When do I Have to Plead Guilty or Not Guilty in a Criminal Case?

August 17, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

In Dallas and Collin County criminal defendants are typically not required to enter into a plea on initial court settings and typically only do so either immediately prior to trial (in the case of a not guilty plea), or obviously if and when they make a plea bargain with the State. Most initial and second settings are merely to make sure the defendant is keeping up with requirements of bond as well as giving the prosecutor and defense lawyer an opportunity to make progress towards the resolution of the case… Be that a dismissal, a trial, or a plea bargain. Visiting directly with the judge is rare at these court dates.

Chapter 26 of the Texas Code of Criminal Procedure governs arraignments (the formal process where a court informs the accused of the charges against them as well as advising the accused of other rights). The arraignment is typically where a defendant will enter a plea, but the code is relatively silent on exactly when that must occur. Tex.Code.Crim.P. 26.03 only says arraignment is improper if it’s done within two days of indictment and the accused is still in jail.

Most Texas Courts have their own policies in place for when they do arraignments requiring a defendant to plead guilty or not guilty. In General, Dallas and Collin Counties only require the plea to be made at a guilty plea or before trial begins.

Some courts may seek to arraign defendants at their initial court setting for other reasons. This doesn’t necessarily mean you can’t change your plea but you should obviously consult your lawyer first.

*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. For legal advice you should directly consult an attorney.

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Posted by Jeremy Rosenthal, Esq.

Dallas Morning News DWI Series

August 16, 2010

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

(972) 562-7549

texasdefensefirm.com

The Dallas Morning News is running a series of articles about DWI’s as they relate to the criminal justice system August 14, 15, and 16, 2010.  You can read today’s article here.

Regardless of whether you agree or disagree with the article’s point of view it is informative nonetheless as the staff authors Diane Jennings, Selwyn Crawford and Darlean Spangenberger have clearly done their homework in interviewing prosecutors, judges, and criminal defense lawyers alike.  What I think they’re missing is that this problem has 10-sides… not just 3.

My chief complaint (this is MY blog after all), is that both yesterday’s and today’s article assume anyone accused of an intoxication offense is, in fact, guilty.  From that starting point, it is understandable then that it appears anyone and everyone that gets a result short of a full-fledged flogging is somehow cheating the system.  Let’s not forget this is a county known for sending innocent people to prison.

I am glad to see the concept of deferred adjudication enter the conversation, however, as one of the main problems with the Courts dealing with DWI’s is the all-or-nothing position people accused of DWIs face on a daily basis.  Giving the accused a middle ground gives them something to lose by fighting the charges and in my opinion would be a major step towards clearing the dockets.

One suggestion by Richard Alpert (a Tarrant County Prosecutor known state-wide as an authority on prosecuting DWI) suggests in today’s article that if the legislature is going to consider deferred for DWI cases that they at least be able to enhance subsequent DWI’s as if the previous deferred was a conviction.  Sadly, this is exactly what makes deferred adjudication a trap-door in other cases.  Essentially it would be deferred in name only — and as I joke with my clients — it only feels good to get deferred.

But I digress… if you’re interested in the topic, the DMN series is a decent enough read.

*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 for any specific situation you should contact an attorney directly.

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Collin County Juvenile Justice System — A Defense Lawyer’s Perspective

August 13, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

Often parents dealing with the juvenile justice system feel like they’re wading deeper and deeper into quicksand.  Believe me — I get it!  Today’s blog is about giving you a defense lawyer’s take.

For starters, Collin County has a dedicated Court for juvenile cases — that being the 417th District Court.  Regardless of the level of offense (for everything over a Class C), any and all juvenile cases are currently brought in that court.  The Court is assigned a team of 3 prosecutors by the Collin County District Attorney’s office and there is also a team of juvenile probation officers which assist the Court and the DA’s office in making evaluations and reccomendations.

Probably the biggest source of frustration for parents and defense attorneys alike is the unique rehabilitative role played by the State (and by State I am combining the prosecutors and the probation officers) when it comes into conflict with your juvenile’s legal rights.  The State often isn’t as concerned as they need to be about the rights of your son or daughter — and experience tells me they often they skip the facts of the case and proceed to the punishment or “rehabilitative” phase of the case too quickly.

Not only that, but sometimes it seems as if the evaluator comes away with a very different take on a conversation with a parent than the parent may think.  I don’t pretend to know exactly why, but it’s not uncommon for the parents to tell someone evaluating their child or teenager something like,

“He’s a good kid and he helps others… sometimes he doesn’t pay attention to me and that gets frustrating, but he’s been doing better lately…”

And what makes it into the report that’s submitted to the prosecutor or the Judge is, “Parent says the child doesn’t pay attention to them and the parent is frustrated with the juvenile…”

I believe strongly that your juvenile needs a voice too.  Maybe your juvenile didn’t do anything wrong at all.  Maybe they made a a bad mistake or even hurt someone.  Regardless, isn’t one of the worst lessons your teenager can take from dealing with the justice system is that authority figures can make-up the rules as they go along?  How motivated will a teenager be to do better when they think authority figures will still treat them unfairly even when they do their best?

*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.

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Posted by Jeremy Rosenthal, Esq.

Texas Perjury Law

August 11, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

Texas Penal Code Chapter 37 covers perjury. Perjury, like any other type of charge, has differing levels of severity depending on the circumstances. The degree of offense ranges from a Class A Misdemeanor to a Third Degree Felony. Punishment level aside, Perjury is obviously a crime of moral terptitude which carries with it it’s own set of stigmas and consequences. Make no mistake — a perjury allegation is ridiculously bad news!

Section 37.02 says,

“(a) A person commits an offense if, with intent to deceive and with knowledge of the statement’s meaning:

“(1) he makes a false statement under oath or swears to the truth of a false statement previously made and the statement is required or authorized by law to be made under oath; or

“(2) he makes a false unsworn declaration under Chapter 132, Civil Practice and Remedies Code.

“(b) An offense under this section is a Class A misdemeanor.

This section refers to documents that you may be asked to execute under oath from time to time. In case you’re curious, Chapter 132 of the Civil Practice and Remedies code allows prisoners in the Texas Department of Corrections to file documents as if they were under oath by reciting a declaration… Probably because they don’t have many notaries working in prisons.

Aggravated Perjury is a Third Degree Felony and is under Section 37.03 which reads,

“(a) A person commits an offense if he commits perjury as defined in Section 37.02, and the false statement:

“(1) is made during or in connection with an official proceeding; and

“(2) is material….

Whether a statement is “material” is for the judge to decide. 37.04 covers materiality and says, “…A statement is material, regardless of the admissibility of the statement under the rules of evidence, if it could have affected the course or outcome of the official proceeding… It is no defense to prosecution under Section 37.03 (Aggravated Perjury) that the declarant mistakenly believed the statement to be immaterial.”

There is a defense to aggravated perjury and that is through retraction. retraction must be “before completion of the testimony at the official proceeding; and before it became manifest that the falsity of the statement would be exposed.”

Several other notes about perjury and aggravated perjury… No lawyer can ever assist someone in the commission of any offense, must less these offenses. You should RUN (not walk) away from any lawyer that suggests or insinuates otherwise.

Also many trials in criminal and civil law produce inconsistent statements from one witnesses (in varying degrees), or from multiple witnesses with differing accounts. Criminal prosecutions don’t automatically follow. It is up to the prosecuting agency to determine whether perjury has actually occurred and that the case is something worth pursuing.

If you are facing accusations of perjury or aggravated perjury, you should involve criminal counsel immediately. It is an extremely serious charge and can put a major crunch in your work and career plans!

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 contact an attorney directly.

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Posted by Jeremy Rosenthal, Esq.

False Report to Peace Officer In Domestic Assault Cases

August 10, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

It is illegal in Texas for a person to make a false report to a peace officer or a law enforcement employee.  Texas Penal Code 37.08 is the governing statute.  That provision states,

“(a)  A person commits an offense if, with intent to deceive, he knowingly makes a false statement that is material to a criminal investigation and makes the statement to:

“(1)  a peace officer conducting the investigation; or

“(2)  any employee of a law enforcement agency that is authorized by the agency to conduct the investigation and that the actor knows is conducting the investigation.

“(b)  In this section, “law enforcement agency” has the meaning assigned by Article 59.01, Code of Criminal Procedure.

“(c)  An offense under this section is a Class B misdemeanor.

A common situation where this law comes into play is in assault/ family violence cases.  Often, alleged victims of an assault will seek to retract or deny having made a previous statement to law enforcement.  In those situations, they could actually be exposing themselves to criminal liability for making a false statement.

It is not uncommon in assault/ family violence situations for alleged victims to seek counsel of their own (not the same attorney representing their spouse charged with assault) if they retract their original statement or admit under oath that their original statement was false.  The alleged victim has important rights in this scenario as well and a lawyer can help protect them from incurring legal liability themselves in these cases.

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

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