What does it Mean when a Crime is “Aggravated”?

January 18, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

It typically means “worse” or “heightened.”

The term ‘aggravated’ is applied to many different criminal charges and there is no uniform definition as to what allegation renders a charge ‘aggravated’ in any specific case.  One constant is an ‘aggravated’ allegation normally kicks the punishment range up a notch or more.  It can also affect parole eligibility if someone is sent to prison.

Here are the most common “Aggravated” offenses in Texas:

Aggravated Assault – Assault where someone either uses or exhibits a deadly weapon.  It can also mean assault which results in serious bodily injury.  See Texas Penal Code 22.02.

Aggravated Sexual Assault – Sexual assault is generally where a person conducts one of a number of prohibited sexual acts to another (Tex.Pen.C. 22.011).  Aggravated sexual assault can be committed where defendant inflicts serious bodily injury on the victim, assaults a person younger than 14, or a disabled or handicapped person.  Tex.Pen.C. 22.021).

Aggravated Sexual Assault of a Child – sexual assault committed against a child younger than 14 years old.  Sexual assault of a child is committed where a child is between the ages of 14 and younger than 17.

Aggravated Perjury – perjury is making a false statement under oath.  It could be in an affidavit or an official document of some sort.  Aggravated perjury is a false statement during a court case which is considered material in nature to the proceedings.  Perjury is typically a Class a misdemeanor.  Aggravated perjury is elevated to a third degree felony.

Aggravated Robbery – Robbery is typically defined as theft plus assault regardless of how minor either is.  Aggravated Robbery is where a person uses or exhibits a deadly weapon in the commission of the robbery, causes serious bodily injury, or places in fear of imminent bodily injury of a person over 65 years of age or a disabled person.  Robbery is a 2nd Degree felony and aggravated robbery is a 1st degree felony.

Aggravated Kidnapping – Kidnapping is abducting a person.  Aggravated kidnapping is where someone is abducted with the intent to be held for ransom, intent to be used as a human shield, intent to sexually violate, or with intent to terrorize.

Aggravated Promotion of Prostitution – This offense is for those who invest in, finance or promote prostitution of two or more persons.  See Tex.Pen.C. 43.04.

Aggravated Promotion of Online Prostitution – Promotion of prostitution done in a fashion which is online.  Tex.Pen.C. 43.041.

*Jeremy Rosenthal is Board Certified by the Texas Board of Legal Specialization and is licensed to practice in the State of Texas. Nothing in this article constitutes legal advice.

 

 

 


What is a “Sanctions Hearing” in Collin County for Probationers?

January 14, 2020

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

Great question.   If you do a control+f search of the Code of Criminal Procedure, you won’t find it anywhere.  That’s because it’s not in there.  Or anywhere else in Texas law.

Probation officers frequently invite probationers to voluntarily amend their own probation, “or else…”  On the bottom of the form, the Probationer is required to either accept the sanction or face the wrath of the Judge.

Those who dare say no find themselves typically face to face with the Judge – normally without a lawyer.

Here’s What the Law Says the Probation officer Can Legally Do if they Think You’ve Violated Probation:

  1. They can do nothing;
  2. They can recommend the prosecutor file a “Motion to Revoke” probation or a “Motion to Adjudicate” if you are on deferred adjudication.  Those are functionally the same thing – they are seeking to take away your probation and either put you in jail or make your probation tougher.  See Tex.C.Crim.P. 42A.752; or
  3. They can offer you an oral modification to your probation.  That is, they can sit you down and ask you  if voluntarily agree to modify your probation on your own accord – but only for the limited programs they are authorized by law known as “the continuum of care” programs” which generally consist of drug and/or alcohol treatment. See Tex.C.Crim.P. 42A.052(c) and Tex.C.Crim.P. 42A.752(c).

What if you Say No to the Oral Modification?

The law is clear.  The probation officer shall file a motion to revoke or motion to adjudicate your probation.  See 42A.052(c).  That sounds ominous, but remember, it also means you get a lawyer.  And also remember most contested revocations result in some sort of compromise involving changes to probation… as in what the probation officer originally wanted as a sanction often goes away.

There are times you should seriously consider the oral modification.  Full blown revocation may very well be worse than what the probation officer threatens.  Then again, there are often times where the sanctions make very little sense and would be worse than a revocation.

What Happens at the Sanctions Hearing?

The probation officer might ask the judge to impose the sanction with or without your consent.  A trial judge DOES have the legal authority to modify probation or deferred adjudication in any manner they see fit.  Often the judge may just ‘rattle your cage’ by threatening you or warning you without taking any action.

The argument I typically make in these scenarios is the probation officer isn’t really interested in any type of hearing — they are interested in using the power of the Judge to threaten the probationer so the probationer bends to the will of PO.

I also argue the Judge lacks the power to modify probation through such a hearing because the hearing itself is a nullity.

Oh, and I’ve won.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and is licensed to Practice Law in the State of Texas.  Nothing in this article is intended to be legal advice.  For legal advice about any situation you should contact an attorney directly.

 

 

 

 

 

 

 


Bringing Medication With You on Vacation

December 9, 2019

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Disclaimer – I’m writing this blog as a public service, not because we handle or help coordinate this type of situation.  We would only get involved if you actually got arrested – and did so in Texas.  We’ve just gotten enough calls about this topic for me to throw up a blog about it.  Also, I’m licensed in Texas so I can tell you laws here but not elsewhere.

That said – possessing drugs without a perscription is typically a criminal offense.  Texas has an affirmative defense that if you have a prescription for the medication then it isn’t an offense.  So it would always seem safest to travel with the prescription bottle or container right there on the label.  I can’t imagine that isn’t the law everywhere in the U.S.

Don’t mix medications within one container, consolidate medications in one container, or take your medications in an unlabled baggie or container.  Those would all be recipes for getting hassled.  Bring only the amount you need or anticipate needing while budgeting for an emergency.

Here is a good article from the NY Times about traveling with medication.  Good luck and enjoy your safe travels!  If you have any additional questions then you should contact an attorney directly.

*Jeremy Rosenthal is Licensed in Texas and is Board Certified in Criminal Law.

 


What is a Magistrate’s Order for Emergency Protection?

November 18, 2019

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

These are known as Emergency Protective Orders or EPOs.  They can be extremely disruptive, costly, and exacerbate emotional distress of the entire family on top of the havoc a domestic violence arrest already inflicts.

Texas law allows a police officer making an arrest to ask a magistrate judge for an EPO.  The officer does not need the consent of anyone else including the complaining witness to seek the Order.

Violation of the Order can be a serious misdemeanor as well.  Each Emergency Protective Order is different from the next.  Don’t assume an EPO prohibits or doesn’t prohibit certain activities.

Most of these orders require the accused to stay a certain distance away from the alleged victim and other family members.  They also often prohibit either direct or indirect communication.

Direct communication is typically construed as phone calls, text messages or communications on social media.  Indirect communication is typically where the Defendant has a friend — often a mutual friend – make contact with the complaining witness.  Both are normally violations.

The length of the EPO can vary but for most assault cases in Collin County they may last either 91 or 61 days.

An EPO Can Be Destructive

Following an Emergency Protective Orders can require a person live in a hotel or other temporary accommodations because they are prohibited from going to their residence.  Two months in a hotel means two months of paying double for housing.  Further, where a couple has children, one parent — usually the complaining witness — is saddled with 100% of the childcare for that time as well.  While the goal is to allow a couple time away to that emotions and physical conflict cool it can have the effect of throwing a family further in chaos.

How do I Get My Stuff?

EPOs create immediate logistical headaches.  If you can’t call your spouse or can’t communicate with them through a friend — then how are you supposed to get your clothes, work laptop, or medications?

Most Protective Orders provide for some type of safe harbor within the first 24 hours to get these things arranged.  Read the fine print carefully.  You may be allowed to have a friend or representative get whatever you need quickly.

What to Be Careful about with Emergency Protective Orders

Always make sure you read the details carefully — and if you have any questions at all about the specific provisions of your EPO be sure to ask a lawyer.

Communicating with the protected person while under an EPO can lead to lots of problems.  Frequently it is the victim reaching out to the Defendant — but no matter — the Defendant still commits an offense by engaging in that communication.

What Can A Lawyer Do?

A Lawyer Can Communicate Directly with the Alleged Victim

I’ve yet to see a protective order without language exempting the lawyer from the communication prohibition.  This is because lawyers have legal and ethical duties to investigate their case.  Don’t expect your lawyer to be an on-going courier or go-between, however, your lawyer can assist in coordinating necessary issues in addition to planning towards long-term goals of your case.

A Lawyer Can Help Get the Order Modified

Most judges will modify a protective order so long as everyone is in agreement — usually both spouses or both persons involved in the altercation.  The magistrate may drag their feet or do it slowly so as to allow the parties a colling down period but most magistrates don’t wish to impose the additional hardship an EPO can cause.

 

*Jeremy Rosenthal is Board Certified in Criminal Law and is licensed to practice in the State of Texas.

 


Do I Need a Lawyer for Domestic Assault?

November 16, 2019

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Absolutely.

Politicians in Austin frequently try to impress their constituents by getting tougher, and tougher, and tougher with these cases.  The result are laws which seem to get worse and worse and are filled with trap doors designed to punish people forever.

Machine-Type Prosecution

Prosecution in these types of cases tends to be delegated to a specific division of most larger DA’s offices. Their approach is often a one-size-fits-all and is dictated by policy and their theories about domestic violence rather than the facts of any specific case.  Some prosecutors will hear your side of the story out — and many others will pretend to hear you out.  What the prosecutor really needs to do is fear they will lose if you took the case to trial.  A person without a lawyer is definitely at a disadvantage.

The Law is Complex

Though the politicians in Austin and the prosecutors might feel as though everyone accused is guilty — the good news is the framers of the U.S. Constitution didn’t.  There are strong constitutional protections in Assault/ Family Violence “AFV” cases from your right to confront witnesses under the 6th Amendment.

Also, there are several common defense which often apply in the form of self-defense or consent.  Knowing how these defenses apply and work in a courtroom is not simple either.

Beware of Long-Term Trap Doors

AFV cases are laden with traps designed to ensnare those accused into pleading guilty.  The state normally tries to levy an “affirmative finding of family violence” even when someone gets the case reduced or takes deferred adjudication.  This finding can enhance future allegations to felonies, can prevent firearm ownership, and can even prevent future adoption… but not much of this is advertised on the front end.

Also – there are restrictions on hiding these cases from the public even where you’ve successfully completed a deferred adjudication which, again, can be very legally complex.

You Need A Lawyer

If you read the rest of my blog posts then you can see I’m not big on scare tactics.  There are probably cases here and there where you might not need a lawyer.  This isn’t one of them.  Domestic assault is one of several legislative flash-points in Austin.  Don’t do this alone!

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He is a Licensed Attorney in the State of Texas.