Are Police Going through an Investigation or Just the Arrest Process?

March 12, 2018

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

The dictionary defines “investigate” as, “To carry out a systematic or formal inquiry to discover and examine the facts of (an incident, allegation, etc.) so as to establish the truth.”

Truth, then, is the focus of an investigation.

But virtually always we see the focus of an investigation is a person — not necessarily the truth.  The assumption made by law enforcement is the person who is the focus of the investigation and the truth are one and the same thing.  In other words, many, many “investigations” are flawed from the start.  The result of the investigation is only correct where the assumption is also correct.

And it is further true when you ASSUME you make an ASS of U and ME.

I can’t tell you how many times I’ve seen an “investigation” start with a detective or police officer reaching their conclusion first.  They call a tow truck to haul off someone’s car for DWI before they even ask the driver out of the car.  They offer a complaining witness victim assistance information, sympathy, and promises of action after just moments of hearing one side.  They promise action to someone who lost their savings when they come in blaming someone else for their loss.

Wouldn’t it be more appropriate to call those police actions “the arrest process?” instead of an investigation?  It is often clear the police aren’t interested in the truth — instead they are interested in arresting the person they think is guilty from the outset.  They just know in their heart the truth without researching any of the facts.  What could go wrong doing it that way?

The arrest process looks more like a geometric proof than a search for the truth.  The police are checking to see if there is enough evidence for each and every element and if there is — then bang — case closed and the bad guy is handcuffed.  The problems is many of the facts are rose-colored to the investigator and the standard for probable cause is low.  Instead of putting pieces of a puzzle neatly together, the oddly-shaped pieces are jammed together to make the image already in the officer’s head.

The arrest process might be just fine in certain instances.  I’m sure it often yields fair results. But let’s just not call them what they’re not — investigations focused on the truth.

*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 topic you should consult an attorney directly.

 

1 Comment | Assault, Computer Crimes, crimes against children, Divorce related crimes, DWI, Murder, Police, Police and Prosecutors, sex cases, White Collar Crime | Permalink
Posted by Jeremy Rosenthal, Esq.

Aggressive Criminal Defense Lawyer

March 6, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

My name is Jeremy Rosenthal.  I eat nails.  I crawl on broken glass.  When I’m not screaming at prosecutors or judges for my clients, I’m having a 30 Lb. medicine ball slammed into my abdomen like Rocky Balboa training to take on the planet.

Not really.

I suspect all lawyers – let alone defense lawyers – are regularly asked by prospective clients if they are “aggressive,” “tough,” or if they are “a fighter?”

Truthfully, I’m not the best person to answer the question.  I’d say go ask some prosecutors how fun I am in trial.  I’ve been at this long enough to be pretty sure I’m not the path of least resistance for them — but again — this is for them to answer.

I’d like to make two points in this blog.  The first is the question itself assumes being aggressive is the right approach in any given case.  Second, is being an aggressive, tough fighter isn’t mutually exclusive with other skills which make an excellent lawyer.

It would be interesting to be asked if I was “thorough,” “meticulous,” and “calculated…”  Just once I’d like to be asked if I was “sensitive,” “encouraging,” and “thoughtful.”  Maybe today someone will try to see if I am “charismatic,” “clever,” and “crafty.”

It takes all these skills — and more — on many cases.  There is a right time to turn up the aggressiveness and toughness.  There is a right time to be calculated,  a right time to be sensitive, and a right time to be charismatic (to the extent I can turn that one on and off).

Ultimately a person needs to choose a lawyer which makes them feel comfortable.

But your lawyer needs to have a complete game.  They need to be a Swiss Army Knife of skills because each case is it’s own snowflake.  There are cases where I’ve made courthouse enemies for decades and there are cases where we need to pay attention to the carpenter’s rule – measure twice and cut once.  Sometimes both are appropriate given the case.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas.

 

 

Leave a Comment » | Assault, Computer Crimes, DWI, General Q&A, Murder, sex cases, Trial Advocacy, Uncategorized | Permalink
Posted by Jeremy Rosenthal, Esq.

Computer Crimes: Breach of Computer Security

August 7, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

The Texas Penal Code Section 33.02 criminalizes accessing another person’s computer or computer network without their effective consent.  Specifically, subsection (a) of that provision says, “A person commits an offense if the person knowingly accesses a computer, computer network, or computer system without the effective consent of the owner.”

A “Computer” is defined by Tex.Pen.C. 33.01(4) as “an electronic, magnetic, optical, electrochemical, or other high-speed data processing device that performs logical, arithmetic, or memory functions by the manipulations of electronic or magnetic impulses and includes all input, output, processing, storage, or communication facilities that are connected or related to the device.”  Even though I’m no tech guru, it would seem to me this definition would fit almost any smart phone such as an iPhone or Blackberry.

“Effective Consent” is defined by Tex.Pen.C. 1.07(19).  That definition nullifies consent if the consent was gained due to fraud, force, threat or if the person giving consent was not able to make reasonable decisions due to age, disability or intoxication.

A standard breach of computer security in Texas is a Class B Misdemeanor punishable by up to 180 days jail and up to a $2,000 fine.  In the event the breach of security causes damages to another person, then the punishment level is governed by the amount of damage suffered.  Above $1,500 but less than $20,000 is a State Jail Felony; a Third Degree Felony if above $20,000 but less than $100,000; a Second Degree Felony if over $100,000 but less than $200,000; and a First Degree Felony if above $200,000 of financial loss.

All computer crimes require detail-oriented criminal defense attorneys.  There are many technical issues and evidentiary issues which are every-bit as important as the underlying questions which can certainly be complicated as well.  Unauthorized access cases have many complications that are similar to other crimes such as theft and even trespassing — due to the nature of whether someone has a legitimate reason or “effective consent” to take a certain action or be a certain place (whether in the real world or in cyberspace).  The factual applications are limitless — employment or even unfortunately in divorce scenarios where spouses are gathering information on one another.  What some people see as being harmlessly nosy — the law in Texas can recognize as a crime!

*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 you should consult an attorney directly.

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Posted by Jeremy Rosenthal, Esq.

Texas Criminal Punishment Levels

June 25, 2010

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Offense Levels in Texas (updated as of January, 2018):

Class C Misdemeanors:  Punishable by a fine not to exceed $500:

  • Traffic offenses
  • Assault by contact
  • Drug paraphernalia
  • Disorderly conduct (other than firearm related)
  • Theft under $100 (unless theft committed by check)
  • Insufficient funds
  • Minor in possession (MIP)
  • Minor in Consumption

Class B Misdemeanors: Fine not to exceed $2,000 and not more than 180 days confinement in county jail:

  • DWI (72 hours minimum jail; 6 days minimum with open container)
  • Possession of Marijuana (less than 2 oz.)
  • Theft over $100 but less than $750
  • Theft by check (over $20 but less than $500)
  • Criminal mischief over $100 but less than $750 (vandalism)
  • Violation of a protective order
  • Indecent exposure
  • Racing on a public road
  • Prostitution
  • Disorderly Conduct with Firearms (display or discharge)

Class A Misdemeanors:  Fine not to exceed $4,000 and not more than 180 days confinement in county jail:

  • DWI (2nd offense) (minimum 72-hours jail)
  • DWI over 0.15 BAC
  • Possession of marijuana (between 2 oz. and 4 oz.)
  • Possession of dangerous drugs (usually the possession of legal drugs without a valid prescription)
  • Assault causing bodily injury
  • Theft between $750 and $2,500 (whether by check or otherwise)
  • Criminal mischief over $750 but less than $2,500
  • Evading on foot

State Jail Felonies:  Fine not to exceed $10,000 and confinement in state jail institution for no less than 180 days and no more than 2 years.

  • Possession of controlled substance less than 1 gram (typically methamphetamine, cocaine or heroin)
  • Credit card abuse (using another person’s credit card without authorization)
  • Third theft conviction of any amount
  • Theft between $2,500 and $30,000
  • Forgery
  • DWI with a minor under the age of 15 in the vehicle
  • Evading with a vehicle
  • Car Theft (Unauthorized Use of a Motor Vehicle)

Third Degree Felonies:  Fine not to exceed $10,000 and confinement in Texas Department of Corrections for no less than 2 years and no more than 10 years.

  • Possession of controlled substance between 1 and 4 grams;
  • Aggravated assault
  • Assault causing bodily injury (enhanced from prior finding of family violence)
  • Burglary of a building
  • Theft between $30,000 and $150,000
  • DWI (3rd offense)
  • Indecency with a child (by exposure)
  • Solicitation of a minor

Second Degree Felonies: Fine not to exceed $10,000 and confinement in Texas Department of Corrections for no less than 2 years and no more than 20 years:

  • Possession of a controlled substance over 4 grams but less than 200 grams
  • Burglary of a habitation
  • Aggravated assault with a deadly weapon
  • Theft between $150,000 and $300,000
  • Indecency with a child (by contact)
  • Injury to a child
  • Sexual Assault of a Child (Under 17 but not 14)
  • Sexual Assault
  • Attempted murder
  • Intoxicated manslaughter

First Degree Felony:  Fine not to exceed $10,000 and confinement in Texas Department of Corrections for no less than 5 years and no more than 99 years.

  • Murder
  • Possession of a controlled substance over 200 grams
  • Possession of a controlled substance between 4 and 200 grams with intent to distribute
  • Arson
  • Theft over $300,000
  • Aggravated Sexual Assault of a Child
  • Aggravated Sexual Assault of a Child under 6 (25 – Life w/o Parole)
  • Continuous Sexual Abuse of a Child or Young Children (25 – Life w/o Parole)

It should be understood that though many of these offenses carry mandatory minimum jail sentences, virtually every offense other than Murder has provisions whereby sentence may be probated or suspended for community supervision (probation).

Other points:

There are some offenses referred to as “hybrid” offenses which mean they can straddle boundaries of punishment — but for the most part the levels remain fairly consistent.  Some offenses like Driving While Intoxicated raise the minimum punishment level but are still considered to be in that general category.

Also many offenses are subject to what are known as enhancements.  Enhancements are other surrounding factors that can enhance — or increase the base punishment level for certain offenses.  The enhancement can be for something surrounding the transaction (like possession of drugs in a drug free zone), or as is often the case because of prior criminal history.

*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 specific issue you should consult an attorney directly.

3 Comments | Appeals, Assault, Computer Crimes, crimes against children, criminal mischief, Deadly Conduct, Divorce related crimes, DWI, Emergency Protective Orders, Homicide, Indecent Exposure, Murder, sex cases, Uncategorized | Tagged: , , , , , , , , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.

Computer Crimes in Texas: Online Impersonation

June 13, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Laws lag behind online crimes. Society gets outraged when stories come on the news about online bullying, for example, but the truth is that the legislature naturally plays catch-up to technology.

Who knew Facebook or Twitter would become as popular as they’ve become… Much less had the foresight to know how to keep people from victimizing one another just two or three years ago?

One recent step taken by Texas is the addition of Texas Penal Code Section 33.07 which criminalizes “online impersonation.” That statute was passed several legislative sessions ago and it criminalizes the creation of an account on a social networking site that not only isn’t you — but is purportedly someone else (or their persona) and was created for the express purpose to harm, defraud, intimidate or threaten ANY person.

The punishment for such an offense would be a third degree felony (2-10 years TDC and/or a $10,000 fine). Similarly, it is a class A misdemeanor to send out a bogus email, text (or similar communication) purported to be from someone else that is intended to harm or defraud another person. (up to a year of county jail and/or a $4,000 fine).

The full impact of these particular Texas laws aren’t really fully understood. The main problem with criminal law as it relates to technology crimes is because the ways to commit crimes out-paces the solutions, prosecutors try to be “creative” with bending and stretching older laws that were never intended to apply to these newer problems. When prosecutors get “creative,” is when rights tend to get violated.

Computer crimes also have heavy overlapping issues with evidence rules, confession rules, and also search and seizure rules. The enactment of new codes (such as 33.07) is only the ‘tip of the iceberg’ for computer crime lawyers.

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 your own specific case, you should directly consult an attorney.

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Posted by Jeremy Rosenthal, Esq.

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