Criminal Defense

DPS Crime Lab Backlog Exceeds 2,500 Cases

By Peek & Toland on January 23, 2020

The Texas Department of Public Safety (DPS) Director, Steven C. McCraw, recently acknowledged to the state House of Representatives Transportation Committee, which funds DPS, that the agency’s crime lab is unable to keep up with forensic evidence requests. The backlog is adversely affecting the proper functioning of the criminal justice system, as defendants linger in jail for months or even years awaiting test results. McCraw attributed the backlog to high rates of staff turnover and the length of time necessary to hire and train new staff, which can average about 18 months. For instance, McCraw pointed out that the Welasco crime lab had not been fully staffed in five years.

DPS Crime Lab Backlog Exceeds 2,500 Cases

DPS revealed that as of September 17, 2019, the Weslaco crime lab had over 2,650 unreleased evidence requests. Almost half of that total was unreleased biology and DNA requests. DNA test results are especially crucial to both prosecutors and defense attorneys in many criminal cases, as these results have the potential to prove guilt or innocence.

Currently, the average processing time for forensic biology testing is 218 days, and for DNA testing, 300 days. Firearms testing cases average 228 days, and fingerprint testing cases average 255 days. On the other hand, drug cases typically take 90 days to process. DPS does prioritize some cases, such as those that involve threats to public safety, high profile incidents, and situations in which defendants may be incarcerated for lengthy periods pending test results.

DPS has received just under 6,000 requests for evidence testing this year alone. The bulk of these tests involve toxicology and seized drugs. Still, DPS has released test results in over 6,000 cases this year, as well. If you or a family member is facing weapons charges or any other 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.

Posted in Criminal Defense

Are Assault and Battery Separate Criminal Charges in Texas?

By Peek & Toland on January 9, 2020

Historically, assault and battery were two different criminal offenses that involved very different actions. Assault occurred whenever individuals did something to place others in fear of imminent harm, such as making threats to harm them. On the other hand, battery involved intentional physical contact with others that injured them.

Tex. Pen. Code § 22.01, however, establishes the single criminal offense of assault, which combines elements of both traditional assault and battery. Under this code section, individuals commit the crime of assault when they:

  • Intentionally, knowingly, or recklessly cause bodily injury to others
  • Intentionally or knowingly threaten others with imminent bodily injury
  • Intentionally or knowingly cause physical harm to others
  • Intentionally or knowingly have reasonably offensive or provocative contact with others

Texas law provides for no separate criminal offense of battery. The only battery-like offense is contained within the crime of assault.

Are Assault and Battery Separate Criminal Charges in Texas?

Assault charges can range from a fine-only Class C misdemeanor charge to a felony of the first degree, depending on various factors. These factors include whether injuries occurred, the severity of any injuries, and the status of the victims. For instance, assault against a public servant in the course of carrying out his or her official duties will result in a more severe charge than an assault against others. Likewise, if the attack involves strangulation, the level of the charge also can increase.

Furthermore, aggravated assault charges may ensue under Tex. Pen. Code § 22.02 when individuals commit an assault that results in serious bodily injury or involves a deadly weapon. This offense is a second-degree felony, and it can become a first-degree felony in selected circumstances.

Assault and aggravated assault also are offenses that can arise in a domestic context, such as between spouses, family members, or significant others. Repeated assaults of a domestic nature can result in enhanced charges and penalties, depending on the situation.

At Peek & Toland, we care about helping you through your criminal proceedings. We will focus our efforts on advocating on your behalf and representing your interests throughout your case. Our knowledgeable criminal defense lawyers know the best strategies for defending you and working toward your desired objective. Allow us to handle your criminal case by sitting down with us today and discussing your situation.

Posted in Criminal Defense

What to Do Following an Arrest in Texas

By Peek & Toland on January 7, 2020

Being arrested often causes you to experience panic, fear, and stress in quick succession. As a result, you may not be thinking altogether clearly as you desperately try to explain yourself and your actions to police, in hopes of being released. As an experienced criminal defense lawyer can tell you, however, giving in to your panic and talking to the police is not advisable. It may lead to self-incrimination, which can make your defense to criminal charges far more damaging.

During the initial stages of your arrest, you should remain silent, beyond responding to fundamental questions about your identity. Trying to explain why you were at a specific location and what you were doing are strategies that are likely to give police more ammunition to use against you in a criminal prosecution. Your first and only question should concern your ability to call a lawyer to represent your interests. Even if you do not call an attorney initially, you should do so before you appear in court and enter a plea of guilty, not guilty, or no contest to the criminal charges that you are facing.

What to Do Following an Arrest in Texas

If you can post bail to gain your release following an arrest, you should take care to avoid any actions or statements that could cause you further problems. These actions include those that may incriminate you and those that could land you in more trouble with the law. While out on bail, you should resume your regular activities and avoid drawing attention to yourself, especially by avoiding any damaging social media posts.

Finally, you should make all efforts to work with your attorney to build a strong defense in your case. You should tell your lawyer the entire truth so that he or she can better handle your situation and defend your interests. When you hold information back from your lawyer, you can irreparably damage your defense, and that information often will come back to haunt you in the future.

Peek & Toland dedicates a large part of its practice to assisting individuals in resolving their criminal charges. We know that criminal proceedings can be intimidating and overwhelming for those who are facing potential penalties for criminal charges. We will work with you to achieve the most favorable outcome possible in your situation. Call our office today and set up a consultation with our skilled criminal defense attorneys today.

Posted in Criminal Defense

What is the Seven-Year Rule for Background Checks in Texas?

By Peek & Toland on January 2, 2020

Employers increasingly are conducting background checks on prospective employees when they apply for jobs. The reasons for background checks are simple: employers do not want to hire employees who may steal from them or might create some liability for them. For instance, suppose a daycare does not perform a background check on an applicant and hires the applicant to provide care to children directly. If the employee has a history of physical or sexual abuse against children and then causes harm to another child, the daycare could be civilly liable for not correctly conducting a background check before allowing the employee to work with children.

Generally, employers may conduct a background check using a credit report agency going back seven years for prospective employees. However, there are various exceptions to that rule. For example, if you are applying to a job with a salary of $75,000 or more, the employer can run a background check back to your 18th birthday. This same rule also applies when you apply to a job with an insurance company.

What is the Seven-Year Rule for Background Checks in Texas?

Furthermore, if you are applying to a job that requires residential delivery services or in-home services, the employer must conduct a select background check. This check must include 20 years of felony and ten years of misdemeanor criminal history for crimes of family violence, crimes against property, such as theft, or public indecency. The only exception is if the individual already is licensed by a state professional licensing agency that already has performed a criminal background check for the same reason.

Although few employers conduct background checks themselves, as most use a credit reporting agency, those that do perform background checks themselves have no limits on how far they look back into an applicant’s past. Therefore, while it may be unusual, a prospective employer does have the ability to look farther back into your past than the previous seven years.

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.

Posted in Criminal Defense

What is Voir Dire?

By Peek & Toland on December 26, 2019

Voir dire is one of the first procedural steps that occur when a criminal case goes to trial. During the voir dire process, the prosecutor and defense attorney directly interact with prospective jury members for the first time. In many cases, this process can leave potential jurors with lasting impressions about both the prosecution and the defense.

What is Voir Dire?

In any criminal case, the court may call 60 to 80 people to court for jury duty. The task during voir dire is for both the prosecutor and the defense attorney to have input into choosing a fair and impartial jury to hear the case. Each attorney has ten challenges for cause that they can use during voir dire to exclude prospective jurors from the case. Some of the most common difficulties for cause involve those potential jurors who:

  • Have been convicted of a misdemeanor theft offense or a felony offense
  • Are legally blind, deaf, or otherwise have a bodily or mental defect or disease that renders them unfit for jury service
  • Are prejudiced or biased against or in favor of the defendant
  • Have been involved in the case in some other way, such as a witness or grand juror member

Plus, some challenges for cause are unique to the prosecution and the defense. For instance, the prosecutor can challenge a prospective juror for cause if he or she is conscientiously opposed to the death penalty, and the case is a capital case in which the prosecutor is seeking the death penalty.

Additionally, each side has ten peremptory challenges during voir dire. When using these challenges to exclude prospective jurors, neither side is required to give a reason for excluding the juror. However, neither side can use peremptory challenges based on discriminatory factors, such as race or sex. If one side believes that the other has based a peremptory challenge on a discriminatory factor, then that attorney must object to preserve the issue in case of future appeals.

When you are facing any criminal charges in the state of Texas, you need an experienced criminal defense attorney to represent your interests. Contact Peek & Toland at (512) 474-4445 today and set up an appointment to speak with our legal team.

Posted in Criminal Defense

What Weapons Are Illegal in Texas?

By Peek & Toland on December 11, 2019

Although Texas has liberal gun laws compared to many other states, various weapons are illegal to possess, make, transport, sell, or repair under state law. Having any of these weapons in your possession can result in criminal charges that carry the potential for severe sanctions.

Under Tex. Pen. Code § 46.05, some of the weapons that Texas law makes illegal include:

  • Improvised explosive devices and explosive weapons
  • Machine guns
  • Short-barrel guns or firearms
  • Firearm silencers

Other illegal weapons include devices that dispense chemicals, armor piercing ammunition, zip guns or improvised firearms, and tire deflation devices that use spikes to puncture tires, such as spike strips. Brass knuckles were illegal weapons until just this year when the state legislature legalized them.

What Weapons Are Illegal in Texas?

Generally, possessing illegal weapons is a third-degree felony offense. A conviction for a third-degree felony can result in a prison sentence ranging from two to ten years and a fine of up to $10,000. Possession of a tire deflation device, however, is a state jail felony, which can cause a sentence of incarceration of six months to two years, plus a $10,000 fine.

State law also places restrictions on where you can carry or possess “location-restricted” knives. Adults and juveniles generally can possess knives that are not location-restricted, or with blades shorter than five and one-half inches, anywhere. However, the law prohibits individuals from possessing knives with blades that are longer than five and one-half inches in specific places. Although individuals can possess these knives at home, in their vehicles, and their boats, while walking to their cars, and for hunting and fishing purposes, they cannot possess them in some locations. These locations include courthouses, schools, and police stations, among others.

If you or a family member is facing weapons charges or any other 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.

Posted in Criminal Defense

Can a Prosecutor Use Text Messages as Evidence Against You in Court?

By Peek & Toland on December 9, 2019

Text messages often create a detailed written record of interactions, conversations, and incidents that occur between two people. If properly preserved, prosecutors may be able to use text messages as evidence in criminal prosecutions, depending on the circumstances.

Like all other forms of evidence, text messages are not automatically admissible in court. They must meet the standards of the rules of evidence. One of the requirements for evidence to be admissible in court is that there be proof that it is authentic. To be authentic, the person who is introducing the evidence to the court must be able to show that it is what he or she is claiming it to be. Authenticity is a common challenge to the admissibility of evidence in court.

Can a Prosecutor Use Text Messages as Evidence Against You in Court?

Generally, it is not enough for a witness for the state to testify that she knew that she received a text message from the defendant because it came from the defendant’s cell phone number. Since individuals easily can use phones that belong to others, merely receiving a message from a specific number is not enough to authenticate as being sent by the owner of the phone. Instead, individuals must be able to point to other direct or circumstantial evidence that proves the message came from a specific person.

Texas criminal courts consistently have used a liberal standard in determining whether a text message is authentic, or that it is what the witness identifies it to be. For instance, a witness might testify not only that he received a text message from the defendant’s number, but that the defendant identified himself in the message and called him in the middle of the text messages to tell him something specific. This evidence points to the conclusion that the defendant sent the text message to the witness.

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 and explore your options. We then can help you make the decisions that are mostly like to be beneficial to you, based on your situation. Contact Peek & Toland at (512) 474-4445 today and see how we can help.

Posted in Criminal Defense

Interfering with Emergency Calls in Texas

By Peek & Toland on November 27, 2019

Interfering with emergency request for assistance is a criminal offense under Texas law. Under Tex. Pen. Code § 42.062, individuals may not knowingly prevent or interfere with the ability of others to place an emergency call or request emergency assistance from:

  • A law enforcement agency
  • Medical facility
  • Any other agency whose primary purpose is to provide for the safety of individuals

This code section further defines emergency as any circumstances in which individuals are or reasonably believe that they are in fear of imminent assault or that property is in danger of damage or destruction.

This offense often arises in the context of domestic violence, in which one party is trying to call 911 or a law enforcement agency for help. For instance, if individuals take, conceal, or break a cell phone to prevent another party from calling 911, they may commit this offense. Likewise, if a person has called 911 and the other party takes the phone and hangs it up, they could face criminal charges for interfering with emergency request for assistance.

If an alleged victim of domestic violence or another offense claims that individuals interfered with their ability to call for emergency assistance, it likely will be one person’s word against another. As a result, these charges can be challenging to overcome.

Interfering with Emergency Calls in Texas

Any attempt to interfere with a request or call for emergency services can result in Class A misdemeanor charges. A conviction on a Class A misdemeanor offense can result in up to one year in the county jail and a maximum $4,000 fine.

A second conviction for interfering with an emergency call can result in state jail felony charges. The potential penalties for a state jail felony include a sentence of incarceration ranging from 180 days to two years, as well as up to $10,000 in fines.

At Peek & Toland, we care about helping you through your criminal proceedings. We will focus our efforts on advocating on your behalf and representing your interests throughout your case. Our knowledgeable criminal defense lawyers know the best strategies for defending you and working toward your desired objective. Allow us to handle your criminal case by sitting down with us today and discussing your situation.

Posted in Criminal Defense

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What is Curtilage and Why Does It Matter?

By Peek & Toland on November 25, 2019

Curtilage refers to the area around your home, including yards, patios, and porches. Generally, the curtilage is an extension of your home, which makes it off limits to police officers wishing to search in these areas. Since you have a reasonable expectation of privacy in these areas, officers may not conduct a search in them without first getting a search warrant signed by a judge.

However, there are exceptions to this general rule. If officers are legally present in those areas, they are free to observe illegal activities and act accordingly. For instance, if police are responding to a 911 call, they are present on official police business and can take reasonable steps to locate the property owner or the person who called 911 for assistance.

Police also legally can look at what is in plain view in your backyard, such as if it is surrounded by a chain link fence or no fence at all. Likewise, if there is a pathway leading to an open gate to the back yard, then police may be able to follow the open pathway if no one answers the front door of the home.

Furthermore, the airspace above your home and curtilage is generally open to the public. As a result, police theoretically could use a drone to view your backyard without intruding on your rights to a reasonable expectation of privacy.

What is Curtilage and Why Does It Matter?

If you install a tall wood privacy fence surrounding your backyard, then you are creating a reasonable expectation of privacy that officers cannot breach without a search warrant. In other words, the police would not be free to enter through a closed gate to enter the backyard.

You also have the right to tell police to leave your home or curtilage if they do not have a warrant. Certainly, they can return to your home or yard with a valid search warrant, but there is no reason that you should allow them to skirt the rules and violate your constitutional rights.

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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Can a Prospective Landlord See My Criminal Background?

By Peek & Toland on November 23, 2019

Anyone can access public criminal conviction records online through the Conviction Database, a repository of records maintained by the Texas Department of Public Safety (DPS). These records would contain all criminal convictions for a Class B misdemeanor or higher. The Texas Office of Court Administration also maintain some state and county-level court records.

Landlords are among the individuals and businesses who have the right to conduct background checks on prospective tenants. They need only your full name, birth date, and social security number to access any public criminal record information. Given the ease with which they can access this information, it should be no surprise that many landlords regularly utilize background checks to screen out potential tenants.

Can a Prospective Landlord See My Criminal Background?

However, landlords will not have access to private criminal records. Perhaps the best example of a private criminal record are criminal records of juvenile offenders, which are sealed and off-limits to the public.

Nonetheless, landlords are not allowed to automatically reject rental applicants with a criminal history or advise them to not bother applying. Taking a blanket approach to deny rental housing to all individuals with a criminal background can violate the Fair Housing Act. Instead, a landlord rejecting prospective tenants based on criminal background must give the individuals notice orally, electronically, or in writing. Landlord also must give the applicants contact information for the company that ran the background check, notice of their right to fix any errors on their report, and give them a free copy of the background check report within 60 days.

Of course, the easiest ways to avoid having your rental applications rejected by landlords is to not have a criminal history in the first place. If you are able to avoid a criminal conviction, you may have a better chance of avoiding rejected rental applications.

When you are facing any criminal charges in the state of Texas, you need an experienced criminal defense attorney to represent your interests. Contact Peek & Toland at (512) 474-4445 today and set up an appointment to speak with our legal team.

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