The Myth of Deferred Adjudication, Once Again

I was reading an Associated Press article about Priscilla Slade's plea deal and noticed how the world's oldest and largest news organization mischaracterized deferred adjudication.

Slade, the ex-president of TSU, accepted deferred adjudication on a first degree felony for allegedly misappropriating school funds while she was president of the university.

The AP reporter wrote: "The deferred adjudication means that Slade’s record would be cleared if she successfully completes the judge’s terms."

Once again, deferred adjudication does not disappear if the terms are successfully completed. Rather, as I have extensively written about on this site, one must file a petition for non-disclosure to seal the record. Some offenses are not even eligible for non-disclosure. With a felony like Ms. Slade's, she will also have to wait five years from the day she finishes the probation before she can file for non-disclosure.

Finally, the non-disclosure is not a done deal even if the time requirements are met. The judge, after a hearing with Ms. Slade and the DA's office, has the discretion to grant or deny it.

You can bet the DA's office will contest the petition at this hearing.

Read the AP article here.

Houston Rodeo/DWI Email

There's an email forward going around that several people have asked me about:

"Y'all need to be extra careful, as you should always be, this year around the rodeo time. The Houston Police along with just about every other law enforcement agency in the area are starting a new D.W.I. campaign and are kicking it off this year at the start of rodeo. The H.P.D. has purchased six "B.A.T." vehicles which stands for Breath Alcohol Testing. This are large mobile command centers about the size of mobile homes with Intoxilyzers, interview rooms, court certified field sobriety test practitioners, Assistant District Attorney's, as well as nurses qualified to draw blood. There will also be a judge available to sign search warrants for blood of those that refuse breath tests who are arrested for D.W.I. along with the other alcohol related offenses. Officers who stop persons who are suspected of being intoxicated are either transported to one of the BAT vehicle locations or the BAT vehicle will come to them. If you refuse breath even for DWI, they will get a search warrant and take your blood which is obviously worse than breath because it will show things other than alcohol and is often felt to be more accurate. As we know HPD on their own makes mistakes but I think after hearing of this new program feel they are getting it together."

Is it true? Most of it is.

Around the big drinking holidays like New Years and special events like the rodeo, HPD will have a "no refusal" policy. That means that if you are stopped for DWI and you refuse to take the field sobriety tests or the breathalyzer, you may be forced to take a blood test.

What happens--if you refuse the tests, the officer may call a prosecutor on call who wakes up a judge and gets a warrant signed to draw your blood. The officer will take you to the hospital and a nurse will do the blood test. It is not a rights violation--with a warrant signed by a judge, the State can forcibly draw your blood.

The part about the "Batvan," the tactical HPD mobilehome carrying a district judge seems to be made up. I spoke to a prosecutor and he had never heard of it either.

Understanding Deferred Adjudication and Straight Probation

First some basics:

In Texas, probation is called community supervision. There are two types of community supervision in our state--deferred adjudication and regular community supervision.

Basically, community supervision means that instead of going to jail or prison as a punishment, a defendant is allowed by the judge to stay in the community and be supervised by the court. The supervision term can be up to two years for a misdemeanor and up to ten years for a felony.

The judge will impose requirements on the community supervision--for example, a defendant may be drug tested, will have to be employed, and will probably have to do community service. The most important requirement is not to pick up another offense. If one violates the terms of community supervision, the D.A. can ask the judge to revoke the probation and put the person in jail.

As a condition of community supervision, the judge can order the person to spend time in jail. For example, on a misdemeanor, the judge can order the defendant to spend up to 30 days in jail. For any felony, the judge can order up to 180 days in jail as a condition of the community supervision.

Deferred Adjudication:

Deferred adjudication is usually offered to first time offenders. It is typically a better deal than regular community supervision because if a person finishes the term successfully, the person does not have a conviction. A conviction is a loose legal term that means a finding of guilt.

A successfully completed deferred adjudication often can be sealed from public view with a non-disclosure.

Deferred adjudication cannot be granted by a jury. So once a defendant elects to go to trial, deferred adjudication is a not a possible punishment.

If a person on deferred adjudication does not comply with the conditions of his community supervision, the D.A. may ask the judge to "adjudicate" (find guilty) the person and put them in jail or prison. If the judge decides to adjudicate the person, the person can be sentenced to any term in the statutory range.

Example: say Tex is put on 9 months deferred for assaulting someone at a bar. This is a Class A misdemeanor punishable by up to a year in jail. Three months into the term, he fails a drug test or picks up a DWI. Eventually, after a hearing, the judge can revoke his community supervision and sentence him to up to one year (the statutory maximum for assault) in jail.

Regular Community Supervision or "Straight Probation"

There are three major differences between deferred adjudication and regular community supervision: 1) A regular community supervision usually results in a conviction and thus can never be sealed or expunged 2) Regular community supervision is usually a punishment option if a person elects to have a jury trial 3) If regular community supervision is revoked, the maximum punishment is usually not the statutory maximum.

That is, when someone receives regular community supervision, the maximum jail or prison term will be set at the time of the plea. For example, on robbery, a second degree felony punishable from two to 20 years in prison, the deal might be five years prison probated for ten. That means the community supervision period is ten years; if the person messes up and gets revoked by the judge, he can get up to five years in prison. So instead of the statutory maximum of ten years which would be available if the person was on deferred adjudication, the maximum prison sentence is five years.

The Effects

Finishing a deferred adjudication does not result in a conviction. Technically, the charges are dismissed.

However, a successful deferred will still impact a job search. It can disqualify a person in some instances from owning a gun or getting licensed by the state in professional capacity. If a person is an immigrant, it can impact applying for citizenship. In fact, under federal law (which governs immigration and most gun laws), deferred is considered a conviction.

As I have said before, the number one myth in Texas criminal law is "finish your deferred and the offense disappears. It's like it never happened." This lie is told to defendants every day in every court house in every county in Texas.

Back to regular community supervision--the important thing to remember about regular community supervision is that--unlike deferred adjudication for most crimes--regular community supervision can never be sealed with a non-disclosure or expunged.

There are two ways to end regular community supervision. First, is the way that most end--the term expires and the defendant is released. However, there is a special provision in the Texas Code of Criminal Procedure that allows for the charges to be "dismissed."

Basically, after the defendant has completed 1/3rd or two years of his sentence (whichever is less), he can petition the court to set-aside the indictment and dismiss the charges. If the judge agrees, the "set-aside" person does not have a final felony conviction like the person who simply finishes the probation term.

While the person does not have a final felony conviction, he cannot have the offense expunged or sealed. So even if the offense has been dismissed, employers will be able to see it.

Furthermore, while a person who finishes regular community supervision without a set-aside can apply for a pardon from the Governor, a person whose community supervision is set-aside cannot.

So a person whose indictment is dismissed cannot try to get the record pardoned while the person who finishes the term can. Doesn't make much sense, does it?

A final problem: criminal records are often sold by the counties and the state to private background check companies. These companies often misreport criminal histories. For example, they may incorrectly report a completed deferred or a set-aside as a conviction. Some employers may disqualify an applicant for a conviction.

Another example--under Federal law, a set-aside on a felony community supervision may not prohibit a person from owning a handgun under the felon in possession rule. Under the DPS concealed handgun rules, however, a set-aside on a felony prohibits an applicant from applying for a CHL.

If you are considering either type of community supervision, make sure you understand the risks and effects of your decision.

Concealed Handgun License Eligibility and Deferred Adjudication

Another warning about deferred adjudication—it can jeopardize your eligibility to obtain a concealed handgun license in Texas.

Accepting deferred adjudication in certain situations will make you ineligible to obtain a concealed handgun license. In fact, DPS considers deferred adjudication a conviction when evaluating a CHL application.

First, for felonies: a person cannot apply for a CHL if he has a felony deferred adjudication for offenses against a person, including murder, manslaughter, criminally negligent homicide, kidnapping, sexual assault, indecency with a child, aggravated assault and robbery.

For all other felonies, like property or drug crimes, the deferred adjudication must have started ten years before the date one applies for a CHL.

For misdemeanors, one cannot have a deferred adjudication for a Class A, Class B, or for a Class C disorderly conduct for five years before applying for a CHL.

DPS also prohibits applicants from having two or substance related offenses in the ten year period before asking for a license. So if a person has a DWI conviction and a deferred adjudication for possession of a controlled substance in the last ten years, he cannot apply for a CHL.

Joe Horn and Texas Defense Laws

Last month, Pasadena resident Joe Horn shot and killed two burglars as they robbed his neighbor's home.

What crime is Horn guilty of, if any?

First, here is what is known about the incident: Horn, a sixty-one year old computer consultant, heard glass breaking around 11AM. He looked outside his window and saw two men entering his neighbor's home. After grabbing his shotgun, Horn called 911 and spent around six minutes on the phone with the emergency operator.

When Horn saw the two burglars emerge from the neighbor's home, he becomes worried that the burglars will get away. Despite repeated warnings from the 911 operator to stay inside and wait for the police, he loads his shotgun and goes outside.

He says "Move and you're dead!" and a second later shoots and kills one man. He fires two more shots and kills the second man. Both men are shot in the back. Both are on Horn's property. A plainclothes Pasadena officer, who had just pulled up in his car, witnessed the entire incident.

Under Texas law, one way the State can prove murder is by proving that Horn intentionally caused the death of the two burglars. The punishment range for murder is 5-99 years; probation is not an option since September 1, 2007.

Furthermore, the Harris County D.A. could charge the offense as capital murder since two people died during the same incident. The minimum sentence for capital murder is life--the maximum is death. It is extremely unlikely that the D.A. would pursue a death sentence against Horn because of his lack of criminal history.

It would be a non-death capital murder prosecution, and if Horn is convicted, he would have to serve 40 years before being eligible for parole.

Horn's defense will start with Texas Penal Code Sections 9.42 "Deadly Force to Protect Property" and 9.43, "Protection of Third Person's Property" which can be read to allow the use of deadly force to prevent the burglary of someone else's home.

Horn can also argue self-defense. Horn would argue that the burglars were on his property and he feared for his life.

So far the D.A. has not commented on the case. Their comment will come in the form of a grand jury decision--if the D.A. is behind the case, expect an indictment in the next couple of weeks.

The relevant defense statutes--Self-Defense, Defense of Third Person's Property, and Deadly Force to Protect Property--are located in Chapter 9 of the Texas Penal Code.

Carrying a Handgun in Your Car

A law clarifying carrying handguns in your car takes effect today. Bizarrely enough, the law was championed by both the National Rifle Association and the American Civil Liberties Union.

Basically, a person may now carry a handgun in his vehicle without a concealed handgun license. Furthermore, the person does not have to be "traveling" like under previous Texas law.

However, the handgun may not be in plain view. Also, the person cannot be committing a crime, a member of a street gang, or be prohibited from carrying a firearm by other laws.

Read the revision to the Texas Penal Code Section 46.02 "Unlawful Carrying Weapons"here.

New Non-Disclosure Limitation

The Legislature recently enacted another eligibility requirement for non-disclosures.

After September 1, 2007, a person petitioning for non-disclosure cannot have been convicted or put on deferred adjudication for another offense while on deferred for the offense they wish to seal.

For example, you successfully complete deferred adjudication for theft. However, while on the theft deferred, you picked up a deferred adjudication for assault. You will now not be able to petition to seal the theft deferred.

If you are on deferred adjudication probation and pick up another offense, it is now more important than ever to fight the new charge.

New Non-Disclosure Law for Drug Court Convictions

Today, Governor Perry signed a law that allows drug court prosecutions to be non-disclosed.

What's interesting about this law is that a drug court defendant can seal the record even if they did not receive deferred adjudication. This exception to the non-disclosure law is the only instance in Texas law where a conviction can be sealed.

The requirements are successful completion of a drug court program; no previous felony convictions; no felony convictions within two years of completing the program; and the offense that led to the drug court prosecution cannot have involved driving while intoxicated.

Drug court programs are typically found in larger counties. They stress treatment over punishment and advocate a non-adversarial approach to prosecution. When arrested for a drug offense, one must apply for admittance into drug court.

This new non-disclosure law was passed to motivate drug defendants into applying for drug court.

New Two Year Waiting Period on Misdemeanor Expunctions

The Texas Supreme Court ruled today that if a misdemeanor case is dismissed, the defendant must wait two years before filing for an expunction.

The Court reasoned that the petitioner must wait until the statute of limitations runs out before filing to erase the record. The statute of limitations is the time period that the state has to bring charges against a defendant and starts on the date the offense is committed. The statute of limitation for misdemeanors in Texas is two years.

However, there may be a loophole to avoid waiting two years. The expunction statute may be interpreted to read that even if the two year period has not finished, a defendant may be able to expunge the record if the case was dismissed because of lack of probable cause.

It is also unclear whether the new ruling applies to Class C misdemeanors in municipal court.

Look for the legislature to change the two year rule next time they meet.

Read the Texas Supreme Court opinion, The State of Texas v. Judy Beam, here.

Burglary of a Motor Vehicle

The Legislature has approved stiff new penalties for repeat offenders of burglary of a motor vehicle.

The punishment for a first time offender is up to one year in jail. Now, if a person has been convicted or put on deferred adjudication for burglary of a motor vehicle, the second offense has a minimum confinement of six months in jail.

The minimum term of probation for a second offense is raised to one year.

If a person has two prior convictions for burglary of a motor vehicle, the third offense is now prosecuted as a state jail felony. The punishment range for a state jail felony is six months to two years in state jail.

Read the revised burglary of a motor vehicle law.

Pardon Statistics

The Texas Board of Pardons and Paroles recently published statistics regarding its actions on pardon applications for 2006.

In 2006, the Board looked at 183 applications for full pardons and approved 48 of those for Governor Perry to consider.

The Governor approved 11 full pardons and denied 49 applications. (Some of the applications were left over from 2005).

Governor Perry also approved 3 pardons based on innocence.

Finally, neither the Board nor the Governor commuted or approved a reprieve for a death penalty sentence.

Alcohol Monitoring

Law enforcement is increasing the use of in-car technology to combat drunk driving. In the near future, your car’s keychain or steering wheel might contain an alcohol sensor; if you are intoxicated, your car will not start. One company is even testing a technology that bounces light against a driver’s forearm to test for high blood alcohol levels.

Such technologies are passive and could be installed on all new cars in the future. The current technology—known as the Interlock—is more “active” and obtrusive. An Interlock attaches to a car’s ignition; the offender must blow into the Interlock before the car will start. In Texas, Interlocks are usually used for repeat DWI offenders. New Mexico recently became the first state to mandate the use of Interlocks after a first offense DWI.

The use of alcohol sensors on cars will be a contentious civil liberties fight. On one hand, Mothers Against Drunk Diving and state law enforcement agencies will argue that the technology will curtail the estimated annual 13,000 drunk driving deaths in the nation. Groups worried about the Constitution will argue that installing alcohol sensors on every car encroaches on civil liberties.

Alcohol monitoring devices are expanding outside of automobiles. Often, a condition of being on bond is not to consume alcohol. Judges in Dallas and Harris Counties have ordered defendants on bond to wear “SCRAM” (Secure Continuous Remote Alcohol Monitor) bracelets.

The 8 ounce bracelet—which looks like a large pair of headphones—attaches around an ankle and tests the wearer’s sweat every hour for alcohol. The bracelet sends the results to a monitoring system in Denver. The SCRAM company then alerts law enforcement if the wearer has been drinking.

Courts have ordered over 1400 defendants in Dallas County to wear the SCRAM bracelet. The wearer must pay for the device which costs around $14 a day.

Encounters with Police

What are your rights when a police officer stops you on the street? Can they stop you to ask questions? When can an officer arrest you?

There are three basic types of interactions between officers and citizens: the encounter, the investigatory detention, and the arrest.

An encounter occurs when a police officer approaches a citizen in public and asks questions but has little reason to believe that a crime has occurred. During an encounter, you do not have to answer the questions nor do you have to identify yourself to the officer. You are free to walk away.

If the officer has “reasonable suspicion” of criminal activity, the officer can detain you and investigate. To meet the standard of reasonable suspicion, the officer must be able to articulate facts of criminal activity. Reasonable suspicion is a low burden for a police officer to meet.

During an investigatory detention, an officer can require a citizen to disclose his name and show a form of identification.

Furthermore, during an investigatory detention, if the officer believes his safety is at risk, he may briefly pat down the citizen for weapons.

To arrest a citizen, an officer needs probable cause that the citizen has committed or is committing a criminal offense.

Probable cause means that given all the circumstances, a crime probably occurred. Probable cause is also a low burden for the officers to meet.

Eyewitnesses and the Police Lineup

According to an article in the New York Times, approximately 77,000 people each year are tried for a criminal offense because an eyewitness picked them out of a police lineup.

Lineups are famously flawed. The Times article says that out of the 200 inmates exonerated by DNA evidence in the last few years, 75% of the false convictions resulted from faulty eyewitness identifications.

Part of the problem occurs at the time of the offense. Environmental conditions like poor lighting and human limitations like the inability of the mind to remember faces contribute to misidentifications. Other problems occur at the time of the identification. During the lineup, the police may subtly suggest to the eyewitness whom to choose.

Because of the problems with lineups, several reforms have been suggested. However, the Times article argues that the most significant reform has led to more misidentifications. Several states have adopted the “sequential” lineup procedure in which the eyewitness is shown a person one at a time as opposed to the traditional lineup where all the people are viewed at once. The sequential lineup resulted in more misidentifications and also made witnesses less likely to pick anyone.

The article suggests other often argued reforms to improve the accuracy of the lineup. They include telling witnesses that they do not have to pick anyone; making sure that the non-suspects in the lineup resemble the suspect; and videotaping the procedure so that judges and juries can see how the process was conducted.

A suspect has a right to have a lawyer present during a lineup only after judicial proceedings have begun. So, a suspect who has not been charged cannot ask for a lawyer to be present during a lineup. However, if the police conducted the lineup in a extremely suggestive way, the identification can be tossed on Due Process grounds.

Due Process is also a way to challenge the use of photo lineups—that is, when the police show an eyewitness an array of photographs and ask them to choose a suspect.

Andrea Yates and the Insanity Defense

Yesterday, District Judge Belinda Hill delayed the start of Andrea Yates' capital murder retrial until June 22, 2006. Her defense lawyers had asked for a continuance to accommodate a scheduling conflict with two expert witnesses.

Yates drowned her five kids in June 2001. She was convicted of capital murder in 2002 but an appeals court threw out the conviction last year because of improper testimony by a prosecution witness.

Dr. Park Dietz, a California psychiatrist who was paid $500 an hour by the State for his expertise, testified that the television show Law and Order had an episode where a mother kills her children and is acquitted with an insanity defense. Prosecutors argued to the jury that Yates regularly watched Law and Order. However, no such episode exists and Yates was granted a new trial by the 1st Court of Appeals.

Texas has one of the most restrictive insanity defenses in the nation. It is rarely used and almost never successful. Yates will have to prove that she was suffering from a severe mental illness and that she was incapable of knowing right from wrong.

Unlike many states, Texas does not tell jurors definitions of "knowing" and "wrong." The lack of definitions contribute to a vague standard and often jurors are reluctant to find insanity when a defendant has some minimal appreciation of having committed a crime.

Texas, like many states, restricted the insanity defense after John Hinckley was acquitted by reason of insanity of shooting President Reagan in 1981. Hinckley claimed that he shot President Reagan to impress actress Jodie Foster.

Dick Cheney

Is the Vice-President going to be a guest of the Texas Department of Corrections? Obviously not. But hypothetically, could he be prosecuted for his errant shot that injured his fellow hunter?

The answer is probably not. None of the statutes in the Texas Penal Code apply to the Vice-President's actions. The closest statute would be 22.05, Deadly Conduct, which states that "A person commits an offense if he recklessly engages in conduct that places another in imminent danger of serious bodily injury." This prohibition would not usually apply to hunters, especially ones that exercise caution like the Vice-President did. The typical deadly conduct offense is when someone randomly fires a gun at an apartment building or house.

If Mr. Whittington died from Mr. Cheney's gunshot, then the Vice-President could be prosecuted for Criminally Negligent Homicide, which is when the defendant causes the death of a person when he should have been aware of a risk that a death might occur. Hunters who accidentally kill other gamesmen are often prosecuted under this type of statute.

However, even that is a stretch. The only legal violation on Mr. Cheney made was not having an upland game stamp on his hunting license. After the accident, Mr. Cheney rectified this violation by sending a $7 check to the Texas Department of Parks and Wildlife.

Incidentally, the Vice-President is a convict. He has two D.W.I. convictions in Wyoming from his early twenties.

...

Recent Results

I am proud to have gotten positive results in the last month for three good people caught up in the criminal justice system.

--Two weeks ago, I won a not-guilty verdict in an assault with bodily injury jury trial. I was able to show my client acted in self-defense. The client is an inner city school teacher who is two classes away from a masters degree in education. He grew up in a broken home, never knew his father and paid his way through college by working at Wal-Mart.

--I won two felony non-disclosure orders for a client who has three other convictions. I was able to show the judge that the client had put his criminal trouble behind him--the client had picked up five offenses right out of high school but in the ten years since then, has become one of the top salesmen in the nation in his field. He was in jeopardy of losing his job because he could not get bonded with a felony probation; now he will be able to continue with his career.

--Finally, I am proud to have represented one of the founders of the non-disclosure movement in Texas in his bid to seal his felony record. I won a non-disclosure order for an offense he committed in high school (stealing a computer from his school with his friends). Because of him, Texans who put their offenses behind them and become productive members of society are able to seal their records and move forward with their lives. It will be nice to see him do the same.

Warnings About Plea Agreements

When accepting a plea agreement from the state, every criminal defendant needs to consider the future ramifications of the offer on their record.

For example, many defendants may accept time served in jail as a punishment for misdemeanors like theft or assault. This offer initially sounds like a good one--the defendant has already served the jail time and will be released without further punishment.

However, taking this offer will result in a final conviction that can never be erased from the defendant's criminal record. So every time that person applies for a job or for credit or to live in an apartment building, the conviction will come up in a background check.

Another example: the standard plea offer for a first time DWI in most Texas counties is probation. However, if a first time offender takes the case to trial and loses, the judge will most likely give probation as the punishment. Therefore, there is no reason to accept the plea offer of probation. There is nothing to lose by taking the case to trial. Probation results in a final conviction that can never be expunged. The first time DWI offender should almost always set the case for trial and go for the not guilty verdict.

Since 9-11, employers are performing more and more background checks and a conviction can easily prevent a person from getting a job that they are qualified for.

So what seems like a good offer initially might not be in the future. People accused of crimes should make sure that their lawyer explains the ramifications of a plea punishment on their criminal record. And remember, that even with deferred adjudication, some types are not eligible to be sealed.

For example, many people accept deferred adjudication for assault. However, if the assault involves any type of family violence (which includes "dating violence"), the offense can never be sealed.

Ultimately, a defendant's best choice is often to fight the charges and go for the not guilty verdict.

Tom DeLay

On September 28, 2005 a Travis County grand jury indicted U.S. House of Representatives Majority Leader Tom DeLay of Sugarland on one count of conspiracy to violate state election laws. Republican Party rules prohibit their top officers from being under indictment, and DeLay gave up his position as majority leader.

On October 3, 2005, a different grand jury in Travis County re-indicted DeLay for conspiracy and added a count of money laundering. DeLay's lawyers claimed that Ronnie Earle, the Travis County District Attorney, was forced to seek the second indictment because of technical flaws in the first indictment regarding applying conspiracy laws to the state election code.

The controversy stems from DeLay's actions in the 2002 Texas state elections. The Texas Election Code generally prohibits corporate donations to candidates seeking state office. What DeLay and his associates supposedly did was raise corporate money, transfer the money to the Republican Party National Committee, and have the RNC give the money to state candidates.

Some of the candidates became state legislators who helped give the Republican Party in Texas enough of a majority in the state Congress so that they were able to redraw congressional districts to have more Republicans elected to the U.S. House of Representatives.

DeLay has responded to the indictments with a strong legal and media counterattack. His lawyers have filed every possible motion to stymie the prosecution, from challenging the indictments to asking that the trial judge in Austin recuse himself because he contributed $200 to Moveon.org, a liberal political action group.

DeLay and his followers have attacked Earle, who is a Democrat, as partisan, while proclaiming the ex-majority leader's innocence. When DeLay was required to turn himself in to the police, he suggested that he would so in Fort Bend, his home county. While the media waited there for him, DeLay surrendered himself in Houston. When photographed for his mug shot, DeLay smiled broadly; many commentators have said that he grinned for the camera so that Democrats could not use the mug shot for negative publicity.

When Police Can Search Your Car

People often ask me under what circumstances are police allowed to search their car. They are usually wondering about searches made during stops for speeding or other traffic code violations.

Generally, a warrant is required to search your property. However, there are exceptions for automobiles. The main rationale for the exceptions is that since cars are mobile, they will be gone before an officer can get a warrant to search from a judge. A secondary rationale is that since cars are on public streets, drivers should have a reduced expectation of privacy compared to their homes.

The automobile exception to the warrant requirement has two parts:

1. If the police have probable cause that the car contains something illegal like a prohibited weapon or drugs, then they may search the car. Or if the police have probable cause that the car contains the tools used to commit a crime or the proceeds or evidence of a crime, then they may search the car.

Under this part of the exception, the officer can only search the part of the car where what he is looking for may be found.

So if a police officer pulls a driver over for speeding and smells marijuana, he may search the entire car for the drug, including any containers like cups or purses. But if he has probable cause to believe that you have an assault rifle in the car, he could only search where the gun could be hidden and not, say, in a thermos.

2. If an officer makes a lawful arrest of the driver of the car, he may make a warrantless search of the passenger compartment of the car. This search includes the glove compartment but not the trunk.

Note: an officer may always search your car without a warrant if you consent to the search. Sometimes police will pose the question with the implication that you do not have the legal right to refuse. However, you can refuse to consent.

And sometimes a police officer will search your car and then say that you consented when you did not. In a trial, your lawyer can move to suppress whatever the officer found that was illegal, and it will be your word versus the officer's about whether you consented to the search.

Some Warnings About Deferred Adjudication

Many people have misconceptions about deferred adjudication probation in Texas. The most common misconception is that the offense is erased from your record if you successfully complete the deferred probation period. This belief is incorrect.

A deferred sentence will still be on your criminal history after you complete the probation period. To erase the record and be able to deny the arrest, you must file a petition for non-disclosure.

Furthermore, some deferred sentences are ineligible for non-disclosure. For example, any crime involving family violence is ineligible for non-disclosure. So, if you take deferred adjudication for a Class B assault that involves family violence, that sentence will stay on your criminal history forever.

Finally, some deferred sentences require a waiting period before the petition for non-disclosure can be filed. For example, some misdemeanors like assault or unlawfully carrying a weapon require a two year waiting period before the petition can be filed. That is, you must wait two years after completing your deferred probation before attempting to clear your record. For felonies, the waiting period is five years (as of 9-1-2005).

Many lawyers convince clients to take deferred sentences by arguing that the record will eventually be sealed. Remember that some offenses can never be sealed, and some offenses require the waiting period. So while deferred adjudication is often a good deal, sometimes you might be better off fighting the charge and proving your innocence.

For an explanation of deferred adjudication, see my FAQ page.

For information about petitions for non-disclosure, see my Clearing Your Record page.

How Much Time Do Prisoners Really Serve?

For Federal cases, parole has basically been abolished. Most federal criminals will serve 90% of their sentence.

For Texas cases, the answer is it varies depending on the crime and the decision of the Parole Board.

For capital murder: as of September 1, 2005, Texas will have a life without the possibility of parole option for capital murder. The capital murder defendant sentenced to life in prison before September 1, 2005, is parole eligible after serving forty years. The release is not automatic--a full vote from the Board of Parole is required.

For the next group of legislatively designated serious offenses like murder, aggravated kidnapping, aggravated sexual assault, and aggravated robbery, the defendant must generally serve at least half of the actual sentence to be parole eligible. Once again, eligibility does not mean release. Most prisoners are not released when parole eligible.

For other first, second and third degree felonies, the prisoner is parole eligible when calendar time plus good conduct time equals one-fourth of the sentence. Good conduct time is earned by participating in work and self-improvement programs. Good conduct time can be subtracted for disciplinary violations.

For state jail felons, parole eligibility does not apply. State jail felons generally serve every day of their sentence.

Time served for misdemeanors in Texas varies by county. In Harris County, misdemeanor defendants usually get two days credit for one day served. In counties with more crowded jails, a defendant may get three days credit for each day served. In less crowded counties, a defendant may serve every day of the sentence.

(Note: the above information regarding felonies applies to offenses committed after 9-1-1999.)

HPD Lab Investigator Releases First Report

The independent investigator of the Houston Crime Lab released the first part of his report today. In the report, Michael Bromwich, a partner at the law firm Fried Frank and a former US Justice Department Official, detailed several problems of the now infamous lab.

The report argues that the Houston Police Department and the City of Houston failed to give the lab enough funding to hire qualified scientists and technicians. Many employees left because of low compensation.

Furthermore, the lack of funding resulted in substandard equipment and poor testing and storage conditions. The report states that the lab had six years of roof leaks which could have jeopardized DNA testing. Furthermore, the 2001 Tropical Storm Allison flooded the lab and ruined biological evidence.

The report also discusses instances of "drylabbing" which is when technicians fake the testing of drugs. There are at least four documented instances of drylabbing.

The HPD Crime Lab scandal broke in November 2002. The integrity of DNA, ballistic, toxicology, and serology testing have been called into question. DNA re-testing in at least 400 cases is likely to occur.

The report is available on the web here.

Governor Approves Life Without Parole

On Friday, Governor Perry signed into law Senate Bill 60 which makes life without parole an option in capital murder prosecutions. Previously, in a capital murder prosecution, jurors could select between either death or life with the possibility of parole.

The old law helped prosecutors secure more death sentences because jurors often did not want to have the possibility of a defendant convicted of capital murder eventually released. The new law should decrease the amount of death sentences as jurors will vote for life knowing that the defendant will never be released from prison.

Supreme Court Continues to Police Texas Death Penalty

In the last few years, the US Supreme Court has spent an unusual amount of their docket on Texas death penalty appeals. The justices hear oral arguments in around 100 cases a year; only a small percentage of those are criminal. Yet they have taken four death penalty appeals from Texas in the last two years.

Today, the Court announced that after twenty years of appeals, Thomas Miller-El would be granted a new trial. Miller-El was sentenced to death for his role in a murder-robbery of a Holiday Inn.

Miller-El won a new trial because the Court found that Dallas County prosecutors used their peremptory strikes to eliminate African-Americans from the jury. Racially motivated peremptory strikes are a violation of the Equal Protection Clause. See "Selecting a Jury" in my Guide to Texas Criminal Cases for a discussion of racially motivated peremptory strikes.

Read the Supreme Court opinion here.

US Supreme Court Overturns Anderson Conviction

In a defeat for the Justice Department, the Supreme Court today reversed the 2002 criminal convictions for obstructing justice against Arthur Anderson.

The Supreme Court said that the federal judge presiding over the trial should have instructed the jury that the government had to show that Arthur Anderson employees were breaking the law when they destroyed the documents. Instead, the judge instructed the jury that even if Anderson believed its conduct was lawful, they could convict.

Read the Supreme Court opinion, Arthur Anderson LLP v. United States here.