AVVO Answers

Answer: You will want to check with your attorney to make sure that you are receiving pretrial diversion and are not receiving deferred adjudication probation. If successful on a pretrial diversion, you are eligible to have the charges fully expunged (documents fully destroyed) from your record and can deny ever having been arrested, the only limited exception being that the DA that put you on pretrial diversion will keep a record that you were given PTD so that you can't go back and get it again in the future. Deferred adjudication is different in that you are not eligible for an expunction, and in that you plead guilty or no contest before a judge at the beginning of the probation. If successful on deferred adjudication you will receive no conviction, however the arrest and probation will be on your record until and if you are able to get a petition for nondisclosure signed (different from an expunction and does not actually result in destruction of records).

Part of the confusion may be that pretrial diversion programs are often administered through the probation department, but they will not involve a plea before a judge. Check with your lawyer to confirm which program it is, but in either event, you would not be "convicted of a felony," and could truthfully so answer on a job application.

Answer: In Texas, there is what is called The One Witness Rule, meaning that a criminal conviction can be sustained based on the testimony of one witness alone. I think there is this widespread confusion in the general populace about what constitutes evidence in a trial, that it must be something physical or tangible, but in reality, the vast majority (99+%) of all evidence is testimony from the witness stand, and hence, yes, the statements of the people who wrote them will be used to prove up probable cause for your arrest and, assuming they come to testify at your trial, will constitute evidence against you.

There is one caveat to this, and it is that if they are co-defendants of yours and not victims or independent witnesses that their statements may not be able to be used against you. Texas Code of Criminal Procedure § 38.14 states that "[a] conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense." This means that if they were allegedly accomplices or yours they would have to provide more detail than just the crime itself having been committed in order for their testimony to be admitted as proof against you.

Answer: I assume from what you've said that your sexfriend got charged with Assault Bodily Injury - Family Violence. All that is necessary to prove this charge is that there was nonconsensual bodily contact, that that contact resulted in bodily injury, which is defined as a physical impairment, visible injury, illness, or complaint of pain, and that the defendant and victim were now or in the past in a romantic, dating or sexual relationship. This charge is also applied to roommates and family members, but I am guessing from your use of the term sexfriend that these are not directly applicable. If you even told the police that it hurt when they touched you and you guys had sex once in the past, it is sufficient to sustain the charge, and because in these circumstances the prosecutors are concerned about what they call the "cycle of violence" they will undoubtedly pursue the charges on their own. This is not to say that they will not value your input, but they will take it with a large grain of salt as they are concerned that you may be being manipulated by the defendant into dropping charges. This is the most serious misdemeanor charge there is in Texas, and if convicted or placed on deferred adjudication, the next time your sexfriend had an accusation made against them they'd be facing a 3rd degree felony with 2-10 years in prison. He will need a lawyer to defend him on the charge, and if you're interested in seeing the prosecution drop the case you should make yourself available to speak to that attorney.

Answer: The first thing you should do is contact and hire a defense attorney. Depending on the judge, the attorney may be able to get the warrant changed to a summons, which would save you the cost of hiring a bail bondsman as well, but that may end up being necessary. In order to mitigate any punishment you may receive for not doing the class, not paying fees, and then for absconding from probation for 3 years, you'll at a minimum want to have completed the class that was ordered, and be prepared to pay any fees that are in arrears. This is not something to handle yourself, and the DA and judge are not people you should contact directly, as your admissions to them will be used against you in your revocation.

Answer: The relevant statute is Texas Penal Code § 30.05, which makes it an offense to enter or remain on property without the effective consent of the owner and when the person had notice either to leave or that their entering the property was forbidden. This second part is normally called a criminal trespass warning, and officers generally give it on behalf of a property owner so that it is documented, but any owner can give one, or any person who has the ability to consent to a person's being on the property. It's an entirely separate question whether the officers had the authority to give you the warning, and it may very well have been that the place you were at was closed to the public at that time, and in that circumstance there should be nothing barring you from returning when it is open. To your original question, however, such warnings do not expire unless rescinded.

Answer: Many people assume that paying tickets will be the fastest way to "clear them up," but when you go in without an attorney and merely pay the tickets, the almost guaranteed outcome is that you are pleading to convictions, and in Texas tickets are considered criminal offenses, and hence you're putting convictions on your record for life. In addition to this, unless you receive a deferred disposition when you pay off your tickets, you run the risk of incurring enough points to trigger a new suspension, that will come with surcharges, which if unpaid in years to come will be associated with new DL suspensions. Furthermore, at that point if caught driving on an invalid or suspended DL, you could be subject to arrest for a Class B DWLI offense, which can carry with it up to a $2000 and up to 180 days in jail.

If all this sounds bad, there is at least some good news, and that is that because Texas makes tickets criminal offenses, you are entitled to certain Constitutional rights which can be used as leverage by a good attorney to work out a set of favorable deals for you. I say a set because it is likely that these tickets are in different jurisdictions and set in different courts with different prosecutors and different judges and each one will require their own package deal to resolve. An attorney who works with those prosecutors locally will have the relationships necessary to have the credibility to explain your situation and humanize you rather than the prosecutor just looking at you as a blank check. This will help mitigate the amount you have to pay, but the other salient concern is fully extricating you from the situation without triggering new suspensions and surcharges that would keep you mired in the suspension cycle for years to come. It won't necessarily be as cheap as you'd like it to be in hiring an attorney, but neglecting the situation and not hiring an attorney will definitely be more expensive in the long run. Additionally, in hiring an attorney you will likely not be required to be present to resolve the charges.

Answer: The process to get a charge removed from your criminal history is called an expunction (or expungement), and there are some preliminary eligibility requirements. In order for a case to be expunged it needs to have been dismissed (not deferred adjudication) or the defendant must have been found not guilty at a trial, and the defendant must have received no convictions and no probation higher than a Class C deferred disposition out of that incident. In the event of an acquittal or if the defendant successfully completed a pretrial diversion program, the eligibility for the expunction is immediate, and in the event of a not guilty verdict, the filing fees are waived if it is pursued within 30 days of the verdict. If not the result of one of the above outcomes, and based upon a dismissal, the defendant must wait the statute of limitations, and add any time that the case was pending and filed (after the prosecutor filed a complaint or the grand jury returned an indictment in the event of a felony), in order to be eligible. It sounds like you're in this last boat, and it would depend on the amount of time since the case was dismissed and whether or not it was indicted, but in all likelihood the statute of limitations is 3 years.

Assuming all these requirements have been met, the defendant must file a petition with the district (felony) court requesting an expunction, and allow time before the setting for DPS and the local prosecutor to object or not object to the petition. The information in the petition must be signed and verified, and must contain a list of all the agencies that had any contact with the information pertaining to the arrest, as it is their records that you are intending to scrub. The filing fees for the expunction will vary, but are generally based upon the number of agencies that need to be notified. It is necessary that you, or the attorney you hire (recommended) do a thorough investigation so that no agencies are missed, because you really only get on bite at the apple here. If the attorney is doing a good job, because most background checks are done through third party websites that purchase criminal history data from DPS and maintain their own databases, the attorney must include in their order of expunction that the clerk notify all those private entities as well, and when I do one, I include a list of those companies, a list which is 8 pages long. Once the expunction is signed, the agencies have 60 days to comply, but generally it takes 6 months, and they have to either provide the records or a certification that they have been destroyed. The attorney should do a follow-up check with the clerk on this timeline to confirm that the records have been destroyed. The legal effect of an expunction is that the arrested person can deny the arrest, and can deny the existence of an expunction order, except when testifying in a criminal proceeding. There is one big caveat to this, however, and it is that if you are ever asked on a federal application you should consult with an attorney before choosing to deny outright the arrest, as usually it's best to mention it and say it was expunged so as to not potentially run afoul of 18 USC 1001. This is especially true in an immigration context, as this may become a basis for denial of your application due to a false statement, despite the Texas Code Crim. Pro Chapter 55 stating that you can deny the arrest.

This whole process is not something you should try on your own and you should hire an attorney in the county you were charged who is knowledgeable on expunctions and who will follow all the above-listed steps, because as I mentioned earlier, you only get one attempt to get it right.

Answer: Reading between the lines here I believe that they are charging you based on a combination of Texas Penal Code § 12.42(d) and § 12.425. §12.42(d) states that a defendant charged with a felony offense other than a state jail offense punishable under § 12.35(a) who has previously been convicted twice of a felony offense other than a state jail offense punishable under § 12.35(a) shall be punished by a term of confinement of 25-99 years or life. The two felony (3rd degree or higher) offenses that make the current charge enhanced to habitual offender must be from separate convictions, i.e. not out of the same incident, and generally two separate TDC trips. Furthermore, the specificity regarding state jail offenses that are punishable under § 12.35(a) is important and does not cover all state jail felonies.

To see how the prosecutors have gotten to the 25 TDC number we must look at § 12.425 (a) and (b). From subsection (b) we can see that an individual charged with a state jail felony who has previously been twice convicted just as above for non-state jail felonies, their punishment is enhanced to a 2nd degree felony, but 2nd degree felonies are punishable with 2-20 years TDC, and so this is not the section they are applying to get to the 25 TDC offer. They also cannot use the enhancing offenses twice, first to enhance it to a 2nd degree, and then say based on the prior two trips that that 2nd degree is to be punished habitually.

This brings us to § 12.425 (a), which allows for a state jail felony to be punished as a third degree when the defendant has been prior twice convicted, in a similar fashion as above of two state jail felonies. This is important because reading back into the language of § 12.42(d) above, this type of state jail felony is not punishable under § 12.35 (a) and hence is covered as enhanceable to habitual status.

TLDR; a defendant charged with a state jail felony who has two prior state jail trips and two prior TDC trips may be charged as a habitual offender with a punishment of 25-99 or life, and hence their offer is the minimum if all of these enhancements are being applied. You need a very good lawyer.

Answer: A background check of your criminal history will reveal the arrest, and if the check is complete it will reveal the probation and hopefully the type of probation, deferred adjudication. The reason I qualify this answer is that many companies that do background checks run them through online sites that maintain their own repositories of criminal history data that they purchase from the Texas Department of Public Safety, which maintains the true database. How updated the private company's database is and what information they give out will vary. You are, however, eligible for a petition of non-disclosure that, if granted (and it's discretionary) would order the clerk and DPS to not make your records available to the public. This is different from an expunction in that the records still exist, only law enforcement and prosecutors can see them (with a few other exceptions for licensing boards that have been carved out over the years). TL;DR: Right now it is very visible, but you can fix that by hiring an attorney to file a petition for non-disclosure. Make sure the order gets forwarded to the private websites so that it is effective as possible.

Answer: Most counties in Texas do not seem to have this option, but in Travis County, by way of counterexample, you can search through an attorney's misdemeanor results and see the resolution of their cases, sorted by case type. Here is their link: deed.co.travis.tx.us. This should be taken with a huge grain of salt, however, as no case is equivalent to another and an attorney is legally and ethically barred from giving you a guaranteed outcome. An honest and fair attorney will tell you this and give you a range of possible and likely outcomes after having done an in-depth interview of the defendant to make a proper assessment. That said, choosing the correct attorney is one of the most difficult and important decisions for the outcome of a case, and you're right to give it a great deal of thought.

Answer: You certainly won't get in any legal trouble, and he won't either, even for engaging in sexual intercourse with you, as for consent purposes you are considered an adult, however in a strange twist, if he (I'm just assuming that the older party is a male) were to film or photograph you engaging in a sexual act of any kind, with him or otherwise, it would be a violation of Texas Penal Code 43.25, and a 3rd Degree felony with a sex offender registration requirement. This prohibition applies until you reach 18 years of age. If this is actually someone you care about, both of you should take the utmost care, and beware that, the law aside, plenty of people will be looking for a reason to say he's violating some portion of this law and have him prosecuted, regardless of whether such a prosecution is successful.

Answer: If I read correctly, all charges were dismissed, so you should be under no per se restriction from owning or buying a firearm, as generally only a felony conviction or a conviction for a family violence offense will bar you from exercising your 2nd Amendment rights. When you purchase the firearm, however, you will have to fill out a federal form that the gun store will use to run a background check on you, and one of the questions you will have to answer is if you are now or ever have been a person dependent on Alcohol, Marijuana, or any other drug, and an affirmative answer to that question will disqualify you. Furthermore, lying on that form is a federal offense under 18 U.S.C. 1001 if you make a material misrepresentation, so tread lightly. I would get the offense expunged before buying a gun, which you will have to wait until the statute of limitations has run, in this case 3 years from the offense, and that period was tolled during the time your case was indicted or filed under a misdemeanor complaint, so add the time it was pending to the 3 years and then you will be eligible.

Answer: Texas Penal Code 32.31 governs Forgery, and it is considered forgery to pass a forged writing, which includes paper money. Specifically, "[a] person commits an offense if he forges a writing with intent to defraud or harm another." When you attempted to buy the food with the counterfeit bill it constituted passing a forged writing, so at this point they will have to prove the intent element, that you intended to defraud the owner of the business at which you attempted to buy the food. Likely this will turn on your prior history of similar actions to show under Texas Rules of Evidence 404(b) motive or intent, and also the nature of the money itself, i.e. if a reasonable person would notice upon examining it that it was clearly fake. The Walmart receipt will be of no use as it will not tie the specific bills to that receipt, and furthermore, it makes your story less credible as Walmart itself has very strong loss prevention methods in place that likely would have precluded them giving you not one, not two, but five fake twenties. Additionally the possession of five different fake twenties, if I read that correctly, makes the intent element easier to prove. This offense is a Class A misdemeanor punishable by up to a year in County Jail and a $4000 fine, but is also a crime of moral turpitude which will affect future employment and your ability to testify on your behalf in future charges against you and in court generally. TLDR; you need a lawyer.

Answer: Theft is an enhanceable offense, meaning that prior convictions, even Class C (fine only, like a ticket) convictions, make the next charge a higher grade of offense. Normally you get 2 convictions before it becomes a state jail felony, and if you were to keep offending and had received a State Jail sentence then you could be subject to even higher penalties. In this instance there is another applicable enhancement, that with a prior conviction for any grade of Theft, even a Class C, which is normally for items totaling less than $100 it becomes a Class B misdemeanor, punishable by 6 months in County Jail and up to a $2000 fine. It is worth noting that a Theft is a crime of moral turpitude and will have an effect on your ability to receive employment and testify successfully on your behalf in future charges against you, but if charged with this offense it is likely that you already have such a conviction. The IAT part of the charge means "if at trial," meaning that the prosecution would have to prove it at trial in order for it to be a Class B. Because different courts have jurisdiction over Class C's versus Class B and A misdemeanors, this is a jurisdictional element in this case. In all likelihood with a good attorney, you should be able to get the prosecutors to agree to a Class C misdemeanor, but if it is for a Theft conviction and not a deferred disposition, beware, as your next one is the aforementioned State Jail Felony.

Answer: Texas Penal Code §22.011(e)(A) lays out a defense to subsection (a)(2), which makes it an offense to have sex with a child, and states, "it is an affirmative defense to prosecution [that] . . . the actor was not more than three years older than the victim and at the time of the offense." This is often referred to as the Romeo and Juliet rule, and so you guys are in the clear. I understand why the other attorneys who answered the question would tell you no out of an abundance of caution and to avoid the wrath of overzealous prosecutors motivated by an angry parent as is often the case in these situations, but according to the law, there is nothing illegal in Texas with the fact pattern you described, assuming all the ages and birthdays are exactly as you've stated. The only caveat is that this exception would not apply to you if you're already a sex offender, which I assume is not the case.

Answer: A no contest plea results in either a conviction or a type of probation known as deferred adjudication where the judge accepts the plea and finds that there is sufficient evidence to find you guilty but holds off on finding you guilty until you are successful in completing the probation, and if you do complete the probation the charge is "dismissed." This type of dismissal should not be confused with an outright dismissal with no probation. Expunction of records is only available in the event of a true dismissal, after waiting the statute of limitations (unless through a pretrial diversion) or immediately after a verdict of not guilty, and in either event only if the defendant did not take any convictions or probation out of that incident. This is not an option in the event of deferred adjudication, however, a petition for non-disclosure allows for sealing of the records of a successfully completed deferred adjudication, and now due to a change in the law for some first time convictions. Unfortunately in this circumstance, it appears that the case was an Assault Bodily Injury - Family Violence, for which the Government code section which governs petitions for non-disclosure has a carve-out which states that no family violence charges can be sealed. TLDR: no, it is not able to be sealed or expunged, absent a writ of habeas corpus for ineffective assistance of counsel directed at your previous attorney.