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Mark W. Bennett

Mark Bennett’s Answers

53 total


  • Earlier post I had written my Class B theft being reduced to Class C and received Deferred Adjudication NON REPORT 90 day Proba

    I ran out of space before I completed my statement on my previous post. I made a plea deal with the DA to plea guilty in exchange for the Deferred Adjudication and paid a fine and court costs. Sucessfully completed the DA and have FILED FOR AND RE...

    Mark’s Answer

    See my answer to your previous question. A class-C deferred is not legally a "deferred adjudication" (though we sometimes call it that as shorthand for "Suspension of Sentence and Deferral of Final Disposition"). So nondisclosure is not available for a class C deferred.

    See question 
  • I am a 19 yr old who sent nude pics to a 17 yr old and he is threatening to show the police unless i send him more. what do i do

    i didnt know he was a minor at the time. annd i do not intend to sendhim more pics or talk to him nymore.

    Mark’s Answer

    For purposes of Texas's online solicitation of a minor statute (the statute that comes closest to applying), a minor is someone under 17 (or who represents himself to be under 17). In fact, a 17-year-old is old enough to legally consent to sex in Texas. So if he is really 17 you should have no problem.

    (Friendly non-legal advice: don't send anyone a picture that you wouldn't want plastered across the Internet for the rest of your life.)

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  • I Would like to no if i can purchase a gun,if i received a misdemeanor deferr judication case.

    was first chaged with assault then dropped to a misdeameaor deady conduct but it was suppose to be a deferred adjudication case but it still comming up on my background this case was in 08 and that was my first time in trouble figthing with a fami...

    Mark’s Answer

    Federal law bars anyone who has been convicted of a misdemeanor crime involving family violence from possessing a firearm.

    In your case, there are two questions:
    1) Did the deadly conduct "involve domestic violence," that is, did it have "as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon" by a family member? A good lawyer might find an answer to this in the papers of the case.
    2) Is a Texas deferred-adjudication probation for a case involving domestic violence a "conviction" for purposes of the Texas firearms statute? This is a legal question; the answer is by no means clear. There is an argument either way.

    If you haven't been in other trouble, you are probably eligible for nondisclosure. It won't remove the case from your record—government agencies will still know about it—but it won't turn up in most background checks. Some people file petitions for nondisclosure without lawyers, but you would be better off hiring a lawyer to do it for you.

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  • Yesterday, my sister left a grocery store with an unpaid item (liquid soap) around $20. everything else in her cart was paid for

    they stopped her after she left the store but she walked away. she is 8 months pregnant and felt sick. i was also there, did not walk away, and waited for the police and gave them her name and address. they want her go to the police department an...

    Mark’s Answer

    Nothing is definite, but if she doesn't sign the ticket they might get a warrant for her. They probably won't go looking for her, but warrants tend to pop up at the least convenient moments—she's driving somewhere important, gets pulled over for speeding, and winds up in jail.

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  • I live in Collin County Tx. I had a Class B theft that was Reduced to a Class C theft and given Deferr Adjud w/90 probation

    I completed the 90days sucessfully, I then had to file a motion to dismiss, which I was told would dismiss the case. This may be symantics, but what I got was a Order to Dismiss the Information. Are these same. Why Im confused is, on the county s...

    Mark’s Answer

    I think you're on the right track. I wouldn't worry much about what the computer says; an "Order to Dismiss the Information" is a dismissal.

    Expunction is your remedy. We call it "deferred adjudication," but a class C "suspension of sentence and deferral of final disposition" under Texas Code of Criminal Procedure Article 45.051 is not a true deferred adjudication. So nondisclosure is not an option.

    The Texas Legislature rewrote the expunction statute recently. I practice in a jurisdiction in which the DA's Office takes the position that a dismissed misdemeanor can be expunged immediately. I would wager (talk to a Collin County lawyer such as Tony Vitz) that the Collin County DA's Office won't agree to an expunction in your situation unless the statute of limitations has expired—two years after the arrest date.

    Good luck to you.

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  • How/where do I go to get a "case dismissed" ruling for a 1968 charge of violating the Selective Service Act in Los Angeles

    I recently learned that the FBI Criminal Justice Information Service shows an active charge from 1968 for Violating the Selective Service Act in LA in my file. The charge was dismissed in 1968, but I have no idea how to get it off my record. I c...

    Mark’s Answer

    This is probably better addressed to a California lawyer because it may require specialized local-area knowledge. But since the California lawyers are strangely silent I'll try to help.

    If this was a federal case (this is before my time—I can imagine there having been state laws against violating the Selective Service Act in 1968), I suggest that as a first step you contact the district clerk in the federal district where the charge was filed (the Central District of California, (213) 894-1565) and find out what records still exist. Get copies of those; then you'll have something to show a lawyer.

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  • What could be the outcome?

    I got arrested for first the VERY first EVER on July 29, 2012 in Texas. I now live in Maryland, about to go to college and I have a good job.. I was arrested for Possession of Marijuana less than 2oz. I got a class B misdemeanor. I'm basically w...

    Mark’s Answer

    You say "when I go to court"; do you plan to go to court without a lawyer? If you do, then a conviction that will remain on your record forever is the most likely outcome.

    Get a lawyer. I recommend Murray Newman, who's a Houston lawyer with a College Station office. http://newmanflood.com.

    As to your numbered questions:
    1. Despite what you've seen on TV, the police have never been required to read you your Miranda warnings. The only time the warnings come into play is when the cops interrogate you while in custody, and in Texas the warnings have to be recorded or written so cops don't bother giving them on the average arrest.
    2. I'm not sure what the question is. There are lots of possibilities here—did the cops no here? did they not believe? did you piss them off? If the police noted this admission in the offense report, your lawyer might be able to make something of this fact. But the law of possession in Texas is such that two people can possess the same weed.
    3. Okay. Maybe the guy's dad is a cop?

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  • MFND/expungement & the supposed $1000 penalty

    If a 3rd party data miner refuses to update their records to reflect the MFND, then how does one pursue having the business fined? Per their Owner "expungment does not mean the record did not exist. your state has no case law that requires priv...

    Mark’s Answer

    • Selected as best answer

    I presume, since you used the phrase a couple of times, that you're talking about a nondisclosure order rather than an expunction.

    Few questions:

    When was the nondisclosure ordered?

    What is the company?

    Did your order include the language in the sample nondisclosure order to which I link below? (I know it's the Harris County DA's Office, but this order is good; I wrote it.) If so, the company may be in contempt of court for violating the order.

    The penalties for publishing order subject to an order of nondisclosure (or an expunction) are in Section 552.1425 of the Texas Government Code: first a warning, then $1,000 per violation. The AG or prosecutor can sue to collect the penalty. A private lawyer might be able to convince the judge to issue the warning.

    Section 411.0835 directs the DPS not to release criminal history information to an entity that has been found to have released expunged or nondisclosed case information three times. If I were the lawyer on the case, I would look into finding three people whose records were being released after having been sealed by the same court, and shutting the company down for a year. In fact, if you'd like to email me with the company's name, I might do that just for kicks.

    If you don't want to go to those lengths, and you just want to get your information removed, telling the company about section 552.1425 and 411.0835 might solve your problem.

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  • Im 20 about to be 21 and i got my 17 year old pregant can i get into trouble in texas?

    please help

    Mark’s Answer

    Assuming that the State can't find any evidence that you had sex with your girlfriend before she turned 17 (the age of consent in Texas), you can't get in trouble, as Cindy says, for THAT.

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  • Deferred Adjudication or Not

    I am a resident physician in Houston, TX. A charge of indecent exposure has been brought against me by a complaining witness- no other witnesses or evidence involved. I had a warrant for my arrest, for which I went it for booking and was released ...

    Mark’s Answer

    Doc,

    I have answered your question here:

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