Texas Law on Murder and Homicide: 101

November 19, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

A person causing the death of another can be prosecuted in a number of different ways with vastly different punishment ranges in Texas – though they are all felonies in one form or another.

Murder and homicide are legally very similar to assault the main difference where the result of defendant’s actions are death instead of injury.

First Year Law School on Murder

In first year law school criminal law they teach to follow the “mens rea” which is latin for mental state when it comes to murder or homicide.  Premeditation (or lack of pre-meditation) is the single biggest factor in how murder is prosecuted.

The general provision for Texas Criminal Homicide is simple enough though the deeper you get into Texas murder law the more complex it becomes.

Tex.Pen.C. 19.01 TYPES OF CRIMINAL HOMICIDE

(a) A person commits criminal homicide if he intentionally, knowingly, recklessly, or with criminal negligence causes the death of an individual.

(b) Criminal homicide is murder, capital murder, manslaughter, or criminally negligent homicide.

Murder

Murder is committed where someone knowingly or intentionally causes the death of an individual under Tex.Pen.C. 19.02(b).

Sounds legally simple enough but remember to follow the “mens rea.”  If there is “sudden passion” which resulted in the homicide then it carries a lesser punishment.  Tex.Pen.C. 19.02(c).

Also there is a concept called “felony murder” which means if you are committing a felony (like robbing a bank or engaging in a car chase) and someone dies – it’s murder as well.  Tex.Pen.C. 19.02(b)(3).

Capital Murder

Capital murder is murder plus an aggravating factor.  See Tex.Pen.C 19.03 for a full list but it generally includes:

  • The murder of a public servant such as peace officer or firefighter;
  • Murder as a part of another felony act such as kidnapping, burglary or sexual assault;
  • Murder for hire/ solicitation;
  • Murder of a child.

Capital Murder can either be punished by death in certain instances or by automatic life without parole.

Manslaughter

Manslaughter is committed where the person recklessly causes the death of another.  It can often be vehicular in nature.  It can also often involve intoxication.  Manslaughter is a 2nd degree felony punishable by 2-20 years of prison.

Reckless is where a person “…is aware of but consciously disregards a substantial and unjustifiable risk.”  Tex.Pen.C. 6.03(c).

Criminally Negligent Homicide

Where criminal negligence causes a persons death – this statute can be applicable.  This is known as a “state jail felony” punishable between 180 days and 2 years of prison.

Criminal negligence is basically when a person “…ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur.”  Tex.Pen.C. 6.03(d).  It can often be vehicular in nature too.

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

 

 


What is a Writ of Habeas Corpus?

November 4, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

There are few more confusing terms in criminal law.  Basically a writ of habeas corpus is a petition to undo something “unlawful.”  A writ of habeas corpus could be to over-turn a decades old conviction or a demand bond be set for someone arrested earlier the same day.  The latin translation is “we command you have the body” which doesn’t help at all.

Usually a writ of habeas corpus is filed to undo a conviction in Texas.  Today, I’ll be discussing the post-conviction aspect of habeas corpus.

Indirect Appeal

Writs of Habeas Corpus often get confused with appeals.  They are really not the same thing.  An appeal (or direct appeal) is based solely on what happened in the courtroom.  Examples of issues covered on direct appeal would be rulings by the judge, testimony of a witness, or error in a jury charge.

Habeas corpus is what is known as an “indirect appeal.”  They are often based on new or unknown facts which were not known at the time of the trial.

Indirect appeals usually require new facts to be investigated, developed and then ultimately reported to the Court.  Most topics which were already appealed from the original courtroom proceedings cannot be the subject of writs of habeas corpus.

Texas Codes Control Writs of Habeas Corpus

Chapter 11 of the Texas Code of Criminal Procedure is called “Habeas Corpus.”  It proscribes the different types of habeas proceedings:

  • 11.07 writs – felony writs for inmates in TDC;
  • 11.071 writs – death penalty writs;
  • 11.072 writs – felony writs for probationers;
  • 11.073 writs – writs related to scientific evidence;
  • 11.09 writs – writs for misdemeanor convictions (probation or not).

Typical Examples of How Post Conviction Habeas Corpus Works

Example 1:

Let’s say a persons put on trial for sexual assault and is convicted then sent to prison or put on felony probation and required to register for life as a sex offender.  The defendant appeals and loses those appeals in the months and years after the trial.  A decade passes and word leaks out to Defendant or his family the accuser admitted to her college roommate the allegations were not true.  Defendant could then file an 11.07 (or 11.072) writ based on the newly discovered facts.

Example 2:

Lawyer advises defendant to plead guilty to assault/ family violence and defendant is not a full US Citizen – and the lawyer did not give appropriate immigration advice to Defendant.  The defendant completes probation successfully but then petitions to have his Visa renewed to stay in the US.  He is then denied his visa and faces deportation proceedings.  In this instance an 11.09 writ of habeas corpus might be appropriate.  Defendant could allege ineffective assistance of counsel and potentially have the guilty-plea set aside.

As you can see – each example consists of entirely new facts unknown at the time of conviction.

You Only Get One!

You only get one Habeas Proceeding in Texas absent bizarre circumstances.  A criminal defendant considering filing a writ of habeas corpus whether in jail or not should absolutely consult a lawyer first.  If a criminal defendant does their own writ and it is unsuccessful – they can spoil future writs.  When filing a writ of habeas corpus – it is important to include all potential grounds for relief for this reason.

*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.

 

 


How Long will my Court Case Last?

January 29, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

It depends on what type of case, where the case occurred and the court to which it is assigned.  Some cases have a tendency to be fast and others are typically slower.  The biggest single factor is typically evidence which must be analyzed such as lab evidence or computer forensics.  Cases without those components have less impediments.

This said, other complex cases obviously drag on a bit too.

Slower Cases:

  • DWI with blood draws
  • Drug Cases other than Marijuana
  • Computer Charges
    • Online Harassment
    • Hacking
    • Possession of Child Pornography
  • Sex Charges
    • Sexual Assault
    • Sexual Assault of a Child
    • Aggravated Sexual Assault of a Child
  • White Collar Theft
    • Embezzlement
    • Money Laundering
  • Engaging in Organized Criminal Activities
  • Crimes against persons which  have complex medical records/ issues

 

Quicker Cases:

  • Assault
    • Assault/ Family Violence
    • Aggravated assault with a deadly weapon
  • Retail Theft
  • Possession of Marijuana
  • DWI without blood testing
  • Criminal Mischief
  • Crimes against persons (without medical records)

 

Just how Quick (or Slow) will a Particular Case Be?

You can expect most Collin County Misdemeanors to last between 6 and 12 months from the date of arrest until a trial/ dismissal/ or plea bargain.  Felonies tend to be more complicated so those usually take longer.

Most of our courts have efficient dockets – meaning the cases move relatively quickly.  Some courts might have a glut of cases for various reasons and by luck-of-the-draw your case may take more time.

Other jurisdictions such as Dallas County simply have more real-world issues to contend with such as insufficient funding, high turn-over with court staff, or inexperienced prosecutors which can compound delays.  It should be no surprise that in general the bigger the county, the slower the case may be.

What Control do We Have in How Fast or Slow a Case Takes?

Some.  We can’t control how long an investigation, grand jury, or prosecutor takes to do their job… but we can control whether or not any delays are because of us.  Some clients want a case to move quickly and others prefer the case take a while for their own reasons.  We can do our best to affect either.

What About My Right to a Speedy Trial?

Analysis for speedy trial is multifaceted and analyzes more than merely calendar time.  Part of the analysis is about the reaons for any delay, whose fault delay may be (the prosecutor, the defense, or in many instances — the Judge).  Another component of the analysis is what degree of harm was suffered by Defense by the delay?  Stress and anxiety are parts — but the loss of evidence (such as a witness moving) could play a role too in speedy trial analysis.

“Tough-on-Crime” Courts have done much in Texas to gnaw away much of Speedy trial rights and privileges… so normally trying to have a case dismissed for lack of speedy trial isn’t typically my first preference.

Bottom Line

You won’t get a really sharp estimate for how long your specific case will take on the internet.  Sorry!  You’ll just have to run that question by a lawyer who is familiar enough with all the players and factors involved.

*Jeremy Rosenthal is an attorney licensed to practice in Texas.  He is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He was Designated as a Super Lawyer by Thomson Reuters in 2019.