Many people know of the marches from Selma to Montgomery by civil rights activists in 1965. In Selma, activists had been fighting for black Americans’ constitutional right to vote since 1963. The Selma to Montgomery marches were a series of three marches on the 54-mile highway from Selma, Alabama to the state capitol of Montgomery. The first march took place on March 7, 1965 and came to be known as ‘Bloody Sunday’ because when the protestors crossed the county line, state troopers and possemen attacked the unarmed marchers with clubs and tear gas, resulting in law enforcement beating one of the organizers, Amelia Boynton, completely unconscious. Two days later, on March 9, the second march went underway. While troopers stepped aside to let marchers pass, King led the group back to the church, wanting to achieve federal protection for the march. That night, a group of angry white citizens beat and killed civil rights activist James Reeb. He was a minister from Boston who had come to march with the group. Eventually, on March 21, President Johnson sent 1,900 members of the Alabama National Guard to protect the participants. By the time the march reached the Alabama state capitol on March 25, 25,000 people arrived in support of voting rights. 

This is a story of unbelievable resilience. Thousands of black citizens endured physical, emotional and social abuse just for fighting to be treated as humans. On this Martin Luther King Jr. Day, we should remember what those before us went through to make possible the world we live in today. Also, we should stay cognizant of the fact that while many don’t understand the severity of social inequality’s lasting affects in present time, we can all agree that Dr. King was correct when he said, “We must develop and maintain the capacity to forgive. He who is devoid of the power to forgive is devoid of the power to love. There is some good in the worst of us and some evil in the best of us. When we discover this, we are less prone to hate our enemies.” Regardless of your political beliefs, religious beliefs or ethnicity, we are one people and “unarmed truth and unconditional love will have the final word.

Everyone has heard, either from television shows, movies, or civics class, about “Miranda rights” or “Miranda warnings.” These are the rights and warnings which are typically invoked upon arrest from a law enforcement officer. 

But what are these rights? And how might they affect my case if I am being charged with a crime? 

Generally speaking, what we call Miranda warnings/rights are the admonitions given by a police officer to an accused, usually at or near the time of arrest, which advise the accused of the rights guaranteed to citizens under the Fifth Amendment to our United States Constitution. Substantially they recite as follows: 

· You have the right to remain silent. 

· Anything you say can and will be used against you in a court of law. 

· You have the right to an attorney. 

· If you cannot afford an attorney, one will be provided for you. 

· Do you understand the rights I have just read to you? 

· With these rights in mind, do you wish to speak to me?

Historically, these rights were the subject matter of a landmark United States Supreme Court case decided in 1966, called Miranda v. Arizona. As mentioned above, the rights are based upon an application of the Fifth Amendment to the United States Constitution. The Mirandacase stands for the proposition that statements made in response to the interrogation of an accused being held in police custody will be admissible at trial only if the prosecution can show that the defendant was first informed of his/her right to remain silent, and informed of his/her right to consult with an attorney before and during questioning. Furthermore, only if the accused is willing to voluntarily waive these rights can the statements be used against them at trial.  

Mirandarights are therefore all about questioning and being protected from self-incrimination under the Fifth Amendment.

So, if the individual indicates in any manner, at any time prior to or during questioning, that he or she wishes to remain silent, the interrogation must cease. Or if the individual states that he or she wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have the attorney present during any subsequent questioning.

In order to more fully understand these Miranda rights, we should unpack the individual legal concepts involved so you can apply them to your situation.

What is “Police Interrogation?”

Not every citizen/police conversation amounts to an interrogation. An accused is being “interrogated” when there is express questioning by the police, other than those normally attendant to arrest and custody, that the police should know are reasonably likely to elicit an incriminating response from the accused. Interrogation also exists when there are any words or actions on the part of police that the police should know are reasonably likely to elicit from the accused an incriminating response. 

By contrast, a common example of when interrogation is not present is when the accused begins to voluntarily chat with the police officer on his own, without being prompted by a question from the officer. These situations are common when the accused is excited, intoxicated, or simply caught up in the moment and not thinking clearly. Most police officers are cleaver enough in those situations to simply let the suspect talk on and on, waiting for them to say something incriminating. If this happens, the court will not consider those statements to be a product of police interrogation. 

When is a person “In Custody?”

A person is certainly “in custody” for Miranda purposes when the person has actually been placed under arrest by the arresting officer. Custody can also occur when a person is physically deprived of their freedom of action in any significant way, such as being placed in a police vehicle and taken to a stationhouse for questioning. Even if not physically restrained, however, a person can still be deemed in custody if a reasonable person in their situation is led to believe by the actions or words of the police that they are not free to leave. Needless to say, these latter situations are not always clear-cut and sometimes must be litigated in court. 

When has a person invoked his/her Right to Counsel?

If an accused tells the police that they want to be represented by an attorney before answering questions, the police are required to immediately cease all questioning until an attorney is present. If Miranda warnings are not given to a custodial suspect prior to questioning, or if a request for counsel by the suspect is ignored, any subsequent statements by the suspect cannot be introduced at trial against them. 

The request for counsel by an accused must, however, be clear and unambiguous. Merely mentioning the word “attorney” or “lawyer” is not an explicit invocation of the right to counsel during custodial interrogation.  Whether a statement referring to a lawyer is a clear request for counsel depends on the statement itself and the totality of the circumstances surrounding the statement. Again, these situations are often not clear-cut and sometimes must be litigated in court. 

Is the Miranda Law valid in Texas courts?

The simple answer to this question is Yes. But, like all things legal, the simple answer is not always the full and complete answer. 

Since the Miranda decision was rendered by the United States Supreme Court, the state courts in Texas and every other state must honor the ruling. This decision stands, therefore, as a minimum level of constitutional protection afforded to all citizens. The individual states are always free, however, to pass laws which provide its citizens with even more rights than the minimum rights afforded by the Miranda decision. Years ago the Texas legislature did exactly that. 

In addition to the Miranda decision, our legislature in Texas enacted what is now Article 38.22 of the Texas Code of Criminal Procedure. This law provides citizens with even more protection than what is represented in Miranda. In a nutshell, in Texas not only must the Miranda rights be given to the accused, but also any statement by the accused which is a product of custodial interrogation must be reduced to writing, or be recorded by an electronic device, in order for the statement to be used in court. The statute further requires that the Miranda rights be clearly stated on the written form, or verbally spoken on the recording, prior to the substance of the statement given by the accused. If this strict procedure is not followed, the statement will generally not be admissible in a court of law against the accused. 

“The police never read me my rights. So will my case get dismissed?”

Unfortunately criminal defense attorneys get this question frequently, and the answer is almost always No. The mere fact that the police did not read an accused their rights will probably not have any effect on the case unless the prosecution’s case is based substantially on a defendant’s confession made during custodial interrogation. In reality, only a small percentage of criminal cases involve confessions made by the accused to law enforcement, so the absence of Mirandawarnings would have little or no bearing on the outcome of the criminal trial. If the prosecution’s case is based on any other type of evidence (and it almost always is), then the prosecution can and will proceed to trial on that other evidence. 

How can I get more information about this topic?

If you are charged with a criminal offense you should contact a competent defense attorney skilled in the practice of criminal law immediately in order to begin work on your defense. The Bigham Law Firm has the attorneys with the experience, expertise, and resources to properly represent you in these difficult types of cases. 

If you would like more information about how to protect yourself in any criminal case, please call the Bigham Law Firm at (979) 743-4153for a free consultation. 

The CDC reported, in 2015 alone, 43.4 million adults suffered from some kind of behavioral health problem. Restricted access to mental health care is directly linked to bigger public health problems going on right now, including drug abuse and suicide. 

A recent study in American Journal of Preventative Medicine found that 65% of rural counties, like Fayette and the surrounding counties, do not have a psychiatrist and 47% of rural counties do not have a psychologist. This indicates that people suffering from mental health issues in rural areas do not have access to the help they need. 

The reason behind this lack of specialized care comes down to a lack of funding. Federal and State cuts in funding for health care hurt rural areas, especially because they are already experiencing a huge deficit in available health care compared to metropolitan areas. Roughly 80 hospitals in rural areas closed between 2010 and 2017, according to the Chartis Center for Rural Health. Due to setbacks like that, mental health care has been put on the backburner for rural areas, leaving people who suffer from these issues to either have to drive a long distance to get to a professional, or seek help as a last resort. 

Anybody who has been personally affected by what mental health issues can cause, whether by personal experience or by somebody close to them, knows that these issues are not something that can be fixed with a one-time intervention, or a last resort doctor’s trip. Mental Health is a journey, and we are all on it. 

As a part of our effort to spread awareness of mental health resources in the area, we would like to add Kim Wilgus to our list of caring, compassionate professionals that provide a service that people would have to drive to the nearest major city to receive if it were not for people like Ms. Wilgus. 

Kim Wilgus is a Licensed Professional Counselor (LPC) who lives in Shiner. She received her masters from University of Houston-Victoria and has over 18 years of experience working as a Childcare Development Specialist, Foster care and Adoption Case Manager, Treatment/Area Director, counselor for Texas Youth Commission and in private practice. 

Ms. Wilgus dedicates all of her time to providing counseling to people in the communities of this area. With clients ranging from 4 years old to 80 years old, she specializes in a wide variety of areas including: ADHD, anger management, anxiety, chronic illness, depression, eating disorder, family relationships, grief and loss, life transitions and stress management. 

She spends her time primarily in Yoakum, Gonzales and Schulenburg. She visits Yoakum Community Hospital every Friday and Gonzales Memorial Hospital twice a month. She is also the Lavaca County Counselor for Norma’s House, an organization that was founded on the idea of helping children who have been victims of physical and sexual abuse. Every Tuesday, she offers her services to foster children at Bluebonnet Youth Ranch in Yoakum, acting as their Clinical Director. Bluebonnet Youth Ranch houses foster children in the area.

Appointments are available at Yoakum Community Hospital Outpatient Clinic, Gonzales Memorial Hospital Outpatient Clinic, and the Schulenburg Turtle Wing office. For appointments, Ms. Wilgus can be reached at (361) 935-6240 or kimwilgus@yahoo.com. On behalf of our community, Bigham Law Firm thanks Ms. Wilgus for choosing to dedicate her expertise to our area. 

In one of our posts on mental health, we covered the lack of resources available to those struggling with mental health issues in rural areas. Thanks to those who commented on and read that post, we have been informed that, while these resources are still very limited, there are local options available. 

Tejas Health Clinic, located in La Grange, is staffed with a Licensed Professional Counselor and a psychologist. Also, Katie Gross, Stacey Helm and Tracy Mach are all Licensed Professional Counselors and have private practices in La Grange and Bastrop. 

Shelby Sonntag, owner of With Purpose Life Coaching, is also doing great things for people locally. She is located in Halletsville and specializes in Family Counseling, Anger Resolution and is also a Licensed Chemical Dependency Counselor. 

Vickie Maertz also has her own organization that works specifically with the youth of our communities. Physical and Academic Learning Services (PALS) does great work in the area, specializing in child development, promoting physical health and they are also hosting programs throughout the Summer, including a Kids Health Fair right here in Schulenburg! 

While mental health is still an issue that does not receive enough attention in rural areas, organizations and people like the ones mentioned above are greatly appreciated. They are the innovators of a culture that is needed, but not yet present. Please join us in the continued support and appreciation of their efforts! 

Intoxication Manslaughter is a crime specially enacted by the Texas legislature to address incidents where a person has an accident while driving while intoxicated (DWI), and by reason of that intoxication causes the death of another individual. The person killed can be a passenger in the driver’s vehicle, the occupant of another car, or a pedestrian walking along the roadway. This crime is a second degree felony which is subject to a penalty range of not less than two, nor more than 20 years’ incarceration in the state penitentiary, and a fine not to exceed $10,000.  

What is Driving While Intoxicated?

In order to be proven guilty of Intoxication Manslaughter, the State must first show that the defendant was guilty of DWI. If the State cannot prove the defendant was guilty of DWI, it cannot prove Intoxication Manslaughter even if there was a serious accident where fatalities occurred. 

A finding of DWI is complete if the State can show that a person was intoxicated while operating a motor vehicle in a public place. In this context, “intoxication” does not necessarily mean “drunk” in the normal sense of the word. Intoxication, as defined by the Texas Penal Code, means:

(a) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or 

(b) having an alcohol concentration of 0.08 or more.

This legal definition of intoxication is a fairly low standard. Therefore, a person charged with DWI might feel as though they are perfectly “sober” by their subjective perception of the term, yet be quite intoxicated according to the legal definition.  

The State must also prove the element of Causation!

The State’s burden to establish the crime of Intoxication Manslaughter is not over simply by showing that the driver was guilty of DWI at the time of the fatal crash. The State must also prove that the defendant’s intoxication was a necessary causal factor in the resulting death of the person(s) killed in the accident. In other words, the State must show that but for the intoxication of the defendant at the time of the vehicular accident, the death of the other individual would have not occurred.  

This essential element of the State’s burden of proof can be a critical target of attack during trial by the defense if the defendant is represented by a skilled attorney –  

Example: A person while operating a motor vehicle strikes and kills another person riding a bicycle on a secluded farm-to-market road or highway. The State charges the driver of the vehicle with Intoxication Manslaughter since a blood test showed the driver had an alcohol concentration of 0.08 or more. The evidence at trial, however, also showed that the accident occurred at dusk on a narrow county road with no shoulder and the deceased bicyclist did not have the required lighting, reflectors, and other safety equipment on the bicycle. All of these factors would have made it difficult for any driver to see the bicyclist in the darkness, and thereby deflected the required element of causality away from the intoxicated driver. A jury in this case might decide that even though the driver was indeed intoxicated at the time of the fatal crash, the level of the driver’s intoxication was nevertheless not the controlling factor which actually caused the incident. If so, the driver might then be found “not guilty” of Intoxication Manslaughter.

How can I get more information about this topic?

If you are charged with Intoxication Manslaughter, Intoxicated Assault, DWI, or related crime you should contact a competent defense attorney skilled in the practice of criminal law immediately in order to start work on your defense. The Bigham Law Firm has the attorneys with the experience, expertise, and resources to properly represent you in these difficult types of cases. 

If you would like more information about how to protect yourself in any criminal case, please call the Bigham Law Firm at (979) 743-4153 for a free consultation.