Is it a Crime to Have a Positive Drug Test?

October 21, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

It’s not a crime in Texas to fail a drug test or urine analysis (“UA”).  Possession of any illegal drug such as marijuana, cocaine, or any other controlled substance without a prescription is defined as “actual care, custody, control or management.”  Tex.Pen.C. 1.07(39).  Failing a UA does not demonstrate this as backward as it may sound.

Texas courts apply what is known as the Corpus Delecti rule.  Corpus Delecti is latin for “body of the crime.”  The prosecution in every case must prove a crime was committed.  An out of court confession, in and of itself, is never enough to sustain a conviction.

A classic and more clear example of corpus delicti is someone who confesses to arson – yet the building the person claims to have burned to the ground is completely unharmed.  Legally, this is indistinguishable from a person failing a drug test to prove a person had “actual care, custody, control or management” of a drug they shouldn’t have had.

You Can Still Be in Trouble for Failing Drug Tests

If you are on bond for a crime – a failed UA is legally sufficient to hold your bond insufficient and have you re-arrested.  It can also be grounds for a motion to revoke probation or a motion to adjudicate.  This is because the formal requirements of the corpus delicti rule are loosened for these proceedings and because typically terms of bond and/or probation are more broad as well to prohibit failing drug tests.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He is designated as a Texas Super Lawyer by Thomson Reuters.

Will My Probation Get Revoked?

October 20, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

Legally you could be revoked for showing up late to probation – but that’s obviously an extreme and unlikely scenario.  There are countless variables which go into whether or not your probations revoked – so each case is truly unique.

Those variables can be things like the nature of the underlying offense?  How severe is the new infraction?  Have there been other infractions?  Is the probation officer understanding about your situation?  Are they lazy?  Are they a jerk?  Passive?  Controlling?  What does your county typically do with similar cases and infractions?  The list goes on and on and on.

I get plenty of calls asking me this exact question… will I be revoked?  I understand the anxiety and uncertainty of the position the probationer is in and I really do my best to try and handicap each situation.  But each situation is very different.  Here are some general guideposts, though:

Is the Probation Violation a New Offense or Crime?

If you’ve been arrested again for a new charge your probation officer probably doesn’t have much say in whether or not a motion to revoke or motion to adjudicate is filed.  Those are likely to be dictated by office policy and your PO’s hands are usually tied.

If you do get arrested for something new – and you don’t get revoked – count yourself lucky.

Every probation plan or order I’ve ever seen requires a person to notify their officer upon a new arrest.  So it’s normally a separate probation violation not to disclose it.

“Technical” Violations of Probation

We typically refer to issues such as failure to do community service or take classes as “technical” violations.  Whether your probation is revoked based on a “technical” violation is up to your probation officer.  Failure to pay fines and money fits into a bit of a different legal category – so I’m not including that here.

It really is impossible to quantify what each individual probation officer would do in any county in Texas in any given scenario.  If you’re on probation for drugs or DWI and you’ve done 90 out of 100 hours of community service – I like your odds of not being revoked more than if you’re on probation for a violent crime and have done 0 out of 100 hours of community service.

I also like your odds of not being revoked on a “technical” violation more if you’ve never been in trouble with your PO before than if your PO has already given you 5 warnings about the same thing.

Positive Drug Tests

This is a very common trigger for a revocation or adjudication.  My experience is it takes more than one – but this is an area where each county is different.  The main reason a single positive UA probably won’t get you revoked is your PO has a lot of options at their disposal to remedy or punish short of full-blown revocation.  It could include a jail sanction, additional classes, or even them asking you to extend your probation.

But Here’s What Experience Teaches Me — At Least in Collin County

It never hurts to be on your probation officer’s “nice” list and not “naughty” list.

Being a probation officer is a very tough job as much as I might criticize them.  Most are over-worked and under paid.  They are like you and I.  I’m guessing it’s easy for them to deal with most people on their case load — and then they have some they deal with regularly who aren’t very pleasant to work with at all.

I don’t think many probation officers show up to work looking to screw people.  The fact is they have enough headaches on their case load without inventing more.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He is a Texas Super Lawyer as designated by Thomson Reuters.


Mental Illness & Criminal Law: Mitigation

October 19, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

Mitigation is the single biggest way mental illness impacts court cases.  Mitigation is the act of reducing the severity, seriousness or painfulness of something.  Mental health and mental illness often tell the story of what is really going on in any given situation.  It can show the judge, jury, prosecutor and often the victim the reasons for defendant’s actions.

To recap, this week I’ve covered the major ways mental illness affects criminal cases and what the courts are doing about it:


Texas law and courts have made strides on dealing with people suffering from a difficult mental or emotional disorder.  But as discussed previously, it is very hard to establish the insanity defense in Texas.  To be Not Guilty by Reason of Insanity, a person can have zero appreciation between the difference between right and wrong.

So what about the scores of cases where someone’s mind and judgement are over-powered by anxiety, racing thoughts, or in some instances delusions to the point they act horribly out of character yet they had an inkling what they were doing was wrong?  These are the vast majority of cases and these are the cases where the mental health issues constitute mitigation.

How Do You Establish Someone’s Mental Health Was to Blame?

It often speaks for itself.  Forensic psychologists or psychiatrists can often do evaluations and put a formal diagnosis to help explain the symptoms the person was experiencing.  The mental health professionals can also discuss the appropriate future treatment and progress of the person and show the path forward.

Professionals and experts also helps because many prosecutors, judges, jurors and even victims of the crime can be cynics who accuse someone of malingering or faking mental illness.  The forensic psychologists and/or psychiatrists help debunk this. In reality people malinger less than 5% of the time and even those who do malinger do so because of of different disorders than the one they fake.

The Path Forward

Everyone needs to see the path forward for the accused when it is the mental disorder largely to blame for a criminal situation.  The path may include inpatient or outpatient treatment, medication, and continued supervision.

Often the path forward may require changes to an existing plan which hasn’t worked – or to adjust the aggressiveness of a plan.  Frequently it includes dealing with an addiction which has developed when someone has self-medicated because of their disorder.

Going forward and showing judges, juries, prosecutors and victims the accused can and will control things better in the future requires lots of hard work from not only the defendant – but often their loved ones too.  But anyone reading this post already knows this.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He has been designated as a Texas Super Lawyer by Thompson Reuters.

Mental Illness & Criminal Law: The Insanity Defense

October 18, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

Not guilty by reason of insanity (“NGRI”) is a defense where the accused did not appreciate the difference between right and wrong because of their mental illness or impairment.

In Texas, though, the insanity must be a complete defense.  That is, the person’s criminal act must be entirely because of the insanity or whatever false delusion they were having.  If they even slightly had the ability to decipher right from wrong then the law does not allow for acquittal under the insanity defense.

Mens Rea

Most crimes have what the law calls a “culpable mental state.”  Mens Rea is latin for “guilty mind.”  When a person commits assault, murder, theft or runs an illegal casino – they do so with the culpable mental state which accompanies the crime.  That is, they either intend, know or in some instances are reckless as to whether the illegal result occurs.

A criminal charge punishes a criminal act when accompanied with a criminal mind – or so the theory goes.

An Insanity Defense Negates the Mens Rea

Where there is no guilty mind most cases would not allow a person to be ‘punished.’

Here is of how NGRI works or wouldn’t work:

  • Where someone is under the delusion the world is under attack by aliens – and Wal-Mart has graciously opened their doors so that everyone can grab whatever supplies they need and run for the hills… this could be an insanity defense for theft because under the person’s delusion, they are still not committing theft.  Wal-Mart authorized them to take the supplies given the circumstances.
  • Where a person is under the delusion the newspaper delivery person is a North Korean soldier flinging a grenade a their house – and the person returns fire in self defense, they could actually be acquitted due to NGRI because if that delusion were true, the defendant wouldn’t be committing a crime.
  • On the flip side — let’s say someone heard voices in their head which were unrelenting telling them to take supplies from Wall-Mart for whatever reason.  This might not be NGRI because the person still knew taking was wrong.

There are many more variations and real world examples can be both far fetched at times and in other instances gruesome and tragic.

What Happens When the Court Finds Someone Not Guilty By Reason of Insanity?

The Court retains jurisdiction over the person.  The person can often times be committed to a State Hospital where they can be treated or restored.

The period for restoration cannot exceed the maximum punishment.  But in some instances like in murder cases – that could result in lifetime confinement in a State Hospital.

A person acquitted based on an insanity defense cannot expunge their record – so public records would always remain about their situation.

Misnomers About the Insanity Defense

Texas puts the burden on the accused to prove insanity.  It can also only be done where Defense has expert testimony from a professional who can establish the person could not in any way decipher right from wrong.

Many folks understandably get upset with people who plead insanity or are acquitted due to insanity and see it as an easy escape hatch to avoid consequences.   NGRI is a difficult mountain to climb for criminal defendants, though, and the reward for winning is normally going to a State Hospital for an undetermined amount of time plus a permanent criminal record – though not necessarily a conviction.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and is designated as a Texas Super Lawyer by Thomson Reuters.

Mental Illness & Criminal Law: What is Legal Competency?

October 17, 2020

By Criminal Defense Laywer Jeremy Rosenthal

(972) 369-0577

“Competency” is the ability to stand trial.  Texas law provides a complex web of procedures which deal with making sure an accused is mentally capable of being tried.

“Incompetency Defined”

It is defined by Tex.Code.Crim.P. 46B.003 which holds:

(a) A person is incompetent to stand trial if the person does not have:

(1) sufficient present ability to consult with the person’s lawyer with a reasonable degree of rational understanding; or

(2) a rational as well as factual understanding of the proceedings against the person.

(b) A defendant is presumed competent to stand trial and shall be found competent to stand trial unless proved incompetent by a preponderance of the evidence.

Translation:  competency is a somewhat low threshold.

A Rational, Factual Understanding Isn’t Enough

A misnomer is where a person understands basics about their charge such as the nature of the accusation, the role of defense counsel, the prosecutor and the judge – that they are okay to be tried.  Even judges make this mistake.

The person’s “sufficient present ability to consult with the person’s lawyer” is also crucial.  Often highly intelligent and high functioning defendants can still sometimes not have a coherent discussion with counsel.

Many people suffering from things like severe anxiety, manic behavior, or racing thoughts simply can’t keep it together for the time it takes for their lawyer to properly advise them – let alone try to get details to mount an effective defense.  To me, this is the very essence of “incompetency.”

Suggestion of Incompetency

If a lawyer is concerned their client may have enough issues which affect their ability to stand trial – the lawyer can and should file with the Court a “Suggestion of Incompetency.”  It puts the case on pause though it does sound a bit harsh.  The prosecution can file the motion and in some instances the Court can make the suggestion as well.

The trial judge then appoints a mental health professional to do a competency evaluation.  The Court then holds a hearing after the evaluation is complete and finds either defendant is competent to stand trial or he/she is incompetent for the purposes of trial.  If they are competent then the case resumes.

What Happens When the Accused is Found to be “Incompetent”

Mental health professionals attempt to restore the accused to competency through mental health treatment.  It can be in-patient or out-patient depending on the severity of the charge, whether the person is on bond, and the resources available to the county.

Any confinement in a state hospital cannot exceed the maximum punishment range for the charge.  In other words the maximum punishment for assault causing bodily injury is 1-year.  In theory a person could be confined for the entire year being ‘restored’ but no longer.

Mental health providers routinely update the Court and if the person is restored to competency — sometimes as simply as getting a person the correct medication — the case then proceeds.

What Happens When the Defense And Prosecution Disagree About Competency?

Most of the time the Judge, prosecution and defense agree on competency issues.  In cases where we don’t, Defendant has the right to invoke a right to a jury to prove they are, in fact, incompetent to stand trial.  This would be a way of demanding help for mental illness where the prosecution and/or Judge minimize the impact of mental health or see it as an excuse to avoid responsibility for a crime.

Why Would Someone’s Own Lawyer File a Suggestion of Incompetency Which Could Result in Confinement?

This is a fantastic question.  And perhaps they shouldn’t for this very reason depending on the severity (or lack of severity) of the charges.  A lawyer hired to defend a client from the charges they are facing.  A client needs to be able to fight those charges.  If a lawyer were to enter into a plea bargain or have the client participate in a trial they doesn’t understand – this could very often lead to a far worse result than mental health restoration in a state hospital.  Again – this precise issue is a fantastic debate without a clear answer.

*Jeremy Rosenthal is board certified in criminal law by the Texas Board of Legal Specialization.  He is designated as a Texas Super Lawyer by Thomson Reuters.