Houston Criminal & DWI Lawyer & Attorney : Grant Scheiner Law Firm : Drunk Driving, Sexual Assault, Criminal Defense : Houston, Texas

I get this call a lot.  People sometimes take a deferred adjudication on a charge believing that there will not be any consequences.  As discussed earlier in this blog, a person who successfully completes a deferred adjudication probation does avoid a conviction.  Yet, there are often collateral consequences that a good criminal lawyer will discuss with a person prior to agreeing to take a deferred adjudication.

Employment limitations are the biggest collateral consequences that people face.  I usually receive a frantic call right after someone is turned down for a job because of the past deferred adjudication.  The caller usually says, "I had a deferred and my lawyer said that it would not be on my record but I was just denied employment."

Well I am telling everyone now, A DEFERRED ADJUDICATION IS ON YOUR RECORD.

Apartments are also being very stringent regarding criminal histories these days.

Employers and leasing agents do not know the difference between a deferred adjudication and a conviction.  Even if they did, those persons are not going to feel any more comfortable that you had a deferred for a theft versus a conviction.

So what can you do if you had a deferred.  Well, the first thing is if you are currently on deferred you may be eligible for early termination.  If you have completed your deferred probation, then you need to file a petition for non-disclosure.  A petition for non-disclosure seals your records.  Section 411.081(d) of the Texas Government Code is where the law is written regarding sealing one's records.

How do you do that?  The easiest way is to higher a criminal lawyer who knows what they are doing.  If done properly, the law allows you to deny the existence of the past deferred if it has been properly sealed.  Some deferred adjudications are not eligible to be sealed and some require a waiting period from the date one completes the probation.

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EZINEARTICLES. COM has accurate information regarding marijuana penalites in Texas.  Possession of marijuana can be a misdemeanor or a felony, depending on the amount possessed.  Less than 2 ounces of marijuana is a class B misdemeanor.  Less than 4 ounces of marijuana is a class A misdemeanor.  4 ounces to 5lbs of marijuana is a state jail felony.  5lbs to 50lbs of marijuana is a third degree felony.  50lbs to 2000lbs of marijuana is a second degree felony.  Over 2000lbs of marijuana is a first degree felony.

In some Texas counties, people caught with less than 4 ounces of marijuana receive citations.  ABC 13 reports that Harris County refuses to issue citations and instead prefers to arrest persons with small amounts of marijuana.  The article estimates that each arrest costs the county approximately $2,000.  Last year alone, nearly 10,000 people were arrested for marijuana possession in Harris County.  Get your calculator and do the math on that one!

To Arrest or Ticket.  The question really is where does the county wish to allocate its financial resources and jail bed space.  It is well-documented that Harris County inmates are being shipped to Louisiana because of overcrowding. 

Most persons arrested for such a small amount of marijuana have bonds as low as $500, which would only cost about $75 to bond out.  As a local criminal lawyer, my experience is that the final disposition of a marijuana case is typically probation consisting of community service and random urinalysis. 

Therefore, although statutorily possible, incarceration is never really an issue for misdemeanor drug cases.  Similiar to traffic tickets, there is no reason to arrest people who are not facing jail time.  Police officers only "arrest on traffic" as a pretext to conduct an otherwise illegal search, but that is a whole different issue.

What would be different if the night in jail was replaced with a written citation?  Would less people appear for their court dates?  Maybe, but then you would just put a warrant out for their arrest and add an additional charge for failure to appear.

Travis County is already writing citations and Dallas County will begin the practice soon.  These counties are not saying that marijuana is not a problem.  They are just choosing to approach the issue with a different approach.

Taxpayers and friends of logic and reason, what do you all think?

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Anyone charged with a criminal offense in Harris County, Texas is likely to be overwhelmed with the number of courts in the Harris County Criminal Justice Center.

The Harris County Criminal Justice Center is located at 1201 Franklin Street in downtown Houston.

There are fifteen county criminal courts at law.  The courts are found on floors 8, 9, 10, and 11.  The county criminal courts hear all class B misdemeanors and class A misdemeanors.   Class B misdemeanors are offenses that are punishable by up to 180 days in jail and/or a fine not to exceed $2,000.  The range of punishment for a Class A misdemeanor is up to 1 year in the Harris County Jail.

The District Courts are located on floors 14, 15, 16, 17, 18, and 19.  The District Courts hear all felony cases from first degree murder down to state jail felony drug cases.

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The Houston Chronicle reported that a Harris County man was arrested and charged with capital murder in the death of his son.  From what I gathered from the article, the autopsy revealed no external injuries and the cause of death was severe trauma to the brain which the Detectives believe is consistent with Shaken Baby Syndrome.

As a Harris County criminal defense lawyer, I do not feel it is appropriate to discuss this case given the early stages of the case, the seriousness of the charge, and the small amount of information contained in the Houston Chronicle article.   The man is presumed innocent and we will leave it at that for now. Yet, I am curious to know what the general public thinks about Shaken Baby Syndrome. 

Do people belives this phenomenon exists?  Does our medical community and modern science know enough about the brain to make such a determinaton?

The National Center on Shaken Baby Syndrome is the first place I looked.  The site at  http://don'tshake.com/ is the first web site I viewed.  This is a very well-intended site meant to prevent child abuse.  It is clear the organization is well organized and active.  Similiar to Mothers Against Drunk Driving, one cannot be at odds with the purpose and reason for existence of the organization.  The National Center on Shaken Baby Syndrome's mission is to protect babies from abuse.

Yet, I found it unsettling that the site has a page titled "The Legal System's Role in Facilitating Irresponsible Expert Testimony."  The purpose of this page was to accuse criminal lawyers of paying an expert to say the syndrome does not exist.  Outright, out in the open propaganda. 

I have used experts in many cases.  You pay for the expert's time and the expert gives you the opinion.  You do not pay for the "opinion."

So does anyone think Shaken Baby Syndrome does not exist?  In a very intersting article, Shaken Baby Syndrome was put to the test.   Michael Prange, Ph.D., Brittany Coats, B.S., Ann-Christine Duhaime M.D. and Susan Margulies, Ph.D., medical researchers at the Children's Hospital of Philadelphia, tested the shaken baby hypothesis. They published their results last year in the Journal of Neurosurgery.

Models were used to simulate forces thought to cause shaken baby syndrome.  The research showed that a grown man is not strong enough to shake a baby hard enough to tear brain tissue and cause bleeding.  Wonder what inmates convicted of this charge think about that research?  

Typically, shaken baby syndrome excludes injuries to the neck.  The experiment showed that shaking the model baby would definitely cause injuries to the neck.

So I believe that is a major issue in a Shaken Baby Case.  Was the baby's neck injured?  Medical research and common sense should require some injury to the baby's neck to be consistent with violent shaking of a baby.

A shaken baby case is a hard case to prosecute because there is credible medical research that disputes the existence of such a phenomenon.  On the other hand, these cases are even harder to defend because there is a deceased infant and loved ones and police want to hold someone responsible.  Too many times there is a perfect scapegoat such as the babysitter or ill-tempered boyfriend.

Curious to know people's thoughts... 

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In a very controversial case, Joe Horn was no-billed by a grand jury in Harris County, Texas.  The Houston Chronicle reported the Grand Jury reviewed this case for two weeks.

So the big question is was this the right result?  Was this the fair result?  The answers to those questions depend on who you ask.  If you ask homeowners all over the County, Joe Horn did an honorable thing.  If you ask loved ones of the deceased, Joe Horn is a murderer.

What do I think?  Well if you ask, based on the facts as presented in the media, Joe Horn did not have a legal right to shoot those men.  The evidence presented through the news was that Joe Horn was in his home and not in danger, but chose to go outside and confront these men.  If you look at it morally, it gets a little cloudier.

The whole case depends on what Joe Horn's mental state was.  In Texas, a person commits murder if one intentionally and knowingly causing the death of a person.  There is no doubt Joe Horn intentionally shot the deceased.  Therefore, the only issue is whether the killing was justified by self-defense or some other legal reason.

The worse fact for Joe Horn was that he disregarded the 911 operator's order to stay in his home.  Furthermore, Joe Horn told the 911 operator that he was going to shoot them.  Only Joe Horn knows what happened once he went outside.

A grand jury is comprised of twelve persons.  It is a secret proceeding.  In order for a citizen to be indicted, 9 out of 12 of the grand jurors must find probably cause that the citizen committed a felony.

So why did the Grand Jury no-bill the case?  Did the Grand Jury do a complex analysis of legal issues and apply them to a set of facts?  More likely, did the Grand Jury decide that the guys Joe Horn shot needed killing?  The long and short of it was well-documented.  The two deceased were here in the country illegally, they were burglarizing innocent citizen's homes, and who knows what else they would do next.

What message does this send to the community?  All people who choose to burglarize a home must know that they may be shot by a homeowner, but does this decision create a sense of vigilante justice?

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We all must applaud Mexico for its progress in attempting to legitimize the rule of law.  The Houston Chronicle reports that Mexico has enacted a constitutional amendment that will completely change the legal system in Mexico.  The article states that no longer will a judge decide a person's guilt behind closed doors only relying on written evidence.  Along with the jury trial system, the right of the Presumption of Innocence is included in the amendment.

The fact that Mexico has chosen to enact this amendment  is a compliment to the United States' criminal justice system.  Mexico had several options: 1.) Keep the system they already had; 2.) input the principles of the United States system; or 3.) follow any other system out there.

As a criminal lawyer in Houston, I am excited and optimistic of how these changes will legitimize the courts and government in Mexico.

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R. Kelly was acquitted in a child pornagrahy case in Cook County, Illinois.  The case had been pending for six years.  This is a classic example of how the American Justice System should work.

The general public opinion was the R. Kelly committed this crime.  According to one juror, the case simply lacked evidence.  In a Los Angeles Times Article, one juror claimed that there was not enough evidence to say whether R. Kelly or the young lady was on the video.  The underage woman refused to testify in the trial.  I find this very strange.  The State of Illinois has subpoena power!  Why in the world would they go to trial without the "victim" also known as the complaining witness.

The complainant in the case could only have 1 or 2 positions on the situation.  One- She would say it was her on the tape. Two- she would say it was not her on the tape.  Either way, one would think one side or the other should have wanted her there.

The reason why this case is an example of how a criminal trial should work is because the State has the burden of proof.  The State did not bring enough evidence to convince the jurors beyond a reasonable doubt,  Therefore, the jurors followed the law and gave a two-word verdict.

So what did R. Kelly win?  There is not doubt he won his freedom although the prosecutors are postering regarding whether they would bring additional charges if new evidence presented itself. 

So what did R. Kelly lose? R. Kelly will forver have a Scarlet Letter "P" for pedophile attached to hiim whether it is warranted or not.  Fathers of teenage girls will probably not be lining up their daughters for alone time with Mr. Kelly. 

 The stress, anxiety, and outright fear of the government trying to put you in jail will forever leave an impression on him.  I am glad to see a jury tell the government that it did not meet the high burden of proof, if they did not.  Some observers might say that R. Kelly's fame aided him in being acquitted.  I am not so sure about that.  A cursory look at the State's case shows the case had vulnerabilities. 

As a society, we must defer to the jury's decision.  Those 12 heard all of the evidence and entered into meaningful, long deliberations.  If they say the were not convinced, then he is not guilty!

Please keep in mind, not guilty does not mean innocent!

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Cedric Benson was released by the Chicago Bears yesterday.  A little over a month ago, Benson was arrested for Boating While Intoxicated.  For all practical and legal purposes in Texas, Boating While Intoxicated is treated as the same as Driving While Intoxicated.  Last Saturday, Benson was arrested for a separate Driving While Intoxicated charge.  Benson is not the first person to be arrested for a DWI while a pending DWI/BWI case is pending.

So did the Bears act too quickly?  Should the Chicago Bears have let the justice system run its course, prior to making any harsh and long lasting decisions.   Please keep in mind, drinking and driving is not against the law as long as you are not intoxicated.   As a public figure and role model to children, maybe a player should not put himself in this type of situation to even allow the possibility of being arrested.  For the cost of a good DWI lawyer, Benson could have taken a cab from Austin to Chicago.

What about employers of common people?  When someone is charged with a criminal act, should employers wait for the justice system to run its course before firing the employee?  What is the point of innocent until proven guilty if you suffer consequences before the evidence is even available.  The old saying is you might beat the wrap but you won't beat the ride.  Meaning you might win your case, but either way it is going to hurt.

Truth is employers can do whatever they want regarding this type of situation.  There is no legal recourse for being "let go" by an employer, even if for an unjust or unfair reason.

Last I heard, the Houston Texans needed a running back!

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Our criminal defense law firm won an acquittal today in a Prostitution case. The jury was out 25 minutes before returning with a verdict of not guilty. Our client was a former employee of the Green Haven Spa in Houston. She was accused of offering sex to an undercover police officer in exchange for a fee.

In Texas, Prostitution is usually a Class "B" misdemeanor, punishable by a fine of up to $2,000.00, up to six (6) months in the county jail, or both a fine and jail time. Promotion of Prostitution is a Class "A" misdemeanor and Aggravated Promotion of Prostitution is a third degree. Compelling Prostitution - which is essentially compelling a person by force or threat of force to commit prostitution, or causing by any means a person younger than 17 to commit prostitution -  is a second degree felony, punishable by two to 20 years in prison, plus a fine of up to $10,000.00.

In my experience these cases are very defensible. This is true whether the accused is a woman who allegedly works in an escort service, a massage parlor or as a "street walker." Prostitution cases are also very defensible if the accused is a man who allegedly propositions an undercover female officer for sex in exchange for a fee. Many of these cases involve undercover audio tapes or surveillance video tapes. The tapes are usually of poor quality and can be challenged in court. When the police intentionally choose not to make an audio tape or video tape of the alleged transactions, jurors are often skeptical about whether the prosecution can prove its case.

Given that many prospective jurors express their opinion that prostitution should be made legal, some argue that the time has come for Texas and other states to begin considering the legalization of prostitution. So far, Nevada and Rhode Island are the only two states that have some type of legalized prostitution.

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