Tampering with Evidence in Texas

If you’ve been following the news lately, you may have seen that former USA Gymnastics president Steve Penny was indicted for tampering with evidence in Texas stemming from allegations he ordered the removal of documents from a training center during an investigation. And last month, a Tarrant County man was found guilty of capital murder and tampering with evidence for killing a man and burying his body. While the cases are vastly different, they illustrate how the tampering statute can be applied. Tampering with evidence is actually a fairly common charge that can include the following examples:

• Throwing away or trying to dispose of drugs when police make contact;
• Eating or swallowing contraband when police approach;
• Moving a body after a murder;
• Disposing of a weapon after a crime;
• Trying to destroy a computer, delete files, or destroy storage media when you are under investigation.

So what is tampering with evidence?

Destroying Evidence

The most common form of tampering with evidence is codified under Texas Penal Code Section 37.09. This makes it illegal to alter, destroy, or conceal an item with the intent to make it unavailable as evidence when the person knows there is an investigation in progress.

Filing False Documents

It is also illegal under the same section to make, present, or use a document knowing it is false with the intent to affect the outcome of an investigation. Individuals who file false affidavits of non-prosecution can see exposure under this section.

What is the Punishment for Tampering with Evidence?

It is a third-degree felony to alter, destroy, or conceal anything (other than a human corpse) with the intent to make it unavailable as evidence.

It is a second-degree felony to alter, destroy, or conceal a human corpse with the intent to make it unavailable as evidence.

It is a Class A misdemeanor to come across and fail to report a human corpse that the person reasonably should know law enforcement is unaware of.

Knowledge and Specific Intent for Tampering with Evidence in Texas

To be convicted of tampering with evidence in Texas, the accused must know that an offense has been committed. The accused must have the specific intent to destroy, conceal, or alter the evidence. The accused must have the specific intent to impair the availability of the evidence. The accused must have acted in a manner that amounted to more than mere preparation. The Court of Criminal Appeals has ruled specifically that identifying the evidence tampered with is not an essential element of a tampering with evidence charge. That means the prosecutor can allege that by including tampering with an “unknown substance,” the State has sufficiently alleged the tampering was for a “thing.”

A Quick Example of Tampering with Evidence – Turning a Misdemeanor into a Felony

Imagine this: Police pull over a vehicle because the driver failed to signal 100 feet before a lane change – a common traffic violation. As the vehicle slows to a stop, officers see the flash of a small plastic bag being thrown out the passenger side window. As the primary officer approaches the driver, another officer arrives after being alerted over the radio, walks down the side of the road and recovers a small plastic bag containing just over a gram of marijuana. If the weed had not been thrown out the window, this would have been a Class B misdemeanor case. Unfortunately, throwing the weed out the window virtually guarantees a third-degree felony charge for Tampering with Evidence. It’s a story that’s been told a thousand times. In fact, a couple of central Texas lawyers made this video to help you remember a similar story:

Tampering with evidence isn’t limited to drug cases though. Here’s a look at the Tampering with Evidence statute and examples of how individuals have been charged with Tampering with Evidence:

In 2011, an El Paso man was arrested for tampering with evidence during a traffic stop because the police officer detected a marijuana odor and when he asked the man to open his mouth, the man revealed he had swallowed his weed.

In 2013, a teenager in Collin County was found guilty of tampering with evidence when he killed his friend and tried to put the body in a storm drain.

In 2017, a Rockwall police officer responded to a theft at a beauty store and was told a Nissan with out-of-state plates was fleeing from the scene. The officer observed the vehicle drive the wrong way down a road before swerving across the highway to turn around. After pulling the vehicle over, the officer saw the driver making furtive movements, including reaching under the seat and throwing something out of the window. Upon arresting the driver, the officer searched the vehicle and found marijuana scattered on the floorboard, on the passenger seat, on the dashboard, and outside of the vehicle. Because the driver attempted to conceal and get rid of the drugs, the case was tried as a felony rather than a misdemeanor marijuana possession case. The driver was convicted and sentenced to a $10,000 fine, in addition to 20 years in prison.

In 2018, a Fort Worth man was sentenced to twenty years in prison for tampering with evidence (in addition to a life-sentence for murder) for dismembering and burning the body of a woman whom he argued died during consensual sex.

Earlier this year, a Bryan man was arrested for tampering with evidence when he was found trying to flush weed down the toilet at his home.

Tampering with evidence is not limited to a specific drug or even something as severe as a human corpse. Evidence includes a very wide array of items, ranging from documents to a small amount of weed to something you could find at a murder scene. Think of it this way: if it can be used to influence the outcome of an investigation or court case, it is probably evidence, and you should not give officers or investigators reason to believe you are trying to destroy or destroying it.

Is tampering with evidence only applicable to illicit or illegal objects?

No. Remember when Enron was in the news for shredding a ton of documents while an investigation of wrongful behavior was underway? Enron was hit with a tampering with evidence charge because they engaged in the destruction of documents that could have impacted the outcome of a criminal investigation. As Enron demonstrated, no drugs or illicit materials are required to be charged with tampering. It is the physical act of changing or altering evidence knowing that an investigation is coming or currently happening that is against the law.

Avoiding Tampering with Evidence Charges

If you are being pulled over, do not begin dumping things out of the window that would otherwise be a misdemeanor. Stay calm, remember you do not have to answer questions, and do not give officers reason to investigate beyond the reason for the traffic stop. Do not give consent to search.

If you are at home, do not give officers reason to suspect there is any illicit activity going on in your home. Homes have a higher expectation of privacy, so it takes more for an officer to be able to walk in. However, if the officer believes there is an emergency or that evidence is actively being destroyed, there is a good chance he or she will enter or attempt to enter. Keep in mind that police officers normally need a warrant to enter your home. But there are a few legal ways to get around the privacy protection in your home, including a doctrine called exigent circumstances. Basically, exigent circumstances are an exception to the general requirement that cops need a warrant to enter your home when they suspect there will be serious (and imminent) harm to life or property, that a suspect will escape, or that without action, destruction of evidence is imminent.

Tampering with Evidence Defense

Tampering with evidence is a tough charge to fight, and you should not have to brave the investigation or court proceedings alone. If you have been charged with tampering with evidence or believe you may be charged soon, call us at (817) 203-2220.

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The Castle Doctrine in Texas

A video going viral today shows an Abilene man getting shot and killed after an argument with his neighbors over where to dump trash.  The neighbors, a father and son, have been charged with murder.

The two-minute video is full of misconceptions about the law surrounding gun rights and standing your ground in Texas.

Misconception One: “Standing Your Ground” means you can use deadly force and you don’t have to back down during an argument.

Generally, you can use force “to the degree” a person reasonably believes such force is “immediately necessary” to protect against another person’s use or attempted use of unlawful force. In other words, if someone is about to clock you, you are allowed to defend yourself with your hands…but don’t expect the law to protect you if you bring a gun to that fist fight. Generally speaking, you can defend yourself with the same level of force that is being used against you. Using deadly force, however, has additional requirements. You would have to show that you used to force to protect against the other person’s use of unlawful deadly force or to prevent an aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

A person can only “stand their ground” if they have a right to be present at the location, they did not provoke the person against whom the force is being used, and were not engaged in criminal activity at the time they are using the force. Threatening to kill someone while you display a deadly weapon is generally going to be the second-degree felony offense of Aggravated Assault with a Deadly Weapon.

Misconception Two: You can Shoot Someone for a Getting in Your Face

Verbal provocation alone is never justification for the use of force. It doesn’t matter what the other person is saying. If you respond with anything from a fist to a firearm, you are going to be charged with a criminal offense. That includes a person getting in your face with their finger waving. That includes an unarmed person saying they are going to kill you.

Misconception Three: You Can Set Conditions that Allow You to Shoot

On the video we hear the first shooter say, “If you come within three-foot of me, I’m going to kill you.” While the video doesn’t show exactly what happened next, let’s assume that three-foot rule was violated. That still did not give the shooters the legal authority to shoot the deceased.

Understanding the Castle Doctrine in Texas

A man’s home is his castle, and nowhere is that more true than in Texas. Terms like “Castle Doctrine” and “Stand Your Ground” get tossed around in the media frequently, but what do these terms actually mean in the Lone Star State? Do you have a right to pull a shotgun on someone who gets past your fence? What if you pull into your driveway to see someone running off with a jewelry box? This article covers what is broadly described as the “Castle Doctrine” in Texas, including when you can use force, when you can use deadly force, and whether you have a duty to retreat.

What is the Castle Doctrine in Texas?

Perhaps the easiest way to understand a key provision of the Castle Doctrine is to remember that a King or Queen has no duty to retreat inside their own castle, and if someone unlawfully forces their way into the castle, the King or Queen can use any force available to resist that attack. Texas Penal Code 9.31 and 9.32 together form what is often called the “Castle Doctrine” in Texas. Penal Code 9.31 discusses the use of non-deadly force and 9.32 discusses the use of deadly force. Penal Code 9.41 and 9.42 are also worth looking at because they describe when force and deadly force can be used to protect property. (All these statutes are provided in the section below.) While Texas gives broad rights to individuals to protect themselves against others, always remember they boil down to a question of what was reasonable. Reasonability and the immediate need to use force are two lynchpins of the Castle Doctrine in Texas.

Under the Castle Doctrine, in certain circumstances, you are presumed to have acted reasonably in defending your “castle.” This could be your home, vehicle or place of employment.

When is a person justified in using deadly force to protect a person?

Penal Code 9.32 sets out that person can use deadly force when he reasonably believes it is immediately necessary to:

• protect against another’s use or attempted use of unlawful deadly force, or
• to prevent an aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

When is a person justified in using deadly force to protect property?

Generally, a person may use force, but not deadly force, to protect property. There are, however, some important exceptions. Under Penal Code 9.42, deadly force may be used to protect land or property when a person reasonably believes that deadly force is immediately necessary to:

• prevent arson, burglary, robbery, aggravated robbery, theft at night, or criminal mischief during nighttime;
• prevent someone fleeing with property after committing burglary, robbery, aggravated robbery, or theft during the nighttime.

However, the person must also be able to show that he reasonably believed that the land or property could not be protected or recovered by any other means or that the use of non-deadly force would expose him or another to a substantial risk of death or serious bodily injury.

Is there a duty to retreat under the Castle Doctrine?

The Castle Doctrine relieves a person of the duty to retreat when he is justified in using deadly force against another if:

• the actor has a right to be present at the location where the deadly force is used
• the actor has not provoked the person against whom the deadly force is used, and
• the actor is not engaged in criminal activity at the time that the deadly force is used.

Texas Penal Code 9.32(d) further provides that in determining whether or not the actor’s belief was reasonable, the trier of fact may not consider whether the actor failed to retreat. In other words, a person generally does not have to retreat on their property and their decision not to retreat cannot be used as a fact against them in determining whether their belief that deadly force was needed was a reasonable belief or not.

What is reasonable under the Castle Doctrine?

The question of reasonability will always be one for the fact-finder, whether that is a grand jury, a petit jury, or a judge. However, there are instances where reasonability is presumed. The Castle Doctrine in Texas provides a presumption of using force against another person who is:

• unlawfully and with force entering or attempts to enter your habitation, vehicle, or workplace; or
• attempting to remove you, by force, from your habitation, vehicle, or workplace;
• committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

Does the Castle Doctrine extend to my work place or business?

Yes, the Castle Doctrine extends to your place of employment and your business.

Does the Castle Doctrine extend to my vehicle, RV, and gator?

Yes. The Castle Doctrine extends to any vehicle routinely used for transportation, including planes, trucks, cars, golf carts, and ATVs. Vehicles are considered your property and covered by the law if you face an intruder.

Provoking the difficulty

If a property owner provokes an individual and that leads to violence or if the property owner is taking part in any criminal activity, the owner is not protected.

Otherwise breaking the law

A person that is engaged in criminal activity will not be entitled to a castle doctrine defense

Can you shoot someone on your property who makes a verbal threat?

Texas law provides that a verbal threat alone is not sufficient to justify use deadly force. So a person saying, “I will kill you” may not be enough to use deadly force, but a person who says, “I will kill you” while holding a knife goes beyond mere words; they have the ability to carry out their threat.

Can you shoot someone who makes a threat of future harm?

Notice the law authorizes the use of deadly force only when it is “immediately necessary.” If someone says, “I will come back and kill you tomorrow,” it will be difficult to show the use of deadly force at the time of the statement was immediately necessary.

Can I threaten to shoot someone when I am authorized to only use non-deadly force?

Yes. Under Penal Code 9.04, you can draw a weapon and threaten a person if you are justified in using force. Note the requirement is not that you had to be justified in using deadly force. The law also requires that when you pull a weapon and make a threat to protect property or a person, you do so with the limited purpose of causing fear in the intruder that you will use deadly force if necessary.

Can you shoot a trespasser?

While trespassing on property other than your home alone will not give rise to the lawful use of deadly force, there is a presumption that deadly force is immediately necessary when someone has unlawfully entered or is attempting to enter by using force. Additionally, deadly force may be used against an intruder at night who you reasonably believe will imminently commit theft or criminal mischief.

Can I shoot someone to protect my property?

Texas Penal Code 9.41 permits the use of force to protect property. It does not permit the use of deadly force to merely protect property under most circumstances. This changes when someone attempts to forcefully enter your house or enters your house by force.  Your house includes your porch and attached garages, but does not include detached garages. It also changes when you can meet the elements of Penal Code 9.42.

Texas Penal Code Section 9.42 requires that all three of the following circumstances exist in order for you be justified in employing deadly force to protect property.

1. You must be justified in using force;

2. Must only be to the degree you reasonably believe deadly force is immediately necessary to prevent:

a. the imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or
b. Someone fleeing from those things; or

3. To the degree that you reasonably believe that

a. The land or property cannot be protected or recovered by any other means, or
b. Using a lesser force would expose you or someone else to the substantial risk of death or serious bodily injury.

Things to Remember about Self-Defense in Texas

• A defendant is entitled to a jury instruction on self-defense if the issue [of self-defense] is raised by the evidence, whether that evidence is strong or weak, unimpeached or contradicted, and regardless of what the trial court may think about the credibility of the defense.

• When reviewing a trial court’s decision denying a request for a self-defense instruction, a reviewing court considers the evidence in the light most favorable to the defendant’s requested submission.

• A trial court errs in denying a self-defense instruction if there is some evidence, from any source, when viewed in the light most favorable to the defendant, that will support the elements of self-defense.

• Under Penal Code § 9.31, a person is justified in using force against another when and to the degree that person reasonably believes the force is immediately necessary to protect himself against another person’s use or attempted use of unlawful force. The use of force against another is not justified in response to verbal provocation alone.

• Under  Penal Code § 9.32, a person is justified in using deadly force if he would be justified in using force under Tex. Penal Code § 9.31, and he reasonably believes that deadly force is immediately necessary to protect himself against another’s use or attempted use of deadly force.

• Under Penal Code § 9.04, the threat of force is justified when the use of force is justified by chapter 9. A threat to cause death or serious bodily injury by the production of a weapon or otherwise, provided the actor’s purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.

Penal Code 9.31:

(a) Except as provided in Subsection (b), a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force. The actor’s belief that the force was immediately necessary as described by this subsection is presumed to be reasonable if the actor:

(1) knew or had reason to believe that the person against whom the force was used:

(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor’s occupied habitation, vehicle, or place of business or employment;

(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor’s habitation, vehicle, or place of business or employment; or
(C) was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery;

(2) did not provoke the person against whom the force was used; and

(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.

(b) The use of force against another is not justified:

(1) in response to verbal provocation alone;

(2) to resist an arrest or search that the actor knows is being made by a peace officer, or by a person acting in a peace officer’s presence and at his direction, even though the arrest or search is unlawful, unless the resistance is justified under Subsection (c);

(3) if the actor consented to the exact force used or attempted by the other;

(4) if the actor provoked the other’s use or attempted use of unlawful force, unless:

(A) the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and

(B) the other nevertheless continues or attempts to use unlawful force against the actor; or(5) if the actor sought an explanation from or discussion with the other person concerning the actor’s differences with the other person while the actor was:

(5) if the actor sought an explanation from or discussion with the other person concerning the actor’s differences with the other person while the actor was:

(A) carrying a weapon in violation of Section 46.02; or

(B) possessing or transporting a weapon in violation of Section 46.05.

(c) The use of force to resist an arrest or search is justified:

(1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and

(2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer’s (or other person’s) use or attempted use of greater force than necessary.

(d) The use of deadly force is not justified under this subchapter except as provided in Sections 9.32, 9.33, and 9.34.

(e) A person who has a right to be present at the location where the force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at the time the force is used is not required to retreat before using force as described by this section.

(f) For purposes of Subsection (a), in determining whether an actor described by Subsection (e) reasonably believed that the use of force was necessary, a finder of fact may not consider whether the actor failed to retreat.

Penal Code 9.32

(a) A person is justified in using deadly force against another:

(1) if the actor would be justified in using force against the other under Section 9.31; and

(2) when and to the degree the actor reasonably believes the deadly force is immediately necessary:

(A) to protect the actor against the other’s use or attempted use of unlawful deadly force; or

(B) to prevent the other’s imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

(b) The actor’s belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:

(1) knew or had reason to believe that the person against whom the deadly force was used:

(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor’s occupied habitation, vehicle, or place of business or employment;

(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor’s habitation, vehicle, or place of business or employment; or

(C) was committing or attempting to commit an offense described by Subsection (a)(2)(B);

(2) did not provoke the person against whom the force was used; and

(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.

(c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section.

(d) For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat.

Penal Code 9.41

(a) A person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other’s trespass on the land or unlawful interference with the property.

(b) A person unlawfully dispossessed of land or tangible, movable property by another is justified in using force against the other when and to the degree the actor reasonably believes the force is immediately necessary to reenter the land or recover the property if the actor uses the force immediately or in fresh pursuit after the dispossession and:

(1) the actor reasonably believes the other had no claim of right when he dispossessed the actor; or

(2) the other accomplished the dispossession by using force, threat, or fraud against the actor.

A person is justified in using deadly force against another to protect land or tangible, movable property:

(1) if he would be justified in using force against the other under Section 9.41; and

(2) when and to the degree he reasonably believes the deadly force is immediately necessary:

(A) to prevent the other’s imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or

(B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and

(3) he reasonably believes that:

(A) the land or property cannot be protected or recovered by any other means; or

(B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.

Rated By Marcela A.

From the very first call, I could tell Varghese Summersett was a top notch firm. I called many firms before them and they immediately stood out for their professionalism and prompt response time. They were available for a consultation within 24 hours of my initial call. After retaining them, they were not only always available for calls, questions, and/or meetings but they kept our family in the loop about every step along the way. They outlined the process and set clear expectations from day one. We never felt like we were in the dark. Every one we came in contact with from the receptionist to the various attorneys, was friendly and ready to help. The outcome of our loved one’s case was better than we ever expected it to be. Our family feels fortunate to have had Varghese Summersett by our side during this long a difficult legal process. They made a terrible situation as smooth and painless as possible. I would highly recommend this firm to anyone in need of a defense attorney.

Contact Us

If you or a loved one are facing criminal charges after using force to protect yourself, family, home or property, you need an experienced attorney by your side. Call us today at 817-203-2220 for a complimentary strategy session. Our team of former prosecutors and Board Certified Criminal Lawyers are here to help. During this call we will:

• Discuss the facts of your case;
• Discuss the legal issues involved, including the direct and collateral consequences of the allegation; and
• Discuss the defenses that apply to your plan and in general terms discuss our approach to your case.

You can also contact us online:

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Is CBD Oil Legal in Texas?

CBD Oil is legal by prescription in Texas to treat seizures caused by intractable epilepsy. CBD Oil has not been legalized in Texas recreationally, for pain relief, anxiety, or depression.

Although CBD Oils can be legally prescribed in Texas for limited purposes, federal law does not allow doctors to prescribe any substance derived from the Cannabis Sativa L plant. While other states fill medical marijuana orders based on doctor “recommendations” instead of prescriptions, Texas law requires a prescription for CBD oil in order for it to be legal.

Is CBD Oil Illegal in Texas?

Prosecutors in some jurisdictions in Texas will have CBD tested for the presence of THC. If there is any detectable amount of THC, they are filing these cases as Possession of a Controlled Substance – Penalty Group 2 under Texas Health and Safety Code 481.103 and 481.116.

What is CBD Oil?

CBD is short for Cannabidiol. Like THC, it is one of 85 cannabinoids present in the cannabis plant. CBD Oil contains high levels of CBD and trace amounts of THC. The lack of high levels of THC makes CBD Oils non-psychoactive.

What is THC?

THC is short for Tetrahydrocannabinol. This is one of many chemical compounds found in cannabis. THC is responsible for the psychological and euphoric effects of the drug. In other words, it is what makes people feel “high” when they smoke or ingest marijuana.

How is CBD Different From THC?

The short answer is, unlike THC, CBD is not psychotropic. Consequently, it doesn’t result in a euphoric high the way THC does.

The longer answer is far more interesting. It is important to first distinguish marijuana from hemp. Scientifically, both marijuana and hemp come from the “cannabis sativa” plant, according to the USDA. Marijuana, though in the same scientific family as hemp, is a much smaller plant. Hemp, the taller and more fibrous version of the sativa plant has a long history in the United States. In fact, George Washington grew hemp on Mount Vernon.

Over years of breeding, the cannabis plant was developed to have high levels of THC. It is this breeding to elevate THC levels that has spurred the illegal marijuana market. Because CBD comes from an entirely different plant than marijuana, its chemical properties are different.

THC is found in large quantities in cannabis, or what most people think of as the marijuana plant. Unlike cannabis, or marijuana, hemp contains low concentrations of THC. CBD Oils are generally made from the hemp plant so they contain high levels of CBD and trace levels of THC. As a result, CBD provides a less controversial alternative to THC for health benefits.

CBD Oil in Texas

In 2015, Governor Greg Abbott signed into law what’s known as the Texas Compassionate Use Act, which allows the use of CBD oils to treat seizures caused by intractable epilepsy. The Act legalizes oils containing CBD for treatment of epilepsy, as well as other chronic medical conditions for those who have not responded positively to use of federally approved medications.

The Act authorizes the Department of Public Safety to license dispensing organizations, which function similar to compounding pharmacies. Only neurologists and epileptologists are able to offer prescriptions for CBD oil. While the law was implemented in 2015, access to CBD was delayed until 2017 to allow for additional time to create a system to ensure that distribution is confined to genuine medical necessity along with a detailed registry identifying doctors and dispensaries.

You won’t find the word “Cannabidiol” in Texas laws defining illegal substances or banning their possession or distribution. You also won’t find any of the other descriptors of Cannabidol found on the Open Chemistry Database maintained by the National Center for Biotechnology Information or in any penalty group in Texas. However, if possessed without medical necessity, it is arguable that CDB Oil would be considered a Penalty Group 2, illegal substance. Penalty Group 2 applies to hallucinogens, their salts, isomers, and salts of isomers. It does include substances like Dronabinol and Tetrahydrocannabinols.

How could CDB Oils be Prosecuted in Texas?

Despite articles that discuss marijuana possession in relation to CBD Oils, possession of CBD Oil is specifically distinguished from the possession of marijuana in Texas. Texas Health and Safety Code Section 481.002 excludes oils and resins from the definition of marijuana (or “marihuana” as the Texas Legislature insists on spelling it). Instead, a prosecutor presented with a CBD Oil case is likely to argue that it falls within this definition found in the list of Penalty Group 2 substances. Instead of characterizing CBD as marijuana, Texas law added this language to the definition of Penalty Group 2.:

Tetrahydrocannabinols, other than marihuana, and synthetic equivalents of the substances contained in the plant, or in the resinous extractives of Cannabis, or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity such as: delta-1 cis or trans tetrahydrocannabinol, and their optical isomers;
delta-6 cis or trans tetrahydrocannabinol, and their optical isomers;
delta-3, 4 cis or trans tetrahydrocannabinol, and its optical isomers; or
compounds of these structures, regardless of numerical designation of atomic positions, since nomenclature of these substances is not internationally standardized;

However, the defense may be able prove that the CBD oil in question did not contain THC, and was not similar to THC in its pharmacological activity.

A prosecutor will also make the argument that the legislature would not have to pass the Compassionate Care Act if cannabidol were already legal.

What is the punishment for CBD oil with THC present?

Think Twice About Selling CBD Oils

Under current federal law, sellers of CBD Oils who describe the medical benefits of CBD Oils should at the very least expect to get a Cease and Desist letter from the FDA with language along the lines of:

Your product is not generally recognized as safe and effective for the referenced uses and, therefore, the product is a “new drug” under section 201(p) of the Act [21 U.S.C. § 321(p)]. New drugs may not be legally introduced or delivered for introduction into interstate commerce without prior approval from the FDA, as described in section 505(a) of the Act [21 U.S.C. § 355(a)]; see also section 301(d) of the Act [21 U.S.C. § 331(d)]. FDA approves a new drug on the basis of scientific data submitted by a drug sponsor to demonstrate that the drug is safe and effective.

Furthermore, your product is offered for conditions that are not amenable to self-diagnosis and treatment by individuals who are not medical practitioners; therefore, adequate directions for use cannot be written so that a layperson can use this drug safely for its intended purposes. Thus, ______ is misbranded within the meaning of section 502(f)(1) of the Act, in that its labeling fails to bear adequate directions for use [21 U.S.C. § 352(f)(1)]. The introduction of a misbranded drug into interstate commerce is a violation of section 301(a) of the Act [21 U.S.C. § 331(a)].

What Can CBD Oil be Prescribed for in Texas?

Studies show CBD oil has promise in the following areas:
• Anxiety relief
• Anti-seizure
• Pain relief

However, in Texas, the only approved treatment at this time or the reduction or elimination of seizures. Notably, Florida passed a similar law in 2014; but in 2016, voters amended the law to allow for full THC forms of cannabis for those suffering from a broader variety of medical conditions, such as PTSD, MS, cancer, and HIV. Texas does not allow CBD oil for Parkinson’s patients.

In May of 2017, the Texas Department of Public Safety awarded licenses to produce, process, and dispense CBD oil to three companies. These companies, Cansortium Texas, Compassionate Cultivation, and Surterra Texas, each pay a licensing fee in order to operate facilities to produce and dispense CBD oils under the Compassionate Use Act.

Are THC Oils and Waxes Legal in Texas?

No. As of August 2017, possessing THC oil is not only a crime but also considered a more serious crime than possessing marijuana in its traditional form. In Texas, it is a felony to possess THC oil or wax. The seriousness of the felony varies based on the amount of THC oil possessed. For example, possession of less than one gram of THC oil is a state jail felony that is punishable by up to two years in jail, with a minimum of six months in prison. Additionally, a state jail felony comes with a fine of up to $10,000.

Possessing one to four grams of THC oil is a third-degree felony, punishable by a minimum of two years in prison, with a maximum 10-year prison term. Like state jail felonies, third-degree felonies come with a fine of up to $10,000.

Possession of four to 400 grams of THC oil or wax is a second-degree felony. In Texas, a second-degree felony is punishable by up to 20 years in prison. Like third-degree felonies, this offense carries a minimum sentence of two years in prison and a fine of up to $10,000.

Finally, possession of more than 400 grams of THC oil or THC wax is classified as a first-degree felony. This is the most serious felony in which someone can be charged for possessing THC oil or wax. This crime is punishable by up to 99 years in prison. This crime also carries a minimum sentence of five years in prison and a fine of up to $10,000.

Changes in Texas Law

House Bill 2107 was brought during the 2017 legislative session with a number of vocal supporters. The bill sought to remove the “low THC” restriction and amend the law to allow for “medicinal marijuana.” It also sought to expand the types of conditions that can be treated with cannabis by including post-traumatic stress disorder and terminal cancer. Finally, the bill sought to modify the language, from requiring a doctor’s prescription to requiring a doctor’s recommendation. This change intended to address concerns about the legality of physicians prescribing something prohibited by federal law. Despite having 77 sponsors and co-sponsors, 29 of whom were Republican, the bill died in committee. Given strong support, as well as national trends, changes in Texas law are likely to occur in the future.

As recently as July of 2018, the Texas Department of State Health Services backed off a decision to regulate products the include more than .03% CBD.

Contact Us

The complicated nature of the laws governing CBD oils makes the possession of CBD oil very defensible, especially if the CDB oil has no detectable amount of THC. If you have been arrested for an offense arising from the possession of CBD oil in North Texas, contact us at (817) 203-2220 or online:

The post Is CBD Oil Legal in Texas? | CBD Oil Prescriptions in Texas appeared first on Varghese Summersett PLLC | Fort Worth Criminal Defense Attorneys.

As college students settle into the new sememster, jail is probably the last thing on their minds. But unfortunately, students are arrested every day for various offenses that could land them behind bars and subject them to hefty fines. Here are the top five college student crimes and what you should do if you do find yourself in handcuffs.

Possession of Marijuana

Marijuana is legal in a growing number of states, but Texas isn’t one of them. In Texas, it is still illegal to possess any amount of marijuana. While possession of drug paraphernalia is only a ticket, having a useable quantity can land you in jail for up to six months. Amounts as low as a third of a gram have been determined to be a usable quantity. As the quantity goes up, so does the punishment range.

Theft 

Shoplifting is one of the most common offenses for which students are arrested. Almost every student accused of theft starts their story off the same way: “I wasn’t thinking, and I never thought I would get caught.”  A theft conviction is one of the worst convictions because it is considered a crime of moral turpitude, which could jeopardize scholarships, student loans, housing, and employment opportunities.

Assault  

In Texas, you can be charged with assault bodily injury if you hurt another person. If that person was even slightly injured, you could be looking at a year in jail. If you have that same fight with a peace officer, you could be facing 10 years in the penitentiary.

Driving While Intoxicated

Being arrested for DWI is a very common charge for college students. In Texas, you can be legally intoxicated with any level of alcohol in your system. That’s because the prosecutors have three ways to prove you were intoxicated:

1. Blood alcohol concentration of .08 or greater, or
2. Not normal mentally due to the introduction of alcohol into the body, or
3. Not normal physically due to the introduction of alcohol into the body.

The last two definitions mean a person could be intoxicated at almost any blood alcohol concentration. Additionally, if you have any detectable of alcohol in your system under the age of 21, you can be charged with Driving Under the Influence (DUI) even if you are not intoxicated. In Texas, penalty ranges for DWI can depend on your BAC., whether you have priors, and the age of the passengers in the vehicle.

Criminal Trespass 

Students are often charged with criminal trespass. This can occur, for example, when a group of students decides to enter restricted areas on campus, explore abandoned buildings, or return to a location where they have ben prohibited.

How to Avoid a Conviction and Not Go to Jail

If you are arrested for any of these offenses, it’s important to contact a seasoned criminal defense attorney who has experience negotiating dismissals, no-bills and options that avoid a criminal conviction. Many first time offenders are eligible for diversion programs.

Contact us

Our team consists of Board Certified Criminal Law Specialists and former state and federal prosecutors with a proven track record of success. Call us at (817) 203-2220 for a complimentary strategy session.  During this call we will:

• Discuss the facts of your case;
• Discuss the legal issues involved, including the direct and collateral consequences of the allegation; and
• Discuss the defenses that apply to your plan and in general terms discuss our approach to your case.

You can also contact us online:

The post College Student Crimes: How to Avoid a Criminal Conviction in College appeared first on Varghese Summersett PLLC | Fort Worth Criminal Defense Attorneys.

For many years, bonds in Tarrant County were set by municipal magistrates throughout the county. This meant individuals in different cities could receive vastly different bond amounts based on where they were arrested and which magistrate was on duty at the time. The process had its advantages – bonds were set quickly, and the bond amounts could be addressed again by a magistrate at the county-level, where bonds were generally set more uniformly. Yet, the process is not without its problems.

A 2017 study published by the Texas Judicial Council and Texas A&M criticized the methods in place in Tarrant County, noting only 6 percent of accused individuals were released on a personal bond compared to 60 percent of individuals in Travis County, which used a risk-based release system instead of a financial means based release system. (Tarrant and Travis “are the third and fifth most populous jurisdictions in Texas, home to 2.0 million and 1.2 million residents, respectively. Both metro areas are counted among the fastest growing in the state. Travis County has a jail population of approximately 2,600, of whom 75 percent are being held pretrial. Tarrant County jails currently hold about 3,400 defendants, 62 percent of whom are awaiting trial.”)

The study also found that each additional day of detention up to 30 days increased the likelihood of conviction by 2 percent each day.

At the beginning of 2018, Tarrant County’s new sheriff, Bill Waybourn, changed four decades of the county’s “customary practice” of housing arrestees at city jails and began to follow the requirements of Texas law under Article 2.18 of the Code of Criminal Procedure. The Code requires a person jailed on a warrant or court order to go into the custody of the sheriff – not city jails.

Additionally, this year the federal Fifth Circuit Court of Appeals also handed down, ODonnel v. Harris County – the type of case that keeps judges awake at night.

At issue in ODonnel was Harris County’s bail bond process. The Fifth Circuit ruled that the bail bond processes in Harris County violated Equal Protection, Due Process, and Texas law.

Texas Code of Criminal Procedure 17.15 requires judges to make an individualized assessment based on five factors, including the person’s ability to pay, the nature of the charge, and community safety. At the trial level, federal District Court Judge Lee H. Rosenthal wrote an opinion — over 190 pages long — blasting the realities of the Harris County system, where 40 percent of individuals charged with misdemeanors stayed in jail until their cases were resolved. In many of these cases, those accused could go home with “credit for time served” if they entered a guilty plea and accepted conviction – incentivizing pleas for individuals who could not afford to make bond.

Changes in Tarrant County’s Bail Bond Process

As a result of the ODonnel opinion, and the sheriff housing more inmates, the bail bond process in Tarrant County has had a number of changes. The magistrates are making an attempt to more carefully consider the 17.15 factors to make individualized determinations for individuals who have been arrested. These factors include:

1. Considering whether the bond is set sufficiently high to ensure compliance. (In other words, is the financial consequence significant enough to ensure the accused will show up in court without a warrant being issued for their arrest?)
2. Establishing that the bond is set low enough that it is not being used as an instrument of oppression. Remember, individuals charged with crimes are cloaked with a presumption of innocence. Bail bonds are not meant to be punitive or punishment, although for the citizen accused, it certainly can seem like everyone is treating them like they are already convicted.
3. Evaluating the nature of the offense and the circumstances under which it was committed. (The initial arraignment is not an adversarial process, so the nature and circumstances are whatever is included the arrest warrant or probable cause affidavit, which are assuredly one-sided.)
4. Considering the accused’s ability to make bond. Here the court can hear evidence on the accused’s ability (or inability to pay), but remember this is only one of the factors the court is required to consider.
5. Ensuring the future safety of the victim and the community.

Tarrant County’s magistrates are requiring accused citizens to complete forms that disclose their ability to pay and to go through “risk assessments” to determine if they are likely to re-offend while on bond.

Why is it taking days to get someone out of Tarrant County custody?

The most common question we get now that Tarrant County has moved to central magistration is, “Why it is taking so long to get someone out of custody?” What used to take hours is now taking days. There are several reasons for this.

1. As this article explains, the Tarrant County Central Magistration system requires information to be gathered and prepared for the magistrate to consider and this takes time.
2. Tarrant County has not adapted to the sheer number of people who must be taken in front of magistrates.
3. Magistration takes place three times a day, and not around the clock.
4. Arrestees are sometimes only released to CSCD – meaning someone arraigned on Friday may not get out until Monday, even if they can pay the bond.

The Tarrant County Central Magistration: Four Steps

Now that a centralized magistrate system has been implemented by Tarrant County, magistrates are setting a person’s bond based on the alleged facts of the offense, risk, financial assessments, and an individual’s history of appearing in court – not based on recommended guidelines.  They are following four steps:

Step One: The magistrate judge will review the alleged facts of the offense. This review will include the Probable Cause affidavit, any commitment order, and the offense report if one is available. Notice these are all documents prepared by law enforcement. This initial hearing is not adversarial, so the defense attorney is generally unable to submit information for consideration at this initial setting. (The defense attorney may later file a Motion for Reconsideration if they would like to present evidence.)

Step Two: Magistrate staff will administer a risk assessment tool provided by Noble – the Ohio Risk Assessment System – which was highly recommended in the Texas Judicial Council and Texas A&M Study. ORAS has been used with great success through the country and has been in place for years in other jurisdictions in the state.

ORAS is driven by the TCIC/NCIC criminal history and other objective facts such as age, gender, etc. The objective assessment is completed without interviewing the accused. It gives the magistrates a sense of who the client is and the likelihood that they will show up to court when they are supposed to.

The ORAS results are available to Noble, and the judges, but it is not available to defense counsel at this time. In the first part of 2018, out of the approximately 5,600 risk assessments that were run, 3,500 came back as low risk; 1,404 came back as moderate risk; 194 were high-risk to re-offend with a property crime; 483 were high-risk to re-offend with a non-violent crime; and 42 were high-risk to re-offend with a drug crime.

Step Three: Magistrate staff will provide the judge with a “Failure to Appear Score” – which is a review of the last two years’ worth of data on the accused’s compliance with any past court settings. The Failure to Appear Score is based on the number of cases a person has had, the number of settings they missed, and the bond was held insufficient as a result. The Failure to Appear Score gives the magistrate a tool to assess the likelihood of a person showing up in court.

Step Four: The Financial Assessment which is referred to as the FART (Financial Assessment for Rapid Transmission, which could have easily been “Swift” instead of Rapid…) or information available to the magistrate through Tech Share Indigent Defense. The magistrate judges have assured us the information obtained from the citizens-accused is merely biographical and basic financial information and that these individuals will not be questioned without their attorneys.

The terribly-named FART Assessment seeks to provide the magistrate with a sense of the arrestee’s ability to pay for the bond. This assessment is completed by sheriff’s deputies as arrestees are booked-in at the jail. Question areas include:

• Income
• Expenses
• Employment
• Transportation
• How long the person has lived in Tarrant County

If a person has asked for court-appointed counsel, the magistrate will also have the responses from that interview.

Once these steps are completed, bond conditions and the bond amount is set by the magistrate. The bond conditions are noted in triplicate with a copy that the accused signs.

As of July 1, 2018, North Richland Hills is the only municipality that is still setting its own bonds. Every other municipality is now using the Central Magistration system, which brings us to the Number 1 criticism of the new system:  The process of being booked in, bonded, and booked-out can now take 4 to 48 hours instead of what could have been done with a walk-through or a 1 to 2 hour process.

Motions to Modify Bonds

As a practical matter, having the bond modified after it is set will take a significant period of time if the modification is referred to magistrate court. After the preliminary bond has been set, a Motion to Reduce Bond may be filed with the court. The Motion may be referred to the magistrate court. If the matter is referred to the magistrate court, take the referral to the mag court coordinator. Let the coordinator know if a court reporter will be necessary. A hearing will be set with notice to both sides.

Motions to Set Revocation Bonds

In the past, when a Motion to Adjudicate or Motion to Revoke a probationer was filed, a hold was generally placed to prevent a bond from being set until the district court judge was willing to set the bond. Additionally, revocation bonds were not set if the court fees and costs were past due. Now, if a “Hold, No Bond” appears on the motion, the magistrate will still not set a bond. However, the district court judges also have the option to now put “Bond to be set by Magistrate” on the face of the Motion to Adjudicate or Revoke. If the motion is so designated, the defense attorney can contact the Mag Court coordinator to begin the Risk Assessment and Failure to Appear score and the magistrate can set a bond. The magistrate can now consider whether the fees are paid, but it is no longer an absolute requirement for bonds to be set. CSCD has now also made the chronological files or “chronos” available to the magistrate and judges to consider when setting a bond. Depending on which court the case is probated out for, the person may be released to “CSCD only” meaning the person could spend a few more days in jail after the bond is posted, just waiting for a probation officer to become available to process them out. (The typical example is someone whose bond is set on a Friday with “release to CSCD” as a condition. Even if the bond is posted, the person will likely not be released from custody until early to mid-morning on Monday.)

Unfiled Case Dockets

Every Tuesday and Thursday afternoon, individuals who are in custody but no case has been filed are brought to court to make bond determinations. An accused cannot be held without a reasonable or personal bond for more than:

• 90 days on a felony without an indictment
• 30 days on a Class A misdemeanor
• 15 days on a Class B misdemeanor
• 5 days on a Class C misdemeanor.

Warrantless Arrests

In the case of a warrantless arrest, there are special rules involving bail. In the case of an arrest in which there was a warrant, a magistrate has already determined that there is probable cause to believe the accused committed a crime. This is not so in the case of a warrantless arrest and the magistrate will be required to determine probable cause.

If someone is arrested for a misdemeanor, the magistrate must make a probable cause determination within 24 hours of arrest. If that determination is not made, the accused must be released on a bond not to exceed $5,000. But if the accused cannot obtain a surety or deposit the full amount of the bond, they must still be released on a personal bond.

If someone is arrested for a felony, the magistrate must make a probable cause determination within 48 hours of arrest. If that determination is not made, the accused must be released on a bond not to exceed $10,000. But if the accused cannot obtain a surety or deposit the full amount of the bond, they must still be released on a personal bond. (TX CCP Art. 17.033)

Contact our Tarrant County Defense Lawyers

If you or a loved one has been arrested for an alleged offense in Tarrant County, give us a call at (817) 203-2220 or send us a message online.

The post Tarrant County Central Magistration appeared first on Varghese Summersett PLLC | Fort Worth Criminal Defense Attorneys.