What is a Magistrate’s Order for Emergency Protection?

November 18, 2019

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

texasdomesticviolencearrest

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.

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Posted by niftybrady

Do I Need a Lawyer for Domestic Assault?

November 16, 2019

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.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.

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Posted by Jeremy Rosenthal, Esq.

How Smart Phones Have Revolutionized Criminal Law

November 15, 2019

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Smart phones have revolutionized trial practice in the 21st Century.

How?  Because everyone old enough to be charged with a crime carries around a box of evidence with them.  The smart phone can tell who you talk to,  what messages you send to others, where you’ve been, what you’ve bought, and scariest of all — when you combine all these things — they tell others what you’re thinking.

And that’s not just you carrying around this box of evidence — it’s everyone.  I saw a commercial the other day which suggested we have more information about us in our phone than in our entire house!cell-phones-smartphones

So how do we make smart phones work for the defense?  It helps us get to the truth — which is virtually never as one-sided as the prosecution believes.  We can establish alibis, witness bias and witness motive — and that’s just the beginning.

Compulsory Process under the 6th Amendment to the U.S. Constitution allows us to subpoena records and smart phone data either directly from an adverse witness or from third-party providers such as Facebook, Instagram, or SnapChat.

In complicated trials and cases — it always makes sense to make smart phone technology one of the core foundations of an investigation.  We might know we know certain facts in a particular case — and smart or cell phone technology help us turn those facts into concrete instead of risking a swearing match.

*Jeremy Rosenthal is Board Certified by the Texas Board of Legal Specialization and is a licensed attorney in the State of Texas.

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Posted by niftybrady

Returning Calls

October 16, 2019

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

A lawyer has an ethical duty to communicate with their client under Texas Rules o Disciplinary Conduct:

Rule 1.03 says:

(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. 

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Lack of Communication is the Chief Complaint About Lawyers

I wish I had the answer why.  I hate more than anything when someone comes into my office and says another lawyer they’ve worked with seems sharp, competent — but they just don’t return phone calls and the client is left in the dark.  Anyone in a criminal defense lawyer’s office is going through a stressful episode in their life either for themselves or along with a loved one.  The last thing they need is to be left in the dark about crucial aspects of a case.

Communication with Clients

Communication is a two way street and its complications go back, no doubt, to the dawn of mankind.  Every client of mine is different just the same as I’m different than any other lawyer.  Every attorney-client relationship is therefore unique.

Here are some observations:

  • My phone number ringing and flashing on a screen can be the most traumatic 8 -seconds of that client’s month;
  • It can be dicey to call a client while they’re at their place work for obvious reasons;
  • Giving mundane details either bores clients or causes them unnecessary stress;
  • There is certain news or updates which are better done in person due to the time it will take or possible follow-up questions;
  • You want the lawyer explaining to you the intricacies of preserving jury charge error under the standard promulgated by the Almanza case from the Texas Court of Criminal Appeals in 1986 — but the lawyer doesn’t need to be the one who tells you the best exit to take to get to the courthouse.

Many of the points listed above say the same thing — communication for the sake of saying you were communicating isn’t always a great idea.  Rule 1.03(a) & (b) have built in words like the attorney shall keep the client “reasonably informed,” promptly reply to “reasonable requests for information,” and the lawyer shall explain matters to the extent they are “reasonably necessary” for the client to make informed decisions.

Customer Service

We want happy clients who refer us business long after their case is over and they have a friend in need.  That means good customer service and we don’t need some rule to tell us that.

One of our advantages at Rosenthal Kalabus & Therrian is we have a great office staff who are trained to handle any and every question they are capable of answering.  This accomplishes a number of things:

  • You get the answer to routine questions without having to wait for a lawyer;
  • You never feel like you are bothering us with something you worry might be trivial or simple to us but is important to you;
  • It makes our office staff happier to help, get to know, and be involved with our client care;
  • It allows our lawyers to focus on the intricate and crucial parts of your case.

One of the down-sides is it is common for some people to have built-up such a good rapport with me or one of our other lawyers that they feel less comfortable talking with our office staff — even about basic issues.  That’s fine too and we are happy to accomodate this as well.

How I do It

I do my best to get back to everyone every day.  Email is normally the best though if the answer is too complex I may give you a call back when I can spend the time to do the issue justice.  If I’m in a spot where I can’t get to that question or issue quickly then I’ll ask one of our staff members to help if the question is appropriate.

At our office — we never want to hear a client feel like they aren’t being communicated with.

*Jeremy Rosenthal is a Licensed Attorney in the State of Texas and is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He was designated as a SuperLawyer by Thomson Reuters in 2019.

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Posted by niftybrady

Domestic Violence – Reciprocal or Unilateral?

October 2, 2019

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

texasdomesticviolencearrest

The overwhelming mentality in family assault prosecution is the violence is always unilateral.  That is, one spouse and one spouse alone is perpetually controlling, manipulative and ultimately physically abusive.  This is the theory of “the cycle of violence.”

I’ve handled hundreds of domestic assault cases and this just isn’t my experience.  The “cycle” is true some times but not nearly as often as most prosecutors believe.  Most cases involve reciprocal violence.

My experience is there is dysfunction which manifests itself by the couple communicating through violence and assaultive actions.  She throws a phone at him one day — he pushes her into a wall the next day.  She gets drunk and hits him with a fist – he punches back.  The person prosecuted might have been the perpetrator that day — but it doesn’t mean the entirety of the relationship circulates around that one person controlling, manipulating and battering the other.  They continually do it to one another.

“The Cycle of Violence”

The theory essentially makes domestic violence unilateral.  One side, and one side alone, is always to blame the for each and every instance of domestic violence — typically the man in a heterosexual relationship.  The theory goes he is controlling, often degrading, manipulative and physically abusive.  This is followed by a honeymoon period of sorrow and remorse but builds back into the explosive rage and violence.

The “Cycle” though, has many blindspots.  For instance there is no consideration of mental health issues or even for basic self defense situations.

The “cycle of violence” does have some of merit.  The problem is the degree of belief and trust some prosecutors put in this theory.  What prosecutors don’t know about a couple — they might fill in with conjecture often related to their “cycle” theory.

Here’s an example:  In a assault/ family violence case the complaining witness does not return the prosecutor’s phone calls.  Plugging in the generic ‘cycle of violence,’ many prosecutors assume the reason is because the batterer is in control of ‘victim,’ or that the ‘victim’ wants to help the batterer because she can’t stand up for him/herself.

Reciprocal Domestic Violence

Academic studies support my observations in my practice.  In one study, it shows reciprocal violence is far more common than unilateral — and that it is most commonly the female that is the aggressor.  The idea the male is typically the aggressor has been shown to be stereotypical and false.

Whether you believe spouses beating up one another is reciprocal or not — the truth is we simply don’t know and that all couples develop their own unique mini-culture.

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

 

 

 

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