What is a Magistrate’s Order for Emergency Protection?

November 18, 2019

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

These are known as Emergency Protective Orders or EPOs.  They can be extremely disruptive, costly, and exacerbate emotional distress of the entire family on top of the havoc a domestic violence arrest already inflicts.

Texas law allows a police officer making an arrest to ask a magistrate judge for an EPO.  The officer does not need the consent of anyone else including the complaining witness to seek the Order.

Violation of the Order can be a serious misdemeanor as well.  Each Emergency Protective Order is different from the next.  Don’t assume an EPO prohibits or doesn’t prohibit certain activities.

Most of these orders require the accused to stay a certain distance away from the alleged victim and other family members.  They also often prohibit either direct or indirect communication.

Direct communication is typically construed as phone calls, text messages or communications on social media.  Indirect communication is typically where the Defendant has a friend — often a mutual friend – make contact with the complaining witness.  Both are normally violations.

The length of the EPO can vary but for most assault cases in Collin County they may last either 91 or 61 days.

An EPO Can Be Destructive

Following an Emergency Protective Orders can require a person live in a hotel or other temporary accommodations because they are prohibited from going to their residence.  Two months in a hotel means two months of paying double for housing.  Further, where a couple has children, one parent — usually the complaining witness — is saddled with 100% of the childcare for that time as well.  While the goal is to allow a couple time away to that emotions and physical conflict cool it can have the effect of throwing a family further in chaos.

How do I Get My Stuff?

EPOs create immediate logistical headaches.  If you can’t call your spouse or can’t communicate with them through a friend — then how are you supposed to get your clothes, work laptop, or medications?

Most Protective Orders provide for some type of safe harbor within the first 24 hours to get these things arranged.  Read the fine print carefully.  You may be allowed to have a friend or representative get whatever you need quickly.

What to Be Careful about with Emergency Protective Orders

Always make sure you read the details carefully — and if you have any questions at all about the specific provisions of your EPO be sure to ask a lawyer.

Communicating with the protected person while under an EPO can lead to lots of problems.  Frequently it is the victim reaching out to the Defendant — but no matter — the Defendant still commits an offense by engaging in that communication.

What Can A Lawyer Do?

A Lawyer Can Communicate Directly with the Alleged Victim

I’ve yet to see a protective order without language exempting the lawyer from the communication prohibition.  This is because lawyers have legal and ethical duties to investigate their case.  Don’t expect your lawyer to be an on-going courier or go-between, however, your lawyer can assist in coordinating necessary issues in addition to planning towards long-term goals of your case.

A Lawyer Can Help Get the Order Modified

Most judges will modify a protective order so long as everyone is in agreement — usually both spouses or both persons involved in the altercation.  The magistrate may drag their feet or do it slowly so as to allow the parties a colling down period but most magistrates don’t wish to impose the additional hardship an EPO can cause.

 

*Jeremy Rosenthal is Board Certified in Criminal Law and is licensed to practice in the State of Texas.

 


Do I Need a Lawyer for Domestic Assault?

November 16, 2019

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Absolutely.

Politicians in Austin frequently try to impress their constituents by getting tougher, and tougher, and tougher with these cases.  The result are laws which seem to get worse and worse and are filled with trap doors designed to punish people forever.

Machine-Type Prosecution

Prosecution in these types of cases tends to be delegated to a specific division of most larger DA’s offices. Their approach is often a one-size-fits-all and is dictated by policy and their theories about domestic violence rather than the facts of any specific case.  Some prosecutors will hear your side of the story out — and many others will pretend to hear you out.  What the prosecutor really needs to do is fear they will lose if you took the case to trial.  A person without a lawyer is definitely at a disadvantage.

The Law is Complex

Though the politicians in Austin and the prosecutors might feel as though everyone accused is guilty — the good news is the framers of the U.S. Constitution didn’t.  There are strong constitutional protections in Assault/ Family Violence “AFV” cases from your right to confront witnesses under the 6th Amendment.

Also, there are several common defense which often apply in the form of self-defense or consent.  Knowing how these defenses apply and work in a courtroom is not simple either.

Beware of Long-Term Trap Doors

AFV cases are laden with traps designed to ensnare those accused into pleading guilty.  The state normally tries to levy an “affirmative finding of family violence” even when someone gets the case reduced or takes deferred adjudication.  This finding can enhance future allegations to felonies, can prevent firearm ownership, and can even prevent future adoption… but not much of this is advertised on the front end.

Also – there are restrictions on hiding these cases from the public even where you’ve successfully completed a deferred adjudication which, again, can be very legally complex.

You Need A Lawyer

If you read the rest of my blog posts then you can see I’m not big on scare tactics.  There are probably cases here and there where you might not need a lawyer.  This isn’t one of them.  Domestic assault is one of several legislative flash-points in Austin.  Don’t do this alone!

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He is a Licensed Attorney in the State of Texas.


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 and licensed by the Supreme Court of Texas. 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 licensed by the Supreme Court 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 Supreme Court of Texas. Nothing in this article constitutes legal advice.  For legal advice about any situation you should contact an attorney directly.