Domestic Violence Charges – Blog 2:  What is an Assault?

December 13, 2020

By Texas Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

To understand domestic violence charges, it begins with understanding their main legal components.

There is an assault and along with the assault, the prosecution attempts to seek an affirmative finding of family violence.  The law and ingredients of assault itself do not change merely because of the relationship of the accuser and the accused.

My goal today is to give a very broad perspective on the assaultive component exclusively so the readers can understand generally how these codes work together in my continuing series about domestic violence charges.  Assault cases, however, each have unique nuances which could take them out of some of my broad generalizations.

Assault is a Result Based Offense

All crimes have what are known as elements – or units of proof.  Elements are a checklist of everything which must be proven to a jury beyond a reasonable doubt if the State is seeking a conviction.  Assault is generally covered by Texas Penal Code Chapter 22.  The assault family of criminal charges are easy to understand because with only a few exceptions – every element is the same except for one.  The element which is different is the result or what type of harm the assault inflicts.

The elements of assault in Texas are:

  • The defendant (identity);
  • on or about a certain date;
  • in the county where venue is sought;
  • in the state of texas;
  • Knowingly, intentionally or recklessly caused;
  • Some type of harm –
    • Offensive contact (class c misdemeanor – fine only)
    • Bodily injury (class a misdemeanor – up to 1 year county jail)
    • Serious bodily injury (2nd degree felony – 2 to 20 years TDC)
    • Death (Murder has it’s own family of charges – but homicide is essentially assault which causes death).

An example I give my clients is this:  Let’s say I punch someone in the arm.  If it just annoys the victim then I’ve committed a class c offensive contact assault.  If it causes them to say ouch then I’ve committed a class a assault with bodily injury.  If the punch causes them serious bodily injury then I’ve committed a 2nd degree felony (aggravated assault) and if the punch causes them to die, then I’ve committed some type of homicide.

The action remains the same – and only the result of the action is different.  But it is the result which dictates the level of charge hence assault is a result based offense.

Further Defining the Degrees of Harm

Offensive contact is legally defined as contact which would be considered offensive or provocative.  An example could be spitting on someone.  In reality we see “offensive contact” in cases where the police don’t think much of an assault so they list some type of grabbing or pushing as “offensive” rather than causing bodily injury.

Bodily injury is legally defined as physical pain, illness, or any impairment of physical condition.  Most domestic violence arrests fall in this category.

Serious bodily injury is defined as injury which creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.

Slight variations on Assault General Rules

A few charges were crafted differently by the legislature in Texas.  I’ll cover those later on in this series as well but assault by threat, assault by impeding breath or choking, and aggravated assault with a deadly weapon are also assault offenses but those are defined by the manner in which they are committed in addition to the result.

Assault Charges Allow for the Same Defenses

I’ll be discussing defenses to assault charges later in this series too.  But it is worth noting that all of the defenses to assault such as self defense or consent are to some degree applicable regardless of the result.

*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.

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Sexual Abuse Charges – Blog 15: What Advantages does Defense Have?

December 6, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

jeremy@texasdefensefirm.com

The short answer to what advantages the defense has over the prosecution in sexual abuse charge is this:  Not many.

Prosecutions for sexual abuse are like freight trains headed towards our clients.  But the Defense does have an advantage here and there.  It goes without saying we have to maximize those advantages is we want a chance.  What few advantages an accused has are the topic of today’s article in my continuing series of blogs on sexual abuse charges.

Unilateral Discovery

The biggest advantage the defense enjoys is unilateral — or one way – discovery.  This means we are entitled to virtually the entire prosecution’s file but the prosecution is not allowed to see ours nor are we required to disclose anything other than if we intend to call expert witnesses.  The Statute controlling discovery in a criminal case is Tex.Code.Crim.Proc. 39.14.

Unilateral discovery is critical for defense work.  I don’t know if my client is innocent or guilty when they walk in my door regardless of what they tell me happened.  I wasn’t with them at the time of the crime or accusation.

But let’s say I was worried anything I learn about my case was subject to me handing over to a prosecutor.  I wouldn’t interview witnesses for fear they’d say damaging things.  I wouldn’t ask for forensic tests to be done for fear it could show my client is guilty.  I wouldn’t have my client take a polygraph test or psychological evaluation for fear I’d have to disclose damaging evidence.

In short – if discovery was reciprocal Defense lawyers simply couldn’t do their job.  We would hide from learning facts instead of aggressively investigating a case.  Clients wouldn’t confide in us the truth and they would see coming to their own lawyer as just giving the prosecution more evidence.

So with unilateral discovery – if we do learn damaging facts then it stays in my file.  To do otherwise would essentially degrade not only the attorney-client relationship but my entire ability to fight for someone’s innocence.

We Have the Ability to Know the Full Story – They Know Half

Along the lines of unilateral discovery – another advantage we have on the defense side is we have the ability to get our side of the story plus theirs.  We already get the state’s file as I discussed above.

Once the accused has a lawyer involved – the prosecution and police’s ability to learn our side of the story is largely cut-off because they are not allowed to talk with the accused.

In cases where the police get a confession – they often have enough of an accused’s side of the story to make it extremely daunting.

Police know interviewing a suspect is a balancing act.  They don’t want to set off any alarm triggers with the accused which will cause them to get a lawyer involved – because that will effectively end their ability to learn information from them.  On the other hand they usually very much want a confession so most interviews are geared towards that goal alone.

We have the ability to sit with our client for hours at a time to learn about witnesses, facts and lines of defense  law enforcement doesn’t know because they were never able to interview the accused or they weren’t interested in asking because it wasn’t on their radar or it didn’t help them get a confession.  We also have the benefit of having friendly witnesses come to us too who don’t want to talk with the prosecution.

We Know Their Playbook – They Don’t Know Ours

Several blogs in this series have dealt with common prosecution tactics in sexual abuse cases.  We have the advantage of knowing how they often take a one-size fits all approach which includes their common arguments and even many of the same witnesses and their tendencies.

The prosecution might know certain experts we use and be prepared for them – but beyond this, they really might not have much of a clue how we intend to defend any particular allegation.

Ex Parte Funding

Defendant has the ability in many cases to ask the court for funds to secure either investigators or experts in Texas if the accused is legally indigent.  This is true whether or not counsel is retained or appointed.  Ex Parte means the defendant gets to approach the judge without the prosecution knowing.

Asking for funding for investigators or experts in fields such as psychology, computers, DNA or any other discipline isn’t so much an advantage as much as it allows defense to offset some of the prosecution’s massive advantage in these areas.

Work Ethic

It goes without saying the harder we work – the luckier we get.  The prosecution and law enforcement are working very hard but we can always out work them.  Make sure your lawyer is doing that.

*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.

 

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Sexual Abuse Charges – Blog 8: Double Jeopardy

November 29, 2020

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Today I’m covering an extremely technical legal aspect of sexual abuse cases which tends to be problematic for the courts – double jeopardy.  For the 40,000 foot view of all my blogs in the sexual abuse categories you can read here.

Why is Double Jeopardy Such a Headache in Sex Cases?

Double jeopardy has different applications.  It prevents folks from being put on trial twice for the same crime.  It also prevents defendants from being convicted and/or sentenced twice of the same crime.

There is a danger defendants are getting convicted and sentenced multiple times for the same singular criminal act simply because our legislature has written so many over-lapping criminal statutes.

For example (and I apologize in advance, as always, for the graphic nature of the subject matter), let’s say there is an act of molestation against a 13-year old which includes the actor causing genital to genital contact of the victim:

In that instance the following criminal offenses have been committed:

  • Indecency by exposure (2-10 years TDC)
  • Indecency by contact (2-20 years TDC)
  • Aggravated Sexual Assault of a Child (5-99 years or life).

But did the legislature intend for there to be three distinct punishments or just one?  If the answer is three punishments then a person could be sentenced to up to 129 years in prison.  We hear these type of sentences in other States, but not Texas.

This is a routine challenge for prosecutors to properly legally strategize as well as Courts and defense lawyers to make sure these things are properly legally handled.

Prosecutors obviously don’t want a defendant acquitted merely because they fail to prove the highest possible charges.  It’s a common tactic for prosecutors to “plead in the alternative” or to plead lesser charges as well as the higher charges for that very possibility.

But here’s the danger for the prosecutors – they risk having some of their good convictions vacated on appeal if those convictions punish someone twice for the same distinct criminal act.

Lesser Included Offenses

One of the challenges is because of what are known as “lesser included offenses” or “lesser included.”  A lesser included means a charge within a charge.  For example, if the prosecution alleges theft over $100 but less than $750 – but at trial it is shown the item stolen was only worth $98 – then defendant may be guilty of the “lesser included” charge of theft under $100.

It’s unfortunately not as clear-cut in sex crimes with regards to “lesser included” offenses.  This is because the statutory scheme by the legislature simply didn’t draft the offenses the same way theft charges or assault charges are drafted.

The test for whether a charge is a “lesser included” offense is if one charge contains an element (a required unit of proof) which the potentially greater charge does not.

Areas Where the Law Gets Extremely Messy

One of the distinct problems with sexual abuse cases is there tend to be often not only multiple allegations of different acts of abuse – but those acts are often alleged to have been committed on different dates and frequently at different places.  Because these cases deal with children who aren’t always the best at communicating the abuse they’ve suffered to the authorities, the courts and lawyers dealing with the cases have a hard time sorting out things too.

Often a prosecutor can charge the defendant with continuous sexual abuse of a child – which tends to “clean up” and legally simplify the charges and the jeopardy issues.  Then again, it’s hard to blame a prosecutor, too, for simply alleging every charge they can articulate in every different way so as to make sure the defendant is convicted.  But the prosecutor may be opening the door to double jeopardy issues down the road on appeal if they do so.

Why Double Jeopardy is an Important Issue

The way a case is charged by the prosecutor affects everything from plea negotiation, preparation of the defense and even frequently post-conviction if the defendant is seeking an appeal.  Sorting out and quantifying the legal impact of the prosecution “throwing the book” at your client is simply part of defending these types of abuse cases.

*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.

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