Houston Criminal Defense Lawyers



Novelties, Brass Knuckles and Juveniles: What You Need to Know


Brass knuckles are just one of the weapons that is prohibited in Texas. For that matter, brass or not, the knuckles are prohibited.

Why then do so many students get arrested with them? Kids are getting arrested, rather frequently, in schools with brass knuckles. Of course, the kids aren’t really even sure they are knuckles (well, maybe they are). In an interesting experiment, you can go to any novelty store around town and purchase them. You can find them in flea markets.

But wait, if they are prohibited, how are they being sold to our kids?

“Knuckles” means any instrument that consists of finger rings or guards made of a hard substance and that is designed, made, or adapted for the purpose of inflicting serious bodily injury or death by striking a person with a fist enclosed in the knuckles. Texas Penal Code 46.01(8).

Under Penal Code 46.05, a person commits an offense if he intentionally or knowingly possesses, manufactures, transports, repairs, or sells knuckles. It is a class A misdemeanor punishable by up to one year in jail and up to a $4,000 fine. Except the offense level and punishment can be increased in certain instances. For example, possessing the knuckles within 300 feet of a school or on the premises of school function increases the offense level to a state jail felony, which carries a punishment of 180 days to 2 years in a state jail facility and a fine not to exceed $10,000.

Under Penal Code 46.03, it is a third degree felony punishable by 2 to 10 years in prison and up to a $10,000 fine to have the prohibited weapon in certain places: on the physical premises of a school, the grounds or building of a school activity, on a transportation vehicle of a school, on the premises of a polling place on the day of an election or while early voting is in progress, on the premises of a court or court offices, on the premises of a racetrack, in or into a secured area of an airport, or within 1,000 feet of premises designated as a place of execution.

Penal Code provisions apply as stated to adults, currently those age 17 or older. For juveniles (aged 10-17), the penal code offenses apply while the punishment, or more correctly the disposition, is different. The jail or prison time and fines do not apply to juveniles.

So, stores cannot legally sell them. They cannot legally have them. Yet, they are being routinely sold. Stores rely on a “novelty” approach: the knuckles are disguised as belt buckles or other common objects. Yet when the kids show up at school wearing the belt buckle, they are arrested. Their parents inform the school police the item was purchased in a local mall in a novelty store. However, no one does anything about it. I have notified several prosecutors over the years of the exact stores selling these “novelties” and even provided a receipt or two. Yet nothing is done. So why are kids continued to be prosecuted for something adults are illegally selling? If it’s illegal for the kid to have it, it was just as illegal for the store to have it and sell it.

As a parent, I can’t condone the child making the purchase or taking the item to school. At the same time, why do we continue allowing the stores to sell them?


Can My Client be Impeached with Prior Juvenile Adjudications?


Well, generally, no, but it depends. (Don’t you just love that answer!)

 Texas Rules of Evidence, Rule 609(a) speaks generally to impeachment with criminal convictions. Juvenile adjudications are not criminal convictions, and are therefore, generally not admissible for impeachment purposes. Rule 609(d) specifically addresses juvenile adjudications:

(d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if:

(1) the witness is a party in a proceeding conducted under title 3 of the Texas Family Code; or

(2) the United States or Texas Constitution requires that it be admitted.

A close reading of Rule 609(d) allows a juvenile to be impeached with his prior juvenile adjudications if that child is testifying in his own juvenile trial, but it does not extend to non-juvenile proceedings. In other words, the prior juvenile adjudication cannot be used to impeach an adult in a criminal proceeding.

Notice the distinction: a prior juvenile record cannot be used for general character impeachment of a witness. However, pursuant to 609(d)(2) the Constitution may require a prior juvenile adjudication to be admitted for impeachment purposes. For example, if a witness is currently on juvenile probation that record might be used to impeach that witness under a theory of possible bias or prejudice (a juvenile on probation might have been offered a favor for his testimony or may believe he will receive a favor for his testimony). Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105 (1974); see also Foster v. State, 25 S.W.3d 792 (Tex. App. – Waco 2000).

So, for a juvenile on trial in a juvenile proceeding, his own priors can be used to impeach him. Outside of this situation, it will require a Constitutional issue such as bias or prejudice before a prior juvenile adjudication will be admissible for impeachment purposes.


Affluenza Teen Corrections


Sadly, so much of what I have read in the media regarding Ethan Couch, the notorious “affluenza teen,” is just legally wrong.

Now, I am not advocating for more or less punishment or trying to guess the merits of the State’s case or the defense. But, I do know juvenile law, and many things quoted in the media do not add up.

According to a NPR report today quoting The Dallas Morning News, the teen faces 120 days to 180 days in jail in addition to other probation conditions such as and ankle monitor and curfew. It is reported that because the teen’s case is being transferred to adult probation, the new district court judge can set/add conditions of probation for the teen.

It will be up to a state district judge in adult court to determine what the terms of his probation will be, such as an ankle monitor or curfew. A judge can decide if he will spend a minimum of 120 days in jail, but the maximum that he could get is 180 days in jail, Couch’s attorney Scott Brown said.”

When a juvenile determinate sentence probation is transferred to adult probation, the case is literally transferred from the juvenile court to a district court. And while it is true that the district court sets the conditions of probation, the district court is limited to those conditions consistent with the previously set juvenile conditions. So, unless the juvenile court had already ordered an ankle monitor, the district court cannot simply add this new condition. Similarly, the district court cannot simply assign jail as a condition, even though such jail time would be required for an adult placed on probation for intoxication assault and manslaughter.

Here’s the legal reason:
Under Family Code §54.051(e), the district court exercising jurisdiction over a child transferred under §54.051(d) shall place the child on community supervision under Code of Criminal Procedure Art. 42.12 for the remainder of the child’s probationary period and under conditions consistent with those ordered by the juvenile court. None of the restrictions of CCP Art. 42.12 apply to a case transferred from juvenile court.

So, one of the requirements of CCP 42.12 (for adults placed on probation for intoxication manslaughter) is that the defendant serve a minimum of 120 days in jail with a maximum of 180 days in jail. This is where the criminal practitioner usually errs. The requirements of CCP 42.12 do not apply to the juvenile being transferred.

Whether or not the teen deserves or needs jail time or an ankle monitor or even other conditions, his own attorney should be making the judge follow the law instead of telling the media the kid will do at least 120 days.

Now, if the teen violates one or more conditions of his probation, then after a hearing, the judge would be justified in either revoking his probation and assessing prison time or modifying the conditions of his probation to include jail time or an ankle monitor among other modifications.

Sadly, throughout this case, lawyers and the media just keep getting it wrong. Next time, consult a board certified juvenile lawyer!


Since posting, an additional question has come up – so I thought I should amend and add this question and explanation.

Many have asked if Couch could be facing a “violation/modification” of his probation for the alleged violations of probation that occurred previously. In short, I believe the answer is no.

Under the juvenile code which authorizes transfer of a determinate sentence probation to adult court and probation, the receiving district court can proceed on a violation of a condition of probation under 2 circumstances:

  1. the violation occurs after transfer
  2. the violation occurred prior to transfer BUT the violation was NOT KNOWN to the State prior to the transfer.

The rationale is that if the violation was discovered while still in juvenile, then the juvenile court should address it. If the State knew of the violation but choose not to proceed on it, then the State is thereafter barred from proceeding on that violation. In other words, the State should have availed itself of the remedies in juvenile court rather than ignoring it until the juvenile reached adult court.

The Law:

Family Code 54.051 (e-2)
If a person who is placed on community supervision under this section violates a condition of that supervision or if the person violated a condition of probation ordered under Section 54.04(q) and that probation violation was not discovered by the state before the person’s 19th birthday, the district court shall dispose of the violation of community supervision or probation, as appropriate, in the same manner as if the court had originally exercised jurisdiction over the case. If the judge revokes community supervision, the judge may reduce the prison sentence to any length without regard to the minimum term imposed by Section 23(a), Article 42.12, Code of Criminal Procedure.


Mentoring Should Be Mandatory


In the practice of law, mentoring should be mandatory. This is especially true in criminal defense where life and liberty are on the line in each and every case.

Some lawyers practicing criminal defense simply hung a shingle and opened a practice. Others are former prosecutors. In either instance, mentoring is key.

Prosecutors know how to prosecute. They get on the job training. They step in to try cases immediately. This gives them the practice in front of the court and jury. This gives them confidence in their trial skills. But, it doesn’t teach them to defend. It doesn’t necessarily teach them to preserve error. It doesn’t necessarily teach them to think outside the box. And it certainly doesn’t teach them compassion for situations and circumstances.

I was a prosecutor for over 5 years. I knew how to try a case. I knew how to present arguments. I knew how to talk to a jury. But, that doesn’t mean I knew how to defend people accused of crimes. Sure, I knew the law. Sure, I knew how to research. I even knew how to write trial briefs. But did I know how to defend? Not really.

I was fortunate though. I had many great mentors willing to help me. I was able to call upon those who had been practicing defense for years and seek their input and assistance. Great lawyers like Nicole DeBorde, Stanley Schneider, and many others helped me. I also attended (immediately) my first of many TCDLA defense CLEs.

At the time, I’m not so sure I recognized it as mentoring, but the defense lawyers I immersed myself with certainly were mentoring me. They opened my mind to a different thought process. They taught me nuances I had never considered. And, they taught me to do it all without the use of a “badge” since no one wants to help a defendant.

Last week, the Texas Indigent Defense Commission and National Legal Aid & Defender Association published their report on Indigent Defense Mentoring in Texas (below). Their report highlights the importance of mentoring and the available programs in Texas. I have been fortunate enough to participate in both of the Harris County programs as a mentor. Serving as a second-chair mentor and as a FACT mentor not only helps the younger lawyer but raises the bar for criminal defense – indigent or otherwise. I am also fortunate to assist with TCDLA’s training through speaking and course directing. Training on the “law” is one thing, but training in “defense law” is completely different.

Having been mentored and now mentoring, I can say without a doubt mentoring should be mandatory. And, luckily I was fortunate enough to have had great mentors!

You can download and read the Mentoring report here: tidc-nlada-attorney-mentoring-report

Not only do I believe mentoring should be required, but also there is an argument to be made that it is required under the State Bar Disciplinary Rules. In a recent guest blog on the State Bar Blog, Rehan Alimohammad explains:

Why should we mentor or help other attorneys? The Texas Disciplinary Rules of Professional Conduct states, in the first paragraph of the Preamble, that a lawyer has a special responsibility for justice. In the fifth paragraph of the Preamble, there is more specificity when it states, “… a lawyer should seek improvement of the law, the administration of justice and the quality of service rendered by the legal profession.” Is there a better way to impact the quality of the entire legal profession than mentoring or giving advice to a young attorney? The Preamble does state later that use of the word “should” in the rules means the lawyer has professional discretion. So, there may be no violation of the rules for failure to mentor.


Use of Juvenile Priors


One of the questions I’m asked most frequently is whether a particular juvenile prior adjudication can be used to enhance a new adult criminal charge and bar probation eligibility.

Under Penal Code §12.42, felony offenses can result in enhanced punishments for those previously convicted of felony offenses. When looking at a prior juvenile adjudication, certain adjudications are counted as “convictions” for purposes of PC§12.42.

For purposes of Subsections (a), (b), (c)(1), and (e), an adjudication by a juvenile court under Section 54.03, Family Code, that a child engaged in delinquent conduct on or after January 1, 1996, constituting a felony offense for which the child is committed to the Texas Youth Commission [now Texas Juvenile Justice Department] under Section 54.04(d)(2), (d)(3), or (m), Family Code, or Section 54.05(f), Family Code, is a final felony conviction.

The important distinction is that the adjudication is only treated as a conviction for purposes of certain subsections of 12.42; not for all purposes. So while punishment may be enhanced by a prior juvenile adjudication, that adjudication does not bar consideration for probation under CCP Art. 42.12.

Because §12.42 applies only to first, second, and third degree felonies, juvenile prior adjudications cannot be used to enhance punishment for state jail felony offenses.  State jail enhancements are governed by §§ 12.35 and 12.425, neither of which defines prior juvenile adjudications as convictions.

When dealing with first, second, and third degree felonies, a prior juvenile adjudication for felony conduct which resulted in confinement in TYC or TJJD is treated as a conviction for enhancing the punishment range in the current charge. Because §12.42(f) limits the use of juvenile adjudications to sections (a), (b), and (c)(1), juvenile adjudications do not count towards habitual status which is governed by §12.42(d).


DNA Errors: Big Deal or Not?


Have you seen the news? The FBI has announced errors in its database which is used across the nation and in Texas. In two prior blog posts (on separate sites), I addressed this issue.
August 7, Just How Accurate is DNA?, HCCLA.org (with memo downloads)
September 18, FBI DNA Calculation Errors, HCCLAtv.com

Today, Fox 26 News visited with me to get a perspective on just how big this problem is.
As I told Andrea Watkins, Fox26 News, the problem will be large simply because each case will have to be identified and then reviewed to see what impact the DNA results may have had on a particular plea-bargain or jury verdict. Ultimately, this will amount to thousands of cases locally as the errors have existed and been perpetuated since 1999.

The problem is that errors in the statistical database could have caused an inflated reliance on a match. For example, instead of the probability of a particular DNA sample matching a suspect or defendant being 1 in 1 billion, it could be that it is only a 1 in 100 chance of belonging to the same person. This certainly changes the landscape and statistical chance of the DNA being left by the same person.

This problem is compounded in “mixture” cases. A mixture case is where two or more persons have contributed to the sample. We often see swabs collected from crime scenes where the analysis reveals the DNA of two individual people. The statistical errors, once corrected, can cause a scientific result which once included a suspect to now exclude that same person because of the lack of strength in the probability of the result matching. (I hope that makes sense. Essentially, science sets limits. If the probability falls below the lower limit, it is no longer considered a scientific match; so if the recalculation falls below, it is no longer considered reliable.)

Of course correcting each DNA statistical calculation will not ultimately help every defendant or suspect. But i will change the scientific reliability in some cases; therefore, each case will have to be analyzed to see whether or not it is affected.

This is a huge undertaking. It will take time. And, it will certainly add to the backlog in crime labs and the overall turn-around on testing old as well as new evidence.

In any event, I’m staying on top of this and will continue to report what I can.


To Plea or Not to Plea?


As a takeoff from my presentation today at Texas Criminal Defense Lawyers Association’s Defending Juveniles, I wanted to share an outline of how to approach advising your juvenile client to plea or not to plea.

What is a Plea?

In this context, a “plea” is similar to a plea-bargain in a criminal case. A “plea” is to enter a plea or “true” (or no contest) or “not true.” A plea of “not true” results in proceeding forward toward a trial by court or jury. A plea of “true” is an admission and judicial confession to the delinquent conduct in question as alleged in the petition. A plea of “true” can be made with an agreed recommendation from the prosecutor or without.

A plea of “true” made to the court is an adjudication hearing. Because adjudication hearings cannot be waived, it is the plea of “true” coupled with the juvenile’s confession (or agreement to stipulated facts) that gives the juvenile court an evidentiary basis upon which to find the juvenile has engaged in delinquent conduct and thus becomes an expedited adjudication hearing.

To Plea or Not To Plea, Who Decides?

Ultimately, it is always the client’s decision whether or not to enter a plea of true. Texas Disciplinary Rules of Professional Conduct Rule 1.02 states a lawyer shall abide by a client’s decisions in a criminal case (and by extension juvenile cases), after consulting with the lawyer, as to a plea to be entered, whether to waive a jury trial, and whether the client will testify.

Though the plea to be entered and the waiver of a jury trial are each left to the client, the rule requires that client’s decision to come after consultation with the lawyer. Failure to provide adequate information for the client to make a decision about whether to have a jury trial or whether to accept a plea offer can result in an attorney being sanctioned by the State Bar. It is imperative that you not only convey offers (if any) and discuss whether to proceed to trial but also consult with the client the consequences of each decision. The client must understand the trial process and its pros and cons along with the evidence that is likely to be admitted.

Should I Advise My Client to Plead True?

First, you must know your case, your client, your prosecutor, your judge, and your options. Sometimes the question to plead true is more easily made.

Know Your Case

Sounds simple, but attorneys must investigate their client’s case before advising the client on how to proceed. At a minimum, this requires (1) reviewing the petition for alleged facts and potential defects, (2) discussing the allegation with your client, and (3) reviewing the prosecutor’s file, including evidence and other items provided through discovery. Often, knowing your case goes beyond these basics and will include an independent investigation into the facts and circumstances of the alleged offense. Where appropriate, seek an appointed investigator to assist in your investigation, subpoena records, and interview witnesses.

While reviewing the prosecutor’s file (offense report and other discovery) is a good place to start, it is rarely the end of your inquiry into the case. Once you have reviewed the offense report, statements and all other materials in the prosecution file, you should discuss the items and reports with your client. Are there other witnesses you should send an investigator to interview? Do you need to subpoena dispatch records, MDT’s, blood records, CPS records, medical records, audio and video recordings, social media records, etc? Do you need an expert to evaluate some forensic conclusion?

Essentially, you should prepare your case for trial. Review the elements of the alleged offense and determine whether or not the prosecutor can prove each and every element. Know which witnesses can be used to prove each element. Know whether or not those witnesses are impeachable. Know whether or not evidence will be available for trial.

Know Your Client

Not only must you discuss the offense allegations and evidence with your client, but you must also know your client and his history: court history as well as school and mental histories. Has your client been involved in the juvenile court system before? Has your client been a discipline problem at school? Did your client behave in detention while this case has been pending? Does your client skip school regularly? What kind of grades does your client make in school? Does your client see a therapist or psychiatrist? Has your client been hospitalized for mental issues? Does your client have a drug problem? Has CPS been involved in your client’s life? The answers to these questions and so many more can paint the picture of your client. A picture that can either help or hurt as assess whether or not a plea is appropriate.

Talk to your client and his parents. Get a history independent from that provided by probation. Depending on your client’s history, you may also need to speak with teachers, counselors, and others.

Know Your Prosecutor

When advising your client whether to plea or not, you must know your adversary. Is he reasonable? Can he try cases? Is he going to make a reasonable offer, or is there wiggle room in his offer to plea? Is he willing to offer deferred prosecution? Is he willing to dismiss one or more counts for a plea on another count? Is the judge likely to undercut his recommendation? Is his recommendation tied to “office policy” and therefore non-negotiable? Is he going to attempt to fix a weak case if you point out problems with the prosecution? Will he be reassigned before your case concludes?

Knowing your prosecutor is likely the least important part of this discussion, but it is still something you need to consider when advising your client on whether or not to plea, especially if that plea is with an agreed recommendation from the prosecutor.

Know Your Judge

Knowing your judge is just as important as knowing your case and your client. Knowing your judge is important in understanding whether an agreement with the prosecutor is a good deal for your client. Would the judge grant your client a deferred prosecution over the prosecutor’s objection? Would the judge allow your client to remain in the home on disposition despite the fact that the prosecutor wants a local residential commitment? Is it likely that the judge would find no disposition necessary? Is the judge likely to grant a motion to suppress? How likely is your judge to grant or deny certification requested by the prosecutor? How likely is the judge to follow probation officer recommendations? Will the judge request or require a urine test prior to considering a request for deferred prosecution?

If you don’t know these answers, it’s time to find out before you can fully and properly advise your client.

Know Your Options

In this context, outside of the option to plea or proceed to trial, you must also know your options, especially for disposition. Generally speaking, your options are: (1) no disposition, (2) probation, or (3) confinement. Probation can be in the child’s home or in a residential facility. Confinement can mean locally or within TJJD.

The court has available a myriad of options and programs within the system (juvenile probation) but is not tied to only those within the system.

Does your client’s family possess the resources to seek non-county resources such as therapy or drug treatment outside of the probation department? Does your client qualify for mental health or drug programs? When will your client be eligible to have his record sealed under each available scenario? Does probation have other resources that may be better tailored to your client’s need then those proposed by the prosecutor? Does your client’s family have the ability to supervise your client in an informal program (diversion) or will your client require more stringent rules? Would entering a plea on a lesser-included offense better serve your client’s interests? Will your client be required to register as a sex offender? Will a plea result in a suspended driving privilege?

All this and more must be known or explored by the lawyer so that they lawyer can competently and appropriately advise the client. Only the informed client can make the decision to plea or not to plea.