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Police enter house during party

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Rockwall Troy

Junior Member
What is the name of your state (only U.S. law)? Texas

My 19 year old son lives in a rent house that I own. At 4 a.m. two party goers entered the house (both 21 years old). Within a minute, a uniformed police officer opened the closed back door and let himself in. Two more officers opened and entered the front door. Some of the party goers were under 21, the legal age to consume alcohol. My son was issued a citation for 'Minor In Consumption'. No sobriety test was given, no alcohol was seized from the home, no blood test or breath test. The officer later testified in the court trial that my son did NOT appear beligerent, red-eyed, drunk or confused. He still lost the trial with no legal counsel present. Fine was $600 and loss of drivers license for 60 days. He did seek to get a license to drive to work only.
Is there any illegal behaviour of entering and searching his home? All minors received citations at the party. No one over 21 received a citation... not even for providing alcohol. Officers say they entered the home because 'they believed the two party goers that entered the house before them were under aged'... they were, in fact, 21.
:confused:
 


davew128

Senior Member
The time to argue is over. If you spent some $ on a lawyer you might of had a chance.
I dont know Texas criminal law (and will defer to the person here who does) but I find it inconceivable that there is no right to appeal the verdict.
 

OHRoadwarrior

Senior Member
Probable cause is not definitive. By all means, teach your son that even if you are guilty, you should never take responsibility for your actions.
 

Rockwall Troy

Junior Member
What is the name of your state (only U.S. law)? Texas

My 19 year old son lives in a rent house that I own. At 4 a.m. two party goers entered the house (both 21 years old). Within a minute, a uniformed police officer opened the closed back door and let himself in. Two more officers opened and entered the front door. Some of the party goers were under 21, the legal age to consume alcohol. My son was issued a citation for 'Minor In Consumption'. No sobriety test was given, no alcohol was seized from the home, no blood test or breath test. The officer later testified in the court trial that my son did NOT appear beligerent, red-eyed, drunk or confused. He still lost the trial with no legal counsel present. Fine was $600 and loss of drivers license for 60 days. He did seek to get a license to drive to work only.
Is there any illegal behaviour of entering and searching his home? All minors received citations at the party. No one over 21 received a citation... not even for providing alcohol. Officers say they entered the home because 'they believed the two party goers that entered the house before them were under aged'... they were, in fact, 21.
:confused:
I appreciate the responses... But to be more clear about my position:
My son should, and has paid the fine and lost his license if he did something wrong. He wasn't tested for consumption, therefore he did not commit the misdemeanor, and I'm sure an attorney could still resolve that problem. I should clarify that I'm wondering if a civil wrong-doing by the local police was commited. If the police commited an offense, that's what I would want to pursue. If they committed an offense, all following actions from that point would be tossed anyway.
 

justalayman

Senior Member
I dont know Texas criminal law (and will defer to the person here who does) but I find it inconceivable that there is no right to appeal the verdict.
one has to realize what allows for an appeal. Just because the verdict is not what you want is not a basis to appeal the result. There has to be errors but even more, there usually has to have been an objection during the trial to the the issue and the judges decision having gone against the defendant.


The OP asked about issues that would, or should have been dealt with either at the trial, or some of them, in the preliminary activities leading up to the trial. If they did not deal with them, they cannot be challenged now.
 

CdwJava

Senior Member
Consumption would not have to be proven by a chemical test. It can be shown by observation (either of the drinking, or the odor of alcohol emanating from his person or on his breath.

As for the entry, whether that was allowed or not would depend entirely on the circumstances and should have been brought up at the original trial. An appeal is done for cause and based upon issues that are on the record. Not liking the outcome is not good cause for an appeal unless the TX court system permits automatic appeals for unrepresented cases or cases similar to this one. And unless the issue of entry was raised ahead of time, it is probably not an issue on record so the appellate court may not be able to consider it.

If your son wants to appeal it, hire an attorney for him.
 

davew128

Senior Member
one has to realize what allows for an appeal. Just because the verdict is not what you want is not a basis to appeal the result. There has to be errors but even more, there usually has to have been an objection during the trial to the the issue and the judges decision having gone against the defendant.


The OP asked about issues that would, or should have been dealt with either at the trial, or some of them, in the preliminary activities leading up to the trial. If they did not deal with them, they cannot be challenged now.
Let me state it again. In some states (including Texas see Article 44.02 of the Texas Code of Criminal Procedure) one can appeal the verdict.
 

OHRoadwarrior

Senior Member
I am still not seeing any case for appeal. By all means hire a lawyer and go for it.


Art. 44.25. CASES REMANDED. The courts of appeals or the Court of Criminal Appeals may reverse the judgment in a criminal action, as well upon the law as upon the facts.
 

justalayman

Senior Member
Let me state it again. In some states (including Texas see Article 44.02 of the Texas Code of Criminal Procedure) one can appeal the verdict.
Oh, you mean this law:

Art. 44.02. DEFENDANT MAY APPEAL. A defendant in any criminal action has the right of appeal under the rules hereinafter prescribed, provided, however, before the defendant who has been convicted upon either his plea of guilty or plea of nolo contendere before the court and the court, upon the election of the defendant, assesses punishment and the punishment does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney may prosecute his appeal, he must have permission of the trial court,except on those matters which have been raised by written motion filed prior to trial. This article in no way affects appeals pursuant to Article 44.17 of this chapter.
that does not say what you are claiming. It says a defendant has a right to appeal UNDER THE RULES HEREINAFTER PRESCRIBED and then goes on to limit even that.

Ok, let me rephrase my statement.

Anybody can file an appeal. It will be reviewed. If there is no basis to sustain the appeal, it will be ruled against the appellant and sentence enforced.

For an appeal to be sustained, there must be a valid basis for the appeal. An appeal based only upon a guilty verdict is not a valid basis for the appeal.
 

davew128

Senior Member
Oh, you mean this law:



that does not say what you are claiming. It says a defendant has a right to appeal UNDER THE RULES HEREINAFTER PRESCRIBED and then goes on to limit even that.

Ok, let me rephrase my statement.

Anybody can file an appeal. It will be reviewed. If there is no basis to sustain the appeal, it will be ruled against the appellant and sentence enforced.

For an appeal to be sustained, there must be a valid basis for the appeal. An appeal based only upon a guilty verdict is not a valid basis for the appeal.
http://codes.lp.findlaw.com/txstatutes/CR/1/44/44.17

In all appeals to a county court from justice courts and municipal courts other than municipal courts of record, the trial shall be de novo in the trial in the county court, the same as if the prosecution had been originally commenced in that court. An appeal to the county court from a municipal court of record may be based only on errors reflected in the record.

I'm betting this case isn't from a municipal court of record.
 

justalayman

Senior Member
http://codes.lp.findlaw.com/txstatutes/CR/1/44/44.17

In all appeals to a county court from justice courts and municipal courts other than municipal courts of record, the trial shall be de novo in the trial in the county court, the same as if the prosecution had been originally commenced in that court. An appeal to the county court from a municipal court of record may be based only on errors reflected in the record.

I'm betting this case isn't from a municipal court of record.
so, how is this supporting your claim? It does not address what is required to be granted an appeal.

do you seriously believe that everybody found guilty in Texas has an automatic right to a new trial without reason? Seriously?

do you even know that the Hell a justice court is? I'm betting not.

here, I'll help you out a bit:

http://www.jp.hctx.net/suits/about.htm






Creation and Jurisdiction
The Justice Courts in Texas were created under the Texas Constitution and are governed by the provisions of Chapter 27 of the Texas Government Code. Prior to August 31, 2013, Justices of the peace also sat as judges of the small claims courts. Effective August 31, 2013, small claims cases are filed in the Justice Courts and governed by procedural rules adopted by the Supreme Court.
Justice Courts have jurisdiction of civil matters in which the amount in controversy is no more than $10,000, exclusive of interest and court costs, but including attorney fees, if any. Justice Courts also have jurisdiction of suits to foreclose mortgages and enforce liens on personal property in which the amount in controversy is otherwise within the Justice Court’s jurisdiction, and of suits relating to enforcement of a deed restriction of a residential subdivision that does not concern a structural change to a dwelling.
Justice Courts have jurisdiction of debt claim cases, claims for the recovery of a debt brought by an assignee of a claim, a financial institution, a debt collector or collection agency, or a person or entity primarily engaged in the business of lending money at interest.
http://www.jp.hctx.net/Images/white.space
The Justice Courts also have jurisdiction of cases of forcible entry and detainer, or evictions.
http://www.jp.hctx.net/Images/white.space
Justice Courts do not have jurisdiction of suits for divorce, suits to recover damages for slander or defamation, suits for title to land, or suits to enforce a lien on land. See Sec. 27.031, Texas Government Code.
http://www.jp.hctx.net/Images/white.space
Jurisdiction is the power of the court to entertain an action, consider the merits, and render a valid judgment.
 

Ohiogal

Queen Bee
I dont know Texas criminal law (and will defer to the person here who does) but I find it inconceivable that there is no right to appeal the verdict.
If he paid the fine and the sixty days is up? Well an appeal is far too late and moot. If he is within his sixty days, he can request a stay and attempt an appeal HOWEVER the issue then becomes was a motion to suppress filed? Was the search objected to at the lower court? If not, then it is confined to whether that constitutes plain error. Plain error is a high burden to meet.
 

CavemanLawyer

Senior Member
The officers very well may not have been authorized to enter the home, but there is no way to know without more information. Even if they were not justified, that illegal search usually only has ramifications in the criminal case. I surely don't see the officers committing a prosecutable crime and as for a civil suit, what are your monetary damages? If they had kicked the door in that's one thing but otherwise what harm did you suffer? You can't claim the cost and hassle of defending against the criminal case if you didn't even raise the unlawful entry issue in your son's case.

Any suppression issue was waived when it was not raised through a motion prior to trial starting in the justice/municipal court. There is no right to an attorney on a class C offense so your son should have either made it known that he wanted to hire one otherwise he gets stuck representing himself. If the trial was of record (there was a court reporter) then he can only appeal errors in the proceeding which means that he cannot raise the suppression issue now. If the trial court was not of record he can appeal and get an entirely new trial at the county court level and he could file a motion to suppress then. You only have 30 days to file your notice of appeal after he is sentenced. If that time has run then he is out of luck.
 

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