Articles Posted in Code of Criminal Procedure

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If you are not successful on either the direct appeal or the Petition for Discretionary Review, the next step would be a state writ of habeas corpus. Also, if you were not given permission for appeal, you may be able to go directly into a writ of habeas corpus.

In Texas, there are several types of post-conviction writs. What kind you will need to file will depend on what the outcome of your case was and what sentence you received.

But, a writ of habeas corpus is latin for “you have the body”. It is a legal vehicle to get back into to court and tell the State of Texas that you are illegally detaining an individual in violation of the constitution. The “great object” of the writ of habeas corpus “is the liberation of those who may be imprisoned without sufficient cause.” Ex parte Watkins, 28 U.S. 193, 202, 7 L. Ed. 650 (1830)

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Governor Rick Perry signed several bills into law that will impact the San Antonio area and surrounding communities, Bexar county, and Texas. The regular 82nd legislative session ended on May 30, 2011, and the following Senate Bill took effect on September 1, 2011. The following summary of the law concerns the Penal Code, the Family Code, the Code of Criminal Procedure, the Family Code, and the Education 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.

SB 407, Relating to the creation of the offense of electronic transmission of certain visual material depicting a minor and to certain educational programs concerning the prevention and awareness of that offense. Penal Code Sections 37.09 and 43.26 amended, and Section 43.261 added. Code of Criminal Procedure Chapter 6 and Articles 38.45, 39.15, 42.12, 45.0215 and 45.0216 amended, and Articles 6.09 and 45.061 added. Family Code Sections 51.03, 51.08, 51.13, 58.003, 59.004, and 61.002 amended, and Section 54.0404 added. Education Code Section 37.218 added.

Previously, minors who were convicted of “sexting” (sending sexually explicit material via electronic means) would be tried as adults under pornography laws. The term “sexting” has recently made it into the Oxford Dictionary. The consequences for the minor could have been a possible felony conviction and registration as sexual offenders, which would have resulted in a lifetime of negative stigmatisms. Under the new law, the punishments more accurately fit the crimes and take into account a defendant’s impressionable age and whether it is their first conviction.

The new law uses a tiered system and minors are to be charged with misdemeanors. Individuals who are 17 years of age and younger can be tried for both the promotion and the possession of sexting material. Minors facing their first conviction of sexting will be charged with a Class C misdemeanor (maximum fine of $500). A second offense is a Class B misdemeanor (up to 180 days in jail and maximum fine of $2000) and a third offense is a Class A misdemeanor (up to one year in jail and maximum fine of $4000).

There are several requirements associated with the new law. County court judges are required to take a minor’s plea in an open court. Parent(s) of the minor are required to be in attendance in the court. All records are to be expunged on the 17th birthday of the minor if they have been convicted of only one sexting offense. For cases punishable by fines only, the case will be transferred to juvenile court. If the defendant is convicted and required to complete an educational program, the defendant and/or the parents are held financially responsible for any costs. The courts are allowed to seal the records of minors who attend and complete an educational program.

In addition, the new law requires the Texas School Safety Center, in cooperation with the Office of the Attorney General, develop the program for the psychological, social and legal consequences to be used by Texas school districts to educate students. The program must be written by January 1, 2012, and updated each year. The program will be available beginning the 2012-2013 school year. Each school district will decide what grade level is appropriate for introduction.
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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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The regular 82nd legislative session ended on May 30, 2011, and the following House Bill will take effect on September 1, 2011. This new law will impact San Antonio’s Mental Health docket and criminal defense attorneys and other court staff alike will need to apply the new rules to Defendant’s suffering from mental health problems. The following summary of the law concerns the Code of Criminal Procedure and the Health and Safety 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 748, Relating to a criminal defendant’s incompetency to stand trial, to certain related time credits, and to the maximum period allowed for restoration of the defendant to competency. Code of Criminal Procedures Articles 42 and 46B are amended. Health and Safety Code Section 574 is also amended.

Standards for determining whether a person is competent to stand trial in either a felony or misdemeanor case are outlined in Article 46B of the Code of Criminal Procedure. HB 748 addresses and clarifies standards and procedures that the court system must follow in regards to individuals who are awaiting a determination of competent or incompetent to stand trial.

The bill addresses the disparity in the current law that limits a judge’s ability to give time credit to a person who is waiting for a competency hearing or waiting in jail for a bed to open up at a mental health treatment facility. HB 748 gives a defendant credit for time served in a jail, mental health facility, and residential care facility if that defendant is found incompetent to stand trial. The bill would also compel a judge to give a convicted person credit on their sentence for the time they have already spent in confinement. The time credit would include when a person was confined in a jail waiting to transfer to a mental health facility, release on bail to enter into an outpatient treatment program, or a trial following any temporary restoration of the defendant’s competency to stand trial.
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crime scene tape.jpgA female teenager in Texarkana, Texas has been formally charged with three counts of capital murder in the deaths of a Texarkana woman and her two children. According to reports, the suspect’s mother contacted officials saying that her daughter confessed. After being interviewed at her home, the teenage girl was arrested and remains at a juvenile detention facility. According to police, the girl had information about the May 11th fire that killed the three individuals that only someone at the scene would have known.

There are several ways that a murder becomes a capital offense in Texas. One being whoever “intentionally commits the murder in the course of committing or attempting to commit…arson…” Tex. Penal Code §19.03.

This case raises two interesting legal points. First, privileged communications that are recognized under the law. The Texas Rules of Evidence govern what privileged communications are not admissible in court. There are certain privileged communications that the courts will not allow to be admitted against a defendant in court. For example, the common privilege is the attorney-client privilege. Other common privileged communications are the husband-wife privilege, clergy-penitent privilege, and the physician-patient privilege. There is no parent-child privilege specifically addressed by the Texas Rules of Evidence. There have several attempts by lawmakers to add a parent-child privilege to the Federal Rules of Evidence, however none of them have ever passed. Thus, it remains in Texas and in Federal Court that parents may be forced to provide incriminating information against their own child. Even the few states who do recognize parent-child privilege only apply the privilege to communications between a minor child and his or her parent.
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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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The regular 82nd legislative session ended on May 30, 2011, and the following House and Senate bills will all take effect on September 1, 2011. The following summary of the laws concern the Texas Penal Code, the Business and Commerce Code, the Alcoholic Beverage Code, and the Family Code. These new laws, 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 2577, Relating to the unlawful use of a criminal instrument or mechanical security device; providing a penalty. Texas Penal Code Section 16.01 is amended.
So, what exactly is a criminal instrument or mechanical security device? Any tool that is legal to buy or own, but is intended to be used in a crime. For example, owning an electronic lock-pick (like the kind used by a locksmith) is not a crime. But, using said lock-pick to break into someone else’s house is a crime. Under the new law, subsection (a) (1) states that a person who possesses a criminal instrument or mechanical security device with the intention to use in a crime can be charged. Penalty is one category lower that the offense intended. Subsection (a) (2) states a person who manufactures, adapts, sells, installs, or sets up an instrument or device to use or aid another person to use them can be charged. Penalty is a state felony.

SB 488, Relating to criminal background checks on users of online dating services and to disclosures of online dating safety measures; providing a civil penalty. Chapter 106 is added to Business and Commerce Code.

Finding someone special just got a little safer in the state of Texas. Under the new Internet Dating Act, providers must disclose to its members whether or not they conduct background checks, and whether or not they exclude or allow people with criminal records to utilize their website. When conducting a background check, online dating providers must check for any felony offenses, any sex offender registrations, and any convictions of family violence. Texas requires websites to provide a statement, or “Safety Awareness Notification”, that reminds members that background checks are not 100 percent fail-safe, criminals are able to manipulate technology, not all states make criminal records public, and the background checks do not cover foreign convictions and are limited to the three checks listed above. Websites that do not comply with the new law by September 1, and do not act in accordance with the law, are subject to civil penalties.
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photo.lineup.image.jpgTexas has been receiving attention over the past several years for the number of wrongful conviction in our state. Although Texas has far more wrongful convictions overturned by DNA evidence than any other state, this is a problem nationwide. The overwhelming majority of these wrongful convictions are due to erroneous eyewitness testimony. According to a report issued by The Justice Project in November 2008:

“Faulty eyewitness identification has played a role in over 75% of the 223 DNA exoneration cases in our country thus far, making mistaken eyewitness identification the leading cause of wrongful conviction in the United States. The same holds true in Texas where 82% of the state’s 38 DNA exonerations involved mistaken eyewitness identifications…Because eyewitness evidence, much like trace physical evidence, is susceptible to contamination if not collected properly, some identification procedures can actually increase the risk of false identification.”

The United States Supreme Court has also recognized the substantial role that eye witness testimony plays in wrongful convictions. See United States v. Wade, 388 U.S. 218, 228 (1967). The “vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identifications.” Id.

Recognizing the problem with eyewitness identifications, the Texas government has passed a bill that addresses how law enforcement agencies obtain the identifications. Texas House Bill 215, will require Texas police departments to have in place new eyewitness identification procedures. This bill shows that at least the Texas government is aware there is a problem with our justice system that needs to be fixed.

HB 215, codified as article 38.20 in the Texas Code of Criminal Procedure, requires all law enforcement agencies in TExas who regularly conduct photograph or live lineup procedures when performing the officer’s official duties. According to the bill, law enforcement agencies can either adopt the model policy created by the Bill Blackwood Law Enforcement Management Institute of Texas at Sam Houston State University or the law enforcement agency may adopts it’s own written policy that conforms to subsection (c) of Article 38.20.
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The regular 82nd legislative session ended on May 30, 2011, and the following House and Senate bills will all take effect on September 1, 2011. The following summary of the laws concerning the criminal justice system will effect the Texas Code of Criminal Procedure, which 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.

Misdemeanor Fines and Costs:
House Bill 27 amends the Texas Code of Criminal Procedure, Articles 42.15 and 45.041. This bill applies to defendants of misdemeanor cases who are unable to pay the full amount of the court fines and costs in one payment. When a judge declares the sentence in a case, under the old law the judge could either require the defendant to pay the entire amount of the fines and costs at the time of sentencing or require the defendant to pay the entire amount at a later date. Under the new law, the court has the authority to set-up a payment plan for a defendant. For many people, this will help alleviate much of the stress associated with a misdemeanor case.

New Conditions for Defendants Being Placed on Deferred Adjudication:
For defendants who are going to be placed on deferred adjudication community supervision, House Bill 1106 outlines information that the court must supply. According to amended article 42.12, the court must inform the defendant that they have the right to petition for an order of nondisclosure (i.e. sealing of records, as outlined in Government Code 411.081) if the defendant is eligible. The defendant is limited in pursuing a petition of nondisclosure based on the nature of the offense and/or the defendant’s criminal history. In addition, the bill also outlines the information that must be presented to a defendant in the event of a dismissed case. “A judge who dismisses the proceedings against a defendant and discharges the defendant” must provide a copy of the order of dismissal and discharge and inform the defendant of their right to nondisclosure.
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