Deferred Adjudication

March 14, 2010

By Collin County Criminal Attorney Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Deferred adjudication in Texas is where a person charged with an offense pleads guilty or no contest and rather than being found guilty, the judge defers a finding of guilty while the accused is placed on what amounts to probation.

If the person successfully completes deferred, they are never “convicted” of the offense.  Most people are familiar with deferred because of a traffic offense or another class c misdemeanor.  Most class c deferred adjudications do make you eligible for expunction.  You are not eligible for expunction for class b misdemeanors or above in Texas, meaning your criminal record will never be completely erased.  You may be eligible for a petition for non-disclosure which is much different.

It is a dangerous, dangerous, assumption for anyone to make that if they plead guilty and accept deferred that the case merely vanishes or goes away.  Here is an interesting web site about deferred adjudication.  I’m not personally familiar with this group, but they seem to have some interesting information and statistics about deferred.

I’m not always convinced deferred is a terrible thing, but sometimes deferred can even be the devil’s candy… meaning that it sounds very tempting but it only begins your nightmare.

If you violate deferred, then you’re subject to punishment for the entire punishment range.  What this means, is that even though you get deferred on a state jail felony (that has a maximum punishment of 2 years jail — as an example), you may at first just have to report to a probation officer and do probation — but if you violate your probation — you can’t go back and fight the underlying case AND you are still subject to doing up to the entire 2 years in jail.

The federal government may treat a Texas deferred as a conviction.  Also, there are many Texas statutes and laws which simply don’t give you any benefit above and beyond a conviction.  Just as a small example, where a juvenile gets multiple dui deferred adjudications, they can later be enhanced as if they were convictions.  There are plenty of other criminal statutes  in Texas that treat deferred like a conviction.

If you’re about to accept deferred adjudication in a Texas Court, you should make sure to specifically know exactly what it is that you’re getting into by speaking with your

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For specific legal advice, you should always consult an attorney.

2 Comments | Expunction & Non-Disclosure, Uncategorized | Tagged: , , , , , , , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.

The Top 5 Reasons for Getting an Expunction

March 11, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

Assuming you are eligible for expunction from an arrest in Texas, here are the top 5 reasons to get one if you can.

#5 — Peace of Mind

When I ask people about prior criminal records, I often get blank stares followed by an explanation that is very unsure of the final outcome.  With an expunction, you get the certainty of knowing your status and how to deal with it in any given situation based on what you know is the law and your rights.

#4 — Future Dealing With Law Enforcement

Prosecutors and police officers look at your life through a straw… meaning they don’t care about how many old ladies you’ve helped cross the street in your life.  If you got arrested 18 years ago and “beat the rap” then they make it their business to nail “career criminals” like you!  Without an expunction, that arrest will be seen by law enforcement.  To many of them that prior arrest is as good as a conviction.

#3 — You Never Know When It Will Come Back and Bite You

People can dig into your personal history for all sorts of reasons.  Though law enforcement’s databases tend to be off limits, they sell your information to public information firms who in-turn sell that information to consumers.  Also your court case is a public record and anyone can view it if they are motivated enough for any reason.

#2 — Future Employment

Employers will run your criminal history.  Even if you’re acquitted or the case dismissed, the arrest is still in all the databases of law enforcement unless and until it is expunged.  Having to make your case all over again to your employer about how the charges were incorrect is a losing battle.  Do you think the other candidates interviewing have to explain warts like that?  Not expunging an arrest can cause people jobs.

#1 — Why Wouldn’t you have an Arrest Expunged?

There aren’t any good reasons not to get an expunction when you’re eligible.  The legislature has put mechanisms in place so if you apply for expunction quickly after acquittal (within 30 days), the expenses are minimized.

 

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice please consult an attorney.

1 Comment | Uncategorized | Tagged: , , , , , , , , , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.

Will Assault Charges be Dropped if the Accuser Doesn’t Want to Prosecute?

March 10, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

Possibly, but it mainly depends on the prosecutor.

A criminal assault or family violence charge in Texas is a proceeding between the State of Texas and the accused.  The accuser is mainly treated as a witness.  The decision to prosecute is squarely on the prosecuting attorney.

This is typically a policy driven area with prosecutors.  District and County Attorneys are elected officials in Texas and none want to look weak on this sort of matter.

Affidavits of Non-Prosecution

Many criminal defense attorneys or prosecutors ask that alleged victims that wish to drop charges fill out an “affidavit of non-prosecution.”  That is a statement under oath which gives the alleged victims reasons for not wanting to prosecute.  An affidavit of non-prosecution does not bind the prosecutor or the judge to dismiss the case.

If the accuser is considering filing an affidavit of non-prosecution, that statement is almost always a statement under the penalty of perjury.

If the alleged victim gives an inconsistent account in the affidavit as she did to the police — he or she may be guilty of giving a false statement to a police officer.

It is crucial for the alleged victim to know that defendant’s lawyer is not their lawyer.  In fact, that lawyer has a direct conflict of interest in advising them.  It is not imprudent, improper, or uncommon for the alleged victim to have their own attorney in these situations.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice, please consult an attorney.

1 Comment | Assault | Tagged: , , , , , , , , , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.

There’s No Such Thing as a Minor Family Assault Charge

March 8, 2010

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

Domestic or family violence charges in Texas range from class c misdemeanors (the same level as a minor traffic offense), to felonies in other circumstances.  The fact that some are charged as class c’s doesn’t diminish their importance and can act as a trap door.

A class c assault occurs where there is unwelcome offensive or provocative contact.  The state does not need to prove the victim suffered any pain or discomfort whatsoever.  They appear deceptively insignificant because they can be charged in smaller municipal courts and before justices of the peace where the rules are less formal and far fewer people have lawyers.

In class c domestic violence cases, the prosecution may try and add a small enhancement paragraph to the charge known as “an affirmative finding of family violence” under Texas Code of Criminal Procedure 42.013 and Texas Family Code 71.004.  If the court enters this finding, even where the defendant gets deferred adjudication, then that finding can be used to enhance a future misdemeanor assaults all the way to a felony.

Most domestic violence cases in Texas are charged as the class a misdemeanor assault — where the state must prove some bodily injury (defined as any pain or discomfort).  These cases can be very difficult for the state to prove.  Often times the state will offer a class c deferred on the morning of trial if they feel badly about their case.  Even in those instances, a person charged must be very careful because the affirmative finding may still be attached even though the charges reduced and getting deferred.

If you are charged with a class c assault where the alleged victim was a family member or someone in a dating relationship, you should strongly consider getting a lawyer regardless of how minor you think the situation to be.

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

1 Comment | Assault, Uncategorized | Tagged: , , , , , , , , , , , , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.

“Not Having the Normal Use of Mental or Physical Faculties” in DWI Trials

March 7, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Chapter 49 of the Penal Code defines intoxication for the purposes of a Driving While Intoxicated (DWI) case three different ways.  A person is intoxicated if “they do not have the normal use of their mental faculties; do not have the normal use of their mental faculties; or have a blood alcohol concentration of 0.08 or greater…”

Not Having the Normal Use

Herein lies a classic struggle between prosecutor and defense attorney.  The term “normal use” is usually defined by the judge only to be a “normal non intoxicated person.”  That’s all the clarification a jury gets.  It’s as clear as mud.

What the prosecution will often attempt to do — as early as jury selection — is manipulate the definition of “normal” to make it as slight a burden as possible.  The less drunk they have to prove the defendant is, the better their chance of winning at trial.

Attempts at Changing the Definition of Intoxication at Trial

Prosecutors attempt to morph the phrase “normal use” in one of two ways.  They either paraphrase the definition or they give unrealistic examples.

“Not Normal…”

The first is they try to paraphrase “normal use” and in doing so often leave out the word “use.”  Instead, they say a person is intoxicated if “they are one step past normal,” or “not normal.”  They insist to the jury it is a very strict standard to protect the public and most jurors readily agree.  Until they learn the actual law anyway.

Your lawyer in a DWI trial must make sure the jury understands the actual law, not the paraphrased law.  Many things may not be functioning perfectly but still normally.  A bad knee might hurt — but a person can still walk, drive or even run normally.  An airplane can lose an engine yet still function normally.  These examples show how the word-play lessens what it means to be “intoxicated” under the law.

Difficult to Prove Examples

The second way prosecutors try to demonstrate intoxication is by making examples of simple functions such as slower judgment, someone being more talkative or less talkative because of alcohol.

The issue here isn’t so much of the “loss of normal use.”  The issue is these traits are equally consistent with innocence as they are guilt.  The jury should understand a person using slow judgment might be evidence of intoxication — but standing alone is a great way to convict an innocent person.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article should be considered to be legal advice.  For legal advice, please consult an attorney.

1 Comment | Uncategorized | Tagged: , , , , , , , , , , , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.

« Previous Entries
Next Entries »