The Definition of Insanity in the State of Texas is Outdated.

In 1843 Daniel M'naghten was acquitted in the murder of the English prime minister's secretary by reason of insanity, prompting then-Queen Victoria to call for a reappraisal of the law. The result was a standard adopted in both English and American courts, which can be summarized in a single question: Did the defendant know his conduct was wrong at the time he committed the crime? Unless a person was mentally disabled to the extent that they were unable to comprehend that they were committing a crime, they could still be found criminally responsible regardless of  the presence of a severe mental illness.
The rule, established by the English House of Lords, states:
"Every man is to be presumed to be sane, and ... that to establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of mind, and not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong."

The M'Naghten Rule focuses on whether a criminal defendant (a) knew the nature of the crime or (b) understood right from wrong at the time it was committed. One of the two distinct criteria must be met in order for insanity to be an effective defense. Some courts differ as to whether the "wrong" in question refers to moral or legal wrong (or both). Additionally, some states have eliminated the first part of the test in which a defendant is ruled legally insane for not fully understanding what he or she has done.

More realistic standards were adopted by many states, including Texas, in the 1970's; the courts decided that even if the defendant knew their conduct was wrong, they would not be found guilty if they had been ''incapable of conforming their conduct'' to the requirements of the law. This more modern standard recognized that, as a result of a mental illness, an individual might know he or she is doing wrong but still lack the ability to keep from doing it. In 1981 John Hinckley shot and wounded President Ronald Reagan and three other men: Hinckley's acquittal by reason of insanity shocked the nation. Texas quickly dropped the element of ''conforming conduct'' and reverted to a strict ''knowledge-based'' standard almost as broad as the old M'Naghten rule.

The current Texas insanity defense and the requirements to raise the defense is codified in Texas Penal Code Section 8.01:
Insanity (a) It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.
(b) The term “mental disease or defect” does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.

The result is that a defendant rarely prevails on an insanity defense in Texas; few defendants, even those who are seriously mentally ill, delusional, and perhaps unable to control their behavior, are incapable of knowing at some basic level that their conduct is unlawful. If defendants know that their conduct is prohibited by law, or wrong in a legal sense, then they are sane for purposes of the Texas insanity defense. Consequently, many defendants who need long term psychiatric treatment and secure hospitalization are convicted and go to prison.

The Model Penal Code Test

In 1972 the American Law Institute (ALI) developed a new rule for insanity as part of the Model Penal Code. This rule, found in § 4.01 of the Code, says that a defendant is not responsible for criminal conduct where (s)he, as a result of mental disease or defect, did not possess a "substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law." Therefore, using the MPC test, a legally insane individual must have been diagnosed with a mental defect (typically by a court-appointed mental health professional) and either did not know right from wrong or lacked the ability to control an impulse that led to the incident.

The Model Penal Code test is much broader than the M'Naghten Rule and the Irresistible Impulse Test. Legal insanity requires the inability to understand right from wrong under the M'Naghten rule, while the Irresistible Impulse Test requires the inability to control an impulse. The MPC rule asks whether defendants are able to fully understand the criminality of their conduct or able to conform their conduct to the law, combining these two elements.
Twenty-one states currently use a modified version of the Model Penal Code rule.

Although the Texas Legislature hastily abandoned the ALI insanity test and returned to a limited variation of M'Naghten in 1983, there has never been a corresponding narrowing of the test for juveniles. Indeed, the insanity defense for juveniles in Texas is not designated as an "insanity defense" in the Family Code; instead, section 55.51, which delineates the provisions for the defense, is entitled "Lack of Responsibility for Conduct as a Result of Mental Illness or Mental Retardation" and provides the following standard:
"A child alleged by petition to have engaged in delinquent conduct or conduct indicating a need for supervision is not responsible for the conduct if at the time of the conduct, as a result of mental illness or mental retardation, the child lacks substantial capacity either to appreciate the wrongfulness of the child's conduct or to conform the child's conduct to the requirements of law."
This contrast between the Family Code and the Penal Code results in an anomalous situation in Texas: a juvenile defendant will have the benefit of an appropriate, modern insanity test, while an adult defendant only has available the old nineteenth-century M'Naghten right-wrong test, with all of its shortcomings.

In recent years, several organizations have called for Texas to restore a two-prong insanity standard that would include a volitional component; The National Alliance on Mental Illness "...supports the retention of the 'insanity defense' and favors the two- prong test that includes the volitional as well as the cognitive standard" and the Mental Health Association in Texas has urged that Texas change its insanity law.

The determination of sanity should not rely only on a century-old premise of whether the defendant knew right from wrong in the legal sense. This narrow definition ignores the medically recognized symptoms of mental illness, which often include powerful visual and auditory delusions. Any workable insanity defense should also incorporate the question of whether the defendant's mental illness impaired or altered the defendant's ability to understand or comply with legal definitions of right and wrong.

George Parnham is an expert on the defense of individuals with mental illness and a passionate advocate for legal reform of their treatment in the criminal justice system.
If you have been accused of a crime, please contact us today for a free consultation with an aggressive and resourceful criminal defense attorney. We will work tirelessly to ensure the best possible outcome for your case.
For more information visit Parnham & Associates.

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References:
THE TIME IS RIGHT TO REVISE THE TEXAS INSANITY DEFENSE: AN ESSAY ; Brian D. Shannon, Associate Dean for Academic Affairs and Charles ''Tex'' Thornton Professor of Law, Texas Tech University School of Law

Houston, Texas DWI Lawyer: DWI Criminal Defense

In any Driving While Intoxicated (DWI) case, the prosecution must prove two primary facts:
1) the person being charged (the "defendant") drove a vehicle, and
2) at the same time, the defendant was "under the influence"—meaning that the person's ability to drive safely was affected to an appreciable degree by drinking alcohol, taking a drug, or a combination of alcohol and drugs. A DWI defense can be anything that proves one of these two elements wrong and prevents the prosecution from proving its case. A valid defense might also prevent the prosecution from introducing evidence at trial.

A significant part of the evidence against you in a DUI or DWI case will usually consist of the arresting officer's observations and impressions as to whether or not you were drunk. For example, the officer may testify about the way you were driving (uneven speeds, weaving, crossing the center line, running a red light, or hesitation going through a green light), how you looked and acted once your vehicle was stopped (bloodshot eyes, slurred speech, stumbling), or how you performed on field sobriety tests. If you can challenge the officer's observations or present evidence that might refute those observations, you may be able to knock a big hole in the prosecution's case.

In some cases, a defendant may be able to introduce witnesses who can refute the officer's "opinions" by testifying that you didn't drink anything before you got in the car, that you appeared to be sober, or that there were other circumstances involved; i.e., you ran a red light because you were distracted by conversation, not because you were drunk. You may also be able to counter the officer's decision that you had been drinking by offering valid explanations for how you looked or acted when you were pulled over. For example, you may be able to prove that you did not perform well on field sobriety tests because of physical impairments or because the instructions were confusing.You might claim that your eyes were bloodshot because of lack of sleep or allergies, or your speech was slurred because of lack of sleep or medications you take.
 
Most DUI and DWI cases start with a driver getting pulled over, so there usually isn't much argument over whether the defendant was actually driving. But if a police officer didn't actually observe you driving; i.e., the officer approached your idle car while you were behind the wheel in a parking lot, the issue might be debatable.

If the officer did not have legal justification to stop your vehicle and arrest you in the first place, or if the officer failed to follow proper legal procedures during the arrest, any evidence gleaned from the traffic stop or the arrest might be deemed "inadmissible" and kept out of a court case. This could leave the prosecution with no real case (for example, because breathalyzer results and the arresting officer's testimony couldn't be used as evidence), and the charges against you could be dropped.

"Probable Cause" means that the facts support an objective belief that the person to be arrested has committed a crime, or that a place or item to be searched bears evidence of a crime. The obvious question in probable cause is "How likely must it be that the defendant committed a crime, or that the place or item contains criminal evidence?"
If an officer did not have probable cause to stop your vehicle, detain you, or arrest you for drunk driving, then you may be able to keep any evidence obtained during the arrest from being admitted at trial. For example, if you believe you were stopped simply because of your race or ethnicity rather than because you were driving erratically or appeared to be intoxicated, you may be able to challenge the arrest.

In Texas, an adult who drives with a blood alcohol content (BAC) level of .08% or above is guilty of Driving While Intoxicated. For drivers under the age of 21, almost all states set the limit at .01% or .02%.
The police administer chemical tests to measure the BAC in your breath, blood, urine, or saliva, and the results of these tests are usually the main evidence entered in the prosecution's case against you. If you can successfully challenge the accuracy of these tests, the test results may be deemed inadmissible at trial. Vials used in collecting medical blood samples may lack anticoagulant and preservatives, the antiseptic used to cleanse the area may contain alcohol, and any disease process affecting the liver, such as hepatitis, will impair blood test results.
Also, when alcohol is consumed it can take from thirty minutes to one and a half hours to be absorbed by the body. This is influenced by the last time a person consumed food. This is a viable defense when your BAC would have been below the legal limit when you were driving, but by the time the breath or blood test was performed the level had increased beyond the legal limit.

A conviction of DWI or DUI can have serious effects on your employment, insurance costs and many other aspects of your daily life.
If you have been charged with impaired driving you need an experienced criminal defense lawyer. Contact Parnham & Associates today at 713.224.3967. Depending on the circumstances, we may be able to save your license.

Houston DWI Arrests: Why You Need a Lawyer.

The National Highway Traffic Safety Administration has estimated that alcohol-related collisions represented 40% of total traffic deaths in the US. Most states have enacted severe laws in order to deal with the problem of impaired driving, and while the intent of these laws -removing dangerous drivers from public roads- is indeed noble, they may also allow and even encourage law enforcement officers to engage in practices that are constitutionally questionable. For example, police may conduct "sweeping stops" in which they pull over every vehicle passing through a certain point, regardless of a lack of probable cause. Or they can instigate programs such as the "no refusal weekend" in which judges may rubber-stamp warrants for blood tests on suspected offenders.
Nearly two million drunk-driving cases are filed by law enforcement officers around the country ever year. DWI/DUI cases represent the single largest category of criminal infractions of all reported cases, with about 200,000 more cases processed each year than all theft and larceny offenses combined.
Various departments of law enforcement often instruct their officers to watch for cars leaving popular nightspots, and they will almost always find the "probable cause" they need in order to stop a driver and start the DWI/DUI process rolling. Furthermore, law enforcement agencies have what are commonly called DWI/DUI Task Forces. These officers have extensive training and experience related to finding people who may be intoxicated, as well as training on how to testify against defendants charged with DUI/DWI. Prosecutors are also very experienced in trying DWI/DUI cases because so many citizens are charged with this crime. 

In Texas and many other states the legal limit for intoxication is .08% Blood Alcohol Concentration (BAC). However, if an officer suspects your driving is impaired you can still be stopped and arrested for DWI regardless of your BAC. In most cases suspicion of DWI also gives the police a probable cause to search your vehicle.  

If you are charged with Driving While Intoxicated or Driving Under the Influence in Texas, it is important to know that you have only 15 days from the date of arrest to request a hearing on your driver’s license. If you fail to request a hearing, your license may be suspended and you face the probability of paying huge fines for several years. It is important that you hire legal representation for this hearing to challenge the license suspension. 

In any Texas DWI Conviction the Texas Department Of Public Safety is authorized to place a surcharge on your driver’s license. This charge will range from $1,000.00 to $2,000.00 a year for three years. Depending on whether you provided a breath sample, and the results, you could be facing a $6,000.00 fee to keep your license. In addition to the criminal consequences of a DWI/DUI conviction you face other civil penalties including license suspension, making it difficult for you to travel to work and efficiently meet your daily obligations even before your day in court.

In Texas, "intoxicated" is defined as having (1) lost the normal use of your mental faculties, (2) lost the normal use of your physical faculties, or (3) having a blood alcohol concentration of 0.08 or greater. A jury must believe the State has proven one of these elements beyond a reasonable doubt; however,  driving with a blood alcohol concentration over the limit of 0.08 is illegal regardless of the circumstances. BAC is determined by conducting a scientific analysis of the driver’s blood, breath, or urine.

If you have been charged with driving under the influence of drugs or alcohol, or driving while intoxicated, an experienced attorney has several areas to explore in preparing a defense.

Improper Stop and/or Detention:

An arrest for DUI usually occurs in one of two circumstances; either the officer witnesses the operation of a vehicle in a manner which may indicate that the driver is impaired, or the officer stops the defendant for a regular traffic offense and then suspects that the driver is impaired during the course of the stop.
If the officer suspects you are impaired, they will request that you take a series of field sobriety tests which you can, and should, refuse. Failure of a field sobriety test immediately provides probable cause to arrest you for DWI.
However, given the subjective nature of this proof standard, any physical signs of impairment may be sufficient probable cause for the officer to make an arrest. After an arrest occurs, it is best to refuse all further testing or interrogation to keep from incriminating yourself to the officer who already thinks he or she already has probable cause.

Both reasonable suspicion and probable cause are terms defined by constitutional law.
Reasonable suspicion is the standard that must exist before a law enforcement officer can pull you over for DWI or a traffic violation. A lesser standard of proof than probable cause, reasonable suspicion must be based on more than a hunch: there must be specific facts from which a rational inference is made. Basically, unless another reasonable person or officer could believe that a person is, has been, or is about to engage in criminal activity based on the circumstances present, the standard of reasonable suspicion does not exist.
Probable cause is a higher standard of proof: the presence of a reasonable amount of suspicion that is supported by circumstances strong enough to justify a prudent and cautious person's belief that certain facts are probably true.

An officer can stop you for DWI based on reasonable suspicion alone, but probable cause must exist for a DWI arrest to occur in Texas. If you believe that the police officer that stopped you for DWI did so without either, you may be the subject of an unlawful stop and you may have a valid defense which an experienced DWI attorney can use to fight your charges.
Without either reasonable suspicion or probable cause present in a DWI, you have been subjected to an unlawful stop and any related evidence may be dismissed. It is important remember that the judge determines whether reasonable suspicion and probable cause exist when a motion to suppress is submitted, not the law enforcement officer that made the stop. The judge is not allowed to view the police report and must make the determination based on testimony and any physical evidence, such as video.

Additionally, if the law enforcement officer violated your rights or failed to follow arrest procedures; i.e., they failed to read you your Miranda rights, denied your right to an attorney, or failed to advise you of the consequences for a DWI chemical test refusal, you may also have grounds for an improper stop.

Use of the "Field Sobriety Test" and Breathalyzer:

The first "evidence" gathered by police officers after a stop for suspected DWI typically consists of field or roadside sobriety tests. These agility tests are supposed to indicate that the person suspected of drunk driving was actually impaired or in some way “a less safe driver.”
Recent scholarly studies have shown that field sobriety tests are not given uniformly, that there is no scientific basis for assuming they are valid, and that most officers either use the wrong tests or improperly instruct the suspect on how to perform the tests. A defense attorney can obtain a pretrial ruling that the tests and their alleged indication of impairment must be excluded from evidence due to lack of scientific foundation and faulty instructions.
Any other “observation” evidence from a police officer will generally be inconclusive and subject to interpretation. For example, bloodshot eyes can be caused by conditions other than drunkenness, including contact lenses, allergies, or lack of sleep. A defense attorney can analyze the evidence that will likely be presented and take the time to investigate the medical background of clients and the environmental contaminants they have been exposed to. Most alleged evidence of intoxication can be neutralized or eliminated from the state’s presentation with findings from this investigation.

In the overwhelming majority of drunk-driving cases in which police obtain a chemical test, an infrared breath analysis machine is used rather than a blood test. These machines are so unsophisticated that virtually no scientist would ever trust the results as a basis for scholarly research or scientific investigation.
If the officer was not certified to administer a Breathalyzer test or failed to follow the necessary procedures prior to the breath test, or if the device was not properly maintained, the test results will be inadmissible in court.

Contaminated Blood Tests:

BAC tests, like any other type of forensic evidence, are not immune to challenge on a variety of grounds.
Vials used in collecting medical blood samples may lack anticoagulant and preservatives.The antiseptic used to cleanse the area may contain alcohol in amounts sufficient to produce measurable amounts of alcohol on a gas chromatograph. Also, while many jurisdictions have regulations and procedures governing blood testing, and despite the fact that most specifically prohibit using any alcohol solution as a skin cleanser, some of the swabs that are used in blood collection kits contain a substance known as benzalkonium chloride as an active ingredient. This compound contains approximately 2 percent (2%) or more ethanol concentration.
Swabbing the skin with ethanol before taking a blood sample for measuring blood ethanol concentration may increase the apparent blood ethanol level by up to 0.018 percent (g/dL), even if the skin is allowed to dry before the sample is taken.
The blood taken from a driving while intoxicated (DWI) suspect involved in an accident or car crash may also be contaminated if there was an intravenous fluid being administered at the time the blood was drawn.
Some police departments and state forensic laboratories analyze whole blood. Many hospitals and clinical laboratories routinely analyze only serum. Evidence of a client’s blood alcohol level indicating a result of 0.10 percent (g/dL) BAC may, in fact, reflect a true BAC of 0.08 to 0.09 g/dL if serum was used.
The human body eliminates the amount of alcohol by oxidation of the “poison” (alcohol) in the liver. Like any other foreign compound, alcohol is broken down by enzymes in the liver and gradually reduced until 100 percent is eliminated. Therefore, any disease process affecting the liver, such as hepatitis, will impair results. Also, any condition that causes “extracellular” water retention (heart disease or many forms of high blood pressure or diabetes, for example) will alter results.

Rising blood alcohol concentration: 

When alcohol is consumed, it can take from thirty minutes to one and a half hours to be absorbed by the body. This is influenced by the last time a person consumed food. This is a viable defense when your BAC would have been below the legal limit when you were driving, but by the time the breath or blood test was performed the level had increased beyond the legal limit.

A conviction of DWI or DUI can have serious effects on your employment, insurance costs and many other aspects of your daily life.
If you have been charged with impaired driving you need an experienced criminal defense lawyer. Contact Parnham & Associates today at 713.224.3967. Depending on the circumstances, we may be able to save your license.

 

Aggravated Sexual Assault Involving Minors- Houston Attorney

Texas Penal Code Sec. 22.011 defines sexual assault in a manner which covers a wide range of incidents, most of which involve an allegation that the accused caused penetration by a sexual organ without the victim's effective consent. Sexual assault can include vaginal, anal or oral sex, and the accused can be a male or female. Further, the statute sets the minimum legal age of consent at 17. Charges of sexual assault of a child are considered aggravated if the child is under 14 years of age, if a deadly weapon is used, if a "date rape drug" known as rohypnol or ketamine was used with the intent of making the offense easier to commit, or if serious bodily injury is threatened.

A separate crime, Indecency with a Child, is defined by Texas Penal Code Sec. 21.11 as either engaging in sexual contact (defined as touching of the genitals with intent to arouse or gratify someone sexually) with a child, exposure of one's anus or genitals to a child under 17, or causing the child to expose his or her anus or genitals to the actor with the intent to arouse or gratify someone sexually. Indecency with a Child by Contact in most circumstances is a Second Degree Felony (2 to 20 years), and Indecency with a Child by Exposure is a Third Degree Felony (2 to 10 years).

Criminal Statutory Rape, as defined in Texas Penal Code Section 22.011(a)(2) is another unique form of rape charge in that its victims consent to the sexual acts, although they are not of age to do so with someone over the age of 19. Like many states attempting to mitigate the rigidity of statutory rape laws, the state of Texas has a “three year rule,” which states that consensual sexual acts between two people who are over the age of 14 and are within three years of age of another, do not comprise criminal statutory rape. 
Defendants accused of statutory rape often claim that they had no reason to know that their partner was underage, or that the victim lied about their age and a reasonable person would have believed them; but other than the 3-year age gap exception, there are no other exceptions to statutory rape in Texas.

In addition to these criminal penalties, Texas law requires those who have been convicted of certain sex offenses and other crimes to register as a sex offender upon release from state supervision. Most of the information that convicted sex offenders are required to provide is made available to the public in the Sex Offender Database. This database is accessible on-line from the Texas Department of Public Safety's Web site. Only certain information, like the offender's social security and driver's license numbers and any information that could identify the victim, are kept confidential.
Additionally, local law enforcement may contact schools, print notices in the local newspaper or send out postcard notifications to alert members of the community of the presence of certain high-risk offenders in their neighborhoods.


The false accusation of rape is the intentional reporting of a rape where no rape has occurred. It is difficult to assess the prevalence of false accusations because they are often conflated with non-prosecuted cases under the designation "unfounded." However, in the United States, the FBI Uniform Crime Report in 1996 and the United States Department of Justice in 1997 stated 8% of rape accusations in the United States were regarded as unfounded or false. 
David Lisak's study, published in 2010 in Violence Against Women, classified as false 8 out of the 136 (5.9%) reported rapes at an American university over a ten-year period. Applying IACP guidelines, a case was classified as a false report if there was evidence that a thorough investigation was pursued and that the investigation had yielded evidence that the reported sexual assault had in fact not occurred. 

It is extremely difficult to assess the prevalence of false accusations, and there are many reasons other than falsity that can result in a rape case being closed as unfounded or unproven. However, while researchers and prosecutors do not agree on the exact percentage of false allegations they generally agree on a range of 2% to 10%. Although these percentages may not seem high, a false accusation of sexual assault immediately changes the life of the accused,  jeopardizing careers, marriages, and reputations. More than any other type of crime, an accusation of sexual wrongdoing destroys a person’s life.
In some instances, a person makes false allegations because of jealously, or in an attempt to seek revenge on someone who did not reciprocate their feelings. Accusations of sexual misconduct also frequently come up in divorce or child custody cases, student-teacher relationships, employer-employee relationships and in any other context where the accuser may have a motive to lie.
Even if the defendant is innocent, it often requires an entire trial in order for this determination to be made, during which the defendant may well be ostracized or publicly ridiculed by the media.

Public hysteria regarding child molestation has changed the rules of the criminal justice system; physical and sexual abuse cases involving minors must be defended in an entirely different manner than the normal criminal case. In many cases, the child accuser does not have to appear in court and face the accused; instead, the state can offer the child's testimony through a video tape made by agents of the prosecution. "Hearsay" evidence may be admitted in a case, and there is often no physical evidence presented. The state does not have to prove guilt, but simply make the accusation; Once the accusation is made, the defendant must prove innocence beyond a reasonable doubt. Failing that, the jury will very often not take a chance the defendant may be a child molester, and will convict.

No other area in Criminal Law creates public outrage the way sex crimes do. The mere allegation of a sexual offense is sufficient to destroy reputations, careers, families and lives.
At the same time, there are very few areas of Criminal Law where we have seen such a high percentage of convictions overturned because the person was actually innocent and subsequently cleared by DNA or witness recantation. A false allegation case can only be defended successfully by an attorney with significant trial experience and specifically with child sexual assault cases.

If you have been charged with sexual assault contact Parnham & Associates today at (713) 224.3967 or use our convenient online submission form. Depending on the circumstances, we have many options in mounting a strong defense for you.

Sexual Assault Involving Adults- Houston Attorney

Under Texas state law sexual assault, commonly known as rape, is defined in Texas Penal Code §22.011. Sexual assault covers a wide range of incidents, most of which involve an allegation that the accused caused penetration by a sexual organ without the victim's effective consent. Sexual assault can include vaginal, anal or oral sex, and the accused can be a male or female.
In cases of sexual assault involving two or more adults in which deadly weapons are not used, the crime is typically considered a Second Degree felony and carries a potential sentence of 2-20 years imprisonment, plus a $10,000 fine and lifetime registration as a sex offender. It is also a “3g” offense, which means a person convicted of the offense and sentenced to prison must serve at least 50% of the sentence before being eligible for parole. It also means that a judge may not place a person so convicted on ordinary community supervision (however, the judge may place the person on deferred adjudication).

When the alleged assault includes certain factors, the charge may be elevated to the more severe offense of aggravated sexual assault. Aggravated Sexual Assault is described independently in the Texas Penal Code, and it shares elements of both the Aggravated Assault offense and the Sexual Assault offense.
The crime of Sexual Assault can be elevated to Aggravated Sexual Assault in any of these cases:

• The victim is under the age of 17, an elderly individual or a disabled individual;
• The defendant causes or acts with another person who causes serious bodily injury or attempts to cause the death of the victim or another person in the course of the same criminal episode;
• The defendant threatens the victim or any person with death, serious bodily injury, or kidnapping;
• The defendant uses or exhibits a deadly weapon;
• The defendant administers or provides flunitrazepam, otherwise known as rohypnol, gamma hydroxybutyrate, or ketamine to the victim of the offense with the intent of facilitating the commission of the offense.

Conviction of aggravated sexual assault can lead to a prison sentence of 5 to 99 years, or even life in prison. Additionally, if the victim was younger than six or was younger than 14 and was subjected to actual violence, the perpetrator could face a minimum of 25 years in prison. Again, registry as a sex offender is mandatory.

The most apparent issue in sexual assault cases involving adults is that of consent. There are several situations in which Texas law says consent is lacking for the purposes of the Sexual Assault law;

•  The victim was compelled to submit or participate by the use or threat of physical force or violence against the them or another person;
• At the time of the sexual assault the defendant knew that the victim was incapable either of appraising the nature of the act, or of resisting it as a result of mental disease or defect;
•  The defendant knew that the other person was unaware that the sexual assault was occurring, or intentionally impaired the other person’s power to appraise or control the their conduct by administering any substance without the other person’s knowledge; 
• The defendant is a public servant, mental health services provider, clergyman or a health care services provider who coerces or exploits the victim’s emotional dependency on them in order to make them submit or participate;
• The defendant is an employee of a facility where the other person is a resident, unless the employee and resident are formally or informally married to each other.

Even if there is no physical evidence to support an accusation of sexual assault a charge can still be filed. In many cases the evidence boils down to “he said, she said”, and unfortunately false allegations do occasionally arise; for instance as a result of divorce, child custody battles, conflicts between a child and a step-parent; or in relationships involving an unstable person. Sexual assault charges are sometimes made after consensual sex, for one reason or another. Tragically, children are also sometimes coerced or manipulated into making false charges of sexual assault.

 No other area in Criminal Law creates public outrage the way sex crimes do. The mere allegation of a sexual offense is sufficient to destroy reputations, careers, families and lives.
At the same time, there are very few areas of Criminal Law where we have seen such a high percentage of convictions overturned because the person was actually innocent and subsequently cleared by DNA or witness recantation.

If you have been charged with sexual assault, possession of child pornography or prostitution related crimes you need an experienced criminal defense lawyer. Contact Parnham & Associates today at (713) 224.3967 or use our convenient online submission form. Depending on the circumstances, we have many options in mounting a strong defense for you.

Law Enforcement: Profiling and Vehicle Searches

One of the exceptions to the Fourth Amendment's warrant requirement is the so-called ''automobile'' exception. If a vehicle is stopped by police, a warrantless search of the vehicle is usually allowable under this exception if the police have probable cause to believe that it contains evidence of a crime. This is based on the principle of exigency, or the need for immediate action arising out of the likely disappearance of the vehicle and the possibility of destruction of the evidence.

Generally, a speeding or traffic violation by itself does not justify the search of a vehicle, but this rule is not without exceptions. If the officer has a reasonable belief that they might be assaulted by the driver, or if the driver fails to produce a valid license or produces a forged one, a search will normally be valid. 

In most instances, a valid search of a vehicle can include any containers within the car, such as packages or luggage. While there must be a connection between a crime and the search, there is no  rule that the search be limited only to items relating to that crime; i.e., the police can search the driver and the car if they have a reasonable belief, or probable cause to believe, that there is a gun in the driver's possession or in the car.
When there is probable cause to search a vehicle, it is not necessary that the search take place immediately. A valid search can occur long after the initial stop and even after the car has been moved to the police station or impound lot. 

When a car is impounded, the police can search it for the purposes of taking an inventory of its contents. It is not necessary that the search be conducted for the purpose of seeking evidence of a crime. While the police can search the entire car and catalog its contents, they are limited in what they can do with the contents; for an inventory search to be valid, it must be made pursuant to standardized police procedures.

If a driver gives a police officer permission to search their car, the warrant requirement is, of course, not necessary. Consent can be either ''express'' or ''implied.''
Implied consent usually becomes a factor when a driver is suspected of driving under the influence of alcohol (''DUI'' or ''DWI''); many states now have statutes that specify that when an officer has a reasonable suspicion that a driver is impaired, the driver's use of the public streets is considered implied consent to search of the driver's person and vehicle.
 Express consent arises when a police officer asks for and receives permission to search the driver's car. When such consent is given, the officer usually is permitted to open a closed container in the car if it might reasonably hold the object of the search.

The Fourth Amendment to the U.S. Constitution defines the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures. If you have been subjected to an unreasonable search by law enforcement, contact Parnham & McWilliams today at (713) 224-3967 or visit www.parnhamandassociates.com for a free consultation. We are dedicated to protecting your Constitutional Rights.

Traffic Stops: Required Identification- Houston Lawyer

To stop a vehicle, a police officer only needs a reasonable suspicion that the driver is committing, or has committed, a traffic infraction. Usually that suspicion arises from the officer's own observation of the driver and vehicle; however, police also have the authority to stop a vehicle based upon information from an another anonymous driver or pedestrian.
 
On its own, a simple traffic violation will not justify the search of a vehicle; a driver's excessive speed or other minor traffic infraction does not usually indicate that the driver is violent, and it does not give the police officer any reason to think that he is in danger of being assaulted.
However, if the officer has a reasonable belief that he or she might be assaulted by the driver, or if the motorist fails to produce a driver's license or produces a forged one, a search by the officer may be valid.
The officer's suspicion might be reasonable even if the officer makes a mistake of fact, for instance if their computer mistakenly reports that the driver's license is under suspension. However, if the officer does stop a driver based on a mistake of law, the officer's suspicion is not reasonable and the stop will usually be invalidated.

A pretextual traffic stop occurs when an officer uses the suspicion of a traffic violation as an excuse to stop a vehicle for another reason. Pretext stops may still be valid even if a reasonable officer would not have made the stop. Thus, the officer's ulterior motive for making the stop may not be relevant in determining the validity of the stop. Still, many state courts will not blindly accept the officer's pretextual traffic violation justification. For example, weaving and improper lane changes may not be sufficient to show the pretext of a traffic violation unless it is also shown that the motorist's driving posed a safety issue to another vehicle.

Roadblocks or sobriety checkpoints are permitted under the Fourth Amendment so long as they are conducted in a neutral or non-arbitrary manner, their intrusion on motorists is limited, and they further an important governmental or public purpose. There is no requirement that an officer have a reasonable suspicion of criminal activity to justify a stop at a roadblock.

Independent of traffic violations, if a police officer has a reasonable suspicion that a motorist is either committing or preparing to commit a crime, the officer is justified in stopping the vehicle.


Once police officers have lawfully stopped a vehicle, either because of probable cause for a traffic infraction or reasonable suspicion of criminal activity, they can:

• Order the occupants out of the vehicle
• Ask to see the driver's license, registration, and other relevant information, such as proof of insurance.
• Conduct a limited search to gain access to the vehicle identification number.
• Conduct a dog sniff (''canine sniff''), so long as the sniff does not extend the length of the stop.
• Take actions reasonably related to the original reason for stopping the vehicle, or related to suspicions that develop during the stop.
• Frisk for weapons if they have or develop a reasonable suspicion that the occupants may be armed or dangerous, and
• Search the vehicle if the stop provides probable cause for the officers to believe it contains illegal or stolen goods or evidence of a crime.

 When it comes to criminal law cases, an experienced and effective criminal defense attorney can mean the difference between a prison sentence and reduced or dismissed charges. The lawyers of Parnham & Associates are dedicated to defending the rights of the accused and our criminal defense attorneys are committed to the presumption of innocence. Even in less serious cases, a good criminal defense attorney can make a serious impact on the outcome of the case by ensuring that the rights of the accused are protected throughout the legal process. For these and other reasons, it is vital that those accused of a crime select the most competent, experienced and effective attorney available.

Psychiatric Treatment in Criminal System:Part III

Harris County, Texas is the most populous county in the state and the third-most populous county in the United States. Its county seat is Houston, the largest city in Texas and fourth-largest city in the United States.
Harris County also  has one of the most underfunded public mental health systems in a state that consistently ranks last, or almost last, in per capita mental health spending. Community-based mental health care is funded mostly by state government, and for years, the Texas Legislature starved its public system. In 2003 Texas lawmakers slashed funding, and thousands of people who relied on the system were suddenly ineligible.
Many went into crisis and were picked up by police or wound up in emergency rooms, where they stayed briefly, stabilized, and were released, still unable to get treatment in the community.

In Texas, a defendant found not competent to stand trial in a violent offense is supposed to be committed for treatment in North Texas' Vernon State Hospital in order to attempt to restore competency.
Texas’ mental health hospital system was designed and built a century ago, when Texas was very rural and good treatment options for mental illness weren’t available. Large campuses of 60 to 90 acres, often in rural areas of the state, were built to house 3,000 patients each. Most patients sent to these facilities weren’t expected to recover.

Although these hospitals still  play an essential role in the mental health delivery system, many of them are functionally obsolete. Many are abandoned, decaying and considered a safety hazard. Buildings used for clinical care are in reasonable condition but poorly designed for modern care, with convoluted hallways with poor visibility from nursing stations. Higher-acuity patients require more caregivers, further crowding already limited common spaces.

A recent Department of State Health Services study determined that five state hospitals- Rusk, Austin, San Antonio, Terrell and North Texas at Wichita Falls - were beyond repair and should be replaced. Furthermore, the buildings and facilities at the Big Spring, Kerrville and North Texas at Vernon state hospitals, as well as the Rio Grande State Center, El Paso Psychiatric Center and Waco Center for Youth, should be repaired and renovated, and the unused, decaying buildings on these campuses should be torn down, the report said.

Because of the lack of beds in Vernon Hospital particularly, the Harris County Jail has now become the largest mental health facility in Texas and the second largest in the USA. It has more beds dedicated to the mentally ill than all other hospitals in the state, combined. Inmates may wait months before being transferred to Vernon.

When it comes to criminal law cases, an experienced and effective criminal defense attorney can mean the difference between a prison sentence and reduced or dismissed charges. The lawyers of Parnham & Associates are dedicated to defending the rights of the accused and our criminal defense attorneys are committed to the presumption of innocence.

 

Texas Insanity Defense: Houston Lawyer Part II

In the state of Texas, the insanity defense and the requirements to raise the defense is codified in the Texas Penal Code Section 8.01:

Insanity
    (a) It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.

    (b) The term “mental disease or defect” does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.

An "affirmative defense" allows a defendant to avoid legal responsibility for the charged offense while still admitting guilt; essentially, it provides an excuse or justification for why the action transpired. An affirmative defense has the ability to mitigate the legal consequences of an unlawful action.

In Texas, the insanity defense is available only when there is proof that, because of severe mental disease or defect, the accused did not know his/her conduct was wrong. Very few defendants, even those who are seriously mentally ill and delusional, are incapable of knowing at some level their conduct is wrong or unlawful.

Some individuals with severe, untreated mental illness have symptoms of auditory or visual hallucinations that are quite real to them. While in a delusional state they may be unable to appreciate their acts are either legally or morally wrong.
Importantly, a defendant found not guilty by reason of insanity does not walk out of the courtroom a free person. Instead, that person will be committed for treatment in a maximum security facility and for a disposition within 30 days in cases where there was dangerous conduct. In cases where there was no dangerous conduct, the person will be will be detained for a civil commitment proceeding .

Unfortunately, Article 46C.154 provides that neither party nor the court shall inform the jury of the consequences to the defendant if a verdict of not guilty by reason of insanity is returned. In others words, the jury will not be informed that a person found Not Guilty by Reason of Insanity will not be released – although this seems like it would be relevant and pertinent information for a juror to know when they are struggling with finding a person guilty or not guilty.

George Parnham's insistence that juries and legislators consider context and mental capacity will help move focus from verdict to treatment and catalyze a societal shift from outraged condemnation to awareness and primary prevention. He is totally committed to ensuring that his clients are heard and, to whatever extent possible, understood. In instances where misrepresentation or misstatement about the factual circumstances of an accusation have been leaked to the public, whether intentionally or not, it is imperative to "set the record straight" and do whatever can be done to level the playing field of public opinion.

Criminal defense strategies applied in these situations need to be created for the particular offense, evidence involved and based upon the defendant's needs. Contact Parnham & Associates today at (713) 224.3967 or use our convenient online submission form. We will work tirelessly to ensure the best possible outcome for your case. .

Legal Competency: Houston Lawyer

In this first segment of a three-part series of videos discussing Mental Competency and the Insanity Defense, criminal defense attorney George Parnham discusses legal competency as applied to a criminal defense strategy.

There is an important distinction in the difference between competency and criminal responsibility:

• The issue of competency is determined by evaluating whether a defendant is able to adequately assist his attorney in preparing a defense, make informed decisions about trial strategy and determining whether or not defendant has a rational, as well as factual understanding of the process.
• Insanity (or lack of criminal responsibility) refers to whether a defendant can be held legally responsible for his or her criminal behavior.

Competency largely deals with the defendant's present condition, while insanity addresses the mental condition at the time the crime was committed.
Insanity is a legal concept, not a psychiatric concept. Having a diagnosed mental disorder is not sufficient reason, from the court's point of view, to relieve a defendant from all responsibility for illegal acts they may commit: the mental disorder must be of such a degree as to render the individual incapable of knowing that his/her conduct was wrong.

For more information on Mental Incapacity and Insanity Criminal Defense please visit insanitydefenseattorney.com 

The Code of Criminal Procedure, Chapter 46B states that a person is incompetent to stand trial if the person does not have:

1. sufficient present ability to consult with the person's lawyer with a reasonable degree of rational understanding; or 
2.  a rational as well as factual understanding of the proceedings against the person. Further, article 46B.003 states that a defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evidence.

Further, the statute states that "A defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evidence."

There is an elaborate procedural process established for determining whether the accused is competent, and ,if so, for restoring the accused to competency through medical effort and returning him to court to stand trial. There are three stages in the pretrial competency determination procedure:

• Stage One - the trial court must be made cognizant that there is a doubt as to the defendant's competency; the court has the right to require examination of the defendant and may appoint disinterested experts to examine the defendant; the court gets the reports; 
• Stage Two - the trial court conducts a hearing to decide if if any evidence exists that might rationally lead to a conclusion that the defendant is incompetent; if evidence of incompetency is produced, the trial judge is required to empanel a jury (not the trial jury) to determine the defendant's competency; 
• Stage Three -the jury (not the trial jury) decides whether the defendant is competent to stand trial by answering two special issues, i.e., whether the defendant is competent to stand trial and, if not, whether there is no substantial probability that the defendant will attain competency to stand trial within the foreseeable future.

Based on the jury's findings regarding incompetency and the probability of restoration, the court will either commit the defendant for restorative care for a period not to exceed 18 months or, if competency cannot be restored, proceed with civil commitment proceedings.
Sometimes competency to stand trial cannot be restored. If the defendant is found competent , the trial proceeds. If the defendant is found incompetent after trial has begun, the trial court declares a mistrial; jeopardy doesn't prevent retrial if competency is later restored. Incompetency to stand trial is not a defense to criminal responsibility.

Art. 46.05 in the Texas Code of Criminal Procedure provides that a person who is incompetent to be executed may not be executed. This statute is in response to Ford v. Wainright, and provides that the condemned person may raise the issue of competency to be executed by a motion with attached affidavits, records, or other evidence. Paragraph (e) indicates that if the condemned has previously filed similar motions and has been found to be competent to be executed, there is a rebuttable presumption of competency. If the trial court determines that the condemned has not made a substantial showing of incompetency in the motion, the trial court will deny it.

Art. 46.05 defines incompetency to be executed as the defendant being unable to understand that he or she is to be executed, that the execution is imminent, and the reason why he or she is being executed.  The condemned has the burden of proving incompetence to be executed by a preponderance of the evidence.
If the trial court determines that the condemned has made a substantial showing of incompetency, they must then order at least two mental health experts to examine the condemned to determine if they are, indeed, incompetent. These experts then report back to the court, the prosecution and the defense attorney. If a stay of execution is issued by the court of criminal appeals, the trial court periodically shall order that the condemned be reexamined to determine if the condemned is no longer incompetent to be executed.

Mr. Parnham's insistence that juries and legislators consider context and mental capacity will help move focus from verdict to treatment and catalyze a societal shift from outraged condemnation to awareness and primary prevention. He is totally committed to ensuring that his clients are heard and, to whatever extent possible, understood. In instances where misrepresentation or misstatement about the factual circumstances of an accusation have been leaked to the public, whether intentionally or not, it is imperative to "set the record straight" and do whatever can be done to level the playing field of public opinion.

Criminal defense strategies applied in these situations need to be created for the particular offense, evidence involved and based upon the defendant's needs. Contact Parnham & Associates today at (713) 224.3967 or use our convenient online submission form. We will work tirelessly to ensure the best possible outcome for your case.

Texas Cybercrimes Lawyer

Recent media coverage has been rife with stories of large-scale data breaches, hacks and online financial crime. New trends in cyber crime are emerging all the time, with estimated costs to the global economy running to billions of dollars.
In the past, cyber crime was committed mainly by individuals or small groups. Today, we are seeing highly complex cyber criminal networks bring together individuals from across the globe in real time to commit crimes on an unprecedented scale. Criminal organizations turning increasingly to the Internet to facilitate their activities and maximize their profit in the shortest time. The crimes themselves are not necessarily new – such as theft, fraud, illegal gambling, sale of fake medicines – but they are evolving in line with the opportunities presented online and therefore becoming more widespread and damaging.

Most states have enacted internet and computer crimes statutes: many of these statutes not only provide for criminal prosecution but also for civil liability. In Texas, cyber crime is defined by the Texas Computer Crimes Statute (Penal Code, Title 7, Chapter 33) to include:

• Knowingly accessing a computer, computer network or computer system without the consent of the owner;
• Knowingly soliciting a minor under the age of 17 over the internet, text message, or other electronic system, to meet in person for the purpose of engaging in sexual behavior with the defendant;
• Knowingly accessing a computer system, network, program, software or machine that is part of a voting system that uses direct recording electronic voting machines and tampers with the votes or the ability of someone to vote.
• Creating a web page or leaving messages on a social networking site using the persona of another without the person's consent and with the intent to harm, defraud, intimidate or threaten someone; or
• Referencing the name, domain address, phone number or any other identifying information of a person without that person's consent, intending to cause the recipient to think the message is truly coming from that person, with the intent to harm or defraud someone.

The penalties for computer crimes depend on the nature and seriousness of the crime committed:
For gaining access to a computer without the consent of the owner the penalty may range all the way from a "Class B" misdemeanor (up to 180 days in a county jail and/or a fine of up to $2,000) up to a first degree felony (five to 99 years in a state prison and/or a fine of up to $10,000). The factor influencing the degree of the penalty imposed is the value of money or property that the defendant benefitted from and/or was lost by the victim.
For soliciting a minor, the crime is charged as a third degree felony (two to ten years in state prison and/or a fine of up to $10,000). However, if the minor is under 14 years of age, then it may be a second degree felony (two to twenty years in a state prison and/or a fine of up to $10,000).
For tampering with a voting machine, the penalty is a first degree felony. This is a very serious penalty with a sentence between five to 99 years in a state prison and/or a fine of up to $10,000.
Online harassment is usually charged as a third degree felony; however, if the crime involves falsifying an electronic message with the intent to harm or defraud, the defendant may instead be charged with a "Class A" misdemeanor (not more than one year in a county jail and/or a fine of no more than $4,000). If the message was intended to summon a response by emergency personnel, it will be elevated to a third degree felony.

In addition to state laws, the federal government has entire sections and task forces which are dedicated to computer crimes. Computer crimes are most often classified as federal offenses when they involve "crossed" state lines or actions which are unlawful under federal law.
In 1986, Congress passed the Computer Fraud and Abuse Act (CFAA) . This law has been amended and expanded as internet technology has advanced, and it continues to form the basis for federal prosecutions of computer-related criminal activities. Other relevant federal statutes include the Electronic Communications Privacy Act (ECPA), the Identity Theft Enforcement and Restitution Act of 2008 (ITERA), and certain provisions of the USA PATRIOT Act.
The federal computer fraud and abuse statute protects federal computers, bank computers, and computers used in interstate and foreign commerce. It shields them from trespassing, threats, damage, espionage, and from being corruptly used as instruments of fraud. It is not a comprehensive provision, but instead it fills crack and gaps in the protection afforded by other federal criminal laws. In general subsection 1030(a) criminalise:
• Computer trespassing (e.g., hacking) in a government computer, or on any computer if it results in exposure to certain governmental, credit, financial, or computer-housed information;
• Damaging a government computer, a bank computer, or a computer used in, or affecting, interstate or foreign commerce (e.g., a worm, computer virus, Trojan horse, time bomb, a denial of service at tack, and other forms of cyber attack, cyber crime, or cyber terrorism);
• Committing fraud, an integral part of which involves unauthorized access to a government computer, a bank computer, or a computer used in, or affecting, interstate or foreign commerce;
• Threatening to damage a government computer, a bank computer, or a computer used in or affecting interstate or foreign commerce;
• Trafficking in passwords for a government computer, or when the trafficking affects interstate or foreign commerce, and
• Accessing a computer to commit espionage.
In general, violations are punishable by imprisonment for not more than 10 years (not more than 20 years for second and subsequent offenses) and/or a fine of not more than $250,000 (not more than $500,000 for organizations). However, the general espionage sentencing guideline may also apply in some cases, which calls for a base sentencing level of 30 (carrying an initial sentencing range beginning at 8 years' imprisonment) and of 35 (an initial sentencing range beginning at 14 years) if top secret information is involved.
Further, if a violation is committed for terrorist purposes the minimum sentencing level is 32 and the criminal history category is VI which means the sentencing range begins at 17.5 years' imprisonment (and begins at 24.33 years' imprisonment if top secret information is involved).

There are a number of possible opportunities in preparing a legal defense against computer crimes charges. Statutes of limitations may prohibit prosecution for many—but not all—computer crimes if more than 5 years have passed since any alleged criminal act occurred. Additionally, because government agents usually either physically search a defendant's computers or electronically access their files, the legality of those searches may be brought into question. Information illegally obtained by government agents without a warrant or consent will often be suppressed if a defense attorney is able to prove that the defendant's rights were violated. In many computer crime "sting" investigations, federal agents have been known to urge or solicit individuals to commit computer crimes, and this kind of influence by law enforcement may constitute entrapment. If a defense attorney can prove that a defendant would not have committed a crime if not for the urging of law enforcement, a jury may find that the defendant was entrapped, and no conviction or is then possible. An attorney experienced in computer crime defense will be able to sort through the complex evidence these cases often involve, determining how best to challenge the government and protect your rights.

If you have been charged with an internet based cyber crime you need an experienced criminal defense lawyer. Contact Parnham & Associates today at (713) 224.3967 or use our convenient online submission form. Depending on the circumstances, we have many options in mounting a strong defense for you.

Houston Lawyer: Shannon Miles Found Mentally Incompetent

On August 28, 2015, at approximately 8:30 p.m., Harris County sheriff's deputy Darren Goforth was shot and killed in Cypress, Texas, while pumping gas. A 30-year-old man named Shannon Miles, who held a minor criminal history prior to the shooting, was named as the prime suspect. He was arrested the next day and charged with capital murder in relation to Goforth's death.

In the months since Miles was arrested experts for both the defense and the prosecution examined him and came to separate conclusions that he is unfit to go to trial. Prosecutors agreed with Miles' defense team that he is "schizophrenic and episodically psychotic" and incompetent to stand trial, meaning he will be committed to a state mental hospital until he can understand the charges against him. However, 61 other inmates are currently waiting for a bed in the same hospital and it will be months before Miles is moved from the Harris County Jail.

Under Texas law, a suspect can stand trial only if he meets a legal definition of competency, meaning he understands the charges against him and can aid lawyers in his defense. Miles' situation is similar to some of Houston's most infamous cases that have also raised the issue of the competency of the defendant, including Andrea Yates, the Clear Lake mother charged with capital murder in the 2001 drowning deaths of her five children, and Robert Gillham. Gillham, who has never been to trial, was accused of arson in 2009 and has been trapped in "...a revolving door of competency and incompetency" for more than six years;  repeatedly sent to state hospitals where his competency is restored, then returned to the Harris County jail where his condition deteriorates again, restarting the cycle.

Houston Texas Criminal Defense Attorney George Parnham is currently advocating for implementation of local mental health services in the Harris County criminal justice system. Mr. Parnham's insistence that juries and legislators consider context and mental capacity will help move focus from verdict to treatment and catalyze a societal shift from outraged condemnation to awareness and primary prevention. He is totally committed to ensuring that his clients are heard and, to whatever extent possible, understood. In instances where misrepresentation or misstatement about the factual circumstances of an accusation have been leaked to the public, whether intentionally or not, it is imperative to "set the record straight" and do whatever can be done to level the playing field of public opinion. 

Criminal defense strategies applied in these situations need to be created for the particular offense, evidence involved and based upon the defendant's needs. Contact Parnham & Associates today at (713) 224.3967 or use our convenient online submission form. We will work tirelessly to ensure the best possible outcome for your case.

Houston Lawyer: Prosecutorial Vindictiveness

Prosecutorial vindictiveness refers to filing a lawsuit for purposes of harassing the defendant when there is no genuine basis for the suit. If the defendant in the lawsuit wins and has evidence that the suit was filed out of harassing or vengeful motives and without any legal or factual foundation, it may be the basis of a claim for damages against the person who filed the original action. If vindictive prosecution is clearly proved against the party who brought the original suit, punitive damages may be awarded along with special and general damages.

A prosecutor may violate a defendant’s due process rights if they are using their decision to prosecute for purposes of retaliation; for example, charging the defendant with a more serious offense after the defendant appeals the conviction of a lesser offense,  or charging the defendant with an offense although the defendant has not violated the law.

North Carolina v. Pearce, 395 U.S. 711 (1969), is a United States Supreme Court case that forbids judicial “vindictiveness” from playing a role in the increased sentence a defendant receives after a new trial. In sum, due process requires that a defendant be “free of apprehension” of judicial vindictiveness. Time served for a new conviction of the same offense must be “fully credited,” and a trial judge seeking to impose a greater sentence on retrial must affirmatively state the reasons for imposing such a sentence.

The United States Supreme Court considered two respondents’ writs for habeas corpus in their decision. The first respondent, Pearce, was convicted of assault with intent to rape and sentenced to twelve to fifteen years. His first conviction was reversed in a state court proceeding because his involuntary confession was improperly admitted in his first trial. On retrial, he was convicted and sentenced to an eight-year prison term. Both the state and Pearce agreed that this sentence, combined with his previous time served, amounted to a harsher sentence than he had originally received. His conviction was affirmed on appeal to the Supreme Court of North Carolina. Pearce then brought a habeas proceeding in federal court, and the federal district court as well as the Court of Appeals for the Fourth Circuit both declared that Pearce’s new sentence was “unconstitutional and void.”When the state failed to re-sentence him after sixty days, the federal court ordered Pearce to be released. At this point, the Supreme Court granted certiorari.

The second respondent, Rice, plead guilty to four counts of second-degree burglary, and he was sentenced to ten years in prison. The judgment was set aside in a state court proceeding two and a half years later, after Rice successfully argued his constitutional right to counsel was violated at trial. He was retried in Alabama state court, convicted, and sentenced to twenty five years in prison, with no credit given for the time he had already served. In his habeas corpus petition, the federal district court and Court of Appeals for the Fifth Circuit declared that the increased sentence was a violation of due process and “unconstitutional.” The Supreme Court granted certiorari.

About twenty years after Pearce was decided, the Court  overruled Pearce by implication in Alabama v. Smith, 490 U.S. 794 (1989). As a result, current jurisprudence interprets Pearce’s holding to provide a defendant with a “rebuttable presumption of vindictiveness.” This doctrine of a rebuttable presumption of vindictiveness, absent an affirmative indication of objective facts justifying an increased sentence, is referred to as the Pearce Principle.

If the presumption of vindictiveness arises, it may be rebutted by showing that a legitimate and objective reason supported the change in the indictment or the basis for the indictment itself. However, if no presumption of vindictiveness arises, the defendant may show that the prosecutor was actually vindictive in her prosecution. The defendant may present direct evidence showing that the prosecutor was vindictive.

Additionally, if the prosecutor bases their decision of whether to prosecute on the basis of race, gender, or ethnicity than the prosecutor may be guilty of selective prosecution. A claim of selective prosecution must be raised in a timely manner before the trial has commenced, otherwise the claim may be regarded as untimely and waived.
In order for the defendant to prevail on a selective prosecution claim they must overcome a strong presumption that prosecutors have properly performed their duties. A selective prosecution claim is typically analyzed in accordance with the equal protection standards; the defendant must produce evidence that shows that the prosecutor engaged in selective prosecution which had a discriminatory effect upon the defendant, and that the prosecution was pursued with discriminatory intent.

When it comes to criminal law cases, an experienced and effective criminal defense attorney can mean the difference between a prison sentence and reduced or dismissed charges. Even in less serious cases, a good criminal defense attorney can make a serious impact on the outcome of the case by ensuring that the rights of the accused are protected throughout the legal process. If you have been accused of a crime, please contact us today for a free consultation with an aggressive and resourceful criminal defense attorney. We will work tirelessly to ensure the best possible outcome for your case. 

Misconduct of the Prosecution: Houston Attorney- Part II

Prosecutors are required by law to disclose any evidence that tends to exonerate or exculpate you from criminal charges which could help demonstrate your actual innocence or that could reduce your sentence to you and your defense counsel. Called "Brady material,"  this requirement means that prosecutors must disclose evidence known only to police, agreements relating to witness testimony and any other information that tends to show you may not be guilty. Failures to disclose this and other misconduct by the prosecutor may be the basis for appeal or other post-conviction/post-judgment relief.

Impeachable Testimony: Brady v. Maryland, 373 U.S. 83 (1963)

In 1963, the state of Maryland prosecuted John L.Brady and a companion, Mr. Boblit, for murder. Brady admitted being involved in the murder, but claimed Boblit had done the actual killing. The prosecution had actually withheld a written statement by Boblit confessing that he had committed the act of killing by himself and the defendant challenged his conviction, arguing it had been contrary to the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
The Supreme Court held that withholding exculpatory evidence violates due process "where the evidence is material either to guilt or to punishment"; and the court determined that under Maryland state law the withheld evidence could not have exculpated the defendant but was material to the level of punishment he would be given. Hence the Maryland Court of Appeals' ruling was affirmed.

 Because of the Brady ruling, prosecutors are required to notify defendants and their attorneys whenever a law enforcement official involved in their case has a confirmed record of knowingly lying in an official capacity.  Brady evidence also includes evidence material to credibility of a civilian witness, such as evidence of false statements by the witness or evidence that a witness was paid to act as an informant.

Frequently, prosecutorial misconduct is not apparent during trial proceedings; knowledge of misconduct may surface only after a trial has ended. Like all appellate or post-conviction/post-judgment litigation, appeals or collateral challenges based on prosecutorial misconduct involve complex rules and procedures.

 If you believe prosecutorial misconduct occurred in your criminal case, contact Parnham & Associates today for a free consultation with an aggressive and resourceful criminal defense attorney. We will work tirelessly to ensure the best possible outcome for your case.

Houston Lawyer: Prosecutorial Misconduct Part I

Prosecutors wield more power than almost any other person in the criminal justice system. They have the ability to either proceed with a case or dismiss charges, to bargain with a defendant for a guilty plea, and to recommend a severe sentence or plead for leniency. Given the breadth of criminal law, a prosecutor can find reason to prosecute almost anybody if they have the time, the money, and the motive. Unfortunately, this unchecked power is always subject to abuse and prosecutors sometimes engage in misconduct.

A prosecutor may commit misconduct when, in the course of their professional duties, they act in ways that are inconsistent with ethical mandates which they are obliged to obey. These mandates are governed by two distinct sets of rules; the legal framework that binds prosecutors so as to ensure due process, which  includes state and federal constitutions, statutory law, rules of criminal procedure, judicial orders, etc., and the ethical standards of the legal profession as expressed in each state bar’s professional codes.
An act of prosecutorial misconduct may violate one or both of these codes. Prosecutors are required to abide by both.
Enforcement of the two codes differs; when prosecutors violate legal rules as part of a criminal case, the primary recourse is for the criminal defendant to ask to have his conviction overturned (or if the trial is in progress, to ask the judge for a mistrial, to strike matters from the record, or to otherwise minimize the damage caused). When prosecutors violate professional rules, the bar complaint process is the primary enforcement mechanism.
One of the greatest threats to rational and fair fact‐finding in criminal cases can result from a prosecutor hiding evidence vital in the defense of a defendant's innocence. Between 1963, when the U.S. Supreme Court ruled in Brady v. Maryland that such a practice is a deprivation of due process, and 1999, at least 381 defendants nationally had a homicide conviction thrown out because prosecutors concealed evidence. Of the 381 defendants, 67 had been sentenced to death. The consequences of such misconduct when it is discovered can be serious. Convictions are reversed, cases are retried, appeals are brought that cost taxpayers millions of dollars, and public confidence in prosecutors is undermined.

Michael Morton

In 1987 Michael Morton was arrested and charged with beating his wife to death in 1986. An investigator in the case discovered testimony that their three-year-old son had witnessed a “monster” committing the crime and that Michael Morton was not home at the time, as well as further testimony from a neighbor about a man with a green van who had been parking for weeks behind the Morton’s home. In addition, a blood-soaked bandanna was later found at a nearby construction site. Although this testimony and evidence pointed to an intruder entering the Morton’s home and killing Christine Morton in the hours after Michael Morton had left for work, the jury would never be presented with it.

After the prosecutor's refusal to call the lead investigator of the case, the defense suspected that the prosecution was hiding evidence. The prosecutor, Ken Anderson, assured that all favorable evidence had been turned over and provided the judge with a sealed file which he claimed contained all the evidence they had collected. However, the testimony and evidence which demonstrated Morton's innocence was omitted.
Questionable testimony of two state experts and a note Morton had left on the bathroom mirror was the only evidence presented by the prosecution, and this was used to prove a theory that he had killed his wife because he was angry she wouldn’t have sex with him. In February 1987, Michael Morton was convicted in a Williamson County, Texas court and sentenced to life in prison.

In February 2005 a civil attorney, together with the New York based Innocence Project, filed a motion for DNA testing in Morton's case; Williamson County District Attorney John Bradley "tenaciously fought" against DNA testing for six years before a judge finally ordered the tests. These tests did, in fact, link another man to Christine Morton's murder. After nearly 25 years in prison Michael Morton was exonerated and finally released from prison on October 4, 2011. The Innocence Project subsequently filed a motion to remove Bradley from further court proceedings, but stopped pursuing it after Bradley agreed to dismiss the indictment against Morton. That same year, the Texas Supreme Court ordered a Court of Inquiry into possible misconduct by the prosecuting attorney. Ken Anderson was now a judge, appointed to the bench by Gov. Rick Perry in 2002.

In 2012 the Texas Supreme Court convened a court of inquiry, finding that there was evidence to support Morton's contention that Ken Anderson had tampered with evidence and should have been held in contempt of court for not complying with the trial judge's order to let him review all possible exculpatory evidence. The court of inquiry began in February, two months later the court ordered Anderson to be arrested, saying “This court cannot think of a more intentionally harmful act than a prosecutor’s conscious choice to hide mitigating evidence so as to create an uneven playing field for a defendant facing a murder charge and a life sentence.” Anderson responded by claiming immunity from any prosecution under the expiry of applicable statutes of limitation. On September 23, 2013, Anderson resigned from his position as district court judge.

The following November, Anderson was found to be in contempt of court and was sentenced to 10 days in county jail, fined $500, and ordered to perform 500 hours of community service. He agreed to give up his license to practice law in exchange for having the charges of evidence tampering dropped. He was released from jail after having served five days.After the plea agreement was announced, it was publicly revealed that Williamson County District Attorney Jana Duty agreed to authorize an independent review of every case that Anderson ever prosecuted, along with every case in which Bradley successfully opposed DNA testing.

On May 16, 2013, Governor of Texas Rick Perry signed Texas Senate Bill 1611, also called the Michael Morton Act, into law. The Act is designed to ensure a more open discovery process. The bill's open file policy removes barriers for accessing evidence. Morton was present for the signing of the bill, which became law on January 1, 2014.

Sanctions for prosecutorial misconduct include appellate reversal of convictions, finding the prosecutor in contempt of court, referring the prosecutor to a bar association grievance committee, and removing the prosecutor from office. However, prosecutorial misconduct persists in large part due to the inadequacy of these penalties. Although an appellate court can reprimand a rogue prosecutor or reverse a conviction based on misconduct, such sanctions still don't hold the prosecutor personally accountable; during the course of a trial, the prosecutor is absolutely immune from any civil liability that might arise due to his or her official conduct. Moreover, the appellate courts can affirm a conviction despite the presence of serious prosecutorial misconduct by merely invoking the harmless error doctrine. Under this doctrine, an appellate court determines that errors were of such a minor or trivial nature that they didn't harm the defendant's rights.

If you believe that you are subject to a wrongful conviction in your case because of unfair or inappropriate actions by a prosecutor, you may be able to base an appeal or motion for post-conviction relief on the grounds of prosecutorial misconduct. Contact us online or call  713-224-3967 today for a free consultation: we will work tirelessly to ensure the best possible outcome for your case.