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December 2010 Archives

Illegal Arrests and Confessions

There are two decisions from the United States Supreme Court which suggest that a confession may be inadmissible if it is tainted by the illegal investigation arising from an illegal arrest. Many more have evolved since the United States Wong Sun case back in 1963. The so called Wong Sun doctrine suggests that statements given to the police by a person who is under illegal arrest will be barred from admissibility unless it can be demonstrated by the prosecution that the taint arresting from the illegal arrest and illegal custody is dissipated and purged.

Involuntary Confessions

For a long time now courts have realized that a confession is certainly not voluntary simply because it is true. There are a long line of Supreme Court cases which have shown that the voluntariness of a confession is based on the "totality of the circumstances" surrounding the giving of the confession. If under the totality of the circumstances test the confession is held to be involuntary, it is held to be admissible as a violation of the due process of law guaranteed by the Fifth and Fourteenth Amendments of the Constitution.

Newspapers and Criminal Prosecutions

Freedom of Speech of the Press is guaranteed by the First Amendment of the United States Constitution and is applicable to the States, according to the Supreme Court in a case in 1930. As such, the trial court should not attempt to wholly prevent a newspaper from preventing crime news when it is released. The trial court may be requested by the defense to restrict press coverage of a case to statements made during the actual trial. However, the court can also control its own officers and the participants in the case. The way to do this is through a Protective Order (sometimes heard as a Gag Order). This will limit the information in which the prosecutor and the staff can divulge.

Texas Criminal History Records and Employment

Your past can haunt you.  Especially if you have a previous false accusation that you were acquitted of or was dismissed and the statute of limitations have run or if you just did something stupid and you were given a second chance.   It can loom around forever if you do not make the effort to get an expunction order or order on a petition for non-disclosure.

State Property Law

A case out of the Southern District dealt with the intersection of state property law under the Texas Property Code and Section 1322(b)(2) of the Code, which prohibits lien stripping of the claim that is secured only by a security interest in real estate that is the debtor's principle residence. The debtors had a manufactured home but under the State's Property Code qualified as personal property, not real property. The creditors have a security interest in both the manufactured home and the real property on which the home sat. The court found the creditor did not qualify under the lien stripping exception carved out in Section 322(b)(2) since the creditors claim was secured by the real property and the personal property and not only the real property as required by the Code.

IRS Debt in a Chapter 13 Bankruptcy

In a case out of the Eastern District in 2008, the joint Chapter 13 debtors owed the IRS a debt of nearly $90,000.00, partially secured. The debtors proposed to pay the IRS directly but were less than clear on the terms of such repayment. The IRS objected asserting its right to be paid through the office of the Chapter 13 Trustee. The court noted that under Section 13.25(a) there are three options for the treatment of secured claims: one, obtain acceptance of the treatment by the affected creditor, two, surrender the collateral to the creditor, or three, provide for the retention of the existing lien by the creditor with a promise of future property distributions (such as deferred cash payments) whose total value, as of the effective date of the plan, is not less than the allowed amount of this creditor's secured claim.

Chapter 13 Plan Confirmation

In re Louviere, was a case out of the Eastern District of Texas where the Chapter 13 Trustee objected to confirmation on the basis that the debtor was not paying disposable income per the current monthly income calculation of the Means Test and because of the debtor's failure to provide evidence of the nonfiling spouse's contribution to household expenses. 

Role of the Expert in Child Custody Battles

In a divorce proceeding that is a suit affecting the parent-child relationship (SAPCR), it is necessary to attempt to ascertain the meaning of "psychological best interest of the child".  There have been many statements that that is the desired standard in custodial dispositions.  It seems quite clear that the psychological best interest of the child test is an organizing concept which can relate and integrate all relevant data in relation to custodial disposition.  These datas fall into several general categories. 

Divorce Disputes

When parties get a divorce, often times there are many disputed issues.  Sometimes the issues of contention are over who would be appointed joint managing conservator of the children or how much child support should be owed.  Another point of contention can be where the parties can move and how far away from each other will they be allowed to move if there are the children the subject of the marriage. 

Mediation and Divorce

The subjects of divorce mediation include, but are not limited to, those that would be resolved by a judge in court, but for the mediated settlement.  The mediation process then can be seen as an alternative to the court process. Divorce mediation is defined as a nontherapeutic process at which the parties together, with the assistance of a neutral third party resource attempt to systematically isolate points of agreement and disagreement.  They also try to explore alternatives and consider compromises for the purpose of reaching a consensual settlement of issues relating to their divorce or separation

Credit Card Debt and The Means Test

Credit card debt is frustrating.  You borrow some money, and start paying it back.  If something strange happens, like you forgetting to pay one of your creditors and you are a couple of days late then your credit cards may raise your interest rates substantially.  If you multiply the APR interest rate times the amount of the debt and divide that number by twelve then you will see the amount of monthly interest that you are being charged by your credit cards.

Driving While Intoxicated at Christmas Time

Happy holidays can become unhappy with the swerve of the wheel.  DWI is prosecuted heavily in Collin County and Dallas County Texas.  There are beefed up efforts to make arrests of those who are driving under the influence (DUI) and DWI.  The police officer only has to show that he had probable cause to believe someone was intoxicated after he stopped them for a traffic offense, such as speeding.

Suit Affecting Parent-Child Relationship

In a Suit Affecting the Parent-Child Relationship in Texas, the Divorce Court retains continuing exclusive jurisdiction for the custody and support and other SAPCR issues until the child turns eighteen.

Management and Control of Property of Spouses

Under the Uniform Marital Property Act a spouse acting alone may manage and control that spouse's property that is not marital property; except as provided in Subsections B and C, marital property held in that spouse's name alone or not held in the name of either spouse; a policy of insurance if that spouse is designated as the owner of records of the issue of it; the rights of an employee under an arrangement for deferred employment benefits that accrue as a result of that spouse's employment; a claim for relief vested in that spouse by other law; and marital property held in the name of both spouses in the alternative, including a manner of holding using the names of both spouses and the word "for".

Uniform Marital Property Act

Section 4 of the Uniform Marital Property Act classifies the property of the spouses.  Under 4a it indicates that all property of the spouses is marital property except that which is otherwise classified by this act.  All property of the spouses is presumed to be marital property.  Each spouse has a present undivided one half interest in marital property.  The income earned or accrued by a spouse are attributable to property of a spouse during the marriage and the determination date is marital property.  The martial property transferred to a trust remains marital property. 

Avoiding Foreclosure with Bankruptcy

In re: Gonzales, was a Southern District of Texas Case where the debtors who were an above medium income household proposed a Chapter 13 Plan which would cure payment arrearages on their home.  A month later, the debtors decided to surrender their home.  The trustee and debtors disputed how the Court should evaluate future payments contractually due on the to-be-surrendered home when determining the debtors' disposable income.  The debtors argued that the Court should consider payments due on the petition date, while the trustee argued only those payments due as of the confirmation date should be considered.  The Court rejected both snapshot views in favor of a more expansive moving picture view.  While acknowledging the wealth of opinions that analyzed the calculation of projected disposable income under 1325(b), the Court found that the opinions are neither uniform in reasoning or results.  The Court utilized a flow chart to resolve 1325(b) disputes.  If an objection has been raised, the Court will then ask if the Plan proposes full payment to unsecured creditors.  If yes, the Plan is confirmed without disposable income analysis.  If no, the Court performs the analysis.  Five components are considered for the analysis: 1.) current monthly income; 2.) projective monthly income; 3.) allowed expenditures; 4.) projected allowed expenditures; and 5.) amounts reasonably necessary to be expended for projected allowed expenditures. 

Under Water Vehicles

In re: Steal, was a case out of the Northern District of Texas where within 910 days of the Petition date, the Chapter 13 debtor financed the purchase of a vehicle.  The cash price for the vehicle was $20,800.00 but the total amount financed was $35,000.00.  The amount financed included a number of additional items, including the $12,000.00 differential between the value of the two automobiles traded in by the debtor and the remaining debt on those vehicles.  The debtor in his Chapter 13 Plan provided for a secured claim on behalf of the auto lender in the amount of $20,800.00 which was the vehicle's purchase price.  The lender objected to the Plan asserting that the full amount of the debt was entitled to secured status pursuant to the hanging paragraph in Section 1325(a).

Bankruptcy Means Testing

A case out of the Northern District of Texas occurred where an unsecured creditor objected to the confirmation of an above medium income debtor's proposed Chapter 13 Plan as failing to satisfy the "projected disposable income" requirement and was not being proposed in good faith.  In particular, the creditor asserted that the debtors had not committed all of their disposable income to plan payments.  At issue was the debtors' ability in performing the Means Test calculation to take standard vehicle ownership expense deductions in excess of their actual car payments or to take a deduction for payments that they were making on a recreational vehicle showing that the vehicle was necessary for the support of the debtors or their dependents.

Loans for Real Estate Taxes

A third party lender, ReTax paid the debtors real-estate taxes and took as consideration a promissory note from the debtor.  ReTax objected to confirmation of the debtor's Chapter 13 Plan.  It argued that the debtor was not entitled to modify the interest rate on the promissory note because the anti-modification provision of 1322(b)2 for security interest, then the debtor's principle residence should apply.  Even if that provision did not apply, ReTax argued the protection against modification for tax claims under 511 should prevent the debtors from adjusting the interest rate under the Plan.

Negative Equity in Vehicles

In re: Penrod, was a case with a ninth circuit Bankruptcy Appellate Panel said looking to the Uniform Commercial Code, the panel found the negative equity from a trade and does not constitute a "purchase money security interest" as required by the hanging paragraph.  Negative equity is the term given when a consumer trades in a car that has more debt against it than it is worth, and the new seller rolls the deficiency on the old car into the debt on the new. 

Bankruptcy

In re: Ballard, was a tenth circuit case where the debtors purchased a vehicle for personal use less than 910 days before filing a Bankruptcy Petition.  The vehicle was financed by a loan from Chrysler giving it a purchase money security interest in the car.  Mr. Ballard proposed surrendering the vehicle in full satisfaction of Chrysler's claims even though the car was worth less than the outstanding amount of the loan.  Chrysler objected on the grounds that surrendering the vehicle would not fully satisfy the claim and that it may therefore assert an unsecured claim based on state law for the deficiency.

Breath and Blood Testing in DWI Cases

Typically, a defendant's breath test results are going to be admissible in a DWI prosecution under Texas Rule of Evidence 403.  Texas Rule of Evidence 403 states that all relevant evidence is admissible unless the probative value of the evidence is substantially outweighed by its prejudicial affect.

DWI Stops

A police officer does not have to observe a DWI personally to have probable cause for the arrest.  Although, typically in a case the police officer will follow and observe an individual who seems to be displaying signs of intoxicated driving, the police officer can rely on a reliable third party informant.  That informant can remain anonymous.  The officer has to be able to take the clues based on the informant's description and using the officer's experience and knowledge and history dealing with DWI arrests and education as to what some of the signs are of an individual who is driving while intoxicated to make the determination that probable cause exists for this stop to occur. 

Forgery

The elements of forgery are that the state shows that the defendant: 1: with the intent to defraud or harm another; 2: passed; 3: a writing; 4: that purported to be the act of another; and 5: that the other person did not authorize the act.

Theft and Crimes of Moral Turpitude

Theft is known as a crime of moral turpitude.  It is especially troubling to be charged with a theft because if you are convicted or if the matter is not expunged from your record, then it will be extremely difficult for you to get a job in many instances.  When combining more than one instance of theft and aggregating the amounts, the prosecution typically uses the words "continuing course of conduct to avoid questions about the date of the theft".  Because aggregated transactions are considered to be one offense, severance is typically not proper even if it is requested under Texas Penal Code 3.04 according to the Texas Court of Criminal Appeals in 1990.

One Leg Stand

How often do you practice standing on one leg, with your hands down at your side, for thirty seconds, in front of a mirror and if you are unable to do so even though you have had nothing to drink, you have to take yourself to jail and hang out with felons for up to 48 hours?  Probably not too often.

Bankruptcy Relief

Filing for protection under the bankruptcy code can provide debtors with a great deal of relief and a fresh financial start.  A Chapter 7 bankruptcy is available for debtors who pass the Means Test.  Most people do actually pass the Means Texas, even in Collin County Texas.  However, the Means Test is a two part test.  Most high income earners fail the first part of the Means Test in Collin County and other North Texas Counties.  The first part of the test compares what most families of the debtor's size make in Texas.  Most people make less than families do in North Texas.  However, there is a second part of the test.  The second part of the test compares your housing, utilities, and transportation guidelines to what the IRS says is normal for a family of your size.  Most people in Collin, Denton, Dallas, and Grayson Counties pass the second part of the Means Test.

Division of community property and punitive damages

As to punitive damages, the Texas court reasoned that heightened culpability does not change the essential character of the wrong:  a deprivation of community assets as opposed to a tort committed against a person or his or her separate property.  A recovery of punitive damage requires a finding of an independent tort with accompanying actual damages.  

Breath Test Refusal in a DWI case

In the context of a DWI request to submit to a breath test, an accused's refusal to submit to such a test cannot automatically be equated with an inference of a guilty mind.  From an objective viewpoint, an unexplained refusal is "insolubly ambiguous" and constitutionally cannot give rise to an inference of guilt.  A refusal to submit to the taking of a breath sample "in the face of accusation is an enigma and should not be determinative of one's mental condition just as it is not determinative of one's guilt" according to the Florida Supreme Court.

Involuntary Manslaughter and Intoxication Manslaughter

Intoxication in an involuntary manslaughter or intoxication manslaughter prosecution has the same definition as in a DWI prosecution.  However, an involuntary manslaughter prosecution was not simply a DWI case resulting in death.  First, DWi is a strict liability offense, whereas involuntary manslaughter required legal recklessness. 

Fraud on the Community in Texas Divorce

There are aspects of the Texas community property system that provides additional remedies against a spouse for improper conduct involving the community estate.  Texas recognizes the concept of fraud on the community, which is a wrong by one spouse that the court may consider in its division of the estate of the parties and that may justify an unequal division.

Holiday Cheer and DWI

The local police departments have beefed up their efforts to make DWI arrests over the holidays.  It is very obvious when one drives around and sees the number of police officers that are on patrol during the Thanksgiving season.  Historically, people typically drink more alcohol during the Thanksgiving and Christmas holidays than they do in the remainder of the year.  Not only on Thanksgiving Day, but also on the days immediately following Thanksgiving there is much celebration throughout North Texas.  It is a wonderful time of the year, but a police officer can absolutely ruin it whenever they arrest someone who has had a few drinks.   

Loan Modification Problems

Over the last two years, there have been promises from banks to try to modify the home loans of Americans to make it more affordable for them to remain in their home.  The basic idea was that the debtor had to send in some documentation to be reviewed and then they would be advised if they qualified for the loan modification program in a few weeks.

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