Areas of Practice - Criminal Law

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Frequently Asked Questions
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Frequently Asked Questions - Criminal Law
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What is the difference between a criminal lawsuit and a civil law suit?
Criminal and civil lawsuits are different in both objective and in the results. While a criminal case involves government prosecution of an individual for an act classified as a crime, in a civil suit, individuals or organization bring suit to resolve a dispute or seek damages. In criminal cases, the state acting through a prosecutor must show guilt beyond a reasonable doubt. And the plaintiff in civil cases is required only to show the defendant is liable by a preponderance of the evidence.

If you are convicted of a crime, you may get a jail sentence, may be ordered to pay a fine, or both. However, persons found liable in a civil case may only have to pay money or give up property, but are not sentenced to prison.

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What are the steps in a criminal procedure?
     • Booking
     • Arraignment
     • Bail
     • Preliminary Hearing
     • Trial
     • Sentencing
     • Fine, Probation, Jail
     • Appeal

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What is a booking?
A booking is an administrative task in the criminal procedure in which your name, the crime charged, your address, telephone number are recorded. Your photograph will be taken and you will be fingerprinted.

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What is an arraignment?
An arraignment is the part of criminal procedure in which you, the defendant, appears in court. You are advised of the charges against you, given the police report and accusation dealing with the facts and your involvement in the crime. A police officer, a prosecutor or a grand jury may present the accusation. The final step in an arraignment is entering a plea – guilty, not guilty or nolo contendere, meaning no contest. If you enter a not guilty plea, a trial date is set.

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What is bail?
At the arraignment, or soon afterwards, you may be detained, meaning placed in jail, until your trial. If you want to get out of jail before your hearing or trial, you are required to post bail. Bail is money paid to the court that is intended to ensure you will show up for your required court appearances. If you appear in court as ordered, the court refunds the bail. The court will keep the bail money, however, if you do not appear at the proper time, and issues a warrant for your arrest.

A local bail schedule lists the amount of bail, according to the seriousness of the criminal offense. If the prosecutor persuades the judge that you are not likely to show up in court, the judge can increase the bail. On the other hand, your defense attorney may convince the judge to reduce the amount of bail if he can shows that you have a family and a steady job and are not likely to flee.

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What is a preliminary hearing?
When you are changed with a crime, the preliminary hearing is the step in the criminal procedure in which a judge determines whether you should be held for trial. The prosecutor who has brought charges against you will have to present enough evidence to the judge to prove a crime occurred and that you committed the crime.

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What happens in a trial?
A trial involves opening statements by your defense attorney and the prosecutor. Witnesses are called and questions, and evidence is presents. Your attorney and the prosecutor make closing statements, and the judge then gives the jury instructions. After deliberation, the jury announces its verdict, which may be guilty, guilty of a less serious or related charge or not guilty. Once the verdict is rendered, your attorney may attempt a post trial motion, such as a motion for a new trial.

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What is a sentencing?
If you have entered a guilty plea to committing a crime or when a jury finds you guilty by trial, a hearing is set and the judge reads his sentence. A sentence may consist of a set time in jail, a fine or both.

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What is probation?
Probation is the suspension of the jail sentence. Sentencing for a crime may include an order to pay a fine and/or to serve a time in jail. If you are given probation, you are released, and rather serving time in jail, you are returned to the community and for a specified period you will have to abide by conditions set by the court and are under the supervision of a probation officer. If you violate your terms of probation, the probation, the probation is revoked and you can be sent directly to jail.

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What is an appeal?
When you are convicted of a crime, you may have the right to appeal your sentence, in what is referred to as an appellate proceeding, if you and your attorney believe improper procedure occurred during the trial, for example, or if new evidence surfaces later that may prove your innocence.

As soon as you are charged with a crime or learn you are under investigation, it is vital to retain an attorney at the outset to protect your legal rights throughout the criminal proceedings brought against you. Call our law firm at 210-658-9299, when you need a criminal defense attorney at your side.

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Information - Criminal Law
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Texas Drunk Driving Defense | DWI / DUI

Driving while under the influence (DUI) or driving while intoxicated (DWI) in a public place (such as a highway, street, or parking lot) is an offense that has serious risks and consequences. After consuming a certain amount of alcohol, a person’s ability to drive becomes impaired. According to U.S. laws in all 50 states, it is illegal to operate a motor vehicle if a person’s Blood Alcohol Concentration (BAC) reaches or exceeds .08 percent. In the state of Texas, a person may be considered intoxicated despite BAC, if they have consumed any amount of alcohol or drugs. This means that there are two ways in which intoxication is established:

      1. If a person does not have normal use of their physical and/or mental faculties due to the           introduction of alcohol, drugs or controlled substances in their system. This includes           prescription medicines that may impair driving.
      2. If a person’s breath alcohol level is or exceeds 0.08.

The state of Texas also has a zero tolerance policy for drivers under the age of 21. This means that it is illegal for anyone under the age of 21 to drive after consuming alcohol or drugs.

In the event that a person is stopped for drinking while driving, they are required to show their driver’s license and insurance. In addition to being asked where they are going or coming from, a person may also be asked if they have consumed alcohol and if so, in what quantities. An officer may then ask the driver in question to take a field sobriety test. There are three standard field sobriety tests: 1. the horizontal gaze nystagmus test (called HGN) where the officer is looking for an involuntary jerking of the eyeball. This results of this test are purported to reveal whether the person is under the influence. 2. the walk and turn test, where the person is asked to walk a straight line heel to toe for nine steps in two directions, and 3. the one leg stand test where the person is asked to stand on one leg for thirty seconds. Some officers will request the person submit to a preliminary breath test at the scene (PBT) to determine alcohol concentration. Officers make an arrest decision based on these tests as well as the driving facts and facts learned from interviewing the detained person. If the person is arrested, they will be asked to submit to a breath or blood test at the jail. A refusal to submit can be used against the person in court as well as have negative drivers license consequences. A person who does submit to a breath or blood test and is over the legal limit can also lose their license.

DUI vs. DWI

A DUI (Driving under the Influence) is a class C misdemeanor that only applies to persons under twenty one years of age. In Texas, this offense states that a person under the age of twenty one operating a motor vehicle with any detectable amount of alcohol is guilty of DUI. This offense is punishable by a fine up to 500 dollars as well as community service hours. A conviction also triggers a license suspension.
A DWI (Driving while intoxicated) first offense is a class B misdemeanor, in which a driver is considered intoxicated by law. This means that a person's alcohol concentration is found to be 0.08 or higher, while having operated a motor vehicle, as tested through their breath or blood. A person is also considered intoxicated if they have lost the normal use of their mental or physical abilities because of the introduction of drugs or alcohol into their body. A first offense DWI conviction carries a punishment range of up to a 2,000 dollar fine and up to six months in county jail. In most cases, a first conviction will not require actual jail time but probation for a period of up to two years. Probation, called community supervision in Texas, has many requirements such as DWI programs, community service hours and other conditions that the Court may require. A second DWI is a class A misdemeanor with a possibility of up to one year in the county jail and a 4,000 dollar fine. A third or more DWI is a third degree felony with a punishment range of two to ten years in prison and up to a 10,000 dollar fine. Second and subsequent DWI convictions also have a mandatory drivers license suspension requirements which vary from six months to two years.

As of September 2003, the state of Texas passed a new law to impose surcharges for persons arrested and convicted of driving while intoxicated. Under this law, those who refuse a blood test will pay a surcharge of $1000 per year for three years ($3000), those whose BAC is less than 0.16 will pay a surcharge of $1000 per year for three years ($3000) and those whose BAC is above 0.16 will pay a surcharge of $2000 per year for three years ($6000). In addition, repeat offenders will have to pay $1500 per year for three years ($4500).

Call our law firm at 210-658-9299, when you need a DUI/DWI criminal defense attorney at your side.

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Administrative License Revocation

The Texas Administrative License Revocation Program (ALR), was founded to oversee the fair and efficient processing of suspended driver’s licenses of those found to be intoxicated while driving. An Administrative Law Judge (ALJ) from the State Office of Administrative Hearings conducts an ALR hearing. After hearing both sides of the case, rulings on preliminary matters are made, along with the final decision. If the ALR provides sufficient evidence to prove its case, the Administrative Law Judge will issue an order to suspend the driver's license. If, however, there is not enough evidence to support a DWI, the driver’s license will not be suspended. Texas law requires that you request an ALR hearing within 15 days of the date you were served with a Notice of Suspension. Until the actual hearing, a person will be allowed to drive. However, after the hearing, if a person’s driving license is suspended, they may then petition for an Occupational Driver’s License.

If you think you have received a DWI unfairly or need to know more about how a DWI will affect you, contact Jodi Head Lopez & Associates. Our lawyers can help you get through this difficult time, while helping you preserve your rights.

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Texas Occupational Drivers License

In the event that a person’s driving license is suspended due to a DUI / DWI or as a consequence of refusing to take a breath test, a restricted driver’s license is available, based on eligibility. Such a license is called an Occupational driver’s license or ODL. An ODL is issued by the courts based on good cause, limiting driving privileges to domestic duties, medical appointments, school, places of worship and other important non-recreational needs. With an ODL, a person is limited to twelve hours of driving per day, with a limit of 60 hours of driving per week. For Drivers charged with a 1rst DWI, they must wait 30 days after suspension of their license, before petitioning for an ODL. In the case of a 2nd DWI, a person must wait 90 days before filing their petition in court. Drivers with two DWIs within a five year period must wait one year before petitioning for an ODL, while those with 3 or more DWIs are not eligible. In many cases, the court may issue a restricted interlock license, which is a breath alcohol analyzer connected to the ignition of a motor vehicle. In order to start the vehicle, the driver blows into the breath alcohol analyzer. If the analyzer detects alcohol exceeding a certain limit, the engine will fail to start.

Not following the guidelines of an ODI may result in jail time and suspension of all driving privileges without the chance to petition.

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Traffic Violations

Traffic violation laws have been introduced as a preventive measure, to keep the roads safe for the general public, while keeping dangerous driving under control and reforming bad drivers. Traffic violations can turn into serious charges if they result in harm to any property or persons. If injuries are sustained from any traffic violations, charges result in misdemeanors or felonies. Traffic misdemeanors are violations of a less serious nature, where as traffic felonies often involve endangerment of life and property. Examples of traffic violations are:

Traffic Misdemeanors

    • Driving with an expired license
    • DUI
    • Not stopping at an accident
    • Driving without insurance

Traffic Felonies

    • vehicular homicide
    • DWI
    • Fleeing an officer

Traffic violations that occur without accident or injury are referred to as ‘infractions.’ Infractions can be in the form of a summons to court or else an alternative such as traffic school, along with a fine. If asked to appear in court, a driver must appear at the appointed date or else a warrant may be issued for their arrest.

Most states in the U.S. have a point system for traffic violations and convictions. Depending on whether the violation is an infraction, misdemeanor or felony, points are given and stay on the driver’s record for a few years. In addition to the point system, the state of Texas has a system called ‘The Driver Responsibility Program,’ in which a surcharge is assessed on certain traffic violations.

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Texas Driving While License Suspended

In the state of Texas, driving with a suspended license (DWLS) or invalid license (DWLI) is against the law. Like a DWI, it is considered a class B misdemeanor. A fine of $100-$500 applies in addition to a possible jail time of 72 hours to 6 months. If a prior DWLS/DWLI conviction exists, then it becomes a class A misdemeanor, meaning the driver could face up to one year in jail in addition to fines up till $4000. Surcharges will also apply.

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Drug Crime Defense

Drug offenses constitute the illegal cultivation, possession, distribution, and trafficking of narcotics and chemicals along with the conspiracy to commit drug-related crimes. In 1970, the U.S. federal government passed The Controlled Substances Act (CSA), a group of laws meant to classify controlled substances as well as regulate their manufacturing, importing, use and distribution.

Drug charges vary in range from possession of small amounts of drugs to manufacturing and distributing drugs. Controlled substances are categorized under a federal law drug schedule. This helps the state determine how severe the drug crime is, in addition to considering the quantity of the drug and its purpose. There are five schedules, out of which schedule l and II drugs are considered most likely to be abused. Some drugs under these categories are: heroin, ecstasy, opium and morphine. The most serious drug crimes are those that usually involve producing, manufacturing or selling drugs in schedules I and II. All schedule I drugs are considered illegal, while schedule II drugs are available only through a prescription, under medical supervision. The state of Texas has made changes in their drug laws over the past years, enhancing the penalties for even the smallest of drug crimes.

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Expunction & Non-Disclosure

When a person is arrested for a criminal offense, it leaves a permanent record. This record will show up on background checks related to employment, home rentals, etc. In many cases, these records may be eligible for expunction or non-disclosure, in which the criminal record is thrown out or suppressed.
When the order of an expunction becomes final, the release of any records and files is prohibited, for any purpose, and the person whose records are in question, is not obligated to reveal that such a record existed.

 

This section is currently being updated. Please check back soon.

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Assault & Battery

Many people think that assault and battery mean the same thing, but there is a distinction. Assault refers to the threat or intent to inflict physical harm on a person whereas battery refers to the actual physical act of inflicting harm. However, over time, both have come to mean the same thing and most states, when referring to assault and battery, define it as some form of physical harm or offensive contact. Assault and battery is punishable based on the following factors:

    • how much bodily harm was inflicted
    • the use of a weapon to inflict injury or with the intent to inflict injury
    • the victim was vulnerable and had no means to defend themselves
    • the victim was an officer of the law
    • the offense committed or intended was a hate crime

When injuries sustained from an assault and battery are perceived to be less, it is considered a simple assault and battery case, whereas injuries of a serious and severe nature, including those sustained from a deadly weapon, are considered aggravated assault. Assaults can be in the form of road rage, fights in restaurants, bars or clubs, domestic violence, disorderly conduct, and more. Sometimes, even people defending themselves are charged with assault.

Because laws of assault and battery developed out of common law, a person charged with assault and battery may face both criminal and civil charges. In addition to being fined, convicted or jailed, a person may have to pay compensatory damages to the victim as well.

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Domestic & Family Violence

In the state of Texas, domestic violence is referred to as ‘family violence,’ but it is a broad term that encompasses many kinds of abuse and mistreatment. Family violence occurs in a more intimate setting between family members, making it all the more painful to confront and press charges. Violence against women and child abuse are the most common reoccurring forms of family violence. Abuse in family violence situations can take the following forms:

      1. Physical force- Hitting, slapping, kicking, biting, choking and assault with a weapon are            some examples of physical abuse
      2. Sexual abuse & exploitation- rape, sodomy and prostitution among other things, where            physical acts of a sexual nature are coerced.
      3. Emotional abuse-verbal criticism, emotional blackmail, harassment, stalking, etc.
      4. Neglect-Depriving children or dependants of food, clothing and proper shelter. Failing to            provide emotional/psychological support is also a form of domestic abuse.
      5. Economic abuse-financially taking advantage of others in the family by controlling finances            or forcefully taking charge of finances. Forcing someone to work or not allowing someone            in the family work also constitutes economic abuse.

Other types of abuse may exist within the family where a person’s religious and political beliefs are manipulated or dominated. In the state of Texas, dating violence also comes under family violence crimes, in which the same criteria for abuse and violence toward a family member apply. If such charges are brought, a judge will first establish a dating relationship, taking into consideration the length and nature of the relationship, among other things.
When someone is charged with a family violence crime, the victim often recants and decides to drop charges, because of the family connection. The law, however, is not so forgiving, and requires the person charged with the crime to still go to court. This is to ensure that the charges were not withdrawn out of fear and that such behavior might be prevented in the future. Penalties for Family violence crimes can be very steep, including imprisonment, fines and civil suits.

Orders of Protection

To stop abusive behavior that occurs within a family or dating relationship, one can get an order of protection issued from a judge. This protection order would make it illegal for the abuser to come near the victim whether they are in a public place or at home. Orders of protection can be issued for up to two years and may also include mandatory counseling, intervention programs, and paying spousal or child support. Orders of protection are available against spouses, former spouses, blood relatives, siblings, roommates, relatives by marriage, a person you have dated, someone you share a child with, and foster children.

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Weapons Violations

The second amendment of the U.S. Constitution states the right to bear arms. However, in the interest of safety, laws and codes exist at the federal, state and local level, to clarify in which manner one is allowed to bear arms. In the state of Texas, unless one has a permit, it is illegal to carry or possess a variety of weapons. The ‘Unlawful Carrying of Weapons’ and ‘Prohibited Weapons’ statutes make clear that it is illegal to carry handguns, clubs (any object used to strike someone), ‘illegal knives,’ switchblades, explosives or other firearms. Illegal knives are defined as single blade knives longer than five inches, any double-edged knife, swords or spears. Since 1995, Texas law allows carrying a handgun as long as a permit accompanies it. The handgun must always be concealed and is not permitted within schools, medical facilities, places of worship, and other similar places.

In addition to carrying and possessing weapons, there are also laws that affect the manufacturing, distribution, importing and exporting of illegal weapons.

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Property Crimes

Property crime involves the taking of property or money by illegal means, without the owner’s permission. This category can be broken down further into different types of property crime such as:
    • Burglary
    • Larceny
    • Theft
    • Shoplifting
    • Motor vehicle theft
    • Arson
    • Vandalism

Depending on whether the property stolen was of lower or higher value, thefts are regarded by the state as ‘petty’ theft or ‘grand’ theft. Stolen property valued between $100-$300 is considered petty, whereas amounts higher than that come under the category of grand theft. Within grand theft, there is first, second, third degree and fourth degree grand theft, with first degree grand theft having the heaviest penalties. The values associated with these degrees differ from state to state. If someone has been accused of a property crime, the determining factor for charging the offender with a misdemeanor or felony is either based on the value of property stolen or the amount of property damage done. Penalties may include restitution, probation and prison time.

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Computer & Internet Crime

Computer Crimes

The term Computer crime, also referred to as cybercrime, e-crime or hi-tech crime, represents unlawful activities involving computers as a target, venue or tool. With the advent and proliferation of the Internet, computer crimes have evolved from embezzlement and fraud to complex crimes involving hacking, identity theft, pornography, and sexual exploitation.

In 1985, the state of Texas passed a computer crime law, which has since been amended several times, in keeping with the rapid evolution of computer technology. Some of the highlights of the law computer crime law are:

• It is illegal to access someone else’s computer without consent or use their password to obtain personal or confidential information. Further, if a person benefits from accessing and obtaining information, they can be charged with a felony.
• It is unlawful to intentionally damage or destroy a computer that is public property or the property of someone else.
• it is illegal to introduce computer viruses or other computer contaminants.

Internet Crime

When the Internet is used as a tool or venue for unlawful activities, it is considered an Internet crime. Because the Internet is such a powerful medium of communication, reaching out to millions with the click of a mouse, many people take advantage of this in ways that are illegal. That the Internet also offers anonymity combined with sophisticated technology, makes committing Internet crimes easy and convenient. The Internet has now become a vast enterprise with varied unlawful activities in the form of Internet gambling, cyber stalking, child pornography, online schemes to obtain bank account information and more. While various ways of the policing the internet are being implemented and debated, the FBI along with other law enforcement groups are cracking down on pornography rings and sexual predators who use the internet for their own benefit.
Most Internet crimes are prosecuted as felonies, with substantial prison sentences. In addition, sex crimes committed through the Internet may result in life-long registration as a sex offender.

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Felony Defense

In the United States local, state, and federal governments establish penal codes to punish crimes. A ‘‘crime’’ is any act or omission (of an act) in violation of a public law forbidding or commanding it.
Crimes are classified by the degree of seriousness, and the state, through a prosecutor, initiates the lawsuit to seek punishment for criminal offenses. Persons convicted of a crime may be incarcerated, fined, or both.
Crimes are either felonies or misdemeanors. A misdemeanor carries a penalty of up to one year in jail, while a felony, a more serious offense, carries a maximum sentence of more than one year, and depending on the charge, can carry a life sentence or even the death penalty.
Felonies are generally classified by degree of seriousness. In Texas the law designates three degrees, first, second, third, plus two other categories, one is a state jail felony, which is the least serious type of felony, and the most serious type of felony punishable by execution, is called capital felony and is intended only for premeditated murder.

Crimes commonly designated as felonies include, but are not limited to:

Aggravated Assault
Burglary
Sexual Assault
Murder
Arson
Grand Theft
Kidnapping
Human Trafficking
Arson
Treason
DUI
Racketeering
Federal Gun & Drug Offenses
Fraud
Embezzlement
Computer Crime

Felony punishments range in severity from probation to imprisonment to execution, for premeditated murder and other serious crimes. Other consequences felons face include loss of professional licenses or exclusion from particular lines of work such as nursing, teaching and law enforcement. Loss of voting rights, ineligibility for public office and prohibition from purchasing or possessing firearms or ammunition, which means never being allowed to get a hunting license or even being in a hunting camp. In Texas, imprisonment or conviction of a felony is also grounds for divorce. And individuals who are not U. S. citizens are subject to deportation after a felony sentencing.

When you are facing felony allegations, your life and your liberty are at stake. Trusted legal advice and the expertise of a criminal defense attorney will make a significant difference in whether the charges against you are dismissed or the allegation leads to conviction, acquittal, or favorable settlement.

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Murder Charges

Murder refers to the intentional, unlawful killing of a person. It may also be referred to as a homicide, although other types of killing that may have occurred involuntarily also come under the homicide category. What distinguishes murder from other types of homicide is the ‘intent’ to kill. For that reason alone, a murder with intent is considered the most serious charge of all. There are different degrees of murder established by the law, which help define the seriousness of a murder charge. These degrees may vary from state to state. But in general, first degree murder refers to the willful, deliberate, and violent killing of a person, second degree murder refers to willful killings that are not necessarily pre-meditated, and third degree murder refers to all other types of killing.
Because the act of willful killing is so brutal, punishments for murder are severe and may include fines plus jail time, imprisonment for life (with or without parole), and even death by lethal injection. Of course several factors come into play when determining the punishment for a murder charge. If the defendant has any prior criminal convictions or special circumstances, it can greatly influence the outcome of his or her case.

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Texas Juvenile Crime

Juvenile crimes are those crimes committed by a person not legally considered an adult. While this age may vary depending on the state, most consider a juvenile to be 18 years of age or younger. Some states such as New York and Connecticut, however, consider a juvenile to be someone who is 16 and younger. The state of Texas falls somewhere in between, recognizing a juvenile to be someone who is age 17 and younger. There is also a lower age limit that all states specify, in which children under the ages of 10 and under are not considered a juvenile, as they lack the capacity to have criminal intent. Even in cases of juvenile crime, it is often thought that minors do not have the full ability to tell right from wrong. For this reason, different rules often come into play when a juvenile offender is charged with a crime. Juvenile crimes run the gamut of criminal offenses including drugs possession, shoplifting, robbery, rape, stealing, arson, traffic violations, weapons charges, and even murder.
In the state of Texas, a child can be charged with a felony or misdemeanor, just like an adult. A juvenile offender can also be charged for crimes based on his age such as truancy. However, juvenile crimes, unlike adult criminal cases, are handled in civil proceedings. Texas juvenile law is governed by “The Juvenile Justice Code” within the Texas family code. Punishments can range from detention, house arrest, treatment programs, to deferred sentencing as well as actual jail time.

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Military (UCMJ) Offenses

No matter your rank or your military specialty, no matter whether you have had a long career of service to our country or are in the middle of boot camp, there is one shared experience that binds all servicemembers together: you have raised your right hand and sworn a selfless oath to protect and defend our Constitution and the precious freedoms that define us as Americans.

You have accepted and embraced the potential of being put in harm's way to fulfill your duty. But what can be very hard to accept is that sometimes, merely because of your status as a servicemember, you can find yourself in harm's way in the form of a court-martial or other military disciplinary proceeding. And it can seem that those same freedoms -- those you swore to fight and die for -- are denied you.

A military court-martial is a unique procedure that has the twin purpose of doing justice and promoting military discipline. Each individual court-martial is convened by the accused's own commanding officer or flag officer. A convening authority has an immense amount of power to shape the process of the accused's trial. As a result, the process is driven to a large extent by that commander's own personality, judgment, fairness, and personal sense of right and wrong.

Can you imagine a system where the very person who thinks you committed a crime and wants to prosecute you for it is the same person who personally hand-picks the pool of potential jurors for your case? If you're facing court-martial, you don't have to imagine it. You're in it.

So when justice for an individual servicemember begins to take a back seat to a commander's desire to make an example out of someone, it's time for a strong defense counsel to step in and work to balance the scales on behalf of the accused.

If you already have an assigned, active-duty defense counsel, you STILL have the right to hire counsel of your choice. If you hire civilian defense counsel, that counsel will be in charge of your defense, and you have the right to keep your active-duty defense counsel on the case as co-counsel.

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