Evidence of Drug Possession

Guest Post by Lauren Williams, legal writer for Michael J. Brennan, Chicago Criminal Defense Law.

Possession of drug or other contraband is punishable under Texas Criminal Law. “Possession” means actual care, custody, control or management. To prove the possession of a drug or other contraband, the State must prove that: (1) the drug or contraband was under the control of the accused; and (2) the accused knew the substance possessed was drug or contraband. The evidence of the possession can also be inferred from the facts and circumstances. But the evidence must establish, to a required level of confidence, that the accused’s link with the drug or contraband was more than just fortunate.

The law of possession regarding the drug or other contraband is designed to protect the innocent bystanders from conviction based solely upon his fortuitous closeness to someone else’s drugs. The concept behind this law is that a family-member may jointly enjoy possession of the property like a home but not necessarily jointly possess the drug or contraband found in that home.

If the State could provide evidence beyond a reasonable doubt that the accused is in the exclusive possession of the drug or contraband, that evidence is sufficient to get a conviction. But if there is no straight evidence, the State ought to provide evidence from the facts and circumstances to link the drug or the contraband with the accused. The evidence based on facts and circumstances can be:

(1) the appearance of the accused during the search;
(2) the drug or contraband was easily viewable;
(3) the drug was very near and accessible to the accused;
(4) the accused was under the control of the drug;
(5) the accused was possessing the drug or contraband at the time of his arrest;
(6) statements by the accused that strongly imply the guilt;
(7) the attempts of the accused to run away;
(8) secretive gestures of the accused;
(9) smell of drug or contraband;
(10) appearance of other drug or contraband;
(11) accused’s ownership and possession of the place where the drugs were seized;
(12) the enclosed appearance of the place;
(13) availability of large amount of cash with the accused; and
(14) the behavior of the accused that indicates the awareness of the offense.

The State could make an affirmative link with the accused by providing any of the above circumstantial evidence for establishing possession of the drug or the contraband.

In Eldridge v. State, 2011 Tex. App. LEXIS 3315 (2011), the Court of Appeals of Texas, Fourteenth District, Houston held that “the number of possession factors present is not as important as the significance of those factors in establishing the elements of the crime. It is the logical force of the circumstantial evidence, not the number of links, that supports a jury’s verdict.”

Mere presence alone at a place where the drug or contraband is being used or possessed by
others does not justify a finding of joint possession, or constitute one a party to an offense.

 

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How Does the Fifth Amendment Prevent Self-Incrimination?

Defendants incriminate themselves if they offer direct or indirect evidence that they committed a crime. Under the Fifth Amendment to the U.S. Constitution, defendants in the United States are under no obligation to incriminate themselves.

Examples of Self-Incrimination

If the police question an individual at the police station, some of the individual’s answers might incriminate them. For example, the police might ask if the person was present at the scene of the crime. If that individual admits that he was there, he might risk incriminating himself.

A straightforward example of self-incrimination involves a defendant who tells the police that he committed a crime. Most examples of self-incrimination are not as apparent.

An experienced criminal attorney can help a defendant avoid self-incrimination. A person should always seek the advice of a lawyer before providing information to the police or the prosecution.

The Fifth Amendment Protects Criminal Defendants

A person who is interrogated by police does not have to provide answers. The Bill of Rights in the Constitution is designed to protect the rights of citizens. The Fifth Amendment to the Constitution, in particular, allows people in the U.S. to remain silent when police question them. Those who are arrested are only required to give basic identification information such as their name. The police are prohibited from compelling people to incriminate themselves.

A person questioned by the police or the prosecution can invoke the Fifth Amendment and refuse to answer questions until he has his lawyer present. A criminal lawyer can give guidance to a defendant and advise him on which questions are appropriate to answer.

A Defendant Can Waive the Fifth Amendment

Defendants have the right to refuse to answer questions to avoid self-incrimination. However, they may choose to waive this right in some instances.

Under most circumstances, police read a defendant his Miranda Rights (also known as Miranda Warnings) when they charge him with a crime. Miranda Rights come from a U.S. Supreme Court decision called Miranda v. Arizona. They inform defendants that they do not have to speak with the police. If a defendant does speak to the police, whatever he says can be used against him in a court of law.

A defendant who knowingly waives the protections of the Fifth Amendment and provides self-incriminating information must live with the consequences of his decision.

For more information regarding self-incrimination and the Fifth Amendment, talk to the attorneys at the Miller Law Group, PLLC by calling 713-866-6233.

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Comparison of Ignition Interlock Devices

DUI (Driving under the Influence) is a great offense in theUS. One of the punishments given to drivers who are in breach of this law is installation of ignition interlock devices, also commonly referred to as IID in their cars and trucks.

Ignition Interlock Definition
IID is an electronic gadget that is installed in an automobile’s ignition system. The primary function of IID is preventing drunk drivers from operating their automobiles by disabling the automobile’s ignition system if the blood alcohol content is above the recommended 0.08%.

Whereas ignition interlock devices primarily function in preventing a drunk driver from operating an automobile, it also safeguards against repeat offense.

How Do Ignition Interlock Devices Work?
Before starting your car, you have to first of all take a breathalyzer test. If the alcohol level in your breath is beyond the legal limit, then your car won’t be able to start and as such you will be compelled to take a taxi or get a designated driver. Then again, the system has been designed in such a way that drivers cannot get friends take breathalyzer tests on their behalf. During the course of your journey, the IID will prompt you to provide breath samples.

When Are You Required to Install IID In Your Car?
If you are a first time offender and it is determined that there were no fatalities, injuries and damages, you may not be compelled to install an ignition interlock device. Then again, this will be at the discretion of the DMV (Department of Motor Vehicle) or courts of law.

Failure to install IID after being directed by the court to do so may result in the suspension of your driver’s license. Generally, the department of motor vehicle requires the installation of ignition interlock devices after you have been arrested and convicted of DUI for the second time. You will also be required to do so if you are found to be driving on a suspended license after being arrested and convicted of DUI.

Comparison of Ignition Interlock Devices
Listed below are the different types of ignition interlock devices that are used.

1. Court Ordered Ignition Interlock Devices
After you have been directed by the Orange County DUI court to install an ignition interlock device, you have no choice but to have on fitted into your car or truck from a certified installer. Thereafter, you have to provide the presiding judge with proof that the IID has been fitted.

There are certain forms as well as procedures that are utilized by the local court to keep tabs on people who have been directed to install the devices in their cars. Failure to install a court ordered IID will result in automatic suspension of your driver license.

2. DMV Ordered Ignition Interlock Devices

If you have been arrested and convicted of DUI offense, DMV has the right to restrict your driving privileges by directing you to install IIDs.

If you have been directed by either the court or DMV to install an ignition interlock device, it is important that you hire a DUI attorney to give you legal counsel.

About Guest Post Author:

Christopher J. McCann is a practicing criminal defense lawyer Long Beach at the law offices of Christopher J. McCann who was recently awarded his 6th SuperLawyers Magazine “Rising Star” award. You can follow Chris tweets at @cjm_law_firm

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Man Charged in 30-Year-Old Murder Case

Police in Galveston County believe that a 30-year-old cold case is finally coming to an end.

Detectives had always been suspicious of Clyde Hendrick, 59. He is now charged with murder because of recent forensic findings.

The victim, Elena Rae Beasom, went missing in July 1984. She was last seen at a club in League City. Her friend thought it was odd that her car was still in the parking lot a day after.

Police arrested Hendrick in San Leon after Beasom’s remains were found near a road in Galveston County. An autopsy revealed that she was bludgeoned to death. Hendrick had admitted that he swam with her in a League City pond after they met. This confession makes him the main suspect.

He is being held on $150,000 bond.

Read here for the rest of the story.

If you are facing murder accusations, talk to Gary Miller and the lawyers at Miller Law Group, PLLC at 713-866-6233.

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What Are Your Rights After You Have Been Caught Shoplifting?

The following is a guest article and does not necessarily reflect the views or opinions of Miller law Group, PLLC.

Shoplifting is a crime and can be dealt with severely in Texas.  Shoplifting is the theft or stealing of merchandise from a store.  The definition of the crime in Texas requires that the person intend to permanently deprive or take the merchandise from the owner of the store without paying the value for the item.

This can be done in any number of ways, including price tag switching, concealing an item, being a lookout for another shoplifter, refund fraud, or if you have a friend operating the cash register undercharge you for the item.

Does The Owner Of The Store Have The Right To Detain Me For Shoplifting?

The answer is yes but there are restrictions on the detainment.  It is generally known as the shopkeeper’s or merchant’s privilege, which allows the owner to take reasonable measures in investigating someone that is suspected of shoplifting.  The owner of the store is allowed to physically detain someone suspected of shoplifting.

The shopkeeper’s privilege is allowed to shield business owners from potential lawsuits for false arrest, false imprisonment, use of force, assault or malicious prosecution if their suspicions turn out to be incorrect.

In general, the courts use a “reasonable person” standard to determine the behavior of the shopkeeper under the circumstances.  If there is a reasonable belief that an item was stolen then the owner is given the ‘privilege’ of making reasonable investigations and may detain the suspect for a reasonable time until the police get involved or the matter has been resolved.

The owner must follow proper procedures in detaining an individual that is suspected of shoplifting.  In order for a store owner to avoid potential liability when detaining a person, the owner should generally have witnessed the act by way of security camera, or hears from an employee who gives a first hand account or other witnesses that can verify that the shoplifting happened.  For probable cause to be established the owner must establish the following:

  • That the suspect concealed or carried away an item
  • The owner or a witness observed the suspect’s behavior for a prolonged period.
  • It was witnessed that the suspect exited without paying for the merchandise.

If the shop owner observes the actions listed above he/she is authorized to stop the shoplifter inside or near the store.  The owner is also allowed to use reasonable non-deadly force to stop the suspect within or just outside the store.  The detainment can last for a reasonable period of time in order to carry out an investigation.  It is important to note that a store owner cannot arrest an individual and may only detain them.  Owners are not allowed to force a confessions or perform searches that violate privacy laws.

What Should I Do If I Am Being Suspected Of Shoplifting?

If you are being accused of shoplifting you have the right to call for help; usually you can request an attorney or ask that the police carry out their own investigation.  Remember that once the police arrive they will investigate and most likely ask you questions which you are not required to answer.

At this point you should request to have an attorney present and exercise your constitutional right to remain silent.   Contact a Texas criminal defense attorney who can help defend you and protect your rights.  An attorney will be able to review the evidence against you and determine whether the prosecutor can prove their case or whether the charges should be dismissed.

Author Bio

Adam H Rosenblum is a criminal lawyer admitted to practice in NY and NJ. His websites is rosenblumlawfirm.com.

 

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Federal Criminal Charges

The following post was provided by Lauren Williams, legal writer for King Law Offices

Federal criminal charges stem from violations of legislation that has been enacted by the United States Congress. Of course, every resident in the United States is in a particular state, so adjudication of federal charges is predominantly done in federal courts located in state territories. However, state location does not impact court proceedings. Federal prosecution and sentencing guidelines differ from state guidelines on several points. Additionally, the United States federal government is sovereign to state governments and overlapping charges can become complicated, such as when federal authorities request state case dismissal if a state case impedes a federal prosecution.

There is no national distinction for specialty legal fields established by the federal government. Attorneys build expertise by practicing in a particular area and letting their professional track record serve as an indication of professional efficiency. However, the National Board of Legal Specialty Certification does certify attorneys who meet the requirements for professional recognition. Texas is one of the states that certifies legal representatives in general areas of law, such as criminal and criminal appellate. Additionally, the NBLSC certifies trial attorneys across the nation who have demonstrated expertise at handling trials on both levels.

Criminal defense qualifications in a federal case a very important for any defendant. Federal investigations normally involve significant manpower time and expense. As a result, all federal criminal charges become very serious matters for both sides in the case. Federal criminal statutes are constantly changing, and it is important to have an attorney who is knowledgeable of all new criminal statutes and effective methods of defending against them.

Many federal criminal charges are particularly common in certain regions of the country. Texas is a prime example of this phenomena, as federal drug trafficking and transportation charges often originate in the state of Texas. Immigration charges are also predominant in Texas because of its proximity to the Mexico border.
This is becoming a major issue and a burgeoning area of criminal law.
Texas is also home to a vibrant economy and is home to many wealthy corporations and individuals. Typical federal cases of tax evasion and various other white-collar business activities and government deceptions are common. There is also a possibility that illegal gun ownership could be an emerging area of criminal activity, as the United States government moves to control gun violence.

Sentencing guidelines in Texas also differ significantly from federal sentencing guidelines. States have a tiered prosecution system where all crimes all classified as misdemeanors or felonies. Misdemeanors are prosecuted in district courts and carry sentences of less than one year. Felonies are classified according to seriousness of the crime and sentencing is guided by classification level. Felonies carry anywhere from one year incarceration penalties to the death penalty for certain murder convictions.

Federal criminal prosecutions are exclusively felony charges and guidelines for sentencing are much stricter than states. The length of sentences can be enhanced and qualifying for parole can be much more difficult. Navigating a federal conviction requires solid experienced legal representation that can argue for a charge reduction or lighter sentence, including guaranteed parole or probation. The rules of evidence presentation for federal cases also differs from state cases , requiring a defense attorney with extensive knowledge of federal criminal defense law.

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DNA Testing in Criminal Cases

The following is a guest post by Ron Mondello. The opinions in the article below do not necessarily reflect the opinions of Miller Law Group, PLLC.

DNA testing is fast becoming an important choice for linking individuals with crime scenes. It is also used to prove the innocence of wrongly-convicted prisoners as DNA evidence is considered an integral part of any major crime investigation. DNA evidence is also used in criminal trials and its use has grown more during the past couple of decades. Before that, fingerprints were mostly used to identify an individual and were used as evidence in courtrooms. If you have been involved in a criminal case, you should know the truth about DNA testing and how it actually works. One important think to know about DNA testing is that the way it is actually used is quite different from what we usually see on TV shows like CSI and Law and Order. Whatever your criminal charge, be sure to discuss the implications of a potential DNA test with your attorney and also understand how DNA evidence works.

Things to know about DNA evidence

The first thing to know about DNA evidence and testing is that there are certain elements of a person’s DNA that are unique for every individual. Moreover, DNA for an individual can be retrieved from just a few cells taken from the person, such as a droplet of blood, a strand of hair, sweat, saliva, skin or even semen and other kind of body fluid. Professional criminals may know how to avoid leaving a bit of themselves behind at the crime scene, but most people do tend to leave something behind at the crime scene which can be used to identify them and link them to the crime scene.

The next thing to know about DNA testing is that the technology used in crime labs for comparing DNA samples is extremely complex. It is also not understandable by just everyone. However, local police agencies are becoming more and more acquainted with comparing DNA samples taken from the crime scene and concluding who the actual culprit is. If you have been involved in a crime which can prove your innocence by a DNA sample, you must hire an experienced criminal defense attorney to represent you in court. When matching a DNA fingerprint to a sample, all the elements must be equal for it to be an exact match. Even a single unequal element means that there is no match between the samples.

You and your lawyer must also understand that there are two types of DNA testing. DNA fingerprinting or RFLP (Restriction Fragment Length Polymorphism) is the first type and PCR (Polymerase Chain Reaction) or amplification test is the second type. RFLP requires a better sample and takes up to eight weeks whereas PCR can be conducted on minimal sample and takes one to three days. The accuracy rates also differ for both these tests.

Using DNA to prove innocence

Apart from using DNA to associate an individual with the crime scene, it can also be used as a powerful tool to determine the innocence of an individual. If a wrongly convicted prisoner’s DNA does not match the DNA sample of the crime scene DNA, which is still available for testing, it can prove the prisoners innocence. So talk to your lawyer if you are innocent and your lawyer will be able to find a way to prove your innocence.

Author Bio:

Ron Mondello is a Criminal Defense Attorney and is located in the same building as the Fair Lawn Chamber of Commerce on27th Street in Fair Lawn. Ron has been practicing the defense of traffic tickets and other municipal court matters for over 10 years. He has successfully resolved hundreds of municipal court and DMV matters.

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DWI Arrest/Investigation – No innocent answers

Police officers are trained to ask seemingly innocent questions in order to gain valuable information that can assist them to gather further evidence or to develop probable cause to arrest you. During DWI investigations, officers ask simple questions about where you have been or where you are going and what time you believe it is right now. Any answer provided by you,  will then be twisted to demonstrate that you are intoxicated.  People in contact with police officers are immediately nervous and defensive and might give long explanations. The longer the answer there is more of a chance that at least one fact might be inaccurate. It is very difficult to estimate what time it is when requested, further compounded by a police officer interogating you. Intimidation is also an unspoken tactic that officers use to put pressure of suspects in the hope that fear will also make them more likely to confess or make false statements that can be used later in court. The Miranda warnings do not apply while an investigation is pending since no one has been placed into custody; officers, of course, know how to skilfully coax information without even placing handcuffs on you.

If you are pulled over for a possible DWI investigation, politely decline to answer police questions and immediately request a lawyer. Do not change your mind and break down and start answering the questions. It will be difficult, but you must hold steady in your ability to respectfully refuse to answer any police questions. I regularly help individuals on  that could have helped themselves by simply being quiet. Prosecutors and police officers have infinite resources to investigate a case against you, please do not give them more information that could possible be used to convict you.

Contact me immediately if you have been arrested in Harris County. I will use my skill, experience, knowledge and talent to defend you from the government.

 

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Houston DWI Lawyer | Field Sobriety Testing

I’ve successfully defended and prosecuted 100s of DWI cases along with reviewing videos containing the standardized field sobriety tests. Although I have been highly trained to carefully analyze how police officers conduct the administration of the tests and how individuals perform, I’m dedicated to continuously increase my knowledge to defend my clients to the fullest. So I  felt it was necessary to obtain the exact same training that police officers receive to be the best Criminal Defense Attorney.  After taking the  National Highway Traffic Safety Administration (NHTSA) Standardized Field Sobriety Testing Practitioner Course, I have greater awareness of the science (and the accompanying alleged “studies”) and weaknesses behind testing instructions and administration.

This course is the same course police officers are required to pass in order to conduct field sobriety tests on individuals along the roadside. Some of the main points that I’ve taken away from the course is:  the main focus should be not the field sobriety tests themselves, as the cops love to focus on ignoring the normal behavior you display.  The totality of the circumstances should be the actual focus such as:  how and why you were pulled over, your reactions to the officer, answers to questions asked by officers, how you were driving are also apart of the determination of whether your facilities were impaired.  Thus, the roadside gymnastics are only part of the whole picture. I use the word “gymnastics” because the testing is not how people actually stand or walk, sober or otherwise. Have you ever seen someone walking on the sidewalk with the arms down to their side, while having each step touching heel to toe?  It is an abnormal way to test if someone is “normal.”

Remember if you are pulled over and asked to perform the standardized field sobriety tests, you have the right to refuse the test.  If you have been arrested and are looking for an experienced DWI Attorney that understands the testing contact me today.

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Houston Criminal Lawyer | How to Get out of Jail | Bail Bonds Explained

Usually, one of the first questions I receive from the friends or family of a client, looking for an attorney is, “What is the best way to get my son [daughter, girlfriend, dad, friend etc.] out of jail.”

To get someone out of jail you will need to post a bond. There are three different types of bonds available which include a cash bond, a surety also known as a bondsman, or a Personal Recognizance (PR) Bond.

A cash bond is a cash payment in the full amount of the bond; such as a standard first time offender charged in Harris County would be $500. The advantage to posting a cash bond is that the money will be returned to you after the case has been resolved, if the defendant has attended all court appearances as required. It also eliminates extra requirements, such as having to report weekly to a bonding company.

By using a bondsman (a surety), this allows you to pay only 10 – 15% fee of the total amount of the bond. The bondsman will post the full amount of the bond. The service fee paid to the bondsman is non-refundable and is how they make their profit. Bondsman take the risk that the charged individual will appear to each court setting or lose the money posted for the full bond. To ensure defendants attend court as scheduled, most bonding companies in Houston require customers to either check in weekly by phone or in person. Failure to comply with a bonding companies’ rules may result in losing the continued priviledge of remaining on bond and being re-arrested, requiring you post bond for a second time.

A PR bond is less common and granted under special circumstances. It is usually reserved for low-level, non-violent charges for first time offenders. The offender is released on their on assurance that they will show up to court and no money is required to be paid.

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