Female Shoplifting and Depression – A Link?

April 19, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

I’m not a psychiatrist or a psychologist.  My law license says “Counselor” and I joke that I’m not exactly sure why.

Regardless of the disclaimers, it seems to me that there may be a link between depression and theft when it comes to women.  Just in surfing the internet, there is article after article about the links between the two from medical professionals and non-professionals alike.  Even Winona Ryder, famed shoplifter from 2001, suffered from depression and anxiety disorders.

Putting on our lawyer’s hat, the question isn’t necessarily the same question that medical professionals may ask themselves.  The legal question is two-fold.  First, how does this apparent phenomenon translate into legal reality — and second, what are appropriate treatments assuming conventional criminal justice punishment misses the mark?

Texas Penal Code 8.01 is the insanity defense.  That statute states,

“(a)  It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.

“(b)  The term “mental disease or defect” does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.

As you can see, the statute expressly prohibits diagnoses such as kleptomania or other “abnormality manifested only by… antisocial conduct.”  This language may tend to have courts highly scrutinize an insanity defense in a shoplifting or theft case.  Indeed, Texas case law is somewhat scant in these cases as well providing little useful guidance.

Not only do courts highly scrutinize the insanity defense for theft cases, but many jurors have an extremely difficult time acquitting or excusing someone who is factually guilty of any criminal offense.

Based on the legislature, courts, and jurors view of the insanity defense, an insanity defense could be an extremely difficult defense to raise in a theft or shoplifting situation.

As far as treatment is concerned, most courts in Texas send persons that have either plead guilty to theft to “anti-theft classes” for probation.  Also, not being a medical professional, my guess is that therapy, counseling, and/or medical treatment for the underlying depression and discussion of the triggers for the theft actions can never be a bad idea.  The problem is that the counseling and treatment may come along with a painful criminal record.

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.

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Posted by Jeremy Rosenthal, Esq.

Don’t Plead Guilty to Theft If All You Did was Really Bounce a Check

April 18, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Theft by check is governed by Texas Penal Code 31.03(e).  Issuance of a bad check (“IBC”), is controlled by section 32.41.  The differences are simple, but major — one charge is like any other theft charge, and the other is simply writing a bad check.  Most theft by check charges are class b misdemeanors or above ($20 to $500 are class b misdemeanors) while an IBC charge is a class c misdemeanor — the lowest level of offense in Texas.

Theft is a crime of moral turpitude while IBC is not.  Further, class b misdemeanors are more difficult to have expunged than class c misdemeanors.

Theft in Texas is simply defined when a person, “…unlawfully appropriates property with intent to deprive the owner of property.”  A Theft by check is merely a theft where the check was the instrumentality of the offense.

Issuance of a bad check is where a person, “issues or passes a check or similar sight order for the payment of money knowing that the issuer does not have sufficient funds in or on deposit with the bank or other drawee for the payment in full of the check or order as well as all other checks or orders outstanding at the time of issuance.”

The theft and IBC statutes have many different mechanisms for legal presumptions which may be used at trial to try and prove that the accused had knowledge of bad nature of the check which you can review if you are interested here.

Here’s what you need to know if you’re being charged — know exactly which charge you are accused of!  In Collin County, the District Attorney’s office prosecutes many theft by check cases.  Quite possibly many of these could also have been brought as a class c IBC.  The State in these types of cases have very technical and difficult tasks of proving knowledge of the check being bad at the time it was issued — and as a result these cases can be very winnable.

Never simply “pay the ticket” without knowing exactly what it is you are being accused of doing.  This is a recipe for disaster when you discover 3, 4, or 10 years later that you really plead guilty to theft when all you did was bounce a check!

*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, you should always consult an attorney.

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Posted by Jeremy Rosenthal, Esq.

DWI Arrest — Bond Terms and Conditions

April 18, 2010

The vast majority of people arrested for misdemeanor DWI offenses are released on bond.  They are free from jail but must appear for court settings during the pendency of the charges against them.  While “on bond,” the legislature has required that certain conditions be met.  The main condition which affects some DWI arrests is the ordering of an interlock ignition device (or deep lung device) on the defendant’s car.  This means the device can be placed on someone’s car before they’ve had a trial or had their first main court setting.

Texas Code of Criminal Procedure 17.441 holds that the judge shall, as a matter of law, order a deep lung device be placed on the vehicle of the defendant if the arrest in question was for a subsequent DWI, intoxication assault, or intoxication manslaughter.  The judge may not order the interlock devices in those circumstances as well if they make a finding that ordering the device is not “in the best interest of justice.”

Although, 17.441 is the only provision of the Code of Criminal Procedure which directly addresses deep lung devices, judges and magistrates have broad discretion to make “reasonable” conditions of bond for “community safety” under Tex.Code.Crim.P. 17.40.  Some magistrates take this as carte blanche to slap deep lung devices on first DWI offenders in random situations.

If a magistrate has unreasonably placed an interlock device on the driver’s car after a DWI arrest, that decision can often be amended or changed by the trial judge at a later point while the accused is on bond pending charges.

Jeremy F. Rosenthal, Esq.

(972) 562-7549

*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, you should consult an attorney.

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Posted by Jeremy Rosenthal, Esq.

What is a Motion to Suppress?

April 15, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

A criminal defendant can challenge the legality of a detention, a search, seizure or other police tactic which resulted in law enforcement attaining evidence.  If the action is held to be illegal, the evidence is excluded (or suppressed) 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 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 about your own situation you should contact an attorney.

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Posted by Jeremy Rosenthal, Esq.

A Prosecutor’s Duty to Seek Justice

April 15, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

A prosecutor has a statutory duty to seek justice.  Unfortunately, the prosecutor — not you — is the one who gets to define what that means.

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.

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 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 any specific legal situation you should consult an attorney for advice.

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