Daniel Strann - Criminal Defense FAQ

Assault is an attempt to injure a person with force or violence. It is also intentionally putting someone in fear or apprehension of such harm. Some jurisdictions include injuring someone in the definition of assault.

Battery is different from assault because it actually results in harmful or offensive physical contact with the victim. Assault may therefore be viewed as an attempted battery.

Usually, battery causes physical injury to the victim. This is not always the case, however. The offensive contact simply may be unwanted touching. Typically, though, a defendant is charged with battery when the alleged victim suffers an injury.

Domestic violence is most often an assault or battery against a spouse, intimate partner, or cohabitant, but it also can occur against a child, elderly relative, or other member of the household or family. Domestic assault is both physical violence and emotional abuse, including threats, intimidation, and control.

Driving while under the influence of alcohol. There are laws prohibiting driving under the influence of other substances.

A wide range of crimes dealing with the use, distribution, possession, or command of any controlled substance, or illegally used or distributed prescription medication

The theft or misappropriation of assets that belong to an employer, company, or governing body, but are entrusted to the person(s) committing the crime

The act of or attempt to take assets from another person through intimidation, coercion, or other threats. Actual procurement of the assets is not required for the crime to be considered extortion.

Deceit with the intent of depriving someone of his/her property

The unlawful possession of any banned weapon, including various knives, automatic weapons, and others. It can also include the unlawful possession of any weapon at all by a person specifically not allowed to possess one, such as a convicted felon.

The intentional killing of one person by another. In most jurisdictions, any planned murder or any death occurring during the course of a crime is considered first-degree murder, and all others are considered second-degree murder.

Any lewd or lascivious act perpetrated against a child up to 18 years old, including sexual touching, flashing, rape, pornography, and exposure to sexually explicit materials

Any violation of restrictions imposed on a person as a condition of his/her probation

Forced sexual intercourse against the victim's will, usually accomplished by means of duress, menace, violence, or force

Any illegal sexual behavior, including incest, indecent exposure, rape, molestation, sexual assault, sexual abuse, statutory rape, necrophilia, bestiality, and more

The illegal, non-consensual taking of another person's property. This term is sometimes used as an umbrella term encompassing larceny, burglary, embezzlement, looting, and similar crimes.

Causing the death of a person through the reckless, negligent, or illegal use of a motor vehicle

Crime Definitions

Extortion

Embezzlement

Drug Offenses

Drunk Driving

Domestic Violence

Assault and Battery

Murder

Illegal Possession of Weapons

Fraud

Vehicular Manslaughter

Theft

Sex Crimes

Rape

Probation Violations

Molestation

Text Box: Here are some frequently-asked questions regarding Criminal Defense. Please click on the question to be forwarded to the corresponding answer:

Text Box: Answer: Class B Misdemeanor - confinement for a term not to exceed 180 days in the county jail; and/or a fine not to exceed $2,000. Examples: DWI ("drunk driving"), Criminal Trespass, Theft by Check $50 to $500, Evading Arrest or Detention. Class A Misdemeanor - confinement for a term not to exceed one year in the county jail; and/or a fine not to exceed $4,000. Examples: a second DWI, Assault, Burglary of a Vehicle, Unlawfully Carrying a Weapon. State Jail Felony - confinement for a term from 180 days to two years in a state jail; and an optional fine not to exceed $10,000. Examples: Credit Card Abuse, Unauthorized Use of a Motor Vehicle, Reckless Injury to a Child. Third-Degree Felony - confinement for a term from two to 10 years in prison; and an optional fine not to exceed $10,000. Examples: a third DWI, Indecency with a Child, Kidnapping, Possession of a Firearm by a Felon. Second-Degree Felony - confinement for a term from two to 20 years in prison; and an optional fine not to exceed $10,000. Examples: Aggravated Assault or Kidnapping (if the victim is released unharmed), Arson, Robbery, Sexual Assault. First-Degree Felony - confinement for life or a term from five to 99 years in prison; and an optional fine not to exceed $10,000. Examples: Murder, Aggravated Kidnapping, Robbery, Sexual Assault. Capital Felony - punishment in prison for life, or death penalty. If the State does not seek the death penalty, an automatic life sentence is imposed Upon conviction. When the State seeks the death penalty, upon conviction the jury must answer questions that may result in either a sentence of life imprisonment or the death sentence. Examples: Murder during the commission of another felony such as kidnapping, rape or robbery. __________________________________________________________________________________________________________________________________ Answer: The first step is for the defendant to not answer any questions or consent to any searches, and to ask for a lawyer. The defendant should also not talk about the facts of his case to anyone else in jail (e.g. a fellow inmate, who turns out to be the jailhouse snitch) or over the telephone (which may be monitored and recorded). The second step is for the defendant to contact family members or friends to tell them to post a bond, assuming he is in jail, and hire a good lawyer. The third step is to actually post a bond, again assuming the defendant is in jail, and hire a good lawyer. Hiring a good lawyer maximizes the chances that the case is dismissed, settled favorably, or won at trial. NOTE: If the defendant can only afford to either post a bond or hire a good lawyer, he is better off hiring the lawyer. Posting a bond is only a short-term benefit; hiring a good lawyer has long-term consequences. __________________________________________________________________________________________________________________________________ Answer: If you are a suspect in a criminal investigation or are charged with a felony or a misdemeanor, you should consult with an experienced criminal defense lawyer as early as possible. What could be more important than protecting your freedom? Additionally, there may be serious and long-term implications to a criminal conviction. Certain convictions will affect your employment, professional licensing, or ability to drive. An experienced defense lawyer will help you limit your risks and defend your rights. Nobody wants to miss an opportunity to be acquitted, to have a charge dismissed, to have evidence suppressed or, if a penalty is unavoidable, to minimize the impact on oneself or one’s family. You should hire an experienced defense lawyer, who will carefully review the evidence and law in your case and make sure your rights are protected. __________________________________________________________________________________________________________________________________ Answer: If you are a suspect or defendant in a criminal case, you should hire an experienced defense lawyer – someone who not only knows Texas criminal law but who is also familiar with the courts, judges, prosecutors, and police. You want someone who is not afraid to try a hard case, but who will give you straightforward, realistic advice about the risks involved and the likely results. __________________________________________________________________________________________________________________________________ Answer: Sex offenses include all forms of illegal sexual activity, ranging from the crime of rape (usually defined as sexual penetration without consent) to the crime of prostitution (usually defined as sex for hire). The most serious crimes involve the sexual assault of children or include physical injury. Other sex offenses include public indecency, voyeurism, prostitution, solicitation, pornography, date rape, lewd acts, pandering, pimping, statutory rape, and unlawful sodomy. Generally, sexual assault includes unwanted physical contact with a sexual organ. In some states, the laws also prohibit aggressive sexually suggestive statements, without requiring physical contact. Physical contact is considered unwanted if the victim refused, physically objected, or was unable to give legal consent. It is not necessary to show that the accuser physically resisted. Current laws are usually gender-neutral, so they protect all sexual-assault victims. Rape and Sexual Assault Sexual assault is often considered forcible rape, but that is only one type of such an assault. Sexual assault in most states includes any type of unwanted physical contact with a sexual organ and may include aggressive, sexually suggestive statements. Sexual assault may also occur between persons of the same gender. The force used and the harm suffered may determine what crime is charged, as well as the penalties upon conviction. Under many states' laws, the penalties for sexual assault are severe and may include incarceration, significant fines, psychiatric treatment, and paying restitution to the victim. In addition, a person convicted of sexual assault may be required to register as a sex offender, possibly for the rest of his or her life. In most states, you can be charged with first-degree sexual assault or rape, sometimes called aggravated felonious sexual assault or gross sexual assault, if you physically forced sexual intercourse on another person, had sexual intercourse with someone who was unable to give legal consent, or forced intercourse by threats of retaliation. You must not delay in hiring a knowledgeable attorney to interview prosecution witnesses, show alternative photographic line-ups, protect you during a live line-up, and interview possible alibi witnesses. Date Rape Date rape is commonly defined as forcible sexual contact during a voluntary social engagement in which a person does not intend to engage in sexual activities and resists the contact. The fact that the engagement was voluntary and the parties were acquainted is not a defense. Nor is previous sexual contact between the parties a defense to date rape charges. The victim does not necessarily have to reject the advance or physically object to demonstrate lack of consent. Although laws vary by state, usually a victim intoxicated by alcohol or drugs is incapable of giving legal consent. Additionally, date-rape drugs have become more common in the past decade. Some of the most frequently used drugs are rohypnol ("roofies"), gamma-hydroxybutyrate (GHB), and ketamine. Use of drugs makes an individual unable to give consent, lose consciousness, or even die. Date rape may be the most common form of rape that occurs, but it is also the most commonly unreported type of sexual assault. Statutory Rape Statutory rape depends on the ages of the participants. Even if consent is given, the law states that people under the age of consent are legally unable to consent; therefore, the legal effect is the same as if no consent had been given. The age of consent ranges from fourteen to eighteen, sixteen being the most common age. Many states do not actually use the term "statutory rape," but use terms such as "rape," "unlawful sexual penetration," "felonious sexual assault," or "unlawful sexual contact." Some states also consider the age difference between the two people, as well as their individual ages. State laws may change the age of consent or the penalty for sexual relations involving a person of authority, such as a teacher or a coach. The alleged victim or his or her parents often participate in bringing statutory rape charges, but often the state can bring charges, even against the protest of both the underage person and his or her parents. The punishment for statutory rape can be severe, followed by a stigma that follows the offender for the rest of his or her life. Internet Crimes The crime of online solicitation of a minor is a serious criminal allegation that can have long-lasting legal ramifications for those accused. It involves intentional communication in a sexually explicit manner with a minor or distributing sexually explicit material to a minor. If convicted of online solicitation of a minor or any other sexual offense, you may have to register as a sex offender with the State of Texas. __________________________________________________________________________________________________________________________________ Answer: Homicide Homicide is of course a serious crime because someone has died. In Texas, there are various types of homicide: capital murder, murder, intoxication manslaughter, reckless manslaughter, felony murder, vehicular manslaughter, and negligent homicide. The offense level depends on the type of homicide, with capital murder being the most serious and negligent homicide being the least serious felony. A conviction for any homicide can devastate your reputation, job, and your relationships, and open you up to lawsuits. Assault Assault is an attempt to injure a person with force or violence. It is also intentionally putting someone in fear or apprehension of such harm. Some jurisdictions include injuring someone in the definition of assault. Battery Battery is different from assault because it actually results in harmful or offensive physical contact with the victim. Assault may therefore be viewed as an attempted battery. Usually, battery causes physical injury to the victim. This is not always the case, however. The offensive contact simply may be unwanted touching. Typically, though, a defendant is charged with battery when the alleged victim suffers an injury. Domestic Violence Domestic violence is most often an assault or battery against a spouse, intimate partner, or cohabitant, but it also can occur against a child, elderly relative, or other member of the household or family. Domestic assault is both physical violence and emotional abuse, including threats, intimidation, and control. Illegal Possession of Weapons While it is relatively easy to earn a permit to carry a handgun in Texas, there are still a number of restrictions about when and where you can carry a gun. From knives and switchblades to guns and other firearms, there are serious consequences for weapons crimes, including jail time and the loss of gun rights There are a number of circumstances that can lead to weapons charges: ~Possession of weapon in a bar ~Felon in possession ~Unlawful carrying of weapons __________________________________________________________________________________________________________________________________ Answer: In Texas, possession of an illegal drug or a controlled substance can be a misdemeanor or a felony depending upon the type and amount of drugs involved. For high school students, whether charged as an adult or a juvenile, possession of even a very small amount of a drug such as marijuana can result in lost educational opportunities, including attendance at the student's college of choice or the ability to go to college at all because of student loan ineligibility based on a drug crime conviction. A teenage drug conviction can also result in lost employment opportunities, including ineligibility for certain jobs or future career advancement. A drug possession conviction can result in criminal penalties, such as fines and jail time, and other consequences, such as license suspension and damage to your reputation. Criminal charges for possession, manufacturing, or distributing illegal substances cover the followings: ~Marijuana ~Crack cocaine ~Heroin ~Methamphetamines (meth) ~Other illegal drugs The penalties for a drug conviction can range from fines of $2,000 and 180 days in jail to fines of $50,000 and an entire lifetime in jail. The level of misdemeanor or felony charge is based upon the amount of drugs confiscated. For example, possession of five ounces of marijuana would result in state felony charges with a sentence potential of up to $10,000 and two years in jail. __________________________________________________________________________________________________________________________________ Answer: Each U.S. state has its own set of drunk-driving laws. In some states drunk driving is a crime, while in others, like New Jersey, it is classified as a traffic offense. While drunk-driving laws do differ among the states, there are certain concepts and features common to most states' drunk- driving jurisprudence. Basically, as we all know, operating a motor vehicle after consuming alcohol and/or drugs to a degree that impairs a person's judgment and ability to drive safely is a serious offense. Both criminal and civil penalties for drunk driving can be harsh and often include the following: ~Loss or suspension of license ~Large fines ~Substance-abuse treatment ~Jail or prison time ~Community service ~Restitution ~Criminal record ~Restrictive probationary license programs, including ignition interlock devices In addition, the social stigma and effect on your career may have lifelong negative consequences. If you have been stopped for, arrested for, or charged with drunk driving, it is in your best interest to discuss your options and rights as soon as possible with an attorney who has experience handling drunk-driving cases. Terminology and Elements of Drunk Driving The offense of drunk driving goes by a variety of names among the states, including the following: ~Driving under the influence (DUI) ~Driving while intoxicated (DWI) ~Operating under the influence (OUI) ~Operating while intoxicated (OWI) ~Driving under the influence of intoxicants (DUII) ~Driving while under the influence (DWUI) In the language of the various state statutes, a drunk-driving conviction requires driving or operating a vehicle or motor vehicle. While that sounds straightforward, a review of drunk-driving cases shows otherwise. Driving Requirement The requirement of driving or operating implies that the driver must have some sort of control or command of the vehicle. Guilt or innocence may hang on whether the defendant was actually "driving" in a particular circumstance. What if he or she was just sitting behind the wheel of a car but it was off? What if the defendant was sleeping there? What if the keys were in the defendant's pocket and not in the ignition? What if that car was out of gas and could not be started? What if it was idling? What if it was being towed? Courts nationwide have considered various scenarios to determine whether the necessary control over the vehicle was present, and the outcomes vary by state and by the individual circumstances. Intoxication One way prosecutors prove driver intoxication is through scientific testing of the amount of alcohol in the body, usually by analyzing the breath or blood. These tests are usually administered by machines, such as the Breathalyzer®. In every state, a person with a blood-alcohol concentration (BAC) over .08 is considered legally intoxicated. Implied-consent laws create the legal presumption that if a person takes advantage of the privilege of driving, he or she automatically consents to state-administered chemical testing to determine his or her BAC. If a driver refuses to take a chemical-alcohol test, his or her driver's license may be revoked or suspended. BAC test results over the legal limit are usually presumed to be proof of intoxication. However, defendants may challenge the conclusiveness of the results by showing irregularities in the test administration procedure or problems with the test equipment. For example, your lawyer may advise retesting your breath-sample tubes. He or she may be able to obtain exclusion of the original breath-test results from the case or even dismissal of the case entirely. Other types of evidence used by prosecuting attorneys to show intoxication include drivers' statements, witness and police observations of behavior and driving patterns, and circumstantial evidence. An example of possibly relevant circumstantial evidence is that a defendant, before driving, spent the afternoon at a party where drinking games were played. Police also gather important evidence of intoxication by administering standard field sobriety tests (FSTs) at the scenes of traffic stops. Common field sobriety tests include the following: ~Finger-to-nose test ~One-legged stand ~Walk-and-turn test ~Horizontal-gaze-nystagmus test ~Picking up coins ~Counting backwards ~Reciting the alphabet ~Throwing and/or catching a ball __________________________________________________________________________________________________________________________________ Answer: Theft and Robbery Robbery is a type of theft distinguished by the use of force, intimidation, and/or violence to seize someone else's property. Armed robbery refers to a specific type of robbery that involves the use of a weapon, a replica of a weapon, or the pretense of having a weapon. An armed robbery charge is one of the most serious charges an individual can face and may be filed in conjunction with charges of illegal possession and/or assault with a deadly weapon. Burglary Under Texas law, burglary is defined as unlawfully entering a premise without the effective consent of the owner, and with the intent to commit a felony or theft. Burglary is broken down into two categories: burglary of building and burglary of a habitation. The charges for burglary of a habitation are more serious. There are other aggravating factors for burglary crimes as well, including possession of a weapon. __________________________________________________________________________________________________________________________________ Answer: Fraud Fraud is a broad term that refers to a number of offenses ranging from money laundering and identity theft to securities fraud and more. In essence, acts of fraud involve any false statements, actions, or deceptive activity that is knowingly imposed on one party by another to misrepresent or conceal the truth. Laws against fraud vary from state to state, and the penalties for such offenses can be severe. There are many types of fraud offenses, several of which fall under the white-collar category that an individual could potentially be charged with. They include the following: ~Insurance fraud ~Investment fraud ~Credit card fraud ~Tax fraud ~Bank/bankruptcy fraud ~Health care fraud ~Cell phone fraud ~Forgery ~Mail fraud ~Wire fraud ~Racketeering (RICO) An individual or entity convicted of a fraud crime may face harsh consequences such as imprisonment, parole or probation, loss of certain rights, significant fines, restitution paid to victims, and more. The severity of the penalties depends on various circumstances surrounding the case. Embezzlement Embezzlement is a white-collar crime that most commonly occurs in corporate settings. More specifically, embezzlement refers to the theft of money or property by an individual who was entrusted to handle assets owned by another party. Because those who are charged with embezzlement had access to or, in many cases, are expected to handle the assets they are accused of embezzling, the crime is rarely clear-cut. Simple bookkeeping errors or oversights have the potential to lead to wrongful embezzlement charges. Perjury Perjury is the act of intentionally making false statements in sworn written testimony or under oath in a court of law. For an act of lying to be considered perjury, it also has to involve a misstatement that would affect the outcome of the case. For example, a person who lies about his exercise habits would only be guilty of perjury if this lie was a pivotal piece of information in determining a defendant's guilt or innocence. __________________________________________________________________________________________________________________________________ Answer: After your driver’s license has been suspended due to a DWI conviction, you can receive a special, restricted license called an Occupational Driver’s License, or ODL. This allows you to operate a motor vehicle in certain instances. Depending on your circumstances, prior criminal record, and other factors, you could be eligible to receive an ODL to let you drive to and from work, an educational institution, a medical institution, or certain other locations. In order to obtain an ODL, you must file a petition. This must be approved by a judge, and once signed, the petition will result in an order allowing you to drive to certain places. This type of license has many restrictions, including being allowed to drive only twelve hours each day as a maximum. You will not be allowed to operate a commercial vehicle with an Occupational Driver’s License, and you must hold SR-22 insurance in order to qualify for this type of restricted driving privilege. __________________________________________________________________________________________________________________________________ Answer: Once a defendant has been convicted of a crime, whether it is a misdemeanor or felony, they have the legal right to appeal their case to a higher court if they feel there were important legal errors made throughout the conviction or sentencing proceedings. Appeals are only one of several options a defendant can take post-conviction. __________________________________________________________________________________________________________________________________ Answer: Probation violations are serious offenses that often result in harsh penalties such as community service, heavy fines, extended jail time, and more. The consequences associated with a probation violation usually depend on a number of factors, including prior convictions. Consequences of a Conviction If you are convicted on charges of violation of probation, you may face the following consequences: ~Revocation of probation ~Imprisonment or jail time ~Hefty fines ~Community service ~Rehabilitation program ~and more __________________________________________________________________________________________________________________________________ Answer: An expunction is the process of removing arrests and convictions from your public record and only allowing law enforcement agencies access to continue to view them. Without an expunction, your criminal history can be viewed by schools, employers, and housing authorities, to name a few. Having your record expunged will allow you to start with a clean slate. Under Texas state law, you may be eligible for an expunction under the following circumstances: ~If you have been arrested, but not charged ~If you have been found “not guilty” ~If you have had your criminal case dismissed ~If you have had your case dismissed after serving deferred adjudication probation for a Class C misdemeanor ~Misdemeanor or felony charge where you were acquitted or found “not guilty” by a judge or jury ~Even if you obtained a final conviction for one charge, other aspects of your criminal record, such as your arrest record, may expunged when the conviction involves a lesser offense. __________________________________________________________________________________________________________________________________ Answer: An order of non-disclosure seals a record and prevents anyone other than law enforcement from viewing the record without a court order. An order of non-disclosure is available to those who received deferred adjudication probation and successfully completed the probation. For felonies, there is a five-year waiting period from the date that you completed the probation. For some misdemeanors, there is a two-year waiting period, and for other misdemeanors there is no waiting period.

What is the difference between a misdemeanor and a felony?

What should a defendant do if he/she has been arrested?

When should I talk to a criminal lawyer?

What is a sexual offense?

Who should I hire?

What is a violence-related crime?

What is a drug-related crime?

What is an alcohol-related crime?

What is a property-related crime?

What is a white-collar crime?

What is an Occupational Driver's License?

Do I have the right to appeal my case?

I violated my probation. Will I go to jail?

What is an expunction?

What is a non-disclosure order?

What is the difference between a misdemeanor and a felony?

What should a defendant do if he/she has been arrested?

When should I talk to a criminal lawyer?

Who should I hire?

What is a sexual offense?

What is a violence-related crime?

What is a drug-related crime?

What is an alcohol-related crime?

What is a property-related crime?

What is a white-collar crime?

What is an Occupational Driver's License?

Do I have the right to appeal my case?

I violated my probation. Will I go to jail?

What is an expunction?

What is a non-disclosure order?

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