Conroe Criminal Lawyer Blog

Self-Defense and Texas Gun Law

October 8, 2017 | by M. Neufeld Law

Self-defense; assault; aggravated assault, criminal defense lawyer
Last week the Court of Criminal Appeals of Texas gave us some insight into the current state of guns laws in Texas and the availability of a self-defense claim handing out a decision entitled State of Texas v. Gamino. In August of 2013, Mr. Gamino and his girlfriend were leaving a bar at closing time in downtown Fort Worth, Texas. While walking back to Gamino’s truck they passed a group of three men sitting on a street corner. Gamino heard one of the three, who we will refer to as Khan, quote a line from a movie that was extremely lewd. Gamino thought the comment was meant for his girlfriend and confronted Khan. Khan testified at trial that he was not talking to Gamino or his girlfriend. Khan stated that Gamino said, “I’ve got something for you.” Khan stated that Gamino then walked to his truck and pulled out a gun which he then pointed at the three men. Two off duty police officers were working security in the area. One of the officers stated that although the area was noisy and people were laughing and talking, he heard someone arguing over the others and someone yelled, “Yeah, well I got something for you.” The officers saw Gamino retrieve something from his truck and assumed that he was retrieving a weapon. One officer named Flores saw Gamino with a pistol in his hand. Officer Flores drew his gun as he saw Gamino raise his gun. The officer saw several people backing up and saw Khan and his friends putting their hands in the air. Officer Flores told Gamino to drop the gun and he immediately complied by lowering the weapon and was not aggressive in response to the command. Gamino put the gun down on the driver’s side seat of the pickup truck. Khan was arrested for public intoxication and Gamino was subsequently arrested for aggravated assault with a deadly weapon. It should be noted that Khan was very unruly and was on the verge of being tased by the officers.

Upon arrest Officer Flores recalled Gamino had said about Khan, “Well, he was talking shit.” Flores testified that “talking shit” to someone does not give the other person the right to pull a gun. Flores opined that any person including a police officer is only allowed to use deadly force when the other person presents a threat of either deadly force or serious bodily injury. When cross examined by the defense, Officer Flores stated that whether a person had a right to protect himself depended on the situation.

Gamino’s girlfriend testified that she had known Gamino for eight years. She said that after coming back from overseas Gamino had two back surgeries and two failed knees and some shoulder problems. Was Gamino a veteran? We don’t know because it is not mentioned in the case discussion. Gamino was parked in a handicapped spot and was disabled. The girlfriend said that she and Gamino had gone out to dinner with friends and then later to a club. When leaving the club, the three men including Khan confronted them and one man threatened her. We presume this man was Khan. She stated that she feared for her life.

A View to a Wrongful Arrest

September 21, 2017 | by M. Neufeld Law

Montgomery County Lawyer
In the James Bond as 007 movie A View to a Kill, Christopher Walken plays the evil villain Max Zorin who poses as a wealthy race horse breeder. Playing the part of James Bond, Roger Moore drops into Zorin’s palatial estate under the guise of securing a horse for breeding. Bond’s disguise is that of a James St. John Smythe. Smythe sits down across the desk from Zorin and his face is analyzed by a secret camera which discovers Smythe is really 007, licensed to kill. In 1986 this technology was pure science fiction; today facial recognition is science fact.

The new Apple Face ID program initiates every time you glance at your new IPhone X. The top of the line new iPhone contains an infra-red camera, a flood illuminator, a proximity sensor, an ambient light sensor, a microphone, a front camera, and a dot projector which all collect and store your personal information in your phone. The process begins with what they call a flood illuminator that lights up your face. Even in the dark. Then, there is an infra-red camera that takes an infra-red picture of your face. The camera dot projector then pushes out over 30,000 invisible IR dots that track every topographical feature of your face. Apple then pushes this data through what they call a neural network to create a mathematical model of your face. Didn’t the Cyberdyne Systems Model 101 Series 800 Terminator also have a neural network? I digress, the mathematical model is then checked against your model that has been stored in your phone to see if it is your face looking at your phone. If it’s a match it will unlock your phone. The phone even learns. If you wear glasses or grow a beard, the phone is still supposed to be able to recognize your face. Apple says that all this personal facial data collected is safely stored and encrypted in your device, not on the Apple cloud.

What could possibly go wrong with this technology? Remember the Madrid bombing case back in 2004? 191 people were killed and another 2000 were injured. After the bombing, FBI fingerprint examiners in Quantico, Virginia found a fingerprint on a bag of detonators at the scene of the Spanish bombings. The FBI searched for possible matches to a digital image of the fingerprint. Wait, what else creates digital images of your fingerprint… oh yes, your iPhone. The FBI supercomputer came up with fifteen matches, one of them being a thirty-seven-year-old American lawyer named Brandon Mayfield living in Oregon. Mayfield was arrested and imprisoned for two weeks while being held as a material witness to the Madrid bombings. The FBI eventually released him and gave a rare public apology but the damage was done.

A Reliable Test for Marijuana Related DWI is Unlikely

September 7, 2017 | by M. Neufeld Law

Marijuana DWI Attorney
NPR and the Wall Street Journal are some of the many news agencies featuring op-ed articles on the problem states and even countries are facing with impaired driving as it relates to marijuana. Although marijuana is still illegal in Texas at any level, just what constitutes whether or not an individual is impaired, and at what point is the person charged with driving while intoxicated? These are tough questions but as more states are legalizing cannabis in one form or another it is a problem that needs to be solved and yet may never happen.

In Texas, we have the legal level for alcohol set at a 0.08 BAC. So, what’s the problem with weed? Unlike alcohol, drugs like THC do not have a relationship between the levels of the drug in the tissues and what is considered impairment. To make matters worse, the method of ingestion can also vary the level of impairment. Our bodies process marijuana differently when we smoke the marijuana versus when the marijuana is eaten as in an edible product.

Some states have enacted a standard of five nanograms or delta-9-THC per milliliter of blood. Like the Texas law for alcohol in a DWI arrest, a court can find a person is impaired at the five nanogram level for marijuana just as in a 0.08 in an alcohol test.

Handcuffed Female DWI Suspect Flees in Trooper’s Car

July 31, 2017 | by M. Neufeld Law

Madison County DWI Lawyer
Madison County, Texas

A woman who was arrested for DWI in Madison County, Texas managed to elude police after the arrest. The woman was involved in a wreck on Old San Antonio road which runs from Midway along the Leon County border toward Brazos County along the northern Madison County Line. The woman was taken into custody and handcuffed. However, according to the Texas Department of Public Safety, the woman was able to move her handcuffs from her back to her front and then jump into the DPS Trooper’s patrol car to flee the scene. Luckily, a Madison County Sheriff’s Office deputy was on scene investigating the car crash. The DPS Trooper jumped into the sheriff’s vehicle and chased the woman down Old San Antonio Road. It appears the trooper fired at his own vehicle and was able to successfully disable the patrol vehicle.

Bridget Cast, 31 of Longview, Texas was arrested on charges of evading arrest, unauthorized use of a motor vehicle, and driving while intoxicated. Evading arrest or detention in Texas is when a person intentionally flees from a person he or she knows is a peace officer while the officer is attempting to lawfully arrest or detain him or her. Evading is a Class A misdemeanor unless the person has been previously convicted or the person uses a vehicle or watercraft to flee. If the person evades in a vehicle or watercraft and has not been previously convicted, then the offense becomes a state jail felony. If the person has been previously convicted and flees in a vehicle or watercraft the offense becomes a third-degree felony. Class A misdemeanors in Texas are punishable by up to a year in jail or a $4,000 fine or both. A state jail felony is punishable from 180 days to two years in state jail and or a $10,000 fine. A third-degree felony can land you from 2-10 years in the Texas Department of Criminal Justice Institutional Division and an additional $10,000 fine.

Texas Burglary Defined

July 1, 2017 | by M. Neufeld Law

Montgomery County Burlgary Attorney
While in court this week I had a person ask me about possible representation on a burglary charge. Upon speaking with this individual, I think he was confused by the definition of burglary in Texas. In addition, I don’t think he really grasped the true severity of this crime. While there are proposed changes to the definition of burglary in the Texas Penal Code going into effect this September, let’s look at the history of the offense of burglary up until now.

The truth of the matter is that aside from murder, burglary and robbery were once thought of as some of the most egregious of crimes in colonial America and England. In my opinion, not much has changed. Juries just don’t like burglars and robbers. Worse than thieves, burglars and robbers threaten our lives and well-being. Thieves are thought of as being sneaky trying to take your property without being detected. Burglars evoke an uneasy feeling of being violated. After all, what is more discomforting than the thought of someone rifling through your possessions in your own home uninvited? While robbers generally grab and go, burglars try to find an unoccupied home and take their time. The burglar can do much more damage and cost the victim more because they can take their time emptying the contents of your home.

The definition of burglary has changed over time and to get to the modern definition you need to look at the history of burglary. The crime has always reflected the breaking into the home or building of another and what flows from the damages caused to people and their property.

Your Expectation of Privacy in Your Dorm Room Against Search and Seizure

June 13, 2017 | by M. Neufeld Law

Criminal defense lawyer
What do you do when your dorm room is searched? I get this question quite a bit from students at Sam Houston State University. First, hire an experienced criminal defense attorney before you speak with anyone. The Sam Houston State faculty members and staff are very aggressive with what they consider to be drug and alcohol violations. Your academic career may be on the line. Don’t take chances. A new decision by the Court of Criminal Appeals of Texas has given us some guidance as to what the current state of the law is on dorm room searches and seizures.

In State of Texas v. Mikenzie Renee Rodriguez, resident assistants (RAs) conducted a dorm room search of Ms. Rodriguez’s personal space. The RAs found drugs and then called their director at the University who in turn called the police. The police responded, entered the dorm room, and seized the drugs. Ms. Rodriguez was then formally charged or indicted for possession of a controlled substance. Ms. Rodriguez was smart and hired an experienced criminal defense attorney who then filed a motion to suppress. The State of Texas appealed and the court of appeals affirmed. In their holding, the court of appeals held that there is no dorm room exception to the Fourth Amendment. The Court of Criminal Appeals of Texas subsequently granted review.

As is typical in most college dorm rooms, Ms. Rodriguez shared the room with another student. You may know that there is typically an agreement between you, the student, and the university which permits routine inspections by authorized university personnel. The agreement at this Texas university provided that, “duly authorized personnel of (said university) reserve the right to enter student rooms at any time for emergency purposes or for the purpose of maintenance, repair, and inspection for health, safety, or violation of university regulations. Here, the resident assistants were doing routine room checks for prohibited items such as microwave ovens, candles, and of course drugs and alcohol. While performing a room check on Ms. Rodriguez’s dorm room, no one was present. According to the RAs the first trunk that was checked had marijuana located inside. The RAs then contacted the resident director who instructed them to do a more thorough search of the dorm room. On the second search, the RAs found a matchbox with several tablets located inside that appeared to be ecstasy. The RAs also found a pipe located in a sock. The pill box and the pipe were laid on the floor and the RAs took pictures of the items. The university police were then contacted.

The Driving While High Conundrum

June 5, 2017 | by M. Neufeld Law

Montgomery County DWI Attorney
In the wake of more states legalizing the use and possession of marijuana people are scrambling to come up with a definition of what categorizes “driving while high.” No one favors driving under the influence of marijuana or any other mind-altering drug. The problem becomes what exactly is the definition of driving while high and how do we test for it?

In Texas, if you are pulled over by law enforcement due to some overt cause such as weaving or erratic driving, the officer is going to suspect something is up. Currently, law enforcement uses field sobriety tests. The problem is that the equipment law enforcement uses to check for alcohol like a breathalyzer does not work for impairment by other drugs, specifically not for marijuana or THC. The only real solution at this point is to take the driver to the police station or hospital and draw blood.

Once police have the blood they can send it off to a lab to test if the person has marijuana in their system. But there are no legal limits in most states including Texas. Some states have set a standard at the limit of .5 milligrams of THC (the intoxicating substance in marijuana) per milliliter of blood.

“Second Chance” DWI Bill Passes the Texas Senate

May 24, 2017 | by M. Neufeld Law

Texas DWI Lawyer
A new Texas bill that gives low level criminal offenders in Texas a second chance needs only to return to the house and then be signed by the governor. The Texas House of Representatives passed the “Second Chance” bill 140-0. Now, the bill has moved through the Texas Senate 28-3. The bill would allow criminal offenders without previous convictions to protect their criminal history from disclosure to the public.

In Texas, we have only two crimes in which you cannot receive a deferred sentence. Capital murder and driving while intoxicated. Therefore, you can be charged with an offense like sexual assault and still get a deferred sentence and keep it off your record. Not so with DWI. The law used to allow for a DWI to fall off your record after ten years. Not so anymore. So, say you pick up a DWI in college, what can you do to get it off your record? I get this question all the time. Until now, the answer was “nothing.” The client will say, but that happened twenty years ago, why is it still haunting me? Simple, up until recently a DWI conviction stayed on your record for life.

The new proposed section is 411.0736 which currently reads: “procedure for conviction; certain driving while intoxicated convictions. What the bill states is that if you complete your sentence, including any term of confinement imposed and the payment of all fines, costs, and restitution imposed, may petition the court that imposed the sentence for an order of non-disclosure of criminal history records information under this section if the person:

Impaired Driving or Impaired Lawmaking

May 16, 2017 | by M. Neufeld Law

Criminal Defense Attorney
The federal government knows what is best for you. Your government tries to control you by legislating penalties for not doing what Big Brother wants you to do. To limit your behavior, your government has levied steep taxes on items such as cigarettes, other tobacco products, even soft drinks. Currently, in Austin, your Texas legislators are trying to pass a law banning all text messaging while driving. And on the national level, the federal government is trying to take away your right to split a bottle of wine at dinner or to have a few beers at the ball game.

For years, the National Transportation Safety Board (NTSB) has pushed to lower the legal limit in drunk driving cases to .05. The current level in Texas is .08. If you have seen the movie “Sully,” you know the NTSB as the villains in the film calling for Captain Sullenberger’s head. Okay, that’s Hollywood, but the truth of the matter is that there just aren’t enough plane and train accidents to justify the budget of the NTSB. What does your government do when it tries to justify its existence? Your government uses fear tactics to make itself relevant. Bad things are happening, we must act. Wake up citizen, I’m your government, you need me, listen to me. These tactics are getting tiresome.

In Utah, state legislators are already pushing for the .05 limit. How does that affect us in Montgomery, Walker, Madison, and Leon County, Texas? Because Utah was the first state to lower the legal limit in drunk driving to .08. The old standard was .10. Truth be told, the field sobriety tests that law enforcement uses to arrest you in a DWI stop were based on the old .15 standard. Yep, the standard started at .15 for impairment. But why drop the limit? Simple, taxes. Your government wants more money. The penalties on a first DWI in Texas start at $1000 a year for three years and climb from there. But what say you, groups against drunk driving?

Assault Charge for Cutting the Cheese and Not Passing the Crackers

April 26, 2017 | by M. Neufeld Law

Conroe Assault Lawyer
An Australian tourist from Perth was charged last week with simple assault. The crime occurred at a strip club in Orlando, Florida. At the time the news story broke, the Australian was being held in jail while awaiting a bail hearing. The story involves this young man “assaulting” a female employee of the club (stripper) by blowing dirt in the dancer’s face while she was performing a lap dance. The dancer declined to be interviewed. Shocking, I know. However, the club’s assistant manager did decide to opine about this event. “We generally don’t get a lot of troublemakers at our club,” and he stressed that they had not had a patron assault a dancer in years. Whew, that’s good to know. “We don’t know what this Aussie guy’s problem was, but he won’t be welcome back here again.” Right, I’m sure there is a serious vetting procedure for screening drunks entering a strip club. I’d like to know who they’re turning away.

In Texas, the offense of assault is defined in the Penal Code as:

(a) A person commits an offense if the person: