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.

 


Why We Defend Sex Crime Allegations

June 3, 2016

By Collin County Criminal Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

We defend sex cases because injustice turns our stomachs.

Everyone feels the need to protect the innocent and vulnerable victims of sex crimes.  Who doesn’t feel like running through a wall to protect someone from such an atrocity?  But those strong emotions can easily go out of balance and out of whack and can ultimately blind us to the fundamental issue of whether the allegation is true to begin with.

Sex crime allegations have the possibility to be emotionally fueled rather than factually fueled more than practically any other crime – especially if a child is alleged to be the victim.  As a result it there is a potential for life-alterning unfairness.

Many sex crime allegations lack fundamental physical evidence you might see in a drug case, dwi case, or an assault case.  It makes sex cases harder to prove — and much, much harder to defend.  In addition, law enforcement are highly polished in how they present evidence and are able to spin neutral facts or facts in the accused favor against the accused.

Our clients and their families constantly ask us how or why law enforcement is so selective about the facts they choose to believe, why they are deaf to facts which contradict what they believe, and why they reject logic inconsistent with what they believe.  The answer is more simple than we’d like.  It isn’t because they’re bad people… It is because they’ve made up their mind.

Debating them about the facts can be like trying to convince someone they’re wrong about religion, politics or their favorite football team.  It’s not going to work often.  But the good news is we still live in America – and the police don’t get the ultimate decision on whether you or your loved one is guilty.

Fighting injustice to a jury is a hard thing to do.  It takes hard work, attention to detail, and mastering the facts better than your opponent.

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


Handling Appeals Statewide

June 3, 2016

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

Our office is in McKinney, Texas, but with the advent of efiling throughout the State of Texas, any lawyer can handle an appeal in any part of the State.

Efiling is a system where legal documents, pleadings and briefs of both the prosecutor and the defense can be submitted online.  Efiling is now available in all 254 counties in the State of Texas. Additionally we can review the record of any trial or legal proceeding because those transcripts can be emailed to us.

We can handle an appeal in any area of the state regardless of the cases length or complexity.  This allows us to help for cases where you might not be able to find an attorney willing to help you depending on where in Texas a  criminal trial was held.

Do We Need to Come To Where the Trial Was?

We may need to make a trip or two to the county where the trial was.  This could be to investigate certain facts of the case which may have been over-looked, or for brief hearings or to meet with essential parties.  We will need to come to the Court of Appeals in your district if the case is granted Oral Argument before the appeals court.

Why Rosenthal & Wadas for a Criminal Appeal?

We are a large Criminal Defense firm and there aren’t many firms like us around.  We have the resources to use a collaborative effort to have multiple lawyers assist on an appeal and we have more Board Certified Lawyers than any other Criminal Defense firm in Collin County.

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

 


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