Should I Just Throw Myself on The Mercy of The Court?

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

I get asked this question on a regular basis at the onset of a case. My answer is this -- there may be a time and place for that, but you can't be acquitted that way. If "falling on the sword" gets you the best result possible besides an acquittal -- it is usually just a coincidence.

Most of us are programed with integrity and a sense of shame if we think we've done something wrong. Those traits serve us well most of the time. But there are three things you may be incorrectly assuming in thinking that just pleading guilty and begging for mercy is the only thing to do; (1) you're assuming that it's improper or somehow dishonest to assert your constitutional rights such as remaining silent and forcing the State to prove it's case beyond all reasonable doubt; (2) you're assuming that a judge or a jury will punish you more for holding the police and the prosecution to the burdens and standards they accepted when they took the job; and (3) you're assuming that the Judge's or prosecution's view of justice is fair -- and that you'll have a frame of reference to know whether or not the deal you're getting is raw.

Notice I used the word "assume" four times in the above paragraph. When you make the decision to plead guilty before you've had a lawyer evaluate the case -- you're making a ton of assumptions which means you're ultimately making a very uninformed decision.

A good general doesn't take an effective battle weapon off the table when planning for war. A good doctor doesn't take a useful procedure out of consideration when dealing with an illness... so why should you limit your options and fight what may be the most critical situation of your life with your hands behind your back?

There may be all sorts of legal defenses available in any given case, or at the very least, an attorney can help you have a voice when the prosecutor is being unfair with punishment options... but you won't know unless you make the decision to at least keep the option of being aggressive on the table!

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice you should consult an attorney directly about any specific situation.

How Juvenile Records Get Sealed

By Dallas ad Collin County Criminal Defense Lawyer Jeremy F. Rosenthal

www.thecollincountylawyer.com

(972) 562-7549

Just like with Deferred Adjudication, many people make the mistake of assuming that juvenile arrests and juvenile arrest records simply go away on their own in Texas. They don't. The laws controlling juvenile arrest and criminal records is just as complex as the expunction statutes -- but fortunately they are a bit more forgiving too.

Juvenile Records are Generally Confidential in Texas

Generally speaking, juvenile records aren't accessible to the public to begin with. When cases get filed (Class B Misdemeanors and above) they are filed in District Court but you won't find those cases in online databases or other ways you can find most cases. This is because the pleadings are confidential under Texas Family Code 58.005.

Class C Misdemeanors get filed in municipal or justice Court and are expunged under similar proceedings in adult courts.

Juvenile pleadings in District Court -- and I'm generalizing here -- act as records that are non-disclosed in the adult world. This means that police, prosecutors, Courts, and certain governmental agencies have access to them but the general public does not (with exceptions being sex offender registration, gang affiliation, other other serious felonies).

Sealing Juvenile Records

Juveniles are eligible to have records of adjudications (convictions) sealed under the following conditions of Family Code Chapter 58.003(a); (1) two years have elapsed since final discharge of the person or since the last official action in the person's case if there was no adjudication; and (2) since the time specified in Subdivision (1), the person has not been convicted of a felony or a misdemeanor involving moral turpitude or found to have engaged in delinquent conduct or conduct indicating a need for supervision and no proceeding is pending seeking conviction or adjudication.

If the child was adjudicated to have engaged in felony conduct, then it is more difficult, if not impossible to get the juvenile records sealed. Here is Section 58.003 of the Family Code for the particulars on those situations. Those provisions are very complex and probably require the assistance of a lawyer.

Restricted Access

Texas Family Code Section 58.201 controls restricted access to juvenile records and it provides an easier mechanism for the equivalency of having your records sealed. The Texas Youth Commission has information about it here and here. TYC promises a *fresh start, but I've included the asterisk because with most programs to "help" you done by law enforcement, it leaves them the opportunity to undo what they've given to you if they really want to badly enough (the records aren't destroyed and law enforcement still has access to them... so we'll call it semi-fresh start).

Records Can Be Unsealed

Upon motion in a future case, the State can petition the a Court to unseal juvenile records to use them in subsequent punishment proceedings.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice about a specific situation you should directly consult an attorney.

Texas Criminal Law on Gambling

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.thecollincountylawyer.com

(972) 562-7549

Personal Gambling

Gambling is controlled by Tex.Pen.C. 47.02. That statute states in relevant part, (a) A person commits an offense if he: (1) makes a bet on the partial or final result of a game or contest or on the performance of a participant in a game or contest; (2) makes a bet on the result of any political nomination, appointment, or election or on the degree of success of any nominee, appointee, or candidate; or (3) plays and bets for money or other thing of value at any game played with cards, dice, balls, or any other gambling device.

There are all sorts of defenses, however. The defenses are under subsection (b) and are if; (1) the actor engaged in gambling in a private place; (2) no person received any economic benefit other than personal winnings; and (3) except for the advantage of skill or luck, the risks of losing and the chances of winning were the same for all participants.

Additionally under subsection (c) It is a defense to prosecution under this section that the actor reasonably believed that the conduct: (1) was permitted under Chapter 2001, Occupations Code (bingo); or (2) was permitted under Chapter 2002, Occupations Code (charitable raffle);

Gambling is a Class C Misdemeanor punishable by a fine up to $500 only.

Gambling Promotion

Tex.Pen.C. 47.03 covers gambling promotion. It is also a technical statute and you should read it for any and all offenses and exception, but mainly that statute makes it an offense to (1) operate or participate in the earnings of a gambling place (defined as "any real estate, building, room, tent, vehicle, boat, or other property whatsoever, one of the uses of which is the making or settling of bets, bookmaking, or the conducting of a lottery or the playing of gambling devices.");

(2) engage in bookmaking (defined as either receiving and recording or to forwarding more than five bets or offers to bet in a period of 24 hours; receiving and recording or to forward bets or offers to bet totaling more than $1,000 in a period of 24 hours; or a scheme by three or more persons to receive, record, or forward a bet or an offer to bet.)

Gambling promotion is a Class A Misdemeanor punishable by up to a year in jail and a fine not to exceed $4,000.

Keeping a Gambling Place

Tex.Pen.C. 47.04 makes it a crime for someone to knowingly use or permit another to use property owned or rented by him be used as a gambling place. It is, however, an affirmative defense if (1) the gambling was in a private place; (2) no person received any economic benefit other than personal winnings; and (3) except of the advantage of skill or luck, the risks of losing and the chances of winning were the same for all participants.

Keeping a gambling place is also a Class A Misdemeanor.

Again, the statute itself is very technical, has other exceptions, defenses, and offenses which I may not have covered.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For specific legal advice about any situation you should consult an attorney directly.

Robbery

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.thecollincountylawyer.com

(972) 562-7549

Our mind's eye tends to think of a typical robbery as a person holding up a bank or a convenience station with a gun and asking for all the loot. In reality, the Texas robbery statute is far thinner and believe it or not, some robbery cases can be extremely difficult cases for the prosecution.

Texas Penal Code Section 29.02 governs robbery and under subsection (a), robber is committed where, "...in the course of committing theft as defined in Chapter 31 and with the itent to obtain or maintain control of the property, he; (1) intentionally, knowingly or recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.

One main reason why these cases present difficulties to the State is that there is no requirement under the law that the robbery be pre-meditated. In other words, it is a common scenario for a "robber" to be someone that in the course of simple shoplifting gets into an altercation with a shop-owner. So a person who merely intended to shoplift property from a store can walk-out being saddled with a robbery charge! These present the prosecution with headaches because jurors think robbery charges in those circumstances may be a bit harsh.

Aggravated Robbery is committed under Penal Code Section 29.03 and differs from a simple robbery because the victim suffers serious bodily injury or the defendant "use or exhibits" a deadly weapon.

Robbery is a 2nd Degree felony punishable between 2 and 20 years in prison and a fine not to exceed $10,000; and aggravated robbery is a first-degree felony and is punishable between 5 and 99 years of prison and a fine not to exceed $10,000.

Punishment in these types of cases are often the greatest battles. The Collin County District Attorney's Office, for example, has policies which do not allow prosecutors to plea negotiate very much and have harsh prison recommendation for first-time defendants.

Getting a lawyer on a robbery case is important for both guilt-innocence and punishment phases of a trial. Having a trial lawyer that knows how to show you as a human to the jury is critical.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice you should consult an attorney.

Your First Notice to Appear in a Collin County Criminal Case

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.thecollincountylawyer.com

(972) 562-7549

So you've been arrested and released -- and now you get a letter in the mail telling you that you have a court appearance for your criminal case in Collin County, Texas. Now what?

How a Notice to Appear Works -- Court Dockets

Let me explain as best as I can... in Collin County (and most everywhere else in Texas), Courts that handle Class B Misdemeanors and above typically have what are called dockets or docket calls. Docket is the way the Courts manage the one, two, or ten thousand cases or that have been filed in their court.

The Court requests everyone appear on a certain date and this appearance serves two main functions; (1) to make sure that you are honoring your bond terms and conditions; and (2) to make sure your case is moving towards resolution (whether that be a trial, a guilty plea, or a dismissal).

What are You Responsible For?

Showing up. Though every court is different, most courts won't require you to enter a plea on a first setting or do anything that would require you visiting directly with the Judge. If you do meet with the Judge, it's likely to be administrative in nature and not ultimately regarding the underlying facts of your case.

Do I need a Lawyer?

Absolutely. If you have been charged with a Class B Misdemeanor or higher -- that means your potential punishment is up to 180 days in jail if not more. Just think about how being sentenced to 180 days in the county jail would re-arrange your life! Even though that may seem like an extreme example -- the fact is you wouldn't toy with an illness that could possibly take you completely out-of-commission for 6 months without a doctor -- so how is this any different? Plus, I've written blog after blog about the dangers of the collateral consequences of criminal charges you may not even think of, the dangers of dealing directly with prosecutors, and other great reasons to get lawyers involved in these cases.

What if You can't Make it on Your Scheduled Appearance Day?

Some Courts in Dallas and Collin Counties have flexible policies with initial appearances -- but never assume a Court will excuse an absence. If you're not in Court for your appearance a warrant can be issued for your arrest. Ask your lawyer and they can often coordinate your schedule with the Court's docket.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice, you should consult an attorney directly about any specific set of circumstances.

Interference With Child Custody

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.thecollincountylawyer.com

(972) 562-7549

As most people know, divorces may unfortunately turn very nasty. On occasion there are collateral criminal problems which can arise from a party's conduct either prior to or after the court makes custody determinations for the children. While the blame may often seem trumped-up or baseless -- being accused of interference with child custody is as serious as a heart attack because it's a felony accusation in Texas. Also --as with any criminal prosecution --it is important to remember that the charges are no longer between you and your divorcing spouse; it's between you and the State of Texas.

Texas Penal Code Section 25.03 is titled "Interference With Child Custody," and that section reads accordingly:

(a) A person commits an offense if the person takes or retains a child younger than 18 years when the person:

(1) knows that the person's taking or retention violates the express terms of a judgment or order, including a temporary order, of a court disposing of the child's custody; or

(2) has not been awarded custody of the child by a court of competent jurisdiction, knows that a suit for divorce or a civil suit or application for habeas corpus to dispose of the child's custody has been filed, and takes the child out of the geographic area of the counties composing the judicial district if the court is a district court or the county if the court is a statutory county court, without the permission of the court and with the intent to deprive the court of authority over the child.

(b) A noncustodial parent commits an offense if, with the intent to interfere with the lawful custody of a child younger than 18 years, the noncustodial parent knowingly entices or persuades the child to leave the custody of the custodial parent, guardian, or person standing in the stead of the custodial parent or guardian of the child.

(c) It is a defense to prosecution under Subsection (a)(2) that the actor returned the child to the geographic area of the counties composing the judicial district if the court is a district court or the county if the court is a statutory county court, within three days after the date of the commission of the offense.

(d) An offense under this section is a state jail felony.

The legal and factual scenarios and defenses are seemingly endless. Take, just as one example, a case prosecuted under 25.03(a)(1)... A prosecution under that section would probably include a complete order from the Divorce Judge which may or may not be written clearly enough to provide a party with sufficient guidance as to what is or is not permitted for times of custody (at least in the context of criminal liability.)

Also, Section (C) provides what is known as a "safe harbor," where the offense was committed under 25.03(a)(2)... Which is to say that if the violating person returns the child within 3 days to the area or county controlled by the Court they have a defense to prosecution. This is to facilitate the return of children and to a lesser degree (I suspect) because the criminal justice system has a some biases against getting involved in the micromanagement of custody disputes and orders.

If you are being accused of interference with a child custody order, you should involve competent and qualified criminal representation at once. It's not something to fool with.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice about any specific situation you should consult an attorney directly.

Evading Arrest or Detention

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.thecollincountylawyer.com

(972) 562-7549

Evading Arrest or detention is governed by Tex.Pen.C. 38.04 and it is committed where a person "intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or detain him."

Evading can be charged differently depending on the facts and resulting injuries someone may sustain (in a car accident for example during a chase). It's a Class B Misdemeanor if done without a vehicle (by foot); a State Jail Felony if done by vehicle OR if the accused has a prior evading conviction; a 3rd Degree Felony if done with a vehicle AND a prior evading conviction or if during the offense someone sustains serious bodily injury; a 2nd Degree Felony if someone dies during the evading.

Though the statute seems very cut and dry, evading cases do have many defenses. For example, An officer must be in the process of a "lawful" arrest or detention. The law surrounding detention is the same law which crops up for drug cases or DWI cases... Meaning the officer must have articulable facts which indicate there is probable cause to suspect someone has committed an offense. If a peace officer lacks probable cause, then the dentition is invalid and the fact someone attempted to flee in and of itself doesn't make it an offense. Acquittals can and do result from this issue. (For the record evading is never a good idea regardless of legal defenses!)

Additionally the state still needs to prove beyond all reasonable doubt that the accused knew it was a peace officer from which he was fleeing and/or that the person heard or knew to stop from the officer's lawful command. Defending these elements can be difficult, but a qualified defense lawyer doesn't give the State a pass on any element.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For specific legal advice about any case you should directly consult an attorney.

Criminal Mischief

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.thecollincountylawyer.com

(972) 562-7549

Criminal Mischief is the essentially Texas' way of labeling vandalism. Under Tex.Pen.C. 28.03, a person commits an offense if, without effective consent of the owner, he intentionally or knowingly damages or destroys the tangible property of the owner; intentionally or knowingly tampers with the tangible property of the owner and causes pecuniary loss or substantial inconvenience to the owner or a third person; or intentionally or knowingly makes makings, including inscriptions, slogans, drawings or paintings, on the tangible property of the owner.

The level of offense of a criminal mischief case stems from the amount of damage to be alleged just as in theft cases. Less than $50 of damage is a Class C misdemeanor; $50 to $500 is a Class B, $500 to $1,500 is a Class A; $1,500 to $20,000 is a State Jail Felony; $20,000 to $100,000 is a 3rd Degree Felony; $100,000 to $200,00o is a 2nd Degree Felony; and $200,000 or greater is a first degree felony.

Also, the punishment levels can differ if the property tampered with are public communication devices, for public transportation, and for utilities such as water gas and utilities.

Criminal mischief cases can often be very difficult for the prosecution to prove. Much of the time the culprit is not apprehended at the scene of an offense. As such, these cases tend to be built on circumstantial evidence and confessions and a skilled criminal defense attorney can be of great value.

If you are contacted by the police investigating a criminal mischief case you should involve an attorney at once!

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice about any specific case you should consult an attorney.

Texas DWI Roadblocks

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.thecollincountylawyer.com

(972) 562-7549

The Texas legislature has been conducting hearings lately on DWI and DUI enforcement. While some groups are calling for restraint and understanding in enforcement, other groups are still convinced the only way to lessen DWI's are through move invasive police tactics -- specifically through DWI roadblocks. This Dallas Morning News article details the discussions.

Here's what the law says about DWI roadblocks in Texas:

1. There is no current statute on the books which allows a police agency to set up a DWI roadblock. A police agency or political subdivision of the state (such as a city or a county) does not have the legal authority to implement one on their own. Only the State of Texas can pass such a law for enforcement here. See State v. Holt, 887 S.W.2d 16 (Tex.Crim.App. -- 1994). Texas law does allow police to create checkpoints for driver's license checks, however, those checkpoints cannot be used as an excuse, ruse, or pretext for a sobriety checkpoint. See King v. State, 816 S.W.2d 447 (Tex.App. -- Dallas, 1991).

2. Any DWI or sobriety checkpoint must satisfy a well-established three-pronged balancing test or else it violates the Fourth Amendment to the U.S Constitution and Article I, Section 9 of the Texas Constitution's prohibition against unreasonable search and seizure. the prongs are: (a) the interest of the state in preventing accidents caused by drunk drivers; (b) the effectiveness of DWI roadblocks in achieving such goal, and (c) the level of intrusion on an individual's privacy. Brown v. Texas, 443 U.S. 47 (1979), and State v. Van Natta, 805 S.W.2d 40 (Tex.App. -- Ft. Worth, 1991).

The Bottom Line

A DWI, DUI, or sobriety checkpoint or roadblock is not per-se unconstitutional in Texas, however it's been so hard to conduct legally that agencies wanting to do so must "go back to the drawing board." The biggest short-coming according to cases such as Van Natta is that the State has a very difficult time justifying the intrusion into people's lives where there is no evidence that DWI road-blocks are effective in attaining the goal of reducing drunk driving. This is not to say that such evidence does or does not exist -- but it was not presented to the Courts deciding these cases.

It would be interesting to know from the hearings in Austin whether the people in question asking for the authority to conduct roadblocks have any data which shows checkpoints reduce DWI's. If the best argument the advocates can muster is "just because it's time to get tough," it looks like they'll get sent back to the drawing board yet again.

*Jeremy F. is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice for any specific situation, you should directly consult an attorney.

People Giving Legal Advice -- That Shouldn't Be Giving Legal Advice

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.thecollincountylawyer.com

(972) 562-7549

As even keel as I try to be -- nothing gets under my skin more than people giving legal advice that have no business giving legal advice in criminal cases. Everyone has opinions, their own experiences, and what they believe to be common sense -- but I'm not really even talking about that type of stuff.

The "legal advice" I'm talking about is when the very same police officer that arrests you for DWI -- also tells you that you need to just talk with the prosecutor to see if you can get a good deal... or when court staff or personnel tell you it might be easier to just talk with the prosecutor rather than get a lawyer... or when a bail bondsman tells you that your case is hopeless and hiring a lawyer is a waste of money.

It unnerves me because these are people that carry a marginal amount of credibility -- and because of that people tend to listen to their generally uninformed, narrow, and incomplete analysis of a particular situation -- whether it's drugs, theft, assault or DUI. Now, in defense of these people -- they are probably well meaning in their intentions. It's just extremely reckless. You wouldn't operate on yourself because they guy at the front desk in the hospital thinks it's a good idea... and you shouldn't take legal advice from anyone in the justice system except YOUR lawyer.

Maybe I also get upset because unlike the police officer, court staffer, or any other various know-it-all, I spent many nights in law school up until 1 or 2 a.m. studying about the layer after layer of the law and our legal system. Unlike them, I've spent my entire career since law school dealing with people and learning that their personal situations also have layer after layer. And unlike them, I get to hand a 42 year-old single mother kleenex across my conference room table when she can't get a job from a conviction 17 years before when some know-it-all in a position of semi-trust told her she didn't need a lawyer.

Being a lawyer is a hard job. Doctors manage imperfect variables which involve the human body. Lawyers manage imperfect variables which is how the humans which comprise our system of justice will treat any given scenario. Lawyers are bound by very rigid rules of ethics which make clear that no lawyer can ever guarantee you any result -- due in large part to how imperfect and how complicated legal matters can be.

Most police officers, court personnel, and various other people that tend to come into close contact with those accused of a crime are very respectful of the complexity of legal issues and of the Attorney/ Client Privilege and thus are properly deferential. Other know-it-all's, though are loaded with bad advice that is only based on their past experiences and training -- and none of it is from YOUR perspective or from the perspective of someone that's dealt with these situations from start to finish.

I'm sure there's a possibility that some of the things they say might be right 40, 50, or even 60% of the time... And I don't know about you -- but my personal experience is that having 40, 50, or 60% of the right information is a great way to make a very bad and uninformed choice.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice about any specific situation you should directly consult an attorney.

Texas Legislature Considers DWI Reform

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.thecollincountylawyer.com

(972) 562-7549

The Dallas Morning News Published this article today regarding legislative hearings on DWI cases and enforcement. The Senate Criminal Justice Committee, comprised of various experts on the matter such as judges as well as victims, met in Austin to discuss possible changes.

In trying to keep my editorializing to a minimum -- I will say what was discussed on the panel is an excellent review of the real problems with DWI enforcement. These are the issues that attorneys fighting Driving While Intoxicated cases see every day. This is to say that the State's "when all you have is a hammer -- everything becomes a nail" philosophy backfires and creates just as many problems as it solves.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice for any specific case you should consult an attorney directly.

Criminal Trespass

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.thecollincountylawyer.com

(972) 562-7549

Under Texas Penal Code Section 30.05, a Criminal Trespass is committed where a person enters or remains on or in the property of another, including residential land, agricultural land, recreational-vehicle park, building, or aircraft or other vehicle without effective consent and had either notice that the entry was forbidden, or received notice to depart but failed to do so.

Criminal Trespass can be either a Class C, B, or A Misdemeanor depending on how it is alleged to have been committed. Generally speaking, it's a Class B. Here's the statute itself and you can read the different punishment aspects.

Much like burglary, criminal trespass has many specific definitions and which thereby make the cases somewhat defend-able based on the particulars of each case.

For example, Tex.Pen.C. 30.05(b)(2)(C) states that one particular definition of receiving notice of not being on the premises is "a sign or signs posted on the property or at the entrance to the building, reasonably likely to come to the attention of intruders, indicating that entry is forbidden." This legal definition of notice, then, means that the police and State can try and charge someone with criminal trespass even where the person did not have actual notice entry was forbidden. This can pose extreme difficulties to a prosecutor.

A skilled criminal defense lawyer can defend these cases which may otherwise seem cut and dry from the prosecutions point of view.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice about any specific set of circumstances you should directly consult an attorney.

Burglary

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

Texas Penal Code Section 30.02(a)(1) governs burglary. That offense is committed where a person without the effective consent of the owner enters a habitation or a building (or any portion of a building not open to the public) with the intent to commit a felony, theft, or assault.

Burglary is a State Jail Felony if it is committed in a building other than a habitation, and is a 2nd degree felonyif it is committed in a habitation.

While the statute may seem very air-tight on the surface, a bit of digging shows there are all sorts of potential legal issues with regards to what is or is not a burglary for any given set of circumstances.

An extremely difficult element for the State to prove in a burglary is identity if the defendant is arrested somewhere other than the place alleged to have been burglarized. Rules restrict the prosecution's use of co-conspirator testimony, and photo line-ups of accused people can also be overly suggestive and thrown out.

Another difficult element for the State to prove is often the element of intent to commit a felony, theft or assault. The prosecution will invariably point to surrounding circumstances such as equipment brought by the accused and what the accused was alleged to have done. Obviously a skilled criminal defense attorney can demand a jury acquit the accused where the only evidence is of entry into the habitation or building -- but no evidence of the further intent.

Other defenses are apparent with just a bit of digging. For instance the term "effective consent" is given a legal definition under Tex.Pen.C. 1.07(a)(19) and includes not only the owner of the building or habitation, but also a person legally authorized to act for the owner.

The terms "building" and "habitation" are also specifically defined by statute. A building is any enclosed structure intended for use or occupation as a habitation or for some purpose of trade, manufacture, ornament, or use. A habitation is a structure or vehicle that is adapted for overnight accommodation of persons.

Sadly, often burglary cases are often part and parcel of drug problems by the accused. While an aggressive criminal defense lawyer is fighting the legal aspects of the case, part of the attorney's role as counselor is to make sure that if there are collateral substance issues -- that those are non-judgmentally addressed so that punishment can be mitigated if the case gets to a Judge or Jury.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For specific legal advice about any legal matter you should consult an attorney directly.

The Presumption of Innocence

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.thecollincountylawyer.com

(972) 562-7549

The presumption of innocence in the United States stems from the 5th, 6th and 14th Amendments to the Constitution. See Coffin v. United States, 156 U.S. 432 (1895).

Texas Code of Criminal Procedre Art. 38.03 is called the "Presumption of Innocence" and states, "All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that he has been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at his trial." Also in a criminal trial, the judge and prosecutor have legal duties not to impair the presumption of innocence. See Tex.Code.Crim.P. Section 2.01 and 2.03.

Despite these seemingly straightforward concepts and what seem to be airtight safeguards -- studies have shown that the presumption of innocence is widely ignored and/or misunderstood by jurors.

What is worse is that clever prosecutors manipulate the presumption of innocence during phases of a criminal trial such as jury selection and closing arguments. The twists, turns, and spin the prosecutors are trained to use is so subtile and seemingly docile -- and often they themselves aren't even aware they are doing it in the first place. What is so unfortunate is that as the studies to which I've linked above suggest -- jurors need very little persuasion to either ignore the presumption of innocence of badly misconstrue it.

A common tactic I've seen prosecutors use in felony trials such as theft, burglary or the distribution of drugs cases is to suggest to the jury panel that if there is little evidence of guilt in the case -- it is merely because the accused is 'good at being a criminal.' The prosecutor suggests that their case is weak because it is the criminal defendant "that chose the time, place, and witnesses to the crime." In other words the person on trial is a criminal according to the State -- whether they can prove it or not. Clearly that is opposite of the presumption of innocence which suggests no evidence at all means the State hasn't met their burden of proof and the accused should be acquitted.

Although most prosecutors won't admit to this -- one of the aspects they find the most frustrating about DUI and DWI trials is that the person on trial ACTUALLY GETS the presumption of innocence from jurors with similar backgrounds and experiences as the accused. As this abstract readily points out -- jurors need very little encouragement to allow pre-existing biases and prejudices wipe-away the presumption of innocence with the concept of congruence (which I understand to mean that once the jury learns certain background information of an accused person -- such as occupation, age, income level, or race; they then draw negative inferences about the person in general).

With a DUI or DWI trial, the jury can readily identify with the defendant and so there is probably less chance the jury draws negative inferences from the accused' profile -- and the greater chance the accused is actually presumed innocent.

A common tactic used by prosecutors in a driving while intoxicated trial is to ask prospective jurors whether the person on trial "looks like a drunk driver" or "what does a drunk driver look like?" Of course, the prosecutor readily points out that ANYONE can be a drunk driver (and it's implied that even though this person looks innocent -- they might be a criminal.) Again, while prosecutors see this as an innocuous question -- I see an underhanded swipe at the presumption of innocence.

The bottom line is that when hiring a criminal defense lawyer in Dallas or Collin County, you should select a trial lawyer that not only understands the presumption of innocence, but will fight the State's underhanded attempts at undermining what is one of the most critical cornerstones of American justice.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice for any specific case you should consult an attorney directly.

Frisco Theft Jail Release

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.thecollincountylawyer.com

(214) 724-7065 - 24 hour line

(972) 562-7549 - Office line

Frisco, Collin County, Texas , has policies in place to expedite the release from jail for offenses such as misdemeanor thefts. A misdemeanor theft is where the value alleged to be taken is less than $1,500.

If you've never gotten anyone out of jail before, then here's a shotgun course -- to get someone out of jail in Texas, you need to pay the bond set for the person. Here's the problem with most arrests though: there is a lag time between when the cuffs are put on the accused and when the bond is set by a magistrate judge. Sometimes that lag can be as high as 24-hours on misdemeanors. No bond = no release.

Generally theft under $50 (a Class C Misdemeanor) are done at the municipal level an bond is usually set immediately. In those cases you shouldn't need a lawyer to assist you with a jail release but you should definitely have one down the road.

A Lawyer's Help

A lawyer can assist you in getting a bond set on Class A and B level theft charges. An attorney for the arrested person can file a "Writ of Habeas Corpus" with the County that will trigger an instant cash bond. That cash bond can be paid immediately -- and the accused released (assuming there is nothing else holding them in jail -- such as outstanding warrants or other pending charges). Often times local law enforcement will refer to these as "Writ Bonds."

Bail Bondsmen

This Writ of Habeas Corpus or "Writ Bond" process can theoretically include a bail bondsman but virtually never does. A bail bondsman will post bond for someone and will then keep tabs on them throughout the judicial process to make sure that person comes to court. For a writ bond, though, legally the accused is actually technically bonding themselves out of jail -- hence no bail bondsman is needed.

In situations where a steep bond has already been set then you may consider calling a bail bondsman to assist. Some lawyers are bail bondsmen but most (like me) are not. When you're dealing with a jail release situation, always make sure you understand these differences and make sure you are clear as what is happening legally and for what you (and the person in custody) are signing up.

Misdemeanor Theft Charges in General

Though getting a friend or loved one out of jail for theft in Frisco is probably the main priority when you get the alarming phone call -- here, here and here is some other information on shoplifting and theft charges for starters.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice for any specific case you should consult an attorney directly.

Texas DWI Laws for Beginners

By Dallas and Collin County Criminal Defense attorney Jeremy Rosenthal

www.thecollincountylawyer.com

(972) 562-7549

For Starters:

Everyone is presumed innocent and the police and prosecution must prove the case beyond all reasonable doubt... and that goes for DWI's and DUI's too. Accused people are acquitted of DWI in Courthouses all over Texas every day. Just because the Police believe something does not make it so.

The nuts and bolts:

Texas DWI law can be extremely complicated but we'll start with the basics. For more advanced discussions, you can read here, here, andhere.

Tex.Pen.C. 49.04(a) makes driving while intoxicated illegal. That provision says, "A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place."

Tex.Pen.C. 49.01 (A) and (B) define "intoxication" as... "not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or having an alcohol concentration of 0.08 or more."

A first time driving while intoxicated charge is a class b misdemeanor with a minimum of 72 hours of jail and a maximum of 180 days; and/or a fine not to exceed $2,000.

Punishment

You can read more about DWI punishment in Texas here. A big point with DWI's is that there is no deferred adjudication in a DWI case, meaning that in any case where the charges are pursued -- it will result either in an acquittal or a final conviction. There is no middle ground.

Driver's License Suspension

Under the Texas Transportation Code, your Texas driver's license can be suspended for up to 180 days for refusing a breath test or 90 days for taking and failing the breath test. The police won't tell you this -- but the suspension is not automatic. You have typically 15-days to appeal the suspension. Even if your license is suspended, you may be eligible for an occupational driver's license which would allow you to drive for various reasons including work and household purposes.

Surcharges

If you are convicted of a DWI in Texas, you will be required to pay money for three years after your conviction to maintain your driver's license. For a first DWI the surcharge is $1,000 per year; for a second DWI the surcharge is $1,500 per year, and if your breath test result is greater than 0.16 or greater, the surcharge is $2,000.

My Aggressive Stance

There is generally little, if any, reason to not be aggressive in attacking these cases. The Texas Legislature is continually making laws on DWI and DUI harder and harder and harder. For that reason it is often the case that we don't have anything to lose by taking a stand and fighting these charges.

When choosing a lawyer for defense of a drunk driving charge, be sure to ask how often that lawyer takes cases to trial and what they do to prepare.

*Jeremy F. Rosenthal is an attorney licensed to practice in Texas. Nothing in this article should be considered legal advice. For legal advice about any specific situation you should consult an attorney.

Texas Marijuana Charges for Beginners

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.thecollincountylawyer.com

(972) 562-7549

For Starters

Just because the police see it one way doesn't make it so. Marijuana charges in Texas are thrown out by judges and juries on a daily basis. Aggressive legal representation is a must.

For more advanced issues, read this blawg.

The Nuts and Bolts

Texas Health and Safety Code Section 481.121 governs possession of Marihuana. That provision states, "a person commits an offense if the person knowingly or intentionally possesses a usable quantity of marihuana."

Tex.Health&Saftey.C. Section 481.002(26) defines marihuana as "the plant cannibis sativa L., whether growing or not, the seeds of that plant, and every compound, manufacture, salt, derivative, mixture or preparation of that plant or its seeds."

Possession is defined by Tex.Code.Crim.P. 107(39) as "actual care, custody, control, or management."

Search and Seizure and the Exclusionary Rule

Drug cases will very frequently have search and seizure issues due to how the drugs were attained by law enforcement. The 4th Amendment to the U.S. Constitution prohibits unreasonable search and seizure. Voluminous legal cases and treatises are devoted to the topic. The exclusionary rules (Tex.Code.Crim.P. 38.22 and 38.23) prohibit evidence in trial that is attained illegally.

Search and seizure issues alone often decide marihuana and other drug cases because of the exclusionary rule.

Punishment

Possession of Marijuana is a Class B misdemeanor which is punishable by a fine not to exceed $2,000 and up 180 days in jail for a usable quantity less than 2 ounces.

Between 2 and 4 ounces is a Class A misdemeanor punishable by up to a $4,000 fine and a jail sentence not to exceed 1 year.

Between 4 and 5 ounces is a State Jail Felony punishable between 180 days and 2 years of State Jail and a fine not to exceed $10,000.

Between 5 and 50 pounds of marijuana is a 3rd Degree Felony punishable between 2 and 10 years in prison and a fine not to exceed $10,000.

Between 50 and 2,000 pounds of marijuana is a 2nd Degree Felony punishable between 2 and 20 years of prison and a $10,000 fine.

Over 2,000 pounds is a 1st Degree felony punishable by life in prison or between 5 and 99 years in prison.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice for any specific case you should consult an attorney.