Areas of Practice

DWI | DRUG CASES | ASSAULT | CRIMINAL HOMICIDE | MURDER | CAPITAL MURDER MANSLAUGHTER | CRIMINALLY NEGLIGENT HOMICIDE | SELF DEFENSE | PROBATION VIOLATION PROSTITUTION | EXPUNCTIONS

ASSAULT

There is a great campaign in this country to fight family violence. The federal government grants enormous amounts of money to local and county agencies to combat this great new war.

While the aim is good (reduce family violence) the method is wrong. Arguments and domestic disturbances between loved ones is nothing new. Often times these arguments become physical.

Although we can all agree that people who assault their loved ones should be counseled to channel that energy in nonviolent ways and taught to communicate with their significant other, The District Attorneys office will wage total war against you if you are charged with assault family violence.

The District Attorney’s office is not interested if your spouse or loved one wants to drop charges.
In fact, many people are under the misconception that a person has to file charges against another person, which is simply untrue. If you are charged with a crime your charges will be style The State of Texas vs. [insert your name here]. Only the District Attorney’s office has the discretion to dismiss any charges against you.

You can count on the fact that the District Attorney’s office will attempt to prosecute you to the fullest extent of the law even without the cooperation of your spouse or loved one. There are, however, ways to fight back. Mr. Smith has represented many citizens accused of assault-family violence with great success.

Finally, it is important to vigorously defend yourself if you are accused of family violence-assault. Pleading guilty or no contest to such charges can have huge implications down the road. For instance, a second family violence case against you may be filed on you as a felony even if the underlying first assault was that of a class "C" (punishable by a fine only).

In other words, if you are thinking "hey, no big deal, I’ll just take a year probation on this little misdemeanor", you might think twice. The next time you have an argument with your spouse or loved one can turn into a felony nightmare.

In addition, a family violence case may affect your right to own or possess handguns.

Without question, if you are charged with such a case it is imperative that you seek qualified representation immediately.

CAPITAL MURDER

Under Texas law a person commits Capitol Murder if the person commits murder and:
(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 under Section 22.07(a)(1), (3),(4), (5), or (6);
(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:
(A) who is employed in the operation of the penal institution; or
(B) with the intent to establish, maintain, or participate in a combination or in the profits of a combination;
(6) the person:
(A) while incarcerated for an offense under this section or Section 19.02, murders another; or
(B) while serving a sentence of life imprisonment or a term of 99 years for an offense under Section 20.04, 22.021, or 29.03, murders another;
(7) the person murders more than one person:
(A) during the same criminal transaction; or
(B) 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 10 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.

CRIMINAL HOMICIDE

The statute for Criminal Homicide is contained in section 19.01 of the Texas Penal Code. Under Texas law a person commits criminal homicide if he "intentionally, knowingly, or recklessly, or with criminal negligence causes the death of an individual."

Criminal Homicide includes Murder, Capitol Murder, Manslaughter, or Criminally Negligent Homicide. I do not have to tell you that if you are charged with any type of Criminal Homicide you need competent legal representation fast. I have tried many homicide cases achieving acquittals for clients charged with Murder and Capitol Murder. Call me today and let my experience work for you!

CRIMINALLY NEGLIGENT HOMICIDE

A person commits Criminally Negligent Homicide if he causes the death of an individual by criminal negligence.

Under Texas law a person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor ’s standpoint.

Criminally Negligent Homicide is a State Jail Felony punishable by 6 months to 2 years in a State Jail Facility.

DRUG CASES

If you are charged with a narcotics case your lawyer should carefully examine the constitutional issues involved in your case. Many narcotics cases involve complex search and seizure issues which may implicate either or both State and Federal Law. It is also important that you understand the legal definition of possession under Texas Law if you are charged with possession of narcotics (or other contraband for that matter).

Most people ordinarily think of possession as those things you have on your immediate person. However, possession under Texas Law is defined much broader than those things in your immediate possession. Under Texas Law possession means to exercise care, custody, control or management over a thing. The law also requires that you knowingly and intentionally possess (exercise care, custody, control, or management) over the thing that you are accused of possessing. The State is required to prove these things beyond a reasonable doubt if you plead not guilty and elect to have a trial.

Some police officers fail to understand this rather simple concept of possession and will charge everybody in the immediate vicinity of the illegal contraband. For instance, if marijuana is found in a vehicle you are riding in, the police are likely to arrest and charge both the driver and any passengers of the vehicle for possession of marijuana.

Although more than one person can possess the same thing (this is called joint possession) merely being present in the same vehicle where the marijuana was found does not make you guilty of possession of marijuana. If you remember the principals of law discussed above this makes sense. If you are either the driver or passenger of a vehicle, is it fair that your are charged with possession of marijuana just because a friend or acquaintance of yours decided to bring marijuana along and you did nothing to exercise care custody, control, or management over the marijuana? Of course that would not be fair, and while a police officer may fail to recognize this, the law is on your side.

In another example I once had a case where a husband and wife were both charged with possession of marijuana after a police officer responded to an alarm that was activated in their home while they were at work. The police officer went in the home through an unlocked back door. While no burglary had taken place in the home the police officer found marijuana inside the home and charged both husband and wife with possession of marijuana. The wife was found not guilty at trial and the case against the husband was dismissed.

In that case, the State could only prove that marijuana was found in a home and that the husband and wife were the registered owners. The police officer under my cross examination had to admit he could not say whether they had children that lived in the home, whether anybody else lived in the home, or whether someone such as a friend or relative had left the marijuana in the home without the husband and wife's knowledge.

If you have a drug charge let my vast experience as a former Dallas County Drug Court Prosecutor work for you.

DWI

What is DWI?
DWI means to drive or operate a motor vehicle on a public street or highway while not having the normal use of your mental or physical faculties by reason of the introduction of alcohol (or some other drug, or volatile chemical) into the body or having an alcohol concentration of .08 or greater.
It is important to remember that DWI is unlike most other crimes because whether or not you are intoxicated is opinion. The opinion about whether you are intoxicated or not is usually a police officer who knows nothing about you. This officer will not know how tired you are, how you react to tests under stressful conditions, or whether there are medical reasons why you did not perform perfectly on sobriety tests administered to you. Opinions of police officers vary just as opinions of ordinary citizens.

What can I expect a qualified attorney to do on my case?

A qualified attorney should carefully examine the evidence in your case including the videotape (most DWI suspects are videotaped at roadside or at the station or both) so that you can make an intelligent decision about whether or not to take your case to trial. There are a myriad of issues in DWI cases which only a competent lawyer knowledgeable about DWI law and issues should handle.

What can I expect the issues to be in my DWI trial?

Generally speaking, the issue in most DWI trials is whether or not the State can prove beyond a reasonable doubt that you were intoxicated? In some cases, such as accident cases, there may be an issue as to whether or not the State can prove beyond a reasonable doubt that you were driving. Your lawyer, who should have a thorough working knowledge about standard field sobriety tests and how they are administered, should call into question the officers opinion that you were intoxicated.

How does the State attempt to prove that I was intoxicated?
The State will attempt to prove through the testimony of a police officer that you did not have the normal use of your mental and physical faculties and the reason is from the introduction of alcohol (or a drug, volatile chemical or combination there of) into the body. If you took a breath or blood test the State will also try to prove that you had an alcohol concentration of 0.08 or more. In the case of proving that you did not have the normal use of your mental and physical faculties, the State will call a police officer as a witness who will testify that it was his or her opinion that you were intoxicated.
The officer will usually testify that the basis of his or her opinion was based on your performance on certain field sobriety tests administered to you at the scene.

What are standard field sobriety tests?

There are three (3) tests which the National Highway Traffic Safety Administration has certified as standard field sobriety tests.

1. HGN HGN stands for Horizontal Gaze Nystagmous. This is commonly referred to as the eye test by the ordinary citizen. The officer in that test is looking for an involuntary jerking or twitching of the eyeball. The theory is that the consumption of alcohol causes this involuntary jerking of the eyeball. Many officers trained to administer this test rely heavily on it. Officers attempt to portray this test as an objective test when in reality it is a subjective test.
The so called "jerking of the eyeball" can be very subtle and, just like anything else, subject to interpretation. Furthermore, there are many other things that cause the eyeball to jerk or twitch. The consumption of everyday items such as caffine or nicotine can cause this condition. The physiology of the human eye is very complex and physicians train for years to specialize in the eye. Police officers take a course in HGN which takes a few hours to complete and in which no police officer ever fails. These officers are trained by other police officers and not by doctors or any other eye specialist.

2. The Walk and Turn Test the officer administering the walk and turn test to you is looking for a number of "clues" for intoxication from this test.
The officer is looking for the following ten clues from this test:
1. Subject could NOT balance while listening to the instructions.
2. Subject started the test BEFORE being told to start.
3. Subject stops while walking to steady self.
4. Subject used arms to balance.
5. Subject did NOT touch heel to toe while performing the test.
6. Subject took incorrect number of steps.
7. Subject lost balance while turning or turned improperly.
8. Subject stepped off the line while walking.
9. Subject could NOT perform lest due to level of intoxication.
10. Subject REFUSED to perform the test.

An experienced DWI Attorney can point out the inherent unfairness in this test. For instance, failing to put the heel to the toe counts as a complete fail for that one clue under the ten item checklist. Think about how unfair that is! Any reasonable person can see that one who fails to put the heel to the toe once should not be scored the same as one who fails to do so on every step. Another example is item # 1 where you start the test before being instructed to do so. The officer will usually tell you to stand with the heel of your right or left foot touching the toe of the other foot with your hands at your side. The officer will tell you not to start the test until instructed to do so and then demonstrate the test to you. Sometimes the citizen will take a practice go at it while the officer is demonstrating the test. Well, in your mind are you really starting the test or making a practice run? It does not matter to the officer, you have failed that item on the check list. Any reasonable person can see that it is not fair to penalize somebody for something you did not think you would be penalized for, such as taking a practice run at a test that you have probably never attempted in your life. Finally, there is nothing normal about standing or walking in this position even under the best of circumstances. It is actually abnormal for people to stand with one foot in front of the other with the heel touching the toe. The absurdity of this whole test is even more apparent when you are asked to do these things on the side of a busy highway or street under stressful conditions when most people are tired and on their way home to bed.

3. One Leg Stand The officer administering the one leg stand test is looking for the following six clues:
1. Subject sways while balancing.
2. Subject used arms for balance.
3. Subject was hopping while performing the test.
4. Subject put foot down _____ times during the test.
5. Subject could NOT perform test due to level of intoxication.
6. Subject REFUSED to perform the test.
This test suffers from the same inherent problems as the walk and turn test. There is nothing normal about standing on one leg with the other leg in the air. The method of grading this test is flawed and unfair.

The Breath Test
Many people assume that the State would not use a machine to measure alcohol concentration that was not both reliable and accurate. However, this could not be further from the truth. First, the manufacturer of this machine does not warrant the machine to be fit for any particular purpose. Second, the manufacturer will not sell the machine to anybody but police agencies. The methodology and scientific principles of any program or machine should not be kept secret. In fact, this is completely contradictory to the principles of science. Legitimate science keeps nothing from public scrutiny to insure that its' theories are both sound and reliable

EXPUNCTIONS

What is an expungement?  An expungement is the destroying of a criminal record so it is not publicly available.  Many people have the misconception that if they are found “not guilty” or their case is dismissed, the records no longer exist.  Unfortunately, that is NOT true.  Even if a charge has been dismissed the arrest records can be obtained by the public for private use, such as an employment background investigation.  Many employers use public searches to investigate potential employees.  Obviously, you do not want future or current employers to find out about any past legal problems, especially ones that you were falsely accused of resulting in a dismissal.
Who is eligible for an expungement?  A person who has been arrested for a criminal matter is entitled to have all records and files relating to the arrest expunged if:

1. an indictment charging him with a felony has not been presented against him for the crime for which he was arrested, or

2. an indictment was presented and it has been dismissed because of an absence of probable cause at the time of the dismissal to believe the person committed the offense, or

3. the person arrested has been released, the charge has not resulted in a final conviction and is no longer pending, and there was no court ordered supervision, and

4. the person arrested has not been convicted of a felony in the five years preceding the date of the arrest.

If I am asked if I have ever been arrested before and those records are expunged, am I obligated to tell him?  Following entry of an expunction order, the release or the use of the expunged records and files for any purpose is prohibited.  That means that you may deny the occurrence of the arrest and the existence of the expunction order.  However, if you are ever questioned under oath in a criminal proceeding about an arrest for which the records have been expunged, you are only required to say that the matter in question has been expunged.

If you think your criminal history is suitable for an expunction contact Michael A. Smith.  Mr. Smith will evaluate your case and advise you as to your ability to seek and obtain an expunction.

GRAND JURY NO-BILLS

All felony charges have to go through the formal stages of the grand jury process. Although the police may arrest you and charge you with a felony, you are not formally charged unless and until a grand jury has heard your case and returned a True-Bill of indictment.

A grand jury is not like an ordinary jury where twelve people decide whether the state has proven your guilt beyond a reasonable doubt. A grand jury is merely deciding whether there is probable cause to believe you committed the crime. If the grand jury finds that there is probable cause to believe you committed the crime they can return a True-Bill of indictment. If the grand jury believes that there is not probable cause to believe you committed the crime they can No-Bill the charge. This means, essentially, case dismissed and you can go home free and clear.

The time between your arrest and your grand jury hearing is critical. Most Counties, Dallas included, allow your attorney to prepare and present a presentation to the grand jury for them to consider why your case should be No-Billed.

I have prepared hundreds of grand jury presentations and many have resulted in No-Bills. Over the years I have learned what motivates grand juries and what they find most persuasive. Let my experience work for you!

MANSLAUGHTER

Under Texas law a person commits Manslaughter if he recklessly causes the death of an individual. Manslaughter is a second degree felony and carries a range of 2 to 20 years in prison.

MURDER

Under Texas law a person commits an offense if he:
(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.

The penalty for murder is 5 to 99 years or Life in the penitentiary.

PROBATION VIOLATIONS

Probation violations are unique because whether your probation is revoked or not depends entirely on your particular judge.
When you were placed on probation you received certain conditions that you must abide by during the term of your probation. As long as you live up to the terms and conditions of probation you will not be incarcerated. In that sense probation is very much like a contract. Once there is a motion to revoke your probation filed against you, your lawyer should carefully review the allegations in the motion and determine whether or not the State can prove the allegations contained in the motion. Usually your lawyer should attempt to negotiate that your probation be continued. Most judges in Dallas County give there probation officers wide discretion in deciding what to do with probation violations. Your probation may be continued, extended, or revoked. Unlike new cases, when it comes to probation violations it is important to have a lawyer who is familiar with the judges and probation officers in your county. The very discretionary nature of probation violations makes this very important. Also probation officers and judges who are familiar with your lawyers work ethic are more readily to give you the benefit of the doubt.
Many lawyers make the mistake of simply asking the probation officer in your court what his or her recommendation is for your particular case without doing a thorough examination of the history and facts of your case. For example, the underlying offense that you were placed on probation for is generally considered not relevant in a probation violation. For that reason some attorneys fail to examine the underlying facts of your case. However, your case maybe such that to revoke your probation would be an injustice given that the evidence in your original case was slim, sketchy or nobody got hurt. This needs to be pointed out to the probation officer through your attorney. Negotiation is an art form that some attorneys do well at and others do not.

Texas Penal Code § 43.02 states that “a person commits an offense if he knowingly: (1) offers to engage, agrees to engage, or engages in sexual conduct for a fee; or (2) solicits another in a public place to engage with him in sexual conduct for hire.”

“Sexual conduct” includes deviate sexual intercourse, sexual contact, and sexual intercourse.

“Deviate sexual intercourse” means any contact between the genitals of one person and the mouth or anus of another person.

“Sexual intercourse” means any penetration of the female sex organ by the male sex organ.

“Sexual contact” means any touching of the anus, breast, or any parts of the genitals of another person with intent to arose or gratify the sexual desire of any person.

Therefore, merely making an offer to another person for sex in exchange for money is prostitution.  It is the intent of the person either making the offer or that of the person accepting the offer that is of importance. As long as the meaning of the words between the parties indicates sex for money then in short it is prostitution. Remember it is the intent of the parties regardless of the words used. However, the words used have to clearly convey an intent to exchange sex for money.

Some people are under the mistaken belief that if the other party does not admit he or she is a police officer then that is entrapment. This is simply not true. An undercover police officer is under no obligation to admit he is a police officer. Likewise, some people think that if they remove their clothes then surely the other person is not an undercover police officer. That also is incorrect. I have seen many cases where undercover officers remove all their clothing even to the point of male officers revealing their erect members.

SELF DEFENSE

Under Texas law you can use force to defend yourself against someone using unlawful force against you. Of course that makes sense. If someone is assaulting you you do not have to just sit there and take it! You most certainly can use physical force to prevent or stop someone from assaulting you. You cannot, of course, have started the confrontation that got you there in the first place. Call me today so we can discuss how self defense can play an important role in your case!