January 9, 2014 by David Nachtigall Imagine a world where someone meets you out at a bar or other public place, snaps your photo, and instantly pulls up detailed information about your background in real-time on his or her cell phone. This may sound like science fiction or something in the distant future, but this…
January 16, 2014 by David Nachtigall Many believe that white collar crime is primarily a federal criminal offense. In reality, there are several state statutes under which people are commonly prosecuted for white collar crime in Houston. The Harris County District Attorney’s Office has an entire division devoted to the prosecution of state white collar crimes. As…
January 24, 2014 by David Nachtigall There are two basic forms of community supervision in Texas – probation (sometimes referred to as “straight” probation) and deferred adjudication. The typical conditions of straight probation and deferred adjudication are similar and may include fines, community services, anti-crime classes, and in some cases, mandatory jail time. The main…
January 31, 2014 by David Nachtigall I came across an article this week, which served as a sad reminder of the state of U.S. drug policy and mandatory minimums. In this case, an individual was sentenced to life without parole for possession of a trace amount of cocaine because of a “three strikes” law. Texas has its…
January 1, 2014 by David Nachtigall For years, Harris County has been performing mandatory blood draws on drivers suspected of DWI who refuse to agree to a breath test. Termed “no refusal”, the policy was initially limited to holidays and times of increased risk of DWI, but has more recently been expanded to effectively include…
March 16, 2014 by David Nachtigall For the past several days, the media has reported on the tragic deaths of two pedestrians and the injury of 23 others at this year’s SXSW festival in Austin, Texas. According to the reports, Rashad Owens drove a vehicle into a crowd of people while attempting to evade police….
March 12, 2014 by David Nachtigall Defending a person accused of domestic violence in Texas is serious business. The Texas legislature has broadly defined family violence and imposes severe consequences for those convicted of family violence offenses. A conviction for a family violence has effects that continue long beyond the termination of the case. In…
February 23, 2014 by David Nachtigall I recently provided legal commentary to a publication called Military Spouse Magazine about a case involving a Fort Bliss solider named Corey Moss who allegedly broke into a home and stabbed the pregnant wife of another Fort Bliss Soldier while she was chatting with her husband over the Internet….
February 11, 2014 by David Nachtigall There are two basic types of protective orders issued in Texas. The first is a magistrate’s order of emergency protection, commonly referred to as a “MOEP”. This is an order that is issued by a criminal court upon a person’s arrest for a family violence or stalking offense. The…
March 30, 2014 David Nachtigall Successfully defending a drug possession case in Texas is often a mixture of attacking the government’s proof of possession (the facts) and understanding search and seizure (the law). The two most common issues in a drug possession case are (1) whether the government can prove that a person actually “possessed”…
April 10, 2014 by David Nachtigall An expunction of criminal records permits you, with some exceptions, to legally “lie” about whether you were ever arrested for or charged with a crime. With limited exceptions, the records are destroyed and inaccessible even to law enforcement. I’ve come across people who were charged and pled guilty to…
May 1, 2014 by David Nachtigall A petition for nondisclosure is a procedural mechanism for having a criminal record sealed in Texas. Petitions for nondisclosure are applicable only in cases in which a person was placed on deferred adjudication and successfully completed the period of community supervision. Petitions for nondisclosure are filed in the court…
Deferred adjudication is a form of community supervision (like probation) that a judge may impose after a plea of guilty or no contest. A person who is placed on deferred adjudication is generally subject to terms and conditions including monthly reporting to a probation officer, random drug testing, and community service. Terms of deferred adjudication…
There are two general categories of crimes in the Texas legal system – misdemeanors and felonies. Whether a crime is misdemeanor or felony depends upon the offense conduct. The primary differences between a felony and a misdemeanor are the range of punishment, the consequences of conviction, and the ability to have the charge cleared or…
In Texas, prosecutors are granted wide discretion to make plea bargains in cases. This includes offering a sentence in the range of punishment, reducing a charge, or dismissing a case in exchange for certain action on the defendant’s behalf. If a person wishes to plead guilty and does not want to risk allowing a judge…
There are two major criminal justice systems in the United States that can lead to a person being imprisoned – the state criminal justice system and the federal system. Being charged with a state crime in Texas means that a defendant will most likely be prosecuted for a violation of the Texas Penal Code. In…
Individuals charged with federal crimes are entitled to a hearing to determine whether they will be detained or afforded bail while awaiting trial in a federal criminal case. The four possibilities with respect to release for those charged with federal crimes are that the person is: 1. released on personal recognizance or upon execution of an unsecured…
A bail bond is essentially something offered by a defendant to ensure that he or she appears in court while a case is pending. In Texas, there are several types of bail bonds. The general idea behind a bond is that if someone has something to lose by not appearing in court (aside from being…
Attending a criminal court proceeding can be daunting for those unfamiliar with the system. While procedures in state court vary from county to county, there are certain universal procedures in all courtrooms and some required by Texas law. Knowledge of some basic courtroom procedures may help alleviate some of the apprehension associated with attending criminal…
Whether to have a trial on a criminal case depends on many factors. The determination can only be made after a thorough examination of all of the facts and circumstances of a particular case. However, there are certain considerations in every case that must be taken into account when deciding whether to take a case…
If you are searching for a criminal defense attorney on the Internet, chances are that you have either never hired an attorney or have only hired an attorney once or twice in the past. When you search for a criminal attorney online, you quickly find that there is a dizzying number of options. If you…
This four-part post discusses when a statement may be used against a defendant in a criminal trial in Texas. In Texas, a defendant’s statement is generally not admissible against the defendant if he or she is subjected to custodial interrogation and law enforcement has not complied with the requirements of Miranda v. Arizona and Article 38.22 of…
A person placed on community supervision is subject to certain terms and conditions ordered by the court. The two forms of community supervision in Texas are probation (often referred to as “straight probation”) and deferred adjudication. Both are similar in that they are both a period of time during which a person must follow certain…
Most criminal jury trials in Texas proceed through a standard series of events. The order of trial is governed generally by the Texas Code of Criminal Procedure though some aspects of the way a trial is conducted varies by jurisdiction and by individual or. Part two of this blog post discusses the presentation of evidence,…
Most criminal jury trials in Texas proceed through a standard series of events. The order of trial is governed generally by the Texas Code of Criminal Procedure though some aspects of the way a trial is conducted varies by jurisdiction and by individual court. Part one of this blog post discusses voir dire, arraignment, pretrial…
18 U.S. Code Sec. 924(e), more commonly known as the Armed Career Criminal Act (“ACCA”) is a federal criminal enhancement provision that institutes a mandatory 15-year minimum for individuals found guilty of certain firearms offenses under federal law. Underlying Offense The ACCA applies to individuals convicted of various federal firearms offenses. The most common underlying…
This four-part post discusses when a statement may be used against a defendant in a criminal trial in Texas. Read Part 1 here. Read Part 2 here. Read Part 3 here. If the statement is an oral statement, it must be recorded. The warnings above must be included as part of the recording. Sec. 3. (a) No oral…
This four-part post discusses when a statement may be used against a defendant in a criminal trial in Texas. Read Part 1 here. Read Part 2 here. Why does it matter whether a person is in custody? If a person is in custody in Texas, then law enforcement is required to comply with both Miranda and article…
This four-part post discusses when a statement may be used against a defendant in a criminal trial in Texas. Read Part 1 here. In Herrera v. State, 241 S.W.3d 520, 525-27 (Tex. Crim. App. 2007), the Texas Court of Criminal Appeals held the following with regard to “custody”: “When considering “custody” for Miranda purposes, we apply a “reasonable person”…
The theft of trade secrets can be punished by both the criminal and civil justice systems in Texas. Whether a criminal prosecution, civil suit, or both is appropriate depends upon the quality and quantity of the evidence, the amount of the loss, and the desires of the harmed party. Criminal Proceedings for Theft of Trade…
Sex Offender Registration Under Texas Law (Part 2 of 2) What are the Registration Requirements for Sex Offenders? Chapter 62 of the Texas CCP sets out the many requirements for maintaining registered sex offender status. Among other requirements, a sex offender must abide by certain information reporting requirements, notify law enforcement of any changes in…
What is Sex Offender Registration in Texas? Chapter 62 of the Texas Code of Criminal Procedure governs sex offender registration requirements in Texas. People who are convicted of or placed on deferred adjudication for certain sexual offenses are required to register from a period of ten years to life. Information on registered sex offenders is…
Law enforcement searches fall into two broad categories – those conducted incident to a warrant and those conducted without a warrant. The law favors searches made pursuant to a warrant as, assuming the validity of the warrant, a determination has already been made by a neutral and detached magistrate that there is probable cause for…
Search Incident to Arrest A person and certain property of a person who is arrested may be searched if that person is lawfully arrested. The search may be conducted before, during, or after the arrest, and includes items within a person’s “wingspan”. See Chimel v. California, 395 U.S. 752; (1969); New York v. Belton, 453 U.S. 454…
Exigent Circumstances The exigent circumstances doctrine is most commonly used to justify warrantless entries into homes. Courts are more willing to scrutinize the justification for a warrantless entry into the home because of the degree of the invasion of privacy. A search based upon exigent circumstances requires both probable and an emergency including: hot pursuit;…
A petition for nondisclosure is the procedure through which a person can have certain aspects of his or her criminal record shielded from public view. As of September 15, 2015, the law related to petitions for nondisclosure in Texas has changed. Importantly, the changes do not apply to offenses that occurred before September 15, 2015. Filing Fee…
Part I of this post discussed the new automatic nondisclosure of certain misdemeanors. Another significant change in Texas nondisclosure law is eligibility for nondisclosure of probation in some instances. Nondisclosure of Probation in Texas In the past, only successfully completed terms of deferred adjudication were eligible for nondisclosure. Under the new law, probation (which is…
Part I of this post discussed the new automatic nondisclosure of certain misdemeanors. Part II of this post discussed petitions for nondisclosure of misdemeanor probation. As of September 15, 2015, Texas law now permits courts to grant nondisclosure of some misdemeanors for which a defendant received a jail sentence. Nondisclosure of Convictions with Jail Sentences…
Part I of this post discussed the new automatic nondisclosure of certain misdemeanors. Part II of this post discussed petitions for nondisclosure of misdemeanor probation. Part III of this post discussed petitions for nondisclosure of misdemeanor convictions with jail sentences. In addition to these forms of nondisclosure, Texas law still permits courts to grant nondisclosure…
As a criminal defense lawyer and former prosecutor, I have been asked by a number of friends and civil law colleagues about my thoughts on the Netflix series, Making a Murderer. Disclaimer: this is an editorial – these are my opinions with which you may agree or disagree. Though I have years of experience in…
What is the Harris County District Attorney’s Office “First Chance” Marijuana Program? No doubt spurred by increasing state and national efforts toward legalization of marijuana, Harris County has implemented a policy of quasi-decriminalization of possession of small amounts of marijuana for first-time offenders. The program, termed “First Chance”, allows a person to avoid being charged…
As discussed in Part I of this post, the felony controlled substance pretrial intervention program was introduced in 2016 to provide certain offenders charged with personal use amounts of felony controlled substances who meet certain criteria the opportunity to avoid a criminal record. What are the Requirements for the Felony Controlled Substance Pretrial Intervention Program?…
The Harris County District Attorney’s Office has recently implemented new programs designed to help first time drug offenders avoid criminal records. The two pretrial Diversion / pretrial Intervention programs are available to those charged with possessing small amounts of felony controlled substances (cocaine, amphetamines, etc.) and those charged with possessing personal use amounts of marijuana…
This is part II of a IV-part series discussing various aspects of the United States Sentencing Guidelines. (How Are Federal Sentencing Guidelines Calculated)? (Continued) Adjustments Once the offense level is determined based upon the offense conduct, “adjustments” may be applied pursuant to Chapter 3 of the Sentencing Guidelines. These adjustments have to do with circumstances…
This is part I of a IV-part series discussing various aspects of the United States Sentencing Guidelines. What are the Sentencing Guidelines? The United States Sentencing Guidelines (“Guidelines”) are a series of rules promulgated by the U.S. Sentencing Commission. At their core, they are a method of assigning points to offenses and to a defendant’s…
Individuals charged with federal crimes are entitled to a hearing to determine whether they will be detained or afforded bail while awaiting trial in a federal criminal case. The four possibilities with respect to release for those charged with federal crimes are that the person is: 1. released on personal recognizance or upon execution of…
Deferred adjudication is a form of community supervision (like probation) that a judge may impose after a plea of guilty or no contest. A person who is placed on deferred adjudication is generally subject to terms and conditions including monthly reporting to a probation officer, random drug testing, and community service. Terms of deferred adjudication…