Articles Posted in Arrested

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trayvon.jpgStand Your Ground Law, Shoot First Law, Castle Doctrine, Make My Day Law, Defense of Habitation Law – There are many names across the United States used to describe the approved use of deadly force by a person who feels threatened. In the wake of the shooting death of Florida teenager Trayvon Martin, emotions on both sides of the proverbial fence have been running high. George Zimmerman, the man who fired the fatal shot that killed 17-year-old Martin, is being charged for second degree murder. The outcome of the trial remains to be seen, but the events surrounding both Martin and Zimmerman have many people asking the same question, what is a self-defense law? In Texas, the law is found under Chapter 9 of the Texas Penal Code.

In March 2007 Governor Rick Perry signed Senate Bill 378, a law which allows Texans to use deadly force when they are threatened in their homes, cars, and public areas. The bill took effect September 1, 2007. This bill amended the previous law that had been in place. The biggest change to the law was the removal of a person’s “duty to retreat”. This means that Texans no longer have to make an attempt to leave a potentially dangerous situation before using deadly force in self-defense.

Chapter 9 of the Texas Penal Code clearly states when, where, and why force may be used by a person to defend themselves or others. In addition to protecting one’s own self from harm, the law states:
1. A person is justified in using deadly force against another to protect a third person
2. A person is justified in using force, but not deadly force, against another when the force is immediately necessary to prevent the other from committing suicide or inflicting serious bodily injury to himself 3. A person is justified in using force against another when the force is immediately necessary to prevent or terminate the other’s trespass on the land or unlawful interference with the property Continue reading

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Thumbnail image for supreme court.jpgOn October 12, 2011, the United Supreme Court continued its new term and heard oral arguments on a case that is a Fourth Amendment issue. The Fourth Amendment to the United States Constitution, which applies to the citizens of San Antonio, states that: “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.” While the oral arguments are over, the opinion from the court is to be determined.

Albert W. Florence, Petitioner v. Board of Chosen Freeholders of the County of Burlington, et al. raises the question of whether or not a jail or prison has the right to conduct a strip search on every person who is taken into custody, no matter what the charge(s) may be. This is a Fourth Amendment issue dealing with suspicion-less strip searches – should there be a flat rule or should it be determined on a case by case basis? This particular case began in 2005 when Florence was in the car with his pregnant wife and 4-year-old daughter on their way to dinner at his mother-in-law’s house. His wife was driving and was pulled over for a routine traffic stop. Because the car was registered in Mr. Florence’s name, the officer asked to see his identification in addition to his wife’s. When the information was checked, the officer saw that there was a warrant for Florence because of an unpaid fine. Florence carried a copy of the court record to show that he actually paid the fine, but the officer took him into custody anyway. Florence was in custody in both Burlington and Essex Counties for a total of six days before he saw a judge, at which time he was immediately released. While he was in custody, Florence was subjected to two strip searches. Florence filed a lawsuit because he asserted that the searches were unreasonable because he was being held for failure to pay a fine, which is not a criminal offense in New Jersey (and let’s not forget that he had already paid the fine).
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On October 4, 2011, the United Supreme Court began its new term and heard oral arguments on seven cases. Because the Supreme Court’s opinions are considered the Supreme law of the land, its decisions will impact San Antonio and the entire Texas criminal justice system. Three of the cases deal directly with defendants serving time in state prisons – two cases concern inadequate representation and the third concerns Miranda rights. They are all seeking release on the grounds that they are being held in violation of their federally protected constitutional rights. While the oral arguments are over, the opinion from the court is to be determined.

Maples v. Thomas raises the question of whether or not a defendant can argue that a death sentence is unconstitutional because the lawyer messed up and did not file paperwork on time. The Eleventh Circuit court ruled that there was no reason to excuse the case. Maples confessed to the murders he is now serving time for, but he argues that his lawyers were so ineffective that he missed a deadline to appeal the ruling. Two lawyers had taken on Maples’ post-conviction proceedings Pro Bono. At some point after taking on the case, they both got new jobs at different law firms. They failed to contact the court, and important paperwork that was mailed to their old law firm was returned, unopened. The court then failed to try to make any further contact with the lawyers or with Maples. Thus he missed necessary deadlines, and by the time he found out about the mistake it was too late for him to correct it. In other words, his right to appeal was violated because lawyers quit the case without informing the court and the Eleventh Circuit court upheld that Maples had defaulted on his claims when he missed deadlines.

Howes v. Fields asks whether Miranda warnings must be read to a prisoner when being questioned because a prisoner is considered already in custody. Randall Fields is serving time on one crime when he was taken from his cell to another part of a prison and questioned by police officers about an unrelated crime. He was never read his rights and he argues that information obtained in that questioning session should not have been used against him in the trial that followed. If police officers do not to read a Miranda warning to a person, they can still question that person but cannot use that person’s statements against them in a criminal trial. So, the question is: If a person must be read their rights if they are in custody, is a prisoner automatically in custody and therefore entitled to the Miranda warning according to the Fifth Amendment?
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While most people try their hardest to stay out of a court room, five young Foreign National men were arrested in the early morning hours for breaking into the local courthouse. At about 1 AM on Wednesday, October 19, 2011, alarms at the Bexar County Courthouse in Downtown San Antonio alerted local authorities that someone was on the exterior fire escape. When police arrived, they discovered two of the men outside the building with a rented R.V. and three men inside. Apparently they had used the fire escape to enter through a fourth floor window or rooftop access door. All the men are in their early 20s, were unarmed, and were in custody by 1:30 AM.

The local investigation, which gained national attention, was coordinated with the Federal Bureau of Investigation and the Immigration and Customs Enforcement, which is the investigative branch of the Department of Homeland Security. The suspects were questioned to determine if this was just a prank or a terrorist plot. An unnamed source said that the men inside the building appeared intoxicated on the surveillance footage and at one point they are seen wearing sombreros. Photos released by local news show the men sporting the sombreros and running down the courthouse hallways. A precautionary bomb squad sweep of the building and R.V turned up nothing and the incident is currently being investigated as a burglary. The courthouse was opened and operating for normal business at 7 AM.

Unconfirmed reports claim that the men are Moroccan. Preliminary information states that some of the men flew into New York City and the rest flew into Miami in September. The R.V. was rented in New Jersey, though it has California license plates. Authorities found 90-day visas, maps, cell phones, and computers inside the R.V. It appears that the suspects have been travelling the country as tourists.
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Governor Rick Perry signed several bills into law that will impact the San Antonio area indigent criminal defense system and surrounding communities, Bexar county, and Texas. The regular 82nd legislative session ended on May 30, 2011, and the following House Bill will take effect on September 1, 2011. The following summary of the law concerns the Government Code, the Code of Criminal Procedure, and the Local Government Code. This new law, and all Texas laws, can be located at the Texas Constitution and Statutes website. As with all new laws, the changes made apply only to offenses committed on or after the effective date.

HB 1754, Relating to the reorganization of powers and duties among agencies in this state that provide representation to indigent defendants in criminal cases and to the reorganization of funding sources for indigent defense. Subtitle F, Title 2, Government Code, is amended by adding Chapter 79. Section 71.001, Government Code, is amended. Section 78.052(b), Government Code, is amended. Section 78.056(b), Government Code, is amended. Section 81.054(c), Government Code, is amended. Section 402.035(c), Government Code, is amended. Article 26.04, Code of Criminal Procedure, is amended by amending Subsections (a), (d), and (f) and adding Subsection (f-1). The heading to Article 26.044, Code of Criminal Procedure, is amended. Article 26.044, Code of Criminal Procedure, is amended by amending Subsections (a), (b), (c), (d), (e), (f), (g), (h), (i), (j), (k), (l), and (m) and adding Subsections (b-1) and (c-1). Chapter 26, Code of Criminal Procedure, is amended. Chapter 26, Code of Criminal Procedure, is amended. Articles 26.05(a), (c), and (d), Code of Criminal Procedure, are amended. Section 11(a), Article 42.12, Code of Criminal Procedure, is amended. Section 133.107, Local Government Code, is amended. The following are repealed: (1) Article 26.05(i), Code of Criminal Procedure; (2) Section 71.0351, Government Code; and (3) Subchapter D, Chapter 71, Government Code.

The Texas House Bill sets up the Indigent Defense Commission. This new state agency replaces the Task Force on Indigent Defense, it becomes a permanent standing Commission of the Texas Judicial Council. While the new Commission will remain administratively attached to the Office of Court Administration, it will maintain an independent budget and must prepare and submit its own Legislative Appropriations Requests. The Commission will be made up of eight ex officious members and five appointive members. All powers, staff, property, and appropriations will be transferred from the abolished Task Force to the established Commission.
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handcuffs.jpgThe regular 82nd legislative session ended on May 30, 2011, and the following House Bill will all take effect on September 1, 2011. The following summary of the law concerns the Code of Criminal Procedures. This new law, and all Texas laws, can be located at the Texas Constitution and Statutes website. As with all new laws, the changes made apply only to offenses committed on or after the effective date.

HB 351, Relating to the expunction of records and files relating to a person’s arrest. Code of Criminal Procedures Article 55.01 is amended.

Expunging a record is a legal process in which a person, who is charged with a crime, is able to erase or remove completely their misdemeanor or felony arrest records under certain circumstances. Under the current Texas law, the expunction process could be expensive because it must be handled by a private attorney and, in some cases, the statute of limitations for the offense has to expire before the expunction can happen. When the new law takes effect, it will expand the circumstances in which an expunction can happen, establish timelines and mandatory procedures for courts and prosecutors, and abolishes the current rule that prevented an individual who had a felony conviction in the preceding five years from expunging his new case. Under previous law, a dismissed case normally would have had to wait the statute of limitations period before seeking an expunction. Under the new law, certain dismissed cases will be eligible for expunction before the expiration of the statute of limitations.

Supporters of the bill argued that people who are tried for offenses in which they are acquitted , found not guilty, pardoned, or otherwise proven innocent are entitled to “have all records and files relating to the arrest expunged.” In addition, it is unfair to burden individuals whose cases were never prosecuted or who were actually found innocent with a criminal record. This can have adverse effects when those individuals are applying for such things as employment or housing.
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