Tag Archives: legal rights
The simple answer is no!
There are different factors in every case, so whether you have to talk to the police if you are detained for any reason, depends on the facts of the situation, the circumstances, the location, etc. We have a outlined a few guidelines that are smart to follow if you are ever pulled over or detained by the police for questioning.
There are many important points to remember during any interactions with law enforcement, whether you have committed a crime or not. Most importantly you should always remain polite and courteous.
What You Should Never Do When Dealing with Law Enforcement:
- Do not interfere with or obstruct the police during any investigation as this could lead to criminal charges being filed against you.
- Never lie or give false documents to the police as this is also a crime.
- Do not run from the police.
- Do not argue or resist arrest, even if you are innocent or you believe the police are violating your rights.
Your Legal Responsibilities to the Police When Being Questioned:
- Sometimes an officer may stop and question you on the street for no apparent reason; this is perfectly legal.
- You are not required to answer their questions so long as it remains a voluntary exchange.
- You are permitted to end the interview and walk away at any time as the conversation is consensual.
- If you are unsure about the encounter, you are permitted to ask the officer if you are free to leave. If you are free to leave, calmly and politely walk away.
- If an officer however pulls you over while driving or makes it clear that you are not permitted to leave, you should not leave but remain where you are and act politely and courteously. If you do leave, you could be charged with evading arrest.
What are My Legal Rights?
If you are stopped and the police ask to search your car/vehicle, you are permitted to say no and you should. However, the police may ultimately search the car either by obtaining a warrant or if they believe your car contains evidence of a crime.
You have the right to remain silent. Use it. Police may tell you that they want to hear your side of the story or that by not talking to them you are making yourself look guilty. You should not listen to this. You should invoke your right to remain silent and ask for an attorney. Remaining silent will not make you look guilty, nor does asking to have an attorney present.
Having an attorney with you at an interview with the police will help your case, as the attorney will be able to instruct you as to what questions you should answer and as how to answer the questions while still telling the truth. When you express your desire to remain silent and to have an attorney present, it is important to remain civil and polite to the police. Whether you are guilty or innocent, in most cases you should remain silent.
If you are arrested and taken to jail, make sure not to discuss your case over the phone as your phone call may be recorded; only your phone conversations and meetings in jail with your attorney are not allowed to be listened to by the police. However, if you have been detained or arrested and an officer asks you for your name, address, or birth date, you should provide him with this information as your refusal to do so would be a crime for Failure to I.D.
What About My Miranda Rights?
A lot of times people are concerned about being read their Miranda rights/warnings. Miranda warnings are required to be read when a person is in custody and is subject to interrogation. This means that Miranda warnings are only required to be read to a person when they have been arrested and officers are either expressly questioning them or saying things to the person to elicit an incriminating response from the person. However, just because you may not have been read your Miranda rights does not mean your case will automatically be thrown out. Miranda warnings deal with the admissibility of confessions. If you confessed to a crime while in custody and you weren’t read your Miranda rights, then the confession may be considered inadmissible in court. In order to invoke your Miranda right to an attorney you have to be clear and unambiguous that you do not wish to talk to the officers any further until you have spoken with an attorney. Once a person invokes their right to an attorney, the police must listen to their request and cease interrogation immediately. However, an officer may ask you standard booking questions such as your name and address without it being considered a violation of your Miranda rights. Unfortunately, anything a person who is not in custody or under arrest voluntarily says to the police may still be used during court proceedings despite the fact Miranda warnings were not issued.
What If I’m a Juvenile and I get Stopped by the Police?
Questions also arise in the case of juveniles and whether a parent or guardian’s presence is required. A common misconception is that a parent/guardian has to be present whenever officers wish to speak to juveniles. However, police may speak to a juvenile at school without the presence of a parent/guardian. A parent or guardian’s presence is only necessary if the child is being talked to at a juvenile center.
If you or someone you know has been contacted by the police about a potential charge or if you have any questions about what you should say to the police, contact our office immediately so that we may help you fight your case or even prevent you from being charged.
My son was charged with Minor in Consumption-Minor in Possession, what does this mean? What is going to happen to him?
MINOR IN CONSUMPTION
A minor (in alcohol related offenses, a person under the age of 21, the legal drinking age) can be charged with a Minor in Consumption charge for simply consuming an alcoholic beverage. An officer does not have to actually see him drink the alcoholic beverage but may make the determination to charge him with the offense if he smells alcohol on him or if he agrees to take a breath test and blows a number indicative of alcohol consumption. Mere possession of alcohol is not sufficient to warrant him being charged with Minor in Consumption. An affirmative defense does exist if he consumed the alcohol in the visible presence of his adult parent, guardian or spouse.
MINOR IN POSSESSION
Just as it is illegal for a minor to purchase alcohol, it is also a crime for a minor to be found in possession of alcohol. Possession of alcohol for this charge can be considered in various ways. If he is found holding a beer can/bottle, whether it is empty or full he can be charged with Minor in Possession. He could also be found in possession at a party where this is alcohol present even if he is not physically holding any alcohol. He may be at risk of being charged with Minor in Possession whenever he is at a party, nightclub, or in a vehicle where is alcohol is present. However, if he was is in the visible presence of his adult parent, guardian or spouse he may not be charged with Minor in Possession. Additionally, he may not be charged with Minor in Possession if he was in possession of the alcohol in the course and scope of his legal employment.
Minor in Consumption and Minor in Possession are both Class C misdemeanors, the same level as a speeding ticket. These charges along with the other alcohol related offenses of the Purchase of Alcohol by a Minor or the Attempted Purchase of Alcohol by a Minor can result in various ranges of punishment depending on if this was the first time he was charged with an alcohol related offense. Frequently, a court will allow a minor to be placed on deferred disposition which allows the case to be dismissed once certain requirements have been fulfilled.
If this was the first time the minor was charged with an alcohol related offense and placed on deferred disposition, the judge may order the minor’s driver’s license to be suspended for 30 days or if he does not yet have his license issue an order to deny the issuance of one for 30 days; up to a $500 fine; 8 to 12 hours of community service; and mandatory attendance of alcohol-awareness classes.
If this isn’t his first time being convicted of an alcohol related offense then the judge may order he be fined between $250 and $2,000; 20 to 40 hours of community service, and can be sentenced to up to 180 days in jail. The judge may also suspend the license for 60 days if this is not the first alcohol related offense but 180 days if the minor has been previously convicted twice or more of an alcohol related offense. The judge may further impose the attendance of an alcohol awareness class. Unfortunately, if a minor has been convicted twice or more for an alcohol offense, he is not eligible for deferred disposition and thus not eligible for a dismissal of his case through this method.
If the minor is under the age of 18, the court may also require the parents of the minor attend the class as well. If he doesn’t complete the conditions set out by the judge within the allotted time, then his license may be suspended up to six months or denied issuance of a license or permit for six months if he has not yet been issued one.
Some people may not consider these types of cases as serious charges since they are only Class C misdemeanors but we think otherwise. We understand that an alcohol related offense on your child’s record could impact their chances of getting into college or even being hired for certain jobs. As criminal defense attorneys who have handled a wide range of cases, and several MIP and MIC charges, we will fight our hardest to achieve the best results possible for your child’s case.
With the tough economic times, large quantities of people are being forced to seek new employment. Frequently, this entails new employers running background checks to inquire about the potential employee’s criminal history. Federal law permits employers to conduct this search. Fortunately, some people are eligible to have their criminal records sealed or expunged depending on the outcome of the case. If your record is sealed that means that potential employers outside of the government realm will not be able to see that you had a criminal charge against you. In Texas, an expunction completely erases the criminal charge and you can legally under oath say that you were never arrested for an offense. To find out if you are eligible for an expunction or an order of non-disclosure visit our website or join us Facebook and submit a free case consultation form.
What Constitutes Theft in Texas?
The Texas Penal Code defines theft as taking someone else’s property without consent, either by deception or by physically stealing it. You don’t have to keep the property for it to be considered theft, but only long enough to deprive the owner of its value. And, if you take something, then return it for a reward, that is also theft under Texas law.
To charge you with theft, the police need to show that you acted with criminal intent, meaning you knew the property belonged to someone else and knew you didn’t have their permission to take it, and that you
actually have or had possession of the property. They can do by that using physical evidence, such as security camera video in a shoplifting case, or by statements from a witness, an accomplice, or you.
Types of Theft Under Texas Law
The four most common ways to commit misdemeanor theft or felony theft in Texas are:
- Shoplifting – Taking items out of a store with the deliberate intention of not paying the store for the full value of the item. This includes taking, say, a shirt and leaving with it, or switching the tag on an
expensive shirt with the tag on a less expensive one and paying the lower price at checkout.
- Bad checks – Paying for an item on a closed account or an account that does not enough money to cover the amount of the check. If the check is written on a closed account, that alone is evidence of theft under Texas criminal law. If the check bounces, and you do not reimburse the merchant
within 10 days of notification, then that is evidence of theft under the law.
- General theft – Taking an item that belongs to someone else by any means when you do not have permission. Examples of this include taking a woman’s purse from her shopping cart when her back is turned, stealing copper from a construction site, or taking $20 from the cash register at work.
- Buying/accepting stolen property – Taking possession of an item when you know the person selling or giving it to you is not the rightful owner. If you know a friend shoplifted an item from a store, then passed the item on to you, you have committed theft by taking it, whether you paid for it or it was a gift.
Penalties for theft in Texas
Amount Classification Penalties
Less than $50, or less than $20 if by check
- Class C misdemeanor
- A fine of not more than $500
$50 or more but less than $500, or $20 or more but less than $500 if by check
- Class B misdemeanor
- Not more than 180 days in a county jail and/or
- a fine of not more than $2,000
$500 or more but less than $1,500
- Class A misdemeanor
- Not more than 1 year in a county jail and/or
- a fine of not more than $4,000
$1,500 or more but less than $20,000
- State jail felony
- 180 days to 2 years in a state jail and/or
- a fine of not more than $10,000
$20,000 or more but less than $100,000
- Third-degree felony
- 2 to 10 years in a state prison and/or
- a fine of not more than $10,000
$100,000 or more but less than $200,000
- Second-degree felony
- 2 to 20 years in a state prison and/or
- a fine of not more than $10,000
$200,000 or more
- First-degree felony
- 5 to 99 years in a state prison and/or
- a fine of not more than $10,000
Those punishments can also be enhanced under certain conditions. For example, Class B and C misdemeanor theft charges increase one level if you have a previous theft conviction, and a Class A misdemeanor
becomes a state jail felony if you have two previous theft convictions.
Also, the theft of some items such as firearms or metals such as copper or aluminum are felonies no matter the actual value.
Shoplifting charges also automatically become more serious if you are caught using tools to defeat theft prevention devices, or if you are charged with organized retail theft, meaning you were working with others
to steal items for profit.
However, in all likelihood, if you are charged with simple theft by shoplifting and are convicted or enter a plea, you probably will receive only community service and fines, as long as the value is low and it’s a first or second offense. However, you are still stuck with a permanent criminal record which may never go away.
The fact of a permanent, public criminal record is the reason why most people hire a shoplifting defense attorney to fight the charges. Avoiding a criminal record in the internet age can save you tremendous
headaches in the future. It could prevent you from getting a job, a scholarship, or worse.
Civil Penalties for Shoplifting
The criminal shoplifting record for a conviction might not be the end of it, either. A conviction for the criminal charge of theft frequently includes restitution to the victim, but Texas also has the Texas Theft Liability Act. This civil law allows the victims of theft to sue for damages and is separate from the criminal case.
The suits are typically used in shoplifting cases. The store will send you a letter demanding that you pay the value of the stolen item, as well as costs related to recovery. The law allows the victim to collect actual damages, plus up to $1,000 against an individual or actual damages, plus up to $5,000 against the parents or guardians if the accused shoplifter is a minor.
You should not try to face either the criminal charge of theft or a civil suit in a shoplifting case without consulting a Texas criminal defense lawyer who knows how to defend shoplifting/theft offenses. We can fight the case against you by challenging the reliability of eyewitness or accomplice testimony, and by questioning the legality of any searches by police or admissions you may have made to them.
Seriousness of Theft Charges
In Texas, theft charges can run the gamut from a class C misdemeanor to a serious felony, based on the value of what was allegedly taken, whether force was used and whether the property was entered. It is possible to face the legal equivalent of a traffic ticket or a charge that can lead to a life prison term.
The Texas theft statute is very broad. The theft statute covers many types of criminal conduct involving the misuse of another’s property. All of these crimes however, have one thing in common – that is, the taking of the property without the owner’s consent. Examples of crimes that are covered by the Texas theft statute include shoplifting, writing bad checks or hot checks, receiving stolen property, possessing stolen property and auto theft.
Even a minor theft conviction can have a devastating impact on your future. Do not make the mistake of believing that a misdemeanor theft charge is not a serious situation. Theft cases are crimes of moral turpitude. That is, they are crimes that reflect on one’s character. Shoplifting and the other theft charges, because they are crimes of moral turpitude, can have lifelong and far reaching consequenses. Any misdemeanor or felony conviction for a theft charge will result in a permanent criminal record, even if you receive probation. Since employers routinely conduct background checks, a theft conviction will make it much harder for you to find a good job.
Theft cases can become more serious crimes with the danger of harsher sentences depending on the facts and circumstances under which the alleged theft occurred. If you are accused of entering someone’s property with the intention of committing theft, you can be charged with burglary, a felony punishable by up to 20 years in prison. Theft can also become a felony if it is alleged that force was used to take an item or money. Theft committed with a weapon is aggravated robbery, a felony that can result in a lifetime prison sentence.
At the Law Offices of Mark Morales and Associates we represent people facing all types of theft and theft related charges in Texas, including:
- Theft by writing bad checks or “hot” checks
- Theft by fraud
- Credit card theft
- Car Theft
- Credit card abuse
- Aggravated robbery
If you have any questions about what theft in Texas or have been charged with any kind of theft offense, 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
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.
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
We could probably write a novel discussing the different types of assault charges and what they all mean and how each charge may come about. As a result, we thought it might be helpful just to provide a general overview of assault charges.
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 in
Williamson County that could result in a dismissal of your case.
Assault Family Violence
We handle a large number of Assault Family Violence cases, both misdemeanours 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.
We are experienced as criminal defense attorneys in handling all types of assault cases and are able
to help whether you are being charged with assault by contact or assault with a deadly weapon. We have successfully handled various forms of assault cases and are here to help.
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