Nov 22, 2014

Death Penalty for the Mentally Ill: Scott Panetti

A Documented 30 Year History of Mental Illness:

Scott Panetti received his first diagnosis of schizophrenia in 1978 at the age of 20. Between 1981 and 1992, he was hospitalized 14 times at six different institutions for showing symptoms of psychosis characterized by tangential and circumstantial thinking, hallucinations, delusions, grandiosity, and paranoia. Extensive medical records chronicle these symptoms.

In 1986 Panetti experienced a psychotic episode during which he tried to "...wash the devil from the walls of his house" and buried the family's furniture in the backyard, believing the devil was in it. He nailed the curtains shut so that “the neighbors would not film him.” Shortly before the murders in September 1992 Sonja Alvarado tried to have him committed after he "...came after her with a knife". She took his guns to the local police but they simply returned them, claiming they had no legal right to prevent Panetti from having them.

At no point was there any suggestion that he is malingering or faking symptoms.

In July 1994 a competency hearing was scheduled to determine whether Panetti was fit to stand trial. In Texas, these hearings are held before a jury: in most other states a judge determines competency with input from psychiatric professionals. The jury was unable to come to a consensus, and the judge declared a mistrial. At a second competency hearing Panetti’s lawyer testified that in the previous two years he had had no useful communication with Panetti because of his client’s delusional thinking. A psychiatrist for the defense concluded that Panetti was not competent to stand trial; a psychiatrist for the prosecution agreed with the previous diagnoses of schizophrenia, and noted that Panetti’s delusional thinking could interfere with his ability to communicate with counsel. The same doctor reported that Panetti did not know what year it was and could not identify the president.
Yet he still concluded that Panetti was competent to stand trial, and the jury agreed.

At both competency hearings Panetti was medicated with large doses of antipsychotic drugs.

In 1995 Panetti experienced what he calls an “April Fool’s Day revelation”: he believed that God had cured his schizophrenia, and stopped taking his medications. He also became convinced that he could not trust his lawyers, whom he thought were conspiring with the police and the courts; after trying to fire them the judge apparently held no further competency hearing and allowed him to represent himself. When his trial began in September of that year court documents claim that his defense could be "...described charitably as bizarre"; in fact Scott Panetti conducted his defense dressed as a cowboy in a purple suit and a hat.
  •  He attempted to call more than 200 witnesses, including John F. Kennedy, the pope, Anne Bancroft, and Jesus Christ. (The last he later recanted: “Jesus Christ, he doesn’t need a subpoena. He’s right here with me, and we’ll get into that,” Panetti said in court.)
  • He interrogated one prospective jury member as to whether the person had any “Indian blood,” before launching into a tirade about an event he called “Wounded Elbow”—conflating the battle of Wounded Knee with something to do with the Ayatollah Khomeini. 
  • He cross-examined himself on the stand, addressing his alter ego “Sarge.”
  • He disposed of documents prepared for him by backup counsel, convinced that the prison guards were colluding against him. He presented no mitigating evidence.
  • The judge declined to accept crucial medical records because Panetti had drawn all over them. 
 A psychiatrist who had assessed Panetti prior to trial and witnessed the proceedings says Panetti was “acting out a role of an attorney as a facet of the mental illness, not a rational decision to represent himself at trial.” After less than two hours of deliberation, the jury found Panetti guilty of murder and recommended capital punishment. (Life without parole was unavailable in Texas at the time.) In post-conviction proceedings the judge determined that he was incompetent to waive counsel.

Panetti v. Quarterman:

In 2007 Panetti’s case went to the U.S. Supreme Court, which held that the 5th Circuit Court of Appeals’ standard for assessing his competency for execution was unconstitutional. In Panetti v. Quarterman (2007), the court emphasized that evaluating Panetti’s factual understanding of the meaning of his execution and its consequences was not sufficient in light of his severe mental illness. The objectives of capital punishment, the court wrote, are not served “if the prisoner’s mental state is so distorted by a mental illness that his awareness of the crime and punishment has little or no relation to the understanding of these concepts.”
Both the district court and the 5th Circuit ignored the court’s direction. Neither attempted to reconcile how a severely mentally ill man like Panetti, whose delusions and reality are so intertwined that he believes the judges and the State of Texas are conspiring with Satan to execute him, can possess a rational understanding of the connection between his crime and death sentence.

The District Court showed a fundamental misunderstanding of the nature of delusions when it found that Panetti’s delusions were not “constant,” citing an earlier visit between Panetti and his parents. Panetti’s parents would have no reason to “press his buttons” or place him under stress with challenging questions, unlike the experts who are tasked with evaluating competency. In any event, the district court overlooked evidence that Panetti did, in fact, speak of his delusions with his parents: he spoke repeatedly of his efforts to fulfill his destiny and bring the word of god to the men on death row. For example, Panetti called the trial judge in his case a “devil worshipper” and explained: “Some of (these Death Row inmates) are possessed with devils. They’re anti- Christian, Satanists. So that’s why I’m here to deal with that.”

On appeal the 5th Circuit upheld this limited understanding of competency for execution. Under the 5th Circuit’s view, if a court can single out any shred of evidence that appears to show a prisoner’s rational understanding of the reason for his punishment, his delusional belief system and decades of severe mental illness are simply irrelevant.

The state does not dispute that Panetti believes that he would be executed for saving souls on death row, not for murder. It cannot be said that such a prisoner has the capacity to accept responsibility for his crime. If he doesn’t have a rational understanding of the link between his crime and his execution, the death penalty fails to serve its purpose as a punishment.
The courts should listen to the doctors who study psychotic disorders. The district court and the 5th Circuit’s reasoning downplays Panetti’s severe mental illness and how his delusions control his mind.

Request for Clemency:

In October 2014,  a district judge signed a warrant setting Scott Panetti's execution date for December 3, 2014. Panetti’s attorneys only discovered this when they read it in the newspaper two weeks later; the office of District Attorney Bruce Curry did not notify them, as is the pattern and practice of capital law in Texas. Panetti’s attorneys might have used that time to attempt to save his life. Texas has been scheduling executions in 2015: they pushed Panetti’s ahead so it can happen in 2014.

Petitions from over 50 national evangelical leaders as well as former Congressman Dr. Ron Paul  are being submitted to the Texas Board of Pardons and Parole and State Governor Rick Perry requesting them to consider granting Scott Panetti’s clemency petition and commute his death sentence to life in prison. The petitions claim that:
"The execution of Scott Panetti would be a cruel injustice that would serve no constructive purpose whatsoever. When we inflict the harshest punishment on the severely mentally ill, whose culpability is greatly diminished by their debilitating conditions, we fail to respect their innate dignity as human beings."

The U.S. Supreme Court should take Panetti’s case and clarify a precise standard for determining a prisoner’s competency for execution. Current law has left the lower courts with unfettered discretion in determining which prisoners will be executed. If we want to live in a just, humane society, we cannot continue to fail to protect people with severe mental illness from execution.

Houston criminal attorney 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.

Attorneys for Scott Panetti appeal to the Texas Court of Criminal Appeals: TDACP
Massive Failures of Justice: Why Texas is about to execute a profoundly mentally ill man; Boer Deng and Dahlia Lithwick,
Evangelical letter of Support, Panetti clemency (.pdf)
Dr. Ron Paul clemency letter (.pdf)

Nov 3, 2014

Houston Criminal Attorney: Child Pornography Convictions

As computers have become a part of daily life, so have prosecutions involving the use of computers as a vehicle for child pornography. Otherwise innocent people may find themselves caught up in overzealous government investigations of internet sex crimes.
Internet sex crimes such as possession of child pornography or online solicitation make media headlines, especially when business owners, teachers, or other prominent citizens are facing these accusations. Using the internet to solicit sexual acts from a minor is an incredibly serious offense. Any sex crime charge, even if false, can be extremely damaging. That's why it's important to seek immediate and aggressive legal representation.

Some pornography web sites can install software on your computer or come looking for you without your knowledge, and can then send you to another web site containing potentially illegal content. In addition police officers often pose as minors and seek to entice visitors to Internet chat rooms. In many of these situations, there are several legal means by which to challenge the legality of the this process.

Federal law defines “child pornography” in 18 USC Section 2256(B) (8): as "any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where—
(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;
(B) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or
(C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct."

In addition, the Texas Penal Code Section 43.26 states that a person commits an offense if "the person knowingly or intentionally possesses visual material that visually depicts a child younger than 18 years of age at the time the image of the child was made who is engaging in sexual conduct; and... the person knows that the material depicts the child".

Strict child pornography laws are important in the fight to keep our children safe from predators and others who attempt to exploit their innocence for criminal purposes. But because the laws are overly broad, they often have the opposite result and can easily be used to convict innocent people.

One example is a fad among teenagers known as "sexting", which involves sending or receiving sexually explicit text messages or photos via cell phones. Although most people understand the difference between a teen's poor decision and an adult exploiting a child for sexual purposes, the law makes no such distinction; in fact, even if the minors consensually shared personal images, both the sender and receiver can end up in juvenile jail and be forced to register as sex offender for the rest of their lives. In addition to identifying the child to the public, sex offender registration will impact their ability to get a job, live in certain areas and travel freely throughout their adult life.

Another commonly held assumption by law enforcement is that if a pornographic file shows up on your computer, it must be yours. In reality, that isn't necessarily the case and with proper legal defense it can be difficult for the prosecution to prove that the file was yours.
In fact there are multiple ways for media to to be downloaded to a person's computer without their knowledge. One of the most obvious, of course, is simply for another user to download files on a shared hard disk drive. But with the expansion of the internet and related technology, especially P2P or file sharing software such as BitTorrent and Limewire, people are increasingly at risk of not only unintentionally downloading illegal materials but also sharing them over the P2P network. A common example is the downloading of multi-part file packages such as .zip, .rar or .7z. These are compressed directories containing multiple files, and although the downloader may only be interested in part of the content they seldom know exactly what the package contains. Additionally, files from anonymous sources may often be intentionally  mislabeled or misidentified.

Another possible means of unknowingly spreading or accepting illegal digital media is through computer viruses or hacking. Illegal "botnets" have become a serious internet issue and can be used to literally take over a computer without the owner's knowledge or consent.
When a user's computer is infected with certain types of malicious software, or "malware" -which may lurk in virtually any email, website or digital file- modules are installed which allow the computer to be surreptitiously controlled by a third party. These robot networks of infected computers, or "botnets" can then be directed to connect to IRC channels, download and disseminate files, send mass email messages (spam), or to repeatedly connect to a specific URL, instigating a denial of service (DDOS) attack. In some cases the hacker may even take command of peripheral devices such as a connected webcam, all without the knowledge of the computer's owner.

Serious issues are also connected with the way your computer records and stores the media files that your web browser encounters while you're surfing the internet. Unbeknownst to many people, older versions of  browser software such as Internet Explorer and Firefox can, by default, automatically download and save a copy of every media instance -digital photograph, "Flash" video, and graphic- that they encounter. These may include pop-up and pop-under advertisements that the user doesn't actually see. Although modern web browsers include better controls over what the user allows to be saved by default, they are often complicated to use and poorly documented. These images may stay in your browser history indefinitely without your knowledge.

One tool that a defense attorney may use in fighting child pornography charges is metadata- information attached to every digital file which can be used to trace its origin. .JPEG images, a popular file format,  usually contains a wide variety of information including the camera's make and model, focal and aperture information, timestamps and sometimes even GPS coordinates.

Internet crime cases are often highly complex and technical. The specific penalties that a defendant faces for a federal computer crime conviction will vary depending upon the particular offense: imprisonment may be a common denominator for all computer crimes, heavy fines and victim restitution are likely in a case involving fraud and sex offender registration is mandatory in a case involving child pornography.

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 & McWilliams today at (713) 224-3967 or click here for our convenient online submission form.
We will work tirelessly to ensure the best possible outcome for your case.

Oct 8, 2014

Domestic Assault: Houston Criminal Attorney

"Domestic violence" is physical or threatened violence and abuse occurring within a relationship between married or cohabiting couples, couples who have a child in common, persons who were formerly married to one another or basically any couple who are in a relationship or who have had a former relationship.
A domestic violence charge in the state of Texas is extremely serious; it often carries a restraining order which may require you to leave your house immediately and stay away from the person who accused you of domestic violence. Even if you own the house or pay for it, you will have to leave. In addition, you will likely face jail time, probation, counseling and more.

There are graduated penalties for these types of offenses depending on the particular circumstances of the event and the history of the individuals involved. Many, if not most, of the penalties are severe. Even sentences of Probation can, and often do, come with special conditions that make successful completion more expensive, time consuming and difficult. In addition to the criminal charge itself, Domestic Violence cases carry many far-reaching collateral consequences, which, in many cases, may be more severe than the criminal penalty itself. The consequences include but are not limited to: your ability to own and possess a firearm, serve in the military, your ability to live in your home or maintain contact with your children.

The potential consequences for non-U.S. citizens are of particular importance; federal law can characterize these offenses as “Aggravated Felonies”, “Crimes of Violence” and “Crimes of Moral Turpitude” even when the criminal charge itself is only a misdemeanor. As a result, these charges can and often do result in deportation, denial of naturalization and exclusion from admission to the United States. A person charged with these types of offenses may be subject to these collateral consequences even where they received deferred adjudication, a petition for non-disclosure, or an expunction. 

Being charged with domestic violence does not mean you are automatically convicted. Many domestic assault cases rely solely on an accusation from the victim with no corroborating witnesses, and we may be able to challenge the accuser’s credibility. Contact Parnham & McWilliams today at (713) 224-3967 or click here for our convenient online submission form. Depending on the circumstances, we have many options in mounting a strong defense for you.

Aug 12, 2014

Medical Records Confidentiality: Houston Lawyer

Medical records have an unusual legal status in that they are not only a physicians’ primary business records, but also confidential information that is at least partially controlled by the patient. Unlike the traditional lawyer–client privilege, there is no common law physician–patient privilege.
Medical ethics has always demanded that physicians respect their patient’s confidences, and in recent years many states have enacted medical privacy laws. These laws usually limit the dissemination of medical information without the patient’s consent, but provide certain exceptions such as allowing for the discovery of medical information when the patient has made a legal claimed based on that information, or if the patient poses a threat to the public health.

These privacy laws modify the presumption that medical records, as a business record, are subject to discovery in cases against medical care practitioners. In cases where medical records are at issue in litigation against a medical practitioner (other than cases brought by a patient), medical records are protected from discovery unless the plaintiff can show a compelling reason why the records are necessary to prove the case. Even then, the court supervises the discovery and generally requires that all patient- identifying information be removed.
If the case is brought in federal court, such as in an antitrust or false claims case, then the state law protections do not apply. Although federal judges try to protect patients’ confidential information when possible, there are many situations, such as a Medicare fraud prosecution, where the complete records will be discoverable.

The federal government does not provide a general protection for medical privacy outside of federal institutions, but there is a federal law that protects records dealing with treatment for alcoholism and substance abuse.
The Federal Confidentiality of Substance Abuse Patient Records Statute, section 543 of the Public Health Service Act (42 U.S.C.A. § 290dd-2) establishes confidentiality requirements for patient records maintained in connection with the performance of any federally-assisted alcohol or drug abuse program providing alcohol or drug abuse treatment, diagnosis, or referral for treatment. The term "federally-assisted" is broadly defined to include federally conducted or funded programs, federally licensed or certified programs, and programs that are tax exempt. Certain exceptions apply to information held by the Veterans Administration and the Armed Forces. 

As part of the Conditions of Participation for Medicare/Medicaid and Joint Commission requirements, providers must protect patient confidentiality.

Rule 509 of the Texas Rules of Evidence states that:
 "There is no physician-patient privilege in criminal proceedings. However, a communication to any person involved in the treatment or examination of alcohol or drug abuse by a person being treated voluntarily or being examined for admission to treatment for alcohol or drug abuse is not admissible in a criminal proceeding."

In Texas civil proceedings, confidential communications between a physician and a patient relative to any professional services are considered privileged and may not be disclosed. Any records of the identity, diagnosis, evaluation, or treatment of a patient that are maintained by a physician are also considered confidential.  The provisions rule 509 apply even if the patient received the services of a physician prior to the enactment of the Medical Liability and Insurance Improvement Act.
Exceptions may be made in cases when the proceedings are brought by the patient against a physician, such as cases involving malpractice, or in license revocation proceedings when the patient is a complaining witness and disclosure is relevant to the claims (or defense) of the physician. Additionally, exceptions may be made in the following situations:
  • the patient or someone authorized to act on the patient's behalf submits a written consent; 
  • to substantiate claims for medical services rendered, if the records are relevant to an issue of the physical, mental or emotional condition of a patient when that condition is a part of the party's claim or defense, 
  • in disciplinary investigations or proceedings against a physician provided that the identity of the patient is protected,
  • in certain involuntary civil commitment proceedings, proceedings for court-ordered treatment or probable cause hearings,
  • in any proceeding regarding the abuse or neglect, or the cause of any abuse or neglect, of the resident of an "institution"

 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. Call (713) 224-3967 for a free consultation or click here for our convenient online submission form.

Aug 7, 2014

8th and 14th Amendments Violated by Capital Life Sentence Without Parole

Capital Life without Parole is Unconstitutional.

Amendment VIII:
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

Amendment XIV (Section 1):
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

From November 1981 through January 1982 the US Supreme Court argued the case of Eddings v. Oklahoma (455 U.S. 104).
Eddings, a 16-year-old youth, was driving a car on the Oklahoma Turnpike when he momentarily lost control of the vehicle. He was signaled to pull over by an Oklahoma Highway Patrol officer; when the officer approached the car Eddings stuck a loaded shotgun out of the window and fired, killing the officer.

The State moved to have Eddings certified to stand trial as an adult, where he was charged with murder in the first degree: the District Court found him guilty upon his plea of nolo contendere. The Oklahoma death penalty statute provides in pertinent part that  "In the sentencing proceeding, evidence may be presented as to any mitigating circumstances or as to any of the aggravating circumstances enumerated in this act." However, even though the Oklahoma Statutes list seven separate aggravating circumstances; the statute nowhere defines what is meant by "any mitigating circumstances."

 At the sentencing hearing, the State alleged three of the aggravating circumstances. In mitigation, Eddings also presented substantial evidence of his troubled youth. Psychological reports stated that Eddings had a sociopathic or antisocial personality, was treatable, and could be rehabilitated by intensive therapy

At the conclusion of all the evidence, the trial judge weighed the evidence of aggravating and mitigating circumstances. He found that the State had proved each of the three alleged aggravating circumstances beyond a reasonable doubt, but he would not consider in mitigation the circumstances of Eddings' unhappy upbringing and emotional disturbance. Finding that the only mitigating circumstance was Eddings' youth and finding further that this circumstance could not outweigh the aggravating circumstances present, the judge sentenced Eddings to death.

In this case, the Supreme Court held that the death sentence must be vacated as it was imposed without "the type of individualized consideration of mitigating factors . . . required by the Eighth and Fourteenth Amendments in capital cases (as per Lockett v. Ohio, 438 U.S. 586, 606).
Further, they stated that:

 "The Eighth and Fourteenth Amendments require that the sentencer... not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." 

Another case with similar repercussions was Miller v. Alabama, in which the Court held that mandatory sentences of life without the possibility of parole are unconstitutional for juvenile offenders. The decision of the court was based on two consolidated cases, Jackson v. Hobbs, (10-9647) and Miller v. Alabama, (10-9646).

Both cases involved 14 year old juveniles; Kuntrell Jackson was involved in a robbery with two other teenagers, one of whom killed a store clerk. Jackson was charged as an adult and given a life term with no parole. In the second case Evan Miller was convicted of murder after he and another boy set fire to a trailer where they had bought drugs from a neighbor. He too was given a life term with no parole.
The United States Supreme Court heard oral arguments in both cases on March 20, 2012. In an opinion delivered by Justice Kagan on June 25, 2012, the Court held that:

Mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on 'cruel and unusual punishments and that a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles.

Justice Kagan’s majority opinion stressed “...the evolving standards of decency that mark the progress of a maturing society.

Although the Supreme Court has ruled that juveniles cannot not be sentenced to life in prison without the possibility of parole, the Texas Penal Code Sec. 12.31 still mandates life without parole in capital murder cases involving adult defendants where the death penalty is not sought. As in the Oklahoma statutes, the judge may be precluded from considering mitigating circumstances such as the psychological condition of the defendant while still considering all of the aggravating circumstances. Due to this inherent imbalance, aggravating circumstances in capital murder cases consistently outweigh any possible mitigation.

Houston attorney George Parnham believes that the impact of mandatory life sentencing in capital cases involving defendants with mental illness violates both the 8th and 14th amendments to the United States Constitution. In March of 2009 George Parnham, along with Texas State Rep. Jessica Farrar, introduced legislation to modify the penalty phase of trials in which a mother’s mental illness was a mitigating factor. This legal modification has been accepted by other countries, but not yet in the U.S.
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.

May 15, 2014

Texas mother on trial for death of baby

The trial is underway for Narjes Modarresi, charged with capital murder in connection with the death of the child in April 2010.
According to HPD, Modarresi initially said the baby was taken in his stroller in the 8000 block of Woodway by a man in a mid-sized brown or beige sedan. But after a lengthy interview with investigators, Modarresi led them to a wooded area near Buffalo Bayou where her son was buried alive in a shallow grave.
Defense attorney George Parnham said Modarresi had an extensive history of mental illness including bipolar disorder and post-partum depression. Parnham also represented Andrea Yates, the Houston woman who drowned her five kids in 2001.

While her family says Modarresi has a history of mental illness, it's unclear whether there was any official diagnosis of post-partum depression. George Parnham, an expert on post-partum depression, said the public should withhold judgment.
"I understand that the mother's Iranian, and there may be a cultural issue, whereby she has added pressure not to speak to relatives about examples of post-partum issues," he said.

"When we're dealing with a mother who's suffering post-partum psychosis, her reality -- and the reality in which she makes a a decision -- is different," he said.

Injury to a Child by Omission in Texas

"Injury to a child by omission" means that the legal guardian, or someone with the legal duty to support/protect the child, failed to take an action they should have taken and the failure to take that action caused injury to the child. 
“Injury to a Child” is defined by Texas Penal Code 22.04 which states;
(a)  A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or intentionally, knowingly, or recklessly by omission, causes to a child, elderly individual, or disabled individual:
(1)  serious bodily injury;
(2)  serious mental deficiency, impairment, or injury; or
(3)  bodily injury.

Child abuse allegations are extremely serious in nature, and Texas law takes these matters so seriously that we are all charged with an affirmative duty in Texas to report any abuse or neglect of a child to the authorities. Charges of child abuse can be brought if someone is alleged to have acted “intentionally” or “knowingly”, or in the case of an “inchoate” crime; a crime of omission, or failing to act.

While most felony child abuse charges stem from a direct act by a defendant in the context of an assault, either intentionally or recklessly causing some contact with a child that results in an injury- child abuse also applies to omissions or things that a person failed to do. This is one of the few felony offenses where a person is punished for not doing something. 
Child abuse charges from omissions only apply to a parent or another person who has taken over the parenting or caretaking function, such as a nanny or babysitter. Examples could include punishment techniques involving the deprivation of food or water, or failing to obtain proper medical treatment for a child, even when the denial of treatment is based on religious beliefs.

There are several affirmative defenses available to people accused of injury to a child in Texas. A primary defense is provided by Texas Penal Code Section 9.61 which allows "the use of force, but not deadly force, against a child younger than 18 years of age (1) if the actor is the child’s parent or step-parent acting in loco parentis to the child (which includes grandparents, guardians, or any person acting by, through, or under the discretion of a court with jurisdiction over the child, and anyone that has the express or implied consent of the parent or parents of the child); and (2) when and to the degree the actor reasonably believes the force is necessary to discipline the child or to safeguard or promote his welfare."
This means that if a defendant can show that the injury was the result of reasonable discipline, then a defendant is allowed to submit an affirmative defense. The main focus is the reasonableness of the discipline;  if a parent spanks their child with a belt and leaves minimal red marks, they will probably be able to beat a felony child abuse charge. A spanking with a metal studded belt that lasted for an extensive period of time would not qualify as reasonable.

It is extremely common for law enforcement, either a local police agency or Child Protective Services (CPS) to conduct investigations of child abuse or endangerment without notifying the accused that they are  being investigated for a felony.  A seemingly innocuous request to have an in-person interview may be an attempt to get a confession.  

If you have any question about why you’ve been contacted for an investigation you should speak with a lawyer immediately. Contact the law offices of Parnham and McWilliams at 713.224.3967 or visit to schedule a free consultation.

May 13, 2014

Assault: Houston Texas Criminal Attorney

Simple assault in Texas is defined in Tex. Penal Code Ann. §22.01. and consists of intentionally, knowingly or recklessly causing bodily injury to another person; intentionally or knowingly threatening another person with imminent bodily injury, or intentionally or knowingly causing physical contact with another that the offender knows or reasonably should know the victim will find provocative or offensive.

Any injury such as a broken bone, disfigurement or loss of a limb that requires surgery or hospitalization is a considered “serious bodily injury”; simple assault involves only minor bodily injury like a cut, scrape, or bruise. In fact, assault does not even require actual physical contact with another individual: simply threatening another person with violence may be considered assault if that person has a reasonable fear that the act will be committed.

In addition, any abusive, violent, coercive, forceful, or threatening act or word inflicted by one member of a family or household on another can constitute a domestic assault. In Texas, domestic violence ranges from saying unkind or demeaning words (verbal assault) to physical actions such as grabbing a person's arm, hitting, kicking or choking them. Although domestic violence most often refers to violence between married or cohabiting couples, it may also refer to violence against other members of a household such as children or elderly relatives.

An attempted assault is defined as attempting to cause serious physical harm resulting in significant injury. Examples of this include physical harm to a person or another person's unborn child and engaging in sexual conduct as a known carrier of a virus that causes acquired immunodeficiency syndrome.

In Texas, Assault can be a Class C Misdemeanor, a Class A Misdemeanor or a Felony;
"Simple Assault" generally falls under the Class C Misdemeanor charge. A regular Class A Assault is where a person “causes bodily injury to another”, meaning pain. For example, if someone pushes you, but it did not hurt, they may be charged with simple assault. If they push you and it hurts (even if there is no visible injury) they may be charged with a Class A misdemeanor assault.
The Class C Misdemeanor offense of simple assault is punishable by a fine only up to $500. It is possible to be charged with a simple assault involving domestic violence. A Class A Misdemeanor is punishable up to one year in county jail and a $4,000 fine. Aggravated Assault or an enhanced domestic violence assault is a second degree felony punishable by 2 to 20 years in prison and up to a $10,000 fine.

When an assault is charged under the misdemeanor category, a law enforcement officer cannot arrest an individual without seeing them actually commit the assault. This does not mean you cannot be prosecuted for the assault. An officer can arrest an individual without seeing the assault, if the assault involves domestic violence.
Every arrest does not necessarily mean that the individual is guilty of committing simple assault; every case has its own facts and circumstances. The required intent can be met based upon recklessness; if the defendant is aware of some risk, but disregards the risk, they can still be liable for assault.

If an individual believed that an act is necessary to prevent harm to themselves or to protect their property from being stolen, they could be found to not have committed an assault: this self-defense argument can sometimes overlap and be used if an individual was defending/protecting another individual. Another defense against assault charges is that the actions were accidental if they were not intentional, knowing, or reckless. When the assault charge arises from threats, arguments can be raised that the complainant misinterpreted the actions of the accused.

If you have been accused of Assault, please contact Parnham & McWilliams 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.

May 6, 2014

Aggravated Assault in Texas

"Assault" charges in Texas can range from a simple threats or fistfights to violent attacks with dangerous weapons. Under Texas law, you can be charged with assault resulting from an incident with no physical contact.
An act of assault can include intentionally, knowingly, or recklessly causing bodily injury to another person, threatening someone with bodily injury or causing physical contact in a manner considered offensive or provocative.
For a threat to rise to the level of a criminal assault, the threat has to put the person in reasonable fear of injury.

For the police to actually arrest you on the spot on an assault charge, they have to actually witness the act.  If the police are not there to witness the assault, then they can write you a complaint (citation) or notice to appear in court, or they can seek an arrest warrant from a judge.
The exception to this is with domestic assault or domestic violence accusations, in which case the police in Texas are authorized to arrest you and remove you from the premises.

Under Texas Penal Code Section 22.02. an assault is considered an aggravated assault if serious bodily injury is caused, and/or a deadly weapon is used or exhibited in committing the assault.
"Bodily injury" does not necessarily require some sort of visible injury like a cut or bruise: in fact the legal definition includes mere physical pain. As a result, you can be charged with "Assault with Bodily Injury," if you are accused of merely slapping another person or pulling their hair.
The definition of "serious bodily injury" is more intuitive, meaning that the bodily injury "creates a substantial risk of death or causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ."

In Texas, assault and battery laws carry penalties ranging from a "Class C" misdemeanor (monetary fine of up to $500) to a second degree felony (two to twenty years in prison and a fine of no more than $10,000). The primary factors influencing which type of penalty is likely to be imposed.
Aggravated assault, on the other hand, is always classified as either a first or second degree felony; generally it is prosecuted as a second degree felony, except in the following circumstances:
  • The victim is either someone living in the household of the defendant, related to the defendant by blood or affinity (including foster parents or foster children), or in a "dating relationship" with the defendant;
  • The defendant is a public servant acting under his/her office as a public servant;
  • The victim is a public servant and was acting under his/her duties at the time of the crime;
  • The victim is a security officer on duty at the time of the crime;
  • The defendant was in a motor vehicle at the time of the crime and recklessly discharges a firearm in the direction of a building, vehicle or habitation without knowledge of whether it was inhabited and causes serious bodily injury to a victim;

A conviction of second degree felony carries a penalty of two to twenty years in state prison and/or a fine of no more than $10,000.
If the conviction is for first degree felony, the penalty imposed may be between 5 to 99 years in state prison and/or a fine of no more than $10,000.

If you have been charged with criminal assault, including misdemeanor assault or felony aggravated assault, or if you are being investigated for state or federal assault charges, it is important to seek counsel from an experienced criminal defense attorney. For more information visit or contact   Parnham and McWilliams at 713.224.3967 to schedule a free consultation.  

Apr 10, 2014

Texas State "Hazing" Laws: Houston Criminal Attorney

Hazing is a broad term encompassing any action or activity which does not contribute to the positive
development of a person; which inflicts or intends to cause physical or mental harm or anxieties or
sleep deprivation; which may demean, degrade, or disgrace any person, regardless of location, intent
or consent of participants. Hazing can also be defined as any action or situation which intentionally
or unintentionally endangers a student seeking admission into or affiliation with any student
In most states hazing is considered a misdemeanor with fines of up to $5,000. The problem states are having is with reporting incidents: working toward a federal law is critical to solving the bullying problem because the number of incidents reported is crucial.
A study by Alfred University has found that hazing is most likely to occur on campuses in eastern or southern states. Eastern and western states have the most alcohol-related hazing while southern and western states have the most dangerous hazing. Women are most likely to be involved with alcohol-related hazing. Male athletes who play soccer, lacrosse, swim or dive are most at risk for hazing in general, while football players are most likely to be dangerously or illegally hazed. The study found athletes and coaches agree on a few ways to prevent hazing; introduce clear anti-hazing messages, expect responsibility from athletes, and offer team bonding supervised by a coach.

The Texas State Legislature enacted laws concerning hazing in 1995; under Texas Education Code (ED.C.)§ 4.52(a), individuals or organizations engaging in hazing could be subject to fines and charged with a criminal offense. According to the law, a person can commit a hazing offense not only by engaging in a hazing activity, but also by soliciting, directing, encouraging, aiding or attempting to aid another in hazing; by intentionally, knowingly or recklessly allowing hazing to occur; or by failing to report, in writing to the Dean of Students or another appropriate official of the institution, first-hand knowledge that a hazing incident is planned or has occurred. The fact that a person consented to or acquiesced in a hazing activity is not a defense to prosecution for hazing under this law.

A person commits an offense if they:
  • Engage in hazing;
  • Solicit, encourage, direct, aid, or attempt to aid another in engaging in hazing;
  • Have firsthand knowledge of the planning of specific hazing incident involving a student in an educational institution, or have firsthand knowledge that a specific hazing incident has occurred, and knowingly fail to report this knowledge in writing to the dean of students or another appropriate official of the institution.

Hazing may occur on or off the campus, and consent is not considered a defense.

Penalties for personal hazing are dependent on the character of injury; if there is no serious bodily injury it is a misdemeanor punishable by a fine of between $500 and $1000, county jail for time between 90 and 180 days, or both. If there is serious bodily injury it is a misdemeanor punishable by a fine between $1000 and $5000 and/or a jail sentence between 180 days and one year.
Hazing that results in a death is also a misdemeanor, with fines of $5000 to $10,000 and/or not less than one year or more than two years incarceration.

An organization convicted of hazing faces a fine not less than $5000 or more than $10,000. If there is  personal injury, property damage or other los, the court may sentence the organization to pay a fine of not less than $5000, nor more than the double amount of loss incurred.
The offense of failing to report hazing is punishable by a fine of up to $1000, confinement in the county jail for not more than 180 days, or both.

If you have been accused of a crime, please contact us today at 713-224-3967 or visit 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.


Apr 5, 2014

Defense of the Assault Case- Houston, Texas Criminal Attorney

An assault and battery charge can result in serious consequences for any defendant. You may face an extended prison sentence and be forced to pay excessive fines.
Justified or not, being charged with assault is a serious matter you should not take lightly.
An Assault is an offense against another person or persons. The various forms of Assault in Texas are set forth in Chapter 22 of the Texas Penal Code. Depending on the specific facts and circumstances of any given case, an assault charge can be anything from a fine only Misdemeanor up to a Felony Assault charge which could result in a lengthy prison sentence and/or a hefty fine. 
Our attorneys are intimately familiar with all facets of criminal defense and may help clients with the following:
  • Work to get the charges dropped or lowered
  • Interview police, involved parties, and any possible witnesses to expose any lies or exaggerations
  • Make sure that no evidence against our client was obtained illegally
  • Conduct a thorough pre-trial investigation
  • Employ a private investigator, ballistics expert, polygraphist, or any other experts that may be able to help strengthen our client’s defense
  • Obtain expert witnesses to testify on behalf of our clients
  • Negotiate with prosecutors to make sure our clients face the minimum possible penalties

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. Call (713)224 - 3967 for a free consultation or visit for more information.

Apr 4, 2014

Use of Mitigation Experts in Criminal Defense

Mitigation specialists can play a crucial role in legal defense, particularly in capital cases. They can provide defense attorneys with professional analysis, investigative information, key evidence and experts needed to testify regarding circumstances presented in the case.  A mitigation specialist will seek to uncover as much background information as possible regarding the defendant in order to inform the jury and make recommendations to the court during the sentencing phase.

While backgrounds of mitigation specialists vary, most have a four-year degree in criminal justice, psychology, social work, sociology, journalism or anthropology. They may have a network of professionals including forensic psychiatrists and psychologists, substance abuse treatment providers, forensic accountants, forensic computer analysts and others.

 Since attorneys often lack both the time and expertise to supervise the investigative process, they instead rely on these final reports submitted when preparing for court. As such, a mitigation specialist needs to prove his or her competence in all phases of the job before the defense team will extend an offer. The goal of the mitigation report is to provide a truthful accounting to the judge or jury of how did this defendant come to commit the crime. It is not meant to justify the crime, rather to provide a comprehensive explanation of how the individual came to be where they are, and to point out how their limited choices and past personal experiences contributed to the situation.

The most effective use of a mitigation specialist is to include them right from the beginning of the case as part of the defense team. A comprehensive mitigation report takes extensive research and investigation. Time is needed to identify, request, collect and review documentation of the defendant’s early life, including medical, educational, mental health, judicial and incarceration records. Investigations include interviews of family members and other key contacts.

If you have been accused of a crime, please contact us today at 713.224.3967 or visit 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.

Mar 13, 2014

Mother who drove van with 3 kids into Florida Surf charged with attempte...

Erin Burnett of CNN's "Up Front" program interviews criminal defense attorney George Parnham and psychotherapist Robi Ludwig about possibilities of the insanity defense as applied in the case of Ebony Wilkerson. Wilkerson has been arrested and charged with 3 counts of attempted murder after driving a minivan carrying her three young children into the ocean surf off Florida. Bystanders and officers helped rescue 32-year-old Ebony Wilkerson and her children, ages 3, 9 and 10, from their minivan as it was almost submerged on Daytona Beach. Hours before driving into the ocean, Wilkerson had talked about demons when she left her sister's house in Daytona Beach. Her sister called Daytona Beach police, who later stopped Wilkerson and noted that she "...was suffering from some form of mental illness, but she was lucid and did not provide any signs that she met Baker Act requirements". The Florida Mental Health Act, commonly known as the Baker Act, allows authorities to involuntarily take people into custody if they seem to be a threat to themselves.