When Police File a Case “At Large”

April 28, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

I’m writing this blog in the middle of the COVID-19 shutdown.  We’re seeing lots of cases handled “at large” these days.

What “At Large” Means in a Criminal Case

The Court has to have some way to make sure people come and face charges, win, lose or draw.  If criminal cases were voluntary, no one would come to court.  That way of securing attendance is the threat of jail.

An arrest is normally the very first legal action taken against a person.  A bond is set and if the bond is paid the person is released.  Formal charges come some time later – but prior to the running of the statute of limitations (2 years on a misdemeanor, 3 years on most felonies).

When a case is filed “at large” the arrest is skipped temporarily.  Once the formal charges are filed either in a misdemeanor or a felony an arrest warrant is triggered.

Why We’re Seeing So Many “At Large” Cases

Police and the Sheriff’s office want to keep the jail as unpopulated as possible during the COVID crisis.  It is law enforcement’s way of deferring an arrest and a jailing until later.

What Happens Next?

If someone has been told a case would be filed “at large,” then there is a good chance the police have or will forward a police report to the District Attorney’s Office.  The District Attorney’s office will review the report — and assuming they view the report as complete — they will typically file formal charges.  In a misdemeanor case it is called an “information” and in a felony the Grand Jury Meets and if they agree — the file what is called an indictment.  Both will trigger the arrest warrant.

If There is an Arrest Warrant Coming, What Do I Do?

It is always the better practice to be in control of the process by monitoring the active warrant filings and ultimately surrender yourself.  Prepare to post bond.  It’s also time to talk with a lawyer about your long term legal defense and how to best address the charges.

*Jeremy Rosenthal is Board Certified by the Texas Board of Legal Specialization.  He was recognized by Thomson Reuters as a Texas Super Lawyer in 2019.

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When Does a Family Assault Become Aggravated Assault with a Deadly Weapon?

April 28, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Most family assault cases come to us with similar facts.  A heated family argument happens, someone calls 911, and the police come out.  After interviewing the often angry, emotional, and sometimes intoxicated people – the police make their best guess as to who is at fault and charges are brought.

Many are shocked to see the charges or the arrest may be for “aggravated assault with a deadly weapon.”

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So what makes it aggravated assault with a deadly weapon?  Usually there is an accusation someone “used or exhibited” a “deadly weapon” in domestic or family assaults which takes them from being misdemeanor assaults to 2nd degree felony charges (Carrying 2 to 20 years in prison and/or a fine not to exceed $10,000).

Using or exhibiting has a broad definition legally as does deadly weapon.  A deadly weapon is defined as:

  1. a firearm; or
  2. anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or
  3. anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.

Even if there was no contact between spouses, if one spouse accuses another of brandishing an object which could cause serious bodily injury or death – then a person can ultimately be charged with aggravated assault with a deadly weapon.

I’ve seen all types of objects alleged to be deadly weapons.  Some are obvious and some leave you scratching your head.  Ash trays, candles, and even hands can be alleged to be deadly weapons.

The allegation can be heart-stopping – but here’s some good news:  The prosecution often sets themselves up for failure by over-charging these cases.  Imagine having jury duty, seeing someone charged with something as heinous sounding as “aggravated assault with a deadly weapon.”  Then you hear they got into an argument with their spouse and the show-stopping accusation is the accused picked up some object while arguing with their spouse and perhaps made some furtive motion which could be interpreted as a threat.  You’d think the accusation is ridiculous too.

There are variations on these facts we see — but there is almost never a good reason to capitulate to charges like these.  The charges can be attacked at the grand jury phase of the case, when it gets to the initial prosecution team — and if necessary at trial.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He was recognized as a Super Lawyer in 2019 by Thomson Reuters.

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Vehicular Homicide – Defending Through Technology

April 23, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Technology is our friend in defending a distracted driving death case.

Why is technology our friend?  Because more often than not, it provides us with a 360-degree view of what was going on in everyone’s mind and car at the time of the accident.  Law enforcement and prosecution, on the other hand, tend to see one nugget of technological information.  When they do, they jump to conclusions and blind themselves to anything else.

An Example of Using Technology to Tell the Full Story:

Let’s say Driver 1 and Driver 2 collide causing the death of Driver 2 — and Driver 1 is on trial for Vehicular Manslaughter.

Let’s assume police are able to lawfully get into Driver 1’s phone (a big assumption).  Driver 1 was shown to have sent 3 texts in the 5 minutes before the crash with one text received 15 seconds before the accident.

Police then jump up and down hollering this is conclusive Driver 1 was distracted and caused the death of Driver 2.

But we’re capable knowing a much fuller story than just this.

We can tell based on the car’s infotainment system virtually anything being communicated to Driver 1 from the car.  Was there a hands-free system being used at the time through bluetooth or through a USB cable? Did the car have lane-assist and if so, was the driver in his/her lane?  Did the driver brake and/or moderate their speed?

Many of these things are knowable from both cars in the accident.

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Car “Infotainment” systems can be key evidence in manslaughter and criminally negligent homicide cases.

Investigation and Privilege in Defending Vehicular Death Charges

A common fear is, “what if we dig into the technology and the truth actually hurts us?”

It’s a good question – but remember – your lawyer’s investigation is privileged.  If the investigation unearths bad or harmful information, then the information doesn’t boomerang and hurt the defense.  The public policy behind this is simple — Defense lawyers and defense investigators would never really dig into the truth if they were always afraid of what they might uncover.

Summation

The cornerstone to any good distracted driving homicide case whether it be criminally negligent homicide or manslaughter is being fluid with the technology surrounding the entire case.  The more information, typically the better.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He was designated as a Super Lawyer in 2019 by Thomson Reuters.

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Vehicular Homicide – Criminally Negligent Homicide

April 22, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

infotainment-systems-696x464

Criminally Negligent Homicide is controlled by Texas Penal Code 19.05(a) which says, “A person commits an offense if he causes the death of an individual by criminal negligence.”  It is a State Jail Felony punishable between 180 days and 2 years in a State Jail facility and a fine not to exceed $10,000.

Criminal Negligence

“Criminal Negligence” under Texas Law is multifacited for the purposes of a distracted driving death case.  A typical jury is instructed:

A person causes the death of an individual by criminal negligence if—
1. there is a substantial and unjustifiable risk that his conduct will cause
that death;
2. this risk is of such a nature and degree that the failure to perceive it constitutes
a gross deviation from the standard of care that an ordinary person
would exercise under all the circumstances as viewed from the person’s standpoint;
and
3. the person ought to be aware of that risk.

I highlighted the word “ought” because this is the distinction between Criminally Negligent Homicide and Manslaughter.  For Manslaughter, a person is actually aware of the danger yet consciously disregards the danger.

This is known as a “culpable mental state” and is a topic of first-year law school.  In Latin we call it “Mens Rea.”  Manslaughter requires a higher mental state and Criminally Negligent Homicide is a lower mental state.

Causation

As I discussed with Manslaughter, Causation is critical yet confusing.  The test in Texas is what is known as “but for” causation.  That is, “but for” the acts of the Defendant, would the person have died?  But consider a case where the deceased made mistakes which contributed to their own death?  This is known as concurrent causation.

The test for concurrent causation is whether the concurrent cause, on its own, was insufficient to cause the person’s death.

Here’s an example:

Driver 1 is texting and driving and fails to properly yield the right of way to another driver (Driver 2).  Driver 2 is also texting and was careless about seizing the right of way from Driver 1.  Driver 2 dies in the collision.  The Jury would have to resolve two questions for causation — first, is Driver 1’s distracted driving the “but for” cause of Driver 2’s death; and second, is Driver 2’s own carelessness insufficient on it’s own to cause his/her death?

It’s hard stuff – and unfortunately Jurors have a hard time tuning out emotion too — but that’s another topic.

Summation

Criminally negligent homicide for distracted driving or texting while driving in Texas is a lesser charge than Manslaughter.  The reason is because the culpable mental state also lower.  Other than the mental state there is little legal difference between Manslaughter and Criminally Negligent Homicide, however, the punishment ranges are clearly much less than for Manslaughter (2-20 years).  I hope this helps you understand the issues!

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He is recognized as a 2019 Super Lawyer by Thomson-Reuters.

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Vehicular Homicide – Manslaughter

April 21, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Manslaughter is governed by Tex.Pen.C. 19.04(a) which says, “A person commits an offense if he recklessly causes the death of an individual.”

It’s easy to over-simplify, but let’s break this down.

Here’s what the law says about how a person “recklessly” causes the death of another

–There is a substantial and unjustifiable risk that his conduct will cause that death;

–The risk is of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exer- cise under all the circumstances as viewed from the person’s standpoint; and

–The person is aware of but consciously disregards that risk.

Here’s what the law says about how someone “causes” the death of an individual:

–The conduct of Defendant was clearly sufficient to cause the death of the person; and/or

–Any and all other concurrent causes were clearly insufficient, by themselves, to cause the death of the person.

Analyzing “Recklessly”

The word “recklessly” is the lynchpin of vehicular manslaughter cases.  In essence, it means someone knew about the risk, yet made the conscious decision to ignore the risk.  Does texting while driving, eating while driving, or some other form of distracted driving rise to this level?  It’s in the eye of the beholder — a subjective case by case determination which is the terrifying grey area where these cases live for those accused of vehicular manslaughter.

Analyzing Causation

Law students are taught causation is extremely complex very early in their first year in tort law.

The test in vehicular homicide cases in Texas is essentially two-fold.  “But for” the defendant’s acts, the death would not have occurred is only part of the test.  What happens when the other driver either causes the accident or — even more confusingly — makes lesser mistakes which largely contribute to their own death?

For example:  Driver 1 is texting while driving incessantly and drifts into driver 2’s lane of traffic forcing driver 2 into a barrier.  Driver 2 is impaired and due to their impairment can’t react quickly enough to save their own lives.

Driver 2’s impairment is what is known as a “concurrent cause.”  So we know “but for” driver 1’s texting and drifting into the other lane — Driver 2 would be alive.  The question then is whether driver 2’s impairment was insufficient on its own to cause their own death.

My example is pretty simplified — but my guess is even then a jury could chew on this question for some time and come up with different opinions.

Summation on Vehicular Manslaughter

There’s no such thing as a simple case of manslaughter when it comes to texting while driving or distracted driving.  Each is highly technical both legally and emotionally.  I hope this article helps it make sense.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and was designated as a Super Lawyer by Thomson Reuters in 2019.

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