Dallas Criminal Defense Law Blog

What is the Texas open container law?

admin — Sat, 14 Aug 2010 01:43:43 +0000

Texas Penal Code Sec. 49.031 is the open container law. Per the statute: A person commits an offense if the person knowingly possesses an open container in a passenger area of a motor vehicle that is located on a public highway, regardless of whether the vehicle is being operated or is stopped or parked.

There are some limited exceptions for taxi/limo services, and the dwelling compartment of a mobile home.

I have been asked to make a false statement on a mortgage application. Is this a crime?

admin — Sat, 12 Jun 2010 23:12:21 +0000

Yes, this can be a very serious criminal offense, resulting in substantial jail time for all involved. You need to be careful to ensure that every statement that you make in order to obtain credit (including a mortgage) is accurate. The same holds true if you are verifying the credit of another. Texas Penal Code Sec. 32.32(b) covers this offense.

A person filed a false document with the secretary of state’s office. Is this a crime?

admin — Mon, 17 May 2010 05:02:04 +0000

Yes. It is a misdemeanor (class A) to knowingly file a materially false document with the Texas Secretary of State’s office. If it the false filing was done with the intent to harm or commit fraud, then it can be a felony (state jail).

Sec. 4.008 Texas Business Organizations Code.

I sold some property that had a lien on it. I can’t afford to pay the lienholder. What is the punishment for this?

admin — Sat, 08 May 2010 01:43:21 +0000

If you sell secured property (property with a lien on it) and you fail to pay the secured party from the proceeds, you may be charged with Hindering a Secured Creditor, a criminal offense. The potential punishment for this is governed by Tex. Penal Code Sec. 32.33(e):

(1) a Class C misdemeanor if the proceeds obtained from the sale or other disposition are money or goods having a value of less than $20;
(2) a Class B misdemeanor if the proceeds obtained from the sale or other disposition are money or goods having a value of $20 or more but less than $500;
(3) a Class A misdemeanor if the proceeds obtained from the sale or other disposition are money or goods having a value of $500 or more but less than $1,500;
(4) a state jail felony if the proceeds obtained from the sale or other disposition are money or goods having a value of $1,500 or more but less than $20,000;
(5) a felony of the third degree if the proceeds obtained from the sale or other disposition are money or goods having a value of $20,000 or more but less than $100,000;
(6) a felony of the second degree if the proceeds obtained from the sale or other disposition are money or goods having a value of $100,000 or more but less than $200,000; or
(7) a felony of the first degree if the proceeds obtained from the sale or other disposition are money or goods having a value of $200,000 or more.

I just sold a property that had a lien on it. The lienholder demanded the money from the sale. How long do I have to pay the lienholder?

admin — Sat, 08 May 2010 01:38:39 +0000

As an ideal matter, a lienholder should be paid at closing. Texas penal code sec. 32.33(e) provides: a person is presumed to have intended to appropriate proceeds if the person does not deliver the proceeds to the secured party or account to the secured party for the proceeds before the 11th day after the day that the secured party makes a lawful demand for the proceeds or account.

There is a lien on my property. I just sold it for cash, but I can’t afford to pay the loan. Now the lienholder is trying to repossess. What can they do to me?

admin — Sat, 08 May 2010 03:34:04 +0000

A person who is a debtor under a security agreement, and who does not have a right to sell or dispose of the secured property or is required to account to the secured party for the proceeds of a permitted sale or disposition, commits an offense if the person sells or otherwise disposes of the secured property, or does not account to the secured party for the proceeds of a sale or other disposition as required, with intent to appropriate the proceeds or value of the secured property. Tex. Penal Code. 32.33(e)

What are the penalties for hindering a secured creditor in Texas?

admin — Sat, 08 May 2010 01:27:56 +0000

You need to look at Sec. 32.33 (d) of the Texas Penal Code for the penalties associated with Hindering a Secured Creditor:

(1) Class C misdemeanor if the value of the property destroyed, removed, concealed, encumbered, or otherwise harmed or reduced in value is less than $20;
(2) Class B misdemeanor if the value of the property destroyed, removed, concealed, encumbered, or otherwise harmed or reduced in value is $20 or more but less than $500;
(3) Class A misdemeanor if the value of the property destroyed, removed, concealed, encumbered, or otherwise harmed or reduced in value is $500 or more but less than $1,500;
(4) state jail felony if the value of the property destroyed, removed, concealed, encumbered, or otherwise harmed or reduced in value is $1,500 or more but less than $20,000;
(5) felony of the third degree if the value of the property destroyed, removed, concealed, encumbered, or otherwise harmed or reduced in value is $20,000 or more but less than $100,000;
(6) felony of the second degree if the value of the property destroyed, removed, concealed, encumbered, or otherwise harmed or reduced in value is $100,000 or more but less than $200,000; or
(7) felony of the first degree if the value of the property destroyed, removed, concealed, encumbered, or otherwise harmed or reduced in value is $200,000 or more.

Welcome to the Law Offices of David L. Leon, PC

admin — Sun, 02 May 2010 01:06:14 +0000

Thank you for visiting the law offices of David L. Leon, PC. This blog is for the discussion of legal topics, frequently asked questions, and common issues with Texas criminal law.

If you have general questions about other legal topics, please visit our other sites listed in our blog roll.

Thank you!

I’ve been charged with hindering a secured creditor? What is the punishment for hindering a secured creditor?

admin — Sat, 26 Dec 2009 06:59:27 +0000

This is governed by Texas Penal Code Sec. 32.33(e):

(1) a Class C misdemeanor if the proceeds obtained
from the sale or other disposition are money or goods having a value
of less than $20;
(2) a Class B misdemeanor if the proceeds obtained
from the sale or other disposition are money or goods having a value
of $20 or more but less than $500;
(3) a Class A misdemeanor if the proceeds obtained
from the sale or other disposition are money or goods having a value
of $500 or more but less than $1,500;
(4) a state jail felony if the proceeds obtained from
the sale or other disposition are money or goods having a value of
$1,500 or more but less than $20,000;
(5) a felony of the third degree if the proceeds
obtained from the sale or other disposition are money or goods
having a value of $20,000 or more but less than $100,000;
(6) a felony of the second degree if the proceeds
obtained from the sale or other disposition are money or goods
having a value of $100,000 or more but less than $200,000; or
(7) a felony of the first degree if the proceeds
obtained from the sale or other disposition are money or goods
having a value of $200,000 or more.

What is Online Harassment?

admin — Sun, 20 Sep 2009 22:46:24 +0000

Sec. 33.07 of the Texas Penal Code makes it a third degree felony if a person uses the name or persona of another to create a web page or post on a commercial networking site without permission and with the intent to harm, defraud, intimidate, or threaten another person.

The code section makes it a Class A misdemeanor to send an email, IM, text or similar communication that references any identifying information belonging to any person without obtaining the person’s consent, with the intent to cause the recipient to believe that the other person authorized the communication, and with the intent to harm or defraud any person. If the intent is to solicit responses by emergency services, then the act is a third degree felony.

(Full text of this statute was not available at press time.)

Legislative update: DWI warrantless blood tests

admin — Sun, 20 Sep 2009 21:43:57 +0000

Transportation Code Sec. 724.017 now allows law enforcement to extract a blood sample from a DWI suspect who is arrested (as defined in Ch. 49 of the Texas Penal Code) without a warrant. (See: SB 238). The blood test may be taken if the person is arrested, refuses a voluntary blood test and:

a.) an individual other than the arrestee has suffered bodily injury and was transported to a hospital or other medical facility for medical treatment;
b.) the person is under arrest for DWI with a child passenger under the age of 15;
c.) the officer has reliable information that the person has been previously convicted of DWI two or more times; or
d.) the office has reliable information that the person has been previously convicted of DWI with a child passenger under 15, intoxication assault, or intoxication manslaughter

FBI releases 2008 Mortgage Fraud statistics

admin — Tue, 14 Jul 2009 03:35:45 +0000

Full story here

What is a DWI enhancement?

admin — Sun, 05 Jul 2009 20:00:52 +0000

A penalty for a DWI conviction may be enlarged or enhanced under Sec. 49.09 of the Texas Penal Code. Typically, a punishment (or level of offense) is increased due to either a prior conviction for DWI, or because an emergency service worker was injured or killed as a result of a DWI.

What happens if someone dies as a result of a DWI?

admin — Sun, 05 Jul 2009 19:57:48 +0000

There are a number of things that can occur. On the criminal side, Texas Penal Code Sec. 49.08 make such action a second degree felony. The deceased person’s personal representative can also sue the drunk driver for wrongful death and for injuries that the deceased suffered before death.

What happens if someone is seriously injured in a DWI?

admin — Sun, 05 Jul 2009 19:29:40 +0000

The person was was intoxicated may be charged with Intoxication Assault, under Sec. 49.07 of the Texas Penal Code. if the intoxicated actor causes “a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ” that person may be charged with Intoxication Assault, a third degree felony.

What about flying or boating while intoxicated?

admin — Sun, 05 Jul 2009 19:25:44 +0000

Secs. 49.05, 49.06 and 49.065 cover flying, boating and assembling and/or operating an amusement ride while intoxicated. In most circumstances it would be a Class B misdemeanor.

What happens if you are charged with driving while intoxicated and you have a minor in the car with you at the time?

admin — Sun, 05 Jul 2009 19:23:21 +0000

You would violated Texas Penal Code Sec. 49.045. DRIVING WHILE INTOXICATED WITH CHILD PASSENGER.

That statute says:

(a) A person commits an offense if:
(1) the person is intoxicated while operating a motor vehicle in a public place; and
(2) the vehicle being operated by the person is occupied by a passenger who is younger than 15 years of age.
(b) An offense under this section is a state jail felony.

What is the legal definition of "intoxicated" in Texas?

admin — Sun, 05 Jul 2009 19:19:14 +0000

Texas Penal Code Sec. 49.01. (2) “Intoxicated” means:

(A) 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;

(B) having an alcohol concentration of 0.08 or more.

This means that if you have a Blood Alcohol Concentration (BAC) of less than .08, but you are not in the normal use of mental or physical faculties due to alcohol, you may still be considered to be intoxicated.

What statutes cover driving while intoxicated?

admin — Sun, 05 Jul 2009 19:16:40 +0000

Texas Penal Code Title 10 (Offenses against the public health, safety and morals) Chapter 49 “Intoxication and Alcoholic Beverages Offenses”

Is it a defense if a person who is charged with online solicitation of a minor, but the person with whom he was chatting wasn’t underage, and/or the meeting never occurred?

admin — Sun, 05 Jul 2009 17:07:49 +0000

No. It does not matter if the person to whom the actor is chatting is underage. 33.021 (1) states:

(1) “Minor” means:
(A) an individual who represents himself or herself to be younger than 17 years of age; or
(B) an individual whom the actor believes to be younger than 17 years of age.

Texas Penal Code Sec. 33.021:

(d) It is not a defense to prosecution under [TPC 33.021] Subsection (c) that:

(1) the meeting did not occur;
(2) the actor did not intend for the meeting to occur; or
(3) the actor was engaged in a fantasy at the time of commission of the offense.

(e) It is a defense to prosecution under this section that at the time conduct described by Subsection (b) or (c) was committed:

(1) the actor was married to the minor; or
(2) the actor was not more than three years older than the minor and the minor consented to the conduct.

What is the "online solicitation of a minor"?

admin — Sun, 05 Jul 2009 19:03:01 +0000

This is covered by Texas Penal Code Sec. 33.021. The gist of the code is that if a person who is 17 or older “commits an offense if, with the intent to arouse or gratify the sexual desire of any person, the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, intentionally:
(1) communicates in a sexually explicit manner with a minor; or
(2) distributes sexually explicit material to a minor”

The statute goes further, “A person commits an offense if the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, knowingly solicits a minor to meet another person, including the actor, with the intent that the minor will engage in sexual contact, sexual intercourse, or deviate sexual intercourse with the actor or another person.”

These actions are considered felonies.

I figured out my ex-(spouse/employer/friend)’s computer password. What happens if I log into their account?

admin — Sun, 05 Jul 2009 16:58:36 +0000

This conduct is covered by Sec. 33.02 of the Texas Penal Code “Breach of Computer Security.” (Depending on what happened after the breach, there may be other issues as well.)

Merely accessing the information is a Class B misdemeanor. If a harm occurs (such as a file being altered or deleted) or a benefit to the actor occurs (such as accessing financial accounts) the level of offense escalates. To calculate the offense, the State may aggregate all conduct.

For example, if Joe breaks into his ex-boss’s computer once and does nothing, it may be a misdemeanor. If Joe then breaks in three more times, and deletes files, or steals money, all four actions may be taken together to determine the appropriate level of offense.

Is it still a crime if I use identification from a deceased person?

admin — Sun, 05 Jul 2009 16:51:43 +0000

Yes. Sec. 32.51 of the Texas Penal Code specifically references falsely using the identification credentials of a deceased person as your own.

Is it illegal if I hire someone to do my term papers for me?

admin — Sun, 05 Jul 2009 18:46:09 +0000

Sec. 32.50 of the Texas Penal Code makes this a Class C misdemeanor.

The statute says, “A person commits an offense if, with intent to make a profit, the person prepares, sells, offers or advertises for sale, or delivers to another person an academic product when the person knows, or should reasonably have known, that a person intends to submit or use the academic product to satisfy an academic requirement of a person other than the person who prepared the product.
(c) A person commits an offense if, with intent to induce another person to enter into an agreement or obligation to obtain or have prepared an academic product, the person knowingly makes or disseminates a written or oral statement that the person will prepare or cause to be prepared an academic product to be sold for use in satisfying an academic requirement of a person other than the person who prepared the product.”

The statute has a safe harbor provision for jointly prepared assignments with school employees, tutors and transcriptionists.

I want to force someone to pay me a debt. Can I make a letter that looks like a summons, but says it’s not in order to scare them into paying me?

admin — Sun, 05 Jul 2009 16:36:37 +0000

No, this is a criminal offense under the Texas Penal Code Sec. 32.48. Under subsection (c) it is NOT a defense if the document states that it is not legal process.

First offense is a misdemeanor (class A), second one is a felony (state jail).

What are the penalties for making false statement on a mortgage application?

admin — Tue, 30 Jun 2009 00:06:52 +0000

The penalties under 32.32(c) are as follows:

(1) a Class C misdemeanor if the value of the property or the amount of credit is less than $50;

(2) a Class B misdemeanor if the value of the property or the amount of credit is $50 or more but less than $500;

(3) a Class A misdemeanor if the value of the property or the amount of credit is $500 or more but less than $1,500;

(4) a state jail felony if the value of the property or the amount of credit is $1,500 or more but less than $20,000;

(5) a felony of the third degree if the value of the property or the amount of credit is $20,000 or more but less than $100,000;

(6) a felony of the second degree if the value of the property or the amount of credit is $100,000 or more but less than $200,000; or

(7) a felony of the first degree if the value of the property or the amount of credit is $200,000 or more.

What is a pyramid scheme?

admin — Sat, 27 Jun 2009 19:38:16 +0000

A pyramid scheme (a/k/a franchise fraud) is an investment fraud scheme in which someone is offered a distributorship or franchise to market a particular product. This involves a fee to become part of the business. The real profit is earned by the sale of new distributorships and not by the sale of the products. Typically, the scheme is sold by telling new subscribers that they can remake their original investment by selling distributorships to two or more people, and so on. Soon, the lower levels of the pyramid are unable to find more people to buy into the scheme, and the scheme collapses. (Source: FBI )

What is a Ponzi scheme?

admin — Sat, 27 Jun 2009 19:15:52 +0000

A Ponzi scheme is an investment scam in which a company claims to be paying investors “profits.” However, the business is only bringing in money from getting other investors. For example, Company Z solicits investors A, B, C, who each pay in $1. The company then solicits investors D, E, and F who each pay $1. Company uses D, E, and F’s investments to note on A, B and C’s accounts that they have earned a “profit.” Company then solicits G, H and I, taking their money, and using it to show a “profit” for the accounts on D, E, and F. The cycle continues until people try to withdraw their investments, or until the company can no longer obtain fresh victims. Typically, no real investments are ever made. Another variation is that investments are made, but losses are ‘covered’ by fraudulently making income statements and covering the losses with the new investor’s money.

I verified employment for a friend who doesn’t work for me, so he could buy his house. Should I be worried?

admin — Sat, 27 Jun 2009 18:57:26 +0000

Yes. This is a violation of Texas Penal Code Sec. 32.32, among other offenses. These can carry with them significant criminal responsibility. Even though you may not have signed the credit application yourself, you may have “acted in concert” with the person committing fraud. You should obtain legal counsel immediately.

Is there a civil penalty in Texas for sending unsolicited commercial email (UCE or Spam)?

admin — Mon, 25 May 2009 22:39:21 +0000

Yes. Sec. 321.102 of the Texas Business and Commerce Code covers unsolicited commercial email (spam) that is sent within the state of Texas, in violation of Sec. 321.052. The statute provides:

VIOLATION OF CHAPTER: GENERAL CIVIL PENALTY AND INJUNCTIVE RELIEF.

(a) A person who violates this chapter is liable to this state for a civil penalty in an amount not to exceed the lesser of:

(1) $10 for each unlawful message or unlawful action; or
(2) $25,000 for each day an unlawful message is received or each day an unlawful action is taken.

Attorney Caught in Internet Sex Sting Suspended From Practice for 3 Years

admin — Sun, 11 Jan 2009 01:44:55 +0000

From law.com, the New York state Appellate Division agreed in a split decision to sanction a New York lawyer for allegedly

What is money laundering?

admin — Tue, 06 Jan 2009 06:00:12 +0000

Money laundering is the act of making money that came from an illegal source appear to have come from a legitimate source.

Money laundering in Texas is covered by chapter 34 of the Texas Penal Code. Put simply, handling (or supervising the handling of) money derived from (or used to further) illegal activity. It is not a defense if the person charged with handling the money doesn’t know of the exact nature of how the funds were obtained, just that such funds were used in or profits from an illegal act.

The penalties can be severe, and may include substantial jail time.

I think I may have a warrant. Is there an online source to check for warrants?

admin — Mon, 29 Dec 2008 07:57:10 +0000

Yes, the Collin County Sheriff’s office has a list of warrants online, which is available here. Dallas County has warrant searches online available here. If you believe you have a warrant, then you should also call each county’s department to double check, as the online forms may not be up to date.

What is hindering a secured creditor?

admin — Sun, 21 Dec 2008 23:37:59 +0000

Section 32.33 of the Texas Penal Code covers Hindering a Secured Creditor. Section (b) of the code states, “A person who has signed a security agreement creating a security interest in property or a mortgage or deed of trust creating a lien on property commits an offense if, with intent to hinder enforcement of that interest or lien, he destroys, removes, conceals, encumbers, or otherwise harms or reduces the value of the property.” This can also involve moving the property out of state to avoid having a creditor repossess it (see Section 32.33(1)).

Is it a crime to overstate your income on a mortgage application?

admin — Sun, 21 Dec 2008 22:59:27 +0000

Yes. Chapter 32 of the Texas Penal Code deals with Fraud. Specifically, Section 32.32 (b) of the Texas Penal Code (FALSE STATEMENT TO OBTAIN PROPERTY OR CREDIT) states “A person commits an offense if he intentionally or knowingly makes a materially false or misleading written statement to obtain property or credit, including a mortgage loan.” You need to be very careful when completing credit applications to ensure every state that you make is as accurate as possible. The penalties can be very severe, and may include substantial jail time.