Prostitution Law in Texas

November 20, 2011

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Texas Penal Code 43.02 governs prostitution and it states,

(a) A person commits an offense if he knowingly:

(1)  offers to engage, agrees to engage, or engages in sexual conduct for a fee; or

(2)  solicits another in a public place to engage with him in sexual conduct for hire.

(b)  An offense is established under Subsection (a)(1) whether the actor is to receive or pay a fee. An offense is established under Subsection (a)(2) whether the actor solicits a person to hire him or offers to hire the person solicited.

Prostitution is a class b misdemeanor unless the person has two or more previous convictions for prostitution in which case it is a class a misdemeanor.  It is a state jail felony if the person has been convicted three or more times.

Obviously the offense is considered the same by law whether the ‘actor’ is the person purchasing or selling the sexual conduct.  Despite prostitution being known as “the worlds oldest profession,” a prostitution charge is highly stigmatizing and should be taken extremely seriously.  These prosecutions often come from sting operations which can often border on entrapment.  An experienced attorney would be able to review every angle of the case and plan an aggressive defense.

*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.  Contacting the author through this forum does not constitute an attorney-client communication.  Any communication through this forum is not considered privileged.

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The “Public Place” Requirement of DWI Law — How it Really Doesn’t Matter Anymore

November 18, 2011

By  Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Texas Penal Code 49.04(a) is Texas’ DWI law and states, “A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place.”

“Public place” means any place to which the public or a substantial group of the public has access and includes, but is not limited to, streets, highways, and the common areas of schools, hospitals, apartment houses, office buildings, transport facilities, and shops.  Tex.Pen.C. 1.07(40).

Obviously when the Texas legislature wrote the drunk driving law, for whatever reason only they truly know, they wanted to omit places that weren’t public… i.e. private places.  My guess (and that’s all it is) is that the legislature probably wanted to preserve Texan’s ability to consume alcohol while engaging in sport such as hunting or fishing on private property.

The Courts of Appeals have essentially written the “public place” requirement out of the law over time.  Today, the language of Tex.Pen.C. 1.07(40) is virtually meaningless.  A handful of legal opinions over the years address the issue of whether a place is “public” for the purposes of DWI.

A 2009 unpublished opinion, Campos v. State, 2009 Tex. App. LEXIS 7487 (Tex.App.– Austin, 2009), sums up how this provision has been effectively eliminated.  I’ve included Campos’ internal citations so you can see how the logic has been patched together over time:

“…Texas courts have held that even areas that strictly limit public access may qualify as public places. When determining whether an area is a public place, the relevant inquiry is whether the public or a substantial group of the public has access to the place in question. Banda v. State, 890 S.W.2d 42, 52 (Tex. Crim. App. 1994); Shaub v. State, 99 S.W.3d 253, 256 (Tex. App.–Fort Worth 2003, no pet.). The level of access does not need to be complete or entirely unrestricted, provided members of the public could gain access under the right set of circumstances. See State v. Gerstenkorn, 239 S.W.3d 357, 359 (Tex. App.–San Antonio 2007, no pet.) (holding that gated community “with a security guard and limited access” was public place); Woodruff, 899 S.W.2d at 445 (holding that street in Air Force base was public place). Indeed, “[a]uthority exists for the proposition that ‘if the public has any access to the place in question, it is public.'” Woodruff, 899 S.W.2d at 445-46 (quoting 6 Michael B. Charlton, Texas Criminal Law ß 1.6 (Texas Practice 1994)…” Emphasis added.

For our non-legal experts at home, let’s dissect this just a bit more.  You can see there have been several cases which have addressed the issue.  And in each case what has happened is that the Courts of appeal have nit-picked the facts to declare places where the defendant was arrested as “public places.”  So we have a gated community is now a public place (Woodruff), then an Air Force base is a public place (Gerstenkorn)… and on and on…  Finally the Court declares, that anywhere a member of the public could gain access under the right set of circumstances (a ridiculously over-broad and subjective phrase), can be a public place.

Under the right set of circumstances… Really? … let’s think about that for a minute.  If we flip the phrase around and ask ourselves what types of places are private… are there any places that even qualify under that standard?

— A 200 acre fenced-in deer lease?  It’ a public place because ‘under the right set of circumstances’ a member of the public could gain access by being invited on or getting lost;

— A fenced in golf course?  It’s a public place because ‘under the right set of circumstances’ someone could pay money and operate a motorized golf cart (or an employee drive riding lawnmower);

— The star on the middle of the field at Cowboy’s Stadium in Arlington?  Well, ‘under the right set of circumstances’ a member of the public could drive a car with Roger Staubach in the back waving to the crowd… so now even that’s a “public place.”

Didn’t the definition under 1.07(40) say a public place is a place where “a substantial group of the public.. has access?”

Presto chango!  Through slight-of-hand, a “substantial group” of the public changed into “any” member of the public… and all in the name of public safety and law enforcement.  So, in summation, there isn’t a place anywhere in the State of Texas that a court can’t declare “public” if the DWI facts make them mad enough regardless of the wording of the Texas Penal Code.

*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 issue, you should contact an attorney directly.  Contacting attorney through this blog does not create an attorney-client relationship.  Information communicated to attorney through this blog is not confidential.

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Insurance Fraud

November 17, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Insurance fraud is governed by Chapter 35 of the Texas Penal Code.  It can be summed up as lying to an insurance company to attain benefits and/or coverage, but you should read the statute to clear up any questions you may have.

The statute makes several types of insurance fraud illegal.  To be guilty of insurance fraud, one must intentionally or knowingly present false or misleading material information to the insurance company.  An example of this might be that someone reports a car accident occurred — which never actually occurred to get insurance money.

Another way the crime is committed is to have instead the person who prepares or causes  to be prepared the insurance claim be accountable for any fraudulent statements.  An example of this is where someone goes to the dentist to have their teeth cleaned.  Unknown to the patient, the dentist has his administrative assistant bill the insurance company for a root canal.  In that instance, the dentist and his assistant are both likely guilty of the insurance fraud though the assistant might be shown more leniency.  The patient would have no liability assuming they didn’t know about the scheme.

Yet another way the crime can be committed is when someone with intent to defraud or deceive receives a benefit  from an insurance policy they know is the result of fraud.  A good example of this would be where a plumber and a homeowner decide to split the money for a bogus insurance claim where the plumber unclogged a toilet and the homeowner and he have a handshake deal where they submit it as a busted pipe which destroyed the bottom floor of a house.

Now, if you ask the insurance company — virtually everything someone tells them about a claim they don’t want to pay is “fraud.”  And, they’ll have the public think that despite raking in oodles of premiums and having one of out stoutest lobbies in Austin, insurance fraud is a wide-spread epidemic and that they, the insurance companies, are somehow victims.  Please contain your laughter.  The vast majority of insurance issues that get hashed out in court are done in civil, not criminal disputes.

Chapter 35 contains a lot of language which shows the degree of deceit has to be somewhat steep in order to trigger a crime because insurance claims are inherently subjective and the subject of bitter disputes.  For example, there must be showing of intent to deceive as well as the ‘materialty’ or importance of the false statement to the over-all claim.  Though some may disagree, blaming the other driver for the car accident probably isn’t going to land you in hot water for criminal insurance fraud assuming you have a good-faith belief for making such a claim.

Truthfully, insurance fraud prosecutions are somewhat rare.  But they are serious charges.  The charges can range from misdemeanors to felonies based on the dollar amount of the alleged fraud, and the charges would almost certainly qualify a crimes of moral turpitude which impair professional licensing and carry a terrible stigma.

*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 situation you should contact an attorney directly.  Contacting the author through this blog does not constitute an attorney-client relationship and such communications are not subject to the attorney-client privilege.

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Defending Blood Draws Versus Defending the Breath Test

November 16, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

There are many strategies to specifically attack either a breath or blood result, but today I’m going to compare blood and breath samples very generally.

Generally speaking — the most vulnerable aspects of either test is due to the degree that a human can either intentionally or negligently effect the outcome.

Jurors tend to have a bit of a natural skepticism against the science and technique regarding the breath test, but jurors unfortunately don’t scrutinize blood tests quite the same way.  On the other hand, the process for administering the breath test is ‘idiot proof’ whereas the procedure for taking, shipping and testing the blood is filled with human contact.

The Breath Test

The breath test is based on extracting the alveolar breath from one’s deep lungs.  That breath sample has to (1) come from the deep lung in the first place;  then (2) travel through the lungs, esophagus, and mouth, through a tube on the intoxylizer machine, and into a test chamber roughly the 1/3 the size of a coke can.  Pollutants which contain hydroxyl molecules at any place can corrupt the sample.  But, compared to the blood test, the breath test is scored right on the spot.  The operator of the breath test machine needs very little training and experience to administer the test — and they should not be able to affect the test.  If the operator makes a mistake, chances are that the machine will invalidate the result or that it will be revealed on the video of the test being taken.

Blood Draws

Challenging the chain of custody and the testing of blood can be very frustrating.  This is because the person drawing the blood, the people processing and sorting the blood samples at the lab, and the lab technicians simply don’t remember YOUR specific blood test.  Places where blood is drawn and the labs that test them are mills where they process 20, 30 or 100 different blood samples any given day.  But don’t worry — they’ll be sure to testify at trial that they never make mistakes when they draw the blood, put it on the carousel to be tested, or process it in the mail room.  The manufacturer of the blood vials puts in powdery chemicals into the vial to preserve the blood specimen.  Again, challenging the amount or quality of the chemicals can be like howling at the moon in front of a jury.

A recent opinion from the U.S. Supreme Court, Bullcoming v. New Mexico, at the very least allows defendants the opportunity to cross examine the personnel that test the blood.  In addition, it contains a far more in depth discussion of blood draws and is worth the read if you are interested.  Prior to Bullcoming, prosecutor’s were able to simply proffer a sheet of paper with the blood result which is impossible to cross-examine and a spokesperson to talk about the underlying science.  Jokingly, it is not much different that calling the receptionist at the lab who just tells the jury that in her experience “everyone is guilty.”

A Must if You’re Challenging Either Breath or Blood

Challenging the blood or the breath test, though, can only be done when the jury is told over and over that it is impossible to show where some scientific test went wrong — only that the result can’t possibly be right.  Jurors tend to have the expectation that someone can go back into a lab or into a breath test machine, recreate the exact circumstances, and prove exactly where a test went wrong.  But a good DWI trial lawyer needs to debunk that expectation and demonstrate to the jury that you can tell, for example, that a clock is wrong not by examining it by the finest timekeeper in switzerland — but because the clock says it’s night time and the sun is out.

*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 on any topic, you should consult an attorney directly.  Contacting the attorney through this blog does not create an attorney-client privilege and communications in response to this article are not subject to the attorney-client privilege.

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New DWI Law: Above a 0.15 is now a Class A Misdemeanor

November 13, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

Drunk driving laws are a one-way road.  They’re getting tougher and unless and until politicians begin campaigning on being easier on this sort of thing, you can expect the laws to keep getting even tougher than they are now.

A law passed this past legislative term and now in effect is that it is now a Class A misdemeanor if your blood alcohol result is above a 0.15 at the time the test is taken (not when you were behind the wheel).

The law is yet another example of how the state punishes you for cooperating by taking the breath test.

Not only that, but what they’re also doing is making steeper punishment more arbitrary.  Think of it this way… if person A has been drinking steadily all night and gets behind the wheel at, let’s say, a 0.18 blood/ alcohol concentration — it’s possible he’s spared the enhanced punishment because by the time he takes the breath test 2 hours later, his blood alcohol level may be at a 0.14 and he won’t be punished under this new enhancement.  Now take person B who took 2 or 3 shots before getting in the car to drive 2 miles home… felt fine… but was pulled over.  Two hours later, person B’s blood may spike at o.15.  Person B’s conduct is punished more harshly than person A, but clearly the culpability is reversed.

Regardless of why the law may be unfair, here’s the net result — it will be more stigmatizing.  Legally the punishment increases from a class b to a class a misdemeanor, so there is always the legal possibility that someone may get punished worse (up to a year in jail instead of 180 days and up to a $4,000 fine instead of $2,000).  In reality, people typically don’t see anywhere near the max jail time or fine on a DWI regardless of the breath or blood test scores.

The arrest will simply look worse on someone’s record and gives people facing these charges even more incentive to fight them.

*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 on any matter you should contact an attorney directly.

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