Do I Need An Attorney to Talk to the Police?

The short answer is…it depends

If you are a victim or a witness to a crime you will want
to talk to the police.

If you are a suspect, the answer is always YES! You need an attorney.

Once they read your Miranda Rights, absolutely tell them you want an attorney and quit speaking. Do not ask them any questions, or ask them to explain anything. Be polite and respectful, but insist on your attorney being present for anymore questions.

Miranda Rights
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 an attorney.
If you cannot afford an attorney, one will be provided for you.
Do you understand the rights I have just read to you?
With these rights in mind, do you wish to speak to me?

Law Professor James Duane stresses that the best course of action if you want to avoid being prosecuted for a crime you didn’t commit is simply never to talk to the cops.  At all. Period.

As a result, if you’re approached by a police officer you’re legally obliged to tell them your name and what you’re up to at that exact moment, but beyond that Duane recommends sticking to the words: “I want a lawyer”. In 2008, Duane, a professor at Virginia’s Regent Law School, gave a lecture about the risks of talking to police that was filmed and posted to YouTube . His argument, which he’s since expanded into a new book called You Have the Right to Remain Innocent, is that even if you haven’t committed a crime, it’s dangerous to tell the police any information. You might make mistakes when explaining where you were at the time of a crime that the police interpret as lies; the officer talking to you could misremember what you say much later; you may be tricked into saying the wrong things by cops under no obligation to tell you the truth; and your statements to police could, in combination with faulty eyewitness accounts, shoddy “expert” testimony, and sheer bad luck, lead to you being convicted of a serious crime.

Prof. Duane thinks that you shouldn’t even tell the police that you are refusing to talk. Your safest course, he says, is to ask in no uncertain terms for a lawyer, and keep on asking until the police stop talking to you.

Besides, the police don’t think you’re innocent. Unfortunately as a suspect you cannot trust the police. You are the guilty one in their eyes. They just need to get a confession. The police are allowed to use deception during interrogations, such as saying a co-defendant has already admitted guilt, they have your DNA, fingerprints or video. If you’ve gotten this far without an attorney, Stop!!  Immediately ask for an attorney.

“What if I’m guilty?”

Most importantly, you need to exercise your right to remain silent and have an attorney. Your attorney will work to ensure you have adequate legal representation in court, and are subject to a fair trial. Your attorney will also try and get an appropriate and reasonable charge for the crime you are accused of.

Therefore, if you or someone you love has been charged with a crime in Montgomery County or surrounding counties, you should seek a qualified lawyer such as John E. Choate, Jr., Attorney at Law, who can handle your case with experience. Call (936) 441-2999 Attorney John E. Choate, Jr. at Conroe Law Office.

Texas Constitutional Carry

The term “democracy” is often used erroneously to describe our system of government. It seems to be especially popular among politicians who happen to find their party out of power. “What he is doing is harmful to our democracy!” is almost a religious chant today.

But, if we don’t have a democracy, what do we have?

Our Union (not “nation” or “country”) was established with a representative republican form of government, but today we have lost the republic and our “representatives” seek office only to magnify and multiply their own opinions and votes, apparently.

Here’s what I mean: this year the Delegates to the Republican Party Convention in San Antonio set what they call “Constitutional carry” of firearms as the #1 priority for the majority Party in this session of the Texas Congress.

“Constitutional Carry” is bad terminology, but suffice it to say that it is meant to repeal the costs associated with legally carrying a firearm in Texas. Nothing about it would authorize anyone to carry if they couldn’t qualify under the present law and pay the associated fees and licenses.

A new Speaker of the Texas House was elected for this session after several sessions under Joe Straus, a man most conservative Republicans thought far too liberal. Dennis Bonnen proceeded to follow in Straus’ tracks almost step by step, appointing liberal Democrats to Chair key committees that would handle conservative legislation, including Constitutional Carry.

That should have cued anyone to know that Bonnen was opposed to this legislation that is overwhelmingly supported by his own Party, and has many supporters in the Democrat Party along with Libertarians.

The Bill had been stalled in the House Homeland Security and Public Safety Committee chaired by Pancho Nevarez (D) Eagle Pass for weeks before the well-publicized incident with Mr. Chris McNutt, Executive Director of Texas Gun Rights, so neither of these men intended to ever let this Bill get to the floor for a vote anyway.

Now it has been made abundantly clear that the Speaker just flat lied about what happened at his house in Lake Jackson as well as at a fundraising event at which he was scheduled to speak and stormed out after confronting Mr. McNutt.

The DPS Trooper’s testimony as well as bodycam footage shows that Mr. McNutt was unarmed and never stepped on the Bonnen’s property, regardless of what the Speaker says.

So, how can we have a representative republican government here in Texas if one man, in complete disdain for what the people want, stops proposed legislation from even getting a hearing?

If legislation with overwhelming support of the people cannot be heard or voted on we have an oligarchy, certainly not a republic!

 A Conroe lawyer, John Choate Jr., has seen the abuse of political power in our great State of Texas and has assisted many citizens.  Call the Conroe lawyer with your questions or concerns.

The State, Mental Health and Our Kids

With an increased emphasis on mental health coming to the public attention in the last few years it is inevitable that governments, including the Texas Congress, would become involved.

While most of this emphasis may be driven, at least among the average citizen, by school violence, there are many other reasons for this renewed focus as well.

Several Bills dealing with mental health of students in Texas public schools have been introduced in this session of the Texas Legislature. There are good points and bad in all of them to be sure, but let’s narrow our focus to one Bill, HB 10.

This Bill purports to “establish a State wide research framework focused on preventing, identifying, and treating mental health conditions”.

That may sound good, but I am always concerned when any State law seeks to take an issue of schools and education out of the hands of local school boards and parents, and places it in the “care” of the State.

This Bill does exactly that. And it is undoubtedly political under its skin, having one member of the institute appointed by the Governor, one by the Lt. Governor, and one by the Speaker of the Texas House.

How long do you think that will remain “independent” or purely focused on the mental health of Texas children?

Now let’s look at this in a little more depth; among the things this “Institute” will be identifying and treating are (2)(B) “external factors that MAY result in behavioral health issues”.

Most will look at that and think of substance abuse or violent home life, but this is all totally subjective. We already have doctors instructed to ask minor children if their parents have firearms in their homes, and how many. I will assure you that there are some mental health professionals who will see firearms ownership alone as reason enough to “flag” a child as “endangered”.

The list of things that may trigger a “flag” is as long as the list of men and women doing the flagging.

I believe we should be focused on returning control of local schools to local school boards and parents, and getting Austin and DC completely out of them!

The very idea that a politically appointed board would have the authority to flag your child as a mental health risk should scare the bejeebers out of Texans!

A Conroe lawyer, John Choate Jr., has seen the abuse of political power in our schools and has assisted parents.  Call the Conroe lawyer with your questions or concerns.

Texas Looks at Legalizing Medical Marijuana

Recent polls show that 84 percent of voting Texans believe the state should legalize marijuana for some uses, but an outright repeal of the prohibition against the drug is unlikely to happen anytime soon in the state.

Policymakers are focused on expanding medical marijuana use and reducing penalties for possession of small amounts of the drug, according to panelists discussing the politics of marijuana at the South by Southwest festival on Saturday.

State Sen. José Menéndez, D-San Antonio, and Texans for Responsible Marijuana Policy director Heather Fazio explained why the medical marijuana and possession laws in Texas need to change at a “Politics of Marijuana: What’s in Store for Texas” panel, one of several Cannabusiness discussions at the festival this year.

Moderated by Texas Tribune reporter Alex Samuels, the panel also featured Jackson County Sheriff A.J. Louderback, legislative chairman of the Sheriffs’ Association of Texas, which is fighting the marijuana reform bills that Fazio and Menéndez hope the Legislature will pass this year.

Menéndez doesn’t want to talk about legalizing marijuana for recreational use, and said he’s “laser-focused” on legalizing medical marijuana.

Thirty-three states and the District of Columbia have legalized use of marijuana for medicinal purposes, but in Texas doctors may prescribe only low-THC cannabis to patients with intractable epilepsy, under the Texas Compassionate Use Act of 2015.

“I think that the current Compassionate Use Act in Texas is worthless,” Menéndez said. “We say to cancer patients, ‘I’m sorry, you’re not worthy of it. HIV patients, sorry. Glaucoma, multiple sclerosis, Parkinson’s, cystic fibrosis, cerebral palsy, Alzheimer’s, hepatitis C, you name it, you’re just not worthy.’

“I think it’s the doctors and the patients who should make the decisions about what they put in their body to make them better, not legislators,” Menéndez added.

The issue is personal for Menéndez, whose wife has multiple sclerosis. He said that if the state allows doctors to prescribe narcotics and opioids to help patients cope with pain, he doesn’t understand why the state won’t let doctors prescribe marijuana, which is safer.  

“Yesterday, as we’re talking to the pain specialist in my wife’s hospital room, and he’s like, ‘OK, I need to get you off the opioid painkillers, the narcotics, so that you can go home,’ and I asked him, ‘Hey, if there were medical cannabis products available, would it help?’ And he said, ‘Yes,’” Menéndez said.

Menéndez’s Senate Bill 90 would expand the Texas Compassionate Use Act to give doctors the discretion to prescribe marijuana to any patient whom they believe could benefit from it.

It remains to be seen whether the bill will make it to a vote during this year’s legislative session, which ends May 29. Menéndez filed a similar bill during the 2017 legislative session, but it never received a committee hearing. Its companion bill in the House had nearly 80 co-sponsors, and did make it through committee in that chamber, but it was never scheduled for a vote. The Texas Legislature meets every other year.

Three other bills that would expand the Act in some way, including two by Republican lawmakers, have been filed this session. If none make it through this year, reformers will have to wait until the Legislature meets again in 2021 to try again to expand the Act.

Fazio said there is also bipartisan support for reducing penalties for low-level marijuana possession, noting that the Texas Republican delegates at their state convention last year adopted marijuana decriminalization as a party platform.

“It is officially in their platform for the Texas GOP that there should be no jail time associated with small amounts of marijuana,” Fazio said. “Instead, there should be a small fine and people should be able to go on with their lives. They know that this is going to keep people in school and keep them in the workforce and that’s what’s going to keep Texas strong.”

Fazio said that 60,000 to 70,000 people are arrested for simple possession of marijuana every year in Texas, and that about two-thirds of them are convicted, which can affect access to education, employment, housing and driver’s licenses.

In the same 2018 University of Texas/Texas Tribune Poll that found 84 percent of Texans support legalizing marijuana for some uses, 69 percent of respondents said they support reducing punishments for marijuana possession, including 62 percent of Republican respondents and 79 percent of Democratic respondents.

Lawmakers have proposed several bills this session that would reduce criminal penalties for possession of small amounts of marijuana or eliminate those penalties altogether, and there is some movement on this legislation.

House Bill 63, filed by El Paso Democrat Rep. Joe Moody, would make it so that anyone who possesses one ounce of marijuana or less would not face a criminal offense, but merely a civil fine of $250 or less.

That bill received a public hearing in the House criminal jurisprudence committee this month, but the committee has not voted on it yet.  

Fazio said that there will have to be a conversation about legalizing marijuana outright in Texas “very soon,” but her coalition is focused on reducing penalties, because that’s where it has found “common ground.”

“We are living in such incredibly polarized political times,” Fazio said. “Where we can find agreement with our neighbors, we have to move forward with that, and marijuana is bringing people together. It’s a beautiful thing.”

The Sheriffs Association of Texas, however, does not support any bill that would decriminalize simple possession or expand marijuana access to patients, and Lt. Gov. Dan Patrick, who plays a major role in deciding which bills the Senate will pick up, generally sides with the Sheriffs Association on major law enforcement issues.

Louderback said that law enforcement is wary of such measures, because of the “formula” for the progression of marijuana legalization in the U.S.

“It’s widely thought by many that the pathway to the ultimate goal of legalization for recreational marijuana … starts with the medical platform,” Louderback said.

The sheriff said that drug cartels are “growing stronger” in states such as Colorado that have legalized marijuana.

In 2017, Colorado Attorney General Cynthia Coffman announced the indictments of a “massive” illegal marijuana trafficking ring, which she said was a “prime example that the black market for marijuana has not gone away since recreational marijuana was legalized in our state, and in fact continues to flourish.”

“These trafficking rings are not just operating in the shadows, they are invading and are often conducting their illegal activity in plain sight under the guise of being a legitimate business,” Coffman said in a statement.

Louderback said he’s also concerned about the strength of commercial strains of weed and the fact that it is “easily ingested in many different ways,” which he says is a big problem for schools in states that have legalized pot.

Louderback said that state prosecutors are already taking marijuana matters into their own hands, changing the way they handle simple possession arrests, and that there’s “clearly going to be some changes” to marijuana laws in Texas during the next several legislative sessions, depending on “state leadership in the House and Senate.”

“So, obviously, the public plays a huge roll in this and the election process,” Louderback said.

For now, Texans who are looking to legally smoke will have to head across the border — not to Mexico, but to another U.S. state — all of Texas’s neighbors: New Mexico, Oklahoma, Arkansas and Louisiana, have already legalized medical marijuana.

Murder Vs. Manslaughter

The Difference Between Murder and Manslaughter

Have you ever wondered what the difference between murder and manslaughter is?  Why do we not have a simpler legal system that calls all ending of life murder?  Well, following up on a previous post, one of the major reasons for that difference boils down to intent.

Definitions

Law.com defines murder as

the killing of a human being by a sane person, with intent, malice aforethought (prior intention to kill the particular victim or anyone who gets in the way) and with no legal excuse or authority.

Manslaughter, on the other hand is

the unlawful killing of another person without premeditation or so-called “malice aforethought” (an evil intent prior to the killing).

That is, the difference between murder and manslaughter has to do with whether the death that happened was planned or unplanned.  On one hand, murder, by definition, implies a malicious motive that embodies the choice to end someone’s life.  On the other hand, manslaughter deals more with circumstantial death that had no malicious thought or planning beforehand.

John Choate, Jr – Attorney at Law

How Prosecution Teams Determine Intent

How Prosecution Teams Determine Intent

Prosecuting attorneys must weigh several elements in any court case.  Of these elements, intent can be one of the most difficult to prove.  Indeed, it can pose a challenge because the lion's share of intent occurs in the mind of the accused.

Yet, even with the level of internal dialogue, there are a number of markers that prosecutors can use to infer or prove intent.

Defining Intent

For our purposes, U.S. Legal describes intent as:

...a determination to perform a particular act or to act in a particular manner. Intent is usually based on a specific reason. It is an aim, design or a resolution to use a certain means to reach an end.

Put differently, intent is the choice to perform a given task or to behave a certain way.  Intent is the reasoning behind a certain action.

The law recognizes three types of criminal intent:

  • General/Basic Intent: Intent that is proven from the act itself (such as speeding).
  • Specific Intent: Intent that is rooted in replanning (such as in burglary).
  • Constructed Intent: Intent that is built upon the unforeseen effects of an action, as with a pedestrian death that arises from negligent driving.

While general intent is sufficient for such crimes as speeding, one must ferret out specific intent in the case of burglary and attempted murder.

Proving Intent

What goes into proving intent?  Well, in a court of law, two types of evidence are admissible.

  • Direct Evidence: Evidence that arises from witnessing a crime or hearing from those who have direct knowledge of a particular crime.
  • Circumstantial Evidence: Evidence that arises through reasoning from the facts of a crime to truths that can be inferred.

Put another way, Direct Evidence means someone saw it happen and tells what they saw.  Circumstantial Evidence, on the other hand, comes from piecing the events of the crime back together and drawing clues through logic and deduction.

Intent can be proven based on any number of dynamics. Some dynamics considered include:

  • Behavior of those involved.
  • The placing of objects, such as clothing, weapons, prints, bodily discharges, etc.
  • The time the incident occurred.
  • Who was present or absent at the scene of the crime.

If you or someone you love has been charged with a crime in Montgomery County, you should seek a qualified attorney such as John Choate, who can handle your case with skill.  Contact Attorney John Choate at Conroe Law Office.

The Ethics of Lawsuits Filed By Christians

Should Christians File Lawsuits?

Should a Christian file a lawsuit or not? Are lawsuits ethical or not? John Choate, Jr, a Conroe lawyer opens up the discussion biblically.

For many in the Conroe area, asking a lawyer if lawsuits are ethical might seem absurd.

However, followers of Jesus should always weigh the ethics of any situation; we walk in accordance with a different, higher standard. Every decision made should not only be weighed against whether one can do it, but also whether one should do it. Furthermore, every decision a Christian makes ought to take into consideration whether the Bible has anything to say about that decision.

The Old Testament: Our Behavior During a Lawsuit

Concerning lawsuits, there are several places in the Biblical text that assume lawsuits and other matters of jurisprudence are a normal part of society. Therefore, guidelines are provided for handling legal disputes.

First, in Exodus, Moses engaged in arbitration between Israelites. His father-in-law counseled him before departing, and provided a more efficient method of handling disputes. Further, he instructed Moses to select and teach others how to handle their disputes (see Exodus 18:13-27). Those whom Moses selected were God-fearing, trustworthy, and above reproach.

Later, the Law stipulates what our attitude should be in a lawsuit. That is, suits should be free from bribes and partiality (see Exodus 23:1-8), given these dynamics twist the execution of justice.

Besides this, subversion (intimidating either those who bring suit or those with the authority to judge a suit) as a tactic was specifically reproved in Jeremiah’s writings (Lamentations 3:36).

The New Testament: Should We Bring Suit?

Moving to the New Testament, Jesus, speaking to the crowds of poor, specifically touches on the inner motive when it comes to responding to lawsuits (Matthew 5:40). Namely, kindness should characterize our response instead of vengeance. Further, we should hunt for a solution that creates a win/win for all parties involved, rather than strife.

Indeed, the purpose of legal suits should at least be twofold :

  1. To correct patterns of abuse or mistreatment.
  2. To arrive at a place of equilibrium between parties instead of constant friction, and, where possible, reconciliation.

Paul’s exhortation to believers in Corinth focused on the squabbles, factions, and divisions that brought disrepute on all Christians. Within the scope of issues that caused division, Paul covered lawsuits between Christians. It appears that believers were suing one another through courts led by unbelievers. Paul told the Corinthians stop using secular courts to settle disputes, and instead see arbitration from other believers.

As believers, we should aim for resolution, and if possible, reconciliation, rather than division. Per the counsel of Scripture, if a lawsuit is going to become an option, then let it be the option of last resort, after arbitration and every other attempt at resolution has failed.

For further insight, see Focus on the Family’s article on the topic. Contact our office to schedule a free consultation with John Choate, Jr, a Conroe lawyer, who has years of experience of handling cases whether by negotiations or mediation to resolve family, business or property disputes.

Drug Trafficking Vs. Drug Possession

When dealing with drug trafficking and drug possession, you need to understand the difference between the two charges. Also, where to find a Conroe lawyer with the experience.

Definitions

Drug Trafficking: The sale and distribution of illegal drugs.

Drug Possession: Possession of a drug without a valid prescription in a quantity usable for consumption or sale.

The Difference Between Possession and Trafficking

Now that we understand they both can involve selling drugs, consider the difference between possession and trafficking. What is it?

Answer: the same as generic sales vs. widespread distribution. It is a question of size.

The major question that distinguishes between trafficking and possession deals with quantity. In order for a charge of trafficking to really apply, there has to be a sufficient amount of a given drug in order to make a business out of the sale. Distribution often implies there is a supplier in place, a number of people who will carry out the sale of the drugs, and a network of willing buyers and sellers.

While trafficking involves a network, possession usually only involves one or a few people.

The Penalties For Trafficking and Possession In Texas

Texas takes a strong stance against the possession and the trafficking of drugs. While penalties for trafficking are generally stronger, the bottom line is quantity of drugs present. Larger quantities can carry felony charges, and smaller quantities can carry misdemeanor charges. Mr. Choate is an experienced Conroe lawyer to direct you.

If you have been charged with possession or trafficking in Montgomery County, you should seek a competent and experienced Conroe lawyer to help you navigate the many obstacles. John E. Choate has over twenty years of successful legal experience in handling drug cases. Contact the staff online at contact@conroelawoffice.com to make an appointment.

Citizen’s Arrest! Citizen’s Arrest!

Making a Citizen's Arrest: What You Should Know

Suppose you witness someone breaking the law in Texas officer is around.  Are you allowed to make a citizen's arrest or not?  There are elements to understand when considering the legality of this situation.  First, what constitutes a citizen's arrest?  Second, what must be met in order to arrest someone?

Definition and Reasoning

A citizen's arrest is any arrest made by a public citizen without a warrant.  Per Lacy V. State, The Texas Court of Appeals reasoned necessity was the principle behind citizen's arrests.  The Court highlighted the necessity to promptly restrain wrongdoing.
When few authorities are present, and they are slow to respond to crime, the reality is that crime will increase.  When others are empowered to act, and are quicker, crime will likely decrease.

Prerequisites

In order to effect a legal citizen's arrest in Texas, three conditions must be present.
  1. Compliance:  The arrest must comply with federal and state constitutional provisions pertaining to "unreasonable search and seizure".  In making a citizen's arrest, we must ensure to not abuse those we are detaining or arresting.
  2. Location: The crime must have been committed in the citizen's presence or within his view.  In other words, one may initiate an arrest if the citizen and the criminal occupy the same temporal and spatial zone.
  3. Severity:  The crime must be either a felony or a breach of peace.  Put differently, we are looking at either a significant loss of life and property, or actions calculated to disturb the inhabitants of a place.

Probable Cause In Citizen's Arrests

Those making the arrest must be able to prove "probable cause".  Probable cause is:
the existence of reasonably trustworthy information sufficient to warrant a reasonable person to believe that a particular person has committed an offense.
A Texas citizen may make a citizen's arrest if all are met :
    a.  there is probable cause
    b.  if they are present or an eyewitness to a crime
    c.   if the crime is either a felony or a breach of the public peace
    d.  if the arrestor is complying with constitutional provisions pertaining to search and seizure.

In Summation

I would not advise making a citizen arrest for a variety of reasons.  First, most citizens are not trained to understand what probable cause means and the proper use of force to make an arrest.  Failure to understand the proper procedures can result in liability.  The person the citizen intends to be arrested will probably over react because the “arresting citizen” is not seen as a officer and the situation will escalate.  All citizens have a right to defend themselves, others and their property.  Going beyond that, will only subject yourself to liability.

Call the Police!

 

 

Fraud Types

The Broad Category of Fraud

Have you experienced or been accused of fraud?  Many attorneys understand the concept of fraud, but which Conroe lawyer will work with you for success against fighting fraud?

Fraud is a large category of crimes and carries severe penalties in Montgomery County.  Not only does a fraud conviction garner steep legal penalties, but it also carries significant negative social stigmas.  Fraud can affect something as small as a friendship or as big as a group of businesses.  Furthermore, the consequences that follow fraud can last a lifetime.

Picture of the word fraud, in a red font

What is Fraud?

According to U.S. Legal’s online dictionary:

Fraud is…an intentional misrepresentation of material existing fact made by one person to another with knowledge of its falsity and for the purpose of inducing the other person to act, and upon which the other person relies with resulting injury or damage.  Fraud [also can occur in the context of] an omission or purposeful failure to state material facts, which nondisclosure makes other statements misleading.

In short, fraud happens when one person misleads or withholding information from another.  That misleading or withholding results in personal or financial enrichment of the one at the expense of the other.

Ultimately, the root of all fraud is some form of deception.

 

Some Common Types of Fraud In Texas

  • Adoption Fraud: Providing false or misleading information in an adoption processes.
  • Consumer Fraud: Deception that results in financial enrichment at the expense of consumers.
  • Money Laundering: hiding the origin of illegally-obtained money.   Transferring that money through legally-established businesses is one way of hiding the true source of that money.
  • Identity Theft: Using the identifying information of another to obtain the financial benefit for yourself.
  • Insurance Fraud:  Presenting false circumstances to an insurance company in order to obtain coverage they would not otherwise provide.
  • Tax Fraud: Falsifying records to tax authorities in order to avoid paying the full amount owed.

While the above list shows common types in Texas, these are not the limits of fraud.  Fraud can also affect marriages, child support, child custody, and business negotiations.

If you are a victim of fraud, you should seek an experienced Conroe lawyer to help you through the process.  Contact the Conroe Law Office for your free initial consultation.