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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.

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Montgomery County Probation Isn’t Cancelled Amongst COVID-19

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Court dates in Montgomery County have largely been rescheduled or cancelled due to the Coronavirus. Judges are adapting by using video conferencing applications such as Zoom to address issues related to bond and to take pleas, but downtown Conroe, despite its sizable essential employee status, is a ghost town. This comes as no surprise as Montgomery County Judge Mark Keough extends his stay-at-home order and families cancel birthdays, showers, family reunions, and vacations and replace their party hats with their teacher hats as schools cancel as well. What hasn’t been cancelled though, is Montgomery County probation. Drug testing through Averhealth too has not been cancelled.

Why does that matter? Approximately 60% of criminal cases result in some sort of community supervision. In 2018, the Prison Policy Initiative counted 4.5 million adults per year in the United States on community supervision. About half of the population in county jails are individuals who have violated the conditions of their release.  That’s approximately 350,000 people each year who are jailed for revocations. You’re likely to see a spike in that number as people become more desperate from layoffs, isolation, and pressure from dealing with the consequences of COVID-19 rises. Montgomery County District Attorney’s Office has already reported a 35% spike in assault calls.

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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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Montgomery County DWI and Personal Injury Lawyer

Law enforcement was out in full force the last two days due to the holidays.  Numerous DWI and car and truck accidents happened in Conroe and the Woodlands.  Excessive drinking this time of year is common.  Unfortunately, so are driving while intoxicated cases and wrecks where people are injured.  Here in Montgomery County we have a no refusal policy that has been in effect since Thanksgiving.  If you are pulled over for suspected drinking and driving, you will be tested even if you refuse.  Upon a refusal to give a blood or breath sample, your case will trigger the officer to apply for a warrant from an on-call judge to order you to give a sample. Although many lawyers tell you “don’t blow,” I think this advice is often foolish.  If you have no criminal history and are below a .25 then you may qualify for a pretrial diversion program that will allow you to get your case dismissed with year of probation.  If you decide to refuse the test, then you will not qualify for a pretrial diversion.
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Stabbing
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.

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Marijuana Possession Defense Attorney
Weed in your Carmex?  Why not, because weed makes everything better, right?  At least until you’re arrested.  According to advocates, marijuana has many medicinal benefits such as pain relief in addition to anti-inflammatory properties that could prove to be beneficial in the treatment of certain skin disorders such as acne or eczema.  Are we going to see a huge surge in cosmetics containing weed such as Mary Kay Baked?  Maybe. The market is already seeing the introduction of many lip-balm like products containing THC or marijuana.

The big question is, does it get you high?  In a word, yes.  But how does that happen if THC cannot be absorbed through the skin?  Well, you have to lick your lips over and over. Doesn’t that negate what you are using the cannabis Chapstick for anyway?  Probably.  Sure, you are going to look silly repeatedly licking your lips, but what do you care, you are high.

Is there a pleasant smell associated like medicated Chapstick?  Nope, it smells like weed.  Therefore, you are probably not going to want to apply this in the office or classroom. Incidentally, parties where people kiss after applying the marijuana infused lip-balm is what all the cool kids are doing now.

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Marijuana Defense Attorney
Ah, this brings me back to the days of the Phototron.  Who doesn’t remember this icon located in the advertisements at the back of nearly every magazine back in the day?  Billed as the only all in one self-contained hydroponic grow box.  The picture always showed either kitchen herbs or some type of house plant inside the box.  As if anyone would grow anything in this box but marijuana.  The Phototron was to “pay for itself harvest after harvest.”  As I recall, this thing had a hefty price tag. Somewhere in the neighborhood of around $500.  That’s a lot of basil one would have to grow in order to make up for the cost of a Phototron.

The “Phototron”

Marijuana Grow Operation
The Stack!t advertises as a way to dry all your “garden herbs” at once in this giant drying rack. At over six feet tall, one could put a lot of herb in this thing.  Although, I would advise against this little number.  Decades ago, I went over to a friend’s house and discovered a small-scale marijuana grow operation.  The smell of weed upon walking in the door was overpowering. Just what you want when the police show up trying to chase off a burglar.  Thankfully, this friend later went through a divorce and subsequently got rid of all of his marijuana grow operation.  That little project was a felony waiting to happen.  I have personally witnessed small hobbies like this turn into a major problem for clients.  In Lubbock, it was always rumored that law enforcement had a plane that could detect infrared heat signatures.  As everyone knows, these devices do exist.  If you have a grow operation in your house, the heat signature is going to light up your house like a Christmas tree.  Remember THC and marijuana are still illegal in Texas.  If you get caught with a grow operation, it is going to result in a hefty charge.  In a raid, I have seen law enforcement pull up the plant and weigh the whole thing; roots, dirt, and all which tends to be heavy.  The higher the weight the higher the penalty.

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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?

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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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THC infused products

The next time you’re sore from overdoing it at the gym think about taking an Epsom salts bath. Better yet, take an Epsom salts bath with some weed in it. These days it seems that weed makes everything work a little bit better. Right? Or at least that is what we are hearing from the states that have legalized marijuana. Sadly, Texas isn’t one of those states. The bad part about cannabis being legal in some states and not in others is that when people get caught in possession of these products in a state like Texas, they are in big trouble. How big is the trouble? Well, it depends on the weight. But the trouble is usually Hulk Hogan big. These THC infused products are coming in at third-degree felonies and up. In fact, the majority of cases I see are usually second-degree felonies. How bad is a second-degree felony in Texas? Well, it could land you in the big house, that’s right, the Texas Department of Criminal Justice Institutional Division for up to twenty years. To a young adult with no criminal history that can cause a person to soil their armor.

So, what about marijuana laced bath product called Soak? Well, it is one of the many products that are being churned out in the fast-growing medical marijuana market currently sweeping the states. Soak is the brainchild of Whoopi Goldberg and another stoner that has a reputation for making wicked edibles. Soak is promoted as helping women with PMS and menstrual relief. So just what is Epsom salts? Well, it is not the salt that you use on your food. Epsom is a place in England that the salt is named after. If you take this salt orally you will tend to fill your pants. Yeah, and not in a good way. The product is composed of magnesium sulfate which is a natural laxative. According to stoner science, your body needs both magnesium and sulfate. According to tree huggers, these two minerals have strong detoxifying and natural healing properties. And we all know that cannabis offers even more healing properties. Whoa, dude I can feel my body shedding the toxins. The theory goes that that when you soak in this stuff it magically gets into your body through your skin. Sure, that makes sense. Brings to mind that I was so wasted last night from my medicinal beer bath, but I digress. Yeah, so the absorbing through the skin theory has never been proven. But it sounds cool, right? Soaking in hot water usually makes you feel pretty good anyway. If you really want to try it, you can pick up some plain old Epsom salts at the grocery store for next to nothing. Add the weed however you like. But if you are dead set in giving Whoopi Goldberg your money then you should pick up this product.

The bottom line is, every week I meet new clients that have been arrested for possession of products containing THC or some other cannabis derivative. Over the next few weeks I will discuss a few of these products I have stumbled upon and hopefully help someone avoid jail time over something that they had no idea would have such serious consequences. So, if you or a loved one has been busted for any type of THC product, edible, or vape pen give me a call. Don’t let a stupid mistake ruin your life with a criminal record. You need an experienced criminal defense attorney with a track record of defending marijuana, THC, and other cannabis related cases. Call us today.

Contact Information
333 Simonton St #202
Conroe, TX 77301
Phone: (936) 228-6155Fax: (936) 398-6898

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