Only Results Matter

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Under the affirmative defenses, you can YouTube/Napster/whatever music all day long apparently and be okay under this statute. Although, this is not advised.  You may also GPS your directions, report illegal activity or report an emergency, not by calling 911, but apparently texting or emailing them or another person.  You may also read a message you believe to be emergency, even though you would not know it was one until you read it, and can check the weather.  Thus, it stops far short of a “hands free rule” that has been adopted in many cities.

Further, this article preempts (or supersedes by superior power) the hands free laws in many jurisdictions under subsection (j).   The officer also may not take your phone unless authorized by other law, and under Federal constitutional law he is prohibited from searching your phone without your consent or a warrant.  Under subsection (e), the punishment is $25-99 for a first offense and $100-200 for a second offense under this statute.  Finally, under subsection (f), a person who causes death or serious bodily injury in the course of violating this section is guilty of a class A misdemeanor, with a punishment range of a year in the county jail and up to a $2,000 fine.  However, under those facts the prosecutor will likely charge his choice of felony aggravated assault with a deadly weapon, manslaughter, or criminally negligent homicide.

valentine-sms-1312776-300x200Six years ago, Texas Governor Rick Perry vetoed a ban on texting while driving as an affront to personal liberty.   This year, a Republican legislature and Republican governor said that personal liberty needs to be curtailed in the sake of their view of public safety.  As of September 1, 2017, texting and in the act driving in Texas is a traffic-ticket level, Class C offense.   Although the legislature created several exceptions that will be noted below, an officer who suspects that you are texting and driving, no matter what you are doing, will have a reasonable suspicion that you are violating the law and be able to pull you over for further investigation.

However, as worded, this does not simply ban driving and “texting.”   Under the new Section 545.4251(b) of the Texas Transportation Code, “[a]n operator commits an offense if the operator uses a portable wireless communication device to read, write, or send an electronic message while operating a motor vehicle unless the vehicle is stopped. To be prosecuted, the behavior must be committed in the presence of or within the view of a peace officer or established by other evidence.”  Thus, the statute bans reading, writing or sending electronic messages driving.

An electronic message is defined as “data that is read from or entered into a wireless communication device for the purpose of communicating with another person.” A wireless communication device is “a device that uses a commercial mobile service, as defined by 47 U.S.C. Section 332.”

Under Sec. 22.08 of the Penal Code, is it a crime to aid another in suicide.  That crime is defined as “(a)  A person commits an offense if, with intent to promote or assist the commission of suicide by another, he aids or attempts to aid the other to commit or attempt to commit suicide.  (b)  An offense under this section is a Class C misdemeanor unless the actor’s conduct causes suicide or attempted suicide that results in serious bodily injury, in which event the offense is a state jail felony.”   Thus, you could face 180 days to 2 years in jail for aiding in the suicide of another, even if they are unsuccessful but hurt themselves severely.  However, the Penal Code does not define “aiding” so a jury would have to use the common meaning of the word.

At common law, aiding and abbetting rendered a person guilty as a principal in the second degree.   It consisted in being present at the time and place, and doing some act to render aid to the actual perpetrator of the crime, though without taking a direct share in its commission.  Under this definition, Ms. Carter could and would not be guilty of assisting suicide.    Under Webster’s dictionary, aiding  is defined as 1) transitive verb:  to provide with what is useful or necessary in achieving an end aid a cause aid a friend, and 2) intransitive verb:  to give assistance research that aided in the discovery a new drug.  Here, Ms. Carter only gave mere words of encouragement.  She did not provide any pills or poison gas, or help at the scene or give him a gun.  It would be a stretch to say here words were useful or necessary in achieving the end.

Her words, as awful as they were, do not likely fit any Texas homicide or suicide statute.   She may fit under a harassment or stalking statute, but that is a story for a different day.suicidal-tendencies-1563013-300x198

pills-300x211This begs the question, how could encouragement alone ever be the but for of another person actually killing himself?   A jury would have to find that but for Ms. Carter’s conduct, the deceased would not have killed himself.  Then, the state would have to show also that the concurrent cause (method of death, other factors pushing suicide) were not sufficient on their own to cause death.  That would be a very large uphill battle for the prosecutor, because a person who kills themselves by definition caused their own death by some act.

But, couldn’t she be a party to a crime?   Section 7.02 of the code of the Penal Code defines the law of parties.   One might think this would apply, but it really doesn’t.  Under the law of parties “(a)  A person is criminally responsible for an offense committed by the conduct of another if:  (2)  acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.”  Thus, encouraging someone to kill ANOTHER could cause you to be a party to manslaughter or murder.  Killing oneself though, is not manslaughter or murder, because it is taking your own life, not the life of another.  As much as Texas has criminalized behavior, killing yourself is still not a crime.

All of this considered, I think a jury would have a very difficult time in Texas convicting a person of manslaughter for encouraging suicide, and futher think that the Courts of Appeals and Court of Criminal Appeals would have a very tough time sustaining it.   But, there is a lesser crime in Texas that could possibly stick.

suicide-225x300Emotions ran high last week as Michelle Carter was sentenced to prison under Massachusetts’ manslaughter law for encouraging her boyfriend to kill himself, which he did.  Under the apparent facts of the case, she overcame with words her boyfriend’s reluctance to kill himself due to her crazed need for attention.   What would happen if something similar happened in Texas?

Section 19.04 of the Texas Penal Code defines manslaughter as  “(a)  A person commits an offense if he recklessly causes the death of an individual.  So, one must recklessly cause the death of another.  But what is reckless?    Under section 6.03(c), “A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur.  The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.”  We normally liken recklessness to intentionally driving a car well above the speed limit through a neighborhood.  There is a known risk that something bad is likely to happen.  Thus, a person encouraging suicide could be convicted of manslaughter and face 2-20 in prison if she recklessly caused the death of an individual through suicide.    But how does encouraging simply alone CAUSE the death of another, when the individual’s own acts are what actually results in his death?  This is where the Texas law gets narrow on the issue.   Section 6.04 of the Penal Code defines causation as  “(a)  A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.”

ar15-rifle-2-1453209-300x81This section went all the way to the United States Supreme Court in Deal v. United States 113 S.Ct. 1993 (1993), in which Mr. Deal got a bad deal at court of 105 years in prison for possessing a firearm during five bank robberies.   The Court explored whether “second or subsequent offense” meant that he would have to be convicted by judgment of the first bank robbery on a date before the second or subsequent convictions.   The highest Court found that these offenses could be stacked, even if all convictions happened on one judgment and from one trial.   The 105 year sentence was affirmed.

The “stacking” provision comes next in the statute, where it says:

“(D) Notwithstanding any other provision of law— (i) a court shall not place on probation any person convicted of a violation of this subsection; and (ii) no term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment imposed on the person, including any term of imprisonment imposed for the crime of violence or drug trafficking crime during which the firearm was used, carried, or possessed.

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Thus, if you bring a firearm to a crime of violence or a drug trafficking crime, you will have a mandatory minimum of five years in prison.   If you brandish it, which means show it or make it visible to other people, it goes up to a mandatory minimum of seven years.   If the firearm is discharged one time, whether in the air or in the direction of a person, the minimum goes up to ten years.  If you bring a semi-automatic rifle or a shortened shotgun or rifle, the minimum is ten years.   Machine guns and guns with silencers are 30 year minimums.  That is a big jump.  However, things can get much, much worse on second and subsequent offenses.

The statute goes on to say:

“(C) In the case of a second or subsequent conviction under this subsection, the person shall—

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It is a very bad idea to possess a firearm while robbing a bank, committing any federal crime of violence, or trafficking drugs.   Congress has imposed stiff, sometimes unconsciounable penalties for doing so.   These include mandatory minimums that, with multiple offenses, could get your mandatory minimum sentence into centuries of years in the penitentiary.

18 U.S.C. section 924(c) (1) (A) states that

“(A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime—

lawbooks-1These policies have changed the dynamics of DWI defense in Grayson and adjoining counties, including Fannin.   When I started practicing, around half of DWI trials did not involve a chemical test, but now almost all of them do.   Back then we would mainly argue over the performance and validity of the field sobriety testing, which we still do, and the way a person looks on video.  But, the addition of chemical test evidence means that you now more than ever need a highly trained DWI lawyer like myself who has been thoroughly trained on all aspects of DWI defense.   There are more technical issues in a driving while intoxicated prosecution than most other cases, including most homicides.

You need to ask any attorney you interview with how well they have kept themselves updated and trained in DWI science.  I have learned that you really cannot do too much training on these cases.  The science is very broad and it is important to know every aspect one can to be competent to defend DWIs.   I have taken the same field sobriety training and update as the officers in the field, and have taken many DWI science courses to be able to successfully defend those accused of driving while intoxicated in Texas.   I want to be the best criminal defense lawyer I can be, and in Texas this means being the best DWI lawyer I can be too.  I look forward to discussing your case with you if you are involved in this unfortunate situation.

test-tubes-1412883-200x300While on this point, people often ask whether they should take a chemical test when arrested for driving while intoxicated.   Our general response as defense attorneys is NO, because there are a lot of things that can go wrong with chemical testing.   Both breath testing and blood testing are inexact sciences, and there are lots of human and mechanical errors that can happen to give you a much different result than your actual blood alcohol content.  The test is also completely in the hands of the State, and officers and the laboratory employees can tamper with or mishandle the evidence.  Also, if your blood alcohol content is above the legal DWI limit of .08, you are only producing evidence against yourself.

However, if you are sure your blood alcohol content is zero or close to it, it might be to your advantage to take such a test assuming everything goes right.  Also, there is a shorter ALR license suspension for a chemical test failure, as you are implied by law to consent to chemical testing upon request by law enforcement.    Additionally, Grayson County and neighboring counties have a “no refusal” policy for driving while intoxicated, and a warrant will almost always be applied for by the officer and obtained from a judge.   They will likely take you to the hospital and draw your blood with a warrant upon refusal.   So, the general answer is still that one should refuse a breath or blood test upon request as far as a DWI case is concerned, but they will normally get your blood through search warrant.   However, there are challenges to the search warrant that can be had if it is not proper.