For information on criminal law and lawyers in San Antonio, you should read SanAntonioCriminalLawyer.org. This is a blog style legal site with information on DWIs, public intoxication, theft, Internet crimes, white collar crimes, and other felonies and misdemeanors. A better San Antonio criminal lawyer will have experience in the jurisdiction and crime charged with. Be sure to research your attorney and their reputation before making a choice on who will defend you against charges. It is also helpful if you learn more about the Texas Penal Code in regards to what you have been charged with.
Archive for December, 2008
San Antonio Criminal Lawyer Website
Friday, December 26th, 2008Exclusionary Rule Scope
Wednesday, December 17th, 2008This blog will discuss the standing to object to the admission of evidence. The concept of standing to object to the admission of evidence seized during an illegal search refers to a party’s legal right to object. Traditionally, to have standing to contest a search, a party must have had a reasonable expectation of privacy in the place searched. Some courts recognized that standing was required to challenge a search while other courts did not. In Alderman vs. United States, the Supreme Court reaffirmed that a 4th Amendment violation can only be brought up by the person whose rights were violated, not by those who were collaterally hurt by the introduction of such evidence. This decision was based, in part, on the public policy that the public has an interest in seeing criminals prosecuted on the basis of all the evidence which exposes the truth.
Knowledge in Criminal Law
Sunday, December 14th, 2008A person acts knowingly with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts with knowledge with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. In State vs. Beale, a subjective test for knowledge offered that it was not enough that a reasonable person would know, Beale himself must have known that the merchandise was stolen. The court said this was the test for criminal liability. This is not the rule in every jurisdiciton. The true test for knowledge was to ask did the defendant in this case know the goods were stolen? Direct proof was not required. It is enough if Defendant is made aware of circumstances which caused him to believe that the goods were stolen. The court was concerned with the defendant’s conduct and whether it evidenced showing awareness.
Constructive Trust
Thursday, December 11th, 2008Constructive trust is a court imposed trust to get around constitutional provision that you cannot lose your property rights because of crime, to prevent unjust enrichment; mechanism that recognizes your legal title but separates from beneficial title which is the next of kin from decedent. The action must be intentional and with malice; beneficiary in the wrong; conviction alone not enough. The burden of proof is on claimant who seeks to impose the trust; preponderance of evidence standard; cannot use criminal conviction to prove intent. Simultaneous death – if betty survived, then to her heirs, if not then alternative beneficiaries. Statute – whether there is direct evidence that the father died before betty Lou. Case was amended. The 120 hour rule says they are considered simultaneously dead if beneficiary doesn’t survive benefactor by 120 hours. To be an heir or beneficiary individual must outlive decedent. There is survival rule of 120 hours. If a person survives the decedent but dies prior to the expiration of the survival period, then the property passes had the person actually predeceased the decedent. If they don’t live 120 hours after decedent dies, then they predecease the decent. No simultaneous death.
Intestate Succession
Tuesday, December 9th, 2008Section 38 of the Texas probate Code lists two possibilities. A person may die intestate either as to the person, ie no valid will, or as to property, ie a valid will which fails to dispose of all of the person’s property. The property is then distributed by the state law of descent and distribution. Two persons are related to each other by consanguinity if one is a descendant of the other or they share a common ancestor. Two persons are related to each other by affinity if they are married to each other or if the spouse of one of the persons is related by consanguinity to the other. Divorce terminates relationships by affinity. First is an intestate death leaving no husband or wife, no surviving spouse. We are dealing only with seperate property. All the property goes to the children and their descendants. Descendants are the offspring of the offspring, so this is usually grandchildren.
Community Property in Texas
Tuesday, December 9th, 2008Section 45 of the Texas code discusses Community Property. Community Property is all property acquired during marriage that is earned. It will be owned equally in undivided interest of the spouses. The statute provides that if all the children of the diseased spouse are in common with the surviving spouse, then the surviving spouse inherits all of the community property of the diseased if they have no children or children in common. However, if the surviving spouse has children or descendants who are not in common, then one half of the community proeprty is divided among the children of both the common and prior relationship.
Insurance Contracts
Friday, December 5th, 2008There is first and third party insurance. Life insurance is 1st party. Health insurance too. In Texas, the application of the policy may or may not be the contract. Sometimes the application and policy equals a contract. Other times just the policy is enough. Section 705.103 says both must be present “life insurance policy must be accompanies by application”. Page 631 – “a life insurance policy must be accompanied by a copy of the applications along with questions and answer” – 205.103. Article 1101.003 states a life insurance policy must provide that the policy or it must provide that the policy and the application constitute the contract. Two questions involve binder and conditional receipt. What is a binder or a conditional receipt? Agent takes policy and gives her a binder. The elements of a contract are: offer and acceptance, meeting of the minds, mutuality, and, intent.
Another name for binder is conditional receipt. If it is a conditional receipt. A binder in Texas creates temporary insurance. Even though they haven’t investigated and there is no promise to insure Mary. This binder is called a legal fiction. If you give someone an application and that person completes the app and that person gives you the first premium, in Texas, we have temporary insurance. These fall under personal injury because the applicant of either fraud or bad faith or malice.
Securities
Wednesday, December 3rd, 2008When you buy 100 shares of stock in ford, it has a specific value that can go up and down. When you the testator bought 100 shares you paid 100k. When you die that stock will be worth some other value. The value is immaterial if you give the stock. But ford also pays cash dividends – payable out of profit of organization. They’re like interest so that any cash dividend paid during the life of the testator goes to the general estate. Does not go with the stock even if it’s paid after the death of the testator. But any cash dividend declared and paid goes to the devisee.
Stock dividends only gives you more shares to show your value. Ford might have decided to issue a stock divided 1:1. Every share you have gets another. Stock dividends do not increase in value. Stock splits. Corporate devise which increase the number of shares but do not decrease the value or could be reverse split. The general rule is dividends and splits do not change any value. Therefore any such devise before the death of the testator so that it will go to the devisee of the original amount of shares. Merger also does not change the value of your bequest. Merely a change in the book keeping does not change your bequest. Problem: whether or not devise of stock is specific or general. If specific, it takes with it the aforementioned wills. If general, a general devise of stock is considered stock. If general and there’s no stock in the case you get value. If specific, you get nothing.
Lost Wills
Wednesday, December 3rd, 2008Proponent of one of the wills is attempting to probate. There is a revocation involved. You must proved that your will was not revoked. You have the burden of proving which of the two wills was created last. There is going to be no will probated. Court talks about the presumption of no revocation. A presumption which will carry your burden if there is nothing to the contrary.
Lost wills Ashley case you have to prove up the instrument that revokes – this shifts the Burden of Proof. Dissenting opinion is attempting to say that that will is going to be allowed unless revocation is proven. It is difficult to frame a negative issue. Rule 76a deals with the possibility of a lost will. The key words we want there is lost and destroyed. We know there’s a will but we don’t know where it is. The cause of nonproduction must be proven and must be satisfied by due diligence. You first must show why you cannot produce the will. You must prove content by testimony by credible witness who has heard the will and read it. You must prove the content of what the will said.