Top 5 Mistakes People Make When Arrested in Dallas and Collin Counties

By Bo Kalabus
www.rosenthalwadas.com;
b.kalabus@rosenthalwadas.com
24-hour Jail Release: 214-402-4364

1) Talking

Usually immediately following an arrest comes an investigation. Remember always that a person charged with a crime has the right to remain silent. Giving an investigator details about the alleged crime may ultimately hurt their case for a variety of reasons. For example, due to the emotional nature of the event a person may say something they don’t necessarily mean that can hurt them in the long run for being taken out of context, or the person may admit to something that they did not do. Not matter how much a person thinks-“I got this” they don’t.

2) Not consulting with an attorney

Things will happen quickly in a criminal investigation. Having competent legal counsel by your side from the beginning will assure that the arrested person’s rights are protected and vital evidence is saved. For example, in a assault case, the arrested person might actually be the victim instead of the aggressor and the person can provide evidence of it in the form of injuries they sustained. A competent attorney will make sure those injuries are documented in photographs before they are healed.

3) Ignoring the case

Being arrested is a humiliating and horrible experience. But, you can’t sit by and think it will go away by itself. If left alone, the situation will worsen significantly because the District Attorney’s office will not ignore the case. The DA has an aggressive unit of prosecutors that will want to seek the highest punishment available against a person charged with AFV.  The prosecutor is playing with house money and they want to get a conviction. The longer a person waits the more rights and opportunities are lost. Before long, the person will have painted themselves into a corner with little or no options available.

4) Making a quick decision

As with any decision for a defendant involved in a criminal case, speed hurts. Usually rushing to get a bad memory behind you can be a very bad strategy for a criminal case. Attitudes regarding the arrest can change over time and usually the best outcomes occur deep into the defense of a case.

 

5) Don’t Panic

An arrest for any crime is an extremely traumatic event. A person has stress over concerns for their spouse, children, job, and anxiety from fear of the unknown. I understand this and will provide you with as many options for your case as we can under the circumstances.

Just What is Proof Beyond Reasonable Doubt in Texas?

214-402-4364 (24 hour jail release); 972-562-7549 (Office)

bo@kalabuslaw.com (email)

www.kalabuslaw.comwww.rosenthalwadas.com

By Bo Kalabus

In Texas, the government has the burden of proof in a criminal case.  What this means is the State of Texas has the burden to prove the Defendant’s guilt beyond a reasonable doubt.  You may wonder just what is the definition of proof beyond a reasonable doubt? Our legislature has not provided us with a definition. Proof beyond a reasonable doubt means whatever you believe it means, but is also the highest burden in the land.  This all makes very little sense without a background on what the burdens of proof are.

The lowest burden of proof in our justice system is reasonable suspicion. A police officer must have a reasonable suspicion a crime has been committed in order to stop/detain an individual.  Reasonable suspicion is defined as “articulable facts” for example like a person’s taillight is broken on their vehicle.

In order to arrest an individual, a police officer needs to hurdle the next legal burden called probable cause.  What probable cause means is the officer possesses sufficiently trustworthy facts to believe that a crime has been committed.  An example here is after stopping someone for speeding, the officer smells alcohol on the person’s breath and conducts field sobriety tests on the person—which they fail—and the officer arrests the person.

Preponderance of the evidence is the next level of proof and usually comes in to play in a civil lawsuit for money damages such as a car wreck case.  What’s interesting about preponderance of the evidence is this burden gives us a picture of the scale of proof because it is defined as 51%–just like this–if you can get the football across the 50 yard line on a football field you win the game.

This brings us to the second highest burden of proof is which is clear and convincing evidence.  Clear and convincing evidence is defined as a strong conviction or belief.  This is the burden that Child Protective Services has to meet to remove children from a household.  It’s also the burden a plaintiff has to meet in a civil action to be awarded punitive damages—damages that are levied against the other party purely as a punishment.

Most people would require a high degree of certainty before he or she would be willing to declare that a child should be removed from a family home. Proof beyond reasonable doubt in a criminal matter is even higher than that!  Remember there has to be “proof” beyond reasonable doubt.  Proof.  Proof is evidence and the government must have this evidence.

Perhaps our legislature will one day provide us with a definition of proof beyond reasonable doubt. Until that happens it remains undefined, yet it is the highest burden in the land.

Am I Eligible for Deferred Adjudication?

214-402-4364-Writ Bond Hotline
bo@kalabuslaw.com
www.rosenthalwadas.com
www.kalabuslaw.com
Office: 972-562-7549

It all depends on the offense charged and the individual’s criminal history. There are several offenses where individuals are barred by law from receiving deferred adjudication. The majority of these offenses involve intoxication crimes. Specifically statutorily offenses under chapter 49 of the Texas Penal Code which are DWI, boating while intoxicated, flying while intoxicated, intoxication manslaughter, etc. A defendant is eligible for deferred if he or she has been charged with most any other offense.

The next hurdle is whether the District Attorney (DA) will be willing to offer deferred. The prosecutor assigned to the case makes this decision on a case-by-case basis. Some of the factors the prosecutor will consider are: the defendant’s criminal history, the nature of the crime, was it a violent offense, was a deadly weapon involved, were there any injuries etc. An experienced attorney can help convince the prosecutor to offer deferred adjudication by exposing weaknesses in the prosecutor’s case.

Top Texas Court Rules Death Row Inmate Can’t Be Forcibly Medicated

214-402-4364-Writ Bond Hotline
bo@kalabuslaw.com
www.rosenthalwadas.com
www.kalabuslaw.com
Office: 972-562-7549

A very interesting ruling came down from the Texas Court of Criminal Appeals on Wednesday declaring that Steven Staley, a mentally ill death row inmate, cannot be forcibly medicated for the purpose of making him competent for execution; and without medication, the judges decided, he is not competent to be executed. Read the full story here.

Texas Legislature Cracks Down on Regulation of Internet Mugshot Publishers

214-402-4364-Writ Bond Hotline
bo@kalabuslaw.com
www.rosenthalwadas.com
www.kalabuslaw.com
Office: 972-562-7549

Starting September 1, 2013, there is new law regarding the publishing of mugshots and associated information on the Internet. The new “mugshot law” certainly highlights why you need to hire a competent lawyer to handle your expunction or nondisclosure to make sure the mugshot businesses remove your mugshot and booking information from the web. This is because the new law does not place the burden on the mugshot business to remove or correct any of your information–unless they receive notice from you first. Now, let’s go over a little background on how we got here.

images.jpegThe mugshot publishing industry is an Internet niche of private businesses that publish mugshots of individuals arrested by law enforcement agencies. This industry has exploded over the past few years. In fact, it has been reported that more than 60 new mugshot websites have been created in a two-year period ending in March 2013. As can be imagined, this growth has in turn spawned the Internet mugshot removal industry, which is a niche industry of businesses that charge a fee to have the mugshot removed from one or more websites.

The mugshots and the arrested individual’s information are published regardless of whether or not the person has been found guilty or not guilty of the crime they were arrested for. Because of this and that many of the online websites charge fees to remove mugshots and arrest profiles, the industry has become increasingly controversial. Some sites may remove information for free if the person is able to show proof that they were found not guilty, or that the charges were dropped. Typically sites will charge a fee regardless of the disposition of the case. This controversy has led some state legislatures to propose bills to regulate the industry.

Texas is one of those states enacting legislation on September 1, 2013 in an effort to regulate the websites and to provide relief to individuals that were found not guilty of the crimes they were accused of. During its 2013 legislative session, the Texas State Senate passed two bills regulating the businesses that publish mugshots and accept payment to remove the information. It now requires the business to publish a mailing address, e-mail address, or a fax number to allow people to contact the business. Any individual may contact the business disputing the accuracy of the information being published by the business. The business has 45 days to respond, in writing, about the dispute and the results of its investigation into the dispute. The bill also forbids these businesses from publishing the arrest records of anyone who has not been convicted and establishes a fine for those businesses that do so. And these fines add up if a person has had a criminal offense expunged or nondisclosed from their record and the business continues to publish the mugshot following notice of the expunction or nondisclosure to the tune of $500 a day. Also, if a person who prevails in a lawsuit against the business may recover court costs and attorney’s fees.

What If I Was Not Read My Miranda Rights?

214-402-4364-Writ Bond Hotline
By Bo Kalabus
bo@kalabuslaw.com
www.rosenthalwadas.com
www.kalabuslaw.com
Office: 972-562-7549

By far, the vast majority of questions I hear when I am talking to someone that has been charged with a crime concern Miranda rights. Or more specifically–“What if the police did not read me my rights?” As you can imagine, the answer varies with every factual situation and how the criminal investigation progressed. There are certain procedures that police officers are supposed to follow regarding Miranda rights. Below are some commonly asked questions regarding Miranda rights along with the when and how those rights are triggered:

Q. At what point are police supposed to read Miranda rights to an individual?

A. After a person has been officially taken into custody (detained by police), but before any interrogation takes place, police must inform the individual of their right to remain silent and to have an attorney present during questioning. A person is considered to be “in custody” anytime they are placed in an environment in which they do not believe they are free to leave. Example: Police can question witnesses at crime scenes without reading them their Miranda rights. If during the process, a witness implicates himself or herself in the crime during that questioning, their statements could be used against them later in court.

Q. Can a police officer question an individual without reading them their Miranda rights?

A. Yes. The Miranda warnings must be read only before questioning an individual who has been taken into custody.

Q. Can police arrest or detain an individual without reading them their Miranda rights?

A. Yes, but until the person has been informed of his or her Miranda rights, any statements made by them during interrogation may be ruled inadmissible in court.

Q. Does Miranda apply to all incriminating statements made to police?

A. No. Miranda does not apply to statements a person makes before they are arrested. Similarly, Miranda does not apply to statements made “spontaneously,” or to statements made after the Miranda warnings have been given.

Q. If you first say you don’t want a lawyer, can you still demand one during questioning?

A. Yes. A person being questioned by the police can terminate the interrogation at any time by asking for an attorney and stating that he or she declines to answer further questions until an attorney is present. However, any statements made up until that point during the interrogation may be used in court.

What are the Penalties of an Affirmative Finding of Family Violence?

By Bo Kalabus
bo@kalabuslaw.com
Office: 972-562-7549
Collin County 24-Hour Jail Release 214-402-4364
www.kalabuslaw.com
www.rosenthalwadas.com

An affirmative finding of family violence (AFV) on your record will drastically change your life. These types of cases should be taken seriously and defended aggressively considering the impact of a negative outcome can be incredibly far-reaching.

First, let’s start with what family violence is. Family violence as defined under the family code is “an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself.” Tex. Fam. Code § 71.004. In a criminal case, the AFV will be used as tool by the State to enhance an assault charge.

Second, let’s look at the consequences of family violence. Taking an AFV on your record will cut your rights as a U.S. citizen cut in half. Among the consequences of a first offense of an AFV are:

• You can never be named as the “managing conservator” of a child in any divorce action or action requiring the placement of a child.

• You can never adopt a child under Texas law.

• You can never posses or transport a firearm or ammunition under federal law.

• If, at any time in the future you are charged with an assault against a family member or a member of your household or a person who qualifies under Texas law as a person with whom you have a “dating relationship”, that assault can be filed as a third degree felony offense regardless of the degree of physical injury.

Finally, an AFV charge is nothing to take lightly. If convicted your life will change forever. If facing such a situation, you should contact competent legal counsel to protect your rights.

What is Deferred Adjudication in Texas?

By Bo Kalabus
bo@kalabuslaw.com
Office: 972-562-7549
Collin County 24-Hour Jail Release 214-402-4364
www.kalabuslaw.com
www.rosenthalwadas.com

The greatest benefit deferred adjudication offers is that is NOT a conviction and you have to opportunity to seal your arrest record. A conviction on the other hand can never be sealed or removed from your record. You get convicted when you have either lost at trial, or agreed to a plea agreement where you plead guilty before the court and the judge found you guilty and sentenced you.

On many types of cases, you may be offered deferred adjudication (deferred adjudication is not available on DWI cases). What’s different with deferred adjudication is when you plead guilty the judge does not find you guilty, and as a result you are not formally convicted of the charged offense. Although you have not been convicted, the arrest will still appear on your record if you do nothing further.

In most misdemeanor cases, upon successful completion of the probation period, you can move to have the arrest sealed from the general public by filing a petition for non-disclosure. For felonies, you have to wait for 5 years before you move for a non-disclosure. Once the petition is granted, the arrest will be sealed. However, if you have a professional license of some sort, you will not be able to seal the record from those types of employers during background checks.

A Recent Case Win–DA Abandons Deadly Weapon Enhancement and Reduces 3rd Felony Evading Charge to Misdemeanor Level

By Bo Kalabus
bo@kalabuslaw.com
www.rosenthalwadas.com
www.kalabuslaw.com
Office: 972-562-7549
24 Hour Jail Release 214-402-4364

One night during the holiday season, my client was a party at a warehouse in an urban area. Gunfire broke out in the area and my client was afraid, grabbed his friend, and got into his car to leave the scene. The area was extremely crowed as my client moved his car through a sea of people. There was also a lot of noise commotion going on at the time. Apparently the police were trying to stop my client, but he never noticed them because they were on foot and coming up from behind his vehicle. The first time he became aware of the officer’s presence was when they banged on his vehicle window.

The client was arrested for using a vehicle to evade arrest. This was all my client was charged with, but the State further alleged my client’s vehicle, which was used during the commission of the offense, was a deadly weapon. This allegation would enhance the punishment from a State Jail Felony (180 days up to 2 years jail) to a Third Degree Felony (2 years up to 10 years in jail and up to a $10,000 fine). A deadly weapon finding is serious bad news in many different ways.

I went to work on the case, investigating the facts to gain what leverage we could to negotiate with the prosecutor. After several weeks of hard work on the case, the prosecutor agreed to lower the charges from the felony level to the misdemeanor offense level. This dropped the potential punishment range down to 0 days to 1 year in jail and $0 up to a $4,000 fine from which the client received deferred adjudication and probation. Better yet, the client will not have his rights cut in half and have to deal with the stigma of being a convicted felon.

As you can expect, my client was relieved and very pleased with the result-and also a little wiser from an experience that could have turned out to be much worse.

Cowboys WR Dez Bryant Works Out Deal for Conditional Dismissal of Assault Family Violence Case

By Bo Kalabus
bo@kalabuslaw.com
www.rosenthalwadas.com
www.kalabuslaw.com
Office: 972-562-7549
24 Hour Jail Release 214-402-4364

According to numerous reports, Cowboys WR Dez Bryant has come to an agreement with the Dallas County District Attorney’s (DA) office to get his case dismissed. If you recall, Mr. Bryant was arrested back in July of this year for a domestic charge with his mother being the victim.(Dallas Morning News story here) The case was charged as a Class A misdemeanor, which carries a range of punishment up to 1 year in jail and up to a $4,000 fine.

Mr. Bryant’s lawyer and the Dallas County DA have worked out a conditional dismissal, which is a popular alternative to defend an assault family violence case and avoid prosecution. There are two ways to look at the agreement: 1) the Dallas DA has given Mr. Bryant an incredible opportunity to get the case dismissed and eventually have the arrest expunged from his record; or 2) the Dallas DA has given Mr. Bryant just enough rope to hang himself. You be the judge, the details of the conditional dismissal are as follows:

Mr. Bryant must participate in intensive weekly individual counseling for one year with a professional counselor that is approved by the DA’s Office. This counseling must also encompass 12 sessions of anger management. Mr. Bryant must also submit monthly progress reports to the DA’s office from his counselor. Upon successful completion of the Anger Management portion, as well as active productive participation for the remaining sessions of counseling, and if Mr. Bryant commits no new offenses, which includes strict compliance with the requirements of Mr. Bryant’s Occupational Driver’s License, the District Attorney agrees to dismiss the case. If Mr. Bryant fails to meet one of the requirements of this agreement, he will be prosecuted for the original offense.

The next court date for the matter is December 15, 2012. At this court appearance, Mr. Bryant (or counsel appearing on behalf of Mr. Bryant) will appear and must have proof of Mr. Bryant’s participation in Intensive Individual Counseling with an approved provider.

As you can see, the dismissal is not a guarantee by a long shot. It’s not impossible, but Mr. Bryant will have his work cut out for him by sticking with the counseling and staying out of trouble.