How Do I Plead Guilty to a Criminal Charge?

June 8, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

I hate advising clients to plead guilty.

Hate it!

Some tough-guy lawyers will never admit to advising clients to plead guilty but every criminal defense lawyer I know will admit to not only advising clients to accept a deal but begging or pleading with a client on occasion.  Often the facts are stacked against you or the down-side of taking a case to trial is just too scary for the client.

There is no real difference between a guilty plea and a no-contest plea in Texas, so I’m referring to both in this blawg.

A guilty plea is like a contract in Texas.  Both you and the prosecution sacrifice and gain something by way of agreement (you usually sacrifice a lot more).  You are waiving your rights to trial and all that comes with it… the right to prepare, the right to call witnesses, the right to cross examine… etc.  The State is waiving their “right” to seek a greater punishment and, they would argue, their “right” to a jury trial.  In return, you are getting a specific punishment (which may be deferred adjudication depending on your plea deal) and more importantly — you’re also eliminating variables of what may happen to you at trial.  The State benefits because they get a verdict without a trial.

The plea is subject to approval by the judge.  When you plead guilty, you legally empower the judge to (a) find you guilty and (b) sentence you anywhere within the punishment range.

A Texas judge can do one of three things with a plea.  He can accept it (the vast majority of pleas are accepted — I don’t have stats but I’d be willing to bet it’s 99.5% or even greater).  He can reject the plea, or he can accept the plea and modify terms an conditions of probation assuming the plea includes probation.

If the judge flat-out rejects the plea, then he must inform the defendant he’s rejecting the plea so the defendant can withdraw his plea an assert his right to a trial.  A judge rarely knows any specific fact of your case other than what you are charged with — like a DWI, marijuana case, drug possession with intent to distribute, and so on… and for this reason, the Judge is unlikely to tinker with a deal a lawyer and prosector have worked hard to make happen.

Whether to plead guilty or not guilty is a case-by-case analysis.  I advise clients to fight on certain cases for all sorts of reasons and I advise clients to plead guilty on occasion too — because that may be the best answer or because we’re getting a really good deal under the circumstances.

Your choice to plead guilty or not guilty is an extremely important one.  Don’t make the decision alone — have a licensed attorney experienced in the area of criminal law assist you.

*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 specific situation you should consult an attorney.  This article does not create an attorney-client relationship.

 

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

Texas Criminal Appeals 101

June 6, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Appealing a conviction in Texas can be difficult, but it’s not impossible.

Criminal trials are extremely complex and if the judge, prosecutor, or even your own lawyer have made mistakes — a conviction can potentially be over-turned by the Texas appeals courts.  While an appeal can often represent a great hope — you should know that statistically the odds are long at having a case overturned.  That being said — convictions are over-turned all the time.

The most important thing to remember with an appeal is time is critical.  Some issues can be appealed months and even years after a conviction — but the vast majority of appeals MUST BE FILED WITHIN 30 DAYS of the judgment under the Texas Rules of Appellate procedure.  Also, sometimes a motion for new trial can be granted and the trial judge can allow a re-trial of the case under some circumstances if you act quickly enough.  Unlike a fine bottle of aged wine — appeals get worse as they get older.

When a conviction is being appealed — what is typically getting called into question are the balls and strikes a judge called at trial.  Sometimes, but rarely, a prosecutor’s conduct or the conduct of your own trial lawyer may be addressed.  Practically never is something the jury did subject of a successful appeal.  The reason is that the judge decides “questions of law” and the jury decides “questions of fact.”

Common grounds for appeals are:

Did the judge allow someone to serve on the jury that shouldn’t have been there?

Did the judge allow the prosecutor to go too far in arguing to the jury?

Did the judge improperly admit evidence the jury should’t have been allowed to see?

Did he not let the accused admit evidence he should have let in?

Did he give the right instructions to the jury?

There are dozens of areas which can be grounds for appeals.  Doing an appeal without a lawyer is extremely difficult.  There are tons of legal tripwires designed to toss out appeals before they even get to be seen by an appeals judge.  Get a lawyer if you’re considering an appeal.

*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 nor does it create an attorney-client relationship.  For legal advice about a specific situation, you should consult an attorney directly.

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

Do the Police Have a Right to Enter and Search a House Without Your Consent?

June 5, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

They usually need a warrant to search a house.

As a rule of thumb, the more private an area is to an individual, the more difficult it is for the police to search under the Fourth Amendment to the U.S. Constitution.

A home obviously has the greatest expectation of privacy and is clearly more private than an office or a car or any other place the police may search for drugs, weapons, or even computers.  Police can only search without a warrant in very limited circumstances.

If the police search a home improperly, then the evidence will not be admissible during a trial.  This can mean cases ranging from possession of marijuana, cocaine, methamphetamine or possession of drugs with intent to distribute, all the way up to murder cases, can be severely crippled or even thrown out because of an invalid entry by police into a home.

Police can use an exception called “exigent circumstances” to do warrant-less entries into the home.  Where police have probable cause to believe an offense has been committed and there are “exigent circumstances” they can enter a house without a warrant.

Examples include if they are in “hot pursuit” of a suspect, there is clearly danger to someone inside, or if the officer is in danger.  Another exigent circumstance is if the officer believes evidence is being destroyed inside.  For an officer to claim he fears that there is destruction of evidence, he needs to have strong probable cause of a serious offense.

The main way police search houses without warrants, however, is because the homeowner (or another resident) consents to the search.  The consent must be voluntary and cannot be coerced.  Displays of force or threats to get search warrants can call the search into question.  A person does not have to consent to a voluntary search of a home.

Police use a technique called a “knock and talk” which courts have consistently upheld as being valid.  This is where an officer suspecting drugs or drug trafficking (for example) merely knocks on the door and asks to search.  Where police attempt to manipulate or coerce consent is where there have been legal problems with the searches.

The police won’t tell you it is perfectly legal to tell them to go away the same as if they were trying to sell you cookies at your doorstep… and if you allow them to search voluntarily, you’ve punted a ton of rights away.

*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.

3 Comments | Drugs, Search & Seizure, Uncategorized | Tagged: , , , , , , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.

Should I Just Call The Prosecutor To Help Them Get My Loved One Help with a Drug or Alcohol Problem?

June 1, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

I’m asked every now and again by a family of a client if they shouldn’t just talk with a prosecutor in a case where their loved one clearly has a drug or alcohol problem — to see what the prosecutor can do to facilitate treatment.

That many not be the best idea.

Here’s why — because the prosecutor’s version of help and the real version of help may be completely different concepts.

Some prosecutors understand drug and alcohol dependency issues and others simply don’t.  Prosecutors who tend to see addiction and mental disorders as excuses may use what you tell them as a battering ram against your loved one.  To be fair — many prosecutors “get it” and do bend over backwards to help.  The problem from a family member’s stand-point is that divulging negative information to an agent of the State is always a gamble.

As criminal defense lawyers and prosecutors, substance abuse treatment and counseling aren’t really at the core of what we do.  We tend to analyze people’s cases from legal perspectives but there’s obviously a heavy overlap with substance abuse and treatment.

My advice is typically to seek private treatment over treatment affiliated with probation or directly with the criminal justice system.  The reason being is that there are several legal layers of protection in the private setting which are not available otherwise.

HIPAA and patient privacy laws will protect a patient in a private treatment facility but may not in a state or probation run program.  Also there tends to be better customer service in the private sector.  There, the treatment facility is accountable to the paying client.  In the probation setting — the treatment providers are conflicted between treating the patient and reporting violations to the prosecutors or the Judge.

If treatment is ordered as part of probation, for instance, and the patient doesn’t follow through with meetings — or admits to other unresolved crimes during treatment — those could be used for further prosecution and/or probation revocation.

*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 of your own situation you should directly consult an attorney.

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

Next Entries »