Preparing for Punishment

January 9, 2016

By Collin County Criminal Defense Attorney Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Today I’ll talk about a topic many of my colleagues avoid with clients — at least initially.  Punishment or mitigation can be a scary topic but the importance goes without saying.

I’d like to think those who know me know I’m not a push-over on trying to get an acquittal.  Acquittal is always the first option.  But in any case you have to have a back-up plan.

Punishment or mitigation (reduction of the severity of punishment) occur on two general occasions in cases I handle.  These are in negotiations with the prosecutor and, if necessary, in a punishment phase of a trial after someone has been found guilty.

Misdemeanor Punishment/ Mitigation

With most misdemeanors I’m primarily concerned with the collateral consequences of the criminal action.  I’m more worried about the job or promotion you’ll be facing in 10 years than I am with whether you will be doing 20 or 30 hours of community service.

Misdemeanors do carry potential jail sentences (class b misdemeanors are up to 180 days in the county jail and class a’s are up to one year).  In Collin County, though, most people facing punishment on misdemeanors are facing probation sentences rather than jail barring criminal history — or someone’s personal preference to serve jail instead of be on probation.

Being of good moral character with little or no criminal history does matter and it’s my job to make sure the prosecutor and/or judge knows this about you.  My primary use of it, though, is focused on making sure we can get your arrest either non-disclosed or expunged.

Felony Punishment/ Mitigation

I’m convinced the Defense side has the upper hand in felony punishment though often the underlying facts of the charge might be difficult.

This is because my client is a living, breathing three-dimensional human being who is worthy of being understood and being cared about.  The lawyer for the state only has a flat, 11 x 8 inch file.

Obviously someone facing felony punishment has been found guilty of doing something hurtful, thoughtless or distasteful.  But your lawyer cannot allow the punishment phase of a felony trial to be solely about the facts of the charge or other previous bad acts by the accused.

No one would want their life to be judged based on the worst decision they’ve ever made.  It’s not fair.

I believe in telling the jury or judge stories which show character through friends, family and other acquaintances who might have little reason to attest to your goodness but do so because they’ve seen you at your best.  You can really get the sense of how someone truly is when you hear two, three, or four people come and tell you the same positive attributes.

Everyone is entitled to be judged on their whole life.  Not just the sliver of their life in the prosecutor’s file.

The prosecutor is left with very little to argue when you show a powerful punishment case to a jury other than “look at what you did!”  As bad as that can be in some cases – the punishment will be decided on all the facts which is as it should be.

*Jeremy Rosenthal is an attorney licensed in the State of Texas and is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  Nothing in this article should be viewed as legal advice and you should contact an attorney directly for any legal issue.

 


Probation Sanctions — Facts Versus Fiction

November 29, 2015

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Frequently, a probation officer (“PO”) in Collin County will present a probationer with proposed “sanctions” for alleged probation violations. Often the officer will request the probationer make up their mind on the spot – which prevents the probationer from truly making an informed decision.

The proposed sanction could include jail, taking new classes, and even extending probation. If the person turns down the sanction, then the probation officer threatens a motion to revoke probation or motion to adjudicate deferred adjudication.

These situations are like snow-flakes. No two are alike. Thus, you should always talk to a lawyer about your choices, and this blog (awesome as it may be) is really no substitute for case specific legal advice.

The best I can do is separate fact from fiction based on what I hear about the tactics some PO’s might use to get probationer to sign the sanctions, and what I know the law to be about revocations.  I use the terms probation revocations and adjudication of deferred interchangibly:

Facts:

  • A probation officer can seek to have your probation revoked if you violate any term and condition of probation. They need the District Attorney’s Office to sign off — but this is just a formality.
  • A probation revocation will trigger a warrant. You will be re-arrested. You are generally entitled to bond on misdemeanors but not always on felonies.  If there is no pre-set bond, then you might have to wait in jail while one is set. This could take several days or several weeks.
  • The vast majority of revocation proceedings result in plea bargains between prosecutors and your defense lawyer.
  • If you have a contested hearing, the state has the burden to prove by a preponderance of the evidence that you did violate probation at a hearing before the judge. Formal rules of evidence apply.
  • Most revocations have multiple allegations of violations, and if you lose on any one of them your probation could be revoked or deferred adjudicated.
  • If your probation is revoked then you can be punished as much as the underlying sentence will allow. If you were on deferred, then you’re subject to the maximum sentence range.

Fiction:

  • The Judge is angry with you:
    • Rarely does the judge know or care about your case if you’re just having problems with your probation officer. Collin County Judges have hundreds if not thousands of cases at one time — so your case is not as special as you think. Some judges are very “hands-on” with probationers but most would consider an every-day dispute between a probationer and a PO as a waste of their time. This obviously changes if you face revocation proceedings.
  • You Will Definitely be Revoked/ Adjudicated
    • POs often bluff.  They do not seek to revoke probation on every instance where they offer sanctions.
  • You Will Have to Explain Your Refusal of the Sanctions to the Judge
    • If you say no to the proposed sanction you are not necessarily going to have a hearing with the Judge.  The paperwork and the PO might say if you say no to the sanction you are requesting a hearing with the judge — but the reality is the PO is the one requesting it and they rarely follow through.  This is more often than not used as a threat to bully someone to accept sanctions.
  • You Will Get the Max (or Lengthy) Jail Sentence if You Say No
    • You won’t get punished for saying no to your PO.  This is normally an idol and unsubstantiated threat.  Think about it… if your PO really thought you should get a maximum sentence — then why are the offering not only to keep you on probation but not even revoke you in the first place?
  • The PO Will Make Sure You Get a Stiff Penalty if you Say No
    • Your probation officer has very little to do with process after the motion to revoke is filed.  They don’t go to your court dates and they don’t normally have a close relationship with the prosecutor.  The PO might testify if the case is ultimately contested but this is rare.  The PO typically writes a recommendation but this recommendation is not binding on anyone.

Can I Get Out of Sanctions if I already Signed Them?

Yes, it is possible. You need a lawyer and you need to file a request with the Judge to abate (pause) or undo the sanction.  The sanction can be analogized to a contract.  Most contracts can’t be executed under duress or stress.  Where a sanction was signed under threats of jail or worse — an argument can be made the consent was invalid.

The Bottom Line About Sanctions

Sometimes they make sense and you should seriously consider accepting them.  Don’t do so without a lawyer, though.  We can tell you what your alternative looks like and this will allow you to make an informed decision and you will know whether you have been offered a fair deal or not by your PO.  Your PO is likely an honest, hard working person but they do not know the court system, the laws, and the likely outcomes nearly as well as your lawyer will.

 

*Jeremy Rosenthal is an attorney licensed to practice in the State of Texas.  He is Board Certified in Criminal Law.  Nothing in this article should be considered legal advice.  For legal advice you should consult an attorney directly.


Shock Probation — Converting a Prison Sentence to Probation

October 15, 2015

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

“Shock Probation” allows a trial judge to convert a prison sentence into probation.  This can be after a plea bargain, a bench trial, or a jury trial where the Defendant is sentenced to prison.

Texas Code of Criminal Procedure Section 42.12(6)(a) allows the trial court to retain jurisdiction for up to 180 days “for 180 days from the date the execution of the sentence actually begins” and the judge can place the defendant on probation if the defendant is otherwise eligible.  These do not apply to State Jail Felonies, however, other probation programs apply to those charges.

In other words, the defendant must still (1) be sentenced to less than 10 years of prison and (2) not have been convicted of a felony in this state or any other State.  The Judge cannot grant shock probation where the Judge couldn’t otherwise — meaning “3(g) offenses” such as murder, aggravated robbery, aggravated assault, aggravated sexual assault of a child, indecency with a child, or injury to a child to name just a few.

So here is how it works… after someone is sentenced (for example after a jury trial), the lawyer files a motion for shock probation under 42.12(6)(a).  The judge can deny the motion without a hearing but cannot grant the motion without a hearing.  The just must rule within 180 days of the date the execution of the sentence actually beings or it would be over-ruled as a matter of law.

Shock probation and an appeal are not mutually exclusive and both can be done.

A motion for shock probation is a great “second bite at the apple” and should be considered where a trial or plea bargain went wrong.

*Jeremy Rosenthal is an attorney licensed in the State of Texas.  He is board certified in Criminal Law.  Nothing in this article should be considered legal advice.  For legal advice about any situation you should contact an attorney directly.


Defending Allegations of Child Sexual Abuse

October 15, 2015

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

No one anywhere approves of sexual abuse of children and no one anywhere approves of destroying the lives of the innocent.  The clash of these two core values in the courtroom are not for weak or timid lawyers.

The Deck is Stacked Against You

I’ve got bad news.  If you are being questioned about child sexual abuse charges — the police, CPS, or Children’s Advocacy Center very likely think you are a child predator even though they may not tell you directly.

The legislature has given law enforcement more than enough ammunition to destroy the lives of those accused of child sexual abuse.  If you think you are being accused of such charges you must contact an attorney immediately.

What Makes Being Charged with these Crimes So Severe?

Here are some of the obvious:

(1) The Harshness of the Penalties.  Aggravated Sexual Assault of a Child carries a penalty of 5-99 years in prison.  If the victim is under 6, then it is 25-years to life with no parole.  Indecency with a Child can be either 2-10 years of prison or 2-20 years of prison based on the elements. Continual Sexual Abuse of a Child carries a 25-life sentence with no parole.

(2) The Destruction of a Family.  Many sexual abuse cases involve family members or close family friends.  Allegations often cause family members to take sides against one another.  These cases can be contentious as you can guess so it stands to reason many wounds never heal regardless of the outcome.

(3) The Stigma.  The label, stigma and shame of being a sex offender is obvious — if the first two consequences weren’t enough.  Whereas a theft charge, drug charge or even a robbery charge might allow someone to still fit into society as a productive member after their debt is paid — someone labeled as a sex offender has a much bigger (if not impossible) challenge to rebuild their life.

What Your Lawyer Must Be Able to Do

They must show the jury destroying the life of an innocent person is intolerable even if it is being done with the best of intentions.  To accomplish this, your attorney must know the facts of the case better than the prosecutor, understand the law better than the prosecutor, and have a skilled plan of attack.

*Jeremy Rosenthal is an attorney licensed to practice in the State of Texas and he is certified in Criminal Law by the Texas Board of Legal Specialization.  Nothing in this article is intended to be legal advice.  For legal advice about your case or any situation you should contact an attorney directly.  Contacting the attorney through this blog does not create an attorney-client relationship.  Additionally comments, posts, or communications through this blog are not confidential.


People Giving Legal Advice — That Shouldn’t Be Giving Legal Advice

October 15, 2015

Criminal Defense Lawyer | DWI, Drug, Theft & Assault Charges

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

As even keel as I try to be — nothing gets under my skin more than people giving legal advice that have no business giving legal advice in criminal cases.  Everyone has opinions, their own experiences, and what they believe to be common sense — but I’m not really even talking about that type of stuff.

The “legal advice” I’m talking about is when the very same police officer that arrests you for DWI — also tells you that you need to just talk with the prosecutor to see if you can get a good deal… or when court staff or personnel tell you it might be easier to just talk with the prosecutor rather than get a lawyer… or when a bail bondsman tells you that your case is hopeless and hiring a lawyer is a…

View original post 469 more words


Your Right to a Speedy Trial

October 14, 2015

Criminal Defense Lawyer | DWI, Drug, Theft & Assault Charges

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

Being accused of a crime sucks.

The framer’s of the constitution knew this which is why the U.S. Constitution guarantees our right to a speedy trial in the Sixth Amendment. Texas also guarantees the right to a speedy trial in Texas Code of Criminal Procedure section 1.05.

If the State violates your right to a speedy trial — the Judge can dismiss the case. Your right to a speedy trial exists on any case whether it be DWI, drugs, marijuana possession, assault, theft or other serious felonies.

Speedy trial law can be extremely complicated believe it or not. I’ll avoid they hyper-technical legalese for the sake of easy reading but you should understand in this area there are no real bright-line rules that will get a case dismissed. Rather, a denial of a right to speedy trial is viewed by…

View original post 304 more words


Criminal Mischief

October 8, 2015

Criminal Defense Lawyer | DWI, Drug, Theft & Assault Charges

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Criminal Mischief is the essentially Texas’ way of labeling vandalism.  Under Tex.Pen.C. 28.03, a person commits an offense if, without effective consent of the owner, he intentionally or knowingly damages or destroys the tangible property of the owner; intentionally or knowingly tampers with the tangible property of the owner and causes pecuniary loss or substantial inconvenience to the owner or a third person; or intentionally or knowingly makes makings, including inscriptions, slogans, drawings or paintings, on the tangible property of the owner.

The level of offense of a criminal mischief case stems from the amount of damage to be alleged just as in theft cases.  Less than $50 of damage is a Class C misdemeanor; $50 to $500 is a Class B, $500 to $1,500 is a Class A; $1,500 to $20,000 is a State Jail Felony; $20,000 to $100,000…

View original post 163 more words


Follow

Get every new post delivered to your Inbox.

Join 238 other followers