Primer to Veterans Courts in Harris County, Texas

Transcription

1 Primer to Veterans Courts in Harris County, Texas Justice for Veterans Campaign 1405 Montopolis Dr. Austin, Texas Compiled by: Jordan Antonio Rodriguez Carol Wang Note: This manual specifically addresses courts in Harris County, but the majority of its advice is equally true for veterans courts in other parts of the state. Table of Contents Chapter 1. Harris County Veterans Courts Purpose and Overview. Chapter 2. Overview of The Criminal Process: Where Veterans Courts Fit In. Chapter 3. Eligibility For Veterans Courts. Chapter 4. Veterans Treatment Court: Program Details. Appendix A. Types of Crimes. Appendix B. How to Find an Attorney. Appendix C. Directory of Veterans Courts in Texas.

2 Chapter 1. Harris County Veterans Courts Purpose and Overview. Veterans courts are hybrid drug and mental health courts that use the drug court model to serve veterans struggling with addiction, mental illness or related disorders. The court programs involve working with the traditional partners found in drug and mental health courts as well as the U.S. Department of Veterans Affairs health care networks, volunteer veteran mentors, and veterans family support organizations. Veterans Courts developed in response to the growing trend of veterans appearing in courts for offenses stemming from substance abuse or mental illness. According to government reports, there are 23,440,000 veterans in the United States and approximately 1.7 million veterans from the wars in Iraq and Afghanistan. Many of these veterans struggle with mental health and substance abuse illnesses. A 2000 Bureau of Justice Statistics Report found that 81% of all justice-involved veterans had a substance abuse problem prior to incarceration, 35% were identified as suffering from alcohol dependency, and 25% were identified as mentally ill. Traditional services do not adequately meet the needs of veterans who are often entitled to treatment through the Veterans Administration. The veterans courts help connect them with these benefits. The latest docket (July 2012) has 60 veterans enrolled in the veterans courts. Chapter 617, Title 7, Section of the Texas Health and Safety Code authorizes the veterans court programs. If a defendant successfully completes a veterans court program, the court in which the criminal case is pending will dismiss the criminal charge against the defendant. The Harris County Veterans Treatment Court (VTC) has assisted veterans in the criminal justice system since November During the program s first eighteen months, Harris County was able to obtain nearly $600,000 in VA in-kind services for the defendants in the program, including counseling and benefits that would not be available within the County system.

3 Chapter 2. Overview of The Criminal Process: Where Veterans Courts Fit In. Below you will find a description of the criminal process beginning from the arrest to the charge and ending with trial. If you have been arrested, you can request to enroll in Veterans Court during the court date on which you are formally charged. 1. What happens after someone commits a crime? Police officers will arrive at the scene and begin an investigation. They will secure the area. They will meet the victim and question witnesses and record their statements. The suspect will be taken into custody and questioned. 2. When can a police officer arrest someone? To make an arrest, a police officer needs probable cause to believe that someone committed an offense. For example, if a police officer witnesses someone committing an offense in public, she has probable cause to make an arrest. Police officers usually need a warrant to arrest someone in the home. If you are unsure whether you are under arrest, ask the police officer. Unless she says that you are under arrest, you are free to leave at any time. If a traffic cop pulls you over and she asks to search your vehicle, you can say no. You can always have the right to refuse to answer the police officer s questions. There is a difference between being stopped and questioned by the police and being arrested by them. The police do not need probable cause to ask you questions about an offense, even if they believe you are a suspect. But they may be asking you questions so that they can gain probable cause to arrest you. You still have the right to remain silent. 3. What do I do if I am arrested, and if the police take me into custody? You have a constitutional right to remain silent and to ask for an attorney. If you are a suspect in a crime, or if you participated in a crime, you should always consult an attorney before speaking to the police. You should ask whether you are under arrest. This starts the clock running on the amount of time that police can hold and question you. There is no clear time limit, but generally police cannot hold you for more than 24 hours without placing you under arrest. Remember, police need probable cause to arrest you. Don t let them get it. Never speak to the police without an attorney. 4. I think I m a suspect. Will the police go easier on me if I answer their questions? No. The police are not your friends. The only reason they are asking you questions is to gather evidence to use against you. Do not answer their questions even if they claim to have incriminating evidence against you. Do not believe police when they tell you that cooperation will lessen your sentence. Wait for your attorney. Remaining silent before your lawyer arrives is your right under the U.S. Constitution. It does not harm your case. 5. What happens after I am arrested? The fact that you were arrested says the police believe that you have committed a crime. The police do not, however, have the power to charge you with a crime. Only a prosecutor may do that (there is an exception: non-prosecutors can file complaints for Class C misdemeanors). If the Prosecutor decides that you have committed a crime and that there is enough evidence to convict you, you will be charged with a crime. The particular crime you are charged with will depend on the particular criminal code under which you are being charged. Each state and the federal government have a written code of crimes. The Prosecutor will examine this code and decide on what crimes to charge you with.

4 6. What criminal charges could I face? Misdemeanors There are three levels of misdemeanors: Class A (most serious), Class B, and Class C (least serious). See Appendix A for a table with examples of misdemeanor offenses, and their potential punishments. If you are charged with a class A or B misdemeanor, the prosecutor must file a written statement charging you with that offense in a county court. If you are charged with a class C misdemeanor, a credible person not necessarily the prosecutor must file a written complaint charging you with that offense. If you are charged with a class C misdemeanor (other than public intoxication), the police officer may give you a citation ticket instead of taking you in front of a judge. On that ticket will be the time and place that you must appear before a judge. The ticket will also include the offense with which you are charged. If you fail to appear, the judge will summon you to court or authorize the police to place you under arrest and bring you to court. Felonies There are multiple levels of felonies: capital crimes, and first, second, and third degree crimes. See Appendix A for a table with examples of felony offenses, and their potential punishments. The prosecutor must seek an indictment from a grand jury to prosecute you for a felony. An indictment is a written statement by a grand jury, accusing you of a criminal offense. The indictment is then filed in a district court. The grand jury has a duty to determine whether the prosecutor has enough evidence to make you stand trial. At least 9 of 12 jurors must agree to indict you. If they believe the prosecutor does not have enough evidence, the judge will release you. 7. How am I formally charged with a crime? Once you have been officially arrested you must be formally charged in an arraignment. An arraignment is the court hearing where you will find out what, if anything, you are being charged with. In federal courts you must be arraigned within 48 hours of your arrest. In some state courts this time requirement is only 24 hours. In the federal system, an arraignment is broken down into two parts. First, the Initial Arraignment will occur and you will be told what the charges are against you. You will also be asked whether you need a court appointed attorney and informed of any future court dates. If you cannot afford an attorney, the court must appoint one for you. This too is your constitutional right. To see how to get an attorney, refer to Appendix D. The second phase is where you will be asked to enter a plea. A plea is your response to the charges against you. You can plead guilty or not guilty. Many state courts combine the arraignment into one hearing. This means that you will have the charges read to you and will also be asked to plead then and there. You should work closely with your attorney in deciding how to plead. This is also the stage of the criminal justice process where you can request to be enrolled in the veterans courts if you qualify. 8. How do I request enrollment in veterans court? If this is the first time you have been arrested and charged, you should request to enroll in Veterans Courts. As described in the first chapter, veterans courts provide an alternative treatment program that will extinguish all record of this charge if you successfully complete the program. To read more on whether you are eligible, please see the next chapter. If you are eligible, you may place this request yourself or through your lawyer.

5 You are not guaranteed the right to be referred to a veterans court. Just because you are a veteran doesn t mean you will automatically eligible. The most important factors for eligibility are the nature of the offense that you are charged with and your past criminal record. Your best chance to have a veterans court hearing is if you are charged with a non-aggravated offense and you have no criminal record. Remember, once you have been arrested, don t talk to the police. Wait for your attorney to arrive and explain to her that you are a veteran and may be eligible for the veterans court. 10. I have not been referred to veterans courts. How else could my case be resolved? Trial by Jury: The Texas Constitution guarantees your right to a trial by jury. You may waive your right to a trial by jury and instead have a judge decide your guilt or innocence. Plea Bargains: We live under a justice system where 98% of cases end in plea bargains instead of trial. A plea bargain is an agreement between you, your attorney, and the prosecution. In exchange for pleading guilty or no contest and waiving your right to a jury trial, the prosecutor will recommend a punishment. The judge can follow or reject this recommendation. Guilty Plea: You may plead guilty or no contest to a criminal charge without an agreement with the prosecutor about your recommended punishment. 11. What happens if my case does proceed to trial? Here is a ten-step summary of the criminal trial process: (1) The prosecution and the defense attorney take turns examining and picking the jury. (2) The charges are read to the jury. (3) The defendant enters a plea: guilty or not guilty. (4) Both prosecutor and defendant make opening statements. (5) Both offer testimony, call and cross-examine witnesses, and argue their case to the jury. (6) The judge explains the law that applies to your case to the jury. (7) The jury deliberates. If they find that the prosecutor has proved beyond a reasonable doubt that you committed a crime, they will return a verdict of guilty and the case proceeds to the punishment phase. A verdict of not guilty ends the trial and releases the defendant. (8) If the jury cannot agree on the verdict, the judge will declare a mistrial. That is not the end of the matter. The case may be retried at a later time. (9) With rare exception, the judge, not the jury, determines the punishment. (10) After pronouncing the punishment or sentence, the judge may allow the victim, or her close relative or guardian, to appear and make a statement about her views of the offense, the defendant, and the effect of the crime on the victim. Sometimes the prosecutor will dismiss a criminal case. Common reasons for dismissal include: (1) lack of evidence; (2) suppression of key evidence that the police obtained because of an illegal search, seizure or arrest; (3) at the request of the victim; (4) in exchange for the defendant s plea to another offense; (5) the defendant has never been arrested before.

6 12. How will a conviction in a criminal court impact my veterans benefits? A criminal conviction can put your VA benefits at risk. The most important factor is the nature of the crime. If you have committed a misdemeanor and are serving jail time, you may seek a VA Apportionment. [1] This allows some or all of the money that would be taken from your benefits because of your misdemeanor to be given to your family. However, VA Apportionment is not available if you are convicted of a felony. Your disability benefits and pension [2] will start to be reduced if you are convicted of a felony and serve more than 60 days in prison. You do not lose your VA medical care [3] if you are convicted of a crime. However, while you are in prison, you will receive care from the prison health care system instead. When you are released from prison, you will once again receive VA medical care. VA education benefits [4] are still available if you are serving prison time, but the amount will depend on the nature of your conviction. If you are serving time for a non-felony, you may receive full education benefits. IMPORTANT: You must notify the VA that you have been convicted of a crime and will be serving jail time. The VA needs to know this so that it will stop paying out benefits that you are not eligible for while you are in prison. If you fail to tell the VA, and they continue to pay your benefits or pension, they will demand that you return the money once you are released from prison. Likewise, the VA will reinstate your benefits after you are released from prison. But you must notify the VA within one year of your release. For more information call toll-free [1] A copy of the VA Apportionment request form (VA Form ) is available on the VA website. [2] More information about the Veterans Pension and Spouse and Child Pension Programs is available on the VA website. [3] More information about VA Health Care services and provides is available on the VA website. [4] Information about VA Education Benefits and the Post-9-11 GI Bill is available on the VA website.

7 Chapter 3. Eligibility for Veterans Courts. 1. Am I eligible for the Harris County Veterans Treatment Court? To be eligible, I must: (1) Be a veteran or current member of the United States armed forces, including a member of the reserves, national guard, or state guard, with an honorable discharge or general discharge under honorable conditions. (2) Be suffering from a brain injury, mental illness/disorder, including post-traumatic stress disorder, that (A) resulted from my military service in a combat zone or other similar hazardous duty area; (B) materially affected my criminal conduct at issue in the case; (3) Be charged with an eligible felony, i.e. NOT a drug delivery murder, capital murder, indecency with a child, aggravated kidnapping, sexual assault, robbery, injury to a child, injury to an elderly person, injury to a disabled person, or offenses with the finding of a deadly weapon, (4) NOT have had a previous conviction for any of the following crimes: murder, capital murder, indecency with a child, aggravated kidnapping, sexual assault, robbery, injury to a child, injury to an elderly person, injury to a disabled person, or offenses with the finding of a deadly weapon. (5) NOT have previously been terminated or graduated from Veterans Court, (6) Be a legal resident of/or citizen of the United States of America, (7) Be a resident of Harris and/or surrounding 20 Counties served by Veterans Court, 2. How do I provide proof of the above requirements? How do I prove I am eligible for Veterans Court? When you first go to court to respond to the charge, you can request to appear in front of Veterans Court. After you request treatment through Veterans Court, the Veterans Court program manager must verify your military history and your VA eligibility. Then a judge and prosecutor will determine if you are legally eligible. Once you have been approved you will be scheduled for a forensic psychiatric evaluation at the STAR (Success Through Addiction Recovery) Drug Court. The program manager, judge, or prosecutor may accept any form of proof of the above. Examples of proof include: (1) Military service and medical records, (2) Previous determinations of a disability by a veteran's organization or by the United States Department of Veterans Affairs, (3) Testimony or affidavits of other veterans or service members, and (4) Prior determinations of eligibility for benefits by any state or county veterans office. 3. What are reasons that would exclude me from Veterans Court? You can be excluded from the program if you have a pending charge or a prior conviction for a 3g offense other than aggravated assault, delivery of a controlled substance or a sex offense. Aggravated assault charges are accepted on a case by case basis. The District Attorney gives final approval for your eligibility.

8 Chapter 4. Veterans Treatment Court: Program Details. 1. How can I be referred to the Veterans Treatment Program? When you first go to court to respond to the charge, you can request a hearing in front of the Veterans Court. You can be referred to the VTC by any of the 22 district courts in Harris County. Your attorney or the VA staff can refer you, but the court judge and prosecutor have final approval. See step 8 of the Chapter 3 outlining the criminal justice process. 2. What happens once I am referred to the Veterans Treatment Court? The judge sets the conditions of bail or pretrial release for you. The judge will also refer you to a Veterans Justice Outreach Specialist, who works with the defendant and counsel to develop a treatment plan. Once you are referred to the VTC, you must submit to a clinical evaluation. Once admitted, you will go through Veterans Treatment Program orientation with the program manager and your VA court liaison. During orientation, you be will be presented with your initial treatment and discharge plan. The program consists of months of participation in a rehabilitation/treatment program. Additionally, you will meet with the judge --- every month and keep the court officials updated on your progress. When you complete the orientation, your case will be transferred to the 228th Veterans Treatment Court and placed on the next scheduled docket. You will complete orientation and then sign and release personal and medical information before you can be admitted to the VTC. The treatment plan may include referral to treatment centers for alcohol or drug dependence or to mental health counseling. Following court approval of the treatment plan, the defense counsel and prosecution negotiate a plea agreement. The agreement may provide for eventual reduction, consolidation, or dismissal of the pending charges. It will also include the treatment plan and requires the veteran to comply with the terms of the treatment plan. The defendant may reappear in court from time to time so that his treatment program or bail conditions may be adjusted. If the defendant fails to complete treatment or comply with bail conditions, then he will be sentenced to complete his term in prison. Successful completion ends with a graduation ceremony and dismissal of charges with no criminal record. 3. What are Veterans Justice Outreach Specialists? The VA medical center has a Veterans Justice Outreach Specialist. The Specialist is responsible for managing veterans cases in local courts and jails. The Specialist works with the Veterans Liaison and with law enforcement officers and state attorneys. The purpose of this arrangement is to help veterans with combat-related mental illnesses avoid incarceration and a criminal record. The arrangement also ensures timely access to mental health and substance abuse programs, as well as other VA services and benefits. 4. Do I have to enroll in veterans court if the judge places me there? No. You may opt out of veterans court participation. Veterans who opt out are then referred to the district court, which will handle his case just like any other criminal matter.

9 Category Punishment Examples Appendix A. Types of Crimes. FELONIES Capital First Degree Second Degree Third Degree State Jail Death by lethal injection (only if 18 years of age or older when offense committed) or life imprisonment without parole. 5 to 99 years or life imprisonment, may also be fined up to $10,000 2 to 20 years imprisonment, may also be fined up to $10,000 2 to 10 years imprisonment, may also be fined up to $10, days to 2 years in state jail; may also be fined up to $10,000; or court may impose Class A misdemeanor punishment. Capital Murder (murder peace officer, fireman, or judge; murder in the course of kidnapping, burglary, robbery, aggravated sexual assault, arson; for hire; while incarcerated in or escaping from a penal institution; murder of more than one person; murder of a child younger than 6 years of age) Murder; Aggravated Sexual Assault; Injury to Child, Elderly, or Disabled Individual (intentional or knowing/serious bodily injury); Aggravated Kidnapping; Aggravated Robbery; Arson (place of worship or assembly, a habitation, or causes bodily injury or death); Burglary of a Habitation (intent to commit a felony other than theft); Theft/Criminal Mischief of $200,000 or more Murder (sudden passion); Manslaughter; Indecency With a Child (by sexual contact); Sexual Assault; Robbery; Aggravated Assault; Arson; Burglary of a Habitation; Theft/Criminal Mischief of $100,000 or more; Stalking (subsequent conviction) Intoxication Assault; Kidnapping; Stalking (first offense); Violating Protective/Magistrate s Order (third conviction or commits assault or stalking); DWI (two prior convictions); Theft/Criminal Mischief of $20,000 or more. Criminally Negligent Homicide; Burglary of a Building; Criminal Nonsupport; Theft/Criminal Mischief of $1,500 or more or Criminal Mischief or less than $1,500 to a habitation with a firearm or explosive weapon; Forgery (check or credit card). Category Punishment Examples MISDEMEANORS Class A Class B Class C up to 1 year in county jail and/or a fine up to $4,000 up to 180 days in county jail and/or a fine up to $2,000 fine only not to exceed $500 Assault (causes bodily injury); Violating Protective/Magistrate s Order (first offense); Harassment (one prior conviction); Criminal Trespass (habitation or with deadly weapon); Burglary of a Vehicle; DWI (one prior conviction). Theft/Criminal Mischief of $500 or more. Terroristic Threat; Indecent Exposure; Harassment (first offense); Disorderly Conduct (discharge/display of firearm); Theft/Criminal Mischief of $50 or more. Assault (threatens bodily injury or causes offensive or provocative contact); Possession of Alcoholic Beverage in Motor Vehicle; Theft/Criminal Mischief of less than $50.

10 Appendix B. How to Find an Attorney. You have a right to legal representation if you have been arrested and charged with a crime for which you can be incarcerated. If you cannot afford an attorney, one must be provided to you. If you can afford to pay the attorney, you will have to bear the cost of his/her services; however, if you cannot pay, the court will provide the attorney free of charge. Texas Criminal Defense Lawyers Association TCDLA is a statewide association of criminal defense attorneys. Many or most sign up for the organization s Lawyer Locator, which you can use to find lawyers by geography and practice area. Houston Lawyer Referral Service Most large, urban areas have a lawyer referral service. In Houston, it is the Houston Lawyer Referral Service. You can call HLRS ( ) or visit online ( to receive a referral to a criminal defense attorney. Referrals are free, but the lawyer you are referred to will charge $20 for the first 30 minute consultation. State Bar of Texas: Lawyer Referral Information Service The State Bar of Texas also offers a statewide referral service that covers geographic areas that, unlike Houston, do not have their own service. It operates the same way. Either call ( ) or visit online (

11 Appendix C. Directory of Veterans Courts in Texas. Directory of Veterans Courts in Texas County Bexar Dallas Denton El Paso Guadalupe Harris Hidalgo Tarrant Travis Key Personnel Presiding Judge: Wayne Christian Court Manager: Michael McCollum Defender Details: Rotational method (3 attorneys) Presiding Judge: Michael Snipes Specialty Courts Manager: Vonda Freeman Defender Details: Janie Martin Presiding Judge: Various judges any judge can be referred for the VA case Adult Probation Director: Peggy Carr Defender Details: Rotational method Presiding Judge: Ricardo Herrera Program Director: Cesar F. Prieto Defender Details: Rotational method Presiding Judge: Linda. Z. Jones Program Director: Bob Grafe Defender Details: Rotational method Presiding Judge: Marc Carter Program Manager: Mary Covington Defender Details: Term assignment attorneys each year. Presiding Judge: Israel Ramon, Jr. Contact: Rodolfo Rudy Perez Presiding Judge: Brent A. Carr Veteran s Court Manager: Courtney Young Defender Details: Rotational method with 2 judges currently Presiding Judge: Mike Denton Veteran s Court Manager: Jackson Glass Defender Details: A court defense attorney is appointed and is rotated throughout the year. Contact Address: County Court #6 300 Dolorosa San Antonio, TX78205 Phone: msmccollum@bexar.org Address: Criminal District Court #7 133 N. Riverside, 7th Floor Dallas, TX Phone: Cell: vkfreeman@dallascounty.org Address: 1450 E. McKinney Street Denton, TX Phone: peggy.carr@dentoncounty.com Address: 500 E. San Antonio, Room #802 El Paso, TX Phone: Cell: cprieto@epcouty.com Address: 211 W. Court Street Seguin, TX Phone: ext bob.grafe@co.guadalupe.tx.us Address: 1201 Franklin Street, 16th Floor Houston, TX Phone: mary_covington@justex.net Address: 111 S. 9th Street Edinburg, TX Phone: Address: 300 W. Belknap, 4th floor Fort Worth, TX Phone: cdyoung@tarrantcounty.com Address: Travis County Criminal Courts 501 W. 11th Street, Ste Austin, TX Phone: Jackson.glass@co.travis.tx.us