Category: Criminal Defense

Believe it or not, but any kind of animal cruelty was not a felony in Texas until 2001. It took Loco, a Dallas puppy, to be temporarily stolen and his eyes gouged out, to make some animal cruelty actions a felony.

Even though our pets are seen as family, animal protection laws in the United States and Texas are still catching up with other laws regarding the protection of children and other human rights. Texas civil law still regards dogs as property. But property of very little monetary value even though they are capable of love, personality, and loyalty.

It is fortunate that the criminal law sees the importance of preventing people from cruelly treating animals, by creating a more serious punishment than prior to 2001.

What is the Animal Welfare Act, 1966?

We cannot talk about Texas Cruelty Laws without first talking about earlier laws. In the United States federal law, to finally make a change, it took Coles Phinizy to write an article in Sports Illustrated in 1965. Pepper, a Pennsylvania dalmatian, was stolen from his yard and bought by a Bronx hospital. Pepper died during an experimental surgical procedure.

In 1965 New York US Representative Resnick introduced a bill requiring dog and cat dealers and the laboratories purchasing them to have a license. The bill also required USDA inspection.

A 1966 Life Magazine article, “Concentration Camp for Dogs,” prompted an investigation into a Maryland dog dealer’s deplorable living conditions for his dogs. This sparked a public the push for animal housing and care standards.

What is Cruelty To Nonlivestock Animals?

A nonlivestock animal is a domesticated living creature. Stray or feral dogs and cats are nonlivestock animals. Also included are any wild animals that were previously captured. This definition does not include a wild animal or obviously a livestock animal.

The mental state required to be guilty of this statute is intentional, knowing or reckless. Criminal negligence is not a mental state included in this statute.

Intentionally means a conscious objective or desire to engage in the conduct or cause the result. Knowing for a person takes place when he is aware that his conduct is reasonably certain to cause a result. Reckless conduct is a gross deviation from the standard of care that an ordinary person would exercise.

Animal Cruelty

It is an offense to cause an animal unjustified pain, suffering or cruelly kill or causes serious bodily injury to a nonlivestock animal. Also, to add confusion, a person cannot kill, poison, or cause serious bodily injury to an animal without the owner’s consent.

A person cannot unreasonably fail to provide necessary food, water, care, or shelter to an animal in a person’s custody. Nor can a person unreasonably abandon an animal in the person’s custody. It is also illegal to transport or confine an animal in a cruel manner.

It is an offense to cause bodily injury to an animal or cause an animal to fight another animal if either animal is not a dog. A person can’t use a live animal as a lure in a dog race or training, nor can a person overwork an animal.

The punishment is a Class A misdemeanor for the following offenses:

• Lack of food, water, care or shelter.
• Abandon, transport, or confine cruelly.
• Seriously overwork animal.

The punishment is a State Jail felony for the following:

• Cause an animal to fight another if either is not a dog.
• Use of a live animal as a lure in dog race training or dog coursing on a racetrack.

The punishment is a 3rd Degree felony for the following:

• Torture, cruelly kill, or cause serious bodily injury to an animal.
• Kill, poison or cause serious bodily injury to an animal without the owner’s consent.

Abandoning an Animal

In Texas, and many other places, people abandon animals on dark roadways or in the country. It is a Class A misdemeanor with punishment up to a year in jail and/or $4,000 fine. This common occurrence seems to be acceptable to many. But dogs can starve or get hit on the roadway and die a miserable death.

Defenses to Cruelty To Nonlivestock Animals

It is a defense if a person has a reasonable fear of bodily injury to themselves or another by a dangerous wild animal. Or a person has a defense for bonafide experimentation for scientific research.

It is a defense to cruelty, while in the scope of employment, for a public servant, a person in electricity operations, or natural gas delivery.

The statute also mentions a defense under accepted legal wildlife practices solely for the purpose of fishing, hunting, trapping, wildlife management, or depredation.

Is it Illegal to Shoot a Dog in Texas?

It is only a defense to animal cruelty for a person who kills a dog during it injuring or killing livestock on the person’s land or while damaging crops and only at the time of either discovery.

What is Cruelty to Livestock Animals?

A livestock animal are cattle, sheep, swine, goats, ratites, poultry commonly raised for human consumption, horses, ponies, mules, donkeys, hinnies, native or nonnative hoofstock, and native or non native foul raised under agricultural practices.

The mental state required is easier on the offender than nonlivestock animals. Livestock animal cruelty only requires a mental state of intentionally or knowingly. Reckless mental state is not included here as it is in cruelty to nonlivestock animals.

Livestock Cruelty

It is illegal to cause unjustifiable pain or suffering to a livestock animal. A person in custody of a livestock animal must not fail unreasonably to provide necessary food, water, or care.

A person must not unreasonably abandon a livestock animal in the person’s custody. Nor transport or confine a livestock animal cruel or unusually.

The statute prevents a person from administering poison, without legal authority or permission, to a livestock animal other than cattle, horses, sheep, swine, or goats belonging to another. Also, a person shall not cause a livestock animal to fight with another livestock animal or nonlivestock animal.

It is also illegal to use a livestock animal as a lure in dog race training or dog coursing on a racetrack. A person can’t trip a horse or seriously overwork a livestock animal.

The punishment is a Class A misdemeanor for the following:

• Failure to provide food, water or care for livestock in person’s custody.
• Unreasonably abandon livestock animal.
• Transport or confine livestock in cruel and unusual manner.
• Overwork a livestock animal.

The punishment is a State Jail felony for the following:

• Torture a livestock animal.
• Poisoning another’s livestock animal other than cattle, horses, sheep, swine, or goats without legal authority or owner’s permission.
• Fighting livestock animal with another livestock animal or nonlivestock animal.
• Using live livestock animal as a lure in dog race training or dog coursing on a racetrack.
• Tripping a horse.

Defenses to Livestock Cruelty

A person can trip a horse to identify the owner or provide vet care to the horse. It is also a defense if the person is engaging in bonafide experimentation research.

Generally accepted and solely for the purpose of legal fishing, hunting, or trapping wildlife management or depredation is a defense.

Cruelty to Animals Act, 1876

Cruelty to animals was recognized as a problem in Great Britain far earlier than in the United States. The parliament passed a bill also known as the Vivisection Act. It is the world’s first known legislation that regulated the treatment and use of live animals during scientific research.

Charles Darwin (1809-1882) was a proponent of animal welfare. He was disturbed by an animal’s unnecessary suffering. He wrote to the Oxford Zoologist in 1871:

“You ask about my opinion on vivisection. I quite agree that it is justifiable for real investigations on physiology; but not for mere damnable and detestable curiosity. It is a subject which makes me sick with horror, so I will not say another word about it, else I shall not sleep to-night.“

In The Descent of Man, Darwin tells of a touching story about a dog on a vivisectionist operating table, “In the agony of death a dog has been known to caress his master, and every one has heard of the dog suffering under vivisection, who licked the hand of the operator; this man, unless the operation was fully justified by an increase of our knowledge, or unless he had a heart of stone, must have felt some remorse to the last hour of his life (p. 115).”

Conclusion

It is interesting to see how animal law has evolved, through the years, compared to other movements and areas of law. It seems that animal welfare laws have never gotten the priority in relation to other societal needs and concerns. Especially compared to humans.

The fact that it took until 2001 to make gouging out a puppies eyes a felony in Texas lets a person know where the Texas legislature has stood on animal protection. This may be either a reflection of our voter’s priorities or lack of interest in the topic.

Regardless of the speed, animal protection laws are moving toward stricter and more serious punishment for people causing needless animal suffering.

If you need help or advice for your legal issue, do not hesitate to contact http://erictorberson.com.

UPDATE!!! On March 28, 2022 the Texas Drone Law was ruled unconstitutional in the Western District of Texas in Austin, TX. 

“U.S. District Judge Robert Pitman struck down a Texas drone law (one of the most restrictive in the U.S.), for violating the First Amendment’s protections of freedom of speech and the press.” 

Texas drone legislation was introduced in 2013. Prior to that no state legislation existed in Texas. The 2013 Texas Drone Privacy Act makes it illegal to capture images of private property. The act was introduced and passed not long after it was discovered that the Columbia Packing Plant in Oak Cliff, Texas was dumping pig blood into the Trinity River.

City records showed that the packing plant was dumping “925,300 gallons of fluid a month into the creek.” They were temporarily shut down and the owners received several indictments which were later dismissed by the Dallas district attorney.

Texas Government Code CHAPTER 423. USE OF UNMANNED AIRCRAFT

If this Texas drone law had been in effect in 2011, without one of the exceptions, it may have been a crime for the drone operator to capture the pollution images. His recreational drone footage could have been a class B misdemeanor and he might have been liable for a $10,000 civil penalty to the packing plant for distributing the imagery.

A possible exception that may apply to this pig blood scenario is exception number Government Code Chapter 423.002 (10)– filming at the scene of a spill, or a suspected spill, of hazardous materials.

Drone Footage of Private Property Cannot be Used as Evidence

Under the current law, not only can you be arrested, but also the images cannot be used as evidence against a private land owner/renter lawbreaker unless certain exceptions apply. A person in imminent danger qualifies as an exception. But any animal cruelty does not qualify as an exception and can result in the drone operator’s arrest and up to 6 months in jail with a $2,000 fine.

Drone Footage Now Illegal to Use Except to Prosecute Drone Operator

Chapter 423.005 makes it clear that drone footage captured in violation of this statute cannot be used against anyone except the drone operator to prove a violation of this statute.

Sec. 423.005.  ILLEGALLY OR INCIDENTALLY CAPTURED IMAGES NOT SUBJECT TO DISCLOSURE.  (a)  Except as otherwise provided by Subsection (b), an image captured in violation of Section 423.003, or an image captured by an unmanned aircraft that was incidental to the lawful capturing of an image:
(1)  may not be used as evidence in any criminal or juvenile proceeding, civil action, or administrative proceeding;
(2)  is not subject to disclosure, inspection, or copying under Chapter 552; and
(3)  is not subject to discovery, subpoena, or other means of legal compulsion for its release.(b)  An image described by Subsection (a) may be disclosed and used as evidence to prove a violation of this chapter and is subject to discovery, subpoena, or other means of legal compulsion for that purpose.

Images of Animal Cruelty Cannot be Used to Prove Animal Cruelty

The images taken of private property can only be used to prosecute the drone operator. They would not be allowed to be used as evidence of someone who was for instance, committing any cruel acts against animals. There are 21 listed exceptions that make private drone image capturing lawful and nothing covers anything having to do with animals.

Why would a person’s privacy rights supercede identifying and stopping animal cruelty? It is an interesting dilemma and nobody seemed to talk about it during the voting for this bill.

There was no effort to make a narrow exception where a person provides the evidence only to law enforcement. But on the other hand a problem with this might be where to draw the line. What happens if a drone operator spots a marijuana or other drug operation? Do amature detective drone operators become a wave of the future? Apparently proponents of HB 912 were worried about that.

What Constitutes an Illegal Search and Seizure?

Private property rights are an important issue for Americans. The constitution specifically discusses this in the 4th amendment. The 4th amendment is based on government intrusion and unreasonable searches and seizures. Intrusion by private citizens is not mentioned.

Police, or someone instructed by the police, cannot enter property without the owner’s permission. This can result in inadmissible evidence based on fruit of the poisonous tree. Illegal searches and seizures can be about a vehicle stop for an invalid reason to walking into someone’s house without permission or a warrant to be there.

Searches by Private Citizens

A private citizen gathering evidence is not subject to the 4th amendment. There are trespass laws that a private citizen can be charged with, but evidence of a crime gathered by the citizen is still admissible in court. For instance, a person could walk onto another’s property and photograph animal cruelty and it can be used by the police. This is as long as the police did not instruct the person to do this.

The 2013 drone law does not allow conducting a similar act, but instead filming with a drone camera. The only close exception that might apply to this would be Ch 423.002 (14) where a drone is on public property and at a height of no more that 8 feet filming without an amplified “image beyond normal human perception.”

Do I Have to Pay a Fine for a Civil Action?

On top of being arrested and possibly fined up to $2,000 that is not all. A person can also have to also pay a civil penalty of $10,000, court costs and reasonable attorney’s fees. If proven that the images have been disclosed, displayed or distributed with malice, then an actual higher amount of damages may be accessed based on the actual damages.

Attorney’s fees go to the prevailing party. So if the charges are not proven the accused drone operator may receive reasonable attorney’s fees from the accuser.

“Malice” is a specific intent by the defendant to cause substantial injury or harm to the claimant. 

Also under Sec. 423.004 there is a $10,000 civil penalty for disclosure, display, distribution, or other use of an image instead of destroying the images. It can be costly because if “malice” is proven, the penalty can be more than $10,000. Theoretically, it could be 6 or 7 digits. Not to mention the judge “shall” award costs and reasonable attorney’s fee to the prevailing party. So for example, if someone captured animal cruelty taking place on private property and that footage caused a public outcry to boycott the claimant’s business, the drone operator would be liable to the loss of business. The damages could be astronomical.

Is it Illegal to Fly a Drone Over an Animal Feedlot?

In Texas it is now illegal to fly a drone over a “concentrated animal feeding operation” by less than 400 feet high. It should be noted that FAA regulations limit a drone flying altitude to a maximum of 400 feet. So flying drone over an animal feedlot will be break a law either way.

Can I Fly Over a Sports Stadium or Game?

The FAA Unmanned Aircraft Systems website is somewhat conflicting. It says that it is not permitted to fly a drone after one hour before or until one hour after the following-

-Major League Baseball
-National Football League
-NCAA Division One Football
-NASCAR Sprint Cup, Indy Car, and Champ Series races

But later on the site mentions that a drone should not be flown within 3 nautical miles of a stadium or venue.

Another regulation, CFR 107.39, states that a drone cannot be flown over a human being unless they are in a covered building or vehicle. This is to protect them from the drone from falling on them.

Can I Shoot a Drone Flying Over My Property?

No you cannot. It is not illegal to fly a drone over someone’s property. Filming is a different issue. If the drone is low flying, possibly creating a safety risk than that may be a different situation. Shooting a drone can open a person up to a civil lawsuit and getting arrested for a federal offense. 

A California small claims case took place in 2014 where a neighbor shot a homemade drone with a shotgun over the drone operators property. The judge ruled in the drone operators favor and awarded monetary damages for the cost of the drone.

It is also a federal crime, AIRCRAFT SABOTAGE (18 U.S.C. 32), to shoot down a drone.

Can I Fly a Drone Near a Cell Phone Tower?

A drone cannot be flown less than 400 feet over a critical infrastructure facility. In 2017 the drone statute expanded the definition of “critical infrastructure facility” to include a cell phone tower. The drone also cannot make contact with the cell tower or interfere  with the operations. Keep in mind that FAA regulations limit a drone to a maximum of 400 feet. 

Can the Police Use a Drone to Search My Property?

If the police can fit into certain exceptions, they can capture images by drone over private property. They must have a valid search or arrest  warrant. They also can also video record in the immediate pursuit of someone with probable cause or  reasonable suspicion that a person committed a felony. They can also  document a felony crime scene. 

The following is a further list including what the police can choose to record without the owners permission:

• A human fatality
• A motor vehicle with death or serious bodily injury or accident on state highway or federal highway
• Searching for a missing person
• For a high risk tactical operation posing a threat to human life
• Border security within 25 miles of the U.S. border
• Surveying to determine a state of emergency declaration
• Public safety, protecting property, surveying damage during a state of emergency
• Air quality sampling and monitoring by local or state law
• At scene of a spill or suspected spill of hazardous materials
• Fire suppression or rescuing a life in imminent danger

Do I have to Have a License to Fly My Drone?

Not by Texas state law, but you do under the FAA regulations. A pilot must be 16 years old and speak, read and write english. There is an exam that each pilot needs to pass in order to get their drone pilots license. Every 2 years a pilot needs to pass a recurrent test to maintain licensing.

Is This an Ag-Gag Law?

The timing of this law and the fact that it has an exception for  humans in imminent danger, but does not mention animal cruelty, looks a lot like ag-gag.

Animal feedlots and packing houses stand to lose a lot of revenue if they are shut down for any period of time due to violations. Drones coming along and filming violations can be a real problem for business.

Privacy Rights

The bill was advertised to help the privacy of private property owners and renters. By emphasizing that side of the issue, the proponents avoided questions about who really stands to benefit from this bill. Big business is a big winner. Maybe marijuana plant growers are helped as well.

Animals in Imminent Danger Exception to Drone Filming

Perhaps there should have been an exception for filming with animals in imminent danger. There could be animal torture taking place and a drone would have been the only way to identify that it is taking place. Or a beloved pet may have run off and a drone would be a good way to search a large rural area.

These exceptions are not included and there is a good chance that they will not be until animals gain more status in our society.

Possible FAA 107 Rule Changes in 2019

There will be some possible changes coming to the FAA rules. One will be allowing drones to be flown over people under certain circumstances. Also there have been several requests for waivers to fly at night. A new proposed change would allow drones to fly as night.

Drones Finding Poachers in Africa

Drones are now being used to catch poachers in Africa. Most of the poaching happens at night, so the drones are using infrared camera equipment. Some estimate that the illegal poaching brings in $10 billion dollars. Some of this money goes to other illegal activity such as terrorism. This makes drone use in capturing poachers such a valuable tool. To stop criminals and for the African animals future survival as well.

Texas Government Code Exceptions to Filming with Drone

Sec. 423.002.  NONAPPLICABILITY.  (a)  It is lawful to capture an image using an unmanned aircraft in this state:

(1)  for the purpose of professional or scholarly research and development or for another academic purpose by a person acting on behalf of an institution of higher education or a private or independent institution of higher education, as those terms are defined by Section 61.003, Education Code, including a person who:

(A)  is a professor, employee, or student of the institution; or

(B)  is under contract with or otherwise acting under the direction or on behalf of the institution;

(2)  in airspace designated as a test site or range authorized by the Federal Aviation Administration for the purpose of integrating unmanned aircraft systems into the national airspace;

(3)  as part of an operation, exercise, or mission of any branch of the United States military;

(4)  if the image is captured by a satellite for the purposes of mapping;

(5)  if the image is captured by or for an electric or natural gas utility or a telecommunications provider:

(A)  for operations and maintenance of utility or telecommunications facilities for the purpose of maintaining utility or telecommunications system reliability and integrity;

(B)  for inspecting utility or telecommunications facilities to determine repair, maintenance, or replacement needs during and after construction of such facilities;

(C)  for assessing vegetation growth for the purpose of maintaining clearances on utility or telecommunications easements; and

(D)  for utility or telecommunications facility routing and siting for the purpose of providing utility or telecommunications service;

(6)  with the consent of the individual who owns or lawfully occupies the real property captured in the image;

(7)  pursuant to a valid search or arrest warrant;

(8)  if the image is captured by a law enforcement authority or a person who is under contract with or otherwise acting under the direction or on behalf of a law enforcement authority:

(A)  in immediate pursuit of a person law enforcement officers have reasonable suspicion or probable cause to suspect has committed an offense, not including misdemeanors or offenses punishable by a fine only;

(B)  for the purpose of documenting a crime scene where an offense, not including misdemeanors or offenses punishable by a fine only, has been committed;

(C)  for the purpose of investigating the scene of:

(i)  a human fatality;

(ii)  a motor vehicle accident causing death or serious bodily injury to a person; or

(iii)  any motor vehicle accident on a state highway or federal interstate or highway;

(D)  in connection with the search for a missing person;

(E)  for the purpose of conducting a high-risk tactical operation that poses a threat to human life;

(F)  of private property that is generally open to the public where the property owner consents to law enforcement public safety responsibilities; or

(G)  of real property or a person on real property that is within 25 miles of the United States border for the sole purpose of ensuring border security;

(9)  if the image is captured by state or local law enforcement authorities, or a person who is under contract with or otherwise acting under the direction or on behalf of state authorities, for the purpose of:

(A)  surveying the scene of a catastrophe or other damage to determine whether a state of emergency should be declared;

(B)  preserving public safety, protecting property, or surveying damage or contamination during a lawfully declared state of emergency; or

(C)  conducting routine air quality sampling and monitoring, as provided by state or local law;

(10)  at the scene of a spill, or a suspected spill, of hazardous materials;

(11)  for the purpose of fire suppression;

(12)  for the purpose of rescuing a person whose life or well-being is in imminent danger;

(13)  if the image is captured by a Texas licensed real estate broker in connection with the marketing, sale, or financing of real property, provided that no individual is identifiable in the image;

(14)   from a height no more than eight feet above ground level in a public place, if the image was captured without using any electronic, mechanical, or other means to amplify the image beyond normal human perception;

(15)  of public real property or a person on that property;

(16)  if the image is captured by the owner or operator of an oil, gas, water, or other pipeline for the purpose of inspecting, maintaining, or repairing pipelines or other related facilities, and is captured without the intent to conduct surveillance on an individual or real property located in this state;

(17)  in connection with oil pipeline safety and rig protection;

(18)  in connection with port authority surveillance and security;

(19)  if the image is captured by a registered professional land surveyor in connection with the practice of professional surveying, as those terms are defined by Section 1071.002, Occupations Code, provided that no individual is identifiable in the image;

(20)  if the image is captured by a professional engineer licensed under Subchapter G, Chapter 1001, Occupations Code, in connection with the practice of engineering, as defined by Section 1001.003, Occupations Code, provided that no individual is identifiable in the image; or

(21)  if:

(A)  the image is captured by an employee of an insurance company or of an affiliate of the company in connection with the underwriting of an insurance policy, or the rating or adjusting of an insurance claim, regarding real property or a structure on real property; and

(B)  the operator of the unmanned aircraft is authorized by the Federal Aviation Administration to conduct operations within the airspace from which the image is captured.

(b)  This chapter does not apply to the manufacture, assembly, distribution, or sale of an unmanned aircraft.

Added by Acts 2013, 83rd Leg., R.S., Ch. 1390 (H.B. 912), Sec. 2, eff. September 1, 2013.

Amended by:

Acts 2015, 84th Leg., R.S., Ch. 360 (H.B. 2167), Sec. 1, eff. September 1, 2015.

Acts 2017, 85th Leg., R.S., Ch. 583 (S.B. 840), Sec. 1, eff. September 1, 2017.

Conclusion

The Drone Law is unconstitutional. We shall see if lawmakers try to tailor it another way in the future…

It is not hard to draw a line from bills introduced in congress to the preservation of big business. The question is: How much should our natural resources suffer to profit the bottom line?

Contact myself, Eric Torberson, for any questions about legal services.

In Texas Possession of Drug Paraphernalia (PODP) is a class C misdemeanor punishable by up to a $500 fine. Delivery of Drug Paraphernalia or possession with intent to deliver is a class A misdemeanor. With a previous conviction the minimum jail time is 90 days. Delivery or possession with intent to deliver to a child under 18 and at least 3 years younger than actor is a state jail felony. It is punishable by 6 months to 2 years in a state jail or probation 2 years up to 5 and a possible $10,000 fine.

In Texas the Texas Controlled Substances Act Ch 481.125 (a) is Drug Paraphernalia use or intent to use. It presumes use or intent to use. The statute says a person knowingly or intentionally uses or possesses with intent to use drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, or conceal a controlled substance, or to inject ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of Health and Safety Code Chapter 481.

The previous list also applies to delivery and possession with intent to deliver.

What is Considered Drug Paraphernalia in Texas?

There is a variety of items that somehow can be considered drug paraphernalia with several examples as follows:

• A kit used or intended for use in a species of plant considered a controlled substance or derived from.
• A material, compound, mixture, preparation, intended for use in manufacturing, compounding, converting, producing, processing or preparing a controlled substance.
• Device intended for use in increasing the potency of a species of plant that is a controlled substance.
• Testing equipment used in identifying or in analyzing the strength, effectiveness, or purity of a controlled substance.
• A scale or balance used in weighing or measuring a controlled substance.
• An adulterant, such as quinine hydrochloride, mannitol, inositol, nicotinamide, dextrose, lactose, or absorbent, blotter-type material, that is used to increase the amount or weight of or to transfer a controlled substance.
• A sifter used or intended for use in removing twigs and seeds from or refining marijuana.
• A blender, bowl, container, spoon, or missing device used in cleaning or refining marijuana.
• A capsule, balloon, envelope, or other container used in packaging small quantities of a controlled substance.
• A container used in storing or concealing a controlled substance.
• A hypodermic syringe, needle, or other object used in injecting a controlled substance in the human body, and
• An object used ingesting, inhaling, marijuana, cocaine, hashish or oil in into the human body, for example a pipe.

I have to admit most of my cases only involve bowls, pipes and rolling papers. Sometimes bowls as well. Many times drugs are found as well. Drugs are the more serious crime and paraphernalia tickets become a low priority. Many of the previous items can be used for completely legal uses as well.

Driver License Suspension for Drug Paraphernalia

With a conviction for PODP (Controlled Substances Act) a person can get a 180 drivers license suspension. A minor can lose their driver’s license for a year or 18 months with a subsequent suspension. So it is best to avoid even a first conviction.

Sec. 521.372. AUTOMATIC SUSPENSION; LICENSE DENIAL.

(a) A person’s driver’s license is automatically suspended on final conviction of: (1) an offense under the Controlled Substances Act; (2) a drug offense; or (3) a felony under Chapter 481, Health and Safety Code, that is not a drug offense.

(b) The department may not issue a driver’s license to a person convicted of an offense specified in Subsection (a) who, on the date of the conviction, did not hold a driver’s license.

(c) Except as provided by Section 521.374 (b), the period of suspension under this section is the 180 days after the date of a final conviction, and the period of license denial is the 180 days after the date the person applies to the department for reinstatement or issuance of a driver’s license.

Contact me, Eric Torberson, to help solve your legal problems. http://erictorberson.com

In Phoenix, Az in 1963 Ernesto Miranda was asked to accompany police officers to the station to answer question about the kidnapping and rape of 18 year old Lois Ann Jameson. Miranda voluntarily went the station. He stood in a lineup and afterward asked how he did. The officer told him he was positively identified. Then after 2 hours of interrogation, he gave a confession without being warned of his right to have an attorney and right to remain silent. He was convicted and appealed.

What is the Miranda Rights Script?

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”

What Does Miranda Rights Law Mean?

The police are required to advise a person of their right to remain silent and also have an attorney present during questioning. These rights were not made known to Miranda prior to his questioning. His case was appealed to the supreme court and his conviction was overturned. The case set forth the importance of the 5th and 6th amendments. These right need to be read to a person who is in a custodial interrogation.

What is Custodial Interrogation?

A Texas case Dowthitt v State, 931 S.W. 2d 244, 255 (Tex.Crim.app.1996) describes four situations which may constitute custody.

• The suspect is physically deprived of his freedom of action in any significant way
• When a law enforcement officer tells the suspect that he cannot leave
• When law enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement have been significantly restricted
• When there is probable cause to arrest and law enforcement officers do not tell the suspect that he is free to leave

What this sums up is being detained and not free to leave. Even though this is now commonly known to law enforcement, there are still times that these right are violated.

Richard Nixon was Against the Miranda Decision

“The Miranda and Escobedo decisions of the high court have had the effect of seriously hamstringing the peace forces in our society and strengthening the criminal forces…[t]he balance must be shifted back.”

– Richard Nixon, “Toward Freedom from Fear” (1968)

Richard Nixon was elected in 1968 and supported congress to pass the Omnibus Crime Control and Safe Streets Act of 1968. This limited the Miranda rights decision. But legislation had little effect, as federal courts retained the power to determine the scope and applicability of the Constitution.

In 1986 Ronald Reagan’s Attorney General Edwin Meese was a critic of the Miranda decision. He wanted congress to overrule Miranda. He said it “coddles criminals” and “Miranda only helps guilty defendants. Most innocent people are glad to talk to the police.”

This sort of opinion is unheard of but not long ago is was under attack.

Do Police Have to Read Miranda Rights for DUI?

For DUI and DWI cases in Texas, the police do not seem to mirandize drivers. Most of the investigation takes place on the roadside where it is not clear that an arrest will take place until the investigatory stop is completed. A traffic stop is “temporary and may last no longer than necessary.” If the officer develops reason suspicion then the stop can continue a reasonable time in order to dispel reasonable suspicion.

Miranda Rights Texas

The Texas Code of Criminal Procedure requires the interrogator to read a person their rights and require the accused to knowingly, intelligently and voluntarily waive the rights in the warning. For oral statements, a recording is required with the rights warning recorded as well.

Do I have to Talk to the Police?

In Texas it is not necessary to speak to the police except for a limited reason. If an officer has reasonable suspicion that a crime has or is about to happen, the officer can ask for your name, date of birth and residential address during a lawful detention or arrest. Incidentally this information is all on a person’s driver’s license or ID assuming it is correct. If a person in a legal detention refuses to answer or gives the wrong information it is an offense called Failure to Identify.

It is common for people to want to speak to the police if they are feeling like they are being accused. Each situation requires a calm thought process. If a person is feeling harassed or bullied, my advice is to request a lawyer and stop talking. I have had many clients who tried to talk their way out of an arrest that was bound to happen. The more you say the more ammunition there will be to use against you in court. Even just saying something in the wrong way can unintentionally be disastrous . Call me, Eric Torberson, or enter your information on my website to talk about your concerns!

A possession of a drug charge requires a person to be in actual possession of a controlled substance. “Possession” is defined in the Texas Penal Code as actual care, custody, control, or management. This is the same for misdemeanor and felony drug charges in Texas.

This means that a person must knowingly or intentionally possess the drugs that he or she is accused of. If the defendant is not in exclusive possession of the place where the drugs are found, the State must prove additional circumstances and independant facts. These are called Affirmative Links as described in Poindexter v. State, 153 S.W.3d 402, 405-406 (Tex.Cr.App. 2005) that prove the defendant knew of the contraband was there and exercised control of it.

Each case and set of circumstances are different and need to be looked at in a broad context with all the facts. One case’s similar fact may be of no value compared to another case. Case Law discusses that it is not the quantity of links but the ‘logical force’ that they create. The following is a non-exhaustive list of factors that may help to show an affirmative link to controlled substance possession. :

• Accused attempted to flee or escape
• Accused conducted hand to hand drug deal
• Accused was the driver of the vehicle where the drugs were placed and had time to terminate possession, but did not
• Accused was driver or owner of vehicle with contraband
• Accused found with large amount of cash
• Accused had relationship with others who have access to place where contraband was found
• Accused had special connection to contraband
• Accused knew of existence of place where narcotics were secreted
• Accused made pertive gestures
• Accused made incriminating statements connecting himself to contraband
• Accused observed in suspicious area under suspicious circumstances
• Accused owned or resided in place where contraband found
• Accused possessed other contraband at the time of arrest
• Accused present at time of search
• Accused’s conduct indicated consciousness of guilt
• Accused’s physical condition indicated recent consumption of contraband
• Conflicting statements by vehicle occupants
• Contraband found in closet containing men’s clothing, if accused is male
• Contraband found in close proximity and accessible to accused
• Contraband found on accused same as contraband found in accused’s room
• Contraband found in plain view or recovered from enclosed space
• Others present at time of search
• Paraphernalia found on or near accused
• Presence of evidence establishing accused’s occupancy of premises
• Quantity of contraband
• Strong residual order of contraband present

Texas Search and Seizure Laws

Most likely the first element of a drug case that a criminal lawyer needs to look at is how the drugs were found. The lawyer needs to be up to date on illegal search and seizure cases. The Fourth Amendment of the United States Constitution says “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Each case is going to be different and will need to be researched by the attorney to determine whether the search violated the Fourth Amendment. The research will need to look into appellate case law to compare the opinions to the facts of the current client’s case.

Case law discusses the Supreme Court’s view on police-citizen encounters. They have broken it down into 3 distinct types of interactions: (1) Consensual Encounters which require no objective justification; (2) Investigatory Detentions, which require reasonable suspicion; (3) arrests, which require probable cause.

Are You required To Show ID To Police?

In Texas when a consensual encounter occurs, the Fourth Amendment is not implicated. An officer is just as free as anyone to stop and question a fellow citizen. A citizen is free to terminate a consensual encounter at will. In Texas, you can refuse to provide information, if you are not under arrest, lawfully detained, or requested information because the peace officer has good cause to believe you are a witness to a criminal offense. If you are in one of the previously 3 situations, you are required to tell your name, residence address and/or date of birth. There is no bright-line rule to determine when an encounter becomes a seizure. Courts will look at the totality of the circumstances.

Can a Drug Dog Smell My Car?

A police canine can sniff your car during a valid traffic stop and doing so does not violate the Fourth Amendment. However, a traffic stop is not without its limits. A traffic stop is temporary and may last no longer than necessary to effectuate its purpose.

What is Probable Cause To Search a Vehicle?

If an officer can search the vehicle if probable cause exists to believe it contains evidence of criminal activity. Such as if an officer smells marijuana, they will be able to search the vehicle without a warrant. 

Texas Search Warrant

If there is a warrant, it needs to be determined whether the warrant was properly applied and sworn to. Both the Texas Constitution and Code of Criminal Procedure require a search warrant to describe the place to be searched as near as possible. The description in the affidavit limits and controls the description contained in the warrant.

Does My Marijuana Case Have To Be In The County I was arrested?

No it does not if the defendant consents to move the case to an adjacent county. For a possession or delivery of marijuana case, Art. 13.22. POSSESSION AND DELIVERY OF MARIHUANA of the Texas Code of Criminal Procedure says “An offense of possession or delivery of marihuana (also spelled marijuana) may be prosecuted in the county where the offense was committed or with the consent of the defendant in a county that is adjacent to and in the same judicial district as the county where the offense was committed.”

The Drugs Need To Be Tested

For a person to be able to beat a case, aside from an illegal search and seizure, the alleged drugs need to be tested to prove what they are. That may seem obvious, but in reality mistakes happen in drug testing lab’s just like anywhere else.

What Happens if I have a Prescription?

If you have a prescription then it is legal to possess the drugs. If the prescription is expired, there is no restriction for possessing your own prescription drugs. If you have someone else’s drugs, then that can be a problem. You do have to be intentionally or knowingly in possession. And you also need to be prepared for the state to try and use affirmative links to connect you to possession of the drugs.

Drug Conviction and Federal Financial Student Aid

It is critical to not get a conviction for possession or selling drugs while receiving Federal Student Aid. This will affect the student’s eligibility. There will be a waiting period from the conviction date of at least 1 year up to an indefinite period for more than 1 conviction for selling drugs.

A student may speed up eligibility by completing an acceptable drug rehabilitation program or by passing 2 random drug tests by an acceptable drug rehab program.

In Texas Deferred Adjudication is not a conviction. This would be very least an attorney should fight for with his or her client.

Pretrial Drug Programs

Depending on the county, a pretrial drug program may be the best way to go. Defendants with no prior history are, at times, looked at with a more forgiving attitude. There may be some difficult tasks to complete to get successfully accomplish whichever program the county may have. Getting clean and passing drug tests while on bond may also help me when negotiating for my clients in court. Don’t settle for an attorney who does not care to look into your case. There are more issues to discuss depending on your particular circumstances. Give me a call or message at https://www.erictorberson.com and we can discuss how to move forward.

Yes, an arrest is reported by the jail to the Texas Department of Public Safety records. Obviously charges have to be filed in order to be dismissed, which would happen at a later time after an arrest. Arrests, regardless of whether the case is filed, are a criminal record that can be searched for and found by a background check. Many people are under the impression that an expunction happens automatically. This is not the case.

Once My Case is Dismissed How Do I Get it Off My Record?

Article 55.01 of the Code of Criminal Procedure allows for a person arrested for a misdemeanor or felony to have all the records and files relating to the arrest expunged if the person is acquitted in trial, pardoned, or the person is released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court-ordered community supervision under Article 42.12 for the offense, unless the offense is a Class C misdemeanor.

Is There a Waiting Period Before Getting Arrest Expunged? What is the Texas Expunction Timeline?

Depending on the level of the charge the waiting period to be able to get an expunction can vary.

• For a Class C misdemeanor, 180 days must elapse from the date of arrest for which the expunction is sought and no felony charge arises out of the arrest.
• For a Class B or A misdemeanor, 1 year must elapse from the date of arrest and no felony charge arises out of the arrest
• For a Felony charge, 3 years must elapse from the date of arrest.
• The attorney for the state needs to certify that the applicable arrest records and files are not needed for use in any criminal investigation or prosecution including another person.
• Or the charge was dismissed or quashed and the court finds the person completed a pretrial intervention program authorized by the Government Code 76.011 because the presentment had been made because of mistake, false information or similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense, or because the indictment or information was void.
• Or the statute of limitations has expired.

How to Get My Criminal Record in Texas

You can check the Texas DPS website to order your criminal record online.

Can I Expunge a Deceased Relatives Criminal Record?

Yes, the Texas Code of Criminal Procedure 55.011 allows the Right of Close Relative to Seek Expunction on Behalf of Deceased Person. A close relative is is a grandparent, parent, spouse, or adult brother, sister, or child of a deceased person. A close relative of a deceased person is qualified if they would qualify is still alive.

What is the Process For an Expunction?

The defendant must provide notice to the state so that the trial court, if it is a district court, or the district court of the county may grant the order of expunction.

To file an expunction petition a person must file in the district court:

• the petitioner was arrested
• the offense alleged to have occurred
• petition must be verified and include full name
• sex
• race
• date of birth
• driver’s license number
• social security number
• address at the time of the arrest
• the offense charged
• the date of the offense
• the date of arrest
• the county of arrest and municipality if the arrest occurred in municipality
• the agency of arrest
• case number and court of offense
• and with the physical or email addresses of all:
• law enforcement agencies, jail, magistrate, courts, prosecuting attorney, criminal records, other officials or agencies.
• central federal depositories of criminal records that the petitioner has reason to believe have records or files that are subject to expunction; and
• private entities that compile and disseminate for compensation criminal history record information that the petitioner has reason to believe have information related to records or files that are subject to expunction.

Text of subsection effective on January 01, 2019
(b) The order of expunction entered by the court shall have attached and incorporate by reference a copy of the judgment of acquittal and shall include:(1) the following information on the person who is the subject of the expunction order:

(A) full name;

(B) sex;

(C) race;

(D) date of birth;

(E) driver’s license number; and

(F) social security number;

(2) the offense charged against the person who is the subject of the expunction order;

(3) the date the person who is the subject of the expunction order was arrested;

(4) the case number and court of offense; and

(5) the tracking incident number (TRN) assigned to the individual incident of arrest under Article 66.251

(b)(1) by the Department of Public Safety.

(c) When the order of expunction is final, the clerk of the court shall send a certified copy of the order to the Crime Records Service of the Department of Public Safety and to each official or agency or other governmental entity of this state or of any political subdivision of this state named in the order. The certified copy of the order must be sent by secure electronic mail, electronic transmission, or facsimile transmission or otherwise by certified mail, return receipt requested. In sending the order to a governmental entity named in the order, the clerk may elect to substitute hand delivery for certified mail under this subsection, but the clerk must receive a receipt for that hand-delivered order.(c-1)

The Department of Public Safety shall notify any central federal depository of criminal records by any means, including secure electronic mail, electronic transmission, or facsimile transmission, of the order with an explanation of the effect of the order and a request that the depository, as appropriate, either:

(1) destroy or return to the court the records in possession of the depository that are subject to the order, including any information with respect to the order; or

(2) comply with Section 5(f) pertaining to information contained in records and files of a person entitled to expunction under Article 55.01(d).

What Happens When Someone Violates an Expunction Order?

Art. 55.04. VIOLATION OF EXPUNCTION ORDER.

Sec. 1. A person who acquires knowledge of an arrest while an officer or employee of the state or of any agency or other entity of the state or any political subdivision of the state and who knows of an order expunging the records and files relating to that arrest commits an offense if he knowingly releases, disseminates, or otherwise uses the records or files.

Sec. 2. A person who knowingly fails to return or to obliterate identifying portions of a record or file ordered expunged under this chapter commits an offense.

Sec. 3. An offense under this article is a Class B misdemeanor.

Texas Expungement Attorney

Call me to ask more questions. 512-340-7300 or visit this website https://www.erictorberson.com. I have many clients who I have had the privilege to do an expunction. I handled their case in such a way that they qualified to erase the arrest from their record forever and move on with life with a fresh start.

The short answer is forever. But I need to elaborate. The question should be more specific and ask “DWI Conviction” rather than “DWI”. A dwi conviction stays forever. A dwi conviction takes place by two ways. The first way is a plea of guilty prior to trial, where the defendant with or without an attorney, signs paperwork. Then next stands in front of a judge an pleads guilty to driving while intoxicated. The second way is to be found guilty in a trial by judge or jury.

Sometimes a person is only arrested for DWI and later that accusation is dismissed.  Or the defendant pleads guilty to another charge. As far as the dismissal is concerned there will be a right to expunge the arrest. It will just be a matter of if there is a waiting period. The second situation with pleading to another or reduced charge, it will probably not be expungeable unless it was plead to a Class C ticket with a deferred disposition.

Texas used to have a 10 years period where a dwi 10 years or more old could not be used to enhance a current dwi charge. That law was removed several years ago. So any dwi conviction, no matter how old, can be used to enhance the current dwi to a more serious penalty. It is more important than ever to fight and keep a driving while intoxicated off of your record. This means skill and preparation by your attorney. That takes a dedicated lawyer who keeps up to date on his practice and knowledge. There are many times ways to fight DWI cases even when it seems impossible. Call Eric Torberson for answers and avoid having to do this described procedure if at all possible.

Texas Dwi Non Disclosure

On September 1, 2017 Texas Legislature passed House Bill 3016. This allows a non-disclosure for certain DWI case in order to conceal the case from private entities such as employers. Texas Government Code 411.0731 allows for non-disclosure petitions to be filed.

To qualify under this law, the petitioner was convicted of DWI under offense 49.04 with a Class B DWI case and placed on probation. The petitioner completed probation and paid all fines, costs, and restitution if any and was not revoked. This law does not apply to a petitioner on probation for a Class A misdemeanor DWI case.

The petitioner also must have had an alcohol concentration level of less than .15 at the time of an analysis of the petitioners blood, breath, or urine. Petitioner must have satisfied the requirements of Section 411.074 of the Government Code. This means that the person cannot have previously been convicted or placed on deferred adjudication for an offense requiring sex offender registration. It will not allow a person with any previous offense involving kidnapping or family violence.

Also the statute excludes any of the following crimes  Murder 19.02, Capital Murder 19.03, Trafficking of Persons 20A.02, Continuous Trafficking of Persons 20A.03, Injury to a Child, Elderly, or Disabled Person 22.04, Abandoning or Endangering a Child 22.041, Violation of Court Orders of Conditions of Bond in Family Violence, Sexual Assault or Abuse, Stalking, or Trafficking Case 25.07, Repeated Violation of Certain Court Orders or Condtions of Bond in Family Violence, Sexual Assault, or Abuse, Stalking, or Trafficking Case 25.072, or Stalking 42.072.

The petitioner also can not have been convicted or placed on deferred adjudication community supervision while waiting after the probation period is over for another offense other than a traffic offense punishable by fine only.

More Texas Non-Disclosure Eligibility Information

Petitioner must wait a period of time for the non-disclosure depending on whether an ignition interlock device was installed. The waiting period is 2 years upon probation completion if the petitioner installed an ignition interlock device for at least 6 months as a condition of probation. The waiting period is 5 years after the probation is complete if probation did not restrict petitioners use of a motor vehicle with a ignition interlock device for at least 6 months.

Once this is all satisfied the judge will issue an Order of Non-disclosure in the Best Interest of Justice.

What is Invasive Visual Recording?

A person without the other person’s consent invades the privacy of the other person by photographing or by videotaping or other electronic means records, broadcasts, or transmits a visual image of an intimate area of another person if the other person has a reasonable expectation that the intimate area is not in the public view. Or a person photographs, videotapes or other electronic means records, broadcasts, or transmits a visual image of another in a bathroom or changing room. Or a person promotes a private photograph, recording, broadcast, or transmission described above. The penal code statute is Sec. 21.15. INVASIVE VISUAL RECORDING.

What are some Invasive Visual Recording Definitions?

“Female breast” specifically means any portion of the female breast below the top of the areola. And the “Intimate area” means the naked or clothed genitals, pubic area, anus, buttocks, or female breast of a person. Where also the term “Changing room” means a room or portioned area provided for or primarily used for the changing of clothing and includes dressing rooms, locker rooms, and swimwear changing areas. To “Promote” means to manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or advertise, or to offer or agree to any of the above.

What is the criminal penalty for Invasive Visual Recording?

The penalty for this offense is a state jail felony. It is punished by 6 month to 24 months in a state jail facility and up to a $10,000 fine. A probation punishment can be from 2 years to 5 years probation and up to a $10,000 fine. This can be enhanced to a 3rd degree felony if committed with a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or (B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. The punishment for a 3rd degree felony is 2 to 10 years prison and up to a $10,000 fine. For probation the range is 2 to 10 years probation and up to a $10,000 fine. 

Criminal Defense Attorney for Invasive Visual Recording charges

Attorney Eric Torberson defends people accused of charges. Call or fill in the contact form on this page or on any of pages on the website. With offices in Georgetown and Austin Eric handle cases all over central Texas including counties Williamson, Travis, Milam, Bastrop, Lee, Bell, Hays, Caldwell, Blanco, Lee, and Burnet County. 

Texas Video Recording Laws

It is legal to video record in public places.  More to come. 

Changing a Prescription

This is illegal act is common in most criminal cases when a person attempting to obtain the drugs is the person accused. This takes place by possibly changing the prescription somehow to dishonestly obtain prescription medication. An altered prescription is illegal and is described as a crime under Sec. 481.129 (a-1) Obtains or attempts to obtain from practitioner by fraud. 

How Severely is Prescription Tampering Defined?

There are 3 levels of crimes for prescription tampering. Schedule 1 and 2 are measured as a 2d degree penalty. Schedule 3 and 4 are defined as a 3d degree penalty. Schedule 5 is a Class A misdemeanor.  The 3 levels of crime are listed in Penal Code Chapter 12 Punishments. 

What is a Forged Prescription Penalty?

The schedule 1 and 2 that are 2d degree felonies can carry up to 20 years in prison and $10,000 fine. The schedule 3 and 4 that are 3d degree punishments can be up to 10 years in prison and $10,000 fine. The schedule 5 is class A misdemeanor and up to 1 year in county jail and up to a $4,000 fine.  

Crime Levels and Punishment For Forging Prescriptions

Sec. 481.129. OFFENSE: FRAUD

(a) A person commits an offense if the person knowingly:(1) distributes as a registrant or dispenser a controlled substance listed in Schedule I or II, unless the person distributes the controlled substance as authorized under the federal Controlled Substances Act ;

(2) uses in the course of manufacturing, prescribing, or distributing a controlled substance a Federal Drug Enforcement Administration registration number that is fictitious, revoked, suspended, or issued to another person;

(3) issues a prescription bearing a forged or fictitious signature;

(4) uses a prescription issued to another person to prescribe a Schedule II controlled substance;

(5) possesses, obtains, or attempts to possess or obtain a controlled substance or an increased quantity of a controlled substance: (A) by misrepresentation, fraud, forgery, deception, or subterfuge; (B) through use of a fraudulent prescription form; or (C) through use of a fraudulent oral or telephonically communicated prescription; or

(6) furnishes false or fraudulent material information in or omits material information from an application, report, record, or other document required to be kept or filed under this chapter.

(a-1) A person commits an offense if the person, with intent to obtain a controlled substance or combination of controlled substances that is not medically necessary for the person or an amount of a controlled substance or substances that is not medically necessary for the person, obtains or attempts to obtain from a practitioner a controlled substance or a prescription for a controlled substance by misrepresentation, fraud, forgery, deception, subterfuge, or concealment of a material fact.

(b) A person commits an offense if the person knowingly or intentionally:(1) makes, distributes, or possesses a punch, die, plate, stone, or other thing designed to print, imprint, or reproduce an actual or simulated trademark, trade name, or other identifying mark, imprint, or device of another on a controlled substance or the container or label of a container for a controlled substance, so as to make the controlled substance a counterfeit substance; or

(2) manufactures, delivers, or possesses with intent to deliver a counterfeit substance. (c) A person commits an offense if the person knowingly or intentionally:

(1) delivers a prescription or a prescription form for other than a valid medical purpose in the course of professional practice; or

(2) possesses a prescription for a controlled substance or a prescription form unless the prescription or prescription form is possessed:(A) during the manufacturing or distribution process; (B) by a practitioner, practitioner’s agent, or an institutional practitioner for a valid medical purpose during the course of professional practice; (C) by a pharmacist or agent of a pharmacy during the professional practice of pharmacy; (D) under a practitioner’s order made by the practitioner for a valid medical purpose in the course of professional practice; or (E) by an officer or investigator authorized to enforce this chapter within the scope of the officer’s or investigator’s official duties.(d) An offense under Subsection (a) is:(1) a felony of the second degree if the controlled substance that is the subject of the offense is listed in Schedule I or II;(2) a felony of the third degree if the controlled substance that is the subject of the offense is listed in Schedule III or IV; and (3) a Class A misdemeanor if the controlled substance that is the subject of the offense is listed in Schedule V.

(d-1) An offense under Subsection (a-1) is:(1) a felony of the second degree if any controlled substance that is the subject of the offense is listed in Schedule I or II;

(2) a felony of the third degree if any controlled substance that is the subject of the offense is listed in Schedule III or IV; and

(3) a Class A misdemeanor if any controlled substance that is the subject of the offense is listed in Schedule V.

(e) An offense under Subsection (b) is a Class A misdemeanor. 

(f) An offense under Subsection (c)(1) is:

(1) a felony of the second degree if the defendant delivers:

(A) a prescription form; or

(B) a prescription for a controlled substance listed in Schedule II; and(2) a felony of the third degree if the defendant delivers a prescription for a controlled substance listed in Schedule III, IV, or V.(g) An offense under Subsection (c)(2) is:(1) a state jail felony if the defendant possesses:(A) a prescription form; or(B) a prescription for a controlled substance listed in Schedule II or III; and(2) a Class B misdemeanor if the defendant possesses a prescription for a controlled substance listed in Schedule IV or V. 

The highlighted portion above focuses on the crime and punishment for the person trying to use the fraudulent transaction to obtain drugs according to the Texas Health and Safety Code, Texas Controlled Substances Act.  

Other Prescription Fraud Charges

Other forms of fraud listed in the statute above include the prescriber of the drugs to have commited a crime in one form or another to get drugs to a person. It happens but is less common than the fraud being committed by the person obtaining the prescription medication. 

Drug Schedules

The Department of State Health Services website has a list of scheduled drugs. Each schedule number of drugs get weaker with each number of 1 through 5. 

Contact Eric Torberson at https://www.erictorberson.com for more assistance. In the central Texas area Eric handles several counties with numerous satisfied clients. 

What is Notice of Criminal Trespass Texas?

Notice is a very important consideration when proving someone is trespassing.  Notice of trespassing in Texas is defined as any one of the following-oral or written communication, fencing, signs, purple painted vertical lines, or crops. 

Criminal trespass is considered a significant crime in the United States. One of the important elements is having knowledge or “notice” that you are actually trespassing. For residential areas, a fence on the property is notice that intruders are supposed to stay out. Climbing a fence onto someone’s property is a class B misdemeanor. If an intruder has a weapon then the crime is increased to a class A misdemeanor. 

“Notice” means:

(A)  oral or written communication by the owner or someone with apparent authority to act for the owner;

(B)  fencing or other enclosure obviously designed to exclude intruders or to contain livestock;

(C)  a sign or signs posted on the property or at the entrance to the building, reasonably likely to come to the attention of intruders, indicating that entry is forbidden; 

(D)  the placement of identifying purple paint marks on trees or posts on the property, provided that the marks are:

(i)  vertical lines of not less than eight inches in length and not less than one inch in width;

(ii)  placed so that the bottom of the mark is not less than three feet from the ground or more than five feet from the ground;  and

(iii)  placed at locations that are readily visible to any person approaching the property and no more than:

(a)  100 feet apart on forest land;  or

(b)  1,000 feet apart on land other than forest land;  or

(E)  the visible presence on the property of a crop grown for human consumption that is under cultivation, in the process of being harvested, or marketable if harvested at the time of entry.

Accused of Texas Criminal Trespass?  Contact me at http://erictorberson.com.

CHAPTER 30. BURGLARY AND CRIMINAL TRESPASS

Sec. 30.01.  DEFINITIONS.  In this chapter:

(1)  “Habitation” means a structure or vehicle that is adapted for the overnight accommodation of persons, and includes:

(A)  each separately secured or occupied portion of the structure or vehicle;  and

(B)  each structure appurtenant to or connected with the structure or vehicle.

(2)  “Building” means any enclosed structure intended for use or occupation as a habitation or for some purpose of trade,manufacture, ornament, or use.

(3)  “Vehicle” includes any device in, on, or by which any person or property is or may be propelled, moved, or drawn in the normal course of commerce or transportation, except such devices as are classified as “habitation.”

(4)  “Controlled substance” has the meaning assigned by Section 481.002, Health and Safety Code.

(5)  “Wholesale distributor of prescription drugs” means a wholesale distributor, as defined by Section 431.401, Health and Safety Code.

Sec. 30.05.  CRIMINAL TRESPASS.  (a)  A person commits an offense if the person enters or remains on or in property of another, including residential land,agricultural land, a recreational vehicle park, a building, or an aircraft or other vehicle, without effective consent and the person:

(1)  had notice that the entry was forbidden; or

(2)  received notice to depart but failed to do so.

(b)  For purposes of this section:

(1)  “Entry” means the intrusion of the entire body.

(2)  “Notice” means:

(A)  oral or written communication by the owner or someone with apparent authority to act for the owner;

(B)  fencing or other enclosure obviously designed to exclude intruders or to contain livestock;

(C)  a sign or signs posted on the property or at the entrance to the building, reasonably likely to come to the attention of intruders,indicating that entry is forbidden; 

(D)  the placement of identifying purple paint marks on trees or posts on the property, provided that the marks are:

(i)  vertical lines of not less than eight inches in length and not less than one inch in width;

(ii)  placed so that the bottom of the mark is not less than three feet from the ground or more than five feet from the ground;  and

(iii)  placed at locations that are readily visible to any person approaching the property and no more than:

(a)  100 feet apart on forest land;  or

(b)  1,000 feet apart on land other than forest land;  or

(E)  the visible presence on the property of a crop grown for human consumption that is under cultivation, in the process of being harvested,or marketable if harvested at the time of entry.

(3)  “Shelter center” has the meaning assigned by Section 51.002, Human Resources Code.

(4)  “Forest land” means land on which the trees are potentially valuable for timber products.

(5)  “Agricultural land” has the meaning assigned by Section 75.001, Civil Practice and Remedies Code.

(6)  “Superfund site” means a facility that:

(A)  is on the National Priorities List established under Section 105 of the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. Section 9605);  or

(B)  is listed on the state registry established under Section 361.181, Health and Safety Code.

(7)  “Critical infrastructure facility” means one of the following, if completely enclosed by a fence or other physical barrier that is obviously designed to exclude intruders:

(A)  a chemical manufacturing facility;

(B)  a refinery;

(C)  an electrical power generating facility, substation, switching station, electrical control center, or electrical transmission or distribution facility;

(D)  a water intake structure, water treatment facility, wastewater treatment plant, or pump station;

(E)  a natural gas transmission compressor station;

(F)  a liquid natural gas terminal or storage facility;

(G)  a telecommunications central switching office;

(H)  a port, railroad switching yard, trucking terminal, or other freight transportation facility;

(I)  a gas processing plant, including a plant used in the processing, treatment, or fractionation of natural gas; or

(J)  a transmission facility used by a federally licensed radio or television station.

(8)  “Protected freshwater area” has the meaning assigned by Section 90.001, Parks and Wildlife Code.

(9)  “Recognized state” means another state with which the attorney general of this state, with the approval of the governor of this state, negotiated an agreement after determining that the other state:

(A)  has firearm proficiency requirements for peace officers; and

(B)  fully recognizes the right of peace officers commissioned in this state to carry weapons in the other state.

(10)  “Recreational vehicle park” has the meaning assigned by Section 13.087, Water Code.

(11)  “Residential land” means real property improved by a dwelling and zoned for or otherwise authorized for single-family or multifamily use.

(12)  “Institution of higher education” has the meaning assigned by Section 61.003, Education Code.

(c)  Repealed by Acts 2009, 81st Leg., R.S., Ch. 1138, Sec. 4, eff. September 1, 2009.

(d)  An offense under this section is:

(1)  a Class B misdemeanor, except as provided by Subdivisions (2) and (3);

(2)  a Class C misdemeanor, except as provided by Subdivision (3), if the offense is committed:

(A)  on agricultural land and within 100 feet of the boundary of the land; or

(B)  on residential land and within 100 feet of a protected freshwater area; and

(3)  a Class A misdemeanor if:

(A)  the offense is committed:

(i)  in a habitation or a shelter center;

(ii)  on a Superfund site; or

(iii)  on or in a critical infrastructure facility;

(B)  the offense is committed on or in property of an institution of higher education and it is shown on the trial of the offense that the person has previously been convicted of:

(i)  an offense under this section relating to entering or remaining on or in property of an institution of higher education; or

(ii)  an offense under Section 51.204(b)(1), Education Code, relating to trespassing on the grounds of an institution of higher education; or

(C)  the person carries a deadly weapon during the commission of the offense.

(d-1)  For the purposes of Subsection (d)(3)(B), a person has previously been convicted of an offense described by that paragraph if the person was adjudged guilty of the offense or entered a plea of guilty or nolo contendere in return for a grant of deferred adjudication community supervision, regardless of whether the sentence for the offense was ever imposed or whether the sentence was probated and the person was subsequently discharged from deferred adjudication community supervision.

(d-2)  At the punishment stage of a trial in which the attorney representing the state seeks the increase in punishment provided by Subsection (d)(3)(B), the defendant may raise the issue as to whether, at the time of the instant offense or the previous offense, the defendant was engaging in speech or expressive conduct protected by the First Amendment to the United States Constitution or Section 8, Article I, Texas Constitution.  If the defendant proves the issue in the affirmative by a preponderance of the evidence, the increase in punishment provided by Subsection (d)(3)(B) does not apply.

(e)  It is a defense to prosecution under this section that the actor at the time of the offense was:

(1)  a firefighter or emergency medical services personnel, as defined by Section 773.003, Health and Safety Code, acting in the lawful discharge of an official duty under exigent circumstances;

(2)  a person who was:

(A)  an employee or agent of:

(i)  an electric utility, as defined by Section 31.002, Utilities Code;

(ii)  a telecommunications provider, as defined by Section 51.002, Utilities Code;

(iii)  a video service provider or cable service provider, as defined by Section 66.002, Utilities Code;

(iv)  a gas utility, as defined by Section 101.003, Utilities Code, which for the purposes of this subsection includes a municipally owned utility as defined by that section;

(v)  a gas utility, as defined by Section 121.001, Utilities Code;

(vi)  a pipeline used for the transportation or sale of oil, gas, or related products; or

(vii)  an electric cooperative or municipally owned utility, as defined by Section 11.003, Utilities Code; and

(B)  performing a duty within the scope of that employment or agency; or

(3)  a person who was:

(A)  employed by or acting as agent for an entity that had, or that the person reasonably believed had, effective consent or authorization provided by law to enter the property; and

(B)  performing a duty within the scope of that employment or agency.

(f)  It is a defense to prosecution under this section that:

(1)  the basis on which entry on the property or land or in the building was forbidden is that entry with a handgun was forbidden; and

(2)  the person was carrying:

(A)  a license issued under Subchapter H, Chapter 411, Government Code, to carry a handgun; and

(B)  a handgun:

(i)  in a concealed manner; or

(ii)  in a shoulder or belt holster.

(g)  It is a defense to prosecution under this section that the actor entered a railroad switching yard or any part of a railroad switching yard and was at that time an employee or a representative of employees exercising a right under the Railway Labor Act (45 U.S.C. Section 151 et seq.).

(h)  At the punishment stage of a trial in which the attorney representing the state seeks the increase in punishment provided by Subsection (d)(3)(A)(iii), the defendant may raise the issue as to whether the defendant entered or remained on or in a critical infrastructure facility as part of a peaceful or lawful assembly, including an attempt to exercise rights guaranteed by state or federal labor laws.  If the defendant proves the issue in the affirmative by a preponderance of the evidence, the increase in punishment provided by Subsection (d)(3)(A)(iii) does not apply.

(i)  This section does not apply if:

(1)  the basis on which entry on the property or land or in the building was forbidden is that entry with a handgun or other weapon was forbidden; and

(2)  the actor at the time of the offense was a peace officer,including a commissioned peace officer of a recognized state, or a special investigator under Article 2.122, Code of Criminal Procedure, regardless of whether the peace officer or special investigator was engaged in the actual discharge of an official duty while carrying the weapon.

Sec. 30.06.  TRESPASS BY LICENSE HOLDER WITH A CONCEALED HANDGUN.  (a)  A license holder commits an offense if the license holder:

(1)  carries a concealed handgun under the authority of Subchapter H, Chapter 411, Government Code, on property of another without effective consent; and

(2)  received notice that entry on the property by a license holder with a concealed handgun was forbidden.

(b)  For purposes of this section, a person receives notice if the owner of the property or someone with apparent authority to act for the owner provides notice to the person by oral or written communication.

(c)  In this section:

(1)  “Entry” has the meaning assigned by Section 30.05(b).

(2)  “License holder” has the meaning assigned by Section 46.035(f).

(3)  “Written communication” means:

(A)  a card or other document on which is written language identical to the following:  “Pursuant to Section 30.06, Penal Code (trespass by license holder with a concealed handgun), a person licensed under Subchapter H, Chapter 411, Government Code (handgun licensing law), may not enter this property with a concealed handgun”; or

(B)  a sign posted on the property that:

(i)  includes the language described by Paragraph (A) in both English and Spanish;

(ii)  appears in contrasting colors with block letters at least one inch in height; and

(iii)  is displayed in a conspicuous manner clearly visible to the public.

(d)  An offense under this section is a Class C misdemeanor punishable by a fine not to exceed $200, except that the offense is a Class A misdemeanor if it is shown on the trial of the offense that, after entering the property, the license holder was personally given the notice by oral communication described by Subsection(b) and subsequently failed to depart.

(e)  It is an exception to the application of this section that the property on which the license holder carries a handgun is owned or leased by a governmental entity and is not a premises or other place on which the license holder is prohibited from carrying the handgun under Section 46.03 or 46.035.

(f)  It is a defense to prosecution under this section that the license holder is volunteer emergency services personnel, as defined by Section 46.01.

Sec.30.07.  TRESPASS BY LICENSE HOLDER WITH AN OPENLY CARRIED HANDGUN.  (a)  A license holder commits an offense if the license holder:

(1)  openly carries a handgun under the authority of Subchapter H, Chapter 411, Government Code, on property of another without effective consent; and

(2)  received notice that entry on the property by a license holder openly carrying a handgun was forbidden.

(b)  For purposes of this section, a person receives notice if the owner of the property or someone with apparent authority to act for the owner provides notice to the person by oral or written communication.

(c)  In this section:

(1)  “Entry” has the meaning assigned by Section 30.05(b).

(2)  “License holder” has the meaning assigned by Section 46.035(f).

(3)  “Written communication” means:

(A)  a card or other document on which is written language identical to the following:  “Pursuant to Section 30.07, Penal Code (trespass by license holder with an openly carried handgun), a person licensed under Subchapter H, Chapter 411, Government Code (handgun licensing law), may not enter this property with a handgun that is carried openly”; or

(B)  a sign posted on the property that:

(i)  includes the language described by Paragraph (A) in both English and Spanish;

(ii)  appears in contrasting colors with block letters at least one inch in height; and

(iii)  is displayed in a conspicuous manner clearly visible to the public at each entrance to the property.

(d)  An offense under this section is a Class C misdemeanor punishable by a fine not to exceed $200, except that the offense is a Class A misdemeanor if it is shown on the trial of the offense that, after entering the property, the license holder was personally given the notice by oral communication described by Subsection(b) and subsequently failed to depart.

(e)  It is an exception to the application of this section that the property on which the license holder openly carries the handgun is owned or leased by a governmental entity and is not a premises or other place on which the license holder is prohibited from carrying the handgun under Section 46.03 or 46.035.

(f)  It is not a defense to prosecution under this section that the handgun was carried in a shoulder or belt holster.

(g)  It is a defense to prosecution under this section that the license holder is volunteer emergency services personnel, as defined by Section 46.01.

This question on whether a misdemeanor will affect a background check is too vague and needs to be more specific to answer accurately. So maybe the question should be this….

Will Dismissed Charges Affect Employment?

The answer is maybe. At least in Texas an arrest will show up on a background check until it is expunged and erased from a person’s record. I tell my clients to carry a copy of the court order of dismissal with them if the issue arises. Then they should explain that this will be erased from their record very soon assuming that they are pursuing an expunction in the county of arrest. It also depends on what the exact wording in the job application is. Some ask about felonies. Some ask about convictions. Some ask about both and arrests as well. Leaving out what the application is asking for can be negative for the applicant because the employer will expect honesty from a potential employee foremost.

Will Being Charged But Not Convicted of a Felony Affect My Job?

Again it depends on the job. There are many jobs that hire convicted felons to do various work. This question seems to apply to a pending case or one that only has recently been dismissed. Otherwise it would be prudent to get it expunged as soon as possible. Some employers do not want to hire someone with a pending case and need it to be resolved. It depends on company policy and certain liability issues with regard to the criminal charge. Some jobs require driving or being around money. The type of pending case will really determine what the company will want to do assuming they are aware of the charge.

What Do They See on My Criminal Record if not Convicted?

The arrest will show up on most criminal records until it is expunged. Again I tell people to carry the dismissal order to show that it is over and done with. The background check will show the arrest date, charge and where it took place. You will want to contact a local attorney in that town or county in which the arrest happened in order to find out how to get it erased or expunged.

How Long Do Arrests Stay On Your Record?

Arrests will stay on your record forever. Since the modern age of computers has come to be, arrests are in most local computer systems. Those records get sent to the Department of Public Safety’s system and are available to everyone from there. Which is why I send notice to DPS when I do expungements for my clients.

If Charges Are Dismissed Do You Have a Criminal Record?

In a way yes depending on how you define the term criminal record. The criminal history will have unexpunged arrests which may raise eyebrows of potential employers. For instance a bank may think twice about hiring someone with dismissed theft charges on their record. Or maybe multiple theft charges that were dismissed. Someone wanting to work at a daycare may have a hard time getting a job even with a domestic violence charge first offense on their record even if they are dismissed. A future nurse would not want prescription fraud charges and the list can go on and on.

Jobs You Cannot Get With a Criminal Record

There are many jobs that restrict applicants to having a clean record. The military can be extremely selective on who they let in. This especially true in non-war times when troop numbers are being reduced. Law enforcement is very selective. In Texas a peace officer can have a misdemeanor on record but is must be 10 years or more old. Pilots cannot have records including intoxication offenses. Many of the regulated licensing jobs such as teachers, nurses, and lawyers require strict background searches before licensing. It can be especially difficult with a felony in the background.

How a Domestic Violence Charge Ruined My Life

I had a client visit me at my office looking for Austin assault attorneys. He was charged with an assault family violence commonly referred to as a domestic violence charge. He had previously had a domestic violence allegation called in on him by a girlfriend he used to live with. He wanted the case over quickly so he didn’t hire the best attorney and took the probation offer that the prosecutor gave to him in court. He did not know that the conviction would get him fired from his job when they did a background check. While he was unemployed he still have to do 130 hours community service and pay a $3000 fine. He had a concealed handgun license he had to give up as well as not possess guns for 5 years in Texas. Texas has its laws but under Federal Law he can never possess a gun. This is not the worst part. He recently had an argument with a new girlfriend and she accused him of assaulting her. This time is was a 3rd degree felony. Once a person has a family violence finding in Texas the next accusation becomes a felony by enhancement. That means he could potentially face 10 years in prison maximum. Luckily for him I got the case dropped and we expunged it later on. It’s too bad he didn’t have my representation on his first case. It would have saved him from a tremendous amount of stress.

How To Get a Misdemeanor Expunged in Texas

The procedure for expunging a misdemeanor and a felony are the same. A petition and order are filed in the clerk’s office just like any civil lawsuit would be file. The following topic will explain the general process for expunging a case in Texas state court.

How To Expunge a Dismissed Case

A dismissed case or an acquitted trial case can be expunged. The dismissed case may require a waiting period before an expungement can take place. Some prosecutors offices will oppose an expungement until the statute of limitations has expired. Or hopefully sometimes they will agree to an immediate expungement. Once an expungement is ready to begin, an attorney will prepare a petition and order. The documents will contain the critical details about the arrest with data and dates to identify the exact arrest to be expunged. The document gets filed at the clerk’s office just as any civil lawsuit would. A waiting period of 30 days is required before it is set in district court for a judge to examine. Once the judge determines that the expungement paperwork is proper the order is signed. The expungement is then taken to be filed a the clerk’s office. The attorney will then get certified copies for the client. The clerk’s office will forward a copy of the order to the various agencies listed in the order who will have the arrest in their records. This can be the police, jail, court, bondsman, clerks, prosecutors, and the DPS. Other online reporting sites may need to be included as well. They can be hard to reach. This notification time period can take several months. Sometimes the expungement order doesn’t get sent properly to each agency and another copy of the order needs to be sent. It is satisfying for me once I have completed an expungement. I was able to get the case dismissed and then expunged. It means the client can move on with their life to bigger and better things.

Texas Expungement Cost After Acquittal

After a trial by judge or jury, a defendant is entitled to an expungement immediately. For it to be cost free it needs to be done within 30 days for the filing fee to be waived. This doesnt mean the attorney will be doing it for free, the cost should be several hundred dollars cheaper that otherwise.

Eligibility For Clemency and Pardon in Texas

This discussion would not be complete without a discussion on pardons. It is the third and most unlikely way to qualify for an expunction in Texas. Each year the governor pardons a handful of people who are screened and make it through the process. An application is posted on the Board of Pardons and Paroles. The Board recommends clemency matters, including pardons, to the Governor as it states on their website. The number of pardons are very few. There were only 10 pardons given in 2013 by former Governor Rick Perry. Governor Abbott pardoned 5 people in 2016. There are different pardons. A pardon for innocence is by far the best pardon to receive. It declares a person innocent wipes the conviction from their record completely. This is only available for felonies. A conditional pardon involves conditions to complete during a time period or the pardon will be revoked by the governor. A full pardon clears the felony or misdemeanor conviction and restores most rights. The person will not be eligible to become a peace officer. A pardoned convict will never be able to become a Texas police officer.

How to Get My Criminal Record in Texas

There are options for people to search their own criminal records. A common site to use is the Texas DPS criminal records search https://publicsite.dps.texas.gov/DpsWebsite/CriminalHistory/.  There are other sites as well that require a small fee. Another way is to look for county website data in the county where there may be possible criminal history. The problem is that many rural counties do not have records posted online and will require a paid manual search that can take quite a bit of time.

Texas Background Check Laws

The Texas Workforce Commission website has some rules regarding employers background checks for employers to obey. Also there are suggestions to employers in order to be fair to someone who may have been in trouble in the far past. They suggest to “try to consider only criminal history that is recent enough to be relevant, given the nature of a particular offense, the nature of the job, and the corresponding level of risk of harm – the remoteness of an offense is a factor in the job.” The EEOC site also has guidelines and suggestions about employers inquiring into criminal background. It might be prudent for a person to read over these suggestions to help understand the employers position and approach to interviewing applicants.

Will I lose My Drivers License With DUI or DWI?

It is very possible that a Texas drivers license will be suspended after a DUI or DWI charge. DUI charged drivers, reserved for people under 21, are looking at a possible 60 days suspension for a first time charge. It is not automatic since there is an option for the person to request a hearing in front of an administrative judge. However, DWI charges can be given to drivers of any age. Times can range from a 90 day suspension for a test failure to a 2 year suspension for a subsequent refusal within a certain amount of time from a previous suspension.  We have won driver’s license suspension hearings based on lack of evidence and for witnesses not showing up. It is not an automatic loss. But if a suspension does occur, there is a legal way to drive.

Texas Drivers License Status

Sometimes you may want to check the status of your Texas driver’s license. You can click on the below link and enter your information to see the status. But sometimes Texas drivers license check is not very current. Beware if you think you might have a DWI ALR suspension and want the latest status.

https://txapps.texas.gov/txapp/txdps/dleligibility/login.do

Occupational License Texas

Texas allows most people to obtain a Texas provisional license that allows a hardship limited license to go to work and other necessities. It can be limited to 4 hours a day with only certain routes. It can also allow up to 12 hours per dayt or be unlimited times and travel with an ignition interlock device installed. Take a look at this page for more information http://erictorberson.com/how-do-i-get-my-license-back-after-suspension-in-texas.

Contact http://erictorberson.com for more information.

Assaults accusations at home are a common charge in Texas. Many times arguments are the result of a minor disagreement that gets blown out of proportion.  Sometimes alcohol is involved, and believe it or not, it helps the situation more reasonably explainable later on. It is always wiser to take a deep breath and step away. Many times egos don’t allow stepping away in the heat of the moment. The angry argument can be the result of smaller issues building up over time.

Bodily Injury Penal Code

Bodily injury is defined in Chapter 1.07 in the Texas Penal Code  as “Bodily Injury” means physical pain, illness, or any impairment of physical of physical condition. I have handled cases and have seen various assault allegations. Some cases involve blood, bruises, and even stabbing. But bodily injury can be as minor as a pinch as long as it caused pain. 1989 case law mentions that “bodily injury” is purposefully broad and includes even minor contact but must be more than offensive touching.

Bodily injury is less than “serious bodily injury” which means “bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” according to 1.07(46) of the Texas Penal Code.

So any physical pain no matter how minor, will qualify and bodily injury. Case law from 2012 says the fact finder (judge or jury) can infer that the victim felt pain. It reasons that people of common intelligence understand pain and some of the natural causes of it.

Texas Assault Causes Bodily Injury Family Member Levels

There are many varieties of assault cases with various levels of accusations. The most minor charge is Assault by Contact or Threat and is a Class C misdemeanor in Texas It is punishable by fine only. This charge requires the mental state of intentionally or knowingly. It will need more specific intent than the rest of the assault statute. This means a person cannot recklessly cause assault by physical contact and be found at fault of violating a law. The next higher assault charge requires intentionally, knowingly or recklessly mental state while committing the act.

Reckless means “with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur.” Also a gross deviation from the standard of care that an ordinary person would exercise from the actor’s standpoint.

In order for the prosecution to prove reckless, they must produce a prima facie case of defendant’s actual, subjective disregard of the risk of a resulting injury which rises to the level of a gross deviation from an ordinary standard of conduct.

The state’s indictment must allege with reasonable certainty the act or acts relied upon. It means needs to say more than just “acted recklessly in committing the offense.”

Assault by Contact against an elderly or disabled person is a Class A misdemeanor.

Assault on a Family Member or Non Family Member

The victim’s relationship with the aggressor is significant if for nothing else enhancement purposes later if there is another accusation with the same person or a different person. But the statute has a defense. A mother cannot be charged with committing a crime against her unborn child. Also physicians and other healthcare providers with consent to do lawful medical procedures.

What is a Family Violence?

The Texas Penal code refers to Texas Family Code to define family violence as seen below. If a person has previously been convicted or placed on deferred adjudication for family violence, then the new accusation is a 3rd degree felony.
Sec. 71.004. FAMILY VIOLENCE. “Family violence” means:

(1) an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself;

(2) abuse, as that term is defined by Sections 261.001(1)(C), (E), (G), (H), (I), (J), (K), and (M), by a member of a family or household toward a child of the family or household; or

(3) dating violence, as that term is defined by Section 71.0021.

How Much Jail Time for Assault Causing Bodily Harm?

There is no requirement for jail time in Texas for assault family violence. Generically speaking in Texas people with significant criminal history have a better chance to go to jail for any particular crime not just assault. For a first time assault family violence class A misdemeanor case the possible jail time is up to one year in county jail.
There is a possibility of getting probation only. Probation and jail time as a condition of probation or only jail time depending on the circumstances.

Best Texas Criminal Lawyer for Assault​

While looking for a defense lawyer or for instance the best criminal defense attorney Georgetown Tx, give us a call. It takes experience, skill, and a strong desire to win. I have all three qualities for my clients.

What is a Household Member?​

The state must prove and an element of the offense of felony assault on a household member that the two were living together when the offense took place. A 2010 case defines a dating relationship as same and opposite sex relationships.

What Makes My Assault Case a 3rd Degree Felony?

Usually a case is a Class A misdemeanor. It becomes a 3rd degree felony for a few different reasons. The first of which is if the actor knew the person was a public servant lawfully discharging an official duty or in retaliation for performance of an official duty as a public servant. Secondly as mentioned early, the defendant was previously convicted of an assault family violence (there are other charges that can be used) charge or given deferred adjudication. Thirdly, it is a 3rd degree felony to intentionally, knowingly or recklessly impede the normal breathing or circulation of blood of a person by applying pressure to the person’s throat or neck or blocking the person’s nose or throat.

Also assaulting a security officer or emergency services personnel who is performing duty is a 3rd degree felony. It is a felony to force a pregnant woman to have an abortion. A government contract worker in a correctional or detention facility, if assaulted, will be charged as a 3rd degree felony.

What Makes My Assault Case a 2nd Degree Felony?

An offense committed against a dating, family or household member and the defendant has been previously convicted of assault family violence will rise to 2nd degree if impeding breath or blood is charged. Also an offense against a peace officer or judge lawfully discharging official duties or retaliation for those duties.