Getting a Theft Off Your Record Isn’t Hopeless

June 22, 2012

By Collin County Criminal Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Theft looks rough on a background check whether it was for less than $50 or for more than $200,000.

Theft cases are hard to fight too and statistics back that up.  Retail stores today are equipped not only with surveillance cameras but also with extremely aggressive loss prevention officers who routinely suspect innocent people of being criminals.

But it’s not hopeless getting a theft arrest off your record in Collin County if you take the right steps early.  There are two main avenues other than trial which could result in an expunction of a theft arrest.

The first is through the Collin County pre-trial diversion program which is an informal probation by invitation only where the prosecution agrees to dismiss charges and even agrees to an expunction.  An attorney can help make the case to the prosecutor that their client is worthy of invitation and final acceptance into the program — and also evaluate the pros and cons of entering the pre-trial diversion program.

A second way to get a record expunged is by plea bargaining for the prosecutor to agree to reduce the charges to a Class C misdemeanor (usually from a Class B or A misdemeanor) and give deferred adjudication.  This has the legal effect of allowing eligibility for expunction after two years from the date of the arrest if the deferred is successfully completed.

While the statistics and the prognosis can be very daunting when facing a theft charge in Collin County, you should remain hopeful of seeing your way through the problem with patience, diligence and advocacy.

*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 issue you should speak directly with an attorney.

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Collin County Pre-Trial Diversion Update (June, 2012)

June 22, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

It’s been a while since I’ve written about the Collin County Pre-Trial Diversion program.

As a refresher, the pre-trial diversion program is a less formal probation offered under Tex.Code.Crim.P. 42.12.  In Collin County, a first-time offender may be offered the opportunity to enter the pre-trial diversion program which would result in the underlying charges to be dismissed and eventually expunged.

The Collin County District Attorney’s Office has made this alternative more available in the past few years for certain categories of cases.  Most qualifying cases tend to be misdemeanor theft and drug cases though those charges are not exclusively considered.  While the diversion program is available for felonies, selection of felony cases for diversion has been extremely selective. Diversion is not offered for DWI or DUI charges.

The program has endured some growing pains but remains an excellent avenue towards clearing one’s record.  The current process is that a defendant’s attorney must first apply and be approved by the District Attorney’s Office.  After receiving approval from the DA’s office, a candidate is sent paper-work to be reviewed with their attorney.  The candidate is then required to personally make an appointment with the probation officer who conducts a final interview and decides if the candidate is admitted into the pre-trial diversion program.

Generally speaking a candidate is usually accepted into the program at the interview — but not always (a point they make repeatedly).  The interviewer, however, can reject the application.  The criterion for such rejection can be rather vague but probably hinges on the needs of the person entering the program in relation to the current load of the program.

The program isn’t perfect, but from a practitioner’s standpoint seems to have a high success rate for those who are accepted and remains a useful option.

*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.

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Can I Recant a Police Statement?

June 20, 2012

By Collin County Criminal Defense Attorney Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Generally speaking a statement made to police in the course of an investigation can be considered by the police, a judge, or a jury for it’s full meaning.  Recanting the statement might call the original statement into question… then again it might not.

Who Made the Statement?

Statements of the Accused

Important in the analysis is who made the statement, what role that person plays in the proceedings, and the timing of the statement or statements.

A statement by an accused is referred to as an admission by a party opponent under Tex.R.Evid. 801(e)(2).  If the statement is relevant to a jury then it’s fully admissible.  The person or person(s) the statement was made to can testify to what was said by the accused or can have a written statement admitted.

Practically speaking, an accused and his or her lawyer would have to explain their reason for recanting such a statement although the burden of proof never shifts to the defendant under any circumstance.  Many judges and jurors would be naturally skeptical — and police tend to believe statements which fit their theory of the case.

Witness Statements

A statement by a witness or an alleged victim is a different and far more complicated matter.  The defendant in a case has the right to confront accusers in open court.  A witness who gives inconsistent statements to police — or attempts to recant a previous statement to police could be impeached or cross examined on the inconsistent statements before a judge or jury.

Suppressions of Statements

An accused’s remedy to have a prior statement nullified is usually a motion to suppress.  This would be in a situation where the original statement was taken illegally in violation of Miranda rights (or in Texas known as Tex.Code.Crim.P. Art. 38.22).  Those provisions do not apply to statements made prior to custodial interrogation (arrest).

Warnings about Inconsistent, Changed, or Recanted Statements to Law Enforcement

Depending on the situation — a person might not have a duty to cooperate with law enforcement.  An accused person, for example, always has the right to remain silent.  If you are cooperating with law enforcement, however, you have the legal duty to do so honestly.  Making inconsistent statements or admitting that previous statements were false could result in a person being prosecuted for criminal offenses of making false statements to law enforcement, obstruction of justice, or even perjury in some circumstances.

If you’re in the situation where you are considering in good faith recanting or amending a statement to law enforcement — you should have an attorney involved to counsel 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 about this or any circumstance you should contact an attorney directly.  Contacting the attorney through this forum does not create an attorney-client relationship nor are communications or postings in this forum privileged.

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Can A DWI in Texas Be Expunged?

June 18, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Yes.  There are two main ways.

The first and most common way is that you need to plead not guilty and have a trial.  If you are acquitted, and you otherwise meet all the pre-requisites of Tex.Code.Crim.P. Chapter 55, then you will be eligible to have your file expunged.

The second, less common way, is for the statute of limitations to pass (2 years) without the case being on file.  This could be from having your case dismissed by the district attorney’s office, from having a motion to suppress all the evidence granted, or from the police agency and/or district attorney’s office never filing your case after the arrest.  In this scenario, an arrest could similarly be expunged under Chapter 55 of the Texas Penal Code.

Driving while intoxicated arrests cannot be non-disclosed.  This is because there is no possibility of Deferred Adjudication on DWI cases.  Drunk driving cases in Texas tend to be an all-or-nothing proposition that 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 situation you should contact an attorney directly.  Contacting the attorney through this forum does not create an attorney-client relationship.  Communications through this forum are not confidential.

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Official Oppression

June 9, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Texas Penal Code Chapter 39.03 governs official opression which occurs when a public servant acting under the color of office:

“(1)  intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful;

(2)  intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful; or

(3)  intentionally subjects another to sexual harassment.

(b)  For purposes of this section, a public servant acts under color of his office or employment if he acts or purports to act in an official capacity or takes advantage of such actual or purported capacity.”

Official oppression is a Class A misdemeanor punishable up to a $4,000 fine and/or one year of county jail.

Generally speaking this statute keeps public officials accountable in the event they misuse their office.  The difficult part in proving this offense would be to show that the public official knew their conduct to be illegal.  Ignorance of the law is no excuse but having a good faith belief that what you are doing is legal is a different matter.  Official acts of police, judges and prosecutors are given extremely broad leeway so they do carry out their public duties in constant fear of being prosecuted themselves.  The law is subjective and as long as an official has some sort of good-faith belief in the legality of their actions, it would be extremely difficult to prove official oppression.

*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 situation you should contact an attorney directly.  Contacting the attorney through this forum does not create an attorney-client relationship and communications with regard to this blog are not confidential.

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Posted by Jeremy Rosenthal, Esq.