When Being Drunk is a Crime & When it’s a Defense to a Crime

January 2, 2021

By Texas Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577


When Being Drunk is a Crime

The rule of thumb with intoxication in Texas is this:  it’s perfectly legal until you’re dangerous.  The threshold changes depending on what you’re doing.

For public intoxication (a fine-only offense) you’re guilty if you’re dangerous to yourself or others just being in public.

For driving while intoxicated it’s if you’re dangerous being behind the wheel of a motor vehicle which weighs a few tons and can go 100 mph.  DWI offenses range from class b misdemeanors (up to 180 days county jail) to 2nd degree felonies for intoxicated manslaughter (2 to 20 years in prison).

When Being Drunk is a Defense to a Crime

Voluntary intoxication is specifically excluded as a defense to a crime in Texas under Tex.Pen.C. 8.04.  Involuntary intoxication may be a defense – but it is extremely rare and difficult to prove.

This topic gets very legally complex very fast – so I’ll do my best to help it make sense.

Intoxication normally goes to undermine the “intent” requirement of most crimes.  If a person is intoxicated, then, they might not have intended to commit whatever crime, right?  The answer would depend on if the person intended to ingest something intoxicating or not — or if they ingested something via fraud or distress rendering the intoxication involuntary.

Adding another layer of confusion is this: not all crimes require intent anyways.  So drunk or not if the person did the criminal act then they are guilty.  Examples would could be statutory rape, selling alcohol to a minor or even speeding.  The prosecution doesn’t have to prove what you intended in those cases – much less whether a person was in their right state of mind.

Probably the easiest way to summarize this is through a few examples:

  • DWI Where drug was unknowingly put into someone’s drink:
    • Not a defense;
    • There is no “intent” requirement in drunk driving cases so even if it were “involuntary” intoxication it wouldn’t matter.
  • Theft where person was impaired due to prescription drugs;
    • Not a defense
    • The intoxication would be considered “voluntary” even if the person didn’t fully understand the impact of the medication or the medication had an unpredictable outcome.
      • The issue is whether the person “voluntarily” ingested the medication.
  • Robbery where a person had a cup of water spiked with an unknown intoxicant;
    • This would be a rare example of involuntary intoxication being a defense;
      • The impairment was caused by fraud;
      • The involuntary impairment negates the intent element required in robbery.

The effect of intoxication in cases can be obvious in most instances and legally complex in others.

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

Domestic Violence Charges – Blog 17:  Plea Bargaining in Family Assault Cases

December 29, 2020

By DFW Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577


Only 6% of state criminal cases go to jury trial.  That means 94% are disposed of some other way.  Those could be plea bargains or dismissals.  Some dismissals are by agreement where the defendant takes classes, performs community service and/or completes other tasks and is basically a plea bargain without actually resulting in a plea.

Courtroom lawyers love to talk-tough.  And I’m no exception because I eat nails for breakfast in the morning before dazzling every jury I see.  But what we don’t brag about much are our plea-bargains.  Plea bargaining doesn’t make wonderful fodder for lawyers web pages so you don’t hear lawyers talk about it much.  Again – 94% of cases don’t go to trial so even the lawyers who talk the meanest game in town plea bargain far more cases than they take to trial.  It’s just a fact.

Anyone who has come to see me about their case knows I analytically evaluate every case as if we are preparing for trial.  They teach us in law school to start with the jury charge and go backwards.  And I don’t wear my plea bargains on my sleeve either but candidly it’s where I do some of my best work of getting clients out of really bad jams.

Read here for an index to other domestic violence related blogs.

When Plea Bargaining Makes Sense

Domestic violence is an area where sometimes we simply can’t plead guilty.  It could trigger immigration, professional licensing, or other consequences we cannot accept.  So this is the first question – can the client afford the consequences of a guilty plea in a family violence case?

Pleading guilty or not guilty is always the client’s choice.  Some folks don’t have the stomach for trial.  Trial in a domestic violence case normally takes a day or two but can take a week or more.  I have fun in trial but that’s because I’m not worried about going to jail when it’s over and I’m not worried someone on the jury or someone who just wanders into the open courtroom might know me and post the affair on social media.  I discourage the idea of pleading guilty just to avoid a trial most likely in front of strangers but again – it’s my client’s choice and not mine.

Pleading guilty or no contest may also make sense in cases where I honestly tell my client the odds for an acquittal are long given the specific facts of any cases… and I go through a cost/benefit analysis with my client about the pros and cons of taking the case to trial.

Important Factors in Getting a Favorable Plea Bargain

When someone is pleading guilty or no contest (there is no legal difference which matters in criminal law) – they are accepting responsibility.  It’s important for folks to remember this.  If someone is going to take responsibility for the charges against them – then I always advise clients to do so sincerely, earnestly and whole-heartedly.

Beyond this if someone is going to take responsibility they also take on the onus of not only promising not to do it again but taking the affirmative actions necessary to make sure and guarantee it doesn’t happen again.  This may include accepting anger management, marriage counseling, or a batterer’s intervention program.

Often substance abuse and/or psychological disorders need to be addressed as part of the underlying causes.  So a person may need to accept evaluations along with follow-up recommendations.

If someone is willing to face their decisions and demons to make sure a domestic assault doesn’t happen again then it obviously bodes well for plea bargaining.

Ultimately plea bargaining is far more common than taking a case to trial though many of my colleagues pretend otherwise to the public and to one another.  It never hurts to have a good strategy of an exit-ramp in a case which can often be a plea bargain my client finds acceptable.

*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.

Domestic Violence Charges – Blog 12:  The Consent Defense (i.e. Mutual Combat)

December 23, 2020

By McKinney Criminal Defense Lawyer Jeremy Rosenthal


(972) 369-0577

Dallas Cowboys at “The Star” in Frisco put on their pads and helmets on a daily basis, go out onto a football field, and routinely intentionally, knowingly or recklessly cause bodily injury to one another.

We all know that’s not assault because when you put the pads on – you’re agreeing to allow another person to inflict pain.  The contact is welcomed.

This is the law school example of the consent defense to assault and it’s my topic today for my continuing series about defending domestic abuse cases.

Police refer to this as “mutual combat” but legally there is no real term for this in Texas.  The law in Texas calls it consent.

The Legal Definition of “Consent”

Use of force against another person isn’t criminal if the other person “effectively consented” or the person reasonably believed the other has “effectively consented.”  The conduct involved must be limited to bodily injury because a person cannot consent, as a matter of law, to aggravated assault (serious bodily injury).

“Effective consent” is defined in the negative.  We know what it’s not… Consent isn’t effective by reason of youth, mental disease or defect or intoxication.  Consent also isn’t effective if it was induced by force, threat or fraud.

So a person can be acquitted of assault — including domestic violence assault — if the jury is instructed on “consent” and the state fails to show beyond a reasonable doubt (1) the complaining witness did not ‘effectively consent’ to the assault and (2) the assault did not cause or threaten to cause serious bodily injury.

How Could this Possibly Apply in a Family Assault Situation?

An example I’ve given to clients countless times is this:  ever see two people stand toe to toe either in a bar or the high school gym?  What are they communicating to one another?  The answer is  BRING IT ON.  If I physically get in another person’s face, stare them down, and dare them to throw a punch at me — my view is I’ve invited physical contact.

And remember – what legally makes domestic assault is the affirmative finding of family violence done by a judge after either a person has plead guilty or a jury has convicted them of assault.  So all the legal defenses to assault are available to a person regardless of gender or family status.

Also many intimate relationships are reciprocally violent.  That is some couples fight one another on a regular basis and both partners are regularly the aggressor, the victim, or it’s indistinguishable.

Given this backdrop – the bar or schoolyard scenario can happen in a living room too.  It’s dysfunctional to be sure… but some couples engage in mutual combat.

Words enough cannot legally trigger self defense.  But words combined with physical manifestations of agreed contact are enough to trigger consent.

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


Domestic Violence Charges – Blog 10:  Asserting a Legal Defense to Assault

December 21, 2020

By Texas Criminal Defense Lawyer Jeremy Rosenthal


(972) 369-0577

There is no area in Texas criminal law where understanding how defenses work is more important than in assaultive cases.

The goal of today’s blog in my continuing series on defending domestic violence charges is to provide an analytical framework to help understand how defenses such as self defense, consent, necessity or even insanity fit in to and acquit someone in an assault case.

The Jury Charge

In law school they teach us to plan backwards for trial.  We start with what is known as a jury charge.  The jury charge is the 3, 4 or 10 pages of instructions given to the jury when they deliberate by the judge.

The main goal when you assert a defense in a criminal case is to have the judge instruct the jury that if your defense has enough merit – you win.  A defendant does not have to assert a defense – but if they do – it will not be in the jury charge unless there is evidence supporting the defense.

A jury charge in an assault case where defenses have been proffered can read like a tennis match.  If the prosecution has proven x, but because of the defense you believe y then you shall acquit the defendant.  Without the defense in the jury charge it would simply read “if the prosecution has proven x then you shall convict.”

General Defenses vs. Affirmative Defenses

Here’s the super confusing stuff – and I’ll make it as simple as possible.  Almost all defenses in an assault case will be an affirmative defense.

An affirmative defense relates to excused conduct and a general defense relates to an inability to understand one own actions.

Affirmative Defenses

Affirmative defenses require the defense to prove enough facts to the judge so that he/she puts it into the jury charge at the end of the trial.  Those facts usually admit the crime but offer a reason or justification (such as self defense, consent, or necessity).

If defendant is able to raise the affirmative defense, then the judge instructs the jury that the prosecution must DIS-prove the defense beyond a reasonable doubt.  This is a very high burden for the prosecutor to do.

So for a self defense case – the prosecution in addition to having to prove all of the basic elements of assault were proven beyond a reasonable doubt now has an additional set of elements they must disprove:  that it was self defense.

General Defenses

These typically include insanity, mistake of law, mistake of fact, duress and entrapment.  They all essentially go to “did the defendant know what they were doing was wrong” or in some instances was the defendant’s will simply over-powered.

The defense has the burden to prove in these cases by a preponderance of the evidence their defense is true.  The burden doesn’t shift to the prosecution unlike in affirmative defenses.

So Here’s How this Works:


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


Domestic Violence Charges – Blog 6: Impeding Breath or Circulation (Choking)

December 17, 2020

By Texas Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577


In 2009 the Texas Legislature carved out the specific new criminal offense of choking and made it a 3rd degree felony.  Texas Penal Code 22.01(b)(2)(B) is today’s topic in my continuing series on defending domestic violence charges.

The prohibition against impeding breath or circulation of the airway is legally unique insofar as it is a departure from the charge from being result-oriented and makes it conduct oriented.

Tex.Pen.C. 22.01(b)(2)(B) reads accordingly:

…the offense is committed by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person’s throat or neck or by blocking the person’s nose or mouth.

Choking is Hard to Prove

A challenge prosecutors and police have is choking is a hard offense to prove medically or physically.  Only 16% of cases present with major significant medical injury according to one study.  62% of cases present with no visible injury at all and 22% of cases had only minor injuries such as red marks or scratching.  The experts I’ve heard testify in the field claim it’s due to the soft tissue and muscle in the neck.

Things I See In Choking Cases

When police go to the scene of a domestic situation – they know the law and they know what evidence they need to make an arrest.  They fish for magic words they need to make an arrest…

“Did it cause pain…?”

“Did the contact offend you…?”

“Did it impede your airway…?”

Police know choking is a higher charge and they’re specifically looking for this.  It’s not uncommon, then, for us to see pictures of complaining witness’ necks with little or no evidence of trauma.

Blind Lumpers

Another trend I’ve noticed in DV cases are what I call “blind lumpers.”  I’ve even written an article on it published in Texas Criminal Defense Lawyer’s Voice for the Defense Magazine.

A blind lumper is an expert witness who doesn’t know any specifics of the case (blind), and they lump all person’s charged with domestic violence into one neat and convenient pile (lumpers).

Translation:  a medical professional takes the witness stand and says “I don’t know anything about this case… but just because there’s no evidence of choking doesn’t make him innocent.”

This type of testimony — while true — is mainly calculated to take evidence of innocence (no marks on a neck) and turn it into a tie.  Do you know what the neck of someone who didn’t get choked would look like?  It wouldn’t show any marks either.

Impeding the Airway is a Legally Quirky Charge

A final note about choking cases is this – because it’s not result oriented, courts find it difficult to square it with other assault oriented offenses.

Here’s what I mean – because assault charges are typically result based, if the prosecution can’t prove the higher level assault they can often still prove a lesser one.  For example if the prosecution alleges aggravated assault because of serious bodily injury – but at trial the jury only believes there was bodily injury then the jury could still convict defendant if given the option for what is known as a lesser-included offense.

Because choking is focused on manner in which the assault occurred – the prosecution risks an all-or-nothing allegation at trial.

*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.