How Do I Plead Guilty to a Criminal Charge?

June 8, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

I hate advising clients to plead guilty.

Hate it!

Some tough-guy lawyers will never admit to advising clients to plead guilty but every criminal defense lawyer I know will admit to not only advising clients to accept a deal but begging or pleading with a client on occasion.  Often the facts are stacked against you or the down-side of taking a case to trial is just too scary for the client.

There is no real difference between a guilty plea and a no-contest plea in Texas, so I’m referring to both in this blawg.

A guilty plea is like a contract in Texas.  Both you and the prosecution sacrifice and gain something by way of agreement (you usually sacrifice a lot more).  You are waiving your rights to trial and all that comes with it… the right to prepare, the right to call witnesses, the right to cross examine… etc.  The State is waiving their “right” to seek a greater punishment and, they would argue, their “right” to a jury trial.  In return, you are getting a specific punishment (which may be deferred adjudication depending on your plea deal) and more importantly — you’re also eliminating variables of what may happen to you at trial.  The State benefits because they get a verdict without a trial.

The plea is subject to approval by the judge.  When you plead guilty, you legally empower the judge to (a) find you guilty and (b) sentence you anywhere within the punishment range.

A Texas judge can do one of three things with a plea.  He can accept it (the vast majority of pleas are accepted — I don’t have stats but I’d be willing to bet it’s 99.5% or even greater).  He can reject the plea, or he can accept the plea and modify terms an conditions of probation assuming the plea includes probation.

If the judge flat-out rejects the plea, then he must inform the defendant he’s rejecting the plea so the defendant can withdraw his plea an assert his right to a trial.  A judge rarely knows any specific fact of your case other than what you are charged with — like a DWI, marijuana case, drug possession with intent to distribute, and so on… and for this reason, the Judge is unlikely to tinker with a deal a lawyer and prosector have worked hard to make happen.

Whether to plead guilty or not guilty is a case-by-case analysis.  I advise clients to fight on certain cases for all sorts of reasons and I advise clients to plead guilty on occasion too — because that may be the best answer or because we’re getting a really good deal under the circumstances.

Your choice to plead guilty or not guilty is an extremely important one.  Don’t make the decision alone — have a licensed attorney experienced in the area of criminal law assist you.

*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 about your specific situation you should consult an attorney.  This article does not create an attorney-client relationship.

 

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When a Texas Officer can Arrest for Assault

May 6, 2010

Generally speaking, an officer can make an arrest for offenses (against the peace) viewed in their presence or, of course, if they have an arrest warrant.  Assault cases, however, typically aren’t committed in an officer’s presence… but they are governed by their own statute instead — Texas Code of Criminal Procedure 14.03.

As an example, here is a recent article on a situation where two brothers at a Plano home apparently got into some sort of scuffle and where one went to jail after the police were called.

14.03 specifically allows officers to make an arrest where they have probable cause to believe someone has committed family violence, violated a protective order, have prevented someone from placing a 911 call, assaulted a non-family member and there remains a risk of further violence towards the alleged victim, alleged sexual assaults and various other circumstances.

Basically, if the situation involves violence, the legislature has broadened the officer’s ability to arrest.

It is possible some police agencies have actual policies about making arrests during these situations, but it is the rare exception that the law requires an arrest during an assaultive situation under 14.03. (The statute only uses the word “shall” in conjunction with an arrest for violations of protective orders — meaning that is the only time the officer is actually legally required to make an arrest.

In the situation with the Plano teenagers, it obviously appears the officers had at least the legal authority to make the arrest.  Whether the case is charged and prosecuted is another matter.

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 consult an attorney directly.

 

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There’s No Such Thing as a Minor Family Assault Charge

March 8, 2010

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

Domestic or family violence charges in Texas range from class c misdemeanors (the same level as a minor traffic offense), to felonies in other circumstances.  The fact that some are charged as class c’s doesn’t diminish their importance and can act as a trap door.

A class c assault occurs where there is unwelcome offensive or provocative contact.  The state does not need to prove the victim suffered any pain or discomfort whatsoever.  They appear deceptively insignificant because they can be charged in smaller municipal courts and before justices of the peace where the rules are less formal and far fewer people have lawyers.

In class c domestic violence cases, the prosecution may try and add a small enhancement paragraph to the charge known as “an affirmative finding of family violence” under Texas Code of Criminal Procedure 42.013 and Texas Family Code 71.004.  If the court enters this finding, even where the defendant gets deferred adjudication, then that finding can be used to enhance a future misdemeanor assaults all the way to a felony.

Most domestic violence cases in Texas are charged as the class a misdemeanor assault — where the state must prove some bodily injury (defined as any pain or discomfort).  These cases can be very difficult for the state to prove.  Often times the state will offer a class c deferred on the morning of trial if they feel badly about their case.  Even in those instances, a person charged must be very careful because the affirmative finding may still be attached even though the charges reduced and getting deferred.

If you are charged with a class c assault where the alleged victim was a family member or someone in a dating relationship, you should strongly consider getting a lawyer regardless of how minor you think the situation to be.

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

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