Background Checks

April 12, 2017

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

I get asked about the dreaded background check a lot.  As in every day.

The whole point of criminal defense is (1) keeping my client out of jail; and (2) keeping my client’s record as clean as possible.  It stands to reason this is a huge concern for everyone who comes into my office.

I’m a criminal defense lawyer and I can bore you about the rules of evidence, the Constitution, and what the 5th Court of Appeals in Dallas has been up to all day long.  I’ve picked up a thing or two about criminal background checks along the way so here is some basic info:

Who Keeps Criminal Records?

Criminal records are kept by the Federal Bureau of Investigation (FBI) and the Texas Department of Public Safety (DPS).  The FBI’s database is called the “National Crime Information Center, or “NCIC” for short.  DPS maintains the “TCIC” or the Texas Crime Information Center.  Every time someone is arrested in Texas they get both a TCIC and NCIC tracking number.

TCIC and NCIC records are not public and it’s actually a crime for someone to disseminate it to the public.

Also city and county jails keep records with varying degrees of success as well.  This could show arrests or tickets on a city level which may or may not get reported either to the TCIC, NCIC or online.  Some publish citations directly to the public.

Private companies are allowed to purchase records.  These companies in turn re-format them to make them more user friendly and are the traditional back-ground search companies typically used.

So How Does a Background Search Work?

Police and law enforcement can directly access TCIC and NCIC records when they run a report.  Everyone else has to go through a private company.  Some search engines are more reputable than others.  Again, the private search engines typically purchase records and provide a more user-friendly product to whomever is doing the search.

So generally a lender, employer, or apartment complex first has to have a legal reason and/or authorization to run your background check.   This is under the Gramm-Leach-Bliley Act of 1999.  When logging onto the search engine a user is asked the purpose of the search.  Not to get too bogged down on this point, people can’t run your back-ground just to do it.  They have to have a reason.

Will The Background Search Be Accurate?

It’s a human process so there will be an error rate.  An additional problem is prospective employers, bankers or landlords also tend to not understand what it is they are reading.  Ultimately you have to recognize the world isn’t a fair place.  Bad background searches will happen and even a good result from a criminal case can be mis-read by someone making a hiring decision.

Some Anecdotal Good News

Experience teaches me a few things about background searches.  First, is when someone or their loved one is charged with a crime — there is a feeling every eyeball in the planet is on them.  It is common to feel everyone knows everything about what they are going through.  This is not true.  Additionally, background checks are probably much more rare than you think.  Not everyone is running you every day.

Also my experience is most employers tend to take a ‘wait and see’ attitude when they do learn of something negative on a background report.  They are afraid to take action and really do want to get both sides of the story before they make a decision.  This at least allows the person a chance to explain their side.

*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 about this or any situation you should contact an attorney directly.


Probation Violation FAQ’s

March 14, 2017

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

Probation — officially known as “Community Supervision” in Texas — is where a person is either convicted after either a guilty plea or a trial and rather than sending the person to jail or prison their sentence is frozen while they complete probation.  Deferred Adjudication is another form of probation where a person has plead guilty or no contest and the Judge withholds a determination of guilt pending the completion of probation.

Think of Probation in two categories:  Things you must do and things you can’t do.  Obviously you can’t get arrested, break laws or go to places you might not be allowed.  On the other hand you typically have to complete community services hours, and take classes (such as anger management, alcohol awareness, or an anti-theft class).

What is A Motion to Revoke (Adjudicate)?

Revoking probation is where the State files a motion alleging a violation of probation after a conviction.  The state is essentially asking the Judge to un-freeze the jail sentence and sentence the Defendant accordingly assuming probation has been taken away.

A motion to adjudicate is the same except it is for Deferred Adjudication.  The only difference is the state is asking for the judge to proceed with a conviction and sentence the Defendant anywhere within the applicable punishment range.

When discussing a motion to revoke, I also mean to use motion to adjudicate interchangeably for ease.

What Will Happen if I Get Revoked?

If the probation officer recommends revocationthe Prosecutor typically approves it.  They file a motion with the Court and the Judge issues a warrant for a probationer’s arrest. Where a defendant has deferred adjudication they are normally entitled to a bond but this might not be set until after the arrest.  Misdemeanor deferred and convictions are eligible for bond — again sometimes only available after the arrest.  Felony convictions are typically not eligible for a bond pending revocation.

Your case proceeds to Court as did the original case.  There are two issues in play.

First is whether the probationer violated.  This is a question for the judge only because a right to a jury has since been extinguished in the original proceeding.  The standard of proof is beyond a preponderance of the evidence — much lower than beyond a reasonable doubt as it would be at trial.

The second issue is assuming the revocation is good (and statistically most are), then what should the appropriate punishment be at this point?

What Are the Reasons Most People Get Revoked?

It varies.  Legally you could get revoked by missing a single probation appointment though I’ve never seen this happen.

In Collin County most new offenses or arrests result in a motion to revoke even if they are Class C misdemeanors.

Other common reasons for revocation are failed drug tests, non-reporting, failure to complete classes, failure to do community service and failure to pay fines and fees.

The revocations in the latter group are mostly clusters of allegations.  It is very rare to see a person revoked for one short-coming while on probation.

Will My Probation Be Revoked If I (Fill in the Blank)?

It’s truly a case by case basis.  Much of it has to do with your relationship with your probation officer.  Many of them want to see a probationer succeed and unfortunately some of them want to see a probationer fail.

I Think They Want to Sanction Me.  Do I Have to Agree to It?

No.  This is where a probationer has violated probation but a probation officer would rather not go through the Court system to address the problem.

Only the Judge can unilaterally alter the terms and conditions of your probation.  A probation officer is asking you to waive that by handing you sanctions.  Many proposed sanctions are ridiculous then again many are great deals which can avoid a full-blown revocation.  The problem is often the probation officer corners someone with the proposed sanction in the office accompanied with threats and an inability to talk to a lawyer first.

What is a “Technical” Violation of Probation?

A “technical” refers to a violation which is not a new criminal charge.  As discussed above, revocations based on technical violations tend to come in clusters of violations.  Unfortunately a technical violation is typically easier to prove than a new case.

Is My Probation Officer Out to Get Me?

Probation officers have a hard job.  They deal with a lot of people who are abusive and disrespectful to them.  Being someone who makes their job harder certainly doesn’t help your chances.

Some probation officers feel a strong need for control, though, to people who challenge them.  If you fit in either of these categories then you’ll have problems with a probation officer.

*Jeremy Rosenthal is a lawyer licensed to practice in Texas and he is Board Certified in Criminal law.  Nothing in this article is intended to be legal advice and you should consult a lawyer for any criminal situation.

 


Texas Law on Marijuana Edibles

March 13, 2017

By Collin County Criminal Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

With states such as Colorado and Washington legalizing marijuana, marijuana “edibles” arrests are becoming more and more common in Texas.

Edibles are generally types of marijuana which can be consumed in different edible ways such as chocolate bars, brownies, and even beef jerky.

The Law of Possession is No Different

The law of possession of an edible form of Marijuana is no different than possession of other illegal drugs in some ways but different in others.  This is to say “possession” as defined by Tex.Pen.C. 1.07 (39) is “actual care, custody, control or management” of any contraband which may be illegal.

What is Different About Texas Law on Edibles?

There are two main differences.  One is the active ingredient is not identical to the marijuana in it’s natural form and that makes a difference in how the case is charged.  The other is the weight of the edibles make the charge worse.

Drug Weight — Adulterants and Diluents

Drug weight is the more significant factor.  The seriousness of a criminal charge is generally due to the weight of the drug seized by law enforcement.  The weight of the drug is not just the weight of the active ingredient but also what are known as the “adulterants and diluents.”

Good examples of common “adulterants and diluents” appear in common street drugs such as methamphetamine and heroin as ways to enhance those drugs.

It’s a safe bet the Texas legislature didn’t have edible marijuana and the weight of cookie dough, cake batter, or butter in mind for adding to the degree of the charge.

So What is the Bottom Line?

Being in possession of a pot-brownie or chocolate bar takes what would be thought to be an average drug possession case and turns it into First or Second Degree Felony based on the type and weight.

But there is silver lining in two forms.  First is aggregating an edible marijuana possession case to first or second-degree felony status is such an over-reach prosecutors would hopefully be inclined to treat the cases for what they are — simple drug possession cases.

Second is even if the prosecutor won’t treat the case appropriately — a jury can still be made to decide whether batter and chocolate are truly “adulterants and diluents” the same way street products can be used to enhance methamphetamine or crack-cocaine.

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

 

 


Felony Pre-Trial Diversion in Collin County

February 17, 2017

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

The Collin County District Attorney’s Office unveiled their new Felony Pre-Trial Diversion Plan earlier this month.

What Is Pre-Trial Diversion?

Pre-Trial Diversion (PTD) is when you do an “informal” probation without pleading guilty.  The case is dismissed when you are finished and the Collin County District Attorney’s Office does not oppose a Petition for Expunction clearing your record entirely.

The diversion can last a year or more and typically includes customary probation requirements such as monthly reporting, random drug tests, classes, and community service.

PTD is considered for first-time arrestees and the previous program was far more wide-spread for misdemeanor charges such as theft or possession of marijuana.   Acceptance into PTD is predicated also on an arrestee admitting to the charge in writing (though not a plea of guilty.)

If the person in the program fails-out or does not complete diversion then their case goes back to Court where the person can still have a trial.

An important dynamic of Pre-Trial Diversion in Collin County is a participant’s inclusion is at the sole discretion of the D.A.’s office and the probation department which administers it.  This means they can refuse to admit you for a good reason, bad reason, or no reason whatsoever.

What is New with the Program?

PTD was really only for misdemeanors but some felonies qualified too.  Now the D.A.’s office has promised to review far more applicants for Felony PTD cases.

A joke I’ve told prosecutors in the past was, “The first pre-requisite for felony PTD is it can’t be a felony.”  This is to say though the D.A.’s office had previously accepted felonies into diversion — the cases accepted were as common as purple unicorns grazing on the highway.

One of the problems with the old felony PTD system, from my point of view, was the daunting layers of prosecutors who had to be convinced my client was deserving of another chance.

Prosecutors handle hundreds of cases a certain way throughout their career and when you want a specific case to be treated differently — it’s an uphill battle.  This is completely understandable but a challenge none the less.

The D.A.’s office seems very serious about expanding the program if nothing else.  They have created a web page for applications and dedicated a prosecutor to review all of the applications which shows they have very much centralized their plan.

How Do I Get In to the Collin County Felony PTD Program?

The procedure for qualifying for Felony PTD isn’t an easy one.  You must go to their web-page and fill out an online application which requires you to upload things such as letters of recommendation, your resume, and school transcripts.

DO NOT FILL OUT THEIR APPLICATION WITHOUT A LAWYER!

First of all you need to have been indicted by the Collin County Grand Jury with a felony to begin this process… that is you have to be formally charged with a felony first (not just on-bond after being released from a felony arrest).

Second, anything you upload is information law enforcement probably already does not have about you. Anything you say or upload has the potential to be used against you.

Additional advocacy and lobbying by attorneys for their clients applying to the program will be a key component of getting accepted into the program.

If they invite you to interview with the probation department directly then you’re in pretty good shape.  You and your lawyer will go over additional paper-work and discuss the interview process.

What We Don’t Know About Felony PTD Yet

There are still many unanswered questions.  We don’t know how they will treat certain cases and we don’t have much of an idea of what their acceptance rates will look like.  For example in misdemeanor cases we know they will not accept family violence cases or DWI cases for diversion.  There will undoubtedly be categories of cases they will not review simply based on the charge.

There will be much trial and error both on the D.A.’s side of the program and on the defense side which only time will resolve.  They will undoubtedly get applications they don’t know what to do with just the same as we are guessing at what they will and won’t accept.

We will have a much better idea exactly how their new, expanded program is working in time.

Until then play it safe and listen to your lawyer.

*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 matter contact a lawyer directly.

 

 

 


When Teachers Have Sex With Students

February 8, 2017

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Texas criminalizes an “Improper Relationship Between Educator and Student” in Texas Penal Code 21.12.  It is a 2nd Degree Felony Carrying between a 2 and 20 year jail sentence upon conviction.

These cases tend to be news-worthy and create a loud splash every time they occur.  Along with the publicity come the humiliation, shame, and feelings of helplessness for the accused and their loved ones.

A Broad Dragnet of a Law

The central problem with the law is its breadth… this is to say its sweeping nature.

Think about it this way — Everyone agrees it would be reprehensible for a teacher (regardless of age) to have sexual contact in the classroom with a student they teach in the 4th grade. But what about if an 18 year old student (over the age of consent) has sexual relations with say a cafeteria worker, janitor, or even a teacher at a private residence — and the school employee has no regular supervision or contact with the student while at school?  In other words — sex between two consenting adults.

This statute is a dragnet which treats both instances the same.

A major distinction between the two scenarios is the abuse of the child under the age of 14 would be a separate offense of aggravated sexual assault of a child or indecency with a child and could still be prosecuted as such.  The latter would otherwise not be a crime at all but for Section 21.12.

How Courts Have Analyzed This Law

A round of cases after this law was passed actually challenged the constitutionality of the improper relationship between educator and student for this reason.  At least one trial Court found the statute to be facially unconstitutional before an appellate court reversed it.  See e.g. Ex Parte Morales, 212 S.W.3d 483, (Tex.App. — Austin, 2006).

In a recent case limiting the scope of the law, a Court of Appeals actually acquit a person originally convicted by a jury because as a police officer employed by the school district’s PD, he was not an “employee” of the school even though part of his responsibilities would have been to assist at the school if needed.  See State v. Sutton, 499 S.W.3d 434 (Tex.Crim.App.– 2016).

Defending These Charges

Defending charges of improper relationships between an educator and a student takes a lot of diligence and creativity.  Obviously if the sexual relationship and/or contact itself can be contested or challenged this should be done.  If the facts seem difficult then the attorney should be prepared to lodge more creative challenges.

The Sutton opinion demonstrates even the Court’s discomfort with how broadly this law can be applied – or misapplied.  If jurors share the same sentiment then challenging these cases in trial could yield positive results.

*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 specific situation you should contact a lawyer directly.

 

 


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.

 


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.