Allen Texas Criminal Law Blog

By Allen, Texas Criminal Defense Lawyer Kyle T. Therrian
Office Number: (972) 562-7549
24 Hr Jail Release: (214) 403-6522
www.rosenthalwadas.com

When it is popular enough to make a hit movie premised upon the idea of high school senior becoming McLovin' a 23 year old organ donor from Hawaii, it happens frequently enough for it to be outlawed in the State of Texas. Whether you presented a fake I.D. or told the cashier at the local grocery store a wrong birthday, Section 106.07 of the Alcoholic Beverage Code encompasses both "falsely stating" that you are 21 years of age or older and "presenting any document that indicates" that you are 21 years of age or older.

A minor charged with presenting a fake I.D. should be cautious. As with many types of illegal conduct, there are a variety of statutes which can criminalize the same act. A minor who has presented a fake I.D. could be overcharged or mischarged under Section 521.451 of the Texas Transportation Code which makes the use of a falsified driver's licenses a Class A Misdemeanor. If this has happened to you, criminal representation is even more important.

Potential punishment ranges for Misrepresentation of Age by a Minor can be found HERE

*Kyle Therrian is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice on any case you should contact an attorney directly.

By Allen, Texas Criminal Defense Lawyer Kyle T. Therrian
Office Number: (972) 562-7549
24 Hr Jail Release: (214) 403-6522
www.rosenthalwadas.com

With a broad stroke, Section 106 of the Texas Alcoholic Beverage Code provides for a range of punishments applicable to most alcohol-related offenses by minors, including:

• Consumption of Alcohol by a Minor


• Possession of Alcohol by a Minor


• Misrepresentation of Age by a Minor

These alcohol-related offenses by minors are characterized as Class C Misdemeanors. This means that a minor charged with any of these listed offenses is issued a citation. Appearing on your court date and pleading guilty to the citation can trigger any or all of these four results:

1. A fine between $0 and $500


2. Community service - up to 12 hours


3. A driver's license suspension


4. A permanent blemish on the individual's criminal record.

As with most criminal offenses, the law has provided more than one way to resolve an alcohol related offense by a minor. Naturally, a trial is always an option with a criminal offense, however a criminal attorney can also help resolve a case without a trial. Should the prosecutor and/or judge be convinced that it would be in the best interest of all, the case may be resolved without a criminal conviction appearing on a record and without suffering a driver's license suspension.

Section 106 also addresses repeat offenders by providing for more serious punishment when a criminal record indicates previous convictions or even deferred adjudications for the same offense.

• Minors with 2+ prior convictions face a $250 - $2,000 fine and/or up to 180 days in jail


• Period of Driver's license suspension increases based on number of previous convictions


• Community service hours increase based on number of previous convictions

*Kyle Therrian is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice on any case you should contact an attorney directly.

By Allen, Texas Criminal Defense Lawyer Kyle T. Therrian
Office Number: (972) 562-7549
24 Hr Jail Release: (214) 403-6522
www.rosenthalwadas.com

Contrary to popular believe, a person is not just "guilty by association." The State of Texas is required to prove each element of a Minor in Possession charge like they are for any other crime. This is important because there are usually a number of issues that can arise in a Minor in Possession case that will be difficult for the prosecutor to handle.

Section 106.05 of the Alcoholic Beverage Code describes the offense of "Possession of Alcohol by a Minor." On its face it seems pretty straight forward: "a minor commits an offense if he possesses an alcoholic beverage." Normally, the most important question is whether or not the minor actually possessed the alcoholic beverage.

The definition of possession is found in Penal Code Section 1.07(39) which explains that possession is "actual care, custody, control, or management." By this definition, the State need not prove that an alcoholic beverage was physically in a minor's possession, but must prove more than an alcoholic beverage in mere proximity to a minor. An alcoholic beverage may also be possessed by more than one person at the same time.

Speaking with a criminal attorney can help you determine the merits of your case and whether it is one that is ripe for trial or one that can be resolved by a guilty plea that avoids a permanent criminal conviction.

A discussion on the ranges of punishment and potential consequences of a Minor in Possession charge can be found HERE

*Kyle Therrian is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice on any case you should contact an attorney directly.

By Allen, Texas Criminal Defense Lawyer Kyle T. Therrian
Office Number: (972) 562-7549
24 Hr Jail Release: (214) 403-6522
www.rosenthalwadas.com

According to the 2010 Census, 36 percent of individuals living in Allen, Texas were under the age of 21. There is a growing class of folks who are what the law considers to be "minors," not just in Allen, but across Collin County. These young adults have the attention of local police departments looking to find the few who are having a little too much fun.

The Texas Alcoholic Beverage Code lays out several offenses which can be generally described as "alcohol related offenses of minors." A discussion on each major offense, punishment, and record implications under Section 106 of that code can be read by clicking the following links.

Minor in Possession

Minor in Consumption

Misrepresentation of Age by Minor

Driving Under the Influence (DUI Minor)

Punishment and Consequences of Alcohol-Related Offenses of Minors

Expunction of Alcohol Related Offenses of Minors

*Kyle Therrian is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice on any case you should contact an attorney directly.

By Allen, Texas Criminal Defense Lawyer Kyle T. Therrian
Office Number: (972) 562-7549
24 Hr Jail Release: (214) 403-6522
www.rosenthalwadas.com

A middle aged woman, without previous convictions or criminal history is charged with taking from a department store something she could have easily paid for and certainly has no need for. This scenario happens more often than people would imagine. . . .

There are a number of clinical studies which indicate that depression is the single largest psychological factor in shoplifting, and especially amongst middle aged women. Even the National Association for Shoplifting Prevention (NASP), a non-profit, law-enforcement-oriented organization acknowledges that Shoplifting is a psychological issue for many. Quickly browsing the NASP website will even pull up a fairly exhaustive list of studies that relate to the psychological aspects of shoplifting.

Clinical studies on depression and shoplifting seem to break first-time offenders into two categories: (1) those who shoplift by rational choice, and (2) those who shoplift in response to depression or other psychological condition. Unlike the doctors and scientists, our laws do not do much to distinguish much between the professionals and those who steal without an apparent purpose.

Conceivably, a shoplifting defense could be built around a diagnosed case of depression. Anytime the State must prove intent (as they do in a case of Theft), it can be argued that a compulsive act linked to a psychological condition is far from intentional. Moreover, Texas Penal Code 8.01 provides for a defense of insanity where "the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong."

An argument that is conceivable does not automatically make it persuasive. An attorney's enthusiasm for novel arguments and confidence in his ability to present them must always be tempered by the reality in which they will be received. The reality is that theft cases in Collin County are not warmly received--even those with a good defense. And the statistics support this: in 2011, 57 theft trials were held in Collin County which resulted in 56 convictions.

Although the letter of the law pays little respect to the motivation behind the theft, the discretion given to prosecutors in disposing of cases alongside the judge's discretion in assessing punishment presents an arena in which much can be accomplished.

Even when the case is one that is not suited for trial, client advocacy still remains crucial. In theory, dispensing punishment should serve many objectives, but in any event should be suited to the crime and tailored to the circumstances. When those who hold discretion can be persuaded that the circumstances call for rehabilitation as opposed to sending a strong message, these cases can be resolved by offering a second chance and an opportunity to address a problem without suffering a permanent blemish on a criminal record.

*Kyle Therrian is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice on any case you should contact an attorney directly.

By Allen, Texas Criminal Defense Lawyer Kyle T. Therrian
Office Number: (972) 562-7549
24 Hr Jail Release: (214) 403-6522
www.rosenthalwadas.com

Call for Immediate Jail Release (214) 403-6522
Helping a recently arrested friend or relative is undoubtedly a stressful situation which can be frustrating, confusing and even emotional. I understand that most people landing on this webpage are not far-removed from a conversation with jail staff or police who perhaps made the situation even worse. These articles are intended to educate people before making a tough decision. However, if you have a friend or relative in jail and prefer to speak with an attorney immediately please call 24 hours a day: (214) 403-6522

The Default Process
Hardly anyone prepares for legal emergencies, especially criminal ones. If being in jail is the problem, naturally, getting out is the solution. But how do you get from A to B?

There is a short list of ways to be released from jail after a recent arrest. Posting a bond is certainly an option in any county in the United States. But here in the State of Texas, you may have recently learned that your friend/relative has no bond set, and it doesn't sound like anyone is in the hurry to get it that way.

The law says that a person is entitled to a reasonable bond during the pendency of a criminal charge. By default, a bond is set when the jail brings the incarcerated person before a judge or magistrate who determines the amount at which to set the bond. The opportunity to see a magistrate may take a couple of hours or it may take a couple of days.

Depending on the city, determining when a bond will be set can be nothing more than a guessing game. Some cities may employ a magistrate to visit their jail and set bonds, while others will physically transport inmates to the county jail for a formal bond-setting. Commonly, a late evening arrest followed by a late morning transport to the county jail will arrive too late for a magistrate to set a bond and result in yet another night in jail before bond is set.

Attorney Writ Bond
In Collin and Dallas Counties, the alternative to the magistrate process is to hire an attorney to file what is known as an attorney writ bond (short for writ of habeas corpus). Because writ bonds incorporate both the legal profession and the jail bond business, writ bonds come from two sources: (1) full service criminal law firms, and (2) bondsmen who employ attorneys. Understanding that jail-release is only a small part of a larger picture, using a full-service criminal law firm to file an attorney writ bond just makes sense.

In an era of educated consumerism, there is no shame in wanting to know exactly what kind of services you are purchasing, even when under the pressure of the friend or relative who wants out of jail. When hiring a full-service criminal law firm for immediate jail release, you should expect a service with a variety of benefits:

• First and foremost, an immediate jail release (normally within 2 hours).


• Hiring an attorney secures a professional service which comes with immediate advice and counsel.


• Although little may be known about the facts of the case, an attorney can explain legal procedures and alleviate panic by eliminating uncertainty.


• As criminal attorneys, we want to help. We understand that jail release is only part of the solution. Many clients take advantage of free follow-up consultation which focuses on the pending criminal charge.


• As criminal attorneys, we owe fiduciary and ethical duties to our clients and prospective clients. Unlike a bondsman, an attorney must put his client's best interests first.

What Types of Charges are Eligible for Attorney Writ Bonds?

An attorney may file a writ bond for the following types of cases:

1. Class A Misdemeanors
2. Class B Misdemeanors (DWI, Theft, Marijuana and Possession Offenses)

The following are not eligible for attorney writ bonds:

1. Class C Misdemeanors
2. Traffic Tickets
3. Felony Cases
4. Family Violence Cases

What Cities Allow Jail Release by Attorney Writ Bond?

Collin County:
All cities

Dallas County:
Addison, Balch Springs, Coppell, Desoto, Farmers Branch, Garland, Highland Park, Irving, Mesquite, Richardson, Sachse, University Park, Wylie

*Kyle Therrian is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice on any case you should contact an attorney directly.

By Allen, Texas Criminal Defense Lawyer Kyle T. Therrian
Office Number: (972) 562-7549
24 Hr Jail Release: (214) 403-6522
www.rosenthalwadas.com

Ask an average person on the street what they know about criminal law and they could probably tell you they have the right to remain silent and anything they say or do can and will be used against them in a court of law. Thanks to shows like Cops and Law & Order, our Miranda rights have become part of pop culture. Beside our Miranda rights, there simply aren't many situations where the police are required to explain to a suspect his or her legal rights. A Driving While Intoxicated investigation gives rise to one of these few situations.

In a Driving While Intoxicated investigation, the law requires a unique set of warnings to be read to the DWI suspect prior to requesting a specimen of breath or blood. The warnings required by law are listed in Transportation Code Section 724.015 and replicated in a Department of Public Safety form known as the DIC-24, a form which is literally read to DWI suspects across the state. A copy of that form can be viewed here: DIC-24.pdf

Rarely, will someone find themselves in a situation where these statutory warnings were just flat-out omitted. However, in a significant amount of cases, you can find officers doing one of two things: (1) leaving certain important warnings out, or (2) giving warnings, advice or consequences beyond what they are supposed to. When this happens, the consequences can be significant.

In 1993, the Texas Court of Criminal Appeals decided the case of Erdman v. State, which in many ways is similar to the Miranda case decided by the United States Supreme Court. In Erdman our Court explained that it is a "no-no" for the officer to do either of the two things described above (whether he meant to or not). As the Court explained, for the officer to not give a DWI suspect the "actual, direct, statutory consequences" under 724.015 is a violation of the law itself and probably even psychologically coercive (even when the extra information is true).

What happens when the law was violated by the very person investigating a violation of the law? My mom always said "two wrongs don't make a right." Perhaps our legislators and judges had mothers growing up, too, because that is exactly how our law treats a situation like this. Depending on what warnings were omitted or what extra information was injected by the officer, the breath or blood test will be thrown out completely.

*Kyle Therrian is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice on any case you should contact an attorney directly.

By Allen, Texas Criminal Defense Lawyer Kyle T. Therrian
Office Number: (972) 562-7549
24 Hr Jail Release: (214) 403-6522
www.rosenthalwadas.com

Anyone who has Facebook probably has one or two friends who have anointed themselves lead counsel for prosecution or defense of George Zimmerman. The proliferation of second, third and fourth-hand knowledge with accompanying conclusions has been rampant. Hot-button criminal issues like the Trayvon Martin case emphasize a particularly important concern for a criminal defense attorney, which is the level of comfort people have in debating a criminal problem without a whole lot of reference to what the law says.

I am far from an authority on Florida criminal laws or how they should apply in the Trayvon Martin situation and nowhere in this article will you find my Trayvon Martin opinion. However, as a criminal defense attorney, I can't help but wonder whether our criminal statutes would afford any more or less protection to hypothetical person in a similar situation in Texas. After reviewing the relevant laws in Texas, they appear to be fairly similar to the Florida "stand your ground" law.

Chapter 9 of the Texas Penal Code provides a laundry list "justification" defenses including justifiable use of force and deadly force. A justification is simply an argument presented to the jury that, despite the conduct in question amounting to a criminal offense, the conduct was permissible based on the circumstances. In Texas, the circumstances which allow a person to use deadly force are the following.

Self-Defense
In Texas, an actor may use deadly force in self-defense when the actor reasonably believes it is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly force, or to prevent the other's imminent commission of any of the following offenses: (1) aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

In Texas, a person loses the right to use self-defense and deadly self-defense in any of the following situations: (1) in response to a verbal provocation alone, (2) to resist arrest, (3) if the actor consented to the exact force used or attempted by the other, (4) if the actor provoked the other's use or attempted use of unlawful force (unless the actor abandons the encounter or clearly communicates his intent to abandon the encounter and the other continues to use unlawful force), or (5) if, while carrying a weapon, the actor seeks an explanation or discussion regarding the actor's differences with the other person.

Texas does not have a duty to retreat, even when an actor is using deadly force in self-defense. So long as: (1) the actor claiming self-defense has a right to be present at the location where the deadly force is used, (2) has not provoked the person against whom the deadly force is used, and (3) the actor claiming self-defense is not, himself, engaged in criminal activity at the time of deadly force.

Defense of Property
In Texas, an actor may also use deadly force to protect land or tangible, movable property. To claim the privilege of use of deadly force in protecting property, the actor must be in lawful possession of the property and the following conditions must be met:

• Deadly force is immediately necessary to either: (1) prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime or criminal mischief during the nighttime, or (2) prevent the other person from fleeing with property immediately after committing a burglary, robbery, aggravated robber, or theft during the nighttime.


• The actor reasonably believes that either: (1) land or property cannot be protected or recovered by any other means, or (2) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.

*Kyle Therrian is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice on any case you should contact an attorney directly.

By Allen, Texas Criminal Defense Lawyer Kyle T. Therrian
Office Number: (972) 562-7549
24 Hr Jail Release: (214) 403-6522
www.rosenthalwadas.com

In Texas, most criminal attorneys will tell you that any hope of clearing a charge from your criminal record will depend upon the fashion your case was resolved. The rule of thumb is nondisclosures require deferred adjudication and expunctions require either an acquittal or a dismissal. This information gives little consolation to the individual who was not advised about or did not fully comprehend the consequences of his guilty plea when it was made. In Texas, the reality is harsh--a criminal conviction is for life.

This is what I advise my clients, because in practice, this is what should be expected. However, this is also an area where the practice and the law aren't exactly in harmony. Under Article 42.12 Section 20 of Tex. Code. Crim. Proc. the law provides for "judicial clemency" for people placed on "straight probation" (probation which comes with a conviction). This section explains that at any time after completion of one-third of a probation period the judge may do any of the following:

• Reduce the probation
• Terminate the probation
• Set aside the verdict
• Allow the defendant to withdraw his plea
• Dismiss the complaint, information or indictment
• Released from all penalties and disabilities resulting from the conviction (such as the right to vote, the right to serve on a jury, and in some cases gun ownership).

By using the phrase "the judge may," the legislature has given the judge complete discretion on the issue of judicial clemency. What this means is that any person seeking judicial clemency will have to overcome two distinctly probable inclinations of the judge: (1) the desire to preserve the finality and status quo of the conviction, and (2) the skepticism that comes with requesting relief through an uncommon and not well known legal device. Predicting whether or not a judge will grant clemency is similar to predicting a winning race horse--but for some, the juice may be worth the squeeze.

Those considering a motion for judicial clemency should beware of several caveats. First, a person convicted of DWI or a sex offense is ineligible for judicial clemency (one of a number of ways DWI offenders are treated like sex offenders). Second, judicial clemency is not the same as an expunction--it will not erase the existence of an arrest and subsequent court case. Third, agencies that track criminal records will likely continue to report a conviction until someone affirmatively requests them to modify their data.

*Kyle Therrian is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice on any case you should contact an attorney directly.

By Allen, Texas Criminal Defense Lawyer Kyle T. Therrian
Office Number: (972) 562-7549
24 Hr Jail Release: (214) 403-6522
www.rosenthalwadas.com

If you have been arrested for a felony offense in Collin County, Texas, the State may keep you incarcerated for as long as 90 days while they seek an indictment from a grand jury. Because individuals with a good defense are not always the same individuals who have the ability to post thousands of dollars in bond, the law provides a tool known as the examining trial.

Section 16.01 of the Code of Criminal Procedure provides that a person accused of a felony may be brought before a magistrate for an examining trial so that officer can examine the truth of the accusation made and determine the amount or sufficiency of bail. By definition, an examining trial could result in one of three outcomes: (1) defendant is discharged from jail pending the decision of the grand jury, (2) bond is reduced, or (3) bond is increased.

In practice, an examining trial can have a number of different outcomes. These outcomes will depend on the type of case and the prosecutor handling it. Consider the following:

• In order to avoid an examining trial, the prosecutor may agree to a reduced bond or even a personal recognizance bond (P.R. bond).


• If the prosecutor does not offer to reduce bond, the examining trial can be used as an early discovery tool through which the State should turn over the police report and witness statements.


• The examining trial presents an opportunity to cross-examine the investigating officer(s) and complaining witness(es) and determine strengths and weaknesses in the State's case at a very early stage.


• On the other hand, a request for an examining trial may encourage the prosecutor to expedite the indictment process; once an indictment is obtained, the right to an examining trial no longer exists.

Because the examining trial is a lesser-used procedure in Texas criminal practice, a request can sometimes be interpreted as provocative. The decision to request an examining trial should involve a serious cost-benefit analysis which should, in any case, involve a criminal defense attorney.

*Kyle Therrian is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice on any case you should contact an attorney directly.

By Allen, Texas Criminal Defense Lawyer Kyle T. Therrian
Office Number: (972) 562-7549
24 Hr Jail Release: (214) 403-6522
www.rosenthalwadas.com

In Collin County, and particularly in Allen, where the number of individuals under the age of 25 represent one of the largest segments of the population, it is not uncommon to hear of minors being charge with alcohol related offenses. Our laws reflect a zero-tolerance attitude when it comes to alcohol and minors, and this includes Minor in Consumption of Alcohol (MIC)

An MIC is one of several Class C Misdemeanors in Texas which involve alcohol and adults/children under the age of 21. Unlike the offense of Minor in Possession of Alcohol, the State must prove beyond a reasonable doubt that the minor actually consumed alcohol. Logically, the State must prove more than possession (care, custody, control or management). Depending on the circumstances, this can be somewhat of a challenge. Evidence of consumption can come in the form of direct observation by the officer, circumstantial evidence of alcohol on the breath, and sometimes even a mere assumption based on the surrounding circumstances.

Section 106.04 of the Alcoholic Beverage Code, the same section which criminalizes MIC, also provides an affirmative defense that the consumption took place in the presence of the minor's adult parent, guardian or spouse. This fact must be asserted and proven by the Defendant, when applicable.

Regardless of whether the proof of consumption is direct observation or a bold assumption, there are usually a variety of ways to protect your criminal record when charged with an MIC. Discussing your case with a criminal attorney is the first step in assuring that you make appropriate decisions which will minimize the long-term consequences of an MIC.

*Kyle Therrian is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice on any case you should contact an attorney directly.

By Allen, Texas Criminal Defense Lawyer Kyle T. Therrian
Office Number: (972) 562-7549
24 Hr Jail Release: (214) 403-6522
www.rosenthalwadas.com

Our State legislature has been particularly creative when it comes to punishing people convicted of, or in some cases merely suspected of, Driving While Intoxicated. One such legislative creation is the ignition interlock device (also known as a deep lung device). If you are wondering how to get this device off, you probably don't need much explanation of how it got there in the first place, regardless, you can click HERE to see when an ignition interlock device is required by law.

Early removal of the device may be an issue of the judge's discretion and it will depend on what circumstance led to the condition that the device be installed on your vehicle. For example, Tex. Code. Crim. P. 17.441 requires the judge to order an ignition interlock device as a condition of bond on second or subsequent DWIs and does not give discretion to the judge to remove it at a later date. However, Tex. Code. Crim. P. 42.12 Section 13(i), which also requires the judge to order installation of the device in certain cases as a condition of bond, also gives the judge discretion to have the device removed after 50% of the probation period has been served. There are also many other scenarios where the judge is not required to order the ignition interlock by law but may do so--such an order is also subject to a request for early removal.

So, if the judge has discretion to remove the device, it is important to present a case that persuades him or her to exercise his discretion in your favor, i.e. to remove the device. This means that the road to early removal requires a hearing before the judge. If a judge is willing to consider early removal, the focus will almost always be on the records that are generated by the device. A history of good test results should be the basis of any request, but the records don't always speak for themselves (as they should). A cynical probation officer or monitoring personnel can, and have, attempted to spin perfect test results as deceptive behavior by the probationer or even the most minor failures as proof of alcohol consumption.

Even with good test records, early removal can't be guaranteed. This is why consulting an attorney before making the request is important. An attorney can evaluate the likelihood of removal and then help present a case for early removal of the ignition interlock device.

*Kyle Therrian is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice on any case you should contact an attorney directly.

By Allen, Texas Criminal Defense Lawyer Kyle T. Therrian
Office Number: (972) 562-7549
24 Hr Jail Release: (214) 403-6522
www.rosenthalwadas.com

Sometimes probation takes a turn for the ugly. When it comes to determining how many or what kind of violations will trigger a revocation, it's sometimes impossible to predict which straw will break the camel's back. However, once that straw comes and a motion to revoke is filed, an arrest warrant will promptly follow. Obviously, one of the more immediate concerns of a person in this kind of situation is whether a bond will be set. The type of probation will dictate how a bond is set.

Deferred Adjudication (Motion to Adjudicate) - Bond Must Be Set

Simply put, a person placed on deferred adjudication probation has an absolute right to a bond in the event of a revocation. Technically, a person on deferred adjudication community supervision ("deferred adjudication") who is alleged to have violated a term or condition of probation faces a "Motion to Adjudicate." When a person is granted deferred adjudication, a judge does not make a determination of guilt and does not "adjudicate" the matter. This technicality is not only the reason we call it a "motion to adjudicate," but also why the judge is required to set a bond in the event the State files such a motion. Our Constitution secures a "pre-trial" right to reasonable bail and our courts have interpreted pre-trial to be synonymous with pre-adjudication in this context.

In practice, when the judge signs the warrant he or she also determines a bond amount. Unfortunately, this doesn't always happen which causes a arrested on a motion to adjudicate to be held without bond. This situation can be corrected by hiring an attorney to petition the judge to have a bond set.

Straight or Regular Probation (Motion to Revoke) - Bond May Be Set

Unlike a person facing a motion to adjudicate, a person facing a motion to revoke has no right to a bond. In fact, most judges will not independently set a bond when a motion to revoke is filed. The distinction, again, is a technical one. By definition, a person on straight probation has been found guilty by a judge, convicted and sentenced to a specific jail sentence which was probated (suspended). In other words, the case is no longer in the "pre-trial" phase and the constitutional right to pre-trial bail no longer exists.

This doesn't mean that a bond cannot be set. A bond may be set if an attorney can persuade the judge or reach an agreement with the prosecutor, but this can only happen after the individual has been arrested on the revocation motion and is in the custody of the county jail. The likelihood of this happening will usually depend upon the circumstances of the revocation, but many of our laws encourage the setting of a bond even for people facing a motion to adjudicate.

*Kyle Therrian is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice on any case you should contact an attorney directly.

By Allen, Texas Criminal Defense Lawyer Kyle T. Therrian
Office Number: (972) 562-7549
24 Hr Jail Release: (214) 403-6522
www.rosenthalwadas.com

A lot of people who sign up for lengthy probation periods are under the impression that, once they jump through all the necessary hoops, a judge will let them off the hook for the remainder of the probation. Sometimes this is true, but it's not always the case.

Article 42.12 Section 20 of the Texas Code of Criminal Procedure permits individuals to apply for "reduction or termination" of probation as soon as one-third of the probation period has expired. The decision to release a person from probation early is a decision that is in the sole discretion of the judge. This means that a probationer must persuade a judge for early dismissal. Like most people, judges have a pecking order of things they care most about--depending on the judge, a request for early termination can be met with resistance.

The most important step for anyone who wants to be considered for early dismissal is to complete any and all conditions of probation: pay all fines and court costs, pay restitution (if required), complete community service hours, complete any mandatory courses, attend all required counseling, and have a record of punctually attending probation meetings. Failing to fulfill a probation obligation prior to requesting early termination will usually result in a judge denying the request.

Timing is also important. While the statute permits the judge to consider early termination as soon as one-third of the probation period has expired, many judges like to see that a probationer serve at least one-half of his/her probation period. An application denied on the basis of asking too soon is invariably accompanied by a lecture on how probation isn't supposed to be easy.

For those who are serving probation as part of the Collin County Pre-Trial Diversion Program, early termination may also be an option. Despite the lack of a statute requiring such a procedure, the Collin County District Attorney's Office has generally followed the same procedures explained in Article 42.12: complete your conditions and they will agree to release you early.

Having the right kind of expectations is important when making decisions in a criminal case. The appropriate expectation when signing up for probation is that you will be serving every minute of it. Nobody can guarantee an early termination--not even the prosecutor. People considering probation should also be wary of certain offenses that are exempted from early termination, including: DWI offenses, offenses requiring registration as a sex offender, and certain other serious felony offenses. When seeking early termination of probation, consult with an attorney about how to present the best case possible.

*Kyle Therrian is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice on any case you should contact an attorney directly.

By Allen, Texas Criminal Defense Lawyer Kyle T. Therrian
Office Number: (972) 562-7549
24 Hr Jail Release: (214) 403-6522
www.rosenthalwadas.com

There has been much confusion about the 2011 amendment to the Texas expunction statute. The articles written by attorneys across the State range from authoritative summaries to downright incorrect. For a detailed explanation of what our Texas Legislature did last September, you can click here. This is the short version:

A person can file for a 180 day expunction if:

• The case was originally filed as a Class C (no information or indictment presented)
• They have been "released" (case was dismissed outright or through deferred adjudication)
• 180 days have expired from the date of the offense

How it will be expunged:

• The judge must order to prosecutor and police agency to retain their file
• All other entities must destroy their records, including those who share your record with the public
• If prosecutor certifies that files are no longer needed, even prosecutor and police files are destroyed
• If prosecutor retains files, even those can be destroyed after 2 years with a second expunction

*Kyle Therrian is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice on any case you should contact an attorney directly.