Is it a Crime to Threaten Someone?

May 22, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

A threat is a crime in Texas under certain circumstances.  I’ll discuss the two most common.

Terroristic Threat

The first offense is labeled by the Penal Code as a “Terroristic Threat“.  It might be a touch aggressively named, but is committed when there is a threat of violence seeking a particular reaction listed under Texas Penal Code 22.07(a)(1).  Examples include trying to put another person in fear of imminent serious bodily injury, trying to interrupt public transportation, or trying to cause a reaction of an Emergency Organization.

Aggravated Assault with a Deadly Weapon

The second is aggravated assault with a deadly weapon.  Aggravated Assault with a Deadly Weapon can be committed several different ways — but for our discussion, it is committed where a person “uses or exhibits” a “deadly weapon” during an assault by threat.

A deadly weapon is legally defined by Texas Penal Code 1.07(a)(17) as a firearm or anything which has a use or intended use that is to inflict serious bodily injury or death.  Prosecutors can get pretty liberal with what is and isn’t a deadly weapon.  In general if someone is threatened with an object like a knife, bat, pipe or something like that — it will be an aggravated assault with a deadly weapon.

What About Freedom of Speech?

Any legal scholar will tell you there is a limitation to every right under the bill of rights.  You cannot run into a theater and yell, “fire!”  In fact, Terroristic Threat is the very crime you’d be committing by doing so.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the State Bar of Texas.  Nothing in this article constitutes legal advice.  For legal advice about any situation you should contact an attorney directly.

 

 


The 5 Most Common Police Attitudes – #4

May 12, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Today, I’m continuing my series on the 5 most common police attitudes which I see case in and case out in the many, many cases I handle as a criminal defense lawyer.  As noted before, these opinions are due to my amateur police psychology.

#4 — Undecided

Police get complaints all day every day about wrongdoing.  They also see things while they are on duty which arouse their suspicion or curiosity.

It goes without saying often times when they approach a particular problem they are undecided about the outcome going into their work.  Normally, the longer a police officer is undecided in their investigation the more objective they will be.

Being undecided about an outcome is an extremely healthy attitude for someone making big decisions about another person’s life.  It causes the officer to investigate in detail and in doing so — to test alternate hypotheses, to review both favorable and unfavorable evidence in a balanced approach, and to understand the weight of their decision.  Obviously at some point an officer is likely to move off the undecided bubble one way or the other with the more information they assess and gather.  What is important is when they are undecided — they are better able to view the evidence neutrally.

I often see police who are extremely conscientious and do their very best to make the important decisions they are charged with making.  An officer should be undecided entering into every investigation undertaken.

But the equation breaks down a bit from here.  Police would have you believe they are undecided when approaching or investigating a case 100% of the time.  My experience is it is more like 20% of the time.

In fairness to police — I usually won’t see cases they don’t file unless I’m brought into the case very early.  The 20% could easily be much higher because I don’t know how many cases are put right in their trash-cans.

What I can say is by my best guestimation of the cases I do see — probably about 80% of the time the officer has a particular preferred outcome going into their investigation of cases they do ultimately file.  This can apply to DWI arrests, sexual assaults, or even white-collar embezzlement schemes.

Police are human too.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and is a licensed attorney in the State of Texas.

 


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.

 


24-Hour Criminal Lawyer

October 28, 2016

By Board Certified Collin County Criminal Lawyer Jeremy Rosenthal

(214) 724-7065 (24-hour line)

www.rosenthalwadas.com

Call if you’re having a criminal law emergency.

Examples of things the lawyers at our office can help with 24/7 are:

  • Police want to interview you or a loved one about anything;
  • You have reason to believe you or a loved will are or soon will be investigated;
  • Law enforcement has just executed a search warrant on you or a loved one;
  • A loved one has been arrested for a felony or Class B Misdemeanor or higher and you don’t know what to do;
  • A loved one is being held in jail without bond;
  • You or a loved one are concerned about probation violations;
  • Any other type of “bomb-shell” which you know or suspect needs a lawyer;

Criminal law emergencies come in many shapes and forms, so if you have a question please call.  (Please, no traffic tickets or traffic warrants).

All calls are confidential pursuant to Tex.R.Evid. 503(b)(2).  Rosenthal & Wadas has a team of 7 lawyers so someone will be available 24/7 to help.

 

Common Mistakes People Make With Criminal Law Emergencies

  • They Self-Diagnose on the Computer

There is only so much you can google about a situation where someone has an urgent criminal legal problem.  There is no substitute for picking up the phone and calling a lawyer who has handled thousands of cases.  If you had a true medical emergency, would you call 911 or would you go to a search engine?

  • They panic too Little

I can’t tell you how often someone comes into my office after it’s too late.  They considered calling a lawyer earlier but because they didn’t their situation is worse than it was before.  People often follow their gut instinct which is understandable.  The problem when you face an unknown and new situation is “you don’t know what you don’t know.”  We’ve handled thousands of cases.  We can tell you if there is a problem or not and what to do.

 

  • They Panic too Much

We can help ease the stress for some problems — which just aren’t problems.  We do see plenty of cases where someone or their loved one is worried sick about a situation that isn’t worth the mental strain of the worry.  Nothing makes us happier than to give some good news and help people understand criminal proceedings, consequences, or jail is simply unrealistic or far-fetched.

Your Call is Welcome 24/7

If you’re having a criminal law emergency, please call (again, no traffic tickets or warrants please).  If you’re just web-surfing then put the phone number in your phone.  I hope you never need it, but putting it in your phone is absolutely free and it could save you valuable time if you ever do need to find a criminal lawyer in a hurry.

 

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

 

 


Texas Criminal Punishment Levels

June 25, 2010

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

Offense Levels in Texas (updated as of January, 2018):

Class C Misdemeanors:  Punishable by a fine not to exceed $500:

  • Traffic offenses
  • Assault by contact
  • Drug paraphernalia
  • Disorderly conduct (other than firearm related)
  • Theft under $100 (unless theft committed by check)
  • Insufficient funds
  • Minor in possession (MIP)
  • Minor in Consumption

Class B Misdemeanors: Fine not to exceed $2,000 and not more than 180 days confinement in county jail:

  • DWI (72 hours minimum jail; 6 days minimum with open container)
  • Possession of Marijuana (less than 2 oz.)
  • Theft over $100 but less than $750
  • Theft by check (over $20 but less than $500)
  • Criminal mischief over $100 but less than $750 (vandalism)
  • Violation of a protective order
  • Indecent exposure
  • Racing on a public road
  • Prostitution
  • Disorderly Conduct with Firearms (display or discharge)

Class A Misdemeanors:  Fine not to exceed $4,000 and not more than 180 days confinement in county jail:

  • DWI (2nd offense) (minimum 72-hours jail)
  • DWI over 0.15 BAC
  • Possession of marijuana (between 2 oz. and 4 oz.)
  • Possession of dangerous drugs (usually the possession of legal drugs without a valid prescription)
  • Assault causing bodily injury
  • Theft between $750 and $2,500 (whether by check or otherwise)
  • Criminal mischief over $750 but less than $2,500
  • Evading on foot

State Jail Felonies:  Fine not to exceed $10,000 and confinement in state jail institution for no less than 180 days and no more than 2 years.

  • Possession of controlled substance less than 1 gram (typically methamphetamine, cocaine or heroin)
  • Credit card abuse (using another person’s credit card without authorization)
  • Third theft conviction of any amount
  • Theft between $2,500 and $30,000
  • Forgery
  • DWI with a minor under the age of 15 in the vehicle
  • Evading with a vehicle
  • Car Theft (Unauthorized Use of a Motor Vehicle)

Third Degree Felonies:  Fine not to exceed $10,000 and confinement in Texas Department of Corrections for no less than 2 years and no more than 10 years.

  • Possession of controlled substance between 1 and 4 grams;
  • Aggravated assault
  • Assault causing bodily injury (enhanced from prior finding of family violence)
  • Burglary of a building
  • Theft between $30,000 and $150,000
  • DWI (3rd offense)
  • Indecency with a child (by exposure)
  • Solicitation of a minor

Second Degree Felonies: Fine not to exceed $10,000 and confinement in Texas Department of Corrections for no less than 2 years and no more than 20 years:

  • Possession of a controlled substance over 4 grams but less than 200 grams
  • Burglary of a habitation
  • Aggravated assault with a deadly weapon
  • Theft between $150,000 and $300,000
  • Indecency with a child (by contact)
  • Injury to a child
  • Sexual Assault of a Child (Under 17 but not 14)
  • Sexual Assault
  • Attempted murder
  • Intoxicated manslaughter

First Degree Felony:  Fine not to exceed $10,000 and confinement in Texas Department of Corrections for no less than 5 years and no more than 99 years.

  • Murder
  • Possession of a controlled substance over 200 grams
  • Possession of a controlled substance between 4 and 200 grams with intent to distribute
  • Arson
  • Theft over $300,000
  • Aggravated Sexual Assault of a Child
  • Aggravated Sexual Assault of a Child under 6 (25 – Life w/o Parole)
  • Continuous Sexual Abuse of a Child or Young Children (25 – Life w/o Parole)

It should be understood that though many of these offenses carry mandatory minimum jail sentences, virtually every offense other than Murder has provisions whereby sentence may be probated or suspended for community supervision (probation).

Other points:

There are some offenses referred to as “hybrid” offenses which mean they can straddle boundaries of punishment — but for the most part the levels remain fairly consistent.  Some offenses like Driving While Intoxicated raise the minimum punishment level but are still considered to be in that general category.

Also many offenses are subject to what are known as enhancements.  Enhancements are other surrounding factors that can enhance — or increase the base punishment level for certain offenses.  The enhancement can be for something surrounding the transaction (like possession of drugs in a drug free zone), or as is often the case because of prior criminal history.

*Jeremy F. Rosenthal is Board Certified by the Texas Board of Legal Specialization andan licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  For legal advice about any specific issue you should consult an attorney directly.