Collin County Deferred Prosecution Program — Update (1/31/11)

January 31, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

Many changes have and are taking effect under new Criminal District Attorney Greg Willis.

Amongst those changes are changes to Collin County’s Deferred Prosecution Program.  That program was originally instituted by former District Attorney John R. Roach, Sr. and allowed youthful “offenders” the opportunity to avoid having their cases be filed formally in exchange for a less-formal probation under the supervision of the Collin County Community Supervision department (probation).

There were many complaints about how Mr. Roach’s administration ran the program.  For example, there were formal guidelines set in place that were inflexible and could be somewhat arbitrary.  For example, people were refused entry into the program because they did not reply within the narrow time frame given to them regardless of the reason.

Also, the method in which people were contacted was suspect.  First, the person would receive direct notification of the program via an unsigned letter bearing the letter-head of the probation department.  The letter would invite the offender and his/her parents to come and confess to the crime — and that they would then be considered for admission into Deferred Prosecution Program (the letters did not come from the DA’s office).  Lawyers in Texas cannot directly contact persons they know to be represented by counsel in opposing matters.

The new Collin County DA’s policy towards the Deferred Prosecution Program takes a far more common-sense approach.  It appears as though they are evaluating the program on a case-by-case basis and they are willing to review cases submitted to them for review.  It’s guesswork at this point as to how exactly the old-guidelines will play into the new decision making, but the Defense lawyer community is hopeful that the program will be more fair and available to people deserving a second chance.

Obviously, the DA’s office has to draw the line somewhere with allowing people into the Deferred Prosecution Program — which means that not everyone will get what they want.  At least everyone will be heard.  And that’s a huge change.

Ask your lawyer about the Deferred Prosecution Program in Collin County if you think it’s an option for your case or your child’s 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 situation, you should directly consult with an attorney.

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A Quick Guide to Texas Drug Possession Charges

January 30, 2011

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Chapter 481 of the Texas Health and Safety Code govern drug offenses in Texas.  Don’t bother trying to look it up.  It’s an impossible maze and you’d need a pharmacy degree to understand.  And even then it’s tough.  Here’s a quick and dirty guide:

Three Factors Determine Offense Level for Drug Possession

The main factors are; (1) the type of drug; (2) the amount; and (3) surrounding aggravating circumstances (such as drug-free zone or possession with intent to deliver.)

Penalty Groups

Drugs are classified into penalty groups and there is a special group for marijuana.  Though this isn’t a complete list, it should give you a good idea… and you can click on the link for a complete list of each penalty group:

Penalty Group 1: Cocaine, Heroine, Methamphetamine, Ketamine, Oxycodone and Hydrocodone (over 300 mg).

Penalty Group 1a: LSD (Lysergic Acid Diethylamide).

Penalty Group 2: Ecstasy, PCP (Phencyclidine), Mescaline, Marinol,

Penalty Group 3: Valium, Xanex, Ritalin, and Hydrocodone (less than 300 mg.)

Penalty Group 4: Dionine (morphine), Motofen, Buprenorphine (an opioid), and Pyrovalerone.

Amounts:

Marijuana:

Usable Amount Less than 2 Ounces: Class B Misdemeanor.

Between 2 and 4 Oz.:  Class A Misdemeanor.

4 Oz. to 5 pounds:  State Jail Felony.

5lbs. to 50 lbs.:  3rd Degree Felony.

50 lbs. to 2,000 lbs.:  2nd Degree Felony.

Over 2,000 lbs.:  1st Degree Felony (Fine not to exceed $50,000)

Penalty Groups 1 & 2:

Less than 1 gram:  State Jail Felony.

Between 1 and 4 grams: 3rd Degree Felony

Between 4 and 200 grams (4 and 400 grams for Pen. Group 2): 2nd Degree Felony

Over 200 grams on Pen. Group 1 (over 400 grams for Pen. Group 2):  1st Degree Felony

400 grams or more (Pen. Group 1):  Enhanced 1st Degree Felony (10 years to 99).

Penalty Group 1A:

Less than 20 units: State jail felony

Between 20 and 80 units:  3rd Degree Felony

Between 80 and 4,000 units:  2nd Degree Felony

4,000 to 8,000 units:  1st Degree Felony

Over 8,000 Units:  Enhanced 1st Degree Felony

Penalty Group 3 &4

Less than 28 grams: Class A Misdemeanor.

28 to 200 grams: 3rd Degree Felony

200 grams to 400:  2nd Degree Felony

400 grams or more:  1st Degree Felony.

Aggravating Factors:

Aggravating factors can increase the punishment range.  The general rule of thumb is that an aggravating factor will enhance the punishment by one level.  Aggravating factors can be possession with intent to distribute or possession in a drug free zone.  For example, possession of marijuana of less than 2 ounces in a drug free zone is a Class A Misdemeanor instead of a Class B.

*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 issue you should consult an attorney directly.

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Assault by “Impeding the Normal Breathing or Circulation”

January 29, 2011

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

In 2008, the Texas Legislature amended the assault statute to add section 22.01(b)(2)(B) which makes it a 3rd degree felony when, “the offense is committed by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person’s throat or neck or by blocking the person’s nose or mouth.”  It essentially makes an assault where there is choking a felony instead of a misdemeanor.

A 3rd degree felony is punishable between 2 and 10 years in prison and/or a fine not to exceed $10,000.  Not to be over-looked are family violence allegations which can be every-bit as serious as felonies in their own way.

Thought the statute may seem clear cut, there are all sorts of legal issues with these types of prosecutions.  Keep in mind that newer statutes are the ones that tend to have unintended consequences or unforeseen loopholes.

The primary questions are whether defenses such as self-defense or consent apply to this type of an assault.  Section 22.06 of the Penal Code allows for consent as a defense to assaultive conduct (in relevant part), where “the conduct did not threaten or inflict serious bodily injury…” or was a known risk of the victim’s occupation.  So while a person cannot legally consent to an assault where they suffered serious bodily injury, it seems as though they may legally consent to an assault where there is a choking under 22.01(b)(2)(B).  Self-defense under Texas Penal Code 9.31 is broader, but it’s application to the assault by choking is also unclear.  Self-defense is justified, “…when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force.”  Though every court may treat this differently, and eventually the appellate courts may tell us how they think this law should work — it looks like it is an issue a jury would likely have to consider.  Did the alleged victim put themselves in a situation where they consented to being choked?  Was the accused justified in defending themselves by choking the alleged victim?  I’m sure there are countless scenarios where these could apply.

Other legal issues include whether the State can allege lesser-included offenses of misdemeanor assault in conjunction with the “choking” allegations.  District Courts which handle felony’s don’t have jurisdiction to hear misdemeanor cases.  This too is a question which may be subject of an appeal.

Finally there are the normal host of legal issues which surround an assault prosecution.  Those include possible hearsay statements, the defendant’s right to face his accuser in court, and the alleged victim’s right to counsel in the event they could be liable for inconsistent statements under “false report to a police officer.”

These prosecutions and situations are extremely complex.  An accused person should absolutely have an experienced lawyer that understands these intricacies of these newer types of prosecutions.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. He is designated as a Texas Super Lawyer by Thomson Reuters.

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DWI Surcharge Amnesty Program — Deadline, April 17 2011

January 26, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

The Dallas Morning News reports that the Department of Public Safety is offering an amnesty program for those in arrears on surcharges they owe on their driver’s license from DWI convictions and/or other violations such as no insurance.  You can read about the amnesty program here.

Unlike a sale at your local department store — there is no guarantee that after the deadline (April 17, 2011), people will have a second chance to save money on paying back fees.  If you’re in arrears on surcharges on your Texas Driver’s license, you should seriously look in to applying immediately.

*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.

Theft of Service

January 23, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Theft of service is a criminal charge where the alleged victim accuses someone of stealing services instead of actual property.  An example may include where someone hires a contractor to build something that he never intends to pay for.  Also, it is a law used by rental companies to charge people with theft if they don’t return the rented property.  It is controlled by Texas Penal Code 31.04(a) and says in relevant part:

“A person commits theft of service if, with intent to avoid payment for service that he knows is provided only for compensation:

“(1)  he intentionally or knowingly secures performance of the service by deception, threat, or false token;

“(2)  having control over the disposition of services of another to which he is not entitled, he intentionally or knowingly diverts the other’s services to his own benefit or to the benefit of another not entitled to them;

“(3)  having control of personal property under a written rental agreement, he holds the property beyond the expiration of the rental period without the effective consent of the owner of the property, thereby depriving the owner of the property of its use in further rentals; or

“(4)  he intentionally or knowingly secures the performance of the service by agreeing to provide compensation and, after the service is rendered, fails to make payment after receiving notice demanding payment.

The punishment levels for theft of service are the same as for normal theft charges.  This is to say that the level of offense is governed by the dollar amount alleged to have been stolen.

Theft of service is generally much harder to prove than a normal theft charge.  This is because there often isn’t a clear distinction between a bad business deal and fraud.  The key is the “intent” element.  The state must prove beyond all reasonable doubt that the accused planned to steal the services all along.  This can be extremely difficult because often the motive for someone not paying a bill lacks criminal culpability.

The second part of the statute in 31.04 creates presumptions that the court can use to instruct the jury that a person is presumed to have stolen in certain circumstances.  An example of this is where an accused fails to make payment within 10 days of receiving notice from the victim to make payment.  The presumption, though, is rebuttable and the jury does not have to accept it as true.

Theft of service — like theft — is a very serious charge.  Though to criminalize a deal gone bad may seem easy to deal with — you should get a lawyer regardless!

*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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