Houston Lawyer Charles Johnson
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If you have been accused of domestic violence, you may be facing an uphill battle. Texas has strengthened their laws on domestic violence, making arrest and prosecution mandatory regardless of what the alleged victim wishes to do. No matter how your state or county handles allegations of domestic violence, it is important to mount a vigorous defense. Speak with an attorney from the Charles Johnson Law Firm in Houston, Texas to discuss your case and develop a strategy for fighting the charges.
Domestic Violence Defined
Domestic violence is most often an assault or battery against a spouse, intimate partner or cohabitant, but it also can occur against a child, elderly relative or other member of the household or family. Domestic assault is both physical violence and emotional abuse, including threats, intimidation and control.
Domestic Assault Arrest
Although the procedures and policies vary by jurisdiction, domestic assault arrests and charges follow a general pattern. When the police are called to a residence, by an alleged victim or someone else, they will assess the situation and determine whether there is probable cause to arrest the person accused of domestic assault.
At the arraignment, the defendant will learn about the specific charges against him or her, and the defendant’s lawyer will consult with the defendant about what kind of plea to enter. The judge will decide whether the defendant should be granted bail and, if so, how much the bail will be.
In many cases, the defendant will be ordered to have no contact — direct or indirect — with the alleged victim. This means that the defendant cannot go home, if that is where the victim lives, and the defendant must not call or communicate with the victim.
In some jurisdictions, even if the victim decides not to go forward with the charges, the case will continue. Numerous reasons, based on both history and public policy, are behind this practice.
A conviction of felony or misdemeanor domestic assault can result in severe penalties. The defendant may serve time in prison or jail; pay steep fines; undergo anger management or other counseling; and suffer personal consequences like divorce, loss of child custody or an unfavorable property settlement during divorce proceedings.
Domestic assault is taken seriously by law enforcement personnel and prosecutors. It is vital to have a competent, experienced defense attorney on your side.
Houston Domestic Violence Defense Lawyer: The Charles Johnson Law Firm
As the justice system has come to recognize the social and legal effects of domestic violence, the penalties for conviction of domestic assault have become steeper. This is why it is so important to consult a lawyer who is familiar with your local court system. Seek the help of an attorney from the Charles Johnson Law Firm in Houston, Texas to learn more about what you can do to assert your rights.
Related News Stories – Domestic Violence in Houston, TX
YWCA opens new emergency domestic violence shelter
YWCA leaders say domestic violence is the number one reason women end up in the ... for one of its workers who denied serving a police officer. A 19-year-old Houston man is dead after police say he accidentally shot himself while taking "selfies" while ...
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Houston bucks domestic violence trend
The economic crisis has helped fuel more cases of domestic violence nationwide, but in Houston the picture is less gloomy, thanks in large part to the area’s more robust economy, officials said. A national survey of law enforcement agencies conducted by ...
Houston Chronicle - Apr 30 2012
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Have you or a loved one been arrested?
The following are important answers to 50 questions that you may have at this moment. Houston Lawyer Charles Johnson WILL help you reach a resolution to the legal problem that has arisen in your life. At the Charles Johnson Law Firm, we want you to know what you are facing and that we can help you through this challenging time. Give us a call today. We are available 24/7, rain or shine.
How Are Criminal Charges Filed?
Criminal proceedings take place in a series of stages. Usually, the police are responding to a citizen’s complaint that a crime has been committed. Sometimes, the police observe suspicious activity. Once they are called, or see something suspicious, the police investigate, take statements from witnesses, and prepare a report on their findings. At times, they will arrest people during the course of their investigation. At other times, they will complete their report and submit it to the prosecutor’s office for evaluation, and a prosecutor will decide whether charges should be filed against any suspects named in the police report.The exact procedure for how charges are filed varies from jurisdiction to jurisdiction. Some jurisdictions give the police greater discretion in charging defendants with specific crimes, while others place more power with the prosecutor’s office. After being stopped by the police, a person may be ticketed for a “civil infraction,” may be ticketed or arrested for a “misdemeanor,” or may be arrested for a “felony.”While it is common to speak in terms of being “charged by the police,” in many states this is not entirely accurate. The exact procedure for how charges are filed varies from jurisdiction to jurisdiction, and, although the police may arrest a person and may recommend a specific charge, in many jurisdictions criminal charges is chosen solely by the prosecutor’s office.
What happens if I am stopped by the Police?
Generally, the police may stop a person for committing a traffic violation, for suspicion of being engaged in criminal activity, or to arrest the person for a criminal act. After being stopped by the police, a person will typically be questioned.
Can The Police Stop And Question People Who Are Not Under Arrest?
Yes. The police can stop a person, and ask questions, without “arresting” the person. Upon seeing suspicious activity, the police may perform what is called a “Terry Stop,” and may temporarily detain people to request that they identify themselves and to question them about the suspicious activity. The scope of a “Terry Stop” is limited to investigation of the specific suspicious activity, and if the police detain people to question them about additional matters, the stop can turn into an “arrest.” For their own safety, the police can perform a “weapons frisk” on the outside of a person’s clothes (sometimes called “patting down the suspect”) during a “Terry Stop.” During this frisk, if they feel something that may be a weapon, they may remove it from the suspect for further examination. However, they are not entitled to remove items from person’s pockets that do not appear to be weapons, even if they believe that the items are contraband.
When Is A Person “Under Arrest”?
Many people think of an arrest as being a formal declaration by the police, “You are under arrest,” followed by the reading of the “Miranda rights”. (As seen on TV: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed to represent you.”)Reality is a bit more complicated. An arrest occurs when a person no longer reasonably expects that he is free to leave. A “Terry Stop” is not an arrest, even though the person can’t leave during the investigatory questioning, as the detention is of short duration and is limited in its scope. (A “Terry Stop” may involve little more than a short series of questions, such as, “What is your name? Where do you live? Why are you here?”) However, if a person is not allowed to leave the scene for an extended period of time, the person may be considered to be “under arrest,” even though those words are never used. If a person is handcuffed, is locked in the back of a police car, or is otherwise restrained from leaving, the person will ordinarily be considered to be “under arrest.”
If The Police Ask To Search Me, My House, Or My Car, Do I Have
To Say “Yes”?
No. You can refuse the police permission to conduct a search. Remember this – the only reason the police officer wants to perform a search is for evidence of criminal activity, and the fact that he is asking reflects an expectation that he will find some. You are entitled to say “No.” If the police officer has the legal authority to perform the search, he will do so whether or not you agree. However, if he does not have the legal authority to perform a search, your consent gives him that authority.During an investigative stop, or a traffic stop, a police officer may ask if he can search you or your car. However, if you give the police officer permission, he can perform the search even if he otherwise had no legal authority to do so. Some people don’t know, or forget, that they have an “open” bottle of liquor in the car – a bottle with the seal broken, whether or not the cap is off. Sometimes, people have knives or other weapons which can be classified as illegal “concealed weapons.” Sometimes, people forget that they have contraband in their cars, such as illegal drugs, or find to their chagrin that their teenaged child dropped a marijuana cigarette in the car. Unless you are the only person with access to the interior of your car, you may be in for a surprise if you grant permission for a search.
Do The Police Have To “Read Me My Rights” When I Am Arrested?
The police have no obligation to formally announce the arrest when it occurs, or to read a suspect his “Miranda Rights
.” Typically, at some point the police will inform a suspect that he has been arrested. However, many defendants never receive their “Miranda Rights,” which relate to the validity of police questioning of suspects who are in custody, and not to the arrest itself.
What Is The Difference Between A “Terry Stop” And An “Arrest.”
While a “Terry Stop” can be made upon “reasonable suspicion” that a person may have been engaged in criminal activity, an arrest requires “probable cause” that a suspect committed a criminal offense.
Can the Police Arrest Me Without A Warrant?
For most misdemeanor offenses, a police officer can only make a warrantless arrest of a suspect if the offense was committed in the officer’s presence. Officers can arrest people for felonies based upon witness statements, or where a warrant for the person’s arrest has been issued.
What Happens If I am Arrested Without Legal Cause?
It is important to note that an “illegal arrest” does not mean that a person can’t be charged with a crime. If a person is arrested illegally, and is searched or questioned by the police, evidence gained through the search or questioning may be declared inadmissible. However, there are circumstances where that evidence will be admitted into court despite the illegality of the arrest. Further, if a person has outstanding warrants for other charges, he may be detained on those charges, even though his initial arrest was illegal.
If I Am Arrested, Can The Police Search Me?
The police have the authority to perform a search of a suspect and his immediate surroundings, “incident” to the arrest of the suspect. If the police arrest a person who was driving a car, they ordinarily get the authority to search the entire passenger compartment of the car – and will usually also be able to search passengers for weapons. If the car is impounded, the police may perform an “inventory search” of the entire car, including the contents of the trunk.
What Can The Police Charge Me With?
A person who has been stopped by the police may be ticketed for a “civil infraction,” may be ticketed or arrested for a “petty offense” or “misdemeanor,” or may be arrested for a “felony,” or may be released. It is possible for the person to later be charged, when the police complete their investigation.Sometimes, the person will be informed that charges have been filed, and will be asked to present himself at the police station by a particular date and time.At other times, a “warrant” for the person’s arrest may be entered into the state’s computer system, informing police officers to arrest the person if they find him. If the charges are serious, the police may go out to arrest the person.
|A “civil infraction” is not a crime, although it is a charge filed by the state. The state has to prove that you committed a civil infraction by a “preponderance of the evidence,” which is to say; that it is more likely than not that you committed the violation. This is a much lower standard than the “proof beyond a reasonable doubt” standard that applies in civil cases. The typical civil infraction is decided by a judge or magistrate, without a jury, in what is typically a short proceeding.
|Some states have a class of “petty offenses,” where the defendant may be tried without a jury before a judge or magistrate. Typically, the only punishment for a “petty offense” is a fine. However, these offenses may be of a criminal nature. If you are not sure whether you are charged with a criminal offense or a civil infraction, consult a lawyer.
|A “misdemeanor” is a criminal offense, and conviction ordinarily results in a criminal record. Misdemeanors are technically less serious offenses, although the consequences of conviction can nonetheless be quite severe. Possible punishments for misdemeanors include imprisonment, probation, fines, and at times driver’s license sanctions. Some misdemeanors are classified as “sex crimes” and require that a convicted person be registered as a “sex offender”, and keep the police informed of his place of residence — a requirement that may continue for life.
|Felonies are the most serious offenses that can be charged. Sometimes, the distinction between “felonies” and “misdemeanors” seems arbitrary. However, all of the most serious criminal offenses (such as murder, sexual assault, embezzlement, burglary, robbery, arson, and treason) are felonies.
How Do I Know If I Am Charged With A “Civil Infraction” Or A Crime?
Typical “civil infractions” include “moving violations”, such as “speeding” and “failure to yield.” Sometimes people get confused, when they are charged with a traffic misdemeanor, such as having invalid license plates or driving an uninsured automobile, and think that they are being charged with “civil infractions.” Traffic misdemeanors are criminal offenses, and will result in a criminal record. Many traffic misdemeanors also carry “points” which will be added to the defendant’s driving record, and some require the suspension or revocation of a driver’s license. If you are ticketed for a “misdemeanor,” the ticket will likely reflect the nature of the charge, and you will be required to appear in court. If the charge is a “civil infraction,” you typically will not have to go to court if you pay a fine by mail. Read the ticket carefully.
Do Defendants Have The Same Rights When Facing Misdemeanor
And Felony Charges?
A defendant charged with a misdemeanor has fewer legal rights than a defendant charged with a felony. If the defendant will not face imprisonment as a result of conviction, he has no right to an attorney. There is no right to indictment by grand jury, or to a “preliminary examination” to review the basis of the charges filed. In some states, misdemeanor charges are tried before six person juries, whereas felonies are ordinarily tried before twelve person juries. Most other rights are the same, for both felonies and misdemeanors.
If I Have Not Been Arrested, How Do I Find Out If I Am Charged
With A Crime?
If there is reason to believe that you have been charged with a crime, you may wish to have an attorney contact the police or prosecutor to find out if a warrant has been issued for your arrest. Many people who have been charged with criminal offenses do not find out about the charges until they are stopped for traffic violations. The police, while checking their identification, find “outstanding warrants” for the person. Sometimes, the warrants have a “limited pick-up radius,” or the police officer does not believe that an immediate arrest is necessary, and the officer will simply inform the driver that a warrant has been filed and that the driver should report to the police agency that requested the warrant. At other times, the officer will make an immediate arrest, and will take the person into custody.
What Happens After I Am Arrested?
After being arrested, a person is “booked” by the police. Ordinarily, the police obtain identifying information from the suspect, such as his name, address, telephone number and driver’s license number. The person is checked for outstanding warrants for other offenses. Usually, the police take the suspect’s photograph and fingerprints. They make a record of this information, along with the nature of the crime charged, and usually an assessment of the suspect’s physical condition. If a person is under arrest at the time he is booked, he will ordinarily be thoroughly searched. If the arrest was legal, any evidence found in this search can be used as evidence in court.
Should I Consult An Attorney Before I Am Charged?
Yes, if possible. Unless you were arrested on an outstanding warrant, the fact that you have been arrested does not necessarily mean that charges have been authorized. An attorney can advise you of your rights, and how to handle contacts with the police. It can be very helpful to have an attorney intercede on your behalf before a warrant has been issued, as he may be able to influence the prosecutor’s “charging decision.” Sometimes, an attorney will be able to convince a prosecutor to charge a less serious offense, to send the complaint back to the police for more investigation, or even to refuse to authorize a warrant. However, once a warrant is issued, it is very difficult to get a prosecutor’s office to change the charge.
Do I Need A Criminal Defense Lawyer?
Any person who is facing a criminal charge, no matter how minor, will benefit from consulting a competent criminal defense lawyer. Even if the lawyer is not retained to provide representation in court, a consultation will help a criminal defendant understand the nature of the charges filed, available defenses, what plea bargains are likely to be offered, and what is likely to happen in the event of conviction.For serious charges, it will be a rare defendant who does not benefit from having a competent criminal defense lawyer assist with the negotiation of a plea bargain, or to prepare a case for trial.A criminal defense lawyer should also be able to identify important pretrial issues, and to bring appropriate motions which might significantly improve a defendant’s situation, or even result in the dismissal of charges.
How Much Will My Defense Cost?
The cost of a criminal defense lawyer can vary significantly depending upon the jurisdiction, and the nature of the charges which have been filed (or which are expected to be filed) against the defendant. A lawyer will typically require a greater retainer for a complex case than for a simple case. The amount of a retainer will also typically increase with the severity of the charge filed against a defendant. Sometimes, though, a relatively minor charge can require a higher retainer, where the attorney expects to have to engage in extensive motion practice, or where it will be necessary to utilize expert witnesses.In a misdemeanor case, although as previously noted the typical fee will vary significantly between cities, counties, and states, it is not unusual for a lawyer to request a retainer of several thousand dollars. For felony cases, retainers often start at $5,000 – $10,000, and can be $25,000 or more for serious or life felonies, such as sexual assault cases or homicide. The anticipated cost of expert witnesses can also significantly increase a retainer.Be wary of entering into a retainer agreement which calls for additional payments if the case will go to trial. It is not unusual for appellate lawyers to hear clients recite that they entered into guilty pleas after they were unable to come up with the necessary funds to pay their lawyers to proceed with a trial. If you do decide to enter into an agreement whereby you will pay an additional retainer if your case goes to trial, make sure that it is an amount you can afford.
Finding a Criminal Defense Lawyer
It is unfortunately not always easy to find a good criminal defense lawyer. Here are some suggestions:Referrals
– It may be possible to find a criminal defense lawyer from somebody who is familiar with the lawyer’s practice. For example, if you regularly work with a lawyer or law firm, that lawyer may be able to suggest a competent criminal defense lawyer in your area. If your county is served by a public defender’s office, sometimes a defender’s office will be willing to suggest a competent are defense lawyer. If you have a friend or family member who has been in trouble with the law, that person may be able to make some suggestions.
– You may wish to sit through some public sessions of court while criminal cases are being argued. If you find a particular lawyer’s performance to be impressive, you may take note of the lawyer’s name and later contact the lawyer about the possibility of representing you.
State versus Federal Charges
– There are additional factors you may wish to consider when hiring a federal criminal defense attorney.
After you have located one or more attorneys whom you wish to consult about your case, call them to schedule appointments. (Find out at that time if they offer a free initial consultation, or if you will be charged for the meeting.) Try to speak with the criminal defense lawyer over the phone before scheduling the appointment. Ask about the lawyer’s general experience with criminal defense, and any specific experience with cases like yours.
Trust your instincts – if you aren’t comfortable with an attorney you consult, try a different office. You do not have any obligation to hire a lawyer merely because you consulted with that lawyer. If your lawyer is promising you that your case is easy, or makes promises that you won’t go to jail, speak to other lawyers before signing a retainer agreement – some lawyers misrepresent the gravity of a defendant’s situation or the complexity of a case in order to entice the defendant to pay a retainer, and then blame the judge or prosecutor when the rosy scenario they initially promised turns out to be a nightmare.
Read the entire fee agreement with the lawyer before you sign it, and make sure you get a copy for your own records.
Private Defense Counsel or Appointed Counsel?
People who are charged with felony offenses, and many individuals who are charged with misdemeanors, may be eligible for appointed counsel or for assistance through a public defender’s office. When a defendant petitions for a court-appointed lawyer, the trial judge will typically make an assessment of the defendant’s resources to determine if the defendant will qualify for an appointment of a criminal defense lawyer. When an appointment is made, although the defendant may be ordered to repay certain attorney fees following a guilty plea or conviction, there will not ordinarily be any fee in the event of acquittal or dismissal of the charges.Some people assume that a court appointed criminal defense lawyer will offer services which are inferior to a privately retained lawyer. While it is certainly true that some public defenders, some appointed lawyers and some private attorneys will prove to be insufficiently skilled or dedicated to their work to provide an effective defense, it is generally asserted that the average public defender will provide better representation than the average private criminal defense lawyer. The primary reasons for this include experience, as a professional public defender will typically have much more experience with criminal cases than a private lawyer, the ability to collaborate with other experienced lawyers within the office, and also due to the resources and systems available to a typical public defender’s office. Many private criminal defense lawyers take appointments – meaning that if you are charged in a jurisdiction that appoints private lawyers to represent criminal defendants, many of the lawyers you might otherwise retain will be among those to whom a court might assign your case. And even if you are ordered to repay legal fees, the cost of an appointed lawyer is almost always significantly lower than the cost of a retained lawyer.In short, if you can hire an effective criminal defense lawyer you should not hesitate to do so. But, if your means are limited, you should also not hesitate to request an appointed defense lawyer, and should not fear that you will receive inferior representation just because your lawyer was appointed.
It is important to note that your constitutional right to effective assistance of counsel relates almost exclusively to the performance of appointed counsel. It is virtually impossible to convince an appellate court that the incompetence of counsel of your own choosing constitutes an error requiring reversal. If you are not comfortable with the competence of your lawyer, retained or appointed, consult with a second lawyer to have your situation reviewed. It may well turn out that your lawyer is competent – but it is you who could go to prison, not your lawyer, if the lawyer is inept.
What Happens When I Go To Court For The First Time?
Typically, a criminal defendant’s first court hearing is an “arraignment” before a judge or magistrate. An “arraignment” is an appearance in court where charges are formally read to a defendant. The judge or magistrate may also evaluate whether there was probable cause for an arrest, and may compel the prosecutor to allege additional facts to support the arrest. If probable cause is not established, the defendant must be released.If bail has not previously been set, it is often set at the same time as the arraignment. Bail (or “bond”) is often granted in a standard amount, depending upon the crime charged.In some jurisdictions, there is a subsequent “formal” arraignment, where the formal charges (“indictment” or “information”) are presented to the defendant. These charges are drafted by the prosecutor, and may vary from any original charges that were drafted by the police.
Do I Enter A Plea At The Arraignment?
At arraignment, the defendant is offered the opportunity to enter a formal plea. Sometimes, a defendant will plead “guilty” or “not guilty.” In some circumstances, the defendant may enter a “no contest” plea, which is treated by the court in the same manner as a guilty plea. Sometimes, the defendant will “stand mute,” and a “not guilty” plea will be entered by the court on his behalf. If a “not guilty” plea is entered, the court will ordinarily advise the suspect of his right to remain silent and his right to an attorney. If a defendant is indigent, he will usually be given the opportunity to petition the court for an appointed attorney.Usually, a defendant should speak to an attorney (even if only for a free consultation) before deciding whether or not to enter a plea of “guilty” or “no contest.” There is no need to rush into a plea to “get it over with” — particularly given that a bad decision can haunt you for the rest of your life.
Can I Get Released From Jail?
If bail is granted, and the defendant posts the required bail, he will be released. Sometimes, a defendant will be released on his own recognizance — his promise that he will appear for the next court hearing. Sometimes, bail is set in a very high amount. A defendant who is accused of very serious crimes may be denied bail, or have bail set in the millions of dollars. A defendant who is released on bail must attend all subsequent court hearings, or risk having his bail forfeited. (Keep this in mind — if you put your house or your car up as collateral for somebody else’s bail, you risk losing it if that person does not appear in court.)
What Happens After The Arraignment?
If you are charged with a misdemeanor, the next hearing is likely to be a “pretrial,” where the case is scheduled for trial. Sometimes, a defendant will enter a plea at the pretrial. At other times, the case will be scheduled for a “bench trial,” “jury trial,” or “plea hearing.”If a defendant is charged with a felony, but has not been “indicted” by a “grand jury,” the next step will likely be a “preliminary examination” where the prosecution must demonstrate to the satisfaction of a judge that there is reason to believe that a crime was committed, and that the defendant was the person who committed the crime. The defendant is allowed to question witnesses at this hearing. While the defendant ordinarily can present evidence, and may choose to testify, most defendants choose not to do so. If the Court is satisfied by the prosecutor’s evidence, the felony charges will be approved. Depending upon your state’s rules of criminal procedure, a defendant may be transferred to a different court for all further proceedings. He may be arraigned again, after the preliminary examination, and subsequently will have a pretrial.
What Do The Attorneys Do Between The Arraignment And The Trial?
During this time, the prosecutor and the defense attorney will likely demand “discovery” from each other. Often, this means nothing more than that the prosecutor gives the defense a copy of the police report, and perhaps some laboratory reports if the case involves drugs or drunk driving. While defense attorneys may differ, many prosecutors argue that this meager discovery fulfills their duties. The prosecution is obligated to provide the defense with the names and addresses of all relevant witnesses, and with copies of written or recorded statements made by the defendant or by co-defendants. The prosecution may be compelled by statute or court rule to provide additional information upon request, such as copies of witness statements, and reports from expert witnesses. The specific materials and information that must be exchanged will vary from state to state. Increasingly, the defense is required to provide certain information to the prosecutor, including witness lists, and may also be required to provide expert witness reports. In some states, the parties can conduct depositions of witnesses, where the witness testifies under oath before a court reporter, prior to trial. However, most states do not allow for depositions in criminal cases.Depending upon state law, a defendant will have to notify the prosecution if he plans to bring certain defenses to the criminal charges, such as an alibi defense, an insanity or diminished capacity defense. The purpose of the notice requirement is to allow the prosecutor to prepare for the defense, and to collect evidence and interview witnesses to challenge the defense. A defendant who is claiming insanity will ordinarily be examined by a state psychiatrist, and the refusal to submit to examination will usually prevent the defendant from raising that defense.
What If I Can’t Find A Witness?
The defendant generally has the right to request that the prosecutor’s office assist him in procuring witnesses for trial. Indigent defendants usually receive the greatest assistance, which may include issuance of subpoenas. However, due to the prosecutor’s access to information and police assistance that is not available to the defendant, the prosecutor is ordinarily obligated to help any defendant locate a missing witness.
What Is Involved In Pretrial “Motion Practice”?
Prior to the trial, either the defendant or the prosecutor may file motions with the trial court. Typical motions include motions to suppress evidence, motions in limine, and motions to dismiss. A motion to suppress evidence asks the trial court to exclude evidence from the trial, usually on the basis that it was collected in violation of the defendant’s constitutional rights. For example, if the defendant is arrested illegally, and is searched after his arrest, the evidence found during that search may be inadmissible. Similarly, a defendant may seek to exclude a statement or confession that he made to the police. A motion in limine asks the court to limit the issues or evidence at trial. For example, a defendant may wish to ask the court to exclude certain inflammatory allegations about him, which are not related to the charges against him, or portions of the defendant’s criminal record which are not properly admitted under the rules of evidence. The prosecutor may also wish to introduce evidence which cannot properly be linked to the defendant or the alleged crime, due to the circumstances or manner in which it was collected. A motion to dismiss asks the court to dismiss the charges against the defendant, usually on the basis of a procedural deficiency. A motion to dismiss may be filed following an illegal arrest, where all of the evidence presented by the prosecution was found as the result of that arrest.
What Is A “Diversion Program”?
At times, prior to trial, a defendant may be found eligible for a “diversion” program. These programs are not available in all communities. Typically, they are aimed at young offenders who have no significant criminal records. If a person successfully completes the conditions of a “diversion” program, which may include such requirements as counseling, attendance of “crime impact” classes, and regular attendance at school, either no charge is filed, or the charge is dismissed. If the defendant violates the terms of the diversion program, the charges are reinstated.
What Is The Significance Of My “Speedy Trial” Right?
A defendant has a constitutional right to a “speedy trial.” The meaning of “speedy,” and the benefits of demanding a “speedy trial,” varies from state to state. In some states, most defendants have to waive their right to a “speedy trial” in order to get sufficient time to prepare their defenses. If a defendant demands a “speedy trial,” he cannot later claim that he did not have time to prepare his defense. However, if a defendant demands a “speedy trial” and the prosecutor is not prepared to proceed to trial, the charges against the defendant may be dismissed.
What Is The Difference Between A “Bench Trial” And A “Jury Trial”?
A case that goes to trial will be heard by a judge in a “bench trial,” or by a judge and jury in a “jury trial.” In a jury trial, the judge decides the law, while the jury decides the facts. In a bench trial, the judge decides both the law and the facts. Both the prosecutor and the defendant have the right to demand a jury trial, although prosecutors are usually happy to consent to bench trials.
What Is “Jury Selection” And “Voir Dire”?
If a case is scheduled for jury trial, the parties engage in “jury selection.” During jury selection, a panel of jurors is questioned by the judge, by the attorneys, or both, in a process called “voir dire.” The purpose of this hearing is to determine if the jurors will be fair and impartial, and will decide the case based upon the evidence presented in court. Both the prosecution and defense can challenge jurors “for cause,” claiming that the jurors are prejudiced against their side. The judge determines if there is valid cause to exclude a particular juror from hearing a case. Both the prosecution and defense also receive a limited number of “peremptory challenges,” which allow them to remove jurors without any reason or explanation.
What Happens At Trial?
Typically, at the start of a trial the jury will be given preliminary instructions. The jury is instructed at this time that the defendant is presumed innocent, and that the presumption of innocence does not change until the jury begins deliberations. Jurors are not supposed to abandon the presumption of innocence before hearing all of the evidence in the case.Next, the attorneys will present opening statements. Witnesses are presented first by the prosecution, and next by the defense. At times, the defense will not present any witnesses, either because the prosecution called all of the relevant witnesses during its case, or because the defense wishes to argue that the prosecutor’s case is insufficient to justify conviction. The defendant cannot be compelled to testify against himself, but he has the right to testify in his own defense if he chooses to do so.At the conclusion of the defendant’s case, the prosecutor may present “rebuttal” witnesses to respond to arguments or evidence introduced by the defendant. Sometimes, the defendant will be allowed to present “rebuttal” to the prosecutor’s “rebuttal.”After all of the testimony has been taken, the attorneys will present their closing arguments. The jury is then given additional instructions, and commenced deliberations. Sometimes the defense attorney will request a “directed verdict” of not guilty, meaning that the judge will instruct the jury that the only verdict it can return is “not guilty.” These motions are commonly made, but are rarely granted. If the jury cannot reach a verdict, the judge will eventually discharge the jury. The prosecutor must then decide whether to dismiss the charges or to seek a new trial.
What Happens If The Jury Acquits The Defendant?
If the jury acquits the defendant, finding him not guilty, the case is usually over. (In the United States, the prosecutor cannot appeal an acquittal. However, in some other nations, the prosecutor has a limited right to appeal.)
What Happens If The Jury Convicts The Defendant?
A jury can also return a verdict of guilty. If a defendant is charged with more than one offense, the jury may convict the defendant of some charges while acquitting of others. At times, the jury will choose between related offenses. For some offenses charged, the jury may convict of a “lesser included” offense. For example, if a defendant is charged with “open murder,” the jury may convict him for first degree murder, second degree murder, voluntary manslaughter, involuntary manslaughter, or negligent homicide. (Please note that the names and elements of the various homicide offenses may vary from state to state.)After being convicted, a defendant may file post-trial motions, such as a motion for a new trial. These motions are rarely granted. The defendant may also file an appeal.
What Are The Possible Sentences For A Criminal Offense?
After sentencing, a defendant may simply be ordered to pay fines and costs, and be released. A defendant may also be ordered to participate in community service, or to spend time on a work crew. A defendant may be placed on probation, and may even be placed on “house arrest,” while wearing a “tether,” an electronic monitoring device. A defendant may also be sentenced to jail or prison. Courts can combine these various options, in fashioning a sentence for a defendant.
What Happens If I Am Placed On “Probation”?
A defendant may also be placed on probation. A defendant on probation will ordinarily meet with his probation officer monthly and at times more frequently. Sometimes, a defendant will be placed on “non-reporting” probation, where he does not meet with a probation officer.Typically, at the end of his probation, such a defendant will be asked to demonstrate that he complied with the terms of probation (such as by submitting attendance records from court-ordered Alcoholics Anonymous meetings), and his record will be checked for any further criminal activity. Sometimes, a defendant will be allowed to report by mail. This usually happens in cases where a defendant has been on probation without any problems for a long time, but his probation officer still wants periodic information on his activities.A defendant who has been convicted of a drug conviction may have to report to the probation office frequently for drug testing. A court may also order drug or alcohol counseling, or attendance of Alcoholics Anonymous or Narcaholics Anonymous meetings. During probation, a probationer must typically seek permission from his probation officer before moving or changing jobs. He may be restricted from leaving the state without his probation officer’s permission.
How Long Does Probation Last?
Probation usually lasts between one and three years, but can last longer depending upon the offense committed and state policies. Some states have “life probation” for certain drug offenses, where a person is placed on probation indefinitely. After a probationer has paid off his fines and other court assessments, and has completed other requirements of his probation (such as community service), a probation officer will sometimes consider an early discharge from probation. However, most probationers complete their entire terms of probation. Many, upon violating the terms of their probation, are in fact ordered to report to probation more frequently. If violations are of a serious or repeated nature, a probationer can be charged with violating his probation, and be ordered to appear before a judge for a hearing.
What Is A “Tether,” or “Electronic Monitoring”?
Tethers are increasingly sophisticated devices. A typical tether has a portable unit which is strapped to the probationer’s leg, and a “base unit” which is connected to the probationer’s telephone line. The portable unit sends a constant signal to the base unit. The base unit keeps a record of when that signal is interrupted, and transmits that information by telephone to the probation office. The probationer on “house arrest” is placed on a strict schedule, and must account for any absences from his home that are not pre-approved by his probation officer. If a probationer is not home at the times he is supposed to be, the probation officer may contact the probationer to inquire why he was not at home, or may contact the police and have the probationer arrested.
What Happens If I “Violate” My Probation?
A probation officer has the discretion to give a probationer a warning, or to make him appear before a court for a “probation violation” hearing. If you go to a hearing, the probation officer will typically ask that you face additional punishment, usually involving incarceration. There is no “hard and fast” rule for what type of probation violation will result in a probation violation hearing. One violation that is almost always considered serious is failing to appear for scheduled meetings with the probation officer. Being caught in possession of illegal drugs, or being arrested for another crime, will also typically result in a hearing before a judge. At times, the seriousness of the violation may depend upon the facts of the underlying offense — for example, if a person is convicted of being involved in a gang-related offense, the violation of probation through “association with known criminals” may be viewed more seriously than if the person is on probation for driving a car while his driver’s license was suspended.
What Are My Rights At A “Probation Violation” Hearing?
It is important to note that probation violations are typically tried under a “preponderance of the evidence” standard, where the prosecutor must show only that it is more likely than not that the probationer violated the terms of his probation. There have been many cases where a person’s probation was violated for engaging in new criminal activity, despite the fact that he was acquitted of the new charge, or was in fact never charged with a new offense.
What Happens If I Am Convicted Of A Probation Violation?
If a person is convicted of a probation violation, sometimes the court will extend his probation, or impose additional terms. Often, the court will sentence the probationer to a period of time in jail, followed by the continuation of his probation. Sometimes, the probationer will be resentenced to jail or prison, or will be ordered to complete a term that was previously “suspended.”
When Are Defendants Sentenced To Jail?
If the court feels that a more serious punishment is required than a term of probation, the offender may be sentenced to jail. “Jails” are typically run by County governments, and are used to house defendants prior to trial, and to punish people who have been convicted of less serious crimes. Although the exact terms vary from state to state, typically the maximum jail sentence is one year. At times, the offender will simply be sentenced to jail, while more typically the defendant will have to serve a term of probation after completing his jail sentence.
What If The Judge Thinks That Jail Is Not Enough?
If the defendant’s offenses are more serious, most states have a “boot camp” programs, which are intense, military-style facilities. Incarceration typically lasts about ninety days. Participants may be cautioned that if they drop out of the program, or are kicked out, they will be sent to prison. Some states reserve these programs for young offenders. As these programs can be physically strenuous, some people cannot participate in “boot camp” programs due to health conditions.If all else fails, the defendant will be sentenced to prison.
What Happens If I Go To Prison?
The most serious punishment for most crimes involves sentencing the defendant to prison, the “state penitentiary.” Following serving his “minimum term,” a portion of his sentence that varies from state to state, a defendant who is in prison will usually qualify for parole. Many defendants who are incarcerated can earn “good behavior” or “good time” credits, which allow them to qualify for an earlier release date by behaving. The idea is that model prisoners are less likely to re-offend, and that prisoners will behave better if they have an incentive not to cause trouble. Some prisoners will not be eligible for “good time,” due to the nature of their offenses. Often “habitual offenders” are not eligible for “good time” credits. Some jurisdictions have abolished “good time” for all prisoners.
Do All Prisoners Get Parole?
Parole is a privilege, not a right, and many prisoners are refused parole when they first apply. Parole boards expect to hear a prisoner admit responsibility for his crimes. They also expect that the prisoner will take advantage of the programs made available in prison, such as, if appropriate, GED programs, Alcoholics Anonymous, and vocational training. They will also look at the prisoner’s conduct during incarceration, and whether the prisoner has been cited for misconduct. (Typically, prisoners will be “ticketed” for their violations of prison rules, with offenses classified as “major” or “minor.” A prisoner who was involved in a fight would likely be ticketed for a “major” offense, while a prisoner who yelled at a guard might be ticketed for a “minor” offense, depending on the circumstances. These “tickets” can be challenged through administrative hearings, but are usually upheld as valid.) They may also look at the prisoner’s age, the amount of time he has served, the remaining time in his sentence, and his mental health. The exact criteria for parole vary from state to state.Perhaps the most important assessment that the parole board attempts to assess is the likelihood that the prisoner will re-offend. Parole boards have no interest in releasing people into society who will commit more crimes, particularly given that the media will sometimes hold the parole board as responsible as the criminal in such cases. Increasingly, potentially dangerous offenders, such as sex offenders, are finding that they are never granted parole, even in states where they are eligible.Some prisoners are not eligible for parole, either because of state policy, or because of the crime they committed. Some crimes carry a flat term of years, which must be completed without the possibility of parole. A defendant who is sentenced to “life” in prison will either be sentenced to “parolable life,” or to “non-parolable life.” If a person serving a “life” term is eligible for parole, he typically must serve fifteen or twenty years of his sentence before he can request parole. If a person is serving non-parolable life, he never becomes eligible for parole.
How Long Are People Kept On Parole?
The length of the parole will depend upon the nature of the crime committed, the length of the defendant’s sentence, and how well the defendant performs while on parole. A defendant who repeatedly gets into trouble or breaks the conditions of his parole may find that he is returned to prison. (Many states have jail-like facilities for “technical rule violators,” where they can send parolees who violate the terms of their paroles, but not to the level that the parole board wishes to return them to prison.) In most states, after a long enough period of good conduct, it is possible for a defendant to be discharged from parole.
Are Prisoners Simply “Released” From The Prison When They Receive Parole?
Release into the community may occur in stages. First, as the criminal nears his release date, he may be moved into less secure prison facilities. If he abuses the privileges at the less secure prison, he will be returned to a more secure facility. Prisoners in less secure facilities are sometimes allowed to work outside of the prison, either through a state program or sometimes through a private employer. If the prisoner continues to behave well, he may eventually qualify for placement in a half-way house, a residential facility where he can have a job, and may even qualify for day or weekend passes where he is free to do what he wants. If a prisoner successfully completes a term in a half-way house, he is usually paroled into the community.
What Happens After A Prisoner Is “Paroled Into The Community”?
A prisoner on parole is not without restriction. Sometimes, the prisoner will spend time on a “tether,” an electronic monitoring device that allows his parole officer to monitor his movements, and be restricted from doing much other than going to work. A parolee will typically not be allowed to move without permission from his parole officer. Sometimes, it will be a parole violation to get fired from a job. Parolees are typically restricted from associating with known criminals. If the parolee has drug or alcohol problems, he may be subjected to periodic testing for use. If the parolee has mental health problems, he may be ordered to participate in counseling or to obtain psychiatric treatment. (Increasingly, prisoners with mental health problems are refused parole, and simply serve out their time in prison.) Parolees may be surprised to learn how much control their parole officers exercise over their lives, and, depending upon the state, the extent of the parole officer’s powers to search the parolee or his residence upon suspicion that the parolee has engaged in illegal activities. Parolees often cannot move or change jobs without permission.
If I Am On Parole, Can I Leave The State?
Parolees are typically not permitted to leave the state without permission from their parole officers. Permission may be granted for short trips out of state, for example to attend funerals, or for longer trips, such as to assist a sick relative. However, some parolees are surprised to learn that, due to the nature of their offenses or a perceived risk of flight, their parole officers refuse to allow them to leave the state. If a parolee wishes to move to another state, and is granted permission to do so, his parole will typically continue, and will typically be transferred to the Department of Corrections in his new home state.
What Happens If A Person “Violates” His Parole?
If a parolee is accused of violating his parole, he is typically given the opportunity to challenge the accusation at an administrative hearing before the parole board. There will typically be two hearings, the first to determine if the parolee should be held in custody pending the full hearing, and the second to determine if the parolee violated the terms of his parole. Parolees who fail to report for meetings with their probation officer, who are caught with illegal drugs or concealed weapons, who associate with known criminals, or who are arrested on new criminal charges, are particularly likely to be returned to prison. It should be noted that being arrested can be enough to violate a person’s parole, even if no charges result from that arrest.
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Federal Drug Lawyer Charles Johnson represents clients who have been charged or are about to be charged with drug charges in Federal Court. The Charles Johnson Law Firm has earned an international reputation as one of the top Federal Drug Law Firms.
Regardless of the federal or international drug charge, Federal Drug Lawyer Charles Johnson has the drug defense experience to handle your case. He has successfully handled sophisticated drug defense cases that included Trafficking, Importation, Distribution and many others. When faced with a federal drug crime there is absolutely no substitute for experience. If you have been charged with drug crime and need a Federal Drug Defense Attorney, contact Attorney Johnson directly anytime night or day at (713) 222-7577. In Federal and International Drug Defense, experience makes the difference.
Federal Drug Crimes Overview
The Comprehensive Drug Abuse Prevention and Control Act of 1970, also known as the Controlled Substances Act, classifies narcotics, marijuana and other drugs into five categories, or Schedules. Besides establishing requirements relating to manufacture and distribution of drugs, the law also defines penalties for violations of the Act. Depending on the nature and quantity of the substance involved, as well as the presence of sentence-enhancing factors, the criminal penalties can be severe. If you are facing federal drug charges, call Houston Federal Drug Crime Lawyer Charles Johnson for advice on the law, your rights and how to proceed. He is available around the clock to take your call.
Offenses at the Federal Level
Federal drug offenses differ from those at the state level, even though the conduct in question might be the same. In defining crimes, Congress’ authority comes from its Constitutionally-granted powers over the areas of commerce, taxation and the postal service.
Some of the drug crimes under the Controlled Substances Act include:
- Drug trafficking: manufacturing, distributing or possessing with the intent to distribute illicit drugs
- Manufacturing: operating places for the purposes of manufacturing, distributing or using illicit drugs, or endangering human life while so doing
- Continuing criminal enterprise crimes: trafficking in illicit drugs by a person in concert with five or more other persons
- Conspiracy: involves attempts and the promoting and facilitating of manufacture, distribution or importation of illicit drugs
- Protected location offenses: distributing illicit drugs to persons under age 21 or within a school or playground zone; employing persons under age 18 in drug operations
- Simple possession: possessing controlled substances without a valid prescription from a licensed medical practitioner (unlike trafficking, simple possession does not involve intent to distribute the drugs)
Other drug offenses under the Act include investing illicit drug profits in businesses affecting interstate commerce and unauthorized importation of controlled substances. The Drug Enforcement Administration (DEA) enforces the federal controlled substances laws and regulations.
In addition, drug crimes at the federal level may include violations of tax law, such as tax evasion, or engaging in activities prohibited by the Racketeer Influenced and Corrupt Organizations Act (RICO).
Federal Sentencing Guidelines
Federal drug laws specify minimum and maximum terms of imprisonment, based on the type and quantity of drug involved. Likewise, under the Federal Sentencing Guidelines, these factors are taken into account, along with:
- Whether the offense involved injury to another person
- Whether a weapon was possessed or used
- The defendant’s criminal history
While judges have discretion to depart from sentencing guidelines, they must still stay within the mandatory minimum and maximum terms specified by statute. Where the offense occurs in a school or other protected zone, penalties may be enhanced.
Hire the Best Federal Drug Crimes Lawyer: The Charles Johnson Law Firm
Drug crimes can be charged and prosecuted under federal law, state law or both. Because federal drug crimes can carry significantly harsher penalties, it is important to contact a knowledgeable lawyer who is familiar with both federal and state drug laws. If you are facing either federal or state drug charges, call Federal Drug Crimes Lawyer Charles Johnson now at (713) 222-7577. He can explain the intricacies of both systems and vigorously represent your interests.
Charged with a Federal Crime? What To Expect
The following is a short summary of what you can expect if charged with a Federal Crime.
By the time you read this material, you or your loved one will have already entered the Federal Criminal Justice System. Whether you are in custody or in the “free world”, one firm rule applies: Do not discuss your case with anyone but your lawyer. Anything you say can and will be used against you. This is true whether you talk to a police officer, a person you just met in a holding cell, or a “friend”.
RELEASE OR DETENTION
The first thing to worry about is whether you are going to be released while waiting for trial. There is no bond set automatically in federal court. Your family cannot simply pay a bondsman to get you out.
Court Appearance: If you were arrested and taken into custody, you will soon appear before a United States Magistrate Judge. This is not the District Judge that will hear your trial. This Magistrate Judge will decide if there are any conditions that would allow your release.
Pretrial Report: In order to assist the Magistrate Judge, a Pretrial Services Officer will interview you and give the Magistrate Judge a written report about your background and criminal history. The Officer will not ask you about the facts of your case and you should not volunteer any information. If you lie to the Officer, it will hurt you later on.
Chance for Release: You are most likely to be released if you have little or no criminal history, if you have solid employment and family ties in your community, if you are a United States Citizen, and if you are not charged with a serious drug trafficking offense or crime of violence. Even if you are not a good risk for release, the Magistrate Judge must still hold a hearing and find reasons to keep you in custody. The only time this hearing is unnecessary is when you are being held in custody for other reasons — such as a sentence in another case, a parole warrant, or a probation revocation warrant.
When you are facing criminal charges, your choice of legal representation is a critical issue. You must ensure that you have legal representation from a proven attorney with a record of successfully defending difficult cases.
In order to protect your rights and to fight a possible Federal drug conviction, it is very important to hire the Best Federal Lawyer you can find. Your future is at stake, and this is not a time to cut corners. A knowledgeable Drug Crime Defense Lawyer will be able to sort out the details of your drug crime charges and diligently work to provide evidence that will benefit you. At the Charles Johnson Law Firm, we have been successful at lowering or dismissing charges against our clients and will look to do the same for you. To counteract the aggressive investigation and prosecution from the federal government, you will need an equally aggressive criminal defense attorney. Federal Drug Crime Lawyer Charles Johnson understands federal drug crime cases inside and out and will provide an unmatched dedication, commitment and an aggressive approach when defending your case.
Honesty: Defendants often believe it is better not to tell their lawyers the truth about their case. This is not a good idea. Everything you tell your lawyer is privileged and cannot be told to others. The best defense is one that prepares for all the bad evidence the prosecutor may present against you at your trial. Your lawyer must know all the facts. It is foolish to ignore the dangers and simply hope everything will turn out all right. That is the sure way to be convicted.
Bad Advice: If you are in custody, you will probably get a lot of free advice from other inmates. Unfortunately, much of that advice will be wrong. Many of the other inmates are in state custody and know nothing about federal criminal law. Even the ones facing federal charges may give you bad advice; they may not know any better, or they want to mislead you.
Respect: Treat your lawyer with respect and that respect will be returned to you. Lawyers are human beings who tend to work harder for clients who do not mistreat them.
When people talk about “rights” in the federal criminal justice system, they are usually talking about the Fourth, Fifth, Sixth and Eighth Amendments to the United States Constitution. These rights include freedom from unreasonable searches and seizures, the right to remain silent, the right to legal counsel, due process of law, equal protection under the law, protection from double jeopardy, a speedy and public trial, the ability to confront one’s accusers, subpoenas for witnesses, no excessive bail, and freedom from cruel and unusual punishment.
Caselaw: There are many books and thousands of cases that discuss what these rights mean. The law is always changing. A court opinion written in 1934 by a Montana court of appeals is probably no help in your case. Your case will mostly be affected by recent published opinions of the United States Court of Appeals for the Fifth Circuit and the United States Supreme Court.
Application: Not all of these rights apply in all cases. If you never made a statement to the police, then it will not matter whether you were told of your right to remain silent. If you consented to a search of your car, then it will not make a difference whether the police had a search warrant.
There are no benefits to being locked up. Jail has many rules and regulations. Some of those rules are made by the jailers. Some of these rules are made by the United States Marshal.
Clothing: You can get clothing two ways. The way to get underwear, tennis shoes, socks, etc, is to buy them through the jail commissary. Despite what others tell you, your lawyer cannot simply bring you these items. In most instances, trial clothing can be brought to the U.S. Marshal’s office shortly before your court appearance. You will be allowed to change in the holding cell at the federal courthouse.
Other Possessions: Sometimes the jail may allow you to receive magazines by subscription or books mailed from a store. It depends on the jail’s rules. Most other items need to be purchased through the commissary. All jails prohibit your lawyer from bringing you any items, such as cigarettes. You may keep legal documents in your possession.
Visits: Your friends and relatives must follow the jail’s rules when making appointments to visit you. You must put the names of these persons on your visitation list.
At some point you will come to court for an arraignment. This is the time when you enter a plea of “Not Guilty”.
Indictment: Before the arraignment, you will have been indicted by a Grand Jury. Neither you, nor your attorney, has a right to be present at the Grand Jury session. A Grand Jury decides if there is enough evidence to have a trial in your case. If there is not, then the case is dismissed. If there is, the Grand Jury issues an Indictment. An Indictment is the document that states what the charges against you are. The Grand Jury sessions are rarely transcribed, so it is usually not possible to receive a transcript of their sessions.
Hearing: The arraignment takesplace before a Magistrate Judge,notthe DistrictJudge who will hear your case. The Magistrate Judge will ask you several questions:
- Do you understand what you are charged with?;
- Do you understand the potential penalties if you are convicted?; and
- How do you plead to the charges?
Since you will have discussed the case with your lawyer by this time, you will be able to answer the first two questions “Yes”. Your answer to the third question is “Not Guilty”. You cannot plead “Guilty” at an arraignment. Pleading “Not Guilty” will never be used against you.
Discovery: Federal law provides only limited access to the government’s evidence against you. Under local rules, you and your attorney are permitted to have copies of only certain types of documents in the government’s file. The rules of discovery must be strictly adhered to, and your attorney will discuss these rules with you more thoroughly as your case progresses.
Motions: Before or after investigating your case, your attorney may feel it appropriate to file a motion(s), which may be heard before or at trial. You should never file your own motions without fully discussing the proper procedures with your attorney. If you have ideas about specific motions that could be filed your case, you should discuss with your attorney whether those particular motions would be appropriate or beneficial to your defense.
Many defendants want a quick trial. This is usually for two reasons. First, defendants who are in custody want to get out of the county jail as soon as possible. Second, defendants believe that if they are not tried within the Speedy Trial Act’s 70-day time limit, then their cases will be dismissed.
Pretrial Detention: There is no question that conditions in the county jail are not good. However, a defendant is rarely ever helped by going to trial as soon as possible. The prosecutor is prepared to try the case when it is filed. Your lawyer is only then beginning to investigate the case. Your lawyer does not have access to offense reports of the law enforcement officers that have already investigated the case. Also, “aging” a case has other benefits — the case becomes less important over time, witnesses’ memories fade, etc.
Dismissal: There are many exceptions to the Speedy Trial Act. Generally, a prosecutor can get a continuance of the trial whenever requested. The usual reason why a prosecutor requests a continuance is because there are codefendants who have not been arrested yet. The speedy trial deadlines do not begin to run until all charged defendants have appeared in court. Also, any time any of the defendants file motions, the time until those motions are decided is not counted toward the speedy trial deadline.
A felony trial in federal court is decided by twelve jurors. The jurors only decide if you are “Guilty” or “Not Guilty” of the charges in the Indictment. Jurors do not decide punishment. The District Judge decides punishment.
Jury Selection: The trial begins with the selection of the jury. A panel of potential jurors is called to court from voter registration lists. The District Judge, the prosecutor, and your lawyer talk to the panel and ask questions. The lawyers are allowed to keep certain members of the panel from sitting on the jury. The first twelve of the remaining panel members become jurors.
Opening Statements: Before the evidence is presented, the lawyers may make opening statements. Opening statements are when the lawyers tell the jury what they believe the evidence will show.
Order of Proof: The prosecutor presents evidence first. You are presumed to be innocent until proven guilty beyond a reasonable doubt. You do not have to present any evidence or testify. If your lawyer does put on evidence, it will happen after the prosecutor has finished presenting evidence.
Rules: During the trial, the lawyers must follow the rules of evidence and procedure. These rules are complicated. The rules can both help and hurt you. For instance, the rule against hearsay evidence prohibits a prosecutor from calling a witness to testify how he heard about what you did. The same rule will stop your lawyer from introducing an affidavit made by some person who is unwilling to come to court and testify.
Prior Acts: Although you are only on trial for the charges in the Indictment, there are two ways the jury can learn about other accusations against you. First, if you testify then the prosecutor will be able to introduce your prior convictions. Second, the prosecutor can introduce your prior acts –even if they are not convictions — if they are similar to the crime you are charged with (for example, prior drug sales in a drug distribution case).
Final Arguments: After all the evidence has been presented, the lawyers argue the facts to the jury.
Jury Deliberations: Jurors are usually average working people from the community. They are not specially trained in law. They use their common sense when deciding the case. Although the District Judge will instruct them about “the presumption of innocence” and “proof beyond a reasonable doubt”, jurors rely on many things in coming to a decision in a case. Jurors often rely on things such as: the appearance of the defendant, the defendant’s character, and their own biases and prejudices. They cannot be questioned about how they reached their decision.
Verdict: If you are found “Not Guilty”, you will be released. If there is a “Guilty” verdict, then the District Judge will order the Probation Department to prepare a Presentence Investigation Report to assist the District Judge at sentencing. It takes approximately two months between a conviction and sentencing.
Release: If you were previously on pretrial release,the District Judge may continue thatrelease until sentencing, unless you were convicted of a crime of violence or a serious drug trafficking offense.
Statistics show that most defendants plead guilty. You make the decision to plead guilty. That decision is never simple. Some possible benefits of a guilty plea are that:
- the prosecutor may dismiss some charges;
- the prosecutor may not file new charges;
- the prosecutor may recommend a favorable sentence;
- you may get credit for accepting responsibility, etc.
Plea Agreement: Any promises the prosecutor makes for your guilty plea will be stated in a written plea agreement. That agreement is signed by you, your lawyer, and the prosecutor.
Plea Hearing: You must enter a guilty plea in court before the District Judge. The District Judge must ask you many questions so the record shows you understand what you are doing. During the hearing, the prosecutor will briefly tell the District Judge the facts of the case. You must agree to those facts for the District Judge to accept your guilty plea.
Effect of Plea: Once the District Judge accepts your guilty plea, you are just as guilty as if a jury returned that verdict. Once you are convicted of a felony, you lose certain civil rights, including the right to vote; the right to sit on a jury; and the right to possess firearms.
After Plea: The procedure after a guilty plea is the same as after a conviction at trial. A Presentence Investigation Report will be ordered and you will either be released or detained until sentencing (see “Trial” section).
Some defendants give prosecutors information against other persons for the possibility of a reduced sentence. There is no guarantee that a defendant will get a lower sentence for “giving people up”. Cooperation usually requires a defendant to testify in court or before a Grand Jury.
Many times, federal defendants are first arrested by state officers on state charges. Sometimes, even when federal charges are filed, the state charges are not dismissed. It is possible to be convicted of both state and federal charges for the exact same offense. This is not “double jeopardy”. It is also possible to receive “stacked time” (a consecutive sentence), by pleading guilty to an unrelated state or federal case before being convicted in your federal case. Be careful not to do anything about your other cases without telling your attorney. If you are summoned to “jail call”, do not agree to plead guilty to your state charge in exchange for “time served” without telling your lawyer. Despite what the state prosecutor may tell you, this conviction will affect your federal sentence.
Sentencing takes place approximately three (3) -six (6) months after you have been convicted by a jury or guilty plea. The District Judge decides the sentence. Unlike state court, you cannot simply agree with the prosecutor to serve a particular amount of time or probation.
Federal Sentencing Guidelines: The District Judge decides your sentence based upon a book called the “Federal Sentencing Guidelines Manual”. That book works on a point system. You get points for the seriousness of the offense and your role in the offense. Points may be subtracted if you accept responsibility for the offense or if you were only a minor participant. The Manual also considers your criminal history. Your criminal history is the record of your prior convictions in state and federal courts. A chart at the back of the Manual determines your sentencing guideline range, based upon your criminal history points and the points you received for the offense conduct.
Mandatory Minimum Punishments: Some drug and firearms cases have mandatory minimum punishments. These minimum punishments apply even if the Federal Sentencing Guidelines would otherwise give you a lower sentence. For instance, anyone possessing over 280 grams of crack cocaine after August 3 2010, with the intent to deliver it, must receive at least ten (10) years in prison; even if that person is a first offender.
Departures: If the District Judge sentences you to more or less time than your sentencing guideline range, it is called a “departure”. Departures are unusual. The District Judge must have a good legal reason for a departure. The District Judge cannot depart downward below a mandatory minimum punishment, unless the reason is that you have provided substantial assistance to the government in the prosecution of others or you qualify for the “safety valve” provision as a first offender. Only drug cases qualify for the “safety valve”.
Presentence Investigation Report: Before the sentencing hearing,the District Judge will review a Presentence Investigation Report prepared by a Probation Officer. That report summarizes the offense conduct, your criminal history, and other relevant background information about you. Most importantly, the report calculates a range of punishment for the District Judge to consider in your case. The Probation Officer creates the report based upon information from the prosecutor, independent investigation, and an interview with you in the presence of your lawyer.
Interview: It is important to be honest with the Probation Officer at the presentence interview. If you mislead the officer you may increase your sentence for “obstruction of justice”. Also, you will not get credit for accepting responsibility unless you talk truthfully about your crime. Do not talk about any other conduct for which you have not been convicted, unless your lawyer tells you to.
Objections: Before the District Judge gets the Presentence Investigation Report, it will be sent to your lawyer. The probation office will also mail a copy directly to you for your inspection. Review it carefully. If there is anything incorrect about the report, your lawyer can file objections. Some mistakes are more important than others. If the report says your car is red rather than blue, that is probably not important. If the report says you have five (5) prior felonies when you do not, that is important.
Sentencing Hearing: At the sentencing hearing, the District Judge will review your objections to the Presentence Investigation Report and make findings about any facts or legal issues that cannot be agreed upon. Your lawyer will address the legal issues and point out the facts in your favor. District Judges do not want to hear from witnesses who are just there to plead for a reduced sentence. Letters of recommendation and other helpful evidence should be provided to your lawyer well before sentencing so the District Judge can see them before the hearing. Before the District Judge pronounces sentence, you can make a statement.
Concurrent and Consecutive Sentences: No area of law is more confusing to defendants and lawyers than whether multiple sentences (more than one) may be served at the same time (concurrent) or one after another (consecutive).
Present Charges: If your federal Indictment has several related charges, and you are convicted of them, you probably will serve these sentences at the same time. However, it is possible for the District Judge to “stack” unrelated convictions so each must be served before another begins.
Other Charges: Sometimes a defendant is already serving a sentence before being convicted in a federal court. Unless the District Judge specifically orders the new sentence to run at the same time as the previous sentence, they will be stacked and will run consecutively. You would have to finish your other sentence before the new one begins. Even if the District Judge runs the new sentence at the same time as your previous sentence, you will not get credit for the time you served prior to sentencing.
If you were on release until sentencing, you may be allowed voluntary surrender. This means about 45 days later you report directly to the federal prison designated for sentence. Otherwise, you would go directly into custody if you received a prison sentence.
An appeal is not a new trial. An appeal is a review of your case by the United States Court of Appeals for the Fifth Circuit, which is located in New Orleans, Louisiana. You may only appeal after you have been sentenced. A notice of appeal must be filed within 10 days after judgment (your sentencing order) is entered, or you lose that right. Transcripts of all testimony, and all the legal documents in your case, are sent to the Court of Appeals. The Court of Appeals decides whether the District Judge made any mistakes in ruling on the law in your case. If the Court of Appeals decides there were some important mistakes made by the District Judge in your case, the usual remedy is that you will be allowed to have a new trial or a new sentence. That is called a “reversal”. It does not happen often. It is nearly impossible to be released while your appeal is being decided. The decision to appeal should be made only after a careful discussion with your lawyer. The Fifth Circuit is strict about accepting cases that raise legitimate issues. A claim that you received “too much time” will not prevail in the Fifth Circuit. The Fifth Circuit will dismiss your appeal if you do not present an issue they consider meritorious. Also, you and your lawyer can be sanctioned (punished) if you present a “frivolous” issue on appeal.
Probation means your term of imprisonment is suspended, you must follow restrictive conditions, and report to a probation officer. Probation is not available for federal drug trafficking crimes. Except for minor fraud cases, most federal defendants do not get probation. “Shock Incarceration” or “Boot Camp” is not probation. That is a military discipline program followed by time in a halfway house. It is available mostly to young, nonviolent, first-time offenders.
Most defendants who are sentenced to prison go directly into custody or continue to remain in custody. Where the sentence will be served depends on several factors.
State Custody: If the reason you first came into custody was a state charge, parole warrant, or probation revocation warrant, then you are in state custody, not federal custody. Neither the United States Marshal, nor the District Judge, has the authority to take you from state custody so that you may begin serving your sentence in a federal institution. This means you will remain in the county jail, or the Texas Department of Criminal Justice, until your State of Texas (or whatever other jurisdiction you owe time) sentence is completely served. Even if you got a federal sentence that is to run at the same time as your previous sentences (see “Sentencing” section), you will do that time in the other jurisdiction’s prison.
Jail Credit: In the federal system, the district judge does not have the authority to award jail credit at your sentencing hearing. See United States v. Wilson , 112 S.Ct. 1351 (1992); 18 U.S.C. §3585(b). Under the statute giving a defendant convicted of federal crime the right to be credited for time spent in official detention before sentence begins, the Attorney General is required to compute credit after the defendant has begun to serve his sentence, rather than the district court at time of sentencing. Statute giving defendant convicted of federal crime right to receive credit for time spent in official detention before sentence begins does not authorize district court to award credit at sentencing.
Federal Custody: You are in federal custody if you were brought in on a federal warrant. It does not matter that you are being held in the county jail or that state charges or revocations are later filed. It is always better to be in federal custody, because the State of Texas will give you credit for serving your state sentences no matter who has custody of you.
Designation: If you are in federal custody, then a federal institution must be designated for your sentence. This designation takes about one (1) month and is made by the Federal Bureau of Prisons. During that month, you will probably remain in a county jail. The decision about where you will go depends upon the seriousness of the crime, your criminal history, the location of your family, among other things. A recommendation by the District Judge to send you to a particular place is not binding on the Bureau of Prisons.
Good Time Credit: The Bureau of Prisons can give you up to 54 days a year of “Good Time Credit”. This is time subtracted from your sentence. The credit is a privilege for good behavior, not a right. It does not begin to be counted until after your first year in prison.
Release: There is no parole in the federal criminal justice system. You will serve the majority of your sentence, minus Good Time Credit. You will receive a term of supervised release that begins after you are released. Like probation or parole, supervised release means you have to follow rules and report back to a probation officer. Violating supervised release can mean going back to prison.
You must use your own judgment about writing letters. You should not write about the facts of your case to anyone other than your lawyer. If you have any questions about your case or suggestions about it, you should contact your attorney immediately.
Federal Drug Charges in Houston, TX
Houston is in a unique position because of its convenient location. It is a criminal hotbed for illegal drug activity and because of its reputation, law enforcement; the FBI and the DEA are on high alert when it comes to detecting and convicting those guilty of trafficking or other federal drug crimes. Because drug activity is so rampant in Texas, the state has exceptionally harsh penalties for those who commit federal drug crimes. How one is prosecuted will depend on whether or not they have any priors on their record, the type of drug, and the quantity. A prison sentence for a federal drug crime can be as little as five years or it can be as long as life in prison.
The state of Texas has long been involved in a “war on drugs.” Federal prosecutors in the state of Texas come down hard on criminals involved in selling, distributing and trafficking large amounts of drugs. Not only do you face years in prison if convicted, non-citizens face deportation from the United States. At The Charles Johnson Law Firm, we are here to defend you against Federal Drug Charges.
Houston Federal Drug Crimes Lawyer Charles Johnson comprehends the differential factor between State and Federal drug crimes. If in fact you or a loved one are under investigation for a drug crime, or if you have been apprehended for or charged with a drug crime in Texas or Houston, you could face harsher punishment than you expect. If you or a loved one’s alleged crime is based upon large amounts of illegal drugs, transporting or distributing drugs over state lines or over and across the border, or other specific details, you could face federal drug crime charges rather than state charges.
The significant thing to know pertaining federal drug crimes is that a conviction will carry a much harsher punishment, a longer mandatory at the very least sentence, and the possibility of no bond or bail. Attorney Johnson defends cases at the Federal Level that involve drug crimes such as:
- Federal drug trafficking
- Federal drug manufacturing
- Federal drug sales and distribution
- Internet drug distribution
- Federal drug importation and transportation
- Mailing drugs over and across state lines or national borders
- Drug smuggling into or out of the United States
- Other crimes related to drugs and money laundering
Contact Houston Lawyer Charles Johnson anytime night or day to discuss your case. You can speak with him directly by calling (713) 222-7577. If in fact you or a loved one think you are part of a federal drug investigation, don’t wait to contact a lawyer you can trust. Rest assured that The Charles Johnson Law Firm will zealously defend you against any type of Federal Drug Charge.
Download “Arrested for Federal Drug Charges? Get Expert Counsel From Federal Drug Lawyer Charles Johnson” in PDF Format
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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.
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,
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
• 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 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.
An alibi defense is simply the argument that the defendant could not have committed the crime because that defendant was somewhere else.
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).
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” 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
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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.
Houston Lawyer Charles Johnson can be reached 24 hours a day, 7 days a week.
Call us at 713-222-7577 or toll free at 877-308-0100.
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News Stories Related to Drug Trafficking Arrests in Houston:
Download “Houston Criminal Lawyer: Facing An Arrest For Drug Trafficking?” in PDF Format
Cocaine Trafficking Arrest in Houston County
A routine traffic stop for speeding turns into a drug trafficking arrest. Just after 10:30 Tuesday morning Houston County Sheriff Deputy Robert Reichert stopped a vehicle traveling south on Highway 431, about a mile from Landmark Park. The driver ...
WTVY - Jul 02 2008
Several arrested for drug trafficking
Ten defendants were charged in a five-count indictment have been arrested for their roles in an alleged marijuana and cocaine trafficking conspiracy ... a U.S. Magistrate Judge in Houston. Those arrested include: Edgar Madrigal, 24, of Houston.
Your Houston News - Jan 21 2009
Three arrested on I-40 charged with pot distribution
He suspected the drivers were trafficking drugs because he knew drug trafficking organizations ... the rental contract revealed the two cars were rented by the same man from Houston. The renter was not with the group, further raising the officer’s ...
ABQJournal - Sep 10 2015
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What is a Criminal Appeal?
A Criminal Appeal is known as the request from any party in the lower court proceeding to the higher (appellate) court requesting the appellate court to examine and alter the decision of the lower court. If the defendant in the criminal court case is found guilty of a charge or charges, this defendant will have the legal right to appeal that conviction or the penalties or sentencing. It’s common for defendants who have been found guilty to appeal his / her convictions.
Top Houston Criminal Appeal Lawyer: The Charles Johnson Law Firm
The defendant in the criminal trial can appeal right after the individual is found guilty at trial. The truth is, it’s very typical for defendants who have been found guilty to appeal their convictions and/or sentencing. Typically only the defendant in the criminal trial can appeal. The prosecutor cannot appeal if the defendant is acquitted (found “not guilty”) at trial. A prosecutor cannot place the same defendant on trial for the very same charge with the exact same evidence. This sort of retrial is referred to as “double jeopardy.” Double jeopardy is specifically disallowed under the 5th Amendment of the US Constitution. Nevertheless, prior to or during the criminal court trial, the prosecutor might be able to appeal specific rulings, for instance when a judge has ordered that some evidence be “suppressed”. Appeals that occur in the course of a trial are known as interlocutory appeals. Typically, appeals can be quite complex; the appellate court has a tendency to implement technical rules for carrying on with a criminal appeal.
In criminal court cases, the federal court can review a conviction once all of the ordinary appeals have been completely utilized. A defendant who has been found guilty can request one such review in the petition for the writ of habeas corpus , Latin for “you have the body.” Merely a small number of these types of petitions are generally granted. In death penalty legal cases, these types of proceedings have grown extremely controversial. Since the judicial or prosecutor’s error in the death penalty case has such severe penalties, courts evaluate petitions for writs of habeas corpus cautiously.
The procedures of appellate courts encompass the guidelines and procedures through which appellate courts evaluate trial court decisions. The Federal appellate legal courts observe the Federal Rules regarding Appellate Procedure. The State appellate courts adhere to their unique state rules involving appellate procedure. Both in state as well as federal jurisdictions, appeals are normally limited to “final judgments.” There can be exceptions to the “final judgment rule,” such as cases of basic or serious error because of the trial court, questions involving subject-matter jurisdiction of a trial court, or constitutional concerns.
The issues under evaluation in appellate court focuses on written briefs offered the parties. Such complex documents describe the concerns for the appellate court and outline the legal authorities and justifications supporting each individual party’s position. The majority of appellate courts don’t hear oral arguments unless there’s a specific request from the parties. Few jurisdictions permit oral argument as a matter of course. Where it’s permitted, oral argument is supposed to describe legal issues offered in the briefs and attorneys tend to be constrained to keep their oral presentations stringently for the issues on appeal. Typically, oral arguments are subject to a rigorously enforced time frame. This time restriction may be expanded solely upon the discernment from the court.
Where are Appeals Filed?
Generally, people can only file an appeal using the next higher court within the same system that the case begun. For instance, in the event that individuals wish to file any appeal from a decision in the state trial court, usually they could file their appeals just to the state intermediate appellate court. A party who loses at appeal can next appeal to the subsequent higher court within the system, normally the state supreme court. The state’s highest court is virtually always the last word on issues regarding that state’s law.
How Much Does a Criminal Appeal Cost?
To tell the truth, numerous appeals are often very inexpensive. If your appeal is centered on a single plainly defined issue of law, and all parties have organized strong briefs, could cost very little to appeal. However, appeals which include statements that the judgement had been contrary to the weight of the evidence generally will need both the printing of the entire trial history and intensive examination as well as briefing. These kinds of appeals are fairly expensive as they possibly require considerable amounts of attorneys’ time. Furthermore, they often times end up being significantly less successful.
Houston Criminal Appeal Lawyer: The Charles Johnson Law Firm
Managing the criminal appeal process is tough and time-consuming. Houston Lawyer Charles Johnson will help you prepare your strategy. Contact us now for a no cost preliminary consultation.
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