Articles Posted in Criminal Defense

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World Suicide Prevention Day raises awareness of mental health issues and some of the consequences of untreated disorders. Oftentimes, these mental health issues intersect with criminal defense. After practicing law in Montgomery County, Texas for almost 11 years I have identified certain fact patterns where mental illness reveals itself. This can be seen in drug, assault and other cases. While there are certain similarities in cases where underlying mental health issues exist, each person and condition is unique in their own right. Mental health is a complex and nuanced topic that requires much more attention than one blog post. This is just one effort in honor of World Suicide Prevention Day.

If you’re arrested for a criminal offense, that does not mean that you’re a bad person. Innocent until proven guilty, right? Exactly. Outside of the pillars of the Constitution, the law, your individual rights, and the presumption of innocence this is even more true for someone suffering from a mental illness. I see this in drug cases when people are suffering from what is diagnosed by a qualified professional as bipolar disorder, depression, anxiety, schizophrenia, etc. who simply just want to feel better; they want the pain to stop. I see this in assault cases where the person is in crisis and not typically a violent person, but can’t process through conflict or control their emotions. Many cases that come across my desk lack criminal intent, but contain an unmistakable element of untreated mental health conditions.

Overall our system is lacking for those who suffer with mental health issues. However, in the cases where my client lacks criminal intent or simply needs help, I work with some local resources such as diversion courts, DWI and Drug Court, Mental Health Court Services and other local mental health professionals to find a plan to meet their needs and in the right situations – resolve their case.

“How Did My Vape Pen Land Me a Felony Charge?” And Other THC Related Questions

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The advent and mainstream use of CBD products, changes in the legislature and Travis Scott have normalized marijuana usage and desensitized Texas high schoolers and young adults to the criminal consequences of some products. Gummies, wax, and vape pens aren’t your parents’ blunts or joints. And partly the reason you were charged with a felony when you were arrested in Montgomery County with your vape pen. But, why is that really?

A vape pen is a compact, on-the go vaporizer that resembles a pen. Otherwise known as a dab pen, wax pen, or vaporizer, it uses cartridges to produce a vapor from an oil that can be inhaled by users. Cartridges can contain nicotine, CBD or THC oils. THC oil contains tetrahydrocannabinol, which is a Penalty Group 2 substance.

Arrest Does Not Equal Guilt

July 22nd a Montgomery County Judge signed the dismissals on all charges against former University of Houston player and Buffalo Bills’s current defensive tackle Ed Oliver. On or about May 16, 2020, Oliver was arrested for Driving While Intoxicated and Unlawful Carry of Weapon. Oliver complied with officers’ requests to complete the Standardized Field Sobriety Tests (SFSTs) as seen below.

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Three Questions to Ask your DWI Lawyer

So, you’ve been arrested for Driving While Intoxicated (DWI) in Montgomery County. The encounter with law enforcement, the ride to the jail, the booking process – each step more embarrassing and frustrating than the first. Now, it’s time to fight the case. You need to find a lawyer, but you’ve never been in trouble before – let alone for DWI. This process should not be complicated or frustrating, but how do you know you’re in the right hands? What do you ask your DWI lawyer before hiring them? This article is meant to provide some suggestions. If you already have a lawyer though, this article is still for you. These are some questions you can ask other than, “What’s going on with my case?”

Instead of: “What’d my video show?” Ask: “What is your experience with the NHTSA manual?”

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After a couple of months of being shut down, the world prepares to reopen. Texas Governor Abbott announced on April 27th his phases to begin opening the state back up. Today, under Phase 1, many businesses take down the shutters and open their doors at 25% occupancy to restless communities and anxious employees. Montgomery County though, under County Judge Mark Keough’s interpretation of the order, resumes business as usual with more expansive reopenings; this includes bars. If you’re someone who has been counting down the days and have your first day of socializing outfit picked out, be careful.

Since the Natural Disaster Declaration and Stay-At-Home Order, arrest numbers have been down throughout Texas. While the courts have been working diligently to reduce the amount of bail bonds and issue Personal Recognizance Bonds to lower jail populations in an effort to flatten the spread of the virus, law enforcement has seen a drop in incidents of Driving While Intoxicated. Montgomery County specifically, typically strives to be strident in their attacks on DWI. Montgomery County became one of the first Texas counties to participate in the No Refusal Initiative in 2005 that allows mandatory blood draws.

No Refusal Weekends traditionally have been holiday weekends, such as Memorial Day, Labor Day, Halloween, and the time starting from Thanksgiving through Christmas and ending after New Years Eve. For example from December 21, 2018 through January 1, 2019, Montgomery County law enforcement arrested approximately 146 individuals under the suspicion of Driving While Intoxicated (DWI). The time between Memorial Day Weekend and Labor Day Weekend has been dubbed the “100 Deadliest Days of Summer.” In 2019, 766 people were arrested for alcohol related offenses during these days.

Montgomery County Disaster Declaration Enhances Punishment for Certain Criminal Offenses

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Montgomery County County Judge Mark Keough extends the Disaster Declaration until May 11th. This comes after Texas Governor Greg Abbott declared a state of disaster for Texas on March 13th. These proclamations are intended to stop the spread of the coronavirus and provide national relief and benefit for the community. Specifically, in an emergency meeting in Conroe, County Judge Mark Keough said, “We want to be able to recoup all our costs.” However, there are consequences that accompany the benefit.

A disaster declaration triggers tougher punishments for crimes under Texas Penal Code § 12.50. The section, Penalty if Offense Committed in Disaster Area or Evacuated Area, tells us who can make the declaration and who it impacts. The increase in punishment is for Assault, Arson, Robbery, Burglary, Burglary of Motor Vehicle, Theft and Criminal Trespass cases. In speaking on the harsher punishment, Montgomery County District Attorney’s prosecutor Kelly Blackburn has said, “The enhancement (of punishment) is just a better tool in our tool belt to use to try to effectively prosecute people that are taking advantage of this situation.” The last time we saw a similar disaster declaration in Texas was during Hurricane Harvey.

Public intoxication arrest
An opinion out of the Texas Court of Criminal Appeals this week entitled, State of Texas v. Roger Anthony Martinez, discussed probable cause and the offense of public intoxication.  So, what is Public Intoxication?  In Texas, public intoxication is defined as “a person commits an offense if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another. The Texas Penal Code goes on to state, “for the purposes of this section, a premises licensed or permitted under the Alcoholic Beverage Code is a public place.  In addition, “it is a defense to prosecution under this section that the alcohol or other substance was administered for therapeutic purposes and as a part of the person’s professional medical treatment by a licensed physician.  Just to let you know, public intoxication is a Class C misdemeanor offense in Texas. The punishment for a Class C offense in Texas is by a fine that is not to exceed $500.  Therefore, a place with a permit under the Texas Alcoholic Beverage Code is just what you think it is, a bar.  If you are in or around a bar and are intoxicated and may endanger yourself or others you are deemed to have violated the Texas offense of Public Intoxication.  As far as the substance being prescribed by a doctor for therapeutic purposes stipulation, you can go ahead and interpret that one on your own.  How long has it been since a doctor prescribed alcohol as a viable medical treatment?  If this has happened to you please contact me as I would like an appointment with your doctor.

The Martinezcase first discussed the burden of the State in a Motion to Suppress.  For those of you that don’t know, if you are arrested you have been seized. When this happens, your lawyer must prove to the court that your arrest happened without a warrant.  If no warrant was issued, then the burden shifts to the State which must prove the reasonableness of the search or seizure. In Texas under the Code of Criminal Procedure, “a peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view.”  So, if a cop sees you break the law with his own eyes, you are toast.

So, what is the big deal here?  Apparently, the arresting officer for whatever reason did not testify at the trial. The trial court in this case reasoned the statute above stating that the offense was committed in the officer’s presence or view applied only to the officer who actually made the arrest.  As you know that officer was a no show in this matter. Therefore, the motion to suppress was granted.

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A new case out this week from the Texas Court of Criminal Appeals.

Ritcherson v. State

In a murder case the issue was whether the defendant was entitled to a lesser included offense of manslaughter.  Lesser included jury charge issues are always interesting because there are so few appellate issues that can actually gain any traction these days and this happens to be one of them.  The case stems from an argument that started in a nightclub between several people that was broken up and later resumed in the parking lot after the club closed. In the parking lot one of the partied stabbed the other in the chest. The man later died from his injuries. The initial charge was aggravated assault with a deadly weapon which was later enhanced to murder after the man passed away from his injuries.  The case was tried twice after the first case ended in a mistrial.  In the jury charge conference, the defendant requested a lesser included charge of manslaughter and negligent homicide.  The court denied the requests.  The jury convicted the defendant and sentenced her to twenty-five years in the Texas Department of Criminal Justice Institutional Division.  The court of appeals affirmed the conviction by reasoning that the jury could not have found the defendant guilty of only manslaughter.

Marijuana and THC arrest
Let’s continue our discussion of new THC products in 2018.  Again, these products are surprising many young people in the Conroe, Woodlands, and Huntsville area.  Mainly because marijuana products have not been decriminalized in our area and these products can land you in jail or even worse.  Many of these new products containing THC have a criminal penalty that corresponds to the gross weight of the product.  Frequently, these products will place you right in the middle of felony land.  Yep, we are talking pen time.  The big house.  So, what are some of the exciting new THC and other marijuana containing products?

Weed Beef Jerky

Let’s face it, we all like to stop a Buc-ee’s.  On the way to my last legal seminar I stopped in and picked up an old favorite…beef jerky. What’s better than all the great flavors of jerky that Buc-ee’s serves up?  You guessed it.  Weed beef jerky.  We have all heard of edibles such as pot brownies but come on, that’s old school. Pick up some weed beef jerky by the Santa Cruz Company.  This THC-laced beef jerky comes in a wide range of flavors and you even get to choose from several strains of marijuana.  Stoners have taken to calling this new product “reef jerky” based on the old term “reefer.” This one even won a prize at the Denver Cannabis Cup in 2014. What’s next?

Conroe DWI lawyer
An interesting case out of Montgomery County was released by the Texas Court of Criminal Appeals this last week.  The case involved a DWI and the state’s intended use of a trooper as an expert without disclosing the expert in a timely manner.  The Wednesday before trial the state designated its expert. Under 39.14 of the Texas Code of Criminal Procedure the state is obligated to disclose the name and address of each person who may provide evidence in a trial no later than twenty days before the trial date.  On the date of trial in this matter, a jury was picked and sworn in which placed the defendant Garrels in “jeopardy” which bars her from retrial under double jeopardy laws in Texas.

When the trial began, the trooper began to testify about the standardized field sobriety tests and how Garrels performed on the tests.  Garrels objected to the testimony and stated that her rights had been violated due to the fact that the trooper had not been designated as an expert.  Under the Texas rules if you are going to present a witness on behalf of the state you have to give the name and address of that expert twenty days before the trial date.  This allows the defense to vet witnesses since the state is the one doing the accusing and the burden is on the state.   As a counter the state asked for a continuance.  The defense argued that a continuance would allow the state a way out of their own error. In the face of two options, one to strike the testimony or two to grant a two-week continuance, the Judge decided to declare a mistrial.  The state objected on the basis that a mistrial would bar the state from retrial on the basis of double jeopardy.

The case proceeded to the 9thCourt of Appeals out of Beaumont.  There the court held that, “a defendant who does not object to the trial judge’s sua spontedeclaration of a mistrial, despite an adequate opportunity to do so, has impliedly consented to the mistrial.” In other words, the court held that Garrels had consented to the mistrial and was therefore not barred by double jeopardy.  The Court of Criminal Appeals of Texas took the case up on the sole ground of, “has a defendant who did not object to a trial court’s declaration of mistrial, despite an adequate opportunity to do so, impliedly consented to the mistrial?”

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