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Texas HB 3016 amends the Texas Government Code and now allows certain nonviolent misdemeanors to be eligible for a nondisclosure. When certain conditions are satisfied, the new law allows for some individuals convicted of a DWI to receive a nondisclosure.

DWI Cases: Who is Eligible for a Nondisclosure?

You may be eligible for a nondisclosure if you were convicted of a first DWI, your blood alcohol was less than 0.15, there was no accident involving another individual, and you have satisfied the proper waiting period. If you were ordered to have ignition interlock on your vehicle for at least six months, you must wait two years. If you did not have ignition interlock on your vehicle, then you must wait five years.

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camera-1-300x201In 2014, the Texas Court of Criminal Appeals upheld a challenge to the constitutionality of Texas’s law on improper photography or visual recording. Texas Penal Code § 21.15(b)(1) was found unconstitutional on its face in Ex parte Thompson, [Sept. 17, 2014], “to the extent it proscribes the taking of photographs and the recording of visual images…” The Texas Court of Criminal Appeals found this section of the penal code violated the Free Speech Clause of the First Amendment of the United States ConstitutionEx parte Thompson was a criminal case out of Bexar County, Texas.

The First Amendment, made applicable to the State’s through the Fourteenth Amendment, protects individual’s right to exercise free speech. In Thompson, the Court of Criminal Appeals reasoned that a photographer’s camera is equivalent to a painter’s paintbrush and the content should thus be regulated the same in the First Amendment context.

The Court of Criminal Appeals found that the statute prohibited content based material, thus the statute was reviewed under the strict scrutiny standard. Subsection (b)(1) was a sort of catch-all provision that violated all forms of photography and visual recording—even innocent ones.

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At a summit addressing the opioid addiction problem in the United States, Trump suggested executing drug dealers. These comments came after other speakers, including members of his cabinet, discussed focusing on treatment and therapy to combat the problem. Some speakers also focused on disrupting the supply coming into the United States from countries like China and Mexico. Trump then repeated his death penalty ideas a few weeks later at rally in Pennsylvania. Attorney General Jeff Sessions has already issued a policy to his prosecutors to seek the harshest penalties in drug cases. In the past Trump has condoned Singapore’s use of the death penalty in drug cases. Trump has also praised the controversial President of the Philippines Rodrigo Duterte for his use of extrajudicial police killings to wage his war on drugs.images

Many opioids, however, are made legally by manufacturers and then distributed by doctors to their patients for treatment purposes. On the other hand, illegal drugs such as heroin also belong to the opioid class of drugs.

Some counties around the country, such as Bexar County, Texas, have elected to sue opioid manufacturers and distributors. The suit is targeting big pharma companies such as Purdue Pharma, Teva Pharmaceuticals, Cephalon and Johnson & Johnson. Express-News reported that, “The county named a combination of 11 manufacturers, promoters and distributors to be sued, though the list is not exhaustive.”

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482515106-300x200A very strange and appalling case out of a Fort Worth, Texas district court has made national news, but this time its not for the actions of the defendant. Judge George Gallagher from Tarrant County, Texas, ordered his bailiff to electrocute Terry Lee Morris with a stun belt when he would not directly answer the judge’s questions. The federal Fifth Circuit Court of Appeals has explained that the stun belt “delivers a 50,000 volt electrical shock to the wearer when activated.” Chavez v. Cocktrell, 310 F.3d 805, 807 n.1 (5th Cir. 2002). Morris was ultimately shocked three times.

Morris, who was on trial for soliciting sexual performance from a minor, was trying to object with the court proceeding with the trial and would not answer the judge’s questions directly. Morris was complaining that he had a pending lawsuit against the judge and his defense counsel in the case.

Gallagher ordered his bailiff to shock Morris. After the first shock, this exchange followed:

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Testimony in Shawn Luis Puente’s capital murder trial started today in Atascosa County, Texas. Puente is accused of killing San Antonio Police Officer Robert Deckard. Puente and his girlfriend are alleged to have led Deckard, along with other officers, on a high speed chase from San Antonio down to Wilson County after they robbed a convenient store in San Antonio.

Officer Deckard was shot in the head during the chase on December 7, 2013. He died 13 days later in the hospital. He was only 31 years old.If convicted, the State of Texas is seeking the death penalty. The jury will have to decide to sentence Puente to death or life in prison without the possibility of parole. Puente’s girlfriend, Jenevieve Ramos, will go trial at a later date and the state is also seeking the death penalty in that case as well.

During opening statements today, defense counsel apparently told the jury that Puente shot the fatal shot, but asked the jurors to not make a quick decision. Counsel explained that her client was a meth addict and on a drug binge on the night of the shooting.

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A 12-year-old girl that attends Roy J. Smith middle school in Killeen, Texas was arrested for making terroristic threats on social media rape, shoot, and torture other students at her school. The threats the student made on social media prompted thousands of students and their parents to be too scared to attend school on Wednesday. In fact, over 4,000 students missed school.computer-keyboard-1242933-300x226

Students, family, and friends are encouraged to report these types of threats from students on social media; especially in the wake of yet another mass school shooting. However, these types of threats on social media, although very concerning, raise First Amendment freedom of speech protections as well as intent to commit a crime. Similar cases have been addressed recently by the Supreme Court of the United and the Texas Appellate Courts.

In 2015, the Supreme Court ruled in Elonis v. U.S. that the Government  was required to but failed to prove that Elonis, who was going through a divorce and posted threats to kill his wife, had the intent to kill his wife. The Supreme Court did not reach the First Amendment issue that was raised. In 2017, the Texas Court of Criminal Appeals also addressed the constitutionality of Texas Penal Code 22.07, the Terroristic Threats section. In denying his pretrial writ of habeas corpus, the Court of Criminal Appeals found that Carter was actually challenging the sufficiency of the evidence, which cannot be raised in a pretrial writ. Justin Carter’s case has been say for trial in May 2018.

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In a strange case that has more questions than answer, a Seguin, Texas family is mourning the loss of a young couple who were shot and killed by a local doctor. Law enforcement is reporting that Dr. Robert Fadal shot Anthony and Tiffany Strait as the couple helped Fadal’s mother at her home. According to San Antonio local news, the Straits had lived near Fadal for years and helped the doctor’s family with errands and odd jobs.

117311117-300x200On Sunday February 25, 2018, Tiffany, Anthony, and their three young children who range in age from 7 to 10 years old had stopped to help Fadal’s mother at her home. While outside, and for reasons currently unknown, Fadal shot Anthony Strait and then turned and shot Anthony’s wife, Tiffany. Anthony apparently died at the scene and Tiffany later died at the hospital.

According to family members, the Straits were friends with the Fadals. There is no known motive at this time and Dr. Fadal is charged with two counts of Capital Murder and is being held on a $2 million bond.

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Update: Governor Greg Abbott did grant clemency just before the scheduled execution!

Clemency is rare in Texas. In fact, the last time a Texas inmate’s death sentence was commuted to a life sentence was in 2007. The inmate, Kenneth Eugene Foster, was convicted in San Antonio of killing Michael LaHood – Bexar County District Attorney Nico LaHood’s brother. Prior to 2007, Governor Rick Perry commuted 28 death row inmates who committed their crimes when they were under the age of 18 years old to life sentences because of the 2005 Supreme Court decision in Roper v. Simmons, 543 U.S. 551 (2005). Perry also commuted two other sentences because the inmates were deemed mentally handicapped.

But, on Tuesday February 2018, the Texas Parole Board issued its recommendation that inmate Thomas Bartlett Whitaker not be executed. Whitaker has been on death row since 2007 after being convicted of the 2003 murders of his mother and brother. His father was also shot, but did not die from his injuries. The alleged motivation for the murders was to get inheritance. It is not disputed that Whitaker was not the shooter, but he knew that his family was going to be murdered after they came from dinner one evening.prison-1311786-300x197

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San Antonio residmarijuana-300x225ents and visitors who are found in possession of marijuana by the Bexar County Sheriff’s Office may be eligible for a new “cite and release” program that the Bexar County District’s Office has initiated. The program is currently in its trial phase and currently only working with the Sheriff’s Department. Individuals who are eligible would be entered into a pretrial diversion program and ordered to pay a $250 fine, any restitution, perform eight hours of community service, take a course and provide a urine sample.

The stipulations of the program are not entirely clear, however, and there is no indication what would happen to an offender if they fail to complete the pretrial diversion. Other pretrial diversion programs implemented by the Bexar County District Attorney’s Office come with an agreement that if the offender does not finish the program, a guilty plea is entered on their behalf. This program also allows an officer to use his discretion in who will be arrested and taken to jail and who will be cited and released on the scene.

Possession of marijuana in Texas can have some serious consequences. Possession of 0-2 ounces is a Class B misdemeanor with a possible punishment of up to six months in jail and a fine up to $2,000.00. Possession of 2-4 ounces has a possible punishment of a year in jail and a fine up to $4,000.00. There are severe collateral consequences as well. For example, someone convicted of misdemeanor possession with have their driver’s license suspended. Some offenders who are convicted may not be able to receive federal financial aid.

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On October 30, 2013, the Texas Court of Criminal Appeals held that Texas Penal Code §33.021(b) was unconstitutionally overbroad. The Court ruled that the language in subsection (b) is language that is either already criminalized in another penal code section or is constitutionally protected free speech.  Ex parte Lo, 424 S.W.3d 10, 20 (Tex. Crim. App. 2013), recomputer-300x199h’g denied (Mar. 19, 2014).

Only subsection (b) of Texas Penal Code §33.021 was held unconstitutional and the remaining portions of the statute remain criminal offenses. But, if you were convicted under subsection (b), you may be eligible to have your conviction overturned by filing a writ of habeas corpus. The Court of Criminal Appeals has held that a penal code section that is declared unconstitutional renders convictions under that particular section void and “a person convicted under a statute later declared to be void is entitled to relief when he raises that claim for the first time in a writ of habeas corpus.” Ex Parte Chance, 439 S.W.3d 918, 921 (Tex.Crim.App.,2014) (Cochran, J. concurring).

If you were charged with an offense under this section and received deferred adjudication,  regular probation, or you served time in the Texas Department of Criminal Justice, you will want to contact a lawyer to determine whether you can have your case heard. Having an Online Solicitation of a Minor charge on your record can have devastating effects. Along with the stigma associated with such a charge, you most likely have been registering as a sex offender. If you, a friend, or loved one have already been convicted of online solicitation of a minor, contact the Law Office of Dayna L. Jones today to see if you are eligible to have your case overturned.