Does the Fact I’ve Never Been In Trouble Before Mean Anything?

October 26, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

One of the most common questions that I am asked is whether the countless years or decades of a clean-record counts for anything at trial.  The good news is that it does but theres lots to consider.

Texas rule of evidence 404 is a rule which discusses when character evidence is relevant, what limitations are on the types of character evidence may be admitted, and when character evidence may be appropriate.

Generally evidence of “a persons” character is not admissible at all to prove conformity therewith on a particular occasion.  The exceptions, though, tend to swallow the rule.

Tex.R.Evid. 401(a)(1)(A) allows the defense to proffer character evidence of the accused in a criminal case.  The same rule allows the prosecution to attack that character evidence if the defense “opens the door” by injecting character as an issue.

Remember — there are two possible phases to a criminal trial.  Guilt/Innocence and punishment.  Character evidence is wide-open in the punishment part of a trial.  I’m really focusing this article on the trickier part — guilt/innocence.

From a trial lawyers standpoint — proving up good character in the guilt innocence phase is always trickier than it may seem.  Remember that courts only allow evidence through the formal rules which means that good character will almost always have to be proven through a live witness of some sort.  That witness will be subjected to cross-examination… and depending on the facts, your trial attorney will have to do a cost-benefit analysis of whether it is worthwhile to prove-up character in light of the potential cost.

Let’s take a DWI case for example.  Let’s say that a person who was out that evening with the accused would testify that the defendant always calls a taxi if they thought they had too much to drink.  But let’s also say that person drank so much on the night in question himself that he doesn’t remember how much the accused had to drink.  That witness may add value to the case through his positive testimony about the defendant’s traits — but could ultimately hurt the case over-all in light of what he would reveal on cross-examination.

These are they types of decisions experienced criminal defense lawyers, dwi lawyers and dui lawyers must make on a routine basis.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  For legal advice you should directly consult an attorney about any legal issue.

How to Get Your Minor Son/ Daughter Out of Jail

October 22, 2010

By Dallas and Collin County Criminal Lawyer Jeremy Rosenthal

(972) 562-7549

The juvenile arrest system works differently than the adult arrest system in Texas.  Texas Family Code Chapters 53 and 54 govern juvenile detention proceedings.

In the adult system a person arrested sees a magistrate judge that sets a bond amount.  Once the bond is paid, the person is released.  Very simple.  With teenagers under 17 years old the process is much different and more difficult in many ways.

When a juvenile is arrested, they must be brought for a “juvenile detention hearing” within 2 business days of the arrest.  If the arrest is on a Friday or a Saturday, then the detention hearing is on the following Monday.

A juvenile detention hearing is an informal proceeding before a district judge or, if waived, before a master (an associate judge).  The State must prove just one of five elements to determine whether the teen needs to be incarcerated for an additional 10 business days under Texas Family Code 54.01(e) 1-5:

(1)  he is likely to abscond or be removed from the jurisdiction of the court;

(2)  suitable supervision, care, or protection for him is not being provided by a parent, guardian, custodian, or other person;

(3)  he has no parent, guardian, custodian, or other person able to return him to the court when required;

(4)  he may be dangerous to himself or may threaten the safety of the public if released;  or

(5)  he has previously been found to be a delinquent child or has previously been convicted of a penal offense punishable by a term in jail or prison and is likely to commit an offense if released.

In Collin County, your juvenile will have the opportunity to be represented by counsel.  A lawyer can assist your minor in securing a release during the pendency of the case.  It is important to act immediately if you have a juvenile or teen that gets arrested and is posed with a detention hearing.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  For legal advice about any specific case you should consult an attorney directly.

“DWI Lite”

October 19, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

Here’s an interesting commentary on a new proposal that may make it’s way to Austin next year.  The concept, dubbed by the media  “DWI Lite,” basically criminalizes driving with even less alcohol in your system than what would normally be a DWI.  They call it between 0.05 and 0.08 bac.

Of course they don’t have admissible breath tests on the side of the road which will mean that an officer can arrest virtually anyone that has alcohol on their breath.  And I’m curious to know… are there studies out there that suggest that the dangerous drivers are the ones between 0.05 and 0.08?  I truly don’t know if there is or if there isn’t, but it seems to me that the legislature could be “cracking-down” for the sake of… well… cracking-down.

Also what is ironic to me is that if you hear prosecutors during jury selection, examining witnesses, and during jury argument — they’re good at convincing people that 2 beers = drunk driver as it is.  The legal standard is, “not having the normal use of your mental or physical faculties” and they’ve argued for years that even the slightest loss of mental or physical coordination means someone is guilty.  By my logic, wouldn’t that make this new idea for “DWI Lite” redundant?

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  For legal advice on an specific matter you should directly consult an attorney.


Probation Revocations

October 15, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy F. Rosenthal

(972) 562-7549

A probation revocation in Texas is a post-judgment motion filed by the State alleging that the defendant in a criminal case violated some term or condition of probation (technically called “community supervision”).  If the State is seeking to convict after Deferred Adjudication, that procedure is called a “motion to adjudicate” and acts very similarly under the law.

There is extremely detailed law in the area of probation revocations, but it can be summarized as follows:

1.  The State usually makes a handful of allegations as to different violations;

2.  The Defendant no longer has the right to a trial by jury of the underlying facts of the original case — and the judge will be the sole decider of the facts in the revocation.

3.  You cannot be legally revoked for inability to pay alone.

4.  The Defendant has the right to plead “true” or “not true” to the allegations.

5.  If the Defendant pleads “not true,” the State only needs to prove a probation violation by a pre-ponderance of the evidence and not by proof beyond all reasonable doubt for the Judge to grant the motion to revoke.

6.  If the Judge grants the motion to revoke, he can sentence the defendant up to the maximum underlying jail sentence in the case.  (For example, if an accused plead guilty to a DWI a year prior to revocation and agreed to a 90-day suspended sentence, then upon revocation, the Judge can jail the defendant up to 90-days.)  The judge can also take no action, or can extend probation adding additional terms and conditions.

7.  If the judge grants a motion to adjudicate, then he can sentence the accused to a period of jail anywhere within the original punishment range for an offense.  This is what makes deferred adjudication particularly precarious on felony offenses.  For example, if  a defendant had deferred on a 2nd degree felony — and they violate deferred (even if they were nearly complete), they’re still facing possibly 20 years of prison!

8.  If the defendant pleads true, they essentially throw themselves on the mercy of the Court.  Some judges accept agreements on revocations, but unlike an original plea bargain — a deal with the prosecution is not binding on the Court.  Most courts have their own policies on revocation deals between the defense and the prosecution.

Dealing with motions to revoke require an experienced defense attorney.  There is a lot at stake!

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice.  For specific legal advice, you should directly consult an attorney.

Jury Trials vs. Judge Trials

October 14, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy F. Rosenthal

(972) 562-7549

Here is the equation as to how any criminal trial in Texas works.  The proper law + the facts = the verdict.

Judges always determine the appropriate law to apply.  Then the facts are applied to the law to reach the verdict.  A jury determines the facts, but if both parties agree — then the judge can determine the facts instead.  The latter is a known as a “bench trial” or “trial by Court” which is commonly known as a “TBC” in the courthouse.

The U.S. Constitution guarantees a criminal defendant a right by jury trial.  Generally speaking its the defendant’s choice whether to choose a judge or a jury.  Texas prosecutors have recently asserted that the State of Texas also has a right to a jury trial as well… and therefore, they argue, that the only way the parties can have a TBC is by agreement.  Their assertion is largely unchallenged even though it’s legally unclear.  Practically speaking, then, both parties agree to waive a jury.

Here’s a practical example of how a jury trial works — in an assault case where the defendant claims self-defense, the Judge will conduct the trial, impanel the jury, and decides what evidence is legally admissible.  Once the evidence is concluded, the judge will decide (1) if the evidence legally sufficient to support a conviction; (2) if the defendant legally raised self-defense; and (3) what jury instructions to give so that the jury understands how to decide the facts.  The jury then deliberates and reaches their verdict based on the jury charge.

For a TBC, the Judge merely listens to all the evidence, rules on objections, and then renders a verdict — often without much deliberation.

There are tons of variables to consider if you’re presented with the option of waiving a jury and asking a judge to decide the case.  The Judge’s history and reputation and obviously the strength of the case must be considered and weighed against the local jury pool.

Judges prefer TBC’s because they’re far more efficient than jury trials.  They’re far quicker, generally less formal, and don’t involve having to manage a jury pool.  Just because judge prefer it, though, doesn’t make it the right choice.

After all, a criminal defense lawyer isn’t in the rights waiving business!

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  For legal advice about any case you should consult an attorney directly.


If You’re Under Investigation for Injury to a Child

October 13, 2010

By Dallas and Collin County Criminal Defense Attorney Jeremy F. Rosenthal

(972) 562-7549

Child abuse allegations are extremely serious in nature.

Texas law takes these matters so seriously that we are all charged with an affirmative duty in Texas of reporting any abuse or neglect of a child to the authorities.  This duty even cuts through the attorney-client relationship.

It is extremely common for law enforcement, either a local police agency or Child Protective Services (CPS) to conduct investigations of child abuse or endangerment — without trying to ‘tip off’ the accused that he’s being investigated for a felony.  What may seem like an innocuous request to have an in-person interview, may be a back-handed attempt to get a confession.  If you have any question about why you’ve been contacted for an investigation you should speak with a lawyer immediately.

The law surrounding child abuse allegations in Texas are extremely complex and if you’re accused, you shouldn’t attempt to navigate these waters alone.  Child abuse can be either a crime where someone is alleged to have acted “intentionally” or “knowingly” or it can be what is known as an “inchoate” crime which is a crime of omission — or failing to act.

For starters, “Injury to a Child” is defined by Texas Penal Code 22.04 which says,

(a)  A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or intentionally, knowingly, or recklessly by omission, causes to a child, elderly individual, or disabled individual:

(1)  serious bodily injury;

(2)  serious mental deficiency, impairment, or injury; or

(3)  bodily injury.

There are affirmative defenses under this statute, however:

Penal Code 9.61 governs the parent-child relationship and says, “(a)  The use of force, but not deadly force, against a child younger than 18 years is justified:

“(1)  if the actor is the child’s parent or stepparent or is acting in loco parentis to the child; and

“(2)  when and to the degree the actor reasonably believes the force is necessary to discipline the child or to safeguard or promote his welfare.

“(b)  For purposes of this section, “in loco parentis” includes grandparent and guardian, any person acting by, through, or under the direction of a court with jurisdiction over the child, and anyone who has express or implied consent of the parent or parents.

Teachers are also provided an affirmative defense in some situations under Section 9.62:

“The use of force, but not deadly force, against a person is justified:

“(1)  if the actor is entrusted with the care, supervision, or administration of the person for a special purpose; and

“(2)  when and to the degree the actor reasonably believes the force is necessary to further the special purpose or to maintain discipline in a group.

Again, law surrounding injury to a child is extremely complicated and the stakes are very high.  By handling things on your own or simply trusting investigators that have contacted you — you are taking a huge gamble with your future!

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  For specific legal advice you should contact an attorney directly.  Contacting Jeremy F. Rosenthal through this blog does not create an attorney-client relationship and that contact is not considered privileged or confidential in any way.




Sale of Alcohol to Minors

October 3, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy F. Rosenthal

(972) 562-7549

These cases are often the results of stings by police and law enforcement on bars, restaurants and stores.  Texas Alcoholic Beverage Code Section 106.03 governs sale of alcohol to minors.  That provision states,

“(a)  A person commits an offense if with criminal negligence he sells an alcoholic beverage to a minor.

“(b)  A person who sells a minor an alcoholic beverage does not commit an offense if the minor falsely represents himself to be 21 years old or older by displaying an apparently valid proof of identification that contains a physical description and photograph consistent with the minor’s appearance, purports to establish that the minor is 21 years of age or older, and was issued by a governmental agency.  The proof of identification may include a driver’s license or identification card issued by the Department of Public Safety, a passport, or a military identification card.

“(c)  An offense under this section is a Class A misdemeanor.

“(d)  Subsection (b) does not apply to a person who accesses electronically readable information under Section 109.61 that identifies a driver’s license or identification certificate as invalid.

There are two main points I’d like to make about this statute.  First, is that the inclusion of criminal negligence (which I’ve italicized above) as a mental state for this offense.  Criminal negligence is the lowest (or most easily proved) culpable mental state in Texas law.  And under Texas Penal Code 6.02(e), if the prosecution proves actual intent, knowledge, or even recklessness — then they’ve proved “criminal negligence” as well.

A person acts with criminal negligence with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur.

Proving someone acted with “criminal negligence” is highly confusing in these types of prosecutions because courts generally won’t give a jury any more guidance as to it’s definition than I just did above.

Additionally, the statute essentially gives an out to persons that sell alcohol to minors under subsection (b) — as it is a defense to prosecution if the person who presented the identification did so with an “apparently valid” form of identification.  But if the person has a way to electronically verify the information then the affirmative defense doesn’t apply no matter how good the fake i.d. was.

The sale of alcohol to minors is a Class A misdemeanor which puts it above DWI’s or possession of small amounts of marijuana.  It’s punishable by up to a year jail and a fine not to exceed $4,000.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  For any legal advice you should consult an attorney directly.