Can I Get Arrested for Texting Someone?

October 29, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

No, you can’t get arrested for texting someone in Texas but there are several exceptions.

When it is Illegal to text someone in Texas:

  • If you’re the subject of a Protective Order Issued by a Court

You’ll know if this is the case.  The law requires you to have notice and protective orders are normally issued to people arrested and released for offenses such as assault against a family member or other crimes against family members.  Protective orders commonly have “no contact” provisions in them.

  • Threating Messages

It is a crime to communicate something to someone (in any way) which places them in imminent fear of serious bodily injury or death.  You can read the entire statute on terroristic threats and assault by threat here.  The statute extends to threats made which could affect public safety.

  • Harassment

Sending repeated communications is an offense if it is done with the intent to annoy, alarm, abuse, harass, embarrass or offend another.  You can read the entire statute here.

Free Speech Issue

Sending text messages is a freedom of speech issue protected by the First Amendment.  This is why — in the abstract — it is perfectly legal to do it the vast majority of the time.  Your rights under the bill of rights are not absolute however.

The Government CAN limit your right to be free from search and seizure in some instances, they CAN limit your right to bear arms in some instances, and they CAN limit your right to free speech in some instances as they’ve done here.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article should be considered legal advice.  For legal advice about any circumstance you should consult an attorney directly.

 

 


10 Principles of Defending People: #6 Investigate

June 5, 2018

By Collin County Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Here are the previous articles I’ve written about principles of defending people in this series:

Investigation is critically important in criminal defense and in many ways it is one of the central reasons we’ve been hired.  The chief sustained complaint for ineffective assistance of counsel claims is failure to investigate.

In sum, I’ll use a quote again I just used the other day… “the harder I work, the luckier I get.”  This is squarely the truth in investigating a case.

 

What Constitutes a Thorough Investigation?

It obviously depends on the case.  Not every case is capital murder.  The list of what needs to be done to investigate in some cases can be endless.  Examples of research needing to be done includes (but certainly isn’t limited to):

  • Thorough interviews of witnesses (including your own client);
  • Reviewing the background of witnesses (including your own client) such as criminal history, lack of criminal history, mental health issues, or even school records;
  • visiting the scene of the accusation;
  • inspecting physical evidence in possession of the police;
  • independent lab analysis or confidential re-testing of certain evidence;
  • Hiring an expert witness to assist with complex issues;
  • Reviewing public documents such as previous court records;
  • Investigating cellular data and social media such as text messages, Facebook, Twitter, Instagram, SnapChat, etc.;

Pursuing a Theory

A major difference between a Defense investigation and a police investigation is the theories we pursue.  A Defense investigation shouldn’t be scatter-shot.  It needs to be focused towards a particular theory or theories in a particular case.  Police investigations tend to have theories too… but their theory is almost always that Defendant is guilty.

Why Don’t Some Lawyers Investigate?

There are multiple reasons.  First, is lawyers didn’t go to investigation school, they went to law school.  An investigation is something most lawyers learn by doing which might suck for you if you’ve hired one that’s still learning.

Second, many lawyers are afraid of what they’ll find.  They buy in to their client’s guilt and are worried if they dig up bad facts for their client then they’ll end up making the situation worse for their client.

Final reasons might include their lawyer is too busy, not resourceful enough, or tragically are indifferent.

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

 


10 Principles of Defending People: #9 Be Organized

May 31, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

I’m writing a series of blogs describing what I think it takes to be an effective criminal defense lawyer.  Yesterday, I wrote about not being judgmental – a cornerstone of the mindset of a defense lawyer.

Today, I’m writing about another concept:

#9 Be Organized

I have two favorite quotes which go hand in hand about how I like to think I approach my work.

The first quote is, “the harder I work, the luckier I get” from Samual Goldwyn, a producer who founded MGM.  The second is from Jim Turner, a player on the Denver Broncos after they lost the Super Bowl in 1977 to the Dallas Cowboys… he said, “We were thinking about being the Super Bowl Champs and they were thinking about football.”

Many lawyers “think about being Super Bowl Champs” but they don’t mind the details or put in the sweat-equity it takes to win.  They confuse thinking about winning with the work it actually takes to win.

Every case is its own snowflake and some can be extremely complex.  It can be easy to get lost.  The more I practice, the more I appreciate the reality lawyers need a compass to navigate each case which makes sure every detail is addressed.

A good defense lawyer in my view needs a systematic way of approaching each case.  Do you think they make things up as the go along in an operating room?  Do you think a pilot with 323 souls on their commercial jetliner just treats their flight like a drive to the 7-11?  Do you think when NASA is about to launch humans into space with a $1.3 billion dollar project they just wing it?

No way!  They have checklist after checklist.  They have redundant failsafe measures designed to minimize their margin of error.  Why would we be any different when we are charged with protecting our clients lives?

Television and movies teach us bad lessons.  They teach us there are some lawyers can just walk into a courtroom and leave the jury in tears when they just got the case two commercial breaks ago.  I know some pretty darn talented lawyers.  But I don’t know anyone quite that amazing.

The rest of us need to be organized!

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


Divorce and Child Custody Related Criminal Accusations

March 11, 2015

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Divorce brings out the worst in people.  Bitter feelings are fueled by a combination of resentment, betrayal, and/or basic loss of control over what might perceived to be the health and safety of children.

Ex or soon to be ex-spouses are much more brazen about making accusations than most every-day people for a variety of reasons — not the least of which is the fact an ex-spouse also coincidentally has much to gain by making (and following through on) accusations.

Here are some of the most common criminal accusations which tend to stem from divorce and/or custody disputes:

  • Assault
  • Criminal trespass
  • Interference with Child Custody
  • Aggravated Sexual Assault of a Child
  • Indecency with a Child
  • Injury to a Child
  • Terroristic Threat
  • Unauthorized Computer Access

Most people think of criminal charges and accusations as so far fetched that someone would only make such a claim against another if there were at least some degree of truth to the claim.  Accusers going through a divorce or custody dispute, though, have their view of the facts soured by their own emotions, agenda, and self-interested perspective.  Unfortunately accusers can also manipulate or poison their own children’s perspective in these types of cases too.

Law enforcement’s view of these types of claims also varies.  Sometimes an accuser finds a receptive audience who might not understand or is deaf to the dynamic of the underlying divorce or custody proceedings.  Often law enforcement is “stuck” in the middle because while they know claims are being fueled by self-interest — they simply must follow up on certain types of allegations as part of their public duties.

Examining and defending any of these charges means examining the details of the divorce or custody proceedings which are related.  Defense lawyers must show prosecutors, judges and jurors the context of the allegations and what other interested people have to gain by making such allegations.  This can only be done through detailed investigation of all the surrounding facts and circumstances.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any situation you should contact an attorney directly.  Communications through this blog are not confidential.


Interference With Child Custody

July 18, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

As most people know, divorces may unfortunately turn very nasty. On occasion there are collateral criminal problems which can arise from a party’s conduct either prior to or after the court makes custody determinations for the children. While the blame may often seem trumped-up or baseless — being accused of interference with child custody is as serious as a heart attack because it’s a felony accusation in Texas. Also –as with any criminal prosecution –it is important to remember that the charges are no longer between you and your divorcing spouse; it’s between you and the State of Texas.

Texas Penal Code Section 25.03 is titled “Interference With Child Custody,” and that section reads accordingly:

(a) A person commits an offense if the person takes or retains a child younger than 18 years when the person:

(1) knows that the person’s taking or retention violates the express terms of a judgment or order, including a temporary order, of a court disposing of the child’s custody; or

(2) has not been awarded custody of the child by a court of competent jurisdiction, knows that a suit for divorce or a civil suit or application for habeas corpus to dispose of the child’s custody has been filed, and takes the child out of the geographic area of the counties composing the judicial district if the court is a district court or the county if the court is a statutory county court, without the permission of the court and with the intent to deprive the court of authority over the child.

(b) A noncustodial parent commits an offense if, with the intent to interfere with the lawful custody of a child younger than 18 years, the noncustodial parent knowingly entices or persuades the child to leave the custody of the custodial parent, guardian, or person standing in the stead of the custodial parent or guardian of the child.

(c) It is a defense to prosecution under Subsection (a)(2) that the actor returned the child to the geographic area of the counties composing the judicial district if the court is a district court or the county if the court is a statutory county court, within three days after the date of the commission of the offense.

(d) An offense under this section is a state jail felony.

The legal and factual scenarios and defenses are seemingly endless. Take, just as one example, a case prosecuted under 25.03(a)(1)… A prosecution under that section would probably include a complete order from the Divorce Judge which may or may not be written clearly enough to provide a party with sufficient guidance as to what is or is not permitted for times of custody (at least in the context of criminal liability.)

Also, Section (C) provides what is known as a “safe harbor,” where the offense was committed under 25.03(a)(2)… Which is to say that if the violating person returns the child within 3 days to the area or county controlled by the Court they have a defense to prosecution. This is to facilitate the return of children and to a lesser degree (I suspect) because the criminal justice system has a some biases against getting involved in the micromanagement of custody disputes and orders.

If you are being accused of interference with a child custody order, you should involve competent and qualified criminal representation at once. It’s not something to fool with.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice about any specific situation you should consult an attorney directly.