What is a Writ of Habeas Corpus?

By Peek & Toland on October 14, 2018

Historically, habeas corpus referred to a constitutional remedy designed to prevent the government from illegally detaining citizens. Now, however, habeas corpus refers to the legal process by which an individual who has been convicted of a crime attempt to overturn his or her conviction based on a state or federal constitutional violation. There is no requirement that the individual be incarcerated; the individual may be on probation or simply challenging a final conviction due to its ability to enhance sentences for further convictions.

What is a Writ of Habeas Corpus?

There are no deadlines for filing an application for a writ of habeas corpus in state court, unlike a direct appeal, which must be filed within 30 days of an individual’s sentencing order. However, if you are filing for habeas corpus in federal court, you must file the application in the proper U.S. District Court within one year of your conviction date. Unlike a direct appeal, a court can consider information that is not a part of the original court records relating to the conviction. As a result, newly discovered evidence often is the basis of an application for writ of habeas corpus.

One of the most common reasons for seeking a writ of habeas corpus is ineffective assistance of counsel. The allegations in this type of claim usually involve the defense attorney’s failure to take some action, properly advise his or her client of certain consequences of a plea bargain, or sufficiently investigate the circumstances surrounding the incident that led to the criminal conviction.

Another common basis for a writ of habeas corpus is an involuntary plea. In this situation, an individual might allege that he or she only signed a plea agreement because the defense lawyer indicated that he or she would receive probation, but the judge ordered a prison sentence instead.

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 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 criminal defense attorneys today.

Houston Officials Push Back on Proposed Child Immigrant Detention Center

By Peek & Toland on October 13, 2018

While one state senator recently has claimed that a detention facility for unaccompanied immigrant children will be opening soon, Houston city officials have pushed back, saying that the facility does not have the proper permits in order to open and operate. The proposed facility would be housed in a building that previously has been used as a homeless shelter and an emergency shelter for hurricane evacuees.

Houston Mayor Sylvester Turner and other community and city officials have voiced their opposition to the project since plans for it were announced in June. The facility originally was proposed to house children who had been forcibly separated from their parents by immigration officials; the federal government now has ceased implementation of the policy that separated immigrant parents and children.


Houston Officials Push Back on Proposed Child Immigrant Detention Center

Although Southwest Key Programs, a non-profit organization, had procured a permit from the city of Houston to shelter immigrant children, city officials said, since the facility now would be used to detain, rather than shelter, immigrant children, the organization would have to apply for a new permit. The organization still would have to obtain other city permits, as well, such as a permit to serve food to occupants of the facility. Additionally, the organization has not yet obtained the state permit necessary for it to operate.

Southwest Key Programs has received as much as $955 billion in federal funds since 2015 to provide shelters and other services for migrant children in the custody of the federal government. With the federal government’s increasing crackdown on illegal immigration has spurred Southwest Key Programs to expand its existing facilities and open more facilities, local government officials, like those in Houston, have been highly critical of these plans.

No matter the type of immigration issue you are facing, the skilled and knowledgeable immigration lawyers of Peek & Toland are here to assist you. We handle many different types of immigration cases on a daily basis 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 legal issue arises, we will have the best opportunity to successfully resolve your immigration law case.

False Accusations of Domestic Violence

By Peek & Toland on October 12, 2018

False accusations of domestic violence may arise in a variety of situations. One common situation where false accusations might occur in where parents are embroiled in child custody proceedings; one parent makes allegations of violence against the other in hopes of winning the custody case. Similarly, when one individual starts to move on after a bad break-up, the other individual may seek to get back at or get even with him or her by alleging domestic violence in their relationship. Whatever the case may be, however, the consequences of a domestic violence conviction are very harsh and can continue to impact your life for years to come.


False Accusations of Domestic Violence

Domestic violence charges involve individuals with certain household and family relationships. An incident of domestic violence may occur when an individual takes any action intended to cause bodily injury to another, or who makes a threat that would reasonably put another in fear of imminent physical harm or assault, with respect to an individual who falls within one of the specified relationships. Intentional physical contact with others that would reasonably be taken as provocative or offensive also can constitute domestic violence. These relationships include family members by blood, adoption, or marriage, household members, individuals who share children, and individuals who formerly or currently are in a dating relationship.

The potential penalties for domestic violence charges are severe and life-altering. Many domestic violence crimes are prosecuted as felonies, which can result in significant prison terms upon conviction. Multiple convictions for domestic violence misdemeanor offenses also can result in subsequent charges being filed as felonies. If the domestic violence incident results in serious bodily injury or involves a deadly weapon, the level of the felony charge rises substantially, and individuals could be looking at many years in prison, not to mention fines, an inability to carry a firearm under federal law, difficulty finding jobs, and even a loss of access to one’s own children in some cases.

When you are charged with any type of criminal offense in the state of Texas, including domestic violence charges you need an experienced criminal defense attorney to represent your interests from the very beginning of your case. We are here to evaluate the facts surrounding your case, present your options, and provide you with the strongest defense possible. Contact Peek & Toland at (512) 474-4445 today and set up an appointment to speak with our legal team.

When Drug Charges Result in Civil Forfeiture Actions

By Peek & Toland on October 11, 2018

Civil forfeiture is a procedure used by law enforcement officials and prosecutors at both the state and federal levels to take and keep individuals’ private property that has a link to criminal activity in some way. Texas Code of Criminal Procedure § 59.03 et seq. authorizes seizure and forfeiture actions. Civil forfeiture often is used in cases involving drug charges, where the property seized might be large sums of cash (proceeds of the sales of drugs), guns (used in drug-related crimes), and vehicles (used to transport drugs).

The most crucial part of civil forfeiture proceedings is to file an answer to any notice of civil forfeiture action prior to the Monday after 20 days have passed since the forfeiture. If you fail to make a claim to the property within this deadline, then the government automatically gets to keep the property.

When Drug Charges Result in Civil Forfeiture Actions

Typically, the government attempts to subject property to forfeiture either because it constitutes proceeds from a crime or is something used in the facilitation of a crime. Under Texas law, the government must prove the connection between the property and the crime by a preponderance of the evidence, which is a higher standard than the probable cause that law enforcement officials likely used to get a warrant or to justify seizing the property.

You don’t have to be convicted of a drug offense or another type of criminal offense in order to have your property seized and forfeited. In fact, you don’t have to be arrested or charged with the crime. This is also the case if the charges against you are dismissed or you win the criminal case at trial. Regardless of the disposition of the underlying crime, civil forfeiture still can occur with respect to any property that prosecutors allege is related to criminal activity.

An experienced Texas drug defense attorney can help you build a strong defense against your criminal charges, as well as help you handle civil forfeiture actions that may arise from drug charges. Taking steps to get you released from jail and fight for your rights at the beginning of your case is typically easier than waiting until your case may be too far gone to fix. Contact Peek & Toland at (512) 474-4445 today and see how we can help.

What’s a Grand Jury?

By Peek & Toland on October 10, 2018

A grand jury is a 12-person panel of randomly-chosen individuals from the registered voters in the county in which a court presides. This is not the same type of jury that hears evidence and decides guilt or innocence in a criminal trial. The purpose of a grand jury is to decide whether there is probable cause that an individual committed a certain crime sufficient to proceed with felony criminal charges against that person for the crime. If the jury determines that probable cause exists, then they vote for an indictment, or a formal accusation of a crime. This means that the District Attorney will proceed with the prosecution of the case. On the other hand, if the jury determines that there is not probable cause, then they will vote for a no-bill, or no bill of indictment. In this situation, the District Attorney will dismiss the case and there will be no prosecution.


What’s a Grand Jury?

Grand jury proceedings are held in secret. The defendant, or the person who is accused of the crime, and his or her attorney are not permitted to be present during the grand jury proceedings unless the District Attorney allows the defendant to testify or make a written submission of evidence related to the case. The District Attorney explains the charges that they are seeking against the defendant, ensures that they understand the elements of the crime involved, and gives a brief run-down of the facts of the case and the evidence in support of probable cause.

To serve as a grand juror, you cannot have pending criminal charges and you cannot have a past conviction for a felony or any misdemeanor that involves moral turpitude. Grand jurors usually serve a term of about three months, during which they come to the courthouse for a couple of days each week to consider probable cause in various criminal cases.

The Peek & Toland criminal defense lawyers are here to assist you in building a strong defense against your criminal charges, no matter the circumstances. Trust us to represent your interests and advise you of the best course of action in defending your case. Set up an appointment to talk to us today and discover how we can assist you with your immigration matter.

Texas Business Organizations File Brief Opposing Texas Efforts to End DACA

By Peek & Toland on October 9, 2018

Texas officials and government officials from six other states filed a federal court lawsuit earlier this year seeking an immediate end to the Deferred Action for Childhood Immigrants (DACA) program, even as other lawsuits aimed at keeping the program going are waged in other states. In a nearly unprecedented move, seven chambers of commerce based in Texas, two business consortiums, and four prominent companies, including Southwest Airlines and United Airlines, filed a brief in the federal lawsuit requesting the court reject Texas Attorney General Ken Paxton’s bid to cease and dismantle DACA.

The businesses and organizations representing Texas businesses claim in their brief that terminating the DACA program would significantly impair their business operations, deprive them of expert workers, and cost the state to lose thousands of jobs and millions of dollars in revenue. More specifically, the businesses allege that termination of the DACA program would cost $6 billion in losses to the state’s gross domestic product each year, with at least $2 billion of those losses from the Houston area alone. Furthermore, the business organizations also estimate that if the DACA program ends, the U.S. will lose as much as $460 billion of its gross domestic product.


Texas Business Organizations File Brief Opposing Texas Efforts to End DACA

Some estimate that as many as 126,000 Texas residents would face deportation if the court orders the cessation of DACA. These residents are expected to pay about $244.7 million in Texas state taxes in 2017. Texas Dreamers, according to the brief, are critical first responders, such as police officers, firefighters, and emergency healthcare personnel, public school teachers, and hospital personnel, including lab technicians, nurses, and pharmacists.

Perhaps more importantly from a legal perspective, the businesses point out in their brief that Texas and the other states waited six years before taking any action to challenge the DACA program in court, which they consider to be an unreasonable delay. Since Texas is seeking an injunction to stop DACA, which is an equitable remedy, its long delay in taking action could constitute laches, a legal doctrine that bars legal action if plaintiff sit on their rights and fail to exercise them for an unreasonable length of time before proceeding.

The immigration lawyers of Peek & Toland have the experience and knowledge that are necessary to represent your interests when you are facing immigration court proceedings or any type of immigration law issue. We are here to gather evidence on your behalf, build a strong defense in your case, and develop the best strategy for achieving your goals. Take the first step by contacting us today and learning what we can to help.

What Documents Do I Need to Apply for a Visa?

By Peek & Toland on October 8, 2018

There are various steps to the visa process, some of which you must complete, and some of which your sponsoring family member or employer must complete. After your family member or employer sponsor submits a petition on your behalf and U.S. Citizenship and Immigration Services (USCIS) approves that petition, you must complete pre-processing of your immigrant visa application through the National Visa Center. You then will complete an Application for Immigrant Visa and Alien Registration (Form DS-260), which requires very detailed information about you and your family. After completing Form DS-260, you must print the confirmation page and bring it with you to your visa interview.

In many cases, whomever is petitioning on your behalf must provide an affidavit of financial support, along with supporting documents, showing that they can financially support you if necessary. These documents may include their most recent IRS tax transcript from the most recent year, evidence of income, such as an employment letter or paycheck stub, retirement benefits statement, or evidence of self-employment. Your sponsor also may need to provide proof of their relationship to you, such as birth, marriage, or adoption certificates, most recent federal income tax return, or a written statement of relationship. Other documents that may be required include the most recent Social Security Administration earnings statement, proof of domicile, proof of U.S. status, and proof of assets.

What Documents Do I Need to Apply for a Visa?

There are a variety of other documents that you may need to submit to obtain a visa, depending on your situation. As a general rule, you must send photocopies of these documents to the NVC, and bring both an original and a photocopy of these documents with you to your visa interview. These documents may include:

·         Certified adoption decree, custody decree prior to adoption, and a statement of where and when the child resided with the adoptive parents

·         Original birth certificate

·         Certified copy of each court and prison record if you have been convicted of a crime

·         Original marriage certificate

·         Certified final divorce decrees, death certificates, or annulment decrees from any previous marriages

·         Military records

·         Petitioner’s birth certificate and if your petitioning spouse was previously married, certified final divorce decrees, death certificates, or annulment decrees from any previous marriages

·         Biographic data page of a currently valid passport

·         Police certificates for every country you lived in for six or 12 months, depending on the situation, if you are over the age of 16, or if you ever have been arrested

When you go to your visa interview, you will need to bring the original and certified copies of any required documents, as well as a form certifying that you have had a medical examination and vaccinations by an approved physician. Any documents that are not in English must be translated and certified by a competent translator. You also must bring:

·         Your interview appointment letter from the NVC

·         Your unexpired passport that is valid for six months beyond your intended date of entry into the U.S. and a photocopy of your biographic data page from the passport

·         Two color passport photos

·         Medical examination form if provided to you by the physician

·         Confirmation page from Form DS-260

·         If you are seeking an employment-based visa, a letter from your employer dated within the last month that details your job offer

·         If you are seeking a family-based visa, a signed affidavit of support by your petitioning family member and their required financial documents

At Peek & Toland, we care about keeping your family together, whether that involves helping you apply for the appropriate visa or another immigration-related matter. We will focus all of our efforts on standing up for your rights and representing your interests as you seek to enter or remain in the U.S. Our knowledgeable immigration lawyers know the best strategies for gathering evidence to support your case and navigating the complex rules of the U.S. immigration system. Allow us to handle your immigration case by sitting down with us today and discussing your case.

Bonds in Immigration Court Skyrocket

By Peek & Toland on October 7, 2018

According to a new report by TRAC, a non-profit data research center housed at Syracuse University, bonds set by immigration courts nationwide in FY 2018 thus far have averaged $7,500. This is a 50% increase from the average bond five years ago, which was $5,000. About 40% of those immigrants who were allowed to post a bond and be released paid over $10,000. Only one in 20 of those individuals were permitted to post a bond that was less than $2,500.

The rate at which immigration courts granted bond and the amounts of those bonds also varied substantially according to the particular immigration court. The highest median bond amounts were set by immigration courts in Tacoma, Washington, and Hartford, Connecticut. Similarly, while one immigration court granted bond in only one out of six cases, in other locations, about 75% of bond motions were granted. To illustrate the extreme differences in grant rates and bond amounts, the study noted that the Imperial, California immigration court granted three out of four bond motions, but had a median bond rate of $12,000, which represented the fourth highest median bond rate in the country. In contrast, the immigration court in Charlotte, North Carolina, granted only 17.8% of bond motions, with a median bond rate of $8,000.

Bonds in Immigration Court Skyrocket

To a large degree, according to some immigration advocates, the decisions on whether to grant bond and the rate of the bond appear to be completely arbitrary. One immigration lawyer noted that in the Tacoma, Washington immigration court, the judge denied bond for one woman, deeming her a flight risk, but granted bond in nearly identical cases based on evidence that was substantially the same as the first case.

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.

What to Do When Your Conditional Status is About to Expire

By Peek & Toland on October 6, 2018

A conditional permanent resident is an individual who receives a green card that is valid only for two years. In order to maintain status as a permanent resident, you must file a petition to remove the condition during the 90 days prior to the expiration of the green card. Otherwise, you will lose status as a permanent resident.

You typically are a conditional permanent resident in two different situations:

·         Your permanent residence is based on a marriage that is less than two years old.

·         Your permanent residence is based on an investment that you made as an entrepreneur in a new commercial enterprise.

In either case, you must file a petition to remove the condition from your residency before your green card expires. If you do not apply before your green card expires, you can file the necessary petition late if you can prove that you had good cause for failing to file it on time and U.S. Citizenship and Immigration Services (USCIS) exercises its discretion to accept your petition.

What to Do When Your Conditional Status is About to Expire

To remove the condition from your green card based on marriage, you must fall into one of the following categories:

·         You still are married to the same U.S. citizen or permanent resident spouse after two years.

·         You are a child who cannot be included on your parents’ application for a valid reason.

·         You are a widow or widower who entered into your marriage in good faith.

·         You entered into your marriage in good faith, but the marriage ended through divorce or annulment.

·         You entered into your marriage in good faith, but either you or your child were battered or subjected to extreme cruelty by your U.S. citizen or permanent resident spouse.

To remove the condition from your green card based on investment/entrepreneurship, you must show the following:

·         Evidence that you invested or are actively in the process of investing the required capital.

·         Evidence that you sustained your investment in the new commercial enterprise throughout the period of your conditional residence.

·         Evidence that your investment created or can be expected to create, within a reasonable amount of time, 10 full-time jobs for qualifying employees.

When you or a loved one is facing an immigration law problem, you need legal advice and counsel from experienced Texas immigration attorneys. At Peek & Toland, we are here to help you with your immigration case. We will devote all of our efforts to representing your interests, answering your questions, and calming your concerns. Don’t hesitate to contact Peek & Toland and schedule a time to meet with us today. We can help protect your rights and get you the relief that you need.

Hate Crimes in Texas

By Peek & Toland on October 5, 2018

Under Texas law, the penalties for some crimes become more severe if the crimes are committed for the purposes of hate or intimidation or if they target a specific group of people based on their status. These criminal offenses are commonly referred to as hate crimes. If prosecutors determine that a criminal offense is a hate crime based on bias or discrimination, then it falls into a special classification that can result in enhanced penalties.

Whomever is the trier of fact in a case, either a judge or a jury, can make the affirmative finding required for this penalty enhancement to a crime under Texas Code of Criminal Procedure Sec. 42.014. The trier of fact must determine beyond a reasonable doubt that the defendant intentionally selected the individual against whom he or she committed the crime or intentionally selected the individual’s property that was damaged or affected, based on the defendant’s bias or prejudice against a group identified by race, color, disability, religion, national origin or ancestry, age, gender, or sexual preference.

Hate Crimes in Texas

Some types of criminal offenses that may be classified as hate crimes include: murder, assault, arson, harassment, stalking, and vandalism. Hate crimes tend to be violent in nature. They may target one particular individual or a general group of people with a certain characteristic, such as race, ethnicity, religion, sexual orientation, political affiliation, gender, age, or disability.

Texas Penal Code Sec. 12.47 provides for enhanced penalties for any criminal offense that is committed because of bias or prejudice. If there is an affirmative finding pursuant to Texas Code of Criminal Procedure Sec. 42.014 made during trial of any criminal offense other than a first-degree felony or a Class A misdemeanor, then the punishment for the offense increases to the punishment prescribed for the next highest category of offense. If the offense is Class A misdemeanor and such a finding is made, then the minimum sentence of incarceration increases to 180 days.

At Peek & Toland, we are dedicated to protecting your rights and defending you from hate crime charges and any other criminal charges that you  may be facing. We are here to investigate the facts surrounding your case, consider your options, and help you develop the strategy that is best designed to achieve a successful outcome in your case. Do not waste time attempting to handle legal matters on your own; contact our office as soon as you are charged with a criminal offense so that we can provide you with the help that we need.

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