I’m All Ears

In this day and age when almost everyone is walking around with an easy to use and easy to conceal recording device backed up with hefty amounts of digital memory (AKA a cellphone), I frequently get the question whether or not it is legal to secretly record someone else either during a phone call or a face-to-face conversation.  In earlier days – not that long ago actually – such recordings required specialty equipment.

If you were an ordinary civilian without access to cutting edge surveillance equipment the options were quite limited.  Recording a phone call meant using a clunky device that employed audio cassettes wired to a phone’s handset.  Secretly recording a face-to-face conversation meant hiding a “micro” cassette recorder (that still managed to be quite large) somewhere that was out of sight yet could still pick up the noise of the conversation.

But with the advent of the cell phone, such secret recordings are quite easier to make.  However, easier does not necessarily mean allowable or legal.  In the state of Texas, as long as one party to the conversation is aware of the recording, it is perfectly legal to record a phone call or a face-to-face discussion.  No other party has to be made aware of the recording.  So for example, in Texas, if Jack and Jill are on the phone together and Jack wishes to record the call, he can do so legally and never has to notify Jill that she is being or might be recorded.  This same rule applies if Jack and Jill are having a face-to-face meeting either in a private or a public location.

Let me please reiterate that I have described what is allowable in Texas.  In some other states what Jack did (recording a call or in-person conversation) without Jill’s consent or knowledge would be considered a crime.  The rules absolutely vary from jurisdiction to jurisdiction.  Conduct that is perfectly allowable in one state could be civilly or criminally sanctionable somewhere else.

I want to also highlight an important aspect of the Texas rule regarding secret recordings: that at least one party to the conversation must be aware of the recording.  So if Jack and Jill are having a phone call together and Sam decides to secretly record the call, then Sam is committing a crime even in Texas.  Again, at least one party to the secretly recorded conversation must be aware of the recording for this act to be legal.

What I’ve described above applies to civilians; the police operate under different rules.  Law enforcement investigators can certainly tap phones or bug locations to listen in and record conversations but only after being granted that power via a properly obtained warrant issued by a neutral and detached judge upon a showing of necessity.

As with all things, it pays to know the rules and proceed accordingly.

 

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Take Your Pick!

I’m pleased to announce that I am now available to meet with clients at the new Heritage Office Suites building located at 601 Quail Valley Drive, Georgetown, Texas.  This is of course in addition to my original office location at 1000 Heritage Center Circle in Round Rock.

Both locations offer medium and large conference rooms for when we need to meet with more than my office can hold, as well as capability for audio and video presentations.  So, Round Rock or Georgetown, whichever is more convenient for you, take you pick!

You’ll Never Know Unless You Ask – Part 2: Getting off Deferred Adjudication Probation Early

 

In a previous blog, I discussed getting off of a straight or regular probation early in Texas.  Today, let’s discuss the ins and outs of a motion for early termination of a deferred adjudication probation.  It is possible to be off of a deferred adjudication probation earlier than the full term, but as in all things law-related, there are hard and fast rules as well as suggested guidelines.

As for the basic requirements, there is technically no minimum waiting period you have to serve before you can ask to get off of a deferred early.  Theoretically you could be placed on probation on a Monday and ask to have it terminated on Tuesday.  Now the odds of a judge going along with that are about zero, but it does highlight how in Texas we don’t have a set amount of time built into the law that you have to serve.

That being said, each judge may have his or her own minimum waiting period in mind.  Where one court may want you to have served one half of your sentence, another may want more…or less.  Ultimately, it pays to know a little bit about your judge and their habits on granting or denying motions for early termination of deferred on your type of case.

Judges will typically also balance such factors as the seriousness of the original offense charged, the defendant’s prior criminal history, the opinions of the probation department, the prosecutor’s office and the victim, if any.  Also, all judges will certainly look very carefully into the behavior of the defendant while on probation.

So if you are thinking about filing to terminate your deferred adjudication early, honestly ask yourself what kind of a probationer have you been?  Have you made your appointments and payments on time, have you been responsive to the needs of your probation officer, have you tested clean for drugs and alcohol when required?  The court may not always follow the advice of the probation department, but they will always hear them out.  Make sure that when your probation officer speaks to the court about you, there is more good than bad.

To make yourself the best candidate for early termination possible it helps to have paid off any outstanding balance of court costs, fines, and restitution.  Also, fully completing any assigned community service hours, classes, counseling and treatment programs looks great too.  It shows the court that you are well on your way towards full rehabilitation.

Please bear in mind that there are certain offenses not eligible for early termination of a deferred adjudication.  Generally, these are offenses that required registration as a sex offender under Chapter 62 of the Texas Code of Criminal Procedure.  For all other types of offenses which are eligible, if you have been doing a good job on your deferred, there is no harm in getting back before your judge to take a shot at an early termination.  The worst that can happen if you are denied is that you still remain on deferred as before, free to refile your motion at a later time to try again!

You’ll Never Know Unless You Ask: Getting off Regular Probation Early

 

Let’s say you have found yourself on probation in Texas for the next several months or years, depending on the offense.  The good news is that in many cases a Texas judge has the authority to let you off probation early, which is properly known as early termination of probation.  This blog post will be discussing getting off of regular probation (also known as “formal” or “straight” probation) early, while a future blog post will discuss getting off of deferred adjudication probation early as the rules for deferred adjudication are slightly different.

Starting with the basics, a Texas judge can terminate a regular probation after the probationer has served one-third of their sentence or two years, whichever is less.  Also, to qualify for early termination of probation a defendant must not be delinquent in the payment of fines, court costs, fees, and restitution (more on this in a bit), must have successfully completed any required classes, evaluations or programs, and must be in compliance with the full slate of probation conditions.

Those are the statutory minimums.  But to go beyond the minimum, here are some tips.  Although you can ask to get off of probation as long as you are only “not delinquent” on your fines, fees and costs, it helps if you have paid your entire balance off and you owe the court nothing but the standard monthly probation fee of $60.00 (which you only pay for the months you are actually on probation, so you can’t be expected to “pay them early”).  Furthermore, it helps if you have your community service hours fully knocked out as well.  Lastly, ask yourself honestly if you have been a good probationer: have I given the probation department trouble, do I make my appointments and payments on time, do I test clean for drugs or alcohol when they test me?  When you ask to get off of probation early, for good or for bad, the probation department will have its say about you to the judge: make sure they say something good!

Texas judges have very wide latitude on whether or not to grant an early termination of probation.  Judges will typically weigh factors such as the seriousness of the original offense, the criminal history of the defendant, the opinions of the prosecutor and probation department, and any other considerations that particular judge deems important.

Article 42A.701(g) highlights the type of offenses which are not eligible to be terminated early.  These include probations resulting from convictions for DWI or other intoxication-related offenses, felonies involving a deadly weapon finding, offenses requiring Chapter 62 registration as a Sex Offender, and others.  Please note that certain judges may have their own “pet” offenses for which they personally feel that early termination is never warranted, such as Cruelty to Animals for example.

But if you are on probation for an offense that is not on the “forbidden list” and you have been following the rules and paying what you owe, you may want to consider asking to get off early.  Like the title of the article says, “You’ll never know unless you ask”!

Triple Zero May Not be the Winning Number

As a recent arrest of celebrity golfer Tiger Woods highlights, even blowing .000 on a breathalyzer machine will not fully protect you from a charge of DUI or, in Texas, DWI.  The breathalyzer machine only tests for the presence of alcohol in the subject’s breath (and thus, their blood).  The machine will not detect the presence of many other substances that can lead to intoxication.

As a reminder, intoxication Texas is defined  as “not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body” or by having a blood alcohol concentration of 0.08 or more.  It is only for that last method of proving intoxication – the blood alcohol concentration – that the breathalyzer machine can speak to.

Beyond just alcohol which can be detected by the breathalyzer machine, intoxication can stem from the ingestion of controlled substances such as illegal narcotics, or even legally prescribed medications.  Even over the counter medication, if it renders the user “not normal” can lead to intoxication under Texas law.

Another aspect of intoxication that will not register on a breath test machine is the synergistic effect  that may occur when two or more substance are taken together or with alcohol.  Chemicals can often enhance and multiply the effects of each other when taken at the same time.  Legal, illegal, prescribed or over the counter, drugs that do not show up on a simple breath test may still be quite intoxicating to the user.

As always, be careful what you ingest, know your limits, and drive safely.

The High Court Gets It Right: Buck v. Stephens

 

As I discussed in a previous blog the United States Supreme Court was reviewing the case of Duane Buck, an inmate on Texas death row.  The issue was whether Buck should receive a new sentencing hearing because the jurors heard testimony from a (defense!) expert witness that the defendant was more likely to commit violent crimes and pose a future danger because he is black.  I mentioned in the earlier post that in my humble opinion, this was an unconscionable piece of testimony from the defense expert.  Someone’s race should never be part of the equation when a jury determines if a defendant should live or die.

Well, my humble opinion or not, the Supreme Court agreed.  They recently ruled 6-2 in Duane Buck’s favor and tossed out the death penalty sentence previously rendered.  Chief Justice John Roberts wrote the majority opinion and in it, likened the race-based testimony of the expert to a “toxin”, which can still be “deadly in small doses”.  It is heartening to know that at least in this case, justice was done.

Buck’s conviction still stands, but he will have the chance to have another punishment hearing in front of a new jury.  As I stated before, if he deserves death, so be it, but the let jury who makes that choice be one who judges him for what he did, and not just for who he was born as.

Felony Ranges of Punishment in Texas

In an earlier blog we discussed misdemeanor ranges of punishment in Texas, which are the minimum and maximum punishments one can receive upon a conviction for a misdemeanor.  Today, we are focusing on felony ranges of punishments.

Where a misdemeanor worst case scenario involves confinement in the local county jail, for a Texas felony, the worst punishment is confinement in either at what is called a State Jail Facility or prison, which in Texas we refer to as TDC or TDCJ (for the Texas Department of Criminal Justice).  These State Jail or TDC facilities can be far from where a defendant lives which may be a hardship when it comes to receiving visits from family members.

As with misdemeanors, felonies in Texas are subdivided by penalty range from least serious to most serious as follows: State Jail felonies, third degree felonies, second degree felonies, first degree felonies and finally, capital felonies.  Let’s look at each.

A State Jail felony is the lowest set of felony offense in Texas.  If a defendant is found guilty, they can be sentenced to serve anywhere from 180 days to 2 years in a State Jail Facility or serve up to five years of probation and/or pay a fine of up to $10,000.00.  Now what is a State Jail Facility as opposed to plain ol’ prison?  A State Jail facility looks and acts pretty much like a county jail, there are no big towers with rifle-toting guards watching the grounds, it’s just a big building.  Also, where people sent to prison may be eligible for parole and get out earlier than their sentenced time, a sentence to State Jail is served day-for-day with no parole.  So a 2 year State Jail sentence for example means 2 actual day-for-day years.

State Jail felonies were created to encompass non-violent offenses so that non-violent offenders wouldn’t be mixing with violent offenders, at least in theory.  Typical examples of a State Jail felony offense include Forgery, Possession of a Penalty Group 1 Controlled Substance less than 1 gram, and Theft of a Firearm.

Next up the punishment ladder are third degree felonies.  In Texas, a third degree felony is punishable by confinement in prison anywhere from 2 to 10 years or up to 10 years of probation and/or a fine of up to $10,000.00.  Some examples are DWI – 3rd Offense, Tampering with Evidence, or Possession of a Penalty Group 1 Controlled Substance from 1 to 4 grams.

Next we have second degree felonies.  Here in Texas, a second degree felony carries a range of punishment from 2 to 20 years in prison or up to 10 years of probation and/or a fine of up to $10,000.00.  Some examples of second degree felonies include Aggravated Assault Causing Serious Bodily Injury and Intoxication Manslaughter.

Coming close to the top of the punishment range in Texas are first degree felonies.  These felonies carry a range of punishment from 5 to 99 years in prison or life in prison or up to 10 years of probation and/or a fine of up to $10,000.00.  In Texas, Murder, or Aggravated Assault against of Public Servant are examples of first degree felonies.

Above even first degree felonies are capital felonies.  Here, we are talking about offenses such as Capital Murder, which carry the potential for the death penalty, which Texas does indeed still recognize and enforce.  Should a defendant be found guilty of a capital felony in Texas and they do not receive the death penalty, they can still be facing life in prison without the possibility of parole.

It is important to remember that in addition to crimes spelled out in the Texas Penal Code, there are other crimes found tucked away in many places in the larger body of Texas law, from the Health and Safety Code to the Government Code to the Water Code and others.  Some of these crimes fall in to the felony vs. misdemeanor categories we’ve discussed above, but some just defy such easy definition.

Also, in a forthcoming post I’ll discuss the vitally important aspect of sentencing enhancements, which can effectively upgrade a felony into the next higher punishment range in certain situations.

Misdemeanor Ranges of Punishment in Texas

when arrested in round rock
A basic, yet vitally important aspect of a criminal case is what is the level of the offense charged.  The level of offense determines the maximum and minimum punishments should a defendant be found guilty.  In Texas, as in most states, most criminal offenses can be broken into two broad categories, misdemeanors and felonies.  Today we are going to are going to focus on misdemeanors.

For a misdemeanor, the worst punishment is confinement in the local county jail.  So we are not talking about prison, simply confinement in the jail probably located in or near the county seat.  For felonies, however, the worst punishment is confinement in prison, which in Texas we refer to as TDC or TDCJ (for the Texas Department of Criminal Justice).  But again, today, we are just talking about misdemeanors.

Now misdemeanors in Texas are further subdivided into three different penalty ranges.  For misdemeanors, Texas ranks them from least serious to most as follows:  Class C misdemeanors at the bottom, then Class B, then Class A misdemeanors.  Let’s look at each.

A Class C misdemeanor is what we would normally consider “just a ticket”; where a police officer stops the defendant, writes a ticket and lets them go with a promise to appear in court later.   Here we are talking about relatively minor offenses such as Disorderly Conduct or Public Intoxication.  You can be arrested on a Class C Misdemeanor, but that’s rare.  A Class C misdemeanor in Texas can result in a fine of up to $500.00 plus court costs and that’s it, no jail time, no probation, just a maximum fine of $500.00 only.

Next on the level of seriousness in Texas are Class B misdemeanors.  Unlike with Class C misdemeanors where you’ll likely just get a ticket and not go to jail, Class B misdemeanors typically result in arrest.  Typical examples are first offense DWI’s, Possession of Marijuana less than 2 grams, and Theft from $50.00 to $500.00.  A Class B misdemeanor carries a range of punishment of 0 to 180 days in the county jail, or up to 2 years of probation, and/or a fine from 0 dollars to $2,000.00.

Last on the Texas misdemeanor punishment ladder are Class A misdemeanors, representing the most serious misdemeanors according to the legislature.  Here we are talking about crimes such as Assault Causing Bodily Injury, Resisting Arrest, second offense DWI’s, and others.  Class A misdemeanors in Texas carry a range of punishment from 0 to 365 days in the county jail, or up to 2 years of probation, and/or a fine from 0 dollars to $4,000.00.

Above the Class A misdemeanor range we get into the realm of felonies, which I’ll discuss in a forthcoming post.

 

Pre-Trial Release Officers

 

Who acts like a probation officer, and talks like a probation officer but isn’t a probation officer?  Well, they go by many names; some counties may call them a pre-trial release officer, or a bond compliance officer or a pre-trial services officer.  But whatever the name, the job is the same: to monitor a defendant’s compliance with their bond conditions.  Now we have discussed bond conditions in an earlier post, and they are a list of things that a court has ordered a defendant who is out on bond to do, or not do, or risk having their bond taken away or raised.  Well, who checks to see if a defendant is following those rules?  You guessed it: the pre-trial release officer (or whatever name that county has for that job).

If a defendant is assigned to a pre-trial release officer, the experience is much like being assigned to a probation officer.  You will meet with them and let them know some information about you like where you live, where you work, and various ways to get a hold of you.  This person has a job to do: to monitor you.  They are not paid to be your friend or to be your enemy, they are simply there to report compliance or non-compliance. If you follow the rules, they can be useful in the court proceedings (more on that later).  But if you don’t follow the rules, they are supposed to report that failing to the judge and the prosecutor’s office.  It’s not personal, it’s their job.  What the court and/or the prosecutor’s office does with that information is up to them.  As for the pre-trial officer, they have no independent power and are simply there to gather information and monitor you.  They can’t lock you back up, but they can certainly report you to the people who can.

Defendants assigned to a pre-trial officer will generally be given a set schedule for when to meet in person.  These meeting dates and times are important: this isn’t Supercuts; bond compliance officers don’t like drop-in customers.  Additionally, if a defendant was court-ordered to do something like install an ignition interlock in their car, or report to drug counseling, or provide proof of employment, expect that all that paperwork showing proof of compliance (receipts, certificates, paystubs, etc.) will need to be turned over to the officer.  A safe bet would be to keep a copy for your own records of anything that is turned over, in case something gets lost or misfiled, you will then be able to have your own proof if needed.

As frustrating and intrusive as having to report to a pre-trial officer is, there is one potential upside.  A defendant who is following the rules now has a neutral court officer who can report to the judge or prosecutor that the defendant is in fact doing what they have been told.  This is what I call “building a record of success”.  Meaning, that compliance officer is now documenting that every hoop the defendant was asked to jump through, they did.  This can help a defense attorney in negotiations with the state sometimes when perhaps the prosecutor was not inclined to offer probation or deferred adjudication.  A neutral record of success may be just the ammunition needed to help sway that reluctant prosecutor.

Of course, the downside of a having a compliance officer monitoring you is that if you are breaking the rules, you are now creating a record of failure.  Such a record can certainly impact how the court, the prosecutor, and perhaps even a jury might see you.  The safest bet as always is to follow all court-ordered bond conditions to the letter.

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