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 " »

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.

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.