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The Miranda Warning arose after several cases went to the US Supreme court. Finally, the opinion in Miranda v. Arizona directly addressed abusive police interrogations. In each of these cases, the defendant was questioned by police officers, detectives, or a prosecuting attorney in a room in which he was cut off from the outside world. In none of these cases was the defendant given a full and effective warning of his rights at the outset of the interrogation process. In all the cases, the questioning elicited oral admissions and, in three of them, signed statements… But our constitution protects these rights. The Constitution reserves many rights for those suspected of crime. One of the fears of the Framers was that the government could act however it wished by simply saying an individual was a suspected criminal. Many of the rights in the Constitution and
the Bill of Rights, such as habeas corpus, the right to remain silent, and the right to an attorney, are designed to ensure that those accused of a crime are assured of those rights.
Police were able to take advantage of the fact that not everyone knows their rights by heart. In fact, it is likely that most citizens could name a few of their rights as accused criminals, but not all of them. The police's position was that if the accused, for example, spoke about a crime without knowing that they did not need to, that it was the person's fault for not invoking that right, even if they did not know, or did not remember, that they had that right.
This was the crux of the issue in Miranda v Arizona. In 1963, Ernesto Miranda was accused of kidnapping and raping an 18-year-old, mildly retarded woman. He was brought in for questioning, and confessed to the crime. He was not told that he did not have to speak or that he could have a lawyer present. At trial, Miranda's lawyer tried to get the confession thrown out, but the motion was denied. In 1966, the case came in front of the Supreme Court. The Court ruled that the statements made to the police could not be used as evidence, since Miranda had not been advised of his rights.
Since then, before any pertinent questioning of a suspect is done, the police have been required to recite the Miranda warning. The statement, reproduced below, exists in several forms, but all have the key elements: the right to remain silent and the right to an attorney. These are also often referred to as the "Miranda rights." When you have been read your rights, you are said to have been "Mirandized."
Note that one need not be Mirandized to be arrested. There is a difference between being arrested and being questioned. Also, basic questions, such as name, address, and Social Security number do not need to be covered by a Miranda warning. The police also need not Mirandize someone who is not a suspect in a crime.
The following is a minimal Miranda warning, as outlined in theMiranda v Arizona case.
You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense.
The following is a much more verbose Miranda warning, designed to cover all bases that a detainee might encounter while in police custody. A detainee may be asked to sign a statement acknowledging the following.
You have the right to remain silent and refuse to answer questions. Do you understand?
Anything you do say may be used against you in a court of law. Do you understand?
You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future. Do you understand?
If you cannot afford an attorney, one will be appointed for you before any questioning if you wish. Do you understand?
If you decide to answer questions now without an attorney present you will still have the right to stop answering at any time until you talk to an attorney. Do you understand?
Knowing and understanding your rights as I have explained them to you, are you willing to answer my questions without an attorney present?
Many domestic violence charges result when police are called to a residence after a spouse, boyfriend, girlfriend, or sibling calls 911. Even if family members tell police they don't want to press charges, Prosecutor's offices have no-drop policies in place. Police agency policy is usually to make an arrest on the scene. This means that if police are called to someone's residence, somebody is going to jail that night and will face criminal charges.
Most cases of assault or domestic violence are Class A misdemeanors, punishable by up to one year in jail and up to a $4,000 fine. If the injury is serious or involves the use of a weapon, it can be charged as aggravated assault, a felony subject to a state prison sentence. Repeat offenders can also be charged with a felony. Some cases involve a charge of violation of a protection order in family court.
The criminal defense lawyers of Mock And Brown take domestic violence and assault charges very seriously. We never suggest that you plead guilty to a charge without a full understanding of how the conviction would affect your life from this point forward.
Even if you are given probation on an assault or domestic violence charge, the conviction will have serious collateral consequences on your life. For example, if a police officer is charged with domestic violence and resolves it by pleading guilty, taking a family violence course, and going on probation, his law enforcement career is over because he will no longer be permitted to carry a weapon. Possessing, purchasing or transporting a firearm after a domestic violence conviction is a violation of federal law.
Sometimes charges of domestic violence are used to retaliate against a spouse. These charges occur frequently in divorce cases, when they may be used by a spouse to gain leverage in a child custody or property settlement dispute. Conviction of Family Violence charges can prevent you from obtaining custody and even visitation with your children. If you are innocent of the charge of spousal abuse, our lawyers will provide you an aggressive defense and ensure that your rights are protected.
If you did commit the act, our lawyers will attempt to resolve the charges without a conviction. If often helps your case to enroll in counseling and anger-management classes.
Sex crime accusations can range from date-rape situations, to stranger rape, to child abuse, to lesser crimes such as public lewdness. If you have been charged with a sex crime, you should seek a lawyer's help as soon as possible.
The police will want to leave you with the impression that they are on your side. However, they are well-schooled in interviewing techniques. They know how to get people to say things that will help them prove the charges and eliminate possible defenses.
People who are accused of sex crimes—and child sex crimes in particular—are terrified for good reason. These cases carry very negative stigma, regardless of the principle that all persons are presumed innocent. In some instances, an ex-spouse makes a false accusation of child abuse to gain leverage in a child custody dispute.
Even though plea bargains may be available for a sex charge, our defense lawyers always take a cautious approach. Even if you receive probation in a sex case, you could be subject to sex offender registration for the rest of your life.
Defenses in Sex Crime Case
There are two basic defenses in a sex crime case:
•You weren't involved
•Sex was consensual (except in cases of statutory rape, in which consent isn't a defense)
DNA evidence can be strong evidence in a sex crime case. If you give a statement to police that it wasn't you and your DNA matches samples collected from the victim, then you may have thrown out both defenses. You should never say anything to police before you have received a lawyer's advice.
Taking a Polygraph Test
Most police investigators will ask you to take a polygraph test if you have denied guilt. However, we would not recommend that you take a police polygraph. A police conducted polygraph is frequently used as a prelude to intensive interrogation that lead to a confession that is very damaging evidence. Our lawyers can hire a reputable polygraph examiner who would work as our agent, protected by attorney-client privilege. This means the results of the polygraph would not be disclosed until we have had a chance to review it.
There are various forms of homicide. We have vast experience in the trial and investigation of homicide cases. Undoubtedly, being accused of a homicide is one of the most serious crimes a person can be charged with. Our experience allows us to evaluate the strength of the district attorney's case and prepare a strong defense. We handle all types of homicide charges:
•Manslaughter, which in Texas is called murder under the immediate influence of a sudden passion arising from an adequate cause. This reduces the level of the murder charge from a first degree felony to a second degree felony.
•Vehicular manslaughter, which is criminally negligent homicide by careless or negligent operation of a motor vehicle.
•Intoxication manslaughter, which is a killing someone in a car accident while you are legally intoxicated.
Defenses in a Murder Case
There are several defenses in a murder case:
•Not guilty due to insanity
•The death was caused by reckless or careless behavior, but the elements of murder were not present
If you are accused of murder, you should not talk to anyone other than your lawyer. Police investigators have extensive training in interrogation techniques, and when you are interviewed by them, you are on their turf and in their territory. Only an experienced lawyer can guide you through the process and help you avoid the traps. One possible trap that police often use is to try get you to say things that would remove possible defenses. For example, if you tell police it wasn't you, but DNA evidence later links you to the crime, you have already blown the other defenses.
The penalty for first-degree murder not less than 5 years and no more than 99 years of life in state prison. The penalty for manslaughter is 5 to 20 years in prison.
People who are regular and otherwise law-abiding citizens sometimes make bad decisions. One example is driving a motor vehicle while intoxicated (DWI). This offense can ensnare people who have never seen the inside of a courthouse.
A DWI is not a traffic ticket. It is a more serious offense that carries a penalty of up to 180 days in jail and up to a $2,000 fine for a first offense. Repeat DWI offenders increase their exposure to fines and jail sentences.
If you are convicted of DWI, you will have a permanent criminal record. You will have to pay a Texas driver's license surcharge of $1,000 a year or more for at least three years. Your auto insurance rates will increase if your policy is not cancelled. . In certain professions such as professional drivers or pilots, a DWI conviction can destroy a career.
Some people think that if they are a good person who has never been in trouble before, they will get a break on a DWI charge. The truth is what kind of person you are makes little difference. The County Attorney in most counties treat all DWI cases very seriously. Public interest groups such as MADD have put increasing pressure on prosecutors to be tough on DWI cases.
Many people refer to a DWI as "drunk" driving, but you should get that word out of your vocabulary. The legal term is intoxication. Intoxication has three legal definitions in Texas. A person is intoxicated if they have:
•A blood alcohol content of .08 or greater, measured by blood or breath
•Loss of normal use of mental faculties by reason of alcohol or other substance
•Loss of normal use of physical faculties by reason of alcohol or other substance
Your success rate in a DWI case drops if you take a breath test and fail. In the absence of more information, we typically would advise against submitting to a breath test whose accuracy can be in doubt. If you have already failed a breath test, then it's important for your lawyer to find a way to challenge the results of the test and the accuracy of the police machine known as an Intoxilyzer.
If you have been arrested for DWI, typically you will have had your driver's license taken and received a notice that it will be suspended. That notice tells you that you have 15 days from date of arrest to request a hearing on the suspension. If you fail to request this hearing, your driver's license will be automatically suspended for 90 days if you failed a breathalyzer test and for 180 days if you refused to take a test.
We strongly encourage clients to have us arrange a suspension hearing. This hearing provides an opportunity for your lawyer to cross-examine the arresting officer. This may give your lawyer evidence which can be used to defend you in your criminal DWI trial. Your lawyer's most important goal is to help you avoid a DWI conviction. Even if your driver's license is suspended, your lawyer can keep you driving legally with an occupational license in most cases.
Drug charges can range from possession of a marijuana cigarette to delivery or possession with intent to deliver of a significant quantity of cocaine,methamphetamine, heroin or other narcotics. Beyond the immediate concerns of jail or prison time, a drug conviction can have serious collateral effects on your life that come from a permanent criminal record.
If you have been charged with a drug offense, you should seek a lawyer's help as soon as possible to assess the strength of the state's case against you. The strength of that case depends not only on whether you were in possession of the drugs but also on whether the police followed proper procedures to discover and seize those drugs.
The legal definition of possession is whether a person has actual care, custody, or management of an item. If the drugs were found in your house, the prosecutor could claim you were in possession of the drugs even though you were not at home at the time the drugs were discovered. If the drugs were found in a car and there were other people in the car with you, the prosecutor would have to prove affirmative links between you and the drugs. The weaker those links, the more bargaining leverage your defense lawyer has.
The police need proper reasons to stop and search a person's car for drugs. Police also need a properly executed warrant to search someone's home. If the search and seizure violated your constitutional rights, your attorney can ask the court to review the actions of police. If the judge agrees that the search and seizure were illegal, the evidence will be excluded.
No lawyer can promise a result in any criminal case. However, with prompt action and guidance from your lawyer the consequences can be minimized. Sometimes it is possible to have charges dropped without conviction and the possibility of working with the prosecutor for pretrial diversion.
To obtain the best possible outcome, you should have a lawyer's help as soon as possible
Divorce can be one of the most difficult and painful events in the life of a family–for both the parents and the children.
In Texas, a divorce typically is based on insupportability of the marriage–also known as "no fault" divorce–although a divorce also can be granted on the grounds of abandonment, adultery or cruelty. However, a divorce will not be granted until two issues are determined: conservatorship (i.e.,child custody) taking into account the "best interests" of the children and division of the community property (i.e., the property acquired during the marriage, which is also known as marital property).
A divorce proceeding is initiated by either or both spouses filing a petition with the court. This may be a short document or a lengthy document depending upon the individual circumstances and the relief requested. The case will then be assigned to a specific judge who will preside over the proceeding until concluded. For example, in Burnet County, a divorce case will be assigned to the Burnet County Court at Law.
Before filing for divorce, at least one of the parties must be a Texas resident for at least six (6) months and a resident of the county where he or she files for divorce for at least the preceding ninety (90) days. A divorce cannot be granted until at least sixty (60) days after the divorce petition is filed. Neither the court, nor the lawyers, can shorten these time periods.
Divorces may be contested or uncontested. An uncontested divorce is one in which the spouses agree to the divorce, agree to the child custody arrangement, agree to the division of the marital property and agree to the division of their liabilities. In an uncontested divorce, one party files the petition to initiate the process. Then the parties wait sixty (60) days, go to court, announce that the divorce is not contested, agree on child custody and the property division, and leave the courthouse divorced.
A contested divorce, however, is a different matter. Each party typically hires an attorney. Depending upon the nature and amount of the marital property and level of acrimony, the divorce usually will take substantially longer than sixty (60) days to finalize.
In a contested divorce, securing the appropriate temporary orders is critical. Temporary orders govern all aspects of the divorce proceeding between the date the petition is filed and the date the divorce is granted, such as spousal support, custody and support of the children, living arrangements of the children, visitation of the children, payment of bills, possession and use of the marital assets–including the family home–payment of attorney's fees and other procedural matters. In some cases, a temporary restraining order (TRO) may be warranted to prevent harassment or prevent the sale or transfer of marital property.
After the temporary orders are entered, the discovery process begins. This is the process where the parties learn facts about their marriage and the nature and extent of their marital property. Discovery is critical in a contested divorce because it affords the parties an opportunity to learn information necessary to evaluate the case. It also is important for discovering, locating, recovering, valuing and dividing marital property. The discovery process cannot be completed overnight. It takes time to thoroughly evaluate the situation and gather the necessary information.
Discovery may be in the form of written questions directed to the parties through their lawyers. It also may be in the form of requests for copies of documents, such as deeds, vehicle and boat titles, bank account records, stocks and bonds, farm and ranch records, business records, tax returns, credit card statements, telephone records and other relevant documents. Discovery also may be in the form of oral testimony in a deposition. A Sworn Inventory and Appraisement listing the value of the parties' marital property and debts is prepared using the information collected during the discovery process.
Once the discovery process is completed, the divorce proceeding is resolved either by settlement or by trial. The trial may be before a jury or the judge alone. If the case is tried, the court will hear the evidence, and a jury verdict (or judge's ruling) will be rendered that determines the custody issue and the property division. The standard for deciding the custody issue is what is in the "best interest" of the children. The standard for dividing marital property and debts is what is "just and right." The practical application of these standards will depend on the facts and circumstances of each case.
The court will then enter the final divorce decree, which will establish custody and visitation rights, define and divide the marital property and liabilities, and assess attorney's fees and expenses. The final divorce decree also may provide for post–divorce spousal support (alimony). If the parties have not previously reached an agreement regarding alimony, the court may award it in certain limited situations where the parties were married for more than ten (10) years. In Texas, the maximum amount of alimony that may be awarded is $2500 per month for a maximum of three (3) years.
Like all final judgments entered by a court, a final divorce decree may be appealed. Even an agreed–upon final divorce decree may be modified if one spouse later learns that the other spouse misrepresented the nature and amount of marital property during the negotiations.
If you are contemplating divorce or your spouse has already filed for divorce, call our office for a free initial consultation. We are dedicated to creatively resolving your divorce–related issues and securing the final decree as quickly and efficiently as possible. As trial lawyers, however, we are prepared to go to war at the courthouse if need be. Our training and experience will insure that you receive your fair share of the marital property.
Making sure that the "best interests" of the children are properly addressed and a "just and right" division of the marital property is achieved is important because...family matters.