Why the Police are Out to Get You

July 13, 2017

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

http://www.rosenthalwadas.com

(972) 369-0577

It is pretty common for someone I’m visiting with to feel like the police, prosecutors and even some judges are pitted against them as they face criminal charges.

The reason is simple.  It’s true.

The reason it is true is also simple.  They think you’re a bad guy and they don’t know you.  Flexing on people they think are addicts, drunk drivers, wife-beaters, thieves, or people who hurt children is a natural reaction for anyone and everyone.  If they think you’re in one of these categories — then yes — they are often out to get you.

I’ve had the honor to defend countless people for criminal charges which range the full gamut of severity.  I can count on one hand the ones who are truly mean and vindictive humans.  This is not to say some of my clients haven’t made mistakes or hurt others because they certainly have.

The difference is all too often, the police, prosecutors and judges don’t know what they don’t know.  They might not understand underlying mental illness, addiction, or disfunction of the accused and often the accusers.  They might not understand the day-in and day out struggle you might face battling whatever it is ailing you or your loved ones. They intuitively know there are two sides to the story but some need to be reminded how powerful your side of the story is.

My job is making sure they understand.  Police, prosecutors and judges are typically hard working and fair people.  When given the the right and persuasive information they normally do what they think is right.

Not all advocacy is in front of a jury.

*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 any situation you should contact an attorney directly.

 


Our Number is (972) 369-0577. Put it In Your Phone Right Now. Yes, YOU!

June 13, 2017

By Texas Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Put our phone number in your phone right now.  It is (972) 369-0577.

Why do you want a criminal defense lawyer’s number in your phone?  It should be self explanatory but many don’t think they’ll ever need it.  Fair enough.

There are two main reasons.

The First Reason

I recently spoke to several groups of non-lawyers about criminal justice.  They were interested in my topic but not particularly excited or passionate.  Why should they be?  To them criminal cases happen in newspapers or on television and — like advertising — it might affect a few people out there but it doesn’t affect them.

At the most recent lecture, I decided to bring the topic home for a more engaging discussion.  I wanted the audience to know why they all needed our phone numbers in their phone.  And the answer is simple —  You don’t lead a life of crime and you don’t plan on getting arrested…? GREAT!  Me too!

But Rosenthal & Wadas has built a big criminal defense law practice right here in the suburb of McKinney, Texas?  How did we do that…?  Because people’s sons, daughters, aunts, uncles, grandsons, granddaughters, sisters, brothers, friends and co-workers are getting arrested here.  They get arrested for DWI, domestic violence, drug charges, embezzlement, sexual assault and on and on and on.

Now, when a criminal case gets hot — it gets hot.  When the arrest or accusation happens — the case is hot.  We potentially create more value by getting into a case right at the beginning than at any other time.  This is because we can represent someone during an investigation or sometimes just help put the fire of an arrest out so we can begin getting to the bottom of what happened to get the best end result.

Sometimes key legal advice or representation at the inception of a case can make the whole thing go away.  You read that right.

So if you don’t plan on ever getting arrested — great — but put our number in your phone for when you get an unexpected call from a co-worker, friend, or just a non-conformist family member.  People’s friends and loved ones are being arrested every-day right here in Collin County and they’ll often turn to you looking for direction.  I hope it is never your loved one, but why not be prepared?

Our office has a lawyer on call 24/7.

The Second Reason

Putting our number in your phone is free.  (972) 369-0577.

Do it now while you’re thinking about it.

*Jeremy Rosenthal is Board 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 specific situation you should contact a lawyer directly.

 

 


How Can they Prosecute Me with No Evidence?

May 28, 2017

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

http://www.rosenthalwadas.com

(972) 369-0577

After years of practice, I have come to the following unescapable conclusion:

Your lawyer and you have a different idea of what the word “evidence” means!

The question about evidence is one of the most common and understandable questions I get.  The answer is complex but I’ll do my best to break it down.

How My Clients and their Families Think About Evidence:

Most of my clients and their families think of evidence as what lawyers would consider “direct” evidence or “circumstantial evidence.”

Direct evidence would be something typically solid or concrete such as a DNA sample in a sexual assault case, a blood specimen in a DWI case, or perhaps a police video taken of a drug arrest.

Circumstantial evidence, by contrast, is evidence which requires an assumption of some sort to be made to reach a conclusion.  For example — there was no snow on the ground when you went to bed and when you woke up the ground was covered in snow.  This is circumstantial evidence it snowed while you slept.  Pretty much everyone gets that too though sometimes it can be tenuous.  (For example, “the Defendant was nervous when he was talking to the police so he must be guilty….” as you can see circumstantial evidence can be pretty shaky too).

Many people do not like considering testimony as “evidence” for the reason most testimony cannot be verified or dis-proven.  This is perfectly understandable and perhaps should be the standard by which people’s lives and criminal records should be decided but as with all things — it’s not so simple.

How Your Lawyer Thinks About Evidence:

Evidence is a topic which occupies a full major law school class and is a huge chunk of the bar exam.  Texas has its own rules of evidence largely modeled after the Federal Rules of Evidence.

Those rules are detailed and in many cases have legal opinion after legal opinion dissecting those rules even further in to minuscule nuances.  Those rules conform to the U.S. Constitution and Supreme Court cases can and do change how these rules are construed in courtrooms on a frequent basis.  Often a small evidentiary issue can literally decide an entire case.

Most evidence in a criminal case is testimony.  Yes, much of it is difficult to either verify or dis-prove.  But the Texas and Federal Rules of Evidence allow testimony alone to be the basis of a conviction whether it can be verified or not.  In lawyer’s terms, testimony alone is “legally sufficient” to sustain a conviction.

The law presumes a jury is able to decide what is credible and what is not.  In a sense, a jury could consider an accuser’s testimony to be just as concrete as DNA evidence.

So an accuser making an allegation of sexual abuse, a spouse claiming to be hit, or a police officer claiming to have found drugs in the center console of a car all count as “evidence” though it may not seem as solid from our standpoint.

Can Someone Come in to Court and Just Say Anything?

Not quite.  Obviously, a person who lies can be subject to aggravated perjury.  The threat of perjury rule doesn’t keep people from lying under oath but it certainly deters.  Again, when something can’t be verified or disproven then proving perjury can be impossible too.

A person cannot testify to hearsay or to something not within their first-hand knowledge.  A simplified explanation is someone can only testify to something directly observed by them.  Witnesses are normally not allowed to guess as to what may or may not have occurred.  Expert witnesses must have some scientific basis to draw certain conclusions.  Many other rules are in place to promote fairness with regards to testimony.

Allowing Uncorroborated Testimony Seems Unfair.  Why is this the Rule?

Examples would be cases where a robber mugs someone in an alley or a sex offender engages in inappropriate touching of a child.  There might not be any corroborating evidence other than the accusation itself.  So while it might seem unfair to allow testimony of one person alone to convict — it would be just as unfair to victims to allow their perpetrator to go free for the same reason.

“He-Said, She-Said” Trials

Many trials come down to a “he-said, she-said” courtroom fight.  This is unfortunate but any decent lawyer should be able to deal with this by scrapping, clawing, and fighting so their theory of the case prevails.

It is important for your lawyer to know how to understand and persuade a jury to believe their theory of the case over the prosecution’s theory.  It is no small task.  Prosecutors get a lot of experience and it is a mistake to under-estimate them.

The Answer to the Question, “How Can they Prosecute Me with No Evidence?”

They probably do have some degree of what the law considers to be evidence.  We just don’t like it and we have to learn to over-come the evidence it in court.

*Jeremy Rosenthal is an attorney licensed to practice 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 contact a lawyer directly.

 

 

 


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.