Archives : 2009 : December
Texas Hate Crime and Felony Statutes
Forty-five states have hate crime statutes, including Texas. The FBI’s definition of a hate crime is “a criminal offense committed against a person, property or society which is motivated, in whole or in part, by the offender’s bias against a race, religion, disability, sexual orientation, or ethnicity/national origin.” The Anti-Defamation League (ADL) reported that there are 31 states that have criminalized violence based upon sexual orientation, including Texas.
Texas James Byrd Jr. Hates Crimes Act
The Texas James Byrd Jr. Hate Crimes Act was enacted into law in 2001 to classify crimes motivated by the victim’s race, religion, color, sex, disability, sexual preference, age or national origin as hate crimes. The law was enacted after the hate crime of an East Texas black man named James Byrd, Jr. who was dragged to death by three white men in a pickup truck in 1998. Two of the men involved in the crime are on death row, and the third received a life sentence.
Under Texas Penal Code Section 12.47, the sentencing for a crime involving bias or prejudice, other than a First Degree Felony or a Class A Misdemeanor, is increased to the next highest category of offense, with a minimum increased term of 180 days of confinement. Under Article 42.014 of the Texas Penal Code, the judge may also require the defendant to attend an educational program on tolerance. Chapter 12 of the Texas Penal Code provides that a Texas First Degree Felony is punishable by life imprisonment for not more than 99 years or less than 5 years and a fine not to exceed $10,000. An individual found guilty of a capital felony crime where the state seeks the death penalty is punishable by life imprisonment without parole or by death.
The Matthew Shepard and James Byrd, Jr. Hates Crimes Prevent Act
In October of 2009, President Obama signed into law the The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act (a.k.a.“Matthew Shepard Act”) as a rider to the National Defense Authorization Act for 2010 (H.R. 2647) to include crimes which are motivated by a victim’s “actual or perceived gender, sexual orientation, gender identity or disability” in response to the hate crime murders of Matthew Shepard and James Byrd, Jr. This law is a supplement to the 1969 Federal Hate Crimes Act. The Shepard hate crime occurred in October 1998 when Aaron McKinney and Russell Henderson took Matthew Shepard, a 21 year old political science student at the University of Wyoming, to a remote area east of Laramie, Wyoming where they tied him to a split-rail fence, assaulted him severely and left him to die in the cold evening temperatures. He was found 18 hours later by a bicyclist and died five days later of head injuries in a hospital in Colorado. His crime was classified as a sexually oriented hate crime. Both murderers were given life in prison sentences.
It should be noted that a different version of the case later was later reported on an ABC 20/20 episode in 2004 by reporter Elizabeth Vargas who reported that the crime was over a robbery by drug users who needed money for methamphetamine. The 20/20 show reported that both Shepherd and the two perpetrators were allegedly heavy methamphetamine users, and that Shepherd’s lifestyle caused him to visit places where he met the killers. In fact, according to the show, one of the killers used the defense at his trial to get a reduced sentence that Shepherd tried to proposition him at a bar and that he was not emotionally in control at the time of the murder. The defense failed. Whether the crime was a hate crime or a robbery, it was a terrible crime and it prompted lawmakers to enact the new federal law to recognize that crimes involving gender, sexual orientation and gender identity are hate crimes.
FBI Investigation of Texas Hate Crime
Currently, the FBI is investigating a Texas crime, which falls under the new Matthew Shepard Act regarding the kidnap and sexual assault of an 18-year-old high school student on December 6, 2009 by two suspects outside the Boathouse Bar and Restaurant Terlingua near Big Bend National Park and the Texas-Mexico border. The suspects kidnapped the victim and took him to a remote location, then burned his car and repeatedly sexually assaulted him. The victim was able to escape on foot across three miles of desert terrain where a Brewster County Sheriff’s Deputy found him. The victim is recovering at an undisclosed location. The FBI’s investigation could lead to federal hate crime charges being filed by the U.S. Attorney’s Office. The FBI believes the attack was an anti-Gay hate crime based upon statements from eye witnesses regarding events that occurred at the bar prior to the incident. However, it is unclear whether the victim is in fact gay. The FBI spokesperson emphasized that the FBI will be focusing their investigation on the kidnapping and sexual assault aspect of the case and making recommendations to the U.S Attorney’s Office. It is up to the U.S. Attorney’s Office as to whether they will prosecute the crime under the new federal law.
With regard to the prosecution of the crime by the State of Texas, the two suspects, 46 year old Daniel Martinez and 27 year old Kristopher Buchanan were arrested and indicted by the Texas grand jury with charges of aggravated sexual assault, aggravated kidnapping, aggravated robbery and arson. Bond has been set at $275,000 each. Suspect Buchanan is also being held on two outstanding felony warrants from two other Texas counties. Martinez also has prior arrests and convictions. Since Texas does not have a penalty enhancement under the 2001 James Byrd Jr. Hates Crimes Act for these charges, the Texas district attorney is not prosecuting the case as a hate crime.
If you commit a crime involving bias or prejudice under the Texas James Byrd Jr. Hate Crimes Act or are charged with a First Degree Felony, capital punishment crime or Class A misdemeanor in Texas, you should hire a Texas criminal defense attorney to defend you. Article 27.02 of the Texas Penal Code gives the defendant the following options to plea guilty, not guilty, nolo contendere (which has the same affect as a guilty plea, except the plea cannot be used against the defendant in a civil lawsuit), applying for probation and electing to have the jury impose the punishment instead of the judge if the defendant is found guilty.
While you may not be charged with a hate crime under Texas law for committing a First Degree Felony or Class A Misdemeanor, you still may face the maximum sentence of life in prison or the death penalty for a capital punishment crime. You could also be charged and convicted under the new federal Matthew Shepard Act with a hate crime and prosecuted by the U.S. Attorney’s Office. Your attorney understands the Texas hate crime statutes and felony laws and the Federal Hate Crime Act and laws and may be able to argue legal defenses such as aggravated battery and
lesser charges such as mistaken identity, self defense and false accusations to get the charges reduced or the case dismissed.
California law classifies domestic violence as abuse committed by an adult against a spouse, former spouse’s child, cohabitant or former cohabitant or persons who have had a child together, or who have a relationship. Under California law, a former spouse, cohabitant and either parent of a child are also considered a spouse for purposes of prosecution for spousal abuse. California Penal Code Section 273.5 considers corporal injury to a spouse a felony domestic violence charge with fines, county jail time or incarceration in state prison depending on the number of offenses and seriousness of the injuries. California Penal Code Section 422 also considers stalking and making threats domestic violence abuse. A domestic battery under California Penal Code Section 243(3)(1) is considered willful force or violence committed against an intimate partner. An intimate partner is considered someone you are engaged to be married to, a current or former spouse, a parent of your child or someone you are dating.
In addition, California Penal Code Section 1203.097 requires a convicted domestic violence defendant to attend a batter’s class as part of their probation and attendance of an AA or NA program if alcohol or drugs were involved in the domestic violence incident. A convicted of domestic violence may also require the defendant to pay restitution to the battered victim for counseling costs and reasonable expenses determined by the court and to make payments to a women’s shelter up to the maximum sum of $5,000. Marital assets may not be used by the defendant to pay for injuries to their married spouse. The court may also issue a restraining order against the defendant for up to 10 years based upon the seriousness of the crime and the possibility of future harm to the victim or the victim’s family.
Orange County Prosecutor Arrested for Domestic Violence
No social or economic class is immune from domestic violence. In fact, even well respected Huntington Beach, Orange County Prosecutor, David Brent, and his wife, were arrested in December of 2009, for domestic violence after the couple allegedly fought. Mr. Brent has been employed for 24 years as an Orange County prosecutor. Mr. Brent’s wife called 911 to report the argument. She was treated by medics who arrived at the family Huntington Beach home after Mr. Brent left the scene on foot. A list of his injuries was not specified. Both were subsequently arrested for allegedly violating California Penal Code Section 273.5, corporal injury to a spouse, which is a felony domestic violence charge. Corporal injury is categorized under California law as using serious force that causes an external or internal minor or serious wound.
The couple was taken to the Huntington Beach jail. Mr. Brent could face penalties of a minimum county jail time of one year with time served to a maximum four year’s sentence in a California state prison for a first offense felony domestic violence charge and a possible $6,000 fine. The case was referred to the State Attorney General’s office for prosecution to avoid any conflicts of interest.
California AB 532
California continues to enact more laws to help victims and protect families and communities from the dangers associated with domestic violence crimes. Counseling is also available to victims and abusers through various private and public programs. Effective January 1, 2010,
California has enacted AB 532 which now allows police to obtain a warrant to seize weapons that may be kept at a residence after a domestic violence or mental health incident has occurred at the residence.
Signs that a spouse or partner may be exhibiting that may lead to a domestic violence incident include:
• Extreme jealousy
• Attempts to alienate partner or spouse from seeing their friends or family
• Public outbursts of yelling or humiliating spouse or partner
• Hitting, slapping, pulling, pushing or tugging at partner or spouse’s hair or physical injury against spouse or partner
• Imprisoning spouse or partner in their house
A conviction of domestic violence is a serious crime in California. Both victims and abusers should seek counseling to prevent further incidences of abuse and to help the healing process.
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