Sherman & Plano, TX Criminal Defense Lawyer Blog

December 30, 2012

No Isn’t The Only Thing that Means “NO.” – Texas Sexual Assault Law – Sherman & Plano, TX Criminal Defense Lawyer (Part 2)

The issue of intoxication and consent came up recently in the Fort Worth Court of Appeals in Anderson v. State, 2012 WL 1222148. In Anderson, two men met two ladies at a bar during a night of drinking. One young lady ended up somehow at the residence of one of the men, along with her friend who appeared to have gone consensually. Anderson claimed they had consensual intercourse, but his accuser said she woke up during unconsensual intercourse and tried to fight him off. The end result was that, “as authorized by the indictment, the jury convicted Anderson of intentionally or knowingly causing the penetration of Miller’s female sexual organ … while knowing that he did so without her consent and that she was either unconscious or physically unable to resist or that she did not consent and was unaware that the sexual assault was occurring. (citations omitted)” The court of appeals noted the established law that “[w]hen assent in fact has not been given, and the actor knows that the victim’s physical impairment is such that resistance is not reasonably to be expected, sexual intercourse is ‘without consent’ under the sexual assault statute. Elliott v. State, 858 S.W.2d 478, 485 (Tex.Crim.App.), cert. denied, 510 U.S. 997, 114 S.Ct. 563, 126 L.Ed.2d 463 (1993).”

We don’t know what happened in the hotel room in San Antonio between these two football players and the alleged victim. What we do know is that just because a person is too intoxicated to resist a sexual encounter, that is not consent to sexual activity. Not only is unconsciousness not consent, being intoxicated to the point of being unaware that the sexual assault is occurring is not consent.

If you or someone you know is being investigated or prosecuted for a crime, call Board Certified Criminal Law Specialist Micah Belden at 903-744-4252.

December 29, 2012

No Isn’t The Only Thing that Means “NO.” – Texas Sexual Assault Law – Sherman & Plano, TX Criminal Defense Lawyer (Part 1)

by Micah Belden

On a night before the Oregon State Beavers played the University of Texas in the Alamo Bowl, two longhorn players went out drinking. At a bar, they met a young woman who eventually invited them back to her hotel room. That was either a sign that the young lady was interested in a night of romance, or a very bad judgment call by a likely impaired young woman who did not realize what she was doing. Early the next morning, she reported to the San Antonio police that she had been sexually assaulted, and did have bruising on her body. Some say the scenario appears to be an obvious “set up” job on athletes, perhaps another Duke University lacrosse-team episode, while others are outraged that an invitation to one’s hotel room could so easily be taken as a sign of consent.

What the case probably comes down to, however, is Texas “consent” law. That is, we all know that an adult has to consent to sexual activity for that activity to be valid. In a night filled with intoxication, young hormones, college athletics and things that come with it, things may appear complicated. While it is always ideal to get a verbal, express consent to sexual activity, the case law has defined what is NOT consent to sexual activity, and it is not limited to the word “no.”

If you or someone you know is being investigated or prosecuted for a crime, call Board Certified Criminal Law Specialist Micah Belden at 903-744-4252.

October 1, 2012

Character Evidence – the Trayvon Martin Case – Sherman & Plano, TX Criminal Defense Lawyer (Part 3)

by Micah Belden

The Texas Rules of Evidence are modeled after the Federal Rules, and Rule 404 is the main rule governing character evidence. 404(a) outlaws evidence of character simply to prove “conformity therewith on a particular occasion,” I.e. you can’t use character evidence to say simply “he did it before, so he must have done it now.” You can’t generally use a person’s history of theft to prove that he committed a theft on a particular occasion, or evidence that he lied before to prove that he lied on a particular occasion. However, under 404(a) a defendant is allowed to offer evidence of his “pertinent character trait.” I.e., Zimmerman could offer into evidence that he is a peaceful person. At that time, he has opened the door to character evidence that he is aggressive or violent and has so acted on prior occasions. 404(a)(2) also specifically allows evidence of the character of the victim in a self-defense case.

Florida’s rule of evidence 90.404(b) similarly allows “(1) evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the trait; or (2) Evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the aggressor.” It is the simple fact of most assault cases, including sexual assault cases, that character evidence is extremely important. Most assault cases are of the “he-said/she-said” variety, in which evidence of aggression/violence regarding one party is gold for the other. The “Rape shield,” Federal and Texas Rule 412, which most states have adopted, has severely limited sexual character evidence in rape cases, but in homicide or run-of-the-mill assault cases, the door is still wide open for evidence bordering “trial by ambush.” The back-and-forth character nature of the Trayvon Martin case goes on in courthouses all over America on a weekly or monthly basis.

If you or someone you know is being investigated or prosecuted for a crime, call Board Certified Criminal Law Specialist Micah Belden at 903-744-4252.

September 15, 2012

Character Evidence, The Trayvon Martin Case – Sherman & Plano, TX Criminal Defense Lawyer (Part 2)

by Micah Belden

Character evidence is very important in a criminal case. We want the jury to like our client, and to dislike the person accusing us of an alleged crime or the witness to an alleged crime. However, the rules of evidence generally frown on “trial by ambush,” so there are limits to what one can present. In Trayvon Martin’s case, the Zimmerman team wants the deceased’s Facebook, Twitter and school records to show that Martin was the likely aggressor. If so, it becomes more reasonable for Zimmerman to use force, including deadly force, in self-defense.

On Facebook, aggressive or threatening posts, evidence of gang membership, or any relevant evidence supporting the defense’s first-aggressor theory, could potentially be admissible into evidence. The school records are probably much more likely to contain admissible evidence of aggression such as prior fights and aggressive bad acts. However, to be admissible they have to be relevant.

From Zimmerman’s medical records, the prosecutors are primarily looking to rebut the extent of his injuries according to the news reports. However, prosecutors may also fish through other medical records they can get their hands on to help paint Zimmerman as aggressive or hostile or loose-cannon, rebutting his evidence that Martin was the first-aggressor.

September 1, 2012

Character Evidence – The Trayvon Martin Homicide Case – Sherman & Plano, TX Criminal Defense Lawyer (Part 1)

by Micah Belden

Trayvon Martin’s parents are wildly screaming that the privacy rights of their 17 year old “kid” are being invaded by George Zimmerman’s lawyers acquiring Trayvon’s Facebook, Twitter and school records. First of all, what you post on Facebook or Twitter in public has little privacy value. So, be careful what you say on public message boards. Next, school records are private records, but are a gold mine source for criminal defense lawyers and prosecutors researching criminal defendants and criminal witnesses. Defense lawyers in Texas can easily subpoena school records and turn them over to the Court. So can prosecutors, who usually look through a defendant’s school records for evidence of “bad acts” to use against them in punishment hearings.

The only records which normally have an added level of privacy protection in Texas law are CPS (Department of Family and Protective Services Records) records detailing child abuse or neglect investigations, and health records which generally require a HIPPA-compliant subpoena (although our Court of Criminal Appeals has held a general subpoena not to be fatal), and court documents which placed under “seal” by a court (i.e. excluded from public portion of a file) such as family social studies in divorce cases.

As most divorced persons can tell you, once you get into court, what you thought is your “right of privacy” is very limited. In criminal law, this is because both sides have the power of subpoena, i.e., the power to get an order of the court requiring a person with testimony or evidence to come to court to produce such testimony or evidence. If you have a car accident and are taken to the hospital, the courts can force your hospital records to be brought to court for use in favor of or against you if they are admissible under the rules of evidence. So why are Trayvon’s Facebook, Twitter, and school records so important in this case? Why are George’s medical records so important to the prosecution? Read Part two for the answer.

August 6, 2012

Ex Parte Olvera – Sherman & Plano, TX Criminal Defense Lawyer (Part 4)

by Micah Belden

*4 Under the second prong of Strickland, Olvera must show by a preponderance of the evidence that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on a jury trial. At the habeas hearing, Olvera testified that he and his sister asked counsel several times about the immigration consequences of a guilty plea. Olvera testified that if he had known he would be deported or denied reentry into this country by pleading guilty he “would have never pled guilty, ever” and would have gone to trial.

The record shows that Olvera was a legal permanent resident. At Olvera’s request, his supervision officer gave him written permission to travel to Mexico with family for the Christmas holidays. Although the record does not show that Olvera was deported,FN1 he was denied reentry because of his guilty plea when he tried to return to the United States after the holidays. In his writ application, Olvera argued that because he is a legal permanent resident, he would not have pleaded guilty if he had known he would be deported or denied reentry. In addition, he argued that he would have tried the case because he had “a great defense” to the charge. He argued that he did not know that the officer, who was working as security at a dance hall, was a police officer because the officer approached him from behind. And the officer testified at the habeas hearing that, as he was arresting Olvera, Olvera said, “I didn’t know you were the police. I didn’t know you were the police.”

We conclude that Olvera met his burden to show a reasonable probability that, but for his counsel’s erroneous advice, he would not have pleaded guilty and would have insisted on going to trial. See Moody, 991 S.W.2d at 857-58. We also conclude that Padilla and Martinez apply retroactively to the time of the guilty plea. See Ex parte Tanklevskaya, 361 S.W.3d 86, 95 (Tex.App.-Houston [1st Dist.] 2011, pet. filed); Ex parte De Los Reyes, 350 S.W.3d 723, 729 (Tex.App.-El Paso 2011, pet. granted); accord United States v. Orocio, 645 F.3d 630, 641 (3d Cir.2011); but see United States v. Amer, No. 11-60522, 2012 WL 1621005, at *3 (5th Cir. May 9, 2012) (holding Padilla does not apply retroactively); Chaidez v. United States, 655 F.3d 684, 694 (7th Cir.2011) (same), cert. granted, — U.S. —-, 132 S.Ct. 2101, —L.Ed.2d —-, 80 U.S.L.W. 3429, 2012 WL 1468539, at *1 (U.S. Apr. 30, 2012).

August 5, 2012

Ex Parte Olvera – Sherman & Plano, TX Criminal Defense Lawyer (Part 3)

by Micah Belden

*3 In 2010, the Supreme Court issued its opinion in Padilla v. Kentucky, — U.S. —-, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), in which it explained a criminal defense attorney’s duty to advise his client about the potential immigration consequences of a plea. In that case, Padilla pleaded guilty to an offense that subjected him to automatic deportation. The Supreme Court recognized that immigration law is complex and stated that when “the deportation consequences of a particular plea are unclear or uncertain … a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” Id. at 1483. But the Court also held that “when the deportation consequence is truly clear, the duty to give correct advice is equally clear.” Id. The Court held that “constitutionally competent counsel would have advised [Padilla] that his conviction … made him subject to automatic deportation.” Id. at 1478, 1486-87. Because counsel did not so advise Padilla, the Court concluded that counsel was not constitutionally competent and that Padilla satisfied the first prong of Strickland. Id.; see Ex parte Martinez, No. PD-1338-11, 2012 WL 1868492, at *4-5 (Tex.Crim.App. May 16, 2012) (not designated for publication) (when deportation and exclusion from this country are automatic consequences of a guilty plea, it is not enough to advise noncitizen client that he faces the possibility of deportation or exclusion).

It is undisputed that a conviction for an aggravated felony results in automatic deportation or exclusion from the country. 8 U .S.C. § 1227(a)(2)(A)(iii) (2005) (stating that an alien “admitted to the United States shall, upon the order of the Attorney General, be removed if the alien is … convicted of an aggravated felony”); see Martinez, 2012 WL 1868492, at *4. It is also undisputed that the offense of assault of a public servant is an aggravated felony for federal immigration law purposes. See 8 U .S.C. § 1101(a)(43) (stating that a “crime of violence” is an aggravated felony); 18 U.S.C. § 16(a) (2000) (defining “crime of violence” as “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another”); TEX. PENAL CODE ANN. § 22.01(a) (West 2011) (defining “assault” offense to include causing or threatening to cause bodily injury to another). And it is undisputed that when a defendant is placed on deferred adjudication and some form of punishment is assessed, the deferred adjudication is a “conviction” for federal immigration law purposes. Martinez, 2012 WL 1868492, at *4 (citing 8 U.S.C. § 1101(a)(48)(A)).

Because the immigration consequences of a guilty plea to the assault offense in this case were clear, counsel’s duty under Padilla and Martinez was to give Olvera clear advice about those consequences. See Padilla, 130 S.Ct. at 1478, 1486-87; Martinez, 2012 WL 1868492, at *4-5; Moody, 991 S.W.2d at 858. The record supports Olvera’s argument that counsel did not satisfy his duty to give adequate advice about the immigration consequences. Counsel testified that he told Olvera he could be deported or denied reentry into this country, not that a guilty plea would result in automatic deportation and denial of reentry. Consequently, we conclude that Olvera satisfied his burden under the first prong of Strickland to show that counsel’s performance fell below an objective standard of reasonableness. See Padilla, 130 S.Ct. at 1478, 1486-87.

July 26, 2012

Ex Parte Olvera – Sherman & Plano, TX Criminal Defense Lawyer (Part 2)

by Micah Belden

STANDARD OF REVIEW [1] An applicant for habeas corpus relief must prove his claim by a preponderance of the evidence. Kniatt v. State, 206 S.W.3d 657, 665 (Tex.Crim.App.2006). In reviewing a trial court’s order denying a writ application, we view the facts in the light most favorable to the trial court’s ruling and uphold the trial court’s ruling absent an abuse of discretion. See Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.Crim.App.2003) (per curiam), overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex.Crim.App.2007). We afford almost total deference to the court’s determination of the historical facts that are supported by the record, especially when those facts are based on an evaluation of credibility and demeanor. Id. If a trial court does not make explicit findings, we grant deference to implicit findings that support the court’s ruling. Id. We will reverse the trial court’s ruling only if we conclude that it is arbitrary, unreasonable, and made without reference to guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1990) (op. on reh’g).

DISCUSSION *2 [2] In issue two, Olvera contends that his trial counsel was ineffective because counsel did not adequately advise him about the immigration consequences of a guilty plea. Because this issue is dispositive, we address it first.

We evaluate the effectiveness of trial counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App.1999). The appellant bears the burden of proving that counsel was ineffective by a preponderance of the evidence. See Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999). We indulge a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. See Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App.2002). To prevail, the appellant must show (1) counsel’s performance fell below an objective standard of reasonableness; and (2) a reasonable probability exists that, but for counsel’s errors, the result would have been different. See Strickland, 466 U.S. at 687-88, 694.

July 25, 2012

Ex Parte Alfredo Olvera – Sherman & Plano, TX Criminal Defense Lawyer (Part 1)

by Micah Belden

— S.W.3d —-, 2012 WL 2336240 (Tex.App.-Dallas)

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.

Court of Appeals of Texas, Dallas.

May 1, 2012

The Law of Parties – Sherman & Plano, TX Criminal Defense Lawyer (Part 2 – Conspiracy)

by Micah Belden

Section 7.02(b) states “If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy.”

The law of party theory most commonly presented at trial is 7.02(a)(2), i.e. that a person intended to promote or assist in the crime being carried out, and solicits (seeks out a person to commit the crime), encourages (does acts to encourage the crime to be committed, including paying money for the crime), directs (orders the crime), aids, or attempts to aid in the crime. The typical case we think of is “murder for hire” in which someone pays another to kill their spouse, or the driver in the “getaway car” from a robbery, but the language is broad and attempts to bring in anyone who intends the crime to be committed and helps or encourages in any way. The jury will be instructed that “mere presence at the scene of an offense is no offense,” but anything more and things could start to get sticky.

The conspiracy statute, 7.02(b), is interesting and has been used in capital murder cases, and in a high profile gang rape recently in local courts. Basically, if two people conspire and agree to commit a felony (such a burglary/robbery/kidnapping/rape, and while trying to carry out that crime, another felony is committed by a member of the conspiracy/agreement, even if the person not intend that crime (carried out by a conspirator in furtherance of the offense) to be committed, if it should have been anticipated, other conspirators are liable under this theory. I.e. if you are committing armed robbery and kidnapping and murder is committed, which could reasonably be foreseeable, a conspirator who only intended to commit robbery could be guilty of the capital murder.