The Nuts and Bolts of a Probation Revocation

August 21, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

I often get asked what people can expect when they think they could be facing a probation revocation.  I’ll try to answer that question in today’s discussion.

Here is how a probation revocation works from A to Z in Collin County where I practice:

Let’s say a person on probation upsets the probation officer, or fails a drug test, doesn’t report, commits a new offense, doesn’t report… etc., etc., etc., and now we think there could be a probation revocation.

The first thing that happens is that the Probation officer has a decision to make.  The probation officer has three basic choices.  They can (a) do nothing, (b) try to call the probationer into the office for agreed sanctions, or (c) recommend a full-blown revocation.

Believe it or not, but the probation officers often select option (a) depending on the nature of the violation, their caseload, and their prior relationship with the particular person on probation.  Technically a traffic ticket could trigger a revocation because it is “an offense against the state of Texas,” but I can’t say that I’ve ever seen a class c traffic offense ever alleged in a revocation proceeding.

Option (b) is a tricky option and is my least favorite as a criminal defense lawyer.  Frequently, probation officers will call the probationer into their office and threaten the person with telling the judge, jail, or who knows what — unless they voluntarily agree to modify their probation by agreement (virtually always without the assistance of a lawyer).  The problem with option (b) is that there is no fact-checking the probationer can do and the probation officer’s predictions of how future legal proceedings will go are very slanted… not to mention they’re going to ignore important rights you might have when giving you the doomsday scenario to scare you into agreeing to a longer probation or to spend a few weekends in jail.

Then there is option (c) — a full blown revocation.  Here’s how it works:  The probation officer drafts a “motion to revoke probation” or a “motion to adjudicate” if the person is on deferred probation.  The probation officer presents the motion to the District Attorney’s office who has final approval to file the motion with the court.  Once the D.A.’s office approves and files the revocation (and they virtually always do), then the Court will issue a warrant for the probationer’s arrest.

Once arrested on the revocation/ adjudication, the person is entitled to a bond on all misdemeanor offenses.  On felony revocations, a person is only entitled to a bond if they are on deferred adjudication.

After arrested, and hopefully released, the revocation proceeding goes to the original court where the person was placed on probation.  The State bears the burden of proving any and all allegations in the motion to revoke beyond a preponderance of evidence (not beyond all reasonable doubt) before the judge.  There is no right to a jury any longer once the person is on probation.

If the State meets their burden, or the defendant pleads “true” to the allegations, then the trial Court is empowered to sentence the defendant anywhere within the punishment range.  The Court also retains the right to continue the person on probation or deferred as the case may be.

For example, if the person is on probation for DWI with an underlying jail sentence of 90 days, then upon revocation a person could legally be sentenced to the 90 days of jail, but no more.  Again, the trial judge could also merely continue the defendant on probation while tacking on additional fines or other requirements.

There are several legal defenses to revocation, but truthfully most revocations come down to damage control.  From a criminal defense lawyer’s standpoint — defending a revocation or adjudication requires diligent skills in building a mitigation case and also the ability to successfully negotiate with the prosecuting attorney.

A good defense lawyer has to understand that every person is just a file to the assistant district attorney and the judge.  It is our job to get the prosecuting attorney to see the full picture.  Not just the picture the probation department wants them to see.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is designed to be legal advice.  For legal advice about any specific situation, you should contact an attorney directly.  Contacting the attorney through this blog does not create an attorney-client relationship and no content submitted through this blog is considered confidential.


Collin County Deferred Prosecution Program Update (8/20/2011)

August 20, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

It’s now been over eight months since the Collin County District Attorney’s office revamped, expanded, and improved the Deferred Prosecution Program.  The program is designed to allow people with clean criminal histories the opportunity to have an arrest fully expunged after completing a probation-like process with the Collin County probation department.

The program has taken some time to develop and have it’s kinks ironed out.  You can read my previous updates about the program here, here and here.

I have three observations/ updates to make since my last post about the topic in April.

First is that I seem to remember that many people admitted to the Deferred Prosecution Program (“DPP”) under the previous District Attorney administration were later removed from the program for trivial or debatable ‘violations.’  I have not heard such complaints about the new program.

Second is that the Collin County Community Supervision Department (probation) is extremely busy administering the program.  Once someone receives an interview for acceptance into the deferred prosecution program, it is not uncommon to experience a delay before the interview date.

Finally is that the Courts are cooperative with the program — but are struggling with how to treat the cases which pile up on their docket.  Most Courts are setting people’s cases who get accepted into the program for a ‘status’ six months to a year after the person is accepted into the program.  This just means you might actually have to check in with the court after you’ve completed the deferred prosecution program.

Also, the District Attorney’s office is becoming slightly more selective in choosing candidates for the program (Okay, that’s four points).  Multiple assistants district attorneys review each file before final approval, and approval is done on a case by case basis.  Also, they are open to hearing from Defendant’s lawyers as to why their clients should be admitted.

*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 situation, you should contact an attorney directly.


Criminal Credit or Debit Card Abuse

August 13, 2011

By Collin County Criminal Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

It’s not a crime to be irresponsible with your credit cards.  It is a crime to use someone else’s credit card without their consent.

Credit or debit card abuse is defined by Texas Penal Code 32.31 which holds, in part, beginning in subsection (b);

(b)  A person commits an offense if:

(1)  with intent to obtain a benefit fraudulently, he presents or uses a credit card or debit card with knowledge that:

(A)  the card, whether or not expired, has not been issued to him and is not used with the effective consent of the cardholder; or

(B)  the card has expired or has been revoked or cancelled;

The code lists out several other ways credit or debit card abuse can be committed other than just using someone else’s credit card.  Other examples include using fictitious credit cards, possessing someone else’s credit card without their consent with intent to use it, or buying or selling credit or debit cards (unless, of course, you are the issuer).  You can read the entire statute here to see the full list of violations.

Credit or debit card abuse is a state jail felony unless it is committed against someone over the age of 65, in which case it is a third degree felony.

*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 situation, you should contact an attorney directly.

 

 


Places You Can’t Carry a Firearm in Texas

August 7, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

Texas Penal Code 46.03 is titled, “Places Weapons Prohibited” and specifically lists the places you can’t carry a firearm under Texas law.

Though the most complete list with the entire text is provided in the link to the statute above, prohibited places include both public and private schools, polling places when voting is in progress, government offices, and secure areas of airports.

Other, less obvious places include racetracks and within 1,000 feet of premises designated by the Texas Department of Criminal justice on a day that a death sentence is to be imposed.

Currently, under Tex.Pen.C. 46.03(f), it is not an affirmative defense to these offenses if the person carries a concealed handgun pursuant to Subchapter H, Chapter 411 of the Government code.  Proposed amendments to this provision which would have allowed concealed weapons on college campuses failed during the recent Texas legislative session.

Offenses under this chapter are third degree felonies.

*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 as to any specific situation you should contact an attorney directly.


Why I LOVE the TV Show “Cops”

August 6, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

I love the TV show “Cops.”  I normally hate lawyer shows and courtroom shows, but for some reason when I’m flipping the channel and I see “Cops” on, I have to sit down and watch.

It took me a while to figure out my strange fascination with this show, but I think I’ve finally put my finger on it.  I love how it humanizes not only law enforcement, but the entire situation surrounding a patrol and an arrest in a way no other program can deliver.

We get to see the officers talk with the camera one-on-one, and we learn very quickly that some officers are human, down to Earth and are men of high integrity.  We also get to learn that others take themselves far too seriously, stretch their knowledge in areas to seem more experienced than they actually are and use gratuitous police jargon to impress the cameras.

The program obviously shows that police put their lives on the line to protect the public, and it shows some of the gritty conflicts they encounter — which frankly most of us go out of our way to avoid.  When it’s 2 in the morning and I hear something outside go “bump” in the night… no one is happier than I that someone is out there to protect me and my family if the situation arose.

The show has many situations where the issues are obvious and the suspect clearly guilty.  There are other situations, though, where you can the see officer making very human mistakes.  Group situations are common where the officers have to choose who they think is right.  It’s amazing to see that when an officer makes up his mind who is right or wrong… how virtually no fact or person can change their mind.  Police will interview multiple people with questionable stories, yet one goes away in handcuffs and the rest get handshakes.  The arrest is usually followed by a self-serving justification.

But here’s my favorite part of the show… and you rarely see this in real practice as a criminal defense lawyer (probably due to the bright lights and cameras of the show).  My favorite is after the arrested person is in handcuffs and in the back of the squad car, the officer gives the Defendant the obligatory patronizing lecture of how they can be a better person.

There are two reasons I really enjoy the obligatory lecture.  First is that it’s fascinating to me as to why an officer finds it necessary to lecture someone that is often clearly out of it.  Often the guy in the back seat of the car is either stoned out of their gourd, just had the snot beaten out of him, or was just hit with a stun gun by the police.  Why the officer feels the need to show the world he is superior to someone in this state is beyond me.

The second and main reason, though, that I like the obligatory lecture is that it displays a common element you run into as a criminal defense lawyer from police officers and even some prosecutors.  The ability to sit in judgment on another person with great ease without regard to one’s own faults.  Keep in mind that by this point in the show, we have seen the lecturing officer often improperly profile someone, use excessive force, or frequently manipulate someone that is scared or intimidated.

My final point about the show is it also demonstrates how they give lip-service to the presumption of innocence which they otherwise run rough-shod over.  I could spend hours on that alone, but I won’t bore you.

I hope my points make you watch the show in a different way next time regardless of whether you agree with my views and observations.  As always, these are healthy debates.

*Jeremy 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 situation you should contact an attorney directly.