What does it Mean when a Crime is “Aggravated”?

January 18, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

It typically means “worse” or “heightened.”

The term ‘aggravated’ is applied to many different criminal charges and there is no uniform definition as to what allegation renders a charge ‘aggravated’ in any specific case.  One constant is an ‘aggravated’ allegation normally kicks the punishment range up a notch or more.  It can also affect parole eligibility if someone is sent to prison.

Here are the most common “Aggravated” offenses in Texas:

Aggravated Assault – Assault where someone either uses or exhibits a deadly weapon.  It can also mean assault which results in serious bodily injury.  See Texas Penal Code 22.02.

Aggravated Sexual Assault – Sexual assault is generally where a person conducts one of a number of prohibited sexual acts to another (Tex.Pen.C. 22.011).  Aggravated sexual assault can be committed where defendant inflicts serious bodily injury on the victim, assaults a person younger than 14, or a disabled or handicapped person.  Tex.Pen.C. 22.021).

Aggravated Sexual Assault of a Child – sexual assault committed against a child younger than 14 years old.  Sexual assault of a child is committed where a child is between the ages of 14 and younger than 17.

Aggravated Perjury – perjury is making a false statement under oath.  It could be in an affidavit or an official document of some sort.  Aggravated perjury is a false statement during a court case which is considered material in nature to the proceedings.  Perjury is typically a Class a misdemeanor.  Aggravated perjury is elevated to a third degree felony.

Aggravated Robbery – Robbery is typically defined as theft plus assault regardless of how minor either is.  Aggravated Robbery is where a person uses or exhibits a deadly weapon in the commission of the robbery, causes serious bodily injury, or places in fear of imminent bodily injury of a person over 65 years of age or a disabled person.  Robbery is a 2nd Degree felony and aggravated robbery is a 1st degree felony.

Aggravated Kidnapping – Kidnapping is abducting a person.  Aggravated kidnapping is where someone is abducted with the intent to be held for ransom, intent to be used as a human shield, intent to sexually violate, or with intent to terrorize.

Aggravated Promotion of Prostitution – This offense is for those who invest in, finance or promote prostitution of two or more persons.  See Tex.Pen.C. 43.04.

Aggravated Promotion of Online Prostitution – Promotion of prostitution done in a fashion which is online.  Tex.Pen.C. 43.041.

*Jeremy Rosenthal is Board Certified by the Texas Board of Legal Specialization and is licensed to practice in the State of Texas. Nothing in this article constitutes legal advice.

 

 

 


What is a “Sanctions Hearing” in Collin County for Probationers?

January 14, 2020

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

Great question.   If you do a control+f search of the Code of Criminal Procedure, you won’t find it anywhere.  That’s because it’s not in there.  Or anywhere else in Texas law.

Probation officers frequently invite probationers to voluntarily amend their own probation, “or else…”  On the bottom of the form, the Probationer is required to either accept the sanction or face the wrath of the Judge.

Those who dare say no find themselves typically face to face with the Judge – normally without a lawyer.

Here’s What the Law Says the Probation officer Can Legally Do if they Think You’ve Violated Probation:

  1. They can do nothing;
  2. They can recommend the prosecutor file a “Motion to Revoke” probation or a “Motion to Adjudicate” if you are on deferred adjudication.  Those are functionally the same thing – they are seeking to take away your probation and either put you in jail or make your probation tougher.  See Tex.C.Crim.P. 42A.752; or
  3. They can offer you an oral modification to your probation.  That is, they can sit you down and ask you  if voluntarily agree to modify your probation on your own accord – but only for the limited programs they are authorized by law known as “the continuum of care” programs” which generally consist of drug and/or alcohol treatment. See Tex.C.Crim.P. 42A.052(c) and Tex.C.Crim.P. 42A.752(c).

What if you Say No to the Oral Modification?

The law is clear.  The probation officer shall file a motion to revoke or motion to adjudicate your probation.  See 42A.052(c).  That sounds ominous, but remember, it also means you get a lawyer.  And also remember most contested revocations result in some sort of compromise involving changes to probation… as in what the probation officer originally wanted as a sanction often goes away.

There are times you should seriously consider the oral modification.  Full blown revocation may very well be worse than what the probation officer threatens.  Then again, there are often times where the sanctions make very little sense and would be worse than a revocation.

What Happens at the Sanctions Hearing?

The probation officer might ask the judge to impose the sanction with or without your consent.  A trial judge DOES have the legal authority to modify probation or deferred adjudication in any manner they see fit.  Often the judge may just ‘rattle your cage’ by threatening you or warning you without taking any action.

The argument I typically make in these scenarios is the probation officer isn’t really interested in any type of hearing — they are interested in using the power of the Judge to threaten the probationer so the probationer bends to the will of PO.

I also argue the Judge lacks the power to modify probation through such a hearing because the hearing itself is a nullity.

Oh, and I’ve won.

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

 

 

 

 

 

 

 


Bringing Medication With You on Vacation

December 9, 2019

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Disclaimer – I’m writing this blog as a public service, not because we handle or help coordinate this type of situation.  We would only get involved if you actually got arrested – and did so in Texas.  We’ve just gotten enough calls about this topic for me to throw up a blog about it.  Also, I’m licensed in Texas so I can tell you laws here but not elsewhere.

That said – possessing drugs without a perscription is typically a criminal offense.  Texas has an affirmative defense that if you have a prescription for the medication then it isn’t an offense.  So it would always seem safest to travel with the prescription bottle or container right there on the label.  I can’t imagine that isn’t the law everywhere in the U.S.

Don’t mix medications within one container, consolidate medications in one container, or take your medications in an unlabled baggie or container.  Those would all be recipes for getting hassled.  Bring only the amount you need or anticipate needing while budgeting for an emergency.

Here is a good article from the NY Times about traveling with medication.  Good luck and enjoy your safe travels!  If you have any additional questions then you should contact an attorney directly.

*Jeremy Rosenthal is Licensed in Texas and is Board Certified in Criminal Law.

 


How Smart Phones Have Revolutionized Criminal Law

November 15, 2019

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.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!

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.

 

 

 

 


Returning Calls

October 16, 2019

By Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.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 & Wadas 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.