Emergency Protective Orders – FAQs

October 21, 2016

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577


What is an Emergency Protective Order?

An emergency protective order (“EPO” for short) is an order issued by a magistrate judge after someone is arrested for Assault – typically during a family or domestic situation.  They can be broad, sweeping, and they can often worsen a family situation.

The order can prevent someone from going back to their home, having contact with their loved ones, and even going to the their children’s school to pick them up.  It can order the Defendant not have access to or possession of firearms.

How Can They Do This?

Texas law allows a magistrate judge to issue these orders upon application which may be done by a police officer or may even be done on the Judges own discretion.  It can be done “Ex Parte” which means the accused does not have the right to be there.  Understand, then, that the information the magistrate judge is given can be very slanted.  Also remember the laws in the State of Texas were written by politicians who — by and large– were elected on promises to be tough on these types of cases regardless of the facts.

How Long is the Order In Effect?

An EPO can be in effect for up to two years unless there are aggravating circumstances such as serious bodily injury allegations or Defendant has a previous history of domestic violence.  Most protective orders state their duration.  If the Order has no duration on it then the duration is 2 years as a matter of law under Tex.Fam.C. Chapter 85.025(2).

Most Emergency Protective Orders in Collin County are about 60 days.

Can an EPO be Modified?

Yes.  This is typically done through the same judge who signed the EPO.

How Do We Get the Judge to Modify an Emergency Protective Order?

You or your attorney can petition the judge for an amendment to the EPO.  Normally there is a hearing where the judge determines whether to lift or modify the protective order.

I’m the Alleged Victim… Can’t I Just Go Tell the Judge to Undo This?

It’s probably not that simple.  Most judges prefer to have a formal hearing because they don’t know the parties involved and they are worried about additional violence if they immediately undo an order.

A case to them resembles many other cases they’ve handled.  Also there is a prevailing mentality amongst law enforcement, prosecutors and often some judges which presumes several things about family violence arrests.

Their mentality is the assailant is guilty, and that the victim is asking for this leniency because they feel guilty or intimidated by the abuser because that is part of the circle of domestic violence.  It is flawed logic because it’s circular – though I’m sure it can be true in some cases.  (Defendant one is guilty therefore we don’t believe the victim when they say it didn’t really happen therefore Defendant is more guilty than before).  In cases where it isn’t true — the logic particularly confounding.

Most judges I’ve worked with have broad policies about these types of things.  They are not un-sympathetic to real world problems protective orders create such as financial strain of paying for multiple housing, child care, and impact on the family.

Should I Hire a Lawyer to Deal With a Protective Order?

It goes without saying that if you have been arrested for Assault/ Family Violence then you need a lawyer immediately upon your arrest.  There are pitfalls to modifying protective orders which require skill too.

What Happens if I Violate the EPO?

It can cause additional criminal charges and bond to be revoked.  In many cases the violation can be as bad or worse than the original allegation.

Can the Person Come Over to Get Necessary Things?

Always read the specific language of the EPO and if you have any questions talk with a lawyer to make sure it’s clear.  Most protective order’s I’ve seen have a provision which allows for a way to get necessities from a home such as clothes, computers or whatever is needed.  Sometimes the language provides a friend or neutral person can assist.

Understand if the police are called and the protective order is shown to an officer who wasn’t at the hearing or who doesn’t understand an EPO very well — the person can go back to jail even though the officer might be wrong.  Make sure it is crystal clear what you can do before you take any action.

*Jeremy Rosenthal is an attorney licensed in the State of Texas.  He is Board Certified in Criminal Law.  Nothing in this article is intended to be legal advice.  For legal advice on any situation you should contact an attorney directly.



The Difference Between Real Experts and “Instant” Experts

October 21, 2016

By Texas Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577


Expert witness testimony in a criminal trial can be a funny thing.

Article VII of the Texas Rules of Evidence is pretty strict about who can qualify to be an expert and what they can and can’t conclude on it’s face… but appellate decision after appellate decision have eroded boundaries between actual experts and what I call “instant” experts.

Judges are human and the law of “the way we do things around here” carries more weight than it should.  This worsens the problem of allowing the instant expert to spew their conventional wisdom dressed-up as expert witness testimony.

Real experts are valuable courtroom assets who can and will answer questions honestly for both sides.  “Instant” experts often shill for one side and are just trying to win their case.

Why Are “Instant Experts” a Problem?

Because their testimony is being sold as the gospel on a certain topic.  Additionally, they are allowed to make certain conclusions other witnesses are not allowed to make.  Materials they review to form the basis of their opinion can be admissible whereas otherwise they might not.

Additionally Judges are not allowed to comment on the weight of evidence.  They do exactly that lawfully, however, when they tell a jury a certain witness is better than the rest.

The Textbook Example

Toxicologist or Pharmacist vs. Police Officer:

Rules allow for both to testify about intoxication in a DWI trial in most situations as expert witnesses.  It is not uncommon for some police to have drug recognition training, but the lines can be quickly blurred in a courtroom if the officer and prosecutor over-step their bounds.

A police officer might try to make medical conclusions based on factors observed.  The conclusions might include the individual has ingested CNS depressants or the individual is on opioids, or is intoxicated due to a combination of substances ingested.  They base this on training provided to them either at the police academy or at advanced courses and experience from work.

So a police officer under-qualified expert often describes something which may or may not be obvious to everyone and tries to explain why.  That’s all fine but when pressed on details, alternate causes, or any medical principles at all — an officer normally retreats into, “I can’t answer that because I’m not a doctor.”  See how unfair that is?  They are fine opining about how guilty the defendant is but basically can’t be cross-examined at all because of their lack of knowledge.  It is a lose-lose for the defense.

The toxicologist or the pharmacist, on the other hand, has had far more academic training — in addition to applied training — and can discuss specific evidence which must be present to make certain conclusions.  With most drugs, they need to know someone’s medical history and history of taking prescription pills to know how much a certain drug would affect them.  They are also aware of medical journals, studies, and research which often goes contrary to conventional wisdom but is clinically tested medical fact.

The toxicologist and/or the pharmacist will concede points to both prosecution and defense lawyers so long as they are consistent with accepted conclusions in the scientific community.

To analogize — it would be like me saying that I’ve seen clouds my whole life so I’m an expert on the weather.  I throw out a few cloud types I might have picked up on the way… the direction of the wind maybe and come to the conclusion it will rain when it’s mostly cloudy.  When I’m pressed on details about barometric pressure, dew-point, and ionization of the clouds I shut down and say — “well, I’m not a meteorologist!  I just know it’s going to rain!”


Why Real Experts are Important

Real experts help juries with all sorts of complicated things on topics ranging from molecular biology to nuclear physics to even the practice of law.  Without expert witnesses Juries would be making completely uninformed guesses.

Experts can be found in practically every specific field you can think of to include medicine, science, law, toaster ovens, tennis racquets, art and on and on and on.  It is very important to get juries to understand nuances of any particular field.

The Rules About Experts

Rules of Evidence 701 and 702 discuss the difference between ‘lay’ witness and ‘expert witnesses.’

Rule 701:  

“If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:

  1. (a)  rationally based on the witness’s perception; and
  2. (b)  helpful to clearly understanding the witness’s testimony or to determining a fact in issue.”

Rule 702. Testimony by Expert Witnesses:

“A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.”

So — in theory at least — an expert has scientific, technical or other specialized knowledge which everyone else doesn’t have.  They normally attain the knowledge from formal education, academic journals, and real world experience.  So having blood in my veins for my entire life doesn’t make me a blood expert… being an accredited scientist who keeps up with medical journals probably does.  See the difference?

The Court’s Gatekeeping Function

The Courts have what is known in caselaw as a “gatekeeping” function.  This is to say the Judge must make the determination whether an individual is acceptable as an expert or not.  Several important cases expand the rules.  See Daubert v. Merrell Dow Pharms, 509 U.S 579 (1993) and Kelly v. State, 824 S.W.2d 568 (Tex. 1992).

The Judge is bound, however, by appellate precedent and to a lesser extent by “the way we do things around here” as I discussed earlier.  Case law makes clear, for instance, that a police officer who is fully accredited can testify as in expert in intoxication due to alcohol.  Officers with specific training about the effects of drugs on the body can almost always testify as drug recognition experts.

“The way we do things around here” sometimes kicks in when defense lawyers don’t make routine challenges so that when one finally does — the Judge might not take the challenge seriously because the Courts have always allowed a certain person to testify as an expert.  Certainly everyone else can’t be wrong?

So How Do We Deal with “Instant Experts” When Defending People?

We fight through it.  We make the proper challenges and the proper objections at the appropriate times.  If we must cross examine an instant expert then we do it wisely by logically cornering and limiting what they can credibly say.  We expose the massive gaps in their knowledge.  If it is appropriate in a given case — we present our own expert with the proper credentials.


The harder we work, the luckier we typically get!

*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 contact an attorney directly.



Chart for DWI Related Driver’s License Suspensions in Texas

September 23, 2016

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

By Collin County Criminal Defense Lawyer Jeremy Rosenthal


(972) 369-0577

Here’s a quick run-down of driver’s license suspension times which relate to Driving While Intoxicated charges (as of July, 2013).

Driver’s license suspensions related to drunk driving charges occur one of two ways: (1) by either a breath/ blood test refusal/ failure: or (2) because of a conviction for DWI.

These determinations are slippery and the code doesn’t do a very clear job of sorting them out.  It’s best to consult an attorney before trying to figure it out on your own.  Also suspension’s listed below due to refusal/ or denial are appealable through Administrative License Revocation hearings (otherwise known as ALRs).  Though the State and police want you to really think these are automatic upon arrest — they really aren’t.

DUI(Minors with any detectible about of alcohol):

1st arrest — 60 day suspension

1 prior —…

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Defending Child Abuse Charges

September 23, 2016

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

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577


No one wants for children to be abused.  We are biologically and sociologically programmed to love, nurture and protect them.  Our natural rush to defend children, though, can bring out the worst in people.

Child abuse cases originate in several ways.  Often one parent will accuse another parent of abuse in custody or divorce proceedings.  Some times people in contact with children suspect abuse or neglect and contact authorities.  Another source is where medical personnel feel abuse was possible.

Child abuse charges can be extremely difficult to defend regardless of whether the alleged physical injuries are slight or devastating.  Virtually always the evidence is not only circumstantial — but highly subjective and medically complex.

Defending these cases takes time, patience, and a thorough review of complete medical history of the child and sometimes even of the parents to determine…

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Theft Amount Classifications Changes Effective September 1, 2015

August 30, 2016

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

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577


For the first time in 22 years, the Texas Legislature has adjusted the threshold values for theft cases to adjust for inflation.  Theft is a result-oriented offense and the value of the property stolen typically dictates the punishment level.  As of September 1, 2015, the amounts correlating to specific charges are as follows:

  • Less than $100 is a Class C misdemeanor (formerly less than $50).
  • $100 but less than $750 is a Class B misdemeanor (formerly between $50 and $500).
  • $750 but less than $2,500 is a Class A misdemeanor (formerly between $500 and $1,500).
  • $2,500 but less than $30,000 is a State Jail Felony (formerly between $1,500 and $20,000).
  • $30,000 but less than $150,000 is a 3rd Degree Felony (formerly $20,000 to $100,000)
  • $150,000 but less than $300,000 is a 2nd Degree Felony (formerly $200,000 to $300,000).
  • $300,000…

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A Different View on Civil Liberties

August 28, 2016

By Collin County Criminal Defense Lawyer Jeremy Rosenthal


(972) 369-0577

I’ve got a world view which many have a hard time understanding when it comes to rights and it is this:  I don’t need most of them.  At least, I don’t think I do.  Most people I know really don’t need them either.

Though I fight hard for my clients against the powers that be — I’m a conformist at heart. I don’t live on the fringe and by that I mean I don’t say things which get authority figures so angry they’d want to jail me.  My neighbors don’t hate me because of what I drive, how I dress or what goes on at my house (at least I don’t think).  No one hates me because of who my family is or isn’t.

You could give me more rights than everyone else and I still wouldn’t need them.  The right not to stand in line at the hottest night club (I’m not cool enough), the right to the best tickets to NASCAR events (I’m not a fan), or the right to own the first house on the moon (I’m too scared to go and I couldn’t afford it).  These rights are useless to me because I  don’t need them.

On the flip side — you could probably take away many of my rights and though I wouldn’t be happy about it, my life would probably continue uninterrupted.  I’d probably find a way to get along without my right to be free from illegal searches or my right to remain silent.  I’ve never needed to exercise these rights and I do my best to lead my life in a way where I hopefully never will.

The question isn’t whether you, me, or anyone we know values these rights because unfortunately experience teaches me we don’t.  When you tell people their rights will be taken next they normally don’t care.

When someone unpopular or someone who says, does, or is accused of doing something heinous needs their rights — do we deal with them in an honest way as the framers of the constitution intended?  Do we make up the rules as we go along and give them lip service about their civil liberties?

All too often I deal with an establishment that in some small ways rationalizes minimizing someone’s rights.  Simple rights like the presumption of innocence, the right to be free from an inappropriate search, or someone’s right to an affordable bond can be infringed because “look at what you did!”  I wonder if this is what third-world countries might do to someone they don’t like.

Our rights guaranteed by the Constitution aren’t for the popular people, the conformists or the good every-day citizen.  They don’t need them.  They are for the people on the fringes, the unpopular people, and the misunderstood.  People who need meaningful rights most of all are the people we’ve determined in our heart of committed some terrible wrong.  This is what separates America from a third-world-country.

So when I argue about protecting rights to a jury — I don’t tell them to protect someone’s rights because those rights could be taken from them or their family one day… Unfortunately, I’ve come to learn people don’t care about their own rights for the same reason I question whether I need them myself.  Instead, I ask them what a third world country would do with a person like my client… and would we tolerate Americans acting the same way as them?

Can we be like a third-world country?  I suppose if the shoe fits.

*Jeremy Rosenthal is a licensed attorney in the State of Texas.  He is Board Certified in Criminal Defense.  Nothing in this article is intended to be legal advice.  For legal advice about any situation you should contact an attorney directly.

Can I Recant a Police Statement?

August 25, 2016

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

By Collin County Criminal Defense Attorney Jeremy Rosenthal

(972) 369-0577


Generally speaking a statement made to police in the course of an investigation can be considered by the police, a judge, or a jury for it’s full meaning.  Recanting the statement might call the original statement into question… then again it might not.

Who Made the Statement?

Statements of the Accused

Important in the analysis is who made the statement, what role that person plays in the proceedings, and the timing of the statement or statements.

A statement by an accused is referred to as an admission by a party opponent under Tex.R.Evid. 801(e)(2).  If the statement is relevant to a jury then it’s fully admissible.  The person or person(s) the statement was made to can testify to what was said by the accused or can have a written statement admitted.

Practically speaking, an accused and his or her…

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