The Texas “Value Ladder” for Punishment

November 20, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Many criminal offenses in Texas are based on a monetary amount of loss or amount in controversy.  The more money we are dealing with, the higher the charge.

All of these offenses contain the possibility of probation subject to a person’s previous criminal history.

The Value Ladder:

  • Less than $100 – Class C Misdemeanor
    • No Jail
    • Fine not to exceed $500
  • Between $100 and $750 – Class B Misdemeanor
    • Up to 180 days county jail
    • Fine not to exceed $4,000
  • Between $750 and $2,500 – Class A Misdemeanor
    • Up to 1 year county jail
    • Fine not to exceed $4,000
  • Between $2,500 and $30,000 – State Jail Felony
    • Between 180 days and 2 years in State Jail Facility
    • Fine not to exceed $10,000
  • Between $30,000 and $150,000 – 3rd Degree Felony
    • Between 2 years and 10 years prison
    • Fine not to exceed $10,000
  • Between $150,000 and $300,000 – 2nd Degree Felony
    • Between 2 years and 20 years prison
    • Fine not to exceed $10,000
  • Over $300,000 – 1st Degree Felony
    • Between 5 and 99 years or life in prison
    • Fine not to exceed $10,000

*Jeremy Rosenthal is 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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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.

 

 

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What is Entrapment?

November 18, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Entrapment is a tricky concept. It occurs when law enforcement convinces someone to commit a crime.  It gets confusing because the entrapment must go beyond merely affording someone the opportunity to commit a crime.

The law further says the enticement must be enough to persuade a normal, law abiding citizen with an ordinary resistance to committing a crime.  A good rule of thumb when thinking of entrapment is to see where the original intent of the crime originated – with police or the accused?

Entrapment is a defense to prosecution and Texas Penal Code 8.06 says:

(a) It is a defense to prosecution that the actor engaged in the conduct charged because he was induced to do so by a law enforcement agent using persuasion or other means likely to cause persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.

(b) In this section “law enforcement agent” includes personnel of the state and local law enforcement agencies as well as of the United States and any person acting in accordance with instructions from such agents.

Example of Situations Which are Entrapment:

  • A recovering addict is getting addiction treatment.  An undercover police officer meets the addict in the lobby of the counselor.  The undercover asks the addict to provide illegal drugs.  The addict refuses citing his attempt at recovery.  After repeated attempts to convince the addict, the addict gives in and attains and delivers drugs to the undercover officer.  See Sherman v. United States, 356 U.S. 369 (1958).
  • Undercover officer makes repeated attempts at having defendant provide access to drug dealers and drugs after defendant was reluctant after 12-year relationship. See Torres v. State, 980 S.W.2d 873 (Tex.App. — San Antonio, 1998).

Example of Common Situations Which Are Not Typically Entrapment

  • Person sells drugs to undercover police officer;
  • Persons who seek out and hire a hitman to kill someone;
  • Public servant who is offered a bribe and accept it.

Other Thoughts on Entrapment

Candidly – there is a strong bias against the entrapment defense by judges and juries.  Entrapment is more of an academic argument for that reason – and typically the most a court can do in a case of entrapment is give the jury an instruction they can acquit an accused on that basis.  So even if the person meets the legal pre-requisites of entrapment a jury still might not buy it.  Most people think the government conduct would have to be so outrageous as to strongly over-shadow the crime committed.

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

 

 

 

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Court-Run Mental Health Programs

November 17, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

I’ve blogged extensively about mental health and how it intersects with criminal law.  The over-lap can’t be understated.  You can watch a podcast I’ve done on the topic here.

Some of the good news is many criminal law judges, probation departments and even prosecutors have gotten on-board with gearing to include mental heath treatment as well as their normal repertoire.  It never hurts to ask your lawyer or your loved one’s lawyer what the available options are.

I can’t tell you how many mothers, fathers, spouses and other loved-ones of my clients have told me their main goal in a case is to simply get them help.  But the criminal justice system – and the adversarial process wasn’t naturally built to accomplish tasks like mental health treatment.  There are pros and actually cons to Court-Run mental health programs folks should be aware of.

Advantages of Court-Run Mental Health Programs

On the plus side, these court-run programs are designed for the indigent or near indigent.  So cost which often dictates far more than it should is hopefully all but eliminated.

The county (or whatever governmental sub-division you’re dealing with) has access to more infrastructure and services than a private entity might be able to have.

The court also has a “captive” audience meaning the individual has no real choice but to participate.  Anyone who has a loved one who is either so disturbed or oblivious to their mental health disorder that they refuse treatment knows how valuable this can be.

Disadvantages

For me as a criminal defense lawyer – I’m always focused on what happens to the client in 10 or 20 years based on what we do today.  Here are some important questions I ask about any government program:

  • Will this program require my client to be convicted as a price of admission?
  • Can I get this off my client’s record in addition to getting the treatment (often known as mental health diversion)?
  • Do I actually trust the county’s ability to do what they say they can do to help?
  • Am I just signing someone up for the county to be “in their hair” for years to come?
  • Are there better private alternatives which are viable options?

The Bottom Line on Court-Run Mental Illness Programs

Make no mistake – it’s fabulous to see courts simply move in this direction.  Judges and probation officers paying attention to these crucial aspects and triggers for criminal cases is a great thing – and you know people are really starting to get the importance of mental health when the prosecutors even get involved.

But going into a mental health program run by a judge or probation department is still – and probably always will be – a “look before you leap” situation.  There are always many factors to consider.

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

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