ALL THEY'VE GOT IS TESTIMONY. IS THAT ENOUGH TO CONVICT?

When a case is “he said, she said,” is testimony alone enough to secure a conviction?

Overwhelmingly, this question comes up in two contexts: 

• In relation to sex crimes (often against children/minors); and, less commonly,

• In relation to domestic/family violence

What do these criminal contexts have in common? They typically occur in private settings, at times and places that lack video cameras or witnesses other than the alleged victim. The fact that there is usually little “hard” evidence in these types of cases means that they are difficult to defend, but they can also be difficult to prosecute. 

The question of whether testimony alone is enough to convict is usually accompanied by a narrative expressing confusion, panic, or outrage. Typically, the people who ask variations of this question indicate that there is no physical evidence to support the case– no video, no DNA, no physical injury, no other witnesses– there is only the allegation made by the alleged victim. So the questions abound:

• Can someone simply claim that a crime was committed, offering no other proof?

  • Yes. 

• Can serious criminal charges be filed on the basis of those claims alone?

  • Yes. 

  
  

• Can a conviction come on the basis of those claims, alone, with no other evidence?

  • Yes.

Particularly as it regards cases of sexual abuse against a child, it is well established in Texas law that an alleged victim's uncorroborated testimony, standing alone, is sufficient to support a defendant’s conviction. Tex. Code Crim. Proc. Art. 38.07.

Across the nation, and in Texas, uncorroborated testimony is enough to convict and imprison individuals charged with serious crimes including sexual assault; aggravated sexual assault; continuous sexual abuse of a young child; indecency with a child; sexual performance by a child; indecent assault; prohibited sexual conduct; sexual coercion; and assault family violence. 

Let’s clear some things up.

What is testimony? Testimony is the verbal information provided by a witness, under oath, in a legal proceeding. When a witness speaks under oath, what the witness says is considered to be truthful unless rebutted. A skilled defense attorney will call the witness’s testimony into question, pointing out inconsistencies in the witness’s story, discrediting the witness’s credibility, and exposing the witness’s biases, issues with memory, or perception, among other things. 

Is testimony considered to be evidence? Yes. Testimony is a type of legal, admissible evidence. 

Isn’t testimony hearsay? No. Witness testimony is not hearsay.  Hearsay is when a witness testifies about a statement made out of court.  For example, if Anna testifies, "Jodie told me that Rebecca slapped her," the statement would be hearsay because Anna is testifying about a statement that Jodie made outside of the courtroom/court proceedings. However, if we had Jodie as a witness, and Jodie testified saying, “Rebecca slapped me,” that would not be hearsay, because Jodie is testifying to something that happened, not to a statement that was made.

Importantly, hearsay is not always inadmissible. There are many exceptions to the basic hearsay rules. In Texas, our Rules of Evidence allow the defendant’s own out-of-court statements to be offered as admissible evidence even though such testimony would normally be objected to as hearsay.

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Testimony can be very powerful. Many charges are brought on the basis of testimony alone. When trying to resolve a case via plea deal, the credibility of witnesses (and their expected testimony) drives negotiation. In a courtroom trial, a compelling witness can sway a jury’s opinion about the case. Even when physical evidence exists in a case, testimony captures jurors’ attention and offers them the opportunity to more deeply understand the case.

Especially when there is little to no physical evidence in a case– video footage, photographs, DNA, fingerprints, weapons, etc.-- cases turn on the strength of testimony. 

Our legal system places a lot of faith in the credibility and truthfulness of witnesses. If the jury or judge finds a witness's testimony to be believable and sufficient to prove guilt beyond a reasonable doubt, a conviction will come even when there is no “hard evidence” that a crime was committed. The testimony is evidence, and compelling testimony is enough to put a defendant behind bars.

However, this doesn't mean it's easy to secure a conviction. The prosecution must still meet the highest burden of proof and persuasion in our legal system– that the defendant is guilty beyond a reasonable doubt. Skillful defense attorneys work diligently to challenge the credibility of witnesses, point out inconsistencies in the prosecution's case, and cast reasonable doubt that the accused is guilty.  

While testimony alone is enough to secure a conviction, the lack of supporting evidence makes it more difficult to prosecute “he said, she said” cases. These cases often face intense scrutiny due to the very serious nature of the charges and the potential for false accusations. There are many avenues to explore in defending against these charges: exposing the witness’s bias or improper motivation; attacking inconsistencies in the witness’s story; discrediting the witness’s testimony due to issues with memory or the influence of drugs/alcohol, and other tools that establish reasonable doubt.

In preparing to defend these “he said, she said” cases, it’s extremely important to deeply investigate the alleged victim’s testimony and strategically, thoroughly question the testifying witness. Hiring a diligent, aggressive, and detail-oriented criminal defense attorney is absolutely essential to meaningfully fighting serious charges.

If you’re facing a case that lives or dies based on the testimony of a single witness, let DIABLITA CRIMINAL DEFENSE defend you.

Call (512) 838-3442 to receive a FREE case evaluation.

When you’re facing a “he said, she said” case, particularly one involving alleged sexual abuse or domestic violence, you need an aggressive defense. Many individuals facing serious criminal charges for sex offenses, domestic violence, or other typically “he said, she said” crimes think that they’re safe from prosecution because there’s no physical evidence in their case. That’s a deeply misguided belief. Texas prisons are filled with people who believed that their charges would go away because there was no DNA, video, or other evidence corroborating their accuser’s testimony. The consequences of these charges can be devastating, even when the charges don't result in a final conviction.

In Texas, individuals who receive deferred adjudication for qualifying sex crimes are nevertheless placed on the Sex Offender Registry.

Texas courts do not issue orders of nondisclosure in family violence cases.

Don’t let criminal charges derail your life. Call (512) 838-3442 to speak with the Devil.

Atty. García Falone practices in the Austin metro area (ATX) as well as the Dallas-Fort Worth metro (DFW). She practices in counties throughout Texas, including Travis County, Williamson County, Bastrop County, Hays County, Caldwell County, Blanco County, Burnet County, Bell County, McLennan County, Hill County, Ellis County, Tarrant County, Dallas County, Kaufman County, Denton County, and Collin County.

PLEA BARGAINS: WHAT YOU NEED TO KNOW

To plea, or not to plea, that is the question.

In Texas, about 98% of criminal cases end in plea bargains. Hiring a skilled defense attorney increases your chances of a case dismissal or another favorable outcome. This guide will help you understand the complexities of plea bargaining so that you can make more informed decisions about your case.

WHAT IS A PLEA BARGAIN?

Plea bargains are negotiated agreements made between the prosecution and the defendant in a criminal case. The prosecution is made up of one or more attorneys from the District Attorney’s (DA’s) office; the defendant is the person facing criminal charges, who is often represented by a defense attorney.

Plea bargains are an efficient way to avoid the significant time, effort, expense, and uncertainty of going to trial. Through a plea bargain, the defendant pleads “guilty” (or “no contest”) to their charges and, in exchange, the prosecutor offers various legal concessions to the case, like dropping certain charges, reducing the severity of the charges, or pursuing a lighter or shorter sentence. You can think of plea bargains as a compromise between the prosecution and the defense.

WHAT IS THE PLEA BARGAINING PROCESS?

The plea bargaining process goes like this:

1. Offer: Typically, the prosecutor will present a plea deal to the defense attorney or the defendant directly, if they are unrepresented. Sometimes, the defense will make the first offer after discussing the case with the prosecution. Either way, the offer will exchange the defendant’s “guilty” plea for concessions on the case such as dropped charges, a shorter sentence, probationary periods, rehabilitation, counseling, or other methods of resolving criminality without the full legal consequence of the charge.

   
   

2. Assessment: The defendant, considering the advice and perspective of their criminal defense attorney, will carefully evaluate the plea offer. A good defense lawyer will walk their client through various considerations, weighing the potential outcomes of a trial, the strength of the evidence, the client’s perceived credibility, the client’s financial preparedness for trial, and the potential consequences of the plea deal.

   
   

3. Negotiation: Plea deals are generally open for negotiation between the prosecutor and the criminal defense attorney on the case. When the defendant is unrepresented, the plea deal is much less flexible to negotiation. Like any other deal, different aspects of a plea bargain may be shifted or added/subtracted in order to come up with an arrangement that is agreeable to everyone involved.

   
   

4. Acceptance or Rejection: The defendant has full discretion to decide whether they accept or reject the plea bargain. The decision is not made by the defense attorney, though the defense attorney has the professional obligation to advise their client. If the plea deal is accepted, the matter will proceed to a plea hearing, where the defendant formally enters their guilty plea in exchange for the concessions offered by the prosecution. Plea bargains are subject to judge approval and the agreement is not final until it has been accepted by the court. While judges typically accept the terms of plea deals, they have the ultimate power to reject the deal if they find it lacking for some reason. If the deal is rejected by the court, the plea can continue to be negotiated and a modified agreement can be presented to the court for approval. If plea bargaining is rejected by the defendant, the case will proceed to trial.

WHY WOULD YOU CHOOSE TO PLEA?

There are various highly favorable outcomes to criminal charges: having the case dismissed/dropped, having a felony case no-billed (meaning the case was not indicted), or receiving deferred adjudication. However, every case cannot reasonably be expected to be dropped or deferred. When charges persist, there are many reasons why a defendant might consider a plea bargain:

• Avoid the Risk of a Harsher Sentence: Trials are inherently uncertain– there’s no guarantee of what a jury will decide. With a plea bargain, defendants benefit from a guaranteed outcome, preventing the risk of a more severe sentence if convicted at trial.

  
  

• Save Time and Money: Trials can be lengthy and quite expensive. A plea bargain results in a quicker resolution of the case, saving the defendant time, money, and stress.

  
  

• Benefit from Potential Leniency: Prosecutors may offer more lenient plea deals to defendants who cooperate with the investigation or provide valuable information. Especially when the potential sentence for a conviction is severe, plea bargains may offer more lenient outcomes.

  
  

• Prioritize Personal Circumstances: Defendants can minimize the financial impact of criminal defense by avoiding trial. The certainty and closure provided by plea deals may help defendants preserve their family obligations and emotional well-being.

  
  

WHAT WILL LA DIABLITA DO?

La Diablita fights for every client. In her practice, Atty. García Falone takes every opportunity to resolve cases favorably, with as minimal impact to her clients as possible. Many defendants choose to resolve their case through plea bargaining, for the reasons outlined above. When a plea offer is on the table, la Diablita:

• Evaluates the prosecution's case, uncovering for every way to strengthen her client’s position and preserve their interests;

  
  

• Assesses the potential risks and benefits of a trial, and communicates those perspectives with her clients;

  
  

• Explains the legal implications of a plea decision to ensure that her clients have all the information they need to make informed decisions; and

  
  

• Negotiates the best possible plea deal, minimizing impact to her clients. When no reasonable agreement can be made, la Diablita is prepared and proud to represent her clients at trial.

  
  

Plea bargains aren’t most defendant’s hope and dream, but they’re a very frequent reality of criminal defense practice. Rest assured that with Diablita Criminal Defense every option is explored and every defense is mounted.

Atty. García Falone practices in the Austin metro area (ATX) as well as the Dallas-Fort Worth metro (DFW). She practices in counties throughout Texas, including Travis County, Williamson County, Bastrop County, Hays County, Caldwell County, Blanco County, Burnet County, Bell County, McLennan County, Hill County, Ellis County, Tarrant County, Dallas County, Kaufman County, Denton County, and Collin County.

If you’re facing criminal charges, call (512) 838-3442 to speak with the Devil.

Start building your strongest defense– contact Diablita Criminal Defense, PLLC to schedule a FREE initial consultation.

SHOULD YOU PAY A CIVIL DEMAND FOR SHOPLIFTING?

One of the most common questions on Avvo.com, gets its answer!

Rising alongside the prevalence of self-checkout, forgetful, preoccupied, or plainly negligent store customers face accusations of shoplifting when they fail to ring up their items. Before self-checkout, and continuing today, other individuals have a distinct goal of stealing from stores. Both groups, whenever caught by the store’s loss prevention team, face a humiliating and anxiety-provoking interrogation into their actions. How does this typically go?

By now, we all know that retailers employ various measures to prevent theft. From simple security tags placed on items to cameras littering store ceilings to sophisticated face recognition and product detection software, retailers are sniffing out attempts at shoplifting. Some of these attempts are blatant– deliberate, intentional theft, like a shopper picking something off a store shelf and shoving it into their purse or backpack. Often, however, simple mistakes are made that render well-intentioned people into would-be “thieves.” 

A common scenario: a shopper loads up their cart with groceries and heads to self-checkout. The shopper clumsily navigates the register’s prompts, struggling to hear the electronic voice describing “unknown items in the bagging area” over the loud store music and constant beep-beeps coming from other checkout lanes. Maybe the shopper has a child or two, impatient or fussy, adding to the stressful checkout process. In a rush to leave, the shopper misses scanning something that was obscured by other items in the cart or simply slipped out of sight. The shopper pays and heads toward the store exit, but is stopped on their way out. The shopper is accused of shoplifting and is asked to come to the loss prevention office. The shopper is stunned, confused, and embarrassed.

Both kinds of shopper– the ones intentionally stealing and the ones suffering from forgetfulness and preoccupation– will share similar experiences once they’ve been apprehended by loss prevention. Some stores have a policy to immediately call the police. When police officers arrive, they issue the accused shoplifter a citation for theft or, as circumstances dictate, law enforcement officers may arrest the accused shoplifter. When police are called to the scene, criminality is immediately assessed, with the shopper being summoned to court or being arrested. However, police are not always called to the scene of suspected shoplifting. 

Regardless of whether police are called to the scene, the store’s loss prevention will usually take down the accused shoplifter’s information with the intent of having a civil demand for payment sent to the accused’s address. This civil demand is in the nature of restitution, asking the accused to pay the value of the items that they attempted to steal, in addition to other costs (typically $200-$1,000.) At some later time, the accused shoplifter will receive a demand for payment in the mail. The demand will often threaten further legal action if payment isn’t made– a lawsuit against the accused and payment of the attorney’s fees incurred as a result of having to file suit. (Texas Theft Liability Act, Civ. Prac. Rem. Code Ch. 134)

Everyday, prospective clients consult with criminal defense attorneys and relay a similar story. The scenarios described above are very common on Avvo.com, the legal Q&A site where I often answer questions relating to criminal law in general. The frequent Avvo posts asking whether civil demands should be paid inspired this blog post. So the question is, to pay or not to pay?

Paying a civil demand letter often puts the civil aspect of the theft to rest, which can give some peace of mind that there won’t be a bigger lawsuit coming later. But paying a civil demand doesn’t guarantee that the accused is in the clear. Retailers can pursue criminal charges against an accused shoplifter even if the civil demand was paid. If criminal charges are filed against you, contact a criminal defense attorney immediately. The legal and social consequences of theft charges can be quite harsh, so quality representation is essential. 

YOU’VE RECEIVED A CIVIL DEMAND LETTER– NOW WHAT?

Upon receipt of a civil demand letter connected to a suspected shoplifting incident, take the following steps:

1. Read the letter carefully, taking note of the amount requested and the deadline for payment.

2. Compile information and evidence related to the incident (date, time, items involved, as well as receipts and statements from witnesses.)

3. Contact an attorney for perspective on the matter, assessment of the letter’s legitimacy, and information on how to proceed. Consider retaining an attorney to respond to the demand letter on your behalf.

4. Respond to the letter, if you choose to, in writing and without admitting any wrongdoing. Keep the tone of your response professional and polite. Retailers may be willing to negotiate down the amount demanded. 

I discussed the reality that criminal theft charges often come alongside civil demands for payment. In Texas, whether theft is charged as some level of misdemeanor crime or some level of felony offense depends on the value of the property stolen. Texas charges theft between Class C misdemeanors (theft of property under $100) all the way up to charging theft as a First Degree felony (theft of property valued at $300,000 or more.) Repeat offenders face criminal enhancements and harsher punishments.

Whatever the criminal charge you’re facing, Diablita can craft your strongest defense. Don’t wait– speak with the Devil.

Call (512) 838-3442 for a FREE initial consultation.