What is Hearsay?

July 31, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

As a general rule, if a witness on the stand is repeating what someone else said who isn’t testifying in a case… there are hearsay issues.  In trial you have a constitutional right to cross examine someone testifying against you — but you can’t effectively cross examine someone who isn’t there.

For starters, a short blog can’t possibly do the concept of hearsay any justice. Hearsay is one of the hardest topics in evidence and is heavily covered on the multistate bar exam.

The hearsay rule can block damaging statements from being admitted into evidence at a criminal trial. In some cases, such as assault/ family violence cases, the entire outcome can rest on a single hearsay objection. Yeah… It’s THAT important.

The legal definition of hearsay is, “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”. Clear as mud, right?

For example… Let’s say person A is on trial for theft from a retail store.  At trial, the clerk who was there during the incident isn’t present at trial for whatever reason.  Instead, the prosecutor calls a police officer who came after the fact and made a report.  If the policeman relayed the observations of the clerk (such as A did this, A did that, or A hid something in a bag), this would be impermissible hearsay.  This is because A has a right to cross-examine the clerk directly about the clerk’s observations.  The law recognizes when one witness relays what is said by someone out of court — it acts as a shield protecting the out of court declarant — and the out of court declarant’s true observations cannot be tested in front of the jury deciding the case.

Hearsay shouldn’t be confused with what is known as an “admission.”. An admission is a statement made by the accused and is non-hearsay.

Again, I can’t emphasize enough how difficult a concept hearsay can be. The U.S. Supreme Court is still constantly refining how the rules work and the Texas Legislature devoted an entire chapter of the Texas Rules of Evidence to the concept of hearsay. It’s important to have a lawyer that understands it too.

*Jeremy F. Rosenthal is an attorney licensed in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice you should consult an attorney directly.


Should I Just Throw Myself on The Mercy of The Court?

July 28, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

I get asked this question on a regular basis at the onset of a case.  My answer is this — there may be a time and place for that, but you can’t be acquitted that way.  If begging for mercy gets you the best result possible besides an acquittal — it is usually just a coincidence.

Most of us are programmed with integrity and a sense of shame if we think we’ve done something wrong.  Those traits serve us well most of the time.  But there are three things you may be incorrectly assuming in thinking that just pleading guilty and begging for mercy is the only thing to do; (1) you’re assuming that it’s improper or somehow dishonest to assert your constitutional rights such as remaining silent and forcing the State to prove it’s case beyond all reasonable doubt; (2) you’re assuming that a judge or a jury will punish you more for holding the police and the prosecution to the burdens and standards they accepted when they took the job; and (3) you’re assuming that the Judge’s or prosecution’s view of justice is fair — and that you’ll have a frame of reference to know whether or not the deal you’re getting is raw.

Notice I used the word “assume” four times in the above paragraph.  When you make the decision to plead guilty before you’ve had a lawyer evaluate the case — you’re making a ton of assumptions which means you’re ultimately making a very uninformed decision.

A good general doesn’t take an effective battle weapon off the table when planning for war.  A good doctor doesn’t take a useful procedure out of consideration when dealing with an illness… so why should you limit your options and fight what may be the most critical situation of your life with your hands behind your back?

There may be all sorts of legal defenses available in any given case, or at the very least, an attorney can help you have a voice when the prosecutor is being unfair with punishment options… but you won’t know unless you make the decision to at least keep the option of being aggressive on the table!

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  For legal advice you should consult an attorney directly about any specific situation.


How Juvenile Records Get Sealed

July 26, 2010

By Dallas ad Collin County Criminal Defense Lawyer Jeremy F. Rosenthal

www.thecollincountylawyer.com

(972) 562-7549

Just like with Deferred Adjudication, many people make the mistake of assuming that juvenile arrests and juvenile arrest records simply go away on their own in Texas.  They don’t.  The laws controlling juvenile arrest and criminal records is just as complex as the expunction statutes — but fortunately they are a bit more forgiving too.

Juvenile Records are Generally Confidential in Texas

Generally speaking, juvenile records aren’t accessible to the public to begin with.  When cases get filed (Class B Misdemeanors and above) they are filed in District Court but you won’t find those cases in online databases or other ways you can find most cases.  This is because the pleadings are confidential under Texas Family Code 58.005.

Class C Misdemeanors get filed in municipal or justice Court and are expunged under similar proceedings in adult courts.

Juvenile pleadings in District Court — and I’m generalizing here — act as records that are non-disclosed in the adult world.  This means that police, prosecutors, Courts, and certain governmental agencies have access to them but the general public does not (with exceptions being sex offender registration, gang affiliation, other other serious felonies).

Sealing Juvenile Records

Juveniles are eligible to have records of adjudications (convictions) sealed under the following conditions of Family Code Chapter 58.003(a);  (1) two years have elapsed since final discharge of the person or since the last official action in the person’s case if there was no adjudication; and (2)  since the time specified in Subdivision (1), the person has not been convicted of a felony or a misdemeanor involving moral turpitude or found to have engaged in delinquent conduct or conduct indicating a need for supervision and no proceeding is pending seeking conviction or adjudication.

If the child was adjudicated to have engaged in felony conduct, then it is more difficult, if not impossible to get the juvenile records sealed.  Here is Section 58.003 of the Family Code for the particulars on those situations.  Those provisions are very complex and probably require the assistance of a lawyer.

Restricted Access

Texas Family Code Section 58.201 controls restricted access to juvenile records and it provides an easier mechanism for the equivalency of having your records sealed.  The Texas Youth Commission has information about it here and here.  TYC promises a *fresh start, but I’ve included the asterisk because with most programs to “help” you done by law enforcement, it leaves them the opportunity to undo what they’ve given to you if they really want to badly enough (the records aren’t destroyed and law enforcement still has access to them… so we’ll call it semi-fresh start).

Records Can Be Unsealed

Upon motion in a future case, the State can petition the a Court to unseal juvenile records to use them in subsequent punishment proceedings.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  For legal advice about a specific situation you should directly consult an attorney.


Texas Criminal Law on Gambling

July 24, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Personal Gambling

Gambling is controlled by Tex.Pen.C. 47.02.   That statute states in relevant part, (a)  A person commits an offense if he: (1)  makes a bet on the partial or final result of a game or contest or on the performance of a participant in a game or contest; (2)  makes a bet on the result of any political nomination, appointment, or election or on the degree of success of any nominee, appointee, or candidate; or (3)  plays and bets for money or other thing of value at any game played with cards, dice, balls, or any other gambling device.

There are all sorts of defenses, however.  The defenses are under subsection (b) and are if; (1)  the actor engaged in gambling in a private place; (2)  no person received any economic benefit other than personal winnings; and (3)  except for the advantage of skill or luck, the risks of losing and the chances of winning were the same for all participants.

Additionally under subsection (c)  It is a defense to prosecution under this section that the actor reasonably believed that the conduct: (1)  was permitted under Chapter 2001, Occupations Code (bingo); or (2)  was permitted under Chapter 2002, Occupations Code (charitable raffle);

Gambling is a Class C Misdemeanor punishable by a fine up to $500 only.

Gambling Promotion

Tex.Pen.C. 47.03 covers gambling promotion.  It is also a technical statute and you should read it for any and all offenses and exception, but mainly that statute makes it an offense to (1) operate or participate in the earnings of a gambling place (defined as “any real estate, building, room, tent, vehicle, boat, or other property whatsoever, one of the uses of which is the making or settling of bets, bookmaking, or the conducting of a lottery or the playing of gambling devices.”);

(2) engage in bookmaking (defined as either receiving and recording or to forwarding more than five bets or offers to bet in a period of 24 hours; receiving and recording or to forward bets or offers to bet totaling more than $1,000 in a period of 24 hours; or a scheme by three or more persons to receive, record, or forward a bet or an offer to bet.)

Gambling promotion is a Class A Misdemeanor punishable by up to a year in jail and a fine not to exceed $4,000.

Keeping a Gambling Place

Tex.Pen.C. 47.04 makes it a crime for someone to knowingly use or permit another to use property owned or rented by him be used as a gambling place.  It is, however, an affirmative defense if (1) the gambling was in a private place; (2) no person received any economic benefit other than personal winnings; and (3) except of the advantage of skill or luck, the risks of losing and the chances of winning were the same for all participants.

Keeping a gambling place is also a Class A Misdemeanor.

Again, the statute itself is very technical, has other exceptions, defenses, and offenses which I may not have covered.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  For specific legal advice about any situation you should consult an attorney directly.


Robbery

July 23, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Our mind’s eye tends to think of a typical robbery as a person holding up a bank or a convenience station with a gun and asking for all the loot.  In reality, the Texas robbery statute is far thinner and believe it or not, some robbery cases can be extremely difficult cases for the prosecution.

Texas Penal Code Section 29.02 governs robbery and under subsection (a), robber is committed where, “…in the course of committing theft as defined in Chapter 31 and with the itent to obtain or maintain control of the property, he; (1) intentionally, knowingly or recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.

One main reason why these cases present difficulties to the State is that there is no requirement under the law that the robbery be pre-meditated.  In other words, it is a common scenario for a “robber” to be someone that in the course of simple shoplifting gets into an altercation with a shop-owner.  So a person who merely intended to shoplift property from a store can walk-out being saddled with a robbery charge!  These present the prosecution with headaches because jurors think robbery charges in those circumstances may be a bit harsh.

Aggravated Robbery is committed under Penal Code Section 29.03 and differs from a simple robbery because the victim suffers serious bodily injury or the defendant “use or exhibits” a deadly weapon.

Robbery is a 2nd Degree felony punishable between 2 and 20 years in prison and a fine not to exceed $10,000; and aggravated robbery is a first-degree felony and is punishable between 5 and 99 years of prison and a fine not to exceed $10,000.

Punishment in these types of cases are often the greatest battles.  The Collin County District Attorney’s Office, for example, has policies which do not allow prosecutors to plea negotiate very much and have harsh prison recommendation for first-time defendants.

Getting a lawyer on a robbery case is important for both guilt-innocence and punishment phases of a trial.  Having a trial lawyer that knows how to show you as a human to the jury is critical.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  For legal advice you should consult an attorney.