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Arrested for DWI in the Houston Area? Houston DWI Lawyer Charles Johnson

Finest Houston Criminal Defense AttorneyThe Charles Johnson Law Firm provides the highest level of representation in assisting our clients through the rigors of a DWI case. After you are charged with DWI in the Houston area, you are confronted with an unpleasant truth: anyone who drinks and drives is subject to arrest, whether or not they are actually affected by alcohol. However, being charged does not mean being convicted. Contact Houston DWI Lawyer Charles Johnson directly anytime day or night at (713) 222-7577 to discuss your case.

 

Hire the Best Houston DWI Lawyer: The Charles Johnson Law Firm

When someone gets arrested for a DWI, they get a lot of advice from almost everyone around them; friends, family, co-workers, and sometimes even the arresting officer gives you advice about what to do. It probably seems like everyone has a different answer for what is “the best thing to do.” And then you may have received some annoying letters from attorneys who do not even know you, some of which can be very intimidating, frightening, or just plain obnoxious.

The fact is that no two DWI’s are alike, because penalties and options vary depending on the facts of what happened, your prior record, the county and city you were arrested in, and the status of your driver’s license.

To get superior DWI representation, you need the best of these three things:

KNOWLEDGE.
The Best Houston DWI lawyer will be familiar with the city and county of your offense and should know how that jurisdiction treats DWI cases like yours. Houston Lawyer Charles Johnson is aware of the current DWI statutes and case law, which changes all the time. Finally, your DWI lawyer should take the time to know about your situation so the goals of your case suit your individual needs.

STRATEGY.
DWI cases are not easy to win, and the justice system is not about to do any favors for DWI offenders in today’s anti-DWI society. An effective strategy is one that preserves every possible opportunity to impact the various penalties you will be facing. That is the key to superior DWI Defense Strategy: preserving and taking advantage of opportunities. Whether it is for purposes of arguing the issues of your case, negotiating a settlement, or controlling the timing of the penalties you will be facing, a solid strategy will help you come out of this with as little damage as possible.

DEDICATION.
The Best Houston DWI Attorney will devote an adequate amount of time and resources to your defense. You do not want an attorney that does not take the time to explain the ins and outs of your case to you every step of the way. You DO want a DWI lawyer who is passionate about defending DWI cases. Our DWI clients have taken advantage of our Knowledge, Strategy, and Dedication for honest solutions to their DWI problems. Don’t let another day go by before you start working on your case. Contact the Best Houston DWI Lawyer Charles Johnson today at (713) 272-4586 for a free case evaluation.

About DWI in Texas

In Texas, the legal limit for intoxication is .08 BAC. If an officer thinks your driving is impaired, you can still be stopped and arrested for DWI regardless of your BAC. Penalties get worse with every DWI offense.

Texas is a national leader in many areas―unfortunately, one of these is in the number of accidents and deaths related to driving while intoxicated (DWI). Each year, thousands of Texans are involved in this tragedy; about 2,000 of them die.

Texas is also a zero-tolerance state for underage drinking; any detectable amount of alcohol in drivers under 21 is a crime. Yet young drivers account for many alcohol-related traffic accidents, and the age group with the most violations and accidents are those between 21 and 34. Remember, teens and young people are actually more prone to reaching higher alcohol concentrations more quickly than older drinkers. Size and body weight also play a role. Big Uncle Fred may be able to toss back those shots of tequila and maintain an allegedly safe BAC but younger, smaller people may not be able to accomplish this feat.

While a DWI conviction requires a BAC of 0.08% or above, any driver can be cited for “driving while impaired” by drugs or lower concentrations of alcohol.

Texas DWI Penalties for Drunk Driving

Driving while intoxicated, first offense, is a Class B Misdemeanor that is defined at Texas Penal Code §49.04. That provision states that, “A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place”.

This definition sets forth the elements that must be proven to sustain a conviction.  Those elements are:

  • The defendant, on or about a particular date
  • Was operating a motor vehicle
  • In a public place (street, highway, beach, parking lot, etc)
  • In a particular county
  • While intoxicated The Texas legislature has specifically defined the term “intoxication”, as that term is used for prosecution of DWI cases {Texas Penal Code §49.01(2)}

In addition, there are two definitions to encompass those who do or do not submit to chemical testing:

1) “not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or

2) having an alcohol concentration of 0.08 or more.”

It is important to note that the law provides for intoxication by the introduction of any intoxicating substance into the body. This is designed to make our roadways safe from dangerous drivers.

Typically, proof at trial is restricted to alcohol unless some statements or other indications suggest that the driver has become impaired by some other substance.  Equally as important, being on prescription drugs is not a defense to a DWI prosecution. If the label suggests that ingestion will impair one’s ability to operate a motor vehicle or machinery, taking such medicine and driving may subject you to DWI arrest and conviction.

At trial, the State therefore may prove intoxication in three (3) different ways:

  • not having the normal use of physical faculties OR
  • not having the normal use of mental faculties OR
  • having an alcohol concentration of 0.08 or more

The jury does not have to be unanimous on the manner and means of intoxication, only that the person was intoxicated.

Plus, intoxication must occur and be proven to occur while driving. Many other States provide for prosecution of a “lesser included” offense other than DWI (i.e. reckless driving, impaired driving, driving under the influence, etc.). Texas however has no lesser included offense of DWI. Some counties offer plea bargain agreements to other charges than DWI, but they are the exception and not the rule.

Classifications and Range of Punishment for DWI Conviction

DWI, 1st Offense:  Class B Misdemeanor in Texas

Fine

A fine not to exceed $2,000.

Jail

Confinement in the County Jail for a term of not less the 72 hours nor more that six (6) months.

Open Container

If there was an open container of alcohol in your car when arrested, the minimum term of confinement is six (6) days in the county jail.

Community Service

Texas law mandates that a judge order not less than 24 hours nor more than 100 hours.

Absent unusual facts, most persons convicted of a first offense DWI are granted community supervision (“probation”) of any confinement ordered. The general length of DWI probation is from 1-2 years. There are also conditions of community supervision ordered that are fairly standard in most courts. Typical conditions imposed are: Drug/Alcohol Evaluation. A person convicted of DWI will be required to submit to evaluation for probability of committing DWI in the future and/or to disclose a potential problem with alcohol or drug abuse. If a problem is detected, additional terms and conditions of probation are ordered to be administered through the Community Supervision Department. Attend and complete an approved DWI Education class within 180 days from the date of conviction (Satisfying this requirement will avoid the one (1) year drivers license suspension, unless if you were a minor (under 21) at the time of the offense.) Attend and complete a Victim Impact Panel. This is a forum that presents victims of drunk drivers to address persons convicted of DWI and warn of the dangers and perils of driving while intoxicated. Work faithfully at suitable employment, commit no other crimes, remain at the same residence and employment unless notification is given to the community supervision officer, report monthly to the supervision office, pay all fines and costs in a timely manner. Pay a monthly supervisory fee. Perform a specified hours of community or volunteer service.  NOTE: If convicted, you will be given an Order Granting Probation. This Order will be specific and unique to your case and fully sets forth the terms and conditions of your probation which apply to you. It is the blueprint for your probation.

Additional Conditions of Probation that may be Ordered:

If your case presents unusual facts (accident, alcohol problem, prior alcohol contacts, bad driving record etc.), additional conditions may be ordered. Most conditions are designed to address a problem that appears from the facts or alcohol/drug evaluation that is performed on the subject after conviction. Again, a specific order is given after each conviction. The following list is only a general discussion of conditions that have been imposed in some DWI cases in my experience and may not apply to you.

Deep lung air device

This provision requires that you install and maintain a device on any car which you intend to drive during probation. The device requires a breath sample before it will allow your car to start. Some devices require periodic breaths while driving. This condition is sometimes recommended after an unfavorable drug/alcohol evaluation during a first-offense probation, and is almost always ordered as a condition of bond on a subsequent offense arrest.

Alcohol Treatment

Attendance at AA or other counseling programs offered through the probation department. In extreme cases outpatient programs may be ordered. This condition is recommended after an unfavorable drug/alcohol evaluation.

Consume no alcohol

Most courts require that a person not consume any alcohol during probation. This provision is monitored by periodic and random urinalysis at the probation office. Some courts will not even allow a probationer to enter a bar, tavern or lounge where alcohol is sold and consumed.

Confinement

Again, in some extreme circumstances, the Court may order that a DWI offender serve confinement in the county jail as a condition of being granted probation.

Restitution

If there was an accident followed by a DWI arrest, and if your insurance company has not paid damages to the other party, restitution of any unpaid amounts will be ordered by the Court as a condition of probation.

Enhanced Penalties (Prior alcohol or drug related criminal history)

Under Texas law, if it is shown that a person has been previously convicted of DWI, the punishment and penalties after conviction are increased or enhanced. The prior DWI conviction must have occurred within ten (10) years of the present arrest for DWI. Additionally, if a person has any prior DWI conviction within the previous ten year period (measured from dates of arrest), the State is then allowed to use any prior DWI conviction since obtaining a drivers license to enhance the accusation to a DWI, third offense. NOTE: Texas can use prior convictions that have occurred in other states for enhancement of punishment.

DWI, Second Offense: Class A Misdemeanor Special Condition for Jail Release on Bond:

It is important to note that if arrested and accused of a DWI Second or greater offense, Texas law now requires the Court to Order as a CONDITION OF RELEASE FROM JAIL ON BOND, that the person install and maintain a deep lung air device on the car that the person intends to drive and operate while charges are pending. The device requires a breath sample before it will allow you to start your car. They also require periodic breaths while driving to monitor and insure sobriety. New technology has made these devices “user sensitive” so that someone else cannot blow into the device for the driver.

Although this provision seems to run afoul of the presumption of innocence, Texas Courts have consistently held that such condition is necessary to protect a legitimate governmental interest in making public roadways safe for the motoring public.

Fine

A fine not to exceed $4,000.00.

Jail

Confinement in the County Jail for a term of not less than 72 hours nor more than one (1) year.

Community Service

Texas law mandates that a judge order not less than 80 hours nor more than 200 hours.

Deep lung air device

Typically deep lung devices are required for all DWI second offenders during probation.

Suspension of license

A person convicted of DWI, Second may have their driving privilege suspended for not less than 180 days or more than two (2) years.

DWI, Third Offense (or greater): Third degree FELONY

Fine

A fine not to exceed $10,000.00.

Jail

Confinement in the Texas Department of Criminal Justice, Institutional Division (Penitentiary) for a term of not less than 2 years nor more than ten (10) years.

Deep lung air device

Deep lung air devices are generally ordered on all persons convicted of three or more DWI’s both as conditions of bond and as conditions of any occupational or provisional licenses that may be awarded after conviction.

Community Service

Texas law mandates that a judge order not less than 160 hours nor more than 600 hours.

Suspension of license

A person convicted of DWI, Second may have their driving privilege suspended for not less than 180 days or more than two (2) years.

Other

A third conviction for DWI indicates a significant problem with alcohol to the Court or jury assessing punishment. Some type of rehabilitative treatment is therefore mandated in punishment if confinement in the penitentiary is to be avoided. In some cases an in-patient, incarceration program (Substance Abuse Felony Probation SAFP) is ordered. This program requires confinement in a State Facility for alcohol rehabilitation. After successful completion of the SAFP program, the person is then released and placed on probation for a term not to exceed ten (10) years. Another popular condition for habitual DWI offenders is a prescription for a drug named “Antabuse”. This drug will make a person violently ill if any alcohol is consumed. The alcohol can be contained in mouthwash or marinated food and will still have the same effect on the user. If a person has any type of liver problems, this drug can cause liver failure and death.

Texas law does not provide for any increased punishment after DWI, third offense. If a person presents a DWI, fourth offense or beyond, the typical punishment is confinement in the penitentiary from two (2) to ten (10) years without probation being granted. In some cases SAFP may be granted upon proper request and showing that it is appropriate.

Intoxication Assault

Third degree Felony “A person commits an offense if the person, by accident or mistake, while operating a …. motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another” {Texas Penal Code §49.07}. ” ‘Serious Bodily Injury’ means injury that creates a substantial risk of death or protracted loss or impairment of the function of any bodily member or organ”.

Fine

A fine not to exceed $10,000.00.

Jail

Confinement in the Texas Department of Criminal Justice, Institutional Division (Penitentiary) for a term of not less than 2 year nor more than ten (10) years.

Community Service

Texas law mandates that a judge order not less than 160 hours nor more than 600 hours.

Intoxication Manslaughter

Second Degree Felony “A person commits an offense if the person:

1) …operates a motor vehicle in a public place, and…

2) …is intoxicated and by reason of that intoxication causes the death of another by accident or mistake.”

Fine

A fine not to exceed $10,000.00.Jail: Confinement in the Texas Department of Criminal Justice, Institutional Division (Penitentiary) for a term of not less than 2 year nor more than twenty (20) years.

Community Service

Texas law mandates that a judge order not less than 240 hours nor more than 800 hours.

NOTE

If a person is involved in an accident where there is risk of death or death, a mandatory blood sample will be taken for analysis and use in the prosecution of either Intoxication Assault or Intoxication Manslaughter.

Administrative License Revocation (ALR) Program

What is an ALR Hearing?
Many Texas drivers who are arrested for driving while intoxicated (DWI) do not realize that a DWI arrest creates two separate cases, one civil and one criminal.

Specifically, a DWI arrest results in both a criminal charge, and usually initiates a civil proceeding against the arrested driver’s driving privileges called an Administrative License Revocation, or ALR.

An ALR suspension is initiated against an arrested driver when he either refuses to submit to breath or blood testing, or alternatively, fails a breath or blood test. The legal authority to impose an ALR suspension against a driver lies in the Texas implied consent statute.

This law states that each person who operates a motor vehicle on Texas roadways has given his or her implied consent to provide a specimen of breath or blood if arrested for DWI and provided with the applicable consequences of refusing to submit to testing.

Notice of ALR Suspension
Many police officers, after arresting a citizen, will tell the arrested driver that if he does not agree to take a breath or blood test that his license will be automatically and immediately suspended.

This is incorrect. When making an arrest for DWI, peace officers are required to take possession of any Texas license issued by this state and held by the person arrested and issue the person a temporary driving permit that expires on the 41st day after the date of issuance. Further, a request for a hearing to challenge the proposed suspension will delay any ALR sanctions until a hearing takes place.

Hearing Request Provisions
ALR suspensions are automatic unless you request a hearing to challenge the suspension, in writing, WITHIN FIFTEEN (15) DAYS after receiving notice of suspension from the arresting agency on a Department of Public Safety approved form. This document is generally received on the day of arrest.

If a hearing is not requested in a timely manner, the suspension will automatically begin on the forty-first (41st) day after notice was received. If a hearing is requested, no action will be taken regarding suspension until after the hearing has taken place, even if the hearing takes place more than forty days after the arrest.

The ALR Hearing
The burden of proof at an ALR hearing is on the Department of Public Safety. Once a driver or his attorney has made a timely request for an ALR hearing, no suspension may be imposed against the driver until the Department of Public Safety proves the following elements by a preponderance of the evidence at the hearing:

  1. That there was reasonable suspicion to stop or probable cause to arrest the driver;
  2. That probable cause existed that the driver was driving or in actual physical control of a motor vehicle in a public place while intoxicated;
  3.  That the driver was placed under arrest and was offered an opportunity to give a specimen of breath or blood after being notified both orally and in writing of the consequences of either refusing or failing a breath or blood test; and
  4. That the driver refused to give a specimen on request of the officer, or, that the driver failed a breath or blood test by registering an alcohol concentration of .08 or greater.

Suspension Provisions for Adult Drivers
Without any prior alcohol or drug related contacts against the accused driver during the previous 10-year period, your license will be suspended for 90 days if your chemical test result is over a 0.08% or 180 days if you refuse a chemical test. If you have a prior alcohol or drug contact within ten years, your license will be suspended for one year if your chemical test is over 0.08% or 2 years if you refuse a chemical test. In certain circumstances you may be eligible for an Occupational License.

Possible Defenses for DWI Charges

In deciding which defenses could apply in your driving while intoxicated (DWI) case, Houston Drunk Driving Lawyer Charles Johnson will look at all the evidence produced by the police and interview witnesses. Some common defenses seen in DWI cases include:

Driving Observation Defenses
The prosecutor always relies (sometimes exclusively) on the arresting police officer’s testimony about how a DWI suspect was driving, including:

  • Very slow speeds
  • Uneven speeds (very fast, then very slow, for example)
  • Weaving from one side of a lane to the other
  • Crossing the center line of the highway
  • Running a red light
  • Hesitation in going through a green light

A good defense attorney will argue that there are many different explanations for these driving behaviors that don’t have anything to do with being alcohol-impaired.

Behavior Observation Defenses
An officer may also testify as to a DWI suspect’s appearance and behavior when questioned, including:

  • Slurred speech
  • Bloodshot eyes
  • Inappropriate joking or incoherent speech
  • Stumbling or not being able to walk very far
  • Pupil enlargement

Defenses to these observations that don’t have anything to do with being intoxicated may include:

  • Lack of sleep
  • Allergies
  • Contact lenses
  • Stress due to personal circumstances
  • Medications
  • Foods recently ingested
  • Nervousness over being stopped by police
  • Physical impairments
  • Field Sobriety Test Defenses

When an officer suspects you may be too intoxicated to drive, he or she will likely ask you to perform what are called “field sobriety tests.” These tests are designed to assess your physical and mental alertness, and can include:

  • Walking a straight line
  • Walking backwards
  • Reciting the alphabet, frontwards or backwards
  • Standing on one leg
  • Officers also sometimes rely on what’s called a “nystagmus” test, in which the suspect is asked to shift eye gaze from one side to the other while the officer shines a light in his or her eyes. The theory is that the gaze of someone who is impaired by alcohol or drugs will be jerky rather than smooth.

The defenses to field sobriety tests are often the same as with officer observations. Medications and lack of sleep can make it considerably more difficult to perform these tests. Many people also have physical impairments caused by injuries – or simply aging -that make it impossible to perform these tasks under ideal conditions.

The Best Houston Lawyer will cross-examine the arresting officer in detail as to whether the officer asked you if you had physical impairments or there were particular circumstances that would make it difficult to perform the tests. He may also point out to the jury that many jury members may have similar difficulties performing the tests, such as by asking the jury if they could recite the alphabet backwards under the best of circumstances.

Blood Alcohol Content Defenses
When you consume alcoholic drinks, the alcohol is absorbed into your blood stream. The level of alcohol in your blood, called the Blood Alcohol Content (“BAC”) can be measured by different tests. In all states, you’re presumed to be drunk and unable to safely operate a vehicle if your BAC is .08 or greater. This measurement means that your blood contains eight/ one-hundredths percent of alcohol.

All states have lowered the BAC level defining intoxication to .08, and have “zero tolerance” laws that make it illegal for people under 21 to operate a vehicle with little or no amount of alcohol in their blood.

Many states also have more severe DWI or DUI penalties for driving with a high BAC, which is often defined as a level measuring more than .15 to .20.

Your BAC can be determined from a blood draw, which is often automatically taken if you are involved in an accident and there is a suspicion that you may have been drinking. Your blood will also be drawn if you are taken to the hospital because the police are concerned that you may have had so much to drink that you are in danger of alcohol poisoning and should be hospitalized for observation and/or treatment.

Most DWI suspects have their blood tested by blowing into a breath testing device. These devices can be faulty and not well-maintained or properly calibrated. They can register false results based on your consumption of food and other non-harmful substances other than alcohol or drugs.

The Best Houston DWI Lawyer will likely subpoena police records on how the breath testing machine operates and was maintained and calibrated. He may also want to bring in expert testimony that the particular breath testing machine the officer used is notorious for malfunctioning.

Depending on the jurisdiction, another defense to breath testing machines arises when the physical breath tests aren’t preserved as evidence, allowing for independent testing later. Your attorney can argue that there’s no way to know if the machine that was used was accurate, if your breath samples can’t be independently tested.

Many of the defenses against DWI charges require a lawyer’s expertise and experience. If you have been arrested for a DWI offense in Texas, do not try to handle the legal situation yourself. Contact the experienced and respected Texas DWI defense attorneys at the Charles Johnson Law Firm right away to make sure that your rights are protected.

We can be reached 24 hours a day, 7 days a week.
Call us at 713-222-7577 or toll free at 877-308-0100.
Major Credit Cards Accepted.

Arrested for DWI in the Houston Area? Houston DWI Lawyer Charles Johnson
by Charles Johnson

Houston Lawyer: Arrested For Child Pornography?

Top Houston Criminal Defense Lawyer

Houston Lawyer Charles Johnson aggressively defends clients charged with a sexual offense. He handles all sexual offense charges, whether in state or federal court, and whether the sex crime allegations are against children or adults.

Parties in contentious divorce or custody proceedings have been known to encourage children to say the other parent “touched” them a certain way or otherwise imply molestation. Child care workers, pastors, teachers, coaches, and others are frequently falsely accused. Parents have even been known to target individuals for extortion by coaching children. They may be coached by well-meaning social service and health care professionals, law enforcement officers, and prosecuting attorneys who want to make sure they obtain a conviction regardless of the truth.

Allegations of sex crimes are taken very seriously in Texas, and across the nation. With more stringent penalties being imposed, a false claim unchallenged or a single error in judgment can require you to be a lifelong member of the sex offenders’ registry and database. Before your reputation is devastated, invoke your right to an attorney and your right to remain silent. Contact Houston Criminal Lawyer Charles Johnson for a free phone consultation when you are under investigation for sex crimes or if charges have been brought against you for anything from possession and distribution of child pornography to sexual assault and rape.

How is Child Pornography Defined?

Federal and state laws make it a crime to produce, possess, distribute, or sell pornographic materials that exploit or portray a minor. Increasingly, child pornography laws are being utilized to punish use of computer technology and the Internet to obtain, share, and distribute pornographic material involving children, including images and films.

Under federal law (18 U.S.C. §2256), child pornography is defined as any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where

  • the production of the visual depiction involves the use of a minor engaging in sexually explicit conduct; or
  • the visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or
  • the visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.Federal law (18 U.S.C. §1466A) also criminalizes knowingly producing, distributing, receiving, or possessing with intent to distribute, a visual depiction of any kind, including a drawing, cartoon, sculpture or painting, that
  • depicts a minor engaging in sexually explicit conduct and is obscene, or
  • depicts an image that is, or appears to be, of a minor engaging in graphic bestiality, sadistic or masochistic abuse, or sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex and such depiction lacks serious literary, artistic, political, or scientific value.

Sexually explicit conduct is defined under federal law (18 U.S.C. §2256) as actual or simulated sexual intercourse (including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex), bestiality, masturbation, sadistic or masochistic abuse, or lascivious exhibition of the genitals or pubic area of any person.

Who Is a Minor?

For purposes of enforcing the federal law (18 U.S.C. §2256), “minor” is defined as a person under the age of 18.

Is Child Pornography a Crime?

Yes, it is a federal crime to knowingly possess, manufacture, distribute, or access with intent to view child pornography (18 U.S.C. §2252). In addition, all 50 states and the District of Columbia have laws criminalizing the possession, manufacture, and distribution of child pornography. As a result, a person who violates these laws may face federal and/or state charges.

Where Is Child Pornography Predominantly Found?

Child pornography exists in multiple formats including print media, videotape, film, CD-ROM, or DVD. It is transmitted on various platforms within the Internet including newsgroups, Internet Relay Chat (chatrooms), Instant Message, File Transfer Protocol, e-mail, websites, and peer-to-peer technology.

What Motivates People Who Possess Child Pornography?

Limited research about the motivations of people who possess child pornography suggests that child pornography possessors are a diverse group, including people who are

  • sexually interested in prepubescent children or young adolescents, who use child pornography for sexual fantasy and gratification
  • sexually “indiscriminate,” meaning they are constantly looking for new and different sexual stimuli
  • sexually curious, downloading a few images to satisfy that curiosity
  • interested in profiting financially by selling images or setting up web sites requiring payment for access

Who Possesses Child Pornography?

It is difficult to describe a “typical” child pornography possessor because there is not just one type of person who commits this crime.

In a study of 1,713 people arrested for the possession of child pornography in a 1-year period, the possessors ran the gamut in terms of income, education level, marital status, and age. Virtually all of those who were arrested were men, 91% were white, and most were unmarried at the time of their crime, either because they had never married (41%) or because they were separated, divorced, or widowed (21%).3

Forty percent (40%) of those arrested were “dual offenders,” who sexually victimized children and possessed child pornography, with both crimes discovered in the same investigation. An additional 15% were dual offenders who attempted to sexually victimize children by soliciting undercover investigators who posed online as minors.4

Who Produces Child Pornography?

Based on information provided by law enforcement to the National Center for Missing & Exploited Children’s Child Victim Identification Program, more than half of the child victims were abused by someone who had legitimate access to them such as parents, other relatives, neighborhood/family friends, babysitters, and coaches.

What is the Nature of These Images?

The content in these illegal images varies from exposure of genitalia to graphic sexual abuse, such as penetration by objects, anal penetration, and bestiality.

Of the child pornography victims identified by law enforcement, 42% appear to be pubescent, 52% appear to be prepubescent, and 6% appear to be infants or toddlers.

Possible Punishment for Sexual Exploitation of a Minor/Child Pornography

If the photographs include children who are fourteen (14) years of age or younger, it is a Dangerous Crimes Against Children (DCAC) and carries a very severe penalty. A first offense carries the following punishment for each and every conviction: ten (10) years minimum in prison; seventeen (17) years presumptive in prison; twenty-four (24) years maximum incarceration.

If convicted of one previous predicate felony (which includes a prior DCAC, among other serious felonies), the range of punishment increases to a minimum twenty-one (21) years, presumptive twenty-eight years (28), and maximum thirty-five (35) years. Because this is a DCAC, 100% of the prison time must be served before being eligible for release. In addition, if the person is convicted of two (2) counts, they must be run consecutive to each other (i.e., the minimum is now twenty (20) years in prison, and all other ranges double). This is why these charges are sometimes referred to as “life enders”.

The maximum penalty on a Sexual Exploitation charge actually carries more time than the maximum penalty on a Second Degree Murder charge. A conviction will require you to register as a Sex Offender for the rest of your life, and you are not allowed to have any contact with anyone under the age of eighteen (18) (this includes your own children), without going through numerous testing procedures and only with the consent of your Probation Officer.

If the child was ages fifteen – seventeen (15-17), it is not sentenced pursuant to the DCAC statute. A first offense class two (2) felony, carries punishment of probation with zero (0) days in jail up to one (1) year in jail, or prison of three (3) years to twelve and one half (12.5) years of incarceration. If the person has one (1) allegeable historical prior conviction, then the “prison only” range is four and one half (4.5) years to twenty-three and one quarter (23.25) years in prison. If the person has two (2) allegeable historical prior convictions, then the “prison only” range is ten and one half (10.5) to thirty-five (35) years of incarceration.

Possible Defenses for Sexual Exploitation of a Minor/Child Pornography

The critical defenses to Child Porn charges involve showing that the person did not “knowingly” possess, receive, or do any of the listed actions with the images. One way of asserting this defense is by presenting evidence that the defendant was not the person who accessed the images. If it can be shown that there were multiple users who had access to the computer, and who did in fact use the computer often, then it is much more difficult for the State to prove the defendant actually accessed the images, rather than some other person. This defense is especially appropriate when the defendant lacks any other sexual crime convictions. In order to assert this defense, we need to present a variety of our own evidence to contradict whatever has been presented by the prosecution. Typically, the State would normally have executed a search warrant and confiscated the computer involved, then searched for the “IP address” and passwords that were used to trace the activates to a particular time, date, and user. Before they do any of this they will have “cloned” the hard drive in order to avoid any accusations that they have somehow tampered with the computer by adding images.

Another typical defense is that the defendant inadvertently came across the images on his computer, and thus it was not a “knowing” exchange. It is an affirmative defense to Child Pornography charges if a person timely reports that they have received unsolicited images on their computer. Usually, reporting within three (3) days of discovering the child pornography is considered to be “timely reporting.”

At the Charles Johnson Law Firm, we handle a very high percentage of “Sex Crimes” cases. We have one of the largest libraries with research materials devoted to challenging accusations involving sex crimes. Registering as Sex Offender has drastic consequences and leaves a black mark on your record; do not underestimate the potential severity of this charge.

Additionally, because our law firm fights conviction from all angles, we would assert a wide range of defenses and challenges to constitutional violations that apply in all criminal cases. The possibilities are numerous and diverse. One of those we frequently assert is a “Miranda rights violation.” In Texas, the standard of whether any incriminating statement (i.e., a statement which tends to admit guilt) is admissible into evidence is based upon a “voluntariness” standard. If we can demonstrate that the police coerced you (i.e., intimidated or tricked you) into making a confession or inculpatory statement, or that they did not properly read you your Miranda Rights, then we can suppress those statements and any evidence gathered as a direct result of those statements.

In addition, the “denial of right to Counsel” is another common defense which is often raised. This occurs when a suspect is in custody and requests to speak to their attorney, but is denied and questioning continues. Other defenses may include challenging the validity of any search warrant, or whether there were any “forensic flaws” during the investigation of your case. Depending on what else you have been charged with, this could include exposing flawed procedures regarding blood, breath, and urine testing; fingerprints analysis; DNA testing; computer analysis/cloning hard drive procedures; forensic financial accounting reviews; etc. Lastly, one of the most common defense tactics is exposing sloppy or misleading police reports which include everything from misstatements, false statements, flawed photo line-ups and inaccurate crime scene reconstruction. It is important to hire a skilled lawyer to defend you who has knowledge of all the possible defenses to assert in your case.

Do Not Make Statements. Obviously, the best defense begins before a defendant is ever charged. Often, in a misguided attempt to help law enforcement, defendants make statements that are twisted and turned into prosecutorial evidence. It is important to remember not to allow yourself be interviewed government agencies without an attorney present.

Any interview will be sent to the police and the county attorney’s office and can be used against you. An obvious corollary is do not let yourself be interviewed again by the police without your attorney present.

Computerized Evidence. Internet child pornography is a growing offense across the nation. Often files can be downloaded to a computer without the user knowing the content of the download. In such cases the electronic file will often include tell tale electronic evidence about the file, where it came from and its date of download. Using this evidence or challenging law enforcement’s sloppy investigation and acquisition of potentially exculpatory information is the best way for a defense lawyer to prove actual innocence.

Examine Prosecution Expert’s Background. An important part of every case is the ability to counter the reports and testimony of computer professionals, caseworkers and “experts” who examine pornographic evidence. To effectively counter a prosecution expert, the defense attorney must be well educated on the expert’s education, work history, published works and testimony in prior cases.

Use a Polygraph. When it is advantageous to the defense against a sexual assault, defense attorneys should obtain a credible polygraph examination from a respected professionals.

Texas Sex Offender Registration

In addition to the prison terms and fines one can face when convicted of any of these offenses, you may be required to register as a sex offender. This means you will be tracked for the rest of your life.

Knowing where to turn when facing charges as dark as these can be difficult. You have likely already seen people turn their backs on you because of the charges and you haven’t even gone to trial. You need someone in your corner fighting for your good name.

You are innocent until proven guilty. With my help we will see to it that you get the best possible results on your day in court.

Houston Child Pornography Defense Lawyer: The Charles Johnson Law Firm

Attorney Charles Johnson defends against sexual assault allegations throughout Texas, no matter how small or large the city. He has developed a unique understanding of the dynamics of these very serious cases. His competent, aggressive and thorough representation has made him a leading criminal defense attorney in dealing with sex and pornography related criminal charges.

Defending in these areas is a very specialized area of criminal defense. Unfortunately, the very accusations themselves are often treated as conclusive proof of criminal activity. If Houston Lawyer Charles Johnson is retained at an early stage in the investigation, he is sometimes able to avoid charges altogether. At a minimum he is often able to avoid the trauma and embarrassment of his client being arrested at home or at the workplace by contacting law enforcement and the court in order to make the necessary arrangements.

Depending on the facts of your case and the evidence against you, Houston Child Pornography Lawyer Charles Johnson will work to help you beat a false accusation or try to lessen the punishment. We understand your freedom is at stake and that a conviction of possession of child pornography may result in lifetime registration as a sex offender. To protect your rights and liberty, we conduct thorough investigations to prepare for trial or to minimize the consequences or sentence.

Houston Criminal 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.
Major Credit Cards Accepted.


Arrested For Child Pornography? The Leading Houston Sex Crimes Lawyer Offers a Powerful Defense

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Houston Lawyer » Can’t Locate Employment Due To A Criminal History?

Finest Houston Criminal Defense Lawyer

In the event you have been found guilty of a criminal offense, you might wonder if you will be able to find job opportunities. Employers have become increasingly interested in finding out whether or not applicants have criminal records. Part of the concern stems from recent jury decisions which have been rendered against employers for negligently employing individuals with criminal backgrounds who consequently caused problems for other people whilst at work. An additional concern for employers concerns whether or not they’ll need to divulge the criminal conviction. For instance, in cases where a business is attempting to raise capital, it might need to create particular disclosures to a bank. Will the business need to reveal that an employee has a criminal conviction for money laundering or embezzlement?

The laws about which criminal history records an employer should or might access, what an employer might ask a would-be employee and what the job applicant should reveal vary widely among states. In the event you have a criminal history and are searching for a job, it’s in your greatest interest to contact the Best Houston Lawyer at the Charles Johnson Law Firm to ensure that you go into the employment search completely informed of your legal rights.

Contradictory Public Policies

On the one hand, the public would like to reintegrate into society individuals with criminal histories, rehabilitated and productively employed. A routine schedule and normal income reduce the likelihood that an individual will reoffend, however an individual with a criminal history might encounter prejudice within the job application process. However, it’s essential to safeguard the public from contact with past offenders who might have propensities to re-commit. For instance, convicted sex offenders must not work with kids or vulnerable adults.

Just How Much to Reveal

Based on the state guidelines, an applicant might not need to reveal potentially detrimental info, like arrests not leading to convictions or convictions for minor matters. A few states have procedures to judicially “erase” a criminal history. Houston Criminal Attorney Charles Johnson can certainly help figure out whether or not you might be eligible to have a conviction sealed, expunged or legally minimized.

Suggestions for Employment Re-entry

  • Be truthful. Employers are interested in workers they are able to trust, and nearly all of the information on a job application may be checked and verified. Even if it might close the door to particular positions, revealing the truth will be the greatest method to receive a job that the applicant can retain over the long haul. Keep in mind, in many states not all convictions need to be revealed nor can would-be employers ask for particular info.
  • Begin the job search with loved ones, pals and acquaintances that might be more likely to take a chance on employing somebody they are familiar with, in spite of a criminal background.
  • Don’t anticipate the very first job following a conviction to be your perfect job. It’s much more essential to get started somewhere and produce a track record, because employers realize that a great indicator of future job performance is prior job performance. Think about temporary or entry-level positions to develop your résumé.
  • Recognize where the employer is coming from. It must balance its legal and ethical obligations to you, to it’s workers and towards the public.
  • Investigate career services. A good number of states have public agencies that administer programs to assist individuals with discovering their perfect career, and some were created specifically for those with criminal histories.
  • Stay away from alcohol & drug use. Many employers call for employee drug testing.
  • Think about the nature of your earlier criminal offense. Apply for jobs where that type of criminal offense is much less likely to be an matter of concern.
  • Hire the Finest Houston Lawyer. Don’t take any chances.

    Completing a jail term or paying a fine may be just part of the cost of a criminal conviction. The conviction may also impact post-conviction occupation opportunities. However, there are employers that would like to give those with criminal records a chance in a suitable environment. Just one job – any type of job – may be the very first step toward rebuilding a career and a new life. Houston Lawyer Charles Johnson can advise you about numerous choices and provide suggestions on preparing for the future.

    Houston Criminal 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.
    Major Credit Cards Accepted.

    Houston Lawyer: Arrested For Drug Possession? Here’s The Guidance You Need

    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.

    Most Qualified Houston Lawyer

    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.

    Houston Lawyer » Do You Need A Criminal Appeal?

    Leading Houston Lawyer for your Criminal Appeal

    What is a Criminal Appeal?

    A Criminal Appeal is known as the request from any party in the lower court proceeding to the higher (appellate) court requesting the appellate court to examine and alter the decision of the lower court. If the defendant in the criminal court case is found guilty of a charge or charges, this defendant will have the legal right to appeal that conviction or the penalties or sentencing. It’s common for defendants who have been found guilty to appeal his / her convictions.

    Top Houston Criminal Appeal Lawyer: The Charles Johnson Law Firm

    The defendant in the criminal trial can appeal right after the individual is found guilty at trial. The truth is, it’s very typical for defendants who have been found guilty to appeal their convictions and/or sentencing. Typically only the defendant in the criminal trial can appeal. The prosecutor cannot appeal if the defendant is acquitted (found “not guilty”) at trial. A prosecutor cannot place the same defendant on trial for the very same charge with the exact same evidence. This sort of retrial is referred to as “double jeopardy.” Double jeopardy is specifically disallowed under the 5th Amendment of the US Constitution. Nevertheless, prior to or during the criminal court trial, the prosecutor might be able to appeal specific rulings, for instance when a judge has ordered that some evidence be “suppressed”. Appeals that occur in the course of a trial are known as interlocutory appeals. Typically, appeals can be quite complex; the appellate court has a tendency to implement technical rules for carrying on with a criminal appeal.

    In criminal court cases, the federal court can review a conviction once all of the ordinary appeals have been completely utilized. A defendant who has been found guilty can request one such review in the petition for the writ of habeas corpus , Latin for “you have the body.” Merely a small number of these types of petitions are generally granted. In death penalty legal cases, these types of proceedings have grown extremely controversial. Since the judicial or prosecutor’s error in the death penalty case has such severe penalties, courts evaluate petitions for writs of habeas corpus cautiously.

    The procedures of appellate courts encompass the guidelines and procedures through which appellate courts evaluate trial court decisions. The Federal appellate legal courts observe the Federal Rules regarding Appellate Procedure. The State appellate courts adhere to their unique state rules involving appellate procedure. Both in state as well as federal jurisdictions, appeals are normally limited to “final judgments.” There can be exceptions to the “final judgment rule,” such as cases of basic or serious error because of the trial court, questions involving subject-matter jurisdiction of a trial court, or constitutional concerns.

    The issues under evaluation in appellate court focuses on written briefs offered the parties. Such complex documents describe the concerns for the appellate court and outline the legal authorities and justifications supporting each individual party’s position. The majority of appellate courts don’t hear oral arguments unless there’s a specific request from the parties. Few jurisdictions permit oral argument as a matter of course. Where it’s permitted, oral argument is supposed to describe legal issues offered in the briefs and attorneys tend to be constrained to keep their oral presentations stringently for the issues on appeal. Typically, oral arguments are subject to a rigorously enforced time frame. This time restriction may be expanded solely upon the discernment from the court.

    Where are Appeals Filed?

    Generally, people can only file an appeal using the next higher court within the same system that the case begun. For instance, in the event that individuals wish to file any appeal from a decision in the state trial court, usually they could file their appeals just to the state intermediate appellate court. A party who loses at appeal can next appeal to the subsequent higher court within the system, normally the state supreme court. The state’s highest court is virtually always the last word on issues regarding that state’s law.

    How Much Does a Criminal Appeal Cost?

    To tell the truth, numerous appeals are often very inexpensive. If your appeal is centered on a single plainly defined issue of law, and all parties have organized strong briefs, could cost very little to appeal. However, appeals which include statements that the judgement had been contrary to the weight of the evidence generally will need both the printing of the entire trial history and intensive examination as well as briefing. These kinds of appeals are fairly expensive as they possibly require considerable amounts of attorneys’ time. Furthermore, they often times end up being significantly less successful.

    Houston Criminal Appeal Lawyer: The Charles Johnson Law Firm

    Managing the criminal appeal process is tough and time-consuming. Houston Lawyer Charles Johnson will help you prepare your strategy. Contact us now for a no cost preliminary consultation.

    Houston Attorney » Charged With DWI? Learn How to Beat It.

    Houston Lawyer Charles Johnson

    When the police suspect an individual has been driving under the influence, they will ask him/her to perform a series of standard tests, also named field sobriety tests. Field sobriety tests help law enforcement determine a driver’s level of intoxication by challenging his or her physical and mental coordination and capacity to follow instructions. They are also used to establish a probable cause for arrest.

    If you are pulled over for suspected DWI, be polite to the officer. On the other hand , do not respond to any questions about what you have had to drink or when.

    Politely refuse to undergo field sobriety testing, as this is not mandatory and you cannot be penalized for a refusal of this kind.

    The three standardized field sobriety tests used by Houston police officers are:

    The Horizontal Gaze Nystagmus (HGN): HGN refers to the involuntary jerking of the eyeball. When an individual is intoxicated, it is believed that his/her eyes are more likely to twitch. Through the HGN test, the police officer will hold an object in front of the driver and ask him/her to follow the object with his or her eyes. If the driver cannot follow the object, or if his/her eyes start twitching, then it is taken as a sign of intoxication. (Even so, it is very important to note that Nystagmus is medical and physiological condition that’s common in a large amount of individuals, even though they are sober)

    The One-Leg Test: the driver stands on one foot and raises the other leg six inches off the ground when counting out loud. The driver is expected to stand on one foot without raising his/her arms, losing balance, wobbling, hopping around, or putting the lifted leg down.

    The Walk and Turn Test: the driver takes nine steps in a straight line touching heel to toe, stops, and then repeats the action in the other direction

    In addition to these DWI tests, law enforcement officers may possibly require drivers to perform additional tests, including:

    • Finger to nose test
    • Reciting the alphabet
    • Counting backwards
    • Balancing tests

    Hire the Best Houston DWI Lawyer!

    If you did perform a field sobriety test and were arrested, it is important to get in touch with the Most Effective Houston Lawyer as soon as possible. Most law enforcement officers have already decided to arrest you at this point, and are at this point simply looking for more evidence to use against you in court. Many attorneys believe field sobriety tests are inaccurate, subjective, and designed for failure. There are many factors that can cause folks to appear intoxicated, most notably nervousness, age, lack of natural coordination, lack of proper instruction, weather, fatigue, illness, physical problems, disabilities, injuries, car headlights, weight, footwear, intimidation, and traffic distractions.

    Other important advice:

    After your criminal arrest, you have the right to remain silent. You do not need to answer questions or submit to formal questioning about the case. Although you should cooperate and be polite, you do not need to respond to questions about how much you have had to drink and when. Exercise this right, and you will have a much better potential for avoiding a conviction.

    You also have the right to legal counsel. This is a constitutional right that should be observed in order to provide defendants in criminal cases the opportunity to establish their innocence. By consulting a Houston DWI criminal defense lawyer as soon as possible subsequent to a DWI arrest, you will provide him or her a better chance of making a positive impact on your case.

    If you are arrested, be sure that you speak to the Texas DPS as soon as possible. You have only Fifteen calendar days to schedule an ALR (Administrative License Revocation) hearing regarding your license suspension. Failing to schedule this hearing will lead to the automatic suspension of your license.

    Most importantly, contact the Recommended Houston Criminal Defense Lawyer as soon as you can. Having a competent lawyer at your side as early in the process as possible will mean that your rights will probably be safeguarded and you will have the very best opportunity of avoiding license suspension and a conviction.

    Houston DWI Defense: The Most Dedicated Houston DWI Attorney

    If you have been arrested and charged for DWI, and you performed one or more field sobriety test, it is vital to hire an expert Houston DWI lawyer to investigate your case and represent you in the courtroom. The Top Houston DWI Attorney will use their expertise to fight the charges brought against their clients and protect their rights. They will question the arresting officer’s ability to properly conduct a field sobriety test, and make sure the police officer did not violate their clients’ rights in the course of the arrest. Furthermore, they will be dedicated to providing each client with personalized attention, viable alternatives, and aggressive DWI defense. They will not stop working until they acquire a favorable result, and see that justice has been served.

    Houston Lawyer » Ways To Improve Your Odds Of Avoiding a DWI Conviction

    Hire the Finest Houston DWI Lawyer!

    There are a few essential things it is best to realize in the event you are facing DWI criminal charges in or around Houston, Texas. The Leading Houston Lawyer will undoubtedly be happy to answer your questions about DWI and provide you essential case tips when you speak to them for a free of charge preliminary case evaluation.

    Case Tips Regarding your Houston DWI

    • If you happen to be stopped for suspected DWI, always be polite to the officer. However, do not answer any questions about what you have had to drink or when.
    • Politely refuse to submit to field sobriety testing, as this is not mandatory and you cannot be penalized for a refusal of this kind.
    • If you are arrested, be sure that you speak to the Texas DPS as soon as possible. You’ll have only Fifteen calendar days to schedule an ALR (Administrative License Revocation) hearing regarding your license suspension. Failing to schedule this hearing will bring about the automatic suspension of your license.
    • After your arrest, you have the right to remain silent. You do not have to respond to questions or undergo formal questioning regarding the case. While it is best to cooperate and be polite, you do not have to respond to questions regarding how much you have had to drink and when. Exercise this right, and you will have a far greater chance of avoiding a conviction.
    • You also have the right to legal counsel. This is a constitutional right that has to be observed in order to provide defendants in criminal cases the chance to prove their innocence. By turning to a Houston DWI lawyer as soon as possible following a DWI arrest, you will give your attorney an improved chance of making a positive impact on your case.
    • Most importantly, contact the Leading Houston DWI Attorney as soon as you can. Having a skilled attorney at your side as early in the process as possible means that your rights will undoubtedly be defended and you will have the very best opportunity of avoiding license suspension and a conviction.

    Hire the Finest Houston Lawyer!

    Experienced Attorney Charles Johnson of the Charles Johnson Law Firm can fight for your legal rights both during your ALR hearing and also throughout the entire criminal court process.

    The Most Qualified Houston Criminal Defense Lawyer has represented many clients who were dealing with DWI convictions and harsh legal penalties. With their guidance, clients have been able to battle their driving while intoxicated charges and obtain effective outcomes in court and at their Texas DPS ALR hearings. Dedicated Houston Criminal Attorney Charles Johnson is an aggressive, qualified litigator who is prepared to assist you. Call him today and he will help you get your life straightened out.

    Best Houston Lawyer

    The Houston Lawyer

    Everything You Need To Know About the Appeals Process in Texas

    What is the definition of an appeal?

    An appeal is a petition to a higher court by the losing party in a court action to overturn a lesser court’s judgment. The basis of an appeal has to be a reversible oversight in the application of the law at the trial court level (i.e., depending on the facts, the court plainly misapplied the law).

    In defense cases, a great appeal can target the conviction itself or perhaps the sentencing portion associated with the decision without any regard to the fundamental conviction. For instance, if the defendant is properly convicted of manslaughter but a judge sentences the defendant to a prison term which is beyond the limit of the law, the defendant will undoubtedly appeal the prison term while leaving the actual conviction itself intact.

    An appeal can be filed only after a final judgment or order has been reached by the trial court. This is quite simply for reasons of efficiency, so that the court system isn’t bogged down by delays and trials aren’t constantly put on hold while awaiting appeals associated with a judge’s every ruling.

    At the conclusion of a trial, the losing party may also construct direct appeals (e.g., motion for a new trial, motion for directed verdict) to the presiding judge to immediately overrule the jury’s judgement, nevertheless these are rarely victorious.

    Does an appeal constitute a new trial?

    No. In an appeal there won’t be any new issues provided or witnesses designated to testify. The appellate court will only assess the trial’s transcript and evidence offered during the trial to figure out whether there were errors with regard to either procedure or application of the law. Even if there were errors, when they are considered minor – legally designated “harmless error” – the judgment won’t be overturned or a new trial granted.

    Can any judgment be appealed?

    The short response is no, there isn’t any absolute right to an appeal. Every state has laws which outline the kinds of cases which appellate courts may review. There should be an error of law for an appellate court to review a case. The reality that the losing party did not like the decision is not really enough to sustain an appeal.

    That being said, even in administrative courts or lower level courts, if anyone’s constitutional protection under the law have been infringed upon, some may file suit to enforce their privileges and/or to revisit the original case.

    What is the definition of the appeals process?

    In Texas court proceedings, the appellant or petitioner (the party appealing the judgement) should file a notice of appeal within 30 days of the decision. In federal court, the deadline is 60 days. The filing of the notice of appeal begins the clock running on the appeals process and then there are prescribed deadlines from this point on. The petitioner submits a legal brief detailing the alleged discrepancies of law made by the trial court, and the respondent or appellee (the party that prevailed at the trial) creates a reply.

    Once the appellate court acquires both petitioner and respondent briefs, it will assess the arguments and make a determination of whether: a) there were errors of law made by the trial court, and additionally b) if perhaps the mistakes rise to the level of “reversible error” (highly serious errors). As mentioned above, benign discrepancies are likely to be disregarded by the appellate court.

    There might not be oral arguments given by petitioner and respondent. If the court chooses to hear oral arguments, the petitioner will present their arguments and additionally field inquiries from the judge(s) and after that the respondent will do the same. In the majority of appeals, this question and answer format may last 10-15 minutes per side.

    Whether the appeals court listens to oral arguments or issues a verdict established exclusively on the written briefs, the court will either: 1) affirm the decision; 2) demand a new trial; 3) change the ruling in some way; 4) give consideration to new facts or evidence (seldomly); or 5) in incredibly infrequent cases, may throw out the case completely.

    What is the likelihood of a successful appeal?

    The number of winning appeals is minimal. Appellate courts offer the trial court great freedom in conducting trials. The law doesn’t necessarily guarantee perfect trials, subsequently appeals courts can only overturn verdicts which contain clear, serious errors of law.

    Because of the flexibility appeals courts give trial decisions, petitioners bear a far greater responsibility in proving that errors of law happen to be considerable rather than harmless. If an appellate court can discover any satisfactory argument that the oversight could not have changed the verdict (and is therefore “harmless”), it will refuse to overturn the verdict.

    There will most certainly be, certainly, a number of cases where significant errors were made and appeals courts will overturn those verdicts. Particularly serious are charges that the trial court refused the law secured by the constitution, that include due process and equal protection rights.

    I lost my trial due to the fact that my attorney made stupid mistakes, can’t I depend on an appeal to correct them?

    Don’t rely on appeals to make up for any real or perceived deficiencies at trial. You should put all of your energy into the trial itself, which includes finding the proper lawyer to attempt the case. Successfully appealing a verdict simply because you had a deficient attorney is a difficult proposition. You can’t appeal because you basically had a poor lawyer.

    You can appeal on the basis that your attorney was so incompetent that you had been denied your 6th Amendment right to a fair trial (known legally as an “ineffective assistance of counsel” appeal). This occurs nearly exclusively in criminal defense circumstances and the standard for the appeal is really high – courts are incredibly deferential to the competency of attorneys and maintain a strong presumption that the lawyer’s assistance was within professional standards. To put it in perspective, there have been situations where an attorney has fallen asleep during a trial, yet the verdict was not overturned nor the case retried.

    Many cases aren’t eligible for appeal since the trial attorney did not object to a ruling during the trial, and therefore didn’t “preserve” that issue for appeal. For example, a written statement from a witness accusing a defendant of robbery is entered into evidence, but the witness does not testify at trial. The defense attorney does not object and the defendant is convicted based solely on the written statement. The Confrontation Clause of the 6th Amendment guarantees a defendant the right to face his accuser, a right which, if infringed, could form the basis for an appeal.

    Because the attorney neglected to object at trial to the admission of a written statement rather than live testimony, however, the defendant is regarded to have waived this priviledge and an appeal will possibly not be allowed on that issue.

    The example sounds absurd; an attorney waives your constitutional priviledge through ineptitude, yet your appeal on the basis of inadequate assistance of counsel fails – but it happens frequently. An appeals court may reason that calling the witness on the stand wouldn’t have had any beneficial effect for the defendant and therefore the decision not to object may possibly be considered a trial strategy. That’s the type of deferential latitude attorneys get in ineffective assistance of counsel appeals as well as the reason why it is important to select your attorney wisely at the beginning of the process and stay involved during each aspect of the trial.

    What is a writ?

    A writ is a directive from a higher court instructing a lower court or government official to take a specified action in accordance with the law. For instance, if a lower court decides to try a case that is outside of its jurisdiction, one or more of the legal representatives concerned may object and seek a writ of mandamus (writ of mandate) from an appeals court ordering the lower court to transfer the case to another jurisdiction.

    How do writs and appeals differ?

    Writs are extraordinary court orders and solely issued in cases where a moving party (the one seeking the writ) has no other available alternatives. In the case of the writ of mandamus from above, the moving party had to act quickly simply because the lower court improperly took the case. If the moving party had simply objected at trial and waited to appeal, a remarkable waste of time and money would have occured – and all for nada if the trial court improperly took the case.

    Generally, superior courts won’t review choices of a lower court until a final verdict is delivered, for the formerly discussed reasons of efficiency and leeway given to lower courts. Unlike appeals, which need a final verdict, writs are immediate orders and extraordinary in that the ordinary course of a trial is disrupted, potentially causing disorder and delay.

    Courts do not necessarily take such events lightly and superior courts do not issue writs often. A court will only issue a writ when a lower court wrongly decided an issue, permanent harm would happen to a party, and there are no other options.

    Courts could also issue writs, such as writs of attachment and execution, in order to force compliance with a court order by an unwilling party.

    What’s the definition of a writ of habeas corpus?

    A writ of habeas corpus is a judicial mandate to a prison official ordering that an inmate be produced to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he or she should be released from custody.

    Literally translated, a writ of habeas corpus is a court order to “produce the body,” and is generally filed by those in prison, though they are also filed by those who have been held in contempt of court by a judge and either imprisoned or threatened with imprisonment. Also known as “the Great Writ,” habeas petitions are ordinarily referred to as the hallmark of the United States justice system. Unlike other countries where the powers that be may throw someone in jail and keep them there indefinitely without filing charges or conducting a hearing, habeas corpus serves as a check on the government and offers prisoners a legal avenue to protest their imprisonment.

    A habeas corpus petition can be filed in state or federal court. Before filing in federal court, however, all state options must be exhausted first.

    Everyone has the right to challenge illegal imprisonment or inhuman prison conditions. Like all writs, however, courts will insist on clear and convincing evidence in support of a writ and do not issue them frequently.

    Houston Appeals Defense: The Charles Johnson Law Firm

    Dealing with the appeals process is tough and time consuming. An experienced attorney from the Charles Johnson Law Firm in Houston, Texas can help you plan your next move. Contact us today for a free initial consultation.

    We 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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