Texas Criminal Appeals 101

June 6, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Appealing a conviction in Texas can be difficult, but it’s not impossible.

Criminal trials are extremely complex and if the judge, prosecutor, or even your own lawyer have made mistakes — a conviction can potentially be over-turned by the Texas appeals courts.  While an appeal can often represent a great hope — you should know that statistically the odds are long at having a case overturned.  That being said — convictions are over-turned all the time.

The most important thing to remember with an appeal is time is critical.  Some issues can be appealed months and even years after a conviction — but the vast majority of appeals MUST BE FILED WITHIN 30 DAYS of the judgment under the Texas Rules of Appellate procedure.  Also, sometimes a motion for new trial can be granted and the trial judge can allow a re-trial of the case under some circumstances if you act quickly enough.  Unlike a fine bottle of aged wine — appeals get worse as they get older.

When a conviction is being appealed — what is typically getting called into question are the balls and strikes a judge called at trial.  Sometimes, but rarely, a prosecutor’s conduct or the conduct of your own trial lawyer may be addressed.  Practically never is something the jury did subject of a successful appeal.  The reason is that the judge decides “questions of law” and the jury decides “questions of fact.”

Common grounds for appeals are:

Did the judge allow someone to serve on the jury that shouldn’t have been there?

Did the judge allow the prosecutor to go too far in arguing to the jury?

Did the judge improperly admit evidence the jury should’t have been allowed to see?

Did he not let the accused admit evidence he should have let in?

Did he give the right instructions to the jury?

There are dozens of areas which can be grounds for appeals.  Doing an appeal without a lawyer is extremely difficult.  There are tons of legal tripwires designed to toss out appeals before they even get to be seen by an appeals judge.  Get a lawyer if you’re considering an appeal.

*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 as legal advice nor does it create an attorney-client relationship.  For legal advice about a specific situation, you should consult an attorney directly.

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Posted by Jeremy Rosenthal, Esq.

Collin County’s Deferred Prosecution Program

May 31, 2010

A couple of years ago, the Collin County District Attorney’s office decided to institute a deferred prosecution program for young people (17 to 21 years old) accused of minor offenses.  The D.A.’s office sends out letters inviting people to contact the probation department for the program if they think you’re eligible.

If you can qualify and successfully complete the program — then it’s possible you can qualify for an expunction without having to risk going to a trial.  In theory, it’s a great concept and a win-win deal.

In practice it isn’t quite that simple.  There are some pitfalls to watch for.

Here’s Why You Should Contact a Criminal Defense Lawyer Before You Agree to Apply:

1.  You have to Confess to Be Eligible. The entire theory behind the Deferred Prosecution Program is getting “help” for the “youthful offender.”  My only guess is that this somehow helps with accepting responsibility as part of “treatment.”  By confessing to whatever crime you’re accused of committing, you’ve often sealed the DA’s office legal case against you should you not be accepted into the program or the program not work out.  This brings me to my next point.

2.  The Program is Hard to Complete. The program administrators are under extremely strict marching orders to report and toss anyone out of the program for the slightest infractions.  They define a violation as anything they interpret in their sole discretion as being an infraction.  This means that even you dispute whether you’ve violated a rule — you’re still gone without a chance to complain to anyone.  They can and do throw out participants on a frequent basis.  They’ve got your confession now to use against you in formal prosecution.  This seems inconsistent with “helping youthful offenders” but this is they way they’ve chosen to run their program.

3.  The Waivers and Terms are Extremely One-Sided. The prosecutors and probation officers don’t know anything about the case — except that you’re guilty of whatever the police said you did.  They view this program as purely charity towards you.  Therefore, they are justified in having every term extremely slanted in their favor (see above — that a violation is determined in their sole discretion — and that’s just one example).  You also waive more complicated things such as the statute of limitations which could push-off or even possibly nullify your ability to get an expunction (although they dispute this).

4.  The DA’s Office is Legally Your Opponent. Texas Disciplinary Rules of Professional Conduct Rule 3.09(c) states, a prosecutor in a criminal case shall “not initiate or encourage efforts to obtain from an unrepresented accused a waiver of important pre-trial, trial or post-trial rights.”

5.  A Criminal Defense Lawyer is Your Advocate and Voice. Collin County’s Deferred Prosecution Program makes me as nervous as a long-tail cat in a room full of rocking chairs.  I’m not suggesting it can’t be a great way to clean a criminal record while minimizing risk — but I am suggesting you know what you’re getting into first.

A criminal defense lawyer can point out one or ten possible defenses that it’s not the DA’s office or the probation office’s job to point out.  Also, a criminal defense lawyer experienced with how the program is administered can advise you in advance as to whether entering into the program — and all it entails — is truly what is in the best interest of the accused.  The prosecution only thinks they know how to do this better.

Jeremy F. Rosenthal, Esq.

(972) 562-7549

*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 specific legal advice, you should directly consult an attorney.

 

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If I Am Guilty, Then I Have to Plead Guilty, Right?

March 2, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Wrong, wrong, wrong!

People say this to me all the time.  I honestly admire them when they do.  But here’s the thing — you have a right straight from our Constitution to plead not guilty and force the state to prove your guilty beyond all reasonable doubt.  If they can’t you are entitled to acquittal regardless of what you did or didn’t do.  People who have a problem with that also have a problem with Thomas Jefferson, John Adams, and our other founding fathers.

Here is the flaw in the “I have to plead guilty” attitude:  Just because you’re being remorseful doesn’t mean the law and the prosecutor will be fair.  The State of Texas doesn’t have a phone line to the almighty so they can together decide what is and is not justice (regardless of the attitude of many of their prosecutors and policemen).

Take a DWI arrest in Collin County for example.  The person is taken to jail which is like a punch in their gut.  They have an embarrassing scene on the roadside, and then they have friends or loved ones help them get out which is also humbling.  For many, that experience alone may be punishment enough.

The state takes the position that you need to be branded with this forever and they’ve put a price tag on it designed to be as nasty a hardship on your wallet as they can possibly inflict.  Not only that, some politician down in the polls 15 or 20 years from now may decide to re-punish you with additional red-tape to prove they are “tough on DWI”  (and yes, there have been laws passed this last decade which affect the rights of those convicted in the past).

Also don’t forget you don’t have to prove your innocence at trial.  Even if you are guilty, the state often can’t prove it or they make a legal mistake entitling you to acquittal.  That is their fault and not yours.  Again, you’ve done nothing shameful or dishonest by pleading not guilty.

Merely because a prosecutor or policeman says pleading guilty equals justice doesn’t make it so.

*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 please directly consult an attorney.

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How the Police Take Your Blood Without Your Consent

February 26, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Courts allow police to apply for search warrants for mandatory blood draws.

A warrant, in theory, is a precise legal document which explains to the judge or magistrate reviewing the warrant why the police believe it’s likely evidence of blood over 0.08 will be present in your system.  In practice, however, police utilize one-size fits all warrants with boilerplate language.

A recent U.S. Supreme Court Opinion, Missouri v. McNeely, has in all likelihood invalidated Texas law which allowed for warrantless blood draws on felony DWI arrests.  Thus, the only way a blood draw without consent can be done is through a warrant.  In McNeely, the courts held the process for applying for blood warrants has become so simplified that only if there is exigent circumstances may an officer proceed without a warrant.

Books have been written about search warrants so I can’t cover them all here — but as with many things in the law, it’s complicated.

With a DWI blood warrant, the judge allows the police to draw your blood.  If you are in that situation, then you must comply with the officer’s instructions.  Your remedy is to fight the search in court later.

There are all sorts of legal problems with DWI blood warrants in Dallas and Collin County.  Arguments can be made the the practice breaks or comes close to breaking several other statutes and laws.

The Texas Transportation Code Section 724.103 states, “…a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer.”  This language can be argued to be in conflict with the search warrant statute.

Texas Code of Criminal Procedure 14.06 suggests that when someone is arrested, the officer shall take the person arrested before a magistrate “without unnecessary delay.”  Where the police hold someone while they take 30 minutes or an hour to get a search warrant, it can be argued they violate this provision too.

Blood warrants and draws are a complicated area of the law.  It takes a detail oriented lawyer to be able to analyze the medical and legal issues behind proper blood draws and the underlying science.

*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, please consult an attorney.

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Posted by Jeremy Rosenthal, Esq.

Should You Answer Questions After You are Read Miranda Rights?

February 25, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Criminal defense attorneys will universally tell you no — and with good reason.  Prisons are full of people who wish they hadn’t answered questions.

By reading your Miranda warnings, the police are telling you that they have already decided you’re guilty.

At best, they are telling you that they think their investigation may wind-up with you being arrested so they are “crossing their t’s and dotting their i’s.”

“But I’ve got nothing to hide?!?”

Maybe so.  But there are some bad assumptions you are making with that good faith rationale.

The main problem is that you are trying to convince someone that has already made-up their mind.  That is like trying to convince the vending machine that stole your dollar to give it back.

Also — you don’t know what the police are looking for with their questions and they do.  They may want just one key admission to satisfy a legal element they may already know but can’t otherwise prove.  You may tell them worlds of information they would have never known and now they’ve got a better case against you that they ever dreamed.  They’re happy letting you think you’re winning them over.

Police bank on the fact most of us were raised to respect and cooperate with authority.  But an officer’s job is to investigate crime and build cases against people.  Either they can prove all the elements of a crime or they cannot.  If they’ve got no evidence of certain elements — the only way they can get it is out of your mouth!  There is no advantage to talking with them — and if there is — there is no harm in consulting a lawyer first!

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. This article is not intended to be legal advice.  For legal advice, you should consult an attorney.

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