Break The Glass

Call A Criminal Lawyer

Break the Glass!  Call that Criminal Lawyer

Carlton Bryan Cantrell

Barcus & Cantrell

          We all are familiar with the bright red fire alarms, covered with a thin sheet of glass, and a nice blunt instrument hanging by a tiny chain.  The tiny hammer has one purpose—to break that glass and pull the alarm.  The question presented herein is “when do you break that glass and call a criminal attorney?

 Numerous civil cases involve some form of potential criminal activity.  This presentation is designed to bring awareness to those situations that arise most frequently in the course of civil litigation where a client may have committed a crime and could be prosecuted for the same.  Most of the situations identified in this paper were actual cases where the presenter was contacted by a civil attorney for information regarding criminal liability.  The primary concern is when to let your client talk about potential criminal issues and responding to discovery in a way that gets your client prosecuted.

I.       Family Law Attorneys

          The most common area of potential criminal liability is family law of course.  Family law case are fraught with potential crimes.  We will address the major areas.

A.      CPS Arrives-Break the glass!!!

          A wealth of potential crimes could be at issue every time CPS knocks at the door.  They usually don’t tell you exactly what they are investigating until after they ask questions of your client.  Then, it may be too late.  The possible criminal violations may include:

                   1.       Texas Family Code Chapter 261 (abuse) reported by school, daycare, other family members, or doctors.  Chapter 261 is a complicated statute and requires “A person having reasonable cause to believe that a child's physical or mental health or welfare has been adversely affected by abuse or neglect by any person shall immediately make a report as provided by this subchapter.”  Failure to do so is a crime.  If the abuse or neglect occurred while visiting the other parent’s house and there was no report—a crime has been committed.

                   2.       Accusations of every conceivable crime against a child during the pendency of a divorce—the outcries keep coming!  And all accusations were reported by the soon to be ex-spouse. Break the glass!  In these matters, most criminal attorneys have experts they use to evaluate whether the child was coached.

                   3.       Injury to a Child:

B.      Client records/tracks/films their spouse without the soon to be ex’s knowledge or consent. 

These issues arise in discovery when an interrogatory or request for production touches on the illegal conduct of your client.

          1.       Tracking via GPS:  Texas Penal Code Sec. 16.06, Unlawful Installation of Tracking Device. This is a very common issue in divorce case where wife finds out about Tootsie by slapping a secret tracking device in hubby’s car, clothes, or gym bag.  Your client miraculously knows where hubby and Tootsie hooked up, and you make the mistake of asking how she knows the information.  Break the glass! 

          2.       Wiretapping the phone: Texas Penal Code Sec. 16.02. Unlawful Interception, Use, or Disclosure of Wire, Oral, or Electronic Communications.  It is a crime to tap a phone.  It is a crime to set up a secret recorder to capture conversations if the person recording is not a party to the conversation.  Break the glass!

          3.       The cool “spycam:” Texas Penal Code Sec. 21.15. Invasive Visual Recording.  Bob suspects that his wife is having relations with the mailman and sets up the $39.99 motion sensitive, night vision “spycam” in the bedroom and captures it all.  Then Bob shows you the video! Break the glass!

          4.       SnapChat: Texas Penal Code Sec. 21.19. Unlawful Electronic Transmission of Sexually Explicit Visual Material.  A former client calls you concerned that she has been subpoenaed to testify in a divorce.  She discloses to you that she was sauced up one night and sent a “pic” to a guy (now the respondent in a divorce).  He never asked for the pic.  Break the glass!!

C.      Medicine and Kids.  Texas Penal Code Sec. 35A.02. Health Care Fraud.

D.      Leaving the guns out.  Texas Penal Code Sec. 46.13. Making a Firearm Accessible to a Child.

E.      Prostitution—Ex Spouse

          1.       Texas Penal Code Sec. 43.021. Solicitation of Prostitution.  “A person commits an offense if the person knowingly offers or agrees to pay a fee to another person for the purpose of engaging in sexual conduct with that person or another.”

          2.       Texas Penal Code Sec. 43.02. Prostitution.  “A person commits an offense if the person knowingly offers or agrees to receive a fee from another to engage in sexual conduct.”

F.      Family Violence

                    1.       I definitely should not have said that! Texas Penal Code Sec. 22.01. Assault:

(a) A person commits an offense if the person:

(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse;

(2) intentionally or knowingly threatens another with imminent bodily injury, including the person’s spouse; or

(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.  (NOTICE, NO “SPOUSE”)

          2.       Showing up at or disclosing the “Shelter.”  Texas Penal Code Sec. 42.075. Disclosure of Confidential Information Regarding Family Violence or Victims of Trafficking Shelter Center. “A person commits an offense if the person, with the intent to threaten the safety of any inhabitant of a family violence shelter center or victims of trafficking shelter center, discloses or publicizes the location or physical layout of the center.”

          3.       Texas Penal Code Sec. 42.07. Harassment:  “(a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, the person:

(1) initiates communication and in the course of the communication makes a comment, request, suggestion, or proposal that is obscene;

(2) threatens, in a manner reasonably likely to alarm the person receiving the threat, to inflict bodily injury on the person or to commit a felony against the person, a member of the person’s family or household, or the person’s property;

(3) conveys, in a manner reasonably likely to alarm the person receiving the report, a false report, which is known by the conveyor to be false, that another person has suffered death or serious bodily injury;

(4) causes the telephone of another to ring repeatedly or makes repeated telephone communications anonymously or in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another;

(5) makes a telephone call and intentionally fails to hang up or disengage the connection;

(6) knowingly permits a telephone under the person’s control to be used by another to commit an offense under this section;

(7) sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another; or

(8) publishes on an Internet website, including a social media platform, repeated electronic communications in a manner reasonably likely to cause emotional distress, abuse, or torment to another person, unless the communications are made in connection with a matter of public concern.”

4.       Texas Penal Code Sec. 25.07. Violation of Certain Court Orders or Conditions of Bond in a Family Violence, Child Abuse or Neglect, Sexual Assault or Abuse, Indecent Assault, Stalking, or Trafficking Case.

G.      Child Support!  Texas Penal Code Sec. 25.05. Criminal Nonsupport.  Enough said!

          H.  Other Stuff

Texas Penal Code Sec. 25.03. Interference with Child Custody.

II.      Business/EMPLOYMENT ATTORNEYS

A.      Forms of Theft

          1.       Texas Penal Code Sec. 32.32. False Statement to Obtain Property or Credit or in the Provision of Certain Services.  Includes responsibility for “comaking, endorsing, or guaranteeing a note or other instrument for obtaining credit.”

          2.       Texas Penal Code Sec. 32.42. Deceptive Business Practices.  This statute has a long list of no-no’s.  Here are just a few:

“A person commits an offense if in the course of business he intentionally, knowingly, recklessly, or with criminal negligence commits one or more of the following deceptive business practices:

(1) using, selling, or possessing for use or sale a false weight or measure, or any other device for falsely determining or recording any quality or quantity;

(2) selling less than the represented quantity of a property or service;

(3) taking more than the represented quantity of property or service when as a buyer the actor furnishes the weight or measure;

(4) selling an adulterated or mislabeled commodity;

(5) passing off property or service as that of another;

(6) representing that a commodity is original or new if it is deteriorated, altered, rebuilt, reconditioned, reclaimed, used, or secondhand;

(7) representing that a commodity or service is of a particular style, grade, or model if it is of another;”

          3.       Texas Penal Code Sec. 35.02. Insurance Fraud.

          4.       Texas Penal Code Sec. 31.05. Theft of Trade Secrets.

          5.       Texas Penal Code Sec. 31.04. Theft of Service.

B.      Computer use crimes

Consider a complaint where an employee cracks into someone’s email or another’s network, and tells the boss what was there.

1.       Texas Penal Code Sec. 33.02. Breach of Computer Security.  “A person commits an offense if the person knowingly accesses a computer, computer network, or computer system without the effective consent of the owner.”

2.       Texas Penal Code Sec. 16.02. Unlawful Interception, Use, or Disclosure of Wire, Oral, or Electronic Communications.

3.       Texas Penal Code Sec. 33.022. Electronic Access Interference.

“A person, other than a network provider or online service provider acting for a legitimate business purpose, commits an offense if the person intentionally interrupts or suspends access to a computer system or computer network without the effective consent of the owner.”

4.       Sec. 33.024. Unlawful Decryption.  “A person commits an offense if the person intentionally decrypts encrypted private information through deception and without a legitimate business purpose.”

C.      Car Dealers.

1.       Texas Penal Code Sec. 32.34. Fraudulent Transfer of a Motor Vehicle.  “A person commits an offense if the person acquires, accepts possession of, or exercises control over the motor vehicle of another under a written or oral agreement to arrange for the transfer of the vehicle to a third party and:

(1) knowing the vehicle is subject to a security interest, lease, or lien, the person transfers the vehicle to a third party without first obtaining written authorization from the vehicle’s secured creditor, lessor, or lienholder;

(2) intending to defraud or harm the vehicle’s owner, the person transfers the vehicle to a third party;

(3) intending to defraud or harm the vehicle’s owner, the person disposes of the vehicle in a manner other than by transfer to a third party; or

(4) the person does not disclose the location of the vehicle on the request of the vehicle’s owner, secured creditor, lessor, or lienholder.

                   2.       Texas Penal Code Sec. 32.33. Hindering Secured Creditors.  Let the police help find the car.

          D.      Fiduciaries

                   1.       Texas Penal Code Sec. 32.43. Commercial Bribery.  “A person who is a fiduciary commits an offense if, without the consent of his beneficiary, he intentionally or knowingly solicits, accepts, or agrees to accept any benefit from another person on agreement or understanding that the benefit will influence the conduct of the fiduciary in relation to the affairs of his beneficiary.”

                   2.       Sec. 32.45. Misapplication of Fiduciary Property or Property of Financial Institution. “A person commits an offense if he intentionally, knowingly, or recklessly misapplies property he holds as a fiduciary or property of a financial institution in a manner that involves substantial risk of loss to the owner of the property or to a person for whose benefit the property is held.”

III.    School

          A.      Teachers.  

A teacher calls you and tells you that she has been put on administrative leave.  She wants you help to appeal the decision.  Watch out for a few traps.

                   1.       Sec. 21.12. Improper Relationship Between Educator and Student.  One tiny defense exists in this statute, and it usually never applies.

                   2.       Swatting the class clown.  It’s an assault, but! Texas Penal Code Sec. 9.62. Educator — Student:

The use of force, but not deadly force, against a person is justified:

(1) if the actor is entrusted with the care, supervision, or administration of the person for a special purpose; and

(2) when and to the degree the actor reasonably believes the force is necessary to further the special purpose or to maintain discipline in a group.

          Remember that parents can “opt-out” of corporal punishment for their kids under the Education Code.

          B.      Students. 

You get the call that a twelve year old has been suspended from school and you are asked to appeal the decision (which is usually a waste of time).  Watch out for these traps:

                   1.       Texas Penal Code Sec. 43.25. Sexual Performance by a Child.

                   2.       Texas Penal Code Sec. 43.26. Possession or Promotion of Child Pornography.

                   3.       Texas Penal Code Sec. 43.261. Electronic Transmission of Certain Visual Material Depicting Minor.

                   4.       Texas Penal Code Sec. 42.06. False Alarm or Report.

IV.    Parents

A.      Kid’s Phones with cameras

          1.       Naughty stuff: Sec. 43.262. Possession or Promotion of Lewd Visual Material Depicting Child.

          2.       Texas Penal Code Sec. 43.25. Sexual Performance by a Child.

B.      Spankings. 

Texas Penal Code Sec. 9.61. Parent — Child.

(a) The use of force, but not deadly force, against a child younger than 18 years is justified:

(1) if the actor is the child’s parent or stepparent or is acting in loco parentis to the child; and

(2) when and to the degree the actor reasonably believes the force is necessary to discipline the child or to safeguard or promote his welfare.

(b) For purposes of this section, “in loco parentis” includes grandparent and guardian, any person acting by, through, or under the direction of a court with jurisdiction over the child, and anyone who has express or implied consent of the parent or parents.

C.      Mad at the school!

1.       Texas Penal Code Sec. 42.05. Disrupting Meeting or Procession.

2.       Texas Penal Code Sec. 38.13. Hindering Proceedings by Disorderly Conduct.

(a) A person commits an offense if he intentionally hinders an official proceeding by noise or violent or tumultuous behavior or disturbance.

(b) A person commits an offense if he recklessly hinders an official proceeding by noise or violent or tumultuous behavior or disturbance and continues after explicit official request to desist.

D.      Rodeo (Yes there is a law). 

Texas Health and Safety Code Sec. 768.002. Protective Gear Required for Children Engaging in Certain Rodeo Activities.  “A child may not engage in, and a parent or legal guardian of the child may not knowingly or recklessly permit the child to engage in, bull riding, including engaging in bull riding outside a rodeo for the purpose of practicing bull riding, unless the child is wearing a bull riding helmet and a protective vest.”

VI.    Tort Cases (Defense)—Trust the Plaintiff’s to RAT You Out!!

A.  Mandatory Drug Test (for truck drivers following accident)

                    1.       Texas Penal Code Sec. 49.07.  Intoxication Assault.

                   2.       Texas Penal Code Sec. 49.08.  Intoxication Manslaughter

B.  Speed Kills!

Accident involving serious bodily injury where speed was an issue?  Watch out!  Texas Penal Code Sec. 19.05. Criminally Negligent Homicide.

(a) A person commits an offense if he causes the death of an individual by criminal negligence.

(b) An offense under this section is a state jail felony.

OTHER RANDOM CRIMES THAT COME UP:

Sec. 25.04. Enticing a Child.

Sec. 47.06. Possession of Gambling Device, Equipment, or Paraphernalia.

Sec. 47.03. Gambling Promotion.

Sec. 42.092. Cruelty to Nonlivestock Animals.

Sec. 38.171. Failure to Report Felony.

“observes the commission of a felony under circumstances in which a reasonable person would believe that an offense had been committed in which serious bodily injury or death may have resulted”

Sec. 38.16. Preventing Execution of Civil Process.

Sec. 38.05. Hindering Apprehension or Prosecution.

Sec. 32.441. Illegal Recruitment of an Athlete.

Sec. 42.055. Funeral Service Disruptions.

“A person commits an offense if, during the period beginning three hours before the service begins and ending three hours after the service is completed, the person engages in picketing within 1,000 feet of a facility or cemetery being used for a funeral service.”

Sec. 42.02. Riot.

Texas Parks and Wildlife Code Chapter 61

Texas Health and safety Code Chapter 481-489

Agriculture Code Chapter 121-122 (for Cannabis)