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Tag Archive for appeals

Facing Criminal Charges for Homicide? Austin Homicide Lawyer Charles Johnson is the Right Lawyer for You

Houston Homicide Lawyer Charles Johnson

Are you currently in a situation where you are facing criminal charges for Murder? Austin Criminal Homicide Lawyer Charles Johnson represents clients charged with Homicide crimes throughout all of Texas. The Charles Johnson Law Firm can provide legal counsel at virtually any stage of your case, even if formal charges have not yet been filed against you. Currently, Texas has six types of Criminal Homicide charges:

Homicide is the act of killing another person, either intentionally or unintentionally. It is perhaps the most serious crime you could be accused of, and the potential penalties you could face if convicted are equally serious. Your lawyer must be well-versed in Texas and Federal Homicide laws to successfully represent you. If you or someone you love has been charged with any type of Criminal Homicide, you must take these charges very seriously and seek the legal advice of an experienced and knowledgeable Austin Criminal Defense Attorney right away. The Charles Johnson Law Firm will examine all the details of your case and will challenge the evidence against you. Austin Lawyer Charles Johnson has helped his clients either prove their innocence, or obtain a reduction in the charges against them. Whether you or guilty or not, you deserve to have an experienced attorney on your side who will work aggressively, to protect you and your rights. Contact Criminal Defense Lawyer Charles Johnson anytime night or day directly at 512-832-1200. He is always available to discuss your case.

Texas Penal Code Chapter 19:  Four Types Of Criminal Homicide

TPC section 19.01 states that there are four types of Criminal Homicide.  They are Murder,Capital Murder, Manslaughter and Criminally Negligent Homicide.

Murder

Under TPC section 19.02 there are three basic ways to commit murder:

  1. intentionally or knowingly causes the death of an individual;
  2. intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual;  or
  3. commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission
    or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.

Murder is usually a felony of the first degree, the possible punishment for which is imprisonment in the institutional division for life or for any term of not more than 99 years or less than 5 years and/or by a fine not to exceed $10,000.  The only exception to this that the crime is a felony of the second degree if the requirements of TPC sec. 19.02 (d) are satisfied:

At the punishment stage of a trial, the defendant may raise the issue as to
whether he caused the death under the immediate influence of sudden passion arising
from an adequate cause.  If the defendant proves the issue in the affirmative by a
preponderance of the evidence, the offense is a felony of the second degree.

During the punishment phase of the trial, a defendant may argue that he caused the death while under the immediate influence of sudden passion arising from an adequate cause. “Sudden passion” is “passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation.

Adequate cause” is a “cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection.” Sudden passion is a mitigating circumstance that, if found by the jury to have been proven by a preponderance of the evidence, reduces the offense from a first degree felony to a second degree felony.

Thus, before defendants are allowed to have the judge or jury consider sudden passion, defendants must prove:

  1. that there was a adequate (legally recognized) provocation for the emotion or passion;
  2. an emotion or passion such as terror, anger, rage, fear or resentment existed;
  3. that the homicide occurred while the passion or emotion still existed;
  4. that the homicide occurred before there was a reasonable opportunity for the passion or emotion to cool (dissipate);  and,
  5. that there was a causal connection between the provocation, the passion, and the homicide.

A second degree felony is punishable by imprisonment for not more than 20 years nor less than 2 years, and/or a fine not to exceed $10,000.  This is where the old offense of “voluntary manslaughter” ended up after amendments to the TPC effective in 1994.  Thus, there is currently no offense of voluntary manslaughter in Texas.

Capital Murder

A capital murder is a capital felony. The Texas Penal Code specifically defines Capital Murder(and, thus, the possibility of the death penalty as a punishment) as murder which involves one or more of the elements listed below:

  1. the person murders a peace officer or fireman who is acting in the lawful discharge of an official duty and who the person knows is a peace officer or fireman;
  2. the person intentionally commits the murder in the course of committing or attempting to commit kidnapping, burglary, robbery, aggravated sexual assault, arson, obstruction or
    retaliation, or terroristic threat,
  3. the person commits the murder for remuneration or the promise of remuneration or employs another to commit the murder for remuneration or the promise of remuneration;
  4. the person commits the murder while escaping or attempting to escape from a penal institution;
  5. the person, while incarcerated in a penal institution, murders another:
    1. who is employed in the operation of the penal institution;  or
    2. with the intent to establish, maintain, or participate in a combination or in the profits of a combination;
  6. the person:
    1. while incarcerated for an offense under this section or Sec.19.02, murders another;  or
    2. while serving a sentence of life imprisonment or a term of 99 years for an offense under  Sec. 20.04, 22.021, or 29.03, murders another;
  7. the person murders more than one person:
    1. during the same criminal transaction;  or
    2. during different criminal transactions but the murders are committed pursuant to the same scheme or course of conduct;
  8. the person murders an individual under six years of age;  or
  9. the person murders another person in retaliation for or on account of the service or status of the other person as a judge or justice of the supreme court, the court of criminal appeals, a court of appeals, a district court, a criminal district court, a constitutional county court, a statutory county court, a justice court, or a municipal court.

A capital felony is punishable by death or life imprisonment without parole.  If the prosecution is not seeking the death penalty, life without parole is the mandatory sentence.  Prior to 2005, capital felony life imprisonment was life with the possibility of parole after 40 years.

Under current state law, the crimes of Capital Murder and Capital Sabotage (see below) or a second conviction for the aggravated sexual assault of someone under 14 is eligible for the death penalty.

Note: The Texas Penal Code allows for the death penalty to be assessed for “aggravated sexual assault of child committed by someone previously convicted of aggravated sexual assault of child”. The statute remains part of the Penal Code; however, the Supreme Court of the United State’s decision in Kennedy v. Louisiana which outlawed the death penalty for any crime not involving murder nullifies its effect.

The Texas Penal Code also allows a person can be convicted of any felony, including capital murder, “as a party” to the offense. “As a party” means that the person did not personally commit the elements of the crime, but is otherwise responsible for the conduct of the actual perpetrator as defined by law; which includes:

  • soliciting for the act,
  • encouraging its commission,
  • aiding the commission of the offense,
  • participating in a conspiracy to commit any felony where one of the conspirators commits the crime of capital murder

The felony involved does not have to be capital murder; if a person is proven to be a party to a felony offense and a murder is committed, the person can be charged with and convicted of capital murder, and thus eligible for the death penalty.
As in any other state, people who are under 18 at the time of commission of the capital crime or mentally retarded are precluded from being executed by the Constitution of the United States.

Manslaughter

Manslaughter  (TPC sec. 19.04) is recklessly causing the death of an individual.  Manslaughter is a felony of the second degree, which is punishable by imprisonment for not more than 20 years nor less than 2 years, and/or a fine not to exceed $10,000.

Texas does not officially use the term “involuntary manslaughter” or “voluntary manslaughter” which can sometimes be a little bit confusing. Many states do make the distinction between voluntary and involuntary manslaughter. Instead, Texas combines involuntary and voluntary manslaughter together and it is known as just “manslaughter.”

To convict a defendant of manslaughter, prosecutors must be able to prove beyond a reasonable doubt that the defendant recklessly caused the death of another individual. There is no requirement of premeditation to this crime and no requirement for there to be intent or knowledge on the part of the defendant. The only requirement is that the defendant’s conduct was reckless.

Although manslaughter is defined broadly in Texas, there are specific types of manslaughter that are treated separately. For example, intoxication manslaughter is one, and vehicular manslaughter is another. Intoxication manslaughter deals with the defendant recklessly causing the death of another while intoxicated. Cases involving driving while intoxicated would probably be prosecuted under TPC sec. 49.08, Intoxication Manslaughter (see below), rather than under this section. Vehicular manslaughter deals with the defendant recklessly causing the death of another while driving a vehicle or vessel.

Criminally Negligent Homicide

Criminally negligent homicide (TPC sec. 19.05) is causing the death of an individual by criminal negligence.  It is a state jail felony under which in general, a person can be confined in a state jail for not more than two years nor less than 180 days.  In addition, a fine of not more than $10,000 may be assessed.

Criminally Negligent Homicide differs from Manslaughter only in terms of the culpability or mens rea.  Criminally negligent homicide involves criminal negligence.  Manslaughter involves recklessness.  Thus, Manslaughter involves conscious risk creation (the actor is aware of the risk surrounding his conduct or the results thereof, but consciously disregards that awareness).  Criminally negligent homicide involves inattentive risk creation.  The actor ought to have been aware of the riskiness of his or her conduct but failed to perceive the risk.

Recklessness and criminal negligence are more serious forms of culpability than the negligence that can result in civil liability. Unlike civil  or ordinary negligence, recklessness requires somesubjective awareness of the risk.  Ordinary negligence is a totally objective standard.  Criminal negligence requires a “gross” deviation from the standard of care a reasonable or ordinary person would have exercised under the same circumstances.  Criminal negligence is roughly equivalent to “gross negligence” which is a more serious form of culpability than ordinary negligence.  Ordinary negligence can be made out by showing any deviation from the standard of care that a reasonable person would exercise.

Texas Penal Code Section 49.08 Intoxication Manslaughter

The final type of criminal homicide found in Texas Code is found in TPC ch. 49, “Intoxication and Alcoholic Beverage Offenses.”  A person is guilty of intoxication manslaughter if the person operates a motor vehicle in a public place, operates an aircraft, watercraft or an amusement ride, or assembles a mobile amusement ride and “  is intoxicated and by reason of that intoxication causes the death of another by accident or mistake.”

“Intoxicated is defined as having a blood alcohol content of 0.08 or more or

not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body . . .

This offense is a felony of the second degree.  A second degree felony is punishable by imprisonment for not more than 20 years nor less than 2 years, and/or a fine not to exceed $10,000

Note that this is a strict liability offense. Guilt attaches even if the death is caused by accident or mistake.  Many observers are critical of strict liability offenses because they arguably punish conduct which is not blameworthy.  Supporters of strict liability offenses counter that such offenses are usually fine-only offenses.  This is clearly not the case for sec. 49.08 for which a person could be imprisoned for up to 20 years.

Best Austin Criminal Defense LawyerSection 49.08 does not apply to injury or death of an unborn child if the offense against the unborn child is committed by the mother of the unborn child.  Thus, if a pregnant woman is driving while intoxicated and has an accident which kills her fetus, it is not a crime.

Texas Government Code – Section 557.012 Capital Sabotage

  1. A person commits an offense if the person commits an offense under Section 557.011(a) and the sabotage or attempted sabotage causes the death of an individual.
  2. An offense under this section is punishable by:
    1. death; or
    2. confinement in the institutional division of the Texas Department of Criminal Justice for:
      1. life; or
      2. a term of not less than two years.
  3. If conduct constituting an offense under this section also constitutes an offense under other law, the actor may be prosecuted under both sections.

Possible Defenses for Murder Charges

Defenses to first degree murder charges fall into two major categories: claims that the defendant did not commit the killing in question, and admission that the defendant committed the killing, but did not commit first degree murder.

Defendants admitting to having killed the victim can assert defenses that they were justified in doing so (in self defense, for example), or that they were somehow incapacitated and thus not legally liable. These defenses require the defendant to put forth proof to support his or her defense.

First degree murder defendants also may simply argue that the prosecution has not proved all elements of a first degree murder charge typically that the defendant killed willfully, deliberately and with premeditation. Though the defendant may support such an argument with evidence, he or she is not required to do so, as proof of all elements of the crime falls on the shoulders of the prosecution.

As with statutes defining crimes, the defenses recognized for a specific crime can vary by state. Furthermore, which defenses a criminal defendant may have depends on the particular facts of the case in question. For guidance, defendants should consult an attorney well versed in his or her state’s criminal laws.

Mistaken Identity

In first degree murder cases, as well as other homicide crimes, defendants often argue mistaken identity i.e., that the prosecution has charged the wrong person with the killing. A defendant arguing mistaken identity often asserts an alibi if possible, which he or she tries to support with evidence of being somewhere else at the time of the killing. Other arguments in a mistaken identity defense include challenges to evidence placing the defendant at the scene of the crime. This can include challenges to witness identification as well as challenges to forensic evidence. A mistaken identity defense may also point to evidence implicating another possible suspect, but courts do not require defendants to do so.

Justified Homicide

Not all homicides are crimes, let alone first degree murders. The most common legal justification for a killing is self-defense or the defense of others.

Self-Defense

To succeed, a defendant arguing self defense must show that the killing resulted from a reasonable use of force to resist a reasonable fear of death or bodily harm. The defendant cannot have instigated the threatening situation. The degree of force used in self-defense must be proportional to the threat perceived, and the threat perceived must be something that would place a reasonable person in fear of death or great bodily harm. Mere words or insults do not suffice.

The defendant’s reaction to the threat cannot take place after the threat of death or bodily harm has passed. Many states require that the defendant attempt to retreat or avoid danger if possible before resorting to the use of deadly force.

For example, if someone incapacitates a mugger with pepper spray, he or she may need to attempt to flee to safety instead of taking out a pistol and shooting the mugger. States differ in the degree to which they require an attempt to retreat if the threat they face occurs in the defender’s home.

Defense of Others

The reasonable and proportional defense of others also justifies some killings. The same requirements as self-defense typically apply: the use of force must be timely and proportional to the threat faced, and the perceived threat of death or bodily harm must be reasonable.

Exercise of Duty

Certain killings by law enforcement and other public officers qualify as justified homicides. If an officer kills someone in the exercise of duty and without an unlawful intent, recklessness or negligence, that killing generally does not constitute murder, let alone first degree murder.

Accident or Misfortune

Killings committed by accident in the course of lawful activities do not constitute murder. Some such killings may result in liability for manslaughter, but unless an accidental homicide takes place during the commission of a crime or as a result of other criminal intentions, they would not be covered by first degree or second degree murder statutes. In certain cases, such as parental discipline of children which results in even accidental death, the use of physical force beyond excepted norms can push the killing into murder and possibly, depending on state law, first degree murder.

Insanity Defense

Most states recognize an insanity defense to charges of first degree murder. Even states which allow the defense, however, treat it differently and often apply different tests. Most states define insanity, for purposes of determining criminal liability, as cognitively being unable to appreciate the quality of the act being committed, or unable to realize that the act is wrong. Some states also recognize a volitional aspect to “insanity” giving some defendants with disorders affecting impulse control access to the insanity defense.

Hire the Best Criminal Homicide Lawyers: The Charles Johnson Law Firm

Murder charges are of course the most serious of all charges and the most seriously pursued by the State Attorney’s Office or Federal Prosecutors. A person charged with homicide (murder) in Texas risks significant jail time and most convictions will result in never being released from custody. In some cases, they face being sentenced to death. Texas has become infamous in the country for the number of murders.

However not all deaths are criminal, and there are several powerful homicide defenses provided under Texas Law. If you or someone you know is charged with some form of a Homicide charge, then you need the best possible attorney. You are entitled to the best legal defense possible. Austin Criminal Defense Lawyer Charles Johnson can deliver that defense for you.Austin Criminal Homicide Lawyer Charles Johnson is available to discuss your case whenever you need him. Contact him directly at 512-832-1200. His Law Office is headquartered in Austin, with offices conveniently located in Dallas, Austin and San Antonio.

 

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Everything You Need To Know About the Appeals Process in Texas

What is the definition of an appeal?

An appeal is a petition to a higher court by the losing party in a court action to overturn a lesser court’s judgment. The basis of an appeal has to be a reversible oversight in the application of the law at the trial court level (i.e., depending on the facts, the court plainly misapplied the law).

In defense cases, a great appeal can target the conviction itself or perhaps the sentencing portion associated with the decision without any regard to the fundamental conviction. For instance, if the defendant is properly convicted of manslaughter but a judge sentences the defendant to a prison term which is beyond the limit of the law, the defendant will undoubtedly appeal the prison term while leaving the actual conviction itself intact.

An appeal can be filed only after a final judgment or order has been reached by the trial court. This is quite simply for reasons of efficiency, so that the court system isn’t bogged down by delays and trials aren’t constantly put on hold while awaiting appeals associated with a judge’s every ruling.

At the conclusion of a trial, the losing party may also construct direct appeals (e.g., motion for a new trial, motion for directed verdict) to the presiding judge to immediately overrule the jury’s judgement, nevertheless these are rarely victorious.

Does an appeal constitute a new trial?

No. In an appeal there won’t be any new issues provided or witnesses designated to testify. The appellate court will only assess the trial’s transcript and evidence offered during the trial to figure out whether there were errors with regard to either procedure or application of the law. Even if there were errors, when they are considered minor – legally designated “harmless error” – the judgment won’t be overturned or a new trial granted.

Can any judgment be appealed?

The short response is no, there isn’t any absolute right to an appeal. Every state has laws which outline the kinds of cases which appellate courts may review. There should be an error of law for an appellate court to review a case. The reality that the losing party did not like the decision is not really enough to sustain an appeal.

That being said, even in administrative courts or lower level courts, if anyone’s constitutional protection under the law have been infringed upon, some may file suit to enforce their privileges and/or to revisit the original case.

What is the definition of the appeals process?

In Texas court proceedings, the appellant or petitioner (the party appealing the judgement) should file a notice of appeal within 30 days of the decision. In federal court, the deadline is 60 days. The filing of the notice of appeal begins the clock running on the appeals process and then there are prescribed deadlines from this point on. The petitioner submits a legal brief detailing the alleged discrepancies of law made by the trial court, and the respondent or appellee (the party that prevailed at the trial) creates a reply.

Once the appellate court acquires both petitioner and respondent briefs, it will assess the arguments and make a determination of whether: a) there were errors of law made by the trial court, and additionally b) if perhaps the mistakes rise to the level of “reversible error” (highly serious errors). As mentioned above, benign discrepancies are likely to be disregarded by the appellate court.

There might not be oral arguments given by petitioner and respondent. If the court chooses to hear oral arguments, the petitioner will present their arguments and additionally field inquiries from the judge(s) and after that the respondent will do the same. In the majority of appeals, this question and answer format may last 10-15 minutes per side.

Whether the appeals court listens to oral arguments or issues a verdict established exclusively on the written briefs, the court will either: 1) affirm the decision; 2) demand a new trial; 3) change the ruling in some way; 4) give consideration to new facts or evidence (seldomly); or 5) in incredibly infrequent cases, may throw out the case completely.

What is the likelihood of a successful appeal?

The number of winning appeals is minimal. Appellate courts offer the trial court great freedom in conducting trials. The law doesn’t necessarily guarantee perfect trials, subsequently appeals courts can only overturn verdicts which contain clear, serious errors of law.

Because of the flexibility appeals courts give trial decisions, petitioners bear a far greater responsibility in proving that errors of law happen to be considerable rather than harmless. If an appellate court can discover any satisfactory argument that the oversight could not have changed the verdict (and is therefore “harmless”), it will refuse to overturn the verdict.

There will most certainly be, certainly, a number of cases where significant errors were made and appeals courts will overturn those verdicts. Particularly serious are charges that the trial court refused the law secured by the constitution, that include due process and equal protection rights.

I lost my trial due to the fact that my attorney made stupid mistakes, can’t I depend on an appeal to correct them?

Don’t rely on appeals to make up for any real or perceived deficiencies at trial. You should put all of your energy into the trial itself, which includes finding the proper lawyer to attempt the case. Successfully appealing a verdict simply because you had a deficient attorney is a difficult proposition. You can’t appeal because you basically had a poor lawyer.

You can appeal on the basis that your attorney was so incompetent that you had been denied your 6th Amendment right to a fair trial (known legally as an “ineffective assistance of counsel” appeal). This occurs nearly exclusively in criminal defense circumstances and the standard for the appeal is really high – courts are incredibly deferential to the competency of attorneys and maintain a strong presumption that the lawyer’s assistance was within professional standards. To put it in perspective, there have been situations where an attorney has fallen asleep during a trial, yet the verdict was not overturned nor the case retried.

Many cases aren’t eligible for appeal since the trial attorney did not object to a ruling during the trial, and therefore didn’t “preserve” that issue for appeal. For example, a written statement from a witness accusing a defendant of robbery is entered into evidence, but the witness does not testify at trial. The defense attorney does not object and the defendant is convicted based solely on the written statement. The Confrontation Clause of the 6th Amendment guarantees a defendant the right to face his accuser, a right which, if infringed, could form the basis for an appeal.

Because the attorney neglected to object at trial to the admission of a written statement rather than live testimony, however, the defendant is regarded to have waived this priviledge and an appeal will possibly not be allowed on that issue.

The example sounds absurd; an attorney waives your constitutional priviledge through ineptitude, yet your appeal on the basis of inadequate assistance of counsel fails – but it happens frequently. An appeals court may reason that calling the witness on the stand wouldn’t have had any beneficial effect for the defendant and therefore the decision not to object may possibly be considered a trial strategy. That’s the type of deferential latitude attorneys get in ineffective assistance of counsel appeals as well as the reason why it is important to select your attorney wisely at the beginning of the process and stay involved during each aspect of the trial.

What is a writ?

A writ is a directive from a higher court instructing a lower court or government official to take a specified action in accordance with the law. For instance, if a lower court decides to try a case that is outside of its jurisdiction, one or more of the legal representatives concerned may object and seek a writ of mandamus (writ of mandate) from an appeals court ordering the lower court to transfer the case to another jurisdiction.

How do writs and appeals differ?

Writs are extraordinary court orders and solely issued in cases where a moving party (the one seeking the writ) has no other available alternatives. In the case of the writ of mandamus from above, the moving party had to act quickly simply because the lower court improperly took the case. If the moving party had simply objected at trial and waited to appeal, a remarkable waste of time and money would have occured – and all for nada if the trial court improperly took the case.

Generally, superior courts won’t review choices of a lower court until a final verdict is delivered, for the formerly discussed reasons of efficiency and leeway given to lower courts. Unlike appeals, which need a final verdict, writs are immediate orders and extraordinary in that the ordinary course of a trial is disrupted, potentially causing disorder and delay.

Courts do not necessarily take such events lightly and superior courts do not issue writs often. A court will only issue a writ when a lower court wrongly decided an issue, permanent harm would happen to a party, and there are no other options.

Courts could also issue writs, such as writs of attachment and execution, in order to force compliance with a court order by an unwilling party.

What’s the definition of a writ of habeas corpus?

A writ of habeas corpus is a judicial mandate to a prison official ordering that an inmate be produced to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he or she should be released from custody.

Literally translated, a writ of habeas corpus is a court order to “produce the body,” and is generally filed by those in prison, though they are also filed by those who have been held in contempt of court by a judge and either imprisoned or threatened with imprisonment. Also known as “the Great Writ,” habeas petitions are ordinarily referred to as the hallmark of the United States justice system. Unlike other countries where the powers that be may throw someone in jail and keep them there indefinitely without filing charges or conducting a hearing, habeas corpus serves as a check on the government and offers prisoners a legal avenue to protest their imprisonment.

A habeas corpus petition can be filed in state or federal court. Before filing in federal court, however, all state options must be exhausted first.

Everyone has the right to challenge illegal imprisonment or inhuman prison conditions. Like all writs, however, courts will insist on clear and convincing evidence in support of a writ and do not issue them frequently.

Austin Appeals Defense: The Charles Johnson Law Firm

Dealing with the appeals process is tough and time consuming. An experienced attorney from the Charles Johnson Law Firm in Austin, Texas can help you plan your next move. Contact us today for a free initial consultation.

We can be reached 24 hours a day, 7 days a week.
Call us at 512-832-1200 or toll free at 877-308-0100.
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