Articles Posted in Texas Criminal Law Glossary

Of the thousands of criminal cases brought by federal, state, county, and local prosecutors around the country each year, very few result in an actual bench or jury trial. Many or most cases end with a plea bargain of some sort. Modern technology has allowed law enforcement to develop electronic monitoring systems as an alternative to incarceration. These systems are now widely used by criminal courts, juvenile courts, and probation and parole officers. Electronic monitoring devices allow officials to monitor individuals’ movements and locations. In some cases, the use of these systems raises new civil rights questions. Technological and administrative shortcomings can also contribute to situations in which the electronic monitoring itself prevents a person from fulfilling other obligations in a criminal case.

Electronic monitoring can take several forms. The Pretrial Services Division in Travis County, Texas describes two systems that it may use. “Radio Frequency Electronic Monitoring” involves the use of a device—commonly worn as an ankle bracelet—that transmits a signal if it is carried outside a designated area. This type of device is used for house arrest and other situations in which an individual must remain at home at designated times. “Global Positioning System Electronic Monitoring” allows officials to determine an individual’s location and track their movements in order to monitor compliance with court requirements.

Several provisions of Texas law allow for electronic monitoring. In criminal cases, courts can require the use of electronic monitoring to enforce a sentence of house arrest in lieu of a jail sentence. Tex. Code Crim. P. Art. 42.035. A court may require electronic monitoring as a condition of release from jail on a personal bond. Id. at Art. 17.43. Electronic monitoring may also be used as an alternative to incarceration in juvenile cases. A court can order electronic monitoring as part of the civil commitment system for certain convicted sex offenders. Tex. Health & Safety Code § 841.081 et seq.

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A criminal conviction can result in a wide range of penalties, depending on an even wider range of factors that judges and juries must consider. Most cases result in some form of probation, or time served if the defendant remained in custody during the case. A defendant who is sentenced to a jail or prison term may not serve the entire sentence. Parole involves early release, followed by a period of supervision that is similar to probation. Some inmates may be eligible for release to a facility located in the community, commonly known as a “halfway house,” whose purpose is to assist with the adjustment to life outside prison. A recent investigative report on President Obama’s pardons and commutations showed how these facilities can, unfortunately, end up looking more like punishment instead of rehabilitation.

The Bureau of Prisons (BOP) takes custody of people convicted of federal criminal offenses. It is authorized to incarcerate inmates in any facility “that meets minimum standards of health and habitability.” 18 U.S.C. § 3621(b). At the end of their sentences, federal law directs the BOP to place prisoners in facilities “that will afford [them] a reasonable opportunity to adjust to and prepare for [their] reentry…into the community” for up to 12 months. Id. at § 3624(c). It refers to these facilities as residential reentry centers (RRCs)—halfway houses by another name.

Texas has similar procedures for halfway houses. The Pardons and Paroles Division (PPD) is authorized to take custody of an inmate within 12 months of their “presumptive parole date or mandatory supervision release date” and to place them in a “community residential facility” for the remainder of their sentence. Tex. Gov. Code § 499.002(a). The Texas Community Supervision and Corrections Department (CSCD) also has the authority to transfer “suitable low-risk inmates” and those whom it finds “would benefit from a smoother transition from incarceration to supervised release” to halfway houses. Id. at § 508.118(a).

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Criminal records can cause problems for a person long after their case has ended and they have paid their debt to society. Background searches are now a common feature in employment, housing, and other important areas of society. Under certain circumstances, it is possible to remove information about a criminal case from the public record with an expunction or seal information from public view with an order of nondisclosure. These types of relief are usually only available in cases that ended in an acquittal, an executive pardon, or the successful completion of a deferred prosecution plan. Some people are now attempting to expunge records of convictions in cases in which the U.S. Supreme Court has ruled the underlying statute unconstitutional. This does not fit neatly into the letter of most expunction laws, but it seems consistent with those laws’ spirit.

An expunction, also known as expungement, removes information about a case from court records and law enforcement files, including the actual destruction of the physical file. This includes records relating to a person’s arrest, detention, and charge or charges. An order of nondisclosure prohibits public officials from releasing information about a criminal case. Texas allows expunction of records in cases in which a trial ended in an acquittal, a pardon was issued after a conviction, or any type of clemency was granted based on “actual innocence.” Tex. Code Crim. P. Art. 55.01(a). For cases that never proceeded to trial, Texas allows expunctions when the charges were dismissed, no community supervision was ordered, and a sufficient period of time has passed. Major felony offenses are generally not eligible for expunction or nondisclosure.

Up until 2003, 14 states in the U.S., including Texas, had criminal statutes prohibiting “homosexual conduct,” also known as “sodomy laws.” Texas made it a Class C misdemeanor to “engage[] in deviate sexual intercourse” with a member of the same sex. Tex. Pen. Code § 21.06. The U.S. Supreme Court ruled that this statute violated substantive due process rights under the Fourteenth Amendment. Lawrence v. Texas, 539 U.S. 558 (2003). The ruling overturned a prior ruling affirming a similar law in Georgia, Bowers v. Hardwick, 478 U.S. 186 (1986). The Lawrence ruling effectively invalidated these laws in all 14 states. As of 2014, however, the laws remained on the books in 12 of these states, including Texas.

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The U.S. Supreme Court has identified numerous exceptions to the Fourth Amendment’s requirement that law enforcement officers obtain a warrant before conducting a search of, or seizing, a person or their property. The “border search exception” is of particular concern in west Texas, but it affects people all over the country’s border and coastal regions. Federal law gives immigration and border patrol agents the authority to search people and their property near U.S. borders for the purpose of enforcing federal immigration and criminal laws. The border region, as defined by immigration authorities, is bigger than one might think, extending 100 miles inward from the nation’s borders and coastal areas.

U.S. Customs and Border Protection (CBP) operates stations throughout the border region, such as the Sierra Blanca Border Patrol station in Hudspeth County, Texas. These facilities are intended to intercept people violating immigration law, and they also serve other law enforcement purposes. Agents have wide latitude under federal law to conduct warrantless searches “within a reasonable distance from any external boundary of the United States,” 8 U.S.C. § 1357(a)(3), and to make arrests for suspected federal crimes. Federal immigration authorities have interpreted “reasonable distance” to mean “within 100 air miles” since the 1950s. 8 C.F.R. § 287.1(a)(2), 22 Fed. Reg. 9808 (Dec. 6, 1957).

Permanent highway checkpoints, intended to stop vehicles and question drivers and passengers, do not inherently violate the Fourth Amendment, according to the U.S. Supreme Court in United States v. Martinez-Fuerte, 428 U.S. 543 (1976). Border patrol agents are permitted to detain a person without a warrant if they have reasonable suspicion of an offense such as drug smuggling, United States v. Montoya de Hernandez, 473 U.S. 531 (1985); and to conduct thorough vehicle searches to look for drugs and other contraband, United States v. Flores-Montano, 541 U.S. 149 (2004).

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State and federal law enforcement officials filed securities fraud charges against the Texas attorney general (AG) in 2015. The state criminal charges, along with a federal civil claim, relate to alleged acts that pre-dated the defendant’s election to the office of AG in 2014. The case has been controversial in both a political and a legal sense. All politics aside, the case is notable as an example of the multiple ways law enforcement can pursue certain alleged white-collar criminal offenses. State law allows criminal prosecution, and federal law allows both civil and criminal proceedings.

In a very general sense, our judicial system is divided between civil and criminal matters. In criminal cases, prosecutors employed by the government bring charges against defendants. They have the burden of proving the defendant’s guilt beyond a reasonable doubt, the highest burden of proof in our justice system. Civil cases involve lawsuits between one or more plaintiffs and one or more defendants. The plaintiff must prove the elements of their cause of action by a preponderance of evidence. This is a lighter burden of proof than the one prosecutors must meet.

Some counties in Texas maintain separate courts for civil and criminal cases, while other trial courts handle both types. Rather than a single state supreme court, Texas also maintains two high courts. The Texas Supreme Court hears appeals of civil cases, while the Texas Court of Criminal Appeals handles criminal appeals. Federal courts handle both civil and criminal cases, from district courts up to the U.S. Supreme Court. The cases involving the Texas AG are currently pending in a state district court in Collin County that handles both civil and criminal matters, as well as a federal district court in Sherman.

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The 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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The “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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The 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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In 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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A 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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