Theft Crimes In Texas

Introduction

Being suspected of, or charged with, a theft crime in Texas can be an extremely serious situation. If it is not given the utmost attention, you could get convicted, lose your freedom and be ordered to pay big fines. Not only that, but you could also lose your job and your reputation. Although every case is different, this guide attempts to describe, in as straightforward a manner as possible, the crimes of theft in Texas, including the penalties, what the arrest and trial process looks like, and the significant benefits of hiring an experienced Texas theft criminal defense lawyer to fight for your rights. The right law firm has the knowledge and resources to make sure the criminal justice system treats you fairly, and the power to fight on your behalf to help you avoid getting convicted.

If you are charged with a theft crime, many people will automatically assume that you are guilty. Most people will believe that the police would have never arrested you if you were innocent. Obviously, this cannot be farther from the truth. The police are not infallible, and innocent people are suspected of crimes and arrested all the time. Even for the death penalty, a recent study has indicated that for every eight people put to death in the United States since 1970, one person has been found innocent after their execution. The bottom line is that police and prosecutors can make mistakes in arresting, charging, and convicting people of theft crimes. Fulgham Law Firm has years of experience effectively representing people accused of theft in Texas, so we understand what it takes to convince the judge and jury to view your case in a favorable light and make a decision based upon the facts of the case.

This guide will give you a solid understanding of the theft laws in Texas, including what should be done to defend you and protect your rights. You will find that one of the smartest things that you can do if charged with a crime is to contact an experienced criminal defense attorney for help.

Fort Worth Texas Theft Lawyer

If you have been charged with a theft offense in Texas, then you already know that you are in a rough situation. A felony conviction can result in you being placed in prison and ordered to pay fines. The punishment can be extreme based on the circumstances. One thing is for certain – you will want an experienced criminal defense lawyer in your corner to help you fight the charges. The seasoned criminal defense lawyers at Fulgham Law Firm provide you with this theft criminal defense guide so that you are informed about theft laws, your rights as a defendant, and how to undermine the prosecution’s case against you to avert a conviction. Reach out to Fulgham Law Firm today by calling (817) 826-9905 or by contacting us online for a free consultation.

General Rules To Follow

There are some general rules to follow if you have been arrested and charged with any crime in Texas, not only theft crimes. If you follow these rules, you will have a better chance for a positive outcome in your case. It could be the difference between going free or losing your liberty and spending a significant amount of time in jail.

Don’t Talk To The Police

One of the major issues that criminal defense lawyers face is when their client has already spoken to the police before the attorney was hired. Never talk to the police without first hiring an experienced criminal defense lawyer to be by your side. In almost all instances, your attorney will not want you to speak to the police at all. The 5th Amendment to the United States Constitution gives people accused of a crime the right to remain silent when being questioned by the police. The police are not there to help you or to be your friend. Their job is to investigate crimes, gather evidence, and arrest people. If you are asked to come to the police station to just have a “friendly discussion” with the police about a potential crime, most likely they already believe you are a suspect and are guilty. In other words, they won’t be looking for evidence to exonerate you – they will be looking for evidence to convict you.

Don’t make the mistake of believing that if you refuse to talk to the police, you will appear guilty. No matter what you do or don’t do, it will not affect the police’s opinion of your guilt or innocence. You have a legal right in the United States to not incriminate yourself. There have been many cases in Texas over the years where innocent people have been accused of crimes by the police. If you talk to the police, even if you are innocent, they can twist your words and get you to agree to things that you should not agree to. Many innocent people have had their lives turned upside down because they spoke to the police and tried to be helpful in an investigation. If the police ask you questions, the only thing you should say to them is the following: “I will speak to you only when my attorney is present and advises me to answer your questions.”

Another mistake that people make is thinking they can “outsmart” the police and convince the police of their innocence. Don’t make this mistake. Police officers are trained interrogators. They know how to ask questions that can ensnare an unsuspecting person into incriminating themselves. Typically, every interview is recorded, so what you say might be used against you later.

Seek Legal Representation

Many people believe that you have to hire a lawyer once you are arrested. But this is not the case. The best-case scenario is to have an experienced criminal defense attorney already on retainer and ready to help at a moment’s notice. Hiring an attorney before you are arrested is a way to get in front of the investigation. They can potentially convince the police not to arrest you. Your lawyer can be an intermediary between you and them without you having to testify or even speak to the police. If your attorney aggressively investigates the issue, they might be able to uncover evidence that would convince the police that they have the wrong person. Your attorney can apply the law of Texas to your situation and convince the police that they are wasting their time pursuing you.

Don’t Talk To Anyone About The Crime

If you are a potential suspect in a theft crime, do not discuss it with anyone but a lawyer, if possible. Talking with people other than your lawyer is a big problem because those people can be potentially compelled to testify against you regarding your discussions. Your lawyer is restricted from talking to the police about what you tell them due to the attorney-client privilege. But your best friend, cousin, or neighbor does not have that protection.

Theft According To Texas Law

According to Texas law, theft basically means that you take someone’s property with the intent to keep it from them. The law specifically states that you are a thief if you are unlawfully appropriating (using) property with the intent to deprive the owner of that property. That is a simple definition, but it covers many scenarios.

Under Texas law, unlawful appropriation basically means that you are transferring or trying to transfer title (or some type of ownership interest) in property to yourself or someone else. The Texas Penal Code describes three ways in which you unlawfully appropriate something.

• You do it without the owner’s consent
• The property is stolen, and you use it knowing that someone else stole it
• An undercover officer tells you that something is stolen, and you take the property because of it

You might be wondering what consent means at this point. Texas law considers consent to mean that someone who has legal authorization over the property consents to your actions. Here’s what consent does not mean:

• You induce someone by coercion or deception
• You get consent from someone who doesn’t have legal authorization to make decisions on the owner’s behalf
• You get consent from someone who you know has a mental defect or disease, or who you know is intoxicated
• You get consent from someone who has diminished capacity or cannot make rational and informed decisions regarding their property

The bottom line is that “effective consent” is when the owner of the property has agreed to the transfer of the property and was not tricked, swindled out of the property, or unable to understand what they are doing.

Possible Fine, Jail Time For Theft Conviction

Like many states, Texas categorizes its theft crimes by the value of the property that is stolen. Section 31.03(e) of the Texas Penal Code outlines the penalties for theft. The penalties are more severe as the value of the stolen property increases.

For offenses that occurred on or after September 1, 2015, the theft offense is punished according to the following scheme:

Theft Under $100

Class C misdemeanor punishable by a fine of up to $500.

Theft Between $100 And $749

Class B misdemeanor punishable by up to 180 days in jail and a $2,000 fine. If the value of the stolen property is under $100, it is still a Class B misdemeanor if you have been previously convicted of theft or if the property that is stolen is an identification card (e.g. driver’s license).

Theft Between $750 And $2,499

Class A misdemeanor punishable by up to one year in jail and a $4,000 fine.

Theft Between $2,500 And $29,999

State jail felony. Also punishable as a state jail felony:

• theft of a firearm
• a third theft conviction (even if the value of the stolen property on the third case is less than $2,500)
• any theft under $20,000 if the theft is of a metal including aluminum, bronze, copper, and brass
• an official election ballot
• theft from a grave
• certain thefts of livestock

The punishment for a state jail felony can include a fine of up to $10,000, imprisonment ranging from 180 days to two years, or both. Moreover, a state jail felony could bump up to a third-degree felony if you used or flashed a deadly weapon during the alleged offense or had a previous felony conviction.

Theft Between $30,000 And $149,999

Third-degree felony. Certain thefts of livestock or controlled substances can be charged as third-degree felonies too. The punishment for a third-degree felony is a fine of up to $10,000, imprisonment ranging from two to ten years, or both.

Theft Between $150,000 And $299,999

Second-degree felony. This includes theft of ATM machines. The punishment for a second-degree felony is a fine of up to $10,000, imprisonment ranging from two to 20 years, or both.

Theft Of $300,000 Or More

First-degree felony. The punishment for a first-degree felony is a fine of up to $10,000, imprisonment ranging from five to 99 years, or both.

Enhanced Theft Charges

The charges against you can be “enhanced” or increased under certain circumstances. If you do any of the following, then the charge can be bumped up to the next higher category of offense.

• You are a public servant or public official (e.g. police officer) who uses your status as a public servant or official to accomplish the theft
• You are a government contractor who steals from the government
• You are a nonprofit organization who steals from an elderly person
• You are a Medicare provider who steals from the government
• You commit a theft through tampering with a fire exit or alarm (e.g. you deactivate the alarm), or you use a device to prevent your offense from being detected

Special Types Of Theft Under Texas Law

There are certain types of theft that fall outside the basic definition of criminal theft contained in Texas laws. These particular types of theft are described under the law in detail, including what you specifically must do to commit the offense, and what your punishment may be if convicted.

Theft Of Trade Secrets

Under Texas law, you commit the theft of trade secrets when, without the owner of the trade secret’s consent, you knowingly:

• steal the owner’s trade secret;
• make a copy of something representing the owner’s trade secret; or
• disclose or communicate the owner’s trade secret

Theft of trade secrets is a third-degree felony punishable by a fine of up to $10,000 and a prison sentence between 2 years and 10 years.

Example: A woman is a high-level executive at a health and beauty company.  Without authorization, she copies the formula for an anti-aging cream and then sells it to the company’s largest competitor. Under Texas law, the woman could be charged with theft of trade secrets.

Theft Of Services

The crime of theft of services is different from breach of contract. Specifically, if you take someone’s money based on an agreement that you will perform work for them, and you don’t do the work, you might be sued by that person for breach of contract rather than be criminally charged with the theft of services. A key difference between breach of contract and theft of services is that with theft of services, you intend to steal the person’s money. So, in order for the state to prosecute you for theft of services, they must prove that you had the criminal intent to steal someone’s money rather than perform the work.

Courts are somewhat unclear on what constitutes theft of services when it comes to contracts. In one case, a court held that if a contract is partially performed, then there is no intent by the defendant to commit theft through deception. However, in another case, a court found that criminal intent could be found in a pattern or scheme (e.g. the defendant accepts money from four different people, begins construction on each person’s home, and later ceases work on all homes, leaving each person with unfinished work). 

A conviction of theft of services carries the following penalties:

• Under $100                                                                         Class C Misdemeanor
• At least $100 but less than $750                                Class B Misdemeanor
• At least $750 but less than $2,500                            Class A Misdemeanor
• At least $2,500 but less than $30,000                      State Jail Felony
• At least $30,000 but less than $150,000                 3rd Degree Felony
• At least $150,000 but less than $300,000               2nd Degree Felony
• At least $300,000 or more                                           1st Degree Felony

Example 1: You are paid in full for the work your company is scheduled to do on a renovation project. You do work for one month but then desert the project. Since you partially performed the work, you are sued for breach of contract but not criminally charged with theft of services.

Example 2: The same facts as example one. Except, in the recent past there is evidence of you starting work and then stopping prematurely for multiple clients. Because of this pattern of events, you purportedly have the intent to steal. By taking this new payment but not finishing the agreed upon service, you are sued for breach of contract and are charged with theft of services.

Unauthorized Use Of A Vehicle

Under Texas law, you commit vehicular theft if you intentionally or knowingly operate someone’s boat, airplane, or motor-propelled vehicle without their consent. As a state jail felony, the penalty for non-authorized use of a vehicle is a fine of up to $10,000, imprisonment from 180 days to 2 years, or both.

Example: You break into a stranger’s car and hotwire the engine. You drive away while the owner of the car is shopping. Your intention was never to “steal” the car, only to go joyriding for a while. This is an unauthorized use of a vehicle as you intentionally took the owner’s car without their permission, regardless of your intention to return the vehicle.

Retail Theft

Retail theft or “shoplifting” is where you steal from a retail business (e.g. stealing a watch from Walmart). The offense falls under Texas’ general theft laws, which means that penalties and sentencing depend on the value of the stolen products. You can also receive enhanced penalties for preventing or attempting to prevent a retail theft detector from going off, or using something that deactivates a retail theft detector.

Further, Texas law criminalizes organized retail theft.  This occurs when you intentionally promote, facilitate, or conduct an activity that allows you to obtain, possess, store, sell, or dispose of merchandise that you know to be stolen. Penalties for organized retail theft depend on the value of the products stolen.  However, the prosecutor can seek increased penalties if they can prove that you organized, supervised, or financed others who engaged in the organized retail theft.

Penalties for conviction of retail theft and organized retail theft are the following:

• Under $100                                                                         Class C Misdemeanor
• At least $100 but less than $750                                Class B Misdemeanor
• At least $750 but less than $2,500                            Class A Misdemeanor
• At least $2,500 but less than $30,000                      State Jail Felony
• At least $30,000 but less than $150,000                 3rd Degree Felony
• At least $150,000 but less than $300,000               2nd Degree Felony
• At least $300,000 or more                                           1st Degree Felony

Example 1: A woman takes a $2,500 blouse to the dressing room and puts it under her clothes.  She walks out of the store without paying.  The woman has committed a state jail felony.

Example 2: A man instructs a group of people to go into ten different stores and steal as many clothes as possible without being detected. Here, the man facilitated and organized the retail theft by the group. Prosecutors charge the man with organized retail theft with an enhanced penalty because the man was the organizer of the enterprise.

Theft Of TV Services

Under Texas law, without the authorization of the multichannel video or information services provider, you aren’t allowed to maintain a connection with the service. You also cannot tamper with any devices attached to the system. This offense can be charged as a Class C misdemeanor. But if you committed the offense in the past, then the penalty is a Class A misdemeanor.

Example: A man taps the cable lines running into his neighbor’s house and gets all the premium sports channels as a result. The man has tampered with the information services.

Cargo Theft

Cargo basically means goods or freight that is carried on an aircraft, motor vehicle, or a ship. You commit cargo theft if you knowingly or intentionally facilitate or promote an activity where you possess, store, conceal, sell or dispose of stolen cargo. You also commit cargo theft if you are employed to transport cargo, and you intentionally or knowingly fail to deliver the cargo or cause it to be broken. Penalties for cargo theft depend on the value of the cargo taken:

• At least $1,500 but less than $10,000                                      State Jail Felony
• At least $10,000, but less than $100,000                3rd Degree Felony
• At least $100,000, but less than $200,000             2nd Degree Felony
• At least $200,000 or more                                           1st Degree Felony

Example: A man is entrusted with the delivery of grocery goods from the warehouse to a grocery store. However, he drives away with the cargo. He later sells the cargo to various individuals. The man has committed cargo theft.  

Theft Of Petroleum

Petroleum theft is where, without the petroleum owner’s consent, you appropriate (use) their petroleum with the intent to deprive the owner of it. This can be done by removing, possessing, receiving, delivering, selling, purchasing, concealing, or transporting the petroleum. You could also commit this offense by tapping, drilling, or causing a hole to be drilled into a pipe, pipeline, or tank that is used for moving or storing petroleum.  Penalties for this offense depend on the total value of the petroleum product stolen:

• Less than $10,000                                                                       State Jail Felony
• At least $10,000, but less than $100,000                          3rd Degree Felony
• At least $100,000, but less than $300,000                       2nd Degree Felony
• At least 300,000 or more                                                        1st Degree Felony

Example: A man removes the petroleum tanks from a warehouse with the intent to deprive the owner of it.  He then transports it and sells it to various individuals. He has committed petroleum theft.

Mail Theft

You can be charged for mail theft in Texas if you intentionally take mail from someone else’s mailbox or house without their consent with the intent to deprive them of their mail. Penalties for mail theft depend on the amount of mail appropriated. The more people whose mail you steal, the higher the penalty:

• Less than 10 people                                                       Class A Misdemeanor
• At least 10 people, but less than 30                         State Jail Felony
• 30 people or more                                                          3rd Degree Felony

Penalties are also more serious if the prosecution proves that the mail you took contained identifying information used for defrauding someone, or if you knew or should have known that the mail belonged to either a disabled person or an elderly person.

Example: A woman takes all of her neighbors’ mail from the mailboxes on the ground floor of her apartment complex. The woman intentionally took her neighbors’ mail without their consent from their mailboxes. She has committed mail theft. 

Civil Theft

In Texas, if you are accused of theft, then this means that you not only face criminal charges and penalties, but you can be held liable in a civil lawsuit for theft. Criminal penalties are pursued against you by the state prosecutor in criminal court, while a civil lawsuit is filed against you by the alleged victim in civil court. The alleged theft victim can potentially recover the following against you in a civil lawsuit:

• Actual damages caused by the theft (e.g. the retail value of the item if not returned in sellable condition)
• A civil penalty of up to $1,000
• Legal fees and costs

When the accused person is a child, Texas law allows a lawsuit against the parent or legal guardian for the civil damages. But the law limits the parent’s liability to actual damages caused by the theft, with a cap of $5,000, and legal fees and costs.

Consolidation Of Theft Offenses

The following offenses fall under Texas’ theft statute:

• Theft
• Theft by false pretext
• Conversion by bailee
• Theft from the person
• Shoplifting
• Acquisition of property by threat
• Swindling
• Embezzlement
• Extortion
• Receiving or concealing stolen property

Theft Defenses

An experienced criminal defense lawyer can unleash several defenses in your case to combat a theft charge. Every case is different though, so what defense is used will depend upon the facts of your case. As you review these possible defenses to the crime of theft, it is important to remember that you are not required to prove anything a theft trial. The Burden of Proof always rests on the State of Texas to prove your case beyond a reasonable doubt. Failure to prove your case beyond a reasonable doubt will result in a Not Guilty verdict at trial.

The Taking Of Property Did Not Happen

One of the basic defenses to a theft charge is that the property in question wasn’t actually taken by someone. If the facts demonstrate that the property is still in the possession of its owner, then no one can be charged with theft.

Honest Misunderstanding

You could have had an honest misunderstanding regarding the proper ownership of the item. If you can demonstrate your mistaken belief as to who owned the property, then this could be a defense to the charge, as you wouldn’t have the intent to steal. You would have to show evidence of your intent, more so than just your word regarding your state of mind, though.

Rightful Owner Of The Property

A valid defense for theft is that you were the actual owner of the property. If there is evidence that you owned the property (e.g. a bill of sale or some type of contract), then at the very least there would be a question regarding your intent on stealing the property, as you cannot steal something which you own.

Intoxication

Intoxication as a defense to a crime is usually a tricky way to get out of trouble, as you cannot willfully get drunk or high and then blame your intoxication for your actions as a defense. However, if someone caused you to ingest alcohol, chemicals, or drugs, and this led you to be intoxicated and unaware of what you were doing, and you stole something at this point, then you arguably lacked the intent to steal.

Consent

You cannot be accused of stealing something you were given permission to take. For example, if a woman lets her boyfriend use her bicycle for the week, the boyfriend can never be accused of theft as long as that bicycle has been timely returned, as the boyfriend was given permission to use the bicycle.

Returning Stolen Property

Many people have the mistaken belief that if they return stolen property, then they will not be arrested and charged with theft. This isn’t true. Even after returning stolen property, you can still be charged and convicted. Still, doing so can definitely paint a more sympathetic picture to a prosecutor for purposes of a possible plea deal, and also may help with reducing the penalties in a case. This defense is similar to the defense or claim from you that the stolen item was just actually “borrowed” and not stolen. There could be facts in your case that would support this defense, especially if you were allowed to borrow the item in the past. It all relates back to proving if there was actual intent to steal the item.

Entrapment

You are entrapped when you are enticed by the police into committing a crime because of their coercive, forceful actions. This defense is also a difficult one to prove, but it is possible. A more obvious case of entrapment is when the police proactively approach you and get you to commit a theft, versus you approaching someone for that purpose – especially when that someone is an undercover cop who then causes you to commit the offense. So, if you were accused of stealing something, but you did so at the behest of law enforcement, you may have a defense for entrapment.

Collateral Consequences Of A Theft Conviction

If you are arrested and convicted of a theft offense, you will be punished with fines, restitution, possible jail time, community service, and parole. But there are consequences to a theft conviction that you may face outside of the criminal justice system. You may not believe these consequences are fair, but they exist, nonetheless. A conviction of a felony crime, for example, can have lifelong negative effects on you because it can remain on your record for a long time. Anyone who reviews that record for purposes of considering you for something (e.g. a job, a loan) might find that conviction to be a serious problem for your eligibility. Here’s more on what these collateral consequences entail.

Employment

A theft conviction could remain on your permanent record. Any new employer performing a background check will find your criminal theft conviction and can choose not to hire you because of it. Also, your current employer could choose to fire you if you have merely been arrested for a crime, let alone convicted. Since Texas is an “at-will” employment state, an employer can fire you for any reason or no reason, barring discrimination based on race, religion, sex, pregnancy status, sexual orientation, and national origin. Convicts are not protected against discrimination. So, you could be legally fired from your job for just being arrested for a theft crime, even if you were innocent of the crime. Many future employers also will not hire someone with a felony on their record, especially one that involves crimes of theft, fraud or moral turpitude.

Occupational Licenses

A theft conviction might affect your ability to obtain occupational licenses that are required in the state of Texas for certain professions. If the application process for the specific license requires a determination of your character, the governing body that issues the license can consider any criminal violations of moral turpitude, which includes any crimes of theft or fraud, as a disqualifier. Here are some examples of occupational licenses that might be affected by a theft conviction:

• Auctioneers
• Athletic trainers
• Behavior analysts
• Electricians
• Midwives
• Property tax consultants
• Educator licenses
• Professional licenses like an attorney or doctor

Immigration

There are many things that can affect your immigration status. Being a convicted felon does not help. With a theft or fraud conviction on your record, you could be denied citizenship based upon that conviction alone. Also, there is a substantial risk of you being deported depending upon the nature of the crime. Further, if you left the United States after committing a crime, then you may not be allowed to re-enter the country based upon that conviction.

Military Service

In the past, the conventional wisdom was that the military would take just about anyone who wanted to join. This is not the case in today’s military. Any criminal conviction, not just a conviction for theft or moral turpitude, can affect your ability to join the military. A felony conviction will definitely prevent you from joining. If you are already a member of the military and are charged with theft, then the court is obligated to notify the staff advocate general or the provost marshal of the military installation to which you are assigned. At that point, it is up to your commanding officer to determine how the military will respond to the charges or conviction.

Gun Ownership

With any felony conviction or guilty plea on your record, whether it relates to theft or not, federal law dictates that you will be restricted from owning a firearm or ammunition. This is a lifetime ban on owning a gun.

Right To Vote

You do not lose your right to vote if you are convicted of a misdemeanor in Texas. You can vote while awaiting trial for any charge, even if incarcerated, as long as you have not lost your right to vote due to a prior conviction. You lose your right to vote if you are convicted of a felony. You can’t vote while incarcerated, while on probation, or while on parole. Your right to vote is automatically restored once you complete your full sentence. If your sentence is completed, including parole or probation, you may register to vote and cast a ballot.

Timeline Of Criminal Theft Case

Most people are not familiar with the criminal court process and what happens after being arrested for a charge of theft. To clarify, the process usually begins with you getting arrested for some type of theft charge. You will be taken to the police station to be processed. This involves providing personal information as well as having your fingerprints and mugshot taken. After processing, you will be put in jail until you can be seen by a judge. This could take up to 48 hours. Once you have seen a judge and had your bond set, you are eligible to post a bail bond to be released from jail. To get released, you must agree to come back to court and answer to the charges against you.

In some cases, after the arrest, you are allowed to leave the station because you will be presented with a “notice to appear” in front of the judge at a specific time. Notices to appear are usually given to people accused of misdemeanor crimes that are less serious. If you do not show up on the specified date, then a warrant will be issued for your arrest and detention.

First Hearing

The first hearing will usually take place within the first 48 hours after an arrest. At this hearing, the judge will explain the charges to you and set a monetary bail amount. Bail is not a given, but with most theft cases, a certain amount is usually granted. Once bail is secured and paid, you can leave. Having an attorney represent you at this stage can help with the process and speed up your release.

Preliminary Hearing

The preliminary hearing comes next. At this hearing, the prosecution has to produce enough evidence to show that a crime has been committed and that you are likely guilty of that crime. If your criminal defense attorney is able to successfully argue that the prosecution does not have enough evidence to support their case, or the prosecution fails to prove that they have sufficient evidence against you, then your case can be (and should be) dismissed. However, usually this does not happen at the preliminary hearing. Also, this stage of the proceedings might be waived by you at the advice of your criminal defense attorney – especially when there appears to be no chance that the judge will dismiss your case given the evidence.

Pretrial Negotiations And Plea Bargaining

After the preliminary hearing, your case will go into an investigation stage where your attorney will begin to gather evidence to help exonerate you. Also, during this time, the prosecution is required to produce to your criminal defense attorney all of the evidence that the prosecution has gathered to date.

Critically, during this time, your attorney normally has conversations with the prosecution’s office regarding any plea agreements and deals that might be on the table. With the plea agreement, you agree to plead guilty or no contest in exchange for a less burdensome punishment. Your attorney will help you understand whether this is a good idea or not, and it is always your choice to take the deal or refuse – if a deal is being offered. In other words, neither the prosecution nor you are required to agree to any plea bargain. If no plea agreement is decided upon, then your case will go to trial.

Pretrial Motions

Pretrial motions involve oral arguments in front of the judge. Eventually, after legal briefs are filed and oral arguments are made on the motions, the judge will issue a written decision. The pretrial motions are filed usually for the following issues:

• Motion to dismiss charges due to lack of probable cause
• Motion to dismiss due to lack of evidence
• Motion to exclude witness testimony
• Motion to suppress evidence

After the pretrial motions have been decided, the prosecutor’s office and your defense attorney usually continue to discuss possible plea deals. There may be more of an incentive for one side or the other to agree to a plea deal based on what evidence is admissible.

Criminal Trial

Once all the preliminary motions have been resolved, your case will be scheduled for a jury trial. Even though the U.S. Constitution provides for the right to a jury trial of your peers, you have the option for either a jury trial or a bench trial. A bench trial is when the case is presented solely in front of a judge who decides your guilt or innocence and any applicable punishment. Your lawyer can provide you with much-needed guidance on whether to pursue a jury or bench trial.

For you to be found guilty in a jury trial in Texas, the jury must reach a unanimous decision (they all must agree). If you are found not guilty, you are acquitted and should be free to go. If you are found guilty, a sentencing hearing will be scheduled where a judge or jury will determine your punishment based on the Texas Penal Code. Upon the conclusion of the trial, your defense lawyer can file several appeals in an attempt to have your conviction and penalties overturned or reduced, or for you to otherwise be granted a retrial.

Frequently Asked Questions

Do I Need A Lawyer For Petty Theft Or Shoplifting Charges?

Yes, it is recommended that even for smaller, less serious theft charges, you should have a lawyer representing you. It is still important to have a professional by your side explaining the process to you and protecting your rights. A misdemeanor conviction can still have a very detrimental effect on you, given the associated fines, community service, parole, and possible jail time. Also, having a conviction on your permanent record can affect your ability to get a job among other things.

How Will Prior Theft Convictions Affect Me If I’m Charged Again?

If you have prior theft convictions and are again charged with a theft offense, your new charge will be enhanced (upgraded to a more serious charge). A more serious charge means more serious punishment.

Can I Get My Theft Charge Dismissed?

Yes, it is always a possibility to have your charges of theft dismissed due to the prosecution not having enough evidence against you. But the best course of action is to hire a criminal defense attorney as soon as you are even suspected of the crime so that your attorney can potentially convince the police to not even arrest you. In some instances, your attorney can present evidence to the police that will convince them of your innocence.

Can My Parents Or Friends Refuse To Talk To The Police About What I Tell Them?

No. In Texas, there is no communication privilege between parents and children or between you and your friends. So, anything that you tell these people about the alleged crime or about your potential alibi is fair game for the police to inquire about. Critically, if your parents or friends lie to the police, they can be charged with perjury. There is only a spousal privilege, where a spouse can refuse to testify against the defendant spouse in a criminal proceeding.

What Is The Difference Between A Misdemeanor Theft Charge And A Felony Theft Charge?

Misdemeanors and felonies are two classifications of crimes in Texas law and mostly every other state in the country. Misdemeanor charges, while still significant, are less serious than felonies. In Texas, misdemeanors are separated into 3 categories – Class C misdemeanor, Class B misdemeanor, and Class A misdemeanor. Class A misdemeanors carry the heaviest consequences.  Felonies consist of state jail felonies, third-degree felonies, second-degree felonies, first-degree felonies, and capital felonies. Capital felonies are the most serious offenses under Texas law.

How Can I Prove My Innocence?

You don’t. In criminal law, you are deemed “innocent until proven guilty.”  It is not you who has to prove your innocence before a court of law. It is the prosecution who must prove you guilty before that court of law.  The prosecution must prove you guilty of the theft crime in question beyond a reasonable doubt.  That is the highest standard in our legal system – a very high bar to meet. A criminal defense attorney will fight on your side, emphasizing the holes in the prosecution’s argument so that they cannot meet their burden.

What Is The Difference Between Theft And Robbery?

Theft is when someone unlawfully appropriates the property of another with the intent to deprive the owner of that property. More specifically, under Texas law, a person commits a robbery if, during the commission of a theft and with an intent to obtain or maintain control of the property, they “intentionally, knowingly, or recklessly cause bodily injury to another” or they “intentionally or knowingly threaten or place another in fear of imminent bodily injury or death.” So, if you use force (or the threat of force) during the commission of a theft, then you commit a robbery. Robbery is penalized as a second-degree felony.

Fort Worth Texas Theft Defense Attorney

Getting charged with a theft offense in Texas can lead to horrible outcomes including long-term prison sentences and huge fines. With this theft charge being prosecuted against you, a lot is at stake. For this reason, you’ll want to promptly hire an experienced lawyer to defend you and protect your rights. The criminal defense lawyers at Fulgham Law Firm are well-informed, skilled and experienced at representing those in Texas who are accused of theft or other crimes. We are here for you and will work diligently to help you get the best result possible. Contact Fulgham Law Firm today by calling (817) 826-9905 or by contacting us online.

The post Theft Crimes In Texas appeared first on Fulgham Law Firm.

TEXAS DRUG CRIME GUIDE

It is no secret that the State of Texas has a history of treating drug crimes harshly. If you find yourself in the unfortunate position of being charged with a drug crime in Texas, then it is important that you understand that you are involved in a serious matter that carries with it potentially severe legal consequences. From large fines to extended jail time, being charged and convicted of a drug crime in Texas can have life-altering effects. As a result, you will want to do everything in your power to make sure that you are treated fairly and that you prevent this matter from ruining your reputation, lifestyle, and career. To help you in this fight, the lawyers at The Fulgham Law Firm have provided a detailed overview of drug crimes in Texas along with some helpful tips and possible defenses.

IMPORTANT DRUG TERMS THAT YOU SHOULD KNOW

Because the drug laws in Texas use specific terms that you may not be familiar with, the following is a breakdown of commonly used drug crime words, and their definitions, according to Texas law.

Administer – to directly apply a controlled substance by injection, inhalation, ingestion, or other means to the body. This is typically done by medical personnel or under the supervision of a physician.

Controlled substance – any substance, including a drug, an additive, or a mixture that is listed in Schedules I through V. Examples of a Schedule I drug are heroin and ecstasy.

Counterfeit substance – an actual controlled substance or drug that is made to look like it was legally manufactured through its packaging or labeling. This is different from a simulated controlled substance, which is a fake controlled substance that has been made to look like a real one.

Deliver – to transfer to another person a controlled substance, counterfeit substance, or drug paraphernalia. The term includes offering to sell a controlled substance, counterfeit substance, or drug paraphernalia.

Drug – a substance that may or may not have an accepted medical use that is intended to affect the body or brain.

Drug paraphernalia – any equipment, product, or material that is intended to help use, manufacture, or sell the drugs.

Manufacturer – someone that makes or produces a controlled substance or drug.

Pharmacist – a person licensed by the Texas State Board of Pharmacy to practice pharmacy.

Producing – manufacturing, planting, cultivating, growing, or harvesting a controlled substance.

Narcotic drug – a drug or controlled substance that is produced by extraction from vegetables. Narcotic drugs include: opium and opiates, cocaine, and any other substance with a similar chemical structure.

Trafficking – the manufacture, delivery, or possession of certain controlled substances or dugs with the intention of delivering or selling them. Trafficking can also include simply possessing a large amount of a controlled substance.

COMMON TEXAS DRUG OFFENSES

Texas has a very strict drug crime tradition. How serious a drug crime becomes is determined by what type of illegal drug is involved, the specific amount, and the type of activity taking place (e.g. possession, distribution, possession with intent to manufacture or distribute, drug paraphernalia, drug-based DWI, and drug conspiracy). Almost all drug crimes in Texas are felonies and not misdemeanors. Typically, crimes that are felonies carry much more severe consequences than misdemeanors. To demonstrate how serious drug crimes are in Texas, merely being in possession of four ounces of marijuana can get you a felony drug charge.

POSSESSION

Texas law defines “possession” of a controlled substance as the actual care, custody, control or management of the drug. The general nature of this definition allows for charges against you even when you don’t actually have the drugs on you, but when the drugs might instead be stored in a place which you control or manage. Also, even if the drugs aren’t technically yours, but have been shared amongst you and a group of other people, you can still be charged with possession. As long as you used the drugs, then that may be enough for a possession charge.

In order to prove that you are guilty of a possession charge, a prosecutor must prove that you knowingly or intentionally possessed the controlled substance. If you did not know that the drugs were on you, or if someone else put the drugs in the location in which they were seized by the police, then you may have a valid defense to a possession charge.

DISTRIBUTION AND DELIVERY

Texas law considers “distribution” and “delivery” as practically the same thing. Particularly, distributing means delivering a controlled substance, where delivering means transferring a drug to someone else, including selling the drug.

There can be actual or constructive delivery. Actual delivery is where you physically hand over a drug to someone else. Even offering to sell someone a drug without handing it over can constitute actual delivery. Constructive delivery is where there is no physical handoff between you and the other person, but you are still in control of the drug and facilitate its delivery. Also, you can be charged with constructive delivery if you manufacture the drug while leaving the actual delivery to someone else.

POSSESSION WITH INTENT TO MANUFACTURE OR DISTRIBUTE

One of the most common drug charges is possession with intent to manufacture or distribute. Under Texas law, manufacture means to produce, prepare, compound, convert, or process a controlled substance other than marijuana. The mere growing of marijuana is not considered manufacturing, but instead possession. However, creating synthetic marijuana can get you a manufacturing charge.

DRUG PARAPHERNALIA

Drug paraphernalia basically includes anything that helps in the growth, manufacture, creation, or use of illegal substances. Texas law provides a long list of possible things that are considered or could be considered drug paraphernalia. So, if you possess any of these types of things, or you cause these items to be manufactured or delivered, then you can be charged with drug paraphernalia.

Even chemicals that are themselves not illegal to possess, but are considered “precursor” chemicals, can be illegal depending upon the circumstances of possession and the intent. Texas law lists what chemicals it considers to be precursor chemicals. For example, certain over-the-counter cold medications are used to make methamphetamine.

DRUG-BASED DWI

When most people think of “driving while intoxicated,” they are referring to alcohol. But you can be arrested for drug-based DWI (drugged driving) as well, and the laws will penalize you the same as an alcohol-based DWI. The law applies to driving under the influence of prescribed drugs, over-the-counter drugs, or illegal substances. The penalties for a first time DWI offense can include: up to six months in prison, substantial fines, and a possible suspension of your driver’s license for one year.

DRUG CONSPIRACY

Texas law defines a conspiracy as an agreement between two or more people to commit a crime. In order to prove a conspiracy to manufacture or distribute drugs, the prosecutor has to prove the following:

• There was an agreement or plan to violate state or federal drug laws.
• You knew of this agreement and intended to participate in the plan.
• The conspiracy was “furthered along” by at least one act by you or your co-conspirators.

TEXAS DRUG SCHEDULES

In order to understand drug crimes in Texas and what penalties you may face, you must first understand that drugs (or controlled substances) are broken down into five separate categories, or schedules. Texas law uses the same schedules as federal law as outlined in the Controlled Substances Act. As you can see from the schedules below, the drugs are grouped together based on their dangerousness and potential for addiction.

If you have been charged with a drug crime in Texas, then the possible penalty you will face is determined by the type and quantity of the drug. What you need to know for purposes of being charged with a drug crime in Texas is that basically all of the drugs that can get you into trouble (e.g. street drugs) are typically controlled substances. The list below contains some of the more well-known controlled substances, but see the Texas Controlled Substances Act for a complete listing of the substances.

SCHEDULE I

Schedule I drugs are substances that have been deemed to have no medical use, and are known to be extremely addictive.

• Marijuana
• Heroin
• Ecstasy
• Mushrooms
• LSD
• Peyote

SCHEDULE II

Schedule II drugs may have some medical use but carry a high risk of addiction.

• Cocaine
• Ritalin
• Opium
• Methadone
• Morphine
• Pure Codeine
• Pure Hydrocodone
• Oxycontin
• Percocet
• Methamphetamine
• PCP
• Barbiturates

SCHEDULE III

Schedule III drugs are known to have a medical use but have also been known to be abused for recreational purposes.

• Ketamine
• Codeine
• Vicodin
• Lortab
• Lorcet
• Anabolic Steroids
• Marinol

SCHEDULE IV

Similar to Schedule III drugs, Schedule IV substances are typically prescribed for medical use but also carry a risk of abuse for recreational purposes.

• Xanax
• Valium
• Darvon
• Darvocet

SCHEDULE V

Schedule V drugs are the least dangerous controlled substances but still carry some potential for abuse.

• Cough suppressants with codeine
• Anti-diarrheal treatments

HOW THE POLICE CATCH YOU

The police can catch you with drugs in simple, almost accidental ways, as well as during investigations that can get pretty complicated. It can be as routine as being in a traffic stop where the police officer smells marijuana and then finds a bag of it. It could also be the result of a multi-layer investigation involving both state and federal officers, and most likely involving much more serious criminal charges.

Drug investigations can begin through information provided by undercover police, an informant, or even an anonymous tip from the public. Almost all police agencies have whole units of officers, investigators, and detectives exclusively dedicated to drug enforcement. Usually these units are where the agency spends most of its budget. The police will talk to witnesses, take statements, perform surveillance, and even use drones where they take pictures from the sky.

All of this information is then used to prove probable cause and to obtain a search warrant from a judge. Often, this search warrant will allow for more intrusive surveillance such as listening in on your phone calls. A search warrant will also allow law enforcement to search properties, buildings, homes, and land that they suspect contains drugs.

STAKEOUTS

A stakeout is basically where the police hide out in an area that they believe is known to have drug activity. Through the use of cameras, or police officers witnessing drug transactions with their own eyes, a stakeout is a popular form of investigating drug crimes. Stakeouts rely on the element of surprise. As a result, the police will use unmarked cars to follow those that they suspect to be selling or transporting drugs. The police will wait until they observe a drug transaction and then swoop in and make an arrest.

WIRETAPPING

The police are legally allowed to spy on your phone calls if they obtain a warrant from a judge to do so. What this means is that if you are arranging a drug deal over the phone, and the police have obtained a warrant to listen to your calls, they can then use this evidence to arrest you and bring criminal charges.

Still, wiretapping can include other forms of spying outside of phone calls. Your emails, text messages, and other forms of electronic communication (social media) can all be spied on if the police have a warrant. Wiretapping can also be used to determine your location. Because cell phones use towers to transmit their signal, the police can obtain a warrant to look at your cell phone records and to track your movements in an effort to prove that you were in a certain area when a drug transaction took place.

INFORMANTS

People that help the police catch criminals are known as informants. To be sure, these individuals are working with and for the police, but they are not police officers. Often informants have been caught selling or possessing drugs and have agreed to work with the police to catch other criminals. The reason that informants agree to work with the police is usually because they are offered a deal to get out of their own criminal matter. Notably, some informants simply work with the police in exchange for money. Regardless of their motive, informants can play a key role in helping the police catch you. A common example of how an informant may be used to catch you is where they are wearing a wire while conducting a drug transaction. The wire records your conversation with the informant and is then used by the police to arrest and charge you with a drug crime. Informants are used not just in Texas, but also by the FBI and by most state and federal law enforcement agencies.

TASK FORCES

Funded by the federal government, a drug task force is typically made up of law enforcement officers whose mission is to stop drug trafficking and drug abuse. Task forces work with state and federal law enforcement agencies, typically focusing on large criminal drug organizations. If you are purchasing or possessing large amounts of illegal drugs, or have simply been associated with members of a criminal drug organization, you may find yourself the target of a drug task force investigation.

CONTROLLED BUYS

Sometimes the police go undercover and pose as drug buyers. This is known as a controlled buy. Texas police will typically try to arrange a controlled buy with someone who is predisposed to purchasing drugs. What this means is that the police generally will not seek out a drug sale, but will instead focus on you if you have been observed selling drugs to informants, or are known to law enforcement as a drug dealer. In order to prove their case against you, the police obtain marked money (traceable money) to buy drugs from you. An undercover police officer will then go to a predetermined place to purchase the drugs. After a sale is made, the police check the buyer (undercover police officer) for drugs. Any drugs that the officer obtains in the controlled buy is then field-tested to determine whether the drugs are real. If the drugs turn out to be authentic, then you could be arrested for selling drugs. Once you have been arrested, the police will then seize the marked money involved in the sale and use it as evidence against you at your trial.

SEARCHES AND SEIZURES

The United States Constitution’s Fourth Amendment protects people from illegal searches and seizures without a properly executed warrant. What this means is that the police cannot search you, your home, or even your vehicle without first providing probable cause and obtaining a search warrant. The warrant has to specify what areas, buildings, or vehicles are to be searched. You should never just allow the police to search your home or vehicle without a warrant. You must also remember to read the warrant for the specifics of what is searchable and what is not. The search warrant doesn’t give the police a pass to search anything and everything they want to regardless of whether it might contain evidence of a crime. Without a warrant, and absent special circumstances such as a life-or-death emergency, you do not need to let the police into your home.

SEARCH OF VEHICLES

The police do not need to have a search warrant to search your car if they reasonably believe they have probable cause of drugs being in your vehicle, or evidence of some other crime. If you are stopped by the police and they want to search your car, do not give them consent. Refusing to give consent may not stop them from searching your vehicle, but if you emphatically state to the officers that you do not give consent to the search, then whatever evidence is found can potentially be challenged by your criminal defense lawyer. On the other hand, if you do give consent for a search, you may prevent your lawyer from arguing at your trial that the evidence found in your vehicle was obtained illegally.

PAT DOWN SEARCHES

A common way for police to search your body is to do an initial “pat down”. Generally, searches of your body or the clothes that you are wearing are not allowed unless you have been arrested or have consented to the search. Again, as a general rule, do not ever consent to have your body or clothes searched by the police, even if you are sure that you have nothing illegal on you. During these pat downs, the police can frisk you for weapons or anything that might be a danger to them.

Again, they typically can only do this if you’ve been arrested at the scene or if you consent to this type of search. During these searches, the police can, and often do, find illegal drugs or various types of drug paraphernalia for which you can be charged. A good criminal defense attorney might be able to challenge a search like this since the police are only supposed to be searching for weapons.

THE RIGHT TO REFUSE A SEARCH

You have the absolute right to refuse a search by any type of law enforcement, whether they be local, state, or federal. However, many people feel or believe that they do not have a right to refuse a search request by police. Because of the intimidating nature of the police, many people know that they have a right to refuse but are afraid to speak up. Do not be afraid to assert your rights.

Some people will allow the police to search themselves, their car, or even their home because they think that it might make them look innocent. Know that the police do not think like this. You may want to appear to be cooperating with police because you believe that it will help your circumstances somehow. However, if you are a suspect to the police, then all they want from you is information to ultimately use against you. If the only evidence that the police have to convict you is something that they obtained during an illegal search, one that you did not consent to, then that evidence could be rejected by the court, possibly causing the charges to be dismissed. There is a right in the Constitution that allows you to say no to unlawful or unreasonable searches. Use it.

THE STEPS OF A CRIMINAL CASE AGAINST YOU

If you have been charged with a drug crime in Texas, then there are a number of steps which have to take place before you can be found guilty and sentenced. These steps have been put in place to protect you and preserve your rights. The prosecutor cannot simply skip any of these steps and throw you in jail. Remember, it is the prosecutor’s job to prove that you committed a crime. Throughout the following steps, you and your lawyer will be given the opportunity to challenge the prosecutor’s evidence against you and present a defense. Critically, with the help of a good criminal defense lawyer, you may be able to have your case dismissed before you even go to trial.

ARRAIGNMENT AND BAIL

This is typically the formal beginning of your criminal case. At your arraignment, you will be told by the judge or magistrate about the charges that the prosecutor has brought against you. You will then have the opportunity to enter what is known as a plea. Your plea is simply how you intend to respond to the charges brought against you. Your options are: not guilty, guilty or no contest. Pleading not guilty is sensible unless you have worked out an agreement with the prosecutor that calls for a different plea.

After you have entered your plea, the judge or magistrate typically will determine whether or not bail is necessary. The purpose of bail is to ensure that you will return to court for your trial. If you can show to the judge that you pose no threat to the community, and that you will not leave the state or country to avoid going to trial, then you may be released simply on a promise that you will return to court on your next court date. If you are not able to show the judge those things, you may have to pay bail. The amount of bail you will have to pay will be set by the judge. Once you show up for your trial, the bail money that you have paid will be returned to you.

PRETRIAL

During the next phase of your criminal case, you will be given an opportunity to view the evidence against you and potentially work out an agreement with the prosecution. In some instances, your case may be dismissed if the judge who is overseeing this phase determines that the prosecutor’s evidence against you is insufficient to move on to the next step.

An important aspect of the pretrial phase is what is known as plea bargaining. A plea bargain is an agreement between you and the prosecutor on how your case will end. Typically, a plea bargain will require you to plead guilty to a criminal charge in exchange for a reduced penalty. You may also have the opportunity to plead no contest. This is typically done when the prosecutor agrees to withdraw the charges after you complete certain requirements. An example would be community service or staying out of trouble for a specific period of time.

It is vital that you understand that any agreement that you reach with the prosecutor must also be approved by the judge. The judge in your case always has the option of rejecting your agreement if they do not like the terms. If this happens, then you may have an opportunity to work out a different agreement with the prosecutor that will then be resubmitted to the judge for approval. If you cannot work out an agreement that the judge approves, then your case will go on to the next step in the criminal justice process.

MOTIONS

It is common for your lawyer to file a number of motions before your trial begins. A motion is basically a formal request by your attorney to the judge handling your case to take a specific action. A common example is a motion to exclude evidence. What this means is that your lawyer asks the judge to throw out certain evidence that the prosecutor plans on using against you at your trial. If your lawyer’s motion is granted, then the prosecutor will not be able to use that evidence during your trial. A successful motion to exclude evidence can result in your case being dismissed altogether.

The prosecutor will have the chance to respond to your lawyer’s motion request. Typically, a hearing in front of the judge is held to determine if the motion should be granted. In most cases, you will not be required to attend these hearings as they are typically argued only by the lawyers involved in the case. Still, witnesses may be called to testify during a motion hearing. After hearing arguments from your lawyer and the prosecutor, the judge will then make a decision to either grant or deny the motion.

THE TRIAL

If your case cannot be settled by a plea agreement, the next step is the trial. The purpose of the trial is for the prosecutor to present evidence to a judge or jury who will then determine if you are guilty of the charges brought against you. You must remember that it is the prosecutor’s job to prove beyond a reasonable doubt that you committed the crime(s) that you have been charged with. You are not required to come up with a defense or prove that you are innocent.

In Texas, you may have the option of having your case decided by a judge or a jury. A jury is a group of regular people from the community that will listen to the evidence and arguments at your trial, and then make a decision on whether you are guilty of the charges. The jury must be made up of people who have never met you and that have not been influenced in any way.

A trial typically begins with the prosecutor presenting to the judge or jury the evidence against you. This could be testimony from police officers, testimony from other witnesses, video, pictures and lots of other things. Your lawyer will have the opportunity to challenge all evidence put forth by the prosecutor. In most drug cases, the prosecution will also present evidence concerning the drugs involved in the case. What this means is that the prosecutor must show that the drugs that they claim were in your possession or control were in fact illegal drugs. In order to do this, the drugs must be tested by a laboratory. The prosecutor must then show through the testimony of the laboratory technicians that the substance(s) they tested were in fact illegal drugs. Again, your lawyer will have an opportunity to challenge this evidence and attempt to poke holes in the prosecutor’s arguments.

Once the prosecutor has presented all of the evidence against you, your lawyer will have a chance to present any evidence that will discredit or cast doubt on the prosecutor’s case. Remember, you are not required to present a defense and you have the absolute right to refuse to testify at your criminal trial. Still, it is likely that your lawyer will call witnesses and present evidence on your behalf.

THE VERDICT

After both the prosecution and your attorney have presented their cases, the judge or jury will issue what is known as a verdict. A verdict is simply the decision reached by the judge or jury concerning whether or not you are guilty of the charges. If you request to have a jury decide your case, then all of the jurors must agree in order for you to be found guilty or not guilty. If the jurors cannot agree, your trial will end in what is known as a hung jury. Critically, a hung jury is different from a not guilty verdict. In the event your trial ends in a hung jury, the prosecutor has the option of re-filing the charges against you and re-doing your trial in front of a different judge and jury.

If all jurors agree, then the verdict will either be guilty or not guilty. A not guilty verdict means that you have won and your trial is over. If you are found guilty, then your case will go on to the sentencing phase.

SENTENCING

The sentencing phase of a criminal trial only occurs if you have been found guilty by the judge or jury deciding your case. Your sentence is just another way of saying what your punishment will be for the crime(s) that you have been found guilty of. Your sentence will be determined by a number of factors. Your criminal record, the seriousness of the charges, and your age could all be considered when deciding your sentence. At sentencing, you may have the option of presenting evidence and testimony from friends and family concerning your good nature. You may even be allowed to make a statement to the judge requesting leniency.

APPEALS – CHALLENGING THE VERDICT

If there were mistakes in your trial that you or your lawyer believe should entitle you to a dismissal or a new trial, then you can file what is known as an appeal. An appeal must state what errors the judge, jury, or the prosecutor made during your trial. Your appeal must also show how those errors caused you to receive an unfair trial. If you can show your trial was unfair, you may have the verdict thrown out and your trial redone by a different judge and jury.

DRUG PENALTY GROUPS

Texas law creates six drug penalty groups (or PG): PG1, PG1A, PG2, PG2A, PG3, and PG4. Which PG you are placed in by the judge will depend on the charges that you were found guilty of. For example, a charge for the manufacture of a particular drug and its delivery will be a different PG than mere possession of that drug. Your PG will further depend on the type and amount of the drug you are caught with. Schedule I drugs call for more serious penalties than Schedule V. Similarly, being in possession of a large amount of a particular drug will call for a more severe penalty than possessing a small amount of that controlled substance. There are also many other factors that might come into play in a specific case such as whether a minor was involved. Below are the six PGs and the possible penalties associated with them:

• Penalty Group 1 and 1A: Depending upon the amount of the drug, this group can start with a minimum of 2 years in prison with a $10,000 fine, and go all the way up to life in prison with a $250,000 fine.
• Penalty Group 2 and 2A: This is similar to PG1 and PG1A, but with a maximum fine of $50,000. It also allows for a life sentence if you are found to have 400 grams or more of a controlled substance in these groups.
• Penalty Group 3: The minimum for this group is a year in jail with a $4,000 fine, and a maximum of 20 years in jail and a fine of $10,000 for having 200 or more grams of the controlled substance.
• Penalty Group 4: Similar to PG3.

Notably, the penalties for crimes involving marijuana are different than the other controlled substances. The severity of your penalty will depend on the type of drug crime that you committed (e.g. possession, manufacture, distribution) and the amount of marijuana present. The penalties range from a Class B misdemeanor with 180 days in county jail, to a life sentence in prison.

TEXAS STATE LAW VS. FEDERAL LAW

Both Texas and federal law are very similar in how they categorize and penalize controlled substances and drug offenses. Under Texas law, there are categories of drugs that have been deemed illegal to grow, make, produce, possess or sell. Federal law is no different.

DEA DRUG CATEGORIES

The United States Drug Enforcement Administration (DEA) has established seven categories of illegal drugs where federal law applies:

1. Controlled Prescription Drugs: These are drugs that are legally manufactured by drug companies and legally prescribed by doctors, but are nonetheless abused by patients, family members and friends. These pills will often be prescribed legally by a doctor, but then turned around and sold on the streets.
2. Heroin: Heroin is a highly addictive drug that the Mexican and South American drug cartels ship into Texas in huge amounts.
3. Fentanyl, Other Synthetic Opioids: Over the last 15 years, these types of synthetic opioids, both on their own and when mixed with other drugs like heroin, have been one of the leading causes of drug overdoses and drug-related deaths in the United States.
4. Cocaine: Another highly addictive street drug that is typically brought into the U.S. through the Texas-Mexico border.
5. Methamphetamine: This drug can be easily manufactured and is highly addictive.
6. Marijuana: Despite the fact that recreational use of marijuana is currently legal in many states, it is still a controlled, illegal drug under Texas and federal law.
7. New Psychoactive Substances: This category of controlled substances is a hodge-podge of synthetically created drugs including synthetic cannabinoids and other drugs created in illegal laboratories around the world.

In a general sense, federal law enforcement is more concerned with drug trafficking on a national or international basis. Federal authorities primarily focus the resources of the federal government on large scale drug distribution operations such as cartels and gangs. The DEA has labeled drug cartels the most important threat to our country as it relates to controlled substances. These cartels come from South America, Mexico, the Dominican Republic, and Asian countries such as China, the Philippines, and Vietnam. The opposite is true for Texas drug enforcement divisions. Texas police and drug crime investigators focus their efforts on statewide drug distribution networks or local individuals who violate Texas state law.

FEDERAL VS. TEXAS SENTENCING GUIDELINES

If you are charged by federal authorities with violating Federal drug crime laws, then you will be sentenced under the federal sentencing guidelines. These guidelines were created so that drug crimes throughout the country will be treated the same no matter where in the country the crime was committed or where the defendant was arrested and convicted. The guidelines also create mandatory minimum sentences for certain types of drug offenses. This means that in some cases, the judge’s hands are tied when they wish to give a lesser sentence.

Texas also has minimum and maximum sentences on the various drug crimes listed in the Texas Controlled Substances law. In a normal case, the judge will decide the sentence of the defendant between the minimum and maximum ranges. It is the judge’s duty to explain the sentence given and the reasoning behind it. However, despite there being minimum and maximum sentences, generally, a judge will have more leeway under Texas state law versus what is allowed in the federal system.

DEFENSES TO DRUG CHARGES

An experienced Texas drug criminal defense lawyer will have several ways to aggressively defend against the prosecution of a drug crime. One of the most widely used tactics is a motion to suppress evidence. If evidence that the prosecution plans to use at trial was obtained in an improper or illegal way, then your defense attorney can file a motion with the court to have that evidence thrown out. What this means is that the prosecutor will not be able to use this evidence during your trial. In some instances, the thrown-out evidence is so important to the prosecutor’s case that the charges have to be dismissed. Sometimes, evidence can be thrown out because it was obtained through an improper interrogation or an illegal search and seizure. Motions to suppress evidence can also be filed when your rights have been violated by the police. The following are some examples:

• Being stopped by the police who had no probable cause that you were committing a crime. This includes stopping your car without evidence that you violated traffic laws.
• Undergoing a pat down by police who had no reasonable basis to believe that you were carrying a weapon.
• Searching a vehicle without your consent and without a proper search warrant.
• Searching your home without consent or without a proper search warrant.
• Searching your home when the police possess a warrant for your arrest, but not a search warrant for your home.
• Continuing to question you after you have requested to see a lawyer.
• When you have already hired a lawyer and the police continue to question you outside of your lawyer’s presence.
• Engaging in violence against you or threatening violence in order to force you to talk or give a confession.

UNKNOWING POSSESSION

In order to be convicted of possession, the prosecutor must prove that you knew, or had reason to know, that the drugs were in your possession. If you can show that you did not know that drugs were in your possession, then the charges might be dropped. For example, illegal drugs might have been found in your home, but they were found in an area where someone else was staying, like a guest room. Another example is when a passenger in your vehicle left their drugs in your car, and you had no idea that they were there.

NO AFFIRMATIVE LINK

An experienced criminal defense attorney can have charges dismissed if the prosecutor cannot prove that there was an affirmative link between you and where the drugs were found. For example, if you share a home with several people, and the drugs were found in a common area, then the prosecutor must prove that there is an actual link between you and the drugs that were found in the home.

UNLAWFUL SEARCHES AND SEIZURES

If evidence is obtained through an unlawful search and seizure, then that is a violation of the Fourth Amendment to the U.S. Constitution. Any and all evidence that was obtained through that search can be dismissed and never used during your trial. This can sometimes result in the criminal charges being dismissed altogether. There are several ways for a search to be illegal:

• There is no probable cause for the search. This means that before the police can search a home, vehicle, or an individual’s clothing or body, they must have a reasonable basis to suspect that a crime has been committed.
• Another way is through a search that you did not consent to and that the police did not have a warrant for. Also under this category is a scenario where your consent was given under deceptive means. This is where the police basically trick you into granting permission for the search.
• The search warrant is defective in some manner. In other words, the search warrant that was granted by the judge could have been based upon incorrect information or lies provided by the police.

SEARCH INCIDENT TO LAWFUL ARREST

The rules surrounding search and seizure change when you have been placed under lawful arrest. If this happens, then the police can search you and the immediate area that you have access to. If the arrest was done within a residence, a protective sweep can be done within the home to see if anyone else is present, all without a search warrant.

IMPROPER HANDLING OF EVIDENCE

Once evidence is found and seized by the police, they must maintain proper custody of the evidence to make sure it is not tampered with or invalidated in any way. This is called the “chain of custody” in evidence collection. If the prosecutor cannot show that there was a proper chain of custody for a particular piece of evidence, then it can be argued that the evidence is not reliable and should not be used. The prosecutor must show that the evidence was property collected, marked, and bagged at the crime scene.

If the prosecution cannot account for how the evidence was handled after it was collected, then your lawyer can file a motion to suppress the evidence. If the judge decides to throw out the improperly handled evidence, then all of the charges could be dropped.

VIOLATION OF MIRANDA RIGHTS (WARNINGS)

If you have ever seen an arrest on television, then you have probably heard the police give a suspect what is known as Miranda warnings (e.g. “You have a right to remain silent; anything that you say can and will be used against you in a court of law; you have a right to have your lawyer present when the police question you”). While you should not believe everything you see on TV, the Miranda warnings are in fact required when you are in police custody and they are about to question you. These warnings are a result of the U.S. Constitution’s right against self-incrimination. What this means is that the police must let you know that you do not have to speak to them and that you have the right to have an attorney present during questioning.

If the police question you while you are in their custody, and they don’t provide you with the Miranda warnings, then any statements that you make to them cannot be used against you during your criminal case. The police have a tremendous amount of power and could very easily force or deceive you into making statements that will be used against you. The law recognizes this imbalance of power, and as a result, requires the police to inform you of your rights before beginning an interrogation.

YOU DIDN’T POSSESS A CONTROLLED SUBSTANCE

If the prosecutor wants to convict you of a possession charge, then they have to prove that what you possessed was actually a controlled substance. If you had something on you which did not appear on Texas’s controlled substance schedules at the time of the incident, then you have committed no crime. For example, suppose that Texas police arrest you for heroin possession. If what you possessed was brown sugar – not heroin – then you cannot be convicted of drug possession and your charges should be dropped.

YOU HAVE A PRESCRIPTION FOR THE CONTROLLED SUBSTANCE

Many substances listed on the controlled substance schedule are prescription drugs. If you have proof that your doctor prescribed the drug you were caught with, then you may have a defense to the drug crime offense. For some drugs in Texas, this defense will not be available as no doctor can legally prescribe them. Drugs like heroin, cocaine, and meth are illegal for anyone to possess, and no doctor can legally write you a prescription for them.

YOU LAWFULLY POSSESSED MEDICAL MARIJUANA

The State of Texas legalized marijuana for medical use in 2015. What this means is that if you have a prescription for marijuana from an approved doctor, then you can legally purchase and possess marijuana from a state-licensed dispensary. It is important to understand that Texas medical marijuana dispensaries can only sell marijuana with 0.5 percent THC or less. Critically, only cannabidiol oil can be sold at a dispensary in Texas. Currently, marijuana flower cannot legally be purchased or possessed in the state.

ENTRAPMENT

Entrapment is a legal defense to certain drug crimes in Texas. Entrapment is when the police entice an otherwise law abiding citizen into committing a crime. For this defense to be successful, the police must have made you commit the crime through persuasion or other suspicious means. In order for this defense to be successful, it does not matter that you were predisposed to commit the crime. Also, you have to be induced by the police to commit the crime. This defense doesn’t work if you would have done the crime even without the police’s encouragement.

An example of entrapment in a drug case is where a police officer has enlisted the help of an informant to investigate a known drug dealer. The officer asks the informant to buy drugs from the dealer, and the officer gives the informant money to do so. Once the deal is done, the informant brings the drugs to the police officer as proof, but then gets arrested for buying the drugs. This would be a classic case of entrapment and a valid defense to the criminal charges.

DEFERRED ADJUDICATION PROGRAMS IN TARRANT COUNTY

Tarrant County provides several pre-trial deferred adjudication programs that can keep you from experiencing the common criminal outcomes. These programs can help you correct a onetime mistake through being a part of a counseling program, mentorship, or a therapy or rehabilitation program. If eligible, being accepted into one of these programs could help divert your drug charges from the traditional outcome to one where the charges ultimately go away and your future is not ruined by a drug conviction.

DEFERRED PROSECUTION PROGRAM

This program is available for younger individuals who are between 17 and 24 years of age. This program will provide an opportunity for a first time young offender to demonstrate to the court that they can be rehabilitated. Other than the age requirement, in order to be eligible for this program, you cannot have a previous conviction of a Class B offense or more. The following will disqualify you from this program:

• Older than 24 years
• Previous juvenile case
• Member of the Mental Health Priority Population
• A positive drug screen at the time of the application
• A past conviction of a Class B offense or higher
• Previous participation in this program

FIRST OFFENDER DRUG PROGRAM

Tarrant County offers this program for first time drug offenders. If successfully completed, it is designed to help you remove the drug charge off your permanent record. There is no age limit for this program, and you might be eligible if you have been charged for the first time with a misdemeanor or low-level felony drug charge, provided you have never been arrested before. The following offenses may be eligible:

• Possession of controlled substance under 2 ounces
• Possession of marijuana under 4 ounces
• Controlled substance under 28 grams in drug free zone
• Forging or altering prescription
• Possession of dangerous drug
• Diversion of controlled substance
• Attempt of any above listed offense

To be eligible, you cannot have been previously convicted, have current or past community supervision or deferred adjudication, or have any pending case for offenses other than Class C misdemeanors or less serious offenses.

HIRING A TEXAS CRIMINAL DEFENSE LAWYER

Being charged with a drug crime in the State of Texas is no laughing matter. When it comes to a drug charge, your freedom and reputation are at stake. As a result, hiring an experienced lawyer to defend you should be a top priority. While the government may provide you with a public defender, they are often overworked and lack the incentive to aggressively fight for your rights. The lawyers at The Fulgham Law Firm have a proven track record in successfully defending those charged with drug crimes in Texas. We will do everything in our power to help you get the best result possible. Do not gamble on your future. Reach out to The Fulgham Law Firm today by calling (817) 826-9905 or by contacting us online.

The post TEXAS DRUG CRIME GUIDE appeared first on Fulgham Law Firm.