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Shoplifting and Employee Theft–Criminal Justice Minute

Theft crimes are on the rise in Texas as economic conditions change here. The most common theft offense is the misdemeanor theft committed in the context of shoplifting and employee theft. Shoplifting is the act of taking store merchandise past all points of sale out of a store without paying for the merchandise, with the intent to deprive the owner of that property and without the owner’s effective consent. Employee theft can occur in many different ways, the most typical being false merchandise returns and cash register skimming.

Shoplifting and employee theft can either be a misdemeanor or felony offense depending upon the value of the merchandise stolen. Theft is a Class C offense punishable by a maximum fine of $500 if the value of the property stolen is under $100; a Class B offense punishable by jail confinement up to six months, a fine of up to $2000, or both fine and confinement, if the value of the property stolen is over $100 and under $500; and a Class A offense punishable by jail confinement up to one year, a fine of up to $4000, or both fine and confinement, if the value of the property stolen is over $500 and under $1500. Theft of property valued over $1500 is a felony.

Shoplifting cases are typically made when store security personnel detect a shopper who selects merchandise, secretes the merchandise in clothing or another shopping bag or cart, passes all points of sale without paying for the merchandise and then attempts to leave the store. The person may be stopped and detained by store security personnel and held for police. Retail stores have become very sophisticated in their shoplifting detection methods – they use closed circuit cameras, undercover “shoppers” who are in fact security personnel, and sometimes other shoppers who tip store security on other shoppers attempting to steal.

Employee theft cases are typically made when cash register receipts and merchandise tracking are compared by retail fraud investigators and the difference attributed to a particular employee.

Shoplifting and employee theft cost retailers over $45 billion in 2015, and there are indications that this number is rising. Retailers have become very sophisticated in their methods of detection and merchandise / sales evaluation. Larger retailers have very strict prosecution policies and are able to prove theft cases more easily in recent times.

When a person is arrested for shoplifting or employee theft, they will most likely be released by the Harris County Sheriff on personal recognizance on their promise to appear in court on the next business day. At that time their bail may be evaluated and additional conditions may be ordered such as no contact with the store, curfew and other conditions reasonably connected to the offense charged. If the defendant is indigent as determined by a court hearing evaluating their finances and ability to hire counsel, an attorney will be appointed to represent them. If the defendant is not indigent, they will be given two to three weeks to hire counsel.

These cases are often disposed by pre-trial diversion or deferred adjudication probation without a finding of guilt, and sometimes by a straight probation or even jail confinement with a finding of guilt. A theft conviction with a finding of guilt can have a devastating affect on a person’s ability to obtain employment, housing, and college admissions.

Young people who are home for the summer during school breaks are often dared by their friends to steal something in a store. Or, if they are given the responsibility of working behind a cash register, they may be tempted to give themselves or their friends false merchandise return refunds or other fraudulent cash skims from the drawer. When they are caught they and their families are shocked when they are arrested, handcuffed, transported in a police car, and later brought to an adult courtroom with jurisdiction over 17 year olds. I urge parents to have a serious conversation with their teenagers home for the summer about the terrible risks and life-changing consequences of shoplifting and employee theft.

Marijuana–Criminal Justice Minute

Possession of marijuana in Texas is illegal despite several other states having recently legalized it for recreational use. Even if marijuana was purchased and possessed legally in the ten or so states that have legalized recreational marijuana use and possession, it cannot legally be brought across state lines into Texas, and can’t be legally used here.

In Texas, possession of up to 2 ounces of marijuana is a Class B misdemeanor is punishable by up to six months confinement, a $2000 fine, or both confinement and fine. Possession of 2 to 4 ounces of marijuana is a Class A misdemeanor is punishable by up to one year confinement, a $4000 fine, or both confinement and fine. Possession of marijuana over 4 ounces is a felony. In addition to statutory penalties, a person finally convicted of marijuana possession will have their driving privileges administratively suspended for up to one year with additional administrative penalties and fees required for reinstatement.

The typical marijuana case is made by a police officer who legally stops a motor vehicle for a traffic infraction, and while speaking with the driver the officer detects the smell of either burnt or raw marijuana, which has a distinctive pungent aroma that police officers are trained to detect. Once the officer detects this aroma the officer can legally order the driver and all occupants to exit the vehicle, which may then be legally searched for contraband marijuana. If marijuana is found, depending upon the location of the marijuana in the vehicle, the driver and any passenger may be arrested for its possession. The state will be required to prove actual care, custody, control or management of the marijuana and a rational connection between the marijuana and the defendant.

Marijuana cases are also made in our schools when teachers or school security personnel have a reasonable suspicion that a student is in possession of marijuana. In that case, the student’s locker, brief case and backpack may be legally searched without a warrant.

The DA’s Office has recently established a marijuana arrest and charging policy for misdemeanor possession. After arrest and establishing positive identification of the suspect, and if no other charges for other offenses are filed or pending, the police agency will notify the arrestee that if they agree in writing to voluntarily present themselves to the DA’s office to take a drug awareness class and perform community service, no formal charges will be filed and there will be no arrest record. If the suspect fails to report to the DA’s office as agreed, formal charges are then filed and an arrest warrant will be issued.

If marijuana possession charges are filed, most defendants will likely be released by the Harris County Sheriff on personal recognizance on their promise to appear in court the next business day. Some defendants may be required to post bail depending upon whether there are other more serious charges filed or pending.

Once a defendant appears in court on their marijuana case, their bail will be evaluated by a judge and conditions of release may be ordered, including periodic or random drug testing, drug counseling, and curfews. If a defendant can’t afford an attorney one will be appointed by the court. If the defendant is not indigent, they’ll be given 2-3 weeks to hire an attorney.

Marijuana cases are typically resolved by plea bargain and there are many options available, from the least restrictive pre-trial diversion or intervention programs or deferred adjudication programs without a finding of guilt, to more restrictive options like straight probation with many conditions of supervision, and the most restrictive being jail confinement and fines.

In a very few cases, the charges are dismissed because of insufficient evidence or stop and search issues; and a few cases are tried to a jury or court to a verdict. Once a case has been tried to a verdict, deferred adjudication and diversionary options are no longer available.

Possession of synthetic marijuana, known on the street as “spice,” “K2,” and “Kush,” is illegal in Texas and is as punishable as marijuana is depending upon the weight possessed.

If you, a family member or friend is charged with any of these offenses, please contact an attorney as soon as possible for current and thorough legal advice and counsel. Once these cases have been adjudicated or there is a plea agreement, our courts are trained to work with defendants to develop a program that best serves them so that they can make better choices should they encounter these substances again.

DWI–Criminal Justice Minute

DWI is a crime that anyone who drives, rides, bicycles and walks on Texas roads should be concerned about. Texas law provides that a first DWI conviction is punishable by up to 6 months confinement, $2000 fine, court costs and driver’s license suspension for up to one year. A second DWI conviction is punishable by up to 1 year confinement, $4000 fine, court costs and driver’s license suspension for up to two years. A third DWI conviction is a felony punishable by 2-10 years imprisonment, a $10,000 fine and driver’s license suspension for up to 3 years. The first and second DWI’s are adjudicated in our misdemeanor county criminal courts-at-law.

Many of our misdemeanor DWI cases involve probation or community supervision for one to two years, with no early termination. Most of these cases end successfully and defendants no longer re-offend. A good thing for public safety!

But for a DWI probationer or former probationer who re-offends or continues to violate conditions of probation, we have a special intensive program for them called SOBER court. Saving Ourselves by Education and Recovery is a state-sponsored high intensity program designed to closely monitor the probationer’s recovery and rehabilitation, and to reward compliance and penalize non-compliance. It is a four phase program in which probationers work to progress from phase to phase, with each succeeding phase requiring less supervision and providing more liberties for the probationer. In each of the first 2 phases probationers meet with the judge twice a month for a “check-in” where their program is evaluated, compliance rated, and rewards and sanctions are given. In Phase 3 the probationer meets only once a monthly with the judge. In Phase 4, the probationer meets only with the probation officer as needed. SOBER Court clients must provide breath and urine specimens whenever asked, and many must use alcohol detection devices during unsupervised hours. SOBER Court clients may earn the right to drive again in later phases of the program.

We have 5 SOBER courts – one court for all women, one court for all men, one court for all Spanish speakers, one court for probationers who can only meet with the judge after work, and one court for youthful probationers. Each SOBER Court is run consistently from court to court, and with National DWI Court guidelines that have been approved by the American Bar Association.

SOBER court teams consist of a judge, a Court Supervision Officer from the probation department who works only with that court’s 30-35 probationers, a defense attorney to confidentially consult with them as needed, a prosecutor to represent the State’s interests, a therapeutic consultant with the probation department, and two bailiffs assigned to that court. The bailiffs are authorized in writing by the probationers and the court to make unannounced home visits and welfare checks as needed. Harris County’s SOBER Courts are a national model consulted by jurisdictions seeking to begin DWI Courts like ours.

I am honored to be part of this amazing program because we accomplish two big things: we facilitate our clients’ return to sobriety, which helps them both personally and professionally; and we help improve public safety one driver at a time.

Domestic Violence–Criminal Justice Minute

The National Coalition Against Domestic Violence (NCADV) defines domestic violence as the willful intimidation, physical assault, battery, sexual assault, and/or other abusive behavior as part of a systematic pattern of power and control perpetrated by one intimate partner against another. It includes physical violence, sexual violence, threats and emotional abuse. The frequency and severity of domestic violence can vary dramatically. NCADV reports that:

– In 2013, 76,704 victims reported abuse by current or former Texas spouses. Many others went unreported.
– In 2014, Texas domestic violence hotlines answered 185,373 calls
– In 2012, 114 Texan women were killed by intimate partners, over 10% of the national total
– 75% of Texas 16-24 year olds have either experienced dating violence or know another young person who has
– In 2013, 31% of victims/survivors of domestic violence requesting shelter were turned away due to lack of resources.

In Texas, domestic violence can be prosecuted in both misdemeanor and felony courts. In misdemeanor court domestic violence is statistically one of the top four offenses on our docket. Domestic violence occurs in assault, terroristic threat, harassment, criminal trespass, criminal mischief, and weapons offenses.

Harris County Criminal Courts-at-Law resolve these cases both in trials and in pre-trial interventions, community supervision and jail sentences. The convicting court will designate the case, if factually warranted, with a factual “affirmative finding of family violence” that has collateral consequences for defendants. One consequence is that if the defendant re-offends, they can be charged with a third-degree felony regardless of whether the first case was a misdemeanor and the second offense would have otherwise been a misdemeanor charge. If the finding involves an “intimate partner” there are federal consequences including the prohibition of possession and transfer of firearms and firearm ammunition.

Complainants / victims of domestic violence in Texas have many pre-trial protections, including the setting of conditions of bond prohibiting all or specified contact between the defendant and complainant, as well as emergency orders of protection. Our criminal and family courts are authorized under the Texas Code of Criminal Procedure and Family Code to designate complainants and their families as “protected individuals,” and to order defendants to stay away from residences and places of employment or schools. Complainants can request these orders at the time of their police complaint, and if not requested, the State can make these requests as they deem appropriate. Defendants violating these orders can be re-arrested and held without bail, charged with the new offense as well as a separate offense called Violation of Protective Orders. Sentences on all these subsequent offenses can run consecutively by court order.

Complainants sometimes decide later to seek dismissal of the charge against their partners, but the state is not required to dismiss, and it may proceed to trial without their cooperation. US Supreme Court and Texas case law upholds domestic violence convictions without live testimony of complainants, sometimes based upon admissible hearsay, 911 recordings and testimony of third parties.

When defendants are convicted by plea or trial, they are often placed on community supervision with terms and conditions requiring batterer intervention classes, anger management classes, restitution, counseling for children who witnessed the assault, no contact orders, and other rehabilitative modalities.

I take these cases very seriously to ensure that defendants receive due process of law, and that complainants receive all rights granted to them in our codes and statutes.

Texting and Driving–Criminal Justice Minute

Driving a car in Texas is a privilege, not a right. Public policy enforced by The Department of Public Safety requires Texas drivers to be properly licensed, financially responsible, and obedient to the Transportation Code. When we receive a driver’s license, we agree to comply with those requirements, and we reasonably expect others to do so. After all, our lives, and even the future of our families, are at stake each time we get into a car either as a driver or a passenger. When a driver does not comply, they can end up in court.

Let’s talk about three scenarios that aren’t the typical “traffic ticket driving offense:” Racing, Reckless Driving and Texting

Picture Driver 1 approaching an intersection with a red light. Just before they get there Driver 2 whips in front of her for no apparent reason, making her brake abruptly. She gets mad, and when the lights turns green, Driver 1 swings out in the next lane over, speeds up ahead and cuts back in front of Driver 2 to recapture her lane position. Driver 2 now gets mad and speeds up to recapture his previous position ahead of Driver 1. This scenario is an serious traffic offense called Racing on a Highway, it happens a lot, and sadly it is often a precursor to Road Rage. It is a Class B misdemeanor punishable by up to 6 months in jail and a fine. A second offense is a Class A misdemeanor punishable by up to 1 year in jail and a fine, and if someone is intoxicated or causes an accident while doing this, its a felony. A police officer observing this road contest, or any drag race between two or more cars, or if the officer receives credible information from a witness about it, he can arrest all the drivers.

Now, imagine your newly licensed 18 year old high school student driving the family car to run an errand for you. He picks up his neighborhood buddy along the way and his buddy suggests that your son “peel out, burn some rubber, spin a doughnut” in your new car in the neighborhood intersection or even in a grocery store parking lot, or to drive at an unsafe speed, making screeching, too-fast turns on corners. This dangerous scenario is a serious traffic offense called Reckless Driving, and its a Class B misdemeanor punishable by up to 30 days in jail and fine. Again, a police officer observing this kind of unsafe driving or receiving credible information from a witness about it can arrest the driver.

Finally, imagine you are driving to an important appointment and are delayed by the ubiquitous road work we encounter in Houston. You are now very late for that appointment, and when the road work clears and you are under way driving again, you pull out your cell phone and start texting your meeting partner to tell her you’re running late. On September 1, 2017, this will be a Class C traffic violation punishable by a fine of $25 to $99 for a first offense, up to $200 for a second offense, or if an accident involving serious bodily injury or death occurred during the transmission or receipt of a text, it could be a felony offense. There may be a defense to prosecution if the car was stationary at the time, or if the driver was using a hands-free device, reporting illegal activity or summoning emergency help, reading a message that the driver reasonably believed involved an emergency, activating music functions or using a GPS function.

Why tempt fate in your car in any of these scenarios? Accidents can and do happen in the blink of an eye, so please follow these laws, drive friendly, and arrive alive!

What Parents Need to Know When Their Child Has Been Arrested – Criminal Justice Minute

You’re home waiting for your high school teenager to get home after a night out with friends at a school event. Your phone rings and your child tearfully tells you that she’s at a police sub-station under arrest for a misdemeanor offense. What do you do? What will happen to them?

First, you must know that your 17-19 year old is considered an adult under Texas law and will be treated like an adult. Then, remain calm and do not judge them – you don’t know the evidence yet. Re-assure them that you will be working on their release. Tell them to be courteous to the police and to tell the police with all good manners that they want to speak with a lawyer before answering their questions. The police must stop questioning at this point.

Call a reputable bail bondsman and arrange for bail if you can afford to do so. You may need to travel to a bonding office, so prepare for a long night. The bondsman will track your child’s location in the system and arrange for their release. Your teenager may be released at the police station if they were arrested with a small amount of marijuana under the DA’s new “catch and release” marijuana policy. In other cases, in the near future, under new bail reforms your they may be released at the police station on personal recognizance if charged with one of several low-risk offenses. If the offense is more serious, they will be taken to the Harris County Jail to appear before a hearing officer who may release them on personal recognizance, or set an appropriate bail amount. They will then call you to pick them up.

Bring your teenager back home and resist the temptation to lecture. They are afraid, tired and bewildered by this process. Get them cleaned up, fed and make sure they get some rest. You can talk in the morning when nerves are less frayed and everyone is hopefully more rested.

Contact an attorney as soon as possible and try to retain them with your teenager present. You may be asked to leave the room while they talk to ensure attorney-client confidentiality that enables the lawyer to more effectively represent them. If you cannot afford an attorney, one will likely be appointed on the first court setting if your teenager can establish indigency (your family’s income is within 125% of the federal poverty guidelines).

A court date is printed on the bail bond or release forms given to your teenager and you should calendar this right away and make sure your they get to court on time and properly dressed. Then and in the several settings that may follow, your teenager’s lawyer will help her evaluate the evidence in the case to decide whether to proceed to trial, seek a dismissal or plea bargain.

The court and staff will be courteous and provide a fair place to resolve the case, with several programs available to resolve cases without trial. These range from dismissal with a completed class, therapy or restitution payment; pre-trial intervention or diversion (not a conviction, and record wiped clean (expunction) is possible when successfully completed), deferred adjudication (not a conviction, community supervision, and non-disclosure order possible, but no expunction when successfully completed; regular probation (conviction with community supervision, and usually no jail); and last, a jail sentence, fine or both. There may be other collateral consequences to the case your attorney can explain.

Throughout this process I encourage you to be supportive of your teenager, refrain from being judgmental, and provide a home atmosphere conducive to a successful defense or disposition of the case. Please be assured that our courts rely on evidence-based probation practices tailored to suit your child’s individual needs. We will work together towards a just result for all involved.

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