Placing a defendant on probation or deferred adjudication probation happens all the time.  However, when a defendant who is already on probation or deferred adjudication probation picks up a new charge, the likelihood of the defendant being placed back on probation is slim to none.  This is the challenge that I dealt with last week. 

My client was previously placed on deferred adjudication probation for a prior Theft charge.  He then picked up a new charge of Burglary of a Motor Vehicle (BMV); thus, in addition to his new charge, a Motion to Adjudicate Guilt (MAJ) was filed against my client.  His guilt or innocence of the BMV charge was not an issue – he was guilty.  Needless to say, he violated his deferred adjudication, in addition to other violations.

The Harris County Assistant District Attorney handling the case wanted my client in jail for 200 days and the probation officer recommended jail.  I informed my client we could approach the Judge without a recommendation and let the Judge determine my client’s punishment.  The latter strategy was not an easy decision to make, because the Judge could place my client on probation or in jail for up to 360 days.  Not knowing what the Judge was going to do was unnerving to my client and his family.  However, the 200 days in jail offer (he would have only needed to spend 100 days in jail) was not an offer my client wanted to accept.  We decided to roll the dice and take a risk with the Judge after deliberation.

My challenge was that I had to come up with a way to present to the Judge that my client was worthy of being placed back on probation despite the fact that he was already on probation when he picked up a new BMV charge.  In addition to this violation, he had “dirty” drug test results, and has not been up to date with his fees.   I also had to ask the Judge to place my client on probation for the BMV charge.  Thus, I was asking for my client to have two probations run concurrently to avoid jail time.  What I was asking for rarely happened.

After extensively talking to my client and his mother about my client’s past, present and future plans, I had my client undergo drug and psychological evaluation, which provided an insight to the real issues behind the Theft and BMV charges:  my client had a drug problem and was diagnosed bi-polar, in addition to other issues (i.e., young age, peer pressure, unavailable father figure).  I asked my client go through an out of patient rehabilitation facility, which consisted of counseling and medication for his bi-polar disorder.  I also asked my client to provide me with letters of recommendation, his apology letter directed to the Judge, and other documents which I felt were helpful to convincing the Judge that alternatives to incarceration were more beneficial for my client and the society.  During the hearing, I presented a packet and witnesses testified about my clients overall character despite his wrong decisions.  My client’s mother also testified to her ailing health.

The Judge sentenced my client to two years probation to run concurrently for both charges and wisely placed my client on a special case load due to the bi-polar diagnosis.  The Judge showed him mercy, to which we are very thankful. I can only hope and pray that my client takes the blessing that was given to him  and puts it to good use.  I have high hopes that with the help my client is currently receiving, he will be able to successfully complete probation.

My client was charged with 2 CIMTS.  He needed an attorney who would argue that one of his two theft conviction does not fall under the category of CIMT; therefore, he qualifying for an Immigration bond.    His 2 prior attorneys and 3 others attorneys, with whom he consulted, did not feel that the argument was valid.    I, on the other hand, listened to what he had to say, researched,  and championed his cause.  All I needed was to be able to convince the Judge that one of the two theft convictions was not a CIMT.  One of the convictions, theft of service via writing a bad check, was a conviction I felt strongly lacked the element of CIMT, because writing a check after service was rendered lacked the intent to defraud.  From the looks of it, I argued the motion successfully  in court, because the government attorneys did not have a response to my motion on the day of hearing and has not filed an answer even when the Judge gave them time to file a response. 

Note that I did not represent this client in his criminal cases.  The Theft conviction of a rental car should have been plead to as Unauthorize Use of a Motor Vehicle with a less than one year punishment.  UUMV lacks the intent to defraud element.  When a defendant is not a US citizen, his criminal case should be handled with extreme care, because an incorrect plea  has the possibility of sending the client through deportation process.  I suggest that anyone who is not a US citizen dealing with a criminal charge should retain a criminal attorney experienced in immigration practice or should consult with an immigration attorney. 

UPDATE: ON 8/25/2011, THE JUDGE GRANTED MY MOTION.  THE GOVERNMENT ATTORNEY RESERVED THE RIGHT TO APPEAL.

The following Motion is a synopsis of what I presented to the Judge:

(The information on this website, specifically on this page, is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.)

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

OFFICE OF THE IMMIGRATION JUDGE

HOUSTON, TEXAS

MOTION FOR BOND REDETERMINATION/RECONSIDERATION

            Comes now Catherine H. del Valle, counsel of record for the above referenced Respondent, ___________________________, and pursuant to 8 C.F.R sec. 1003.19 requests that a bond redetermination hearing in this matter be set as soon as possible.  A Motion for Bond Redetermination/Reconsideration is appropriate because certain evidence was not properly considered on ______________ bond hearing.  Therefore, Immigration Judge incorrectly applied the law in reaching a no bond decision.  In support of this motion, Respondent states through counsel as follows:

            1.         The Respondent, ___________________________, has been married to his US citizen wife for 18 years.  He has 6 US citizen children.   The Respondent’s son has filed an I-130 on his behalf on June 20, 2011.  (See Exhibit 1)

            2.         U.S. Immigration and Customs Enforcement (ICE) has alleged in the Notice to Appear, dated __________________, that ___________________________ was admitted, but removable because on ____________________, he was convicted in the Harris County Court at Law No. _________ for the offense of THEFT between $20 to $200 – CHECK, in violation of the Texas Penal Code.  In addition, on _________________, he was convicted in the Harris County _______th District Court for the offense of THEFT between $20,000 less than $100,000 in violation of the Texas Penal Code.  The two crimes were considered two crimes involving moral turpitude  (CIMT) not arising out of a single scheme of criminal misconduct.  (See Exhibit 2).

            3.         On _____________________, a bond hearing was held and no bond was set due to the finding of mandatory detention.

            4.         Respondent is currently being held at the Corrections Corporation of American Detention Facility in Houston, Texas, and the case is still pending.  Thus, this court has jurisdiction.

            5.         The Respondent should have been released on his own recognizance or a bond set because the two convictions of theft do not constitute CIMT for the purpose of removal. 

            6.         The Respondent’s ___________________ conviction of THEFT between $20 to $200 – CHECK is NOT a CIMT.  This theft charge was for theft of service. The Charging Instrument, specifically the Misdemeanor Information, specifies that the theft is for COMPUTER SERVICES, provided by _________________. (See Exhibit 3)

            7.         An “intent to defraud, as a test for the existence of moral turpitude, requires the convicted person to have intended to take someone’s property unlawfully.” In the Matter of Colbourne, 13 I&N. Dec. 319 (BIA 1969).  Precedent cases in Texas have shown the importance of establishing whether a check is tendered either to secure or pay for service that has been rendered by complainant. Johnson vs. State of Texas, 2005 Tex. App. LEXIS 10335 (Dec. 13, 2005).  In Gibson vs. State of Texas, it was found that the defendant’s conduct of issuing and passing a check could not have affected the judgment of the complaining witness in the delivery of the services allegedly stolen, because the check was not issued and passed until after performance of the service had been completed; thus, the alleged conduct could not be deception.  623 S.W. 2nd 324, 1980 Tex. Crim. App. LEXIS 1414 (Oct. 22, 1980).  In the Matter of Sloane, the Attorney General held that the conduct which is to be put to test is not that comprised of the elements needed for conviction, but that which the alien actually engaged in.  12 I&N Dec. 840, 854 (A.G. 1968; BIA 1966).                   

            8.         Respondent urges that for payment to be tendered for computer service, performance of the service has to have been rendered. (i.e., time of labor and applicable computer parts were accounted for in an invoice) prior to payment being tendered.  Thus, there was no intent to defraud on this conviction; therefore, the __________________ conviction of THEFT between $20 to $200 – CHECK is NOT a CIMT. 

            9.         In addition, the August 2, 2010 offense of THEFT between $20,000 less than $100,000 is NOT a CIMT.  In the Matter of Grazely, it was found that “ordinarily, a conviction for theft is considered to involve moral turpitude only when a permanent taking is intended.”  14 I&N. Dec. 330, 333 (BIA 1973).  Thus, in determining whether an intention to permanently deprive the owner of his property, it is appropriate to consider the nature and circumstances surrounding a theft offense.  Id.  The Complaint states that “the Defendant rented a ____________________ … from the Thrifty Car Rental…”  (See Exhibit 4).  The Conditions of Community Supervision item 12.5 states, “Pay _________________  in Restitution…”  (See Exhibit 5).  The Respondent urges that it is safe to conclude that the restitution amount is for rental fee of the vehicle.  Thus, establishing that Respondent did not unlawfully appropriate the vehicle. 

            10.       ___________________________ has significant ties to the Houston and Texas community in which he lives.  He has worked in Houston for several years .  Aside from the charges at issue, he has no other criminal history of any kind.  His most important community ties are to his wife, children and grandchildren, who has now been without a husband, father and grandfather for over three months.

            11.       ___________________________ has no intention of fleeing from immigration authorities if he is released from detention prior to the resolution of removal proceedings.  All of his ties are to his home in Houston.  He has no history of flight.  He wants to only return home to be with his wife, children and grandson. 

            12.       Respondent has a relief available in the form of adjustment, cancellation of removal, waiver and voluntary departure.

            13.       Upon release, Respondent will reside at _________________________, Houston, TX ______.

            14.       Respondent respectfully requests that he is released under personal recognizance.  In the alternative, his bond be set at $1,500.00.

            Wherefore premises considered, Respondent moves that the Honorable Court grant this Motion for a Bond Redetermination/Reconsideration  hearing before an Immigration Judge at the earliest available date and set a bond in a reasonable amount.  Respectfully submitted, this the ______th day of _____________________.

Respectfully Submitted,

Below is a list of cell phone bans and other highway safety laws in Texas gathered by Governors Highway Safety Association.  Source.  www.ghsa.org .  This table is not inclusive of all Texas highway safety laws. For more information, contact the Texas Traffic Safety Section.

August 2011

Sources: Insurance Institute for Highway       Safety (IIHS) and State Highway Safety Office.

Sources: Insurance Institute for Highway       Safety (IIHS) and State Highway Safety Office.

Source: State Highway Safety Office.

Sources: Ensuring Solutions to Alcohol Problems, Insurance Institute for Highway Safety (IIHS), Mothers Against Drunk Driving (MADD), National Conference of State Legislatures (NCSL) and State Highway Safety Office.

Sources: National Conference of State Legislatures (NCSL) and State Highway Safety Office.

Sources: Insurance Institute for Highway        Safety (IIHS) and State Highway Safety Office.

Sources: Insurance Institute for Highway        Safety (IIHS) and State Highway Safety Office.

Sources: Insurance Institute for Highway Safety (IIHS) and State Highway Safety Office.

Sources: Insurance Institute for Highway and State Highway Safety Office.

Sources: Segway LLC and State Highway Safety Office.

Sources: Insurance Institute for Highway    Safety (IIHS) and State Highway Safety Office.

Sources: Insurance Institute for Highway        Safety (IIHS) and State Highway Safety Office.

Sources: National Conference of State Legislatures (NCSL), Insurance Institute for Highway Safety (IIHS) and State Highway Safety Office.

Sources: National Work Zone Safety Information Clearinghouse and State Highway Safety Office.

Disclaimer: The information on this page is for general information purposes only and is not to be considered legal authority. For clarification on any law, consult the appropriate State Highway Safety Office.