How Drug Charges Get Enhanced in Texas

Police and prosecutors have many tools at their disposal to try and enhance drug cases to higher punishments. Because many off them still believe the only way to fight the war on drugs is to load our jails and prisons with everyday people -- they can and do get very creative with how they attempt to maximize charges.

Drug Free Zones

Drug charges can be increased if the offense is alleged to have occurred in a "drug free zone." Drug free zones can be very complicated under the Health and Safety Code 481.134(a). They obviously includes schools, but also includes playgrounds where there are three or more apparati. Also included are facilities such as private day-care centers and even places such as public gyms that supervise children for an hour or so while their parents exercise! There are other technical issues such as the degree of public access which make these issues very legally intensive.

Police can and do go to great measures to show that a drug offense was committed in a "drug free zone" even where the zone may be coincidental to the case. Again, the code is complicated and merely because the police think it qualifies as a drug free zone doesn't make it so.

Intent to Distribute

Although the statutory language differs with regards to the quantities and the substances involved, generally speaking, charges can be increased where a person, "knowingly manufactures, delivers, or possesses with intent to deliver" the contraband in question. [See e.g. Health and Safety Code 481.112(a) dealing with penalty group 1.]

Police and prosecutors typically try to demonstrate this through surrounding circumstances such as quantity of the drugs found, whether there is paraphernalia which would suggest sales such as plastic baggies, scales, excessive cash, etc. Obviously, sometimes police will attempt to observe actual drug transactions as well.

In summation, aggressive law enforcement and prosecutors can and do find many ways to try and increase punishment ranges for criminal drug cases. Often times they over-reach, and this is where an experienced criminal drug defense lawyer can be of great assistance.

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 should be considered legal advice. For legal advice you should directly consult an attorney.

www.thecollincountylawyer.com

The Legal Definition of Drug Possession

Drug crimes in Texas operate very similarly to one another regardless of the substance alleged to be possessed. While the specific substance and the quantity dictate the level of offense, the law of "possession" in Texas is consistent.

Many people feel as though because they were in a situation where drugs were present that they are guilty of an offense. Not so in Texas.

"Possession" is defined by Texas Penal Code 1.07(a)(39) as "actual care, custody, control or management."

The operative word (in my opinion) is "actual." This means the prosecution must prove the drugs were in your possession -- i.e. that the defendant ACTUALLY exercised some degree of of care, custody, control or management -- of whatever contraband they have alleged the accused possessed.

If you think about how the police tend to encounter drugs -- then you begin to get an idea of the struggles at trial of how the prosecutor attempts to persuade a jury that the accused actually possessed drugs (and the task of the defense lawyer to defend against the allegations). Some arrests are done when the drugs are found somewhere in a car. Some arrests are the result of drugs found under a search warrant, and some arrests come from pat-downs of someone's person. In many instances, it's not clear who possessed or controlled the drugs.

Generally, the prosecution must show some affirmative link between the accused and the contraband. This means they present circumstantial evidence of possession -- for example if drugs are found in a car -- who is the car's owner? Who was driving? Who could have put the drugs where they were found?

Case law is very particular about "affirmative links" and where no legal affirmative links exist -- a defendant may legally be entitled to acquittal as the State's evidence of "possession" may be insufficient.

Defending drug possession cases is a very technical and detail oriented task for experienced criminal defense attorneys.

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 legal advice, you should consult an attorney.

www.thecollincountylawyer.com

Do I need an Attorney for Drug Charges in Texas?

Yes. The law of drug possession and/or distribution is a highly complex area. The law surrounding possession, search and seizure, or what it means to have intent to distribute are just some some of the highly technical issues encountered in Texas drug cases.

Law enforcement is typically not interested in your side of the story -- and that is where effective advocacy plays a role as well. Just because the prosecutor and the police believe there is only their side to the story doesn't make it so. It is the Judge and Jury that often decide.

Even in situations where someone may have a substance abuse problem -- Texas has long had the mentality that harsh punishment and cruelty will cure substance abuse. While many prosecutors and judges are now getting the message -- that these problems don't solve themselves -- stiff criminal penalties and criminal records can still haunt people for the rest of their lives.

If you're facing drug possession or distribution charges whether it be for Marijuana, cocaine, or any other type of drug, an attorney can help attain the best result possible in your case.

Jeremy F. Rosenthal, Esq.

(972) 369-0577

*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 directly consult an attorney.

www.thecollincountylawyer.com

When a Texas Officer can Arrest for Assault

Generally speaking, an officer can make an arrest for offenses (against the peace) viewed in their presence or, of course, if they have an arrest warrant. Assault cases, however, typically aren't committed in an officer's presence... but they are governed by their own statute instead -- Texas Code of Criminal Procedure 14.03.

As an example, here is a recent article on a situation where two brothers at a Plano home apparently got into some sort of scuffle and where one went to jail after the police were called.

14.03 specifically allows officers to make an arrest where they have probable cause to believe someone has committed family violence, violated a protective order, have prevented someone from placing a 911 call, assaulted a non-family member and there remains a risk of further violence towards the alleged victim, alleged sexual assaults and various other circumstances.

Basically, if the situation involves violence, the legislature has broadened the officer's ability to arrest.

It is possible some police agencies have actual policies about making arrests during these situations, but it is the rare exception that the law requires an arrest during an assaultive situation under 14.03. (The statute only uses the word "shall" in conjunction with an arrest for violations of protective orders -- meaning that is the only time the officer is actually legally required to make an arrest.

In the situation with the Plano teenagers, it obviously appears the officers had at least the legal authority to make the arrest. Whether the case is charged and prosecuted is another matter.

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 directly.

www.thecollincountylawyer.com

Husband - Wife Privileges in Assault Cases

In domestic violence cases in Dallas and Collin Counties, the prosecution can and will force one spouse to testify against another -- often against their will. I am often asked in disbelief in assault cases "can they really do this?" Unfortunately the answer is, "yes."

Texas Rule of Evidence 504 governs the husband-wife privilege. Generally speaking, any communication made to one's spouse is privileged under that rule during and even after the marriage. Either spouse may assert the privilege whether they are a party to a case or not. Unfortunately, the husband-wife privilege is riddled with far more exceptions than other privileges (such as the attorney-client privilege).

Tex.R.Evid. 504(a)(4)(D) is just one of the specific exceptions to this rule of privilege. That rule states a spouse can be compelled to testify against their other spouse if that spouse is considered the victim of the crime or if any other member of the household or any minor child.

Additionally, it is important to note that in some cases, the testimony attempted to be compelled out of the "victim" spouse is not regarding communication but regarding conduct. Obviously the privilege in and of itself only applies to "communications" in the first place. The privilege, therefore, cannot be used to prevent disclosure of facts surrounding an incident where family violence has been alleged.

The state in assault cases must still prove their case beyond all reasonable doubt. Jurors are very sensitive to situations where it is clear one spouse does not want to testify against the other and don't always appreciate the police and/or the state being overly-invasive of a family... so even where a spouse is compelled to testify against their will -- the cases can and do frequently result in acquittals.

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 should be considered legal advice. For legal advice about any situation you should always directly consult an attorney.

www.thecollincountylawyer.com

Mens Rea -- The Guilty Mind

Here is some legal theory or law school 101 if you will.

Something every first-year law student learns in criminal law is about the concept of "Mens Rea" which is latin for "guilty mind." When a guilty mind is combined with a "guilty act" (or actus reus), then under common law, a crime has been committed.

Most, but not all, crimes today have a mens rea requirement. For example, to prove the crime of theft the prosecution must show the guilty act of appropriation of property (actus reus) plus the intent of the taker to deprive the owner of the property without consent (mens rea). An example of a crime where there is no mens rea is strict liability crime -- like statutory rape or what is known as an inchoate crime which is a crime of omission -- like failure to stop and render aid. Inchoate crimes typically require a special relationship between the victim and the accused.

Modern criminal law has even varied the levels of mens rea. Crimes enacted by code in Texas and the U.S. Government can require greater or lesser mental states for offenses. Some offenses such as Arson are called specific intent crimes -- meaning that the actor had to specifically intend the result of the crime. Other crimes have lesser mental states meaning that if a person committed an offense "knowingly" or even less, with "criminal negligence" then they are guilty.

An example of a crime in Texas where criminal negligence is sufficient to convict is selling alcohol to a minor. In that type of a case, the actual intent of the defendant need not be proven as long as the jury believes the defendant acted with "criminal negligence."

The charging instrument (an information in a misdemeanor case or an indictment in a felony) will detail which of the mental states is being alleged. Any and every criminal defense lawyer should read the charging instrument in your criminal case. If the state proves the greater mental state then they have, as a matter of law, proved the lesser.

Discussing legal theory is like pulling the loose end of a sweater. We could discuss this topic all day and all night. If you're interested in more discussion, you can read more here or here.

Jeremy F. Rosenthal, Esq.

(972) 562-7549

*Jeremy 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 your case you should consult an attorney.

www.thecollincountylawyer.com

The Attorney - Client Privilege

The attorney client privilege prevents an attorney from revealing confidential communications and other facts they have learned by reason of the attorney-client relationship.

For criminal cases in Texas, the attorney client privilege is controlled by Texas Rule of Evidence 503(b)(2) which is called the "special rule of privilege in criminal cases." That rule states, "in criminal cases, a client has a privilege to prevent the lawyer or lawyer's representative from disclosing any other fact which came to the knowledge of the lawyer or the lawyer's representative by reason of the attorney-client relationship."

A confidential communication is defined by the rules as a communication "... not intended to be disclosed to third persons..." I put the words in bold above to highlight the fact that the criminal privilege is even broader than the privilege in civil cases. This means that the lawyer cannot reveal any communication not intended to be disclosed to third persons nor any other fact which came to the knowledge of the lawyer by reason of the attorney client relationship.

Here's what this means in English for Texas criminal cases: virtually everything your lawyer knows about the case (assuming he learned it from you or by investigating your case) is privileged. The lawyer cannot be compelled by law enforcement or even a judge to disclose confidential information. If you take the Texas rule to it's logical extreme -- even the mere fact that you visited with an attorney could be considered privileged information! This goes for situations where you're actually charged with a crime or even just the subject of an investigation.

The attorney-client privilege is an extremely important and powerful privilege for the reason that without it -- an individual may never confide in their attorney critical information needed for their defense. People charged with crimes can and do still feel tepid at times revealing information to their attorney. Whether that be for lack of trust or for mere embarrassment -- the law does everything possible to facilitate communication between you and your attorney.

As with practically everything in the law -- there are exceptions. An attorney may not aid the furtherance of a crime or a fraud and communications regarding the same are not privileged. Also an attorney has an affirmative duty to report the abuse or neglect of a child or to report a situation where someone may be in immanent danger. As a general rule, if the facts or disclosure is about something that has happened in the past in a criminal case -- then it will almost always be privileged.

The attorney - client privilege is at the cornerstone of the lawyer - client relationship and is one of the fundamentals of our criminal justice system.

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 case you should directly consult an attorney.

www.thecollincountylawyer.com