Are Police Going through an Investigation or Just the Arrest Process?

March 12, 2018

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

The dictionary defines “investigate” as, “To carry out a systematic or formal inquiry to discover and examine the facts of (an incident, allegation, etc.) so as to establish the truth.”

Truth, then, is the focus of an investigation.

But virtually always we see the focus of an investigation is a person — not necessarily the truth.  The assumption made by law enforcement is the person who is the focus of the investigation and the truth are one and the same thing.  In other words, many, many “investigations” are flawed from the start.  The result of the investigation is only correct where the assumption is also correct.

And it is further true when you ASSUME you make an ASS of U and ME.

I can’t tell you how many times I’ve seen an “investigation” start with a detective or police officer reaching their conclusion first.  They call a tow truck to haul off someone’s car for DWI before they even ask the driver out of the car.  They offer a complaining witness victim assistance information, sympathy, and promises of action after just moments of hearing one side.  They promise action to someone who lost their savings when they come in blaming someone else for their loss.

Wouldn’t it be more appropriate to call those police actions “the arrest process?” instead of an investigation?  It is often clear the police aren’t interested in the truth — instead they are interested in arresting the person they think is guilty from the outset.  They just know in their heart the truth without researching any of the facts.  What could go wrong doing it that way?

The arrest process looks more like a geometric proof than a search for the truth.  The police are checking to see if there is enough evidence for each and every element and if there is — then bang — case closed and the bad guy is handcuffed.  The problems is many of the facts are rose-colored to the investigator and the standard for probable cause is low.  Instead of putting pieces of a puzzle neatly together, the oddly-shaped pieces are jammed together to make the image already in the officer’s head.

The arrest process might be just fine in certain instances.  I’m sure it often yields fair results. But let’s just not call them what they’re not — investigations focused on the truth.

*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 this or any topic you should consult an attorney directly.


Aggressive Criminal Defense Lawyer

March 6, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

My name is Jeremy Rosenthal.  I eat nails.  I crawl on broken glass.  When I’m not screaming at prosecutors or judges for my clients, I’m having a 30 Lb. medicine ball slammed into my abdomen like Rocky Balboa training to take on the planet.

Not really.

I suspect all lawyers – let alone defense lawyers – are regularly asked by prospective clients if they are “aggressive,” “tough,” or if they are “a fighter?”

Truthfully, I’m not the best person to answer the question.  I’d say go ask some prosecutors how fun I am in trial.  I’ve been at this long enough to be pretty sure I’m not the path of least resistance for them — but again — this is for them to answer.

I’d like to make two points in this blog.  The first is the question itself assumes being aggressive is the right approach in any given case.  Second, is being an aggressive, tough fighter isn’t mutually exclusive with other skills which make an excellent lawyer.

It would be interesting to be asked if I was “thorough,” “meticulous,” and “calculated…”  Just once I’d like to be asked if I was “sensitive,” “encouraging,” and “thoughtful.”  Maybe today someone will try to see if I am “charismatic,” “clever,” and “crafty.”

It takes all these skills — and more — on many cases.  There is a right time to turn up the aggressiveness and toughness.  There is a right time to be calculated,  a right time to be sensitive, and a right time to be charismatic (to the extent I can turn that one on and off).

Ultimately a person needs to choose a lawyer which makes them feel comfortable.

But your lawyer needs to have a complete game.  They need to be a Swiss Army Knife of skills because each case is it’s own snowflake.  There are cases where I’ve made courthouse enemies for decades and there are cases where we need to pay attention to the carpenter’s rule – measure twice and cut once.  Sometimes both are appropriate given the case.

*Jeremy Rosenthal is a lawyer licensed by the State Bar of Texas and is Board Certified in Criminal Law.



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

April 4, 2017

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(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

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

(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

(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

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.