Houston Criminal Defense Lawyer Dallas, San Antonio, Houston and Austin Offices of the Charles Johnson Law Firm Houston Criminal Defense Lawyer
Charles Johnson Law Firm
Houston Criminal Defense Lawyer Houston Criminal Defense Lawyer Houston Criminal Defense Lawyer Charles Johnson Law Firm Home See Our Case Results About Us Resources Contact Us Houston Criminal Lawyer Blog
Houston Criminal Defense Lawyer
 
Rotating1
Houston Criminal Defense Lawyer
Call now
Houston Criminal Defense Lawyer
 

Houston Lawyer Blog


Tag Archive for Houston Criminal Lawyer Charles Johnson

Facing False Charges of Child Abuse? Select the Leading Houston Child Abuse Lawyer Charles Johnson

Best Child Abuse Defense AttorneyIf 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

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.

Sexual Abuse

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.

Best Child Abuse Defense AttorneySexual 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).

Child molesters

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:

No limitation:

  • 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.

Best Child Abuse Defense AttorneyWhen 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.

 

Houston Child Abuse Lawyer Charles Johnson

Download “Facing False Charges of Child Abuse? Select the Leading Houston Child Abuse Lawyer Charles Johnson” in PDF Format

 

Related News Stories – Child Abuse Charges in Houston, Texas

Arrested for Assault Family Violence? The Right Houston Criminal Lawyer Can Make A Difference In Your Case

Hire the Best Houston Assault Family Violence AttorneyAn arrest for Houston Assault Family Violence (or Domestic Violence) can be a devastating experience to anyone. Whether the incident was a harmless situation that spun out of control, a gross misunderstanding, or a typical way of communicating between two people. The time after the arrest can be terrifying, as the criminal justice system is very complicated. Houston Assault Family Violence Lawyer Charles Johnson can make sure that your legal rights are protected. Attorney Johnson can determine whether police followed the proper legal procedures when arresting you and, when feasible, prove that the charges are unwarranted.

Being charged with any form of domestic violence is a very serious matter. Not only may you face jail time or probation, many domestic violence cases involve restraining orders, meaning you may have to leave your house and your family immediately – even if you own the house or pay the rent. In addition, a conviction or probated sentence that includes a finding of family violence will affect your right to possess any firearms or to obtain a hunting license.

You are entitled to the best legal defense possible. Houston Criminal Lawyer Charles Johnson can deliver that defense for you. You can contact Houston Domestic Violence Lawyer Charles Johnson day or night, 24 hours/day 7 days/week and speak with him directly at (713) 222-7577. His Law Office is headquartered in Houston, with offices conveniently located in Dallas, Austin and San Antonio.

Definitions of Domestic Violence

Domestic violence includes physical violence, sexual abuse, emotional abuse, intimidation, economic deprivation, and threats of violence.  The relationships that most state domestic violence laws define as necessary for a charge of domestic assault or abuse include spouse or former spouse, persons who currently live together or who have lived together within the previous year, or persons who share a common child.

Definitions of criminal violence include physical assault (hitting, pushing, shoving, etc.), sexual abuse (unwanted or forced sexual activity), and stalking. Although emotional, psychological and financial abuse are not criminal behaviors, they are forms of abuse and can lead to criminal violence.

Violence by a man against his wife or intimate partner is often a way for a man to control “his woman.”  Although domestic violence can occur between gay and lesbian couples, and by women against their male partners, by far the most common form is male violence against women.

Types of violence include:

  • Common couple violence (CCV) which is not connected to general control behavior, but arises in a single argument where one or both partners physically lash out at the other.
  • Intimate terrorism (IT) which can also involve emotional and psychological abuse. It is one element in a general pattern of control by one partner over the other. It is more common than common couple violence, more likely to escalate over time, not as likely to be mutual, and more likely to involve serious injury.
  • Violent resistance (VR), which is sometimes interpreted as “self-defense,” is usually violence perpetrated by women against their abusive partners.
  • Mutual violent control (MVC) which is a rare type of intimate partner violence that occurs when both partners use violence to battle for control.
  • Situational couple violencewhich arises out of conflicts that escalate to arguments and then to violence. It is not connected to a general pattern of control. Although it occurs less frequently in relationships, and is less serious than intimate terrorism, it can be frequent and quite serious, even life-threatening.

Although domestic violence is sometimes explained as the result of the abuser losing control, many batterers do exhibit control over the nature and extent of their physical violence.   They may direct their assaults to parts of their partners’ bodies that are covered by clothing so that any injuries will not be seen by others. Conversely, some batterers purposefully target their partners’ faces to compel isolation or to disfigure them so that “no one else will want them.” Batterers can often describe their personal limits for physical abuse.  They may explain that while they have slapped their partners with an open hand, they would never punch them with their fists. Others admit to hitting and punching but report that they would never use a weapon.

Domestic violence often gets worse over time.  One explanation for this is that increasing the intensity of the abuse is an effective way for batterers to maintain control over their partners and prevent them from leaving. The violence may also escalate because most batterers experience few, if any, negative consequences for their abusive behavior. Social tolerance of domestic violence thus not only contributes to its existence, but may also influence its progression and batterers’ definitions of the acceptable limits of their abuse.

Domestic violence is a pervasive problem in the United States as the statistics below indicate:

  • Approximately 1.3 million women and 835,000 men are physically assaulted by an intimate partner annually.
  • Intimate partner violence made up 20% of all nonfatal violent crimes against women in 2001.
  • In 2000, 1,247 women and 440 men were killed by an intimate partner. In recent years, intimate partners killed approximately 33% of female murder victims and 4% of male murder victims.
  • Access to firearms greatly increases the risk of intimate partner violence.  Research suggests that abusers who possess guns tend to inflict the most severe abuse on their partners.
  • Nearly half of all violent crimes committed against family members are crimes against spouses.
  • Research indicates that 84% of spouse abuse victims are females, and 86% of victims of dating partner abuse at are female.
  • Wives are more likely than husbands to be killed by their spouses; wives were about half of all spouses in the population in 2002, but made up 81% of all persons killed by their spouses.
  • Slightly more than half of female domestic violence victims live in households with children under age 12.  It is estimated that between 3.3 million and 10 million children witness domestic violence annually.
  • Fifty-six percent of women who experience any partner violence are diagnosed with a psychiatric disorder. Twenty-nine percent of all women who attempt suicide are battered; 37% of battered women have symptoms of depression, 46% have symptoms of anxiety disorder, and 45% experience post-traumatic stress disorder.

Effects of domestic violence on women and children

Battered women suffer physical and mental effects from domestic violence. Battering causes more injuries to women than auto accidents, rapes, or muggings.  It also threatens their financial wellbeing.  They may miss work to appear in court or because of illnesses or injuries that result from the violence. They may have to move many times to avoid violence. Many battered women forgo financial security during divorce proceedings to avoid further abuse.

Battered women often lose social support.  Their abusers isolate them from family and friends. Women who are being abused may isolate themselves from support persons to avoid the embarrassment that would result from discovery.  Some battered women are abandoned by their churches when they separate from their abusers because some religious doctrines prohibit separation or divorce regardless of the severity of abuse.

When mothers are abused by their partners, the children are also affected.  Children who witness domestic violence may feel confusion, stress, fear, and shame.  They may think that they caused the problem or feel guilty for not protecting their mothers. They may themselves be abused or neglected while the mother attempts to deal with the trauma. Children in homes where domestic violence occurs are at risk for being physically abused or seriously neglected.

One-third of all children who see their mothers beaten develop emotional problems. They may cry excessively, be withdrawn or shy, have difficulty making friends or develop a fear of adults. Other consequences for children include excessive absences from school, depression, suicidal behavior, drug and alcohol abuse, running away, committing criminal acts as juveniles and adults, and using violence to solve problems at school and home.  The stress resulting from living with domestic violence can show up as difficulty in sleeping, bedwetting, over-achieving, behavior problems, withdrawing, stomach aches, headaches and/or diarrhea.

Domestic violence can carry over from one generation to the next.  Boys who witness their fathers abuse their mothers are more likely to inflict severe violence as adults. Girls who witness their mothers being abused are more likely to tolerate abuse as adults than who girls did not grow up under these circumstances.

Domestic violence and alcohol and other drugs

There is little evidence for the widely-held belief that abusing alcohol causes domestic violence. Although research indicates that men who drink heavily do commit more assaults that result in serious physical injury, the majority of abusive men are not heavy drinkers and the majority of men who are heavy drinkers do not abuse their partners.  Even for batterers who drink, there is little evidence to suggest that drinking causes abusive behavior.  In 76% of physically abusive incidents, there is no alcohol involved, and there is no evidence to suggest that alcohol use or dependence is linked to the other non-violent behaviors that are part of the pattern of domestic violence. It is true, however, that when cultural norms and expectations about male behavior after drinking include boisterous or aggressive behaviors, individual men are more likely to engage in such behaviors when under the influence of alcohol than when sober.

There is a pervasive belief that alcohol lowers inhibitions and a historical tradition of holding people who commit crimes while under the influence of alcohol or other drugs less accountable than those who commit crimes in a sober state.  Historically, society has not held batterers accountable for their abusive behavior.  They are held even less accountable for battering perpetrated when they are under the influence of alcohol. The alcohol provides a ready and socially acceptable excuse for their violence.

Evolving from the belief that abusing alcohol or other drugs causes domestic violence is the belief that treating the chemical dependency will stop the violence. However, research indicates that when batterers are in treatment, the abuse continues and often escalates during recovery, creating more danger to the victim than existed prior to treatment. In the cases in which battered women report that the level of physical abuse decreases, they often report a corresponding increase in threats, manipulation and isolation.

As noted earlier, domestic violence is often explained as a loss of control by the batterer.  However, even when alcohol or other drugs are involved, the experiences of battered women contradict this view. Battered women report that even when their partners appear uncontrollably drunk during a physical assault, they routinely exhibit the ability to sober up remarkably quickly if there is an outside interruption, such as police intervention.

  • Of the
    32.1 million nonfatal violent crimes that took place between 1998 and 2002, 30% of victims said the offender was under the influence of drugs or alcohol.
  • An additional 29.2% indicated the offender was sober at the time, and 40.8% said they did not know.
  • A larger percentage of family violence victims (38.5%) reported the offender was under the influence of drugs or alcohol during the incident than did nonfamily violence victims (28.9%).
  • Offenders who abused their boyfriend or girlfriend were more likely than other types of nonfamily violence offenders to be drinking or using drugs. Four out of 10 (41.4%) offenders involved in violence with a boyfriend or girlfriend were under the influence of drugs or alcohol, compared to 26.3% of offend-ers involved in violence against a friend or acquaintance and 29.3% of stranger violence.
  • Excluding the 19.5% of family violence victims who did not know whether the offender was under the influence of drugs or alcohol at the time of the incident, approximately 2.8 million victims of family violence were able to indicate whether the offender was or was not under the influence of drugs or alcohol. In nearly half the incidents, family violence victims reported the offender had been using drugs or alcohol at the time of the offense.

Interventions with substance-abusing batterers

If batterers use alcohol or other drugs, these problems should be addressed separately and concurrently. This is critical not only to maximize the victim’s safety, but also to prevent the battering from precipitating relapse or otherwise interfering with the recovery process. True recovery requires much more than abstinence. It includes adopting a lifestyle that enhances emotional and spiritual health, a goal that cannot be achieved if the battering continues.

Self-help programs such as Alcoholics Anonymous promote and support emotional and spiritual health and have helped many alcoholics get sober. These programs, however, were not designed to address battering and are not sufficient, by themselves, to motivate batterers to stop their abuse. It is critical that any treatment plan for chemically dependent men who batter include attendance at programs designed specifically to address the attitudes and beliefs that encourage their abusive behavior.

When abusive men enter substance abuse treatment programs, their partners are often directed into self-help programs such as Al-Anon or co-dependency groups. However, these resources were not designed to meet the needs of victims of domestic violence and often inadvertently cause harm to battered women.  The goals of these groups typically include helping alcoholics’ family members to focus on their own needs, practice emotional detachment from the substance abusers, and identify and stop protecting their partners from the harmful consequences of addiction. Group members are encouraged to define their personal boundaries, set limits on their partners’ behaviors, and stop protecting their partners from the harmful consequences of addiction. While these strategies and goals may be very useful for women whose partners are not abusive, for battered women such changes will likely result in an escalation of abuse, including physical violence.

Battered women are often very sensitive to their partners’ moods as a way to assess their level of danger. They focus on their partners’ needs and cover up for them as part of their survival strategy.  These behaviors are not dysfunctional but are life-saving skills that protect them and their children from further harm. When battered women are encouraged to stop these behaviors through self-focusing and detachment, they are being asked to stop doing the things that may be keeping them and their children most safe.

Myths Regarding Domestic Violence

“Domestic Violence” can be defined in legal and clinical terms. For clinical purposes, domestic violence is “assaultive behavior.” Domestic violence generally represents a pattern of behavior rather then a single isolated event. The pattern of behavior can take on many different forms, all of them involving physical violence or threats of physical violence. The violence may be accomplished through the use of hand, feet, weapons, or other objects.

The National Institute of Justice estimates that a woman is battered every 18 seconds in the United States. Some studies have suggested that between 35 and 50 percent of the nation’s couples have experienced at least one violent incident in their relationship.

Historically, the problem of violence in the home has been surrounded by a number of myths and misconceptions, which has perpetuated spouse abuse in society and has hampered the effective response of law enforcement.

Some of the most common myths and misconceptions are briefly addressed below.

Domestic Violence is a Private “Family Matter”

Some feel that violence between people in intimate relationships is somehow “different” than violence between strangers. The privacy of the marital relationship and the family unit has been elevated above the prohibitions against violence contained in existing laws. Nevertheless, a spouse has no right under existing laws to physically abuse their spouse in any manner.

Domestic Violence is Usually Provoked by the Victim

This myth stems from a belief that men have the right to discipline their spouses for behavior that the man does not approve of. Most studies agree that mutual combat or provocation is not the cause of domestic violence. Indeed, verbal “provocation,” no matter how severe, should never be a justification for violence. The failure of a batterer to take responsibility for his violent behavior and the victim’s tendency for self-blame should not lead society to the same erroneous conclusions. In the overwhelming majority of cases, it is women who are being routinely and severely victimized by men. To be sure, abused men do exist and must be protected, but the incidents of husband and boyfriend battering are rare.

Battered Women are Masochistic

Some believe that if battered women were really abused, they would leave. Others believe that if victims of abuse wished to end the abuse, they could simply seek outside help and leave the relationship. These views reflect an ignorance regarding the dynamics of abusive relationships. Battered women have often been in the relationships for a significant period of time and have strong mental and emotional ties. Often children are involved and the battered spouse must resolve how to provide for her children if she were to leave the abusive relationship and take her children with her. Battered women face enormous pressures to remain in an abusive relationship, including economic dependency, lack of support from relatives and friends, and threats of increased violence if any action is taken against their abuse. For a victim, low self-esteem further compounds the problem of removing herself from an abusive relationship.

Batterers are Always Drug or Alcohol Abusers

Many believe that men who batter women are predominantly working class substance abusers. Experts, however, have determined that domestic violence spans every socioeconomic group and is not caused by substance abuse. Recent studies suggest that alcohol and drugs may increase the level of violence but do not precipitate the violence. The decision to use violence is often made before the batterer ingests the substance, which he will ultimately blame for his violence outburst. The drugs or alcohol, thereafter, becomes a convenient excuse for engaging in deviant behavior.

Understanding the Cycle of Domestic Violence

Relationships, which involve any level of physical violence generally, evidence a recurring cycle of behavior. The “cycle of violence” in a violent relationship consists of three stages:

(1) the tension building phase

(2) the acute battering episode and

(3) the aftermath: loving respite.

Tension Building Phase

The first phase is a tension-building stage. The woman senses the man becoming edgy and more prone to react negatively to any trivial frustration. Many women learn to recognize incipient violence and try to control it by becoming nurturing and compliant or by staying out of the way.

A woman often views the building rage in her partner as being directed toward her and internalizes the job of keeping the situation from exploding. If she does her job well, he will become calm; if she fails, it is her fault. A woman who has been battered over time knows that the tension building stage will aggravate, but denies this knowledge to help herself cope with her partner’s behavior. As the tension builds, he becomes more fearful that she will leave him; she may reinforce this fear by withdrawing from him to avoid inadvertently setting off the impending violence.

Acute Battering Episode

The second phase in the pattern of violence is the explosion. Many men report that they do not start out wanting to hurt the woman but want only to teach her a lesson. This is the stage where police, the victim, or the batterer may be killed. The violence may involve pushing, shoving, shaking, or pulling hair. It may involve hitting with an open hand or a closed fist.

The violence may be over in a moment or last for minutes or hours. There may be visible injuries, but often an experienced batterer will leave no marks. The violence attack rarely takes a single consistent form. Most women are extremely grateful when the battering ends. They consider themselves lucky that it was not worse, no matter how bad their injuries are. They often deny the seriousness of their injuries and refuse to seek immediate medical attention.

Aftermath: Loving Respite

The third phase is a period of calm, loving, contrite behavior. The man is genuinely sorry for what he has done. His worst fear is that his partner will leave him so he tries as hard as he can to make up for his brutal behavior. He really believes he can control himself and will never again hurt the woman he loves. The battered woman wants to believe she will no longer have to suffer abuse. His reasonableness and his loving behavior during this period support her wish that he can really change. He lets her know that he would fall apart without her. So, she feels responsible for her own conduct that led to the beating and also responsible for his well being.

Victims will most frequently enter the criminal justice system after an acute battering episode; the “loving respite” phase usually follows immediately. Both parties may be horrified by what has happened. Both feel guilty about the event and both resolve to never let it happen again. The batterer very typically will treat the victim with apparent respect, love, and affection. This is a great relief to the victim and is precisely what the victim has wanted out of their relationship all along.

This “loving respite” phase makes criminal prosecution difficult. As long as the batterer continues to behave affectionately, the victim may become increasingly reluctant to jeopardize such good behavior by cooperating with the prosecution. A victim-witness advocate who understands the dynamics of the battering cycle can effectively intervene by reminding the victim of similar remorseful periods in the past, predicting a return to the tension building phase, and explaining the likelihood of more frequent and severe injuries.

Domestic Violence Penalties

A family violence conviction can lead to numerous life-altering and long-term penalties, including up to one (1) year in jail, fines up to $4000.00, anger management or family violence classes, probation, and a finding of family violence that may affect the custody of your children. If you have a prior family violence conviction, you could be facing up to ten (10) years in prison, as well as a fine up to $10,000.00. The penalties also increase if the violence is aggravated in any way with a weapon or if you cause an injury to a child. Depending on the circumstances, you may also be prohibited from contacting the complainant for an extended period of time, thereby preventing you from spending time with your loved one.

Unlike most criminal offenses in Texas, you can never seal your criminal record if you are convicted of a family violence crime or accepted deferred adjudication with a finding of family violence. To avoid these significant penalties, it is critical that you contact the Charles Johnson Law Firm. He is skilled and experienced in these very sensitive cases.

Defined in Domestic Violence Civil LawsFam. Code §§ 71.004; 71.0021

‘Family violence’ means:

  • An act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault, or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself
  • Abuse, as that term is defined by § 261.001, by a member of a family or household toward a child of the family or household

Dating violence

‘Dating violence’ means an act by an individual that is against another individual with whom that person has or has had a dating relationship and that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the individual in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself.

Defined in Criminal Laws

Penal Code § 25.07

A person commits an offense if, in violation of a condition of bond set in a family violence case and related to the safety of the victim or the safety of the community, an order issued under article 17.292, Code of Criminal Procedure, an order issued under § 6.504, Family Code, chapter 83, Family Code, if the temporary ex parte order has been served on the person, or chapter 85, Family Code, or an order issued by another jurisdiction, the person knowingly or intentionally:

  • Commits family violence or an act in furtherance of an offense under §§ 22.011, 22.021, or 42.072
  • Communicates:
    • Directly with a protected individual or a member of the family or household in a threatening or harassing manner
    • A threat through any person to a protected individual or a member of the family or household
    • In any manner with the protected individual or a member of the family or household except through the person’s attorney or a person appointed by the court, if the violation is of an order described by this subsection, and the order prohibits any communication with a protected individual or a member of the family or household
  • Goes to or near any of the following places as specifically described in the order or condition of bond:
    • The residence or place of employment or business of a protected individual or a member of the family or household
    • Any child care facility, residence, or school where a child protected by the order or condition of bond normally resides or attends
  • Possesses a firearm

‘Family violence,’ ‘family,’ ‘household,’ and ‘member of a household’ have the meanings assigned by chapter 71, Family Code.

Persons Included in the Definitions

Fam. Code §§ 71.0021; 71.003; 71.005; 71.006

‘Dating relationship’ means a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature. The existence of such a relationship shall be determined based on consideration of:

  • The length of the relationship
  • The nature of the relationship
  • The frequency and type of interaction between the persons involved in the relationship

A casual acquaintanceship or ordinary fraternization in a business or social context does not constitute a ‘dating relationship.’

‘Family’ includes individuals related by consanguinity or affinity, as determined under §§ 573.022 and 573.024, Government Code; individuals who are former spouses of each other; individuals who are the parents of the same child, without regard to marriage; and a foster child and foster parent, without regard to whether those individuals reside together.

‘Household’ means a unit composed of persons living together in the same dwelling, without regard to whether they are related to each other. ‘Member of a household’ includes a person who previously lived in a household.

Building a Strong Defense

Many domestic violence or spousal abuse charges occur during the divorce process or in child custody disputes. Unfortunately, in these situations one spouse may try to obtain an advantage over the other by making false or exaggerated accusations.

Houston Criminal Lawyer Charles Johnson will work hard to build a strong defense against the domestic violence charges you face. We will carefully listen to you and investigate the events leading up to the charges. What is the context of the domestic abuse accusation? Did the alleged victim start the fight? Is there a custody issue at stake? Understanding the context of the event can help us prepare an effective defense strategy on your behalf. Our goal is to obtain a dismissal of the charges, a negotiated plea agreement that minimizes the penalties you face, or a not guilty verdict after trial.

In the recent past, several factors have caused Domestic Violence to emerge as a distinction within the assault category. If a defendant and the alleged victim are spouses or former spouses, related by blood or marriage, reside or have resided in the same household or have a child or children in common; then any assaults would be categorized as “Domestic”. This distinction requires that certain federal statutes are triggered and the defendant shall no longer be allowed to own or possess a firearm.

Hire the Best Houston Assault Family Violence AttorneyIt is often mistakenly assumed by defendants, as well as victims, that the decision to prosecute lies with the victim. Many presume that if the two have reconciled then they may avoid prosecution by merely allowing the victim to inform the court or prosecuting attorney that they do not wish to prosecute or by simply not appearing in court in violation of the subpoena requiring their appearance. This naive assumption has led to many defendants failing to prepare a defense to the charges that may have otherwise been successfully defended. The prosecutor may insist that the victim testify and proceed without their consent. The victim’s cooperation with the defense is of course valuable in preparing for court and often in avoiding prosecution on a criminal offense. This must be utilized in conjunction with a strategy tailored around the specific facts and circumstances of the offense at hand, as well as parties involved. In order for this to occur it is essential that the defendant obtain legal representation and closely follow the advice of his or her counsel.

Domestic Violence is a serious problem in this country. Certainly, however, anyone can understand that relationships are hard and with added stress from financial problems, work related stress and of course drug or alcohol addiction people may do things for which they are not proud. When charged with such an offense it is essential that an individual begin immediately preparing a defense which may include mitigating measures. These may include a drug and alcohol assessment, counseling, anger management training or even alcoholics or narcotics anonymous meetings. It is for this reason that a consultation with an attorney experienced in defending these matters occurs prior to proceeding to court.

Contact Houston Domestic Violence Lawyer Charles Johnson

It’s important to speak with an attorney as soon as you’ve been arrested. The sooner you contact an attorney, the sooner work can be done to prevent your charges from escalating into a conviction.

Harris County Domestic Violence Defense Attorney Charles Johnson knows how frustrating and hopeless things may seem right now, but urges you not to give up hope. There are many viable defense strategies for fighting domestic violence charges, and many things that can be done to ensure your charges don’t spiral out of control. You can depend on Attorney Johnson to thoroughly investigate your charges, and trust that he’ll make it known to the judge if he finds anything that may indicate the accusations were fabricated. The Charles Johnson Law Firm is here for you, and will do whatever can be done to make sure this ordeal results in the best possible outcome!

If you have been accused of domestic violence, don’t try to fight your charges alone.

Contact Houston Domestic Violence Defense Lawyer Charles Johnson for experienced and dependable representation. He can be reached directly around the clock, 7 days/week at (713) 222-7577.

Find us on Google+

Houston Family Assault Lawyer Charles Johnson

Download “Arrested for Assault Family Violence? The Right Houston Criminal Lawyer Can Make A Difference In Your Case” in PDF Format

News Stories Related to Assault Family Violence Arrests in Houston:

Arrested for Assault? Why You Need a Skilled Houston Criminal Lawyer When Accused of Assault Charges

Hire the Best Houston Criminal Attorney

If you have been charged with Assault in Houston, you may face serious jail time. When facing criminal charges it is crucial that you act quickly in retaining skilled legal representation to defend you. Your selection of attorneys is a critical choice; few criminal defense attorneys have the background and experience as the legal team at The Charles Johnson Law Firm. With extensive experience in all manner of Assault charges, your best interests are aggressively protected in court. Your case will be carefully analyzed to determine the strategy that will be employed to seek a better outcome for the client, no matter how serious the offense.

It does not take much for an altercation or argument to escalate and involve the police. Some people may believe that an Assault charge consists of a violent fight between two individuals but this is not always the case. In Texas, Assault can include an attempt to hurt someone physically. In some instances, prosecutors have decided that the slightest touch is enough to file assault charges. Additionally, the law does not require the alleged victim to sustain an actual injury.

Whether you are facing a first assault offense or are charged with a serious felony assault, your case will be carefully reviewed and analyzed to determine if any errors or violations of your rights have taken place during the arrest, through the chain of custody of evidence, in lab procedures or other aspect of the case that opens the door to a successful court challenge. It is vital that you do not engage in any discussions, questioning or interrogations without first contacting Houston Assault Lawyer Charles Johnson to protect you. Make the call immediately after your arrest. You can call Attorney Johnson anytime night or day and speak with him directly at (713) 222-7577.

Each assault case has individual circumstances and evidence, and some may consider there is little hope. In fact, we frequently discover viable options to defend the case in court and will vigorously defend our client. Our background in the criminal justice system results in a broad understanding of how the prosecutor in the case will proceed and the strategies for staying one step ahead of the moves they make. Your rights will be aggressively protected and our legal team will seek a “not guilty” verdict, dismissed charges, a reduced charge or alternative sentencing, depending on the exact circumstances of your case. Houston Criminal Lawyer Charles Johnson is here to protect you and to fight for you in court.

Assault Charges in Texas

There are several different types of assault charges including but not limited to:

  • Assault Causing Serious Bodily Injury
  • Assault On A Public Servant, Sexual Assault
  • Assault With A Deadly Weapon
  • Aggravated Assault
  • Sexual Assault
  • Assault Family Violence
  • Assault On A Child Or Elderly

Assault charges can range from Class C misdemeanors (e.g. assault by contact) to a 1st degree felony; all cases will vary based on the facts and criminal history of each defendant. On the lower end of the spectrum (Class C misdemeanor), the punishment may result in implementation of fines, attendance of anger-management or marriage counseling classes, or deferred adjudication. Higher level misdemeanors could result in jail time or probation. Felony cases may result in probation or prison time. Depending on your criminal history and the actual charge, you may be eligible for special programs like the Pre-Trial Intervention Program that could result in a dismissal of your case.

Sexual Assault

Like many states, Texas has reconceptualized rape as an assaultive or violent offense rather than a sexual offense.  Like these other states, Texas no long utilizes the term “rape” in its Penal Code.  Both types of “rape”, forcible and statutory ,are found in TPC sec. 22.01.  and are forms of “Sexual Assault.” These are in ch. 22 “Assaultive Offenses” rather than ch. 21 “Sexual Offenses.”

Both are first degree felonies if the offender and victim are closely related.  Otherwise the offenses are  second degree felonies. First degree felonies are punishable by imprisonment for life or for any term of not more than 99 years nor less than 5 years.  In addition, punishment can include a fine of not more than $10,000.  A second degree felony is punishable by imprisonment for not more than 20 years nor less than 2 years, and/or a fine not to exceed $10,000.

Sexual Assault (non-consensual)

The offense that formerly would have been called forcible rape is now found in 22.011 (a) of the TPC. 

§ 22.011. SEXUAL ASSAULT.  (a) A person commits an offense if the person:

(1)  intentionally or knowingly:

(A)  causes the penetration of the anus or sexual organ of another person by any    means, without that person’s consent;

(B)  causes the penetration of the mouth of

another person by the sexual organ of the actor, without that

person’s consent;  or

(C)  causes the sexual organ of another person, without that person’s consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;

Note that unlike the common law definition of rape, this statute is gender-neutral, includes sex acts in addition to vaginal intercourse, and has no exemption for rape of a spouse.

Without consent is defined in subsec. (b) in 11 different ways:

A sexual assault under Subsection (a)(1) is without the

consent of the other person if:

(1)  the actor compels the other person to submit or participate by the use of physical force or violence;

This is the classic forcible rape scenario.  Prior law required the victim to resist and the force had to be such as would overcome “such earnest resistance as might be reasonably expected under the circumstances.”  There is no requirement of any resistance in the current statute.

(2)  the actor compels the other person to submit or participate by threatening to use force or violence against the other person, and the other person believes that the actor has the

present ability to execute the threat;

(3)  the other person has not consented and the actor knows the other person is unconscious or physically unable to resist;

(4)  the actor knows that as a result of mental disease or defect the other person is at the time of the sexual assault incapable either of appraising the nature of the act or of resisting it;

(5)  the other person has not consented and the actor knows the other person is unaware that the sexual assault is occurring;

Drugging the victim is covered in (6) below and, at first glance, it might appear that subsec. 5 is not possible.  This portion of the statute is aimed primarily at physicians who exceed the scope of a proper gynecological examination, and the victim is not aware of what is really going on.

(6)  the actor has intentionally impaired the other person’s power to appraise or control the other person’s conduct by administering any substance without the other person’s knowledge;

(7)  the actor compels the other person to submit or participate by threatening to use force or violence against any person, and the other person believes that the actor has the ability

to execute the threat;

The final four subsections deal with the situation where a person has control or unusual influence over the victim and takes advantage of that relationship:

(8)  the actor is a public servant who coerces the other person to submit or participate;

(9)  the actor is a mental health services provider or a health care services provider who causes the other person, who is a patient or former patient of the actor, to submit or participate by

exploiting the other person’s emotional dependency on the actor;

(10)  the actor is a clergyman who causes the other person to submit or participate by exploiting the other person’s emotional dependency on the clergyman in the clergyman’s professional character as spiritual adviser;  or

(11)  the actor is an employee of a facility where the other person is a resident, unless the employee and resident are formally or informally married to each other under Chapter 2,

Family Code.

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.

Aggravated Sexual Assault

If a sexual assault under sec. 22.011 involves any of the following acts by the offender, the offense is Aggravated Sexual Assault (sec. 22.021 (2):

(i) causes serious bodily injury or attempts to cause the death of the victim or another person in the course of the same criminal episode;

(ii) by acts or words places the victim in fear that death, serious bodily injury, or kidnapping will be imminently inflicted on any person;

(iii) by acts or words occurring in the presence of the victim threatens to cause the death, serious bodily injury, or kidnapping of any person;

(iv) uses or exhibits a deadly weapon in the course of the same criminal episode;

(v) acts in concert with another who engages in conduct described by Subdivision (1) directed toward the same victim and occurring during the course of the same criminal episode; or

(vi) administers or provides flunitrazepam, otherwise known as rohypnol, gamma hydroxybutyrate, or ketamine [so-called “date rape drugs”] to the victim of the offense with the intent of facilitating the commission of the offense;

It is also an aggravated sexual Assault if the victim is under 14 or an elderly or disabled individual.  Aggravated Sexual Assault is a felony of the first degree.

Assault Family Violence

Houston Criminal Lawyer Charles Johnson handles a large number of Assault Family Violence cases, both misdemeanors and felonies. These types of cases typically involve family members but may also include former spouses, domestic partners, roommates, and present/former boyfriends/girlfriends.

Frequently, assault family violence cases involve police officers responding to a call about a disturbance. The police will likely talk to both parties and make an arrest based on whose story they believe or what the evidence indicates. Unfortunately, sometimes, the person arrested is actually the victim and not the aggressor. Other times, a mere accusation of violence may be enough for a criminal case to be filed. Sometimes, penalties for assault family violence may be harsher than normal assault cases and may result in temporary or permanent loss of parental rights.

Unfortunately, having an assault family violence conviction on your record can be used to deny child custody and limit your visitation rights if you are undergoing a divorce or other child custody hearings.

Affidavits of Non-Prosecution

Unlike in TV shows and movies, an assault case cannot be dropped in Texas simply because the victim requests that the charges be dropped. Instead, the right to drop the case belongs to the prosecutor and judge. However, not all hope is lost. Frequently, criminal defense attorneys help the victims in assault cases prepare Affidavits of Non-Prosecution, which express the victims wish that the case be dismissed and may shed some light on the altercation or argument that led to the arrest and filing of charges. While these affidavits can’t guarantee that a case is dismissed, they certainly help in persuading the prosecutor to dismiss the case or reduce the charges.

Protective Orders and Court Ordered Injunctions

In some cases of assault, the prosecutor will request that a court impose temporary protective orders or an injunction to place restrictions on contact between the accused and the victim, or in the case of assault family violence on the other family members. Protective orders may vary, ranging from no contact with the alleged victim, which frequently results in the accused having to find another place to live until the case is resolved or the protective order lifted, or could result in a temporary loss of child custody. A violation of a Court Ordered Protective order is also a serious criminal matter and may result in additional criminal charges filed against the accused.

Aggravated Assault & Assault with a Deadly Weapon

Aggravated assault consists of two different charges: aggravated assault causing serious bodily injury and assault with a deadly weapon, both of which are typically second degree felonies. An aggravated assault causing serious bodily injury occurs when during the course of an assault the victim was seriously injured. It is escalated from a mere slap to the face to a more severe resulting injury. Assault with deadly weapon occurs when the accused is alleged to have exhibited a deadly weapon during the commission of the assault. Deadly weapons can include but are not limited to: baseball bats, BB guns, bottles, clubs, drugs, firearms, knives, motor vehicles, nail guns, and even dustpans and hot water.

However, if you are accused of committing an aggravated assault against someone with whom you have a domestic relationship, or against a security guard, witness, police officer, or public official the charge may be elevated to a first degree felony. If you have any questions about what constitutes assault in Texas or have been charged with assault, feel free to visit us on Facebook and post a question, leave a comment or fill out a free case evaluation form with no obligation

List of Common Texas Assault Charges

• Assault

Sexual assault

• Aggravated assault

• Aggravated sexual assault

• Injury to a child, elderly individual, or disabled individual

• Abandoning or endangering child

• Deadly conduct

• Consent as defense to assaultive conduct

• Terroristic threat

• Aiding suicide

• Tampering with consumer product

• Leaving a child in a vehicle

• Harassment by persons in certain correctional facilities; harassment of public servant

• Applicability to certain conduct

Possible Defenses for Assault Charges

Despite what the police might say, being charged by the Police with an offense does not mean that you will be found guilty of that offense. It is also true to say that Police are human and do make mistakes. In some domestic violence cases they may be bound to take action against someone even though they would prefer not to and in other cases they may be biased or act illegally.

There are many reasons why you may be found not guilty by the court, some of which include:

  • The police don’t have enough evidence to prove that you committed the offense;
  • The police have acted illegally or improperly;
  • A witness may not attend court;
  • The Police have charged you with the wrong offense;
  • Where applicable the Police cannot prove that the injuries amount to actual or grievous bodily harm;
  • You are able to rely on a recognised defense.

Self Defense 

Self-defense claims are made when a defendant agrees that act of assault occurred, but it also that it was justified by the other person’s threatening actions. A jury must decide that the person accused of the crime acted reasonably. The questions which must be asked include:

  • Who was the aggressor?
  • Was the defendant’s belief that self-defense was necessary a reasonable one?
  • Did the defendant use only the force necessary to combat the aggressor?

Defense of Others 

Defense of Others claims are similar to self defense claims. When making such a claim, a defendant agrees that act occurred, but claims that it was justified by the other person’s threatening actions to a third person.

Again, to succeed, a jury must determine that the defendant acted reasonably under the circumstances.

Alibis 

An alibi defense is simply the argument that the defendant could not have committed the crime because that defendant was somewhere else.

Credibility 

One of the best and most common defenses is to challenge the credibility of witnesses including the police. A good attorney will examine all aspects of a witnesses statements, the inconsistencies and the omissions. Witness testimony may be undermined by prior inconsistent statements or rebuttal witnesses that tell a different story.

In any criminal case it is very important to preserve evidence before it gets cold. That means you should hire an experienced and aggressive attorney for your representation as soon as possible. If you do not, your rights could be impaired.

An investigation must be performed which would involve photographing the scene, examining critical evidence and interviewing potential witnesses while their memory is fresh. (A defendant cannot perform these functions by themselves since they may be viewed as tampering with a witness).

Accuser Motivation

Because sexual charges are often based on the word of the accuser, the motivations and background of the accuser are highly relevant to sex crimes defense. Proper investigation and use of psychological experts can uncover facts that can be helpful to your defense.

  • Lying about consensual sex. Some may make false charges of sexual assault or rape to cover up consensual sex in order to protect their own reputation from damage to hide casual sexual encounters from friends and family.
  • Child custody disputes. A parent may make false accusations of molestation or inappropriate sexual behavior against his or her spouse in order to gain an advantage in family court. Such false charges are a common tactic in divorce and custody cases.
  • Financial advantage. A sexual charge is an easy way for an accuser to extort money from a defendant. Celebrities are not the only targets of these schemes. An employee can easily bring such a charge against an employer. We have also seen extortion associated with extramarital affairs.

Suppression of Evidence

If photographs, computer files or other records were obtained from you, there are very strict search and seizure guidelines that the police must follow. Illegally obtained evidence cannot be used against you in court. In sex crimes cases, there are limited circumstances in which incriminating evidence can be suppressed. A motion to suppress is a Constitutional Right and an effective weapon in the hands of an experienced sex crimes defense attorney.

“Taint”

“Taint” can occur when children are subjected to biased and suggestive interviews. Parents, teachers, police and even therapists can ask leading questions such as “daddy touched you there, didn’t he?” Often, the adult conducting the interrogation is not consciously aware of the suggestive nature of the question. Young children, who are eager to please adults, often answer “yes” and even build false memories about events that did not actually occur.

Fighting a criminal case can be very complicated. Did you know that many cases are dismissed on technicalities? The Best Houston Assault Attorney must have knowledge of the court system and know the different personalities of Judges and Prosecutors.

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

Do not hesitate to contact Attorney Johnson if you or one of your loved ones could even possibly be facing any type of Assault charge. Don’t make the huge, regrettable mistake of acting without legal representation, the most foolish course of action when dealing with the criminal justice system.

It is important that you seek legal counsel if you have been arrested for Assault in Houston as soon as possible. Houston Lawyer Charles Johnson is an experienced and skilled lawyer who can help you protect your rights, investigate the evidence, and negotiate with the state to get the charges filed against you reduced or dismissed.

Acting promptly and aggressively is the key to protecting your freedom and ultimate well being. Houston Criminal Lawyer Charles Johnson is available by phone 24 hours a day at (713) 222-7577. He knows how important your case is, and wants to protect you from the very outset.

Why You Need a Skilled Houston Criminal Lawyer When Accused of Assault
by Charles Johnson

Find us on Google+


Arrested for Assault? Why You Need a Skilled Houston Criminal Lawyer When Accused of Assault Charges

Download “Arrested for Assault? Why You Need a Skilled Houston Criminal Lawyer When Accused of Assault Charges” in PDF Format


News Stories Related to Assault Arrests in Houston:

Marijuana Cultivation Charges: The Best Houston Criminal Lawyer To Represent You

Best Houston Criminal Lawyer: Marijuana CultivationHave you been accused of operating a marijuana grow house? Grow houses have been popping up all over Texas and all over the nation. As a result, law enforcement has intensified investigations. They are reviewing electrical usage and water usage to determine if excessive amounts are being used — creating suspicion that the manufacture/cultivation of marijuana is being carried out on the premises. If you are under investigation or have been arrested and are facing drug manufacturing charges, you need experienced legal counsel on your side. Houston Criminal Lawyer Charles Johnson expertly defends clients who have been charged with marijuana-related crimes through the entire State of Texas, with offices in Houston, Austin, Dallas and San Antonio.

At the Charles Johnson Law Firm, we take marijuana charges seriously. We provide aggressive manufacture/cultivation defense representation to each client. Contact Attorney Johnson directly at (713) 222-7577 anytime night or day to discuss your case with an experienced criminal defense attorney.

Marijuana Cultivation: Defense Lawyers You Can Trust

Our law firm provides exceptional defense representation. We have earned a reputation for our diligence and our commitment to our clients. Clients have come to respect and trust us when they are in need and their future is at stake. We know the law and how to effectively defend our clients.

When clients have been charged with marijuana cultivation or other drug manufacturing, we analyze every aspect of the case.

  • How did law enforcement become aware of the use of grow lights?
  • Was reviewing the occupant’s electrical bills legal?
  • Was a valid search warrant obtained before entering the home?
  • Did someone else have access to the home?
  • Was the home actually owned by someone else?

In marijuana cultivation cases, penalties are based on quantity. Therefore, if you have possession of a significant amount of plants in your home or an amount of marijuana of substantial weight, you may face a mandatory minimum sentence. Experienced defense counsel is paramount to the success of your case.

We use our knowledge of the law to our client’s benefit. If required procedure was not followed or our clients’ rights were violated, we petition to have evidence suppressed from the record — weakening or destroying the case against you. If you have been arrested for marijuana cultivation, trust the Best Houston Drug Lawyer Charles Johnson to provide the zealous defense representation you need. You can contact Attorney Johnson directly anytime night or day at (713) 222-7577.

About Marijuana Cultivation in Texas

In Texas, it is against the law to possess, distribute, or grow marijuana. The charges for these crimes are serious and the penalties include jail time, probation, prison, and expensive fines. In addition to these consequences, your driver’s license will be suspended even if you are not driving a vehicle at the time of your arrest.

Texas marijuana cultivation laws make it illegal for you to grow and possess certain plants or other organic materials that are used to produce marijuana. This means that if you are found with cannabis seeds, grow lighting systems, or marijuana plants, you will be charged with marijuana cultivation.

Large-scale federal marijuana cultivation charges are serious and carry severe consequences. As a federal offense, your case would be handled in the federal court system, which places strict sentencing guidelines on convictions. It is important that you retain a lawyer who has experience trying cases at the federal level. I can evaluate your case from every angle to determine the best course of action.

Marijuana is derived from the hemp plant called Cannabis sativa, which can be found growing naturally in many parts of the world. Though it may be commonly known as a hallucinogenic drug, the hemp or marijuana plant can be used in many other ways to produce paper, hemp oil, food and clothes. Owning items that are made of hemp is not illegal; however, growing or cultivating a marijuana plant in Texas is punishable as a criminal offense.

Marijuana remains readily available and is considered the most widely used illegal drug throughout the State of Texas. Marijuana in this area is primarily imported from the Texas/Mexico border via privately owned vehicles (POV) and commercial trucks. Large quantities of marijuana are routinely seized by all levels of law enforcement during highway interdiction stops in the North Texas area. In recent years, increased enforcement activity has lead to the seizure of several significant indoor marijuana cultivation operations in North Texas. These operations range in size from 100 to over 1100 plants and have produced marijuana with THC levels as high as 15%. Mexican marijuana is the most predominantly trafficked drug in the Houston Division. It is not uncommon for the US Border Patrol to make multi-hundred pound marijuana seizures from “back packers” at points along the Rio Grande River, and from vehicles at the US Border Patrol secondary checkpoints in Texas. At the Ports of Entry, ton quantity seizures of marijuana are often made from commercial trucking attempting to enter the United States.

Outdoor Operations

Seasonal marijuana growing operations may be conducted on lands of all ownership. Some individuals elect to grow their illegal crops on publicly owned lands where isolation and limited public access lessen the likelihood of accidental detection. Certain things may be indicators of an outdoor growing operation. Some of these are:

  • An unusually large purchase of fertilizer,
  • garden hoses, PVC pipe, and
  • camouflage netting.
  • Excessive security measures out of place
  • in remote forested areas.
  • An unusual structure or out-of-place
  • items in remote forested areas, such as
  • buckets, garden tools, hoses, PVC pipe,
    and fertilizer bags.

Indoor Operations

Many individuals choose to cultivate marijuana indoors in order to have total control of the environment. These operations may divert power from power companies to circumvent payment of high bills and attempt to avoid detection. This only raises the cost of power for law-abiding citizens.

Certain things may be indicators of an indoor growing operation. Some of these are:

  • Covered or blackened-out windows.
  • Loud humming sounds (from fans or ballasts).
  • An unusually strong musty odor.
  • Unusually large amounts of potting soil, containers, fertilizer, hoses, halide light system, and ballasts.
  • Excessive security measures and use of guard dogs.

Marijuana possession, sale, and manufacture are regulated by both state and federal law. In Texas, marijuana is classified as a Schedule I substance, which means that it has a high potential for abuse and no generally recognized medical value. (Texas Stat. and Code Ann. § 481.002.)

Marijuana Possession

It is a crime to possess marijuana in Texas. Penalties vary according to the amount possessed, with increased penalties for offenses in a drug free school zone. (Texas Stat. and Code Ann. § 481.121.)

Two ounces or less. Penalties include a fine of 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.

Marijuana Cultivation and Sales

It is illegal to cultivate or sell marijuana (or possess marijuana with the intent to do so) in Texas. Penalties vary according to the amount cultivated or sold, with increased penalties for sales to a minor or within a drug free school zone. (Texas Stat. and Code Ann. § 481.120.)

Gift of one fourth of an ounce or less. Penalties include a fine of up to $2,000, up to 180 days in jail, or both.

Selling one fourth of an ounce or less. Penalties include a fine of up to $4,000, up to one year in jail, or both.

More than one fourth of an ounce, and 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 20 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 five and 99 years in prison, or both.

More than 2,000 pounds. Penalties include a fine of up to $50,000, at least ten (and up to 99) years in prison, or both.

Drug Paraphernalia

It is illegal in Texas to manufacture, sell, or use drug paraphernalia (or possess paraphernalia with the intent to do so). Paraphernalia includes items used in growing, harvesting, processing, selling, storing, or using marijuana. Penalties for possession include a fine of up to $500, but no jail time. Selling paraphernalia may be punished with a fine of up to $4,000, up to one year in jail, or both. (Texas Stat. and Code Ann. § 481.125.)

Stamp Tax

A stamp tax is a tax imposed on certain types of transactions (such as the transfer of property) that requires a stamp to be purchased and attached either to the item sold or to an instrument documenting the transaction (such as a deed). The federal government imposes stamp taxes on deeds, the issue and transfer of stocks and bonds, and on playing cards.

In Texas, those who buy, transport, or import marijuana into Texas are required to pay a stamp tax and place the stamp (proof of payment) onto the contraband. However, because the possession of marijuana is illegal, people typically don’t pay the stamp tax. When you are convicted for possession, you will also be liable for payment of the unpaid taxes ($3.50 for each gram or portion of a gram). (Texas Stat. and Code Ann. § 159.101A.)

Challenging the Prosecution’s Case – Why You Shouldn’t Give Up Hope

Marijuana cultivation cases often depend on informants. People who have been arrested on drug and related criminal charges may agree to provide police with information in exchange for a reduced sentence. As a result, someone may give your name to the police when in reality you have little, if anything, to do with the cultivation of marijuana. Houston Drug Lawyer Charles Johnson will investigate the background of informants and their relationship to the police in order to expose leads and information ignored by law enforcement in building their case against you.

Facing Possession Charges

Often marijuana possession charges result from police contacts while in your car. Typically, officers will ask the driver if they can search their car. In many cases, drivers agree to a search thinking officers have a right to inspect their car. However, an officer must first have reasonable suspicion that a law has been broken to pull you over. Second, in order to search your car, one of the following must apply: You must give voluntary, informed consent to the officer; the officer must see something in plain sight that gives them probable cause to conduct a search; or the search must be incident to a lawful arrest. Attorney Johnson will review the evidence, dashboard camera footage and the actions of arresting officers to determine if your rights were violated.

The Value of Local Legal Representation

If you have been charged with a marijuana-related offense, consult an experienced criminal defense attorney. While the penalties and consequences of a marijuana charge are governed by statutory law, only a local criminal defense attorney can tell you how cases like yours tend to be handled by prosecutors and judges in your courthouse. As you can see, the penalties for marijuana cultivation in Texas are life changing. Not only is your freedom at stake, your bank account can be cleaned out and you will lose your driving privileges. You need an experienced drug-offense attorney on your side at a critical time like this.

Houston Drug Lawyer Charles Johnson expertly defends clients who have been charged with marijuana-related crimes through the entire State of Texas. Due to his dedication to fighting drug charges, he is familiar with the most effective defense strategies to defend you. If you’ve been arrested on marijuana cultivation charges in Houston or anywhere in Texas, it’s in your best interest to speak with an experienced drug cultivation defense lawyer who can inform you of your legal rights and provide you with the aggressive defense you need against your charges.

When you come to our firm, you can rest assured that a knowledgeable and well-practiced Texas marijuana cultivation defense attorney will thoroughly look into your charges to determine if the police violated your constitutional rights, or conducted an unlawful search and seizure. If we find any evidence that may indicate the police violated the law, we will make it known to the judge immediately, and motion to have the charges dropped.

To learn more about our defense services, please contact Houston Marijuana Cultivation Lawyer Charles Johnson anytime night or day at (713) 222-7577 to speak with him directly.


Marijuana Cultivation Charges: The Best Houston Criminal Lawyer To Represent You

Download “Marijuana Cultivation Charges: The Best Houston Criminal Lawyer To Represent You” in PDF Format


News Stories Related to Marijuana Cultivation Arrests:

Facing Federal Conspiracy Charges? Houston Criminal Lawyer Charles Johnson Will Provide the Most Effective Defense

Top Houston Federal Criminal LawyerConspiracy is one of the most often used crimes in the arsenal of the United State’s Attorneys Office.

This all encompassing charge has the ability to touch almost every Federal Crime.  Common conspiracy charges include:

  • Conspiracy to deal in illegal narcotics,
  • Conspiracy to possess with intent to distribute Cocaine, Crack Cocaine, Marijuana, or Methamphetamine.
  • Conspiracy to commit Mail Fraud, Wire Fraud, Health Care Fraud, and Tax Fraud and other White Collar Crimes

If you are charged with conspiracy to commit an offense in Federal Court, your rights and your future are in jeopardy.  Choosing the right criminal defense attorney to defend your case and protect your rights is critical. If you have been charged with conspiracy, or if you have reason to believe you are under investigation by law enforcement agents, the sooner you hire a criminal defense lawyer, the better positioned you will be. Houston Criminal Lawyer Charles Johnson provides a strong defense to conspiracy charges at both the state and federal level.

It is important to speak to an experienced federal criminal defense attorney as soon as possible if you are being investigated or have been arrested for any federal offense. Why?

  • Federal authorities tend to spend a lot of time and money investigating a suspect before they make an arrest.
  • They frequently have tape of your telephone conversations with an informant. Both can present significant challenges for the defense.
  • Conviction for a federal offense can have extremely serious consequences, including long periods of incarceration and huge fines.

Time Is Not on Your Side

Don’t delay. The earlier you retain legal counsel, the more options we will be able to pursue. For example, we may be able to negotiate with the prosecutor to get the charges dismissed or reduced before a grand jury convenes to issue an indictment. Houston Federal Criminal Lawyer Charles Johnson may be able to intervene on your behalf even before an arrest is made. If you believe you are the target of an investigation by any federal authority, please contact our office immediately.

Effective Defense Against Federal and Conspiracy Charges

In order to prove conspiracy, the government must prove each of the following elements beyond a reasonable doubt:

  • An agreement between at least two parties to achieve an illegal goal
  • That the defendant became a member of the conspiracy knowing at least one of its goals and intending to accomplish it
  • At least one conspirator committed an act to further the conspiracy.

As you can see, you can be charged with conspiracy even if you did nothing to actually commit a crime. The “crime” itself does not even have to be completed. In many cases, individuals with a limited role, or no role whatsoever in a criminal scheme, are charged with conspiracy. Suddenly even someone with a minor role in a broader conspiracy may be facing extreme consequences if convicted.

The Charles Johnson Law Firm will fight every aspect of these charges. We will hold the government to its burden of proof and will find any potential evidentiary or Constitutional violations in your case. You can contact Attorney Johnson anytime day or night and talk with him directly about your case. He can be reached at (713) 222-7577 around the clock.

Federal Conspiracy: Summary

Zacarias Moussaoui, members of the Colombian drug cartels, members of organized crime, and some of the former Enron executives have at least one thing in common: they all have federal conspiracy convictions. The essence of conspiracy is an agreement of two or more persons to engage in some form of prohibited misconduct. The crime is complete upon agreement, although some statutes require prosecutors to show that at least one of the conspirators has taken some concrete step or committed some overt act in furtherance of the scheme. There are dozens of federal conspiracy statutes. One, 18 U. S. C. 371, outlaws conspiracy to commit some other federal crime. The others outlaw conspiracy to engage in various specific forms of proscribed conduct. General Section 371 conspiracies are punishable by imprisonment for not more than five years; drug trafficking, terrorist, and racketeering conspiracies all carry the same penalties as their underlying substantive offenses, and thus are punished more severely than are Section 371 conspiracies. All are subject to fines of not more than $250,000 (not more than $500,000 for organizations), most may serve as the basis for a restitution order, and some for a forfeiture order.

The law makes several exceptions for conspiracy because of its unusual nature. Because many united in crime pose a greater danger than the isolated offender, conspirators may be punished for the conspiracy, any completed substantive offense which is the object of the plot, and any foreseeable other offenses which one of the conspirators commits in furtherance of the scheme. Since conspiracy is an omnipresent crime, it may be prosecuted wherever an overt act is committed in its furtherance. Because conspiracy is a continuing crime, its statute of limitations does not begin to run until the last overt act committed for its benefit. Since conspiracy is a separate crime, it may be prosecuted following conviction for the underlying substantive offense, without offending constitutional double jeopardy principles; because conspiracy is a continuing offense, it may be punished when it straddles enactment of the prohibiting statute, without offending constitutional ex post facto principles. Accused conspirators are likely to be tried together, and the statements of one may often be admitted in evidence against all.

In some respects, conspiracy is similar to attempt, to solicitation, and to aiding and abetting. Unlike aiding and abetting, however, it does not require commission of the underlying offense. Unlike attempt and solicitation, conspiracy does not merge with the substantive offense; a conspirator may be punished for both.

Introduction

Terrorists, drug traffickers, mafia members, and corrupt corporate executives have one thing in common: most are conspirators subject to federal prosecution. Federal conspiracy laws rest on the belief that criminal schemes are equally or more reprehensible than are the substantive offenses to which they are devoted. The Supreme Court has explained that a “collective criminal agreement – a partnership in crime – presents a greater potential threat to the public than individual delicts. Concerted action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality.” Moreover, observed the Court, “group association for criminal purposes often, if not normally, makes possible the attainment of ends more complex than those which one criminal could accomplish. Nor is the danger of a conspiratorial group limited to the particular end toward which it has embarked.” Finally, “combination in crime makes more likely the commission of crimes unrelated to the original purpose for which the group was formed.” In sum, “the danger which a conspiracy generates is not confined to the substantive offense which is the immediate aim of the enterprise.” Congress and the courts have fashioned federal conspiracy law accordingly.

The United States Code contains dozens of criminal conspiracy statutes. One, 18 U. S. C. 371, outlaws conspiracy to commit any other federal crime. The others outlaw conspiracy to commit some specific form of misconduct, ranging from civil rights violations to drug trafficking. Conspiracy is a separate offense under most of these statutes, regardless of whether conspiracy accomplishes its objective. The various conspiracy statutes, however, differ in several other respects. A few, including Section 371, require at least one conspirator to take some affirmative step in furtherance of the scheme. Most have no such overt act requirement.

Section 371 has two prongs. One outlaws conspiracy to commit a federal offense; a second, conspiracy to defraud the United States. Conspiracy to commit a federal crime under Section 371 requires that the underlying misconduct be a federal crime. Conspiracy to defraud the United States under Section 371 and in several other instances has no such prerequisite. Section 371 conspiracies are punishable by imprisonment for not more than five years. Elsewhere, conspirators often face more severe penalties.

These differences aside, federal conspiracy statutes share much common ground because Congress decided they should. As the Court observed in Salinas, “When Congress uses well-settled terminology of criminal law, its words are presumed to have their ordinary meaning and definition. When the relevant statutory phrase is ‘to conspire,’ we presume Congress intended to use the term in its conventional sense, and certain well-established principles follow.”

These principles include the fact that regardless of its statutory setting, every conspiracy has at least two elements: (1) an agreement (2) between two or more persons. Members of the conspiracy are also liable for the foreseeable crimes of their fellows committed in furtherance of the common plot. Moreover, statements by one conspirator are admissible evidence against all. Conspiracies are considered continuing offenses for purposes of the statute of limitations and venue. They are also considered separate offenses for purposes of sentencing and of challenges under the Constitution’s ex post facto and double jeopardy clauses. This is a brief discussion of the common features of federal conspiracy law that evolved over the years, with passing references to some of the distinctive features of some of the statutory provisions.

Background

Although it is not without common law antecedents, federal conspiracy law is largely of our own making. It is what Congress provided, and what the courts understood Congress intended. This is not to say that conspiracy was unknown in pre-colonial and colonial England, but simply that it was a faint shadow of the crime we now know. Then, it was essentially a narrow form of malicious prosecution, subject to both a civil remedy and prosecution. In the late 18 and early 19 centuries, state courts and legislatures recognized a rapidly expanding accumulation of narrowly described wrongs as ” conspiracy.” The patchwork reached a point where one commentator explained that there were “few things left so doubtful in the criminal law, as the point at which a combination of several persons in a common object becomes illegal.”

Congress, however, enacted few conspiracy statutes prior to the Civil War. It did pass a provision in 1790 that outlawed confining the master of a ship or endeavoring revolt on board. This, Justice Story, sitting as a circuit judge, interpreted to include any conspiracy to confine the prerogatives of the master of ship to navigate, maintain, or police his ship. The same year, 1825, Congress outlawed conspiracies to engage in maritime insurance fraud. Otherwise, there were no federal conspiracy statutes until well after the mid-century mark.

During the War Between the States, however, Congress enacted four sweeping conspiracy provisions, creating federal crimes that have come down to us with little substantive change. The first, perhaps thought more pressing at the beginning of the war, was a seditious conspiracy statute. Shortly thereafter, Congress outlawed conspiracies to defraud the United States through the submission of false claim, and followed that four years later with a prohibition on conspiracies to violate federal law or to defraud the United States.

Subsequent conspiracy statutes, though perhaps no less significant, were more topically focused. The Reconstruction civil rights conspiracy provisions, the Sherman Act anti-trust provisions,and the drug and racketeering statutesmay be the best known of these. All of them begin the same way — with an agreement by two or more persons.

Two or More Persons

There are no one-man conspiracies. At common law where husband and wife were considered one, this meant that the two could not be guilty of conspiracy without the participation of some third person. This is no longer the case. In like manner at common law, corporations could not be charged with a crime. This too is no longer the case. A corporation is criminally liable for the crimes, including conspiracy, committed at least in part for its benefit, by its employees and agents. Moreover, a corporation may be criminally liable for intra-corporate conspiracies, as long as at least two of its officers, employees, or agents are parties to the plot. Notwithstanding the two-party requirement, no co-conspirator need have been tried or even identified, as long as the government produces evidence from which the conspiracy might be inferred. Even the acquittal of a co-conspirator is no defense. In fact, a person may conspire for the commission of a crime by a third person though he himself is legally incapable of committing the underlying offense.

On the other hand, two people may not always be enough. The so-called Wharton’s Rule placed a limitation on conspiracy prosecutions when the number of conspirators equaled the number of individuals necessary for the commission of the underlying offense. Under federal law, the rule “stands as an exception to the general principle that a conspiracy and the substantive offense that is its immediate end do not merge upon proof of the latter.” And under federal law, the rule reaches no further than to the types of offenses that birth its recognition — dueling, adultery, bigamy, and incest.

Agreement

It is not enough, however, to show that the defendant agreed only with an undercover officer to commit the underlying offense, for there is no agreement on a common purpose in such cases. As has been said, the essence of conspiracy is an agreement, an agreement to commit some act condemned by law either as a separate federal offense or for purposes of the conspiracy statute. The agreement may be evidenced by word or action; that is, the government may prove the existence of the agreement either by direct evidence or by circumstantial evidence from which the agreement may be inferred. “Relevant circumstantial evidence may include: the joint appearance of defendants at transactions and negotiations in furtherance of the conspiracy; the relationship among codefendants; mutual representation of defendants to third parties; and other evidence suggesting unity of purpose or common design and understanding among conspirators to accomplish the objects of the conspiracy.

The lower federal appellate courts have acknowledged that evidence of a mere buyer-seller relationship is insufficient to support a drug trafficking conspiracy charge. Some do so under the rationale that there is no singularity of purpose, no necessary agreement, in such cases: “the buyer’s purpose is to buy; the seller’s purpose is to sell.” Others do so to avoid sweeping mere customers into a large-scale trafficking operation. Still others do so lest traffickers and their addicted customers face the same severe penalties. All agree, however, that purchasers may be liable as conspirators when they are part of a large scheme.

Again, in most cases the essence of conspiracy is agreement. “Nevertheless, mere association, standing alone, is inadequate; an individual does not become a member of a conspiracy merely associating with conspirators known to be involved in crime.”

One or Many Overlapping Conspiracies

The task of sifting agreement from mere association becomes more difficult and more important with the suggestion of overlapping conspiracies. Criminal enterprises may involve one or many conspiracies. Some time ago, the Supreme Court noted that “thieves who dispose of their loot to a single receiver – a single ‘fence’ – do not by that fact alone become confederates: They may, but it takes more than knowledge that he is a ‘fence’ to make them such.” Whether it is a fence, or a drug dealer, or a money launderer, when several seemingly independent criminal groups share a common point of contact, the question becomes whether they present one overarching conspiracy or several separate conspiracies with a coincidental overlap. In the analogy suggested by the Court, when separate spokes meet at the common hub they can only function as a wheel if the spokes and hub are enclosed within a rim. When several criminal enterprises overlap, they are one overarching conspiracy or several overlapping conspiracies depending upon whether they share a single unifying purpose and understanding—one common agreement.

In determining whether they are faced with a single conspiracy or a rimless collection of overlapping schemes, the courts will look for “the existence of a common purpose . . . (2) interdependence of various elements of the overall play; and (3) overlap among the participants.” “Interdependence is present if the activities of a defendant charged with conspiracy facilitated the endeavors of other alleged co-conspirators or facilitated the venture as a whole.

If this common agreement exists, it is of no consequence that a particular conspirator joined the plot after its inception as long as he joined it knowingly and voluntarily. Nor does it matter that a defendant does not know all of the details of a scheme or all of its participants, or that his role is relatively minor.

Overt Acts

Conviction under 18 U. S. C. 371 for conspiracy to commit a substantive offense requires proof that one of the conspirators committed an overt act in furtherance of the conspiracy. In the case of prosecution under other federal conspiracy statutes that have no such requirement, the existence of an overt act may be important for evidentiary and procedural reasons. The overt act need not be the substantive crime which is the object of the conspiracy, an element of that offense, nor even a crime in its own right. Moreover, a single overt act by any of the conspirators in furtherance of plot will suffice.

Conspiracy to Defraud the United States

Federal law contains several statutes that outlaw defrauding the United States. Two of the most commonly prosecuted are 18 U. S. C. 286, which outlaws conspiracy to defraud the United States through the submission of a false claim, and 18 U. S. C. 371, which in addition to conspiracies to violate federal law, outlaws conspiracies to defraud the United States of property or by obstructing the performance of its agencies. Section 371 has an overt act requirement; section 286 does not. The general principles of federal conspiracy law apply to both.

The elements of conspiracy to defraud the United States under 18 U. S. C. 371 are (1) an agreement of two or more persons; (2) to defraud the United States; and (3) an overt act in furtherance of the conspiracy committed by one of the conspirators. The “fraud covered by the statute reaches any conspiracy for the purpose of impairing, obstructing or defeating the lawful functions of any department of the Government” by “deceit, craft or trickery, or at least by means that are dishonest.” The plot must be directed against the United States or entity; a scheme to defraud the recipient of federal funds is not sufficient. The scheme may be designed to deprive the United States of money or property, but it need not be so; a plot calculated to frustrate the functions of an entity of the United States will suffice.

In contrast, a second federal statute, 18 U. S. C. 286, condemns conspiracies to defraud the United States of money or property through submission of a false claim. The elements of a section 286 violation are that “the defendant entered into a conspiracy to obtain payment or allowance of a claim against a department or agency of the United States; (2) the claim was false, fictitious, or fraudulent; (3) the defendant knew or was deliberately ignorant of the claim’s falsity, fictitiousness, or fraudulence; (4) the defendant knew of the conspiracy and intended to join it; and (5) the defendant voluntarily participated in the conspiracy.” Conviction does not require proof of an overt act in furtherance of the conspiracy.

When Does It End

Conspiracy is a crime which begins with a scheme and may continue on until its objective is achieved or abandoned. The liability of individual conspirators continues on from the time they joined the plot until it ends or until they withdraw. The want of an individual’s continued active participation is no defense as long as the underlying conspiracy lives and he has not withdrawn. An individual who claims to have withdrawn bears the burden of establishing either that he took some action to make his departure clear to his co-conspirators or that he disclosed the scheme to the authorities. As a general rule, overt acts of concealment do not extend the life of the conspiracy beyond the date of the accomplishment of its main objectives. On the other hand, the rule does not apply when concealment is one of the main objectives of the conspiracy.

Sanctions

Imprisonment and Fines

Section 371 felony conspiracies are punishable by imprisonment for not more than five years and a fine of not more than $250,000 (not more than $500,000 for organizations). Most drug trafficking, terrorism, racketeering, and many white collar conspirators face the same penalties as those who committed the underlying substantive offense, e. g. , 21 U. S. C. 846 ( “Any person who . . . conspires to commit any offense defined in the Controlled Substances Act shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the . . . conspiracy” ); 18 U. S. C. 2339B ( “Whoever knowingly provides material support or resources to a foreign terrorist organization . . . . or conspires to do so, shall be fined under this title, or imprisoned not more than 15 years, or both” ); 18 U. S. C. 1962(d), 1963(a)( “(d) It shall be unlawful for any person to conspire to violate any of the racketeering provisions of subsection (a), (b), or (c) of this section. . . . (a) Whoever violates any provision of section 1962 . . . shall be fined under this title, or imprisoned for not more than 20 years. . . or both ” ); 18 U. S. C. 1349 ( ” Any person who . . . conspires to commit any offense under this chapter relating to mail fraud, wire fraud, etc. shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of . . . the conspiracy” ).

The United States Sentencing Guidelines greatly influence the sentences for federal crimes. Federal courts are bound to impose a sentence within the statutory maximums and minimums. Their decision of what sentence to impose within those boundaries, however, must begin with a determination of the sentencing recommendation under the guidelines. Reasonableness standards govern review of their sentencing decisions,and a sentence within the Sentencing Guideline range is presumed reasonable.

The Sentencing Guidelines system is essentially a scoring system. Federal crimes are each assigned a numerical base offense level and levels are added and subtracted to account for the various aggravating and mitigating factors in a particular case. Thus, for example, providing material support to a terrorist organization, 18 U. S. C. 2339B, has a base offense level of 26, which may be increased by 2 levels if the support comes in the form of explosives, U. S. S. G. §2M5. 3(a), (b) and may be increased or decreased still further for other factors. The guidelines designate six sentencing ranges of each total offense level; the appropriate range within the six is determined by extent of the offender’s criminal record. For instance, the sentencing range for a first-time offender with a total offense level of 28 would be imprisonment for between 78 and 97 months (Category I); while the range for an offender in the highest criminal history category (Category VI) would be imprisonment for between 140 and 175 months.

The base offense level for conspiracy is generally the same as that for the underlying offense, either by operation of an individual guideline, for example, U. S. C. §2D1. 1 (drug trafficking), or by operation of the general conspiracy guideline, U. S. S. C. §2X1. 1. In any event, conspirators who play a leadership role in an enterprise are subject to an increase of from 2 to 4 levels,

U. S. S. G. §3B1. 1, and those who play a more subservient role may be entitled to reduction of from 2 to 4 levels, U. S. S. G. §3B1. 2. In the case of terrorism offenses, conspirators may also be subject to a special enhancement which sets the minimum total offense level at 32 and the criminal history category at VI (regardless of the extent of the offender’s criminal record), U. S. S. G. §3A1. 4.

The Sentencing Guidelines also address the imposition of fines below the statutory maximum. The total offense level dictates the recommended fine range for individual and organizational defendants. For instance, the fine range for an individual with a total offense level of 28 is $12,500 to $125,000, U. S. C. §5E1. 2. The recommended fine range for an organization with a total offense level of 28 is $6,300,000 (assuming the loss or gain associated with the organization offense exceeds the usual $500,000 ceiling), U. S. S. G. §8C2. 4.

Restitution

A conspirator’s liability for restitution is a matter of circumstance. Most conspiracy statutes do not expressly provide for restitution, but in most instances restitution may be required or permitted under any number of grounds. As a general rule, federal law requires restitution for certain offenses and permits it for others. A sentencing court is generally required to order a defendant to make restitution following conviction for a crime of violence or for a crime against property (including fraud), 18 U. S. C. 366A(a), (c). Those entitled to restitution under Section 3663A include those ” directly and proximately harmed ” by the crime of conviction and “in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant’s criminal conduct in the course of the scheme, conspiracy or pattern,” 18 U. S. C. 3663A(b).

Otherwise, a court is permitted to order restitution (a) following conviction for an offense prescribed under title 18 of the United States Code or for drug trafficking, 18 U. S. C. 3663; (b) as a condition of probation or supervised release, 18 U. S. C. 3563(b)(2), 3583(d); or (c) pursuant to a plea agreement, 18 U. S. C. 3663(a)(3), 3663A(c)(2).

Forfeiture

The treatment of forfeiture in conspiracy cases is perhaps even more individualistic than restitution in conspiracy cases. The general criminal forfeiture statute, 18 U. S. C. 982, authorizes confiscation for several classes of property as a consequence of a particular conspiracy conviction, for example, 18 U. S. C. 982(a)(2)(calling for the confiscation of proceeds realized from “a violation of, or a conspiracy to – (A) section . . . 1341, 1343, 1344 of this title relating to mail, wire and bank fraud, affecting a financial institution” ); 18 U. S. C. 982(a)(8)(calling for the confiscation of proceeds from, and property used to facilitate or promote, “an offense under section . . . 1341, or 1343, or of a conspiracy to commit such an offense, if the offense involves telemarketing” ).

In the case of drug trafficking, forfeiture turns on the fact that it is authorized for any Controlled Substance Act violation, 21 U. S. C. 853, of which conspiracy is one, 21 U. S. C. 846. The same can be said of racketeering conspiracy provisions of 18 U. S. C. 1962(d).

Relation of Conspiracy to Other Crimes

Conspiracy is a completed crime upon agreement, or upon agreement and the commission of an overt act under statutes with an overt act requirement. Conviction does not require commission of the crime that is the object of the conspiracy. On the other hand, conspirators may be prosecuted for conspiracy, for any completed offense which is the object of the conspiracy, as well as for any foreseeable offense committed in furtherance of the conspiracy.

Aid and Abet

Anyone who “aids, abets, counsels, commands, induces, or procures” the commission of a federal crime by another is punishable as a principal, that is, as though he had committed the offense himself, 18 U. S. C. 2. If the other agrees and an overt act is committed, they are conspirators, each liable for conspiracy and any criminal act committed to accomplish it. If the other commits the offense, they are equally punishable for the basic offense. “Typically, the same evidence will support both a conspiracy and an aiding and abetting conviction.” The two are clearly distinct, however, as the Ninth Circuit has noted:

The difference between the classic common law elements of aiding and abetting and a criminal conspiracy underscores this material distinction, although at first blush the two appear similar. Aiding and abetting the commission of a specific crime, we have held, includes four elements: (1) that the accused had the specific intent to facilitate the commission of a crime by another, (2) that the accused had the requisite intent to commit the underlying substantive offense, (3) that the accused assisted or participated in the commission of the underlying substantive offense, and (4) that the principal committed the underlying offense. As Lopez emphasized, the accused generally must associate himself with the venture . . . participate in it as something he wishes to bring about, and sought by his action to make it succeed.

By contrast, a classic criminal conspiracy as charged in 18 U. S. C. § 371 is broader. The government need only prove (1) an agreement to engage in criminal activity, (2) one or more overt acts taken to implement the agreement, and (3) the requisite intent to commit the substantive crime. Indeed, a drug conspiracy does not even require commission of an overt act in furtherance of the conspiracy.

Two distinctions become readily apparent after a more careful comparison. First, the substantive offense which may be the object in a § 371 conspiracy need not be completed. Second, the emphasis in a § 371 conspiracy is on whether one or more overt acts was undertaken. This language necessarily is couched in passive voice for it matters only that a co-conspirator commit the overt act, not necessarily that the accused herself does so. In an aiding and abetting case, not only must the underlying substantive offense actually be completed by someone, but the accused must take some action, a substantial step, toward associating herself with the criminal venture. United States v. Hernandez-Orellana, 539 F. 3d 994, 1006-1007 (9th Cir. 2008).

Attempt

Conspiracy and attempt are both inchoate offenses, unfinished crimes in a sense. They are forms of introductory misconduct that the law condemns lest they result in some completed form of misconduct. Federal law has no general attempt statute. Congress, however, has outlawed attempt to commit a number of specific federal offenses. Like conspiracy, a conviction for attempt does not require the commission of the underlying offense. Both require an intent to commit the contemplated substantive offense. Like conspiracy, the fact that it may be impossible to commit the target offense is no defense to a charge of attempt to commit it. Unlike conspiracy, attempt can be committed by a single individual. Attempt only becomes a crime when it closely approaches a substantive offense. Conspiracy becomes a crime far sooner. Mere acts of preparation will satisfy the most demanding conspiracy statute, not so with attempt. Conspiracy requires no more than an overt act in furtherance; attempt, a substantial step to completion. Moreover, unlike a conspirator, an accused may not be convicted of both attempt and the underlying substantive offense.

An individual may be guilty of both conspiring with others to commit an offense and of attempting to commit the same offense, either himself or through his confederates. In some circumstances, he may be guilty of attempted conspiracy. Congress has outlawed at least one example of an attempt to conspire in the statute which prohibits certain invitations to conspire, that is, solicitation to commit a federal crime of violence, 18 U. S. C. 373.

Solicitation

Section 373 prohibits efforts to induce another to commit a crime of violence “under circumstances strongly corroborative” of intent to see the crime committed, 18 U. S. C. 373(a). Section 373′s crimes of violence are federal “felonies that have as an element the use, attempted use, or threatened use of physical force against property or against the person of another,” id. Examples of “strongly corroborative” circumstances include “the defendant offering or promising payment or another benefit in exchange for committing the offense; threatening harm or other detriment for refusing to commit the offense; repeatedly soliciting or discussing at length in soliciting the commission of the offense, or making explicit that the solicitation is serious; believing or knowing that the persons solicited had previously committed similar offenses; and acquiring weapons, tools, or information or use in committing the offense, or making other apparent preparations for its commission.” As is the case of attempt, “an individual cannot be guilty of both the solicitation of a crime and the substantive crime.” Although the crime of solicitation is complete upon communication with the requisite intent, renunciation prior to commission of the substantive offense is a defense. The offender’s legal incapacity to commit the solicited offense himself, however, is not a defense.

Procedural Attributes

Statute of Limitations

The statute of limitations for most federal crimes is five years, 18 U. S. C. 3282. The five-year limitation applies to the general conspiracy statute, 18 U. S. C. 371, and to the false claims conspiracy statute, 18 U. S. C. 286. Section 371 requires proof of an overt act; section 286 does not. For conspiracy offenses with an overt act requirement like those under Section 371, the statute of limitations begins with completion of the last overt act in furtherance of the conspiracy. For conspiracy offenses with no such requirement like those under section 286, the statute of limitations begins with the abandonment of the conspiracy or the accomplishment of its objectives.

Venue

The presence or absence of an overt act requirement makes a difference for statute of limitations purposes. For venue purposes, it apparently does not. The Supreme Court has observed in passing that “this Court has long held that venue is proper in any district in which an overt act in furtherance of the conspiracy was committed, even where an overt act is not a required element of the conspiracy offense.” The lower federal appellate courts are seemingly of the same view, for they have found venue proper for a conspiracy prosecution wherever an overt act occurs — under overt act statutes and non-overt act statutes alike.

Joinder and Severance (One Conspiracy, One Trial)

Three rules of the Federal Rules of Criminal Procedure govern joinder and severance for federal criminal trials. Rule 8 permits the joinder of common criminal charges and defendants. Rule 12 insists that a motion for severance be filed prior to trial. Rule 14 authorizes the court to grant severance for separate trials as a remedy for prejudicial joinder.

The Supreme Court has pointed out that “there is a preference in the federal system for joint trials of defendants who are indicted together. Joint trials play a vital role in the criminal justice system. They promote efficiency and serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.” In conspiracy cases, a ” conspiracy charge combined with substantive counts arising out of that conspiracy is a proper basis for joinder under Rule 8(b).” Moreover, “the preference in a conspiracy trial is that persons charged together should be tried together.” In fact, “it will be the rare case, if ever, where a district court should sever the trial of alleged co-conspirators.” The Supreme Court has reminded the lower courts that “a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.” The Court noted that the risk may be more substantial in complex cases with multiple defendants, but that “less drastic measures, such as limiting instructions, often will suffice to cure any risk of prejudice.” Subsequently lower federal appellate court opinions have emphasized the curative effect of appropriate jury instructions.

Double Jeopardy and Ex Post Facto

Because conspiracy is a continuing offense, it stands as an exception to the usual ex post facto principles. Because it is a separate crime, it also stands as an exception to the usual double jeopardy principles.

The ex post facto clauses of the Constitution forbid the application of criminal laws which punish conduct that was innocent when it was committed or punishes more severely criminal conduct than when it was committed. Increasing the penalty for an ongoing conspiracy, however, does not offend ex post facto constraints as long as the conspiracy straddles the date of the legislative penalty enhancement.

The double jeopardy clause of the Fifth Amendment declares that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” This prohibition condemns successive prosecutions, successive punishments, and successive use of charges rejected in acquittal.

For successive prosecution or punishment, the critical factor is the presence or absence of the same offense. Offenses may overlap, but they are not the same crime as long as each requires proof of an element that the other does not. 130 Since conspiracy and its attendant substantive offense are ordinarily separate crimes — one alone requiring agreement and the other alone requiring completion of the substantive offense — the double jeopardy clause poses no impediment to successive prosecution or to successive punishment of the two.

Double jeopardy issues arise most often in a conspiracy context when a case presents the question of whether the activities of the accused conspirators constitute a single conspiracy or several overlapping conspiracies. Multiple conspiracies may be prosecuted sequentially and punished with multiple sanctions; single conspiracies must be tried and punished once. Asked to determine whether they are faced with one or more than one conspiracy, the courts have said they inquire whether:

  1. the locus criminis place of the two alleged conspiracies is the same;
  2. there is a significant degree of temporal overlap between the two conspiracies charged;
  3. there is an overlap of personnel between the two conspiracies (including unindicted as well as indicted co-conspirators);
  4. the over acts charged are related;
  5. the role played by the defendant relates to both;
  6. there was a common goal among the conspirators;
  7. whether the agreement contemplated bringing to pass a continuous result that will not continue without the continuous cooperation of the conspirators; and
  8. the extent to which the participants overlapped in their various dealings.

Co-conspirator Declarations

At trial, the law favors the testimony of live witnesses — under oath, subject to cross examination, and in the presence of the accused and the jury — over the presentation of their evidence in writing or through the mouths of others. The hearsay rule is a product of this preference. Exceptions and definitions narrow the rule’s reach. For example, hearsay is usually defined to include only those out-of-court statements which are offered in evidence “to prove the truth of the matter asserted.”

Although often referred to as the exception for co-conspirator declarations, the Federal Rules of Evidence treats the matter within its definition of hearsay. Thus, Rule 801(d)(2)(E) of the Federal Rules provides that an out-of-court “statement is not hearsay if . . . (2) The statement is offered against a party and is . . . (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.”

To admit a co-conspirator declaration into evidence under the Rule, a “court must find: (1) the conspiracy existed; (2) the defendant was a member of the conspiracy; and (3) the co-conspirator made the proffered statements in furtherance of the conspiracy.” The court, however, may receive the statement preliminarily subject to the prosecution’s subsequent demonstration of its admissibility by a preponderance of the evidence. As to the first two elements, a co­conspirator’s statement without more is insufficient; there must be ” some extrinsic evidence sufficient to delineate the conspiracy and corroborate the declarant’s and the defendant’s roles in it.” As to the third element, “a statement is in furtherance of a conspiracy if it is intended to promote the objectives of the conspiracy.” A statement is in furtherance, for instance, if it describes for the benefit of a co-conspirator the status of the scheme, its participants, or its methods. Bragging, or “mere idle chatter or casual conversation about past events, “however, are not considered statements in furtherance of a conspiracy.

Under some circumstances, evidence admissible under the hearsay rule may nevertheless be inadmissible because of Sixth Amendment restrictions. The Sixth Amendment provides, among other things, that “in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” The provision was inspired in part by reactions to the trial of Sir Walter Raleigh, who argued in vain that he should be allowed to confront the alleged co-conspirator who had accused him of treason. Given its broadest possible construction, the confrontation clause would eliminate any hearsay exceptions or limitations. The Supreme Court in Crawford v. Washington explained, however, that the clause has a more precise reach. The clause uses the word “witnesses” to bring within its scope only those who testify or whose accusations are made in a testimonial context. In a testimonial context, the confrontation clause permits use at trial of prior testimonial accusations only if the witness is unavailable and only if the accused had the opportunity to cross examine him when the testimony was taken. The Court elected to “leave for another day any effort to spell out a comprehensive definition of ‘testimonial,’” but has suggested that the term includes “affidavits, depositions, prior testimony, or confessions ,and other statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Since Crawford, the lower federal courts have generally held that the confrontation clause poses no obstacle to the admissibility of the co-conspirator statements at issue in the cases before them, either because the statements were not testimonial; were not offered to establish the truth of the asserted statement; or because the clause does not bar co-conspirator declarations generally.

Obtain the Best Defense Against Federal Conspiracy Charges

Many people charged with federal drug conspiracies are concerned with predicting the outcome of their cases. They often wonder about the likelihood of a conviction and the length of a potential sentence. The truth is that, if you are charged with a drug conspiracy, your case can be very serious and complicated. A lot may depend on the drug quantity, the testimony of witnesses and on cooperation with the prosecution. Federal Criminal Lawyer Charles Johnson can help you navigate the legal system so that you can make decisions based on in-depth understanding of the consequences you may face.

In federal drug conspiracy cases, a lot has to do with the strength of the evidence. Experienced Attorney Charles Johnson skilled at helping clients evaluate whether to take a case to trial or whether to find other ways to resolve the issue more favorably. At the Charles Johnson Law Firm, we place a large emphasis on honesty with our clients. Although it is often more difficult to be realistic with clients than to promise miracles, we know that our clients and their families deserve the truth about the seriousness of federal drug conspiracy charges.

They also deserve the skilled legal representation we provide. Whether you are charged with criminal conspiracy, a continuing criminal enterprise or with a violation the Racketeer Influenced and Corrupt Organizations Act (commonly called RICO), we will use our knowledge and experience to strive for the best results possible.

Contact Houston Lawyer Charles Johnson anytime night or day at (713) 222-7577 to speak with him directly. Our law firm is dedicated to helping clients face drug conspiracy charges with confidence and dignity.


Houston Federal Drug Crimes Lawyer Charles Johnson

Download “Facing Federal Conspiracy Charges? Houston Criminal Lawyer Charles Johnson Will Provide the Most Effective Defense” in PDF Format



Find us on Google+

News Stories Related to Federal Conspiracy Arrests:

Arrested For Online Solicitation of a Minor? The Right Houston Criminal Lawyer Can Make a Difference

Top Houston Sex Crimes LawyersAs a result of the increased efforts of local and national law enforcement task forces to discover Online Solicitation of Minors or Importuning, Houston Sex Crimes Lawyer Charles Johnson has frequently represented individuals who have been accused of communicating with a minor using the computer. In fact, the law in most jurisdictions allows for an officer to pose as a minor while communicating with a suspect. Soliciting either an actual minor or a police officer posing as a minor may result in the filing of charges and subsequent prosecution. A common misconception is that no crime is committed unless there is an actual meeting. In actuality, the offense of On-line Solicitation or Importuning may be completed merely through the communication or “chat.” If there is an attempt to actually meet, additional charges may be warranted.

Houston Criminal Lawyer Charles Johnson is well-versed in the various defenses that must be explored in all cases of this kind. These defenses may include issues of entrapment, client knowledge, or jurisdictional questions.

Accusation of soliciting a minor online can often result from entrapment-type situations commonly depicted on televisions shows. However, soliciting a minor online can also be the result of a mistake or an accident. For example, an individual can be charged with soliciting a minor when they thought they were communicating with an adult on the computer, but may have actually been talking to an underage person. No matter the reason for the false claims against you, it is important to contact an experienced sex crimes defense lawyer who will make every effort to find defenses or other mitigating factors that will result in an acquittal of the charges against you.

An allegation of On-line Solicitation or Importuning calls for great effort and resources, as the stakes are high – one faces not only a potential prison term, but also the stigmatizing and debilitating effects of sex offender public registration, which makes it difficult if not impossible to obtain employment, and may even severely restrict one’s ability to reside in certain locations.

Jurors are often familiar with programs like “To Catch a Predator”, giving them preconceived notions which need to be addressed and diffused. Our lawyers know first-hand that with thoughtful and extensive examination of pertinent case law and pre-trial motions, a successful defense of On-line Solicitation and Importuning allegations can be achieved.

It is important to remember that if you have been accused of soliciting a minor online, the state prosecutor is required to prove every element of the offense beyond a reasonable doubt. This can be a very difficult burden of proof to meet, and any doubt in the mind of the judge or jury can result in a dismissal or reduction of the charges against you. Therefore, it is essential to contact an experienced Child Sex Abuse lawyer to help you begin developing the best legal defense for your particular case. Contact Houston Criminal Lawyer Charles Johnson for a free consultation today at 713-222-7577 anytime, night or day if you have been falsely accused of soliciting a minor online.

Online Solicitation of a Minor Defined

Since the 1990′s, the internet has changed the way we communicate, do business, meet people, and almost all other aspects of our lives. Unfortunately, it has also led to new criminal charges, many of which carry steep penalties. The most severe online offenses are those related to the potential harm of an underage person, such as online solicitation of a minor.

Online solicitation of a minor is communication with a minor via the internet that aims to arouse, sexually gratify, harass, or arrange to meet a minor face-to-face in the real world. In Texas, a minor is any person who is 17 years of age or younger. Exchanging sexually oriented materials, conversations, or invitations with a minor is a serious legal offense in our state.

Sexual exploitation can result in numerous physical and psychological consequences for children that may be multiplied for victims of child pornography because they face a lifetime of possible revictimization through the continued distribution of videos, photographs, or computer images depicting their exploitation (Klain, 2001). The mass media continues to feed into the stereotype that all Internet offenders are “predators” or “pedophiles”. According to ABC World News Tonight in June 2006, there are approximately 563,000 registered sex offenders nationally. However, decades of research indicates that only ten percent (10%) of sex offenders are truly predatory in nature.

This is not to discount that Internet victimization is one of the most dangerous Internet threats, but society must be cautious in using such characteristics without empirical data to support such a homogenous label. In the National Juvenile Online Victimization (N-JOV) study, approximately seventy-eight percent (78%) of cases, the offender was one of the victim’s family members, second generation family member such as grandparents, uncle or aunt, or stepparents or parent’s intimate partner.

Children exploring the Internet for education and entertainment are at risk of encountering sexually explicit material, sexual exploitation, and Internet offenses while remaining undetected by parents. The Internet has become a conduit for sexually explicit material and offenses against children. Children are extremely vulnerable to victimization due to their curiosity, naiveté, and trusting nature. These crimes present law enforcement with many complex problems due to the fact that they transcend jurisdictional boundaries and often involve multiple victims in multiple states and countries. Internet crimes must be pursued vigorously by law enforcement.

The greatest obstacle facing law enforcement is that children and parents do not report the majority of Internet crimes. In situations where the abuse is a parent, a relative, or acquaintance, the abuse may be more likely to come to light inadvertently as a result of inquiries by social welfare and reports from neighbors, rather than as a result of police inquiries into online crime (Wolak, 2005, in press). Community involvement, parental supervision, and early intervention and prevention programs on Internet safety are essential in protecting children from online solicitation and exposure to pornography.

General Information

The computer age presents complex challenges for law enforcement, victim services, parents, legislators, and the community. The proliferation of computer technology obviously has enhanced our lives in many ways, such as enabling improved productivity and efficiency at work, school, and home (U.S. Department of Justice, 2001). Unfortunately, this technology is not without potential threats and harm for criminals to prey upon innocent victims. According to ABC World News Tonight in June 2006, there are approximately 563,000 registered sex offenders nationally. End Child Prostitution, Child Pornography and Trafficking of Children for Sexual Purposes (EPCAT) International reports violence and harms against children and young people in cyberspace include: the production, distribution, and use of materials depicting child sexual abuse; online solicitation; exposure to materials that can cause psychological harm, lead to physical harm, or facilitate other detriments to a child; and harassment and intimidation.

Today the Internet has approximately two hundred (200) million users worldwide who can communicate with each other. Children of all ages are browsing the Internet. Forty-five (45%) of children in the United States, more than thirty (30) million of whom are younger than eighteen (18) use the Internet. By 2005, it was estimated that there are seventy-seven (77) million children online. Approximately one hundred three (103) million people use instant messaging (IM) programs such as AOL’s AIM, Microsoft’s MSN Messenger, and others. MySpace.com reports more than eighty-five (85) million members and the number of visitors to MySpace went from 4.9 million in 2005 to currently over sixty-seven (67) million. Like most new technological developments, this brings both positive and negative implications, especially for parents and their children.

Some children are especially at risk due to a range of vulnerability-enhancing factors common to all environments. They are in socially and economically difficult situations, have experienced sexual abuse and exploitation, are lonely, or feel alienated from their parents. Others have low self-esteem, feel awkward, are confused about their personal identity and sexuality, and lack confidence. Gender is also seen to be a risk factor, with seemingly more girls than boys appearing to be harmed through cyberspace interactions (although boys are increasingly featured in pornographic images circulating online).

Top Houston Sex Crimes Lawyers

Demographics of an Internet Offender

Sex offenders and child pornographers are a heterogeneous mixture. Before the advent of the Internet, between one-fifth and one-third of people arrested for possession of child pornography were also involved in actual abuse. The majority are male and come from all socio-economic and racial backgrounds. Many are skilled in technology. Not all fit the clinical classification of “pedophilia”. The mass media continues to feed into the stereotype that all Internet offenders are “predators” or “pedophiles”. This is not to discount that Internet victimization is one of the most dangerous Internet threats but society must be cautious in using such characteristics without empirical data to support such a homogenous label. We have to remember that in a previous generation, campaigns to prevent child molestation characterized the threat as “playground predator” or “stranger danger” so that for years the problem of youth, acquaintance, and intra-family perpetrators went unrecognized.

In an analysis of 600 cases of child sexual abuse in which the Internet played a role, either the offender- victim relationship was initiated or conducted online, the case involved the online sharing or distribution of child pornography, or the case involved child pornography stored on a computer or digital media. One hundred twenty six (126) cases involved a face-to-face relationship between the offender and the victim prior to any use of the Internet in committing abuse. N-JOV data indicated that the Internet was involved in eighteen percent (18%) of all sex crimes against minors and that nearly half of the eighteen percent (18%) were committed by acquaintances or family members, with a total of at least 460 arrests a year. This study found ninety-five percent (95%) were non-Hispanic Caucasians and forty-seven percent (47%) were twenty-six (26) or older. Thirty-five percent (35%) were married and over a third lived in small towns. Eighty percent (80%) were employed full time and fifty-one percent (51%) had incomes ranging from $20,000-$50,000 per year.

Identifying Internet Offenders

There is no one type of Internet child pornography user, and there is no easy way to recognize an offender. In the 2005 Wolak survey, solicitors did not match the stereotype of the older male “Internet predator”. Many were identified as other youth and some were female. Having a preconceived idea of a child sex offender can be unhelpful and prove a distraction for investigating police. Those convicted of sexually abusing children will not necessarily seek out or collect pornography, with one study putting the number of offenders who do so at around ten percent (10%).

This explosion of computer use, and the ease with which identities can be concealed on-line, has offered obvious opportunities to those who produce and consume pornography and those who seek to exploit vulnerable populations for sexual gratification. The Internet technology affords perpetrators a foundation for repeated, long-term victimization of a child. These crimes present law enforcement with many complex problems due to the fact that they transcend jurisdictional boundaries and often involve multiple victims in multiple states and countries.

N-JOV data reflected that the most common use of the Internet with family (70%) and acquaintance (65%) offenders was for seduction or grooming of victims either through online conversations or sharing of pornographic images. Forty-nine percent (49%) of family offenders and thirty-nine percent (39%) of acquaintance offenders produced pornographic images of their victims, which they stored or disseminated using the Internet. Forty-three percent (43%) used the Internet to arrange a face-to-face meeting. Relatively small numbers of offenders (2-4%) used the Internet as an inducement to enter the offender’s home and use it to advertise or sell victims online. Seventy-five percent (75%) of these cases involved some form of sexual contact and forty-five percent (45%) involved intercourse or other penetration. In a quarter of these cases, the sexual contact continued for over a year before being reported to the police.

How Sex Offenders Select Victims

A greater number of sex offenders are using the Internet searching for potential child victims through “kid only” or “kid friendly” chat rooms, online games, and instant messenger. The “set-up” for victimization requires long-term thought and planning. But a distinctive aspect of interaction in cyberspace that facilitates the grooming process is the rapid speed with which communication can become intimate. Chat rooms can be frequented by sex offenders that groom and manipulate their victims by playing on the emotional immaturity of children in virtual anonymity. The goal of the “set-up” is to gain control over the victim. The length of time spent during the “set-up” varies upon the vulnerability of the child. The longer an offender knows a child the better they are at “zeroing” in their grooming tactics and strategies.

Grooming is a term used to describe the process of desensitizing and manipulating the victim(s) and/or others for the purpose of gaining an opportunity to commit a sexually deviant act [Title 22, Texas Administrative Code, Chapter 810.2(b)(15)]. Grooming inflicts psychological harm on the child. In teen chat rooms, the activities that precede the process of initiating direct contact with a child may simply involve the offender providing a description of themselves to all of the users of the public chat room so that the offender is masquerading as a particular kind of child, of a particular age, in the hope of attracting an equivalent age and the same or opposite sex child (i.e. 14/m/tx) (O’Connell, 2001). A sex offender may begin victim selection by observation in which an offender may “lurk” in chat rooms or massive multiplayer online games listening to conversations between children. An offender may search public profiles that include information such as name, age, location, hobbies, interests, and photographs. The offender will then wait for a child’s response and determine if they will initiate a conversation. After selecting a victim, the offender will introduce him or herself by instant message (IM) or by a private message to the child. Additionally, victim selection can involve viewing the child’s public profile. A victim’s information may be obtained through an Internet service provider request or a URL a child must provide in order to create their own website.

In the initial stages of grooming, the offender will suggest that the child move from a public domain to a private chat room or IM for an exclusive one-to-one conversation. The offender will engage in conversations related to school, home, hobbies, parental relationships, or interests of the child. The offender will gather information regarding the likelihood of activities being detected. The offender will manipulate the child to create an illusion of being the child’s best friend. The interactions take on the characteristics of a strong sense of mutuality (i.e. a mutual respect club comprised of two people that must ultimately remain a secret from all others). During these interactions, the child is praised, made to feel special, and very positive conversations are tailored to the age of the child. Gifts or money may be offered to the child. Sadly, sex offenders tend to target children who are neglected or come from dysfunctional homes. For these children, the sex offender offers an alternative relationship that makes the child feel special and loved.

The offender introduces the idea of trust, affection, and loyalty but it is based on deception and manipulation. This grooming tactic provides a forum to move into the next stage of victimization. The offender will begin to exploit social norms and test the child’s boundaries. The offender could ask the child “have you been kissed?”, “have you ever been skinny dipping?”, or “do you wear a bikini?” If the child does not respond negatively to the boundary violation, it is tantamount to accepting the behavior or language. During boundary violations, the offender has positioned the child into believing that they share a deep sense of mutual trust.

Offenders who intend to maintain a relationship with a child will progress carefully and methodically into sexually explicit language. The nature of the conversations will progress from mild conversations (i.e. “I love you” or “I want to kiss you”) to extremely explicit (i.e. masturbation or oral sex). The target child may be drawn into producing pornography by sending photos, using a web-cam or engaging in sexual discussions. To silence the child and ensure their continued compliance in sexual exploitation, the offender may use a variety of tactics including rewards, violence, threats, bribery, punishment, coercion, peer pressure, and fear (Klain, 2001). Research indicates that this pattern of conversations is characteristic of an online relationship that may progress to a request for a face-to-face meeting.

Child Pornography Under federal law, child pornography is defined as a visual depiction of any kind, including a drawing, cartoon, sculpture, or painting, photograph, film, video, or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where it

  • 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 (18 U.S.C §1466A and 18 U.S.C. §2256)

Sexually explicit conduct includes various forms of sexual activity such as intercourse, bestiality, masturbation, sadistic or masochistic abuse, and lascivious exhibition of the genitals. It is illegal to possess, distribute, or manufacture these images.

Pornography and Child Pornography on the Internet

Both adult and child pornography has saturated the Internet due to the lack of censorship by the industry. The Internet provides the social, individual, and technological circumstances in which an interest in child pornography flourishes. Cyberspace is host to more than one (1) million images of tens of thousands of children subjected to sexual abuse and exploitation. Of the estimated 24.7 million Internet users between the ages of ten (10) and seventeen (17), approximately 8.4 million youths received unwanted exposure to sexual material.

Child pornography is the second highest category, after indecent exposure, of sexual re-offense behavior. The vast majority of children who appear in child pornography have not been abducted or physically forced to participate. In most cases the child knows the producer and it may even be their father who manipulates the child into taking part by more subtle means. Most children feel a pressure to cooperate with the offender and not to disclose the offense, both out of loyalty to the offender and a sense of shame about their own behavior.

Physical contact between a child and a perpetrator does not need to occur for a child to become a victim or for a crime to be committed. Innocent pictures or images of children can be digitally transformed into pornographic material and distributed across the Internet without the victim’s knowledge (U.S. Department of Justice, 2001). Digital graphic software (i.e. Photoshop, Illustrator, Microsoft PhotoEditor) allow offenders to edit “innocent” pictures. After a picture is scanned into a computer, these image-editing programs can be used to put several photos together or to distort pictures and create a believable image of a reality that never existed. This process is called “morphing”. In some countries, morphed images or pictures are not illegal. Offenders may claim in court that a picture is morphed, no matter how disturbing, is not a picture of a real child or a situation which actually took place, and thus is not illegal.

In April 2002, the United States Supreme Court found that provisions of the Child Pornography Act (CPPA), which prohibited the depiction of virtual and simulated child pornography, were invalid under the First Amendment of the U.S. Constitution. The Court found that in the absence of a “real” child, the Court could see no “direct link” between such images and the sexual abuse of children. The Court’s majority could not see a substantial risk of producers of child pornography using virtual images of children. Additionally, children can be exposed to “virtual” pornography. Virtual pornography is legal the United States and in some other countries.

In the 2005 Wolak study, almost all of the arrested child pornography possessors (91%) used home computers to access child pornography and almost one (1) in five (5) arrested (18%) used a home computer in more than one (1) location to access child pornography. Additionally, Wolak found that in fourteen percent (14%) of child pornography investigations, the offenders not only had possessed pornography but had sexually victimized children and two percent (2%) possessed pornography and attempted to sexually victimize children. Eighty-four percent (84%) of the investigations involving child pornography did not detect concurrent child sexual victimization or attempts at victimization (Wolak, 2005). According to the United States Postal Inspection Service, forty percent (40%) of child pornographers investigated have sexually molested children. From January 1997 through March 2004, 1,807 child pornographers were arrested and 620 (34%) of these offenders were confirmed child molesters (Kim, 2004).

Although most Internet pornography is created offline, technology has evolved to create “real” life pornography that can be viewed in real time, using web-cameras, phone cameras, digital cameras, and streaming video. A user can be notified of the date and time to log on the computer to view a child being sexually abused. The advent of mini-cameras has allowed for pictures and videos to be created without the subject’s knowledge. The user may pay money or exchange images with the direct abuser (Palmer, 2004).
These illegal images can be presented in various forms including print media, videotape, film, compact disc, read-only memory (CD-ROM), or digital versatile technology (DVD) (Klain, 2001) and can be transmitted through computer bulletin-board systems (BBS), USENET Newsgroups, Internet Relay Chat, web-based groups, peer-to-peer technology, and an array of constantly changing world wide web sites.

Using Child Pornography to Groom Children

Children can be exposed to pornography through spam or potential abusers. The accessibility of pornography online, the ease and perceived anonymity of transmission, and the environment of “virtuality” itself makes the use of pornography in online grooming easier for an abuser. Pornography is a tool for inducting and socializing a child into behaviors that reflect the content of the pornographic materials. Sex offenders frequently use pornography as a tool to assist them in the grooming process.

Children exploring the Internet for education and entertainment are at risk of encountering sexually explicit material, sexual exploitation, and offenses against children while remaining undetected by parents. Children are extremely vulnerable to victimization due to their curiosity, naiveté, and trusting nature. The Internet has become a conduit for sexually explicit material and offenses against children. In 2006, Wolak reported fifty-four percent (54%) of boys and forty-six percent (46%) of girls received unwanted exposure to sexual material. Ninety percent (90%) of all solicitations happened to teenagers (ages 13 to 17). Eighty-six percent (86%) received images of naked people and fifty-seven percent (57%) received pictures of people having sex and/or violent or deviant images. Lastly, eighty-three percent (83%) of unwanted exposures occurred when youth were surfing the web and eighty-nine percent (89%) of incidents the senders were unable to be identified.

Sex offenders use pornography to escalate the relationship with the child. According to the Klain study, the most common purposes for which offenders use child pornography are:

  • Pornography creates a permanent record for sexual arousal and gratification.
  • Pornography lowers the child’s inhibitions to engage in sexual behavior.
  • Pornography may be used to teach children how to behave, pose, or re-enact scenes.
  • Pornography may be used to blackmail child victims by threatening to show the photographs, videos, or other depictions to parents, friends, or teachers. The threat becomes more potent because the child may fear punishment by the criminal justice system.
  • Pornography created to sell for profit or trade between individuals. The Internet’s anonymity, enhanced by increasingly sophisticated encryption technology, facilitates the increasing demand for child pornography.

Repeated exposure to adult and child pornography is deliberately used to diminish the child’s inhibitions, break barriers to sexual arousal, desensitize the child that sex is normal, and arouse the victim. Children depicted in pictures are often smiling or have neutral expressions, a factor that appears to be designed to represent the children as willing participants in sexual or degrading acts. There is a recent trend for pictures to be taken in domestic settings such as a kitchen or bedroom, thus further “normalizing” the activity for children who view images.

It has been reported that children under ten (10) who have been exposed to sexually exploitative material have themselves become users of it. Eight percent (8%) of youths admitted to going voluntarily to X-rated sites. Children at most risk of being violated through pornography productions are within the home and family. The child knows their abuser as a parent, a relative, a guardian, or an acquaintance. In these situations, the abuse may be more likely to come to light inadvertently as a result of inquiries by social welfare and reports from neighbors, rather than as a result of police inquiries into online crime.

Reporting Internet Crimes

The impact of online child victimization (i.e. solicitation and harassment) is not completely understood. Family dynamics often play a significant role in children’s denial of a crime and their willingness to participate in the investigation and prosecution. A child’s ability to acknowledge and accept the crime can be linked to family values, peer pressure, and feelings of guilt, shame, and embarrassment. Only three percent (3%) of all incidents of predators harassing children on the Internet is reported. The Crimes against Children Research Center found less than ten percent (10%) of sexual solicitations and only three percent (3%) of unwanted exposure episodes were reported to authorities such as a law-enforcement agency, an Internet service provider, or a hotline. In 2005, only one (1) incident out of more than 500 incidents of sexually explicit material was ever reported to an Internet service provider.

Online Language

Ninety-five percent (95%) of parents could not identify common chat room lingo that teenagers use to warn people they are chatting with that their parents were watching (NCMEC, 2005). Ninety-two percent (92%) of parents did not know the meaning of A/S/L (Age/Sex/Location) (NCMEC, 2005). Parents should watch for the following questionable abbreviations:

  • 53x means “sex”
  • 121 means “one to one”
  • A/S/L means age, sex, location. Watch for personal information being exchanged (i.e. 14/m/tx). This is a 14 year old male from Texas.
  • CYBER used as a verb and means “cybersex”
  • CONNECT means “to talk privately”
  • DIKU means “do I know you”
  • ESAD means “eat sh*t and die”
  • F2F, FTF means “face to face” or “let’s meet F2F”
  • FOAD means “f*ck off and die”
  • GP means “go private”
  • H4U means “hot for you”
  • H&K means “hugs and kisses”
  • ILU means “I love you”
  • IWALU means “I will always love you”
  • KOC means “kiss on the cheek”
  • KOL means “kiss on the lips”
  • LTR means “long term relationship”
  • LMIRL means “lets meet in real life”
  • LUWAMH means “love you with all my heart”
  • LU means “love you”
  • MOSS means “member of the same sex”
  • MOTOS means “member of the opposite sex”
  • MUSM means “miss you so much”
  • NIFOC means “naked in front of the computer”
  • OLL means “online love”
  • P2P means “person to person”
  • P911 means “my parents are coming”
  • PA means “parent alert”
  • PAL means “parents are listening”
  • PANB means “parents are near by”
  • PM means “private message or one on one chat”
  • POS means “parent over shoulder”
  • pr0n is an alternate spelling for porn or pornography
  • PDA means “public display of affection”
  • RL, IRL means “in real life as in “wants to see you IRL”
  • SWAK means “sealed with a kiss”
  • TOY means “thinking of you”
  • WIBNI means “wouldn’t it be nice if”
  • WTGP means “want to go private”
  • WUF means “where are you from”
  • WTF means “what the f*ck”

Acronyms and words used in daily IM or discussion boards

  • AFAIK means “as far as I know”
  • BTW means “by the way”
  • CUL means “see you later”
  • HHOK means “ha ha only kidding”
  • IANAL means “I am not a lawyer”
  • IIRC means “if I remember correctly”
  • IMHO means “in my humble opinion”
  • KEWL means “cool”
  • OMG means “oh my god”
  • OTOH means “on the other hand”
  • WUT^2 “what up with you too”

Characteristics of Youth Who Form Close Online Relationships

  • Sixteen percent (16%) of girls and twelve (12%) of boys have close online relationships.
  • Girls aged fourteen (14) to seventeen (17) were twice as likely as girls ten (10) to thirteen (13) to form close online relationships.
  • High parent-child conflict and being highly troubled were associated with close online relationships. Girls with high levels of parent-child conflict report yelling, nagging, and privileges by parents at higher levels than other girls. The highly troubled girls had levels of depression, victimization, and troubling life events at higher levels than other girls.
  • Boys who had low communications with their parents, and who also reported that their parents were less likely to know where and who they were with were the most strongly associated with close online relationships.
  • Girls and boys who reported high levels of Internet use and home Internet access were more likely to report close online relationships.
  • Youths with problems were most likely to attend a face-to-face meeting with people they first met online.

Warning Signs that a Child may be at Risk

  • Excessive use of online services especially during the late night hours
  • Unsupervised time in unmonitored chat rooms
  • Mood swings and withdraws
  • Greater desire to spend time with people online than with “real life” people
  • Unexplained files downloaded (i.e. .jpd, .gif, .bmp, .tif, .pcx, .mov, .avi, .wmv, or .mpg)

Defenses to Online Solicitation of a Minor

People are often arrested and charged with online solicitation when they meet the minor in question in person. However, it is important to note that a person can still be charged with this offense even if the meeting never occurs. Despite this, a person may be found innocent of online solicitation if one or both of the following apply:

  • He or she is legally married to the minor in question
  • He or she is less than three years older than the minor

Solicitation of a minor laws have frequently been challenged by defendants on the basis that they violate a defendant’s right to free speech, but have survived such claims. Viable defenses remaining will depend on a particular state’s laws. Some earlier laws required a defendant to actually communicate with a child and defendants could raise the defense of impossibility where prosecution involved communication with an officer who was merely posing as a child but who was in actuality an adult. In response to the success of the impossibility defense, many state statutes changed their laws to permit a conviction based on a defendant’s belief that they were talking to a minor. Other states have also built in “Romeo and Juliet” defenses for a defendant who is involved in a dating relationship with a child who was not more than three years younger than the defendant.

Although not an outright “defense,” another defensive angle is to prove that the defendant did not know that the person on the other end was a minor. Most states have strict liability laws — which means the state is not required to prove that a defendant knew how old the child was, only that the child was underage. However, some juries have engaged in “jury nullification,” by finding a defendant not guilty if they believed that the defendant did not have a reason to believe the child was underage. Showing that the conversation was just an online fantasy or proving that they never intended to actually meet the minor are generally not good defenses. Before a defendant decides to pursue a defensive theory, they should discuss the practicality of the defense with a criminal attorney in their area.
Top Houston Sex Crimes Lawyers

Solicitation of a Minor: Misdemeanor or Felony?

Online solicitation of a minor is usually classified as a felony level offense. As with most felonies, the range of punishment can include a deferred or suspended sentence, up to several years in prison. A defendant in Texas can receive anywhere from two to twenty years in prison. Although a deferred sentence can allow a defendant to remain free, the restrictions of probation tend to be more intense for online solicitation charges because they are considered sexually related offenses. The court can order a defendant to submit to maintenance polygraphs, complete individual or group sex offender counseling, to submit to a sex offender evaluation, and to refrain from being around any children while on probation. The court can also require a defendant to pay for these programs which can run up to $500.00 or more per month.

The long-term consequences can be even more severe. Because online solicitation of a minor is considered a sexually related offense, a defendant can be required to register as a sex offender. If a defendant fails to register, they can be charged with a new felony offense of failure to register as a sex offender. Once a defendant has a sexually related offense on their record, some states will significantly increase the punishment for a second offense if a defendant is ever charged with another sexually related offense. Beyond the court system, online solicitation will also affect employment opportunities. With more open access to the court systems, more employers are performing background checks and will not hire certain candidates. Applicants with sexually related offenses are generally the first to get cut.

Contact Us

When you have been charged with a severe legal offense, it is very important to understand your rights and defense options. An experienced Houston Criminal Lawyer can help you decide what steps you need to take next. The attorneys of the Charles Johnson Law Firm are aggressive child sex crime defense lawyers who will make every effort to fight the allegations against you. Contact us for a free consultation today at 713-222-7577 anytime, night or day if you have been falsely accused of soliciting a minor online.

Arrested For Online Solicitation of a Minor? The Right Houston Criminal Lawyer Can Make a Difference
by

Find us on Google+

Download “Arrested For Online Solicitation of a Minor? The Right Houston Criminal Lawyer Can Make a Difference” in PDF Format

News Stories Related to Online Solicitation of a Minor Arrests in Houston:

Arrested for Marijuana Possession or Sales? The Best Houston Lawyer

Finest Houston Criminal Defense Attorney

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.

Marijuana Possession

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.

Drug Paraphernalia

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

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

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.

Marijuana-Related Crimes

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

 

Arrested for Marijuana Possession or Sales?  Choose the Right Houston Marijuana Lawyer For Your Case

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:

Houston Criminal Lawyer: Arrested for Ecstasy Possession or Distribution?

Top Houston Criminal Defense Attorney

While it may seem minor, an Ecstasy possession or distribution offense can carry serious penalties in Houston and throughout Texas. Houston Criminal Lawyer Charles Johnson has proven his success in defending those charged with serious drug offenses. Houston Drug Lawyer Charles Johnson understands what you are up against, and knows the best defense strategies to preserve your rights and your freedom.

Ecstasy is one of the most dangerous drugs threatening young people today.  Called MDMA (3-4-Methylenedioxymethamphetamine) by scientists, it is a synthetic chemical that can be derived from an essential oil of the sassafras tree.  MDMA is also one of the easiest illegal drugs to obtain. Its effects are similar to those of amphetamines and hallucinogens.  Distributed almost anywhere, it has become very popular at social events like raves, hip hop parties, concerts, etc. frequented by both adults and youth.  While not all “event” attendees use Ecstasy, the drug often makes the circuit of these parties and can set up dangerous circumstances that can affect everyone there.

What is Ecstasy?

MDMA or Ecstasy is a Schedule I, synthetic, psychoactive drug possessing stimulant and hallucinogenic properties. Ecstasy possesses chemical variations of the stimulant amphetamine or methamphetamine and a hallucinogen, most often mescaline. Ecstasy is a semi-synthetic chemical compound. Ecstasy is a white, crystalline powder in its pure form. It is usually seen in capsule form, in pressed pills, or as loose powder. Average cost ranges from $10-$30 (U.S.) a dose. Ecstasy is rarely consumed with alcohol, as alcohol is believed to diminish its effects. It is most often distributed at late-night parties called “raves”, nightclubs, and rock concerts. As the rave and club scene expands to metropolitan and suburban areas across the country, ecstasy use and distribution are increasing as well.

  • MDMA is a “mood elevator” that produces a relaxed, euphoric state. It does not produce hallucinations.
  • MDMA takes effect 20 to 40 minutes after taking a tablet, with little rushes of exhilaration which can be accompanied by nausea. 60 to 90 minutes after taking the drug, the user feels the peak effects.
  • Sensations are enhanced and the user experiences hightened feelings of empathy, emotional warmth, and self-acceptance.
  • The effects of ‘real’ ecstasy subside after about 3-5 hours.
  • Users report that the experience is very pleasant and highly controllable. Even at the peak of the effect, people can usually deal with important matters.
  • The effect that makes MDMA different from other drugs is that it increases a sense of empathy, or the sensation of understanding and accepting others.

Teenagers and young adults are the primary abusers of MDMA; however, MDMA is gaining popularity among older users. According to TCADA, MDMA-related treatment admissions to TCADA-funded treatment facilities increased from 63 in 1998 to 521 in 2002. MDMA is widely available throughout Texas, particularly in metropolitan areas such as Austin, Dallas, Houston, and San Antonio. DAWN data indicate that MDMA ED mentions in the Dallas metropolitan area increased dramatically from 17 in 1997 to 77 in 2001. Contributing to the threat is increasing MDMA availability in suburban and rural areas. Law enforcement authorities in Bee, Gonzales, and Wharton Counties report increased MDMA availability in their jurisdictions.

What is the history of ecstasy?

MDMA was patented as long ago as 1913 by the German company Merck. Rumor has it that the drug was sold as a slimming pill along with comic descriptions of its strange side effects, although it was never marketed and the patent doesn’t mention uses. The next time it came to light was in 1953 when the US army tested a number of drugs for military applications – again, folklore says it was tried as a truth drug but there is no evidence for this.

The years between 1977 and 1985 are viewed as the ‘golden age’ of Ecstasy. In psychotherapy, its use only appealed to a few experimental therapists since it didn’t fit in with the usual 50-minute psychotherapy session. The therapists that did use it include some of the most dynamic people in the field, including some who claimed that a five hour Ecstasy session was as good as 5 months of therapy.

By 1984 MDMA was still legal and was being used widely among students in the USA under its new name ‘Ecstasy’. (Rumor has it that a big-time dealer called it ‘Empathy’, although the name is more appropriate, he found that Ecstasy had more sales appeal.) In Dallas and Fort Worth, Texas, Ecstasy was even on sale in bars where you could pay by credit card. It replaced cocaine as the drug of choice among yuppies and even spread to people who normally kept well clear of drugs. However, it was this public and unashamed use that resulted in the drug being outlawed.

The criminalisation of ecstasy in America has wide-ranging consequences. The first was to prevent the drug being used by professional therapists, except in Switzerland. The second was to reduce the quality of the drug as sold on the street, because demand was now met by clandestine laboratories and the drug was distributed through the criminal network. Although the number of users was dramatically reduced at first, criminalisation did not prevent the drug’s popularity from spreading worldwide.

Nicknames and Street Names for Ecstasy

Ecstasy usually appears as a small pill or tablet in various colors, sometimes with a logo stamped on it. Here are the common nicknames and street names for Ecstasy:

  • X, E, or XTC
  • Adam
  • Beans
  • Candy
  • Dancing Shoes
  • Disco Biscuits
  • Doves
  • E-bomb
  • Egg Rolls
  • Happy Pill
  • Hug Drug
  • Love Drug
  • Malcolm (or Malcolm X)
  • Scooby Snacks
  • Smartees
  • Sweets
  • Skittles
  • Thizz
  • Vitamin E or Vitamin X
  • Vowels

Slang Terms for Ecstasy Use and Abuse

Here are some common slang terms for using Ecstasy or to describe someone who uses Ecstasy:

  • Drop, Double Drop
  • Thizzing
  • Flip or Flipping
  • Roll, Rolling
  • Cuddle Puddle, E-Puddle
  • E-tard
  • Raver, Raving

What does it look like?

Ecstasy usually comes in a tablet form that is often branded. Such logos or trademarks include CK (Calvin Klein), shamrocks, stars, Woody the Woodpecker, Dino, Pinocchio, Snoopy, Love, and many other colors, symbols/logos. A sample of several logo/trademark tablets are shown below:

Ecstasy - Woodpeck
Ecstasy - Smiley
Ecstasy - Stern
Ecstasy - Woodpeck
Ecstasy - Pinocchi
Ecstasy - Snoopy
Ecstasy - Dino
Ecstasy - Love

It is clear that most of the logos/trademarks found on Ecstasy tablets are aimed at young adults. The logos/trademarks entice one to believe that Ecstasy is safe, almost candy-like. Do not be fooled. While attractive and interesting, these tablets, even in their purest form, contain a dangerous controlled substance that could take your life. Keep in mind that it is not uncommon for such pills to be tainted with dangerous substances other than Ecstasy. Ecstasy is not produced in safely regulated laboratory environments where the contents of what goes into the drug are closely scrutinized.

How is it used?

Ecstasy is usually taken in pill form and swallowed and it can also be injected.  Some users have been known to crush and snort the resulting powder.  Others insert the pill into the anus where it is absorbed.  This process is known as “shafting.” Liquid Ecstasy is actually GHB, a nervous system depressant—a substance that can also be found in drain cleaner, floor stripper and degreasing solvents.

What is the dosage?

E is almost always swallowed as a tablet or capsule. A normal dose is around 100-125 mg. Black market “ecstasy” tablets vary widely in strength, and often contain other drugs.

How Is MDMA Abused?

MDMA is taken orally, usually as a capsule or tablet. It was initially popular among Caucasian adolescents and young adults in the nightclub scene or at weekend-long dance parties known as raves. More recently, the profile of the typical MDMA user has changed, with the drug now affecting a broader range of ethnic groups. MDMA is also popular among urban gay males—some report using MDMA as part of a multiple-drug experience that includes marijuana, cocaine, methamphetamine, ketamine, sildenafil (Viagra), and other legal and illegal substances.

What are its short-term effects?

Users report that Ecstasy produces intensely pleasurable effects — including an enhanced sense of self-confidence and energy. Effects include feelings of peacefulness, acceptance and empathy. Users say they experience feelings of closeness with others and a desire to touch others. Other effects can include involuntary teeth clenching, a loss of inhibitions, transfixion on sights and sounds, nausea, blurred vision, chills and/or sweating. Increases in heart rate and blood pressure, as well as seizures, are also possible. The stimulant effects of the drug enable users to dance for extended periods, which when combined with the hot crowded conditions usually found at raves, can lead to severe dehydration and hyperthermia or dramatic increases in body temperature. This can lead to muscle breakdown and kidney, liver and cardiovascular failure. Cardiovascular failure has been reported in some of the Ecstasy-related fatalities. After-effects can include sleep problems, anxiety and depression.

  • Impaired judgment
  • False sense of affection
  • Confusion
  • Depression
  • Sleep problems
  • Severe anxiety
  • Paranoia
  • Drug cravings
  • Muscle tension
  • Faintness and chills or swelling
  • Involuntary teeth clenching
  • Blurred vision
  • Nausea

What are its long-term effects?

Repeated use of Ecstasy ultimately may damage the cells that produce serotonin, which has an important role in the regulation of mood, appetite, pain, learning and memory. There already is research suggesting Ecstasy use can disrupt or interfere with memory.

  • Long-lasting brain damage affecting thought and memory
  • Damage to portions of the brain that regulate critical functions such as learning, sleep and emotion
  • It is as if the brain switchboard was torn apart, then rewired backwards
  • Degenerated nerve branches and nerve endings
  • Depression, anxiety, memory loss
  • Kidney failure
  • Hemorrhaging
  • Psychosis
  • Cardiovascular collapse
  • Convulsions
  • Death

What are some types of paraphernalia associated with Ecstasy use?

  • Pacifiers, Blo-pops, Popsicle sticks
  • M&Ms, Skittles, Tootsie-Rolls, Candy necklaces
  • Glo-sticks, Bottled water
  • Dust / surgical masks
  • Vicks Vapor Rub
  • Strobe lights
  • Suppository bottles

The pacifier is used to prevent the grinding of teeth that is often a physical side effect when using Ecstasy. Glow sticks are used to increase the visual psychedelic effects associated with the use of Ecstasy. Vapor rub in a surgical mask that is placed over the nose and mouth is used to enhance the euphoric effects of Ecstasy. None of these items alone indicates use of Ecstasy. However, in the right context, such items are tools which enhance the Ecstasy “high,” and cut down on the undesirable effects of the drug.

How Does MDMA Affect the Brain?

MDMA exerts its primary effects in the brain on neurons that use the chemical (or neurotransmitter) serotonin to communicate with other neurons. The serotonin system plays an important role in regulating mood, aggression, sexual activity, sleep, and sensitivity to pain. MDMA binds to the serotonin transporter, which is responsible for removing serotonin from the synapse (or space between adjacent neurons) to terminate the signal between neurons; thus MDMA increases and prolongs the serotonin signal. MDMA also enters the serotonergic neurons via the transporter (because MDMA resembles serotonin in chemical structure) where it causes excessive release of serotonin from the neurons. MDMA has similar effects on another neurotransmitter—norepinephrine, which can cause increases in heart rate and blood pressure. MDMA also releases dopamine, but to a much lesser extent.

MDMA can produce confusion, depression, sleep problems, drug craving, and severe anxiety. These problems can occur soon after taking the drug or, sometimes, even days or weeks after taking MDMA. In addition, chronic users of MDMA perform more poorly than nonusers on certain types of cognitive or memory tasks, although some of these effects may be due to the use of other drugs in combination with MDMA. Research in animals indicates that MDMA can be harmful to the brain—one study in nonhuman primates showed that exposure to MDMA for only 4 days caused damage to serotonin nerve terminals that was still evident 6 to 7 years later. Although similar neurotoxicity has not been shown definitively in humans, the wealth of animal research indicating MDMA’s damaging properties strongly suggests that MDMA is not a safe drug for human consumption.

Addictive Potential

For some people, MDMA can be addictive. A survey of young adult and adolescent MDMA users found that 43 percent of those who reported ecstasy use met the accepted diagnostic criteria for dependence, as evidenced by continued use despite knowledge of physical or psychological harm, withdrawal effects, and tolerance (or diminished response). These results are consistent with those from similar studies in other countries that suggest a high rate of MDMA dependence among users. MDMA abstinence-associated withdrawal symptoms include fatigue, loss of appetite, depressed feelings, and trouble concentrating.

What Other Adverse Effects Does MDMA Have on Health?

MDMA can also be dangerous to overall health and, on rare occasions, lethal. MDMA can have many of the same physical effects as other stimulants, such as cocaine and amphetamines. These include increases in heart rate and blood pressure—which present risks of particular concern for people with circulatory problems or heart disease—and other symptoms such as muscle tension, involuntary teeth clenching, nausea, blurred vision, faintness, and chills or sweating.

In high doses, MDMA can interfere with the body’s ability to regulate temperature. On rare but unpredictable occasions, this can lead to a sharp increase in body temperature (hyperthermia), which can result in liver, kidney, cardiovascular system failure, or death. MDMA can interfere with its own metabolism (breakdown within the body); therefore, potentially harmful levels can be reached by repeated MDMA administration within short periods of time. Other drugs that are chemically similar to MDMA, such as MDA (methylenedioxyamphetamine, the parent drug of MDMA) and PMA (paramethoxyamphetamine, associated with fatalities in the United States and Australia), are sometimes sold as ecstasy. These drugs can be neurotoxic or create additional health risks to the user. Furthermore, ecstasy tablets may contain other substances, such as ephedrine (a stimulant); dextromethorphan (DXM, a cough suppressant); ketamine (an anesthetic used mostly by veterinarians); caffeine; cocaine; and methamphetamine. Although the combination of MDMA with one or more of these drugs may be inherently dangerous, users who also combine these with additional substances such as marijuana and alcohol may be putting themselves at even higher risk for adverse health effects.

What Treatment Options Exist?

There are no specific treatments for MDMA abuse and addiction. The most effective treatments for drug abuse and addiction in general are cognitive-behavioral interventions that are designed to help modify the patient’s thinking, expectancies, and behaviors related to their drug use and to increase skills in coping with life stressors. Drug abuse recovery support groups may also be effective in combination with behavioral interventions to support long-term, drug-free recovery. There are currently no pharmacological treatments for addiction to MDMA.

What are the symptoms of ecstasy withdrawal?

The most common ecstasy withdrawal symptoms include but are not limited to:

  • depression
  • anxiety
  • panic attacks
  • sleeplessness
  • “de-personalization”
  • “de-realization”
  • paranoid delusions

Ecstasy Distribution

Ecstasy is NOT legally produced anywhere in the world. Most of the MDMA abused in Texas is produced in the Netherlands and Belgium. MDMA production may be emerging in Texas, but to a very limited extent. MDMA is smuggled into Texas from Canada, Europe, and Mexico primarily by Israeli criminal groups. To a lesser extent, Dominican criminal groups also smuggle MDMA into Texas. MDMA transporters use several means to smuggle the drug, including couriers on foot entering the United States from Mexico, couriers traveling on commercial and private aircraft, private vehicles, and via package delivery services.

Caucasian local independent dealers and, to a lesser extent, Asian criminal groups, are the primary wholesale and retail distributors of MDMA in Texas. Many retail-level MDMA distributors in Texas are middle and upper-middle class Caucasian high school or college students. MDMA typically is distributed at colleges, raves, nightclubs, and private parties. MDMA distributed in Texas often is stamped with a brand name or a logo. According to DEA, in the fourth quarter of FY2002 MDMA sold for $25 per tablet in Dallas, $16 to $20 per tablet in El Paso, and $10 to $30 per tablet in Houston.

MDMA also is transported from Texas to destinations in other U.S. states. For example, some Asian criminal groups transport shipments of MDMA from Texas, primarily overland, to major drug markets on the East Coast.

A large proportion of the retail trade is conducted by people buying for their friends without making a profit, although usually gaining a few free tablets for their own consumption. Then there are the dealers who are trusted as connoisseurs of the drug, and will describe the subtle qualities of the particular batch from personal experience. This type of dealer never sells to the public but only to regular clients who respect them, so the dealer cannot afford to provide poor quality.

Another variation, more common among working class men, is for friends to arrange a meeting place, usually a pub, before a rave. One person knows of a supply and collects money on behalf of the others, then returns with the drugs which cost each person less than if they had bought separately. This method carries more risk, either of losing your money or of getting poor quality. The person buying for the others also runs the risk of far greater penalties.

A more commercial form of supply is by individuals who buy 100 or so and are either ‘known’ at certain clubs, or go around offering them for sale. They may be honest, especially if they are known, but they may also be selling fake pills. A new trend is for ‘retail specialists’ to sell in a club or at a rave. These are organized gangs, but probably not part of a large syndicate. They cooperate with security staff or the promoters of raves and clubs. The club or rave organisers put on a show of heavy security, searching people on their way in so as to exclude dealers. This leaves the way open for the gang to sell inside. Some members go around asking people if they want to buy drugs without carrying stock themselves so that, if arrested, they will not be accused of ‘supply’ and may get off with a fine. The stock and money is carried by members who are well protected by body guards, and lookouts warn of police activity inside and outside the venue. They have contingency plans worked out in case of a surprise raid, for example members who are free of drugs might cause a fight so as to attract the attention of the police while those carrying drugs and money escape.

Punishment for Ecstasy Possession, Distribution or Manufacturing

MDMA is a controlled substance in Texas. Unlike a state such as California, which has not explicitly scheduled MDMA, but instead considers it as within its broad “controlled substance analogue” provisions, MDMA is an explicitly scheduled substance in Texas. MDMA has been placed it in “Group 2” of the Texas controlled substance hierarchy. (See Tex. Health & Safety Code, Sec. 481.103).

Punishment for Simple Possession of MDMA

The punishment for simple possession of MDMA in Texas is dependant upon the weight of the MDMA (See Tex. Health & Saf. Code, Sec. 481.116):

  • Less than 1 gram = “state felony” with a mandatory minimum of 180 days in county jail up to 2 years and a fine of up to $10,000. (Tex Pen. Code, Sec. 12.35).
  • 1 gram, but less than 4 grams = “felony 3rd degree” with a mandatory 2 year minimum, up to 10 years, and a fine of up to $10,000. (Pen. Code, Sec. 12.34.)
  • 4 grams, but less than 400 grams = “felony 2nd degree” with a  mandatory 2 year minimum, up to 20 years, and fine of up to $10,000 (Pen. Code, Sec. 12.33)
  •  400 grams or more = mandatory 5 year minimum, with possible life imprisonment (Health & Saf. Code, Sec. 481.116)

Punishment for distributing or manufacturing MDMA, possessing it with the intent to distribute

Distributing or manufacturing MDMA, possessing it with the intent to distribute it is punishable as follows. (See Tex. Health & Saf. Code, Sec. 481.113):

  • Less than 1 gram = “state felony ” with a mandatory minimum sentence of 180 days in county jail up to 2 years and a fine of up to $10,000. (Tex Pen. Code, Sec. 12.35).
  • 1 gram, but less than 4 grams = “felony 2nd degree” with a mandatory 2 year minimum, up to 20 years, and fine of up to $10,000 (Pen. Code, Sec. 12.33)
  • 4 grams, but less than 400 grams = “felony 1st degree” with a  mandatory 5 year minimum, up to possible life imprisonment and maximum $10,000 fine. (See Pen. Code, Sec. 12.32)
  • 400 grams or more = mandatory 10 year minimum, with possible life imprisonment (Health & Saf. Code, Sec. 481.113)

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

If you or your child has been arrested or charged with any crime involving ecstasy, you must act quickly. The drug laws are incredibly complex and difficult to navigate without the assistance of a skilled criminal defense attorney. Texas treats all Ecstasy crimes harshly. No one accused of an Ecstasy crime should attempt to handle their case without a good lawyer. The law provides the maximum possible sentence and it is up to your attorney to fight for your rights and work to improve your situation. At the Charles Johnson Law Firm, we have successfully defended many types of drug charges throughout Texas and we can expertly handle your Houston Ecstasy case.

Anyone under investigation for sales, possession, under the influence, manufacturing, trafficking, importing, distributing or transporting ecstasy can expect very serious penalties if convicted. At the Charles Johnson Law Firm, we help clients who have been arrested for drug crimes involving ecstasy. Do not give up hope, even if you feel there may be solid evidence against you or a loved one, there are still many legal defenses that may help to have your charges minimized or dismissed entirely. Take advantage of the free initial consultation to discuss your options. The free consultation is an opportunity to discuss your case in detail and Houston Criminal Lawyer Charles Johnson will answer any questions that you may have regarding your ecstasy charges.


Houston Criminal Lawyer Charles Johnson
Houston Criminal Lawyer: Arrested for Ecstasy Possession or Distribution?
Houston Criminal Lawyer Charles Johnson has proven his success in defending those charged with serious drug offenses, including Ecstasy Possession or Distribution. Attorney Johnson understands what you are up against, and knows the best defense strategies to preserve your rights and your freedom.


Houston Criminal Lawyer: Arrested for Ecstasy Possession or Distribution?

Download “Houston Criminal Lawyer: Arrested for Ecstasy Possession or Distribution?” in PDF format


News Stories Related to Ecstacy Possession or Distribution Arrests in Houston:

Houston Criminal Lawyer: Fighting A Probation Revocation?

Top Houston Criminal Lawyer
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.

Background
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

Definition
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.

History
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.

Revocation
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

Definition
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.

History
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.

Revocation
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.

Abolishment
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.
Major Credit Cards Accepted.

Houston Criminal Lawyer: Facing An Arrest For Drug Trafficking?

Recommended Houston Drug Trafficking Lawyer

Drug trafficking is generally referred to as the manufacturing, transporting and distributing of large quantities of drugs. It often involves more than one person. Drug trafficking charges are wide and varied depending on the scope of the trafficking. Additionally, if the drug trafficking was directed towards minors, then prosecutors will seek enhancements to the charges. State and federal governments have adopted strict laws and severe penalties regarding the trafficking of drugs. Penalties can approach seven figures and decades in prison for severe cases. Houston Criminal Lawyer Charles Johnson has proven how to successfully approach and handle these types of cases and he should be contacted immediately when an arrest is made for drug trafficking.

Drug Trafficking is probably the most charged offense in federal court and is also quite prevalent in state courts. Because of the severity of the sentences, evidence and all circumstances and conditions regarding your arrest will be thoroughly examined by the Charles Johnson Law Firm and their team of experienced investigators. Drug trafficking cases can be quite involved, and with the vast amounts of drugs coming in from Mexico, prosecutors are aggressively pursuing convictions.

Types of Drug Trafficking Laws

Drug trafficking laws vary by country and region, but generally include distribution, manufacturing, and dispensing certain categories of controlled substances. Usually, the drugs are classified according to type and the addictive nature of the drug. Highly addictive narcotics like heroin and crack typically fall into one class, while marijuana and prescription drugs are considered less harmful. International drug trafficking laws are commonly handled under customs law.

Possession of drugs with the intent to sell routinely falls under drug trafficking statutes. If someone is found with a large amount of narcotics, it may be presumed that he or she intends to distribute the drugs for money. Different regions determine how much and what kind of drug is considered outside limits for personal use. Penalties for violations of these drug trafficking laws are often based on the quantity of the substance and its type.

Those who manufacture drugs may be charged under drug trafficking laws in most places. These sections of the law typically include possession of chemicals or equipment needed to make the controlled substance. Narcotics laws in each country outline the exact chemicals or equipment considered illegal.

Drug trafficking laws may include a provision that allows law enforcement to seize assets used to commit a crime. For example, if drugs are sold from a house or vehicle, a judge may order that those assets be forfeited to the government. The property is typically sold at a public auction, with the proceeds going to fund narcotics operations.

Almost any scheduled narcotic can qualify for a drug trafficking charge. In state courts the amount of drugs (cocaine, cannabis, extasy, crystal meth, acid, heroine, prescription medication) will determine if a possession charges becomes a trafficking charge. Even if you are only going to used the drugs for your personal consumption, the amount that you possess could bring a trafficking charge. You may also qualify for a distribution charge if it appears that a small amount of drugs was packaged for distribution. Each state is different as to the amount necessary for the trafficking charge. Under the federal statute you can be charged for the amount you have and or the amount you were trying to buy from a government agent. You may never actually possess the drugs, but you will be charged.

Supplying drugs to children or using minors to distribute narcotics generally carries tougher penalties than those that apply to adults. In some areas, maintaining a home for the purpose of making or distributing drugs where children live is also considered a more serious drug trafficking offense. Stiffer sanctions might also be imposed for those who sell drugs near schools, playgrounds, arcades, and other areas where children congregate.

Laws also exist that regulate drug trafficking by criminal gangs or organized groups. Penalties might be enhanced if weapons are used in the distribution of a controlled substance. Those with profits from organized sales of narcotics can also be prosecuted under money laundering statutes in some jurisdictions.

Defenses for Drug Trafficking Charges

Houston Criminal Lawyer Charles Johnson will provide skilled advice and representation to clients facing state or federal drug charges. He is considered an expert when defending against charges related to:

  • Interception of a drug shipment
  • Drug conspiracy charges
  • Interstate drug distribution
  • Undercover interstate trafficking stings
  • Illegal sale and trafficking of prescription drugs
  • Illegal sale and trafficking of cocaine, heroin, marijuana, methamphetamine (meth), MDMA (Ecstasy)

Drug trafficking charges often hinge on the prosecution’s illegal search and seizure of your vehicle, undercover drug operations, and confidential informants who are attempting to make a deal. As an expert lawyer skilled in drug cases, Attorney Johnson will thoroughly investigate how the prosecution came upon the evidence collected and determine if the method of collecting the evidence is in violation of your constitutional rights.

The court will have no choice but to keep any illegally obtained evidence out of trial. Attorney Johnson’s ability to thoroughly investigate drug cases and vigorously challenge the factual and constitutional merits of the prosecution’s case has proven effective in his defense of clients facing drug trafficking charges involving cocaine, heroin, marijuana, methamphetamine (meth) or prescription narcotics.

Even if the police find drugs directly in a person’s possession, the drugs and other evidence could be suppressed (thrown away) if the police did not follow the proper procedures required under the U.S. Constitution. One of the first things Attorney Johnson will look for when defending someone accused of a drug offense is whether the police themselves acted in a legal manner. Other defenses include areas such as whether the actual weight of the substance was correct when allowing for hydration, whether the chemical composition of the substance was correct as charged, whether there was joint or constructive possession of the substance which could subject the case to a Motion to Dismiss and whether the accused was entrapped into committing the offense by law enforcement or one of its informants.

Another possible defense for drug trafficking charges would involve a violation of constitutional right to counsel and right to remain silent. Once charged or in custody, you are required to be informed of your rights and given access to legal representation if you request it. Contact Houston Criminal Lawyer Charles Johnson immediately upon arrest before saying anything that could be used against you in the future. This can often mean the difference between a conviction and walking away free of any charges. You would be surprised at how many cases result in a conviction due largely to statements made by the accused.

Other possible defenses may include:

  • Lack of knowledge
  • Mistake of fact (For example, thinking the drug was sugar when in fact, it was cocaine.)
  • Duress (For example, if Bob was forced to transport the cocaine because if he refused, something bad would happen to his family.)
  • The substance was not intended for human consumption

Lastly, Attorney Johnson will determine if inappropriate charges were filed. Drug trafficking is a highly political issue, and you may find yourself facing inflated charges. The right attorney can insure that any charges you do face are appropriate to the acts alleged by the prosecutor.

At the Charles Johnson Law Firm, we have the experience and know-how to guide you through this complicated process from the moment of your arrest through trial, if necessary.

The defense of drug-related crimes can be difficult and complex and requires an attorney with special skills, experience and knowledge. Houston Criminal Lawyer Charles Johnson is highly qualified to defend your case. Whether it is identifying a drug addiction issue so that we may assist in getting them treatment or counseling, negotiating a fair resolution in an effort to have charges or a sentence reduced or preparing and taking a case to trial, the Best Houston Criminal Lawyer is available to assist and defend you.

As an extremely experienced criminal lawyer specializing in drug cases at both the Federal and State level, Houston Criminal Lawyer Charles Johnson is well aware of the strategies, theories and methods employed by prosecutors when they prosecute a drug case. Attorney Johnson will use this knowledge to his client’s advantage while defending their cases to get the best possible outcome on their behalf.

We are proud to represent and care about our clients. We know the devastation that a drug conviction, an addiction or incarceration for a drug offense can bring to an individual or his/her family. We will answer your questions and guide you through the whole process, working to take away some of the confusion and uncertainty that comes along any drug offense charge, while all along seeking the most favorable outcome for you or your loved one.

Drug Trafficking by Criminal Gangs

There are nearly 1 million active gang members in the United States, based on analysis of federal, state, and local data, and the involvement of criminal gangs in domestic drug trafficking is becoming increasingly complex. Since 2001, many gangs have advanced beyond their traditional role as local retail drug distributors in large cities to become more organized, adaptable, deliberate, and influential in large-scale drug trafficking. Much of their growing influence has come at the expense of local independent dealers and small local criminal groups who cannot compete with gangs that establish control in smaller drug markets.

The influence of Hispanic and African American street gangs is expanding as these gangs gain greater control over drug distribution in rural and suburban areas and acquire drugs directly from Drug Trafficking Organizations (“DTOs”) in Mexico or along the Southwest Border.

In 2009, midlevel and retail drug distribution in the United States was dominated by more than 900,000 criminally active gang members representing approximately 20,000 domestic street gangs in more than 2,500 cities. These street gangs vary greatly with respect to their ethnic or racial identities, the types and amounts of drugs that they distribute, their strength and influence, and their adaptability. Their prevalence varies geographically, with the greatest concentration of street gangs occurring in the Great Lakes, Pacific, Southeast, and Southwest Organized Crime Drug Enforcement Task Force (OCDETF) Regions.

Many Hispanic and, to a lesser extent, African American gangs are gaining control over drug distribution outside urban areas that were previously supplied by local independent dealers or small local criminal groups. Around 2007, Hispanic and African American gangs throughout the country, but especially in the Southwest and Great Lakes Regions, began to command greater influence over drug distribution in many rural and suburban areas. This trend continued in 2009. For example, in 2009, the Avenues street gang based in Los Angeles, California, expanded its operations to distribute drugs in suburban and rural locations throughout southern California.

To increase their control over drug trafficking in smaller markets, street gangs have been increasingly acquiring larger wholesale quantities of drugs at lower prices directly from DTOs in Mexico and along the Southwest Border. Several Southwest Border street gangs, such as Shelltown 38th Street, Tri-City Bombers, and Vallucos, smuggle wholesale quantities of drugs obtained in Mexico into the United States. By purchasing directly from Mexican wholesale sources in Mexico or along the Southwest Border, gangs throughout the country realize cost savings that enable them to sell drugs at lower prices than local independent dealers in small communities, driving these dealers out of business. For example, members of the Chicago-based Latin Kings street gang who operate in Midland, Texas, purchase cocaine from Mexican traffickers in south Texas for $16,000 to $18,000 per kilogram, compared with $25,000 to $35,000 per kilogram from wholesale traffickers in Chicago. With this savings, the gang undersells other local dealers who do not have the capacity to buy large wholesale quantities directly from Mexican DTOs in Mexico or along the Southwest Border.

Hispanic prison gangs, primarily in Southwest Border states, are gaining strength by working directly with Mexican DTOs to acquire wholesale quantities of drugs and by controlling most street gangs in areas along the Southwest Border.

Prison gangs are active in all 50 states and are increasing their influence over drug trafficking in areas along the Southwest Border (see Table B4 in Appendix B). Prior to 2001, the criminal influence of prison gangs was limited primarily to retail-level drug distribution. However, since that time, Hispanic prison gangs have become increasingly involved in the transportation and wholesale distribution of drugs.

Hispanic prison gangs such as Hermanos de Pistoleros Latinos (HPL) and Raza Unida operating in Southwest Border states have increased their involvement in wholesale drug distribution activities through cooperative relationships with Mexican DTOs. Through these relationships, Hispanic prison gangs are able to gain access to wholesale quantities of drugs. For example, in September 2009, 21 members of HPL were convicted in the Southern District of Texas (Houston) of conspiring to distribute more than 150 kilograms of cocaine and laundering millions of dollars in drug proceeds. In April 2009, 15 members and associates of the Raza Unida prison gang were indicted for trafficking multikilogram quantities of cocaine and methamphetamine weekly in McAllen and Houston, Texas.

To ensure a consistent profit stream from the wholesale drugs that they purchase from Mexican DTOs, Hispanic prison gangs distribute drugs through street gangs that they largely, if not entirely, control. Through force or intimidation, Hispanic prison gangs exercise significant control over local gangs that distribute their drugs in the Southwest Border region. For example, Barrio Azteca prison gang members operating in El Paso, Texas, collect drug payments and taxes from 47 street-level gangs and independent drug dealers trafficking drugs in El Paso.

Potential Penalties for Drug Trafficking

The penalties for drug trafficking offenses vary and depend on a number of factors. These include the type and amount of illegal drugs (also called “controlled substances”) found in a person’s possession, whether the person is a repeat offender and the state in which the person is charged.

Drug trafficking or distribution in Texas is a felony upon which a wide range of penalties may be imposed. It may be anywhere from a state jail felony, which carries the lightest sentence, to a first degree felony, which carries the harshest. The factors influencing which sentence will be imposed are: (1) the amount of the drug being distributed or delivered; and (2) the type of drug and which of the four groups of drugs it is classified under. The smaller the amount of a drug in a certain group, the lighter the sentence may be.

Texas has some very heavy penalties for drug trafficking. Prosecutors may often offer plea deals to defendants where they may offer a charge with a lesser penalty in exchange for information that would help them gather evidence for a higher priority investigation.

The sentences involved may range anywhere from 180 days to two years in state jail and/or a fine of no more than $10,000 for a state jail felony, to life in the Texas Department of Criminal Justice or a term of 15 to 99 years in prison and/or a fine of not more than $250,000 for the heaviest first degree felony. The harshness of the sentence imposed depends on how much of the drug is being trafficked. For example, trafficking or distributing less than one gram of a substance in the first grouping of drugs carries a state jail felony charge, whereas trafficking 400 grams or more of any one of the same drugs carries a first degree felony charge that may include a life sentence.

At the Federal level, the Controlled Substances Act (PL 91-513, 1970, last amended in 2000) provides penalties for the unlawful manufacture, distribution, and dispensing (or trafficking) of controlled substances, based on the schedule (rank) of the drug or substance. Generally, the more dangerous the drug and the larger the quantity involved, the stiffer the penalty. Trafficking of heroin, cocaine, LSD, and PCP, all Schedule I or II drugs (see Table 2.1 in Chapter 2), includes mandatory jail time and fines. A person caught selling at least five hundred grams but less than five kilograms of cocaine powder (seventeen ounces to just under eleven pounds) will receive a minimum of five years in prison and may be fined up to $2 million for a first offense. (See Table 6.1.) The same penalty is imposed for the sale of five to forty-nine grams of cocaine base (“crack”). Five grams are equal to the weight of six plain M&Ms candies, and forty-nine grams are a little more than a bag of M&Ms candies (47.9 grams). The high penalty for selling crack is an expression of the unusual severity with which legislators are trying to curb the use of this drug.

Penalties double with the second offense to ten years in prison and up to $4 million in fines. When higher quantities are involved (five or more kilograms of cocaine powder, fifty grams or more of crack, etc.), penalties for the first offense are ten years, and fines up to $4 million may be levied. For the second offense, twenty years and up to $8 million in fines are given, and the third offense results in mandatory life imprisonment. These examples are for an individual. Higher penalties apply if an organized group is involved or if a death or injury is associated with the arrest event.

These penalties apply also to the sale of fentanyl (a powerful painkiller medicine) or like-acting drugs, heroin, LSD, methamphetamine, and PCP. The smallest amount, which can earn someone a minimum sentence of five years in prison and a fine of up to $2 million, involves trafficking in LSD, where a one-gram amount carries a five-year minimum sentence in prison.

Special penalties exist for marijuana trafficking, since it may be traded in large quantities or grown in substantial amounts. The lower the amounts sold or the fewer the plants grown, the lower the sentence. A person cultivating one to forty-nine plants or selling less than fifty kilograms of marijuana mixture, ten kilograms or less of hashish, or one kilogram or less of hashish oil may get a maximum sentence of five years in prison and a maximum fine of $250,000. Sentences for second offenses involving large amounts of marijuana may earn the trafficker up to life imprisonment.

The penalties for drug trafficking are harsh, and reflect the seriousness of this felony offense and the current political climate. A conviction can lead to jail time, forfeiture of property and fines, but that is only part of the story. It places your current employment in jeopardy, places a severe emotional strain on you and your family, adversely affects your ability to find new work, and places your entire future at risk.

Hire the Best Houston Drug Trafficking Lawyer: The Charles Johnson Law Firm

A drug trafficking conviction can have an extremely adverse effect on a person’s current and future life in many regards. Both state and federal prosecutors have their eye on a conviction of the most severe charges possible and not on your rights. Houston Criminal Lawyer Charles Johnson will work diligently with prosecutors regarding any circumstances or conditions that could result in charges being dropped or reduced. If necessary, our firm can take your case to court and present a strong defense on your behalf.

The Charles Johnson Law Firm expertly handles all types of Texas drug-related offenses, from the less severe, like simple possession of a small amount of certain drugs, to the more serious ones, such as participating in an organized drug trafficking business with sale, distribution and manufacturing activities. We also defend charges involving controlled substances, such as, marijuana, crack, paraphernalia, cocaine, heroin, ecstasy, methamphetamines (meth), hallucinogens such as LSD, oxycontin, oxycodone, hydrocode, xanax, and Rohypnol club drugs. We represent all levels of people charged with drug offenses, from the student or small time person, to the professional, medical doctor or person accused of being a large scale distributor or trafficker.

If you have been arrested for drug trafficking in Houston, TX, take fast action with a skilled and resourceful Houston Criminal Lawyer. Contact the Charles Johnson Law Firm immediately anytime night or day for a free phone consultation to discuss your case.

 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 Criminal Lawyer: Facing An Arrest For Drug Trafficking?

Download “Houston Criminal Lawyer: Facing An Arrest For Drug Trafficking?” in PDF Format


News Stories Related to Drug Trafficking Arrests in Houston:

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.

 
Houston Criminal Defense Lawyer Houston Criminal Defense Lawyer Houston Criminal Defense Lawyer Houston Criminal Defense Lawyer Houston Criminal Defense Lawyer Houston Criminal Defense Lawyer Houston Criminal Defense Lawyer Houston Criminal Defense Lawyer Houston Criminal Defense Lawyer Houston Criminal Defense Lawyer Houston Criminal Defense Lawyer Houston Criminal Defense Lawyer Houston Criminal Defense Lawyer Houston Criminal Defense Lawyer Houston Criminal Defense Lawyer Houston Criminal Defense Lawyer Houston Criminal Defense Lawyer
 
Dallas Office - Charles Johnson Law Firm San Antonio Office - Charles Johnson Law Firm Houston Office - Charles Johnson Law Firm Austin Office - Charles Johnson Law Firm
Reach me personally now at 713-222-7577close