Is it a Crime to Not Report a Crime?

May 23, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Failure to report a felony is rarely charged — but it is a crime.  What is more commonly charged is failure to report the abuse or neglect of a child.

When we do see these types of charges, it is often because law enforcement suspects far worse but simply can’t prove anything… or it is often a reduced charge the prosecutors and defense lawyers settle on for a plea negotiation.

Texas Law:

Texas Code of Criminal Procedure 38.171 requires the felony to be one which (1) the person observed; (2) it is likely serious bodily injury or death may have occurred; (3) It’s reasonable to think no one else has reported it; and (4) the person can make the report themselves if it doesn’t place them in danger.

— and if this crazy offense does occur, it is a Class A misdemeanor.

Federal Law:

The Federal Law is called Misprision of a Felony.  It is much broader in that there only be “knowledge” of the felony.  A major difference is under Federal law, the accused must take an affirmative step in assisting concealment of the felony… in essence making them an accessory.

Keep a few things in mind about failure to report crimes and they start making sense for why we see them so rarely:

Police Want the Real Offender

They want the perpetrator of the crime someone knows about more than anything else.  If police had to round up and prosecute people who knew they think knew about certain crimes but didn’t report — it would make their work load go crazy.

“Failure to Report” cases are really hard to prove.

How do you go about proving someone “knew” about something…?  You’d almost think they’d have to witness it themselves?

Also consider that someone might have some information a crime was committed — but not enough information to truly assist police.

The statutes take these things into consideration which is why they are so narrow.  The gist of these laws is police want and need help in serious situations… not to round everyone up who knows something.

Law Enforcement Usually Understand’s You’re in a Tough Spot Too

Police are people too and they might understand the witness or person is in a tough spot to do something.  Many crimes take planning and a series of bad decisions.  Witnesses to crimes normally don’t choose to be witnesses and they often have to make decisions on the spot.

I can see police threatening people with this charge to get them to talk about solving the underlying crime… but again, remember the cops want the REAL bad guy more than anything.

Failure to Report Abuse or Neglect of a Child or failure to report Aggravated Sexual Assault of a child is a bit of a different story.  I’ll write about that in another blog.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and is licensed by the State Bar of Texas.  Nothing in this article should be considered legal advice.  For legal advice about any situation you should contact an attorney directly.

 

 


Is it a Crime to Threaten Someone?

May 22, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

A threat is a crime in Texas under certain circumstances.  I’ll discuss the two most common.

Terroristic Threat

The first offense is labeled by the Penal Code as a “Terroristic Threat“.  It might be a touch aggressively named, but is committed when there is a threat of violence seeking a particular reaction listed under Texas Penal Code 22.07(a)(1).  Examples include trying to put another person in fear of imminent serious bodily injury, trying to interrupt public transportation, or trying to cause a reaction of an Emergency Organization.

Aggravated Assault with a Deadly Weapon

The second is aggravated assault with a deadly weapon.  Aggravated Assault with a Deadly Weapon can be committed several different ways — but for our discussion, it is committed where a person “uses or exhibits” a “deadly weapon” during an assault by threat.

A deadly weapon is legally defined by Texas Penal Code 1.07(a)(17) as a firearm or anything which has a use or intended use that is to inflict serious bodily injury or death.  Prosecutors can get pretty liberal with what is and isn’t a deadly weapon.  In general if someone is threatened with an object like a knife, bat, pipe or something like that — it will be an aggravated assault with a deadly weapon.

What About Freedom of Speech?

Any legal scholar will tell you there is a limitation to every right under the bill of rights.  You cannot run into a theater and yell, “fire!”  In fact, Terroristic Threat is the very crime you’d be committing by doing so.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the State Bar of Texas.  Nothing in this article constitutes legal advice.  For legal advice about any situation you should contact an attorney directly.

 

 


Is Sexual Harassment A Crime in Texas?

May 21, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

No.

Sexual harassment whereby one or more employer or co-worker creates a hostile work environment for other workers is civil, not criminal.  This means a person’s remedy is in the courts is through a lawsuit they normally bring themselves.

But there could be over-lap between sexual harassment and actual sex crimes.

Sex crimes are typically committed where there is unwanted touching or exposure.  So crude talk, innuendo, or inappropriate language are not enough to rise to the level of a criminal offense.  However, possible criminal liability can ensue such as indecent exposure, simple assault if there is unwanted non-sexual touching, or even sexual assault.

Can I Be Charged With A Sex Crime Even If I’m Being Sued for Sexual Harassment?

In theory, yes.

I worked at an employment law boutique right out of law school.  I don’t know that I ever saw that happen.  People who sue generally don’t go to the police… and when they do AFTER going to a lawyer first, I suspect the police are a bit leery of a money-grab (not to mention the case has normally gotten much older).

If you’re being prosecuted for a sex crime and are now worried about a sexual harassment claim — that’s normally hard to do too.  Sexual harassment claims have very tight time-lines which could be lost by this point.  If you’re being prosecuted for a sex crime of any time then sexual harassment is a much lesser matter in my book.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the State Bar of Texas.  Nothing in this Article Should be considered legal advice.  For legal advice, please contact an attorney directly.

 

 

 


How You Clear a DWI from your Record in Texas

May 18, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Until recently the only way to hide a Driving While Intoxicated Arrest from the Public was to win your case or have it dismissed.  Often a tall order.

The Texas Legislature passed & the Governor signed a law in 2017 allowing non-disclosures for DWI cases where the person qualifies after a DWI conviction.  A non-disclosure hides the arrest and court records from the public.  It can still be viewed by many public entities and it shouldn’t be confused with an expunction which is a complete destruction of the arrest records.  But its still pretty good.

Remember you have to file additional documents to expunge or non-disclose records.

There is a big debate amongst lawyers whether this provision is retroactive — that is whether you can clear something which happened prior to September 1, 2017.  Early returns suggest you can.

Here’s how you qualify to non-disclose a DWI:

  • First time offense
  • No car accident in the arrest
  • Blood Alcohol Concentration (BAC) below 0.15
  • Get probation for your DWI
  • Have Interlock Ignition Device on your car for 6 Months of your probation.
  • Wait 2-years from the date your probation ends

The provision was like lightning from a clear-blue sky.  As you can imagine, DWI arrestees have been a punching bag for politicians in Texas for the past 40 years.  Interestingly, there is no requirement you plead guilty — which means you could take your case to trial and if you lose — still qualify for the non-disclosure.  It would give a DWI arrestee two bites at the apple so to speak.

Last two things — (1) if you’ve been charged with DWI in Texas, make sure the record is clear at your plea (or sentencing after trial) that you meet all of these requirements to make it easier down the road.  (2) If you’ve got a DWI from 2017 or before, check to see if you qualify.

*Jeremy Rosenthal is Board Certified by the Texas Board of Legal Specialization and he is licensed to practice by the State Bar of Texas.

 

 


Quick Chart of Texas Sex Offender Registration Crimes

May 17, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Chapter 62 of the Texas Code of Criminal Procedure governs sex offender registration.  Since it reads like any other government code — I’ve listed them in an easier to digest manner and provided links where the law gets really tricky:

Lifetime Registration:

  • Continuous Sexual Abuse of a Young Child Children
  • Aggravated Sexual Assault of a Child
  • Indecency with a child (by contact)
  • Aggravated Sexual Assault
  • Sexual Assault
  • Possession of Child Pornography
  • Promotion of Child Pornography
  • Sexual performance of a child
  • Trafficking offenses in certain circumstances
  • Burglary with intent to commit sex crime
  • Compelling prostitution of a child younger than 18
  • Unlawful restraint of child under 17 when already registering
  • Prohibited sexual conduct (incest)
  • Federal offense or offense from other state which is substantially similar

10 Year Registration

  • Indecency with a child (by exposure)
  • Unlawful restraint of a child under 17
  • Online solicitation of a minor
  • Prostitution (hiring prostitute under 18)
  • Indecent Exposure, 2nd Offense (must be convictions, not deferred)
  • Federal offense or state offense from another state with is substantially similar

*Deferred adjudication will trigger registration unless otherwise listed above.

**Jeremy Rosenthal is Board Certified in Criminal Law in the State of Texas and is licensed to practice in the State of Texas.  For legal advice about any situation you should contact an attorney directly.

 

 

 

 


Our Victory at the Texas Supreme Court Changes Expunction Law

May 16, 2018

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Time to crow a bit.

I won a trial roughly two or three years ago where my client was charged with the felony offense of aggravated assault with a deadly weapon.

After we won, we filed (what we thought) would be a routine petition for expunction clearing my client’s record of the arrest for which my client had been acquitted.  The DA’s Office and The Texas Department of Public Safety opposed our petition because my client had also been arrested for outstanding warrants on an unrelated case which occurred prior to her arrest for the aggravated assault.

The prosecution’s theory was the arrest could not be expunged because the arrest for the underlying warrants made the arrest good under the expunction statute… so she’d have to live with the arrest for the aggravated assault with a deadly weapon on her record forever even though she won her trial.  (This is highly nerdy lawyer stuff — so I’m paraphrasing a touch.)

The prosecution’s idea of the expunction statute before our case had governed their policies and practice statewide — that if you don’t qualify for any small part of this long statute then you’re out of luck.  They argued the record keeping of criminal records for DPS would be too difficult and too sloppy.

After I convinced the trial judge in the case to order the records expunged over the State’s objection (no small task), the State appealed to the 5th Court of Appeals in Dallas and then to the Texas Supreme Court.  Special thanks to Thad Spalding and Morgan McPheeters from the firm of Kelly, Durham & Pittard in Dallas who handled the case after it left the trial court and briefed and argued it from the 5th Court in Dallas to the Texas Supreme Court.

Last week the Texas Supreme Court affirmed our case yet again, making it the law of the land.  Now when someone applies for expunction the test is whether they qualify under the specific provision of the expunction statute and not the statute as a whole.

It punches a hole in the decades-old practice of prosecutors and DPS that the expunction statute was “arrest based.”

You can read the opinion here.

Yeah, it’s nerd stuff.  I know.  But it can be fun to be a nerd sometimes!

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and is licensed by the State Bar of Texas.

 


Top 5 Most Common Police Attitudes – #1

May 15, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

This week I’m counting down some of the top police attitudes I see as a criminal defense lawyer in cases I handle.  Again, these are in no particular order of frequency or importance.

One theme I’ve discussed several times in this series of blogs is how the pressures of law enforcement can pull, push, stretch and bend officers in every different direction.  Police see the ugly underbelly of humanity and it shapes how they view the world.

Today’s attitude is no different.

#1 — Scumbag Mode

Police are at their most disappointing when they are in what I call “scumbag mode.”  It is self explanatory.  They think they’re dealing with a scumbag and they treat the person as such.

What I don’t always see with an officer in scumbag mode is an officer who is downright aggressive.  Instead, many are passive aggressive allowing the suspect to think they are in control.  What the suspect doesn’t know is they are already trapped in a spider’s web.

But we can tell they are in scumbag mode because of how they act or what they say.  Evidence of innocence gets crumpled up and pitched right into the trash can.  They call tow trucks once they go back to their squad cars.  They game plan with other officers about the arrest… then they go right back out to the defendant and pretend he or she can talk their way out of trouble.

Not happening.

The hardest things to get juries to understand about when an officer goes into this mode are three things — first is the degree of often passive-aggressive manipulation; second is their bias causes them to distort evidence against the accused; and finally — jurors don’t want to believe police are manipulative or that they’re not objective.

Now, in fairness… police think this way probably as a survival mechanism.  They see the underbelly of humanity and much of the time — their instinct and hunches are right about dealing with a scumbag more often than they are wrong.

What happens when the police go into “scumbag” mode and they’re not dealing with a scumbag?  They arrest people doing nothing wrong in Starbucks.  What is more likely than a national scandal is police hassling a young person, a non-conformist, or as all too often is the case, a minority for much longer than they’d deal with a soccer-mom from the suburbs.

Next time you see a story about police hassling someone for far too long remember they’re doing it because of their job pressures and because they’ve been triggered to go into their “scumbag” mode.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and is a licensed attorney by the State Bar of Texas.