Your Right to a Speedy Trial

June 20, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Being accused of a crime sucks.

The framer’s of the constitution knew this which is why the U.S. Constitution guarantees our right to a speedy trial in the Sixth Amendment. Texas also guarantees the right to a speedy trial in Texas Code of Criminal Procedure section 1.05.

If the State violates your right to a speedy trial — the Judge can dismiss the case. Your right to a speedy trial exists on any case whether it be DWI, drugs, marijuana possession, assault, theft or other serious felonies.

Speedy trial law can be extremely complicated believe it or not. I’ll avoid they hyper-technical legalese for the sake of easy reading but you should understand in this area there are no real bright-line rules that will get a case dismissed. Rather, a denial of a right to speedy trial is viewed by the judge and the Court of Appeals on a sliding scale which give the trial judge mountains of discretion.

The seminal U.S. Supreme Court case which still serves as the corner-stone for speedy trial law is Barker v. Wingo, 407 U.S. 514 (1971). In that case, the Supreme Court laid out four general factors as part of the court’s analysis of whether denial of the right to a speedy trial was violated. Those factors include (but aren’t limited to), (1) the length of the delay; (2) the reason for the delay; (3) defendant’s assertion of their right to a speedy trial; and (4) the prejudice to the defendant.

Speedy trial issues usually arise in cases where the judge or the prosecution have continually put a case off for whatever reason — usually either witness problems or a jammed docket. Sometimes they arise where the police made an arrest and the case simply doesn’t get prosecuted over a long period of time for whatever reason (maybe the police lost the police report or some prosecutor dropped the ball).

A speedy trial issue is usually not the first-line of defense in a criminal case. In cases where there the case just never seems ready to go to trial, a good criminal defense lawyer will know how to build a steady record showing the defendant has continually been prepared to try the case and that they have been active in asserting their demand for speedy trial. This will help maximize your chance for a dismissal based on speedy trial 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 legal advice about your own specific case you should consult an attorney.

 

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Posted by Jeremy Rosenthal, Esq.

Computer Crimes in Texas: Online Impersonation

June 13, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Laws lag behind online crimes. Society gets outraged when stories come on the news about online bullying, for example, but the truth is that the legislature naturally plays catch-up to technology.

Who knew Facebook or Twitter would become as popular as they’ve become… Much less had the foresight to know how to keep people from victimizing one another just two or three years ago?

One recent step taken by Texas is the addition of Texas Penal Code Section 33.07 which criminalizes “online impersonation.” That statute was passed several legislative sessions ago and it criminalizes the creation of an account on a social networking site that not only isn’t you — but is purportedly someone else (or their persona) and was created for the express purpose to harm, defraud, intimidate or threaten ANY person.

The punishment for such an offense would be a third degree felony (2-10 years TDC and/or a $10,000 fine). Similarly, it is a class A misdemeanor to send out a bogus email, text (or similar communication) purported to be from someone else that is intended to harm or defraud another person. (up to a year of county jail and/or a $4,000 fine).

The full impact of these particular Texas laws aren’t really fully understood. The main problem with criminal law as it relates to technology crimes is because the ways to commit crimes out-paces the solutions, prosecutors try to be “creative” with bending and stretching older laws that were never intended to apply to these newer problems. When prosecutors get “creative,” is when rights tend to get violated.

Computer crimes also have heavy overlapping issues with evidence rules, confession rules, and also search and seizure rules. The enactment of new codes (such as 33.07) is only the ‘tip of the iceberg’ for computer crime lawyers.

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 about your own specific case, you should directly consult an attorney.

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When You’re Entitled to a New Trial in Texas

June 12, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Regardless of whether you were convicted of DWI, marijuana or cocaine possession, assault, or any other offense in Texas, you may be able to get a new trial.

There are two main ways to get a new trail in Texas criminal cases. One is through a formal appeal to the courts of appeal (which takes lots of time and patience) and the other way is that the trial judge can grant you a new trial — but only of you act quickly after the conviction!

Texas Rule of Appellate Procedure 21 governs new trials through the trial court. This means the same judge that tried the original case will be the judge that decides whether you get a new trial under this rule. Under TRAP 21.4, you only have 30 days to file a “Motion for New Trial”.  If you file it within the 30 days, you have another 45 days to have the judge give you a hearing to decide whether you actually get another full-blown trial.

Under TRAP 21.3, the judge must grant a new trial where; he has mis-instructed the law to the jury in a way that materially impacts the defendants rights, where the defendant was tried in absentia (other than a class c misdemeanor), or where the verdict is “contrary to the law and the evidence.”

Many of the grounds for new trial involve jury misconduct for TRAP 21.3 as well. The mis-conduct can include; where jurors reached a verdict by lot (or some other unfair means), jurors dis-obeying the courts instructions not to talk about the case with outside people or conducting outside research, or if a juror has been bribed. As a side note, proving juror misconduct is extremely difficult because generally jurors can’t be called to testify about their deliberations in Texas.

TRAP 21.3 also has various other reasons for new trials that are obvious… Where evidence was lost or destroyed… Or where a material defense witness was threatened or intimidated from testifying.

Basically, you must file a motion and have a hearing proving to the judge one of these grounds. the judge can order a whole new trial on guilt or innocence, or just on punishment if appropriate. Obviously the prosecution has the right to oppose your motion.

Sometimes you need to file a motion for new trial with the trial judge for no other reason than to perfect your record for the court of appeals… So even if you think the judge won’t grant your motion, you may still have to file it to do what appeal lawyers call, “preserving error.”

If you’re thinking of appealing a conviction and you still have time — you should consider asking the judge for a new trial with the assistance of an experienced attorney.

*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 specific situation you should contact a lawyer directly.

 

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Is Intoxication a Defense to Criminal Charges in Texas?

June 11, 2010

Texas Penal Code 8.04 covers voluntary intoxication.  That provision says, “Voluntary intoxication does not constitute a defense to the commission of a crime.”

Temporary insanity may be caused by intoxication and may be admissible in the punishment phase of a trial to attempt to mitigate.  What this means, in layman’s terms, is that you can only utilize voluntary intoxication to the extent that it can help you in the punishment phase of trial — i.e. after the judge or jury has already decided that you are guilty.

Intoxication in this section of the Penal Code means “disturbance of mental or physical capacity resulting from the introduction of any substances into the body.”

Involuntary intoxication (where perhaps someone was drugged without their knowledge — and then committed a crime) is far more complex.  The law used to be well settled in Texas that involuntary intoxication was an affirmative defense to some crimes, however, in 2002 the Texas Court of Criminal Appeals held that the defense was encompassed in other defenses — such as not having the proper mens rea in Mendenhall v. State, 77 S.W.3d 815 (Tex.Crim.App.– 2002).

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 about any specific matter you should consult an attorney.

 

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Silly Traffic Law = Excuse for Profiling

June 9, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Texas probably has thousands and thousands of laws on the books.

There is no such thing as a silly or unimportant traffic law and here’s why:  police profile people and those laws — silly as they may sound — legitimize otherwise bogus traffic stops.  Those stops turn into DWI’s, drug possession charges… and if the citizen isn’t doing anything wrong… the stop turns into general harassment.

To be clear, not all profiling is racial.  Sometimes officers will act on “hunches” about how someone looks, what they drive, or how they act.  Usually, though, there is simply nothing illegal about looking different, driving a particular car, or having a nervous disposition.  The law is clear that these reasons alone aren’t enough for police to detain drivers or passengers on the roads.

In order to stop a car, a police officer needs reasonable suspicion that he has witnessed a traffic offense in his presence.  Any offense will do.  But here’s the catch — no matter how badly the officer want’s to pull someone over, they can’t do so unless they witness an offense or otherwise have probable cause to pull you over (such as a 911 call).  So officers will grasp at any law they can to pull people over that they’ve profiled to investigate for something like marijuana, cocaine, or methamphetamine for example.

The classic law is Texas Transportation Code 502.409(7)(b) which says you can’t have anything on your license plate which covers half or more of the name of the State on the plate… such as a frame your dealer put on the car.  While I’m sure there are plenty of legitimate reasons the legislature passed that provision — I can tell you that I’ve seen police pull cars over on multiple occasions due to this law on DWI arrests and drug arrests.  And oh, yeah… the cars seem to be older and beaten up, (and even the opposite — overly flashy) and maybe have a driver that looks poor or is a minority.  I hate to think how many times people have been pulled over and harassed about drugs or intoxication that weren’t doing anything illegal at all.

Ultimately there is no such thing as a silly traffic law.  The police believe that and you should too!

*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 case or situation, you should directly consult an attorney.

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