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Monthly Archives: June 2019

Does a Car Count as a Deadly Weapon Under Texas Law?

By Peek & Toland on June 30, 2019

Whether a car or another vehicle can be characterized as a deadly weapon arises most often in a felony DWI case that has gone to trial. A DWI usually results in felony charges when you have two or more prior DWI convictions. An affirmative finding that you used a deadly weapon in the commission of a felony can affect the sentence that you receive.

In a DWI case, the prosecutor will ask the jury to find that you used your vehicle as a deadly weapon in committing the DWI. A deadly weapon finding can impact your sentence insofar as your eligibility for parole is concerned. If the jury makes this finding in your case, then you must serve at least one-half of your total sentence, or a minimum of two years before you become eligible for parole.

Does a Car Count as a Deadly Weapon Under Texas Law?

Driving a vehicle, however, does not always mean that you are using it as a deadly weapon. Instead, your vehicle only is a deadly weapon if you use it in a manner that may result in serious bodily injury or death to others, as per Tex. Pen. Code § 1.07(a)(17)(B). Thus, the way that you drove the vehicle and whether a reasonable person would consider your driving to be reckless or dangerous will help determine whether you were using your vehicle as a deadly weapon.

For instance, if there is eyewitness testimony that at the time of your DWI you were speeding, disregarding traffic signs or signals, driving on the wrong side of the road, or causing property damage with your vehicle, a jury may find that you used your car as a deadly weapon. Similarly, fishtailing, losing control of your vehicle, and narrowly missing collisions with another vehicle can lead to a deadly weapon finding. The criminal defense lawyers of Peek & Toland have handled the legal defense of countless individuals who are facing criminal charges. We are here to protect your rights and advocate on your behalf to get the best outcome possible in your case. Call our office today at (512) 474-4445 to set up an appointment with our criminal defense attorneys today. fff

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What is a 705(b) Hearing?

By Peek & Toland on June 29, 2019

If you are charged with a crime that is proceeding to trial, the state may wish to call one or more “expert” witnesses to testify at trial. For instance, in a DWI case, the state might use a medical expert, such as a toxicologist, to explain and verify the results of a blood test used to measure blood alcohol content (BAC). Under Texas Rule of Evidence 705(b), the defendant, or the person accused of the crime, has the right to examine or ask questions of the expert witness before the witness testifies about his or her opinion. The defendant can ask the expert any questions about the underlying facts or data that support his or her view.

A 705(b) hearing does not occur in front of a jury. Instead, the judge excuses the jury from the courtroom so that the defense lawyer can conduct the 705(b) examination. The judge excludes the jury from the 705(b) hearing so that there is no danger of the jury hearing inadmissible evidence or hearsay that might come up.  

What is a 705(b) Hearing?

Following a 705(b) hearing, if the judge decides that the underlying facts or data do not form an adequate basis for the expert’s opinion, then the expert’s opinion is not admissible in court. If the data or facts underlying the expert opinion are inadmissible in evidence, then the court must consider whether to limit their use by using a limiting jury instruction or whether they are inadmissible altogether.

Although 705(b) is mandatory, in that if a defendant requests a 705(b) hearing, the judge must grant it, the appellate courts in Texas do not consider it to be a constitutional violation if the judge denies it. In other words, denial of a timely motion for a 705(b) examination typically is not a basis for reversing a criminal conviction, unless it affects a substantial right of the defendant in some manner. If you or a family member is facing any criminal charges, we may be able to help. As experienced Texas criminal defense attorneys, we have the knowledge needed to help you navigate through often-complex criminal proceedings. Call us today at (512) 474-4445 and schedule an appointment with one of our criminal defense lawyers and learn how we can assist you.

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Compelling Prostitution

By Peek & Toland on June 28, 2019

Compelling prostitution generally consists of “pimping” another person for sex acts. Under Tex. Pen. Code § 43.05, individuals commit the crime of compelling prostitution if they knowingly cause another to commit prostitution by using force, threat, or fraud, or if they cause a child under the age of 18 to commit prostitution by any means, regardless as to whether they know the age of the child at the time of the offense. Although “by any means” is far from clear, in most cases, it is enough if the accused provided the opportunity for the minor to participate in prostitution and persuaded the minor to engage in the prostitution. However, the commission of prostitution is not a requirement for a conviction on compelling prostitution charges.

In many cases, compelling prostitution charges arise from a police sting, in which police set up prostitution services designed to catch prostitutes, johns, and pimps. Charges of compelling prostitution also often originate from human trafficking investigations.

Compelling Prostitution

Compelling prostitution is a second-degree felony offense, but it becomes a first-degree felony offense if it involves a child under the age of 18. A conviction for a second-degree felony can result in two to 20 years in prison and a fine of $10,000, and conviction for a first-degree felony can result in two to 20 years in prison and a fine of $10,000.

Judging from these penalties, whereas prostitution is typically a minor misdemeanor offense, compelling prostitution is not a lesser offense. Individuals convicted of compelling prostitution could face decades in prison, especially when minors are involved. The criminal defense lawyers of Peek & Toland have handled the legal defense of countless individuals who are facing criminal charges, including charges involving bribery. We are here to protect your rights and advocate on your behalf to get the best outcome possible in your case. Call our office today at (512) 474-4445 to set up an appointment with our criminal defense attorneys today.

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Self Defense and Assault Charges

By Peek & Toland on June 27, 2019

An assault charge can result from a variety of situations. Whether an argument, a fight, or an attack, one of the most commonly used defenses in response to an assault charge is self-defense. Fighting back tends to be an automatic reaction when someone is assaulting you. However, it can result in an assault charge, and if you use a weapon or cause severe injuries to the other person, it can result in an aggravated assault charge.

The prosecutor has the burden of proof in assault cases. This means that not only must the prosecutor prove that you committed the crime, but he or she also must prove that you committed the crime with the requisite criminal intent. More specifically, there must be proof that you intentionally harmed or threatened the other person in anger or with malice. If you are claiming that you committed the assault in self-defense, but without any intentions of harming anyone, then it is essential to understand that you must receive a threat of violence to use self-defense against another person. Although you do not have to wait for the person to strike you or throw the first punch, there does need to be a clear threat of violence or to your safety to claim self-defense.

Self-Defense and Assault Charges

Claiming self-defense can be complicated in some assault cases, especially if you started the fight or were the first aggressor. However, even if you started the fight, but the other person elevated the altercation to use deadly force, then you could use deadly force in self-defense. Mainly, the level of force that you use in defending yourself must be at the same level of the threat of violence against you. No matter the type of criminal law issue you are facing, the skilled and knowledgeable criminal defense lawyers of Peek & Toland are here to assist you. We handle many different types of criminal cases every day and have the kind of strategic experience and skills that are necessary to reach the desired outcome. By calling our office as quickly as possible after your criminal issue arises, we will have the best opportunity to resolve your case successfully.

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Auto Theft in Texas

By Peek & Toland on June 26, 2019

Texas does not have separate statutes for auto theft; the offense falls under the regular theft statute. Under Tex. Pen. Code 31.03, individuals commit a theft when they unlawfully appropriate property with the intent to deprive the owner of the property. This means that individuals may face theft charges if they intentionally take a vehicle that does not belong to them, they took a car knowing that it is stolen, they drive a vehicle without the owner’s possession, or if they fail to return a rental car when it is due to back to the rental agency.

Auto Theft in Texas

Since theft crimes are classified according to the value of the property, the more the vehicle is worth, the higher the theft charge and the more severe the penalties. Prior criminal convictions also may impact the overall sanctions that individuals receive for auto theft. Most vehicles will fall in the $1,500 to $20,000 range, which makes the offense a state jail felony, or within the $20,000 to $100,000 for most new vehicles, which makes the offense a third-degree felony. For a state jail felony, the sentence of incarceration can range between 180 days and two years, along with a fine of up to $10,000. A third-degree felony conviction can result in a prison sentence of two to ten years, as well as a $10,000 fine.

Some defenses commonly arise in auto theft cases. For instance, if the individual had the consent of the owner to operate the vehicle, then there can be no auto theft. In other cases, if the individual had no intention of depriving the owner of the use or benefit of the vehicle, then there is no crime. When you are charged with any criminal offense in the state of Texas, you need an experienced criminal defense attorney to represent your interests from the very beginning of your case. Taking steps to get you released from jail and fight for your rights at the outset of your case is typically easier than waiting until your case has progressed. Contact Peek & Toland at (512) 474-4445 today and set up an appointment to speak with our legal team.

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DWI with a Child Passenger

By Peek & Toland on June 25, 2019

Penalties for DWI are harsh in the state of Texas, but some DWI cases involve aggravating circumstances that can result in separate criminal charges or enhanced penalties. Tex. Pen. Code § 49.045 provides for a separate criminal offense when individuals commit DWI with a passenger who is under the age of 15. Intoxication for DWI can mean either having a blood alcohol content (BAC) of 0.08 percent or more or having consumed alcohol or drugs to the point that you do not have regular usage of your mental or physical faculties. You can face charges for this offense even if no one, including the child passenger, was injured during the incident.

DWI with a Child Passenger

In some cases, individuals will be unable to drive while their DWI with a child passenger case is pending. In other cases, as a condition of your bond, the court may require you to install and maintain an ignition interlock device on your vehicle, at your own cost. This is a machine that you must blow into for a measurement of your BAC before the car starts. If the ignition interlock device detects a certain level of alcohol, the vehicle will be disabled temporarily.

The court also is likely to order you to refrain from consuming any alcohol or using any controlled substances without a prescription. You may have to undergo random alcohol and drug testing to ensure that you comply with this order in some circumstances.

DWI with a child passenger is a state jail felony offense, which can result in a fine of up to $10,000 and a sentence of incarceration ranging from 180 days to two years. As a result, individuals convicted of this crime also will lose some of their civil rights, such as the right to vote and possess firearms. An experienced Texas criminal defense attorney can help you build a strong defense against any criminal charges. We are here to evaluate the facts surrounding your case, present your options, and help you make the decisions that will be most beneficial to you, based on your circumstances. Contact Peek & Toland at (512) 474-4445 today and see how we can help.

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CBD: Legal in Texas?

By Peek & Toland on June 24, 2019

State lawmakers in the two largest states, California and Texas, are pushing bipartisan legislation that would legalize CBD products, even though the federal government continues to consider it illegal. Despite efforts in some localities in both states to pull CBD products from store shelves, including CBD oil-infused gummies, foods, drinks, and dietary supplements, there is an enormous push to legalize what many see as a boon to their overall health.

At the federal level, Congress members also are pushing the U.S. Food and Drug Administration (FDA) to reconsider its stance on the popular cannabis compound. Recently, the FDA announced that it will conduct a public hearing to solicit more information on the subject. The FDA maintains oversight over CBD because it is the active ingredient in a prescription drug that treats two rare seizure disorders and contends that it has insufficient information to determine whether CBD is safe or effective to add to food and drink products.

Nonetheless, the FDA has limited enforcement to companies that make false health claims about their products. Federal authorities also have largely failed to take any action against companies producing CBD products in states in which marijuana has been legalized on a recreational or medical level. Instead, state or local authorities have headed up most enforcement efforts.

Legislation in both Texas and California is pending that lawmakers hope will end consumer confusion and allow individuals to purchase products containing CBD oil. The pending legislation in Texas, HB 1325, as amended, most recently went to the governor’s office for his signature. In addition to legalizing CBD oil containing less than three percent THC, the bill also would permit farmers to grow hemp. The Peek & Toland criminal defense lawyers are here to represent your interests and advise you of the best course of action in your situation. Set up an appointment to talk to us today and discover how we can assist you with your criminal proceedings.

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OIG Criticizes ICE in Timely Deportations

By Peek & Toland on June 23, 2019

The Office of Inspector General (OIG) of the Department of Homeland Security recently issued a report entitled “ICE Faces Barriers in Timely Repatriation of Detained Aliens.” In reviewing the cases of over 3,000 immigrants who were not removed from the U.S. within 90 days of receiving a final order of removal, OIG concluded that some of the factors resulting in these delays are beyond the control of Immigration and Customs Enforcement (ICE). Some of these factors include the lengthy nature of immigrants appealing their removal orders and the fact that foreign governments are not always cooperative in issuing the appropriate travel documents and arrangements.

However, OIG also noted that some of ICE’s internal problems exacerbated the issues concerning the timely removal of immigrants from the country. Specifically, ICE has major issues with staffing and technology that inhibit its efforts to timely remove these individuals. ICE continues to have issues with inadequate staffing, high turnover rates, and heavy caseloads, which impacts their management of immigrants pending removal from the country.

OIG Criticizes ICE in Timely Deportations

Furthermore, ICE uses a cumbersome manual process to make international flight plans for immigrants to return to their native countries, rather than utilizing available technology to complete these arrangements. ICE also has developed a tool designed to track statistics on the efficiency of removal operations, but its metrics are incomplete and do not track some of the necessary information.

Overall, OIG made five recommendations for ICE to improve its removal operations:

  • Develop a new staffing model that assigns sufficient officers to manage immigrants who are subject to removal orders
  • Conduct training for all Enforcement and Removal Operations staff about the importance of obtaining proper identity documents from immigrants at the time of apprehension
  • Develop a web-based flight managements and tracking system to expedite removal
  • Use an electronic system as a source of official removal statistics

The immigration lawyers of Peek & Toland have handled the legal representation of countless individuals facing various immigration-related issues. We are here to protect your rights and advocate on your behalf in order to get the best outcome possible in your case. Call our office today at (512) 474-4445 to set up an appointment with our immigration attorneys today.

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Most Popular RFEs for H-1B Visa Applications

By Peek & Toland on June 22, 2019

U.S. Citizenship and Immigration Services (USCIS) has released a listing of its top ten reasons for issuing Requests for Evidence, or RFEs, to H-1B visa applicants. The number of RFEs that USCIS has issued over the past year has grown exponentially. In the first quarter of FY 2019 alone, USCIS issued RFEs to 60% of H-1B visa applicants, as compared to less than 30% in the same quarter of the previous fiscal year.

According to USCIS, the most common reason for issuing an RFE in response to a H-1B visa application was the failure of the employer to establish that the position for which the visa is sought qualifies as a specialty occupation. The employer must provide evidence that the job not only requires highly specialized knowledge, but also at least a bachelor’s degree, or its equivalent. Employers normally should provide USCIS with a detailed job description containing job duties and responsibilities, as well as the educational requirements. There must be a clear link between the job duties and the education necessary to carry out those job duties.

Most Popular RFEs for H-1B Visa Applications

Furthermore, USCIS often will issue an RFE to employers who fail to provide adequate evidence that they have a valid employer-employee relationship with the visa beneficiary, or the foreign worker. If the employee will be placed at a third-party worksite, the employer must demonstrate that it will retain authority over the employee and the job duties that he or she is performing through the entirety of the work period. Typically, employers should have a signed employment contract that delineates the rights and responsibilities of all parties involved.

Another common reason for USCIS to issue an RFE to a H-1B visa applicant is an alleged failure to establish that the H-1B visa beneficiary who is to work at a third-party worksite will perform specific duties related to the specialty occupation during the requested period of employment. In other words, the employee must have specific assignments and contracts in place prior beginning work, not simply expect that the employee will perform work as it arises. These are just a few of the common justifications for USCIS issuing RFEs in response to H-1B visa petitions. At Peek & Toland, we care about helping you obtain through your immigration problems. We will focus our efforts on advocating on your behalf and representing your interests throughout the immigration process. Our knowledgeable immigration lawyers know the best strategies for gathering documentation to support your goals. Allow us to handle your immigration law case by sitting down with us today and discussing your situation.

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Influx of Immigrants in Texas Border Towns as Detention Centers Reach Capacity

By Peek & Toland on June 21, 2019

Various immigrant detention centers in the Texas Rio Grande Valley have swelled beyond capacity in recent months, which has led Border Patrol officials to release thousands of immigrants into the streets of these border cities at the direction of its parent agency, Customs and Border Protection. In just a few days in March 2019, Border Patrol released over 2,200 migrants from the government processing facilities with future dates to appear in immigration court.

The influx of immigrants has required the releases, despite the Trump administration’s clear directive to eliminate past protocols of “catch and release” of immigrants. The administration had vowed to focus on detaining immigrants who attempt to cross the border outside a normal port of entry until their deportation, rather than releasing them with a date to appear in immigration court.

Influx of Immigrants in Texas Border Towns as Detention Centers Reach Capacity

The release of these immigrants also has stressed migrant services facilities beyond their maximum capacity, as city officials struggle to meet the needs of large numbers of unexpected immigrants being released. In McAllen, for instance, a Catholic Charities immigrant respite center housed in an old nursing home is using every available inch to house these immigrants, at least on a temporary basis. Likewise, in El Paso, the release of 150 immigrants at once caused city officials to temporarily turn a public park into a staging area until they could find housing for these immigrants in local hotels, after shelters quickly ran out of space.

The influx of immigrants is seemingly endless, with most of them turning themselves in to Border Patrol and seeking asylum. In one 24-hour period, Border Patrol agents apprehended over 1,000 migrants in the McAllen area, most of whom were traveling in groups consisting of 200 or 300 people. Peek & Toland dedicates a large part of its practice to helping both individuals and businesses resolve their immigration-related issues. Immigration law is a complex, ever-changing area of the law that necessitates legal advice from experienced immigration lawyers who keep up-to-date with all relevant changes in law and policy. We will work with you to achieve the most positive outcome possible in your situation. Call our office today and set up a consultation with our skilled immigration attorneys today.

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