A Scenario of a Common Juvenile Offense: Drug Possession
San Antonio Juvenile Lawyer
Interviewer: Let’s say I have a son who is 14 years old and he not only is caught smoking marijuana but is also distributing marijuana. How are you going to handle a case like that?
Gary Churak: It’s going to depend on the situation involved. Was he selling it on campus? Where was he distributing? How big a dealer is he? Was he just giving a joint to a friend? A lot is going to defend on the actual facts to the case.
If he is not selling out of his backpack at school, it’s not really what is known as ‘intent to distribute case. ‘ If I feel that the case is one of these cases that can’t be won for whatever reason, then we’re going to sit down with the DA and we’re going to talk about doing a plea bargain agreement, just try to get this case resolved and worked out.
It would be depending on the amount of marijuana, either a Class A or a felony. We want them to be a felony. So what we try to do is negotiate it down maybe to a misdemeanor and have him put on probation or deferred prosecution. Let him do the probation. Let him stay out of trouble and hopefully he’ll do everything he can that he’ll successfully complete the probation and we’ll be able to go back in and seal it. Also hopefully, he won’t get in trouble again and he will learn his lesson.
A Juvenile Drug Charge Can Be Resolved in 3 to 4 Months
Interviewer: How long will a case like that take to resolve?
Gary Churak: It could last a month. It could last three to four months. It could last longer depending on the docket of the course and the type of the case.
Shoplifting and Juvenile Offenders
Interviewer: What if I have a daughter who’s 16 years old and she was at the mall and she goes with a friend and is caught stealing something at a store?
Shoplifting Is an Offense That Is Considered a Crime of Moral Turpitude; a Conviction Can Impact Future Employment Options
Gary Churak: People think it’s only shoplifting and it is trivial, but actually shoplifting is a very serious offense. This is because it’s a theft offense which is crime of moral turpitude in Texas. If you have a shoplifting conviction on your record, you’re not going to get a job.
First of all, it would depend on the amount. If it was under $50, we’d be dealing with municipal court and in that situation I would cut a deal for the deferred adjudication probation. This is where the child would get six months of probation, have to take a shoplifting course, do community service, and the case would be dismissed. Then once the case is dismissed, we can come in and do an expungement of that case.
If it’s above $50, then we’re getting in to the aspects of a Class B misdemeanor. That is a more serious of offense. If it’s a juvenile case, we try to do a deferred disposition of the case. This is almost like a free trial diversion where the juvenile does the probation. If they successfully complete all the probation, then the case would be dismissed and we could come back in with an order sealing the case up in the juvenile court.
Shoplifters 17 and Older Are Prosecuted as Adults
If the child is over the age of 17, then they’re treated as an adult. They could still be in high school at that point in time. What I would try to do in that situation is get them what’s called a pretrial diversion which would be a type of probation. Once that is completed successfully it would allow me to expunge the case.
The worst-case scenario if they don’t qualify for a pretrial diversion would be the deferred adjudication probation. This is where they would not have a conviction on the record and they could be able to seal the case with a non-disclosure at a later date in time. It is not as advantageous as a pretrial diversion but it is similar.
Graffiti Charges are Misdemeanors
Interviewer: How is a case involving graffiti charges handled?
Gary Churak: It’s considered a minor misdemeanor. It’s just the question of what we want to do preferably. If they’re under 17, we’ll try to do deferred dispositions. If they’re over 17, we try to get a pretrial diversion if that’s applicable. The worst-case scenario is again, deferred adjudication.
How Can Juvenile Charges Escalate?
I have a son who is in a fight and there was some damage done but it wasn’t in that severe.San Antonio Juvenile Charges Lawyer
Interviewer: How do the courts view fighting and inflicting injuries on a peer?
Gary Churak: In my area at New Braunfels Canyon High School, a 15 year old was killed by another student in a fight.
The Schools Have a Zero Tolerance for Fighting and Students Will Face Criminal Charges
He fell and his hit on the wall and died. Basically, that’s murder. You’re charged with a murder. It’s a serious situation if you get into a fight with another student. The schools really enforce a zero tolerance policy. Any kind of contact in school between students, they’re marched off and they’re in the criminal justice system.
They can be charged with assault, a Class-A misdemeanor and it could be serious offense for them. It’s not only the criminal aspect of it. They also are transferred to an alternative school for six months and it’s on their permanent record.
If in fact some kid has an expertise in martial arts or self-defense, they could actually charge him with aggravated assault with a deadly weapon. The prosecution would allege his hands are deadly weapons or his feet are deadly weapons and I’ve seen it.
I’ve had had cases where we’re talking about a boyfriend and girlfriend fight and they charged the guy with a deadly weapon count because he hit the girl with his hand. They’re going to stretch it as far as they can.
An Assault Charge Can Escalate into a Murder Charge
Interviewer: That Comal case, where you following that one?
Gary Churak: No. I’m familiar with it because we live out there in the school district and it made some headlines what happened.
Apparently what we understand what happened is one kid was bullying another kid and they’re making some comments about his mother and his mother was sick. He turned around and punched the kid and he hit him just perfectly where the kid fell back and hit his head and died.
Interviewer: What is your opinion about the case?
Gary Churak: The juvenile is in serious trouble. He committed assault that killed somebody. Did he have a justification for hitting the kid? There’s no justification in Texas for self-defense over words. There are no self-defense issues. He is facing some serious problems. There may be some mitigating factors that caused him to do what he did but it’s not going to be any kind of viable defense.
A Fight between Two Teenagers May Result in Both of Them Facing Assault Charges
Interviewer: Going back to that same situation, I have a son who is in a fight and there was some damage done but it wasn’t in that severe. It was just a typical fight and they are both minors, say 15 and in high school. How is that case going to pan out?
Gary Churak: That would be an interesting situation in the criminal aspect because since it’s a fight, both of them would have to be witnesses against each other to prosecute each other. There’s a question as for the assault aspect to prove bodily injury.
If they don’t charge both kids, then there’s going to be an issue as to who started it and the extent of the other person’s involvement. If they charge both kids, the situation is to get the lawyers together and have both kids not appear in court to testify. Then the prosecution will not have a case. It could get dropped.
You’d have to look at all the facts and see exactly what was all involved and how serious it was.
Also, you need to take into account the school’s position on zero tolerance. If you threw a punch back, one child is just as guilty and the instigator in terms of the way the school looks at it.
Juveniles That Bring Weapons onto School Property Can Face Felony Charges
Also a hot topic is bringing weapons onto a campus. A juvenile with a weapon on school premises will be charged with a felony.
Possessing a Weapon Outside of School Is an Unlawful Carrying Charge
Interviewer: What if it wasn’t on school premises?
Gary Churak: The charge will be an unlawful carrying. It would be a misdemeanor. Why is he carrying a gun around? Is he related to a gang? If you’re going to look at the whole situation, what was he intending to doing with that gun?
Is somebody bullying him and he is intending to shoot that kid? There’s got to be a reason why that kid is carrying around a weapon.
Interviewer: Is there any sort of plea bargain you look for in that type of case?
Gary Churak: It’s whatever the DA wants to offer a plea bargain or what you can bid for.
It would also depend on what they define as a weapon. It would depend on what the weapon is and where it was on his person. If the kids are walking around with a handgun, there’s an issue. Why is he doing that?
Juveniles and Sex Crimes
San Antonio Juvenile Sex Crimes Attorney
Interviewer: You mentioned like there are juveniles involved in sex crimes. What sort of sex crimes are you seeing?
Gary Churak: Mom and dad were going through a divorce. They had children from a previous marriage living under the same roof and one of the little girls accuses my client of improperly touching her. That’s indecency with a child by contact.
I think they’ve even charged him to aggravated sexual assault so there was penetration. He was about 16 so they charged him as a juvenile. But they went for a determinative sentence on him so we actually tried the case before a jury. Happily, we obtained a not true verdict, which means a not guilty verdict for him.
Texas Has a Three-Year Window Defining the Age Difference between 2 Teenage Parties Engaging in Sexual Relations
Texas has a three year window for sexual relations between teenagers. If you’re 15 and your boyfriend is 17, there’s an affirmative defense in Texas if you’re within three years. If you’re 16 and your boyfriend is 20, your boyfriend could be facing prison.
A Teenage under Age 14 Cannot Legally Consent to Sexual Relations in Texas
One of the main things in Texas is that people don’t realize is that if the child is under the age of 14, they are deemed in the Texas law not to be able to consent to any kind of sexual relationship.
I don’t know if you’re familiar with that ABBO site. They have people out there asking questions to lawyers and that question comes up quite frequently. “My daughter had sex with his boy and she’s this age and she’s that age, can I file charges against him?” You frequently see questions like that.
Social Media and Juvenile Sex Crimes
Interviewer: Have you seen any situations where the Internet or social media have come into play?
Gary Churak: I have a case right now where the girl was 16 years old and she’s ‘sexting’ an older guy. Unfortunately for him it’s sexual performance of a child or possession of child pornography and it’s happening quite frequently. Kids have almost unlimited access to the Internet, especially in the junior high school level. These girls and boys are ‘sexting’ quite regularly.
Interviewer: Will they make it illegal for students to have cell phones at schools?
Gary Churak: Some school districts already prohibit phones on campus. Some don’t. Everybody has got an iPhone or droid nowadays it seems like.
Also, you can’t have tobacco on campus. That’s actually a criminal offense. They can actually charge a child. Another big thing is snuff or dip as they call it. A lot of the kids are doing dip and they put it in coffee cups and try to hide it. If they get caught with dip, it’s a tobacco product. The new craze now is the E-cigarette and the E-cigarettes with the different water vapor flavors on them.
It’s not a tobacco product technically because it’s not tobacco. It’s flavored water vapor.
Gang-Related Offenses and Armed Robberies Are Offenses Where Juveniles Will Likely Face Adult Charges
Interviewer: What can you tell us about juvenile murder cases?
Gary Churak: I haven’t handled a juvenile murder case, but it does happen. You see it all the time where a 15 year old shoots another person in a gang shooting or in a robbery.
Interviewer: Where are they committing these robberies? Do they target pawnshops or gas stations?
Gary Churak: I’ve seen gas stations. I’ve seen cell phone stores. Anywhere where there’s money like a convenience stores and fast food restaurants.
Interviewer: What will the DA do with a case like that?
Gary Churak: They’re either going to certify him and try him as an adult and try to send him away for aggravated robbery. That is a 1st degree felony which can carry a sentence between 5 to life. Or they’ll do a determinative sentence on him.
They’re going to try to put that juvenile away for a long time. It depends on the situation involved, but any kid that will walk to the store with a gun to try to rob it is probably not an ideal candidate for probation.
A Texas Juvenile Can Be Tried as an Adult Depending on the Nature of the Offense
San Antonio Juvenile Lawyers
Interviewer: Our topic today is going to be Juvenile Law. Can you provide an overview about this area of the law?
Texas Juvenile Law Is under the Family Law Code
Gary Churak: Juvenile Law in Texas is under the family code. It’s actually under a civil code which governs the family law code, which also handles divorce and child custody and issues to that extent.
That’s where the Juvenile Code comes from. In Texas, it’s initiated by filing a petition just like a divorce petition or a civil petition alleging delinquent conduct. Then it could be anything from a minor misdemeanor to having a fight in school, to actually a major felony like sexual assault or aggravated assault.
In Texas, a Juvenile Can Be Tried as an Adult Depending on the Nature of the Offense
In Texas, they can treat juveniles just like adults in certain situations. If the crime is serious enough, they will seek to certify the individuals as adults. This means, they will treat him for the purposes of prosecution just like he is an adult.
In Texas law, you’re an adult when you’re 17 years old. If you’re 17 years old and you’re a senior in high school, a junior in high school and you commit a crime, you’re going to be charged and prosecuted just like you’re an adult.
If you’re 16 or 15, you’re in the juvenile system. Based on the severity of the crime, they can have a hearing to certify you as an adult and try you as an adult. This means you’re now out of the juvenile system and you were looking at basically being sentenced or punished through as if you were an adult.
Also, they can do a determinative sentence. If they take the juvenile case and present it to the grand jury and get the grand jury to approve it, they can do what’s called a determinative sentence. That means that even though you’re being treated as a juvenile and tried in the juvenile court and if you’re convicted, they can send you to TYC, the Texas Youth Commission for a period of time to your 18th birthday.
But then once you turn 18, they will send you to prison to serve out the rest of your sentence.
Most juvenile cases are, for the lack of a better term, minor cases. They deal with shoplifting, assault, getting into fights with school, things to that extent. It’s almost ridiculous what they spend in court time with juveniles. Most of these offenses are just trivial. When students are involved in a fight at school, that issue should be handled in the school.
It Is Important to Remember That Juvenile Records Are Accessible
Instead of letting the parents punish them, they burden the criminal justice system. And it could cause problems with them later on in life.
People think that it’s a juvenile record is sealed and no one is ever going to find out about it. That is not correct. Unfortunately, juvenile records are accessible to people and people find out about juvenile cases. There is ways to seal them. We can talk about that down the road a little bit in this interview. Juvenile offenses are serious and people need to take them as such.
Juveniles Can Receive Probation in the Juvenile Court System
San Antonio Juvenile Probation Attorney
Interviewer: How does the probation system work with juvenile offenders?
Gary Churak: They have a juvenile probation department that monitors offenders in the same manner that adults are monitored.
Interviewer: Are they more likely to be given second chances, as far as deferred adjudication, for example?
Gary Churak: Yes. Some juvenile cases, especially misdemeanors will receive a pretrial diversion for minor offenses. Juvenile court is more lenient than adult court because the idea is rehabilitation more than punishment.
Frequently, Probationers Are Required to Maintain Employment while on Probation
Interviewer: Is employment ever a condition of probation?
Gary Churak: Yes, usually they make a requirement of your probation that you’re employed or that you maintain a job. Oftentimes on probation, if you do not have a high school education, they make you go get a GED as a condition of your probation.
Since Most Employers Conduct Criminal Background Checks on Applicants, Many Probationers Have Difficulty Getting a Job
Interviewer: What if you’re unemployed and it’s really difficult for you to find a job?
Gary Churak: They refer you to the Texas Work Force Commission; they will look and try to find you a job. I think the judges are beginning to see that individuals on probation will have a hard time getting a job.
Fast Food Restaurants Commonly Run Background Checks on Prospective Employees
I make that point to the court as well. I say, “Judge, did you ever try to get a job with a criminal record. It is not going to happen!”Even MacDonald’s doesn’t hire you; they do a criminal background search.
Interviewer: If I were to look for a job and that was on probation, would I be obligated to tell that employer that I was on probation?
Gary Churak: That depends on what question they ask on the applications. Most places are going to do criminal background checks, so they’re going to see it anyway.
Interviewer: Will the criminal background check indicate what the probation is for?
Gary Churak: Yes, it’ll show the whole offense, including the arrest, the offense, and the disposition.
Probation Violation Case History
Interviewer: Can you share a case history with us concerning probation or probation violations?
Gary Churak: I represented an individual who had a serious drinking problem. And he had a number of DWI, felony DWIs; he had basically fallen apart.
He was an ex-military member and was put on probation out of Kerr County. He had an infraction in Medina, but it wasn’t subject to probation. And he just took off and went to Thailand.
He was ex-Green Beret and he had worked with the Thai military. He wound up going to Thailand as an interpreter, teaching English to the Thai Special Forces. Eventually got a job working at an English school in Thailand and later married.
An Arrest Warrant Will Prevent an Individual from Renewing a Visa
So he’s in Thailand on this visa that’s expiring. He needs to apply for a renewed visa but there is an arrest warrant out of Kerrville for a violation of probation. He hires me and surrenders himself at the airport, and is taken to Kerrville. I’m representing him, I file the paperwork and we have our hearing and talk to the judge.
Reducing a Two-Year Prison Term to a 60-Day Jail Sentence with Deferred Adjudication
In the hearing, the judge hears how he has turned his life around but still sentences him to two years in prison. He has his family in Thailand and his job–he’s teaching at a Christian school. The judge’s secretary and court coordinator start giving him a hard time about sending this individual to prison. This is because of his hard work to get his life back on track.
The judge calls me back and we start talking. The judge asks me, “Well, how long do you think he’s going to actually spend incarcerated if I send him to prison?” I said, “The way it is working now, Judge, he could be out in a few months on a two-year sentence.”
And the judge says, “Here’s what we’re going to do. We’re going to keep him in jail for two months in Kerrville, we’re going to reset it for a hearing after two months, and then we’ll go from there. And we’ll basically dismiss the motion to revoke.”
I had some other issues too about whether they’d used due diligence to try to find him and things to that extent. But anyway, the end result was that he spent two months in the Kerr County jail. We went back to court, and the judge dismissed the motion to revoke, cleared all the charges against him, and he went back to Thailand and his family with his new visa.
Interviewer: In that case, what was the biggest challenge for you?
Gary Churak: It was difficult figuring out how to get him back to Thailand. This is because the bottom line on a case like that is they could have sent him to prison for 10 years. And he would have spent 10 years in prison without his family in Thailand.
Interviewer: How long had he lived in Thailand?
Gary Churak: Ah, he was there quite awhile. But it was considered an old case and was about 10 years old. And it was an old arrest warrant on him.
He voluntarily came back and surrendered himself and we brought that to the attention of the judge, that he actually came back from Thailand and he surrendered himself to clear this up. Yeah.
When he hired me, I told him he would be arrested at the airport by Homeland Security. He would be transported to Kerrville, and once he got to Kerrville, he was to call me and I went and met with him at the jail in Kerrville. Then got in touch with the court coordinator and got a setting for us to have the case on the docket, and we went from there.
Interviewer: What might the typical probation be for a marijuana drug case?
Gary Churak: For a small amount of marijuana, which is misdemeanor marijuana possession, usually the judge orders six months deferred adjudication or pretrial diversion. And if you take a couple of drug tests, and you stay out of trouble—your case is over with.
Parents of Juvenile Offenders: Common Questions and Misconceptions
San Antonio Juvenile Offender Attorney
Interviewer: What are some of the main concerns or questions that parents have? At the same time, what are some of their misconceptions too?
Gary Churak: Unfortunately, some parents think the juvenile will get slapped on the wrist and they’re not going to be punished severely. It’s not going to affect them, it’s only a juvenile case and it will go away. They don’t look at the total ramifications of what could be involved with the case.
What Are Misconceptions of the Juvenile Involved in a Criminal Case?
Interviewer: What about the juvenile themselves? What are some of their misconceptions?
Gary Churak: They think, I’m a kid, and they’re not going to do anything to me. I’m getting a slap on the hand. I don’t need to worry about it. You see a lot of that with drug cases, especially with marijuana. I think they just do not basically look at the seriousness of the offense. They downplay the offense.
Interviewer: When a parent comes down with you, what are some of the things that they want to know?
Gary Churak: They want to know their child is looking at. How serious is the offense. What is the juvenile system going to do to him? Is he going to go to any kind of lock up situation? It depends primarily on the nature of the offense. The more serious the offense, the more questions I think people have.
How Do Parents React to Their Child’s Drug Charges?
Interviewer: Does that apply to the drug charge because that seems to be pretty common?
Gary Churak: A lot of times, the parents are in denial. The parents don’t realize their childhas a drug issue. Or they overlook the seriousness of the drug issue. That’s one of the things I talk to the parents about and try to make clear to them that this could be a serious issue down the road.
I have a questionnaire where I ask the juveniles about their marijuana usage. How often do you smoke pot? Do you need to do a hit in the morning before you go to school? Have a hit at lunch, hit in the evening, hit before you go to bed? You’re doing it every day?” They start answering questions and I say, “Okay, now you have a problem with drugs. Go get yourself help.”
I have seen students smoke in a school bus and not think they’re going to get caught. A school bus mind you. Because they think it’s only marijuana. That’s their mindset, “It’s only pot.”
What Should a Juvenile Avoid If He or She Is Facing Criminal Charges?
San Antonio Juvenile Criminal Attorney
Interviewer: During the process, what are some common mistakes that juveniles should avoid?
Gary Churak: They need to avoid being arrogant and not realizing the seriousness of the offense. Or if they are on probation, they need to avoid violating their probation. They need to take it seriously. If they don’t take it seriously, there could be major problems.
Interviewer: Do you see that happening more commonly with juveniles because of a lack of maturity or peer pressure?
Gary Churak: A lot of it is lack of maturity.
How Can Juveniles Help Their Case?
Interviewer: What is something that you’d recommend to a juvenile or to a parent that could help their case?
For Drug-Related Charges, a Drug Treatment Program Is Beneficial to Help the Juvenile Avoid Re-Offending
Gary Churak: It depends on the case and depends on the individual. If we think there is an issue with drug addiction, we try to get them into a rehabilitation facility. I’ve had kids go in to outpatients and I’ve had kids go into inpatient, drug rehabilitation. That’s the first thing on the drug case because we don’t want to be in a position to be re-offending because they continue to use drugs.
Juvenile Law Permits an Eventual Sealing of the Criminal Record
Interviewer: Can you explain about what is entailed with an expungement?
Gary Churak: Under the juvenile system, there is a procedure for certain offenses to seal your record. In other words, even though you think it’s a juvenile case, your record is not automatically sealed after a certain period of time. You have to be proactive to go take care of that situation.
You Must File a Motion for the Judge to Seal the Record
You have to file a motion with the court to seal the juvenile record of the juvenile. In order to do so, you go in front of the judge and if you comply with all the statutory requirements, then the judge will sign an order sealing and destroying your record. Basically, that gets it off the computer systems because everything is digital right now and records are on a computer.
If the records are destroyed when they do a background check, it won’t show up. This is helpful if you try to get into the military. If you have a juvenile record, you’re not going to get in the military right now.
There are some cases that you cannot seal due to the nature of the offense but most of them you can. It would depend what type of disposition you have on the case. If you have an informal disposition, it’s easier to seal than if you have a disposition where you found to engage in delinquent conduct. You’d have to wait a longer time depending on the offense to get that done.
It’s important that you follow up with that because you don’t want, 10 years later, to then realize you have a juvenile record that was never taken care of. So that’s one of the things my office does is proceed with the motions to seal juvenile records.