Top Houston Criminal Lawyers
Archive for Criminal Defense
At the Charles Johnson Law Firm, we have extensive experience in the investigation of cases involving illegal search and seizure of property. Search and seizures can involve cases involving Drug Crimes, Federal White Collar Crimes or Child Pornography cases, as examples. Anytime local officials search your person, car, home, office or property, they must follow strict protocol to ensure compliance with your Fourth Amendment Constitutional Rights.
Has an illegal search of your home, vehicle, or other property resulted in drug charges involving possession, distribution or some other drug crime? Although the Constitution grants you the right against illegal search and seizure, it is often necessary to have a skilled lawyer on your side to advocate for and enforce your rights. Contact Houston Lawyer Charles Johnson for aggressive criminal defense representation anywhere in Texas. Attorney Johnson is available to discuss your case anytime night or day. You can reach him directly at (713) 222-7577.
Search and seizure law today is built around three key questions. First, did the police “search” or “seize” anyone or anything? If not, the law leaves police action basically unregulated. If so, what justification must the police have — probable cause, reasonable suspicion, or (in rare cases) something else? Finally, what process must the police follow — must they seek permission in advance from a magistrate, or can they search first and defend themselves in a suppression hearing later?
Search and Seizure: Understanding The Laws
One of the hallmarks of the US criminal justice system is our search and seizure law. The Fourth Amendment to the US Constitution guarantees the right to be free from unlawful or “unreasonable” searches and seizures by the police and other law enforcement personnel. Generally, this means that the police have to have a good reason before they may search you or your property, seize your belongings or even seize or arrest you.
The key term here is “unreasonable.” Of course, not all searches and seizures are illegal. The lynchpins to the search and seizure law are probable cause and the expectation of privacy.
In simple terms, probable cause means that there are facts or circumstances to justify a search or seizure of a place, things or a person. Generally, this means that there’s a good reason to believe that a person is or has committed crime or that evidence of a crime can be found in a particular place. Probable cause is the driving factor for any search or arrest.
With probable cause, a police officer may:
- Convince a judge or magistrate to issue a warrant that authorizes him to search a certain and particular place for certain and particular things and seize them, or to arrest a particular person, or
- Conduct a search and seize evidence of a crime, or make an arrest, without a warrant, if there are “exigent” or emergency circumstances that make getting a warrant impractical
For example, during an investigation, police officers gather evidence that a suspect is selling illegal drugs from his home. The officers may ask a judge or magistrate for a search warrant for the home (and an arrest warrant for the suspect), and if the magistrate thinks there’s enough evidence, they willl issue the warrant(s). However, if during a stakeout the officers learn that the suspect is about to destroy the drugs in his home, the officers may be justified to enter the home, search it, and seize any drugs and arrest the suspect, all without a warrant.
As a general rule, the police need to get a warrant. It’s the mechanism that makes the Fourth Amendment work, that is, it makes sure that a search and seizure is reasonable. If warrantless search and seizure is conducted, the police have to prove that a warrant was needed or that there was no time to get one.
Expectation of Privacy
Generally, unless you have a “reasonable expectation of privacy” in a certain place or thing, it may be searched and/or seized by the police without a search warrant. In other words, the Fourth Amendment doesn’t apply to any place or thing in which you don’t have a reasonable expectation of privacy. You have a reasonable expectation of privacy if:
- You actually expect privacy in the place or thing. This is called the “subjective” expectation of privacy, and
- Your expectation of privacy is one that that society as a whole would think is legitimate and reasonable. This is called the “objective” expectation of privacy
Some examples of places or things where you may have a reasonable expectation of privacy include:
- Your home, or anywhere you actually live, including a rented apartment or a hotel room
- The trunk of your car
- Luggage or other containers that aren’t transparent or see-through, even if you’re carrying it in a public place, like an airport or bus station
- Your business office
- A public telephone booth, once you’ve shut the door
On the other hand, there are many places and things in which there is no reasonable expectation of privacy, such as
- Things that are in “plain view,” that is, exposed or out in the open that anyone can see. Illegal drugs or weapons on the front seat of your car are good examples
- Portions of your business office or building that’s open to the public, such as a reception area
- Public places, likes restaurants and parks
- Your trash or garbage, once you placed it at the curb for pick-up or collection
The laws on search and seizure can be complicated, and the facts and circumstances of each particular case are very important to determining if an unlawful search and seizure has taken place. If you or your property has been searched already, you should contact Houston Criminal Lawyer Charles Johnson immediately to make sure that your rights are protected. He can be reached anytime at (713) 272-4586 to discuss your case.
Hire the Best Houston Search & Seizure Lawyer: Houston Criminal Lawyer Charles Johnson
Search and seizure law is complex and ever changing and the police always know it better than you. Don’t give them an even bigger advantage by agreeing to a search of your home, your car, or your person. The 4th Amendment to the Constitution says that you are supposed to be free from unreasonable searches and seizures unless the police have a warrant. In other words, the law specifically sets forth when an officer can look through your possessions and what he can take if he finds it during the search.
If I let the police search my car, new case law suggests that unless my consent is limited, they can search anywhere in the passenger compartment, including hidden places and containers. That means behind the door panels, speakers, or dash area.
Searches have been expanded to places the framers of the constitution could never have imagined, like inside your body. If the police stop your car and think you are intoxicated, they can ask a judge to give them a warrant to “search” inside your body for evidence of intoxication contained within your blood.
We have a huge body of case law that prevents the State from infringing on your right to be free from unreasonable searches and seizures and ensures the police must follow all the applicable rules when searching your car or person, and all of it is thrown right out the window when you tell the police it is okay to go ahead and look through your car, house, pockets, or body.
Say NO. It really is that easy. Just like you should say “no” to drugs, you should also say “no” to searches. If you are carrying something you don’t want the police to find, do not let them search for it.
The Fourth Amendment to the U.S. Constitution protects personal privacy, and every citizen’s right to be free from unreasonable government intrusion into their persons, homes, businesses, and property — whether through police stops of citizens on the street, arrests, or searches of homes and businesses.
Lawmakers and the courts have put in place legal safeguards to ensure that law enforcement officers interfere with individuals’ Fourth Amendment rights only under limited circumstances, and through specific methods.
What Does the Fourth Amendment Protect?
In the criminal law realm, Fourth Amendment “search and seizure” protections extend to:
- A law enforcement officer’s physical apprehension or “seizure” of a person, by way of a stop or arrest; and
- Police searches of places and items in which an individual has a legitimate expectation of privacy — his or her person, clothing, purse, luggage, vehicle, house, apartment, hotel room, and place of business, to name a few examples.
The Fourth Amendment provides safeguards to individuals during searches and detentions, and prevents unlawfully seized items from being used as evidence in criminal cases. The degree of protection available in a particular case depends on the nature of the detention or arrest, the characteristics of the place searched, and the circumstances under which the search takes place.
When Does the Fourth Amendment Apply?
The legal standards derived from the Fourth Amendment provide constitutional protection to individuals in the following situations, among others:
- An individual is stopped for police questioning while walking down the street.
- An individual is pulled over for a minor traffic infraction, and the police officer searches the vehicle’s trunk.
- An individual is arrested.
- Police officers enter an individual’s house to place him or her under arrest.
- Police officers enter an individual’s apartment to search for evidence of crime.
- Police officers enter a corporation’s place of business to search for evidence of crime.
- Police officers confiscate an individual’s vehicle or personal property and place it under police control.
Potential scenarios implicating the Fourth Amendment, and law enforcement’s legal obligation to protect Fourth Amendment rights in those scenarios, are too numerous to cover here. However, in most instances a police officer may not search or seize an individual or his or her property unless the officer has:
- A valid search warrant;
- A valid arrest warrant; or
- A belief rising to the level of “probable cause” that an individual has committed a crime.
What if My Fourth Amendment Rights Are Violated?
When law enforcement officers violate an individual’s constitutional rights under the Fourth Amendment, and a search or seizure is deemed unlawful, any evidence derived from that search or seizure will almost certainly be kept out of any criminal case against the person whose rights were violated. For example:
- An arrest is found to violate the Fourth Amendment because it was not supported by probable cause or a valid warrant. Any evidence obtained through that unlawful arrest, such as a confession, will be kept out of the case.
- A police search of a home is conducted in violation of the homeowner’s Fourth Amendment rights, because no search warrant was issued and no special circumstances justified the search. Any evidence obtained as a result of that search cannot be used against the homeowner in a criminal case.
Search Warrant Requirements
Anyone who watches crime dramas on television is familiar with the scene where police officers enter a home or business brandishing a search warrant. The Fourth Amendment to the United States Constitution guarantees the people’s right to be free from unreasonable searches and seizures, which often — but not always — means that government agents must have a warrant to search and seize your person and property.
Here is the full text of the Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The Fourth Amendment protects the people from unreasonable searches and seizures, which means that many searches are fine as long as they meet certain requirements. Searches are generally considered reasonable when: 1) a judge issues a search warrant based on probable cause; or 2) certain situations occur that justify a search without a warrant (a search for weapons after an arrest, for example).
The Fourth Amendment’s requirements don’t apply when a person doesn’t have a “legitimate expectation of privacy” in the place or thing searched. If there isn’t an expectation of privacy, then the Fourth Amendment doesn’t come into play, and officers conducting a search don’t have to meet its requirements.
The United States Supreme Court has created a test for determining when a legitimate expectation of privacy exists. The test has two parts:
- Did the person subjectively expect the place or thing to be private? I.e., did they actually feel that the place or thing would remain private?
- Was that expectation objectively reasonable? I.e., would society as a whole agree that the place or thing should remain private?
An example might help clarify the point: most people feel that their homes are private, so there is a subjective expectation of privacy in one’s home. Most people in society would find this expectation reasonable, so a police search of one’s home must satisfy the Fourth Amendment’s reasonableness requirement.
If someone leaves evidence of a crime on their front lawn, however, it’s likely that a police seizure of that evidence would not constitute an unreasonable search since most people in a society would not expect that an object that was clearly visible to anyone passing by would remain private. Even if the owner of the home or the evidence genuinely expected that the area would remain private, that expectation would not be reasonable, and so the seizure would not have to meet the requirements of the Fourth Amendment.
Also keep in mind that the Fourth Amendment’s requirements only apply to government actors. Private individuals, including security guards, don’t fall under the Fourth Amendment’s restrictions. While a private individual may break other laws if they conduct a search of a person or their belongings, any evidence they discover in the process would still be admissible in court.
If a government actor conducts an illegal search (one that violates the Fourth Amendment), the government cannot present any evidence discovered during that search at trial. Known as the “exclusionary rule“, this rule aims to deter police officers from conducting unreasonable searches. Opponents of the exclusionary rule, however, argue that it lets guilty criminals go free on technicalities.
In addition, evidence obtained through illegal searches cannot lead police to the discovery of other evidence. This legal rule, known as the “fruit of the poisonous tree”, is also designed to prevent government actors from invading people’s privacy by conducting unreasonable searches. If police know, so the theory goes, that any evidence they obtain based on what they discover in an illegal search will be thrown out, they won’t conduct illegal searches in the first place.
Here are a few examples to illustrate the exclusionary rule and the fruit of the poisonous tree doctrine:
Officer Joe suspects that Chris is selling drugs. Without a warrant, Officer Joe walks into Chris’ house and finds drugs and a scale on the kitchen table. Officer Joe arrests Chris, but the judge throws out the evidence of the drugs and scale on the basis of the exclusionary rule.
In the example above, instead of finding drugs and a scale, Office Joe finds a map to locations throughout the city where Chris is storing his drugs for sale. Officer Joe collects the drugs and enters both them and the map as evidence. The map is thrown out because of the exclusionary rule, and, because Officer Joe would not have discovered the drugs without the map, the fruit of the poisonous tree doctrine prevents the use of the drugs as evidence.
It is important to note, however, that just because the prosecution can’t use certain evidence at trial, it doesn’t mean that a judge will dismiss a case or that a jury will acquit the defendant. Prosecutors may have enough other evidence to convict the defendant even without the results of the illegal search.
Plus, while prosecutors can’t use improperly obtained evidence to secure a conviction, that evidence may enter into other areas of the trial. For instance:
- The evidence may become a factor in civil and immigration cases
- Prosecutors can use the evidence to attack the credibility of a witness under certain circumstances
- Judges may consider the evidence when determining a sentence after a conviction
Understanding the Difference between “Search” and “Seizure”
“Searches,” in Fourth Amendment law, are police tactics that infringe a “reasonable expectation of privacy.” A reasonable expectation of privacy is the kind of expectation any citizen might have with respect to any other citizen. A fair translation of this standard might go as follows: Police can see and hear the things that any member of the public might see and hear, without fear of Fourth Amendment regulation. Only when police cross that line, only when they see and hear things that members of the public would not be allowed to see and hear, has a “search” taken place.
A few examples might clarify the standard. Eavesdropping on telephone conversations is a “search.” Overhearing a conversation on the street is not. Climbing over a backyard fence is a “search.” Observing the same backyard from the window of an airplane is not. Hiding in the bushes outside a house and looking inside is a “search.” Standing on a public street and looking through open curtains into a living room is not. Opening a briefcase to inspect its contents is a “search.” Observing someone carrying a briefcase on the street is not.
When applying the “reasonable expectation of privacy” standard, courts ask whether, at the moment the police officer observed the illegal behavior, he was in a position any member of the public might have been in. The duration and intensity of police observation does not matter. Thus, police officers can stake out a private home, taking up residence across the street and watching all comings and goings for a period of days or even weeks, and that behavior does not constitute a “search,” because at any given moment, any member of the public might have been looking. And police can follow a suspect’s movements along public streets, in shops or restaurants, and so forth; once again, such behavior is not a “search” (even though it amounts to something like stalking), because any member of the public might have seen any given transaction in public.
One other feature of the definition of “search” bears mention. Consensual transactions are not “searches,” even if consent was given under false pretenses. So if a police officer poses as a drug buyer, and a suspect lets him into the suspect’s house in order to sell him drugs, anything the officer sees and hears in the house is fair game—no Fourth Amendment “search” has taken place. The use of undercover agents is thus routinely permitted by search and seizure law, whether or not the police have good reason to suspect the person with whom the undercover agent is dealing of any crime. Also, if a police officer asks permission to look in a suspect’s car or briefcase, and the suspect says yes, once again no “search” has taken place. This last point is particularly important. Police officers exert a certain amount of force just by virtue of their status. For many, perhaps most, a request from a police officer will sound like a command; the tendency will be to say yes whether one wants to or not. Nevertheless, if the police officer asks, and the suspect says yes, that almost always amounts to consent. Only if the officer behaves unusually coercively—if he pulls his weapon, or grabs hold of the suspect, or the like—will a court find that the consent was involuntary.
All these rules sound complicated; in practice, they are relatively simple. In general, the police are “searching” when they are either committing some kind of trespass—grabbing a suspect’s briefcase and looking inside, breaking into a house or apartment, climbing over a backyard fence—or are engaged in some kind of electronic eavesdropping—for example, wiretapping a phone. Most of the rest of what police do to gather information falls outside the Fourth Amendment.
“Seizures” are harder to define. The Supreme Court says that a suspect has been “seized” if a reasonable person in the suspect’s shoes would not feel free to leave. If the Court took its own language seriously, every conversation between a police officer and a citizen would be a “seizure.” After all, few people, when approached on the street by an officer, feel free to turn on their heels and walk away. The consequences of that position would be huge; the police would need some adequate justification for every interaction.
Not surprisingly, the law does not operate that way in practice. The working standard seems to be roughly the same as the standard for consent. The dispositive question is this: Did the police officer behave coercively (not counting the coercion that is inherent in a police officer questioning a suspect)? If so, the encounter is a “seizure.” If not, it is not. Compared to the definition of “search,” which has acquired a good deal of definition over the years, the definition of “seizure” remains remarkably vague and open-ended. Conversations on the street between police officers and citizens often begin as consensual conversations; at some point the encounter often becomes a “seizure.” Neither the officer nor the suspect—nor, for that matter, courts—know precisely when that point is.
The Penalties for Illegal Searches and Seizures
To ensure that police officers respect individuals’ constitutional rights, the U.S. Supreme Court provides strict penalties. If the police perform an illegal search, the evidence they obtain as a result of this search will not be allowed in a courtroom.
This means that if police search you without probable cause, even if they find drugs, they will not be allowed to present this evidence to a jury. Illegal search and seizure is one of the strongest defenses available for any criminal matter.
If you have been accused of any crime, contact the firm to discuss your concerns with an experienced criminal defense attorney. Houston Attorney Charles Johnson can help you understand your rights and remedies following an illegal search or seizure.
Houston Search and Seizure Lawyer Charles Johnson will fight aggressively on your behalf to get the charges against you dismissed in cases of police misconduct, police brutality or violations of your civil rights. Those actions include:
- Illegal search and seizure
- Failure to read Miranda rights
- Arresting you without a valid search warrant
- Refusing you access to an attorney
- Racial profiling
- Making false statements to obtain a warrant
- Making false statements in court
There are many other examples of police misconduct that could invalidate the charges against you. If you have been subjected to a search or seizure action, contact Attorney Johnson immediately to inquire about possible violations of your legal rights. Houston Lawyer Johnson has extensive experience challenging evidence that was gathered during an illegal search. Once the evidence against you is suppressed, there is no basis for the charges against you, which may lead to a dismissal of all charges.
Tips for avoiding all types of searches:
- Keep your appearance neat and clean. Look like a criminal, get treated like one. There is a reason why middle-aged women driving minivans rarely get pulled over.
- Keep your car clean. When I say clean I mean get your car detailed at least a couple of times a year. People who leave the inside of their car messy often forget about things they have tossed on the floor or cannot see items other people have left behind.
- Keep your car in good working order. Don’t give the police a reason to stop you. Make sure your car is registered, inspected, and that all the lights work. A busted taillight can cost you thousands and a trip to jail.
- Put questionable items in the trunk of your car. There is no excuse to leave illegal items in the passenger compartment of your car. Better yet, don’t put anything illegal in your car.
- Don’t attract unwanted attention. If your stereo has to be that loud for you to hear it, get your hearing checked. All you are doing is inviting the police to pull you over and give you a hard time.
- Don’t carry drugs on your person. This is common sense regarding illegal drugs, but prescription drugs carried outside the containers they are dispensed in can get you arrested as well.
- Don’t carry cigarette packages or hide your drugs inside them. This is the first place police look for dope.
- Don’t leave smoking paraphernalia where police can see it. Nobody believes you use that bong or water pipe to smoke tobacco! If an officer sees something like that it will only confirm that he or she really needs to find some legal way to search you, your car, or your home.
- Be careful what a police officer can see when standing at your front door. A police officer standing at your front door can look inside when you open it. What the police see from your front door is considered in “plain view” and thus not an actual search. Once the police have lawfully seen something illegal in your home they can then seize it and get a warrant to look for more.
- If you can see out, the police can see in. Looking through a window does not constitute a search in most instances. No one should be able to look into your home and watch what you are doing without you knowing about it. Put up window shears or install windows with either faceted glass or glass that distorts the viewable image.
The most important thing to remember when asked for consent to search is to say “NO”.
Contact the Best Search and Seizure Attorney in Texas: The Charles Johnson Law Firm
If you have been arrested, detained, stopped, or investigated in Houston or anywhere in the state of Texas, you may have legal defenses available to the contest the charge or mitigate possible penalties. Houston Criminal Lawyer Charles Johnson has extensive experience defending cases involving Fourth Amendment violations, motions to suppress evidence, and illegal police searches.
The Charles Johnson Law Firm is committed to providing the highest-quality defense. As a criminal defense law firm, they are dedicated to protecting their clients’ rights throughout the legal process. Attorney Johnson offers a free initial consultation that can be done over the phone. Contact him directly anytime night or day at (713) 222-75778 or toll-free at (877) 308-0100.
News Stories related to Illegal Search and Seizure in Houston:
Download “Coping With an Illegal Search & Seizure? Secure Your Fourth Amendment Rights with Houston Lawyer Charles Johnson” in PDF Format
Charles Johnson |
| Tags: Amendment
, criminal defense representation
, drug crime
, Fourth Amendment
, houston lawyer
, Houston Lawyer Charles Johnson
, illegal search and seizure
, probable cause
, probable cause reasonable suspicion
, reasonable suspicion
, search and seizure
, search and seizure law
, search warrant
, searches and seizures
, unreasonable searches and seizures
, white collar crimes
Hire the Most Qualified Houston Criminal Defense Lawyer!
When you are going to court, it generally isn’t simply because you WANT to go, but rather you HAVE to go. If you are going in for a criminal defense, it would be in your best interest to be well prepared and informed BEFORE you enter those doors. The following are guidelines that are highly suggested that you follow in order to have a successful time in the courtroom and put the percentages far better to your favor within the eyes of the court.
When in court it is in your very best interest to look your very best for the judge, jury, prosecutor, and yourself. It emotionally can help you in court with your case and can improve your odds of winning if you look like you’re really serious about the courtroom proceedings and play the part.
People who head to court in shorts and sandals will not receive the same treatment that a person in a suit or nice dress might receive. It looks, at least to the court that you have absolutely no interest in being there and that is certainly regarded as disrespect to the court.
The following is appropriate dress code for the genders:
- A nice dress or women’s business suit. At the minimum, a blouse and a skirt which is NO MORE THAN two inches above the knee.
Dress shoes or heels
Hair neatly groomed
Jewelry: Same as for men. A ring and a watch. Nothing else.
Perfume: Again nothing that’s too strong and do not bathe in it. No one wants to smell you!
Nail Polish: Keep it simple. Colors that aren’t acceptable are neon’s and brightly colored nails. If you can avoid it, don’t wear any polish beyond a clear coat or perhaps the French manicure is suitable.
Again, the idea here is you are looking for the judge and any other people deciding your fate to look at you with as much respect as possible regardless of what you are in the courtroom for.
- A dark suit is preferred. If a suit is not available, then slacks and a white shirt and tie at the minimum!
Dress shoes (NEVER WEAR SNEAKERS IN A COURTROOM, PERIOD)
Hair well groomed and neat. Should you have long hair, make sure it is tied back and combed back.
Do not bathe yourself in strong cologne. This is not a club and no one wants the distracting smell of another in court.
Jewelry: one ring (wedding band) and a watch, if you have either.
The point here is you want the judge and any type of various other men and women deciding your fate to look at you with respect regardless of what you’re in court for.
In the courtroom the following are advised as far as behavior and procedure are concerned:
Only respond to questions that you’re asked in a direct manner.
Prosecutor: “Do you have the time?”
Prosecutor: “What time do you have?”
YOU: “11:00 a.m.”
In this example you were asked a question, and the response was EXACTLY what should have been given. Never volunteer information without first consulting your criminal defense attorney about this beforehand. Prosecutors exist to trip you up and get you to admit important things in order to aid their case, and they are generally pro’s at what they do. Don’t help to make it easy for them. They are NOT your friend, and they don’t have your very best interests in mind 110% of the time.
When sitting in court do not place your elbows on the tables at any given time. Sit up straight and look attentive at all times, unless you are injured somehow. Slouching is certainly a sign that you do not care about what is going on and you’d rather be home or doing something else and the court will treat you that way but definitely not in your favor. Pretend you are on television in front of the world and you need to look your very best.
This is possibly the most abused item in the courtroom besides dress. Again you must remember you’re not at a get together with your buddies. You are in a courtroom. If it is a criminal matter, someone wants a reason to put you away. DON’T Provide THEM ONE! Speak English as correctly as you are capable. Use of slang is not going to help you in any way.
The judge is not your “bro”, this individual is your honor. The D.A. or Prosecutor is not an old pal, and should be addressed as sir.
- Always be punctual.
- Do not speak during the proceedings while court is in session.
- Don’t bring books to read or magazines.
- Do not wear a hat in a courtroom EVER!
- Don’t wear sunglasses unless you have a condition that is medically proven to hurt your eyes in light.
- Remain in attendance until excused. All persons seated before the bar shall remain there during each session and return following recess. Parties and counsel ought to remain in attendance during jury deliberations; absence waives the right to attend the return of the judgment.
- Dress with dignity.
- Address others only by their titles and surnames, including lawyers, witnesses, and court personnel.
- Avoid approaching the bench. Counsel should anticipate the need for rulings and discuss them when the jury isn’t seated. Whenever a bench conference is unavoidable, obtain permission first.
- Hand to the clerk, not the judge or reporter, all things for examination by the judge.
- Stand when the judge or jury enters or leaves the courtroom.
- Conduct no experiment or demonstration without permission.
- Make no side-bar remarks.
- Request the use of easels, light boxes, and other equipment well in advance so that they may be set up while the Court is not in session.
Following these basic simple rules and procedures, you greatly enhance your chances of winning in court. These are unwritten guidelines, however over the years people appear to have forgotten them.
If you have additional concerns or are unsure about any of this, speak to the Most Effective Houston Lawyer BEFORE you go to court.
In the event you or a family member is charged having a crime in the Houston region, contact us for a free consultation with a successful criminal defense lawyer from the Charles Johnson Law Firm. Attorney Johnson is able to provide compassionate legal counsel, accessibility and personal attention, years of experience, and aggressive protection of your rights.
Charles Johnson |
| Tags: Attorney
, best interest
, business suit
, court dress
, courtroom proceedings
, criminal attorney
, criminal defense lawyer
, dress code
, dress shoes
, french manicure
, houston criminal defense lawyer
What is the definition of an appeal?
An appeal is defined as a petition to a higher court by the losing party in a court action to overturn a lower court’s ruling. The basis of an appeal is required to be a reversible mistake in the application of the law at the trial court level (i.e., in line with the facts, the court plainly misapplied the law).
In defense cases, an appeal may target the conviction on its own or just the sentencing portion regarding the decision without any regard to the particular underlying conviction. For instance, any time a defendant is properly convicted of manslaughter but a judge sentences the defendant to a prison term that’s beyond the limit of the law, the defendant will only appeal the prison term while leaving the actual conviction itself intact.
An appeal shall be filed only after the final judgment or order has been reached by the trial court. This is quite simply for reasons of efficiency, so that the court system isn’t bogged down by delays and trials are not constantly put on hold while awaiting appeals associated with a judge’s every verdict.
At the conclusion of a trial, the losing party may also produce direct appeals (e.g., motion for a new trial, motion for directed verdict) to the presiding judge to immediately overrule the jury’s judgement, nevertheless these are rarely effective.
Does an appeal constitute a new trial?
No. Within an appeal there aren’t any brand new issues presented or witnesses named to testify. The appellate court is only going to evaluate the trial’s transcript and evidence offered in the course of the trial to determine whether or not there were errors within either procedure or application of the law. Even though there were faults, when they are considered insignificant – legally named “harmless error” – the judgment will not be overturned or a new trial granted.
Can any sort of judgment be appealed?
The short response is no, there is no absolute right to an appeal. Each state has laws which outline the kinds of cases which appellate courts may consider. There must be an error of law for an appellate court to examine a case. That the losing party didn’t like the decision is not really enough to sustain an appeal.
That being said, even in administrative courts or lower level courts, if an individual’s constitutional legal rights have been infringed upon, some may sue in order to enforce their rights and/or to take another look at the original case.
What is the appeals process?
In Texas court proceedings, the appellant or petitioner (the party appealing the judgement) needs to file a notice of appeal within 30 days of the verdict. In federal court, the deadline is 60 days. The filing of the notice of appeal starts the clock running on the appeals process and then there are prescribed deadlines from this point on. The petitioner submits a legal brief detailing the alleged errors of law made by the trial court, and the respondent or appellee (the party that prevailed at the trial) writes a response.
Once the appellate court receives both petitioner and respondent briefs, it will assess the arguments and make a determination of whether: a) there were errors of law made by the trial court, and b) whether the errors rise to the level of “reversible error” (highly serious errors). As noted above, innocent discrepancies are going to be disregarded by the appellate court.
There may or may not be oral arguments given by petitioner and respondent. If the court makes the decision to hear oral arguments, the petitioner will present his or her own arguments and field inquiries from the judge(s) and after that the respondent will do the same. Usually in most appeals, this question and answer format usually lasts ten to fifteen minutes for each side.
Whether the appeals court listens to oral arguments or issues a judgment based merely on the written briefs, the court will either: 1) affirm the decision; 2) order a new trial; 3) change the ruling in some manner; 4) take into consideration new facts or evidence (seldomly); or 5) in extremely infrequent cases, may perhaps dispose of the case entirely.
What is the likelihood of an effective appeal?
The number of effective appeals is in fact marginal. Appellate courts allow the trial court great flexibility in carrying out trials. The law doesn’t necessarily promise perfect trials, accordingly appeals courts are only going to overturn verdicts that have clear, substantial errors of law.
Because of the leeway appeals courts give trial decisions, petitioners possess an even greater burden in verifying that errors of law happen to be serious and not benign. If an appellate court can discover any satisfactory argument that the oversight might not have changed the decision (and is therefore “harmless”), it will refuse to overturn the verdict.
There are, naturally, a number of cases where significant errors were made and appeals courts will overturn those decisions. Notably serious are charges that the trial court refused rights secured by the constitution, that include due process and equal protection rights.
I lost my trial due to the fact that my attorney made foolish errors, can’t I depend on an appeal to correct them?
Don’t rely on appeals to make up for any genuine or perceived inadequacies at trial. You must put all of your energy into the trial itself, which involves locating the proper lawyer to try the case. Effectively appealing a verdict since you had a deficient attorney is a challenging proposition. You cannot appeal since you simply had a poor lawyer.
You can appeal on the basis that your attorney was so incompetent that you simply had been essentially denied your 6th Amendment right to a fair trial (known legally as an “ineffective assistance of counsel” appeal). This occurs almost exclusively in criminal defense situations and the standard for the appeal is very high – courts are extremely deferential to the competency of attorneys and maintain a strong presumption that the lawyer’s assistance was within professional standards. To put it in perspective, there have been circumstances where an attorney has fallen asleep during a trial, yet the verdict was not overturned nor the case retried.
Many circumstances aren’t eligible for appeal simply because the trial attorney did not object to a ruling during the trial, and therefore didn’t “preserve” that issue for appeal. For example, a written statement from a witness accusing a defendant of robbery is entered into evidence, but the witness does not testify at trial. The defense attorney does not object and the defendant is convicted based solely on the written statement. The Confrontation Clause of the 6th Amendment guarantees a defendant the right to face his accuser, a right which, if infringed, could form the basis for an appeal.
Because the lawyer failed to object at trial to the admission of a written statement rather than live testimony, however, the defendant is deemed to have waived this right and an appeal will possibly not be allowed on that issue.
The example sounds absurd; an attorney waives your constitutional right through ineptitude, yet your appeal on the basis of ineffective assistance of counsel fails – but it happens frequently. An appeals court may reason that putting the witness to the stand wouldn’t have had any positive effect for the defendant and due to this fact the decision not to object could be considered a trial strategy. That’s the type of deferential latitude attorneys get in ineffective assistance of counsel appeals and the reason why it is absolutely essential to decide on your attorney wisely at the very beginning of the process and stay involved during each part of the trial.
What is the definition of a writ?
A writ is a directive from a higher court ordering a lower court or government official to take a specified action in accordance with the law. For example, if a lower court decides to try a case that is outside of its jurisdiction, one or more of the legal professionals involved may object and seek a writ of mandamus (writ of mandate) from an appeals court ordering the lower court to reassign the case to another jurisdiction.
How are writs and appeals different?
Writs are extraordinary court orders and only issued in cases where a moving party (the one seeking the writ) has no other options. In the case of the writ of mandamus from above, the moving party had to act quickly because the lower court improperly took the case. If the moving party had merely objected at trial and waited to appeal, a remarkable waste of time and money would have taken place – and all for virtually nothing if the trial court improperly took the case.
Generally, higher courts won’t review conclusions of a lower court until a final verdict is delivered, for the formerly discussed reasons of efficiency and leeway given to lower courts. Unlike appeals, which require a final verdict, writs are on the spot orders and extraordinary in that the normal course of a trial is disrupted, potentially causing disorder and delay.
Courts do not take such events lightly and superior courts do not issue writs often. A court will only issue a writ when a lower court wrongly decided an issue, irreparable harm would occur to a party, and there are no other options.
Courts might also issue writs, such as writs of attachment and execution, in order to force compliance with a court order by an unwilling party.
What’s a writ of habeas corpus?
A writ of habeas corpus is a judicial mandate to a prison official ordering that an inmate be moved to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he or she should be released from custody.
Literally translated, a writ of habeas corpus is a court order to “produce the body,” and is generally filed by those in prison, though they are also filed by those who have been held in contempt of court by a judge and either imprisoned or threatened with imprisonment. Also known as “the Great Writ,” habeas petitions are very often referred to as the hallmark of the United States justice system. Unlike other countries where the governing administration may toss virtually anyone in jail and keep them there indefinitely without filing charges or conducting a hearing, habeas corpus serves as a check on the government and offers prisoners a legal avenue to protest their imprisonment.
A habeas corpus petition can be filed in state or federal court. Before filing in federal court, however, all state options must be exhausted first.
Everyone has the privilege to challenge illegal imprisonment or inhuman prison conditions. Like all writs, however, courts will insist on clear and convincing evidence in support of a writ and do not issue them frequently.
Houston Appeals Defense: The Charles Johnson Law Firm
Dealing with the appeals process is tough and time consuming. An experienced attorney from the Charles Johnson Law Firm in Houston, Texas can help you plan your next move. Contact us today for a free initial consultation.
Charles Johnson |
| Tags: application of the law
, final judgment
, harmless error
, presiding judge
, prison term
Depending on the seriousness of the crime(s), sentencing may involve 1 or a combination of punishments. Besides prison or jail time, alternative sentencing may incorporate a suspended sentence, probation, a fine, restitution, community service, or diversion. In most criminal instances, unless it truly is a capital case decided by a jury, the judge will determine the punishment by taking into consideration factors like the defendant’s age, the impact of the crime on the victims, along with the defendant’s level of remorse.
Types of Criminal Sentencing
A Texas judge can decree a sentence that’s determinate. A determinate sentence is a fixed-term regulated by state statute. A judge will establish the length of a sentence by applying sentencing guidelines, mandatory minimum sentencing, and applicable enhanced sentencing for a variety of crimes.
As an alternative to imprisonment, a judge can suspend a prison or jail sentence. This is generally employed in instances involving less serious crimes or for first-time offenders. A suspended sentence may be unconditional or conditional. An unconditional suspended sentence allows the judge to abstain from imposing the proscribed punishment. Nevertheless, the conviction is still a matter of public record.
If the suspended sentence is conditional, the judge can hold off from imposing the punishment for so long as the defendant fulfills the condition of the suspension. Typical conditions may incorporate not committing other crimes or enrolling in a substance abuse program. If a defendant violates the terms of a conditional suspension, the judge can impose the original punishment.
A judge may order probation instead of imposing jail or prison time. Probation will require the offender to follow specific conditions. Standard probation will compel the offender to regularly report to a probation officer, even though an additional, much more invasive type of probation could involve GPS monitoring or house detention. Although on probation, the offender should generally keep a job, not relocate to another state with out permission, undergo drug testing, and keep existing with obligated payments, for example fines or restitution.
An offender that violates any of the conditions could have probation revoked. A prosecutor can decide to file a complaint asking the judge to revoke probation. Upon the determination that the offender violated probation, the judge can impose the original jail or prison sentence, can reinstate probation, or can order far more severe conditions of probation.
As an option to incarceration, a judge might impose a fine. A fine is normally employed in instances involving less severe crimes or those involving first-time offenders. A judge may also impose a fine in conjunction with other varieties of punishments, such as incarceration and probation.
A judge, in conjunction with another type of punishment, might order the offender to pay the victim for the personal injury or the property damage sustained. Restitution is meant to restore the victim and to ensure that the offender is not unjustly enriched. Consequently, a court might order the offender to pay for expenses like medical bills and counseling.
As punishment, a judge can order an offender to perform unpaid community service work. This punishment is often utilised in misdemeanor cases as a way to ensure that the offender repays society for the crime. Community service may involve picking up garbage in a park, clearing brush, or giving lectures about the dangers of the criminal activity. The goals of community service are punishment, reparation, restitution, and rehabilitation.
Rather than impose incarceration in less severe offenses involving misdemeanors, a judge may possibly divert a case. This means that upon the defendant’s completion of a condition, like the completion a treatment or rehabilitation program, a judge may possibly drop the criminal charges. Commonly, these kinds of circumstances involve drug or alcohol abuse, child abuse, and domestic violence.
Houston Criminal Defense: The Charles Johnson Law Firm
If you are accused of violating the terms of your parole or probation or have questions regarding a potential probation offense, please call at anytime for a free initial consultation.
Charles Johnson |
| Tags: alternative sentencing
, capital case
, criminal sentencing
, determinate sentence
, first time offenders
, jail sentence
, jail time
, mandatory minimum sentencing
, prison time
, probation officer
, public record
, sentencing guidelines
, serious crimes
, substance abuse program
, taking into consideration
, texas judge
, typical conditions
Crimes falling into the “sex crimes” category generally involve illegal or coerced sexual conduct by one person towards another. There are laws against unlawful sexual conduct in every state, and each state has its own time limit to bring a sexual-related lawsuit. People convicted of sex crimes are considered “sex offenders” by the state and face having their names added to state and federal sex offender registries. Below is a collection of crimes that are sexual in nature, and that carry severe consequences and penalties.
- Child Pornography – Federal and state laws make it a crime to produce, possess, distribute, or sell pornographic materials that exploit or portray a minor.
- Criminal Solicitation of a Minor (Under 17) – On-line solicitation of a minor for a sexual purpose, that is, with intent to commit a sexual activity with that minor, is one of the most investigated and targeted activities by both federal and state law enforcement in this day and age.
- Improper Relationship Between Educator and Student – Although the relationships are typically consensual, the teacher is prosecuted under a specific provision of the penal code prohibiting an Improper Relationship Between Educator & Student. It is important to note that the offense is neither limited to teachers nor limited to sexual contact; risqué text messages are enough
- Indecent Exposure – Indecent exposure laws in most states make it a crime to purposefully display one’s genitals in public, causing others to be alarmed or offended. Indecent exposure is often committed for the sexual gratification of the offender, and may reach the level of a sexual assault if any physical contact is made.
- Public Lewdness – It is generally defined to be the intentional exposure of the genitals, buttocks or female breasts or committing or attempting to engage in a sexual act in public where there is reason to believe you will and can be observed.
- Prostitution - Generally, prostitution is the act of engaging in sexual activity by a person for a fee or a thing of economic value. But the scope of the crime of prostitution has been widened to include all prostitution related offenses. Thus a person is considered to commit an offense of prostitution if s/he engages in an act of prostitution willfully, solicits prostitution, or agrees to engage in an act of prostitution.
- Sexual Assault/Rape – Sexual assault generally refers to any crime in which the offender subjects the victim to sexual touching that is unwanted and offensive. These crimes can range from sexual groping or assault/battery, to attempted rape.
- Sexual Assault of a Child (Statutory Rape) – Statutory rape refers to sexual relations involving someone below the “age of consent.” People below the age of consent cannot legally consent to having sex. This means that sex with them, by definition, violates the law.
- Solicitation – It’s illegal to entice someone else to commit a crime (such as prostitution). This article explains the elements to prove solicitation, as well as defenses and penalties.
Houston Sex Crimes Defense: The Charles Johnson Law Firm
Sex crimes can carry very significant criminal penalties, and even those that carry relatively short jail sentences can result in lifelong registration requirements, public notice, employment restrictions and many other problems.
If you’ve been accused of a sex crime, it’s critical that you understand all of the risks involved before taking any action. You may not have the knowledge and experience necessary to take the steps required to protect yourself and your future. Schedule a free, no-obligation consultation with Attorney Charles Johnson for more clarification and guidance.
Charles Johnson |
| Tags: child pornography
, criminal defense
, criminal solicitation
, houston criminal lawyer
, improper relationship
, indecent exposure laws
, public lewdness
, sex crimes
, sexual conduct