Kim K. Ogg, Managing Partner, The Ogg Law Firm PLLC presents: Houston Bar Association Family Law Section

1. Crimes statutory violations found in many of the Texas Codes a. Felonies - State Jail; First, Second & Third Degree crimes punishable by a sentence in the penitentiary and a fine. b. Misdemeanors Class A & B are punishable by a sentence in jail, plus a fine C. Misdemeanors Class C are punishable by a fine only

Felony convictions result in loss of constitutional rights such as voting, possession of a gun and/or retention of certain occupational licenses. Felony DWI, Possession of any Controlled Substance, Evading Arrest convictions result in TDL suspension. Following incarceration, an offender is released on parole (exceptions exist). Parole includes conditions such as reporting, being employed, paying restitution.

No loss of civil rights occur with a misdemeanor conviction. Occupational licensing can be impacted. Misdemeanor Possession of Marijuana or other controlled substances and DWI results in TDL suspension. TEX PENAL 12.03 (2011); TEX PENAL 12.21 (1-3)

Conviction Acquittal Dismissal No Bill of Presented Indictment All of these possible outcomes of criminal cases are admissible in evidence, although the documents containing such information may be subject to objection and even exclusion.

Criminal offenses committed while a defendant is a juvenile (under 17 years old in Texas and under 18 years old in some states. Records of these cases are not generally discoverable, nor admissible in evidence except for proceedings conducted pursuant to Title III, Family Code, in which the witness is a party. TRE 609

Jail or prison time upon release, an offender is on parole; federal convictions are followed by conditional release; conditions of parole and conditional release vary Fine/Special fees condition of release from jail/prison Probation aka Community Supervision supervised release of an offender serving a sentence outside of prison/jail; conditions vary Deferred Adjudication judge defers finding of guilt and places offender on probation for a period of time, at the conclusion of which, the case is dismissed by the court. Deferred Prosecution aka Pre-Trial Diversion the prosecutor and defendant agree to a dismissal by the District Attorney following completion of the agreement;

Probation referred to by statute as community supervision; it is the suspension of a jail or prison sentence resulting from a plea or finding of guilt; it is a conviction. Conditions of probation may include monthly in-person reporting, payment of fines and restitution, community service, and many others. Community supervision sentences can run up to two years for misdemeanors and up to 10 years for felonies. Possible Outcomes Successful/unsuccessful completion; revocation of probation to any term within sentence. Probation IS A CONVICTION. Probation renders an offender s record ineligible for expunction and non-disclosure of record. TEX. CODE CRIM. PROC. Art. 42.12

Deferred Adjudication when a court defers a finding of guilt and places the defendant on community supervision; if successfully completed, the case is dismissed. Possible Outcomes Successful/unsuccessful termination; revocation of Deferred Adjudication to any sentence within the range of punishment. Whether or not successfully completed, but not revoked, is not a conviction; record not eligible for expunction; record eligible for nondisclosure.

Deferred Prosecution aka Pre-Trial Diversion The prosecutor and defendant enter into an agreement for a period of case suspension with dismissal following completion of the agreement; community service often a condition; only statewide program = DIVERT; case dismissed by DA at conclusion of agreement; record eligible for expunction.

When the prosecution files a dismissal, the criminal case is concluded. Motions to Dismiss are referred to as a nolle. Prosecutors generally provide a reason for a dismissal and it is reflected on a nolle. Prosecutors sign the nolle, as does the judge. When a defendant successfully completes a deferred adjudication sentence, the court enters a notation of dismissal on the judgment and sentence, but the prosecutor does not file a nolle. This type of dismissal is different from a dismissal filed by the prosecution and is only signed by the judge. A dismissal renders a defendant s record eligible for immediate expunction in a felony, but not in a misdemeanor case, where the offender must wait for the statute of limitations to expire.

A grand jury No Bill means that no probable cause to believe a crime occurred was found; concludes a criminal case. However, a criminal case can be re-presented an unlimited number of times to an unlimited number of grand juries, subject to the statute of limitations. A No Bill is a result which is placed on the face of the indictment by the foreperson of the grand jury. A No Bill renders a defendant s record eligible for immediate expunction.

Arrest Record of an individual defendant Offense Report from Police Agency regarding a criminal investigation Physical evidence collected as part of the criminal investigation photos, clothing, blood, BAC records, weapons, drugs, etc. District/County Attorney s Office file (contain some or all of the police agency records, but not the physical evidence) - In larger jurisdictions, the District Attorney s Office prosecutes felony and misdemeanor crimes, but in smaller jurisdictions, the County Attorney s Office prosecutes misdemeanor and juvenile crimes. Clerk s Office file contains all pleadings and records filed with the court Judgment and sentence the formal record of a criminal case and its disposition TDCJ Pen Packets the record of the offender s incarceration; contain a j & s and sometimes other records related to incarceration activities/events Probation Department records contain the offender s compliance/non-compliance records Parole Division records contain the offender s compliance/non compliance records Juvenile case records sealed; available by statute for specific purposes only, not including civil suits such as family cases

Arrest Record not available Offense Report from Police Agency regarding a criminal investigation available Physical evidence collected as part of the criminal investigation photos, clothing, blood, BAC records, weapons, drugs, etc. conditional availability District/County Attorney s Office file (contain some or all of the police agency records, photos, but not the physical evidence) available if case completed Clerk s Office file contains all pleadings and records filed with the court available; if old may be in archives; misdemeanor files destroyed after 5 years Judgments and sentences - available

Police Calls for service to a specific address are a record of events reported to the police and are kept by the responding law enforcement agency. Every location (address) falls within a municipal, county, and state jurisdiction and each jurisdiction may have its own law enforcement agency. In cases involving domestic violence claims, the calls for service to a residence or place of employment can substantiate or disprove a claim. These records are available.

Employment Records governmental agency - available Private employer sometimes available Protective Orders The Protective Order itself will contain all relief granted by court related to a claim of violence by a party in a dating relationship or who has been a member of same household Additional information may be contained in the District Attorney s file Additional information may be contained in the Police Offense Report There records are available

Public records Subpoena Freedom of Information Request Texas Open Records Act

Accusation of criminal activity may be admissible testimony, but it is subject to being tested for credibility, ie. Demand for evidence. Appropriate and admissible evidence includes judgments and sentences, which are documents under seal and automatically authenticated under TRE 901 Criminal history summaries obtained from the Clerk s Office are inadmissible hearsay. (They may, however, be used as a guide for cross examination by a practitioner.) Public Data.Com, and other public database summary evidence, is inadmissible hearsay. Private data bases such as TCIC or NCIC are not accessible to civilians and are inadmissible hearsay. Any criminal offense report, employee file or data obtained from a police agency or a District/County Attorney s Office can be admissible as a business record, subject to a hearsay within hearsay objection, requiring the presence of the maker of such hearsay statements to overcome such objection.

TRE 902 Authentication public records, documents under seal TRE 802 Hearsay TRE 803 (6) Hearsay Exception - Records of a regularly conducted activity Affidavit on file 14 days live testimony from custodian TRE 602 Lack of Personal Knowledge (Hearsay within Hearsay) TRE 803 (8) Public Record TRE 607 Hearsay within hearsay Solutions/Options: Redaction

TRE 804 (22) Judgment of Previous Conviction. In civil cases, evidence of a judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), judging a person guilty of a felony, to prove any fact essential to sustain the judgment of conviction In all cases, the pendency of an appeal renders such evidence inadmissible. TRE 608 (b) Prevents use of Specific Instances of Conduct as Evidence in cross examination to attack a witness credibility TRE 609 Convictions may only be used if they are less than 10 years old (since date of release) and no intervening crime has occurred TRE 401, 402, 403, 404 Relevance, relevance, relevance..best interest

Present the witness with a judgment and sentence of conviction/deferred adjudication for a criminal offense (identify the crime) Ask witness to admit/deny being the same person named on the face of the judgment If denied, proof must be presented that the witness is the same person identified on the judgment (fingerprint expert) Ask witness to admit/deny the sentence Ask witness about the facts of the criminal case when relevant to best interest test Be prepared to produce witnesses on important points to impeach

Question the witness about the facts behind an arrest or conviction using an offense report Get witness to admit/deny as many of the relevant facts contained in the offense report Tie the offense report to a judgment and sentence of conviction/deferred adjudication for a criminal offense (identify the crime) or to a dismissal or no bill, if defending a witness Ask witness to admit/deny any relevance between the criminal activity in the report and the family case before the court If hearsay within hearsay objection is levied and upheld, produce the witnesses in the offense report to testify from personal knowledge about the defendant s actions

Under Texas law, victims of violent crimes such as sexual assault, kidnapping, aggravated robbery, or any other crime causing bodily injury, or the close relatives of someone killed by a criminal act, have rights that include the right to: Information about services, including compensation Access to counseling, assistance, and other victim services Privacy and, to the extent possible, confidentiality of identity Basic information about the case, such as the case number and assigned court Consideration by the judge of a Victim Impact Statement, in which the victim describes the impact of the crime on the victim and his or her family Notification about scheduled court hearings and plea agreements, and to be present at public court proceedings Notification about the escape from imprisonment of the person convicted of the crime Victims of sexual assault also have the right to payment for medical examinations. The law, however, provides no relief for violation of these rights. Tx.C.C.P. Art. 56

Avoidance of testimony at pre-trial hearing, in discovery process, or trial Right to Quash a Deposition Right to Quash properly propounded discovery in a civil matter Exemption from a family court order requiring them to perform/execute tasks related to possession/access/support of children Automatic designation as the parent with exclusive right to designate residence of child Right to quash an order to mediate (absent family violence) Tx.C.C.P. Art. 56

The Texas Crime Victim s Compensation Act provides that a victim of a violent crime may receive compensation for certain expenses or losses, such as medical expenses or loss of support if the crime victim becomes unable to support dependents. Forms are available on the OAG website; attorneys rarely assist because compensation is limited to $300 There are requirements that must be met for a victim to get reimbursement: report the crime within 72 hours of its occurrence; cooperate in the investigation and prosecution process; cannot be responsible in any way for the crime; file a claim for compensation with the Texas Attorney General's Office within one year of the crime; Maximum recovery is $25,000 and up to $50,000 in extreme cases. No compensation if victim received payment from the offender by way of restitution or through insurance proceeds. Tx.C.C.P. Art. 56

Sex Offender Registration is required for those convicted of sex crimes, or even sentenced to deferred adjudication, or on appeal Sex offenders are ranked and classified by TDCJ on a risk scale. Neighbors of sex offenders high on the risk scale are notified by publication and direct mail by DPS Sex offender registration laws are retroactive, although certain gaps exist for offenders convicted prior to certain dates Violation of sex offender registration laws by sex offenders are new felony offenses Additional conditions of parole, supervised release and probation may be imposed on sex offenders and include prohibitions on offering Halloween candy to youngsters, posting signs at/on their residences, living within a certain prohibited distance from schools, being unaccompanied in the presence of a minor, allowing minors to visit their residences etc. Tx. C.C.P. Ch. 62

. A person who has a reportable conviction or adjudication or who is required to register as a condition of parole or probation is required to register (within 7 days) with the local law enforcement authority in any city/county where the person resides or intends to reside for more than 7 days. Registration requires: offender's full name, date of birth, sex, race, height, weight, eye color, hair color, social security number, driver's license number, and shoe size; address at which the person resides or intends to reside or, if the person does not reside or intend to reside at a physical address, a detailed description of each geographical location at which the person resides or intends to reside; aliases home, work and cellular telephone number of the person; recent color photograph complete set of the person's fingerprints type of offense the person was convicted of, the age of the victim, the date of conviction, and the punishment received Status of probation, parole or mandatory supervision each license held or sought by the person employment or education information any online identifier established or used by the person; and Within 3 days, the local law enforcement agency is to notify any public or private institution of higher education, to any authority for campus security for that institution. Within 7 days, the local law enforcement agency is to verify the offender s address/location. Offenders are required to verify that everything on form is complete and accurate. Tx.C.C.P. Art. 62

Texas Department of Public Safety website Public data base, County/District Clerk s Offices Judgments & Sentences contains the conditions of probation Probation file Jail Records - contain info re: classification, medical treatment Offense Reports Protective Orders Additional records of sex offenses may be maintained in municipal, county, state and federal law enforcement agencies, district and county clerk s offices, prosecutor s offices, department of transportation, educational institutions, immigration, labor, private businesses, religious institutions, etc.

Criminal street gangs are defined as three or more individuals with a common sign, symbol or leadership who regularly or continuously engage in criminal activity Gang membership/association is not defined in Texas law. Gang membership/association is not illegal The maintenance of gang membership information by law enforcement agencies is governed by federal and state law; the records cannot be accessed by non-law enforcement However, gang membership is admitted in court through the opinion testimony of gang experts and is based upon a three point criteria for gang member identification required of law enforcement agencies that maintain gang member files The term gang crime; is a non-legal definition; law enforcement agencies define the term differently and have different policies regarding the collection of gang crime statistics Tx. Penal Code Ch. 71; Tx. C.C.P. Art. 61

Obtain a criminal street gang expert Review the evidence of gang activity which is the basis of the expert s opinion Involvement in a gang crime or with gang members as documented by police Gang membership as documented by police Tattoos Clothing Writings Photos Social media communications Witnesses to admissions by party Ask witness to admit/deny gang membership, association Cross examine witness with evidence which is the basis of the expert s opinion and admit/deny Use expert to impeach witness through opinion testimony TRE 403, 404