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.

 

 


How COVID Broke the Courts Blog 3 -(Negotiation)

August 19, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

jeremy@texasdefensefirm.com

COVID has altered the way we negotiate cases.

Communication isn’t the same.  At times, the new modes of connection are difficult to overcome.  Rapport, trust, sincerity and the degree of how emphatic a particular plea is just harder to convey if it’s anything other than in-person.

Email pic

Prosecutors are funny creatures.  I believe they are driven by decency, a quest for justice and a sense of duty.  I know because I was one and I really enjoyed it and found it fulfilling.

But understanding them and what makes them tick is far more complicated.  Many are younger and being a lawyer for the State is their first job in our profession.  Some of the more experienced ones have still never ventured outside the DA’s office.  Their world is like none-other.  I found it to be eerily similar to an echo chamber at times filled with adulation of citizens and the all-to-often somewhat self-assured notion that we had a monopoly on the truth.  The result is prosecutors often take the guilt of the accused (or proving the guilt of the accused) for granted.

I include this to say their view of cases — and often their firmness in sticking to their point — is often far different than mine.  When I’m negotiating with them for a better plea offer convincing them to simply walk-away and dismiss a case – it takes persuasion.

Knowing what motivates prosecutors is absolutely crucial in criminal defense.  And whether I’m trying to convince a prosecutor a certain case requires cooperation or collaboration — or I’m simply trying to convince them their poker hand is an offsuit 2-7 split — it is far more difficult to do it with short, choppy emails or text messages than it is just to sit and visit with them for a few minutes.

What tends to happen with phone calls or emails is the prosecutor tends to hear the message — perhaps miss some of the intonations I’m trying to convey — and then retreat back into their echo chamber to consider it further.  It shouldn’t come as a surprise it’s a far more difficult sale.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He is a Texas Super Lawyer as designated by Thomson Reuters.


How COVID Broke The Criminal Courts – Blog 2 (Access to Courts)

August 11, 2020

 By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

One of the things I miss most with the pandemic is not seeing everyone at the Courthouse every day.

Being a defense lawyer is like being an athlete who shows up to the same clubhouse 3 or 4 times every week.  Over the years you have the opportunity to develop social, collegial, and professional relationships with everyone in the building.  You get to know other defense lawyers, prosecutors, judges, court coordinators, bailiffs and even the security guards at the front door.

These relationships are more than just fun.  They are the “WD-40” of courthouse efficiency.  It goes without saying being face to face allows everyone in the building to do their jobs more efficiently.  Not only that, being physically in the courthouse allows me to solve 10 problems a morning instead of just 2 if I’m trying only to work the phone.

Put in its simplest terms — I have a much more challenging time being an active influence for my client when I’m not “in the room where it happens.”

The limited access to prosecutors and court personnel presents two main problems.

Courthouse pictureFirst, is the limited ability to communicate.  In grade school we learn about verbal and non-verbal communication.  The stuff happens to be true.  Advocating for a client in person where the prosecutor or Judge can see and sense the depth and passion of an argument — even an informal one — is far better in person.  Texting, phoning, and even zoom simply isn’t as effective.

The second is simple access to prosecutors and court personnel.  During normal times it is much easier for me to be able to — for example — grab a prosecutor and visit with a Judge quickly about troubleshooting a problem either on the bench or in chambers.  Hurdles to those conversations are far more easy to overcome.  What used to take minutes can now take weeks.

Life will get back to normal.  My hope is that when it does, the ability to communicate with everyone at the courthouse does too.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He is currently designated as a Texas Super Lawyer by Thomson Reuters.


Can You Talk on Your Cell Phone While Driving in Texas?

May 5, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Yes, unless you are under 18 years old or are within 6 months of getting your driver’s license, or in a school zone.

Between 90 and 100 cities and municipalities have their own restrictions too which would tighten the law even more.

Here’s What Is Illegal

It’s illegal to “send or receive electronic messages” while driving — so that would include texting while driving, social media, or any way of transmitting a message to another person.

What Type of Crime is it to Text and Drive?

Normally it’s just a traffic offense.  But if the driving is bad enough, it could be charged as reckless driving.  If someone is hurt or injured, it could be prosecuted as an assaultive offense.  If it causes death, it could be prosecuted as criminally negligent homicide or manslaughter.

Our office doesn’t handle simple traffic offenses — but we do handle more severe distracted driving charges.  You can read here about those.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He was designated as a Texas Super Lawyer by Martindale-Hubbell in 2019.

 


Vehicular Homicide – Defending Through Technology

April 23, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Technology is our friend in defending a distracted driving death case.

Why is technology our friend?  Because more often than not, it provides us with a 360-degree view of what was going on in everyone’s mind and car at the time of the accident.  Law enforcement and prosecution, on the other hand, tend to see one nugget of technological information.  When they do, they jump to conclusions and blind themselves to anything else.

An Example of Using Technology to Tell the Full Story:

Let’s say Driver 1 and Driver 2 collide causing the death of Driver 2 — and Driver 1 is on trial for Vehicular Manslaughter.

Let’s assume police are able to lawfully get into Driver 1’s phone (a big assumption).  Driver 1 was shown to have sent 3 texts in the 5 minutes before the crash with one text received 15 seconds before the accident.

Police then jump up and down hollering this is conclusive Driver 1 was distracted and caused the death of Driver 2.

But we’re capable knowing a much fuller story than just this.

We can tell based on the car’s infotainment system virtually anything being communicated to Driver 1 from the car.  Was there a hands-free system being used at the time through bluetooth or through a USB cable? Did the car have lane-assist and if so, was the driver in his/her lane?  Did the driver brake and/or moderate their speed?

Many of these things are knowable from both cars in the accident.

infotainment-systems-696x464.jpg

Car “Infotainment” systems can be key evidence in manslaughter and criminally negligent homicide cases.

Investigation and Privilege in Defending Vehicular Death Charges

A common fear is, “what if we dig into the technology and the truth actually hurts us?”

It’s a good question – but remember – your lawyer’s investigation is privileged.  If the investigation unearths bad or harmful information, then the information doesn’t boomerang and hurt the defense.  The public policy behind this is simple — Defense lawyers and defense investigators would never really dig into the truth if they were always afraid of what they might uncover.

Summation

The cornerstone to any good distracted driving homicide case whether it be criminally negligent homicide or manslaughter is being fluid with the technology surrounding the entire case.  The more information, typically the better.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He was designated as a Super Lawyer in 2019 by Thomson Reuters.