Sexual Abuse Charges – Blog 1: The 40,000 Foot View

November 22, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

jeremy@texasdefensefirm.com

Few topics get more visceral reactions than the mention of sex crimes and charges – particularly when they involve children.

I explain to jurors this is precisely what makes sexual abuse charges a Petri dish for injustice.  They involve very graphic and horrific abuse, if true.  There are highly emotional victims, witnesses, advocates, lawyers and even jurors trying to hash-out highly subjective claims, evidence, and psychology with life-altering consequences.

This is why sex abuse charges are in many ways the ‘wild west’ of criminal law.

Focusing on the Big Picture First

Today I’m starting a series of blogs about sexual abuse cases.  In condensing everything so it makes sense, I’m finding major gulfs between some of the more technical and legal aspects of sexual abuse cases and the clinical, practical and/or advocacy related issues.

There are common threads, patterns and themes which are common to abuse cases which span different types of legal charges and allegations.

For this reason, I think it makes sense to dedicate a series of blogs to the technical and legal aspects of child sexual abuse and then to discuss some of the over-arching common denominators to all of them and finally how we deal with those from the defense’ point of view.

Breaking it Down Further

In sum – I’m going to break down sex abuse law and advocacy into three main categories so hopefully it makes more sense:

Einstein – or the highly technical or legal aspects of sex abuse law;

Motzart – the highly subjective aspects of the often malleable evidence, psychology, and social aspects of the charges; and

Rocky – how we fight and advocate against the odds.

Blog Topics:

Einstein (What the Books Say)

Motzart (The Subjectivity and Emotion)

Rocky (How We Fight)

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

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Texas Criminal Law on Gambling

July 24, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Personal Gambling

Gambling is controlled by Tex.Pen.C. 47.02.   That statute states in relevant part, (a)  A person commits an offense if he: (1)  makes a bet on the partial or final result of a game or contest or on the performance of a participant in a game or contest; (2)  makes a bet on the result of any political nomination, appointment, or election or on the degree of success of any nominee, appointee, or candidate; or (3)  plays and bets for money or other thing of value at any game played with cards, dice, balls, or any other gambling device.

There are all sorts of defenses, however.  The defenses are under subsection (b) and are if; (1)  the actor engaged in gambling in a private place; (2)  no person received any economic benefit other than personal winnings; and (3)  except for the advantage of skill or luck, the risks of losing and the chances of winning were the same for all participants.

Additionally under subsection (c)  It is a defense to prosecution under this section that the actor reasonably believed that the conduct: (1)  was permitted under Chapter 2001, Occupations Code (bingo); or (2)  was permitted under Chapter 2002, Occupations Code (charitable raffle);

Gambling is a Class C Misdemeanor punishable by a fine up to $500 only.

Gambling Promotion

Tex.Pen.C. 47.03 covers gambling promotion.  It is also a technical statute and you should read it for any and all offenses and exception, but mainly that statute makes it an offense to (1) operate or participate in the earnings of a gambling place (defined as “any real estate, building, room, tent, vehicle, boat, or other property whatsoever, one of the uses of which is the making or settling of bets, bookmaking, or the conducting of a lottery or the playing of gambling devices.”);

(2) engage in bookmaking (defined as either receiving and recording or to forwarding more than five bets or offers to bet in a period of 24 hours; receiving and recording or to forward bets or offers to bet totaling more than $1,000 in a period of 24 hours; or a scheme by three or more persons to receive, record, or forward a bet or an offer to bet.)

Gambling promotion is a Class A Misdemeanor punishable by up to a year in jail and a fine not to exceed $4,000.

Keeping a Gambling Place

Tex.Pen.C. 47.04 makes it a crime for someone to knowingly use or permit another to use property owned or rented by him be used as a gambling place.  It is, however, an affirmative defense if (1) the gambling was in a private place; (2) no person received any economic benefit other than personal winnings; and (3) except of the advantage of skill or luck, the risks of losing and the chances of winning were the same for all participants.

Keeping a gambling place is also a Class A Misdemeanor.

Again, the statute itself is very technical, has other exceptions, defenses, and offenses which I may not have covered.

*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 situation you should consult an attorney directly.

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Posted by Jeremy Rosenthal, Esq.

Interference With Child Custody

July 18, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

As most people know, divorces may unfortunately turn very nasty. On occasion there are collateral criminal problems which can arise from a party’s conduct either prior to or after the court makes custody determinations for the children. While the blame may often seem trumped-up or baseless — being accused of interference with child custody is as serious as a heart attack because it’s a felony accusation in Texas. Also –as with any criminal prosecution –it is important to remember that the charges are no longer between you and your divorcing spouse; it’s between you and the State of Texas.

Texas Penal Code Section 25.03 is titled “Interference With Child Custody,” and that section reads accordingly:

(a) A person commits an offense if the person takes or retains a child younger than 18 years when the person:

(1) knows that the person’s taking or retention violates the express terms of a judgment or order, including a temporary order, of a court disposing of the child’s custody; or

(2) has not been awarded custody of the child by a court of competent jurisdiction, knows that a suit for divorce or a civil suit or application for habeas corpus to dispose of the child’s custody has been filed, and takes the child out of the geographic area of the counties composing the judicial district if the court is a district court or the county if the court is a statutory county court, without the permission of the court and with the intent to deprive the court of authority over the child.

(b) A noncustodial parent commits an offense if, with the intent to interfere with the lawful custody of a child younger than 18 years, the noncustodial parent knowingly entices or persuades the child to leave the custody of the custodial parent, guardian, or person standing in the stead of the custodial parent or guardian of the child.

(c) It is a defense to prosecution under Subsection (a)(2) that the actor returned the child to the geographic area of the counties composing the judicial district if the court is a district court or the county if the court is a statutory county court, within three days after the date of the commission of the offense.

(d) An offense under this section is a state jail felony.

The legal and factual scenarios and defenses are seemingly endless. Take, just as one example, a case prosecuted under 25.03(a)(1)… A prosecution under that section would probably include a complete order from the Divorce Judge which may or may not be written clearly enough to provide a party with sufficient guidance as to what is or is not permitted for times of custody (at least in the context of criminal liability.)

Also, Section (C) provides what is known as a “safe harbor,” where the offense was committed under 25.03(a)(2)… Which is to say that if the violating person returns the child within 3 days to the area or county controlled by the Court they have a defense to prosecution. This is to facilitate the return of children and to a lesser degree (I suspect) because the criminal justice system has a some biases against getting involved in the micromanagement of custody disputes and orders.

If you are being accused of interference with a child custody order, you should involve competent and qualified criminal representation at once. It’s not something to fool with.

*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 any specific situation you should consult an attorney directly.

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Posted by Jeremy Rosenthal, Esq.

Evading Arrest or Detention

July 17, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Evading Arrest or detention is governed by Tex.Pen.C. 38.04 and it is committed where a person “intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or detain him.”

Evading can be charged differently depending on the facts and resulting injuries someone may sustain (in a car accident for example during a chase). It’s a Class B Misdemeanor if done without a vehicle (by foot); a State Jail Felony if done by vehicle OR if the accused has a prior evading conviction; a 3rd Degree Felony if done with a vehicle AND a prior evading conviction or if during the offense someone sustains serious bodily injury; a 2nd Degree Felony if someone dies during the evading.

The Officer Can’t Chase You Just to Chase You

Though the statute seems very cut and dry, evading cases do have many defenses. For example, An officer must be in the process of a “lawful” arrest or detention. The law surrounding detention is the same law which crops up for drug cases or DWI cases… Meaning the officer must have articulable facts which indicate there is probable cause to suspect someone has committed an offense. If a peace officer lacks probable cause, then the dentition is invalid and the fact someone attempted to flee in and of itself doesn’t make it an offense. Acquittals can and do result from this issue. (For the record evading is never a good idea regardless of legal defenses!)

You Have to Know You’re Being Chased

Additionally the state still needs to prove beyond all reasonable doubt that the accused knew it was a peace officer from which he was fleeing and/or that the person heard or knew to stop from the officer’s lawful command. Defending these elements can be difficult, but a qualified defense lawyer doesn’t give the State a pass on any element.

*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 case you should directly consult an attorney.

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Posted by Jeremy Rosenthal, Esq.

Criminal Trespass

July 8, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 562-7549

Under Texas Penal Code Section 30.05, a Criminal Trespass is committed where a person enters or remains on or in the property of another, including residential land, agricultural land, recreational-vehicle park, building, or aircraft or other vehicle without effective consent and had either notice that the entry was forbidden, or received notice to depart but failed to do so.

Criminal Trespass can be either a Class C, B, or A Misdemeanor depending on how it is alleged to have been committed.  Generally speaking, it’s a Class B.  Here’s the statute itself and you can read the different punishment aspects.

Much like burglary, criminal trespass has many specific definitions and which thereby make the cases somewhat defend-able based on the particulars of each case.

For example, Tex.Pen.C. 30.05(b)(2)(C) states that one particular definition of receiving notice of not being on the premises is “a sign or signs posted on the property or at the entrance to the building, reasonably likely to come to the attention of intruders, indicating that entry is forbidden.”  This legal definition of notice, then, means that the police and State can try and charge someone with criminal trespass even where the person did not have actual notice entry was forbidden.  This can pose extreme difficulties to a prosecutor.

A skilled criminal defense lawyer can defend these cases which may otherwise seem cut and dry from the prosecutions point of view.

*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 any specific set of circumstances you should directly consult an attorney.

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Posted by Jeremy Rosenthal, Esq.

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