Your First Notice to Appear in a Collin County Criminal Case

July 20, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 562-7549

So you’ve been arrested and released — and now you get a letter in the mail telling you that you have a court appearance for your criminal case in Collin County, Texas.  Now what?

How a Notice to Appear Works — Court Dockets

Let me explain as best as I can… in Collin County (and most everywhere else in Texas), Courts that handle Class B Misdemeanors and above typically have what are called dockets or docket calls.  Docket is the way the Courts manage the one, two, or ten thousand cases or that have been filed in their court.

The Court requests everyone appear on a certain date and this appearance serves two main functions; (1) to make sure that you are honoring your bond terms and conditions; and (2) to make sure your case is moving towards resolution (whether that be a trial, a guilty plea, or a dismissal).

What are You Responsible For?

Showing up.  Though every court is different, most courts won’t require you to enter a plea on a first setting or do anything that would require you visiting directly with the Judge. If you do meet with the Judge, it’s likely to be administrative in nature and not ultimately regarding the underlying facts of your case.

Do I need a Lawyer?

Absolutely.  If you have been charged with a Class B Misdemeanor or higher — that means your potential punishment is up to 180 days in jail if not more. Just think about how being sentenced to 180 days in the county jail would re-arrange your life!  Even though that may seem like an extreme example — the fact is you wouldn’t toy with an illness that could possibly take you completely out-of-commission for 6 months without a doctor — so how is this any different?  Plus, I’ve written blog after blog about the dangers of the collateral consequences of criminal charges you may not even think of, the dangers of dealing directly with prosecutors, and other great reasons to get lawyers involved in these cases.

What if You can’t Make it on Your Scheduled Appearance Day?

Some Courts in Dallas and Collin Counties have flexible policies with initial appearances — but never assume a Court will excuse an absence. If you’re not in Court for your appearance a warrant can be issued for your arrest.  Ask your lawyer and they can often coordinate your schedule with the Court’s docket.

*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 directly about any specific set of circumstances.

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Interference With Child Custody

July 18, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

As most people know, divorces may unfortunately turn very nasty. On occasion there are collateral criminal problems which can arise from a party’s conduct either prior to or after the court makes custody determinations for the children. While the blame may often seem trumped-up or baseless — being accused of interference with child custody is as serious as a heart attack because it’s a felony accusation in Texas. Also –as with any criminal prosecution –it is important to remember that the charges are no longer between you and your divorcing spouse; it’s between you and the State of Texas.

Texas Penal Code Section 25.03 is titled “Interference With Child Custody,” and that section reads accordingly:

(a) A person commits an offense if the person takes or retains a child younger than 18 years when the person:

(1) knows that the person’s taking or retention violates the express terms of a judgment or order, including a temporary order, of a court disposing of the child’s custody; or

(2) has not been awarded custody of the child by a court of competent jurisdiction, knows that a suit for divorce or a civil suit or application for habeas corpus to dispose of the child’s custody has been filed, and takes the child out of the geographic area of the counties composing the judicial district if the court is a district court or the county if the court is a statutory county court, without the permission of the court and with the intent to deprive the court of authority over the child.

(b) A noncustodial parent commits an offense if, with the intent to interfere with the lawful custody of a child younger than 18 years, the noncustodial parent knowingly entices or persuades the child to leave the custody of the custodial parent, guardian, or person standing in the stead of the custodial parent or guardian of the child.

(c) It is a defense to prosecution under Subsection (a)(2) that the actor returned the child to the geographic area of the counties composing the judicial district if the court is a district court or the county if the court is a statutory county court, within three days after the date of the commission of the offense.

(d) An offense under this section is a state jail felony.

The legal and factual scenarios and defenses are seemingly endless. Take, just as one example, a case prosecuted under 25.03(a)(1)… A prosecution under that section would probably include a complete order from the Divorce Judge which may or may not be written clearly enough to provide a party with sufficient guidance as to what is or is not permitted for times of custody (at least in the context of criminal liability.)

Also, Section (C) provides what is known as a “safe harbor,” where the offense was committed under 25.03(a)(2)… Which is to say that if the violating person returns the child within 3 days to the area or county controlled by the Court they have a defense to prosecution. This is to facilitate the return of children and to a lesser degree (I suspect) because the criminal justice system has a some biases against getting involved in the micromanagement of custody disputes and orders.

If you are being accused of interference with a child custody order, you should involve competent and qualified criminal representation at once. It’s not something to fool with.

*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 situation you should consult an attorney directly.

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Posted by Jeremy Rosenthal, Esq.

Evading Arrest or Detention

July 17, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Evading Arrest or detention is governed by Tex.Pen.C. 38.04 and it is committed where a person “intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or detain him.”

Evading can be charged differently depending on the facts and resulting injuries someone may sustain (in a car accident for example during a chase). It’s a Class B Misdemeanor if done without a vehicle (by foot); a State Jail Felony if done by vehicle OR if the accused has a prior evading conviction; a 3rd Degree Felony if done with a vehicle AND a prior evading conviction or if during the offense someone sustains serious bodily injury; a 2nd Degree Felony if someone dies during the evading.

The Officer Can’t Chase You Just to Chase You

Though the statute seems very cut and dry, evading cases do have many defenses. For example, An officer must be in the process of a “lawful” arrest or detention. The law surrounding detention is the same law which crops up for drug cases or DWI cases… Meaning the officer must have articulable facts which indicate there is probable cause to suspect someone has committed an offense. If a peace officer lacks probable cause, then the dentition is invalid and the fact someone attempted to flee in and of itself doesn’t make it an offense. Acquittals can and do result from this issue. (For the record evading is never a good idea regardless of legal defenses!)

You Have to Know You’re Being Chased

Additionally the state still needs to prove beyond all reasonable doubt that the accused knew it was a peace officer from which he was fleeing and/or that the person heard or knew to stop from the officer’s lawful command. Defending these elements can be difficult, but a qualified defense lawyer doesn’t give the State a pass on any element.

*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 any case you should directly consult an attorney.

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Posted by Jeremy Rosenthal, Esq.

Criminal Mischief

July 13, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Criminal Mischief is the essentially Texas’ way of labeling vandalism.  Under Tex.Pen.C. 28.03, a person commits an offense if, without effective consent of the owner, he intentionally or knowingly damages or destroys the tangible property of the owner; intentionally or knowingly tampers with the tangible property of the owner and causes pecuniary loss or substantial inconvenience to the owner or a third person; or intentionally or knowingly makes makings, including inscriptions, slogans, drawings or paintings, on the tangible property of the owner.

The level of offense of a criminal mischief case stems from the amount of damage to be alleged just as in theft cases.  Less than $50 of damage is a Class C misdemeanor; $50 to $500 is a Class B, $500 to $1,500 is a Class A; $1,500 to $20,000 is a State Jail Felony; $20,000 to $100,000 is a 3rd Degree Felony; $100,000 to $200,00o is a 2nd Degree Felony; and $200,000 or greater is a first degree felony.

Also, the punishment levels can differ if the property tampered with are public communication devices, for public transportation, and for utilities such as water gas and utilities.

Criminal mischief cases can often be very difficult for the prosecution to prove.  Much of the time the culprit is not apprehended at the scene of an offense.  As such, these cases tend to be built on circumstantial evidence and confessions and a skilled criminal defense attorney can be of great value.

If you are contacted by the police investigating a criminal mischief case you should involve an attorney at once!

*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 case you should consult an attorney.

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Posted by Jeremy Rosenthal, Esq.

Texas DWI Roadblocks

July 13, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 562-7549

The Texas legislature has been conducting hearings lately on DWI and DUI enforcement.  While some groups are calling for restraint and understanding in enforcement, other groups are still convinced the only way to lessen DWI’s are through move invasive police tactics — specifically through DWI roadblocks.  This Dallas Morning News article details the discussions.

Here’s what the law says about DWI roadblocks in Texas:

1.  There is no current statute on the books which allows a police agency to set up a DWI roadblock.  A police agency or political subdivision of the state (such as a city or a county) does not have the legal authority to implement one on their own.  Only the State of Texas can pass such a law for enforcement here.  See State v. Holt, 887 S.W.2d 16 (Tex.Crim.App. — 1994). Texas law does allow police to create checkpoints for driver’s license checks, however, those checkpoints cannot be used as an excuse, ruse, or pretext for a sobriety checkpoint.  See King v. State, 816 S.W.2d 447 (Tex.App. — Dallas, 1991).

2.  Any DWI or sobriety checkpoint must satisfy a well-established three-pronged balancing test or else it violates the Fourth Amendment to the U.S Constitution and Article I, Section 9 of the Texas Constitution’s prohibition against unreasonable search and seizure.  the prongs are:  (a) the interest of the state in preventing accidents caused by drunk drivers; (b) the effectiveness of DWI roadblocks in achieving such goal, and (c) the level of intrusion on an individual’s privacy.  Brown v. Texas, 443 U.S. 47 (1979), and State v. Van Natta, 805 S.W.2d 40 (Tex.App. — Ft. Worth, 1991).

The Bottom Line

A DWI, DUI, or sobriety checkpoint or roadblock is not per-se unconstitutional in Texas, however it’s been so hard to conduct legally that agencies wanting to do so must “go back to the drawing board.”  The biggest short-coming according to cases such as Van Natta is that the State has a very difficult time justifying the intrusion into people’s lives where there is no evidence that DWI road-blocks are effective in attaining the goal of reducing drunk driving.  This is not to say that such evidence does or does not exist — but it was not presented to the Courts deciding these cases.

It would be interesting to know from the hearings in Austin whether the people in question asking for the authority to conduct roadblocks have any data which shows checkpoints reduce DWI’s.  If the best argument the advocates can muster is “just because it’s time to get tough,” it looks like they’ll get sent back to the drawing board yet again.

*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 for any specific situation, you should directly consult an attorney.

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