What is a Magistrate’s Order for Emergency Protection?

November 18, 2019

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

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.

 


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.