Texas Criminal Attorney Blog

Former Dallas Cowboys receiver Terry Glenn was recently arrested and charged with public intoxication. Under Texas Law, a person commits the offense of public intoxication if he/she appears in a public place while intoxicated to the degree that the person may endanger him/her self or another. (See Texas Penal Code section 49.02). Public Intoxication in Texas is punishable as a Class C Misdemeanor.

Although numerous citizens are routinely charged with public intoxication outside of area bars and restaurants, the State usually has a hard time convicting people of public intoxication when the charge is challenged. The reason it is hard for the State to prove the crime of public intoxication is because of its definition in the penal code.

Continue reading "Terry Glenn Public Intoxication Arrest" »

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Posted In: A Look at Celebrity Crime , Terry Glenn Public Intoxication

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If you have been charged with Driving While Intoxicated (DWI) in Texas, an ALR Hearing is important to your future driving privileges. You have 15 days from the day of your DWI arrest to request an ALR hearing. If you fail to request a hearing within 15 days, or if you do not properly request a hearing, your driver's license will automatically be suspended 40 days after your arrest. See our previous post here for more information about the ALR process.

ALR hearings are important because it gives you an opportunity to challenge the suspension of your driver's license. There are various ways to defend your driving privileges at an ALR hearing including, but not limited to, finding flaws in the State's paperwork, subpoenaing witnesses and cross-examining the arresting officers and/or technical supervisors about your case. A flaw in the State's paperwork, an absence of a subpoenaed witness or a proper cross-examination of a witness may defeat the State's ALR case against you and prevent the suspension of your driving rights.

In addition, an ALR hearing may provide the defense a chance to TKO the State's criminal case. For an explanation on how the State's criminal case may be defeated in an ALR hearing, see the post below from our Dallas DWI Blog.

Why ALR Hearings are Important: Because they can TKO the State's Case
by Troy Burleson

As we have reported here before, the first thing a person must do after his or her DWI arrest is to request an ALR hearing. This MUST be done within 15 days of your arrest. For more explanation on the ALR process see our former post.

Clients often ask why an ALR hearing is important for good reason. Most attorneys put little effort into the ALR process because they see them as lost causes. State-wide, people lose about 85% of ALR hearings. At our office, we WIN close to 60% of our ALR hearings. The reason we have such a high success rate (60% compared to the state average of 15%) is because of our aggressive tactics in these hearings.

TKO'ing the State's Criminal Case at an ALR Hearing.

Last week, one of our client's was found NOT GUILTY of a DWI. The client in this case gave a breath sample of .170 which is over twice the legal limit of 0.08 AND admitted to the officer that he was intoxicated.

How did we get a not guilty verdict? Because we destroyed the State's case during the ALR hearing. Here are some things you need to know about the ALR hearing:

1) They are mini-trials. We get to cross examine the officer about the facts of your arrest;

2) The testimony is given under oath. This means that whatever the officer testifies to in the ALR hearing is under oath and on the record. Therefore, we can pin the officer's testimony down in the ALR hearing. If he/she changes their story at the criminal trial, we can use the ALR transcript to impeach the officer;

3) The officer has not been "coached" by the prosecutors yet at the ALR hearing. The criminal prosecutors do not handle ALR hearings for the State. An attorney for the DPS does. Typically, the state's prosecutor will meet with officers prior to the criminal trial to go over the facts of the case and "remind" the officers of certain facts. In other words, coach the officer on what to say on the stand. This is not the case in the ALR hearing. As such, the defense has a tremendous advantage in these hearing because we get to cross-examine the officer before he/she has been coached by the state.

How Did the ALR Hearing Allow Our Client to Be Found Not Guilty?

My partner, Hunter Biederman, handled the ALR hearing is this particular case. Hunter reviewed the police report prior to the hearing and found that the officer made a huge mistake. In the report, the officer’s only listed reason for stopping our client was that he failed to stop behind a designated line at a stop sign. Hunter then reviewed the video and saw that the officer was correct, our client did not stop and the designated stop line. However, there was a crosswalk and our client DID STOP behind the crosswalk.

Hunter then did a little legal research and discovered that our client committed no violation of the law. Under Texas law, as long as you stop behind a crosswalk there is no violation. Therefore, the officer made a mistake of law. As such, this was an illegal stop and, under the law, any evidence gathered against our client (including the breath test) would be inadmissible in trial.

Hunter cross examined the officer at the ALR hearing about the stop and got her to admit that our client stopped behind the crosswalk and that there were no other traffic violations that would warrant stopping the client. We then got the ALR transcript and set the case for a jury trial.

What Happened at Trial?

On the day of trial we filed a Motion to Suppress all evidence against our client due to an illegal stop. In the motion, we presented the court with the ALR transcript and law regarding stop signs and crosswalks (Section 544.010(c) of the Texas Transportation Code). We then had a hearing on the motion.

The State tried to "Coach" the Officer but it was TOO LATE

Once the State read our motion, they meet with the officer and tried to figure out a way around the officer's prior testimony. The State tried to have the officer offer an alternative reason as to why she stopped our client. After the State's presentation, the trial judge read the ALR transcript and dismissed the State's argument.

As a result, the judge granted our motion and suppressed all evidence gathered during our client's illegal stop, including the breath test result. Thus, the State had no evidence against our client and he was found NOT GUILTY.

What Would Have Happened Without the ALR HEARING?

If my partner, Hunter Biederman, would not have fought as hard in the ALR hearing, the results would have been much different. The State, most likely, would have coached the officer prior to trial and the officer would have offered an alternative excuse for why she stopped our client. However, since we had pinned her testimony down at the ALR hearing, this was not an option for the State. Our client was found NOT GUILTY because of how we handled the ALR hearing. So, don't let anyone tell you that ALR hearings are not important. Our client would beg to differ. After being TKO’d on a breath test case, the State would disagree as well.

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Posted In: Why ALR Hearings are Important

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Many of you have seen the picture above and read the recent story about Olympic Gold Medalist Michael Phelps. Apparently, Mr. Phelps was photographed smoking what appears to be a marijuana pipe or bong. It is doubtful that Mr. Phelps will be charged with a criminal offense , although his image may take a few hits. It is only under very rare circumstances that a person can be charged based on a photograph of an alleged crime.

However, if you are curious as to what the State of Texas would have to prove to convict Mr. Phelps of possession of marijuana, and his possible defenses to the charge, he is a quick summary of the Texas law regarding possession of marijuana.

The first thing to know about the crime of possession of marijuana in Texas is that the crime is not laid out in the Texas Penal Code, unlike most other crimes. Instead, it is found in Title 6, Section 481.121 of the Texas Health and Safety Code. Under the code, a person commits the offense of possession of marijuana if the person:
a) Knowingly; or
b) Intentionally
c) Possesses a usable amount of marijuana.

Knowingly or Intentionally? What is the Difference?

Knowingly or intentionally describes the mens rea, or mental state, required for a person to commit a certain crime. A person "knowingly" possesses something if he/she is aware that their conduct may reasonably lead to possession. A person "intentionally" possessed and item when he actually has a conscious desire to possesses the item and engaged in conduct to acquire possession. So essentially, the State must prove that you either took acts to obtain possession or you took acts that you new would acquire possession.

What does it mean to "Possess" marijuana?

Possession is defined as care, custody or control of an item. For example, if marijuana is in your pocket, you have care, custody and control. However, if you are riding in someone's car and marijuana is in the trunk, you may not have care custody and control.

What is a "usable" amount of marijuana?

Basically, use your common sense. If you can roll it and/or smoke it in any way, it is a usable amount. However, there are specific rules for how marijuana is weighed for purposes of defining the amount, and thus the range of punishment. The code says the following about how marijuana is weighed:
"Marihuana" means the plant Cannabis sativa L., whether growing or not, the seeds of that plant, and every compound, manufacture, salt, derivative, mixture, or preparation of that plant or its seeds. The term does not include:
(A) the resin extracted from a part of the plant or a compound, manufacture, salt, derivative, mixture, or preparation of the resin;
(B) the mature stalks of the plant or fiber produced from the stalks;
(C) oil or cake made from the seeds of the plant;
(D) a compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, fiber, oil, or cake; or
(E) the sterilized seeds of the plant that are incapable of beginning germination.

What is "Marijuana"

Texas Law has a specific definition for marijuana. Under Texas Law, Marijuana is defined as:
"Marihuana" means the plant Cannabis sativa L., whether growing or not, the seeds of that plant, and every compound, manufacture, salt, derivative, mixture, or preparation of that plant or its seeds.

How May the Definition of "Marijuana" Help You Case?

Very rarely do law enforcement agencies actually chemically test marijuana to determine if it is Cannabis sativa L. See, there are many Canibi (marijuana) stains and only one, Cannabis sativa L, is illegal. Therefore, if law enforcement agencies do not test the marijuana, it can be argued that the State did not satisfy its burden of proof under the law.

This argument can be, and has been, successful when there are people on the jury panel who think marijuana should not be illegal. Texas case law states that marijuana is common enough that a lay person can identify it, thus alleviating the need for a chemical test. However, with the right jury panel, and without a test showing Cannabis sativa L, you may have a good chance at a not guilty verdict.

So, back to Michael Phelps. He will most likely not be charged with possession of marijuana. But if he is and he happens to read this article, maybe he will have a better understanding of what the State has to prove and his possible defenses. Remember Michael, if all else fails just claim you were smoking oregano.

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Posted In: A Look at Celebrity Crime , Michael Phelps Marijuana Possession

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Texas Penal Code Section 49.02. PUBLIC INTOXICATION.
(a) A person commits an offense if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another.
(b) It is a defense to prosecution under this section that the alcohol or other substance was administered for therapeutic purposes and as a part of the person's professional medical treatment by a licensed physician.
(c) Except as provided by Subsection (e), an offense under this section is a Class C misdemeanor.
(d) An offense under this section is not a lesser included offense under Section 49.04.
(e) An offense under this section committed by a person younger than 21 years of age is punishable in the same manner as if the minor committed an offense to which Section 106.071, Alcoholic Beverage Code, applies.

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Posted In: Public Intoxication , Public Intoxication

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Texas DWI Laws: A Review

From Collin County DWI Attorneys

Charged with DWI in Texas: Here is a quick review of the Texas DWI Laws

Classification of DWI under Texas Law: Texas Penal Code §49.04.
Under Texas Law, an offense for Driving While Intoxicated (DWI) can be classified many ways depending on the facts surrounding the arrest for drunk driving and the prior criminal history of the accused. The Classifications of DWI under Texas Law are as follows:
• DWI, First Offense: Class B Misdemeanor
• DWI, Second Offense: Class A Misdemeanor
• DWI, Third Offense (or more): Third Degree Felony
• Intoxicated Assault: Third Degree Felony

First Offense DWI: Class B Misdemeanor: Texas Penal Code §49.04
A first offense or Driving While Intoxicated is a class B misdemeanor and defined by Texas Penal Code § 49.04. Under Texas Law, the State must prove the following elements beyond a reasonable doubt to convict a person of driving while intoxicated:
1. The defendant;
2. On or about a certain date;
3. Operated a motor vehicle;
4. In a public place;
5. In a particular county in the State of Texas;
6. While Intoxicated.

Definition of “Intoxication” under Texas Law
The most commonly disputed element in a DWI trial is the “while intoxicated” element. The State of Texas has defined “Intoxication” as [Texas Penal Code §49.01(2)]:
1. “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
2. “having an alcohol concentration of 0.08 or more.”

Therefore, the State may prove a person is “intoxicated” for the purposes of a DWI conviction in three (3) different ways:
1. not having the normal use of physical faculties OR
2. not having the normal use of mental faculties OR
3. having an alcohol concentration of 0.08 or more.

It is important to note that a jury does not have to reach a unanimous decision on the manner or means of intoxication. Therefore, the jury does not have to agree how a person is intoxicated, only that they all agree the defendant is intoxicated by one of the three ways above. BUT, it is important to remember that the State must prove a person is intoxicated at the time of driving. This can sometimes be a problem for the State when a long period of time elapses between when a person was arrested and when sobriety tests were preformed.

1st Offense DWI: Class B Misdemeanor: Range of Punishment and Consequences.

The punishment for a first offense DWI is:
• A fine not to exceed $2,000.
• Confinement in the County Jail for a term not less than 72 hours and not more than 180 days.
NOTE: Most people convicted of a first DWI offense are granted community supervision (“probation”) instead of serving time in the County Jail. Generally, probation can last anywhere from 12 to 24 months. If you are granted community supervision in your case, the following conditions could apply:
• Not less than 24 hours of community service nor more than 100 hours.
• Drug and/or Alcohol evaluation and any conditions associated with that evaluation.
• Complete a DWI Education course within 180 days for the date of conviction.
• Attend and complete a M.A.D.D. Victim Impact Panel.
• Maintain suitable employment, commit no other crimes, and remain at the same residence and employment unless notification is given to the community supervision officer.
• Report monthly to the supervision office and pay a monthly supervisory fee (usually between $40-$60).
• Pay all fines and costs in a timely manner.
If your case involves certain “bad facts” then additionally conditions may be imposed as well. “Bad Fact” cases are those which involve either a high level of intoxication, dangerous driving facts, or prior criminal history. In these types of cases, a judge in his or her discretion may impose the following conditions:
• Deep lung air device: This condition requires you to install and maintain a device on your vehicle. The device requires a breath sample before it will allow your car to start. In addition, these devices may require you to give periodic breath samples while your car is running.
• Restitution: If you are involved in an accident, the court may require you to pay restitution for damages not covered by insurance.
• Confinement: Even if you are given community supervision, the court may require you to be confined in the County Jail as a condition of your probation. In some cases, judges will require a defendant to go to jail for 3 to 5 days as a condition prior to being placed on probation.
• Alcohol Treatment: The court may order a person to attend AA or other counseling programs during probation. This condition is usually ordered if you have an unfavorable drug or alcohol evaluation.
• No Alcohol: Some courts require a person not to consume any alcohol during the period of community supervision. Courts monitor this condition by requiring a person to submit to random urinalysis.

2nd Offense DWI: Class A Misdemeanor.
Under Texas Law, if it is shown that a person has been previously convicted of DWI, the punishment and penalties after the conviction are increased or enhanced. NOTE: Texas can use prior convictions that occurred in a different state to enhance a Texas DWI.

The punishment for a second offense DWI is:
• A fine not to exceed $4,000.
• Confinement in the County Jail for a term not less that 30 days or more than one (1) year.
• 80 to 200 hours of community service.
• A Deep Lung Device is typically required for all DWI second offenders.
• A possible driver’s license suspension of 180 days to two (2) years.
• T & C Jail Time: Texas law requires that a person serve some time in jail for a second offense DWI even is he or she is granted community supervision. This is known as “T&C” time or “Terms and Conditions” or probation time. T&C time can be up to 30 days. However, most courts impose five (5) days of T&C time if your prior DWI is less than five (5) years old and three (3) days T&C time if your prior DWI is grater that five (5) years old.
• NOTE: Condition of Bond: Most courts will require a person who has been charged with a second DWI offense to install a deep lung device on his or her vehicle as a condition of bond. This means that in order to get a bond and be release from jail, a person must install a deep lung device on his or her car and it must remain there while the case is pending or until the judge orders that it can be removed.

Third Offense (or greater) DWI: Third Degree Felony.
The Punishment for a third offense (or greater) DWI is:
• A fine not to exceed $10,000.
• Confinement in the Texas Department of Criminal Justice, Institutional Division (Penitentiary) for a term of not less that two (2) years nor more that ten (10) years.
• A Deep Lung Device is generally order as a condition of bond and as a condition of any occupational or provisional license that may be awarded after a conviction for Felony DWI.
• A possible driver’s license suspension of 180 days to two (2) years.
• SAFP: Substance Abuse Felony Probation. The court may order mandatory rehabilitative treatment for people convicted of felony DWI. This treatment may be imposed as an alternative to serving time in the penitentiary. SAFP is an in-patient; incarceration program ran by the state of Texas. This program requires confinement in a state facility for alcohol rehabilitation. After completing the SAFP program, the person is then released and placed on probation for a term not to exceed ten (10) years.

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Posted In: Texas DWI Laws

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From the State Bar of Texas' online "Citizen's Guide" to the Texas Criminal Justice Process.

WHAT HAPPENS AFTER A CRIME IS COMMITTED?

After a crime is committed, the preliminary investi- gation by a law enforcement agency generally begins when responding officers arrive at the scene of the incident. Emergency matters are handled and the crime scene secured. In most cases an officer will meet with the victim in person to obtain important information concerning the crime. Witnesses are questioned. Any suspect at the scene is detained, questioned, and then released or arrested, depending on the circumstances. Additional responsibilities during the preliminary investigation may include: photo-graphing, videotaping, measuring and sketching the scene; searching for evidence; identifying, collecting, examining, and processing physical evidence; and recording all observations and statements in notes.

Despite a thorough preliminary investigation, many cases require a follow-up investigation to close the case, arrest an offender, and/or recover weapons or stolen pro-perty. The follow-up investigation can be conducted by the officers who responded to the original call or, most often, by detectives. Investigative leads that may need to be followed-up include: checking the victim’s background; determining who would benefit from the crime and who had knowledge to plan the crime; tracing weapons and stolen property; and searching modus operandi (manner of operation), mug shot, and fingerprint files. Petty thefts and like misdemeanors will obviously not receive the same in-depth investigation as a major crime like murder or sexual assault.

After the law enforcement agency has completed its investigation, the case may be filed with the prosecuting attorney for review and, if appropriate, criminal prosecution. The prosecuting attorney considers such matters as the legality of the arrest, whether certain evidence essential to the case was legally obtained, and/or whether additional investigation is required. Depending on the facts and law involved, the prosecuting attorney may: accept the case for prosecution as filed; increase/reduce the charge filed; file additional/different charges; return the case for further investigation; or reject the case for prosecution.

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Posted In: What Happens After a Crime is Committed

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From the State Bar of Texas' online "Citizen's Guide" to the Texas Criminal Justice Process.

WHAT ARE THE RIGHTS OF THE PERSON ARRESTED?

The person making an arrest is required without unnecessary delay to take the person arrested before a magistrate. The magistrate is required to inform in clear language the person arrested of: (1) the accusation against the person arrested and of any affidavit filed therewith; (2) the right to retain counsel; (3) the right to remain silent; (4) the right to have an attorney present during any interview with peace officers or attorneys representing the state; (5) the right to terminate the interview at any time; (6) the right to request the appointment of counsel if the person arrested is indigent and cannot afford counsel; (7) the right to have an examining trial; and (8) the person arrested is not required to make a statement and any statement made may be used against the person arrested. The magistrate is also required to allow the accused reasonable time and opportunity to consult counsel and to be admitted to bail if allowed by law.

A peace officer who is charging a person with committing an offense that is a class C misdemeanor (other than public intoxication), may, instead of taking the person before a magistrate, issue a citation (ticket) to the person that contains written notice of the time and place the person must appear before a magistrate, the name and address of the person charged, and the offense charged.

Additional rights of an accused in a criminal prosecution include: the presumption of innocence until proven guilty be-yond a reasonable doubt; the right against self-incrimination; the right to not be prosecuted for a felony unless indicted by a grand jury; the right to a copy of the accusation and a speedy trial by an impartial jury; the right to confront (cross-examine) the witnesses and to have compulsory process (subpoena) for obtaining witnesses, and the right of appeal.

The defendant in a criminal prosecution for any offense may waive any rights secured him/her by law. It should be noted, however, that in a capital felony prosecution in which the prosecutor notifies the court and the defendant that the state will seek the death penalty, the defendant does not have the right to waive trial by jury.

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Posted In: What Are the Rights of the Person Arrested

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Texas DWI Court Process

If you or someone you love has been arrested for DWI in Texas then you probably have many questions you need answered. DWI is a complicated law with many provisions that sometime confuse even the best of lawyers. This article’s purpose is to give you some basis information about the DWI process in Texas.

The first thing you need to understand is that DWI is a crime. A DWI charge caries penalties that may include license suspension and the possibility of being placed in jail for up to 180 days. Because one of the main causes of injury and death on Texas highways is DWI, the state legislature wrote the DWI laws to carry stiff punishment.

It is important to remember that it is not a crime to drink alcohol and drive. Responsible social drinking is not against the laws of the state of Texas. Drinking and driving only becomes a crime when a person consumes too much alcohol and loses his or her normal ability to safely operate a vehicle. Therefore, anytime you intend to consume alcohol ad the drive, you have a responsibility to do so responsibly so that no one is endangered by your conduct.

Continue reading "Texas DWI Process: What Happens After the Arrest." »

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There is a good reason why many people confuse a DWI with a DUI. In Texas, a DWI is the bigger offense and a DUI is a more minor offense. I published an article describing the difference between DWI and DUI here. The article centered on the DUI arrest of actress Heather Locklear.

Unlike Texas, most other states call their major drunk driving offense a DUI not a DWI. So, it is easy to confuse the two crimes. The most important difference is that a DUI in Texas is available only for someone who is under 21 years of age. In addition, police do not have to prove you are intoxicated to charge you with DUI. The officer only has to detect the presence of alcohol. This is usually done by the officer smelling alcohol on a person's breath.

For a more in-depth article about the difference between DUI and DWI, see the article below by Hunter Biederman

What is the Difference between DWI and DUI in Texas?

In Texas, DWI, or Driving While Intoxicated (1st), is a crime that can carry with it up to 180 days in jail, and up to a $2,000 fine. DWI carries with it a harsher punishment and penalties than DUI. In order for the state to convict someone of DWI, they must prove that the driver of a motor vehicle either had above a .08 BAC, or lost the normal use of their mental or physical faculties due to the introduction of alcohol, a drug, or a combination of the two. You can receive a DWI at any age (above or below 21). With each conviction, the punishment & ramifications of a conviction go up.

In Texas, DUI, or Driving Under the Influence is a crime that can only be committed by a minor under 21. The controlling statute is the Alcohol Beverage Code § 106.041. In order for the state to prove that you are Driving Under the Influence of Alcohol, the state must prove you were a motor vehicle in a public place while having any detectable amount of alcohol in the minor's system. BUT, if the police believe that you are above a .08 BAC, or you have lost the normal use of your mental or physical faculties, you may end up getting arrested for DWI, the more serious of the two crimes.

I have created the chart below to help explain the differences. No matter which crime you are charged with, DWI or DUI, the ramifications can be extraordinary. This is especially true for what can happen outside of the punishment ranges. Drivers License suspensions, future loans or employers, may see your record, and future criminal proceedings may be enhanced.

DWI (1st)

AGE: Under 21 or Over 21
Not Having Normal Use of Mental or Physical Faculties (while driving)
Offense Level: Class "B" Misdemeanor
Punishment Range: 72 hours - 180 days Jail, Up to $2000 fine
Proceedings Held: County Court

DUI

Under 21
Any detectable amount of alcohol
Offense Level: Class "C" Misdemeanor
Proceedings Held: JP or Municipal Court
Punishment Range: Up to $500 fine

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Posted In: DWI vs. DUI--What is the Difference?

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If you have been arrested for DWI in Collin County, Texas, here are 10 mistakes that people commonly make that you need to avoid:

10 DWI Mistakes to AVOID!
by Collin County DWI Lawyers Biederman & Burleson, P.L.L.C.

1. Not taking the matter seriously. This is a charge that will follow you for the rest of your life if you are convicted. The additional insurance charges alone could cost you thousands of dollars.

2. Not hiring an attorney. The law is complex and you need competent representation. You must raise the right defenses at the right time or you will lose them. Facts will disappear, memories fade and witnesses vanish. A winnable case can quickly become a loser.

3. Hiring an attorney based on the amount of the fee alone. The State of Texas has almost unlimited resources when it comes to your case. You need to hire an attorney and pay a fee which will allow him to put time and effort into your case to counter the prosecution. Attorneys must earn enough in the time they spend on your case in order to keep their doors open and make a living wage. If you go too low, your attorney will not be able to put in the time necessary to protect you. Look for a reasonable, predictable fee, not the lowest.

4. Not complying with driver's license laws. You could lose your right to drive.

5. Driving after your license has been taken away.

6. Not taking full advantage of your constitutional rights.

7. Taking the prosecutor's first offer. The first offer is not a bargain; it's just to get rid of your case with the least amount of work. Very few cases are dismissed or reduced to a non-alcohol charge at this stage. You do not give the judge an opportunity to rule on constitutional challenges. You give up your right to raise these issues and make the State prove it's case.

8. Fail to appear in Court. The Court will issue a bench warrant for your arrest and revoke any bond. The next time you are stopped for a traffic infraction, you will be spending some time in jail and posting a bond for your future appearances.

9. Talk to anyone but an attorney about your case. Anything you say to them can be used against you.

10. Think that talking to numerous attorneys will help you handle it on your own. You need to have an attorney go to court with you.

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From the State Bar of Texas' online "Citizen's Guide" to the Texas Criminal Justice Process.

Are Juveniles Treated Differently?

There are significant differences in the procedures used to process juvenile and adult offenders. Despite the procedural differences and the considerable discretion asso-ciated with juvenile proceedings, juveniles have many of the rights and protections provided defendants in adult criminal proceedings.

Each county's juvenile board (county judge, district judges, and judges of any statutory courts designated as a juvenile court) is required to designate one or more district, criminal district, domestic relations, juvenile, county courts or county courts at law as the juvenile court. The juvenile court has exclusive original jurisdiction over proceedings under the Juvenile Justice Code involving children between the ages of 10 and under 17, and children who are between 17 and under 18, but who committed offenses before becoming 17. Venue is in the county in which the child resides or the county in which the alleged delinquent conduct or conduct indicating a need for supervision occurred.

A law enforcement officer who takes a child into custody may dispose of the case without referral to juvenile court, if: (1) guidelines for such disposition have been issued by the officer’s law enforcement agency; (2) the guidelines have been approved by the juvenile board of the county in which the disposition is made; (3) the disposition is authorized by the guidelines; and (4) the officer makes a written report of this disposition to the law enforcement agency, identifying the child and specifying the grounds for believing that the taking into custody was authorized.

If the case or child is referred to juvenile court, a person authorized by the court (usually someone from the juvenile probation department) is required to conduct a preliminary investigation to determine whether the person referred to juvenile court is a child under the Juvenile Justice Code and there is probable cause to believe the person engaged in delinquent conduct or conduct indicating a need for supervision. If it is determined that the person is not a child or there is no probable cause, the person shall immediately be released.

Each county is required to provide a suitable place of detention for children, separated by sight and sound from any adults detained in the same building. When a child is taken into custody, if the child is not released a detention hearing without a jury shall be held within two working days after the child is taken into custody; the next working day if the child is detained on a Friday or Saturday. The juvenile court must release the child from detention unless it finds that:

1. the child is likely to abscond or be removed from the jurisdiction of the court;
2. suitable supervision, care, or protection for the child is not being provided by a parent, guardian, custodian, or other person;
3. the child has no parent, guardian, custodian, or other person able to return him/her to the court when required;
4. the child may be dangerous to himself/herself or he/she may threaten the safety of the public if released; or
5. the child has previously been found to be a delinquent child or has previously been convicted of a penal offense punishable by a term in jail or prison and is likely to commit an offense if released.

The court must make a finding whether there is probable cause to believe that a child taken into custody without an arrest warrant or a directive to apprehend has engaged in delinquent conduct or conduct indicating a need for supervision. The finding must be made within 48 hours of the time the child was taken into custody.

If a preliminary investigation results in a determination that further proceedings in the case are authorized, the designated officer of the court may, subject to the direction of the juvenile court, advise the parties for a reasonable period of time not to exceed six months concerning deferred prosecution and rehabilitation of the child if: (1) deferred prosecution would be in the interest of the public and the child; (2) the child and his parent, guardian, or custodian consent with knowledge that consent is not obligatory; and (3) the child and his parent, guardian, or custodian are informed that they may terminate the deferred prosecution at any point and petition the court for a court hearing in the case.

A juvenile court may, on petition filed by the prosecuting attorney, waive its exclusive original jurisdiction and transfer a child to the appropriate district court or criminal district court for criminal proceedings if:

1. the child is alleged to have committed a felony;
2. the child was:
1. 14 years of age or older at the time he/she is alleged to have committed the offense, if the offense is a capital felony, an aggravated controlled substance felony, or a felony of the first degree, and no adjudication hearing has been conducted concerning that offense; or
2. 15 years of age or older at the time he/she is alleged to have committed the offense, if the offense is a felony of the second or third degree or a state jail felony, and no adjudication hearing has been conducted concerning that offense; and
3. after a full investigation and a hearing, the juvenile court determines that there is probable cause to believe that the child committed the offense alleged and that because of the seriousness of the offense alleged or the background of the child the welfare of the community requires criminal proceedings.

If the juvenile court waives jurisdiction and transfers the child for criminal proceedings, he/she shall be dealt with as an adult and in accordance with the Code of Criminal Procedure. However, no person may be punished by death for an offense committed while younger than 17 years.

If the juvenile court does not transfer the child for adult criminal proceedings, the juvenile court may, on peti-tion of the prosecuting attorney, conduct an adjudication hearing. Trial shall be by jury unless waived by the child and his/her attorney. If the judge or jury does not find beyond a reasonable doubt that the child engaged in delinquent con-duct or conduct indicating a need for supervision, the court shall dismiss the case. If the finding is that the child did engage in delinquent conduct or conduct indicating a need for supervision, the court shall conduct a disposition hearing.

At the disposition hearing, if the judge or jury does not find that the child is in need of rehabilitation or the protection of the public or the child requires that disposition be made, the court shall dismiss the child and enter a final judgment without any disposition. If the judge or jury finds that the child is in need of rehabilitation or the protection of the public or the child requires that disposition be made:

1. the judge or jury may place the child on community supervision for any period, except that the probation may not extend to or after the child's 18th birthday;
2. if the judge or jury finds at the adjudication hearing that the child engaged in delinquent conduct and if the petition was not approved by the grand jury under section 53.045, Family Code, the court may commit the child to the Texas Youth Commission (TYC) without a determinate sentence;
3. if the judge or jury found at the conclusion of the adjudication hearing that the child engaged in delinquent conduct that included a violent offense listed under section 53.045(a), Family Code, and if the petition was approved by the grand jury under section 53.045, Family Code, the judge or jury may sentence the child to commitment in the Texas Youth Commission with a possible transfer to adult prison for a term of confinement of not more than:
1. 40 years for a capital felony, first degree felony or an aggravated controlled substance felony;
2. 20 years for a second degree felony; or
3. 10 years for a third degree felony;
4. the judge may assign the child appropriate sanctions under section 59.003, Family Code; or
5. if applicable, the judge or jury may make a disposition for habitual felony conduct under section 54.04(m) of the Family Code.

A court may issue an order against a child to protect a victim of the child’s conduct who, because of the victim’s participation in the juvenile justice process, risks further harm by the child. In the order, the court may prohibit the child from doing specified acts or require the child to do specified acts necessary or appropriate to prevent or reduce the likelihood of further harm to the victim by the child.

An appeal from an order of a juvenile court is to a court of appeals, and the case may be carried to the Texas Supreme Court (unlike adult criminal appeals which may be carried to the Court of Criminal Appeals).

Posted by Troy P. Burleson | Permalink | Email This Post

Posted In: Are Juveniles Treated Differently

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