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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.

 

 

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fire.jpgIn the early morning hours of December 23, 1991, a fire quickly spread through the Texas home of Cameron Todd Willingham and Stacy Kuykendall. Kuykendall had already left the house to run errands. Willingham was able to escape moments before flames completely engulfed the house. Their three daughters did not survive. The fire was ruled an arson and Willingham was tried for murder and sentenced to the death penalty in August 1992. He was executed February 17, 2004. Willingham maintained he was innocent and now his family is seeking a posthumous pardon.Surviving relatives Eugenia Willingham and Patricia Willingham Cox are petitioning Texas to exonerate Willingham based on new evidence and new scientific procedures that have developed since 2004. At the trial, the Willingham’s conviction was based largely on the testimonies of the fire investigators and Willingham’s cellmate. Jailhouse informant Johnny Webb stated that Willingham admitted that he had set the fire on purpose. Webb was subsequently released from prison early. Years later, Webb recanted his testimony and declared that Willingham was innocent. Assistant Fire Chief Fogg and Fire Marshall Vasquez testified that the fire was started by an accelerant. But, in the trial, both men acknowledged that the fire could have been caused by other means than accelerants.

Since the time of the trial, new science has emerged that refutes the testimonies of the police investigators. Studies and reports by leading arson experts have cast serious doubts on the validity of the evidence used to convict Willingham. In 2004, independent expert Gerald Hurst reviewed the evidence and determined that faulty forensic evidence was used. An expert panel of five arson scientists stated that the indicators used by the State’s experts have been proven to be scientifically invalid. In 2009 the State of Texas ordered that Willingham’s case be re-examined. In that same year, a report issued by Dr. Craig Beyler, stated that “a finding of arson could not be sustained”. Dr. Beyler discredited the testimony from a fire marshal at Willingham’s trial stating that the testimony was “hardly consistent with a scientific mind-set and is more characteristic of mystics or psychics”. In addition, the Texas Forensic Science Commission stated in 2011 that there is a lack of science education amongst fire investigators.
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The Bexar County legal community is still reeling from the loss of Assistant District Attorney Charles ‘Chip” Rich III. He passed away on Monday, November 5, 2012. Colleagues remember him as outstanding, caring, professional, courteous, top-notch, and an integral part of the District Attorney’s office. He was the type of prosecutor who took time out of his day to assist younger prosecutors and despite working in an adversarial system, he genuinely cared about the personal lives of his colleagues, including defense attorneys.

Rich studied at the University of Denver-Strum College of Law and began his career in the Denver area in 1993. He joined the Bexar County District Attorney’s office in 2002. He became chairman of the DWI Task Force in 2011.

Rich was involved in many community programs. Recently he was a guest speaker at the Shattered Dreams program at Saint Mary’s Hall Upper School campus. This program was developed to teach students and families the consequences of underage drinking.

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The Supreme Court of the United States is now in session. Two cases are to be heard on Wednesday, October 31. They are both from Florida and both involve the use of police dogs in the gathering of evidence in regards to illegal narcotics. The court will decide if such use violates the Fourth Amendment. That amendment states, “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.”

Currently, the Bexar County Sheriff’s Office maintains a Canine Unit consisting of five handler officers and seven dogs. Some of the dogs are patrol dogs, some are bomb detection dogs, and some are narcotics detection dogs. Canines trained for the narcotics division are used to detect the scent of marijuana, heroin, methamphetamine, and cocaine. According to the Sherriff’s Office, the dogs can locate drugs in houses, cars, and even buried underground.

In the case of Florida v Jardines, (Oral Argument Transcripts) the defendant maintains that a warrantless “sniff test” by a dog at his home with live plants inside violated his right against unreasonable searches. Was a trained narcotics canine sniffing at a front door to a private residence a search under the Fourth Amendment and therefore a violation of privacy? The defense argues that the “sniff test” should have been conducted after there was evidence of a crime.

In the case of Florida v Harris, (Oral Argument Transcripts) a valid traffic stop for driving with an expired registration tag resulted in a warrantless search of the defendant’s truck. The police officer had his dog, Aldo, sniff the outside of the truck. Aldo “alerted” at the door handle and the officer searched the vehicle’s interior. The officer admitted at the trial that the dog can pick up lingering “residual odors”. Does an “alert” from an odor that could have been lingering for an unknown amount of time result in probable cause for a subsequent search?
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Thumbnail image for handcuffs.jpg In 1994, four young women in San Antonio, Texas were accused of sexually assaulting two sisters who were aged 7 and 9 years old at the time. All four women were convicted of aggravated sexual assault of a child and indecency with a child. Three women were sentenced to 15 year in the Texas Department of Criminal Justice, while the girls’ aunt received a 37.5 year sentence. One of the girls (now 25 years old) has recanted her story and has declared that the crime never happened.

In the summer of 1994, the two sisters were staying with their aunt, Elizabeth Ramirez, in San Antonio, Texas. Two months later Ramirez was shocked to learn that her nieces had told their father that Ramirez and three other women sexually assaulted them and their friends. Ramirez, Kristie Mayhugh, Cassandra Rivera, and Anna Vasquez have stated over and over again that they are innocent. All four women refused to take plea bargains. Ramirez was tried in 1997, while Mayhugh, Rivera, and Vasquez were tried together in 1998.
The trials themselves were a witch hunt full of junk science and homophobia. In the 1980s and 1990s the United States was gripped by a rash of claims sexual abuse and satanic rituals performed on children. All across the country people were accused of horrific acts against minors. Many were convicted on nothing more than the testimony of the alleged young victims. Over the years, it has been proved that many of the accusations were false and many innocent people paid for crimes they never committed.

All four women in this case are lesbians. In the trials of Ramirez and her friends, the prosecution fed into the false stereotype of homosexuals as sexual deviants. Anti-gay views of the jury at the Ramirez trial were made clear by the foreman, a minister, who stated that homosexuality was a sin. Despite the lack of any physical evidence, the Bexar County District Attorney’s Office who prosecuted the case painted these young women as monsters to the jury.

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texas-flag.jpgTexas’ execution of Marvin Wilson raises the issue of whether this state violated the Eighth Amendment’s prohibition of cruel and unusual punishment. In the United States of America it is illegal and immoral to execute a child. But, the line between right and wrong blurs when the execution of a man with the intelligence of a child is in question. The execution of Marvin Wilson, whose mental capabilities was that of a seven-year-old, is a gross miscarriage of justice. The Eighth Amendment of the US Constitution states that “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Texas has effectively slapped the Eighth Amendment in the face.

Marvin Wilson, 54, was executed in Huntsville, TX, on Tuesday, August 7, 2012. Wilson was convicted in 1992 for the shooting of 21-year-old Jerry Robert Williams in Beaumont, TX. Wilson was sentenced to death for the murder of Williams, even though the prosecution had no forensic evidence and failed to find any eyewitnesses to the actual shooting. Wilson was tried in the District Court of Jefferson County and entered death row on May 9, 1992. Wilson filed on March 3, 2006, with the US Court of Appeals Fifth Circuit.

Williams was a police informant when he was killed on November 10, 1992. Wilson had been arrested for drug possession and out on bond when Williams was murdered. Andrew Lewis was Wilson’s accomplice, and witnesses claimed they saw Wilson and Lewis drive away from a gas station with Williams in the car. Williams was later found with gun shots in his head.
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handcuffs.jpg After Anselmo Rodriguez was found guilty of sexual abuse on two young sisters by a jury in the 186th State District Court in San Antonio, Texas the convicted sex offender Anselmo Rodriguez, 31, who was facing a minimum of 25 years in prison was allowed to leave court that evening and sentencing would begin the following morning. But, Rodriguez skipped out on his bond and cut off his ankle monitoring bracelet on Monday, July 23. The next day the same jury decided in less than 15 minutes to sentence him to life in prison without the possibility of parole. On Tuesday, Judge Maria Herr read the sentence without Rodriguez present in the courtroom. Both Defense Attorney Libby Wiedermann and Prosecutor Catherine Hayes were in attendance.

Following the verdict on that Monday, Rodriguez was allowed to leave the courthouse. Normally a judge revoked a defendant’s bond once they are convicted, however for unknown reasons Judge Herr failed to do so and the Assistant Bexar County District Attorney failed to request that his bond be revoked. Less than an hour after he reached his house the Bexar County’s Pre-Trial House Arrest Program, the company that maintains the bracelets, was notified that a tamper alert was activated. A search of his house revealed that Rodriguez had fled, but the bracelet that he cut off was recovered. A warrant was issued and a task force was put in charge of finding and apprehending the fugitive. The manhunt has been widened to include all of Texas and Mexico.
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k-9.jpgAn ongoing investigation into the death of two Bexar County Sheriff’s Department canines has left San Antonio with many questions. How did could this have happened? What could have been done to prevent the tragedy? And will criminal charges be brought?

On Tuesday, July 24th, Sheriff’s Deputy Steve Benoy took the dogs in a county-owned Chevrolet Tahoe with dog kennels to his home in Adkins, TX. This routine is standard for officers who work with K-9s and Benoy had done this several times before. On this particular day, though, Benoy did not follow his regular routine and left the dogs locked in the SUV with the windows rolled up at about 2 PM. It is still unclear why. He then left town for an overnight trip.

When he returned on Wednesday, almost 30 hours later, the two Belgian Malinois police dogs were dead. It is believed that they died of heat exhaustion, but animal care services will be conducting a necropsy to determine the official cause of death.

Benoy has 23 years of service, 13 of which have been as a K-9 handler. He has been placed on leave for 10 days while an investigation into animal cruelty and administration purposes is conducted. It is estimated that the total cost of a police canine is around $40,000. This includes the initial cost, the training, and the care of the animal.
The interior of a parked car can reach scorching temperatures within minutes, especially during the summer. According to PETA’s website, temperatures inside a car can reach upwards of 160 degrees on a 78 degree day. Cracking the windows has minimal to no effect on reducing the temperature. On the Tuesday and Wednesday in question, temperatures in San Antonio were 96 degrees.
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supreme court.jpgIn San Antonio and other courts throughout Texas, many Mexican citizens take plea deals every day. Before 2010 the only requirement for non-U.S. citizens taking pleas was that the defendants must be warned that they may face deportation, removal from the country or denial of U.S. citizenship. However, on March 31, 2010, the United States Supreme Court filed its decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010) holding that “counsel must inform her client whether his plea carries a risk of deportation.” Padilla at 1486. “When the law is not succinct and straightforward…a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, as it was in this case, the duty to give correct advice is equally clear.” Padilla at 1483. This means that a defense attorney must adequately advise a non-U.S. citizen of how the plea may affect his or her status in this country.

The U.S. Supreme Court went on to explain: “Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.” Id.

But a big debate throughout Texas is whether Padilla announced a new rule of law that bars it from being applied retroactively. Or does Padilla just clarify a longstanding rule of law, allowing it to apply to cases that were final prior to the Padilla opinion?

Texas Courts have been applying Padilla retroactively to cases that were final before the opinion was rendered. In Ex parte Tanklevskaya, 2011 WL 2132722 (Tex. App.–Hous. [1Dist.] 2011), the Court of Appeals denied the State’s claim that “Padilla announced a ‘new constitutional rule of criminal procedure’ that should not be applied retroactively to cases on collateral review.” Id. at *4; citing Teague v. Lane, 489 U.S. 288, 310 (1989). That Court, agreeing with other Courts in Texas and around the country, held that Padilla does not apply new rule of criminal procedure but is an extension of the rule in Strickland v. Washington and therefore applies retroactively. Id. at *7.
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