The Texas “Value Ladder” for Punishment

November 20, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Many criminal offenses in Texas are based on a monetary amount of loss or amount in controversy.  The more money we are dealing with, the higher the charge.

All of these offenses contain the possibility of probation subject to a person’s previous criminal history.

The Value Ladder:

  • Less than $100 – Class C Misdemeanor
    • No Jail
    • Fine not to exceed $500
  • Between $100 and $750 – Class B Misdemeanor
    • Up to 180 days county jail
    • Fine not to exceed $4,000
  • Between $750 and $2,500 – Class A Misdemeanor
    • Up to 1 year county jail
    • Fine not to exceed $4,000
  • Between $2,500 and $30,000 – State Jail Felony
    • Between 180 days and 2 years in State Jail Facility
    • Fine not to exceed $10,000
  • Between $30,000 and $150,000 – 3rd Degree Felony
    • Between 2 years and 10 years prison
    • Fine not to exceed $10,000
  • Between $150,000 and $300,000 – 2nd Degree Felony
    • Between 2 years and 20 years prison
    • Fine not to exceed $10,000
  • Over $300,000 – 1st Degree Felony
    • Between 5 and 99 years or life in prison
    • Fine not to exceed $10,000

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


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.

 


Podcast: Family Law Talk with Lawyer Brook Fulks

November 3, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

On my weekly podcast which I’m calling, “The Lawyer Show,” we had a good talk about family law and divorce cases a few weeks ago with a good friend of mine and an excellent lawyer Brook Fulks.  We talk a lot about the intersection of family law and criminal law as our cases do over-lap in domestic violence issues and issues about sexual and child abuse.

I hope you find the discussion interesting!

 

*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.


What is the Difference Between a Flat Fee and a Retainer When Hiring a Lawyer?

October 10, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefenselawyer.com

(972) 369-0577

This is a common question.

Remember a lawyer is selling their time.  Both a flat fee and retainer are different ways the lawyer sells that time.  These are actually topics of much debate in the legal community and are a bit more complex than meets the eye.

Abraham Lincoln said the legal fee is important because “It lets the client know he’s got a lawyer and the lawyer know he’s got a client.”

Important Reasons Which Go Into a Fee Amount 

A lawyer’s time is not an unlimited resource and some lawyers are justified in charging more for their time than others based on complexity of the matter and that lawyer’s experience.

Also, when a lawyer accepts your case – the lawyer is also limiting themselves because the lawyer now can’t sell time to (1) a different paying client because there are only so many hours in a day or (2) other potential clients he or she cannot legally represent because they would be conflicted from representing by virtue of their representation of you.

Flat Fees

A flat fee sounds a bit more self-explanatory than a retainer but there are still restrictions and issues with lawyers charging flat fees.

The advantage of the flat fee is it is clear-cut and caps the client’s potential financial output.  The disadvantage is the client could over-pay if the case is more resolved more quickly than anticipated.

Flat fees must still be justifiable at the end of the day.  Common sense still applies.  Where a client pays a lawyer gobs of money on day one and the client terminates representation on day two – the lawyer simply cannot justify keeping anything other than the amount he’s actually earned, if any.

Retainers

A retainer is money paid to the lawyer which the lawyer sets aside in a trust account.  The money legally remains the client’s property unless or until the lawyer earns it.  Once they earn it, they can then draw it from the account.

If the lawyer does not earn all of the money you deposited in trust then the client is entitled to a refund of the unused retainer.

The upside of a retainer is obvious.  The downside of a retainer is once the retainer has been expended, it typically needs to be refilled.

I compare a retainer to a tank of gas.  Sometimes it takes a half a tank to get to the destination but sometimes it could take 3 tanks.

Is A Flat Fee Better or is a Retainer Better?

It depends on the case in my mind.  You don’t want your lawyer to be paid too much and believe it or not — you really don’t want them to be paid to little either.

In a criminal defense practice there are many cases we handle very routinely where our time is predictable and as the lawyer, we’re willing to take the risk on a flat fee because we know from experience the amount of time we’ll be spending on a certain case falls in within an acceptable range.  Those tend to be misdemeanors like DWI, domestic assault, or theft cases to name a few.

Retainers are a flexible way to handle cases where our time output will be a bit more difficult to predict.  Those would typically be cases like sexual assault, felony drug possession, or white collar charges such as embezzlement or money laundering.  A retainer also assists when we need to pay other client expenses such as investigators or expert witnesses which we’ll need to involve from time to time depending on the case.

The retainer, then, is a good way of making sure the fee is just right on more complex cases where a flat fee may just be far too high or far too low.

*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.