Sexual Abuse Charges – Blog 9: Registration, Deferred Adjudication, and Probation

November 30, 2020

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

Being convicted of a sex crime is unenviable to be sure.  One of the reasons we fight so hard on sex charges and crimes is because the down side is so catastrophic.

I’m continuing my series on sexual abuse cases – today discussing the technical and legal aspects of what happens if you or a loved one have either been found guilty, been placed on deferred adjudication or have been released from prison.

Sex Offender Registration

Registration is controlled by Tex.Code.Crim.P. Chapter 62.  It requires a sex offender to register with local authorities on a regular basis.  Many cities have also passed ordinances requiring sex offenders to live a certain minimum distance from schools or playgrounds which is an intentional method of excluding sex offenders from living in their communities altogether.

Registration is filled with tripwires and is enforced often by bored police or nosey neighbors.  Even homeless people must comply.  Failure to register as a sex offender in itself is a 3rd degree felony (2-10 years).

It goes without saying registration is very stigmatizing.  The stigma hurts not only the sex offender but punishes their family, too for being loyal.  Families suffer the choice between abandoning their loved one or themselves suffering retaliation in housing and at work.  Sex offenders are at heightened risk for suicide.


Deferred Adjudication

Deferred adjudication is a form of probation whereby a person pleads guilty but is not found guilty.  The person is placed on probation for a specific amount of time.  If they complete the probation the case against them is “dismissed.”  Dismissed under Texas law for deferred doesn’t really mean what we all think – it just means the case is over.

Deferred in a sex case sounds great – but is really often a trap door.  Name all 50 states in ten seconds.  Name every President of the United States in 30 seconds.  Sex offender probation isn’t quite that hard – but it can be extremely onerous and taxing.

The downside is if a person’s deferred is revoked – they are subject to the entire punishment range for the original offense.  So, for a first degree felony (5-99 years or life) – the person could actually get a life sentence if they unsuccessfully attempt deferred adjudication.

Additionally deferred in every case also triggers sex offender registration.

Deferred is also a mechanism prosecutors use if they have weak cases to bait folks into pleading.  If the person accepts the deferred and then has a hard time – the person can no longer argue they were innocent to a jury.  The only issue before the court is whether the person violated deferred.

There are benefits to deferred.  It isn’t prison and when the case is over the person can deny having been “convicted” although they cannot deny having been arrested, charged, or pleading guilty.  If they are charged again with a sexual abuse charge – the deferred counts as a conviction.

Completing deferred on a sexual abuse charge does not entitle the person to have their case sealed, expunged, or otherwise hidden from the public in any way.

Sexual abuse charges where a person is eligible for deferred (depending on their criminal history) are:

  • Aggravated sexual assault of a child;
  • Sexual assault of a child;
  • Indecency by contact;
  • Indecency by exposure.

Sex Offender Probation

The main difference between sex offender probation and deferred adjudication is the person is convicted prior to being placed on probation.  This has importance beyond being able to claim a person was never convicted of an offense.  The conviction actually caps the defendant’s legal exposure to prison.

In other words if the defendant violates probation and is sent to prison – it would legally be capped at the underlying sentence.  A person cannot be placed on probation for more than a 10-year sentence in any case.  Thus, being “convicted” of a sex offense in some ways is actually better than being placed on deferred for a sex offense.

The requirements of sex offender probation are equally as daunting and difficult as if someone is on deferred.

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




Can the Police Track Your Phone?

November 16, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

Yes, police can track your phone.

Smart phones, car infotainment systems, and computers have absolutely revolutionized criminal investigation and criminal law.

While these forensic practices are very cutting edge and revolutionary – they are still somewhat impractical depending on the case.  Legally there are obstacles for law enforcement too – but those are typically overcome.

The intersection between liberty and technology is always evolving and it always will.  Courts recognize people have privacy interests in our phones, cars and computers for which we increasingly rely – but the more advanced the technology – the more tempting and simple it is for law enforcement to attain.

For example, cell tower triangulation currently requires not only knowing specific information about the device but also requires getting records from the carrier.  A car infotainment download is very expensive but it can tell law enforcement anything the car has communicated to the driver such as GPS data, lane assist warnings or car door openings.

Tracking cell phones requires lots of work which might include search warrants for records and even fighting with the likes of AT&T or Sprint – but it is possible and can be extremely valuable to police.

I rarely see cell phone tracking in cases such as driving while intoxicated, theft, or even sexual assault.  Cell phone triangulation and tracking are common in homicide cases, kidnapping cases and other high-profile cases.  Also, civil lawsuits might have cell phone tracking evidence because a party is willing to shell out the money to pay for it.

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

The Police Want to Interview Me – Won’t Telling Them “No” Only Upset Them?

November 12, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

Declining to be interviewed by the police when you’re under investigation will probably upset them.  But who cares?  What are they going to do in retaliation — accuse you of a crime?  Hint: they’re probably already accusing you of one and you’re the last one in on the secret.

Jails and prisons are full of people who gave statements to police when they were under investigation.

Exercising your 5th Amendment right to remain silent is perfectly legal and if your case ever came down to a trial, the jury would never be informed of the fact that you declined an interview based on an attorney’s advice.

Won’t the Police Drop the Case if they Think I’m Innocent? 

Of course that’s possible and I’m sure it happens.  But just as often the officer has already made up his mind and is only building his case against a suspect by bringing them in for an interview.

Police are not judges.  They do not get involved in disputes to hand the party they think should win a ribbon or prize when the investigation is over.  They investigate crime.  They do that by building a case element by element as defined by the Texas Penal Code.  Often the only way they can make their case is through a statement of the accused.

By declining an interview, a suspect may be denying the police the very ability to even go forward with an arrest warrant or possible criminal charges.  So if the police are upset that a suspect didn’t come in — that is obviously outweighed by the benefits of exercising 5th Amendment rights.

Can’t I Convince them I’m Innocent?

Good luck with that.

Most experienced criminal attorneys will tell you police often make-up their mind very early in an investigation.  We’re all raised thinking that people around us have open minds — but any trial lawyer that deals with juries on a regular basis can tell you how hard (or impossible) it can be to change a juror’s mind once they formulate an opinion.  Think about how, when you debate sports, politics or religion with a person who doesn’t seem very committed to any position — yet will simply not be persuaded by anything you have to say.  If anything, they tend to get more engrained in their position when challenged.  Police reason no differently about cases they’ve made up their mind on.

We are all programmed from the time we’re little to respect authority and submit to the wishes of authority figures.  Police (whether they think of it in these terms or not) absolutely use their authority status to manipulate a person into giving them information they’re not legally entitled to have.  And to be clear — this is good police-work as deception is a legitimate law enforcement tactic.

Police know people will try to convince them of their innocence and they use it to their advantage in getting information.

Won’t Things Be Better if I Take Responsibility if I did Make a Mistake?

Maybe yes and maybe no.  At the very least you should consult a lawyer to hear their thoughts about your case.  Your version of taking responsibility may be a heartfelt apology, restitution, and a promise to change your behavior.  The State of Texas’ version could be to send you to prison for the rest of your life depending on the situation.  Having a lawyer in the mix could at least help you have some degree of control in the situation or even broker favorable terms if you made a mistake and feel strongly about cooperating with law enforcement.

In Federal cases, cooperation through your attorney can help substantially lower your exposure to criminal penalties.

*Jeremy F. 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.

What does the Term “Forensic” mean?

November 7, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(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.