What happens during a criminal case?

Criminal Case Process

Ever wondered what happens in a criminal case after someone gets arrested? We decided to explain to you the steps and the outcomes of a criminal case. If you have any questions please feel free to ask or just check out the following info-graph.

Criminal Case Process
How a criminal case is handled

What is 12.44a and 12.44b?

12.44a vs 12.44b

The Texas Criminal Penal Code is full of statutes and procedures to navigate the criminal justice system. Knowing these rules can greatly increase the support and help you can give your client. Today I will explain the difference between an important section of the law to know, 12.44a and 12.44b. These two sub sections of the law can help make a big difference in your criminal case.

Who does this apply to?

12.44a and 12.44b only apply to people who are being charged with a State Jail Felony. This is the least serious of all felony crimes and can be punishable by imprisonment of 180 days up to 2 years. The downfall about State Jail Felony crimes is that the time you serve must be day for day. Which means you don’t get any 2 for 1 or any deals. You have to spend your entire sentence in jail.

Because the defendant would  have to spend the entire time in jail, lawmakers decided to create 12.44a and 12.44b to help lawyers negotiate better deals. Both sides must agree however for these rules to take effect.

12.44a

The exact law reads as follows,

“Sec. 12.44. REDUCTION OF STATE JAIL FELONY PUNISHMENT TO MISDEMEANOR PUNISHMENT.

(a) A court may punish a defendant who is convicted of a state jail felony by imposing the confinement permissible as punishment for a Class A misdemeanor if, after considering the gravity and circumstances of the felony committed and the history, character, and rehabilitative needs of the defendant, the court finds that such punishment would best serve the ends of justice.”

What 12.44a means is that instead of giving you the punishment of a State Jail Felony (180 days-2 years), they will instead give you a punishment of a Class A misdemeanor which is maximum 1 year of jail. When you are given jail for a misdemeanor you CAN get 2 for 1 and even 3 for 1 on your jail time. Thus greatly reducing your sentence, however the conviction still remains as a felony. The punishment is the only part reduced to a misdemeanor.

12.44b

(b) At the request of the prosecuting attorney, the court may authorize the prosecuting attorney to prosecute a state jail felony as a Class A misdemeanor.

12.44b is better than the previous one because now they reduce the felony to a misdemeanor. Even on your record it will show as a misdemeanor not a felony. This is much harder to obtain but is much better for the client.

Contact Us

If you are charged with a State Jail Felony, please contact us so that we can help you with your case. An experienced criminal defense lawyer will help you get the best outcome for your case.

 

Termination of DACA

DACA Memo – September 4, 2017

Earlier this month, the President of the United States, Donald Trump, terminated an executive order known as the Dream Act. The Dream Act (aka DACA) was created by the Obama Administration back in June 15, 2012. DACA protected people from deportation who were brought here illegally as children. A person had to apply and if granted they would get a work permit and permission to remain within the United States. The policy reason was to protect children from deportation due to the actions of the parents bringing them illegally.

After many months of debate whether Trump would terminate or prolong DACA, the answer finally came on September 4, 2017. In an official memo released by Department of Homeland Security, the Attorney General and administration put an end to the 2012 Dreamers Act. The termination isn’t immediate but will be phased out over a 6 month period. This leaves approximately over 800,000 people at risk of deportation unless Congress is able to enact a law within 6 months. Many activists are urging Congress to pass a law to protect these people from deportation.

In the memo by DHS they also set out guidelines on how they will address applications moving forward.

  • Any DACA application submitted before September 4, 2017 will go under the usual review process and maybe approved
  • DACA applications submitted or received after September 4, 2017 will be rejected
  • Current DACA holders whose DACA status terminates between 9/4/2017 and 3/5/2018 will have a chance to renew their status as long as they apply by October 5, 2017.

As of now Congress has proposed some ideas such as the SUCCEED Act which can help protect the people who qualified as Dreamers. Congress has until 3/5/2018 to pass a law or else many people who have lived here most of their lives will be forced to go to a foreign country of birth.

If you have any questions please feel free to contact us and we will love to talk you through it.

Outcomes of a Criminal Case

Outcomes of a Criminal Case

A criminal case begins with a person being arrested and a charge filed against them by the State. Where your case can end depends on a lot of different factors which can lead to different outcomes. In Texas, there are various court outcomes that can have an impact on your record and your rights as an individual. It is important to know what options exist and if you are a good candidate for them. It’s important to speak to an experienced Criminal Defense lawyer in Houston who can explain these to you and help you understand.

Below are listed the outcomes that could occur during a criminal case.

 

Guilty

Being found guilty is the worst outcome that can occur during a criminal case. It means that the Judge found you guilty and has sentenced a term of confinement or fine. One can be found guilty either through trial or if the person pleads guilty before trial. If you are found guilty the Judge can sentence and fine you anywhere within the range of punishment for your crime. Please reference our Criminal Punishment Chart to understand the ranges of confinement/fine.

If you are found guilty, it will stay on your record and can be used against you in future court proceedings.

 

Probation

Probation also known as community supervision is an alternative to imprisonment. The Judge may place you on community supervision instead of ordering you imprisoned. While on probation you must report to the probation’s department and follow the conditions of probation. If you violate any of the conditions, the State may revoke (take away) your probation and imprison you. Being placed on probation is still a Guilty on your record, you just don’t do jail time.

 

Deferred Adjudication

Certain cases and situations sometimes avail themselves to Deferred Adjudication. When you get Deferred Adjudication, the Judge does not find you guilty and places you on community supervision instead. If you complete your community supervision without a problem then you will not have a conviction on your record. Instead it will show that you received Deferred Adjudication. One of the perks of Deferred Adjudication is that after a certain amount of time you can have it expunged (erased) from your record. This is a big advantage because employers and other people will not be able to see it.

Pre-Trial Diversion/Intervention

Some counties participate in Pre-Trial Diversion/Intervention (PTI)  but it is up to the discretion of the District Attorney. PTI is a program that the District Attorney offers to candidates who do not have a criminal history and are people of good character. PTI is very similar to probation except it is before the Judge finds you guilty. It is an agreement the defendant makes with the State to not participate in illegal activities and stay away from trouble. If the defendant completes PTI program without any infractions, the State will drop the charges against you. Therefore it will not go on your record and you will be clean.

Whether you are placed in the following programs is a case by case scenario and your attorney should help navigate. Your criminal and work history are being factors to be considered to see if you apply for the following programs. If you are interested Contact Us to discuss your options or click here for a video explaining Criminal Court Outcomes.

 

Immigration Law: Aggravated Felony

An “aggravated felony” conviction can be a lifetime bar to almost all forms of immigration relief. Under United States immigration laws, an aggravated felony is the highest form of criminal charge one can face and can make any non-citizen deportable, even one with legal status.

Even more troubling, a crime classified as a misdemeanor under state law could be considered an aggravated felony under immigration law. Today’s tip explains a certain type of aggravated felony and how to handle those situations to avoid immigration consequences.

Under the large umbrella of aggravated felonies, the Immigration Nationality Act sub-divides crimes into multiple categories. One category is termed “crimes of violence.” These usually include assaults and aggravated assaults. While states may define these crimes differently, immigration law establishes its own definition.

If the state definition of a given crime matches the immigration definition of an aggravated felony, then that charge is treated as an aggravated felony for immigration purposes. Unfortunately, this means that a person can be convicted of a misdemeanor in state court, yet that charge will be viewed as an aggravated felony in the eyes of immigration.

I hope I haven’t lost your attention just yet.

Admittedly, the world of aggravated felonies under immigration law is a highly complex area of law because it differs from state to state. One way to prevent being convicted of an aggravated felony of a crime of violence is to avoid 365 days or more in prison.

What this means is, if you are charged with assault here in Texas and are sentenced to 365 days in jail, it is automatically considered an aggravated felony of a crime of violence under immigration laws. While it may sound arbitrary, if you are being convicted of a crime of violence, the one-year marker is the determining factor of whether immigration law considers the charge an aggravated felony.

So, let’s consider a hypothetical situation. Diego has a green card thus is in the USA legally. Green card holders have the best immigration status achievable aside from being a citizen. Green card holders can only get deported if they commit aggravated felonies or other certain specific crimes established by law.

Diego gets arrested in Texas for assault. He got in a fight at a bar, and now Texas is bringing criminal charges against him. Assault under Texas law can be punishable up to 1 year in jail. Let’s assume Diego is found guilty and sentenced to 365 days in jail. After Diego completes his time, Immigration Customs Enforcement will pick him up and place him in deportation proceedings because he has an aggravated felony that stems from 365 days in jail.

Now, let’s assume Diego is in the same situation, except he hired a lawyer who knows about immigration law. The lawyer should work for an outcome that does not involve 365 days of prison. For example, the lawyer could negotiate a deal for 364 days and avoid causing an aggravated felony of a crime of violence under immigration law, and Diego would not need to worry about deportation proceedings.

This is a critical factor to be mindful of when dealing with crimes of violence in a state court. Knowing this little fact can help prevent a permanent bar to immigration relief.

If you have any questions regarding aggravated felonies or the cross-over between criminal and immigration laws, please feel free to contact me at (832) 819-3723.

Criminal Bars to DACA

Donald Trump has promised important changes to immigration policy within his first 100 days in office, and the last few days have certainly borne that out.  As an immigration attorney, I have been anxiously awaiting his policy decisions about Deferred Action for Childhood Arrivals (DACA), also known as “the Dream Act”.

DACA is a program that benefits children who entered this country illegally at a young age. If you are accepted into the DACA program, the government essentially overlooks your illegal entry into this country and you can remain. The policy reason for this act was to prevent children who had entered at a young age, through no fault or act of their own, from being removed to a country they never knew.

The prerequisites are that the child be in school or have graduated, and been physically present in the United States before June 2007. Once the application is approved the child has DACA status. Once you have DACA your only responsibility is to renew it. However, you can lose your DACA status if you are convicted of certain criminal charges.

I want to cover the criminal side of the DACA program and how to best maneuver the situation for criminal defense attorneys. First, if an applicant has plead guilty to a state or federal felony, they will become ineligible for DACA renewal. This includes BOTH convictions and deferred adjudication.

Therefore, reduction to a misdemeanor could be the difference between your client’s ability to stay in the US and being subject to deportation. In fact, many other forms of immigration approval are balanced on felony convictions, as well, and will likely cause problems for the non-citizen client. To classify as a felony under Immigration law, the crime must be punishable by one year or more in prison.

Therefore misdemeanors, which carry a maximum of one year jail time in Texas, cannot constitute a felony for immigration purposes. Example, if you are convicted of a crime which is punishable for more than a year, it doesn’t matter if you get deferred or probation. It will make you ineligible for DACA.

Immigration also has its own definition for “Aggravated Felony”, which is more complicated but doesn’t apply to DACA standards.

If an individual pleads guilty to a “significant misdemeanor” they will also become ineligible for DACA. To classify as a significant misdemeanor the individual must have been convicted of a state misdemeanor and sentenced to more than 90 days of confinement OR be convicted of one of these enumerated charges:

A lawyer should see if the charge can be changed so it doesn’t fit within the meaning of “significant misdemeanor.” For example, if a DACA applicant were charged with Driving Under the Influence, a conviction would render him ineligible for approval or renewal. However, a conviction for a lesser offense, such as Reckless Driving, would not affect DACA acceptance.

An applicant is also rendered ineligible for DACA by pleading guilty to three non-significant misdemeanors. Essentially, it’s a three strikes you’re out rule. If you are convicted of any three misdemeanors not arising out of the same situation, you will be ineligible for DACA.

It doesn’t matter if you got them 5 years apart from each other. Three strikes and you are out. Interestingly, the law specifies that traffic offenses and other minor offenses, in some places categorized as citations rather than misdemeanors, don’t count toward the three misdemeanors. If you can, explore reduction to a traffic offense.

When an applicant’s DACA application is under review the United States Customs Immigration Service (USCIS) has complete power over the application. An agent looks over the application and they have the discretion to approve or deny it. Despite never being convicted of a crime, if the agent finds that you are a “threat to national security or public safety,” they can deny an application outright.

I am concerned that this may be where the Trump administration exercises its discretion, and denies good DACA applicants out of misguided and discriminatory intent. In my experience, under the Obama administration, the Dream Act was meant to benefit more than to punish.

I have had a few clients who lost DACA status due to a criminal conviction, but I have also seen the happiness a family gets when they open their acceptance letters.

The connection between immigration and criminal law is an important factor when dealing with the government. On one side, you have the United States who wants to make sure they aren’t allowing bad people into our country to do harm. On the other side, you have good immigrants who just got caught in a bad situation.

It is for this reason that having a lawyer who knows both areas of the law will greatly affect the outcome. With Trump mentioning he will sign more Executive Orders soon, I am curious to see the implications it will have on the DACA program.

If you are considering DACA and have had previous arrests, please call us for a free consultation with a Houston immigration lawyer at (832) 819-3723.

Deferred Adjudication and Immigration Consequences

Sharing an office with a veteran Immigration attorney definitely gives me exposure to people who are facing immigration troubles because of criminal charges. We have a nice system where I handle the criminal portion and then he covers the immigration.

Because our clients are not citizens, their criminal cases require different approaches to hopefully avoid immigration consequences. I understand that most criminal defense attorneys don’t practice immigration but there are still simple basics, which attorneys and people should know regarding “Crimmigration”.

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

For example, an undocumented person charged with a crime in state court could be eligible for a deferred adjudication with dismissal after 6 months. Yet, this would still be a conviction under the eyes of Immigration. Deferred adjudication is a form of probation where if you stick to the conditions of your probation after a set period of time, the court will dismiss your case.

That’s a great situation for the majority of people because the case is dismissed. However, under INA a deferred adjudication can still be a conviction if the record “admits sufficient facts to warrant a finding of guilt.” This means that if the judge says “Person X, we find that you committed theft at Wal-Mart but instead of finding you guilty we will place you on deferred adjudication,” that is enough to be deemed convicted under Immigration Law.

So what does that leave us with? Honestly, an uphill battle but one that we can still be strategic about. Obviously, one should always go for the dismissal or the not guilty; however, we live in a real world and sometimes those results aren’t always available. At that point sometimes a well formulated plea agreement can really save your client from harsh immigration consequences. Maybe some pre-trial programs where you don’t admit to any facts could be a good alternative.

For example, I had a great case of a girl who was in the USA on a Dream Act Visa. She was the valedictorian of her class, tried to be cool and consumed LSD at school. Let’s just say she regretted it really bad approximately 2 hours into the trip when school nurses were around her trying to calm her down. A local county brought charges against her for possession of a controlled substance.

My client admitted to me taking LSD but claimed she didn’t know it would be that intense. The prosecutor laughed at the facts and was willing to offer her deferred adjudication if she completed drug tests and other similar conditions.

But REMEMBER: deferred adjudication is still a conviction under INA so that would ruin her immigration status. So instead, the prosecutor and I agreed to some pre-trial conditions and if she satisfied them they would dismiss the case. Luckily my client successfully completed all the conditions, the prosecutor dismissed the case, and my client was eligible to reapply for her immigration status.

My job as an Immigration and Criminal Defense attorney compels me to try to get the best outcome for my clients.

Knowing the rules of Immigration helps me to arrange deals with prosecutors that will have the least immigration consequence on my clients. I hope that by understanding that a deferred adjudication can still be a conviction, it may prompt some lawyers and clients to find alternative ways of handling a case.


If you have any questions regarding Deferred Adjudication and the consequences it may have on your immigration status, contact our Houston law firm today.