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

www.rosenthalwadas.com

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

www.rosenthalwadas.com

(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

www.rosenthalwadas.com

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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Aggravated Assault with a Deadly Weapon

August 23, 2016

By Texas Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Believe it or not this arrest is more common than you might think.  The name of the charge alone has a shock and a stigma which often doesn’t match — because it is frequently the result of over-charging or a mis-understanding by law enforcement of what really happened.

Frequent Fact Scenarios for Aggravated Assault with a Deadly Weapon

It is common to see arguments or actual fights where someone is alleged to brandish a weapon or sometimes just an object charged as aggravated assault with a deadly weapon in Texas.  These might arise in domestic or family situations, road rage or road stalking situations, or even common altercations in public places like restaurants, bars, or even sporting events.

Sometimes aggravated assault with a deadly weapon can be filed where there is a serious bodily injury caused by the “deadly weapon” as well.  This might include someone getting pistol whipped or even hit with a car.

What is the Law about Aggravated Assault with a Deadly Weapon?

Aggravated Assault with a Deadly Weapon is defined by Texas Penal Code 22.02.  That provision provides,

(a) A person commits an offense if the person commits assault as defined in Sec. 22.01 and the person:

(1) causes serious bodily injury to another, including the person’s spouse; or

(2) uses or exhibits a deadly weapon during the commission of the assault.

Under 22.01, an assault can be committed several ways including where someone “intentionally or knowingly threatens another with imminent bodily injury”

So AADW is committed where someone threatens another with imminent bodily injury where they use or exhibit a deadly weapon… or where they actually cause serious bodily injury to another while they use or exhibit a deadly weapon.

Many aggravated assaults are merely assaults with serious bodily injury.

Why This Gets Over-Charged So Much

There are two reasons I see.

First is because prosecutors can label limitless things and objects as deadly weapons because the definition is broad.  Prosecutors frequently label obvious things such as knives, guns or hatchets ad deadly weapons but when they get more creative they can label things such as hands, cars, or coffee mugs as deadly weapons.  Taken to the logical extreme they could allege a twinkie is deadly weapon given the right set of facts.

Second is because they minimize the term “imminent” in the statute.  Imminent danger is defined by Black’s Law Dictionary in part as, “….immediate danger, such as must be Instantly met, such as cannot be guarded against It calling for the assistance of others or the protection of the law…”  It is not uncommon to see situations where police make an arrest based on the mere display of an object they consider a deadly weapon regardless of the surrounding circumstances or context.

In the defense of law enforcement — their standard to arrest is “probable cause” and if they encounter a situation where they think someone could be seriously hurt they often don’t have much choice but to take someone to jail for no other reason than prevent a catastrophic situation unlikely as it may be.

There are Defenses To Aggravated Assault with a Deadly Weapon

First and foremost — the state has to prove all charges beyond a reasonable doubt.  That’s not a given.  A criminal defense lawyer must dispute essential elements of the case however they can.

Also a person can use deadly force in certain situations.  Deadly force is defined in Texas as force that is intended or known by the person using it to cause death or serious bodily injury or force that in the manner of its use or intended use is capable of causing death or serious bodily injury.

Situations where deadly force may be used are listed in Texas Penal Code 9.32 .

More defenses are available for non-aggravated assaults because a person cannot use deadly force to defend themselves from non-deadly force and defense of property is far more limiting when it comes to deadly force.  Additionally a person cannot consent to aggravated assault as a matter of law though they could consent to assault causing bodily injury (such as an athletic event or a mutual fight).

The Bottom Line

Aggravated assault cases with deadly weapons can be winnable.  This is because they arise from so many different situations and the law allows prosecutors much leniency in how the cases are charged.  Just because a prosecutor thinks it’s a good idea to charge a case, however, doesn’t mean they’ll win.  Have a lawyer who knows how to handle these types of charges.

*Jeremy Rosenthal is an attorney licensed in Texas and is Board Certified in Criminal Law.  Nothing in this article is intended to be legal advice.  For legal advice about this or any other topic please contact an attorney directly.


What Should I Do if the Police Want to Question Me?

July 6, 2016

By Texas Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

http://www.rosenthalwadas.com

CALL ME FIRST!!!!

 

 

*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 situation you should contact a lawyer directly.  This forum and its contents are not subject to the attorney-client privilege.


Ex Parte Emergency Protective Orders — Q & A

June 29, 2016

By Texas Criminal Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

They Handed Me an Emergency Protective Order After an Arrest for Assault/ Family Violence between me and my loved one… What Does This Mean?

An Emergency Protective Order (“EPO”) is a broad and sweeping Order issued by a magistrate judge (often a city judge or justice of the peace) which restricts someone arrested for assault/ family violence from going various places and/or from communicating with various people.

An EPO can keep people out of their own house, keep them away from their family, and prevent them from communicating with family too.  Other provisions can include keeping the arrestee away from their kid’s schools and can order them not to possess firearms.

They can obviously be extremely disruptive and cause financial stress exacerbating existing problems and frustrating reconciliation.  They can be done “Ex Parte” which means with only the police or prosecutors present.  To be enforceable, though, the Defendant must be given notice.

I Don’t Understand What I can or Can’t Do Now?

Emergency Protective Orders are not “one size fits all.”  Several statutes cover them and most courts have cobbled together their own standard order incorporating some of the Statutory language.

If you have questions about them, it is best to run those questions by a lawyer so as to be sure not to violate the order.

How Do We Change This Order or Have the Judge Undo it?

The law provides the ability to modify or rescind the Order.  This is a very nuanced area of legal practice.  Once someone is arrested for domestic violence either for a misdemeanor or a felony they are a target for the police or prosecutors who have already made up their mind the Defendant is guilty.  By trying to “dig out of a hole” or “set the record straight” or even just to plead with the Judge to lift the order – a person can give law enforcement even more statements to twist or bend to fit their own narrative.

You should have an attorney file a motion to modify the EPO and get it set for a hearing as soon as you can.  At the hearing the attorney can help make sure the judge learns not only the facts of the case that aren’t in the police report but also help the judge understand how the Order is hurting everyone involved instead of helping.

What Happens if I Violate the Order?

Violation of a Protective Order is a Class A Misdemeanor so you obviously don’t want to do that.  Often the prosecution’s case for assault crumbles because the facts simply aren’t on their side — but they can often prosecute for a technical violation of a protective order and get their pound of flesh that way.

The Bottom Line

You need an attorney if you’ve been issued an EPO whether or not it is Ex Parte.  There will almost certainly be an ensuing criminal prosecution where your lawyer can formulate a plan to help put the entire situation behind you.

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


Texas Criminal Appeal Deadlines Chart

June 3, 2016

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

Here are some basic deadlines for filing criminal appeals in Texas.  As always, please refer to the Texas Rules of Appellate Procedure to resolve any questions.

Basic Appeal of a Final Judgement:

Without Motion for new trial, motion to modify, motion to reinstate, or request for findings of fact and conclusions of law filed:

Notice of appeal:  30 days (filed with the trial court)

Designation of clerk’s record:  30 days (filed with the trial court)

Designation of reporter’s record:  30 days (filed with the trial court with copy to reporter)

With Motion for new trial, motion to modify, motion to reinstate, or request for findings of fact and conclusions of law filed:

Post Judgment Motions: Due 30 days from Judgment (filed with Trial Court)

Request for Findings of Fact and Conclusions of Law:  Due 20 days (filed with Trial Court)

Notice of Appeal:  90 days (filed with Trial Court)

Designation of Clerk’s Record:  90 days (filed with trial court)

Designation of Reporter’s Record: 90 days (filed with Trial Court with Copy to Court Reporter)

All Basic Criminal Appeals Regardless of Motions Filed:

Appellant Brief (Defendant):  Due 30 days from the completion of the record

Appellee Brief (State):  Due 30 days after the Appellant’s brief submitted

Appellant reply Brief:  Due 20 days after Appellee brief submitted

Motion for rehearing:  Due 15 days after disposition

Petition for Discretionary Review:  Last ruling of Court of Appeals +30 days (filed with Court of Criminal Appeals).

 

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

 


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