Criminal Defense Lawyer in Houston


What Am I Facing If I Am Charged With Murder?

Murder

In Texas, Murder is one of the most serious criminal offenses an accused can face. In other states in the US, what is termed plainly as murder in Texas is often categorized as second degree murder.

Range of Punishment for Murder

In Texas, Murder is a first degree felony that has a range of punishment; from 5 to 99 years imprisonment in a state prison and/or a fine not exceeding $10,000. Anyone facing such a charge must hire a very good attorney who is experienced in the defense of such a serious charge.

Elements State Must Prove for Murder Conviction

For the prosecution to successfully convict a defendant of murder, it must be able to prove beyond any reasonable doubt several factors. The prosecution must prove that the defendant knowingly and intentionally caused the death of another person. Alternatively the prosecution must also show that the defendant did intend to cause serious bodily harm or injury and proceeded to commit an act that was by and large clearly dangerous to human life and this particular act ultimately caused the death of an individual.

Another option for the prosecution is; to prove beyond any reasonable doubt that the defendant either committed or attempted to commit a felony other than manslaughter and while performing the said felony; the defendant committed an act that was without doubt dangerous to human life and this particular act caused the death of a person. It is worth noting that the prosecution needs only to prove one of the above options, but the key point in all the available options for the prosecution is that the murder has to be proven beyond reasonable doubt.

Possible Defenses to Murder Charges in Texas

In Texas, just like in most states in the US, a defendant has a right to full representation by a qualified attorney. There are also a wide range of defenses he or she can pursue in an attempt to prove his or her innocence. An accused person can claim that the death of the person in question was not intended and was either accidental or caused by natural or unforeseen occurrences; lack of intent is an acceptable defense in Texas law.

One of the most utilized defenses is self defense; a defendant may be acquitted if he can prove that he had reason to believe his life was in danger and he thus needed to defend himself.

Another interesting defense may be the heat of passion argument. The defendant may claim that he was provoked to commit the said crime by some extreme emotion like terror, fear or rage arising from a valid cause. If it is found that the defendant was truly in the heat of passion, he may be charged with lesser included offenses like second degree felony which carries a sentence of between 2 and 20 years in a state prison and /or a fine of no more than $10,000.

It is worth noting also that the laws in Texas are constantly being changed and improved, it is important that you engage a licensed and practicing attorney to advise you accordingly.

Mario Madrid is a Texas Board Certified Attorney in Criminal Defense and has successfully defended individuals who have found themselves in the unfortunate situation of being charged with Murder. He practices in Harris County and counties throughout Texas.

House Arrest Laws: What You Need to Know About the Rules

Criminal Defense

Driving while intoxicated charges sometimes result in jail time for the offender. In an effort to alleviate overcrowding in jails, some individuals may be sentenced to home detention or house arrest instead. This allows the accused to work and become a productive member of society, while also being forced to pay for his actions.

How House Arrest Works

Individuals who are placed under house arrest will be given a strict schedule to adhere to. This schedule will primarily be based upon their normal work hours. In addition, offenders may be allowed a certain amount of time for attending worship services or going to medical appointments.

A probation officer will be assigned to that person’s case in order to keep close tabs on his comings and goings. One way of doing this is by calling a land line phone at certain hours in order to make sure that individual answers. Officers can also make random visits at a defendant’s residence or place of work. Some jurisdictions require people on house arrest to wear electronic monitoring devices that transmit a signal to police officers detailing their whereabouts.

Who is Eligible for House Arrest?

Not all DWI offenders are eligible to serve their sentences via house arrest. After a second or subsequent arrest, judges may be leery about sentencing an individual to home detention out of fear he might violate the terms.

A few instances where house arrest might be considered include:

  • First-time DWI offenders
  • Those with little or no prior criminal history
  • People who have already served a good portion of their jail sentence

Individuals who have been charged with an additional crime such as vehicular manslaughter are usually not eligible for home detention. Those who have ties to gangs, a lengthy criminal history or prior house arrest for a DWI could also be sentenced to time behind bars rather than house arrest.

House Arrest is Very Serious

One of the biggest mistakes people make is thinking that home detention is not serious. It is indeed serious, and it could result in severe sanctions for those who violate its terms. Anyone caught tampering with an electronic monitoring device could also face judicial punishment. The amount of time spent on house arrest is usually much longer than a typical jail sentence. This helps compensate for the advantages one has of remaining in his own home and sleeping in his own bed.

Those who would like to know more about how house arrest works can contact Houston attorney Mario Madrid at 713-877-9400.

Unlawful Possession of Firearms – COA Affirms Conviction Based on Pieces of Shotgun

Forensics | General Law | Violent Crimes

On March 7, 2013, the Texas Court of Appeals affirmed the conviction of Emmitt Starling for the unlawful possession of a firearm. According to Marissa Martinez, an ex-lover of Emmitt, Emmitt broke his gun’s stock against her car on December 29, 2010 at around 11:30 PM.

On the same day evening, Marissa had rejected Emmitt’s advances. Emmitt appeared to be intoxicated and was drinking from a Hennessy bottle. At one time during the event, Emmitt pointed the gun toward Marissa’s face. Marissa called 911 and the police took Emmitt into custody.

Houston criminal defense attorney Mario Madrid.

The State introduced two pieces of evidence, one was the remaining majority of a .410 gauge shotgun with duct tape on its trigger and the other one was the butt of a shotgun. Marissa had identified the gun pieces as being the firearm that Emmitt brandished and beat against her car on December 29, 2010. She had also identified the duct tape on the gun’s trigger.

One Police Officer, Brent Mills has testified that he found the pieces of a firearm in some bushes at the base of the staircase of Marissa’s apartment where other officers apprehended Emmitt.

He also identified that the gun pieces introduced by the State are the same pieces that he found. The jury found Emmitt guilty and assessed punishment at thirty-five years’ confinement.

In the appeal, Emmitt challenged the evidence submitted by the State to get the conviction. He argued that the trial court erred by allowing the State to introduce the items as the State failed to lay a proper foundation by showing chain of custody of the items.

The COA found based on the testimony of Marissa and various other police officers that the items introduced by the State were easily identifiable by their unique and distinct characteristic and are substantially unchanged normally and hence they do not require the introduction of a chain of custody.

Emmitt’s second argument was that the evidence was legally insufficient to prove that he possessed the firearm. The Court rejected Emmitt’s argument based on the testimony of Marissa and other police officers. Marissa had clearly described the gun in detail and identified it at the trial.

She had also testified to having seen Emmitt brandish the gun and smash it on her car. The firearm need not be in Defendant’s exclusive care, custody, control or management for the conviction of unlawful possession of firearm. The conviction can also be based on additional, independent facts and circumstances that link the Defendant to the firearm.

In this case, circumstantial evidence also linked Emmitt to the shotgun. Multiple police officers testified to having found the shotgun matching Marissa’s description near the bottom of a stairwell where Emmitt was apprehended.

There was also testimony linking together the shotgun and a specific brand of alcohol found near the shotgun with Emmitt. Therefore, the Court of Appeals confirmed the judgment of the trial court. (Starling v. State (March 2013).

If you have been charged with a gun or weapon crime in Texas, contact Madrid Law today for a free case evaluation.

What is the Open Container Law?

Criminal Defense | DWI

The open container law is a legal provision that is designed to ensure the safety of the public. It can be brought into effect in a variety of circumstances that involve the consumption or possession of alcohol. Many people may think that the open container law applies only when someone is being arrested for a criminal offense of driving while intoxicated. However, the open container law can also apply to the consumption of alcohol by people in a public place or while on the grounds of certain institutions.

Why is the Open Container Law Needed?

Open container laws were put into effect in order to accomplish several specific purposes. First and foremost, open container laws are used with the safety of the general public in mind. The consumption of alcohol in a public place can have many negative effects, including dangerous behavior, fighting, criminal activities or vandalism. In this regard, open container laws seek to curb public drunkenness before it can cause such negative behaviors.

Also, open container laws apply when someone is in possession of an alcoholic beverage while operating or riding in a motor vehicle. This is done with the aim of preventing the intoxicated operation of motor vehicles on public highways, which is one of the most dangerous criminal activities in the nation. Also, intoxicated drivers are more likely to engage in violent confrontation with other drivers in the event of a vehicle collision or accident.

Open container laws are also used to ensure that a state continues to receive subsidies for transportation from the federal government. In any state that does not have an open container law on the books, the federal government can immediately rescind any subsidies that are earmarked for the cost of transportation expenses in that state. This is a very serious matter because these federal subsidies cover a great deal of the cost of highway construction and road maintenance in the state.

What Places are Exempt From the Open Container Law?

Some states and municipalities allow the possession of an open container of alcohol in specific areas and at specific times. At present, seven states do not have open container laws that apply to the consumption of alcohol in public. In Louisiana, for example, New Orleans does not prohibit the consumption of alcohol on public sidewalks and streets, but the city does prohibit such consumption in parking lots or from glass containers. Las Vegas also allows the public consumption of alcohol on certain holidays. It should be noted that, while these locations allow public consumption, they strictly enforce laws that prosecute offenses caused by drunkenness, such as disorderly conduct or engaging in argumentative disputes with law enforcement officers.

For additional information on open container laws in the state of Texas, set up an appointment with Mario Madrid at 713-877-9400.

Getting a New Trial After a Conviction

Criminal Defense

After a criminal conviction has been secured, and a sentence has been handed down, defendants may sometimes wish to request a new criminal trial. This is usually done in an attempt to secure a sentence that is less severe than the initial sentence. It is very common for a motion for a new trial to be announced. In order for a motion for a new trial to be carried out, sufficient evidence must be presented by the defendant’s attorney for the presiding judge to review. This type of evidence must be newly discovered evidence that was not presented in the original trial.

Requirements for New Evidence

Courts have very specific guidelines governing exactly what kind of evidence is allowed to be presented in a motion for a new criminal trial. The evidence that is presented must be new to both the defendant and the court. In other words, it must have been discovered after the initial trial was completed. Also, the evidence must be more than mere speculation. It must be hard evidence that can be examined by the court. In addition, the evidence must not have been missed because of an incomplete search by the defense, and it must present sufficient grounds for a different result than what was reached at the original trial.

New Trials May be Granted in the Interest of Justice

Evidence for a new trial can attempt to prove that it is in the interest of justice to seek a different verdict. Usually, this type of motion asserts that the jury at the initial trial is guilty of misconduct or bias. Also, the defendant’s attorney can make a claim that the jury did not receive proper instructions that would have enabled them to issue a correct verdict. The defendant’s attorney can also make a claim that there was insufficient evidence to issue a guilty verdict or make a claim of misconduct on the part of the prosecution.

It is very difficult to convince a judge to order a new trial. Many motions for a new trial are summarily dismissed for a variety of reasons. For instance, a claim by the defendant’s attorney that the jury did not deliberate for a sufficient amount of time is frequently dismissed. Also, a claim of witness unreliability or that the jury’s final decision was inconsistent does not often stand up to scrutiny. In addition, a claim by the defendant’s attorney that certain constitutional rights were violated will be dismissed if those rights were harmlessly infringed or if such infringement did not constitute a significant impetus to change the initial verdict. The request process for a new criminal trial is quite complex, so interested defendants are advised to contact an attorney.

To learn more about reasons for a new criminal trial, speak to Mario Madrid at 713-877-9400.

Return of Seized Property

Constitutional Rights | Criminal Defense | Search and Seizure

It is very common for law enforcement officers and agents to confiscate personal property during an arrest. There are several reasons for this course of action and, depending on the type of item confiscated, it may be possible to retrieve the property. However, property such as controlled substances will not be returned to the owner and will usually be checked into the evidence locker at the police station or will be destroyed. Some other types of property cannot be returned to the owner once they have been confiscated because they will be used in a trial to secure a conviction.

When Do Police Officers Confiscate Property?

Typically, law enforcement officers search and seize property when they feel that the items will be used in a criminal trial. This is the main reason for property confiscation, and the illegal possession of the property is usually the cause of the arrest. When someone illegally possesses this type of property, the property is known as contraband, and it cannot be returned to the owner.

Items That are Confiscated the Most

Another type of property confiscation is known as forfeiture. When certain items are used in the commission of a crime, the items will be legally forfeited into the custody of law enforcement. Such items typically include:

  • Cash that was gained from selling illegal drugs
  • Illegal weapons and vehicles that have been stolen.

One of the most common types of property confiscation is performed for the safekeeping of the items being confiscated. This is most often done at the scene of an arrest or when someone is being checked into the custody of a jail. These items are usually found on the person of the individual under arrest and often include:

  • Small amounts of money
  • Jewelry
  • Cell phones
  • Certain articles of clothing

These types of property are generally the easiest to retrieve after an arrest has been made.

How to Retrieve Confiscated Property

In order to retrieve confiscated property after an arrest, there are certain steps that must be followed. When someone is booked into jail and their personal belongings are confiscated for safekeeping, the jail clerk will secure their items into storage and catalog the items according to the name of the owner. They will then present the owner with a voucher or receipt to ensure that all of the property is accounted for.

To retrieve this property after being released from custody, the owner must present proper identification as well as their voucher to the jail clerk. The items will then be released from secure storage.

For more information about property retrieval after an arrest, speak to Mario Madrid at 713-877-9400.

How is DNA Used in Criminal Investigations?

Criminal Defense | Forensics

A person’s genetic information is recorded in their DNA, also known as deoxyribonucleic acid. Each person’s body contains a distinctive and different DNA sequence from each other. Because DNA is found at a cellular level, a very small sample will be enough to identify a person’s sequence and subsequently identify a specific person. Because of its unique makeup, law enforcement agencies have embraced the criminal applications of DNA.

DNA evidence can be extremely accurate. However, law enforcement personnel must take proper precautions to not contaminate the DNA samples. Any contamination will affect the accuracy of the samples and may result in an innocent person being convicted.

Crime Scene Collection of DNA

At a crime scene, a forensic team will comb the area for possible DNA evidence. DNA can be collected from bodily fluids or other materials. DNA may be pulled from any of the following items:

  • Hair
  • Blood
  • Skin
  • Mucus
  • Saliva
  • Fingernails
  • Semen

Generally, at a crime scene the vast majority of DNA will be discovered on the body of the victim. Many victims will have the attacker’s DNA underneath their fingernails, inside of their mouths or elsewhere on their person. However, DNA may also be found on a weapon, such as the trigger of a gun or on a cigarette that the attacker threw away.

When DNA is collected from a crime scene, the collectors must wear gloves to avoid contamination. Further, the samples should be stored in a paper container as opposed to plastic. Plastic containers may contain moisture which will affect the samples.

How Do the Police Use Collected Samples?

The presence of DNA at a crime scene will help law enforcement officials to determine who was present at an actual crime scene. The presence of a person’s DNA does not necessarily mean that he committed that crime. However, it does mean that a specific person was present.

Law enforcement officials use DNA profiling to identify the person to whom the DNA belongs. DNA profiling may also be called genetic fingerprinting. After a forensics team collects a DNA sample, it is placed into the Combined DNA Index System. The Combined DNA Index System (CODIS) consists of a national database of DNA samples which is maintained by the FBI. The database uses DNA samples which connect various samples taken from local, state and federal crime scene investigations. Because different agencies from across the country contribute to the CODIS, the effectiveness of the CODIS greatly increases.

For more information on DNA and how it can affect the outcome of a criminal case, contact attorney Mario Madrid at 713-877-9400.

Can My Lawyer Object to Jury Instructions?

Criminal Defense | Jury

A jury consists of a peer group from the community. Its responsibility is to decide whether a defendant is innocent or guilty of the crime he is charged with. While the members of a jury are selected for their potentially unique perspectives on a crime, they often have very little knowledge of the law.  Before a criminal trial, they are given a series of instructions on how to process the information that is presented to them. Both the defense and the prosecution can object to the court’s instructions to the jury. By objecting to instructions, the attorneys can redirect the members of the jury. This can result in a more favorable outcome for the defendant.

Common Objections to Jury Instructions

Any attorney who objects to instructions does so in the presence of a jury unless it could hurt his chances of winning the case. In this situation, the attorney would approach the judge’s bench to make the objection. A judge can also sequester a jury at the request of an attorney.

Some common objections to jury instructions include:

  • Flawed or confusing instructions
  • Failing to offer instructions

All objections must be legally explicit, on the record and presented in a timely manner. This is important as issues can be raised if the defendant requests an appeal.

How to Object to Jury Instructions

Attorneys must be very specific when they object to jury instructions. In each instance, the objector must specify the legal concerns of the request and how it could potentially impact the outcome of a case. A judge must consider each request to ensure that the defendant gets a fair trial.

When to Object to Jury Instructions

Objections to jury instructions must be made immediately and addressed before the jury deliberates the verdict. After the jury has been sequestered to contemplate guilt or innocence, it is too late to object to the instructions that are provided by the judge. The jury members hear the court’s instructions right before deliberating. A well-constructed objection could make a big difference in the outcome of the case and may establish grounds for a defendant to appeal.

To learn more about objections to jury instructions, contact Madrid Criminal Law by calling 713-877-9400.

The Certification of Juveniles in Texas

Juvenile Crimes

Not all juveniles who are charged with a crime in Texas will have their case handled by the juvenile court system. The sentencing structure in Texas allows for juveniles to be transferred out of juvenile court and into adult court.

Emma Quintero on Juveniles Being Certified As Adults

In general, an individual charged with a crime will be sent to juvenile court if they are under the age of 19 and were over the age of 10 but under the age of 17 when the alleged crime was committed. However, there are exceptions.

In Texas, a child as young as the age of 14 can be tried and sentenced in adult court if the juvenile meets certain requirements and the juvenile court waives their jurisdiction. When this occurs, a child is said to be “certified” as an adult.

Texas Family Code Sec. 54.02 sets out the requirements for a juvenile to be certified. The juvenile must be charged with a felony offense and must have been at least 14 or 15 years old at the time the alleged crime was committed, depending on the level of the felony they are charged with.

In addition, after a hearing, the court must find that there is probable cause to believe that the child committed the offense and because of the seriousness of the offense or background of the child the welfare of the community requires that the juvenile be moved to adult court.

Texas Family Code 54.02(f) lists the main factors the court considers when deciding whether to certify a juvenile. These factors include whether the alleged crime was against a person, the sophistication and maturity of the child, and the prospects of adequate protection of the public and the likelihood of the rehabilitation of the child by resources available to the juvenile justice system.

Following certification, the juvenile is charged, tried, and sentenced in the adult criminal justice system, as if they were an adult.

To see the current state of juvenile certifications in Texas and issues that arise see: http://www.utexas.edu/lbj/sites/default/files/files/juvenilestexas–final.pdf

If a family member or loved one of yours has been accused of the commission of a crime, and is a juvenile, contact the criminal defense lawyers at Madrid Law, PLLC.

Eyewitness Identification Laws and Polices in Texas

Criminal Defense | Testimony

In 2011, the Texas legislature took a special interest in reducing wrongful convictions that stem from mistaken eyewitness identifications. The law, HB 215, which stemmed from this interest, is now codified in 38.20 of the Texas Code of Criminal Procedure (CCP).

Under CCP 38.20, law enforcement agencies are required to have a written policy regarding eyewitness identifications, which include the administration of photograph and live lineups.

Although the agencies may adopt either the policy set out by the Bill Blackwood Law Enforcement Management Institute of Texas or write one of their own, there is a standard defined in CCP 38.20 that must be met.

These standards pertain to the basis and theory behind the policy, the possible suspects that are used in a lineup and photo identifications, and the administration and documentation of the identification procedure.

As set out in 38.20 Sec. 3 (c), the policy must:

1.  Be based on:

(a) credible filed, academic, or laboratory research on eyewitness memory;

(b) relevant policies, guidelines, and best practices designed to reduce erroneous eyewitness identifications and to   enhance the reliability and objectivity of eyewitness identifications; and

(c) other relevant information as appropriate 

2. Address the following topics:

(a) the selection of filler photographs or participants;

(b) instructions given to a witness before conducting a lineup identification procedure;

(c) documentation and preservation of results of a photograph or live lineup identification procedure, including the documentation of witness statements, regardless of the outcome of the procedure;

(d) procedures for administering the identification procedure to an illiterate person or a person with limited English language proficiency;

(e) for a live lineup, if practicable, procedures for assigning an administrator who is unaware of which member of the live lineup is the suspect in the case or alternative procedures designed to prevent opportunities to influence the witness;

(f) for a photograph identification procedure, procedures for assigning an administrator who is capable of administering a photograph array in a blind manner or in a manner consistent with other proven or supported best practices designed to prevent opportunities to influence the witness; and

(g) any other procedures or best practices supported by credible research or commonly accepted as a means to reduce erroneous eyewitness identifications and to enhance the objectivity and reliability of eyewitness.

A policy that meets this standard is the policy set out by the Bill Blackwood Law Enforcement Management Institute of Texas. Key aspects to this policy are blind or blinded administration, as explained in (F) and (E) above; showing photographs sequentially, one after another, rather than showing all photos at the same time; not allowing the witness to view more than one photo at one time; preferring documentation by video; avoiding show-ups whenever possible; bringing the witness to the suspect in a show-up; using a show-up with only one witness; and having a show-up only within 2 hours of the crime.

It should be noted that although this policy does meet the standard laid out in CCP 38.20, other law enforcement agencies can deviate from this policy and still be in compliance with the standard.

If you’ve been charged with a criminal offense in the Houston area, contact the Texas Board Certified criminal justice lawyers of Madrid Law, PLLC as soon as possible for the best chance to obtain favorable results from the court of law as it relates to your particular situation.

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