The Victim Doesn’t Want to Press Charges — So Now What?

April 4, 2017

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

A criminal prosecution is between the State of Texas and the accused.  The victim or accuser is little more than a glorified witness.  Just because a victim doesn’t want to press charges doesn’t mean the case goes away.

If The State Doesn’t Have to Drop the Charges — Then What Good Does it Do?

District and County attorneys are elected.  This means they reply to citizen and voter demands (in theory).  Most pride themselves in standing up for victims and making sure a victim in any case is satisfied.  A prosector or police officer may very well drop a case in response to a request by an accuser to dismiss a case.  Even if they don’t dismiss the case the prosecutor must factor how the accuser will look before the jury.  A prosecutor would think twice before calling a reluctant witness who tells the truth yet assists the defense at every turn.

Why Wouldn’t a Prosecutor Drop the Charges Upon Request?

Prosecutors see many cases come across their desk.  In state court, they see the same cases over and over whether they be assaults, theft, DWI or drugs.  Some get in the routine of comparing one case to another as instead of evaluating each case in a vacuum.  In their defense, there is nothing wrong with their world view.

What this means is they might tend to compare victims against one another as unfair as that may should.  Also, some prosecutors simply believe every accuser who comes forth to drop charges is being forced to do so — or is otherwise doing so because they are weak, intimidated or can’t stand up for themselves.

I Told them I want the Charges Dropped and they Won’t.  What Should I Do Now?

Again, most prosecutors really do want to make a victim or accuser happy.  Getting complaints from victims is worse for them then losing a case.  It doesn’t hurt to have an open and honest dialogue with a prosecutor if your goal is to have either charges dropped, a person to be dealt with leniently, or for a person to get a specific type of help for that matter.

Do I Need a Lawyer if I’m Trying to Drop Charges?

Normally, no.  If you are going to be discussing the facts of a case with police or prosecutors, however, you can be prosecuted for a false police report if you make statements which are materially different.  If you have concerns about statements you’ve made to the police then its not a bad idea to visit with a lawyer before re-visiting with them.  Obviously you should always be honest with both police and prosecutors at all times.

*Jeremy Rosenthal is an attorney licensed in Texas.  He is board certified in Criminal Law.  Nothing in this article should be considered as legal advice.  For legal advice about any situation you should talk with an attorney directly.

 


Emergency Protective Orders – FAQs

October 21, 2016

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

What is an Emergency Protective Order?

An emergency protective order (“EPO” for short) is an order issued by a magistrate judge after someone is arrested for Assault – typically during a family or domestic situation.  They can be broad, sweeping, and they can often worsen a family situation.

The order can prevent someone from going back to their home, having contact with their loved ones, and even going to the their children’s school to pick them up.  It can order the Defendant not have access to or possession of firearms.

How Can They Do This?

Texas law allows a magistrate judge to issue these orders upon application which may be done by a police officer or may even be done on the Judges own discretion.  It can be done “Ex Parte” which means the accused does not have the right to be there.  Understand, then, that the information the magistrate judge is given can be very slanted.  Also remember the laws in the State of Texas were written by politicians who — by and large– were elected on promises to be tough on these types of cases regardless of the facts.

How Long is the Order In Effect?

An EPO can be in effect for up to two years unless there are aggravating circumstances such as serious bodily injury allegations or Defendant has a previous history of domestic violence.  Most protective orders state their duration.  If the Order has no duration on it then the duration is 2 years as a matter of law under Tex.Fam.C. Chapter 85.025(2).

Most Emergency Protective Orders in Collin County are about 60 days.

Can an EPO be Modified?

Yes.  This is typically done through the same judge who signed the EPO.

How Do We Get the Judge to Modify an Emergency Protective Order?

You or your attorney can petition the judge for an amendment to the EPO.  Normally there is a hearing where the judge determines whether to lift or modify the protective order.

I’m the Alleged Victim… Can’t I Just Go Tell the Judge to Undo This?

It’s probably not that simple.  Most judges prefer to have a formal hearing because they don’t know the parties involved and they are worried about additional violence if they immediately undo an order.

A case to them resembles many other cases they’ve handled.  Also there is a prevailing mentality amongst law enforcement, prosecutors and often some judges which presumes several things about family violence arrests.

Their mentality is the assailant is guilty, and that the victim is asking for this leniency because they feel guilty or intimidated by the abuser because that is part of the circle of domestic violence.  It is flawed logic because it’s circular – though I’m sure it can be true in some cases.  (Defendant one is guilty therefore we don’t believe the victim when they say it didn’t really happen therefore Defendant is more guilty than before).  In cases where it isn’t true — the logic particularly confounding.

Most judges I’ve worked with have broad policies about these types of things.  They are not un-sympathetic to real world problems protective orders create such as financial strain of paying for multiple housing, child care, and impact on the family.

Should I Hire a Lawyer to Deal With a Protective Order?

It goes without saying that if you have been arrested for Assault/ Family Violence then you need a lawyer immediately upon your arrest.  There are pitfalls to modifying protective orders which require skill too.

What Happens if I Violate the EPO?

It can cause additional criminal charges and bond to be revoked.  In many cases the violation can be as bad or worse than the original allegation.

Can the Person Come Over to Get Necessary Things?

Always read the specific language of the EPO and if you have any questions talk with a lawyer to make sure it’s clear.  Most protective order’s I’ve seen have a provision which allows for a way to get necessities from a home such as clothes, computers or whatever is needed.  Sometimes the language provides a friend or neutral person can assist.

Understand if the police are called and the protective order is shown to an officer who wasn’t at the hearing or who doesn’t understand an EPO very well — the person can go back to jail even though the officer might be wrong.  Make sure it is crystal clear what you can do before you take any action.

*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 legal advice on any situation you should contact an attorney directly.

 

 


Aggravated Assault with a Deadly Weapon

August 23, 2016

By Texas Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Believe it or not this arrest is more common than you might think.  The name of the charge alone has a shock and a stigma which often doesn’t match — because it is frequently the result of over-charging or a mis-understanding by law enforcement of what really happened.

Frequent Fact Scenarios for Aggravated Assault with a Deadly Weapon

It is common to see arguments or actual fights where someone is alleged to brandish a weapon or sometimes just an object charged as aggravated assault with a deadly weapon in Texas.  These might arise in domestic or family situations, road rage or road stalking situations, or even common altercations in public places like restaurants, bars, or even sporting events.

Sometimes aggravated assault with a deadly weapon can be filed where there is a serious bodily injury caused by the “deadly weapon” as well.  This might include someone getting pistol whipped or even hit with a car.

What is the Law about Aggravated Assault with a Deadly Weapon?

Aggravated Assault with a Deadly Weapon is defined by Texas Penal Code 22.02.  That provision provides,

(a) A person commits an offense if the person commits assault as defined in Sec. 22.01 and the person:

(1) causes serious bodily injury to another, including the person’s spouse; or

(2) uses or exhibits a deadly weapon during the commission of the assault.

Under 22.01, an assault can be committed several ways including where someone “intentionally or knowingly threatens another with imminent bodily injury”

So AADW is committed where someone threatens another with imminent bodily injury where they use or exhibit a deadly weapon… or where they actually cause serious bodily injury to another while they use or exhibit a deadly weapon.

Many aggravated assaults are merely assaults with serious bodily injury.

Why This Gets Over-Charged So Much

There are two reasons I see.

First is because prosecutors can label limitless things and objects as deadly weapons because the definition is broad.  Prosecutors frequently label obvious things such as knives, guns or hatchets ad deadly weapons but when they get more creative they can label things such as hands, cars, or coffee mugs as deadly weapons.  Taken to the logical extreme they could allege a twinkie is deadly weapon given the right set of facts.

Second is because they minimize the term “imminent” in the statute.  Imminent danger is defined by Black’s Law Dictionary in part as, “….immediate danger, such as must be Instantly met, such as cannot be guarded against It calling for the assistance of others or the protection of the law…”  It is not uncommon to see situations where police make an arrest based on the mere display of an object they consider a deadly weapon regardless of the surrounding circumstances or context.

In the defense of law enforcement — their standard to arrest is “probable cause” and if they encounter a situation where they think someone could be seriously hurt they often don’t have much choice but to take someone to jail for no other reason than prevent a catastrophic situation unlikely as it may be.

There are Defenses To Aggravated Assault with a Deadly Weapon

First and foremost — the state has to prove all charges beyond a reasonable doubt.  That’s not a given.  A criminal defense lawyer must dispute essential elements of the case however they can.

Also a person can use deadly force in certain situations.  Deadly force is defined in Texas as force that is intended or known by the person using it to cause death or serious bodily injury or force that in the manner of its use or intended use is capable of causing death or serious bodily injury.

Situations where deadly force may be used are listed in Texas Penal Code 9.32 .

More defenses are available for non-aggravated assaults because a person cannot use deadly force to defend themselves from non-deadly force and defense of property is far more limiting when it comes to deadly force.  Additionally a person cannot consent to aggravated assault as a matter of law though they could consent to assault causing bodily injury (such as an athletic event or a mutual fight).

The Bottom Line

Aggravated assault cases with deadly weapons can be winnable.  This is because they arise from so many different situations and the law allows prosecutors much leniency in how the cases are charged.  Just because a prosecutor thinks it’s a good idea to charge a case, however, doesn’t mean they’ll win.  Have a lawyer who knows how to handle these types of charges.

*Jeremy Rosenthal is an attorney licensed in Texas and is Board Certified in Criminal Law.  Nothing in this article is intended to be legal advice.  For legal advice about this or any other topic please contact an attorney directly.


Divorce and Child Custody Related Criminal Accusations

March 11, 2015

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Divorce brings out the worst in people.  Bitter feelings are fueled by a combination of resentment, betrayal, and/or basic loss of control over what might perceived to be the health and safety of children.

Ex or soon to be ex-spouses are much more brazen about making accusations than most every-day people for a variety of reasons — not the least of which is the fact an ex-spouse also coincidentally has much to gain by making (and following through on) accusations.

Here are some of the most common criminal accusations which tend to stem from divorce and/or custody disputes:

  • Assault
  • Criminal trespass
  • Interference with Child Custody
  • Aggravated Sexual Assault of a Child
  • Indecency with a Child
  • Injury to a Child
  • Terroristic Threat
  • Unauthorized Computer Access

Most people think of criminal charges and accusations as so far fetched that someone would only make such a claim against another if there were at least some degree of truth to the claim.  Accusers going through a divorce or custody dispute, though, have their view of the facts soured by their own emotions, agenda, and self-interested perspective.  Unfortunately accusers can also manipulate or poison their own children’s perspective in these types of cases too.

Law enforcement’s view of these types of claims also varies.  Sometimes an accuser finds a receptive audience who might not understand or is deaf to the dynamic of the underlying divorce or custody proceedings.  Often law enforcement is “stuck” in the middle because while they know claims are being fueled by self-interest — they simply must follow up on certain types of allegations as part of their public duties.

Examining and defending any of these charges means examining the details of the divorce or custody proceedings which are related.  Defense lawyers must show prosecutors, judges and jurors the context of the allegations and what other interested people have to gain by making such allegations.  This can only be done through detailed investigation of all the surrounding facts and circumstances.

*Jeremy Rosenthal is an attorney licensed to practice law in the State of Texas.  He is Certified in Criminal Law by the Texas Board of Legal Specialization.  Nothing in this article is intended to be legal advice.  For legal advice about any situation you should contact an attorney directly.  Communications through this blog are not confidential.


Defending Child Abuse Charges

March 10, 2014

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

http://www.rosenthalwadas.com

No one wants for children to be abused.  We are biologically and sociologically programmed to love, nurture and protect them.  Our natural rush to defend children, though, can bring out the worst in people.

Child abuse cases originate in several ways.  Often one parent will accuse another parent of abuse in custody or divorce proceedings.  Some times people in contact with children suspect abuse or neglect and contact authorities.  Another source is where medical personnel feel abuse was possible.

Child abuse charges can be extremely difficult to defend regardless of whether the alleged physical injuries are slight or devastating.  Virtually always the evidence is not only circumstantial — but highly subjective and medically complex.

Defending these cases takes time, patience, and a thorough review of complete medical history of the child and sometimes even of the parents to determine whether a child is more susceptible or prone to a particular type of injury.

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


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.


5 Reasons Not to Testify in Your Own Defense

October 1, 2011

By Collin County Criminal Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

The U.S. Constitution and Texas Code of Criminal Procedure 38.08 guarantee a person on trial the right to testify in their own defense.  38.08 reads, “Any defendant in a criminal action shall be permitted to testify in his own behalf therein, but the failure of any defendant to so testify shall not be taken as a circumstance against him, nor shall the same be alluded to or commented on by counsel in the cause.”

The vast majority of experienced criminal defense lawyers will advise their clients against testifying in the vast majority of cases.  There are many reasons why defense lawyers think this way and here are just some:

1.  It is virtually impossible to convince someone you are innocent of a crime.

We assume that people listening to us are open minded and can be persuaded with our honest nature and straight-forward approach — but like most assumptions, it’s wrong much of the time.  Our founding father’s knew a lot about human nature and our natural rush to judge people.  They knew that people rarely believe someone that claims they are innocent, so why even bother with the charade?  It only endangers the citizens more to have a star chamber system of government.  Putting the burden of proof on the government and forcing them to prove their case is simply the fairest way to have a trial.

2.  There is no “right way” to behave when you’re testifying.

Obviously you should be yourself when if you are testifying, but you have to consider the audience.  In act 3, scene 2 of Hamlet, Queen Gertrude says about someone professing their innocence, “…The lady doth protest too much, methinks.”  This just means that if you assert your innocence very aggressively — people think you’re lying.  And here’s more bad news… if your voice shakes when you testify — people also could think you’re lying.  People an also think you’re lying if you make too much eye contact, make too little eye contact, look at the floor, look at the judge, look at someone in the audience, look at your lawyer, look at the alleged victim (if any) and on and on and on.  The bottom line is that professing your innocence can work — but it’s usually a lose-lose situation.  Psychologists teach us that not even the best law enforcement personnel around can detect lies by looking at someone’s facial expressions.  Jurors are even worse!  What one person was raised to believe is a truthful expression is a lie to someone else — and vice versa.

3.  Prosecutors have a built-in cross examination advantage.

They can accuse you of lying on the witness stand to beat the rap!  Not only that, but prosecutors know what they’re doing and can ask “do you still beat your wife” questions to which there is no right answer.  You shift the burden from the prosecutor to yourself and the jury is no longer weighing the merit’s of the state’s case — they’re evaluating you.  Testifying in your own defense can be an all or nothing gamble.

4.  Juries Really Don’t Hold it Against You.

Juries are actually very good at not holding it against you if you don’t testify.  Most courthouses have videos they show the juries which discuss someone’s right to remain silent before they get into the courtroom.  Then the trial judge normally goes over the right not to testify.  Then most prosecutors go over the right not to testify for no other reason than they want to seem fair.  Then your lawyer gets to go over your right not to testify during jury selection and disqualify anyone that demands to hear your side of the story.  Jurors have this singular point drilled into their skulls all day and all week long.  My experience after trials when visiting with jurors is that they’re actually quite good at compartmentalizing and ignoring the Defendant if they didn’t testify.

5.  To limit damaging testimony.

You always have to testify honestly and no lawyer should ever tell you otherwise nor would any good lawyer imply that it’s OK for you to bend the truth.  If the truth is that you’re guilty then you obviously shouldn’t testify and it’s a wiser strategy to force the prosecution to prove your guilt beyond all reasonable doubt.  Also, if you have difficult facts to explain or some things in your history would look bad to a jury — then staying off the witness stand may be a good idea as well depending on your case.

When You Should Testify

When your lawyer tells you!  If I advise a client to testify, it is normally because there is some piece of evidence which is important to our theory which I cannot get before the jury any other way than through my client.  Also, many affirmative defenses are very difficult to legally raise with out testifying on your own behalf.

Listen to your lawyer’s advice with regards to testifying in your own defense.  They will clearly have a good understanding of the facts in your case and the experience to know whether it’s the right choice.

*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.  Contacting the attorney through this post does not constitute a privileged communication and an attorney-client relationship is not established by any such communication.