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.

Podcast: Mental Health

November 9, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

On my weekly podcast a few weeks ago the topic was mental health in criminal law.  My guest was Vanita Parker – one of the lawyers at our firm and the founder of the Mental Health Division of the Dallas County District Attorney’s Office.

We discuss the impacts of mental health on the courts – no easy or small topic!

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

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Posted by niftybrady

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

Will I Be Arrested if I Shoot an Intruder?

October 22, 2020

By Texas Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Texas law allows you to use “deadly force” in certain circumstances to defend yourself.  One of those circumstances is when an intruder has forcefully and unlawfully entered your home.

Will you be arrested?  Perhaps, but the law may let you out of it if you qualify.

 

What is Deadly Force?

“Deadly force” means force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury.  Tex.Pen.C. 9.01(3).

When Can I Use Deadly Force to Protect My Home?

Tex.Pen.C. 9.32 discusses the defense of use of deadly force and in relevant part says this:

(a) A person is justified in using deadly force against another:

(1) if the actor would be justified in using force against the other under Section 9.31; and

(2) when and to the degree the actor reasonably believes the deadly force is immediately necessary:

….(B) to prevent the other’s imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

(b) The actor’s belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:

(1) knew or had reason to believe that the person against whom the deadly force was used:

(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor’s occupied habitation, vehicle, or place of business or employment;

(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor’s habitation, vehicle, or place of business or employment; or

(C) was committing or attempting to commit an offense described by Subsection (a)(2)(B);

(2) did not provoke the person against whom the force was used; and

(c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section.

(d) For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat.

The Statute Translated and Broken Down

In English – if you are in your habitation, vehicle, or place of business AND someone has not only unlawfully entered but did so by using force AND you have done nothing to provoke the person AND you yourself are not committing a crime – then if you shoot the person, you have self defense available to you.  Additionally, you do not have the duty to retreat.

What Does it Mean My Actions are “Presumed to be Reasonable”

Remember – the law could very well go to a jury in any legal case.  The jury decides whether what a person did to defend their home was reasonable.  This law assists them and ‘nudges’ them to tell them it was reasonable.  It also encourages police and prosecutors not to arrest or go forward where cases where this applies.

Why Does the Intruder Have to Use Force to Break In for Me to Be Able to Shoot Him?

This prohibits situations where someone is invited over, an argument ensues, and then the person doesn’t leave despite being told to do so.  In that instance, the person’s entry into the home would be unlawful yet not forceful.

What Does it Mean I Can’t Be Committing a Crime?

This is a confusing part of the statute.  Remember, this law is designed to protect the homeowner who wakes up at 3 in the morning to find a burglar in their home or who comes home for lunch to find their door kicked in and someone rummaging through their possessions.

The law isn’t designed to protect someone running a drug house or prostitution ring.  Also, the law had to have a touch of flex too because it covers car-jacking situations – and not bar fights which turn into fights in a car.

But if you Recklessly Shoot a Third Person…

If you use deadly force and in doing so harm or kill a different – innocent – person, then the self defense protections are unavailable to you.

*Jeremy Rosenthal is Board Certified in Criminal Law.  He has been designated as a Texas Super Lawyer by Thomson Reuters.

 

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Posted by niftybrady

Can I Carry a Firearm if I’m Traveling Through Texas?

October 7, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Yes, but there are do’s and don’ts.

The Texas statute for unlawful carry of a handgun is under Penal Code 46.02.  That provision makes it an offense to “intentionally, knowingly, or recklessly” carry on or about your person a handgun.

The statute is worded in a very confusing manner — but the law specifically allows possession of a firearm on “the person’s own premises or premises under the person’s control.”  Tex.Pen.C. 46.02(2)(A).

And to answer the original question – the law also allows possession “inside of or directly en route to a motor vehicle or watercraft that is owned by the person or under the person’s control.”  Tex.Pen.C. 46.02(2)(B).

Translation – you can have it in the car.

Limitations to Carrying a Handgun Through Texas

The handgun cannot be in plain view unless you are licensed to carry a handgun in Texas. Tex.Pen.C. 46.02(a-1)(1).

While the law allows you to have it in your vehicle – the law doesn’t allow you to carry it outside the vehicle.  You probably can’t bring it to the park benches where you and your family are eating lunch as an example – and you can’t bring it inside places like gas stations or other businesses which, in all likelihood, prohibit weapons.

You can’t be engaged in criminal activity.  Though this one seems obvious, we do see a number of cases where there is a DWI along with an unlawful carry case (or UCW as they are typically called here).  Speeding and other traffic offenses are omitted, though.

And it goes without saying you can’t otherwise be prohibited from carrying for whatever reason.

This Law Has A History of Changes

When I was a prosecutor – the law made it illegal to have a handgun “on or about” your person.  The law then provided “traveling” was a defense to UCW but that was confusing too.  That just meant you’d be arrested and you could argue to a judge or jury you were “traveling.”

That law was not only confusing but also – as you might predict – otherwise responsible handgun owners would get arrested on routine stops and then they’d have to try and convince a jury the traveling defense applied when they were on their way to the Home Depot instead of Arkansas.

The new statute, while confusing, helps responsible owners avoid that fear and headache.  It basically says “if it’s in your car, then we agree you’re traveling.”

But it’s not a general license to carry any and all places.  That requires special permitting under Subchapter H, Chapter 411 of the Texas Government Code.

*Jeremy Rosenthal is Board Certified in Criminal Law and is designated as a Texas Super Lawyer by Thomson Reuters.

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