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.  Nothing in this article should be considered legal advice.  For legal advice about any circumstance you should consult an attorney directly.

 

 


Is it a Crime to Not Report a Crime?

May 23, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Failure to report a felony is rarely charged — but it is a crime.  What is more commonly charged is failure to report the abuse or neglect of a child.

When we do see these types of charges, it is often because law enforcement suspects far worse but simply can’t prove anything… or it is often a reduced charge the prosecutors and defense lawyers settle on for a plea negotiation.

Texas Law:

Texas Code of Criminal Procedure 38.171 requires the felony to be one which (1) the person observed; (2) it is likely serious bodily injury or death may have occurred; (3) It’s reasonable to think no one else has reported it; and (4) the person can make the report themselves if it doesn’t place them in danger.

— and if this crazy offense does occur, it is a Class A misdemeanor.

Federal Law:

The Federal Law is called Misprision of a Felony.  It is much broader in that there only be “knowledge” of the felony.  A major difference is under Federal law, the accused must take an affirmative step in assisting concealment of the felony… in essence making them an accessory.

Keep a few things in mind about failure to report crimes and they start making sense for why we see them so rarely:

Police Want the Real Offender

They want the perpetrator of the crime someone knows about more than anything else.  If police had to round up and prosecute people who knew they think knew about certain crimes but didn’t report — it would make their work load go crazy.

“Failure to Report” cases are really hard to prove.

How do you go about proving someone “knew” about something…?  You’d almost think they’d have to witness it themselves?

Also consider that someone might have some information a crime was committed — but not enough information to truly assist police.

The statutes take these things into consideration which is why they are so narrow.  The gist of these laws is police want and need help in serious situations… not to round everyone up who knows something.

Law Enforcement Usually Understand’s You’re in a Tough Spot Too

Police are people too and they might understand the witness or person is in a tough spot to do something.  Many crimes take planning and a series of bad decisions.  Witnesses to crimes normally don’t choose to be witnesses and they often have to make decisions on the spot.

I can see police threatening people with this charge to get them to talk about solving the underlying crime… but again, remember the cops want the REAL bad guy more than anything.

Failure to Report Abuse or Neglect of a Child or failure to report Aggravated Sexual Assault of a child is a bit of a different story.  I’ll write about that in another blog.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and is licensed by the State Bar of Texas.  Nothing in this article should be considered legal advice.  For legal advice about any situation you should contact an attorney directly.

 

 


Is it a Crime to Threaten Someone?

May 22, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

A threat is a crime in Texas under certain circumstances.  I’ll discuss the two most common.

Terroristic Threat

The first offense is labeled by the Penal Code as a “Terroristic Threat“.  It might be a touch aggressively named, but is committed when there is a threat of violence seeking a particular reaction listed under Texas Penal Code 22.07(a)(1).  Examples include trying to put another person in fear of imminent serious bodily injury, trying to interrupt public transportation, or trying to cause a reaction of an Emergency Organization.

Aggravated Assault with a Deadly Weapon

The second is aggravated assault with a deadly weapon.  Aggravated Assault with a Deadly Weapon can be committed several different ways — but for our discussion, it is committed where a person “uses or exhibits” a “deadly weapon” during an assault by threat.

A deadly weapon is legally defined by Texas Penal Code 1.07(a)(17) as a firearm or anything which has a use or intended use that is to inflict serious bodily injury or death.  Prosecutors can get pretty liberal with what is and isn’t a deadly weapon.  In general if someone is threatened with an object like a knife, bat, pipe or something like that — it will be an aggravated assault with a deadly weapon.

What About Freedom of Speech?

Any legal scholar will tell you there is a limitation to every right under the bill of rights.  You cannot run into a theater and yell, “fire!”  In fact, Terroristic Threat is the very crime you’d be committing by doing so.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the State Bar of Texas.  Nothing in this article constitutes legal advice.  For legal advice about any situation you should contact an attorney directly.

 

 


Deadly Conduct

July 13, 2015

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

What is “Deadly Conduct”?

Deadly conduct can be charged when either (1) a person ‘recklessly engages in conduct that places another in imminent danger of serious bodily injury’; or (2) discharges a firearm in the ‘direction of’ people, a habitation, or a car.

Placing another in imminent danger is a Class A Misdemeanor and discharging a firearm is a 3rd Degree Felony.

The controlling penal code section is Texas Penal Code Chapter 22.05.

Problems with this Statute

The legislature clearly wants this statute to cover situations such as drive-by shootings or any other type of improper gun-play which could have — but did not result in someone’s death.

Unfortunately the legal definition of the misdemeanor version of ‘Deadly Conduct’ is extremely subjective.  As with all vague criminal laws — it can be subject to being stretched and abused.

Consider a situation where a person is speeding excessively and well over the speed limit.  The law specifically does not allow an officer to make an arrest for speeding alone.  An angry officer could, however, try to justify an arrest by claiming it was ‘deadly conduct’ because he or she could argue the excessive speed places another in “imminent danger” of serious bodily injury.”  The same could be true of running a red light, helping someone bungee jump for the first time, or throwing a fastball to a batter high and inside… though some of the examples are a bit silly, I include them because as absurd as they are — we could actually have a debate as to whether or not those examples could actually fit the statute.

Obviously we could toy with other factual scenarios as well and police can argue many fit the very soft definition of “Deadly Conduct” especially where the police are mad and can find no other penal code infraction to make an arrest.

What Your Lawyer Should be Able to Do

Your attorney should be able to ‘read in between the lines’ in cases like these and see that perhaps an arrest under this law is pre-text for something else.  I often meet with clients and their families who feel singled out and mis-treated with arrests such as these.  These cases require aggressive work-up and aggressive representation.

*Jeremy Rosenthal is an attorney licensed in Texas.  He is Board Certified in Criminal law.  Nothing in this article is intended to be legal advice.  For legal advice on this, or any other situation you should visit with a lawyer independently.  This forum is public.


Texas Criminal Punishment Levels

June 25, 2010

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.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 F. Rosenthal is Board Certified by the Texas Board of Legal Specialization andan licensed to practice in the State 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.