Articles Posted in Texas Criminal Law Glossary

leafThe federal Criminal Code imposes a variety of restrictions on people with felony convictions. The Armed Career Criminal Act (ACCA) of 1984 prohibits convicted felons from owning or possessing firearms. 18 U.S.C. § 922(g). This statute also imposes sentencing enhancements on people with three or more “violent felony” convictions. 18 U.S.C. § 924(e)(1). Since the precise definition of a “felony” varies from one jurisdiction to another, federal statutes attempt to provide general definitions. In 2015, the U.S. Supreme Court struck down part of the ACCA’s definition of “violent felony,” finding it to be unconstitutionally vague. Johnson v. United States, 576 U.S. ___ (2015). This year, the court held that the Johnson ruling applies retroactively to other individuals. Welch v. United States, 578 U.S. ___ (2016).

In Welch, the court was asked to decide whether its ruling in Johnson was “substantive” or “procedural.” These two terms are not particularly well-defined, but a “substantive” ruling generally affects fundamental rights or obligations, and therefore it has an impact beyond the parties to a particular dispute. A “procedural” ruling, on the other hand, addresses the manner in which a court handled a particular case, and therefore it does not have such a far-reaching impact. This distinction appears in many important civil rights cases that invoke “substantive due process.”

The ACCA, like many federal statutes, broadly defines a “felony” as a criminal offense that carries a potential punishment of more than one year’s imprisonment. 18 U.S.C. § 922(g)(1). This definition, it is important to note, does not require an actual sentence of more than one year. A person who is convicted of such an offense but who receives a lesser sentence is still a “convicted felon” for the purposes of the ACCA.

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Baton Rouge BridgeThe “War on Drugs” has resulted in the criminalization of a vast array of acts, as well as the extension of serious criminal charges to situations that might not seem to fit the legal definition of those crimes. In Louisiana, prosecutors recently applied a rarely used state law that allows homicide prosecutions in cases of fatal drug overdoses. This is how a man found himself sentenced to life imprisonment for, essentially, providing drugs to his girlfriend. Texas does not have a comparable statute directly linking drug prohibition and homicide, but the Louisiana case shows how far a state might be willing to go in drug cases.

Louisiana’s criminal statutes identify multiple levels of criminal culpability for homicide, from first-degree murder to negligent homicide. The offense of first-degree murder generally requires a “specific intent to kill or to inflict great bodily harm,” along with other factors, such as the commission of a felony like kidnapping, burglary, or arson. La. Rev. Stat. § 14:30. Second-degree murder generally only requires the “specific intent” element. La. Rev. Stat. § 14:30.1. The second-degree murder statute also includes a provision, however, that makes it an offense when someone “unlawfully distributes or dispenses a controlled dangerous substance” to someone who dies a a result of “ingest[ing] or consum[ing]” that substance. Id. at § 14:30.1(A)(3).

Texas law places a wide gulf between laws dealing with illegal drugs and other criminal laws. The Texas Controlled Substances Act (TCSA) is found in Chapter 481 of the Texas Health & Safety Code, and it primarily deals with the manufacture, delivery, and possession of controlled substances. Chapter 19 of the Texas Penal Code deals with homicide, identifying four distinct offenses:  murder, capital murder, manslaughter, and criminally negligent homicide. The definitions of these offenses make no specific mention of illegal drug delivery or use.

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briefThe right to counsel in criminal proceedings is one of the key rights guaranteed by the Sixth Amendment to the U.S. Constitution, but this right remains in many ways elusive for a significant number of people. A lengthy series of court decisions roughly defines the circumstances in which the government must provide counsel, at its own expense, for indigent defendants. An important ruling regarding the right to counsel in criminal appeals is Anders v. California, 386 U.S. 738 (1967). A court-appointed attorney who concludes that no non-frivolous grounds for appeal exist cannot simply withdraw from representation. The attorney must submit a document, commonly known as an Anders brief, identifying potential grounds for appeal, whether the attorney considers them frivolous or not. The defendant may then continue the appeal pro se, or the court may appoint new counsel. Earlier this year, a Texas appellate court affirmed that Anders briefs are required in certain non-criminal cases. In re N.A., No. 05-15-01220-CV, slip op. (Tex. App.—Dallas, Jan. 25, 2016).

The U.S. Supreme Court first recognized the federal government’s obligation to provide counsel for indigent defendants in the 1930s. Johnson v. Zerbst, 304 U.S. 458 (1938). It did not extend this duty to state felony cases for another 25 years. Gideon v. Wainwright, 372 U.S. 335 (1963). Exactly when an indigent defendant becomes entitled to appointed counsel is still a matter of dispute to this day. The Supreme Court held in Brewer v. Williams, 430 U.S. 387 (1977), that the right to appointed counsel begins “at least…at or after the time that judicial proceedings have been initiated.” Id. at 398. Texas and many other states have expanded the right to appointed counsel to indigent individuals in certain civil proceedings, including some juvenile cases and cases in which the state is seeking the involuntary termination of parental rights. Tex. Fam. Code § 107.013(a)(1).

Anders involved a dispute between a defendant and his appointed counsel over whether to file an appeal. The attorney concluded that there were no non-frivolous grounds for appeal. He notified the court that he would not file an appeal and that the defendant wanted to file one pro se. The notification consisted solely of a letter from the attorney. The defendant’s appeal was not successful, and he sought to reopen the case, claiming denial of the right to counsel. The Supreme Court eventually ruled that the attorney’s letter did not meet the standard of representation required by the Sixth Amendment.

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Starry NightIn a criminal prosecution, the state has the burden of proving a defendant’s guilt beyond a reasonable doubt. Defendants may be able to raise certain defenses under either statutes or the common law. An affirmative defense that receives a great deal of attention in pop culture but is not often well understood is the “insanity defense.” The legal standard for this defense varies greatly from state to state. A recent state supreme court ruling limited the availability of the insanity defense when a defendant does not voluntarily agree to its assertion at trial. New Jersey v. Gorthy, 145 A.3d 146 (N.J. 2016).

A defendant who raises the insanity defense is effectively admitting to the actions that constitute the alleged offense but arguing that they should not be held criminally responsible. Under Texas law, the insanity defense requires a defendant to provide evidence of a “mental disease or defect” that rendered them incapable of “know[ing] that [their] conduct was wrong. Tex. Pen. Code § 8.01. This focus on a defendant’s understanding of “right” and “wrong” is often known as the M’Naghten Rule, after an 1843 English court decision. The Texas Court of Criminal Appeals has summarized this rule as requiring proof of an “extreme delusional state[] that caused [the defendant] to misperceive the very nature of their acts,” or a “belie[f] that in acting, they were obeying rather than violating the laws of society.” Rubio v. State, 241 S.W.3d 1, 13 (Tex. Crim. App. 2007).

One criticism of the M’Naghten Rule, as applied in Texas, is that it fails to provide clarity “about whether ‘wrong’ should be considered from a legal or a moral standpoint.” Id. at 14. The consensus appears to be that the rule looks at “wrong” from a legal standpoint. The Rubio decision mentions the case of Andrea Yates, a woman who killed her children out of a belief that it was necessary to “drive out the devil.” Id. Under Texas law, she was found not to be insane because she understood her actions to be illegal, if not immoral. Id., see also People v Schmidt, 216 N.Y. 324 (1915).

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skylineA criminal prosecution typically begins with an arrest, and whether or not a defendant must remain in jail while they await trial depends on whether a judge or magistrate sets bail. This happens at a bail hearing shortly after the arrest. The Eighth Amendment to the U.S. Constitution prohibits excessive bail, and the Sixth Amendment guarantees the right to counsel in criminal cases. The state must provide counsel to indigent defendants, but not every indigent defendant in Texas gets a lawyer at their bail hearing. In Houston, the state’s largest city and second-largest metropolitan area, judges and other county officials have been accused of improperly denying defendants’ right to counsel, resulting in massive numbers of people charged with minor, nonviolent offenses remaining incarcerated because they cannot afford bail.

According to a report in the Houston Chronicle from early 2016, bail hearings in Harris County consist of arrestees appearing before a magistrate, who is actually in a different room and communicates with the inmate via television monitors. A prosecutor attends the hearings, but defense attorneys are not provided for indigent defendants. The magistrate reportedly sets bail based on a set of guidelines that look at the charge and the individual’s criminal record, but not factors like the person’s health or family responsibilities. Inmates who cannot afford attorneys are left on their own to argue against a prosecutor for lower bail.

The Harris County Public Defender has harshly criticized this system, stating that “an adversarial system cannot function when only one side shows up.” Even prosecutors have reportedly agreed to seek reforms that give more—or some—consideration to the constitutional rights of indigent defendants during bail hearings. Many judges, however, have opposed reform efforts, with one district judge reportedly saying that providing public defenders at bail hearings is not necessary because the bail hearing is not a “critical stage” of the case. Considering that the bail hearing determines whether or not a person can return to their life while the case proceeds, before the state has met its burden of proving guilt beyond a reasonable doubt, it certainly seems like a critical stage for most people.

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ColoradoBefore stopping a vehicle, police must have reasonable suspicion that the stop will reveal evidence of a criminal or traffic offense. In order to search a vehicle or its occupants, they must have probable cause, which is subject to a higher level of scrutiny than reasonable suspicion. The Fourth Amendment guarantees these rights. A recent court case addressed whether police in a state where marijuana remains illegal may search a vehicle solely because of license plates from a state where it is legal. While the district court found that no actionable violation occurred, an appellate court found that this was a violation of the Fourth Amendment. Vasquez v. Lewis (“Vasquez I”), No. 5:12-cv-04021, mem. order (D. Kan., Nov. 26, 2014); No. 14-3278 (“Vasquez II”) (10th Cir., Aug, 23, 2016).

Defendants may move to suppress evidence obtained in violation of their Fourth Amendment rights in criminal cases. Many important decisions restricting law enforcement’s ability to conduct warrantless searches have originated from such motions. Another way to establish that a particular act or practice violates constitutional rights is through a civil lawsuit for violations of civil rights by a government agent under 42 U.S. § 1983.

It is important to note that the Vasquez rulings arise from a civil complaint, not a criminal prosecution. The burden of proof here was on the individual driver to prove that a violation occurred, rather than on the state to prove that a crime was committed. While the appellate court found that the officers violated the plaintiff’s Fourth Amendment rights, it remains to be seen whether future courts will consider this binding or persuasive precedent for criminal defendants making a similar argument.

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Calcium sulfateA report released in early 2016 by the National Registry of Exonerations (NRE), a joint project by the University of Michigan Law School and the Northwestern University School of Law, states that courts around the country exonerated 149 people in 2015. This is believed to be the highest number for any year in U.S. history. Texas accounted for more than one-third of the total, with 54 exonerations. The exonerees were serving an average prison sentence of 14 years. “Exoneration” is not a formal legal term, but instead it refers to multiple possible processes by which a person who has been convicted of a criminal offense is essentially cleared of all criminal liability for that offense and, in many cases, any lesser included offense, based on evidence showing that the person is innocent.

Exoneration may occur through a process initiated by an inmate or by the state. An increasing number of jurisdictions maintain conviction integrity units (CIUs) to review cases and identify errors. The NRE report notes that the CIU for Harris County, Texas was responsible for most of the exonerations in Texas in 2014 and 2015. It has been particularly active in reviewing drug possession cases, many of which involve a person charged for possession of something initially believed to be an illegal drug, who pleaded guilty to avoid the risk of a longer sentence. Subsequent testing revealed that the substances were entirely legal.

Since exoneration generally requires new evidence, a petition for habeas corpus is a common method used by defendants. Once a court vacates a sentence, the exoneration process is complete when the prosecutor drops the charges. Without new evidence, however, courts may be unwilling to enter a formal finding of “actual innocence.” This was the case with the former day care owners in Austin convicted of sexual abuse in the early 1990s. The Texas Court of Criminal Appeals vacated their convictions in 2013, but it declined to rule on the question of innocence.

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David Stanley [CC BY 2.0 (], via Wikimedia CommonsThe Fifth Circuit Court of Appeals affirmed the conviction of a Texas financier on multiple counts in connection with what the federal government called a “$7.2 billion Ponzi scheme.” United States v. Stanford, No. 12-20411, slip op. (5th Cir., Oct. 29, 2015). A jury convicted the defendant on multiple counts in 2012, and the court sentenced him to 110 years in prison. Grounds for appeal included claims that he was not competent to stand trial, that the court improperly denied his request for a continuance, and that a criminal proceeding that occurs simultaneously with a civil proceeding by the Securities and Exchange Commission (SEC) violates the Double Jeopardy Clause of the Fifth Amendment. The pretrial portion of the case produced multiple reported decisions and interlocutory appeals that illustrate the complexity of a large white-collar criminal case.

Prosecutors filed a twenty-one count indictment against the defendant in June 2009. The counts included wire fraud, 18 U.S.C. § 1343; mail fraud, 18 U.S.C. § 1341; obstruction of an SEC investigation, 18 U.S.C. § 1505; and various conspiracy charges. A lengthy series of motions and appeals began when the trial court granted prosecutors’ motion for revocation of the defendant’s’ release order. 630 F.Supp.2d 751 (S.D. Tex. 2009). The Fifth Circuit affirmed this order, 341 F. App’x 979 (5th Cir. 2009), and then affirmed an order denying the defendant’s motion to reconsider. 367 F. App’x 507 (5th Cir. 2010).

The trial court denied the defendant’s motion for release or for dismissal of the indictment several months later, 722 F.Supp.2d 803 (S.D. Tex. 2010), and the Fifth Circuit affirmed that order. 394 F. App’x 72 (5th Cir. 2010). Shortly afterwards, the U.S. Supreme Court denied the defendant’s first petition for writ of certiorari. 131 S.Ct. 1028 (2011). The defendant filed a motion to determine competency under the Insanity Defense Reform Act of 1984, 18 U.S.C. § 4241 et seq., and the trial court ordered a psychiatric evaluation. 769 F.Supp.2d 1083 (S.D. Tex. 2011).
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The U.S. criminal justice system generally divides criminal offenses into two categories:  felonies and misdemeanors. A felony conviction can result in a substantial fine and a lengthy jail or prison term. A misdemeanor conviction, while still creating a criminal record, usually results in a lesser penalty, and for this reason misdemeanors are often considered less “serious” than felonies. Misdemeanor convictions can have a profound impact on a person’s life, however. Recent research has suggested that a vast number of people have pleaded guilty to misdemeanor offenses they probably did not commit, simply to extricate themselves from the system as quickly as possible. The lower degree of scrutiny given to the misdemeanor system seems to have played a role in enabling this practice, which may extend throughout the entire country.

Bart Everson (Flickr: Inmates) [CC BY 2.0 (], via Wikimedia CommonsTexas law designates individual offenses as misdemeanors or felonies, and it also provides definitions based on the offense’s potential punishment. An offense is a felony if it is “punishable by death or confinement in a penitentiary.” Tex. Pen. Code § 1.07(a)(23). A misdemeanor is “punishable by fine, by confinement in jail,” or both. Id. at § 1.07(a)(31). Misdemeanors are further divided into Classes A through C. Penalties range from a fine of up to $4,000 and/or a jail sentence of up to one year for Class A misdemeanors, to a fine of up to $500 with no jail time for Class C. See Tex. Pen. Code § 12.01 et seq. Federal law uses the same subdivisions for misdemeanors but prescribes different penalties. 18 U.S.C. §§ 3559(a)(6)-(8).

Most rights related to criminal proceedings guaranteed by the Bill of Rights are not dependent on the severity of the alleged offense. The Fourth Amendment protects against unreasonable searches and seizures, whether the offense under investigation is a felony or a misdemeanor. The Fifth Amendment privilege against self-incrimination applies in any court proceeding. A defendant always has the right to confront their accuser under the Sixth Amendment’s Confrontation Clause, and the U.S. Supreme Court has held that no one may be “denied the assistance of counsel as guaranteed by the Sixth Amendment.” Argersinger v. Hamlin, 407 U.S. 25, 38 (1972).

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student-loan-debt-1160848_640Student loan debt is a tremendous burden all across the country, with outstanding student loans totaling about $1.2 trillion. One might not think, however, that defaulting on student loans would lead to criminal penalties, but recent news stories have suggested—not entirely accurately—that this is a possibility. The U.S. Marshals Service arrested a Houston man in February 2016, reportedly due to unpaid student loans, but the initial reporting did not tell the full story. While the reason for the arrest was not specifically student loan default, it is worth exploring how a debt collection matter ended up in federal court and led to an arrest.

Debt collection proceedings are civil in nature, not criminal. Federal courts presumably would not have jurisdiction over most debt collection matters. Even if the creditor and debtor were in different states, few debt collection claims (one hopes) would meet the $75,000 amount-in-controversy requirement for diversity jurisdiction. 28 U.S.C. § 1332. One way to ensure federal jurisdiction over a claim, however, is for the federal government to be a party.

The U.S. Department of Education (DOE) is the nation’s largest student loan creditor. It makes a substantial percentage of student loans directly to students, and it guarantees many private student loans. Federal courts automatically have jurisdiction over most lawsuits in which the United States is a plaintiff. 28 U.S.C. § 1345. The question remains of how a debtor, who would be the defendant in such a case, could get arrested.

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