Can I Get Arrested for Texting Someone?

October 29, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

No, you can’t get arrested for texting someone in Texas but there are several exceptions.

When it is Illegal to text someone in Texas:

  • If you’re the subject of a Protective Order Issued by a Court

You’ll know if this is the case.  The law requires you to have notice and protective orders are normally issued to people arrested and released for offenses such as assault against a family member or other crimes against family members.  Protective orders commonly have “no contact” provisions in them.

  • Threating Messages

It is a crime to communicate something to someone (in any way) which places them in imminent fear of serious bodily injury or death.  You can read the entire statute on terroristic threats and assault by threat here.  The statute extends to threats made which could affect public safety.

  • Harassment

Sending repeated communications is an offense if it is done with the intent to annoy, alarm, abuse, harass, embarrass or offend another.  You can read the entire statute here.

Free Speech Issue

Sending text messages is a freedom of speech issue protected by the First Amendment.  This is why — in the abstract — it is perfectly legal to do it the vast majority of the time.  Your rights under the bill of rights are not absolute however.

The Government CAN limit your right to be free from search and seizure in some instances, they CAN limit your right to bear arms in some instances, and they CAN limit your right to free speech in some instances as they’ve done here.

*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 about any circumstance you should consult an attorney directly.

 

 


Sexual Assault Definition

October 26, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

Texas law defines sexual assault under Penal Code 22.011 below:

(a) A person commits an offense if:

(1) the person intentionally or knowingly:

(A) causes the penetration of the anus or sexual organ of another person by any means, without that person’s consent;

(B) causes the penetration of the mouth of another person by the sexual organ of the actor, without that person’s consent; or

(C) causes the sexual organ of another person, without that person’s consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;

The lynchpin of each definition is the lack of consent.  So what is the legal definition of consent?

Consent is defined by Texas Penal Code 1.07(11) as… “assent in fact, whether express or apparent.”  

The code goes on to further discuss “Effective Consent” meaning consent cannot be attained through force, threat, fraud, or mental defect.  Intoxication is a bar to effective consent where the person cannot make reasonable decisions due to the intoxication and the actor is aware of the impairment.  See Tex.Pen.C. 1.07(19).

Obviously youth is another bar to “effective consent,” but that is an extensive topic on it’s own so I won’t talk about it much today.  You can read more about the law on sexual assault of minors here.

So What Exactly is Consent?

Courts have been clear proof of consent cannot be defined through a set of magic words or with any bright line.  The Court’s position on what is or isn’t consent is a bit of a punt.  That is, the Courts are happy to say in most instances it is for the jury to decide whether consent did or did not exist or whether consent was ineffective due to some other circumstance.  In other words — it is in the “zone” where reasonable minds can differ.

The fact the Courts allow consent to be such a subjective concept essentially on a case by case basis is what makes it so terrifying for both the accused and the accuser.  An added layer of terror for the parties in a sexual assault case is many jurors are pre-disposed to automatically identify with one side or the other make a fair trial a real challenge.

Getting a Fair Trial

My primary goal in any case where consent is an issue is to get the best jurors possible for the case.  In a perfect world it would be a group of jurors I know will vote with me from the outset — but more realistically — eliminating the jurors who I believe will simply tune us out from the minute we step into the Courtroom.

*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 about any situation you should contact an attorney directly.