Which Weapons are Illegal in Texas?

February 28, 2014

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

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

Often times people in possession of certain weapons don’t learn that possessing those weapons is an offense until they’re in handcuffs.  Depending on the weapon in question, the offense can be a Class A Misdemeanor or even a Felony.

Texas Code of Criminal Procedure 46.05 controls prohibited weapons, and that statute says in relevant part,

“(a)  A person commits an offense if he intentionally or knowingly possesses, manufactures, transports, repairs, or sells:

“(1)  an explosive weapon; (3rd degree felony)

“(2)  a machine gun; (3rd degree felony)

“(3)  a short-barrel firearm; (3rd degree felony)

“(4)  a firearm silencer; (3rd degree felony)

“(5)  a switchblade knife; (misdemeanor) (Repealed effective 9/1/2013).

“(6)  knuckles; (misdemeanor)

“(7)  armor-piercing ammunition; (3rd degree felony)

“(8)  a chemical dispensing device; or (3rd degree felony)

“(9)  a zip gun. (3rd degree felony)

“(b)  It is a defense to prosecution under this section that the actor’s conduct was incidental to the performance of official…

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Can a Marijuana Conviction in Texas Impact Financial Aid for College?

February 25, 2014

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

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.thecollincountylawyer.com

(972) 562-7549

Yes.  Here is a great article I found recently on the topic which discusses some of the far reaching collateral consequences of marijuana convictions all across the country.  Collateral consequences of convictions range from eligibility to be a foster or adoptive parent, gun ownership eligibility, or difficulty in receiving federal financial aid.

The article points out that under 20 U.S.C. 1091(r), a student that is convicted under federal or state law is not eligible for federal financial aid for 1 year for a first conviction, two years for a second conviction, or an indefinite period for a third conviction.

Keep in mind that under Texas law, deferred adjudication means that a person is not convicted.  Although, some federal agencies do not recognize deferred adjudication (such as in immigration proceedings for example).

Before accepting a deferred adjudication…

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How Do I Plead Guilty to a Criminal Charge?

February 19, 2014

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

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

I hate advising clients to plead guilty.

Hate it!

Some tough-guy lawyers will never admit to advising clients to plead guilty but every criminal defense lawyer I know will admit to not only advising clients to accept a deal but begging or pleading with a client on occaision.  Often the facts are stacked against you or the down-side of taking a case to trial is just too scary for the client.

There is no real difference between a guilty plea and a no-contest plea in Texas, so I’m referring to both in this blawg.

A guilty plea is like a contract in Texas.  Both you and the prosecution sacrifice and gain something by way of agreement (you usually sacrifice a lot more).  You are waiving your rights to trial and all that comes with it… the right to…

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How Important Is a Police Report in a Criminal Case?

February 18, 2014

By Collin County Criminal Defense Attorney Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

It depends on who is reading it.

Police reports are used for many different reasons.  Insurance companies use them to evaluate car accidents and both criminal and civil lawyers rely on them to prepare for cases.  In and of themselves, a police report typically isn’t admissible evidence in a court of law so they’re importance is often over-stated.  Prosecutors will generally review a report in deciding whether to pursue charges and what charges to pursue.

Combinations of Fact and Fiction

Most police reports in criminal cases are combinations of both fact and fiction.  While there are probably officers who are deceitful enough to fabricate facts in a report — my guess is not many officers are willing to jeopardize their career for the sake of a single arrest.

Instead police combine objective observations (such as the car was blue, the road was wet, or gun was loaded) with supposition, hyperbole and mild exaggeration.  Police will often take subjective observations and attempt to make them more objective in an effort to support their conclusion.

“In My Training and Experience”

Police officers commonly use the phrase “in my training and experience” both when they testify and when writing police reports.  This is a way of converting subjective supposition into objective fact — and it typically makes the defendant look guiltier.  Sometimes the officer actually has such experience and training and sometimes they don’t.

For instance, police are actually trained to detect marijuana through the distinctive odor.  Perhaps the police academy has ways of re-creating the odor chemically or they actually burn marijuana for training.  Also police in the field frequently encounter people smoking marijuana in parks or in cars so officers have enough exposure to marijuana to know the burnt odor.  When an officer says in his/her report they know the odor of marijuana “through their training and experience” this is generally an accurate statement.

On the other hand are examples where a person is reported to be “nervous.”  An officer might suggest in his report the defendant’s nervous demeanor meant he was in the process of selling drugs because “in (his) training and experience” drug dealers act nervous when they get pulled over.

Another example during a DWI arrest might be where the officer states the defendant leaned on the car for support while being questioned by police.  In the officers “training and experience” this is a clue of intoxication but probably just looks like someone with their butt against the car while being questioned.  Maybe the police academy gives training in these areas backed with scientific studies but probably it’s just something made-up in good faith to substantiate the officer’s opinion.

Who Uses the Police Report?

Prosecutors will review offense reports to see if they have the basic elements of each case covered.  Prosecutors typically don’t scrutinize police reports but in their defense it’s not really their job to do so.

…But I Don’t Agree with the Police Report

Most of my clients find reviewing a police report to be an agitating experience.  Both witnesses and defendants alike report they were mis-quoted or statements they did make were selectively included in the report.  A police report carries no actual legal weight other than it’s ability to persuade a prosecutor to move the case forward.  The time to contest the police report is at trial where the judge and the jury can learn the whole truth about what happened — not just the polished events described by the police.

*Jeremy Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article should be considered legal advice.  For legal advice about any situation you should contact an attorney directly.


Defending Burglary Charges

February 17, 2014

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

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.thecollincountylawyer.com

Texas Penal Code Section 30.02(a)(1) governs burglary.  That offense is committed where a person without the effective consent of the owner enters a habitation or a building (or any portion of a building not open to the public) with the intent to commit a felony, theft, or assault.

Burglary is a State Jail Felony if it is committed in a building other than a habitation, and is a 2nd degree felony if it is committed in a habitation.

While the statute may seem very air-tight on the surface, a bit of digging shows there are all sorts of potential legal issues with regards to what is or is not a burglary for any given set of circumstances.

An extremely difficult element for the State to prove in a burglary is identity if the defendant is arrested somewhere…

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Defending Injury to a Child Charges

February 14, 2014

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

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Being criminally charged with injury to a child can be Earth shattering.  

These cases come with all sorts of built-in hurdles such as self-ritcheous prosecutors or CPS members, complications from ongoing divorces, and a lack of understanding of someone being accused.  Aggressive and skillful representation is a must.

Tex.Pen.C. 22.04 is called, “Injury to a Child, Elderly Individual or Disabled Individual.”  That law states in relevant part,

“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 (defined as ‘bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ’);

“(2)  serious mental deficiency, impairment…

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Possession of Drug Paraphernalia

February 12, 2014

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Possession of Drug Paraphernalia in Texas is a Class C Misdemeanor punishable by fine of $500.  It is a lower charge than possession of marijuana (or anything else for that matter under Chapter 481 of the Texas Health & Safety Code), but the charge is completely harmless.  It still looks pretty bad on your record if you don’t deal with it properly.

Drug Paraphernalia is defined as “equipment, a product, or material that is used or intended for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, or concealing a controlled substance in violation of this chapter or in injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance…”

As you can see the definition is extremely broad and gives police and prosecutors tons of discretion in charging you.  Just because police or prosecutors decide something like a baggie or a clip of some sort is “paraphernalia” doesn’t mean a jury has to accept it.

Drug paraphernalia charges are often made in conjunction with other arrests for marijuana or cocaine.  Mishandling the paraphernalia charge can actually ruin your chances for expunction (or clearing your record) of the bigger charges.  Also, pleading guilty to paraphernalia can sour your ability to non-disclose a prior arrest even after you’ve successfully completed deferred adjudication.

Like drug cases, paraphernalia cases have common issues with search and seizure as swell as possession under 1.07(39) of the Penal Code being “actual care custody control or management.”

Ultimately paraphernalia cases have a good chance of being expungable but they do have to be handled with knowledge and skill.

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