Sexual Abuse Charges – Blog 2: Aggravated Sexual Assault of a Child and “Super” Aggravated Sexual Assault of a Child

November 23, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

Today I’m continuing my blog series on Sexual Abuse Charges.  Here is a guide to this series of blogs on sexual abuse charges where you can find more information on today’s blog and other related topics.

What is Aggravated Sexual Assault of a Child?

It is defined by Tex.Pen.C. 22.021(b).  Much of criminal law focuses on what we call Mens Rea – latin for “the guilty mind.”  This is to say there is a large focus on what defendant is intending through their actions.

In many sexual abuse cases – judges and juries are asked to figure out the intent of the defendant through their actions.

A good way to think of ASAC is the acts of sexual abuse define themselves.  In other words, you can infer the intent of the defendant through their actions alone.  My apologies in advance for the graphic nature, but Tex.Pen.C. 22.021(b) lists the following acts as Aggravated Sexual Assault of a Child:

[A person] (i) causes the penetration of the anus or sexual organ of a child by any means;

(ii) causes the penetration of the mouth of a child by the sexual organ of the actor;

(iii) causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;

(iv) causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor; or

(v) causes the mouth of a child to contact the anus or sexual organ of another person, including the actor;

As you can see by the descriptions, none of these actions are debatable that, if true, they constitute sexual assault.

What’s In a Name?

The name of the charge can be a bit confusing because it sounds like weapons, kidnapping or other extreme violence were involved in the allegation like they are with aggravated assault charges.

The term “aggravated” heightens and distinguishes the charges based on the child’s young age because it applies to children younger than 14.  Sexual assault of a child (non-aggravated) applies to children younger than 17.

There is an even higher charge than aggravated sexual assault of a child – and that is when a child aged 6 or younger is the victim.  This is commonly referred to as “Super” aggravated sexual assault of a child though the statute doesn’t bear the name.

Possible Punishment Ranges

  • Sexual Assault of a Child – 2 years to 20 years;
  • Aggravated Sexual Assault of a Child – 5 years to 99 years or life;
  • “Super” Aggravated Sexual Assault of a Child 6 years old or younger – 25 years to life (no parole).

ASAC is further confusing because it allows for deferred adjudication but not regular probation.  Translation – the only way you can get deferred adjudication probation is by pleading guilty and having the judge grant you deferred.

If a person is convicted of ASAC, either at a trial or from a guilty plea, then they must serve at least the minimum of 5 years in the Texas Department of Corrections.

A person convicted of ASAC is eligible for parole after 50% of their sentence is discharged.

Super ASAC has a minimum of 25 years with no possibility of parole, probation, or deferred adjudication.

All persons convicted or placed on deferred for any of these charges is subject to lifetime sex offender registration.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He is designated as a Super Lawyer by Thomson Reuters.

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Posted by niftybrady

Texas Law on Murder and Homicide: 101

November 19, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

A person causing the death of another can be prosecuted in a number of different ways with vastly different punishment ranges in Texas – though they are all felonies in one form or another.

Murder and homicide are legally very similar to assault the main difference where the result of defendant’s actions are death instead of injury.

First Year Law School on Murder

In first year law school criminal law they teach to follow the “mens rea” which is latin for mental state when it comes to murder or homicide.  Premeditation (or lack of pre-meditation) is the single biggest factor in how murder is prosecuted.

The general provision for Texas Criminal Homicide is simple enough though the deeper you get into Texas murder law the more complex it becomes.

Tex.Pen.C. 19.01 TYPES OF CRIMINAL HOMICIDE

(a) A person commits criminal homicide if he intentionally, knowingly, recklessly, or with criminal negligence causes the death of an individual.

(b) Criminal homicide is murder, capital murder, manslaughter, or criminally negligent homicide.

Murder

Murder is committed where someone knowingly or intentionally causes the death of an individual under Tex.Pen.C. 19.02(b).

Sounds legally simple enough but remember to follow the “mens rea.”  If there is “sudden passion” which resulted in the homicide then it carries a lesser punishment.  Tex.Pen.C. 19.02(c).

Also there is a concept called “felony murder” which means if you are committing a felony (like robbing a bank or engaging in a car chase) and someone dies – it’s murder as well.  Tex.Pen.C. 19.02(b)(3).

Capital Murder

Capital murder is murder plus an aggravating factor.  See Tex.Pen.C 19.03 for a full list but it generally includes:

  • The murder of a public servant such as peace officer or firefighter;
  • Murder as a part of another felony act such as kidnapping, burglary or sexual assault;
  • Murder for hire/ solicitation;
  • Murder of a child.

Capital Murder can either be punished by death in certain instances or by automatic life without parole.

Manslaughter

Manslaughter is committed where the person recklessly causes the death of another.  It can often be vehicular in nature.  It can also often involve intoxication.  Manslaughter is a 2nd degree felony punishable by 2-20 years of prison.

Reckless is where a person “…is aware of but consciously disregards a substantial and unjustifiable risk.”  Tex.Pen.C. 6.03(c).

Criminally Negligent Homicide

Where criminal negligence causes a persons death – this statute can be applicable.  This is known as a “state jail felony” punishable between 180 days and 2 years of prison.

Criminal negligence is basically when a person “…ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur.”  Tex.Pen.C. 6.03(d).  It can often be vehicular in nature too.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He has been designated as a Texas Super Lawyer by Thomson Reuters.

 

 

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Posted by niftybrady

Assault and Family Violence Punishment Levels in Texas

November 14, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Assault is a result-based charge meaning the severity of the charge is normally commensurate with the degree of the alleged injury.  Assault can range from offensive contact to murder.

The way to think of a result-based charge is the action can be the same but the result is different.  For instance, if I punch another person and they are injured – then it would normally be a class a misdemeanor.  Were I to throw the same punch and hit the same person and they actually died because of the punch – I might be liable for murder.  Same action on my part – far different prosecution.

I’m not discussing affirmative findings of family violence which can also be attached to these types of charges in domestic assault cases.  Those can materially alter and affect the case.  You can read about affirmative findings of family violence here.

Chapter 22 of the Texas Penal Code controls assault related offenses while Chapter 19 controls murder and homicide.  Murder and homicide are obviously more complex so I’ll discuss that in another article.

Offensive or Provocative Contact

  • Class C misdemeanor
    • Punishment is up to $500 fine only;
    • Prosecuted either in municipal court or the Justice of the Peace.

Assault Causing Bodily Injury

  • Class A misdemeanor
    • “Bodily injury” means physical pain, illness, or any impairment of physical condition – Texas Penal Code 1.07(8);
    • Punishment is up to 1 year of jail and up to $4,000 fine;
    • Prosecuted in a county court at law;
    • A judge or jury can give probation.

Enhanced Family Violence

  • 3rd Degree Felony
    • Occurs when a domestic assault is alleged with a prior affirmative finding of family violence;
    • Punishment level is between 2 and 10 years TDC and fine not to exceed $10,000;
    • Prosecuted in a District Court;
    • A judge or jury can give probation depending on defendant’s criminal history.

Assault by Impeding the Airway or Choking

  • 3rd Degree Felony
    • “Impeding” is impeding the normal breathing or circulation of the blood of the person by applying pressure to the person’s throat or neck or by blocking the person’s nose or mouth;
    • Between 2 and 10 years TDC and fine not to exceed $10,000;
    • Prosecuted by district court;
    • A judge or jury can give probation depending on defendant’s criminal history.

Aggravated Assault

  • 2nd Degree Felony
    • Committed with either “serious bodily injury” or with the “use or exhibit” of a deadly weapon;
    • “Serious bodily injury” means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ – Texas Penal Code 1.07(46);
    • Punishment is between 2 and 20 years TDC with fine not to exceed $10,000;
    • Discuss probation eligibility with your lawyer.

*Jeremy Rosenthal is certified in criminal law by the Texas Board of Legal Specialization.  He is recognized as a Super Lawyer by the Texas Board of Legal Specialization.

 

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Posted by Jeremy Rosenthal, Esq.

What is Mitigation?

November 8, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

“Mitigation” means making something less severe, serious, or painful.  In criminal law it refers to learning, seeking and providing facts which reduce someone’s potential punishment.

Mitigation is Important in Every Single Case

A big misunderstanding is mitigation and trying to get an acquittal are mutually exclusive – they are not.  People think you somehow admit guilt if you try to take mitigation steps after an arrest such as seeing a mental health professional or entering drug and alcohol treatment.

You can still fight for innocence at the same time you try to explain or lessen the harshness of the possible punishment coming towards defendant.  In fact, we are legally bound to do so and it can constitute ineffective assistance of counsel to ignore mitigation.

A solid mitigation case actually strengthens our ability to fight for an acquittal.  This is because we are less concerned about severe punishment in the event a jury disagrees with us and finds the defendant guilty despite our best efforts.

Mitigation Which Looks Backwards

Mitigation can help explain why the Defendant is in the predicament they are in.  Examples of backward looking mitigation to explain or give context to someone’s actions often include:

  • Mental health or psychological disorders
    • anxiety
    • ADHD
    • Depression
    • Bi-Polar Disorder
    • Psychosis
    • Manic episodes
  • Past sexual abuse of the accused;
  • Past physical abuse of the accused;
  • Past or childhood emotional abuse of the accused;
  • Addiction and history of addiction of the accused.

When Someone Has a Great History

Another form of backwards mitigation is potentially where an accused has never been in trouble at all.  Certainly someone who has been straight as an arrow their entire lives do deserve some credit and lenience in many cases.  The same goes for people who really have their act together and are – for example – in school making straight A’s and helping build houses for homeless people on the weekends.

Mitigation which Looks Forward

Any mitigation must have a forward path to be effective.  Explaining to the judge or jury an accused has been able to explain or identify why they have a particular problem is great.  It lets the jury know the accused isn’t an evil person.  But without a path forward to correct things – a judge or jury might feel they need to incarcerate the person to protect society in the future.

Forward mitigation could include steps taken by the accused after the arrest.  Examples are endless of the types of steps which can be taken to hopefully re-assure folks criminal behavior won’t repeat itself with the accused.  Examples might be;

  • Drug and alcohol treatment
  • psychological treatment
  • Sex offender therapy or treatment
  • Rage or anger management treatment.

Examples of Mitigation in Criminal Cases

  • A classic and easy to understand example are Driving While Intoxicated cases.  I explain to clients everyone at the courthouse including prosecutors, judges and probation officers think (1) someone arrested for DWI is not only guilty – but they’ve probably gotten away with it 100 times we don’t know about; and (2) all people arrested for drunk driving are alcoholics.  Those assumptions may be completely fair or unfair – but those are the attitudes we will have to over-come in a case whether we like it or not.

If we can convince the courthouse types not only did the defendant get screwed by being arrested in the first place – but also he’s perfectly fine to drive – it only strengthen’s our overall hand.

Bottom Line on Both Forward and Backward Mitigation

A criminal defense lawyer cannot assume they are just going to win every case no matter how confident we are we will ultimately win.  The Courts have held repeatedly to ignore mitigation is ineffective assistance of counsel.  Mitigation also helps us strengthen our hand and ability to fight the case on multiple fronts – not just sympathy or correcting certain behavior.

*Jeremy Rosenthal is board certified in criminal law by the Texas Board of Legal Specialization.  He is recognized as a Texas Super Lawyer by Thomson Reuters.

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Posted by niftybrady

What does the Term “Forensic” mean?

November 7, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Forensics are when normal scientific principals are utilized for courtroom purposes – normally in a criminal context.  The applications can be fairly broad as far as scientific (and even some non-scientific) disciplines are concerned.

Some Science is Purely for the Courtroom

A textbook example are certain sciences where the science itself is almost solely geared at solving crime.  An example could be blood spatter.  There might be a different application of the science of blood spatter than criminal law – but if there is I don’t know it.  Bite marks would be another example of a discipline which is virtually entirely for the purposes of criminal cases (forensic odontology) and there has been tons of criticism of bite mark evidence.

Some Science Can Either be Forensic or Not

Other examples require the injection of legal or investigative principals into the science.  Examples there could be forensic pathology, toxicology, or psychology.

Pathology is essentially the study of tissue as it relates to disease.  Forensic pathology takes it one step further often to either determine causes of death or in other cases – causes of bruising for assault cases.

Toxicology is the study of toxins and poisons and their effect on the body.  Forensic toxicology, then, applies to specific legal principals such as the ability to drive, a person’s level of impairment, or perhaps a foreign substance which caused a person to die in a homicide case.

Forensic psychology is a unique practice where a psychologist applies mental health principals and diagnoses and applies them to individuals either to reconstruct someone’s thought process during a potential criminal episode, their overall psychological profile, or for mitigation purposes.

“Forensic” Disciplines We Might Not Think About Much

Other examples of forensics which are disciplines and areas of expertise we don’t associate with medicine can be:

  • forensic computer exams
  • forensic accounting
  • forensic engineering

Instances Where the Term “Forensic” is Potentially Misused

Police and children’s advocacy centers utilize what they call a “Forensic Interview” of a child in sexual or physical abuse cases.  It’s basically an open-ended interview of a child where they are asked to describe physical or sexual abuse in a non-leading fashion.  The psychological or scientific underpinnings or basis for the technique has never been made clear to me – at least not in the courtroom by any of the practitioners.  But it makes the interview seem official or important to the jury – which is why they label it that way, I’m sure.

*Jeremy Rosenthal is board certified in criminal law by the Texas Board of Legal Specialization.  He is designated as a Texas Super Lawyer by Thomson Reuters.

 

 

 

 

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Posted by niftybrady

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