will not be allowed out on any type of bond.  If a judge chooses to set a bond, it is really, really unlikely you will be allowed out of jail on a personal bond.  If you cannot get a surety bond, you will be in jail until the motion to revoke probation is resolved. 

I will discuss three common ways you might violate your probation:

• Committing a new offense:  You will get a motion to revoke probation filed if you commit a new offense of a Class B misdemeanor or above.  Do not think under any circumstances that your probation officer is “cool” and will not file a motion if you get arrested again.  S/he will and you will go back to jail even if you are released on the new offense already.  If you cannot make bond on the new offense, then you will be held on the motion to revoke and the new offense.

• Drug and alcohol use:  It is absolutely a violation of your probation to use alcohol at all or any kind of illicit drug or prescription drug if it is not prescribed to you.  If you go into a probation meeting looking like you are intoxicated or hung over, the probation officer is going to test you – and if you test positive s/he is going to file a motion to revoke.  There is no room for just a single positive test. 

• Absconding or missing meetings with no phone call or attempt to reschedule:  missing meetings with your probation officer is not allowed.  If you miss meetings and make no attempt to reschedule, you will get a motion to revoke filed. 

I get many phone calls from people who want off probation and tell me that “they did not realize this is what they were getting into” when they pled to probation.  I represent many clients on revocations of probation.  Probation is not an easy path.  Jail sounds like a terrible fate, but it is important to remember that you may go back to jail anyway if you are filed on for revocation. 

If you are facing a probation revocation, call me today to talk about the possibilities of how to resolve your case.

What is a 12.45?

Article 12.45:  What is a 12.45 and what does it mean to you?

Texas Penal Code 12.45 reads:

“Sec. 12.45.  ADMISSION OF UNADJUDICATED OFFENSE.  (a)  A person may, with the consent of the attorney for the state, admit during the sentencing hearing his guilt of one or more unadjudicated offenses and request the court to take each into account in determining sentence for the offense or offenses of which he stands adjudged guilty.

(b)  Before a court may take into account an admitted offense over which exclusive venue lies in another county or district, the court must obtain permission from the prosecuting attorney with jurisdiction over the offense.

(c)  If a court lawfully takes into account an admitted offense, prosecution is barred for that offense.”

What does this mean? 

In practice, what this means is that if you have multiple pending charges, one or more of these could be “12.45’d” into one offense to which you actually plead guilty and are sentenced. This would mean that you would not be punished for the offenses that are “12.45’d” and those charges would essentially be discharged. They would remain unadjudicated and you would never again be prosecuted for them.

You are not pleading guilty to the offenses that are “12.45’d”.  You are pleading guilty and are being punished for one of your other charges but these are basically being folded into the charge to which you are pleading.

Some issues with 12.45:

The state has to recommend a 12.45 in your case.  The judge cannot do it on his/her own.  A defense attorney cannot ask a judge for a 12.45.  It absolutely requires the state’s recommendation and approval.

A 12.45 disposition on a case is not a dismissal.  Your record will not reflect a dismissal.  You will not be able to tell employers that the case was dismissed.  Your record will reflect that these are unadjudicated.

This means that you are not eligible for an expunction of a 12.45 disposition case.  Because the charge will remain unadjudicated, and not dismissed, it does not fall within the parameters of cases that can be expunged. 

One great thing about a 12.45 is that the case cannot be used for enhancement purposes.  If a DWI is “12.45’d” your next DWI will not be enhanced with the DWI that is “12.45’d” for example.

Lastly, a case cannot be “12.45’d” into a case in which you are getting deferred adjudication.  You can only 12.45 a case into a final conviction.

If you have multiple charges, a 12.45 of some of the charges may be possible.  Call me today for a consultation on how a 12.45 might be best in your case.  

What is 12.44(b)?

What is a 12.44(b)?

Texas Penal Code 12.44(b) reads: “At the request of the prosecuting attorney, the court may authorize the prosecuting attorney to prosecute a state jail felony as a Class A misdemeanor.”

What does this mean?  It means that if you are charged with a state jail felony, the state can move to reduce it to a Class A misdemeanor and punish the crime like a Class A misdemeanor, which means you could be punished by up to a year in jail, or probation, or a deferred adjudication probation. 

This means that your record should reflect that you did not plead guilty to a felony but instead pled to a misdemeanor offense.  This could be like an “attempted” possession of controlled substance less than a gram – which is a Class A misdemeanor. 

It also means that if you are placed on probation and the state moves to revoke your probation, your potential jail time is only up to a year in the county jail. 

It also means that if you are successful on a deferred adjudication, you are automatically eligible for a non-disclosure after your successful release from deferred probation.

Potential problems may include: 

The misdemeanor is not usually refiled as a new case.  You are punished under the old cause number, and if the clerk does not code the reduction right it may look like, on your record, you pled to a felony.  Your defense attorney should do everything s/he can to amend the information, especially if you have immigration concerns, to reflect the misdemeanor allegation.

The state has to agree to 12.44(b).  If you are charged with a state jail felony and believe you should receive a 12.44(b), call me today to talk about the possibilities. 

Statute of Limitations: What it Means for You

Statute of Limitations:  Shouldn’t my “old” case get dismissed?

In this article, I’m going to explain the statute of limitations and what it means, and doesn’t mean, in terms of your criminal case.

The statute of limitations is a time bar against the filing of a case after the actions that would give rise to the case have occurred.  For misdemeanors, the statute of limitations is two years.  For most felonies, the statute of limitations is five years, but for some it is explicitely changed in the Penal Code.  Five years is the default unless it is changed by statute.  For very, very serious crimes, there may not be a statute of limitations or it may be a very, very long period of time. 

What is the statute of limitations?  It basically means if you do a criminal act, like an assault with bodily injury, the police and prosecution have to file the complaint charging you with a crime within the misdemeanor statute of limitations of two years.  The complaining witness cannot make an outcry two years and one day after the assault and get a case filed.  It is time barred.   If for some reason, the police have evidence that you were selling drugs and the prosecution does not get that case of manufacturing and delivering indicted within five years, it is barred from going forward by statute.  Even for things like traffic tickets, Class C misdemeanors, if the state does not file a complaint (the formal charging instrument) within two years, it is barred from going forward.  They have to dismiss the charge and cannot fine you for running that red light. 

What does it not mean?  It does not mean that once you have a charging instrument filed against you -  a complaint in a misdemeanor and an indictment in a felony – they have to dismiss “after the statute of limitations has passed” if you have not pled, been tried, or had the case dismissed.  The statute of limitations is NOT AT ALL a bar to prosecution once the charging instrument has been filed.  The case can remain pending for a long time afterward.  If you leave town, bond forfeit, skip court, etc, and the case remains pending with no plea for 15 years – the prosecution is not bound by the statute of limitations to dismiss the case.  They may dismiss for other reasons, but not because the statute limitations demands it.

It also means you may not get arrested on it immediately, or even until the “stature of limitations” has theoretically ran since the date of the incident.  You may get indicted and move to Mexico in the meantime.  When you come back across the border in 5 years and get arrested crossing the border – there is no statute of limitations defense just because you never got arrested on the warrant. 

I have had clients ask me “why are they expecting me to plea?  This case is old.”  Well maybe so.  The time passed may weaken the strength of the evidence against you --- the witnesses may not have the same addresses and may not be locatable – but it may not either.  A .25 BAC is a .25 BAC whether the DWI is 6 months old or 3 years old.  If the case is filed, the prosecution may want to go forward regardless of the age of the case.  Your attorney is not going to be able to urge a statute of limitations defense. 

Bottom line:  statute of limitations bars the filing of a case after a time has passed.  It does not bar prosecution after the filing of a case, regardless of how much time has passed. 

If you are struggling with an old case, there may be other ways to defend it besides urging its dismissal based on statute of limitations.  If you have an old case, and you want to talk about how to resolve it, call me today.  

What is 12.44(a)?

What is Section 12.44?: A Two Part Series

This is a two part series on Texas Penal Code Section 12.44. As 12.44 is itself divided into two parts – (a) and (b) - I will discuss (a) in this article and (b) next week.

Here is the actual statute:

Sec. 12.44. REDUCTION OF STATE JAIL FELONY PUNISHMENT TO MISDEMEANOR PUNISHMENT. (a) A court may punish a defendant who is convicted of a state jail felony by imposing the confinement permissible as punishment for a Class A misdemeanor if, after considering the gravity and circumstances of the felony committed and the history, character, and rehabilitative needs of the defendant, the court finds that such punishment would best serve the ends of justice.

What does this mean?

This means that if you are charged originally with a state jail felony, in which the punishment is a minimum of six months in the state jail institution with a maximum of up to two years in the state jail, you can plead to and be convicted of that state jail felony and yet be allowed to be punished with time in the county of jurisdiction’s jail instead of the state jail.

It also means the state could move to reduce a higher level felony to a state jail and then punish it with time in the county jail, but that is more rare. The more serious the felony is and the more it involves violence the less likely it is that the charge will be reduced to a state jail felony anyway, and to be punished under 12.44(a) you have to be convicted of a state jail felony.

What do you need to know?

YOU WILL STILL HAVE A FELONY CONVICTION ON YOUR RECORD. Although under 12.44(a) you will be punished as if it’s a misdemeanor, you are still being convicted of a state jail felony and your record will reflect that.

YOU ARE NOT ENTITLED TO A 12.44(A). Even if you are originally charged with a state jail felony and have never been charged with a felony before, you are not entitled to a 12.44(a). Its not like an “everyone gets one 12.44(a)” type thing.

Under 12.44(a) you may be offered “back time” – ie time served—using the time you were in the jail when you were arrested. However, you may be asked to do more time. The range of punishment under 12.44(a) is the same as a Class A – up to one year.

It is common in Travis County for possession of controlled substance less than 1 gram and third time thefts of under $1500 to be punished by 12.44(a). But you shouldn’t count on it. Every case is different and every prosecutor is different. Every judge is different.

Also, 12.44(a) may sound like a good deal – no time in the state jail and no probation always sounds good, especially if you are already incarcerated and are being offered time served under 12.44(a). However, if you have no felony convictions, it may be more wise to hold out for a real misdemeanor conviction or a straight dismissal in order to preserve your record.

I’m always willing to talk to people charged with felonies about the possibility of a 12.44 (a) or even better.

Why Its Important to Go To Court on Class A and Class B misdemeanors

Why it is important to go to court on your court dates:  part two --- Class A and B misdemeanors

In this article I am going to run down what happens if you miss a court date on a Class A or Class B misdemeanor.  I will talk about Travis County specifically and then in general terms about possibilities throughout the state of Texas.

None of the consequences of missing a court date on a Class A or Class B misdemeanor are good and they should be avoided at all costs.  If you are facing emergency circumstances, you should contact your lawyer if you have one or the court you are supposed to report to if you do not have a lawyer and explain the circumstances.  Simply not showing up will result in things that can lead to you spending more time in jail than necessary.

Bail Jumping and Failure to Appear:  If you have been charged with a Class B or Class A misdemeanor and miss a court date, you could very well be charged with an additional Class A misdemeanor of Bail Jumping and Failure to Appear.  The court staff has to go through a procedure to ensure you are indeed not present in order to charge you with this, but regardless of whether or not you are technically guilty, being charged with this will complicate your life.  You will have a warrant out on the new charge of Bail Jumping and Failure to Appear and probably on the underlying original charge as well, and you are risking arrest on both.  If you are arrested on both charges, even in Travis County it will be very unlikely you will get a personal bond.  You will have to use a bail bondsman to post a surety bond on both cases, which costs you much more money than just bonding out on the original charge. 

Being charged with Bail Jumping and Failure to Appear is not likely in Travis County except in one instance.  This is only charged when you are given a cite and release – explained in other articles, this is when you are given a citation on a Class B or Class A misdemeanor instead of going to jail and given a court date to report in a Justice of the Peace court – and you do not show up.  In this instance, the County Attorney will file a Bail Jumping and Failure to Appear charge and you will be expected to post bond on this and the original charge in order to bond out if arrested. 

Bond Forfeiture: If you are out on bond for a Class A or Class B misdemeanor – either personal or surety bond – and you fail to appear for court, your posted bond will be “forfeited”.  This means you no longer have a good bond.  A warrant will be issued for your arrest. 

In Travis County, the County Attorney will file a civil suit against you if you are out on personal bond for the full amount of the bond set when you were originally magistrated.  You may get a default judgment against you if you do not file an answer to this civil suit.  It may go to collections or be placed on your credit report.  It is easy to settle these suits for much less than the full amount but you will still have to pay something.  You may not be able to get the warrant withdrawn and get back on the court’s docket in good standing with a good bond if there is a civil suit.  It is up to the court.  Some will expect you to settle the civil suit first. If you are out on surety bond, the civil suit will be filed against your bail bondsman and in turn, your bail bondsman will seek to get the money they pay to settle it from you. 

If you have a bond forfeiture and are arrested on the warrant that was issued, a new and higher bond will be set and you will not be eligible for personal bond.  No judge except the no one presiding over your case will be inclined to release you except in rare circumstances – so if you are arrested on a weekend you will be there until Monday when the judges come back.  You will have to hire an attorney except in rare circumstances to ask the judge to do a bond forfeiture set aside, reinstate your bond, release you on the reinstated bond, and put you back on the docket with another court date. 

In some places around Texas, both a new Bail Jumping/Failure to Appear charge will be filed and a bond forfeiture will be entered.  It is very complicated to sort this out and you may not have a method of being released except posting a new surety bond. 

The moral of the story is:  don’t miss court and if you do, tell the court your circumstances – which have to be an emergency – prior to not showing up.  Don’t just throw your hands up and hope for the best.  You will not like what happens.

If you have a bond forfeiture or warrants out on an original charge and Bail Jumping/Failure to Appear – call me today.  I’m happy to help.