Can I Be Punished Worse if I Appeal My Case?

December 20, 2016

By Texas Criminal Defense Lawyer Jeremy Rosenthal

http://www.rosenthalwadas.com

(972) 369-0577

That isn’t supposed to happen.  It can only happen where there is evidence of misconduct AFTER the case has been appealed.

Public Policy

Think about it.  We want people to appeal cases.  Appealing trials and other rulings (in theory) promotes uniformity of proceedings, sharpens sometimes fuzzy rules, and corrects injustices.  Punishing people for appealing is contrary to betterment of the legal system so it is rightly shunned.

Won’t the Judge or Prosecutor Get Mad?

Possibly.  Everyone in America gets their paper graded.  Appellate Judges grade the trial Judge’s paper and correct them when they’re wrong.  No one likes being told they are wrong and Judges are certainly no exception.  Prosecutors might not like an appeal either because it means more work and in many instances they are being blamed for a trial not being fair.  But you can’t be afraid to hurt feelings and/or making people do their job when your livelihood is at stake.

Can the Judge or Prosecutor Retaliate Against Me for Appealing?

They can try.  When you appeal a case, however, the case goes to a different set of higher judges.  The case is out of the trial judge’s hands.  There is very little the trial judge can do unless the case is reversed and sent back… in which event you won.

If the case is reversed then there is clear guidance from the U.S. Supreme Court and the Texas Appeals Courts that the Judge cannot vindictively retaliate against someone because they were reversed on appeal.  See North Carolina v. Pearce, 395 U.S. 711 (1969) and Johnson v. State, 900 S.W.2d 475 (Tex.App. — Beaumont, 1995).

I’ve heard a prosecutor or two tauntingly invite an appeal so they can get an even higher punishment than was originally assessed over the years.  This just tells me they have never cracked a book to look at the rule.

Some judges will try to strong-arm a defendant out of an appeal through an aggressive appellate bond which has either a high dollar amount or onerous conditions.  This is a bond which suspends the imposition of a sentence while an appeal is pending… the bond DOES NOT have to be paid to appeal the case, however.  The bond only needs to be paid if the Defendant is seeking a delay in the imposition of the sentence.

Appealing a case is an important decision.  Don’t factor stiffer punishment or angering anyone in making your decision, however.

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

 


Will My Employer Find Out if I’m Arrested?

December 2, 2016

By Texas Criminal Defense Attorney Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

I get asked this a lot.  My guess is normally employers don’t find out but information is a hard thing to control.

Will the Police or Courts Notify My Work?

Rarely.  Most State and even Federal courts are inundated with case after case.  Usually your case is nothing special to them and they’ve got their own issues to deal with or worry about and there’s really no reason for them to go out of their way to hurt someone’s ability to make a living.  Plus they understand notifying an employer for any reason is — how should I say politely — “messed up” or “below the belt.”

What Are Situations Where Police or Courts Would Notify My Work?

One way work finds out is in cases where law enforcement really doesn’t like someone they will have them arrested at work.  Maybe they think it’s flashy or they feel entitled to humiliate someone.  This almost never happens on garden variety arrests for assault, DWI,  or theft.

Sometimes a Court could impose work related restrictions as a condition of bond or probation.  That could be related to driving company vehicles in a DWI case, or potentially limiting or monitoring travel in some felony cases.  Some sex cases might involve the accused not being able to work around children until the case is finalized.

Another rare reason might be someone from work could be called as a witness or by an investigator for some reason (assuming the criminal charge isn’t work related to begin with).

Your work could learn about the criminal case too due to absences for Court or because you find yourself in a funk where others around you are wondering what’s been eating at you.

What Will A Background Check Show?

In this information age, you should assume a background check will show your arrest and/or charges.  There is an error rate like with anything else and it’s not 100% your arrest will show up or be accurate.  But it’s best to be honest if you’re asked about an arrest.

Do I Have to Tell My Employer?

Read your company hand-book.

Texas is an at-will state for employment purposes so you can be hired, fired, promoted or demoted for good reasons, bad reasons or no reason at all.  This means you can be fired for not telling your employer if your hand-book says you must.  You can also be fired if you do tell work you were arrested, unfortunately.

My experience is with most charges employers take a “wait and see” attitude.  Many are actually extremely supportive.

Obviously I don’t know your employer as well as you do.  So disclosing an arrest is understandably a calculated gamble.

Expunctions and Non-Disclosures

See if you are eligible for an expunction or a non-disclosure when your case is over.  These can eliminate or lessen the amount of public information available about your case.

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