Motions to Suppress

A Motion to Suppress is where a criminal defendant challenges the legality of a search, seizure, arrest and/or attainment of evidence they allege to have been obtained by law enforcement illegally. If the defendant wins their motion, the evidence is excluded at trial. Depending on the facts of any specific case, the suppression of evidence may mean the State's evidence at trial will be insufficient to sustain a conviction -- or it may only eliminate the jury considering damaging evidence during the trial.

Texas Code of Criminal Procedure 38.23 says in relevant part, "No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case."

This provision stems from the Fourth Amendment to the U.S. Constitution and it's prohibition against unreasonable search and seizures. Search and seizure law and determining what is or is not a valid or legal arrest, search and/or seizure is a highly complex and highly complicated area of the law.

In Texas, there is actually a legal presumption that if a search is warrant-less, that the search is invalid. The prosecution can over-come this burden with clear and convincing evidence that the search was valid during a hearing before the Judge.

Motions to suppress are common ways of defending criminal cases. Again, if evidence is attained illegally and it is excluded, the prosecution may lose it's only evidence as to certain elements of the case. Where this is the case, they lose as a matter of law. This isn't always the case, though, where the prosecution has other ways of proving a crime independent of the illegally attained evidence.

Jeremy F. Rosenthal, Esq.

(972) 562-7549

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

www.thecollincountylawyer.com

A Prosecutor's Duty to Seek Justice

A prosecutor has a statutory duty to seek justice. Texas Code of Criminal Procedure Section 2.01 says in relevent part, "It shall be the primary duty of all prosecuting attorneys, including any special prosecutors, not to convict, but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused."

This statute is a crucial safeguard in the criminal justice system which should not be diminished nor ignored. This provision is highly subjective and can be very frustrating... as a defendant's remedy for the prosecutor's breach of this duty may not equal the great harm the prosecutor has inflicted.

The main frustration in the everyday practice of criminal defense law is that the gatekeeper of what is in "the best interest of justice" for any given situation is the prosecutor themselves. Most prosecutors take their duty very seriously. As with any given set of human beings, though, some approach it in a misguided manner and abuse their discretion whether they know it or not.

What is "in the best interest of justice" is highly subjective. Examples of judgment calls a prosecutor must make range from interpreting whether evidence is favorable to the excused or is exculpatory (tending to prove innocence) and thus making the evidence mandatory to disclose. Other examples include whether to reduce charges in certain situations. Again, much difficulty comes from the fact that the prosecutor is engaging in an adversarial process where they, unlike the judge or jury, are not required to presume the accused as innocent. Therefore, some prosecutors, if they don't think innocent people ever get accused, can view their duty to seek justice far more narrowly than everyone else.

Unfortunately there isn't much of a remedy for many prosecutorial decisions, but some misconduct can result in sanctions, new trials, and even acquittals from the Courts.

Brady violations, generally referring to a failure to disclose exculpatory evidence for guilt or favorable evidence for punishment, are the main area for prosecutorial discipline. Some Brady offenses are worse than others, but in extreme cases, Courts have actually acquitted accused people due to those violations.

Jeremy F. Rosenthal, Esq.

(972) 562-7549

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

www.thecollincountylawyer.com

When You can Get Deferred Adjudication in Texas and When You Can't

Deferred adjudication is available on many crimes in Texas. Most people are familiar with deferred for traffic tickets but the truth is the concept is far more expansive.

Virtually every offense in Texas is legally subject to deferred with the exception to DWI offenses, (Tex.Pen.C. 49.04 - 49.08), capital offenses, certain sex offenses, and certain repeat offenses (typically sex offenses or selling drugs in drug free zones). Texas Code of Criminal Procedure section 42.12 Section 5 governs deferred and it's availability.

The main reason why deferred is denied on cases where the code otherwise says you're eligible is due to certain policies of local prosecuting attorneys. In order to get deferred in the first place, you must plead guilty -- and to plead guilty you usually have a deal in place with the prosecutor. If the prosecutor won't agree to deferred, or won't agree to what is known as an 'open plea,' then deferred is not an option.

Collin County, for example, has an office policy that no person with a previous criminal record (other than minor traffic offenses) is eligible for deferred on any case. Additionally, they have policies against deferred on instances of employee theft, for example. Even though the code says deferred is okay in these situations, the state (that in many ways is the gate-keeper of deferred) may not agree. Then again, they have a duty to act in the best interest of justice, so they're ears aren't always closed.

As with which cases a person may receive community supervision, in certain situations for deferred, the statutory scheme gets tricky and you should consult an attorney if you have any questions.

I have discussed in previous blawgs the other pros and cons of deferred here, and here. Never assume that by pleading guilty (or nolo contendere) and getting deferred that your criminal record will be unharmed or will undo itself.

Jeremy F. Rosenthal, Esq.

(972) 562-7549

*Jeremy Rosenthal is an attorney licensed to practice in the State of Texas. Nothing in this article should be considered leal advice. For legal advise specific to your situation you should directly consult an attorney.

www.thecollincountylawyer.com

Probation Eligibility in Texas

All Class B misdemeanors and above in Texas carry possible jail sentences. Even where people are convicted or plead guilty, however, probation is often an option. No attorney can guarantee you a certain result with getting on probation (or community supervision as it's known). Calculating probation eligibility can be complicated to figure out.

For a quick reference, probation eligibility and deferred adjudication eligibility are governed by Tex.Code.Crim.P. 42.12.

A judge can place any person on community supervision (probation) for a misdemeanor offense regardless of criminal history. This includes DWI (1st and 2nd), theft below $1,500, possession of marijuana (under 4 oz.), and assault causing bodily injury. This can be done during a guilty plea or at trial -- by selecting the judge over the jury for punishment. For a jury to give community supervision during a trial, for a misdemeanor or a felony, the defendant must file prior to the trial, a sworn application stating they have not been convicted of a felony offense in Texas or any other state.

Felony offenses where a judge cannot give probation include (but aren't limited to): capital murder, murder, indecency with a child, aggravated kidnapping, aggravated sexual assault, aggravated robbery, first-degree injury to a child or elderly person and certain drug offenses in drug-free school zones where there has been a prior similar record. Upon conviction juries also cannot make a binding recommendation for probation on some, but not all, of these offenses. This means on some offenses, a jury can give you probation where the judge cannot.

Whether or not people are eligible for deferred adjudication for some of these offenses is a different matter. Deferred adjudication is a different form of community supervision. To get deferred on anything, the defendant must plead guilty. This article is mainly geared at persons that have a trial on the merits.

Judges can order jail time as a "term and condition" of community supervision (typically called T & C time) which means that the individual must complete the a jail sentence to be allowed to proceed on community supervision. Those times are not to exceed 30 days in a misdemeanor or 180 days in a felony.

It is extremely important to note that in felony offenses, eligibility for probation and/or deferred can be very complex and complicated. It is always best to consult an attorney about specific circumstances.

Jeremy F. Rosenthal, Esq.

(972) 562-7549

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

www.thecollincountylawyer.com

Theft Classifications

Criminal charges for theft in Texas depend on the amount or value alleged to have been stolen. Regardless of how small a theft charge may be, however, the stigma attached with a theft charge is extremely damaging.

Below $50; Class C misdemeanor (Fine not to exceed $500).

Between $50 and $500; Class B misdemeanor (up to 180 days county jail and/or $2,000 fine). Theft by check is a Class B misdemeanor where the check was above $20 even though the amount would normally qualify for a Class C.

$500 to $1,500; Class A misdemeanor (up to 1 year county jail and/or $4,000 fine).

$1,500 to $20,000; State Jail Felony (between 180 days and 2 years State jail and fine up to $10,000).

$20,000 to $100,000; Third Degree Felony (between 2 and 10 years TDC and fine not to exceed $10,000).

$100,000 to $200,000; Second Degree felony (between 2 and 20 years TDC and fine not to exceed $10,000).

$200,000 and above; First Degree felony (between 5 and 99 years TDC and fine up to $10,000).

Theft crimes are also subject to enhancements. For example, two final theft convictions in any amount can make a third theft conviction in any amount a State Jail Felony. This means a petty theft of a pack of chewing gum could conceivably be a felony with two prior theft convictions in the past.

Regardless of the amount -- there is no such thing as a small theft charge.

Jeremy F. Rosenthal, Esq.

(972) 562-7549

*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 you should consult an attorney.

www.thecollincountylawyer.com

Punting Your Rights Away: Agreeing to a Warrant-less Search

Nothing good can happen from a voluntary search. At best, nothing bad will happen. Who would ever make a business decision, take a gamble, or play a game with those odds?

In Texas, if you give consent search, your lawyer will have an extremely difficult (if not impossible) time having any evidence of an offense suppressed.

Most people don't know that police can't just dig through your car or house just because they want to. Police must play within the rules and can only search without a warrant or consent during a hand-full of situations. In fact, Texas law actually presumes that a warrant-less search is actually invalid. Where you agree to allow the officer to search, however, you've punted your rights away.

Police won't tell you this, but you've got the right under the Fourth Amendment to the U.S. Constitution and Article 9, Section 1 of the Texas Constitution to be free from unreasonable search and seizure. You can refuse many searches. There are some situations where the police don't need your consent -- such as search warrants. In those situations, your remedy is to fight the search in court later.

Refusing to allow an officer to search during a traffic stop, for example, is easier said than done. First of all, the vast majority of the time the officer knows (1) what he or she is after; (2) the law with search and seizure; (3) the magic words they need to get you to say to waive your rights; and (4) most people they encounter on the road are subservient to authority and will have a hard time saying no if pressed.

Many people think that if they refuse the search, the officer may become agitated and retaliate somehow by writing more tickets, calling other police to the scene, or trying to search anyway. Some, all, or none of these things may happen -- but what will absolutely happen is that you will waive your valuable rights which will be painfully obvious during later court proceedings. If we were to stack all the 4th Amendment cases, the pages would go all the way to the moon. Courts have dealt with virtually any scenario you can think of... and the police really do have tons of limitations you may not know about.

Here's a video from the ACLU that talks about police encounters. It's a bit odd and goofy, but is very informational and captures the general tone of some police encounters. It's obviously not a "how to get away with breaking the law" video, but is intended (as with this blog) to be generally informative of legal rights.

Jeremy F. Rosenthal, Esq.

(972) 562-7549

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

Texas Grand Jury FAQ's

What is a Grand Jury:

A Grand Jury is a panel that decides whether a felony should be indicted or not. The DA's office can file misdemeanors on their own, however, to file felony charges a grand jury must agree there is probable cause.

Grand jury meetings are secretive and confidential. The public has no access to their deliberations. Typically they deliberate matters brought before them by the District Attorneys office. Here is a link to some technical and historical information about Texas grand juries.

Grand Jury Findings

Grand juries can do several things with cases they hear. They can issue a true bill which equals a felony indictment or they can issue a no-bill turning the case down. Occasionally they will charge a person with a misdemeanor instead of a felony through indictment. After a true bill is issued, the case gets assigned to a court and proceeds normally.

Criminal Defendant's Rights During Grand Jury Proceedings

If you really think about it... having a grand jury as a hurdle for the prosecution in and of itself is the only real right you have in this process (in theory anyway).

A criminal defendant does not have the right to testify at the grand jury nor does your attorney have the right to be present. Because the proceedings are secretive the transcript, if any, is not available. You can't even watch.

What Can I Do If I'm Under Grand Jury Investigation of if I Get a Grand Jury Letter?

Call an attorney. The prosecutors have discretion to allow your attorney to submit a packet of information to a grand jury to attempt to dissuade them from indictment. Also the prosecutor can agree to allow you to testify before the grand jury -- but not in the presence of your attorney. On many cases, prosecutors have incentive to negotiate with you prior to your case going to grand jury. As a policy, Collin County DA's office will not negotiate with people at the grand jury phase that are unrepresented by counsel. This may seem like a frustrating policy -- but frankly it's for your own protection. Grand jury situations are very complicated and the ramifications are very serious if mismanaged.

Jeremy F. Rosenthal, Esq.

(972) 562-7549

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

www.thecollincountylawyer.com