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Author Archives: Law Offices of G. David Smith P.C.

About Law Offices of G. David Smith P.C.

The Law Offices of G. David Smith P.C. specialize in Personal Injury and Criminal Defense

You are not your case

You are not your case.
One of the most important things to remember when you get into criminal legal trouble is to try to not let it consume you. In all likelihood, this is your first brush with the law, the end result of some combination of bad decision making and bad luck. But unless you are a member of the Gotti family, chances are you are not a career criminal.
You can feel bad, guilt, embarrassment, or just plain dumb after an arrest, but what you did (or are alleged to have done) doesn’t define who you are. Look around you; look at your friends, family accomplishments in life and everything else that makes up the majority of your day, week, month, and even year. Don’t focus only on those few brief moments where there was a lapse in judgment or simple twist of fate that brought you face to face with the criminal justice system.
At the end of the day, this too will end one way or another and you will be free to carry on with your life as usual. In the meantime, there is some value in letting a professional carry the burden of dealing with your criminal case for you. Let your lawyer handle the day in and day out rigors of dealing with the law, the complex rules, the technicalities, negotiation and preparation. Find the right one, and they will lay it all out for you and give you all the risks and rewards so you can make an informed decision knowing that the nebulous world of “what ifs” when you try to go it alone no longer exists. Let your lawyer handle the problems, let them deal with the daily stresses, and get back to being you. After all, they don’t call us “counselor” for no reason.

-Ryan K. Lee

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Weed, Texas (a little clarity about marijuana possession in Texas)

I haven’t actually checked, but since Texas has a town or city named after almost everything conceivable (Bacon, Turkey, and Coke just to name a few), there could be a Weed, Texas. But this isn’t a post about some tiny town with one stop sign in the middle of a farm to market road. It’s about pot, weed, grass, ganja, bud, swag, or any of the other myriad of names marijuana goes by. There is one thing we can all agree to call it if you are within the vast borders of Texas, and that is “illegal.” Sorry to the aficionados, those with medical issues, and future and former Coloradans, but there is no legal way to possess marijuana in Texas. De-criminalized? Nope, not that either. While there are some local jurisdictions in Texas that allow ticketing for small amounts of the green stuff, it is still a jail-able offense. Under 2oz, meaning anything from a “usable quantity” on up, is punishable as at minimum a Class B misdemeanor. Meaning the range of punishment is up to 180 days in the county jail and a $2,000.00 fine.

So where does that leave you? Are you really going to jail for a joint? Well, in most jurisdictions in Texas, the answer is yes, at least for the night you get caught anyway. But what about that 180 days? Well, probably not for that long, but that depends on a lot of things.

For now, we will skip past legal defenses to possession, and just go with being guilty. (If you want to know what the legal defenses are, you need to talk to a lawyer about the specifics of your case). So, you did it, you know it, and there is no good way to get around it. What happens now?

This can depend on your attitude at your arrest, your age, your responsibility level, and your willingness to cooperate with the things that the prosecutor’s office wants you to do to prove yourself worthy of a second shot.

Punishments can range from conditional dismissals that require drug screenings, probation where a conviction is deferred or not, all the way up to serving some jail time.  Probation for a class B can be up to 2 years and can include drug classes, reporting, drug screening, community service, and payment of fines and fees.

Some folks, believe it or not, ask for the jail time just to get it over with and move on. They don’t want to do community service, don’t have the money for fines and probation fees, don’t want to be monitored for months or years, they don’t want to quit smoking, or have any number of reasons that it just won’t work for them. Some important things to remember though is that a conviction (which if you choose jail, you will have) can affect you in ways you didn’t imagine for the rest of your life. Potential driver’s license suspensions, being denied federal student loan assistance and the effects on potential employment are just a few.

You may not like that marijuana laws in Texas are this way, you may wish things were different here, you are not alone (check out this poll by the Texas Tribune). If you want things to be different, you have two options, you can vote to change it, or move to Colorado (or Washington State.), but who wants that? Stay to try and change it and maybe one day we will have a Weed, Texas. Until then, know your rights.

by: Ryan Lee

 

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E-Filing in Texas

Apparently, the confusion over e-filing in Texas and House Bill 2302 passed by the legislature is widespread.  There is a concerted effort from the fine people over at the Office of the Court Administration to explain the new system, but since this bill went through the Senate Jurisprudence Committee, where I was General Counsel for the 2013 Regular Session, I figured I would go ahead and address some concerns and hopefully provide some clarity.

In December 2012, The Texas Supreme Court mandated e-filing across the state.  E-filing will be mandatory in the Supreme Court of Texas and in civil cases in the courts of appeals effective January 1, 2014.  E-filing will be mandatory in civil cases in the district courts, statutory county courts, constitutional county courts and statutory probate courts according to the following implementation schedule based upon the counties’ 2010 Federal Census population:

a. Courts in counties with a population of 500,000 or more – January 1, 2014

b. Courts in counties with a population of 200,000 to 499,999 – July 1, 2014

c. Courts in counties with a population of 100,000 to 199,999 – January 1,2015

d. Courts in counties with a population of 50,000 to 99,999 – July 1, 2015

e. Courts in counties with a population of 20,000 to 49,999 – January 1,2016

f. Courts in counties with a population less than 20,000 – July 1, 2016

The Texas Legislature, with the assistance of the Supreme Court and the OCA, drafted and passed House Bill 2302 to address the concerns regarding the costs e-filing.

Currently, e-filing is done as a toll road model, where the filer may have to pay the Electronic Filing Service Provider (EFSP) a fee for every filing and every transaction.

The new law addresses the costly toll road model by providing uniformity and base fees to the e-filing system. First, it provides for a $20.00 filing fee on any civil action or proceeding requiring a filing fee and any counterclaim, cross-action, intervention, interpleader or third party action in the Supreme Court, District Court, County Court, Statutory County Court, or Statutory Probate Court.  If any of these actions are filed in Justice Court, the fee is $10.00

This fee is being instituted to replace the statewide Electronic Filing Manager (EFM) and provide a free option for an Electronic Filing Service Provider (EFSP), which will be the TexFile EFSP. After paying the initial $20.00 (or $10.00 for Justice Court) filing fee, filers will be able to use the TexFile EFSP at no additional charge or fee for ANY subsequent filing. There will still be an option to use a different EFSP that charges their own fees, but there is no requirement to use one of these fee services.

The only other fee is the potential $2 per transaction fee the counties may choose to charge to recoup the costs of integrating with the e-filing system. To charge this $2.00 fee, counties first have to submit an affidavit to the Office of Court Administration (OCA) stating that they have costs to recover. The $2 transaction fee sunsets in 2019.

Widespread concern about the costs of filing cases in Texas skyrocketing due to e-filing are based on understandable misconceptions about the new system set to go into effect.  Hopefully, this post has addressed some of those concerns and ensures lawyers and parties across the state that e-filing will not create unwieldy burdens or limit access to the courts.

Ryan Lee

 

 

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You can’t prevent stupid, but there’s coverage for that.

Why should you give the insurance company more money for Personal Injury Protection and Uninsured/Underinsured Motorist Coverage?

Because car wrecks happen. They happen to you, they happen to me, they happen to any person who has been in or will be in a moving vehicle.  Even if you’re as careful as a naked man climbing a barbed wire fence, they can still happen, because let’s face it, there are more people in the world like this than there are of you.

The first rule of driving is to ALWAYS have insurance. Do you have liability for bodily injury (like the state of Texas requires)? Yes. Good. That means when you are at fault, the other persons injuries will be paid for by your insurance company. But what about when you are the victim? That is what things like Personal Injury Protection (PIP) and Uninsured/Underinsured Motorist (UM/UIM) protection is for. Don’t decline these. Because if that kid whose texting while driving only has the state required minimum coverage, and you end up taking a ride in an ambulance to the E.R. and need any extended care, chances are your medical bills will easily reach beyond $30,000.00 minimum.

PIP usually provides about $2,500 in coverage, regardless of fault for the accident.  It costs very little per month and is very easy to get.  Oftentimes, if it’s just a minor injury, PIP will cover all of your bills and can be sent straight to your doctor or chiropractor. It actually comes with your car insurance unless you sign to waive it. So don’t, keep it, use it, and be happy about it later.

UM/UIM is for the big stuff, or for when someone without insurance hits you and you are injured. It’s not terribly expensive, and is way better than having to pay out of pocket for medical bills and treatment from an accident that wasn’t even your fault. It covers the bills that go beyond the at fault drivers coverage, up to the limit you selected when purchasing insurance.

So, to sum it up, as much as  I hate to advocate for making insurance companies more $ so they can spend it on useful things like sponsoring the World Series instead of paying out claims, it really is the smart thing to do.

 

by: Ryan Lee at The Law Offices Of G. David Smith, P.C. 

 
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Supreme Court strikes down Voter ID.

The United States Supreme Court struck down Arizona’s voter ID law today 7-2.  Justice Scalia wrote the the opinion for the majority.  As Criminal Defense lawyers, we don’t find ourselves agreeing with him all that often, but he got this one right.  

 

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The TED Blog: Telling Stories, Spreading Ideas

TED talks are always so interesting and informative. A great and entertaining way to learn from some of the best in their respective fields.

The WordPress.com Blog

This week, TED’s summer conference, TEDGlobal 2013, kicks off in Edinburgh, Scotland. At TEDGlobal, the world’s innovators and thinkers gather to tell stories and share knowledge — it’s where disciplines and perspectives in business, technology, culture, and the arts merge and cross-pollinate, and where attendees are asked to pause and Think Again.

Sounds inspiring, doesn’t it? If you’re not attending, you should know you can always get your dose of TED on the TED Blog, a WordPress.com VIP site. But we should warn you: there’s so much to discover on the TED Blog — it may just overload your brain.

Since many of you are out there writing, creating, and finding ways to share your own ideas with the world, we think that’s a good thing.

TED Blog

Here’s a sampling of what you’ll find on the TED Blog:

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Expunge Me Not

“Can I get my record from when I was young/a kid/apparently temporarily brain dead expunged?”  This question is common, and valid. We all make mistakes, and as the years go by and we have proven ourselves responsible, upstanding citizens we expect there to come a point when those mistakes aren’t held against us. Right? So we start to wonder about that funny legal term; expunction. Expunction, when applicable, is a procedure to have all records of an arrest, charge, court proceedings and sentencing returned to the court and destroyed. Literally, returned to the court and destroyed. Sounds great, but does your criminal case qualify for such an extraordinary measure?

The problem is, unlike all those hijinks on your “permanent record” from elementary and high school, your criminal record will not disappear with your acne and awkward teenage years.  Why not? Look no farther than the statute itself.  Article 55.01 if the Texas Code of Criminal Procedure gives us the very narrow circumstances under which a person has a right to an expunction. The right exists when: someone was tried and acquitted; convicted and subsequently pardoned (and good luck getting Mr. Perry on the phone for that one); someone is granted relief on the basis of actual innocence; or the person has been released and the charge has not resulted in a final conviction, is no longer pending, and there was no court ordered community supervision under Article 42.12 for the offense.

It’s that last part, about the community supervision, that seems to trip most people up. Yes, many people are given a deferred adjudication for an offense and put on probation. Some of them even make it all the way through on probation without getting revoked and adjudicated guilty. Then, once that probation is complete, the charge is dismissed and there is no final conviction. However, that fact that there was probation qualifies (typically) as community supervision, whether you reported to a probation officer or not. I should point out that these rules apply to class B misdemeanors and up, excluding class C misdemeanors which tend to be akin to traffic tickets and the like.

So you got arrested, and got the charge deferred, and successfully completed probation. That is all great, and you won’t end up with a criminal conviction, which was worth it. But are you entitled to have all evidence of your arrest, court proceedings and charges completely and finally obliterated? Sorry, but the answer is probably no.

There are other alternatives, such as an Order of Non-Disclosure, that the judge likely mentioned during your sentencing. No one will blame you for not remembering that little detail when you were being sentenced, as there was probably a-lot of other things occupying your mind.  The order of non-disclosure doesn’t destroy any records like an expunction will, and the police and other law enforcement agencies will still have access to your record as will a whole slew of licensing agencies. But if you are looking to keep John Q. Public from finding out about that one and only time you decided to try your hand at being a small time criminal, only to learn you were worse at it than long division and remembering what the Pythagorean Theorem is, maybe this option is right for you, even if the clerks at the courthouse won’t be building a little bonfire with your criminal record.

By: Ryan Lee

As usual, please do not take this as legal advice about your specific case. If you have questions, please contact a criminal lawyer.

 

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