A Prosecutor’s Duty to Seek Justice

September 30, 2013

Criminal Defense Lawyer | DWI, Drug, Theft & Assault Charges

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

A prosecutor has a statutory duty to seek justice.  Unfortunately, the prosecutor — not you — is the one who gets to define what that means.

Texas Code of Criminal Procedure Section 2.01 says in relevent part, “It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.”

This statute is a crucial safeguard in the criminal justice system which should not be diminished nor ignored.  This provision is highly subjective and can be very frustrating… as a defendant’s remedy for the prosecutor’s breach of this duty may not equal the great harm the prosecutor has inflicted.

The main frustration in the everyday practice of criminal defense law is that…

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Don’t Plead Guilty to Theft If All You Did was Really Bounce a Check

September 19, 2013

Criminal Defense Lawyer | DWI, Drug, Theft & Assault Charges

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Theft by check is governed by Texas Penal Code 31.03(e).  Issuance of a bad check (“IBC”), is controlled by section 32.41.  The differences are simple, but major — one charge is like any other theft charge, and the other is simply writing a bad check.  Most theft by check charges are class b misdemeanors or above ($20 to $500 are class b misdemeanors) while an IBC charge is a class c misdemeanor — the lowest level of offense in Texas.

Theft is a crime of moral turpitude while IBC is not.  Further, class b misdemeanors are more difficult to have expunged than class c misdemeanors.

Theft in Texas is simply defined when a person, “…unlawfully appropriates property with intent to deprive the owner of property.”  A Theft by check is merely a theft where the check was the…

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Deferred Adjudication

September 16, 2013

Criminal Defense Lawyer | DWI, Drug, Theft & Assault Charges

By Collin County Criminal Attorney Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Deferred adjudication in Texas is where a person charged with an offense pleads guilty or no contest and rather than being found guilty, the judge defers a finding of guilty while the accused is placed on what amounts to probation.

If the person successfully completes deferred, they are never “convicted” of the offense.  Most people are familiar with deferred because of a traffic offense or another class c misdemeanor.  Most class c deferred adjudications do make you eligible for expunction.  You are not eligible for expunction for class b misdemeanors or above in Texas, meaning your criminal record will never be completely erased.  You may be eligible for a petition for non-disclosure which is much different.

It is a dangerous, dangerous, assumption for anyone to make that if they plead guilty and accept deferred that the case merely vanishes…

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What is a Motion to Suppress?

September 10, 2013

Criminal Defense Lawyer | DWI, Drug, Theft & Assault Charges

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.thecollincountylawyer.com

(972) 369-0577

A criminal defendant can challenge the legality of a detention, a search, seizure or other police tactic which resulted in law enforcement attaining evidence.  If the action is held to be illegal, the evidence is excluded (or suppressed) at trial.

Depending on the facts of any specific case, the suppression of evidence may mean the State’s evidence at trial will be insufficient to sustain a conviction — or it may only eliminate the jury considering damaging evidence during the trial.

Texas Code of Criminal Procedure 38.23 says in relevant part, “No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any…

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Will Assault Charges be Dropped if the Accuser Doesn’t Want to Prosecute?

September 4, 2013

Criminal Defense Lawyer | DWI, Drug, Theft & Assault Charges

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.thecollincountylawyer.com

(972) 369-0577

Possibly, but it mainly depends on the prosecutor.

A criminal assault or family violence charge in Texas is a proceeding between the State of Texas and the accused.  The accuser is mainly treated as a witness.  The decision to prosecute is squarely on the prosecuting attorney.

This is typically a policy driven area with prosecutors.  District and County Attorneys are elected officials in Texas and none want to look weak on this sort of matter.

Affidavits of Non-Prosecution

Many criminal defense attorneys or prosecutors ask that alleged victims that wish to drop charges fill out an “affidavit of non-prosecution.”  That is a statement under oath which gives the alleged victims reasons for not wanting to prosecute.  An affidavit of non-prosecution does not bind the prosecutor or the judge to dismiss the case.

If the accuser is considering filing an…

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There’s No Such Thing as a Minor Family Assault Charge

September 3, 2013

Criminal Defense Lawyer | DWI, Drug, Theft & Assault Charges

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.thecollincountylawyer.com

(972) 369-0577

Domestic or family violence charges in Texas range from class c misdemeanors (the same level as a minor traffic offense), to felonies in other circumstances.  The fact that some are charged as class c’s doesn’t diminish their importance and can act as a trap door.

A class c assault occurs where there is unwelcome offensive or provocative contact.  The state does not need to prove the victim suffered any pain or discomfort whatsoever.  They appear deceptively insignificant because they can be charged in smaller municipal courts and before justices of the peace where the rules are less formal and far fewer people have lawyers.

In class c domestic violence cases, the prosecution may try and add a small enhancement paragraph to the charge known as “an affirmative finding of family violence” under Texas Code of Criminal Procedure 42.013 and…

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