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Cyber Crimes

In this video Houston Criminal Defense Attorney Tom Abbate discusses cyber crimes in Texas including access interference, online solicitation of a minor, federal wire fraud charges, and tampering with electronic voting machines.

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Warrantless Searches & Seizures: part I

Houston based Criminal Attorney Tom Abbate discusses probable cause and exigent circumstances which allow police officers to search and seize property without obtaining a warrant. In the first of a two part video presentation he covers the Plain View Exception, valid examples of consent, and officer safety or “Stop & Frisk” policies.

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Timeline for 2254 Federal Writs of Habeas Corpus

28 U.S.C. § 2244(d)

The AEDPA established “an explicit limitation period for state prisoners filing federal habeas petitions.” Fisher v. Johnson, 174 F.3d 710, 711 (5th Cir. 1999) (citing Lonchar v. Thomas, 517 U.S. 314, 327 (1996)); see also Cantu-Tzin v. Johnson, 162 F.3d 295, 298 (5th Cir. 1998). Inmates generally must file the constitutional claims one year after state review has concluded. See 28 U.S.C. § 2244(d). The one year-period generally runs from the date the conviction becomes final by the conclusion of direct review (including the filing of a cert. petition) or the time for seeking such expires. 28 U.S.C. § 2244(d)(1)(A); see also Gonzalez v. Thaler, 132 S. Ct. 641, 653-54 (2012).

A “properly filed” application for “state post-conviction or other collateral review” tolls the limitations period while it is pending. 28 U.S.C. § 2244(d)(2). “A ‘properly filed’ application is one that conforms with a state’s applicable filing procedural requirements.” Villegas v. Johnson, 184 F.3d 467, 470 (5th Cir. 1999) (holding that a state habeas application dismissed pursuant to Texas Code of Criminal Procedure Article 11.07, Section 4 was “properly filed”); see also Larry v. Dretke, 361 F.3d 890, 894 (5th Cir. 2004) (state habeas application filed before mandate issues or is otherwise “non-compliant” is “not properly filed”). If an application is “properly filed,” it will toll for “as long as the ordinary state collateral review is ‘in continuance’––i.e., ‘until the completion of that process.’” Carey v. Saffold, 536 U.S. 214, 219-20 (2002) (citation omitted) (holding that the time between state applications is not tolled).

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Homicide in Texas

Murder in Texas is defined by Texas Penal Code Section 19.02. To secure a conviction for this charge, the State must prove either:

  1. that the defendant intentionally or knowingly caused the death of an individual;
  2. that the defendant intended to cause serious bodily injury and committed an act clearly dangerous to human life that caused the death of the individual; or
  3. that the defendant committed or attempted to commit a felony, other than manslaughter and committed an act clearly dangerous to human life that caused the death of the individual.

Murder is a first-degree felony that carries a punishment range of five to ninety-nine years’, or life, incarceration. The defendant will eventually be eligible for parole regardless of what specific sentence they receive.

However, the defendant does have the ability to lower the punishment range after being found guilty. At the punishment stage of trial, the defendant may argue that the death was caused while they were under the immediate influence of a sudden passion arising from an adequate cause. Essentially, the defendant must prove that they were, rightfully, blinded by rage or some other emotion thereby partially excusing their conduct. If the jury agrees, the charge is lowered to a second-degree felony with a punishment range of two to twenty years’ incarceration.

Texas Penal Code Section 19.03 covers capital murder. It provides, first, that the State must prove a murder as defined under Section 19.02(b)(1). This requires that the State must initially prove that the defendant intentionally or knowingly caused the death of an individual beyond a reasonable doubt. The State must then also prove one, or more, of the following theories in order to secure a conviction for capital murder:

  1. that the defendant knowingly killed a law enforcement officer or fireman lawfully discharging their official duties or a Texas judge in retaliation for their ruling;
  2. that the defendant committed 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. that the defendant committed the murder for remuneration or the promise of remuneration or employs another to commit the murder for remuneration or the promise of remuneration (murder-for-hire);
  4. that the defendant committed the murder while in or escaping or attempting to escape from prison;
  5. that the defendant murdered more than one person in the same criminal transaction or pursuant to the same scheme or course of conduct; or
  6. that the decedent was under the age of fifteen at the time of the murder.

Capital murder carries a punishment of either death or life without parole if the defendant was over the age of eighteen at the time the offense was committed. If the defendant was under the age of eighteen at the time, then the punishment becomes an automatic life sentence with the possibility of parole.

Finally, there are the charges of Manslaughter and Criminally Negligent Homicide. Both require the killing of another, but neither requires that the defendant was intentional in his conduct. For manslaughter, the standard is recklessness, and for criminally negligent homicide the standard is criminal negligence. Essentially, these charges are designed to cover instances where a defendant caused the death of another by accident or mistake.
Manslaughter is a second-degree felony with a punishment range of two to twenty years’ incarceration. Criminally Negligent Homicide is a state jail felony with a punishment range of six months to two years’ incarceration in a state jail facility.

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Motions to Revoke & Motions to Adjudicate

The determination to proceed with an adjudication of guilt after a defendant is placed on deferred adjudication community supervision is reviewable in the same manner as a revocation hearing. Tex. Code Crim. Proc. art. 42.12 § 5(b). In revocation cases, the state has the burden to establish by a preponderance of the evidence that the terms and conditions of community supervision have been violated. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). The preponderance of the evidence standard is met when the greater weight of the credible evidence before the trial court supports a reasonable belief that a condition of community supervision has been violated. Rickels v. State, 202 S.W.3d 759, 764 (Tex. Crim. App. 2006).

In a hearing on a motion to revoke community supervision, the trial court alone is the trier of fact, the judge of the credibility of the witnesses, and is solely responsible for determining the weight to be given their testimony. Taylor v. State, 604 S.W.2d 175, 179 (Tex. Crim. App. 1980). When the state has met its burden of proof and no procedural obstacle is raised, the decision whether to revoke community supervision is within the discretion of the trial court. Flournoy v. State, 589 S.W.2d 705, 708 (Tex. Crim. App. [Panel Op.] 1979). Thus, appellate review of the trial court’s order revoking community supervision is limited to determining whether the trial court abused its discretion. Caddell v. State, 605 S.W.2d 275, 277 (Tex. Crim. App. 1980). If there is some evidence to support the finding of even a single violation, the revocation order must be upheld. See Hart v. State, 264 S.W.3d 364, 367 (Tex. App.-Eastland 2008, pet. ref’d); Cochran v. State, 78 S.W.3d 20, 28 (Tex. App.-Tyler 2002, no pet.) (citing Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980)).

Community supervision revocation involves the loss of liberty and therefore implicates due process. Leonard v. State, 385 S.W.3d 570, 577 (Tex. Crim. App. 2012). Whether the defendant was afforded due process is central to appellate review of the trial court’s exercise of discretion. Id. In essence, a trial court abuses its discretion in revoking a defendant’s community supervision without affording that defendant adequate due process.