Theft Values

One of the most basic criminal charges that we hear about and most people understand is theft. In one way or another, the public has the same definition for it. Ultimately it means someone took something from someone else and didn’t give it back. Here in Texas, theft is found in the Texas Penal Code under section 31.03. The legal definition of theft in Texas is “A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of said property.” What makes theft interesting and why I chose to make it the topic of this blog is because of the punishment. The punishment for theft depends on the value of the property stolen. Theft punishment can range all the way from a simple fine to a first degree felony, depending on the value of the property stolen.

I recently had an interesting case where the defendant was accused of stealing furniture from a home furniture store that he worked for. The furniture was purchased by an online customer who was going to pick it up later that day but unfortunately was stolen by defendant. The total value of the furniture stolen was estimated to be $1,529.48. With the property value being that much, it falls under a state jail felony (a value between $1,500 and $20,000). A state jail felony carries a punishment range of a minimum 180 days and a maximum of 2 years in jail with a heavy fine. It bugged me that we were just $29.48 over the limit making it a state jail felony. I knew that if I were to reduce the value of the property to under $1,500, the case would drop down to a class A misdemeanor which only carries a maximum punishment of one year. The evidence I was given by the prosecutor’s office showed that the furniture was listed for $1,529.48 on the internet; however, my client knew that the store was a second hand furniture store and the prices online never were what the items actually sold for in the store. This triggered a light bulb in my head and I thought that if I can show that they were sold for cheaper then maybe my client could get it reduced to a misdemeanor. Remember, all I needed to do was reduce the value by $29.48.

I filed a motion for discovery with the court, which allowed me to get my hands on any evidence that is “material to the defense of the accused.” Here the argument to the court was that I wanted to get a receipt between the store and the customer who purchased the furniture to prove that the value of the furniture was in fact $1,529.48 and not sold at a discounted price. The prosecutors tried to counter and say that the online price should be evidence enough of the value but I was able to defend it by saying, “furniture stores always have deals and specials, it could be that this furniture was discounted at the time of purchase.” Ultimately the judge granted my motion for discovery, and I was able to force the store to show me the receipt of that transaction. After about two weeks of waiting, the transaction paperwork finally arrived. The furniture WAS sold at a discounted price and the total was $1,398.16! Since the value of the property was actually below $1,500, the theft charge was no longer a felony but instead a class A misdemeanor.

In conclusion, sometimes when you are dealing with a case that involves a certain monetary amount, be sure and do extra investigation to make certain the amount in question is legitimate. In this case our best chance was reducing the amount by $29 and luckily we were able to do so. A motion for discovery should always be filed because it lets you get your hands on the information that you need to protect your client. Sure, sometimes it may be more work and more papers to go through, but upholding justice goes both ways and it’s not fair to be accused of stealing a certain amount of property when in reality that the value was different.

Criminal Conduct and Immigration Holds

The Criminal Justice System and Immigration Courts are two entirely different judicial proceedings, though they ultimately can be tied in together for certain defendants. When a person is in this country illegally, they are by default “removable” (the politically correct term for deportable). The truth is that the number of undocumented people in this country far exceeds the Department of Homeland Security’s (DHS) capacity to deport. So, in 2014, the DHS created a “Removal Priority System,” a ranking system for people who are to be deported based on the country’s priority to deport them. At the top of the list are people with criminal convictions.

I frequently see clients who either already have or fear an immigration hold. An immigration hold is a form of detention placed by Immigration Customs Enforcement (ICE), the immigration police arm of DHS. ICE will instruct the local jail housing the inmate not to allow them out under any circumstances until ICE comes and gets them. Remember, DHS is trying to remove people with criminal convictions. At this point, the defendant is at the mercy of DHS. Even if the defendant bonds out of jail, the jail will notify ICE who will take him or her into custody. If the defendant pleads guilty, the same will happen. The only way to remove an ICE hold is if a defendant’s case is dismissed or if he is determined not guilty. At that point, since the defendant no longer has criminal proceedings against him or her, the defendant drops to DHS’ second priority, dramatically reducing the likelihood for deportation.

I have found that in Harris County, due to the immense amount of criminal proceedings occurring daily, ICE will only apply an immigration hold if the charge is a felony or a serious misdemeanor. The reason being that serious criminals should be the highest priority of removal from this country.

If ICE does detain and transfer a defendant to immigration jail, the defendant may or may not be eligible for a bond under Immigration Nationality Act 236, depending on the criminal conviction. The Immigration Nationality Act sets the rules governing immigration proceedings, while the Texas Penal Code is what governs criminal proceedings.

Sometimes serving undocumented clients means an attorney has to face both criminal and immigration issues. Criminal convictions can have serious consequences in the immigration realm, and it’s important to have a lawyer who knows that. Always consult with an immigration attorney if the defendant is undocumented because after the criminal case, there may be an immigration case following.

Legal Tip: Drivers License and LASIK

flags-1188055_960_720Over the 4th of July weekend, I took a trip to scenic Brenham, Texas to enjoy a relaxing weekend in a small Texas town. As anyone who has ever visited the area knows the landscape and scenic route is beautiful and it may cause ones foot to get pretty heavy on the accelerator. Long story short, I got pulled over for speeding. The state trooper was very courteous and we chatted for a little bit. As he was inspecting my driver’s license he saw that I had the “Corrective Lenses Restriction” on the back of my license. (Anyone who uses glasses or contacts should have this restriction on the back of their license) He asked me about my corrective lenses and I proudly told him that I no longer use corrective lenses because I received LASIK surgery and no longer needed corrective lenses. He told me that was fantastic but my license still indicated that I needed corrective lenses. At this point I wasn’t sure if he didn’t know what LASIK was, so I begin explaining the procedure and he cut me off stating that he knows. Unfortunately, when you get LASIK or any procedure to adjust your eyesight you must get the restriction lifted from your license.

Luckily at the end of my encounter with the officer, he just gave me a warning on the speeding but did give me a ticket for my “Corrective Lenses Restriction.” He told me that if I got the restriction removed before the court date, they would dismiss it. To do this, just go to DPS and get the restriction removed. It was a very easy process to do.

Certainly I’m not the only person to have had vision adjustment. Check your driver’s license and see if you have the Corrective Lenses Restriction. If you do, and you no longer require correction, be sure to update your license so that you don’t get a citation over something you probably never thought of.

Cheers

Practice Tip: A little investigation can go a long way

Any time the prosecution mentions that an expert will testify or that an expert will be used, it’s normal for the defendant to panic and wonder, “What will they say against me?” In society, we assume that if someone is an “expert” their word is gold and will trump whatever a “non-expert” says. The purpose of this article is to encourage you not to give up so easily and remind you that a little investigation can be enough to win your case.

Approximately four months into being an attorney, a mother came to me and told me how her son was expelled from school and was facing felony charges for arson. The child was being accused of lighting a fire in the boy’s locker-room with the intention of burning the school down. My client swore to me over and over that he WAS in the locker-room at the time of the fire, but he was at the complete opposite end hiding in a bathroom stall to avoid his English exam (not a good start). I listened to his story and compared it to the police report I received from the District Attorney’s office. The evidence against my client was the following:

1) He was the last person seen leaving the locker-room,
2) He was seen high-fiving his friends when the fire alarm forced everyone to exit the building, and
3) He had a black scabbed burn mark on his hand.

These facts were not favorable, and I realized either my client was lying to me or there was another explanation. I decided to approach this case like a math formula and to investigate the individual facts that were against my client. Since the fire occurred in the boy’s locker-room, I knew that I wouldn’t be able to get footage from within the locker-room. Instead I requested the hallway camera footage which showed entrance/exit of the locker-room. While the video did in fact show that my client was the last one to leave, what the offense report and school principal failed to mention is that eight other students left the locker-room within 45 seconds of my client leaving. At this point, I knew I could argue that anyone of those other students could have started the fire. Also, just because my client was the last to leave, that wasn’t proof he did it.

The second fact that the prosecutor wanted to use was that my client was seen high fiving his friends after the fire alarm forced all the students outside. The prosecutor’s argument was that my client was trying to be cool in front of his friends and high-fived them to show he had started the fire. At first sight, this could be plausible; however, what my client told me gave another perspective. Since he was skipping his first class of the day, he hadn’t seen his friends yet. So, when he saw them, he gave them the customary high-five. This wasn’t the best argument, but it did support what my client was saying. At this point in the case, I felt that the prosecutor didn’t have much evidence beyond a reasonable doubt and that I could win the case.

Then, the prosecutor told me that they received a report from a forensic arson investigator that provided undeniable proof that my client had started the fire. I was afraid that there was some evidence I had missed and that I would look foolish in front of my colleagues and client. Finally, the day came. The “Forensic Arson Investigation Report” stated all the basic facts I already knew; however, the “Expert Investigator” commented that my client had a black scabbed burn mark on his right hand between his thumb and index finger. In the “expert’s” opinion, this was commonly seen in fire accidents and that it occurred at the time of the alleged offense. At this point, the prosecutor and her chief were both looking at me, waiting for me to raise the white flag as they held the pictures of the burn marks on my client’s hand.

I am definitely no arson expert, but I have had my fair share of fun with fireworks (ask my father about his beloved charred palm tree) and have received a fair amount of burns. As anyone who has ever been burned knows, the body’s natural response isn’t to instantly scab and form a black scar, but instead, to blister and form a watery barrier to protect the skin. The photos taken by the arson investigator showed a dark burn scar that was more indicative of an old wound. I went to speak with my client and his mother about the photos of the burn mark and was met with laughter by both my client and his mother. I had asked what was so funny, and my client pulled up his Facebook account and showed me approximately 5-10 photos, ranging from 4-17 years of age, where he had that same black burn mark on his right hand. Apparently, it was a mark from a childhood incident where he was playing too close to the stove. I took those pictures to the prosecutors and showed them how the “expert” was wrong with his opinion. After looking through the pictures, the prosecutors agreed with me and decided to dismiss the case because of lack of evidence.

The family was ecstatic, and I was smiling from ear to ear because with that little extra investigation, I was able to prove my client’s innocence. Whenever I look back on that case, I remember a very simple lesson: don’t take everything for its face value. Do a little bit extra, and you can be rewarded immensely. Also, don’t always believe experts without conducting your own investigation. Had we simply followed the expert’s opinion, my client would be behind bars right now.

Long story short, do your homework. Use common sense, and it can get you quite far.

 

 

Deferred Adjudication Ain’t So Sweet: Immigration Nationality Act

Sharing an office with a veteran Immigration attorney definitely gives me exposure to people who are facing immigration troubles because of criminal charges. We have a nice system where I handle the criminal portion and then he covers the immigration. Because our clients are not citizens, their criminal cases require different approaches to hopefully avoid immigration consequences. I understand that most criminal defense attorneys don’t practice immigration but there are still simple basics, which attorneys and people should know regarding “Crimmigration”.

The simplest and most basic rule of crimmigration is… any form of conviction stays on your record in the eyes of immigration. EVERYTHING. The reason is because Immigration Law is Federal law and they have adopted their own rules called the Immigration Nationality Act (INA). And, the INA definition of “conviction” is harsher than you would think.

For example, an undocumented person charged with a crime in state court could be eligible for a deferred adjudication with dismissal after 6 months. Yet, this would still be a conviction under the eyes of Immigration. Deferred adjudication is a form of probation where if you stick to the conditions of your probation after a set period of time, the court will dismiss your case. That’s a great situation for the majority of people because the case is dismissed. However, under INA a deferred adjudication can still be a conviction if the record “admits sufficient facts to warrant a finding of guilt.” This means that if the judge says “Person X, we find that you committed theft at Wal-Mart but instead of finding you guilty we will place you on deferred adjudication,” that is enough to be deemed convicted under Immigration Law.

So what does that leave us with? Honestly, an uphill battle but one that we can still be strategic about. Obviously, one should always go for the dismissal or the not guilty; however, we live in a real world and sometimes those results aren’t always available. At that point sometimes a well formulated plea agreement can really save your client from harsh immigration consequences. Maybe some pre-trial programs where you don’t admit to any facts could be a good alternative. For example, I had a great case of a girl who was in the USA on a Dream Act Visa. She was the valedictorian of her class, tried to be cool and consumed LSD at school. Let’s just say she regretted it really bad approximately 2 hours into the trip when school nurses were around her trying to calm her down. A local county brought charges against her for possession of a controlled substance. My client admitted to me taking LSD but claimed she didn’t know it would be that intense. The prosecutor laughed at the facts and was willing to offer her deferred adjudication if she completed drug tests and other similar conditions. But REMEMBER: deferred adjudication is still a conviction under INA so that would ruin her immigration status. So instead, the prosecutor and I agreed to some pre-trial conditions and if she satisfied them they would dismiss the case. Luckily my client successfully completed all the conditions, the prosecutor dismissed the case, and my client was eligible to reapply for her immigration status.

My job as an Immigration and Criminal Defense attorney compels me to try to get the best outcome for my clients. Knowing the rules of Immigration helps me to arrange deals with prosecutors that will have the least immigration consequence on my clients. I hope that by understanding that a deferred adjudication can still be a conviction, it may prompt some lawyers and clients to find alternative ways of handling a case.