Criminal Defense

Examples That Do Not Justify the Use of Force as Self-Defense in Texas

By Peek & Toland on August 6, 2020

1. Consent to an activity 

You consent to an activity, and it’s agreed upon that people are going to use force upon one another. For example, boxing, football, and soccer, but it has to follow the rules of the game. If you consent to that, you can’t justify getting hit, and then argue self-defense when you hit someone back.

2. Resisting Lawful Arrest 

Even if the arrest turns out to be a mistake, that sounds counterintuitive, but let’s say the police come and arrest John Smith. And it turns out that you’re John Edward Smith, and you’re not the same person. Still, if the police come and arrest you peacefully without using excessive force upon you, you can’t resist arrest, use force, hit the police officer, and justify your actions through self-defense. 

3. Words Alone 

Words alone can never be enough to justify you using physical force upon another person. As a general rule, if you’re out in public, words alone aren’t enough to warrant you using force on the other person. 

4. If you are the one that provokes the situation

You can never justify self-defense when you’re the person that provoked the situation. You can’t create a situation that justifies you using force on someone. For example, let’s say you pick a fight with your arch enemy using words, and the conflict escalates to physical interaction. Well, if you started the situation, you can’t use self-defense later.

As we continue our discussion, we’re going to talk about defensive third parties and the use of deadly force defending yourself, defending yourself at your home, car, or your workplace. Texas has some particular examples of the castle doctrine. We’re going to dive into that in the next couple of series here on In Your Defense. Stay tuned. 

We encourage you to reach out to attorney Steve Toland if you have any questions about defenses of property, defenses of self, or any justification defenses. 

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4Rules to Justify Self-Defense in Texas | In Your Defense Series

By Peek & Toland on July 24, 2020

Welcome to In Your Defense. Attorney Steve Toland discusses rules to justify self-defense and goes over examples that do not justify the use of force as self-defense in Texas. 

4 Rules to Justify Self-Defense in Texas

First, you need to remember that Texas is a stand your ground state. You can stand your ground as long as you’re not the primary aggressor.

There are four rules you would need to follow to justify using force against someone else if you’re defending yourself. 

  1. You have to be reasonable in your belief that it must be immediately necessary to exact force upon another person.
  2. You’re only allowed to use the reasonable amount of force needed to stop whatever that person’s doing to you. You have to balance your response proportionately. 
  3. You have to be in a legal position. You can’t be breaking the law when you try and then justify your use of force on somebody else. 
  4. You cannot be the instigator.

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Expunctions: What is it? Who Qualifies? and How Can It Help an Immigration Case?

By Peek & Toland on July 15, 2020

Welcome to Immigration Wednesdays. Attorney Jeff Peek briefly explains expunctions, who’s eligible, the process, and the benefits. 

What is it?

It’s a process in the state of Texas whereby one charged with a criminal case, whether it be DWI, misdemeanor, or felony, had that case either dismissed or found not guilty, can then erase it in all records. Records include physical state, paper files, computer, digital, and online so that it doesn’t appear anywhere. 

Process & Eligibility  

First of all, this is in the state of Texas. If arrested in another state, check with lawyers in that state because each state has a very different way of handling expunctions. In Texas, you must have either had the case dismissed or be found, not guilty at trial.


There are different types of dismissals. In lawyer language, it’s called a straight dismissal, meaning there was no reduction of charges. There was no lesser punishment involved, and the charges are dropped. For example, if you were charged with DWI and they agreed to dismiss the DWI, but then you had to plead to reckless driving or obstruction of a passageway, you would not be able to expunge the DWI because you ended up taking a plea deal and punishment on a lesser case.

Sometimes, you find cases where somebody’s charged with a misdemeanor or felony, and they drop it down to a different level, and it’s dismissed at that lower level. For instance, you have a felony dropped down to a misdemeanor. Still, then you’ve got a deferred prosecution on the misdemeanor, or they dropped it down to a class C ticket, and you got a deferred disposition on the class you ticket that also ended up in dismissal. In some of those cases, you could still be eligible to expunge it. 

Found Not Guilty at Trial

If you go to trial, whether in front of a jury or a judge and you’re found not guilty, you’re also eligible to having expunction and even better. You don’t have to pay the filing fees for that.

What if you have completed probation, are you eligible for expungement? No. What if you finished a jail sentence and it’s been more than ten years, are you eligible for expungement? No. It’s very limited to those two classes. And again, if you have a diversification, there’s another process. 


Secondly, why would you want to do it? There’s a lot of reasons. Here are some examples:

  1. Employers have access to criminal records. They may see that you were arrested, and they may not like the fact that you have a record. Even if you got off on the case. 
  2.  You don’t want your partner or their family to see your record
  3. You want to apply for law enforcement
  4. You want to go to advance your career 

Benefits for Immigrants 

There are also two crucial reasons from an immigration side. For example, there are programs now, in central Texas and other many other counties, where you can enter what is called a Deferred Prosecution Agreement, or sometimes it’s called a Pretrial Diversion Agreement or Drug Courts. These various programs allow you to dismiss the case once you have completed all of their requirements. Sometimes they dismiss it on the front end, sometimes in the back end, but it’s a valid dismissal that your eligible do expunge. For immigration law, USCIS has begun to question whether that dismissal is an actual dismissal. And they’ve said, “No, that’s not a true dismissal, you admitted to doing the crime?” When you sign that Deferred Prosecution, you confessed statements. When you participated in that Pretrial Diversion Program or that Drug Court, you went in front of a judge and admitted that you did those activities. You took responsibility, immigration saying that’s not a dismissal. USCIS is going to count that as a conviction. Even if your paperwork shows “dismissal,” USCIS will argue that those programs require a confession or knowledge of responsibility. Therefore, you are guilty of those charges.

So, it’s vital to dismiss charges that they are entirely removed from your record to avoid running into this issue with the USCIS. 

If you are an immigrant or somebody with permanent residency, and you are in that situation, definitely talk to a lawyer who knows both criminal offense and immigration law.

If you have any questions about expunctions and the process, please call Peek & Toland Law Firm at 512-474-4445, we’d be happy to help. 

Posted in Criminal Defense, DWI, Immigration

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What is a SCRAM Device?

By Jeanine Stone on November 10, 2019

A SCRAM device or a Secure Continuous Remote Alcohol Monitor is an electronic device that allows courts to monitor your alcohol intake continually without requiring you to undergo testing. The SCRAM devices also contain a sensor that can detect any attempts you make to tamper with the device and transmits the information to law enforcement authorities.

If you are ordered to wear a SCRAM device, the provider will fit you with a tamperproof ankle bracelet consisting of two boxes. One box measures your blood alcohol content (BAC), while the other box stores the data and transmits it to the law enforcement personnel who must monitor your alcohol intake. BAC measurements occur every hour when you are wearing a SCRAM device. If the device detects any alcohol in your system, it then will measure your BAC every 30 minutes.

SCRAM devices are susceptible to errors, as they measure BAC through the alcohol content of perspiration emitted through the skin. As a result, SCRAM measurements may be less reliable than blood tests to measure BAC.

What is a SCRAM Device?

Courts can order you to wear a SCRAM device if you are released from jail on bond while awaiting criminal charges. SCRAM devices also may be a condition of your probation following a criminal conviction. In some cases, courts order individuals to wear SCRAM devices instead of serving time in jail. Courts typically use SCRAM devices when you are charged with or have been convicted of an alcohol-related criminal offense.

Wearing a SCRAM device can be costly when you must wear it for a lengthy period. You typically must pay a refundable deposit, a one-time fitting fee, and a weekly maintenance fee. In most cases, you must pay all these fees up front.

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.

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Is Eyewitness Testimony Reliable?

By Peek & Toland on September 21, 2019

The number of incarcerated individuals who later are freed due to DNA evidence proving their innocence has cast a great deal of doubt on the reliability of eyewitness testimony. Especially in sexual assault cases, eyewitness testimony often proves to be false. Nonetheless, police and prosecutors, including those in the state of Texas, continue to rely on discredited identification procedures in prosecuting criminal cases today.

In many of these cases, there is no genetic evidence, so it is impossible to tell how many cases have resulted in erroneous convictions based on eyewitness testimony. For instance, in robbery cases, eyewitness testimony often operates as the primary means of evidence, even though significant doubt underlies these witness identifications and corroborating evidence is non-existent.

Various factors may make eyewitness identifications less reliable. These factors may include:

  • Victims often getting on a brief look at their attackers
  • Victims focusing on a gun or weapon rather than the face of the person holding it
  • Stress can distort the memory of crime victims
  • Research shows that identifying strangers and people of different races is often difficult

Nonetheless, eyewitness testimony is a top reason why juries convict accused persons of crimes, second only to DNA test results. As a result, law enforcement officials continue to use it as a primary source of evidence, even when conflicting evidence exists. Texas law also permits criminal convictions based on a single uncorroborated eyewitness.

Although many police departments have written policies on how to best conduct lineups, there tends to be little oversight of these policies, at least according to one recent report. Nonetheless, some strides towards improving this form of evidence are occurring. Police in some departments are recording all eyewitness identifications. A police officer unrelated to the case conducts the lineup or photo array. Police officers also must show the witness one picture at a time, rather than six pictures all at once. Plus, the photographs must all be in color, or all in black and white, or all photocopies, so long as they are the same.

Is Eyewitness Testimony Reliable?

All too often, police have eyewitnesses identify suspects from photo arrays and lineups. This practice occurs even when the witnesses have not been able to give any specific details about the person.  Likewise, when an eyewitness omits a distinct characteristic in describing the suspect but later identifies a person based on that characteristic, the identification may be inaccurate. Police also may fail to use best practices in conducting a lineup, such as by allowing two witnesses to identify someone from a lineup at the same time.

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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Defining Proof Beyond a Reasonable Doubt

By Peek & Toland on June 14, 2019

To convict anyone of a criminal charge, the state must prove that the person is guilty beyond a reasonable doubt. This is the highest legal burden of proof available. The purpose of this required burden of proof is to help ensure that people who are innocent of crimes do not go to jail.

Under this burden of proof, a jury must presume that all persons are innocent, even if they have been arrested and even if they are charged with a crime. The state has the responsibility of proving each element of the criminal offense beyond a reasonable doubt.

In comparison, other legal standards of proof are far easier to reach. For instance, police only must have a “reasonable suspicion” that someone has committed a crime in order to stop or detain that person for a crime. This simply means that the police officer has articulable facts to support a reasonable assumption that a person has committed a crime.

Defining Proof Beyond a Reasonable Doubt

The next higher legal burden of proof is probable cause. Once a police officer has stopped a driver based on reasonable suspicion, for example, the officer then must have probable cause to arrest the driver for a crime. To establish probable cause, the officer must have sufficiently trustworthy or reliable facts to indicate that a crime has been committed.

Another higher burden of proof than either reasonable suspicion or probable cause is preponderance of the evidence. The most typical use of this legal standard of proof is in civil court cases. The plaintiff must prove that it is “more likely than not” that defendant did something to harm them. In other words, if it is 51% or more likely that an event occurred, then the event occurred by a preponderance of the evidence.The final burden of proof leading up to the reasonable doubt standard is clear and convincing evidence. Although this is a high standard of proof, it still does not require as much evidence as the “beyond a reasonable doubt” standard. Clear and convincing evidence requires a strong conviction or belief that a certain event has occurred. If you or a family member is facing any type of 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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What is a Speedy Trial? Should I Ask for One?

By Peek & Toland on March 16, 2019

Both the U.S. and Texas Constitutions guarantee the right to a speedy trial for all individuals who are accused of committing a crime. As a result, if a defendant requests a speedy trial and the prosecution causes unjustified delays in the trial process, the defendant may be entitled to dismissal of the charges against him or her on constitutional grounds. The reality is, however, that an outright dismissal for failure to ensure a speedy trial is very rare. Courts historically have been very reluctant to dismiss criminal charges on this basis, which places a huge burden on the defendant in asserting deprivation of the right to a speedy trial.

Unfortunately, there is no standardized definition of what constitutes a speedy trial. As a practical matter, the time that elapses between an arrest and trial can be damaging to the cases of both the prosecution and the defense. The more time that goes by, the greater the damages may be. Evidence may vanish, witnesses may disappear, die, or forget their testimony, which can cause prejudice to the ability of the defendant to establish a strong defense at trial.

What is a Speedy Trial? Should I Ask for One?

The U.S. Supreme Court has identified four factors that courts must evaluate in a case where the defendant is alleging deprivation of his or her right to a speedy trial. These factors include:

• The length of time between arrest and trial
• The reasons for any delays
• Whether a defendant asked for a speedy trial in a timely fashion
• The prejudice to the defendant’s case as a result of the delay

No one factor is determinative; the court reviewing the case must weigh these factors equally on a case-by-case basis. The burden is on the defendant to prove that he or she timely asked for a speedy trial and did not receive a speedy trial, which prejudiced his or her rights or otherwise impaired the defense. The prosecution need only prove that any delays were justified.

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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Criminal Convictions Can Hinder Your Ability to Find Housing

By Peek & Toland on March 1, 2019

Many landlords conduct background checks before they agree to rent houses, condos, or apartments to individuals. Some landlords search only for certain criminal offenses, such as drug-related offense, whereas others look for any type of criminal conviction. Whether it is a misdemeanor or felony conviction, landlords may refuse to rent to individuals with criminal records. However, landlords who have such policies must prove that they have a legitimate, non-discriminatory reason for doing so. For instance, landlords may not refuse to rent to individuals with criminal records in a manner that is designed to exclude those individuals based on their race.

Criminal Convictions Can Hinder Your Ability to Find Housing

Furthermore, if you are convicted of sexually-based offense, you may be required to register as a sex offender. This mandatory registration has extensive collateral consequences, including some limits on where you can live. For individuals who are on probation, parole, or mandatory supervision for a sex offense, probation or parole officers may have to approve where you live. Restrictions on the location of your residence may also be part of your conditions of probation or parole. For example, if the victim of the sex offense was a minor, there also may be restrictions on you living in or visiting a residence that is within 500 feet of a child safety zone. These zones include schools, daycare facilities, parks, playgrounds, youth centers, and sports fields.

Additionally, law enforcement officials can and will notify neighbors within a certain neighborhood that you are now living in the area. This can lead to efforts by neighbors to drive you to move to another residence. Plus, neighborhood associations and landlords often make their own distinctions about restrictions on sex offenders. If landlords choose to refuse to rent to sex offenders, then they are within their rights to do so.

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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Supreme Court to hear case on DUI Forced Blood Draws

By Peek & Toland on January 9, 2013

The Supreme Court is set to hear oral arguments today on whether a police officer must obtain a warrant before forcing a DWI or DUI suspect to a blood draw. Under current law, the Supreme Court has found that police officers are usually required to obtain a warrant for intrusions into the body, like blood draws. However, the Supreme Court has also stated that there are certain exceptions to this rule, including exigent circumstances, or emergencies. The current case before the Supreme Court has questioned how broad the definition of exigent circumstance may be.

In the facts of the current case, Tyler McNeely was driving 56 mph in a 45 mph zone at 2:00 A.M. in Missouri. McNeely was pulled over and the arresting officer administered four field sobriety tests all of which McNeely failed. When requested to take a breathalyzer test, McNeely refused. The officer then took McNeely to the hospital for a blood draw, where he refused again. Although the officer had been able to obtain search warrants in the past without difficulty, the officer did not attempt to get a search warrant. The officer ordered the blood draw without a warrant. The blood draw results indicated that McNeely’s blood alcohol level was above the legal limit. McNeely was charged with driving while under the influence.

In court, the trial court threw out the blood test because it was obtained without a warrant. The Missouri Supreme Court agreed, citing that there were no events that indicated exigent circumstances to interfere with obtaining the warrant. The Missouri Supreme Court pointed out that there was no accident to investigate, no injury requiring medical attention, and a judge was on call to review a warrant application quickly. Thus, the Missouri Supreme Court determined under those circumstances there was no reason the officer should not have obtained a warrant from a suspect who refused a blood draw.

The State of Missouri appealed the Missouri Supreme Court holding arguing that alcohol dissipates in the bloodstream over time and that alone constitutes an emergency situation that justifies a forced blood draw. The State argues that the best evidence of the crime is the suspect’s blood and by delaying the process of the blood draw for the purpose of a search warrant, the Court is allowing the best evidence of the crime to dissipate and be destroyed.

However, the American Civil Liberties Union, who represents McNeely, argues that alcohol dissipates over a matter of hours and there was no emergency that would have interfered with obtaining a warrant quickly.

Today the Supreme Court will hear both arguments and weigh in on the definition of exigent circumstances.

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