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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Is it a Crime to Have a Positive Drug Test?

October 21, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

It’s not a crime in Texas to fail a drug test or urine analysis (“UA”).  Possession of any illegal drug such as marijuana, cocaine, or any other controlled substance without a prescription is defined as “actual care, custody, control or management.”  Tex.Pen.C. 1.07(39).  Failing a UA does not demonstrate this as backward as it may sound.

Texas courts apply what is known as the Corpus Delecti rule.  Corpus Delecti is latin for “body of the crime.”  The prosecution in every case must prove a crime was committed.  An out of court confession, in and of itself, is never enough to sustain a conviction.

A classic and more clear example of corpus delicti is someone who confesses to arson – yet the building the person claims to have burned to the ground is completely unharmed.  Legally, this is indistinguishable from a person failing a drug test to prove a person had “actual care, custody, control or management” of a drug they shouldn’t have had.

You Can Still Be in Trouble for Failing Drug Tests

If you are on bond for a crime – a failed UA is legally sufficient to hold your bond insufficient and have you re-arrested.  It can also be grounds for a motion to revoke probation or a motion to adjudicate.  This is because the formal requirements of the corpus delicti rule are loosened for these proceedings and because typically terms of bond and/or probation are more broad as well to prohibit failing drug tests.

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

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Will My Probation Get Revoked?

October 20, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Legally you could be revoked for showing up late to probation – but that’s obviously an extreme and unlikely scenario.  There are countless variables which go into whether or not your probations revoked – so each case is truly unique.

Those variables can be things like the nature of the underlying offense?  How severe is the new infraction?  Have there been other infractions?  Is the probation officer understanding about your situation?  Are they lazy?  Are they a jerk?  Passive?  Controlling?  What does your county typically do with similar cases and infractions?  The list goes on and on and on.

I get plenty of calls asking me this exact question… will I be revoked?  I understand the anxiety and uncertainty of the position the probationer is in and I really do my best to try and handicap each situation.  But each situation is very different.  Here are some general guideposts, though:

Is the Probation Violation a New Offense or Crime?

If you’ve been arrested again for a new charge your probation officer probably doesn’t have much say in whether or not a motion to revoke or motion to adjudicate is filed.  Those are likely to be dictated by office policy and your PO’s hands are usually tied.

If you do get arrested for something new – and you don’t get revoked – count yourself lucky.

Every probation plan or order I’ve ever seen requires a person to notify their officer upon a new arrest.  So it’s normally a separate probation violation not to disclose it.

“Technical” Violations of Probation

We typically refer to issues such as failure to do community service or take classes as “technical” violations.  Whether your probation is revoked based on a “technical” violation is up to your probation officer.  Failure to pay fines and money fits into a bit of a different legal category – so I’m not including that here.

It really is impossible to quantify what each individual probation officer would do in any county in Texas in any given scenario.  If you’re on probation for drugs or DWI and you’ve done 90 out of 100 hours of community service – I like your odds of not being revoked more than if you’re on probation for a violent crime and have done 0 out of 100 hours of community service.

I also like your odds of not being revoked on a “technical” violation more if you’ve never been in trouble with your PO before than if your PO has already given you 5 warnings about the same thing.

Positive Drug Tests

This is a very common trigger for a revocation or adjudication.  My experience is it takes more than one – but this is an area where each county is different.  The main reason a single positive UA probably won’t get you revoked is your PO has a lot of options at their disposal to remedy or punish short of full-blown revocation.  It could include a jail sanction, additional classes, or even them asking you to extend your probation.

But Here’s What Experience Teaches Me — At Least in Collin County

It never hurts to be on your probation officer’s “nice” list and not “naughty” list.

Being a probation officer is a very tough job as much as I might criticize them.  Most are over-worked and under paid.  They are like you and I.  I’m guessing it’s easy for them to deal with most people on their case load — and then they have some they deal with regularly who aren’t very pleasant to work with at all.

I don’t think many probation officers show up to work looking to screw people.  The fact is they have enough headaches on their case load without inventing more.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He is a Texas Super Lawyer as designated by Thomson Reuters.

 

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Mental Illness & Criminal Law: Understanding the Problem

October 15, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

It’s hard to over-state the importance the role mental illness plays in criminal law.  There’s little question in my mind it’s far more prevalent people give it credit for.

A recent survey to Texas criminal defense lawyers asked, “What percentage of your clients suffer from some degree of mental illness in your view?” — and the most common answer was between 50% and 75%.

 

What is Mental Illness?

I find many folks – including my clients and their families – struggle with understanding the very concept of having emotional or behavioral problems.

My view is just about everyone wakes up in the morning wanting to be a law abiding citizen.  But many people are driven so far out of their normal range they get in trouble because of things like anxiety, depression, manic states, and on and on.  This is how I define mental illness.

The term “mentally ill” has a much harsher and deeper connotation than what it really means to me.  Many think it only applies to people who hear voices in their heads, talk to themselves, or who must be confined to a straight jacket in a padded room.  In reality, someone going through a really rough patch in their lives can be driven so far by everything going on in their mind – they can often do or say something which hurts another person or gets themselves in a situation they otherwise know is wrong.

Jail

I ask juries what they think of our national mental health system.  They get puzzled – because they can’t really think of what that is.  Then I point out to them the tragic truth — our mental health system is called “jail.”

Jail and mental illness are frequently on a collision course.  We often don’t know someone has cancer until they exhibit physical symptoms.  We often don’t know someone has the flu until they have a fever.  And we often don’t know how much someone is struggling inside until they get into trouble.  It could be assault, theft, drugs, trespassing — the scenarios are endless — but there are very few criminal cases where mental illness doesn’t play a role.

The Enemy of Treatment – the “Tough on Crime” Mindset

Texas is tough on crime.  Many here unfortunately feed into the cops vs. robbers, good guys vs. bad guys dialogue.  Many believe if crime rates are high – we just need to be meaner to people and things will be fine.  Fortunately these voices are fewer and fewer.

Police deal with tons of mental illness on the streets.  Their aim is generally short-term safety for everyone and not necessarily long term treatment.  They also often don’t have the choice but to take someone to jail who has either committed a crime or who poses a danger to others.

I find prosecutors have a tougher time understanding mental illness because they’re somewhat insulated from it.  They talk with the shop-owner who is having a hard time making ends meet but it’s the defense lawyer who deals to the shoplifter describe the sheer degree of anxiety which drove them to do something they knew was wrong as a simple example.

Getting People Help

The million-dollar question is how do we get help to those who need it. That’s an equally difficult problem.  Understanding the problem is the start.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He is a Texas Super Lawyer as designated by Thomson Reuters.

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Retesting Blood From a DWI Arrest in Texas

October 13, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

You can retest blood from a Driving While Intoxicated arrest in Texas.

In fact, you can even retest it without the prosecution not knowing the results of the retest.

I’ve been blogging lately on expert witnesses and their role in investigation and assistance on the criminal defense team.  Remember, the law encourages defense lawyers to investigate their case without fear they will uncover unfavorable evidence.

How Does a DWI Blood Retest Work?

The blood is typically kept with the police department who originally made the arrest after it is tested by the Department of Public Safety.  They’re not going to hand over the blood to you or your retesting lab as you might imagine.

A lawyer can file an Ex Parte Motion with the Court.  That means “one party.”  A Criminal Defendant is allowed by law to approach the judge without knowledge of the prosecutor when they need to utilize the power of the court for assistance.

Your lawyer does have to convince the court the evidence will be handled appropriately and returned without incident.

The Judge, then, orders the police department (or whomever has the blood) to send it directly to your lab.  After the retest is done, the lab is then ordered to send it back to the police department.

What to Expect From a DWI Blood Retest

Blood oxidizes over time.  This means most retests will show less alcohol in the system.  However, retesting is more than a parlor trick.  Studies have been done on how much oxidizing should take place and if a blood retest shows a significantly lower result then the original – it can suggest the original test was done improperly or the blood was mishandled at some unknown point.

Can You Retest to Make Sure it is the Same Person?

Some of my clients fear they mixed up their blood at the lab with someone else.  Anything is possible.  This would require a DNA test.  These can be done too but they are far more expensive.

The Prosecution Won’t Know?

The prosecution could likely discover the police were ordered to ship it to an independent lab. And they can probably guess why.  But they’re not entitled to know the result of the retest unless Defense chooses to disclose it.  Further, the Defense lawyer would not allow the prosecutor or anyone to reference the retest if the case went to a trial.  In most instances when we reveal the blood was retested – it actually comes as a surprise to most prosecutors.

*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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