Felony Pre-Trial Diversion in Collin County

February 17, 2017

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

The Collin County District Attorney’s Office unveiled their new Felony Pre-Trial Diversion Plan earlier this month.

What Is Pre-Trial Diversion?

Pre-Trial Diversion (PTD) is when you do an “informal” probation without pleading guilty.  The case is dismissed when you are finished and the Collin County District Attorney’s Office does not oppose a Petition for Expunction clearing your record entirely.

The diversion can last a year or more and typically includes customary probation requirements such as monthly reporting, random drug tests, classes, and community service.

PTD is considered for first-time arrestees and the previous program was far more wide-spread for misdemeanor charges such as theft or possession of marijuana.   Acceptance into PTD is predicated also on an arrestee admitting to the charge in writing (though not a plea of guilty.)

If the person in the program fails-out or does not complete diversion then their case goes back to Court where the person can still have a trial.

An important dynamic of Pre-Trial Diversion in Collin County is a participant’s inclusion is at the sole discretion of the D.A.’s office and the probation department which administers it.  This means they can refuse to admit you for a good reason, bad reason, or no reason whatsoever.

What is New with the Program?

PTD was really only for misdemeanors but some felonies qualified too.  Now the D.A.’s office has promised to review far more applicants for Felony PTD cases.

A joke I’ve told prosecutors in the past was, “The first pre-requisite for felony PTD is it can’t be a felony.”  This is to say though the D.A.’s office had previously accepted felonies into diversion — the cases accepted were as common as purple unicorns grazing on the highway.

One of the problems with the old felony PTD system, from my point of view, was the daunting layers of prosecutors who had to be convinced my client was deserving of another chance.

Prosecutors handle hundreds of cases a certain way throughout their career and when you want a specific case to be treated differently — it’s an uphill battle.  This is completely understandable but a challenge none the less.

The D.A.’s office seems very serious about expanding the program if nothing else.  They have created a web page for applications and dedicated a prosecutor to review all of the applications which shows they have very much centralized their plan.

How Do I Get In to the Collin County Felony PTD Program?

The procedure for qualifying for Felony PTD isn’t an easy one.  You must go to their web-page and fill out an online application which requires you to upload things such as letters of recommendation, your resume, and school transcripts.

DO NOT FILL OUT THEIR APPLICATION WITHOUT A LAWYER!

First of all you need to have been indicted by the Collin County Grand Jury with a felony to begin this process… that is you have to be formally charged with a felony first (not just on-bond after being released from a felony arrest).

Second, anything you upload is information law enforcement probably already does not have about you. Anything you say or upload has the potential to be used against you.

Additional advocacy and lobbying by attorneys for their clients applying to the program will be a key component of getting accepted into the program.

If they invite you to interview with the probation department directly then you’re in pretty good shape.  You and your lawyer will go over additional paper-work and discuss the interview process.

What We Don’t Know About Felony PTD Yet

There are still many unanswered questions.  We don’t know how they will treat certain cases and we don’t have much of an idea of what their acceptance rates will look like.  For example in misdemeanor cases we know they will not accept family violence cases or DWI cases for diversion.  There will undoubtedly be categories of cases they will not review simply based on the charge.

There will be much trial and error both on the D.A.’s side of the program and on the defense side which only time will resolve.  They will undoubtedly get applications they don’t know what to do with just the same as we are guessing at what they will and won’t accept.

We will have a much better idea exactly how their new, expanded program is working in time.

Until then play it safe and listen to your lawyer.

*Jeremy Rosenthal is an attorney licensed in the State of Texas and is Board Certified in Criminal Law.  Nothing in this article is intended to be legal advice.  For legal advice about any matter contact a lawyer directly.

 

 

 


When Teachers Have Sex With Students

February 8, 2017

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Texas criminalizes an “Improper Relationship Between Educator and Student” in Texas Penal Code 21.12.  It is a 2nd Degree Felony Carrying between a 2 and 20 year jail sentence upon conviction.

These cases tend to be news-worthy and create a loud splash every time they occur.  Along with the publicity come the humiliation, shame, and feelings of helplessness for the accused and their loved ones.

A Broad Dragnet of a Law

The central problem with the law is its breadth… this is to say its sweeping nature.

Think about it this way — Everyone agrees it would be reprehensible for a teacher (regardless of age) to have sexual contact in the classroom with a student they teach in the 4th grade. But what about if an 18 year old student (over the age of consent) has sexual relations with say a cafeteria worker, janitor, or even a teacher at a private residence — and the school employee has no regular supervision or contact with the student while at school?  In other words — sex between two consenting adults.

This statute is a dragnet which treats both instances the same.

A major distinction between the two scenarios is the abuse of the child under the age of 14 would be a separate offense of aggravated sexual assault of a child or indecency with a child and could still be prosecuted as such.  The latter would otherwise not be a crime at all but for Section 21.12.

How Courts Have Analyzed This Law

A round of cases after this law was passed actually challenged the constitutionality of the improper relationship between educator and student for this reason.  At least one trial Court found the statute to be facially unconstitutional before an appellate court reversed it.  See e.g. Ex Parte Morales, 212 S.W.3d 483, (Tex.App. — Austin, 2006).

In a recent case limiting the scope of the law, a Court of Appeals actually acquit a person originally convicted by a jury because as a police officer employed by the school district’s PD, he was not an “employee” of the school even though part of his responsibilities would have been to assist at the school if needed.  See State v. Sutton, 499 S.W.3d 434 (Tex.Crim.App.– 2016).

Defending These Charges

Defending charges of improper relationships between an educator and a student takes a lot of diligence and creativity.  Obviously if the sexual relationship and/or contact itself can be contested or challenged this should be done.  If the facts seem difficult then the attorney should be prepared to lodge more creative challenges.

The Sutton opinion demonstrates even the Court’s discomfort with how broadly this law can be applied – or misapplied.  If jurors share the same sentiment then challenging these cases in trial could yield positive results.

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

 

 


Can I Be Punished Worse if I Appeal My Case?

December 20, 2016

By Texas Criminal Defense Lawyer Jeremy Rosenthal

http://www.rosenthalwadas.com

(972) 369-0577

That isn’t supposed to happen.  It can only happen where there is evidence of misconduct AFTER the case has been appealed.

Public Policy

Think about it.  We want people to appeal cases.  Appealing trials and other rulings (in theory) promotes uniformity of proceedings, sharpens sometimes fuzzy rules, and corrects injustices.  Punishing people for appealing is contrary to betterment of the legal system so it is rightly shunned.

Won’t the Judge or Prosecutor Get Mad?

Possibly.  Everyone in America gets their paper graded.  Appellate Judges grade the trial Judge’s paper and correct them when they’re wrong.  No one likes being told they are wrong and Judges are certainly no exception.  Prosecutors might not like an appeal either because it means more work and in many instances they are being blamed for a trial not being fair.  But you can’t be afraid to hurt feelings and/or making people do their job when your livelihood is at stake.

Can the Judge or Prosecutor Retaliate Against Me for Appealing?

They can try.  When you appeal a case, however, the case goes to a different set of higher judges.  The case is out of the trial judge’s hands.  There is very little the trial judge can do unless the case is reversed and sent back… in which event you won.

If the case is reversed then there is clear guidance from the U.S. Supreme Court and the Texas Appeals Courts that the Judge cannot vindictively retaliate against someone because they were reversed on appeal.  See North Carolina v. Pearce, 395 U.S. 711 (1969) and Johnson v. State, 900 S.W.2d 475 (Tex.App. — Beaumont, 1995).

I’ve heard a prosecutor or two tauntingly invite an appeal so they can get an even higher punishment than was originally assessed over the years.  This just tells me they have never cracked a book to look at the rule.

Some judges will try to strong-arm a defendant out of an appeal through an aggressive appellate bond which has either a high dollar amount or onerous conditions.  This is a bond which suspends the imposition of a sentence while an appeal is pending… the bond DOES NOT have to be paid to appeal the case, however.  The bond only needs to be paid if the Defendant is seeking a delay in the imposition of the sentence.

Appealing a case is an important decision.  Don’t factor stiffer punishment or angering anyone in making your decision, however.

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

 


Will My Employer Find Out if I’m Arrested?

December 2, 2016

By Texas Criminal Defense Attorney Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

I get asked this a lot.  My guess is normally employers don’t find out but information is a hard thing to control.

Will the Police or Courts Notify My Work?

Rarely.  Most State and even Federal courts are inundated with case after case.  Usually your case is nothing special to them and they’ve got their own issues to deal with or worry about and there’s really no reason for them to go out of their way to hurt someone’s ability to make a living.  Plus they understand notifying an employer for any reason is — how should I say politely — “messed up” or “below the belt.”

What Are Situations Where Police or Courts Would Notify My Work?

One way work finds out is in cases where law enforcement really doesn’t like someone they will have them arrested at work.  Maybe they think it’s flashy or they feel entitled to humiliate someone.  This almost never happens on garden variety arrests for assault, DWI,  or theft.

Sometimes a Court could impose work related restrictions as a condition of bond or probation.  That could be related to driving company vehicles in a DWI case, or potentially limiting or monitoring travel in some felony cases.  Some sex cases might involve the accused not being able to work around children until the case is finalized.

Another rare reason might be someone from work could be called as a witness or by an investigator for some reason (assuming the criminal charge isn’t work related to begin with).

Your work could learn about the criminal case too due to absences for Court or because you find yourself in a funk where others around you are wondering what’s been eating at you.

What Will A Background Check Show?

In this information age, you should assume a background check will show your arrest and/or charges.  There is an error rate like with anything else and it’s not 100% your arrest will show up or be accurate.  But it’s best to be honest if you’re asked about an arrest.

Do I Have to Tell My Employer?

Read your company hand-book.

Texas is an at-will state for employment purposes so you can be hired, fired, promoted or demoted for good reasons, bad reasons or no reason at all.  This means you can be fired for not telling your employer if your hand-book says you must.  You can also be fired if you do tell work you were arrested, unfortunately.

My experience is with most charges employers take a “wait and see” attitude.  Many are actually extremely supportive.

Obviously I don’t know your employer as well as you do.  So disclosing an arrest is understandably a calculated gamble.

Expunctions and Non-Disclosures

See if you are eligible for an expunction or a non-disclosure when your case is over.  These can eliminate or lessen the amount of public information available about your case.

*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 advice about any situation you should contact a lawyer directly.

 

 


Can I Get Sued Because of A Criminal Case… Or Vice Versa… Can I Be Charged With a Crime because of a Civil Case?

November 30, 2016

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Today I’ll discuss a question I get from time to time in various forms:

  • “Can I also get sued even though I’m being criminally prosecuted?”

… and the same question in reverse,

  • “I’m getting sued right now (or being threatened with a lawsuit)… could they also criminally prosecute me?”

…another common one is,

  • “Can someone threaten me with criminal charges to get me to settle a civil dispute?”

Could Someone Being Criminally Prosecuted also be Sued?

Yes, but it’s very rare and comparing a criminal prosecution to a civil lawsuit is like comparing a knife fight to a pillow fight.  I might be more biased because I handle criminal cases but I tend to think they’re far more serious than civil cases — though civil cases can be thoroughly unpleasant too.

Most crimes where there is an accuser or victim involved can almost certainly trigger civil liability.  Civil causes of action are far easier to bring and are generally easier to prove-up (because they’re just trying to take your money and not your liberty — or so the theory goes).

Probably the most common scenario I see is a car accident case where DWI might be alleged.  Even that is mostly insurance companies duking out who will pay for what.

A criminal prosecution is often a ‘poor-man’s’ lawsuit.  Going to the police and making the prosecutor’s telephone ring off the hook is free.  Paying for your own lawyer to make someone else’s life miserable is a luxury.  Hence the rarity of seeing both a civil and a criminal prosecution.

Ultimately my instinct is defend the criminal case first and worry about civil liability second.  This is because of the severity of criminal prosecution and the punishments are simply not equivalent.

I’m Being Sued (or Threatened with a Lawsuit).  Could this Turn Criminal?

Again, very rarely.

While most crimes involving victims or accusers trigger criminal liability as well — the reverse is not nearly as true.  Civil causes of action are far more problematic to convert to criminal charges.  This is for all sorts of reasons… civil cases are often based in negligence, or misunderstandings, or questions about who pays for an unexpected loss.

Most parties in a civil proceeding have little, if any, interest in pursuing criminal actions.  Generally they just want whatever relief they think they might be entitled to.  That could be things such as money or an injunction of some sort.

Also, police are very reluctant to get involved in what they perceive to be a civil dispute.  They have enough to worry about and a complicated civil matter is often an easy “we can’t help you” situation.

Certain cases criminal value are extremely diminished when civil liability is sought first.  Think of a sexual assault case where the accuser first tries to get a settlement or sues the perpetrator before going to the police.  What might have been a solid case is now stained by questions about what could be the accuser’s real motive.

A normal exception would probably be certain white-collar cases where both victims have abundant resources and state or federal investigating agencies are interested due to the sheer amount or volume of a crime in question.  Again, though, keep in mind these are not your garden variety or every-day case.

Can Someone Threaten Criminal Prosecution To Get a Civil Settlement?

No.  That’s blackmail.  Think about it… “Pay me money or a I’ll go to the police.”  Generally lawyers or companies that make these types of threats word them extremely carefully.  They make it clear you are settling civil liability only.  Don’t get me wrong — they’re normally happy to let you think that by settling the civil case — you’re keeping a criminal matter “hush hush.”

While it’s okay to settle civil liability through a private settlement — no private party or entity can threaten criminal action nor waive the State or Government’s right to prosecute.

*Jeremy Rosenthal is licensed to practice law 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.

 

 

 


My Main Enemy: Cynicism

November 7, 2016

By Texas Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

Cynicism is defined by Miriam-Webster’s Dictionary as, “believing that people are generally selfish and dishonest,” or people are”selfish and dishonest in a way that shows no concern about treating other people fairly.”

I’m writing about cynicism today because it is the cancer from which our criminal justice system suffers most.  The cynicism I’m writing about today is all too often from law enforcement, probation officers, prosecutors, Judges, and even my own which I battle like everyone else.

When I talk to clients, I describe cynicism as a “headwind” which makes our fight tougher than it might appear.  On a DWI, for example, I tell people everyone in the Courthouse will treat you like an alcoholic even if you had your first drink of alcohol the night you were arrested.

World Views

Everyone has their own world view – especially related to their job.  I understand everything I see and experience through my practice shapes my view of how people are and the world around me.  When dealing with people, it is important to know how their every-day job and life experiences shape their views.

As an example, I remember being a waiter during college and falling into the mental trap of occasionally judging people based on how they tipped.  I knew in the back of my mind then — as I am sure today — the judgments I was making were of only an ever-so-thin slice of my experience with a person.  A big tipper might otherwise be a total jerk.  A bad tipper may be a great mother, father or neighbor who just wasn’t carrying as much cash as they thought they were going to need that day.

I feel lucky to meet with people who need help when they come see me.  So I tend to see people and their families when they are reticent, respectful and often in desperate search of hope and guidance.  My view of “the system” then, is someone charged with a crime is vulnerable and in great need of counsel and support.

But I know not everyone sees it that way.

World Views of Those in the Criminal Justice System

I have to remind myself the people dealing with my clients only get a thin slice of them.  To some police my client might be just the crime they were accused of instead of a person.  To some prosecutors my client might just be another file.  To some judges my client might just be another schmo needing mercy.  Many of these professionals can allow cynicism to get the better of them.  Everything they hear and see can be a lame excuse.

Fighting Cynicism

Fighting the pre-existing views of someone can not only be daunting but sometimes downright impossible.  Think of how impossible it can be to change someone’s political, religious or even sports opinions.  Instead of attacking the cynicism head on (and losing), it’s often the better play to incorporate the strengths of our arguments into what the prosecutor or judge already believes.

An example might be showing a prosecutor who is convinced everyone charged with certain crimes are drug addicts my client is clean and has a plan to stay clean.  This out-flanks the opponent and takes away all the oxygen from their fire.  If they’re still going to be mad at the accused then they could be exposed as being unreasonable to a Judge or Jury.

Sometimes the cynicism we are dealing with is too great.  No matter what I say or do I can’t convince someone “who knows it all” otherwise.  Sometimes we have to fight in court and see what a jury thinks.   Even if the prosecutor and judge don’t get it — a Jury still can.

My Cynicism

Did you catch it?  I have to remind myself that even though others I deal with might disagree with me… or seem to know it all… I have to carefully listen and be mindful of their point of view before I get cynical about their views.

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

 

 


“My Lawyer Changed His Tune”

October 28, 2016

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

My favorite thing to be able to do in my practice is give great news and if I can’t do that — then at least folks can leave my office with hope and optimism.  Giving great news, giving people hope and a reason to feel optimistic has to be honest, realistic or based in fact or it’s destructive.

I hear “my last lawyer changed his tune” a lot when I talk with people who either are getting a second opinion about their case or from someone (or their family) who had a bad experience in the legal system.

They tell me their lawyer was really excited at the onset of their case about the prospects for getting a case dismissed, acquitted or charges reduced.  At some point later, the lawyer’s attitude and demeanor seemed to change and all the news turns bad.  Instead of gallantly fighting — the lawyer is insisting the client plead guilty.

I’m always disappointed to hear this and it does make me reflect a bit about what really went on.  I do my best to understand not only from the client’s side but also the lawyer’s side.

Here are some of the reasons this is a recurring problem in my view:

The Lawyer is Afraid of the Courtroom or is Risk Averse

Some lawyers are simply intimidated by the prosecution, by juries, or even by certain judges.  They give you a very rosy outlook in the comfortable confines of their conference room, but when the lights get bright or when the prosecutor begins to gnash their teeth —  they wilt.

Other lawyers are afraid of risks.  Trial is to lawyers what surgery is to doctors.  Some always err on the side of playing it safe.

Risk is a part of the practice of law, in my view.  Often my clients are less risk averse than I am and other times they want to take risks I try to talk them out of!  There are times when a lawyer has to firmly let the client know the risk must be taken.  Some lawyers can’t do that.

The Lawyer is Inexperienced

Inexperienced lawyers make a handful of mistakes.  First, they fail to see the downside to a case when it walks in the door.  When they hear the facts of what happen — they often see great issues but their lack of experience may fail to see how certain issues tend to collapse or be more difficult to handle than they originally thought.  They also lack the experience to foresee other developments which might change their outlook on the case.

Some lawyers really do get excited about your case but their mis-evaluation of it causes them to change course which is difficult to understand and can be confounding to the client.

The Lawyer Fails to Set Proper Expectations

Some lawyers do see the pitfalls in your case but over-promise in hopes of getting business.  This invariably backfires because when the case does become difficult, the lawyer is forced to retreat from their earlier optimism without any real reason.

The experienced lawyer knows hard truths up front equal a satisfied client at the end of the case.  My hope is my client understands that I’ll fight as hard as I can for them regardless of whether my outlook is rosy or bleak at the onset.

 

Sometimes the Case Really Does Change for the Worse

Every case is it’s own snowflake… unique and distinguishable from anything and everything else.  The more and more cases I handle, the less unpredictable developments happen.  But unpredictable developments do happen even in the most common types of cases.  New and unforeseen facts can arise about an existing case or things unknown to me about my client’s past can crop up and present a bigger hurdle than originally considered, or sometimes just a change in prosecutor can throw things for a loop.

What Your Lawyer Should Have Done…

Lawyers can avoid “changing tune” in the middle of the case by setting a realistic tone from the outset.  This is a function of experience of knowing the variables to come in the case and how they typically break, having the discipline to “tell it like it is” to the client up front and temper optimism with appropriate caution, and to show the proper follow-through with risk associated with the case.

I hope this helps anyone in this predicament understand.

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