Theft Amount Classifications Changes Effective September 1, 2015

August 30, 2016

A Different View on Civil Liberties

August 28, 2016

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

I’ve got a world view which many have a hard time understanding when it comes to rights and it is this:  I don’t need most of them.  At least, I don’t think I do.  Most people I know really don’t need them either.

Though I fight hard for my clients against the powers that be — I’m a conformist at heart. I don’t live on the fringe and by that I mean I don’t say things which get authority figures so angry they’d want to jail me.  My neighbors don’t hate me because of what I drive, how I dress or what goes on at my house (at least I don’t think).  No one hates me because of who my family is or isn’t.

You could give me more rights than everyone else and I still wouldn’t need them.  The right not to stand in line at the hottest night club (I’m not cool enough), the right to the best tickets to NASCAR events (I’m not a fan), or the right to own the first house on the moon (I’m too scared to go and I couldn’t afford it).  These rights are useless to me because I  don’t need them.

On the flip side — you could probably take away many of my rights and though I wouldn’t be happy about it, my life would probably continue uninterrupted.  I’d probably find a way to get along without my right to be free from illegal searches or my right to remain silent.  I’ve never needed to exercise these rights and I do my best to lead my life in a way where I hopefully never will.

The question isn’t whether you, me, or anyone we know values these rights because unfortunately experience teaches me we don’t.  When you tell people their rights will be taken next they normally don’t care.

When someone unpopular or someone who says, does, or is accused of doing something heinous needs their rights — do we deal with them in an honest way as the framers of the constitution intended?  Do we make up the rules as we go along and give them lip service about their civil liberties?

All too often I deal with an establishment that in some small ways rationalizes minimizing someone’s rights.  Simple rights like the presumption of innocence, the right to be free from an inappropriate search, or someone’s right to an affordable bond can be infringed because “look at what you did!”  I wonder if this is what third-world countries might do to someone they don’t like.

Our rights guaranteed by the Constitution aren’t for the popular people, the conformists or the good every-day citizen.  They don’t need them.  They are for the people on the fringes, the unpopular people, and the misunderstood.  People who need meaningful rights most of all are the people we’ve determined in our heart of committed some terrible wrong.  This is what separates America from a third-world-country.

So when I argue about protecting rights to a jury — I don’t tell them to protect someone’s rights because those rights could be taken from them or their family one day… Unfortunately, I’ve come to learn people don’t care about their own rights for the same reason I question whether I need them myself.  Instead, I ask them what a third world country would do with a person like my client… and would we tolerate Americans acting the same way as them?

Can we be like a third-world country?  I suppose if the shoe fits.

*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.

Can I Recant a Police Statement?

August 25, 2016

Aggravated Assault with a Deadly Weapon

August 23, 2016

By Texas Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

Believe it or not this arrest is more common than you might think.  The name of the charge alone has a shock and a stigma which often doesn’t match — because it is frequently the result of over-charging or a mis-understanding by law enforcement of what really happened.

Frequent Fact Scenarios for Aggravated Assault with a Deadly Weapon

It is common to see arguments or actual fights where someone is alleged to brandish a weapon or sometimes just an object charged as aggravated assault with a deadly weapon in Texas.  These might arise in domestic or family situations, road rage or road stalking situations, or even common altercations in public places like restaurants, bars, or even sporting events.

Sometimes aggravated assault with a deadly weapon can be filed where there is a serious bodily injury caused by the “deadly weapon” as well.  This might include someone getting pistol whipped or even hit with a car.

What is the Law about Aggravated Assault with a Deadly Weapon?

Aggravated Assault with a Deadly Weapon is defined by Texas Penal Code 22.02.  That provision provides,

(a) A person commits an offense if the person commits assault as defined in Sec. 22.01 and the person:

(1) causes serious bodily injury to another, including the person’s spouse; or

(2) uses or exhibits a deadly weapon during the commission of the assault.

Under 22.01, an assault can be committed several ways including where someone “intentionally or knowingly threatens another with imminent bodily injury”

So AADW is committed where someone threatens another with imminent bodily injury where they use or exhibit a deadly weapon… or where they actually cause serious bodily injury to another while they use or exhibit a deadly weapon.

Many aggravated assaults are merely assaults with serious bodily injury.

Why This Gets Over-Charged So Much

There are two reasons I see.

First is because prosecutors can label limitless things and objects as deadly weapons because the definition is broad.  Prosecutors frequently label obvious things such as knives, guns or hatchets ad deadly weapons but when they get more creative they can label things such as hands, cars, or coffee mugs as deadly weapons.  Taken to the logical extreme they could allege a twinkie is deadly weapon given the right set of facts.

Second is because they minimize the term “imminent” in the statute.  Imminent danger is defined by Black’s Law Dictionary in part as, “….immediate danger, such as must be Instantly met, such as cannot be guarded against It calling for the assistance of others or the protection of the law…”  It is not uncommon to see situations where police make an arrest based on the mere display of an object they consider a deadly weapon regardless of the surrounding circumstances or context.

In the defense of law enforcement — their standard to arrest is “probable cause” and if they encounter a situation where they think someone could be seriously hurt they often don’t have much choice but to take someone to jail for no other reason than prevent a catastrophic situation unlikely as it may be.

There are Defenses To Aggravated Assault with a Deadly Weapon

First and foremost — the state has to prove all charges beyond a reasonable doubt.  That’s not a given.  A criminal defense lawyer must dispute essential elements of the case however they can.

Also a person can use deadly force in certain situations.  Deadly force is defined in Texas as force that is intended or known by the person using it to cause death or serious bodily injury or force that in the manner of its use or intended use is capable of causing death or serious bodily injury.

Situations where deadly force may be used are listed in Texas Penal Code 9.32 .

More defenses are available for non-aggravated assaults because a person cannot use deadly force to defend themselves from non-deadly force and defense of property is far more limiting when it comes to deadly force.  Additionally a person cannot consent to aggravated assault as a matter of law though they could consent to assault causing bodily injury (such as an athletic event or a mutual fight).

The Bottom Line

Aggravated assault cases with deadly weapons can be winnable.  This is because they arise from so many different situations and the law allows prosecutors much leniency in how the cases are charged.  Just because a prosecutor thinks it’s a good idea to charge a case, however, doesn’t mean they’ll win.  Have a lawyer who knows how to handle these types of charges.

*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 other topic please contact an attorney directly.