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How to avoid the Eighth Amendment when arguing that a sentence is grossly disproportionate
The Texas legislature has given judges and juries broad discretion in assessing punishment, especially for 1st Degree felonies. If you’re convicted of a 1st-degree crime and have no criminal history or enhanceable aspects to the offense, you face anywhere from 5 to 99 years in prison.
This can lead to unfair discrepancies in sentencing for defendants that commit the same kinds of crimes. Sometimes the personality and history of the person on the bench ends up being more important than the facts of the case (e.g. is the judge a “hard nosed” ex-prosecutor, a former civil attorney with sympathies for those with substance abuse problems, or a women’s advocate who absolutely hates family violence cases). And, if you’re going to the jury for punishment, it’s basically a complete wildcard.
Texas repeat offender statutes complicate matters. If you’ve been consecutively convicted of two prior felonies, the prosecutor can indict you as a habitual offender. Upon conviction, your minimum prison sentence is 25 years.
False Promises and Parole Boards
Texas parole blogs often warn inmates that they should never waive a right to a revocation hearing. This is good advice, but unfortunately the intended audience is usually already incarcerated and doesn’t get to hear it.
So this entry is for those individuals newly released to parole who are currently in good standing with their PO but who need to know the consequences of waiving their right to a revocation hearing. Rather than dryly outline the procedures — blue warrant, arrest, meeting with PO, preliminary hearing, revocation hearing — I think an illustrative PO tactic is better. At least it gives you some strategic insight.
There comes a point in any revocation when the PO attempts to “sell” the parolee on waiving his rights to a revocation hearing. Usually, this occurs with the two actors — PO and parolee — facing each other, with wire mesh or safety glass between them. Often each person will have a plastic jail phone receiver pressed up against his or her ear.
After conviction, what can you appeal?
It seems like a simple question. Most of my clients believe that when you appeal a conviction you get to let the appellate court know all the mistakes that were made during trial. Unfortunately, it’s not that simple.
There are two factors that limit the complaints (or points of error) that you can raise on appeal.
The first limiting factor is the concept of preservation. Although there are some exceptions, for the most part you only get raise issues on appeal that were preserved during the trial. The usual steps to preservation are: 1) make an objection; 2) make sure the trial court rules on your objection; and 3) if you are trying to admit something into evidence, make sure you make a record of what you wouldhave admitted if allowed. If these steps are not taken, the appellate court will not be able to review your complaint, even if it was an otherwise valid legal issue.
The second limiting factor is the record itself. Sometimes bad things happen at trial, but no one records it. A juror may act inappropriately. A key witness may say something out in the hallway that contradicts her testimony under oath. A prosecutor may hide evidence. A defense attorney may provide his client erroneous advice. As serious as the above examples are, if they are not pointed out on the record, the appellate court can’t do anything about them, at least not while the case is on direct appeal.
Timing is everything: “final convictions” and Article 11.07 writs
New clients often ask me when they can apply for a writ of habeas corpus under Article 11.07. Unless they’ve been prison for awhile, my normal answer is, “Not yet.”
Article 11.07 refers to a section of the Texas Code of Criminal Procedure that establishes the procedures for filing an application for writ of habeas corpus afterbeing convicted of a felony offense. This may sound straight forward, but there are some procedural rules that limit when such an application can be filed.
First, your conviction has to be final. Or to use a technical phrase, “mandate” has to have issued. Mandate only issues when you have exhausted the direct appeals process. It’s probably easier to explain this with an example.
Let’s say a family member is convicted of felony aggravated assault (I’ll call this guy Paul). Once Paul finds out that he had been found guilty and is sentenced to prison, he has 30 days to file a notice of appeal (if Paul gets probation instead of prison, he can’t file a writ under Section 11.07, but must file under Section 11.072, a statute I will cover in a separate post). Filing the notice of appeal gives the intermediate appellate court jurisdiction over the case. If Paul doesn’t file the notice within 30 days of being sentenced, he loses the ability to file a direct appeal (unless an attorney sweeps in and manages to get a brief time extension), and mandate will issue. Paul can then file a writ of habeas corpus application under Section 11.07.
Marijuana Edibles in Texas: Worth the Risk?
As marijuana becomes legal in more States, the States where is it still illegal (Texas) are happily continuing to arrest and prosecute those that possess it. As you come back from Colorado with your legally purchased marijuana, you should know that not all marijuana is treated the same in Texas.
Possession of marijuana in its plant form will most likely be a misdemeanor – you have to work to get to a felony – we are talking over 4oz. If you are interested you can look at the statute here: Health and Safety Code section 481.121. This visual guide found on Leafly.com gives you an idea of how much marijuana you can carry and still be in the misdemeanor range.
Working and Being on Probation in Montgomery County Gets Harder
If you are on a felony probation, deferred adjudication, or just on conditions of bond for a pending felony case in Montgomery County, your life has gotten a lot harder this year.
Starting in January, the Montgomery County Probation Office began implementing a new randomized drug testing procedure. The policy requires all persons accused of a felony or who have pled to some type of felony probation or deferred adjudicationto call the office every day and see if they have to submit to a drug test.
Here’s how it works. First, the probation department issues you a PIN number. It is then your responsibility to call the office every morning, enter your PIN number, and learn from the automated system if you have to take a urinalysis that day. You then have until 5:00 p.m. to travel to the probation office had provide a sample for testing.
Sounds like a hassle, right? But you’re probably thinking it’s manageable.
This is the attitude of the adult probation office, which has articulated it’s purpose for the randomized procedure as a way to actively fight addiction while making the system fair and reasonable. They figure that it’s reasonable to give someone until the end of the day to come in and submit a sample.
New Rules for Conditions of Bond in Montgomery County
Facing felony criminal charges in Montgomery County has been increasingly difficult for defendants who have to deal with both the underlying charges and onerous conditions of bond.
But things have recently gotten worse.
The Montgomery County Adult Probation Office has decided to implement a new random drug and alcohol test policy. Under this new policy (it’s been around for a few months now), Defendants must call in to the probation department EVERY DAY and enter in a unique pin number. An automated system will then inform them whether or not they have to submit to a urine analysis that day. Because the system is randomized, you could be tested once a week, twice a week, or have no tests for two months. There’s no way to predict the frequency of tests for any one client.
The probation department loves the new policy, which is no surprise asit is easier for them at administer. Because the system is automated and random, busy probation officers no longer have to manage and calendar drug tests.
Section 12.44(a) and (b) for Dummies
For accused persons facing prosecution for certain low-level felony offenses,Texas Penal Code Section 12.44 is like the Holy Grail of plea deals. Clients continuously ask “what is a 12.44(a)” . . . “can I get a 12.44(a)” . . . and “how does 12.44(a) work?” They ask the same questions about Section 12.44(b).
So here’s the basics (and as always, if you have a particular legal question about YOUR CASE, talk to your lawyer . . . this post is for general info and should not be considered legal advice):
Section 12.44 of the Penal Code allows the trial court to either send you to your local county jail to serve time on a State Jail Felony Conviction (that’s Section 12.44(a)), or, with permission from the prosecutor, reduce your State Jail felony case to a misdemeanor conviction and have you serve your time in a county jail facility (that’s Section 12.44(b)).
There are big potential advantages to pleading your State Jail felony offense to a misdemeanor. If you plead in accordance with 12.44(b), the offense cannot be used later for purposes of enhancing another felony charge. You also avoid a felony conviction on your record. Under both 12.44(a) and 12.44(b), you get to serve out your time at a county jail facility and can benefit from whatever the county’s time credit policy is. For example, in Montgomery County, the sheriff often authorizes inmates to receive 2 days’ credit for each day they are incarcerated. So you can get your sentence over with relatively quickly (unlike the day-for-day credit you receive at an actual State Jail facility).
3 big differences between Probation and Deferred Adjudication
Many people come into my office wanting to know if they can “go on probation” to avoid jail or prison time.
The first thing I tell them is stop talking about pleading guilty – it’s always the State’s burden to prove you did the crime, and sometimes the best option is to try and beat the case, either through pretrial negotiations or jury trial.
But when a plea is in a client’s best interest, I always take the time to explain that there is more than one option to avoid jail or prison. In Texas a judgecan defer a finding of “guilty” and place youon “deferred adjudication,” or you can be found guilty by a judge or jury and be placed on what is called “straight probation.” In this post I try to outline the major differences between these two types of dispositions. As always, your situation is fact-specific. Don’t mistake this general primer as legal advice, and make sure to talk with your attorney before making any decisions related to your case.
Five Criminal Justice Myths You Should Know
Most people don’t expect to get arrested. When it happens, a range of emotions can hit you, from anger, to disbelief, to pure panic. But after the initial shock wears off, you’ll start to think about the best way to protect yourself. In trying to figure out how to react to your new reality, you probably won’t be relying on direct experience (unless you’re used to getting arrested all the time!). Instead, you’ll rely on what you consider common knowledge of how the criminal justice system works. But be careful, because many of the “truths” about how the system works are in fact nothing but myths. Here’s five “Criminal Justice Myths” that you should stop believing in:
1. If the Officer doesn’t read my Miranda Rights, my case will get dismissed.
“Mirands Warnings” are a list of rights that you’ve heard on television a million times: the right to remain silent, the right to talk to an attorney, and the right to know that anything you say can and will be used against you in Court. I’m sure you have a favorite Miranda scene in a Movie. Mine is from the “Dragnet” remake with Tom Hanks and Dan Aykroyd.
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From our office in Conroe, Texas, we provide representation for clients in communities throughout Montgomery County, including Magnolia, Pinehurst, Montgomery, Panorama Village, Willis, Splendora, Patton Village, New Caney, Porter, and The Woodlands, as well as other areas surrounding Houston, including Spring, Katy Richmond, Friendswood, Galveston, Harris County, Fort Bend County, and Galveston County. We also represent clients throughout the state of Texas, including San Antonio and Bexar County, San Marcos and Hays County, Austin and Travis County, Georgetown and Williamson County, Dallas and Dallas County, Waco, El Paso, Corpus Christi, Abilene, Temple-Killeen, Forth Worth, Midland-Odessa, Lubbock, Tyler, and Tarrant County, and Denton and Denton County.
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