Self Defense in Family Assault Cases

May 27, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Self defense is a common affirmative defense in family violence/ domestic assault cases.

The defense is governed by Texas Penal Code Section 9.31.  That provision says (in relevant part), “a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force.”

Self defense is an affirmative defense which means it needs to be raised by the accused (and not merely dis-proven by the prosecution as part of their case-in-chief).

Once the defense is properly raised in trial by the defendant, then the judge can instruct the jury that unless the prosecution dis-proves defendant’s self-defense theory beyond all reasonable doubt — the defendant is entitled to acquittal.

Self defense is raised in many assault cases involving family members — usually spouses.  The law makes no distinction as between male and female and either party may be entitled to rely on the self-defense defense depending on the facts.

Though case law isn’t 100% — most criminal defendants take the witness stand and admit to the underlying assault in order to rely on the self-defense statute.  Courts generally feel it is inconsistent for an accused to claim (1) it never happened; and (2) if it did happen — It was self defense.

*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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Posted by Jeremy Rosenthal, Esq.

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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Posted by Jeremy Rosenthal, Esq.

Am I Guilty Just Because I was There?

March 1, 2010

By Collin County Criminal Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

In Texas, mere presence at a crime scene alone is insufficient to sustain a conviction.  The difference between just being at a crime scene and doing something which can be considered aiding or abetting is paper thin, however.  And if you’re complicit in an offense — you can be held equally responsible.

Texas has what is called the law of parties in criminal cases.  It is governed by Section 7.02 of the Texas Penal Code.

Tex.Pen.C. 7.02(2) says that if a person, “solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense…” then they are criminally liable as well.  I’ve italicized the words above to show just how liberal the application of that law can be.

Let me give you a hypothetical of how this rule applies.  Take two 18-year old boys at the mall.  One decides he’s going to shoplift and the other doesn’t know about it.  If the friend doesn’t see and doesn’t know that the other was trying to steal as they all walk out of the store — it would be very difficult to say the non-stealing friend is guilty under the law of parties.  Certainly the shop owner and police may think so; but they would have to prove that in court.

On the other hand, let’s say the one guy is trying to shoplift and friend sees it.  He doesn’t participate, but he gets nervous and when the shop owner looks over at him, he “acts natural.”  Are both guilty of theft?  It’s a tough question.  Some jurors may consider that aiding or attempting to aid in the furtherance of the offense.

Issues like these are why criminal defense lawyers experienced in trial are crucial.  A criminal defense lawyer can force the prosecution to prove the complicit beyond all reasonable doubt.  If the prosecution can’t, then there will be an acquittal.  The burden is on the state to prove your intent and your actions.  The burden isn’t on you to show you were innocent!

It should be noted that there are many offenses where people have an affirmative duty to report the crime that they’ve witnessed.  This generally includes felony offenses and other cases where the witness owes a special duty to the victim.  Also anytime a person suspects abuse or neglect of a child, they have a legal duty to report the same to Child Protective Services.

*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.

2 Comments | Theft | Tagged: , , , , , , , , , , , | Permalink
Posted by Jeremy Rosenthal, Esq.

Top 5 Mistakes When Hiring a Criminal Defense Lawyer Countdown — No. 3

February 15, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

This week I’m counting down the top 5 biggest mistakes people make when hiring a criminal defense attorney.

#3:  Hiring an Attorney That Isn’t Qualified

Economists estimate that a criminal record can reduce your lifelong income by as much as -30%.  For someone that would normally earn $50k per year, that comes out to a loss of $450,000 over 30 years!

Not only do you need a lawyer if you’re charged with a crime, but it had better be one that knows what they’re doing!

A licensed attorney in the State of Texas can practice virtually any field of law ranging from mergers, bankruptcy, truck crashes all the way to criminal.  There are slight exceptions here and there.  Just because someone is licensed doesn’t mean they’re qualified or experienced enough to handle your criminal case!

Board certified lawyers are lawyers that have qualified with the State Bar through recommendations from their peers and from taking a test.  In Texas, the only designation recognized by the State Bar in board certification is for the general field of “Criminal Law.”  While many lawyers hold themselves out as members of organizations such as the “DUI College,” this is not an official designation but more of a private membership.  Being board certified is never a bad thing, but it doesn’t give you, as the client, permission to turn your brain off when interviewing that lawyer to see if they are right for your case.

The best way to flesh-out whether an attorney your talking with is qualified for your particular case is to ask pointed questions.  Ask how many cases of the same offense have they handled in the past?  How familiar are they with the local rules of where your case is pending?  What percentage of their over-all case load is your type of case?

The lawyer’s answers will tell you a lot!

 

*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.

The Top 5 Mistakes You can Make When Hiring a Criminal Lawyer Countdown — Reason No. 5

February 14, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

For the next five days, I’ll be counting down the top 5 mistakes people make in hiring criminal defense attorneys regardless of whether the case is a DWI, Marijuana, other drugs, theft, assault, felonies, or any other type of case.

#5: Hiring a Criminal Defense Attorney Based Solely on Price:

I’m not going to lie — the cost of a criminal defense attorney may very well be a good indicator of how good that lawyer really is.  Sometimes the best guy around is the priciest and the guy who charges the least may be that way for a reason.  There are plenty of other things to consider about judging a lawyer.

The more the lawyer’s time is in demand, the more it’s worth, and the higher the fee.  The less they are in demand, the less they charge.  That is the theory, anyway.  The bad assumption in that argument, though, is that the lawyer is in demand (or not in demand) because they are good (or bad) at what they do.

Consider this  —  a lawyer with a slammed schedule is slammed because they’re just better at marketing than other lawyers in the community.  Or a lawyer who charges a lesser fee has a smaller office and over-head doesn’t dictate their fees.  These things punch big holes in the theory above and there are countless other things which dictate what a certain lawyer may charge.

Should the fee be an important factor in hiring a criminal defense lawyer?  Absolutely.  Abraham Lincoln said it best about legal fees, “…In this way the client knows he has a lawyer, and a lawyer knows that he has a client.”

My point is that money shouldn’t be the only factor!  Ask tough questions.  Are you comfortable with the answers?  Do they make sense?

Your gut and intuition are often the best tools in assessing lawyers and sometimes price can be misleading.

*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 consult an attorney.

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Posted by Jeremy Rosenthal, Esq.

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