What is the Difference Between a Felony and a Misdemeanor?

October 23, 2020

By Criminal Defense Attorney Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

A misdemeanor is any criminal charge which carries a potential jail sentence of a year or less, and a felony is anything which has a potential jail sentence over a year.

What dictates is the punishment range – not the actual punishment itself.

Here’s an example:

  • In Texas we have a classification known as a “State Jail Felony.”  Many street drugs such as cocaine in trace or user amounts fit in this category.
  • State jail felonies carry a possible punishment between 6 months and 2 years confinement.
  • Let’s say a person is sentenced to 6 months of state jail
  • The case is a felony because the punishment range or potential punishment from the outset is over a year.
  • Even if the 6 months is probated and the person never goes to jail – the case is still a felony.

What Does it Mean if a Case is a Felony?

Felonies usually carry with them collateral consequences in addition to the potential increased jail.  States can typically restrict voting and professional licenses to felons as an example.  Many employers ask questions to candidates about felonies.  In Texas, some rights are restored to felons after they are no longer under the Court’s thumb.

The Federal Government’s View

Each state may define a felony or misdemeanor however they’d like – but the federal government in making policy on things like immigration, lending, and firearms makes it clear this is how they define the difference.  The US Constitution also has “the Supremacy Clause” which dictates federal law is superior to state law.

For this reason – the federal government labeling someone a felon can be more severe than the state doing so.  As an example, a felon in Texas is permitted to carry a firearm five years after their sentence is complete.  But because the federal government also regulates firearms and they strictly prohibit felons from owning pistols or handguns ever – the Texas law allowing a felon to possess such a weapon is somewhat meaningless.  You’re still breaking the law.

*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.

 

 

Comments Off on What is the Difference Between a Felony and a Misdemeanor? | Civil Liberties, Collateral Consequences of a Criminal Record, Drugs, probation | Tagged: , , | Permalink
Posted by niftybrady

Will I Be Arrested if I Shoot an Intruder?

October 22, 2020

By Texas Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Texas law allows you to use “deadly force” in certain circumstances to defend yourself.  One of those circumstances is when an intruder has forcefully and unlawfully entered your home.

Will you be arrested?  Perhaps, but the law may let you out of it if you qualify.

 

What is Deadly Force?

“Deadly force” means force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury.  Tex.Pen.C. 9.01(3).

When Can I Use Deadly Force to Protect My Home?

Tex.Pen.C. 9.32 discusses the defense of use of deadly force and in relevant part says this:

(a) A person is justified in using deadly force against another:

(1) if the actor would be justified in using force against the other under Section 9.31; and

(2) when and to the degree the actor reasonably believes the deadly force is immediately necessary:

….(B) to prevent the other’s imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

(b) The actor’s belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:

(1) knew or had reason to believe that the person against whom the deadly force was used:

(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor’s occupied habitation, vehicle, or place of business or employment;

(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor’s habitation, vehicle, or place of business or employment; or

(C) was committing or attempting to commit an offense described by Subsection (a)(2)(B);

(2) did not provoke the person against whom the force was used; and

(c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section.

(d) For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat.

The Statute Translated and Broken Down

In English – if you are in your habitation, vehicle, or place of business AND someone has not only unlawfully entered but did so by using force AND you have done nothing to provoke the person AND you yourself are not committing a crime – then if you shoot the person, you have self defense available to you.  Additionally, you do not have the duty to retreat.

What Does it Mean My Actions are “Presumed to be Reasonable”

Remember – the law could very well go to a jury in any legal case.  The jury decides whether what a person did to defend their home was reasonable.  This law assists them and ‘nudges’ them to tell them it was reasonable.  It also encourages police and prosecutors not to arrest or go forward where cases where this applies.

Why Does the Intruder Have to Use Force to Break In for Me to Be Able to Shoot Him?

This prohibits situations where someone is invited over, an argument ensues, and then the person doesn’t leave despite being told to do so.  In that instance, the person’s entry into the home would be unlawful yet not forceful.

What Does it Mean I Can’t Be Committing a Crime?

This is a confusing part of the statute.  Remember, this law is designed to protect the homeowner who wakes up at 3 in the morning to find a burglar in their home or who comes home for lunch to find their door kicked in and someone rummaging through their possessions.

The law isn’t designed to protect someone running a drug house or prostitution ring.  Also, the law had to have a touch of flex too because it covers car-jacking situations – and not bar fights which turn into fights in a car.

But if you Recklessly Shoot a Third Person…

If you use deadly force and in doing so harm or kill a different – innocent – person, then the self defense protections are unavailable to you.

*Jeremy Rosenthal is Board Certified in Criminal Law.  He has been designated as a Texas Super Lawyer by Thomson Reuters.

 

Comments Off on Will I Be Arrested if I Shoot an Intruder? | Assault, Deadly Conduct, Domestic Violence, Drugs, Homicide, Murder, Self Defense, Uncategorized | Tagged: , , , | Permalink
Posted by niftybrady

Is it a Crime to Have a Positive Drug Test?

October 21, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

It’s not a crime in Texas to fail a drug test or urine analysis (“UA”).  Possession of any illegal drug such as marijuana, cocaine, or any other controlled substance without a prescription is defined as “actual care, custody, control or management.”  Tex.Pen.C. 1.07(39).  Failing a UA does not demonstrate this as backward as it may sound.

Texas courts apply what is known as the Corpus Delecti rule.  Corpus Delecti is latin for “body of the crime.”  The prosecution in every case must prove a crime was committed.  An out of court confession, in and of itself, is never enough to sustain a conviction.

A classic and more clear example of corpus delicti is someone who confesses to arson – yet the building the person claims to have burned to the ground is completely unharmed.  Legally, this is indistinguishable from a person failing a drug test to prove a person had “actual care, custody, control or management” of a drug they shouldn’t have had.

You Can Still Be in Trouble for Failing Drug Tests

If you are on bond for a crime – a failed UA is legally sufficient to hold your bond insufficient and have you re-arrested.  It can also be grounds for a motion to revoke probation or a motion to adjudicate.  This is because the formal requirements of the corpus delicti rule are loosened for these proceedings and because typically terms of bond and/or probation are more broad as well to prohibit failing drug tests.

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

Comments Off on Is it a Crime to Have a Positive Drug Test? | Cannabis, Civil Liberties, Drugs, Homicide, marijuana, pre trial diversion, THC, Uncategorized | Tagged: , , , , , | Permalink
Posted by niftybrady

Will My Probation Get Revoked?

October 20, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Legally you could be revoked for showing up late to probation – but that’s obviously an extreme and unlikely scenario.  There are countless variables which go into whether or not your probations revoked – so each case is truly unique.

Those variables can be things like the nature of the underlying offense?  How severe is the new infraction?  Have there been other infractions?  Is the probation officer understanding about your situation?  Are they lazy?  Are they a jerk?  Passive?  Controlling?  What does your county typically do with similar cases and infractions?  The list goes on and on and on.

I get plenty of calls asking me this exact question… will I be revoked?  I understand the anxiety and uncertainty of the position the probationer is in and I really do my best to try and handicap each situation.  But each situation is very different.  Here are some general guideposts, though:

Is the Probation Violation a New Offense or Crime?

If you’ve been arrested again for a new charge your probation officer probably doesn’t have much say in whether or not a motion to revoke or motion to adjudicate is filed.  Those are likely to be dictated by office policy and your PO’s hands are usually tied.

If you do get arrested for something new – and you don’t get revoked – count yourself lucky.

Every probation plan or order I’ve ever seen requires a person to notify their officer upon a new arrest.  So it’s normally a separate probation violation not to disclose it.

“Technical” Violations of Probation

We typically refer to issues such as failure to do community service or take classes as “technical” violations.  Whether your probation is revoked based on a “technical” violation is up to your probation officer.  Failure to pay fines and money fits into a bit of a different legal category – so I’m not including that here.

It really is impossible to quantify what each individual probation officer would do in any county in Texas in any given scenario.  If you’re on probation for drugs or DWI and you’ve done 90 out of 100 hours of community service – I like your odds of not being revoked more than if you’re on probation for a violent crime and have done 0 out of 100 hours of community service.

I also like your odds of not being revoked on a “technical” violation more if you’ve never been in trouble with your PO before than if your PO has already given you 5 warnings about the same thing.

Positive Drug Tests

This is a very common trigger for a revocation or adjudication.  My experience is it takes more than one – but this is an area where each county is different.  The main reason a single positive UA probably won’t get you revoked is your PO has a lot of options at their disposal to remedy or punish short of full-blown revocation.  It could include a jail sanction, additional classes, or even them asking you to extend your probation.

But Here’s What Experience Teaches Me — At Least in Collin County

It never hurts to be on your probation officer’s “nice” list and not “naughty” list.

Being a probation officer is a very tough job as much as I might criticize them.  Most are over-worked and under paid.  They are like you and I.  I’m guessing it’s easy for them to deal with most people on their case load — and then they have some they deal with regularly who aren’t very pleasant to work with at all.

I don’t think many probation officers show up to work looking to screw people.  The fact is they have enough headaches on their case load without inventing more.

*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.

 

Comments Off on Will My Probation Get Revoked? | Assault, Civil Liberties, Collateral Consequences of a Criminal Record, Drugs, mental illness, pre trial diversion, probation, Probation Revocation, Uncategorized | Tagged: , , , , , , , | Permalink
Posted by niftybrady

Mental Illness & Criminal Law: Mitigation

October 19, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Mitigation is the single biggest way mental illness impacts court cases.  Mitigation is the act of reducing the severity, seriousness or painfulness of something.  Mental health and mental illness often tell the story of what is really going on in any given situation.  It can show the judge, jury, prosecutor and often the victim the reasons for defendant’s actions.

To recap, this week I’ve covered the major ways mental illness affects criminal cases and what the courts are doing about it:

Mitigation

Texas law and courts have made strides on dealing with people suffering from a difficult mental or emotional disorder.  But as discussed previously, it is very hard to establish the insanity defense in Texas.  To be Not Guilty by Reason of Insanity, a person can have zero appreciation between the difference between right and wrong.

So what about the scores of cases where someone’s mind and judgement are over-powered by anxiety, racing thoughts, or in some instances delusions to the point they act horribly out of character yet they had an inkling what they were doing was wrong?  These are the vast majority of cases and these are the cases where the mental health issues constitute mitigation.

How Do You Establish Someone’s Mental Health Was to Blame?

It often speaks for itself.  Forensic psychologists or psychiatrists can often do evaluations and put a formal diagnosis to help explain the symptoms the person was experiencing.  The mental health professionals can also discuss the appropriate future treatment and progress of the person and show the path forward.

Professionals and experts also helps because many prosecutors, judges, jurors and even victims of the crime can be cynics who accuse someone of malingering or faking mental illness.  The forensic psychologists and/or psychiatrists help debunk this. In reality people malinger less than 5% of the time and even those who do malinger do so because of of different disorders than the one they fake.

The Path Forward

Everyone needs to see the path forward for the accused when it is the mental disorder largely to blame for a criminal situation.  The path may include inpatient or outpatient treatment, medication, and continued supervision.

Often the path forward may require changes to an existing plan which hasn’t worked – or to adjust the aggressiveness of a plan.  Frequently it includes dealing with an addiction which has developed when someone has self-medicated because of their disorder.

Going forward and showing judges, juries, prosecutors and victims the accused can and will control things better in the future requires lots of hard work from not only the defendant – but often their loved ones too.  But anyone reading this post already knows this.

*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 Thompson Reuters.

Comments Off on Mental Illness & Criminal Law: Mitigation | Assault, marijuana, mental illness | Permalink
Posted by niftybrady

« Previous Entries
Next Entries »