The Definition of Insanity in the State of Texas is Outdated.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

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.

 

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.

Hiring a Criminal Defense Attorney

If you are facing criminal charges, you are encountering the risk of consequences that may change your life. Any kind of arrest on criminal charges can become a very serious matter if not handled quickly and correctly. To build the best defense against any charges, an accused should make finding a criminal defense attorney a top priority.

Many individuals facing criminal charges delay finding a qualified attorney until there is no other option. People who are arrested and accused are naturally upset and want to explain their side of the incident in question to law enforcement; this can end up inadvertently hurting a case rather than helping it. There are undoubtedly many important things happening at once when charges are made, but the first thing that should be done is to find legal counsel. Early attorney representation allows clients to first explain everything in confidence to their own attorney, who can then take over any communication with the prosecutor and the court: most criminal defense attorneys would stress that the outcome of the case may very well depend on early attorney representation.

In many cases attorneys can negotiate a dismissal before charges are actually filed. Any negotiating prior to authorization of charges, plea bargaining, or other discussion about dropping or lessening charges is more likely to happen in the early stages of a case rather than after charges have been finalized. An experienced criminal defense attorney will know if they can negotiate with the prosecutor and will know how to proceed from that point.
It is essential for clients to completely trust the lawyer that is chosen, follow whatever instructions have been given, and do nothing more. Some parts of the legal process happen quickly while other parts don’t seem to be happening quickly enough, which may be a serious stress factor for individuals facing serious legal repercussions. Confidential questions and concerns can and should be made only to the defendant’s attorney so they can handle the case and achieve the best possible outcome.

Whether or not the charges against you have any merit, the justice system does not allow for any mistakes on behalf of the defense. Paper work is extensive, pleadings and court trials are extremely complex and any simple mistake by the individual can lead to dire consequences.
Unless the accused has legal counsel for their defense they are left completely on their own to navigate through this complicated process brought on by a criminal charge. 

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.

Use of Mental Health Evidence When the Insanity Defense is not Relied Upon

The state of Texas does not recognize diminished capacity as an affirmative defense in cases not based on an actual Insanity Defense. Despite this, there is a line of cases that suggest that mental illness can be used to defeat the proof of the allegation of the prosecution in the particular offense. The Judge has discretion to allow this evidence, and Code Crim. Proc. art. 38.36(a) provides that  "In all prosecutions for murder, the state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense."

For more information on mental health and Insanity Defense visit www.insanitydefenseattorney.com. If you have been accused of a crime, please contact us today at (713) 224 - 3967 for a free consultation.

Texas Burglary of a Habitation Part 3: Texas Criminal Defense Lawyer

In this final presentation of a three part series of videos, criminal defense attorney George Parnham discusses criminal trespass laws as well as the implications of burglary or criminal trespass charges in a situation such as divorce, in which the defendant maintains a community property interest.

Although similar, burglary and criminal trespass are two separate crimes in Texas. Under Texas Penal Code § 30.05, the definition of criminal trespass is more complex than simply being on someone else’s property. To begin with, the law defines property as including "...residential land, agricultural land, a recreational vehicle park, a building, or an aircraft or other vehicle".
This means that criminal trespass can encompass all sorts of public and privately owned property intended for different types of use. People can be convicted of criminal trespass when they unlawfully cross residential property, commercial property, agricultural property, forest land, and even government property. It is also unlawful to trespass in an area with an oil refinery, chemical manufacturing facility, water treatment plant or an electrical power generating facility.

Unlike the charges for burglary, criminal trespass charges do not require any intent of theft or felony. Also, although you can be charged of burglary simply by having any part of your body on the property (i.e., holding a flashlight through a window or door in order to survey the contents of a room), criminal trespass requires that your entire body be on the property.


In order for someone to be convicted of criminal trespass, they must have either been given notice that entry to a property is forbidden, or they must have been told to leave the property and then either failed to leave or returned to the property (still without consent). Notice can be given in several ways;  it can be an oral or written communication by the owner or someone acting for the owner, it can be a fence or other enclosure obviously designed to exclude intruders or to contain livestock, or it can be in the form of sign posted in a location reasonably likely to be noticed.
On forested or agricultural property,  notice can be in the form of readily visible purple paint marks of proper size and placement on trees or posts spaced no more than 100 feet apart on forest land or 1,000 feet apart on non-forest land. Notice can also simply be the visible presence of any crop grown for human consumption that is under cultivation, in the process of being harvested, or marketable if harvested at the time of entry.


Criminal trespass is normally a Class B misdemeanor with a fine up to $2,000 and a jail term up to 180 days. If the trespass is on agricultural land, and the trespasser is apprehended within 100 feet of the boundary of the land, the offense is a Class C misdemeanor with a fine up to $500. Agricultural land is broadly defined and includes land suitable for growing plants (for food, feed, fiber, seed, etc.) or trees or for keeping farm or ranch animals. However, under certain conditions including if one has a deadly weapon on or about one’s person the offense is a Class A misdemeanor with a fine up to $4,000 and a jail term up to one year.

If you have been accused of a crime call us today at 713-224-3967 or visit parnhamandassociates.com 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.

Texas Burglary of a Habitation Part 2:Houston Criminal Defense Attorney

In this second presentation in a three part series of videos, criminal attorney George Parnham discusses issues of effective consent as applied to an individual's access to private property, the types of properties involved, and the importance of "intent" as applied to charges of burglary of a building or habitation. He also discusses the differences between "burglary of a building" and "burglary of a habitation" as defined by Texas state laws.  
In Texas, burglary is defined as "unlawfully entering or remaining in any structure... with the intent to commit a felony, theft, or assault inside".  
Home invasion refers specifically to a burglary that occurs within a habitation- any structure or vehicle that is adapted for the overnight accommodation of one or more people (Tx. Stat. & Code Ann. § 30.02.)

The two elements of the definition -unlawful entry and intent to commit a felony, theft, or assault inside- must be either proved beyond a reasonable doubt or admitted to by the defendant to be convicted of burglary. Without sufficient proof of both elements, the prosecutor may secure a conviction for another crime such as trespass, but not burglary.
The intended crime (such as theft) need not actually be completed; proof of entry and of the intent to commit one of these crimes inside are the only requirements for a conviction.


Defense against a burglary charge usually concentrates on situations in which all the necessary elements of proof haven’t been met. If the plaintiff consented to the defendant’s acts it may serve as a defense; i.e., if they consented to the person’s entry or allowed them to take an item of property, it may negate an element of burglary. However, the consent needs to be voluntary and the plaintiff needs to  be of legally capable of consenting.

Likewise,  if the defendant didn’t actually intend to commit theft or felonious crime at the time that they entered the building, structure, or dwelling place then burglary charges wouldn't apply. An example would be someone who entered a building without permission, but simply to take photographs or out of curiosity rather than to remove property or commit any other felony.

Burglary charges also usually don’t apply to open spaces or places that are not actually structures. The point is that someone’s building is being entered for the purpose of committing a crime inside. However, some jurisdictions consider yards and gardens to be part of the dwelling place.

Even with the lack of intent to commit a theft or felony, the defendant may still be charged with Criminal Trespass. Section § 30.05 of the Texas Penal Code states that it is illegal to enter or remain on a property, including land, buildings or an aircraft of any kind without consent if the person had notice that their entry was forbidden, or if they received notice that they should depart and then failed to comply.



Burglary of a building that is not a habitation is a state jail felony, and occurs when a defendant unlawfully enters or remains in a public or private building (but not a habitation) with the intent to commit a felony, theft, or assault.
Burglary of a habitation, or home invasion, is a second degree felony, and occurs when a defendant unlawfully enters or remains in a habitation with the intent to commit a felony theft or an assault therein. The crime increases to a first degree felony if the defendant entered the habitation with the intent to commit a felony other than felony theft therein.

If you have been accused of a crime call us today at 713-224-3967 or visit ParnhamandAssociates.com 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.

Texas Burglary of a Habitation: Part 1- Texas Criminal Attorney

In this first of a three part series of videos, criminal defense attorney George Parnham discusses the charges of burglary to a habitation as provided under Texas state laws.
Texas State Law provides for several different types of burglary charges. Generally speaking, burglary is distinguished from other theft crimes because of the element of entering into a building with the intent to criminally steal another person’s property, or to commit a felony. You can be charged with burglary if any part of your body has entered the building; for example, simply holding a flashlight in the door or window of a building that is not open to the public with the intention of stealing something from that building.

Although similar, burglary and criminal trespass are two separate crimes in Texas. To get a conviction for burglary a prosecutor must prove beyond a reasonable doubt that without consent of the owner, the defendant entered a private habitation with the intent to commit a felony, theft, or assault. Entering a vehicle or breaking into a coin-operated machine with the intent to commit a felony or theft is also considered burglary. For burglary, even if the felony, theft, or assault did not take place, a defendant may be found guilty, even if all he/she had was the intent to commit a crime.

Texas Penal Code states that you have committed the offense of burglary if you, without consent:

•  Enter a habitation or building not open to the public with the intent to commit a felony 
• Conceal yourself in that habitation/building and commit/attempt to commit a felony 

Burglary of an uninhabited building is considered a state felony. A conviction may include a jail term ranging from 180 days to two years, as well as fines up to $10,000.
Burglary of a building that is inhabited (such as a house or an apartment) without the permission of the owner and with the intent or actual commission of theft or felony, that is considered as burglary of habitation.
Burglary of a habitation is considered as a second-degree felony in the state of Texas, and may be sentenced with prison term from two to twenty years. If there is intent to commit another felony or an actual commission of it during the burglary, the offense will be elevated to a first-degree felony, which is punishable by a life sentence or up to 99 years in prison. In addition, there is a potential fine up to $10,000 dollars.

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 click here for our convenient online submission form.
We will work tirelessly to ensure the best possible outcome for your case.

Understanding the Grand Jury System, Part 3: Perceived Flaws in the Texas Grand Jury System

In this last of a three part series on grand juries in the USA, Houston, Texas criminal attorney George Parnham explains a little understood part of our criminal justice system.

The United States is virtually the only common law jurisdiction in the world that continues to use the grand jury to screen criminal indictments, and the system is used on both federal and state levels. While all states in the U.S. currently have provisions for grand juries, only half of the states actually employ them and twenty-two require their use, to varying extents. Rather than using a grand jury, a more modern trend is to hold preliminary hearings before a trial court judge to determine probable cause that a defendant committed a serious felony.
 In Texas (and Harris County particularly), the Texas grand jury system has come under scrutiny with allegations of witness intimidation and cronyism.

Grand juries are held in secrecy for good reasons: witnesses may hesitate to appear and deliver honest testimony if they are on public record, and defendants who are accused but not indicted could suffer consequences simply for being exposed to the process. But questions of transparency go beyond the secret nature of the hearings; it is difficult to know how often people with potential conflicts of interest are appointed to grand juries, whether they are racially and economically diverse or if witnesses are intimidated because much of the proceedings and documents are confidential.
Texas law allows judges in its 254 counties to decide for themselves whether to have grand jurors chosen at random or selected by a "key man": a method frequently used by judges in Austin, Dallas and Houston.
Potential for abuse or manipulation increases as these judges do not select grand juries at random, instead  appointing a commissioner who often turns to retired friends or connections in the legal and law enforcement community to find jurors sympathetic to their own attitude.

This “key man” system, used only in Texas and California, has faced several legal challenges with allegations that it can foster favoritism and taint grand jury makeup.
Jurors are commonly drawn from particular segments of the community that may have strong ties with law enforcement officers, and may be more likely to enforce whatever the judge, prosecutor or officers say without proper scrutiny of facts. Texas defendants have challenged the racial composition of grand juries numerous times, and although the U.S. Supreme Court has upheld the constitutionality of the key man system they have warned that it is “highly subjective” and “susceptible of abuse.”

Understanding the Grand Jury System, Part 2: Inequities in the Grand Jury System

In this three part series on grand juries in the USA, Houston, Texas criminal attorney George Parnham explains a little understood part of our criminal justice system.

Grand Juries have recently made headline news in the USA after they have decline to indict police officers in cases which involved what many people consider unreasonable use of force.

On July 17, 2014, Eric Garner died in Staten Island, New York, after a police officer put him in a chokehold. Medical examiners concluded that Garner was killed by "compression of neck (choke hold), compression of chest and prone positioning during physical restraint by police", however the NYPD policy prohibits the use of chokeholds and law enforcement personnel contend that it was merely a "headlock".
On December 3, 2014 a grand jury decided not to indict officer Daniel Pantaleo, the NYPD officer accused of choking Garner to death. The event stirred numerous public protests and rallies with charges of police brutality. The Justice Department has announced an independent federal investigation.

On August 9, 2014 in the St. Louis suburb of Ferguson, Missouri, Michael Brown, an 18-year-old black man was fatally shot by Darren Wilson, 28, a white Ferguson police officer. The disputed circumstances of the shooting and the resultant protests and civil unrest received considerable attention in the U.S. and abroad, and sparked a vigorous debate about law enforcement's relationship with African-Americans, and police use of force doctrine in Missouri and nationwide.
The Prosecuting Attorney decided to bring the case in front of a grand jury to determine whether there was probable cause to indict Wilson for his actions. On November 24, it was announced that the jury had decided not to indict Wilson. Legal analysts raised concerns over the prosecutor's unorthodox approach, asserting that this process could have influenced the grand jury to decide not to indict, and highlighted significant differences between a typical grand jury proceeding in Missouri and Wilson's case.

Grand Juries almost always indict in criminal cases, with the common exception being cases which involve police officers. A recent Houston Chronicle investigation found that “police have been nearly immune from criminal charges in shootings” in Houston and other large cities in recent years. In Harris County, Texas, for example, grand juries haven’t indicted a Houston police officer since 2004; in Dallas, grand juries reviewed 81 shootings between 2008 and 2012 and returned just one indictment.


There are at least three possible explanations as to why grand juries are less likely to indict police officers; the first is juror bias, in that jurors may tend to trust police officers even when the evidence says otherwise. Second is prosecutorial bias; because prosecutors depend on the police while working on criminal cases, they may be inclined to present a less compelling case against officers.

A third possible explanation may simply be that prosecutors normally only bring a case to a grand jury if they think they can get an indictment. But in high-profile cases such as a police shooting, public pressure can force them to bring charges even if the case itself is weak.

The decisions by grand juries not to indict officers in these and other cases have spurred various proposals to reform grand juries. One measure being considered by Congress would require that in an alleged crime  involving a police officer, the governor would appoint a special prosecutor to conduct a public probable cause hearing that is open to the public. If passed, law enforcement would forfeit federal funding unless they adopt the new rules.
In Texas senators recently introduced bills to eliminate what is referred to as the "key man" or "pick-a-pal" system, requiring the courts to randomly summon jurors instead of allowing a district judge to pick three to five people to serve as grand jury commissioners, who are then charged with finding 30 prospective grand jurors and selecting 12 who qualify. Critics have long argued that grand jurors in Texas are often pulled from those with strong ties to the criminal justice system.
 Some of the current proposals may deserve consideration but they would have greater long-term impact and meaning if they improve transparency within the criminal justice system more generally, and are not limited to cases just involving police. 

Age Innapropriate: 17-year-olds are "teens", not adults deserving of prison time.

Age inappropriate: Texas must recognize 17-year-olds are teens, not adults deserving of prison time.

"In Texas, you have to be 21 to apply for a concealed handgun, 18 to play the lottery and 18 to get a body piercing without a parent's consent. Yet a nearly century-old Texas law treats a 17-year-old who shoplifts an iPhone as an adult criminal. He is held with adults in jail, tried in adult criminal court, sent to adult prison if incarcerated and issued a permanent adult criminal record. In 41 other states, such a youth would enter the juvenile justice system instead.

It's not just a question of whether 17-year-olds know the difference between right and wrong. Many teens that age have achieved the basic intellectual abilities of adults. With parental consent, 17-year-olds can enlist in the U.S. military. But according to behavioral research and brain science, the process of psychosocial maturation — in other words, development of the internal governor that compels us against engaging in risky behavior — is not complete until their adult years.

 Not only brain science but a slew of depressing statistics supports the common-sense notion that 17-year-olds merit different treatment than adults. Juveniles are five times more likely to be assaulted in adult rather than in juvenile facilities, often in the first 48 hours of incarceration, according to U.S. District Judge Reginald Walton, Chairman of the National Prison Rape Elimination Commission.
Youths under the age of 18 are 36 times more likely to commit suicide in adult institutions, says University of Texas professor Michele Deitch. Similarly, after their release, youths incarcerated in adult facilities are more likely to struggle to get a job or housing because of their adult criminal record.

The adult system does not offer the education, rehabilitative services or the strict probation rules that the juvenile system uses to hold younger teenagers accountable, reduce the likelihood that they will commit future crimes and help them turn their lives around. Interventions that incorporate substance-abuse treatment into community-based services and that emphasize school continuity may be particularly well suited to reduce recidivism among 17-year-olds, according to some experts. Most of the crimes committed by 17-year-olds are nonviolent misdemeanors.

Everyone knows that prison is often a school for crime, where hardened criminals mold young people by their example. It is counterproductive and cruel to impose the lifelong collateral consequences of the adult criminal system on 17-year-olds who might respond to rehabilitation. To remedy this inequity, the Legislature should expand the age of juvenile court jurisdiction to include 17-year-olds, except where special circumstances indicate adult-level supervision is required. Problems with implementation should not excuse inaction. Lawmakers can provide counties lacking juvenile facilities with the flexibility and funding to make alternative arrangements. Seventeen-year-olds are not children. But they aren't adults, either, and it's time Texas stops treating them as such. We shouldn't throw away the key on a life yet to be lived."

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The above editorial was published in the Houston Chronicle on Jan. 8, 2015.
Houston criminal attorney George Parnham has issued a response, stating that:

“I certainly do concur with the editorial opinion about raising the age of majority to at least 18.  Medical science has proven that the frontal lobe of the brain, that portion that is responsible for ‘connecting the dots’ relative to risk assessment and decision making, is not fully developed at the age of 17.  Ironically, the mid-twenties is more appropriate.  A 17 year old who takes a car belonging to someone else does that act in all probability for the thrill of “joy riding.”  Should that same car be taken by a 30 year old, the ultimate intent is to steal the car for one’s own use.  I applaud the recent changes brought by the Supreme Court in dealing with juveniles and the death penalty, as well as life without parole.  I would only hope that the State Legislature would follow the same impetus.”

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.

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References:
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, Slate.com
Evangelical letter of Support, Panetti clemency (.pdf)
Dr. Ron Paul clemency letter (.pdf)

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.

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.

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.

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.

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 parnhamandmcwilliams.com to schedule a free consultation.