Robbery

July 23, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Our mind’s eye tends to think of a typical robbery as a person holding up a bank or a convenience station with a gun and asking for all the loot.  In reality, the Texas robbery statute is far thinner and believe it or not, some robbery cases can be extremely difficult cases for the prosecution.

Texas Penal Code Section 29.02 governs robbery and under subsection (a), robber is committed where, “…in the course of committing theft as defined in Chapter 31 and with the itent to obtain or maintain control of the property, he; (1) intentionally, knowingly or recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.

One main reason why these cases present difficulties to the State is that there is no requirement under the law that the robbery be pre-meditated.  In other words, it is a common scenario for a “robber” to be someone that in the course of simple shoplifting gets into an altercation with a shop-owner.  So a person who merely intended to shoplift property from a store can walk-out being saddled with a robbery charge!  These present the prosecution with headaches because jurors think robbery charges in those circumstances may be a bit harsh.

Aggravated Robbery is committed under Penal Code Section 29.03 and differs from a simple robbery because the victim suffers serious bodily injury or the defendant “use or exhibits” a deadly weapon.

Robbery is a 2nd Degree felony punishable between 2 and 20 years in prison and a fine not to exceed $10,000; and aggravated robbery is a first-degree felony and is punishable between 5 and 99 years of prison and a fine not to exceed $10,000.

Punishment in these types of cases are often the greatest battles.  The Collin County District Attorney’s Office, for example, has policies which do not allow prosecutors to plea negotiate very much and have harsh prison recommendation for first-time defendants.

Getting a lawyer on a robbery case is important for both guilt-innocence and punishment phases of a trial.  Having a trial lawyer that knows how to show you as a human to the jury is critical.

*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 you should consult an attorney.

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Posted by Jeremy Rosenthal, Esq.

Defending Burglary Charges

July 7, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Texas Penal Code Section 30.02(a)(1) governs burglary.  That offense is committed where a person without the effective consent of the owner enters a habitation or a building (or any portion of a building not open to the public) with the intent to commit a felony, theft, or assault.

Burglary is a State Jail Felony if it is committed in a building other than a habitation, and is a 2nd degree felony if it is committed in a habitation.

While the statute may seem very air-tight on the surface, a bit of digging shows there are all sorts of potential legal issues with regards to what is or is not a burglary for any given set of circumstances.

An extremely difficult element for the State to prove in a burglary is identity if the defendant is arrested somewhere other than the place alleged to have been burglarized.  Rules restrict the prosecution’s use of co-conspirator testimony, and photo line-ups of accused people can also be overly suggestive and thrown out.

Another difficult element for the State to prove is often the element of intent to commit a felony, theft or assault.  The prosecution will invariably point to surrounding circumstances such as equipment brought by the accused and what the accused was alleged to have done.  Obviously a skilled criminal defense attorney can demand a jury acquit the accused where the only evidence is of entry into the habitation or building — but no evidence of the further intent.

Other defenses are apparent with just a bit of digging.  For instance the term “effective consent” is given a legal definition under Tex.Pen.C. 1.07(a)(19) and includes not only the owner of the building or habitation, but also a person legally authorized to act for the owner.

The terms “building” and “habitation” are also specifically defined by statute.  A building is any enclosed structure intended for use or occupation as a habitation or for some purpose of trade, manufacture, ornament, or use.  A habitation is a structure or vehicle that is adapted for overnight accommodation of persons.

Sadly, often burglary cases are often part and parcel of drug problems by the accused.  While an aggressive criminal defense lawyer is fighting the legal aspects of the case, part of the attorney’s role as counselor is to make sure that if there are collateral substance issues — that those are non-judgmentally addressed so that punishment can be mitigated if the case gets to a Judge or Jury.

*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 about any legal matter you should consult an attorney directly.

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Posted by Jeremy Rosenthal, Esq.