Am I Eligible for an Expunction?

August 29, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

I get asked this question a lot by people that went through the system years and even decades before they come to see me.

Texas Code of Criminal Procedure Chapter 55 governs expunctions.  It can be fairly complex in spots, but as a general rule you’re entitled to an acquittal on a Class B Misdemeanor or above if you’ve been tried and acquitted of the charges.  Also, you’re entitled to expunction where you were arrested for a misdemeanor or felony offense and never charged by indictment or information and the statute of limitations has passed.  On Class C Misdemeanors you’re generally entitled to expunction if you are placed on deferred adjudication and there is no community supervision ordered but there are exceptions.

Several Class C offenses can be used to enhance crimes in the future.  An example is with a Class C assault with a family violence allegation.  Even though it’s a Class C punishable by a fine only, a second offense — no matter how small — can be charged as a felony!

Other conditions of an expunction are that you are not subject to prosecution for anything else regarding the criminal episode which is the subject of the expunction and you can’t get an expunction if you were convicted of a felony offense within 5 years of the date of the arrest you are trying to get expunged.

Often people don’t know exactly what happened with their previous case.  Finding out the legal result should be done prior to seeing a lawyer.  Also the laws on expunctions change frequently so you may not want to assume you can get something expunged later because you never know when the Legislature and/or Governor in Austin will snatch that right away from 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 you should consult an attorney directly.

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Should I Take a Police Polygraph?

August 28, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

Police will often call people under investigation and ask them to submit to a polygraph.  Today I’ll cover some of the broader issues but you should absolutely consult an experienced criminal attorney directly prior to making your decision to submit to a polygraph or not.  This is because the factual scenarios and variables are countless — and if the police are investigating you then the stakes are high.

If I pass the Polygraph, They’ll Drop the Investigation, Right?

Hopefully.   Remember passing or failing a polygraph is not admissible in Court.  Even though you may pass, the police are not legally bound to let the case go.  Again, every scenario is different so even with a passing polygraph, the police may still have sufficient evidence to charge you and they may still be convinced you’ve done something wrong.  Also, police have the job of dealing with alleged victims who pressure them over the phone on a daily or hourly basis.  Police may decide to keep going with the case, albeit half-heartedly.

Even where police promise they’ll drop the charges if you pass they aren’t bound by that promise.  Also keep in mind that deception is a legitimate law enforcement tactic.  Experienced criminal defense lawyers in your community may know whether the agency you are dealing with has a reputation for being trust-worthy or whether they’ve got a reputation of tricking people they investigate.

Is the Lie Detector Test Fair?

Again, maybe or maybe not.  Some polygraph examiners have better reputations than others.  Resources on the internet have wildly opposing views.  It is possible for some polygraph tests to consist of unfair “do you still beat your wife?” or “do you turn down drugs very often?” questions that are designed to fail you.  Then again, sometimes the results come out just fine.

Things You may not be Considering

Taking a polygraph exam for the police is no different than coming into the station voluntarily and giving a statement.  The only thing inadmissible will be the fact you made the statements while taking the polygraph and the results of the polygraph.  It will be fully admissible in Court and may educate the police on facts they may not already have and/or give them an admission of a fact the suspect but can’t prove.

Are there any Alternatives?

There are several.  First is that if you say no to a polygraph it may not necessarily mean that an investigation will result in charges being filed.  This is for the reason that police need to have evidence of every element of the offense charged to establish probable cause to have an arrest warrant issued.  If they don’t have enough evidence then they can’t go forward.

Second, you can allow the police to charge you and deal with the prosecuting agency instead of the police.  The dynamics of these relationships is different everywhere, but generally speaking you and your lawyer may get the chance to deal with a different set of people who may be more sympathetic your side of the story without a lie detector test.

Third is that you can hire your own private polygrapher and conduct your own test. The positive of this is that you can eliminate unfair questions and if the result is bad, it is considered work-product and therefore privileged under the Texas Rules of Evidence.  The down side is that (depending on the reputation of the polygrapher), the police or prosecutor may not accept the results, the process is more expensive, and if you tell the police you’re doing a polygraph on your own and you never get back with them about the results — they’ll assume you took it an failed it.

In Summation

Being asked to take a polygraph by the police puts you in an extremely difficult spot.  Sometimes in life we have bad choices and worse-choices… no good choices.  You should always consult an attorney directly as that attorney can assist you in managing and evaluating the variables unique to every case.

*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 case you should directly consult with an attorney.

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Evidence Of Good Character In Criminal Cases

August 24, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

We all want to think that our good deeds and honest lifestyle for years or decades should count for something. Often I’m asked by people that have never been in trouble if the judge or jury will be able to know they’re good people.

There are ways and rules which permit you to interject good character to the judge or jury in trial. During plea negotiation, your lawyer can always try to persuade the prosecutor by pointing to a good record or a record of recovery.

Texas Rule of Evidence 404 controls character evidence for the accused in trial. An accused can put “character into question,” but there are some limitations. First is that all evidence must be relevant under TRE 401. “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Evidence of volunteer work with the elderly, then, might not be relevant during the guilt/innocence phase at a DWI trial even though it is proof of good character.

Also evidence of character cannot generally be used at trial to prove conformity therewith (though rule 404b has specific exceptions). As an example, most judges probably won’t let you defend theft allegations by showing that you have a good credit score. Character is a legally tricky issue and because it’s really on a case-by-case and fact-by-fact problem, many judges will likely disagree as to what is or is not permissible. Appeals courts give trial courts a lot of discretion with these types of things.

Another issue with injecting character into the trial is that when a criminal defendant does this, it can “open the door” to the prosecution using character evidence of their own to try and dis-prove the accused’s assertion of good character. Obviously in cases where the accused has a past record or similar accusations from before — injecting character into evidence can backfire badly at the guilt/ innocence phase of the trial.

Character is always relevant at the punishment phase of the trial where an accused has been found guilty.

*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 directly.

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Which Weapons are Illegal in Texas?

August 19, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Often times people in possession of certain weapons don’t learn that possessing those weapons is an offense until they’re in handcuffs.  Depending on the weapon in question, the offense can be a Class A Misdemeanor or even a Felony.

Texas Code of Criminal Procedure 46.05 controls prohibited weapons, and that statute says in relevant part,

“(a)  A person commits an offense if he intentionally or knowingly possesses, manufactures, transports, repairs, or sells:

“(1)  an explosive weapon; (3rd degree felony)

“(2)  a machine gun; (3rd degree felony)

“(3)  a short-barrel firearm; (3rd degree felony)

“(4)  a firearm silencer; (3rd degree felony)

“(5)  a switchblade knife; (misdemeanor) (Repealed effective 9/1/2013).

“(6)  knuckles; (misdemeanor)

“(7)  armor-piercing ammunition; (3rd degree felony)

“(8)  a chemical dispensing device; or (3rd degree felony)

“(9)  a zip gun. (3rd degree felony)

“(b)  It is a defense to prosecution under this section that the actor’s conduct was incidental to the performance of official duty by the armed forces or national guard, a governmental law enforcement agency, or a correctional facility.

“(c)  It is a defense to prosecution under this section that the actor’s possession was pursuant to registration pursuant to the National Firearms Act, as amended.

“(d)  It is an affirmative defense to prosecution under this section that the actor’s conduct:

“(1)  was incidental to dealing with a switchblade knife, springblade knife, or short-barrel firearm solely as an antique or curio; or

“(2)  was incidental to dealing with armor-piercing ammunition solely for the purpose of making the ammunition available to an organization, agency, or institution listed in Subsection (b).

There are more defenses to prohibited weapon possession than meets the eye.  First is that there will always likely be a search and seizure issue of how law enforcement attained the weapon in question.  If the search was illegal, then the exclusionary rule may keep the evidence suppressed requiring an acquittal.

Additionally, the State must prove “possession” which, under Texas Penal Code 1.07(39) means, “actual care, custody, control or management.”  In other words, law enforcement must do more than show the defendant was near the weapon or could have possessed the weapon.  They must show he ACTUALLY possessed it.  Finally, there are affirmative defenses such as if the weapon is a curio (generally antique weapons made before 1899).

The fact these offenses alone are mostly felonies clearly indicates that if you are accused of possession of a prohibited weapon that you should get a lawyer involved.  Even if the weapon charge is for knuckles or a switchblade, understand that Federal laws and Texas laws are constantly evolving and a conviction may make lawful gun ownership in the future more difficult if not impossible.

One final point is the Federal Government also highly regulates firearms.  Just because a particular weapon may be legal under Texas law still doesn’t make it illegal under Federal law.  You can read here about those.

*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 specific legal advice about any case you should consult a lawyer directly.

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Project Innocence Interview — Peter Neufeld

August 19, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

Today I’m posting an interview done  by Slate Magazine with Peter Neufeld, the co-founder of project innocence.  It’s an amazing read.

The main stream regularly writes off people like Mr. Neufeld and project innocence as “village idiots” unless and until the system turns on them.  The main theme that runs throughout his interview, although they don’t say it in these terms, is confirmation bias — where the police grab onto a theory and won’t let the facts get in the way.

*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 you should consult an attorney directly.

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