When Other Factors May be Considered

While many cases allow a judge to consider external factors when sentencing a case, there are some instances where this is not allowed. Sometimes a judge must simply look at the case presented to him and make a judgement based on what is presented during the case. These rules are often based on what federal or state laws apply to the case in question.

Looking to the Past

The past activities of a defendant are one way in which a judge can make a sentencing decision. If a defendant has previously been convicted of a crime, especially one closely related to his or her current charges, this can cause a judge to pursue a much harsher sentence. This type of information can help a judge determine if a defendant would benefit from certain types of rehabilitation services.

Pre-Sentence Report

A pre-sentence report is one of the most valuable tools available to sentencing judges. This report consists of many types of information relating to the defendant in question. These reports are created by the U.S. Probation and Pretrial Services System when pertaining to federal cases. State personnel or local probation officers are likely to create all reports for state cases.

The pre-sentence report contains the following information:

• The impact the defendant’s past and current crimes have had on victims. This can be psychological, financial or medical in nature. Another dramatic difference that a victim can make is when they address the court at the sentencing hearing.
• The “offense level” of the defendant is also listed. This is determined by looking at the defendant’s past criminal history and how long ago the crimes were committed.
• Circumstances surrounding the defendant are also listed in the report. These can include personal circumstances that may have led to the person committing the crime. This helps a judge determine possible rehabilitation services that may be used as a way to prevent repeat offenses in the future.
• The way in which any damages that must be paid are also determined by the report. Information, such as the income, are included in the report to help make this determination.

For more information regarding criminal sentencing, call Rand Mintzer at 713-862-8880 to schedule an appointment.

Steps and Deadlines for Appeal

Each state has its own set of rules in regards to filing an appeal. All deadlines and requirements are very similar to those of federal courts. The form known as the notice of appeal is required in both state and federal courts and must be filed with the clerk where the plea was entered.

Deadlines are the most important part of any appeal process. Each step of the appeal will have deadlines that must be met in order for the appeal to be heard. The first deadline applies to the initial filing of the appeal. Most requirements call for the appeal to be filed within 10 days of the initial court decision. This ensures that an appeal is not filed years after sentencing as a way for the defendant to try and circumvent their sentence.

An appellate brief is the second step in the process. The brief lays out the reasons why the defendant or prosecutor feels that the decision is erroneous. This often must be completed within 40 days of the initial appeal filing. The prosecution in the case must also file a brief of their own detailing why the court’s decision shouldn’t be overturned.

A defendant can file a reply brief if they disagree with any aspect of the prosecution’s brief. The reply brief must be done within 14 days of the brief submitted by the prosecution. These replies are a pivotal way in which the defendant can demonstrate the flaws in their case.

Obtaining the Necessary Help

The criminal appeals process can be confusing to the layperson and will often require professional legal assistance. Missing any of the deadlines stated above can result in an appeal not being heard and an unchanged sentence, whether given in error or not. The original attorney for the defendant will often continue to work for the defendant if an appeal is needed.

To learn more about appealing a court decision, schedule a free consultation with Rand Mintzer at 713-862-8880.

Different Defendants in a Court Case

There are two main defendants in a case that involves aiding and abetting. Both are often guilty of crimes at varying levels.

• Principal perpetrator: This is the person who physically engages in the unlawful activity. There can be one or more perpetrators in a single case.
• Accomplice: This is the person who assisted the principal perpetrator in some way. This could be either before, during, or after the crime. There can be multiple accomplices in a case.

Types of Aiding and Abetting

Aiding and abetting can take place at any point in a crime. Those who help the person set up the crime, but do not actually take part in it are still guilty of being an accessory before the fact. Those who actually take part in the crime are considered perpetrators. Those who help a criminal after the crime has been committed are considered accomplices after the fact. Some examples of aiding and abetting include:

• Acting as a driver to or from the place where the unlawful act takes place
• Being dishonest with authorities who are investigating the case
• Holding stolen possessions or other items related to the crime
• Sheltering the perpetrator after they have committed the crime

Sentencing for Aiding and Abetting

Those convicted of aiding and abetting face varying sentences depending on the nature of the crime and whether it is prosecuted at the federal level or state level. Some courts sentence accomplices to a lesser degree than the actual perpetrator. There are still many courts that reserve the right to sentence the accomplice to the same punishment as the actual perpetrator.

Many defendants facing aiding and abetting charges are able to avoid their own heavy sentences by cooperating with authorities in arresting or convicting the perpetrator of the case. The best first step for any person facing aiding and abetting charges is to contact an attorney to explore their options. This can lead to sentences only consisting of probation or fines with no prospect of time in prison.

For more information regarding aiding and abetting a potential criminal, speak with Houston attorney Rand Mintzer at 713-862-8880.

How ‘No Contest’ is Different

In the state of Texas, a “no contest” plea is vastly different from a guilty or not guilty plea because it does not require the defendant to admit any guilt. When a no contest plea is requested the defendant agrees to let the court sentence them for the crime, but at the same time there is no admission of guilt. A no contest plea is beneficial if the defendant wants to be saved from possible civil action later. A person who enters a guilty plea and is sued in civil court may be forced to pay substantial sums of money in damages to a plaintiff.

The Process of Requesting a No Contest Plea

Requesting this type of plea never promises a guaranteed result. There are instances where a no contest plea is rejected by a judge and the defendant must choose to plead guilty or not guilty. This type of plea is most commonly accepted if the prosecution has no issue with it.

While federal courts do allow defendants to plead no contest, there are some states where this is not even an option. Many other states have other requirements, such as the crime can’t be of a violent nature. If a crime is minor, most states will allow a person to plead no contest.

Before a judge considers this type of plea they look at factors such as extenuating circumstances that may have made the person less likely to know they were committing a crime. The defendant’s involvement in the crime may also be considered. A case with multiple defendants may look more favorable upon a person who had only slight involvement.

Future Issues

Pleading no contest does not mean that it may not be a hindrance to the defendant in the future. This type of plea can still be considered involving future criminal cases. A judge may take this into consideration if sentencing is given for another crime at a later date. It can also cause issues when the defendant tries to apply for future jobs, as it will still be visible on their criminal record.

For more information regarding no contest pleas, talk to Rand Mintzer at 713-862-8880 for a free legal consultation.

The U.S. Constitution’s Sixth Amendment guarantees the accused the right to know what they are accused of. The Founding Fathers added the “arraignment” clause to protect Americans from languishing in jail due to political persecution. Since the Sixth Amendment closely ties arraignments to the right to speedy trials, arraignments usually occur within 72 hours after arrest.

An arraignment is composed of several important steps. Thus, the process is sometimes split into two stages.

The First Stage

• An accused person appears before a judge and verifies that he or she is, indeed, the person named in the charges.
• The accused person then hears the specific criminal charges and receives a written document to this effect. After being formally charged, the accused becomes the defendant.
• The defendant has an opportunity to apply for a court-appointed attorney, retain private counsel or waive the right to an attorney.

At this point the arraignment may be rescheduled. A later date allows the defendant to have legal counsel present when he or she enters a plea. This is important because entering a plea officially puts the defendant on the record.

The Second Stage (The Arraignment)

The defendant pleads guilty, not guilty or nolo contendere (“no contest”).

• Unless the defendant pleads guilty, the judge sets a schedule for the trial, including the dates for a preliminary hearing if necessary, any pretrial motions and the trial itself. For simple cases, like traffic violations, a defendant may plead guilty and pay a fine rather than undergo a trial. In these cases, the arraignment is over.
• Even if bail has already been set, it is often revisited with a bail-bond hearing following the arraignment.

Compared to a trial, an arraignment may seem like a simple procedure. After all, at an arraignment, there are no witnesses testifying, no jury to convince and no pieces of evidence to present. However, an arraignment is a serious legal matter that should not be taken lightly.

Defendants who represent themselves, even at arraignments, are taking large risks, especially since bail is reviewed and a trial is proposed in a relatively brief span of time. In addition, just like a physician is frequently able to offer more assistance to a patient whose malady is diagnosed early, a criminal defense attorney can often better protect a client when the attorney is involved in the case from the very beginning.

To learn more about the arraignment process, get in touch with Rand Mintzer at 713-862-8880.

Purpose of the “Speedy Trial” Clause

The original purpose of the “speedy trial” clause was to prevent accused persons from spending too much time in jail while awaiting trial, since incarceration is an infringement on one’s liberty. In the same way, waiting too long for a trial could allow evidence exonerating the defendant to disappear. For example, a witness could die, documents could be lost and memories could become faded.

Conversely, defendants can waive their rights to a speedy trial by filing frivolous lawsuits or by entering a guilty plea.

What is a Speedy Trial?

Calculation of the time spent awaiting trial, or the delay, does not begin until a defendant is arrested or indicted. Delay is not the only measure of a trial’s speediness, however. The Supreme Court has set forth a “balancing test” to determine violations of the “speedy trial” clause. Delay is only one of four factors that are examined together before a case is dismissed, a conviction is overturned or a sentence is vacated.

1. The defendant’s assertion of this right: Defendants must assert their right to a speedy trial during the delay. Failing to assert this right in a timely manner is interpreted as acquiescing to the delay.
2. The delay’s length: Generally, a delay of a year or more from the time of arrest or indictment can be interpreted as a violation of the defendant’s Sixth Amendment rights. However, legitimate reasons for the delay can compensate for the lengthy time-frame.
3. The state’s reason for the delay: If the reason is unavoidable, then an exception to the one-year time-frame may be granted. For example, if a key witness is unavailable, then the prosecutor may delay a trial. However, the prosecutor cannot delay a trial in order to gain an advantage. Neither can the prosecution’s mistakes, such as losing an important file, cause a delay.
4. The prejudice suffered by the defendant: In this instance, prejudice means that the case is stacked against the defendant for reasons other than actual evidence. For example, if a witness who could provide the defendant with an alibi dies or becomes incapacitated during the delay, then the delay prejudiced the case. In a situation like this, even if the delay is less than a year, the case could be dismissed.

For more information regarding a defendant’s right to a speedy trial, give Rand Mintzer a call at 713-862-8880.

There are several reasons to have statutes of limitations, some of which include:

• It protects the state from having its court system tied up in incessant civil disputes.
• It protects the state from losing resources to endless investigations of crimes long past and lacking in evidence.
• It protects accused persons from witnesses whose memories get fuzzier with time.
• It allows accused persons to put the accusations behind them and move on with productive lives.

Tolling

Sometimes figuring the time frame of the statute of limitations is not as obvious as it first appears because it is tolled, or stopped, for a period of time. The time that is tolled does not count toward the statute of limitations.

In Texas, the statute of limitations is tolled when the accused is absent from the state. This exception could add years to an otherwise short statute of limitations. Therefore, accused persons should contact their attorneys before leaving the state. Texas also tolls a statute of limitations during any pendency of indictment, information or complaint.

Texas Law and the Statute of Limitations

Depending on the type of lawsuit, civil cases in Texas have statute of limitations ranging from one to 15 years. In these cases the clock “starts ticking” when the incident occurred. For example, the statute of limitations for personal injury from an automobile accident begins on the day of the accident.

Similarly the statute of limitations for most criminal cases begins when the crime occurred. In Texas, the statute of limitations for misdemeanors is two years. However, felonies have different time frames based on the seriousness of the crime. The following are some statutes of limitations for felonies:

• Murder, manslaughter and sexual assault involving specific DNA evidence: No statute of limitations
• Theft by a public servant and forgery: 10 years
• Injury or harm to the elderly and some cases of sexual assault: 10 years
• Arson, fraud, theft of fiduciary property or identity theft: Seven years
• Other types of theft and kidnapping: Five years
• Other felonies: Three years

Sometimes people confuse the terms summons and subpoena. These two terms are similar because they require a person to appear before a legal proceeding. However, a summons is issued to someone who has been named in a civil lawsuit or who faces criminal charges, while a subpoena is issued to merely strengthen a case.

What is the Purpose of a Subpoena?

The purpose of a subpoena is to obtain proof, and this proof falls into two categories: documents, which require a subpoena ad testificandum, and testimony, which requires a subpoena duces tecumand. This distinction means that a subpoena could be for something as simple as income-tax returns or as complicated as a testimony.

Who Serves a Subpoena?

Although the exact process varies by state, an attorney who requires certain evidence requests a subpoena to obtain the evidence. Some states require subpoenas to be served by the requesting attorney, some require a law officer to serve subpoenas and some allow subpoenas to be mailed.

Regardless of how it is served, a subpoena will always detail the time and place of the legal proceeding, the persons involved, the required documents and/or the required testimony.

How to Handle a Subpoena

Citizens who are served subpoenas should never panic but should remember that subpoenas are merely information requests. The first step is reading the subpoena to understand the request. For example, if the request is for documents, then finding and storing these documents safely is a priority.

No one should ever ignore a subpoena. Failure to respond will be considered contempt of court, a charge that carries both civil and criminal penalties. Sometimes, people may be uncomfortable with a subpoena’s request. Therefore, the court allows challenges. An attorney can determine if there are sufficient legal reasons to challenge the subpoena.

Subpoenas are serious legal documents that should never be taken lightly. They absolutely require some kind of action. Perhaps, documents need to be located, or perhaps, a simple deposition is all that is required. However, if the situation is more complex, solid legal advice is always a good investment.

The law demands that police officers must have a reasonable suspicion before stopping you for drunk-driving. Courts employ various factors to know if the arresting officer had a concrete reason to stop you. In many occasions, the basis is derived from erratic driving. Some reasonable claims officers use are: changing lines without a reason, driving with a turn signal without turning and many more.

Generally, if the officer has a reasonable belief that you are drunk-driving, he will initiate a DUI investigation which includes determining if you are driving while intoxicated. This is meant to gather evidence to arrest suspected drunk drivers. This investigation warrants that the officer request a driver to submit to chemical testing like the breathalyzer for the police officer to measure Blood Alcohol Content level. Drivers can choose to go for blood test or a breath test in California, but breath test is the most common DUI test employed generally.

It is critical for residents to know that there is an implied consent law which is applicable in cases of DUI. Implied consents means, an individual is considered to have agreed to a chemical test, blood or breath. So when an officer pulls an individual over for a reasonable drunk driving suspicion, for blood alcohol content measurement, refusal to submit to this testing may call for harsher penalties.

Several penalties may be imposed for refusal to submit to Blood Alcohol Content test

under California law, when a person refuses to submit to a blood test or breathe test. The California Department of Motor Vehicle (DMV) can suspend the person’s driving license for a given period of time. This period depends on varieties of factors including: prior drinking convictions or the age of the individual. Also, in the event that you refuse to have a chemical test, your refusal evidence can be introduced in a court of law as a tactic to show that you have consciousness of guilt, and that you were drunk at that specific time you were driving the vehicle.

In extreme situations, police officers may try to force people to submit to blood test. However, certain conditions must be met before a person is forced to have a blood test. You can consult with an attorney to know your rights in the event you don’t submit to a chemical test.

Refusal to submit to a chemical test or a failed chemical test does not imply that an individual goes to jail. Several defenses are available for fighting the case including illegal arrest, the arresting officer did not advise you of the legal impacts of refusal, to defective testing device. Besides, when a person takes prescribed medications before administration of the chemical test, there is high possibility of errors in the results of chemical or blood test. With an experienced DUI attorney, thorough investigations into the case can uncover problems regarding the case against you. This can greatly assist an individual to avoid the penalties that come with refusal to submit to a chemical test.

About The Author:

Christopher J. McCann is a practicing DUI lawyer Fullerton at the law offices of Christopher J. McCann, who was recently awarded his 6th SuperLawyers Magazine “Rising Star” award. You can follow Chris tweets at @cjm_law_firm

Shoplifting is categorized under the theft crimes in Texas.  Generally the punishments are based on how valuable the item or items stolen are.  The prosecution and the police officer need to show that you in fact acted with criminal intent.  This means that proof beyond a reasonable doubt must be present that you knew the merchandise belonged to the owner of the store and that you took some action to deprive him of its value.  The prosecution will use any evidence at its disposal to prove its case including security camera footage, witness accounts and actions like price switching or refund fraud.

What Defenses Do I Have Available If I Am Being Charged With Shoplifting In Texas?

Your first defense with respect to any criminal charge is remaining silent when questioned and requesting an attorney to be present.  An attorney can help protect your rights and make sure that the police or store owner are not overreaching with respect to your constitutional rights.

Police officers and prosecutors can be aggressive and may use bullying tactics to make sure that the accused is found guilty of the crime.  This is even done when the charges are not proper to begin with.  Moreover, a conviction of a crime will result in a criminal record and many times the matter cannot be expunged from your record.

It’s important that you remember you are innocent until proven guilty.  The prosecutor must prove that you indeed had intent to steal.  Just because someone places an item under their arm or placed it in their bag does not prove that there was an intention to steal the item.  An attorney experienced in theft cases can analyze the case that the prosecutor brings before the judge and can present your case to poke holes in the prosecutor’s arguments and prove to the court that there was no intent to shoplift or steal.

In addition, any time a law enforcement agent begins an investigation to charge someone with a crime there are restrictions as to how far they can take the matter.  Sometimes police officers or loss prevention officers overstep their bounds by either spying into an area where they are not allowed to or use excessive force.  An attorney will be able to take all the facts in your case and make sure that any procedural flaw is exposed.

Why Should I Consult With An Attorney About My Shoplifting Case?

There are numerous defenses that can be presented and an attorney can provide you a specific strategy tailored to your case.  Each case is unique and presents new facts which an attorney can use to help bring down the charges or beat them altogether.  Time is of the essence in shoplifting cases as there are many issues that an attorney needs to review before your court date including, security footage, store incident reports, police reports and other witness accounts.  Don’t delay in speaking with a Texas criminal defense attorney if you were charged with shoplifting.

Author Bio

Adam H Rosenblum is a criminal lawyer admitted to practice in NY and NJ. His websites is  rosenblumlawfirm.com.