Houston Lawyer Charles Johnson
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Have you or a loved one been arrested?
The following are important answers to 50 questions that you may have at this moment. Houston Lawyer Charles Johnson WILL help you reach a resolution to the legal problem that has arisen in your life. At the Charles Johnson Law Firm, we want you to know what you are facing and that we can help you through this challenging time. Give us a call today. We are available 24/7, rain or shine.
How Are Criminal Charges Filed?
Criminal proceedings take place in a series of stages. Usually, the police are responding to a citizen’s complaint that a crime has been committed. Sometimes, the police observe suspicious activity. Once they are called, or see something suspicious, the police investigate, take statements from witnesses, and prepare a report on their findings. At times, they will arrest people during the course of their investigation. At other times, they will complete their report and submit it to the prosecutor’s office for evaluation, and a prosecutor will decide whether charges should be filed against any suspects named in the police report.The exact procedure for how charges are filed varies from jurisdiction to jurisdiction. Some jurisdictions give the police greater discretion in charging defendants with specific crimes, while others place more power with the prosecutor’s office. After being stopped by the police, a person may be ticketed for a “civil infraction,” may be ticketed or arrested for a “misdemeanor,” or may be arrested for a “felony.”While it is common to speak in terms of being “charged by the police,” in many states this is not entirely accurate. The exact procedure for how charges are filed varies from jurisdiction to jurisdiction, and, although the police may arrest a person and may recommend a specific charge, in many jurisdictions criminal charges is chosen solely by the prosecutor’s office.
What happens if I am stopped by the Police?
Generally, the police may stop a person for committing a traffic violation, for suspicion of being engaged in criminal activity, or to arrest the person for a criminal act. After being stopped by the police, a person will typically be questioned.
Can The Police Stop And Question People Who Are Not Under Arrest?
Yes. The police can stop a person, and ask questions, without “arresting” the person. Upon seeing suspicious activity, the police may perform what is called a “Terry Stop,” and may temporarily detain people to request that they identify themselves and to question them about the suspicious activity. The scope of a “Terry Stop” is limited to investigation of the specific suspicious activity, and if the police detain people to question them about additional matters, the stop can turn into an “arrest.” For their own safety, the police can perform a “weapons frisk” on the outside of a person’s clothes (sometimes called “patting down the suspect”) during a “Terry Stop.” During this frisk, if they feel something that may be a weapon, they may remove it from the suspect for further examination. However, they are not entitled to remove items from person’s pockets that do not appear to be weapons, even if they believe that the items are contraband.
When Is A Person “Under Arrest”?
Many people think of an arrest as being a formal declaration by the police, “You are under arrest,” followed by the reading of the “Miranda rights”. (As seen on TV: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed to represent you.”)Reality is a bit more complicated. An arrest occurs when a person no longer reasonably expects that he is free to leave. A “Terry Stop” is not an arrest, even though the person can’t leave during the investigatory questioning, as the detention is of short duration and is limited in its scope. (A “Terry Stop” may involve little more than a short series of questions, such as, “What is your name? Where do you live? Why are you here?”) However, if a person is not allowed to leave the scene for an extended period of time, the person may be considered to be “under arrest,” even though those words are never used. If a person is handcuffed, is locked in the back of a police car, or is otherwise restrained from leaving, the person will ordinarily be considered to be “under arrest.”
If The Police Ask To Search Me, My House, Or My Car, Do I Have
To Say “Yes”?
No. You can refuse the police permission to conduct a search. Remember this – the only reason the police officer wants to perform a search is for evidence of criminal activity, and the fact that he is asking reflects an expectation that he will find some. You are entitled to say “No.” If the police officer has the legal authority to perform the search, he will do so whether or not you agree. However, if he does not have the legal authority to perform a search, your consent gives him that authority.During an investigative stop, or a traffic stop, a police officer may ask if he can search you or your car. However, if you give the police officer permission, he can perform the search even if he otherwise had no legal authority to do so. Some people don’t know, or forget, that they have an “open” bottle of liquor in the car – a bottle with the seal broken, whether or not the cap is off. Sometimes, people have knives or other weapons which can be classified as illegal “concealed weapons.” Sometimes, people forget that they have contraband in their cars, such as illegal drugs, or find to their chagrin that their teenaged child dropped a marijuana cigarette in the car. Unless you are the only person with access to the interior of your car, you may be in for a surprise if you grant permission for a search.
Do The Police Have To “Read Me My Rights” When I Am Arrested?
The police have no obligation to formally announce the arrest when it occurs, or to read a suspect his “Miranda Rights
.” Typically, at some point the police will inform a suspect that he has been arrested. However, many defendants never receive their “Miranda Rights,” which relate to the validity of police questioning of suspects who are in custody, and not to the arrest itself.
What Is The Difference Between A “Terry Stop” And An “Arrest.”
While a “Terry Stop” can be made upon “reasonable suspicion” that a person may have been engaged in criminal activity, an arrest requires “probable cause” that a suspect committed a criminal offense.
Can the Police Arrest Me Without A Warrant?
For most misdemeanor offenses, a police officer can only make a warrantless arrest of a suspect if the offense was committed in the officer’s presence. Officers can arrest people for felonies based upon witness statements, or where a warrant for the person’s arrest has been issued.
What Happens If I am Arrested Without Legal Cause?
It is important to note that an “illegal arrest” does not mean that a person can’t be charged with a crime. If a person is arrested illegally, and is searched or questioned by the police, evidence gained through the search or questioning may be declared inadmissible. However, there are circumstances where that evidence will be admitted into court despite the illegality of the arrest. Further, if a person has outstanding warrants for other charges, he may be detained on those charges, even though his initial arrest was illegal.
If I Am Arrested, Can The Police Search Me?
The police have the authority to perform a search of a suspect and his immediate surroundings, “incident” to the arrest of the suspect. If the police arrest a person who was driving a car, they ordinarily get the authority to search the entire passenger compartment of the car – and will usually also be able to search passengers for weapons. If the car is impounded, the police may perform an “inventory search” of the entire car, including the contents of the trunk.
What Can The Police Charge Me With?
A person who has been stopped by the police may be ticketed for a “civil infraction,” may be ticketed or arrested for a “petty offense” or “misdemeanor,” or may be arrested for a “felony,” or may be released. It is possible for the person to later be charged, when the police complete their investigation.Sometimes, the person will be informed that charges have been filed, and will be asked to present himself at the police station by a particular date and time.At other times, a “warrant” for the person’s arrest may be entered into the state’s computer system, informing police officers to arrest the person if they find him. If the charges are serious, the police may go out to arrest the person.
|A “civil infraction” is not a crime, although it is a charge filed by the state. The state has to prove that you committed a civil infraction by a “preponderance of the evidence,” which is to say; that it is more likely than not that you committed the violation. This is a much lower standard than the “proof beyond a reasonable doubt” standard that applies in civil cases. The typical civil infraction is decided by a judge or magistrate, without a jury, in what is typically a short proceeding.
|Some states have a class of “petty offenses,” where the defendant may be tried without a jury before a judge or magistrate. Typically, the only punishment for a “petty offense” is a fine. However, these offenses may be of a criminal nature. If you are not sure whether you are charged with a criminal offense or a civil infraction, consult a lawyer.
|A “misdemeanor” is a criminal offense, and conviction ordinarily results in a criminal record. Misdemeanors are technically less serious offenses, although the consequences of conviction can nonetheless be quite severe. Possible punishments for misdemeanors include imprisonment, probation, fines, and at times driver’s license sanctions. Some misdemeanors are classified as “sex crimes” and require that a convicted person be registered as a “sex offender”, and keep the police informed of his place of residence — a requirement that may continue for life.
|Felonies are the most serious offenses that can be charged. Sometimes, the distinction between “felonies” and “misdemeanors” seems arbitrary. However, all of the most serious criminal offenses (such as murder, sexual assault, embezzlement, burglary, robbery, arson, and treason) are felonies.
How Do I Know If I Am Charged With A “Civil Infraction” Or A Crime?
Typical “civil infractions” include “moving violations”, such as “speeding” and “failure to yield.” Sometimes people get confused, when they are charged with a traffic misdemeanor, such as having invalid license plates or driving an uninsured automobile, and think that they are being charged with “civil infractions.” Traffic misdemeanors are criminal offenses, and will result in a criminal record. Many traffic misdemeanors also carry “points” which will be added to the defendant’s driving record, and some require the suspension or revocation of a driver’s license. If you are ticketed for a “misdemeanor,” the ticket will likely reflect the nature of the charge, and you will be required to appear in court. If the charge is a “civil infraction,” you typically will not have to go to court if you pay a fine by mail. Read the ticket carefully.
Do Defendants Have The Same Rights When Facing Misdemeanor
And Felony Charges?
A defendant charged with a misdemeanor has fewer legal rights than a defendant charged with a felony. If the defendant will not face imprisonment as a result of conviction, he has no right to an attorney. There is no right to indictment by grand jury, or to a “preliminary examination” to review the basis of the charges filed. In some states, misdemeanor charges are tried before six person juries, whereas felonies are ordinarily tried before twelve person juries. Most other rights are the same, for both felonies and misdemeanors.
If I Have Not Been Arrested, How Do I Find Out If I Am Charged
With A Crime?
If there is reason to believe that you have been charged with a crime, you may wish to have an attorney contact the police or prosecutor to find out if a warrant has been issued for your arrest. Many people who have been charged with criminal offenses do not find out about the charges until they are stopped for traffic violations. The police, while checking their identification, find “outstanding warrants” for the person. Sometimes, the warrants have a “limited pick-up radius,” or the police officer does not believe that an immediate arrest is necessary, and the officer will simply inform the driver that a warrant has been filed and that the driver should report to the police agency that requested the warrant. At other times, the officer will make an immediate arrest, and will take the person into custody.
What Happens After I Am Arrested?
After being arrested, a person is “booked” by the police. Ordinarily, the police obtain identifying information from the suspect, such as his name, address, telephone number and driver’s license number. The person is checked for outstanding warrants for other offenses. Usually, the police take the suspect’s photograph and fingerprints. They make a record of this information, along with the nature of the crime charged, and usually an assessment of the suspect’s physical condition. If a person is under arrest at the time he is booked, he will ordinarily be thoroughly searched. If the arrest was legal, any evidence found in this search can be used as evidence in court.
Should I Consult An Attorney Before I Am Charged?
Yes, if possible. Unless you were arrested on an outstanding warrant, the fact that you have been arrested does not necessarily mean that charges have been authorized. An attorney can advise you of your rights, and how to handle contacts with the police. It can be very helpful to have an attorney intercede on your behalf before a warrant has been issued, as he may be able to influence the prosecutor’s “charging decision.” Sometimes, an attorney will be able to convince a prosecutor to charge a less serious offense, to send the complaint back to the police for more investigation, or even to refuse to authorize a warrant. However, once a warrant is issued, it is very difficult to get a prosecutor’s office to change the charge.
Do I Need A Criminal Defense Lawyer?
Any person who is facing a criminal charge, no matter how minor, will benefit from consulting a competent criminal defense lawyer. Even if the lawyer is not retained to provide representation in court, a consultation will help a criminal defendant understand the nature of the charges filed, available defenses, what plea bargains are likely to be offered, and what is likely to happen in the event of conviction.For serious charges, it will be a rare defendant who does not benefit from having a competent criminal defense lawyer assist with the negotiation of a plea bargain, or to prepare a case for trial.A criminal defense lawyer should also be able to identify important pretrial issues, and to bring appropriate motions which might significantly improve a defendant’s situation, or even result in the dismissal of charges.
How Much Will My Defense Cost?
The cost of a criminal defense lawyer can vary significantly depending upon the jurisdiction, and the nature of the charges which have been filed (or which are expected to be filed) against the defendant. A lawyer will typically require a greater retainer for a complex case than for a simple case. The amount of a retainer will also typically increase with the severity of the charge filed against a defendant. Sometimes, though, a relatively minor charge can require a higher retainer, where the attorney expects to have to engage in extensive motion practice, or where it will be necessary to utilize expert witnesses.In a misdemeanor case, although as previously noted the typical fee will vary significantly between cities, counties, and states, it is not unusual for a lawyer to request a retainer of several thousand dollars. For felony cases, retainers often start at $5,000 – $10,000, and can be $25,000 or more for serious or life felonies, such as sexual assault cases or homicide. The anticipated cost of expert witnesses can also significantly increase a retainer.Be wary of entering into a retainer agreement which calls for additional payments if the case will go to trial. It is not unusual for appellate lawyers to hear clients recite that they entered into guilty pleas after they were unable to come up with the necessary funds to pay their lawyers to proceed with a trial. If you do decide to enter into an agreement whereby you will pay an additional retainer if your case goes to trial, make sure that it is an amount you can afford.
Finding a Criminal Defense Lawyer
It is unfortunately not always easy to find a good criminal defense lawyer. Here are some suggestions:Referrals
– It may be possible to find a criminal defense lawyer from somebody who is familiar with the lawyer’s practice. For example, if you regularly work with a lawyer or law firm, that lawyer may be able to suggest a competent criminal defense lawyer in your area. If your county is served by a public defender’s office, sometimes a defender’s office will be willing to suggest a competent are defense lawyer. If you have a friend or family member who has been in trouble with the law, that person may be able to make some suggestions.
– You may wish to sit through some public sessions of court while criminal cases are being argued. If you find a particular lawyer’s performance to be impressive, you may take note of the lawyer’s name and later contact the lawyer about the possibility of representing you.
State versus Federal Charges
– There are additional factors you may wish to consider when hiring a federal criminal defense attorney.
After you have located one or more attorneys whom you wish to consult about your case, call them to schedule appointments. (Find out at that time if they offer a free initial consultation, or if you will be charged for the meeting.) Try to speak with the criminal defense lawyer over the phone before scheduling the appointment. Ask about the lawyer’s general experience with criminal defense, and any specific experience with cases like yours.
Trust your instincts – if you aren’t comfortable with an attorney you consult, try a different office. You do not have any obligation to hire a lawyer merely because you consulted with that lawyer. If your lawyer is promising you that your case is easy, or makes promises that you won’t go to jail, speak to other lawyers before signing a retainer agreement – some lawyers misrepresent the gravity of a defendant’s situation or the complexity of a case in order to entice the defendant to pay a retainer, and then blame the judge or prosecutor when the rosy scenario they initially promised turns out to be a nightmare.
Read the entire fee agreement with the lawyer before you sign it, and make sure you get a copy for your own records.
Private Defense Counsel or Appointed Counsel?
People who are charged with felony offenses, and many individuals who are charged with misdemeanors, may be eligible for appointed counsel or for assistance through a public defender’s office. When a defendant petitions for a court-appointed lawyer, the trial judge will typically make an assessment of the defendant’s resources to determine if the defendant will qualify for an appointment of a criminal defense lawyer. When an appointment is made, although the defendant may be ordered to repay certain attorney fees following a guilty plea or conviction, there will not ordinarily be any fee in the event of acquittal or dismissal of the charges.Some people assume that a court appointed criminal defense lawyer will offer services which are inferior to a privately retained lawyer. While it is certainly true that some public defenders, some appointed lawyers and some private attorneys will prove to be insufficiently skilled or dedicated to their work to provide an effective defense, it is generally asserted that the average public defender will provide better representation than the average private criminal defense lawyer. The primary reasons for this include experience, as a professional public defender will typically have much more experience with criminal cases than a private lawyer, the ability to collaborate with other experienced lawyers within the office, and also due to the resources and systems available to a typical public defender’s office. Many private criminal defense lawyers take appointments – meaning that if you are charged in a jurisdiction that appoints private lawyers to represent criminal defendants, many of the lawyers you might otherwise retain will be among those to whom a court might assign your case. And even if you are ordered to repay legal fees, the cost of an appointed lawyer is almost always significantly lower than the cost of a retained lawyer.In short, if you can hire an effective criminal defense lawyer you should not hesitate to do so. But, if your means are limited, you should also not hesitate to request an appointed defense lawyer, and should not fear that you will receive inferior representation just because your lawyer was appointed.
It is important to note that your constitutional right to effective assistance of counsel relates almost exclusively to the performance of appointed counsel. It is virtually impossible to convince an appellate court that the incompetence of counsel of your own choosing constitutes an error requiring reversal. If you are not comfortable with the competence of your lawyer, retained or appointed, consult with a second lawyer to have your situation reviewed. It may well turn out that your lawyer is competent – but it is you who could go to prison, not your lawyer, if the lawyer is inept.
What Happens When I Go To Court For The First Time?
Typically, a criminal defendant’s first court hearing is an “arraignment” before a judge or magistrate. An “arraignment” is an appearance in court where charges are formally read to a defendant. The judge or magistrate may also evaluate whether there was probable cause for an arrest, and may compel the prosecutor to allege additional facts to support the arrest. If probable cause is not established, the defendant must be released.If bail has not previously been set, it is often set at the same time as the arraignment. Bail (or “bond”) is often granted in a standard amount, depending upon the crime charged.In some jurisdictions, there is a subsequent “formal” arraignment, where the formal charges (“indictment” or “information”) are presented to the defendant. These charges are drafted by the prosecutor, and may vary from any original charges that were drafted by the police.
Do I Enter A Plea At The Arraignment?
At arraignment, the defendant is offered the opportunity to enter a formal plea. Sometimes, a defendant will plead “guilty” or “not guilty.” In some circumstances, the defendant may enter a “no contest” plea, which is treated by the court in the same manner as a guilty plea. Sometimes, the defendant will “stand mute,” and a “not guilty” plea will be entered by the court on his behalf. If a “not guilty” plea is entered, the court will ordinarily advise the suspect of his right to remain silent and his right to an attorney. If a defendant is indigent, he will usually be given the opportunity to petition the court for an appointed attorney.Usually, a defendant should speak to an attorney (even if only for a free consultation) before deciding whether or not to enter a plea of “guilty” or “no contest.” There is no need to rush into a plea to “get it over with” — particularly given that a bad decision can haunt you for the rest of your life.
Can I Get Released From Jail?
If bail is granted, and the defendant posts the required bail, he will be released. Sometimes, a defendant will be released on his own recognizance — his promise that he will appear for the next court hearing. Sometimes, bail is set in a very high amount. A defendant who is accused of very serious crimes may be denied bail, or have bail set in the millions of dollars. A defendant who is released on bail must attend all subsequent court hearings, or risk having his bail forfeited. (Keep this in mind — if you put your house or your car up as collateral for somebody else’s bail, you risk losing it if that person does not appear in court.)
What Happens After The Arraignment?
If you are charged with a misdemeanor, the next hearing is likely to be a “pretrial,” where the case is scheduled for trial. Sometimes, a defendant will enter a plea at the pretrial. At other times, the case will be scheduled for a “bench trial,” “jury trial,” or “plea hearing.”If a defendant is charged with a felony, but has not been “indicted” by a “grand jury,” the next step will likely be a “preliminary examination” where the prosecution must demonstrate to the satisfaction of a judge that there is reason to believe that a crime was committed, and that the defendant was the person who committed the crime. The defendant is allowed to question witnesses at this hearing. While the defendant ordinarily can present evidence, and may choose to testify, most defendants choose not to do so. If the Court is satisfied by the prosecutor’s evidence, the felony charges will be approved. Depending upon your state’s rules of criminal procedure, a defendant may be transferred to a different court for all further proceedings. He may be arraigned again, after the preliminary examination, and subsequently will have a pretrial.
What Do The Attorneys Do Between The Arraignment And The Trial?
During this time, the prosecutor and the defense attorney will likely demand “discovery” from each other. Often, this means nothing more than that the prosecutor gives the defense a copy of the police report, and perhaps some laboratory reports if the case involves drugs or drunk driving. While defense attorneys may differ, many prosecutors argue that this meager discovery fulfills their duties. The prosecution is obligated to provide the defense with the names and addresses of all relevant witnesses, and with copies of written or recorded statements made by the defendant or by co-defendants. The prosecution may be compelled by statute or court rule to provide additional information upon request, such as copies of witness statements, and reports from expert witnesses. The specific materials and information that must be exchanged will vary from state to state. Increasingly, the defense is required to provide certain information to the prosecutor, including witness lists, and may also be required to provide expert witness reports. In some states, the parties can conduct depositions of witnesses, where the witness testifies under oath before a court reporter, prior to trial. However, most states do not allow for depositions in criminal cases.Depending upon state law, a defendant will have to notify the prosecution if he plans to bring certain defenses to the criminal charges, such as an alibi defense, an insanity or diminished capacity defense. The purpose of the notice requirement is to allow the prosecutor to prepare for the defense, and to collect evidence and interview witnesses to challenge the defense. A defendant who is claiming insanity will ordinarily be examined by a state psychiatrist, and the refusal to submit to examination will usually prevent the defendant from raising that defense.
What If I Can’t Find A Witness?
The defendant generally has the right to request that the prosecutor’s office assist him in procuring witnesses for trial. Indigent defendants usually receive the greatest assistance, which may include issuance of subpoenas. However, due to the prosecutor’s access to information and police assistance that is not available to the defendant, the prosecutor is ordinarily obligated to help any defendant locate a missing witness.
What Is Involved In Pretrial “Motion Practice”?
Prior to the trial, either the defendant or the prosecutor may file motions with the trial court. Typical motions include motions to suppress evidence, motions in limine, and motions to dismiss. A motion to suppress evidence asks the trial court to exclude evidence from the trial, usually on the basis that it was collected in violation of the defendant’s constitutional rights. For example, if the defendant is arrested illegally, and is searched after his arrest, the evidence found during that search may be inadmissible. Similarly, a defendant may seek to exclude a statement or confession that he made to the police. A motion in limine asks the court to limit the issues or evidence at trial. For example, a defendant may wish to ask the court to exclude certain inflammatory allegations about him, which are not related to the charges against him, or portions of the defendant’s criminal record which are not properly admitted under the rules of evidence. The prosecutor may also wish to introduce evidence which cannot properly be linked to the defendant or the alleged crime, due to the circumstances or manner in which it was collected. A motion to dismiss asks the court to dismiss the charges against the defendant, usually on the basis of a procedural deficiency. A motion to dismiss may be filed following an illegal arrest, where all of the evidence presented by the prosecution was found as the result of that arrest.
What Is A “Diversion Program”?
At times, prior to trial, a defendant may be found eligible for a “diversion” program. These programs are not available in all communities. Typically, they are aimed at young offenders who have no significant criminal records. If a person successfully completes the conditions of a “diversion” program, which may include such requirements as counseling, attendance of “crime impact” classes, and regular attendance at school, either no charge is filed, or the charge is dismissed. If the defendant violates the terms of the diversion program, the charges are reinstated.
What Is The Significance Of My “Speedy Trial” Right?
A defendant has a constitutional right to a “speedy trial.” The meaning of “speedy,” and the benefits of demanding a “speedy trial,” varies from state to state. In some states, most defendants have to waive their right to a “speedy trial” in order to get sufficient time to prepare their defenses. If a defendant demands a “speedy trial,” he cannot later claim that he did not have time to prepare his defense. However, if a defendant demands a “speedy trial” and the prosecutor is not prepared to proceed to trial, the charges against the defendant may be dismissed.
What Is The Difference Between A “Bench Trial” And A “Jury Trial”?
A case that goes to trial will be heard by a judge in a “bench trial,” or by a judge and jury in a “jury trial.” In a jury trial, the judge decides the law, while the jury decides the facts. In a bench trial, the judge decides both the law and the facts. Both the prosecutor and the defendant have the right to demand a jury trial, although prosecutors are usually happy to consent to bench trials.
What Is “Jury Selection” And “Voir Dire”?
If a case is scheduled for jury trial, the parties engage in “jury selection.” During jury selection, a panel of jurors is questioned by the judge, by the attorneys, or both, in a process called “voir dire.” The purpose of this hearing is to determine if the jurors will be fair and impartial, and will decide the case based upon the evidence presented in court. Both the prosecution and defense can challenge jurors “for cause,” claiming that the jurors are prejudiced against their side. The judge determines if there is valid cause to exclude a particular juror from hearing a case. Both the prosecution and defense also receive a limited number of “peremptory challenges,” which allow them to remove jurors without any reason or explanation.
What Happens At Trial?
Typically, at the start of a trial the jury will be given preliminary instructions. The jury is instructed at this time that the defendant is presumed innocent, and that the presumption of innocence does not change until the jury begins deliberations. Jurors are not supposed to abandon the presumption of innocence before hearing all of the evidence in the case.Next, the attorneys will present opening statements. Witnesses are presented first by the prosecution, and next by the defense. At times, the defense will not present any witnesses, either because the prosecution called all of the relevant witnesses during its case, or because the defense wishes to argue that the prosecutor’s case is insufficient to justify conviction. The defendant cannot be compelled to testify against himself, but he has the right to testify in his own defense if he chooses to do so.At the conclusion of the defendant’s case, the prosecutor may present “rebuttal” witnesses to respond to arguments or evidence introduced by the defendant. Sometimes, the defendant will be allowed to present “rebuttal” to the prosecutor’s “rebuttal.”After all of the testimony has been taken, the attorneys will present their closing arguments. The jury is then given additional instructions, and commenced deliberations. Sometimes the defense attorney will request a “directed verdict” of not guilty, meaning that the judge will instruct the jury that the only verdict it can return is “not guilty.” These motions are commonly made, but are rarely granted. If the jury cannot reach a verdict, the judge will eventually discharge the jury. The prosecutor must then decide whether to dismiss the charges or to seek a new trial.
What Happens If The Jury Acquits The Defendant?
If the jury acquits the defendant, finding him not guilty, the case is usually over. (In the United States, the prosecutor cannot appeal an acquittal. However, in some other nations, the prosecutor has a limited right to appeal.)
What Happens If The Jury Convicts The Defendant?
A jury can also return a verdict of guilty. If a defendant is charged with more than one offense, the jury may convict the defendant of some charges while acquitting of others. At times, the jury will choose between related offenses. For some offenses charged, the jury may convict of a “lesser included” offense. For example, if a defendant is charged with “open murder,” the jury may convict him for first degree murder, second degree murder, voluntary manslaughter, involuntary manslaughter, or negligent homicide. (Please note that the names and elements of the various homicide offenses may vary from state to state.)After being convicted, a defendant may file post-trial motions, such as a motion for a new trial. These motions are rarely granted. The defendant may also file an appeal.
What Are The Possible Sentences For A Criminal Offense?
After sentencing, a defendant may simply be ordered to pay fines and costs, and be released. A defendant may also be ordered to participate in community service, or to spend time on a work crew. A defendant may be placed on probation, and may even be placed on “house arrest,” while wearing a “tether,” an electronic monitoring device. A defendant may also be sentenced to jail or prison. Courts can combine these various options, in fashioning a sentence for a defendant.
What Happens If I Am Placed On “Probation”?
A defendant may also be placed on probation. A defendant on probation will ordinarily meet with his probation officer monthly and at times more frequently. Sometimes, a defendant will be placed on “non-reporting” probation, where he does not meet with a probation officer.Typically, at the end of his probation, such a defendant will be asked to demonstrate that he complied with the terms of probation (such as by submitting attendance records from court-ordered Alcoholics Anonymous meetings), and his record will be checked for any further criminal activity. Sometimes, a defendant will be allowed to report by mail. This usually happens in cases where a defendant has been on probation without any problems for a long time, but his probation officer still wants periodic information on his activities.A defendant who has been convicted of a drug conviction may have to report to the probation office frequently for drug testing. A court may also order drug or alcohol counseling, or attendance of Alcoholics Anonymous or Narcaholics Anonymous meetings. During probation, a probationer must typically seek permission from his probation officer before moving or changing jobs. He may be restricted from leaving the state without his probation officer’s permission.
How Long Does Probation Last?
Probation usually lasts between one and three years, but can last longer depending upon the offense committed and state policies. Some states have “life probation” for certain drug offenses, where a person is placed on probation indefinitely. After a probationer has paid off his fines and other court assessments, and has completed other requirements of his probation (such as community service), a probation officer will sometimes consider an early discharge from probation. However, most probationers complete their entire terms of probation. Many, upon violating the terms of their probation, are in fact ordered to report to probation more frequently. If violations are of a serious or repeated nature, a probationer can be charged with violating his probation, and be ordered to appear before a judge for a hearing.
What Is A “Tether,” or “Electronic Monitoring”?
Tethers are increasingly sophisticated devices. A typical tether has a portable unit which is strapped to the probationer’s leg, and a “base unit” which is connected to the probationer’s telephone line. The portable unit sends a constant signal to the base unit. The base unit keeps a record of when that signal is interrupted, and transmits that information by telephone to the probation office. The probationer on “house arrest” is placed on a strict schedule, and must account for any absences from his home that are not pre-approved by his probation officer. If a probationer is not home at the times he is supposed to be, the probation officer may contact the probationer to inquire why he was not at home, or may contact the police and have the probationer arrested.
What Happens If I “Violate” My Probation?
A probation officer has the discretion to give a probationer a warning, or to make him appear before a court for a “probation violation” hearing. If you go to a hearing, the probation officer will typically ask that you face additional punishment, usually involving incarceration. There is no “hard and fast” rule for what type of probation violation will result in a probation violation hearing. One violation that is almost always considered serious is failing to appear for scheduled meetings with the probation officer. Being caught in possession of illegal drugs, or being arrested for another crime, will also typically result in a hearing before a judge. At times, the seriousness of the violation may depend upon the facts of the underlying offense — for example, if a person is convicted of being involved in a gang-related offense, the violation of probation through “association with known criminals” may be viewed more seriously than if the person is on probation for driving a car while his driver’s license was suspended.
What Are My Rights At A “Probation Violation” Hearing?
It is important to note that probation violations are typically tried under a “preponderance of the evidence” standard, where the prosecutor must show only that it is more likely than not that the probationer violated the terms of his probation. There have been many cases where a person’s probation was violated for engaging in new criminal activity, despite the fact that he was acquitted of the new charge, or was in fact never charged with a new offense.
What Happens If I Am Convicted Of A Probation Violation?
If a person is convicted of a probation violation, sometimes the court will extend his probation, or impose additional terms. Often, the court will sentence the probationer to a period of time in jail, followed by the continuation of his probation. Sometimes, the probationer will be resentenced to jail or prison, or will be ordered to complete a term that was previously “suspended.”
When Are Defendants Sentenced To Jail?
If the court feels that a more serious punishment is required than a term of probation, the offender may be sentenced to jail. “Jails” are typically run by County governments, and are used to house defendants prior to trial, and to punish people who have been convicted of less serious crimes. Although the exact terms vary from state to state, typically the maximum jail sentence is one year. At times, the offender will simply be sentenced to jail, while more typically the defendant will have to serve a term of probation after completing his jail sentence.
What If The Judge Thinks That Jail Is Not Enough?
If the defendant’s offenses are more serious, most states have a “boot camp” programs, which are intense, military-style facilities. Incarceration typically lasts about ninety days. Participants may be cautioned that if they drop out of the program, or are kicked out, they will be sent to prison. Some states reserve these programs for young offenders. As these programs can be physically strenuous, some people cannot participate in “boot camp” programs due to health conditions.If all else fails, the defendant will be sentenced to prison.
What Happens If I Go To Prison?
The most serious punishment for most crimes involves sentencing the defendant to prison, the “state penitentiary.” Following serving his “minimum term,” a portion of his sentence that varies from state to state, a defendant who is in prison will usually qualify for parole. Many defendants who are incarcerated can earn “good behavior” or “good time” credits, which allow them to qualify for an earlier release date by behaving. The idea is that model prisoners are less likely to re-offend, and that prisoners will behave better if they have an incentive not to cause trouble. Some prisoners will not be eligible for “good time,” due to the nature of their offenses. Often “habitual offenders” are not eligible for “good time” credits. Some jurisdictions have abolished “good time” for all prisoners.
Do All Prisoners Get Parole?
Parole is a privilege, not a right, and many prisoners are refused parole when they first apply. Parole boards expect to hear a prisoner admit responsibility for his crimes. They also expect that the prisoner will take advantage of the programs made available in prison, such as, if appropriate, GED programs, Alcoholics Anonymous, and vocational training. They will also look at the prisoner’s conduct during incarceration, and whether the prisoner has been cited for misconduct. (Typically, prisoners will be “ticketed” for their violations of prison rules, with offenses classified as “major” or “minor.” A prisoner who was involved in a fight would likely be ticketed for a “major” offense, while a prisoner who yelled at a guard might be ticketed for a “minor” offense, depending on the circumstances. These “tickets” can be challenged through administrative hearings, but are usually upheld as valid.) They may also look at the prisoner’s age, the amount of time he has served, the remaining time in his sentence, and his mental health. The exact criteria for parole vary from state to state.Perhaps the most important assessment that the parole board attempts to assess is the likelihood that the prisoner will re-offend. Parole boards have no interest in releasing people into society who will commit more crimes, particularly given that the media will sometimes hold the parole board as responsible as the criminal in such cases. Increasingly, potentially dangerous offenders, such as sex offenders, are finding that they are never granted parole, even in states where they are eligible.Some prisoners are not eligible for parole, either because of state policy, or because of the crime they committed. Some crimes carry a flat term of years, which must be completed without the possibility of parole. A defendant who is sentenced to “life” in prison will either be sentenced to “parolable life,” or to “non-parolable life.” If a person serving a “life” term is eligible for parole, he typically must serve fifteen or twenty years of his sentence before he can request parole. If a person is serving non-parolable life, he never becomes eligible for parole.
How Long Are People Kept On Parole?
The length of the parole will depend upon the nature of the crime committed, the length of the defendant’s sentence, and how well the defendant performs while on parole. A defendant who repeatedly gets into trouble or breaks the conditions of his parole may find that he is returned to prison. (Many states have jail-like facilities for “technical rule violators,” where they can send parolees who violate the terms of their paroles, but not to the level that the parole board wishes to return them to prison.) In most states, after a long enough period of good conduct, it is possible for a defendant to be discharged from parole.
Are Prisoners Simply “Released” From The Prison When They Receive Parole?
Release into the community may occur in stages. First, as the criminal nears his release date, he may be moved into less secure prison facilities. If he abuses the privileges at the less secure prison, he will be returned to a more secure facility. Prisoners in less secure facilities are sometimes allowed to work outside of the prison, either through a state program or sometimes through a private employer. If the prisoner continues to behave well, he may eventually qualify for placement in a half-way house, a residential facility where he can have a job, and may even qualify for day or weekend passes where he is free to do what he wants. If a prisoner successfully completes a term in a half-way house, he is usually paroled into the community.
What Happens After A Prisoner Is “Paroled Into The Community”?
A prisoner on parole is not without restriction. Sometimes, the prisoner will spend time on a “tether,” an electronic monitoring device that allows his parole officer to monitor his movements, and be restricted from doing much other than going to work. A parolee will typically not be allowed to move without permission from his parole officer. Sometimes, it will be a parole violation to get fired from a job. Parolees are typically restricted from associating with known criminals. If the parolee has drug or alcohol problems, he may be subjected to periodic testing for use. If the parolee has mental health problems, he may be ordered to participate in counseling or to obtain psychiatric treatment. (Increasingly, prisoners with mental health problems are refused parole, and simply serve out their time in prison.) Parolees may be surprised to learn how much control their parole officers exercise over their lives, and, depending upon the state, the extent of the parole officer’s powers to search the parolee or his residence upon suspicion that the parolee has engaged in illegal activities. Parolees often cannot move or change jobs without permission.
If I Am On Parole, Can I Leave The State?
Parolees are typically not permitted to leave the state without permission from their parole officers. Permission may be granted for short trips out of state, for example to attend funerals, or for longer trips, such as to assist a sick relative. However, some parolees are surprised to learn that, due to the nature of their offenses or a perceived risk of flight, their parole officers refuse to allow them to leave the state. If a parolee wishes to move to another state, and is granted permission to do so, his parole will typically continue, and will typically be transferred to the Department of Corrections in his new home state.
What Happens If A Person “Violates” His Parole?
If a parolee is accused of violating his parole, he is typically given the opportunity to challenge the accusation at an administrative hearing before the parole board. There will typically be two hearings, the first to determine if the parolee should be held in custody pending the full hearing, and the second to determine if the parolee violated the terms of his parole. Parolees who fail to report for meetings with their probation officer, who are caught with illegal drugs or concealed weapons, who associate with known criminals, or who are arrested on new criminal charges, are particularly likely to be returned to prison. It should be noted that being arrested can be enough to violate a person’s parole, even if no charges result from that arrest.
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If you have been falsely accused of Child Abuse, it is essential that you hire a Houston Child Abuse Lawyer who specializes in these types of cases to protect your legal rights. A conviction for Child Abuse can lead to serious legal consequences, including the loss of your right to be around children, the loss of the right to be with your own children, and time in jail. A conviction for Child Abuse charges can also lead to more personal consequences like embarrassment and a life-long label as a child abuser. Courts, as well as the public, are generally eager to convict and punish an individual who is responsible for exposing a child to abuse. A child’s testimony may have the ability to sway the outcome of a trial, even if their testimony is not accurate. Houston Criminal Lawyer Charles Johnson specializes in effectively and successfully defending his clients against Child Abuse charges. You can contact him directly anytime night or day at (713) 222-7577 to discuss your case.
What is Child Abuse?
According to Chapter 261 of the Family Code (recodified in 1995), child abuse is an act or omission that endangers or impairs a child ‘s physical, emotional or mental health and development. Child abuse may take the form of physical or emotional injury, sexual abuse, sexual exploitation, physical neglect, medical neglect, or inadequate supervision.
The law specifically excludes “reasonable” discipline by the child’s conservator, parent, or guardian; corporal punishment is not in itself abusive under the law. An act or omission is abusive only if “material and observable impairment” occurs as a result, or if it causes “substantial harm,” or exposes the child to risk of substantial harm.
Neglect, like physical and emotional abuse, hinges on substantial harm or observable and material impairment. The law excludes from its definition of neglect any failure to provide for the child that is due to lack of financial resources. A child living in poverty is not a victim of neglect under the Texas Family Code except in cases where relief has been offered and refused by the child’s parent, conservator, or guardian .
A person commits abuse if they place a child, or allows a child to be placed, in a situation where the child is exposed to “substantial risk” of injury or harm. The law also clearly states that a person commits abuse if they fail to make a reasonable effort to prevent another person from abusing a child.
If you have been charged with Child Abuse, one of the most important steps you can take is to not speak with anyone other than your lawyer about the details of the case. Often times, defendants incriminate themselves by speaking to the police or engaging in phone conversations where certain statements can be taken out of context.
You need a Child Abuse Lawyer who will treat your Child Abuse defense seriously. Being charged with Child Abuse could have a devastating impact on your life and the lives of your family. Houston Criminal Lawyer Charles Johnson will diligently fight for your rights, reputation and future. Contact him now at (713) 222-7577 for expert legal guidance.
Physical abuse typically occurs when a frustrated parent or caregiver strikes, shakes, or throws a child because of anger. Other forms of deliberate assault that may be physically abusive include burning, scalding, biting, kicking, cutting, poking, twisting a child’s limbs, deliberately withholding food, binding, gagging, choking, or hitting the child with a closed fist or other instrument. If it results in injury, any form of corporal punishment may be abusive.
Physical injuries resulting from child abuse can run the gamut from lacerations, burns, and bruises, to head injuries, broken bones, broken teeth, and damage to internal organs. Context, circumstances, and the exact nature of the wounds usually set apart the injuries resulting from abuse. Specially trained professionals must make the determination whether a child has actually been abused or not.
Due to the delicate and sensitive nature of a child abuse case, it is important to have the advice and the counsel of a professional who is experienced in this type of case. Houston Attorney Charles Johnson specializes in cases that deal with Child Abuse. Don’t take chances with your future. Contact him today.
Unexplained Death of a Child
Sudden Infant Death Syndrome (SIDS) is the sudden, unexplained death of an infant—a child between one month and one year old. It is frightening because it is strikes without warning, and medical science has been unable to determine exactly why it happens.
SUDC (Sudden Unexplained Death in Childhood) is the sudden and unexpected death of a child over the age of twelve months, which remains unexplained after a thorough case investigation is conducted. Similar to SIDS, SUDC is a diagnosis of exclusion – given when all known and possible causes of death have been ruled out. By definition, SIDS applies only to the death of babies younger than 12 months, while SUDC victims are past their first birthday whose deaths go unexplained even after an autopsy, a death scene investigation and medical history review.
The death of an infant due to SIDS or SUDC is a devastating event that can leave parents feeling sad, guilty, angry, and confused. Although we all do our best to keep children safe, sometimes the worst happens and kids suffer major injuries. If your child has been seriously hurt and you need legal advice, contact Houston Lawyer Charles Johnson anytime at (713) 222-7577 for a free case review.
Shaken Baby Syndrome
There is a growing trend of misdiagnosed Shaken Baby Syndrome cases occurring in America today. Typically, a parent or caretaker is falsely accused of murdering or injuring a baby by shaking him or her, when the actual cause of the death or injury occurs from another source.
If a child is held by the shoulders or chest and shaken violently, often no external injury is visible. The impact of the brain on the inside of the skull may prove damaging or even fatal, especially if the child is less than two years old or is shaken repeatedly. Symptoms of injury include vomiting and seizures. An infant who is violently shaken may suffer convulsions, permanent brain damage, and death. A young child who survives a severe shaking episode may be blind, deaf, or otherwise disabled as a result. Even less violent shaking of older children may cause neurological deficits, as well as learning and behavioral disorders.
If you have been charged with child abuse involving Shaken Baby Syndrome, it is important to contact an immediately to begin gathering all necessary medical information and begin preparation of your case. If your child or a child you have been caring for has been injured or has passed away, you already have too much to deal with. Do not let overzealous prosecutors portray you as a violent child abuser.
Child sexual abuse remains, in the overwhelming majority of cases, a crime perpetrated by members of the child’s family and circle of trust. Sexual abuse is defined in the Family Code as any sexual conduct harmful to a child’s mental, emotional, or physical welfare as well as failure to make a reasonable effort to prevent sexual conduct with a child. A person who compels or encourages a child to engage in sexual conduct commits abuse, and it is against the law to make or possess child pornography, or to display such material to a child.
If you are facing potential Child Sexual Abuse charges, it is critical that you use a legal defense team with specific experience and expertise dealing with crimes against children. Call Houston Sex Crimes Lawyer Charles Johnson at (713) 222-7577 for a free, confidential initial consultation. Early intervention is critical to obtaining the best results.
Sexual abuse may consist of a single incident or many acts over a long period of time. Boys and girls of any age can be victims of sexual abuse. The molester can be just about anyone, but most often, it is someone known to the child. The abuse may escalate over time, particularly if the abuser is a member of the child’s own family. The child’s non-abusing caregiver(s) may be unaware of the abuse or may be in a state of denial.
Child sexual abuse includes fondling, lewd or lascivious exposure or behavior, intercourse, sodomy, oral copulation, penetration of a genital or anal opening by a foreign object, child pornography, child prostitution, and any other “sexual conduct harmful to a child’s mental, emotional, or physical welfare.” These acts may be forced upon the child or the child may be coaxed, seduced, and persuaded to cooperate. The absence of force or coercion does not diminish the abusive nature of the conduct, but, sadly, it may cause the child to feel responsible for what has occurred.
It is extremely difficult for a child to report sexual abuse. A very young child may not understand that what has happened is not normal or accepted. More importantly, the abuser almost always discourages the child from telling anyone about the abuse. The strategies for silencing a sexual abuse victim are as ruthless as they are varied. The abuser may be someone whom the child depends upon and trusts; s/he may use the child’s dependency and affection to extort a promise of secrecy. A more brutal perpetrator may threaten to harm and even kill the child or other family members or pets. Or the abuser may tell the child that the family will be broken up, the child blamed, or the child taken away from home if the secret becomes known. These are not altogether unrealistic fears for the child, unfortunately.
For many people, an allegation or disclosure of sexual abuse is indeed hard to accept. This is particularly true when the perpetrator is a family member or an otherwise law-abiding, respectable, and seemingly “nice,” “normal” person. Many adults have a tendency to overlook, discount, minimize, explain away, or simply disbelieve allegations of sexual abuse. Yet children rarely lie or invent stories on their own about being sexually abused. The fact that children can sometimes be manipulated or coached should not dissuade anyone from reporting a child’s revelation of sexual abuse. All responsible adults, but particularly those who work with children, should be aware that sexual abuse occurs and should be alert for the opportunity to aid a child who attempts to disclose abuse. The child’s need for support and protection must come first.
Sexual assault by a stranger versus a family member
Sexual assault of a child is a violation of the Penal Code, regardless of whether the perpetrator is a stranger or family member. Assault by a stranger and assault by a family member may involve similar criminal charges. In addition, an assault by a family member, especially one who lives in the household with the child, may be the basis for a civil action such as removal of the child from the home. In fact, assaults by strangers are much less common than assaults by persons known to the child. Perhaps the most common scenario for child sexual assault involves the male partner of a young girl’s mother (the girl is assaulted by her father, stepfather, or her mother’s boyfriend).
The child molester is sexually attracted to children (usually children of a certain age) and assaults them to obtain sexual gratification. While anyone of any age, race, or gender can be a child molester, this person is typically an adult heterosexual male. Most often, molestation is not a “stranger” assault, and may not involve force. Many child molesters relate quite well to children and seek out professions, jobs, or volunteer positions that give them access to children. They often make or collect child pornography.
Their methods of seduction may include bribes and the use of pornography depicting sex between adults and children the age of the intended victim. The relationship with the child may develop over a period of weeks or months, becoming increasingly coercive and invasive. Child molesters repeatedly offend and may molest or attempt to molest literally hundreds of children before being caught. The victims, while frequently befriended by the child molester, are generally not related by blood or marriage.
Molestation is an umbrella term that includes a number of sex offenses against children including, but not limited to:
A person convicted of any of the above acts will suffer extensive damage to their personal, professional, and social life in addition to other serious penalties and punishments including imprisonment, loss of rights, financial reimbursement to the victim, and more.
Houston Sex Crimes Lawyer Charles Johnson has a wealth of experience handling sex crime cases and will work diligently to ensure your legal rights and interests are protected every step of the way. His firm is dedicated to thoroughly investigating your case, building a strong defense, negotiating with other parties to dismiss or reduce your charges, and more. If you want someone who is on your side, please contact Houston Lawyer Charles Johnson today for a complimentary consultation.
Sexual Assault of a Child as Defined by Law
Like all states, Texas protects children from sexual contact short of statutory rape. Like statutory rape, consent is not an issue, the age of consent is 17, and there is an affirmative defense if the two parties are close in age:
§ 21.11. INDECENCY WITH A CHILD. (a) A person commits an offense if, with a child younger than 17 years and not the person’s spouse, whether the child is of the same or opposite sex, the person:
(1) engages in sexual contact [defined below]with the child or causes
the child to engage in sexual contact; or
(2) with intent to arouse or gratify the sexual desire of any person:
(A) exposes the person’s anus or any part of the person’s genitals, knowing the child is present; or
(B) causes the child to expose the child’s anus or any part of the child’s genitals.
(b) It is an affirmative defense to prosecution under this section that the actor:
(1) was not more than three years older than the victim and of the opposite sex;
(2) did not use duress, force, or a threat against the victim at the time of the offense; and
(3) at the time of the offense:
(A) was not required under Chapter 62, Code of Criminal Procedure, to register for life as a sex offender; or
(B) was not a person who under Chapter 62 had a reportable conviction or adjudication for an offense under this section.
(c) In this section, “sexual contact” means the following acts, if committed with the intent to arouse or gratify the sexual desire of any person:
(1) any touching by a person, including touching through clothing, of the anus, breast, or any part of the genitals of a child; or
(2) any touching of any part of the body of a child, including touching through clothing, with the anus, breast, or any part of the genitals of a person.
(d) An offense under Subsection (a)(1) is a felony of the second degree and an offense under Subsection (a)(2) is a felony of the third degree.
Sexual Assault (Statutory Rape)
Forcible rape was a common law offense. Consensual sex with a child was criminalized by a statute by Parliament, and is thus termed “statutory” rape. The Texas version is found in TPC sec. 21.011 (2). It provides that an actor commits an offense if he or she
2) intentionally or knowingly:
(A) causes the penetration of the anus or sexual organ of a child by any means;
(B) causes the penetration of the mouth of a child by the sexual organ of the actor;
(C) causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;
(D) causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor; or
(E) causes the mouth of a child to contact the anus or sexual organ of another person, including the actor.
Note that like the forcible rape version, the statute is gender neutral and includes sex acts other than vaginal intercourse. There is no element of lack of consent .
A child is defined as someone younger than 17 years of age who is not the spouse of the actor. Because the acts are consensual, there is, unlike in the forcible rape version, a spousal exception. Persons under 17 are presumed incapable of giving a valid consent, except when married. Age 17 is referred to as the “age of consent,”–the age at which the law assumes a valid consent can be given.
There is a defense of medical care: “(d) It is a defense to prosecution under Subsection (a)(2) that the conduct consisted of medical care for the child and did not include any contact between the anus or sexual organ of the child and the mouth, anus, or sexual organ of the actor or a third party.”
There is also a defense if the offender and victim are close in age, are not close relatives, and the offender does not have certain prior convictions for certain sex offenses. In these situations it is less likely that there is some form of improper exploitation of a young victim by an older predator.
(e) It is an affirmative defense to prosecution under Subsection (a)(2) that:
(1) the actor was not more than three years older than the victim and at the time of the offense:
(A) was not required under Chapter 62, Code of Criminal Procedure, to register for
life as a sex offender; or
(B) was not a person who under Chapter 62, Code of Criminal Procedure, had a reportable conviction or adjudication for an offense under this section; and
(2) the victim:
(A) was a child of 14 years of age or older; and
(B) was not a person whom the actor was prohibited from marrying or purporting to marry or with whom the actor was prohibited from living under the appearance of being married under Section 25.01.
The statute does not say that the defendant must know that the victim is under 17, and Texas courts have not created such a requirement. Thus, (as in a majority of states) mistake of fact about the victim’s age is not a defense.
New Super Aggravated Offenses: Continuous Sexual Abuse Of Young Child Or Children
In response to legal issues regarding notice, election, jeopardy and unanimity, the 80th Legislature added Section 21.02 to the Penal Code, which defines a new offense entitled Continuous Sexual Abuse Of Young Child Or Children. The new statute provides that a person commits an offense if, during a period of time of 30 days or more, the person commits two or more acts of sexual abuse, regardless of whether the acts of sexual abuse are committed against one or more victims, and at the time of the commission of each of the acts of sexual abuse, the actor is seventeen years of age or older and the victim is a child younger than fourteen years of age. § 21.02(b). For purposes of this section an “act of sexual abuse”, includes aggravated kidnaping with the intent to violate or abuse the victims sexually; indecency with a child, other than by touching the breast of a child, or exposure; sexual assault of a child pursuant to section 22.011; aggravated sexual assault under section 22.021; burglary with the intent to commit one of the foregoing offenses; and sexual performance by a child under section 43.25. §21.02(c), P.C.
It is imperative that you contact Houston Lawyer Charles Johnson immediately when you learn that you are under investigation for this serious offense. You can reach him directly at (713) 222-7577 to discuss your options.
Penalties for Child Abuse and Sentencing
A person charged with child abuse faces a wide range of penalties and sentencing possibilities, depending on several factors. These include the state where the abuse took place, the age of the child, whether the offense involved sexual abuse, whether the child was physically or mentally injured, and the criminal history of the offender.
Sentencing for child abuse and neglect cases is often difficult for everyone involved — especially since child abuse cases are often highly publicized and the potential for a social stigma on the family is great.
In most states, child abuse may be charged as either a felony or a less serious offense depending on the circumstances. The most severe cases of child abuse may carry felony lifetime sentences, while the least serious cases are considered gross misdemeanors with potentially no jail time. Punishment will typically be more severe if the offender has a prior record of criminal child abuse activity and greatly reduced if there is no prior record.
For sentencing purposes, a person charged with child abuse may enter a guilty, not guilty, or no contest plea. In a large number of cases, sentencing will typically include probation or a prison term of up to five years. Sentencing in other, more serious, cases may include a longer prison term.
Other possible penalties and/or consequences may include:
- Lifetime requirement to register as a child sexual offender
- Termination of parental rights
- Ruined reputation
- Criminal record
- Supervised access to the child
- Physical or actual loss and enjoyment of a child
- Continual involvement with a child protective services agency
People who fail to report child abuse or neglect also face penalties and consequences in some states with mandatory reporting laws. In those states, if a person has reason to suspect that someone is abusing a child, they must report it through a hotline or law enforcement agency. Failure to report such cases in a timely manner is considered a misdemeanor in most states and may result in fines, jail time, or both.
Statute of Limitations for Sexual Assault of a Child Crimes
Felony indictments must be presented within these time limits:
- Continuous sexual abuse of a young child/children
- Aggravated sexual assault of a child
- Sexual assault of a child
- Indecency with a child
- Sexual assault of an adult if DNA evidence is present
20 years from the victim’s 18th birthday:
- Sexual performance by a child
- Aggravated kidnapping with intent to commit sexual offense
- Burglary of habitation with intent to commit sexual offense
10 years from the date of the commission of the offense:
- Sexual assault of an adult
- Aggravated sexual assault of an adult
Sections 21 and 22 of the Texas Penal Code define indecency with a child, sexual assault, aggravated sexual assault and other sex crimes. In these cases, “child” means a person younger than 17 years of age who is not the spouse of the actor.
Possible Defenses for Child Abuse Charges
Defending yourself against a child abuse charge can be difficult especially if it involves the testimony of a child. Combine that with the media’s negative depiction of child abuse offenders and it may seem impossible to overcome the harsh realities of a child abuse allegation.
If you are charged with child abuse – whether physical, emotional, or sexual – a criminal defense lawyer can devise a sound defense strategy and help cast doubt on the prosecutor’s case. Like other crimes, a person charged with child abuse has the same rights as defendants of other crimes, including the right to defend themselves against a criminal charge.
While child abuse laws aim to protect children, the justice system is set up to vindicate those who are wrongfully accused. Below are some of the most common (and some not so common) defenses that a person may assert on a child abuse charge:
False Allegations of Child Abuse
A common defense to child abuse charges is to say you didn’t do it. False accusations of child abuse are more common than most people think, especially in dysfunctional families or between parents who are involved in a difficult child custody battle. Although sometimes difficult to prove, the best strategy to defend false child abuse charges is to aggressively counter-attack allegations and show proof of the lie or similar wrongful conduct by the accuser.
The Injury Is a Result of an Accident
Most state child abuse laws do not punish accidents, unless the accident was a result of recklessness or gross carelessness. Examples of true accidents may include pushing your child on a bike and causing him to fall and scrape his knees or unknowingly slamming your toddler’s hand in the door. When a child’s injuries are a result of an accident, a person may raise this as a defense against child abuse charges but courts are split as to whether to prosecute parents who accidently cause harm to a child when acting with negligence (such as leaving a sleeping baby in a car alone on a hot day).
The Injury Is a Result of Something Other Than Child Abuse
Sometimes parents are falsely accused of child abuse based on non-accidental situations, such as when a child fights with another child and injures himself or when a child has a pre-existing medical condition that contributes to her own injuries. For example, one type of disease called “brittle bone disease” has been raised as a defense to show that one’s injuries were the result of a disorder that causes a child’s bones to break easily, and not a result of child abuse.
Parent’s Right to Discipline
Parents are generally free to discipline their children in any manner they choose, so long as the discipline is reasonable and causes no bodily injury. The question of how a parent disciplines a child (such as through spanking or threat of spanking), however, is often the subject of many child abuse cases. In certain circumstances, a parent, or one standing in “loco parentis “(such as a teacher), can raise the defense of “parental privilege” and claim that they had the right to reasonably discipline a child under their authority. However, if a child’s injuries are more serious than minor bruising as a result of the discipline, the parental privilege may not apply.
Religious Beliefs or Exemption
Even though it’s hard to grasp the thought of a child dying from an easily treatable illness, parents may claim an exemption to child abuse for religious reasons when a child dies because of a parent’s failure to seek medical care for their sick child. Although controversial, this religious exemption is a defense in all but a handful of states, and allows parents to escape charges of child abuse if they choose to pray for their sick children rather than take them to a doctor.
Munchausen Syndrome by Proxy
In rare cases, an individual accused of child abuse may raise the little-known defense called Munchausen Syndrome by Proxy (MSBP). MSBP is used to describe incidents in which a child caregiver, usually the mother, either lies about or promotes illnesses in their children in an attempt to draw attention or sympathy to themselves. This defense usually requires proof of psychological or medical data.
There may be other defenses available depending on the circumstances in your particular case. If you need assistance with defending charges of Child Abuse in Houston, Attorney Charles Johnson can help you understand your rights with respect to child abuse laws in your state. You can contact him directly day or night at (713) 222-7577 to discuss your case.
Hire the Best Houston Child Abuse Lawyer: The Charles Johnson Law Firm
The abuse or neglect of a child can have devastating effects on children and their families, as can false allegations, underreporting, and lack of knowledge. Child abuse is often zealously prosecuted and certain people are required by law to report instances of child abuse believed to have taken place.
When very small children are involved, the statements of the children themselves can be manipulated by the investigator. When older children are involved, the child’s behavioral or emotional problems can result in false accusations or manipulation of the investigator’s sympathy. In many cases, a child may simply tell the investigator what he or she thinks the investigator wants to hear.
The goal in a child abuse prosecution is to protect you from the criminal penalties that would follow a conviction and to protect your professional and family interests. Houston Sex Crimes Lawyer Charles Johnson knows how to challenge the findings of a CPS investigation and broaden the inquiry to cover circumstances that show you in a better light as a parent or child care professional.
Child abuse is, of course, a very sensitive issue and Houston Domestic Violence Lawyer Charles Johnson will address your case with this firmly in mind. Any children who are involved in the case will be engaged in the proceedings as little as possible in order to shield them from this litigation. When their involvement is necessary to improve the chances of a positive outcome, they will be treated with the utmost care and respect. Attorney Johnson is well versed in all areas of domestic violence and abuse cases and is ready to assist you in your legal matter. Contact him directly around the clock at (713) 222-7577 to discuss your case.
Download “Facing False Charges of Child Abuse? Select the Leading Houston Child Abuse Lawyer Charles Johnson” in PDF Format
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Anyone can find themselves facing a drug charge. It all depends on what the government decides to make illegal. In 2011 the Texas legislature placed a ban on the chemicals found in bath salts, effectively outlawing bath salts for recreational drug use. Last month the DEA outlawed the drug from being sold. Prior to the ban, certain types of these bath salts were available to buy in stores. Many of the chemicals found in bath salts are now Schedule I controlled substances, based on recently enacted Texas law. Schedule I controlled substances come with a real possibility of jail time and are generally charged as a felony – just for first offense possession.
As with any change in the law, law enforcement authorities can overstep their bounds when it comes to those who are accused of drug possession. People still aren’t sure what to do with bath salts. Unlike marijuana possession, bath salts possession is a new concept in criminal law. If you’ve been arrested for possession of bath salts in Houston or anywhere else in Texas, call Houston Lawyer Charles Johnson anytime night or day at (713) 222-7577 or contact us online to discuss your case. Attorney Johnson will do everything in his power to defend you and your rights if you’ve been accused of Bath Salt possession. Your consultation is free and absolutely confidential.
What are “Bath Salts” (aka synthetic cathinones)
“Bath salts” are not for use in the bath, nor do they contain salt. While the formula of this drug changes regularly, most of the now illegal bath salts refer to commercially available products that have as part of their composition a legal stimulant called 3, 4-Methylenedioxypyrovalerone, or MDPV (sometimes another synthetic stimulant called Mephedrone and less commonly a synthetic stimulant called Methylone). These synthetic stimulants are in a class of drug known as synthetic cathinones.
Synthetic cathinones are related to the parent compound cathinone (found naturally in the plant Khat, which has cathinone producing a mild stimlative effect). Since the mid-2000s, unregulated ring-substituted cathinone derivatives have appeared in the European and American recreational drugs market. The most commonly available synthetic cathinones sold on the recreational market in the period up to 2011 appear to be 3, 4-Methylenedioxypyrovalerone (MDPV), mephedrone, and methylone. These products are usually encountered as highly pure white or brown powders. Cathinone derivatives are claimed to have effects similar to those of cocaine, amphetamine or MDMA (ecstasy), but little is known of their detailed pharmacology.
Currently illegal in Texas, they are sold mostly on the internet but can also be found in select shops locally. They’re known by a variety of names, including “Red Dove,” “Blue Silk,” “Zoom,” “Bloom,” “Cloud Nine,” “Ocean Snow,” “Lunar Wave,” “Vanilla Sky,” “Ivory Wave,” “White Lightning,” “Scarface” “Purple Wave,” “Blizzard,” “Star Dust,” “Lovey, Dovey,” “Snow Leopard,” “Aura,” and “Hurricane Charlie.” While they have become popular under the guise of selling as “bath salts”, they are sometimes sold as other products such as insect repellant, or the latest iteration of products called jewelry cleaner or IPOD screen cleaners, pump-it-up powder, IPOD cleaner, etc.
Much like the marketing of Synthetic Cannabinoids (Spice/K2) as incense, MDPV has been market as “bath salts” and just like Spice/K2 MDPV is specifically labeled “not for human consumption.”
What are MDPV and Mephedrone?
As stated before, MDPV is a legal stimulant who’s chemical name is 3, 4-Methylenedioxypyrovalerone, and is the active ingredient in “Bath Salts”. A DEA report from December 2010 states that “preliminary testing indicates that the active ingredients in many brands [of bath salts] contain MDPV (3,4-methylenedioxypyrovalerone) and/or mephedrone.” Mephedrone, also known as 4-methylmethcathinone (4-MMC), or 4-methylephedrone, is a synthetic stimulant drug of the amphetamine and cathinone classes. Slang names include “meph,” “drone,” “MCAT,” and “meow, meow.”
Mephedrone is reportedly manufactured in China and is chemically similar to the cathinone compounds found in the khat plant of eastern Africa. It comes in the form of tablets or a powder, which users can swallow, snort or inject, producing similar effects to MDMA, amphetamines and cocaine. Because of the emergent nature of this class of substances, there has been some questioning as to what is in the composition of ‘bath salts’, though most evidence is leaning towards MDPV as being the compound of choice currently in ‘bath salts’.
In the United States, MDPV was packaged as “bath salts” but easy research from the internet showed that “bath salts” such as ‘Ivory Wave’ were being packaged as legal alternative stimulant drugs, and avoid prosecution by putting “Not For Human Consumption” on the packaging. However, some of these can barely contain themselves for what they really are, with one brand having a picture of Al Pacino’s ‘Scarface’ on its packaging.
They are sold over the internet, and on the street, in convenience stores, discount tobacco outlets, gas stations, pawnshops, tattoo parlors, and truck stops, among other locations. The various brands are sold in 50-milligram to 500-milligram packets. Prices range from $25 to $50 per 50-milligram packet.
What are will be in Generation 2 and 3 of Bath Salts?
Generation 2 of Bath Salts have been hitting the internet market already, with the DEA’s temporary ban of MDPV, Mephedrone and Methylone. Naphyrone has been found in samples of what is being labeled online as “Cosmic Blast” a “jewelry cleaner”. There are products (of substances unknown) that are on the internet labeled as “IPOD/Phone Screen Cleaner” and other various covers, as it appears that “bath salts” became too viral of a product name and drug dealers have now moved on to other, more obscure product naming schemes.
Cosmic Blast, marketed as a jewelry cleaner, is a stimulant/hallucinogen that is being marketed in the same way bath salts were. Drug sellers don’t seem to care about US drug law in that samples of Cosmic Blast that have been tested in toxicology laboratories which came up positive for not only Naphyrone, but also MDPV. Naphyrone (which became popular in the UK after their ban of Mephedrone in 2010), is also known as O-2482 and naphthylpyrovalerone, is a drug derived from pyrovalerone that acts as a triple reuptake inhibitor, producing stimulant effects and has been reported as a novel designer drug. No safety or toxicity data is available on the drug). Anecdotal reports of Naphyrone are it can stay in your body for long periods and since it is a reuptake inhibitor of Serotonin, which is implicated in body heat regulation, body temperatures can soar upwards of 107-108 degrees.
Bruce Talbot, a former police officer and expert on emergent drug trends expressed the following concerns regarding MDPV and what could likely happen now that MDPV, Mephedrone and Methylone have become illegal. He suspects that now that MDPV, Mephedrone and Methylone have finally been added to an emergency ban, they will likely “be replaced by 4′-methyl-a-pyrrolidinopropiophenone (MPPP) and 3′,4′-methylenedioxy-a-pyrrolidinopropiophenone (MDPPP).”
What has been seen with K2/Spice is the U.S. government pushing to ban certain of the synthetic cannabinoids (JWH-018, JWH-073, JWH-200, CP 49,479 and CP 49,479 C8, though they are trying a global sweep of this class by banning anything that binds to the CB1 receptors), but the companies making K2/Spice came out with the same product sprayed with chemicals not covered by state or national bans.
The same pattern is possible with the chemicals in “bath salts” (despite the drug using community moving on from the term “bath salts” it has become the name of recognition for this class of syntethic drugs). The following drugs would likely replace MDPV, Mephedrone and Methylone now that these three are banned nationally. These “chemical cousins include: a-pyrrolidinopropiophenone (a-PPP) little is known about this compound, but it has been detected by laboratories in Germany as an ingredient in “ecstasy” tablets seized by law enforcement authorities; 4′-methyl-a-pyrrolidinopropiophenone (MPPP) is a stimulant drug. It is very structurally similar to a-PPP. MPPP was sold in Germany as a designer drug in the late 1990s and early 2000s, although it has never achieved the same international popularity as its better-known relations a-PPP and MDPV; and 3′,4′-methylenedioxy-a-pyrrolidinopropiophenone (MDPPP) which is a stimulant designer drug. It was sold in Germany in the late 1990s and early 2000s as an ingredient in imitation ecstasy (MDMA) pills. It shares a similar chemical structure with a-PPP and MDPV.
MDPV was developed in the 1960s, and has been used for the treatment of chronic fatigue, but caused problems of abuse and dependence.
1969: Boehringer Ingelheim files a patent application for MDPV.
2005: MDPV appears as a recreational drug; first mention on Drugs-Forum.
2007: First seizure of MDPV as a recreational drug, by customs officials in the German state of Saxony. The drug had been shipped from China.
2008: First seizure of MDPV in the United States.
2009: MDPV made illegal in Denmark.
2010: MDPV made a controlled drug in the UK, Sweden, Germany, Australia and Finland. First reports of the widespread retail marketing of ‘bath salts’ containing MDPV in the US. The US considers both Mephedrone (July, 2010) and MDPV (December, 2010) “a drug and chemical of concern”.
2011: MDPV sale and possession are banned in the US states of Alabama, Arkansas, Delaware, Florida, Georgia, Hawaii, Idaho, Kansas, Kentucky, Louisiana, Mississippi, New Jersey, New Mexico, North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, Tennessee, Utah, Virginia, Washington State (as of November 3, 2011), West Virginia, Wisconsin and Wyoming, with legislation being introduced in many other states. The DEA moved to temporarily ban MDPV, Mephedrone and Methylone on October 21, 2011. This ban will last 12 months with the possibility of an additional 6 month extension while the DEA deatermines whether these 3 synthetic stimulants should be permanently classified as scheduled substances.
2012: Permanent US ban is imminent on few, select chemicals. In 2012 the Congress passed the Food and Drug Administration Safety and Innovation Act – Synthetic Drugs, which will list MDPV and Mephedrone, but not Methylone.
The Effects of MDPV/Mephedrone (“Bath Salts”)
“Bath salts” are taken in many forms. Users may snort, shoot, eat or drink them. MDPV is a powerful stimulant that functions as a dopamine-norepinephrine reuptake inhibitor (NDRI). It has stimulatory effects on the central nervous system and cardiovascular system. Physical symptoms include: rapid heartbeat, increase in blood pressure, vasoconstriction, sweating. Mental symptoms include: euphoria, increases in alertness & awareness, increased wakefulness and arousal, anxiety, agitation, perception of a diminished requirement for food and sleep, and intense desire to re-dose. MDPV reportedly has four times the potency of Ritalin and Concerta. MDPV is sometimes labeled online as legal cocaine or legal amphetamines.
The effects have a duration of roughly 3 to 4 hours, with after effects such as tachycardia, hypertension, and mild stimulation lasting from 6 to 8 hours. High doses have been observed to cause intense, prolonged panic attacks in stimulant-intolerant users, and there are anecdotal reports of psychosis from sleep withdrawal and addiction at higher doses or more frequent dosing intervals. It’s addiction potential is not fully known at this time. However, one of the effects of MDPV is an intense desire to redose and there have been online reports from both professionals and users that MDPV is “strongly addicting”.
New research by scientists at the National Institute on Drug Abuse (NIDA) indicates that the active compounds in “bath salts” (mephedrone and methylone) bind to monoamine transporters on the surface of some neurons. This in turn leads to an increase in the brain chemical serotonin, and to a lesser extent, dopamine, suggesting a mechanism that could underlie the addictive potential of these compounds.
Are There Any Dangers Involved in Using “Bath Salts” (MDPV, Mephedrone)
Yes. Until a drug is tested, it cannot be considered safe. MDPV and its ‘chemical cousins’ have not been tested by the FDA and thus little is known as to the harm potential. Some anecdotal stories involving ‘bath salt’ usage and their potential for harm come in news stories from across the nation, local emergency room reports and data collected from the American Association of Poison Control Center.
In 2010 there were 303 calls about MDPV (bath salt) products according to the American Association of Poison Control Centers’ National Poison Data System (NPDS).
As of April 30, 2012 poison centers reported 1007 calls for all of 2012 (6,138 calls in 2011). This shows the trend of how popular this class of drug has become, but it also shows that since the national ban, decreased usage, in the form of poison control center calls, is evident (1,007 calls in the first 4 months of 2012 and 2,027 calls in the same time period of 2011).
Since the National ban MDPV, Mephedrone and Methylone on October 21, 2011, November 2011 saw 231 calls reported, December 2011 – 222 calls, January 2012 – 222 calls, February 2012 – 230 calls, March 2012 – 264 calls, and April 2012 saw 285 calls. This is clear evidence that the national and state bans are having an impact on the use of, and medical necessity reasons to contact emergency rooms, for the chemicals that comprise “bath salts”.
The effects of synthetic cathinones can be wide ranging and in many instances dangerous. Here is a listing of the effects:
- Breathing difficulty
- Bruxism (grinding teeth)
- Extreme anxiety sometimes progressing to violent behavior
- Fits and delusions
- Hypertension (high blood pressure)
- Increased alertness/awareness
- Increased body temperature, chills, sweating
- Kidney pain
- Lack of appetite
- Liver failure
- Loss of bowel control
- Muscle spasms
- Muscle tenseness
- Vasoconstriction (narrowing of the blood vessels)
- Nausea, stomach cramps, and digestive problems
- Psychotic delusions
- Pupil dilation
- Renal failure
- Rhabdomyolysis (release of muscle fiber contents [myoglobin] that could lead to kidney problems)
- Severe paranoia
- Suicidal thoughts
- Tachycardia (rapid heartbeat)
How Legal/Illegal is MDPV, Mephedrone and Methylone (“Bath Salts”) Nationally?
On October 21, 2011 the DEA finalized a move to enact a temporary emergency control (ban) of three synthetic stimulants. The United States Drug Enforcement Administration (DEA) is using its emergency scheduling authority to temporarily control three synthetic stimulants (Mephedrone, 3,4 methylenedioxypyrovalerone (MDPV) and Methylone). Except as authorized by law, this action will make possessing and selling these chemicals or the products that contain them illegal in the U.S. for at least one year while the DEA and the United States Department of Health and Human Services (DHHS) further study whether these chemicals should be permanently controlled. This emergency action was necessary to prevent an imminent threat to the public safety.
On March 1st, the DEA announced the ban of 5 synthetic cannabinoids (JWH-018, JWH-073, JWH-200, CP 47,497 and CP 47,497 C8), however, before the ban was in place, generation 2 of synthetic cannabinoids were already being sold in convenience stores with the makers touting none of the banned substances being in their product.
In Pennsylvania (on June 23, 2011), SB 1006 was passed by the House, Senate and approved by the Governor. This bill SB 1006 bans 6 synthetic stimulants including MDPV and Mephedrone (this PA bill bans the same 6 synthetic stimulants that NJ banned on April, 28, 2011). This bill is also proposing to ban sativa and 8 synthetic cannabinoids and their analogues.
An amendment added to the PA SB 1006 also includes language barring all chemicals that are similar to the substances that are currently found in bath salts, synthetic cannabinoids and 2C (hallucinogens such as 2C-E, 2C-I, 2C-P, 2C-H and their analogues, congeners, homologues, isomers, salts and salts of analogues, congeners, homologues and isomers), and prohibits those chemical compounds from being used to create the same effect as the current bath salts, sytnthetic cannabinoids and 2C chemical structures. This addition to the law will make Pennsylvania’s the strongest such law in the nation.
As historical perspective, these drugs got on the US Government radar in December, 2010, when the DEA published a report listing MDPV as a drug of concern. On February 1, 2011 Gil Kerlikowske, Director of National Drug Control Policy, released the following statement following recent reports indicating the emergent threat of these synthetic stimulants, stating that he was “deeply concerned,” and that “public health officials are working on this emerging issue.” These drugs have been around long before then, and very few of them are being banned 2 years after this first statement by the US Government.
When a federal ban is finally enacted on a drug, it does not mean local authorities will take action on this drug. States still need to enact legislation to ban the substances in order for state (then local) authorities to take action. Federal bans will go after larger distributors, but it will be locally determined as to whether users and smaller, local distributors (such as non-chain convenience stores and gas stations) will be sought after without a state ban.
The Facts: MDPV, Mephedrone, and other synthetic cathinones can cause serious psychiatric symptoms in people who have never exhibited such symptoms prior to usage. This can happen for some, while others will never experience these symptoms under the influence of these chemicals. However, the prevalence of people having abreactions is evident in Poison Control Center data, and in these types of anecdotal stories linked above. For those who have pre-existing psychiatric problems, ingesting these substances can further fracture and intensify these pre-existing psychiatric symptoms, which can be expressed in violent ways by some. There is no evidence of continued “zombiefication” of bath salt users after the drugs have left their system. Thus any zombie like tendencies (i.e., aggression leading to the severe mutilation of oneself or others) that could possibly exist, would only do so while under the influence, and wouldn’t persist after the effects of the drug have left a person’s system. Sorry, no Hollywood zombie apocalypse is evident with “bath salts” ingestion, only tragic consequences.
The Conclusion: “Bath Salts” are man made derivatives (i.e., synthetics) of naturally occurring stimulants, created and popularized by “armchair chemists” driven by profit potential and whose business acumen is much more developed than their chemistry abilities. The people ingesting these substances are what are known as in the gaming community as “beta testers” of products which cause such volatile reactions in some, that this “beta stress test” is obviously failing with oft-times gruesome, tragic (yet sadly “popular” and “trending”) results. But this unfortunately will not stop many from continuing down this path of using these potentially dangerous, untested, unregulated (in terms of the actual making of the drugs), synthetic drugs. Thus while the popularization, and light-heartedness of the “zombie apocalypse” is shedding a new light on the potential dangers of these class of drugs, it is quite possible that message gets lost due to the glib way it is being presented in the (social) media.
If I have been accused of selling or buying “bath salts” in Texas is there anything I can do?
First of all, you will want to immediately seek the legal advice of an experienced criminal law attorney. Only an attorney who works to keep up on current drug laws and trends can help you after an arrest. Do not let recent changes in the law make you vulnerable to being arrested for bath salts possession, use or distribution. Being arrested for any charge involving bath salts will change the course of your life immediately. Depending on the actual charge you may face misdemeanor or felony drug charges, you will face heavy fines, possible probation, house arrest and a possible jail sentence.
It is not advisable to confront these charges by yourself. Please do not hesitate to contact a Houston Bath Salts Defense Attorney to discuss your rights and how to protect them. For experience you can trust, contact the Charles Johnson Law Firm today at (713) 222-7577 to discuss your case. With his many years experience handling drug crimes in Texas he will thoroughly protect your rights, your freedom as well as your reputation.
Download “Charged with Possession of Illegal Bath Salts? Protect Your Freedom by Hiring Houston Lawyer Charles Johnson” in PDF Format
News Stories Related to Illegal Bath Salts Arrests in Texas:
FBI: No hallucinogens found in system of face-biting suspect
Martin County Sheriff William Snyder had previously speculated that Harrouff may have been on flakka or bath salts, but those drugs were not ... Harrouff, who had no previous arrest record, told deputies, “Help me, I ate something bad” and then ...
WISH-TV - Nov 23 2016
Austin Man Arrested Over "Bath Salts"
DEA agents in North Texas told NBC 5 that some of the bath salts seized in Austin would have ended up for sale in North Texas. According to KXAN-TV, agents posed as deliverymen when they arrested Olivieri. The arrest was part of Operation Log Jam ...
NBC Dallas-Fort Worth 5 - Jul 26 2012
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The Charles Johnson Law Firm is one of the foremost criminal defense law firms in Houston in defending people from drug convictions, including the possession and sale of marijuana. Our unique strategy gives our clients the best opportunity to avoid criminal penalties, and our criminal defense law firm’s familiarity with drug laws, both felonies and misdemeanors, is unrivaled. We provide each client a high-quality legal defense that is superior. Houston Criminal Lawyer Charles Johnson can defend against any criminal drug charge in both federal and state courts, and our firm’s track record of success continues to grow.
Hire the Best Houston Drug Crimes Defense Lawyer: The Charles Johnson Law Firm
Criminal Marijuana Penalties
Marijuana possession and sale charges can be either misdemeanors or felonies, but both carry serious penalties. Jail time, heavy fines, probation, mandatory rehab programs and more are all possible penalties for drug charges. Attorney Johnson’s finely tuned defense techniques have evolved from years of experience, and he brings that knowledge and experience to those facing marijuana-related criminal charges.
Of all the marijuana laws in Texas, possession of marijuana may be the most unfair. It punishes otherwise responsible citizens merely for keeping some pot for personal use and who have no intention of ever doing anything hurtful with it or profiting from it. Nonetheless, it is an offense to possess, distribute or cultivate marijuana in Texas. Depending on the quantity, possession of marijuana can be charged as a misdemeanor of felony in both state and federal court.
The prosecution may argue that you’re “in possession” of marijuana in Houston, TX, if you’re found smoking marijuana or if you knowingly “exercised control” over the marijuana. Therefore, the location of the marijuana is very important:
- If the marijuana is found on your person, in your car, in or around your home, in a storage unit belonging to you, or in any other place that you have some authority over, the prosecution will argue that you were in possession of the marijuana since you had some control over the location.
- Furthermore, if marijuana is found in your system during a drug test or you were caught driving under the influence of marijuana in Texas, the prosecution may try to use that to prove you’ve been in possession of marijuana since you presumably “exercise control” over your body.
Marijuana Possession Penalties in Texas
- Two ounces or less include a fine up to $2,000, up to 180 days in jail or both
- More than two ounces, but less than four ounces. Penalties include a fine of up to $4,000, up to one year in jail, or both.
- Four ounces or more, up to and including five pounds. Penalties include a fine of up to $10,000, between 180 days and two years in prison, or both.
- More than five pounds, up to and including 50 pounds. Penalties include a fine of up to $10,000, between two and ten years in prison, or both.
- More than 50 pounds, up to and including 2,000 pounds. Penalties include a fine of up to $10,000, between two and 20 years in prison, or both.
- More than 2,000 pounds. Penalties include a fine of up to $50,000, between five and 99 years in prison, or both.
Sale of Marijuana
Various states have different marijuana laws, and Texas is no different. Texas treats marijuana sales as a much more serious crime than possession, which is reflected in the penalties. The sale of any amount of marijuana can lead to prison time, even for small amounts.
Sale of Marijuana Penalties in Texas
- 1/4 oz – 5 lbs: 6 months – 2 years, $10,000 fine
- 5 lbs – 50 lbs: 2 – 20 years, $10,000 fine
- 50 lbs – 1 ton: 5 – 99 years, $10,000 fine
- 1 ton or more: Mandatory minimum of 10 – 99 years, with a $100,000 fine
These are for either the sale OR delivery, meaning it is irrelevant whether or not you are actually paid or just just giving it to someone. On top of that, if the delivery or sale is to a minor (in ANY amount), that is punishable by an additional 2 – 20 years in prison. Also, sale within 1,000 feet of a school or within 300 feet of a youth center, public pool or video arcade increases the penalty classification to the next highest level (which in some cases is a difference of many years).
The Houston Lawyer Charles Johnson understands the unique nature of Texas marijuana laws, and can provide a skilled defense. His unparalleled knowledge of state and federal drug laws gives him a unique ability to provide excellent legal services for you and your loved ones. If you are in need of criminal defense legal representation in the Houston area, contact Attorney Johnson anytime day or night at (713) 222-7577 to discuss your situation.
What Is Marijuana?
Cannabis sativa: There are two species of Cannabis. One species is Cannabis sativa, originally cultivated to make hemp. The stalks of the plant contain fibers that are woven to make rope, cloth, and paper. The other species is Cannabis indica, known for its psychoactive properties. Hashish is derived from Cannabis indica. In Africa, cannabis is know as “dagga,” in China as “ma,” and in India as “ganga” or “bhang”. Marijuana is the Mexican colloquial name for Cannabis sativa. Marijuana is a greenish-gray mixture of dried, shredded leaves, stems, seeds, and flowers of the hemp plant.
THC is the main psychoactive ingredient in marijuana. THC or delta-9-tetrahydrocannabinol is found in the plant’s resin. The amount of THC determines the potency of the marijuana. The resin is mostly concentrated in the flowers of the plant. Because of various cultivation techniques the amount of THC varies considerably in the flowers of individual plants.
Other Chemicals: Marijuana is a complex drug and is made up of 420 chemical components. Sixty-one of these chemicals are called cannabinoids and are unique to marijuana. Many scientific studies focus on the primary psychoactive chemical, THC but don’t know how these other cannabinoids affect the various organs, brain, and behavior.
Grades of Marijuana
- Low-grade marijuana is made from leaves of both sexes of the plant.
- Medium-grade marijuana is made of the flowering tops of female plants fertilized by male plants.
- High-grade marijuana is made of the flowering tops of female plants raised in isolation to male plants. This marijuana is called sinsemilla because it does not produce a seed.
- Hashish is produced when resin is collected from the Cannabis indica plant. The THC-rich resin is dried and then compressed into a variety of forms, such as balls, cakes, or cookie-like sheets. Pieces are then broken off, placed in pipes, and smoked or rolled into a cigarette along with tobacco or low-grade marijuana. The Middle East, North Africa, Pakistan, and Afghanistan are the main sources of hashish. THC content of hashish can vary from 8% to 20%.
What are the Physical Effects of Marijuana usage?
When marijuana is smoked, the affects are felt in minutes. The high usually peaks within a couple of hours. Marijuana affects users differently. The “high” can include a feeling of relaxation, improved sense perception, and emotional well-being. Music and visual images may seem more vibrant and intense. Time seems to slow down. Some people experience physical hunger and a range of emotion from laughter to introspection. Marijuana does not always produce pleasant feelings and may cause paranoia and hallucinations. Emergency room visits have increased because some people feel anxious or fearful after smoking high-grade marijuana. Whether the marijuana is smoked or eaten, THC can remain in the body for days. About half the THC is in the blood 20 hours after smoking. Although the initial high has disappeared, physical and mental functions may be affected for days.
The physical effects of marijuana depend on many individual factors such as personal health, the time of day that marijuana is used, the problems it causes, and how well a person is able to control his or her use. Research studies have shown that one of the primary concerns for those who use marijuana is cardiovascular damage. Marijuana causes damage to lungs that is similar to that caused by cigarettes. For people who inhale deeply or hold the smoke in their lungs longer, the risk can be greater. One study that compared cigarette and marijuana smokers found that marijuana smokers absorbed five times the amount of carbon monoxide, and had five times the tar in their lungs, as compared to cigarette smokers. For those who smoke both marijuana and cigarettes, the damage can be exponentially greater than that caused by marijuana or cigarettes alone.
Research shows that people who use marijuana more than one time during the day tend to have more social and physical problems than those who only use in the evenings. Those who use at multiple times may also be more likely to be smoking to avoid problems they feel unable to confront. A person who uses marijuana in addition to alcohol or other drugs can be at additional risk. The effects of some drugs become exponentially greater when taken together. In addition, the physical tolerance that one drug produces can sometimes affect another drug, and lead to dependence on multiple substances.
Is Marijuana Addictive?
While marijuana is not in the same addictive league as cocaine, heroin, and even alcohol, recent studies raise the possibility that THC affects the level of dopamine in the brain. Dopamine is a chemical in the brain that affects the pleasure circuits. Many addictive drugs cause the release of dopamine from the neurons. One report by the National Institute of Drug Abuse states that long-term marijuana use can lead to addiction for some people. This report concludes that along with craving, withdrawal symptoms can make it hard for long-term marijuana smokers to stop using the drug. People trying to quit report irritability, difficulty sleeping, and anxiety.
Texas does not prosecute possession of drugs only. In fact, Texas will prosecute a person for possession of drug paraphernalia. Thus, it is a separate criminal charge classified as a Class C Misdemeanor and typically carries a penalty of $500. Normally, if one is charged with a possession of controlled substance, then a possession of drug paraphernalia will be charged against the person, as well.
Under federal law the term drug paraphernalia means “any equipment, product or material of any kind which is primarily intended or designed for use in manufacturing, compounding, converting, concealing, producing, processing, preparing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance.”
Drug paraphernalia is any legitimate equipment, product, or material that is modified for making, using, or concealing illegal drugs such as cocaine, heroin, marijuana, and methamphetamine. Drug paraphernalia generally falls into two categories:
User-specific products are marketed to drug users to assist them in taking or concealing illegal drugs. These products include certain pipes, smoking masks, bongs, cocaine freebase kits, marijuana grow kits, roach clips, and items such as hollowed out cosmetic cases or fake pagers used to conceal illegal drugs.
Dealer-specific products are used by drug traffickers for preparing illegal drugs for distribution at the street level. Items such as scales, vials, and baggies fall into this category. Drug paraphernalia does not include any items traditionally used with tobacco, like pipes and rolling papers.
With the rise of the drug culture in the United States in the 1960s and 1970s, the country began to see the appearance of “head shops,” which were stores that sold a wide range of drug paraphernalia. While some of the paraphernalia was crude and home-made, much was being commercially manufactured to cater to a fast-growing market. Enterprising individuals even sold items openly in the street, until anti-paraphernalia laws in the 1980s eventually ended such blatant sales. Today, law enforcement faces another challenge. With the advent of the Internet, criminals have greatly expanded their illicit sales to a worldwide market for drug paraphernalia. For example, in a recent law enforcement effort, Operation Pipedreams, the 18 companies targeted accounted for more than a quarter of a billion dollars in retail drug paraphernalia sales annually. Typically, such illicit businesses operate retail stores as well as websites posing as retailers of legitimate tobacco accessories when in reality the products are intended for the illegal drug trade.
Identifying drug paraphernalia can be challenging because products often are marketed as though they were designed for legitimate purposes. Marijuana pipes and bongs, for example, frequently carry a misleading disclaimer indicating that they are intended to be used only with tobacco products. Recognizing drug paraphernalia often involves considering other factors such as the manner in which items are displayed for sale, descriptive materials or instructions accompanying the items, and the type of business selling the items.
The Charles Johnson Law Firm is experienced in marijuana-related matters involving:
Contact the Best Houston Marijuana Possession Lawyer: The Charles Johnson Law Firm
Before someone can be convicted of marijuana possession in Houston, the state must prove that the accused actually had possession or took action to control the drug. Drug possession cases are complicated and depend the police’s adherence to strict guidelines concerning search and seizure of the drug.
As you could be facing fines, probation, drug classes, community service, and jail, it is crucial that you speak with an experienced Houston criminal attorney if you have been accused of this crime. Our team at the Charles Johnson Law Firm is well-equipped to handle any type of drug crime, including those involving possession of marijuana and/or drug paraphernalia. We understand that mistakes can happen and not everyone who has been accused of a crime is guilty. No matter how serious you may believe your case to be, contact The Houston Lawyer Charles Johnson directly by calling (713) 222-7577 anytime, day or night to discuss your case.
Arrested for Marijuana Possession or Sales? The Best Houston Lawyer
by Charles Johnson
Download “Arrested for Marijuana Possession or Sales? Choose the Right Houston Marijuana Lawyer For Your Case” in PDF Format
News Stories Related to Marijuana Possession or Sales Arrests in Houston:
Texans WR Jaelen Strong arrested for marijuana possession
SCOTTSDALE, Ariz. (AP) — Houston Texans wide receiver Jaelen Strong has been arrested for marijuana possession, police in the Phoenix suburb of Scottsdale said Monday. Strong, a former Arizona State standout, was taken into custody late Sunday and booked ...
USA Today - Feb 29 2016
Texans WR Jaelen Strong arrested on marijuana possession charge
Houston Texans wide receiver Jaelen Strong was arrested and booked on a charge of possession of marijuana just before midnight Sunday, according to the Scottsdale (Arizona) Police Department. Per a release from the department obtained by ESPN's Rob ...
CBS Sports - Feb 29 2016
Jordan Schafer arrested, charged with marijuana possession
Jordan Schafer, who was traded from the Braves to the Astros in July as part of the Michael Bourn deal, was arrested last night in Florida and charged with felony possession of marijuana ... Zachary Levine of the Houston Chronicle has a few more details ...
NBC Sports - Nov 26 2016
Texans receiver Jaelen Strong arrested for marijuana possession
Texans receiver Jaelen Strong was arrested for marijuana possession Sunday in Scottsdale ... but expressed displeasure with Strong in a statement. “The Houston Texans are aware of the incident regarding WR Jaelen Strong in Scottsdale, Ariz," Texans ...
Chron - Feb 29 2016
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A probation or parole revocation can severely impact your life and send you to jail or prison. If you face revocation, Houston Criminal Lawyer Charles Johnson can fight the allegations and/or assist you in getting an alternative to revocation. Attorney Charles Johnson is experienced with revocation proceedings. He will provide you with the information and legal representation you need to fight the revocation, get an Alternative to Revocation (ATR), or limit the jail or prison time.
The Charles Johnson Law Firm can expertly assist you with any of the following:
- Probation or Parole violations
- Extended supervision violations
- Probation or Parole revocation hearings
- Reconfinement hearings
- Negotiating with probation/extended supervision agent
Revocations are often based on new charges but sometimes just on mere allegations. It is important to contact the experienced Houston Probation Attorney at the Charles Johnson Law Firm early on in your case so we can work to negotiate an alternative to revocation or seek lower re-confinement recommendations.
The use of probation and parole is governed in part by competing philosophies, classicalism and positivism. In short, classicalists believe that offenders choose their actions and, therefore, in order to prevent (or deter) future criminal acts, such individuals should be punished. Conversely, positivists believe that individuals are forced into the choice of committing crime through no fault of their own and, therefore, the conditions and/or behaviors that caused the action should be remedied, ultimately resulting in rehabilitation of the offender.
Legislative acts and public sentiment further dictate the application of probation and parole. Therefore, universal and consistent definitions and applications of probation and parole are not available as the methods of punishment and governing philosophies have evolved and moved toward the twenty-first century.
While these factors contribute to a lack of consistency when dealing with probation and parole, the primary obstacle to detailing specific state protocols is that the practice of granting probation and/or parole at the state level is dependent on the discretionary powers of select individuals, such as the prosecutor, the judicial authority, and the parole board, to name just a few.
Probation is a court-imposed sanction that “releases a convicted offender into the community under a conditional suspended sentence.” This practice assumes that most offenders are not dangerous and will respond well to treatment. In fact, the average probationer is a first time and/or non-violent offender who, it is believed, will be best served by remaining in the community while serving out the sentence. Probation is a form of punishment issued by a criminal court in place of incarceration. The probationer is generally considered to be a non-violent offender who has been convicted of a crime but is not considered a danger and is believed to be better served by being placed on probation instead of in a jail cell. Probationers are typically convicted of misdemeanor offenses, have already served partial jail time for the offenses or are first time offenders or minors. Probationers are often forced to modify their lifestyle by reporting to a probation officer, living in certain locations, abiding by a set curfew and avoiding association with known criminal offenders.
Historically, probation does not involve incarceration, making it a front-end solution to address the overcrowding problem in U. S. prisons and jails. While the immediate goal of any probation program is rehabilitation, in reality it is more a necessity than an instrument. As a result, other programs have been developed under the umbrella of community corrections that utilize elements of conditional release resulting in the expansion of probation-type programs.
Probation developed as a result of the efforts of philanthropist, John Augustus, to rehabilitate convicted offenders, although references to similar practices exist as early as 437-422 BC. It was favored because it allowed judicial authorities a great deal of discretion when imposing sentences, thereby providing the opportunity to tailor sentences to a particular offender, in theory allowing for the greatest possibility of rehabilitation. While sentences of probation vary widely across and within jurisdictions, the maximum length of time that one can be under supervision is 5 years (60 months).
The functions of probation are difficult to state definitively. It is known that at its inception, John Augustus’ goal was behavioral reform. This reflects the sentencing goal of rehabilitation. Fundamentally, it is believed that by allowing the offender to remain in the community, the system is providing a second chance. Further, support and guidance from probation officers may achieve the aim of guiding the offender towards a law-abiding existence.
Given that probation is no longer limited to first-time, non-violent offenders who pose minimal risk to the community, the reality is significantly different. Coupled with low confidence in the effectiveness of rehabilitative success and a burgeoning offender population, actual practices tend to be dictated by conflicting goals on both an individual and administrative level. In an aggressive bid to prevent jail or prison overcrowding, several alternatives to incarceration have developed. Some such programs enable offenders traditionally incarcerated to be released into the community, thereby forcing a shift in focus from rehabilitation to control and supervision.
Intensive Supervised Probation (ISP)
ISP is a form of release into the community that emphasizes close monitoring of convicted offenders and imposes rigorous conditions on that release, such as the following:
- Multiple weekly contacts w/officer
- Random and unannounced drug testing
- Stringent enforcement of conditions, i.e.,: maintaining employment
- Required participation in treatment, education programs, etc.
Individuals on ISP are those who most likely should not be in the community. The restrictions placed on them are often excessive and the level of direct, face-to-face contact required is believed to significantly deter, or at least interfere, with any ongoing criminal activity.
Shock Probation and Split Sentencing
Shock probation/split sentencing is a sentence for a term of years, but after 30, 60, or 90 days, the offender is removed from jail or prison.
While these terms are used interchangeably, they are actually two different activities. In shock probation, the offender is originally sentenced to jail, then brought before the judge after 30, 60, or 90 days and re-sentenced to probation. In split sentencing, probation is part of the original sentence requiring no additional appearance before the judge.
Probation revocation occurs when an offender who has been sentenced to serve his punishment in the form of probation rather than incarceration violates the terms of his probation and is imprisoned. Probation can be revoked for a variety of reasons and may have varying consequences for the individual who has had his probation revoked, depending location and the regulations of the law enforcement agency involved.
Probation revocation means that the offenders probation officer has decided that the offender is not complying with the terms that were set for his probation and should be imprisoned for the remaining length of his sentence. Probation officers have to meet with a judge during a hearing and present evidence that the probationer is not fulfilling the terms of the probation before the probation will be revoked. Individuals are notified when their probation is revoked. If they do not turn themselves in to the court or police, a warrant will be issued for their arrest.
Reasons for Probation Revocation
Probation revocation occurs when an probationer violates the terms of her unique probation sentence. This could mean going outside a specified area such as a state or county, not being home prior to a specified time, failing to pay fines, check in with a probation officer or complete community service. Probation may also be revoked if the probationer commits or is accused of committing another crime during the time of their probation.
Consequences of Probation Revocation
When probation is revoked, the offender is sent to jail to serve out the remainder of his sentence. This means that the offender is completely incarcerated for an amount of time that will be decided by the judge during a probation revocation hearing where the probation officer reports why he believes the offender’s probation should be revoked. In some instances, depending on the crime and the severity of the issue that caused probation to be revoked, an offender’s time on probation will be taken into consideration. She may receive a jail sentence that is shorter than her original sentence, since the time spent on probation can be considered to have been part of the time served for the crime.
Since probation is a conditional release, it can be revoked, or taken away, if the conditions governing release are not met (technical violation) or if a new crime is committed during the probationary period (new offense).
Probation revocation is initiated by the probation officer’s belief that a violation warranting revocation has occurred. As a result of the 1973 case Gagnon v. Scarpelli (411 U.S. 778), the Supreme Court decided that where “liberty interests” are involved, probationers are entitled to retain certain due process rights. Such rights include: (1) written notification of the alleged violations; (2) preliminary (or probable cause) hearing at which a judicial authority will determine whether sufficient probable cause exists to pursue the case; and (3) if warranted, a revocation hearing.
If a revocation hearing is scheduled, probationers have the right to testify in their own behalf, may present witnesses, and may have an attorney present. While the Gagnon court was vague regarding the right to court appointed counsel at a revocation hearing, most jurisdictions do provide the right to appointed counsel.
The standard of proof required at a revocation hearing is a “preponderance of the evidence”, lower than that required at a criminal trial. Possible outcomes include return to supervision, reprimand with restoration to supervision, or revocation with imprisonment.
If you were placed on deferred adjudication probation, a probation revocation could result in a conviction on your criminal record or possibly a jail or prison sentence. Houston Criminal Lawyer Charles Johnson provides aggressive and thorough representation for clients facing a revocation of probation. His primary goal when representing a client in a probation revocation proceeding is to explore all defenses and possible alternatives that could avoid revocation of your probation.
Early Intervention in Houston Probation Violations
If a motion to revoke probation has been filed against you or if you are potentially facing the possibility of probation revocation, the time to act is now! Early intervention in a probation violation matter can often make the difference between facing a probation revocation hearing, or indeed whether or not a motion to revoke probation is filed at all. Houston Criminal Lawyer Charles Johnson has the experience necessary to make the court, probation officer, and the District Attorney’s Office aware of all circumstances regarding your case and to explore all defenses and possible alternatives to avoid revocation of your probation.
Parole is the “conditional early release from prison or jail, under supervision, after a portion of the sentence has been served.” This practice assumes that the offender successfully demonstrated conformity to the rules and regulations of the prison environment and shows an ability to conform to society’s norms and laws.
The word, parole, derives from the French “parol” meaning “word of honor” and references prisoners of war promising not to take up arms in current conflict if released. How that concept came to apply to the early release of convicted, often violent, offenders is less clear. The first documented official use of early release from prison in the United States is credited to Samuel G. Howe in Boston (1847), but prior to that, other programs using pardons achieved basically the same outcome. In fact, as late as 1938, parole was simply a conditional pardon in many states.
Alexander Maconochie (England) ran the Norfolk Island prison. During his tenure, he instituted a system whereby inmates would be punished for the past and trained for the future. He believed that inmates could be rehabilitated so he implemented an open-ended sentencing structure where inmates had to “earn” their release by passing through three stages, each stage increased their liberty and responsibilities. Inmates had an open time frame in which to earn the next level. Compliance advanced them; infractions resulted in a return to the previous stage, thereby lengthening the sentence. The open-ended sentences (today known as indeterminate sentencing) allowed the administration to ensure that when finally released, an offender’s behavior had been successfully reformed. Eventually, Maconochie was removed from his position under criticism that his program “coddled” criminals.
At about the same time, Sir Walter Crofton was developing a similar program in Ireland using “tickets of leave”. The “Irish System” as it came to be known, employed a similar practice of allowing inmates to earn credits towards early release. However, once the “ticket of leave” was achieved, release from custody was conditional. The releasees were supervised in the community by either law enforcement or civilian personnel who were required to secure employment and to conduct home visits. These “supervisors” represented the forerunner to today’s parole officer.
In the United States, Zebulon Brockaway (Superintendent) employed elements from both the Irish and Great Britain models in managing the Elmira Reformatory during the 1870s. Brockaway is credited with the passage of the first indeterminate sentencing law in the United States as well as introducing the first good time system to reduce inmates’ sentences. However, releasing the offenders was only part of the problem and initially, the greatest challenge was providing adequate supervision once release had been granted.
By 1913, it was clear some independent body was required to supervise inmates in the community and by 1930, Congress formally established a United States Board of Parole. It appeared, at least for awhile, that initiatives and programs were developing that could make parole a viable and useful tool of the criminal justice system. But unfortunate timing contributed ultimately to its downfall.
In 1929, the Great Depression hit the United States. An immediate result was a sharp increase in prison populations. However, the high cost of maintaining prisons as well as a lack of available personnel to staff them made new construction prohibitive and contributed to the popularity of parole. While alleviation of the overcrowding problem is often cited as a secondary (or latent) goal, the reality is that as a back-end solution, parole is vital to the maintenance of the correctional system.
With the onset of the twentieth century, philosophers began to examine the social and psychological aspects of criminal behavior. This heralded a shift from classicalist thinking towards positivism. Under positivism, actions are believed to be caused by forces beyond one’s control (such forces could be psychological, biological, or sociological in origin). Therefore, parolees were now viewed as “sick” and the parole department was charged with the responsibility of “fixing” them.
Positivism is consistent with a less punitive approach to sentencing and generally involves an indeterminate sentencing structure allowing for the possibility of early release if the offender demonstrates that they have been successfully rehabilitated. As such, it fit well with the Elmira system and the timing afforded officials the opportunity to use parole as a means to relieve the overcrowded conditions that had developed during the depression.
The fact that parole involves some incarceration suggests that the average parolee has committed a more serious crime than the average probationer and, hence, poses a greater risk to the community. Therefore, primary goals of parole must include crime deterrence and offender control. And given that most offenders will eventually return to the community, a rival goal is reintegration, or the facilitation of an offender’s transition from incarceration to freedom.
Unfortunately, it appeared during the 1980s that parole was failing. Street crime rates during this period skyrocketed and in many cases, the crimes were perpetrated by individuals who were released into the community prior to the official expiration of their sentence. This reality led to the development of penal philosophies espousing “tough on crime” approaches and demanding “truth in sentencing”. Such philosophies warned criminals, “do the crime, do the time” and resulted in radical changes to sentencing practices across the country that indicated a return to a more punitive sentencing structure.
Since parole is a conditional release, it can be revoked or taken away, if the conditions governing release are not met (technical violation) or if a new crime is committed during the probationary period (new offense). In this manner, it is similar to probation; however, it differs in that probation is governed by judicial decisions whereas parole is governed by administrative procedures. As a result of the administrative nature of parole, the revocation process is so varied among the jurisdictions.
In large part, however, most minor infractions are dealt with by the parole officer and may not necessitate involvement of the parole board. Some jurisdictions empower the parole officer to immediately take a parolee into custody for 24 (New York) to 48 hours (Pennsylvania) for purposes of obtaining an arrest warrant. This practice is typically employed when the offender represents an immediate threat to public safety.
With respect to the legal protections afforded to parolees, the first case to explore this issue was Morrissey v. Brewer (1972). The Morrissey case explored the extension of due process rights of (1) written notice to parolee prior to general revocation proceeding; (2) identification of the violations being presented and any evidence being used to prove that the violation took place; (3) the right of the parolee to confront and cross-examine accusers (subject to exceptions) and (4) a written explanation for the decisions regarding the revocation of the parole and what evidence was employed in making that decision. Perhaps the greatest contribution of the Morrissey case was the creation of a two-stage process wherein first, probable cause that violations had occurred had to exist in order to go to the second stage, which was the actual revocation hearing.
Interestingly, the Supreme Court did not choose to create a bright line rule for the right to court-appointed counsel at a revocation hearing. For the most part, however, most jurisdictions have followed the decision in Mempa v. Rhay (1967). While this case specifically dealt with the rights of probationers, it has been applied recently to parolees as well. Basically, the Supreme Court wrote that “any indigent is entitled at every stage of a criminal proceeding to be represented by court-appointed counsel, where substantial rights of a criminal accused may be affected.” In sum, the Supreme Court considered the liberty interests of the probationers and decided that a probation revocation hearing constituted a “critical stage” which dictated adherence to due process protections. This rationale has consistently been extended to include parole revocation hearings as well.
As of 2001, 15 states (Arizona, California, Delaware, Illinois, Indiana, Kansas, Maine, Minnesota, Mississippi, Ohio, Oregon, New Mexico, North Carolina, Virginia and Washington) and the Federal government have eliminated parole programs in lieu of a determinate model of sentencing reflective of a more retributive approach to punishment. (New York Gov. George Pataki proposed making New York the sixteenth state)
Such an action may seem warranted given the apparent inability of the system to guarantee the protection of the citizens and the end result is predictable. Overcrowding still represents the greatest challenge to the correctional industry. In fact, three states (Connecticut, Colorado, and Florida) reinstituted the parole boards after eliminating them due to the unforeseen overcrowding problems. The reality is that removal of parole ultimately leads simply to a shift in power from parole boards to prosecutors, in that the option most often exercised in states without parole, is probation.
Contact Houston Probation Lawyer Charles Johnson if You are Not Ready to Give Up – Jail is not the Only Option
Once we have dissected your probation revocation complaint, we will mount an aggressive defense, knocking out many of the counts against you. In the end, if you do have some counts that are proven to the court, we can often have probation reinstated, provided you accomplish some heroic steps at our direction prior to the revocation hearing. We will consult with you and our team of treatment experts to build a track record of success prior to your probation revocation hearing. These efforts will show the District Attorney and the judge that you are worthy of another chance at probation, and that you are not a danger to the community. With a well thought out and implemented plan, you have more options than jail or prison if the judge revokes your probation.
If you are accused of violating the terms of your parole or probation or have questions regarding a potential probation offense, please call at anytime for a free initial consultation.
Houston Lawyer Charles Johnson can be reached 24 hours a day, 7 days a week.
Call us at 713-222-7577 or toll free at 877-308-0100.
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Related News Stories – Probation Revocation in Houston
Griffith Agrees To Probation Revocation
HOUSTON COUNTY: Today Clarence Ray Griffith and his attorney agreed to a revocation of probation before Circuit Court Judge Brad Mendheim. Griffith was on probation for Unlawful Manufacturing of a Controlled Substance and Unlawful Possession of A ...
rickeystokesnews.com - Apr 01 2015
Sam Houston arsonist sentenced for probation revocation
A man who was given probation for his role in the almost two-year-old arson of the historic Sam Houston School building was sentenced to one year in the county jail for revocation of probation. The defendant, Gavin Douglas McKinley, violated his probation ...
www.marshallnewsmessenger.com - Feb 14 2012
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Drug possession is a typical criminal charge that’s faced by a number of Houstonians. Innocent bystanders are occasionally charged with this crime, folks who had been merely “in the wrong place at the wrong time” and are today in severe legal trouble. Seek the help of The Houston Lawyer Charles Johnson to learn more about what you can do to assert your rights.
Drug possession criminal charges can easily differ significantly, dependant upon the quantity of the drug you’re charged with possessing. Even a minute quantity of illegal drugs can easily come with severe consequences and the fees and penalties just get much more serious as the quantity increases. Try to remember to think long term; you would like the criminal case handled correctly right now to ensure that it will be considered a speed bump rather than a road block in your life. Houston Lawyer Charles Johnson is going to be devoted to that type of defense.
Laws regarding Drug Possession frequently prosecute drug offenders in very much the equivalent manner they prosecute various other felony offenders. Approximately 90 % of all the drug possession cases don’t make it to trial. The majority of the offenders will plead guilty to drug possession violations. A basic drug possession conviction in Texas might lead to community service, probation, drivers license sanctions, court-ordered drug rehab, county jail time and fines.
Several police forces obtain restitution for their expenses in connection with the criminal arrest and prosecution. Even though the harshness of the penalties may differ with the criminal offense, a good number of drug criminal charges in Texas have serious consequences of some sort. This is often particularly accurate when the charged offense entails weapons in “protected zones” (like educational facilities and recreational areas), adolescents, or perhaps a past drug conviction. Criminal defendants looking to steer clear of prison or jail will want to get in touch with an experienced drug defense lawyer early on in their case. The Charles Johnson Law Firm Criminal Defense philosophy involves intense preparation, investigation that is on par with, and in many cases, better than the authorities and an aggressive posture when advocating our client’s position.
Drug Possession Laws are frequently more severe for possession of drugs which have a higher propensity to trigger misuse, dependency, physical injury, and loss of life. Laws regarding Drug Possession also make it a criminal offense to possess any sort of precursors to drug production or drug distribution. Possession of paraphernalia, or drug accessories, is also unlawful according to laws regarding drug possession.
Laws regarding Drug Possession are also more severe in instances when an offender was caught with a significant amount of a given substance. Frequently Prosecutors will charge these offenders with “drug possession with intent to distribute”. In these instances, an offender might have to deal with an enhanced sentence with stricter penalties. Drug possessions laws also prosecute multiple offenders considerably tougher than those that are first time offenders.
Best Houston Drug Possession Defense: The Houston Lawyer Charles Johnson
Don’t risk a potentially life-ending conclusion to your case. Get in touch with Houston Lawyer Charles Johnson now. In drug possession defense criminal cases, Attorney Johnson will work to prevent the case from becoming charged as drug distribution, that carries a lot more severe penalties. This individual will conduct a thorough investigation into law enforcement procedures, looking for evidence of constitutional misconduct which will permit him to file motions to dismiss particular evidence. He will also present virtually all helpful background info about his client to the court, to be able to persuade the court that the client isn’t a distributor. If dismissal of the criminal charges isn’t feasible, he will argue for alternative sentencing choices, including enrollment in a drug therapy program and/or perhaps community service.
The laws regarding drug possession have received significant scrutiny for numerous years. The latest trend is to really encourage rehab choices for non-violent drug offenders. Countless numbers of drug courts have been established to offer long-term counseling, sanctions, benefits, along with other programs to participants. Completion of these programs frequently results in a lessened or even dismissed criminal sentence. These types of programs are appearing to be much more cost effective and more successful than the mandatory minimum laws regarding drug possession. For additional details on laws regarding drug possession, get in touch with Houston Lawyer Charles Johnson. He will be able to help you get your life back on track.
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