What Does a Jury Do?

May 27, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Lawyers take for granted that everyone understands a trial from television — but not even television makes the distinctions very clear.  And there’s no such thing as a stupid question.  Usually.

A jury determines what are known as “questions of fact.”  a judge determines “questions of law.”  The difference can be complicated but here’s a common example that demonstrates the difference.

Take an assault/ family violence case where self-defense was an issue: the judge would determine whether the evidence of self defense was admissible and whether it rises to the level which would allow him or her to give the jury an instruction on self defense.  The judge makes no decision on whether the evidence is believable or not… just that it is sufficient for a jury to consider the defense without completely guessing.

The jury would determine whether the evidence of self defense is believable and whether the state has dis-proven the theory of self defense beyond a reasonable doubt.

Jurors are the exclusive judges of the credibility of witness and decide whether the prosecution has met their burden.  The jury obviously doesn’t rule on objections (because again, it’s the judge that decides the law).

A person’s right to a jury trial is guaranteed by the U.S. Constitution in both civil and criminal cases and is a cornerstone of our legal system.

*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 directly consult an attorney.

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How Long Does a Conviction Stay on a Criminal Record?

May 23, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Forever.

I ask this question frequently when I’m picking jurors and believe it or not, very few people know this.

I guess it’s understandable because not everyone is a criminal defense attorney or have a loved one weighted down with a conviction.

A conviction in Texas stays on your criminal record forever.  It’s hard to quantify the amount of opportunity costs which are lost due to convictions, but everyone has been asked before when renting an apartment, applying for a job, or seeking a loan, to check the ominous box asking if they’ve ever been convicted of anything other than a minor traffic ticket.

Criminal convictions can even hurt you in things such as adoptions, immigration status, and voting rights if the conviction is a felony.  The collateral consequences are countless.  Here is a good article about the costs of picking up a simple marijuana or other drug case.

In this stunning study from Northwestern University conducted in 2001, it was shown that persons with felony drug records where between 50% and 75% less likely to get a follow-up job interview than other applicants with equal qualifications for jobs as sales, management, and wait staff.   This study proves what we already know — that a criminal record is cancer on your ability to make a living.  What it shows us, too, is just how badly a record hurts relative to those without records.

There is no such thing as a small criminal charge.

*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 as legal advice.  For legal advice, you should consult an attorney directly.

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Posted by Jeremy Rosenthal, Esq.

How Long After an Arrest Do I Need a Lawyer?

May 18, 2010

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

When is it time to get a lawyer?

That’s an excellent question.  There are two main reasons to hire a lawyer immediately after an arrest.  The first is to advise you during a police investigation and the second is to assist you in securing a release from jail.

Legal Advice During a Police Investigation

Arrests happen different ways — from a traffic stop, an arrest warrant, or at the scene of an incident or altercation just to name a few.

Police Investigations Prior to Arrest

Often the police will investigate a crime prior to applying for an arrest warrant.  In doing their investigation, they may call the accused and request they participate in voluntary interviews, searches, or even biological testing.  It is always a good idea to have a lawyer involved if this is the case.  Experienced counsel can property help you navigate the investigation and it is very dangerous to try and do so alone.

Police Investigations After an Arrest

In Dallas and Collin County state criminal cases, the vast majority of police work and investigation is done at the scene of the arrest.  In most DWI stops and/or drug arrests the police do most of their work on the road-side.  There is brief follow-up at the police station (a breath test and/or an interview), but once the person is booked-in to jail, any investigation is usually over.

For the timing reasons alone, it is extremely difficult to involve an attorney quickly enough to provide much useful counsel in these situations.  Usually an experienced criminal defense attorney, if involved quickly enough, will generally advise someone arrested not to participate in any interviews or voluntary searches.

Assisting in Jail Release

Attorneys can help people get released on most DWI’s, thefts, and marijuana cases from the Plano City Jail or the Frisco City Jail in Collin County.  Generally, though, an attorney may be of limited value in securing release from jail.  Once a person is arrested then they are entitled to see a magistrate judge who sets the bond (if the bond isn’t pre-set from an arrest warrant).  At that point the bond can be paid for the person to be released.  Often a bail bond company is consulted where the amount of the bond is too expensive for the friends or family members of the accused to pay.  Some attorneys are bail bondsman but most are not.  Always make sure you understand whether your are dealing with an attorney, a bondsman, or both and make sure they explain to you everything involved and everything they are responsible for.  The accused can hire an attorney to assist in getting the bond amount reduced as well.

Once the case proceeds after the arrest stage and formal charges are filed, it is always a good idea to have your attorney represent you in the future court proceedings.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas.

 

 

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How Drug Charges Get Enhanced in Texas

May 13, 2010

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

 

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The Legal Definition of Drug Possession

May 12, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

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 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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