Do I need an Attorney for Drug Charges in Texas?

May 11, 2010

Yes.  The law of drug possession and/or distribution is a highly complex area.  The law surrounding possession, search and seizure, or what it means to have intent to distribute are just some some of the highly technical issues encountered in Texas drug cases.

Law enforcement is typically not interested in your side of the story — and that is where effective advocacy plays a role as well.  Just because the prosecutor and the police believe there is only their side to the story doesn’t make it so.  It is the Judge and Jury that often decide.

Even in situations where someone may have a substance abuse problem — Texas has long had the mentality that harsh punishment and cruelty will cure substance abuse.  While many prosecutors and judges are now getting the message — that these problems don’t solve themselves — stiff criminal penalties and criminal records can still haunt people for the rest of their lives.

If you’re facing drug possession or distribution charges whether it be for Marijuana, cocaine, or any other type of drug, an attorney can help attain the best result possible in your case.

Jeremy F. Rosenthal, Esq.

(972) 369-0577

*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.

 

Leave a Comment » | Uncategorized | Tagged: , , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.

When a Texas Officer can Arrest for Assault

May 6, 2010

Generally speaking, an officer can make an arrest for offenses (against the peace) viewed in their presence or, of course, if they have an arrest warrant.  Assault cases, however, typically aren’t committed in an officer’s presence… but they are governed by their own statute instead — Texas Code of Criminal Procedure 14.03.

As an example, here is a recent article on a situation where two brothers at a Plano home apparently got into some sort of scuffle and where one went to jail after the police were called.

14.03 specifically allows officers to make an arrest where they have probable cause to believe someone has committed family violence, violated a protective order, have prevented someone from placing a 911 call, assaulted a non-family member and there remains a risk of further violence towards the alleged victim, alleged sexual assaults and various other circumstances.

Basically, if the situation involves violence, the legislature has broadened the officer’s ability to arrest.

It is possible some police agencies have actual policies about making arrests during these situations, but it is the rare exception that the law requires an arrest during an assaultive situation under 14.03. (The statute only uses the word “shall” in conjunction with an arrest for violations of protective orders — meaning that is the only time the officer is actually legally required to make an arrest.

In the situation with the Plano teenagers, it obviously appears the officers had at least the legal authority to make the arrest.  Whether the case is charged and prosecuted is another matter.

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 specific legal advice you should consult an attorney directly.

 

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

Can They Make Me Testify Against My Husband/ Wife?

May 2, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

In Texas the prosecution can and will force one spouse to testify against another — often against their will.  I am often asked in disbelief in assault cases “can they really do this?”  Unfortunately the answer is, “yes.”

Texas Rule of Evidence 504 governs the husband-wife privilege.  Generally speaking, any communication made to one’s spouse is privileged under that rule during and even after the marriage.  Either spouse may assert the privilege whether they are a party to a case or not.  Unfortunately, the husband-wife privilege is riddled with far more exceptions than other privileges (such as the attorney-client privilege).

Tex.R.Evid. 504(a)(4)(D) is just one of the specific exceptions to this rule of privilege.  That rule states a spouse can be compelled to testify against their other spouse if that spouse is considered the victim of the crime or if any other member of the household or any minor child.

Additionally, it is important to note that in some cases, the testimony attempted to be compelled out of the “victim” spouse is not regarding communication but regarding conduct.  Obviously the privilege in and of itself only applies to “communications” in the first place.  The privilege, therefore, cannot be used to prevent disclosure of facts surrounding an incident where family violence has been alleged.

The state in assault cases must still prove their case beyond all reasonable doubt.  Jurors are very sensitive to situations where it is clear one spouse does not want to testify against the other and don’t always appreciate the police and/or the state being overly-invasive of a family… so even where a spouse is compelled to testify against their will — the cases can and do frequently result in acquittals.

*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 about any situation you should always directly consult an attorney.

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

The Attorney – Client Privilege

May 2, 2010

The attorney client privilege prevents an attorney from revealing confidential communications and other facts they have learned by reason of the attorney-client relationship.

For criminal cases in Texas, the attorney client privilege is controlled by Texas Rule of Evidence 503(b)(2) which is called the “special rule of privilege in criminal cases.”  That rule states, “in criminal cases, a client has a privilege to prevent the lawyer or lawyer’s representative from disclosing any other fact which came to the knowledge of the lawyer or the lawyer’s representative by reason of the attorney-client relationship.”

A confidential communication is defined by the rules as a communication “… not intended to be disclosed to third persons…”  I put the words in bold above to highlight the fact that the criminal privilege is even broader than the privilege in civil cases.  This means that the lawyer cannot reveal any communication not intended to be disclosed to third persons nor any other fact which came to the knowledge of the lawyer by reason of the attorney client relationship.

Here’s what this means in English for Texas criminal cases:  virtually everything your lawyer knows about the case (assuming he learned it from you or by investigating your case) is privileged.  The lawyer cannot be compelled by law enforcement or even a judge to disclose confidential information.  If you take the Texas rule to it’s logical extreme — even the mere fact that you visited with an attorney could be considered privileged information!  This goes for situations where you’re actually charged with a crime or even just the subject of an investigation.

The attorney-client privilege is an extremely important and powerful privilege for the reason that without it — an individual may never confide in their attorney critical information needed for their defense.  People charged with crimes can and do still feel tepid at times revealing information to their attorney.  Whether that be for lack of trust or for mere embarrassment — the law does everything possible to facilitate communication between you and your attorney.

As with practically everything in the law — there are exceptions.  An attorney may not aid the furtherance of a crime or a fraud and communications regarding the same are not privileged.  Also an attorney has an affirmative duty to report the abuse or neglect of a child or to report a situation where someone may be in immanent danger.  As a general rule, if the facts or disclosure is about something that has happened in the past in a criminal case — then it will almost always be privileged.

The attorney – client privilege is at the cornerstone of the lawyer – client relationship and is one of the fundamentals of our criminal justice system.

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 specific legal advice about your case you should directly consult an attorney.

Leave a Comment » | Uncategorized | Tagged: , , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.

Mens Rea — The Guilty Mind

May 2, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Here is some legal theory or law school 101 if you will.

Something every first-year law student learns in criminal law is about the concept of “Mens Rea” which is latin for “guilty mind.”  When a guilty mind is combined with a “guilty act” (or actus reus), then under common law, a crime has been committed. Most, but not all, crimes today have a mens rea requirement.

For example, to prove the crime of theft the prosecution must show the guilty act of appropriation of property (actus reus) plus the intent of the taker to deprive the owner of the property without consent (mens rea).  An example of a crime where there is no mens rea is strict liability crime — like statutory rape or what is known as an inchoate crime which is a crime of omission — like failure to stop and render aid.  Inchoate crimes typically require a special relationship between the victim and the accused. Modern criminal law has even varied the levels of mens rea.

Crimes enacted by code in Texas and the U.S. Government can require greater or lesser mental states for offenses.  Some offenses such as Arson are called specific intent crimes — meaning that the actor had to specifically intend the result of the crime.  Other crimes have lesser mental states meaning that if a person committed an offense “knowingly” or even less, with “criminal negligence” then they are guilty.

An example of a crime in Texas where criminal negligence is sufficient to convict is selling alcohol to  a minor.  In that type of a case, the actual intent of the defendant need not be proven as long as the jury believes the defendant acted with “criminal negligence.” The charging instrument (an information in a misdemeanor case or an indictment in a felony) will detail which of the mental states is being alleged.

Any and every criminal defense lawyer should read the charging instrument in your criminal case.  If the state proves the greater mental state then they have, as a matter of law, proved the lesser.

Discussing legal theory is like pulling the loose end of a sweater.  We could discuss this topic all day and all night.  If you’re interested in more discussion, you can read more here or here.

*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 case you should consult an attorney. 

Leave a Comment » | Uncategorized | Tagged: , , , | Permalink
Posted by Jeremy Rosenthal, Esq.

Next Entries »