IF AN OFFENSE IS A MISDEMEANOR UNDER THE FOLLOWING CHAPTERS, THEN A DEFENDANT MAY FILE A PETITION FOR NON-DISCLOSURE IMMEDIATELY AFTER COMPLETION AND DISMISSAL OF THE DEFERRED ADJUDICATION COMMUNITY SUPERVISION:

 

Chapter 16      Criminal Instruments, Interceptions of Wire or Other Oral communication, and Installation of Tracking Device

            16.01 Unlawful Use of Criminal Instrument

            16.04 Unlawful Access to Stored Communications

            16.05   Illegal Divulgence of Public Communications

            16.06 Unlawful Installation of Tracking Device

           

Chapter 28      [] Criminal Mischief, and other Property Damage or Destruction

            28.03 Criminal Mischief if loss less than $1500

            28.04 Reckless Damage or Destruction

            28.07 Interference w/ Railroad Property

            28.08 Graffiti: If Pecuniary Loss is Less than $1500

 

Chapter 30      Burglary and Criminal Trespass

            30.03 Burglary of Coin-Operated or Coin Collection Machines

            30.04 Burglary of Vehicles

            30.05 Criminal Trespass          

            30.06 Criminal Trespass by Holder of License to Carry Concealed Handgun

 

Chapter 31      Theft

            31.03 Theft

            31.04 Theft of Services (less than $1500.)

            31.11 Tampering with Identification Numbers

            31.12 Theft of or Tampering with Multichannel Video or Information Services

            31.13 Manufacture, Distribution, or Advertisement of Multichannel Video or Information           Services

            31.14 Sale or Lease Multichannel Video or Information Service Device

            31.15 Possession, Manufacture, Distribution of Certain Instruments used to Commit      Retail Theft

 

Chapter 32      Fraud, Forgery, Credit Card Abuse, IBC, SEDD, ID Theft, etc.

            Forgery

            32.21 Forgery

            32.22 Criminal Simulation

            32.23 Trademark Counterfeiting

            32.24 Stealing or Receiving Stolen Check or Similar Sight Order

            Credit

            32.32 False Statement to Obtain Property or Credit

            32.33 Hindering Secured Creditors

            32.34 Fraudulent Transfer of Motor Vehicle

            32.35 Credit Card Transaction Record Laundering

            Other Deceptive Practices

            32.41 Issuance of a Bad Check

            32.42 Deceptive Business Practices

            32.44 Rigging Publicly Exhibited Contest

            32.441 Illegal Recruitment of an Athlete

            32.45 Misapplication of Fiduciary Property or Property of Financial Institution

            32.46 Securing Execution of Document by Deception

            32.47 Fraudulent Destruction, Removal, or Concealment of Writing

            32.48 Simulating Legal Process

            32.49 Refusal to Execute Release of Fraudulent Lien or Claim

            32.50 Deceptive Preparation and Marketing of Academic Report

            32.52   Fraudulent, Substandard, or Fictitious Degree

           

Chapter 33      Computer Crimes, Telecommunication Crimes

            33.02 Breach of Computer Security

            33A.02 Unauthorized Use of Telecommunications Service

            33A.04 Theft of Telecommunications Service

            33A.05 Publication of Telecommunications Access Devise

 

Chapter 35      Insurance Fraud

            35.02 Insurance Fraud

            35A.02 Medicaid Fraud

 

Chapter 36 [] Corrupt Influence

            36.03 Coercion of Public Servant or Voter

            36.04 Improper influence

            36.07 Acceptance of Honorarium

            36.08 Gift to Public Servant by Person Subject to his Jurisdiction

            36.09 Offering Gift to Public Servant

 

Chapter 37      Perjury and Other Falsification

            37.02 Perjury

            37.08 False Report to Police Officer or Law Enforcement Employee

            37.081 False Report Regarding Missing Child or Missing Person

            37.09   Tampering with or Fabricating Physical Evidence

            37.10 Tampering with Governmental Record

            37.101 Fraudulent Filing of Financing Statement

            37.12 False Identification as a Peace Officer; Misrepresentation of Property

            37.13 Record of Fraudulent Court

 

Chapter 38      Obstructing Governmental Operations

            38.02 Failure to ID

            38.03 Resisting Arrest, Search, or Transportation

            38.04 Evading Arrest or Detention

            38.05 Hindering Apprehension or Prosecution

            38.06 Escape

            38.07 Permitting or Facilitating Escape

            38.10 Bail Jumping and Failure to Appear

            38.111 Improper Contact with Victim

            38.114 Contraband in a Correctional Facility

            38.12 Barratry and Solicitation of Professional Employment

            38.123 Unauthorized Practice of Law

            38.13 Hindering Proceedings By Disorderly Conduct

            38.15 Interference with Public Duties

            38.151 Interference with Service Animals

            38.16 Preventing Execution of Civil Process

            38.17 Failure to Stop or Report Aggravated Sexual Assault of Child

            38.171 Failure to Report a Felony

            38.18 Use of Accident Report Information & Other Information for Pecuniary Gain

            38.19 Failure to Provide Notice and Report of Death of Resident of Institution

 

Chapter 39      Abuse of Office

            39.02 Abuse of Official Capacity

            39.03 Official Oppression

            39.04 Violation of Civil Rights of Person in Custody

            39.05 Failure to Report Death of Prisoner

            39.06 Misuse of Official Information

 

Chapter 43      Public Indecency: Prostitution, Obscenity

            Prostitution

            43.02 Prostitution

            43.03 Promotion of Prostitution

            Obscenity

            43.22 Obscene Display or Distribution

            43.23 Obscenity

            43.24 Sale, Distribution, or Display of Harmful Material to Minor

            43.251 Employment Harmful to Children

           

Chapter 47      Gambling

            47.02 Gambling

            47.03 Gambling Promotion

            47.04 Keeping a Gambling Place

            47.05 Communicating Gambling Information

            47.06 Possession of Gambling Device, Equipment, or Paraphernalia

           

Chapter 48      Conduct affecting Public Health

            48.01 Smoking Tobacco

            48.015 Prohibitions Relating to Certain Cigarettes

            48.02 Prohibition of the Purchase of Sale of Human Organs

 

Chapter 49      Intoxication & Alcoholic Beverage Offenses

            49.02 Public Intoxication

            49.031 Possession of Alcohol in a Motor Vehicle

            49.04  Driving While Intoxicated**

                        [**DWI offenses are not eligible for deferred – art. 42.12, § 5]

            49.065 Assembling or Operating an Amusement Ride while Intoxicated

           

Chapter 71      Organized Crime

            71.021 Violation of Court Order Enjoining Criminal Activity

 

AND MISDEMEANOR OFFENSES UNDER THE CONTROLLED SUBSTANCE ACT §§ 481.001 et seq.

 

IF AN OFFENSE IS A MISDEMEANOR UNDER CHAPTERS 20, 21, 22, 25, 42, & 46 A DEFENDANT MAY FILE A PETITION FOR NON-DISCLOSURE TWO (2) YEARS AFTER THE COMPLETITION OF THE DEFERRED ADJUDICATION COMMUNITY SUPERVISION AND DISMISSIAL OF THE INFORMATION:

 

Chapter 20      [] Unlawful Restraint

            20.02 Unlawful restraint

           

Chapter 21      Sexual Offenses

            21.06 Homosexual Conduct [Unconstitutional]

            21.07 Public Lewdness

            21.08 Indecent Exposure [2nd offense results in a conviction, the Defendant is required to         register as a sex offender, and thus, he is NOT eligible]

 

Chapter 22      Assaultive Offenses

            22.01 Assault [But not against police officer, family member or member of household]

            22.05 Deadly Conduct

            22.07 Terroristic Threat

            22.08 Aiding Suicide

            22.10 Leaving a Child in a Vehicle

           

Chapter 25      Offenses Against the Family

            25.01 Bigamy

            25.04 Enticing a Child

            25.06 Harboring a Runaway Child

            25.071 Violation of Protective Order Preventing Offense Caused by Bias or    Prejudice  [§ 25.07 Regular Violation of Protective Order is NEVER eligible]

            25.09 Advertising for Placement of Child

 

Chapter 42      Disorderly Conduct and Related Offenses

            42.01 Disorderly Conduct

            42.02 Riot

            42.03 Obstructing of Highway or Other Passageway

            42.05 Disrupting Meeting or Procession

            42.055 Funeral Disruption

            42.06 False Alarm or Report

            42.062 Interference with Emergency  Telephone Call

            42.07 Harassment

            42.08 Abuse of Corpse

            42.09 Cruelty to Livestock Animals

            42.091 Attack on Assistance Animals

            42.092 Cruelty to Non-Livestock Animals

            42.10 Dog Fighting

            42.11 Destruction of Flag

            42.12 Discharge of Firearm in Certain Municipalities

            42.13 Use of Laser Pointers

            42.14 Illumination of Aircraft by Intense Light

           

Chapter 46      Weapons

            46.02 Unlawfully Carrying Weapons

            46.035 Unlawful Carrying of Handgun by License Holder

            46.04 Unlawful Possession of a Firearms

            46.05 Prohibited Weapon

            46.06 Unlawful Transfer of Certain Weapons

            46.08 Hoax Bombs

            46.13 Making a Firearm Accessible to a Child

 

***FOR ALL FELONY OFFENSES NOT EXCLUDED FROM ELIGIBILITY UNDER 411.081(e), A CRIMINAL DEFENDANT IS NOT ENTITLED TO FILE A PETITION FOR NON-DISCLOSURE UNTIL FIVE (5) YEARS AFTER THE COMPLETITION OF THE DEFERRED ADJUDICATION COMMUNITY SUPERVISION AND DISMISSIAL OF THE INDICTMENT.

 

 

A CRIMINAL DEFENDANT IS NOT ENTITLED TO FILE A PETITION FOR NON-DISCLOSURE FOR ANY OFFENSE IF THAT DEFENDANT WAS PLACED ON DEFERRED ADJUDICATION COMMUNITY SUPERVISION FOR OR HAS PREVIOUSLY CONVICTED OR PLACED ON ANY OTHER DEFERRED ADJUDICATION FOR:

            (1) An offense requiring sex offender registration under Chapter 62;

            (2) An offense under § 20.04 (aggravated kidnapping);

            (3) An offense under 19.02 (murder), 19.03 (capital murder), 22.04 (injury to a child or elderly person), 22.041 (abandoning or endangering child), 25.07 (violation of protective order), or 42.072 (stalking); or

            (4) any other offense involving family violence as defined by § 71.004 Family     Code.

 

§ 71.004. Family Violence

 

“Family violence� means:

(1) an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself;

(2) abuse, as that term is defined by Sections 261.001(1)(C), (E), and
(G), by a member of a family or household toward a child of the family
or household; or

(3) dating violence, as that term is defined by Section 71.0021.

 

Tex. Fam. Code Ann. § 71.004 (Vernon 2002).

 

§ 71.0021. Dating Violence

(a) “Dating violence� means an act by an individual that is against another individual with whom that person has or has had a dating relationship and that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the individual in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself.

(b) For purposes of this title, “dating relationship� means a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature. The existence of such a relationship shall be determined based on consideration of:

            (1) the length of the relationship;

            (2) the nature of the relationship; and

            (3) the frequency and type of interaction between the persons    involved in the relationship.

(c) A casual acquaintanceship or ordinary fraternization in a business or social context does not constitute a “dating relationship� under Subsection (b).

 

Tex. Fam. Code Ann. § 71.0021 (Vernon 2002).                  

 

 

 

In Nelson v. United States, __ S.Ct. __, 2009 WL 160585 (Jan. 26, 2009), the Court took the Fourth Circuit to task for affirming a within-guidelines sentence despite the judge’s statements at sentencing that “the Guidelines are considered presumptively reasonable” and that “unless there’s a good reason in the [3553(a)] factors . . ., the Guideline sentence is the reasonable sentence.” 

Key quote from the Supreme Court:
      The Guidelines are not only not mandatory on sentencing courts; they
      are also not to be presumed reasonable.  We think it plain from the
      comments of the sentencing judge that he did apply a presumption of
      reasonableness to Nelson’s Guidelines range.  Under our recent
      precedents, that constitutes error.

And, yes, the italics were in the original opinion.

Justices Breyer and Alito concurred in the judgment; they would simply have GVR’d the case given the fact that the Soliciter General conceded the statements constituted reversable error.  Once again, though, it looks like a majority of the Court has had it with appellate courts that refuse to embrace Booker, Rita, Gall, and Kimbrough.

You can use Nelson to remind your district court judges that the guidelines cannot be given any priority at sentencing, and use the Deconstructing the Guidelines resources on fd.org’s Sentencing Resource page to show why they ought not to be followed at all.

To read the opinion:

Nelson v. United States

David Finn