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.

MLK Day: A Time to Continue His Work

Considering the Martin Luther King Jr commemoration tomorrow, I thought it would be appropriate to say something about the ongoing injustices facing Black Americans in the criminal justice system.

                I am not an expert in police brutality issues.  I do not litigate use of force issues nor any civil rights violations.  I will not really touch on those issues here except to say that in my opinion overcriminalization of Americans leads to far too many unnecessary encounters that escalate because of the high tensions that arrest, search, and seizure create.  If we weren’t being policed as heavily, we wouldn’t have as many encounters end in violence.  The over policing is a political issue that cannot be solved by law enforcement itself.  It’s a political and legislative problem.

                Black Americans constitute one million of the approximately 2.3 million people in prison per the NAACP.  This is nearly half in a country in which Black people make up 8%-10% of the population. 

                One in six Black men had been in prison as of 2001.  One in one hundred Black women had been in prison in the same year.  If incarceration of Black people continues at this rate, we can expect 1 in 3 Black men born today to be in prison at same time in his life.

                Black people represent about 12% of drug users in any given month but about 32% of drug arrests. 

                There is no doubt that incarceration as a tool of “correction” affects Black Americans deeply.  It is incredibly problematic.  Incarceration rates that high cause economic disparities in the community, taking Black men out of the earning and employed pool at higher rates than white men.  People who have been to prison cannot simply reconstruct their lives to the point as if it had never happened – they face permanent barriers to employment, education, and housing.  

                There is some evidence that perceptions of Black people as inherently violent and dangerous, and criminal, lead to higher traffic stops and street “Terry” stops.  It is probably true that white people carry drugs far more often than Black people do – but if the white people aren’t being stopped as often, aren’t being frisked, aren’t being searched – then they don’t get caught and arrested as often either.  So, Black people aren’t committing more crimes necessarily but they are being policed more heavily and therefore experiencing consequences far more often.  This racks up over a life time --- the more stops, the more likelihood for enhancements under “habitual” statutes (in Texas) or “3 strikes laws” (such as those in California). 

                It is also true that chronic denial of economic opportunity and development to Black communities leads to a higher rate of criminal activity among the disenfranchised.  Expansion of education and employment opportunities in Black neighborhoods and support of Black business would go a long way to seeing crime rates in these places go down.

                We need to use opportunities like Martin Luther King Day to continue conversations about incarceration and policing.  Decriminalizing nonviolent offenses would lead to a more free, equitable society and better relations between police and the communities they serve.  But to do that, we need to put pressure where pressure is due – with the legislators who make the laws and the elected executors who determine the priorities in enforcement and punishment.

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.  

Happy New Year: Five Ways to Stay Safe and Free in 2017

Five ways to stay out of trouble in the New Year:

Happy New Year!! I hope you have a prosperous, peaceful one.  It is no one’s goal to get arrested and charged with a criminal offense in ANY year, and to that effect I am going to give you five ways you can avoid an arrest this year: 

1.        Do not drive with marijuana in your car:

I do not suggest being a heavy user of marijuana.  It is not the best path to prosperity and productivity.  However, if you are going to use marijuana in any quantity, keep it at your home, locked away safely.  Driving with it is a very bad idea because the scent of marijuana gives a police officer probable cause to search your car and/or prolong the detention long enough to call a K9 to do a sniff-search.  If the marijuana is found, you will be charged with possession of marijuana.  If you must drive with it, limit the times you do this and only do it when it cannot be avoided.  When you drive with it, keep it an air tight container out of view, or even invest in a portable vacuum sealer to seal it up before driving.  NEVER SMOKE MARIJUANA IN YOUR CAR.

2.       Always have a safe ride home after drinking:

If you are going to drink alcohol away from your home, always, always arrange for a sober (completely sober – not just “not that drunk”) ride home.  Take a cab, have a designated driver, take a ride share, or take a means of public transportation.  Arrests for DWI are increasing nationwide, and even if you are not truly intoxicated and have only consumed a limited amount of alcohol, it is an arduous undertaking to beat a DWI.  It is also expensive.

3.       Do not gamble at shoplifting:

You may not get caught every single time if you are a habitual shoplifter.  But you will get caught eventually.  Shoplifting charges are embarrassing, a pain to dispose of, and will disqualify you from many, many jobs.

4.       Do not drink to the point of oblivion in public:

Public intoxication arrests are common.  If you get very intoxicated and start causing a scene around a police officer, or if you are intoxicated and cannot seem to find your way home, you will probably get arrested for public intox.  APD uses these as a “end the situation” type of arrest – if they don’t know what else to do with you but they have to figure out something because you can’t stay out on the street due to your intoxication – they will take you to jail for Public Intoxication.

5.       Do not stay in toxic relationships:

If you are in a toxic, dangerous relationship – GET OUT.  Do it as soon as you can safely.  Yelling, verbal abuse and emotional abuse will lead to physical abuse and this will lead to intervention by the system.  Even if you call the police because you are the one being abused, it is not always the case that the police arrest the right person.  Sometimes they mistake defensive injuries as the primary injuries and arrest the person that was the actual victim.  If you need resources, call the Domestic Violence Hotline.

I hope that all my clients, my potential clients, and their friends and family can have a peaceful year this year and stay out of the system.  It is so time and resource consuming to get arrested over and over again, so be smart and employ these strategies above so you can stay free this year.

Happy New Year from Stefanie Collins Attorney at Law.

It's Impossible and Unethical: Why a Lawyer Can't Guarantee a Result

It’s Unethical and Impossible:  Why Your Lawyer Can’t Guarantee a Result

I get a lot of people who call wanting me to help them on their case.  They may want out of jail or they may already be out on bond and be looking for a lawyer.  It is inevitable that many of them ask me:  what can you do for me?  What am “I looking at”?  What am I facing?

I’m going to tell you what many lawyers won’t.  It is not only unethical for a lawyer to be able to promise you a result on your case – no jail, no prison, probation, or a dismissal – it is impossible to do any more than go over the possibilities on a first phone call.  Anyone who tellsyou “oh I can get you probation” or “oh I can get that dismissed”  is unethical and probably trying to get you to make a down payment.  Do not be surprised that if you hire a lawyer based on the fact that they promised you a result, they will come back later telling you it’s not going to happen.  At that point, you’ve already spent your money and have to make a decision on whether to start all over again with another lawyer.  That means cutting your losses – you aren’t going to get any of that money back – and spending money on another lawyer.

·         It is unethical. 

Lawyers are bound by rules of discipline.  These are rules that govern the way we practice.  Lawyers can be disciplined by the state bar – including having their licenses suspended or permanently revoked – if they violate the rules.  One of the most important rules is very clearly stated :  do not promise a result.  It is a very sinister thing for a lawyer to promise a result.  Do not get it twisted:  lawyers do this to get you to hire them and take your money.  They absolutely know that a result is not guaranteed in any case.  It’s just impossible – its tantamount to telling the future with certainty.  If they tell you different – they are lying.

·         It is absolutely impossible.

Legal matters are unpredictable on some level – even the most simple ones may have an unknown, unpredictable element.  We have an adversarial system and results come about due to all sides coming to a compromise or a jury or judge deciding after a trial on the merits.   A lawyer cannot control what the other side is going to do – what they are going to want, what they are going to offer, or what evidence they have that you don’t know about yet.  A lawyer cannot at all tell what a jury or judge is going to do after a trial.  It is tantamount to telling the future.  Lawyers are not psychic.  (And sorry to break it to you – no one is a psychic.)

What is allowed?  Lawyers can present all the likely and unlikely outcomes – the full range of possibilities.  In a criminal case, they should go over the full range of punishment.  They can discuss the likelihood of dismissal.  They can discuss the likelihood of probation.  But particularly in a first phone call or first consult, this is all to be done with generality.  It is not until your attorney gets all the evidence together, completing the discovery process, and starts negotiations with the opposing party – the prosecution in a criminal case – that it becomes more clear what the options in your case are. 

To put it succinctly – do not ask a lawyer if s/he can get your case dismissed and keep calling lawyers until you find one that assures you s/he can.  That inevitably going to get you someone treading in unethical territory and is probably interested more in your money than in your case.  The best lawyers are going to explain they cannot promise a result and will do the best they can in your case given the facts, the evidence, policies in that county, and your history.  

LGBT People and Addiction: an issue of importance

Gay men and substance abuse: an issue of importance to the LGBT Community

Gay men have higher rates of substance abuse than straight men. This leads to a higher incidence of involvement in the criminal justice system. There are other consequences such as higher risk for HIV infection and other health complications, homelessness, and loss of employment, and these problems themselves can be further aggravated by being arrested, incarcerated, or otherwise involved in the criminal justice system.

Possession of any usable amount of methamphetamine in Texas is a felony. That means potentially it can be punished by time in the state jail or the penitentiary. Some surveys have showed that use of meth by gay men is five to ten times more likely than meth use by a straight man. Gay men are being arrested for possession of meth, cocaine, and other party drugs at higher rates proportionate to their representation in the population overall than straight men.

This is a problem we have to deal with as an entire LGBT community. Often use of meth and other drugs are a sign of great unease, anxiety, and stress associated with being gay or bisexual. Closeted behavior and hiding sexual relationships with other men can predispose men to relieving the stress of hiding by partaking in substances offered to them during these encounters. The stress of hiding your identity from family, friends, or wives and children can lead to a need for release that drugs offer.

Craig Sloan, a counselor and social worker in New York who works with gay and bisexual men, has done a great deal of work on substance abuse issues and gay men. He has put forth the argument that the only way to combat the high numbers of addiction and substance abuse in the LGBT community is to actively affirm and support gay and bisexual men in their identities and counsel them on accepting their identities and completely normalizing it. Anything less will leave them with the stress they are seeking release from by using.

As a criminal defense attorney, I work with the LGBT community and LGBT people accused of possessing drugs. I work with my clients to get to the bottom of why drug abuse is an issue for them. We work on coming out issues, dealing with anxiety and self acceptance. We work on getting them support from professionals and getting out in the LGBT community and connected with out, proud, and sober LGBT people who can model affirming, healthy behavior. I refer them to substance abuse treatment and support groups who affirm their sexual identity.

As part of my representation, my job is to explain to the prosecutors why as a community we deal with high rates of substance abuse. I help them see why this is an issue that has to be dealt with by rehab, treatment, and gay affirming counseling instead of incarceration. I have had success with getting cases of small quantity possessions dismissed by proposing a long term treatment program.

I have seen gay men through the course of my professional relationship with them go from entirely closeted and engaging in drug abuse and random, high risk sexual encounters to out, proud, involved gay men working in the LGBT communities and engaging in long term healthy intimate partnerships without the drugs. It is a wonderful, fulfilling experience.

If this sounds like you, give me a call. Lets work together to see how we can get you on the path to health and happiness.

Trans Day of Remembrance: Trans People in the Criminal System

Today is TransGender Day of Remembrance.  This day is set aside to remember Trans people lost to violence.  To add my voice to the call for safety and equality for Trans people, I want to point out some of the issues that Trans people deal with in the criminal justice system.

Trans people are overrepresented in both the juvenile and adult criminal system.  Trans youth are a high risk of homelessness due to rejection by their families and therefore may resort to survival type crimes to stay alive – things like sex work, theft, and small time drug distribution.  Sixteen percent of trans adults have been incarcerated—this is 5% higher than the cisgender population.  Again, things typically thought to be survival type crimes are common among poor trans adults – things like sex work and drug distribution.  Not only does this put trans people at a high risk of arrest and incarceration but also violence against their persons.

When incarcerated, trans people report higher rates of assault and sex assault.  Perhaps one third of the trans incarcerated population will be assaulted in some way.  Because of this, jails and prisons should reform their policies to allow trans peope to stay in the unit that they feel is most gender affirming. Jails and prisons should not simply use the sex assigned at birth to determine unit housing for trans people.

Texas Department of Criminal Justice took a radical step forward – finally – in 2015 and allowed for inmates experiencing gender dysphoria to undergo hormone replacement therapy while incarcerated and to live as their true gender.  This means that trans people who go to prison in Texas will not have to gender conform due to regulations and should not have an interruption in their HRT.

The standard of care for Trans people and also our common sense of decency and fairness toward all people demand that Trans people be treated with full equality and be allowed to express their true gender identity regardless of their involvement with the criminal justice system.  They should not be forced to conform to their gender assigned at birth by judges, probation officers, or prison administrators.  Also, we should work to end policies that make it more likely for Trans people to resort to small time, petty crimes for survival purposes that make them vulnerable to arrest and violence. 

We mourn the losses of Trans people and call for universal respect for Trans people and an end to violence. 

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.  

LGBT Stereotypes and Criminal Convictions

There are very complex issues surrounding LGBT people in the criminal justice system. 

Stereotypes about gay people can lead to them being overcriminalized and convicted of crimes that they did not commit.  Because for hundreds of years, being gay was considered an abberation and an abnormality, it was often (and still is in some jurisdictions) used by the prosecution to show that the gay person is also prone to other types of abnormal, and criminal, behavior. 

Two examples of this:

In the 1970s in Tyler, Texas (Smith County), Kerry Max Cook was convicted and sentenced to death for the murder of Linda Jo Edwards.  The prosecution’s theory of the case was that Kerry, a suspected but not “out” gay man, had watched a movie tht had inspired him to fly into a “gay rage” and that drove him to murder a woman. The prosecution said at his trial that gay men hated women and that was evidence that he had murdered this woman.  He was exonerated 30 years later and released from death row after coming within days of execution several times.  You can read more about Kerry here: https://en.wikipedia.org/wiki/Kerry_Max_Cook

In 2000, four women in San Antonio TX (Bexar County) were convicted of sexual assault of two young women.  They were sentenced to between 15 and 37 years for this assault.  They maintain their innocence.  They are lesbians, and the prosecution in their cases cited their lesbianism as the driving cause of the assault.  They are fighting to be exonerated of these crimes. You can learn more about them here: https://www.texasobserver.org/mystery-san-antonio-four/

The state can sometimes seek to use a person’s sexuality as a tool to make a jury suspicious and biased against a Defendant.  Especially in child sex cases or sex assaults, the state can seek to connect the sex abuse to the person’s same-sex orientation as a motivating factor for the crime.  People have grave misunderstandings of what it means to be gay, and the prosecution can use that misunderstanding to get convictions by playing on stereotypes of LGBT people.

It is vitally important to LGBT people charged with crimes that they have an attorney who will push back against these stereotypes.  Gay people aren’t any more prone to violent crimes, assaults, or sex crimes than anyone else and may even be less likely to commit these kinds of crimes.  We have to fight back against these attempts to use stereotypes to convict LGBT people and make up for lack of evidence. I defend gay people and make the prosecution, judges, and jury understand that we are more often victims rather than perpetrators. 

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.

Cross Examination: What you need to know before you testify

Cross Examination: What you need to know before you decide to testify

If you are charged with a crime and you decide to exercise your right to a trial, either by jury or by the court, you will have to decide if you want to testify on your own behalf or not.  This is your choice.  Your lawyer cannot stop you from testifying, and on the other hand, no one can force you to testify.

There are some misconceptions to testifying.  I will attempt to clarify some. If you are thinking of testifying, you need to have serious, long conversations with your attorney so that you will be prepared.

Fifth Amendment:  If you are on the stand as the Defendant, you may think that you can refuse to answer questions based on your Fifth Amendment right not to incriminate youself.  This is true, but by exercising your Fifth Amendment privilege, you are essentially admitting that by answering truthfully you will be incriminating yourself.  That is not something the jury is going to ignore.  The judge will have to do an analysis to determine if you can assert your Fifth Amendment privilege, and you will only get to do so if you will indeed be potentially incriminating yourself.  Simply trying to assert the Fifth Amendment privilege may be a red flag to juries that you are being deceptive, have something to hide, and were involved in criminal activity.

Cross Examination:  The prosecution will get to cross examine you.  This is a question and answer form – it is not a running narrative.  You will only be able to answer the questions asked by the prosecution and you will not get to elaborate or explain until its your attorney’s turn to ask you questions again.  Cross examination is not going to be a pleasant experience.  The state’s attorney is going to try to make you look like a liar and like you are guilty.  The prosecution is going to ask you questions designed to make you give inconsistent statements.  The prosecution is going to ask questions that make your version of the events look incredulous.  Its not just a “Here’s what happened.  Let me explain” type of thing. 

Past criminal history:  Some or all of your criminal history may be fair game on which the prosecution can cross examine you.  You will have to admit, if asked, if you’ve been convicted of certain crimes in the past 10 years.  This is regardless of whether or not this is the same type of crime or whether or not you’ve “paid your dues”.  This is to make you look like someone who is prone to dishonesty and criminal behavior. 

Perjury:  Your attorney cannot help you commit perjury.  S/he is strictly, explicitly barred from suborning perjury and cannot put you on the stand if s/he knows you are going to lie.  If you start lying whileyou're on the stand, your attorney is going to have to let you say your piece in many instances but cannot ask you any questions to help communicate your story to the jury.  It is not a good idea to perjure yourself – you may be opening yourself up to further, serious criminal charges. 

Ultimately, the jury may well pick up on subtle signs of deception if you are not telling the truth.  Evasiveness, defensiveness, subtle body language – the jury may use all that to come to the conclusion that you are lying.  It may in some instances be very important for you to testify – you may have to if you are the only one in possession of the testimony that you need to get in, for example an alibi or a self defense affirmative defense.  It may in some instances be very dangerous for you to testify – especially if you are not going to be completely honest.  Please talk to your lawyer and listen to him or her and discuss the ultimate goal you hope to accomplish with your testimony.

Why you should go to court on Class C misdemeanors

Why you should always keep your court dates:  a series in three parts 

The consequences of failing to appear on Class C misdemeanors

It is common in my work to come across clients who have outstanding warrants on Class C misdemeanors.  Class C misdemeanors are the lowest level of misdemeanors in Texas; they are punishable by fine only and not jail.  They include minor criminal offenses like Public Intoxication and Possession of Drug Paraphrenalia and all traffic offenses like speeding and failure to yeild right of way.

When you receive a citation or “ticket” for a Class C misdemeanor, you will get a court date on that citation for when you should either appear or contact the court and ask for options on how to resolve the case.  If you wish to speak with a prosecutor about the case, which is a better option often times than simply pleading no contest and paying the fine, as I have explained elsewhere, you will get another court date on which to appear. 

If you do not appear or make arrangements with the court to reolve the matter, there will be consequences that can adversely affect your life. 

First, you will be charged with a second Class C misdmeanor of “Failure to Appear”.  This is a negative consequence as it will be yet another citation you will have to resolve with the court.  It may cost you more money as you may have to pay an additional fine. 

Second, warrants will be issued for your arrest.  If you ever have an encounter with law enforcement in that jurisdiction, you may be arrested on these warrants even though they are Class C misdemeanors.  You may spend some time in jail on these charges even though they are not punishable by jail time.  You may eventually be released with a court date or you may be ordered to “sit out” the fines if you plead guilty at magistration.

Now, these are the most obvious of the consequences.  There are more that are far more obscure and less publicized and may surprise you. 

If these tickets – both the original citation and the failure to appear – are entered in the OMNI database, you will be refused the ability to renew your driver’s license and register your vehicle, which could lead to more criminal citations like DWLI and expired registration.  You will have to resolve these citations before you are allowed to renew your driver’s license and registation.

Resolving these citations may be more difficult if they get “old”.   Fees, such as collection fees, may drive up what you owe.  You will also be charged warrant and OMNI fees -- $50 warrant fee and $30 OMNI fee per ticket for a total of $80 – that must be paid when the tickets are resolved.  You will often not be allowed to negotiate the fines and fees if the tickets are “old” and are in the OMNI database and/or are in collections.  You will not be allowed a deferral.  You will have to pay the amounts in full.  The only way around this is to hire an attorney to post bonds and get these cases back on the docket, which will cost you money.

It may seem like it is the best solution to just ignore your citations.  You may feel like you don’t have the money to take care of them or the time.  However, avoidance of the citations will lead to the situation getting much worse.  If you cannot afford to pay a citation, you can perhaps ask for community service in leiu of payment.  Don’t just put your head in the sand and expect the ctiations to go away – they won’t. 

If you are struggling with outstanding warrants on Class C violations, OMNI holds, and the like, I am here to help.  I can usually save clients money and time, and get them out of the morass of unpaid tickets.  But what is even better is to take care of ctiations in a timely manner so you don’t need someone like me to fix it after it’s become an unsolvable problem.

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.