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.

The Presumption of Innocence

July 5, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 562-7549

The presumption of innocence in the United States stems from the 5th, 6th and 14th Amendments to the Constitution.  See Coffin v. United States, 156 U.S. 432 (1895).

Texas Code of Criminal Procedre Art. 38.03 is called  the “Presumption of Innocence” and states, “All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that he has been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at his trial.”  Also in a criminal trial, the judge and prosecutor have legal duties not to impair the presumption of innocence.  See Tex.Code.Crim.P. Section 2.01 and 2.03.

Despite these seemingly straightforward concepts and what seem to be airtight safeguards — studies have shown that the presumption of innocence is widely ignored and/or misunderstood by jurors.

What is worse is that clever prosecutors manipulate the presumption of innocence during phases of a criminal trial such as jury selection and closing arguments.  The twists, turns, and spin the prosecutors are trained to use is so subtile and seemingly docile — and often they themselves aren’t even aware they are doing it in the first place.  What is so unfortunate is that as the studies to which I’ve linked above suggest — jurors need very little persuasion to either ignore the presumption of innocence or badly misconstrue it.

A common tactic I’ve seen prosecutors use in felony trials such as theft, burglary or the distribution of drugs cases is to suggest to the jury panel that if there is little evidence of guilt in the case — it is merely because the accused is ‘good at being a criminal.’  The prosecutor suggests that their case is weak because it is the criminal defendant “that chose the time, place, and witnesses to the crime.”  In other words the person on trial is a criminal according to the State — whether they can prove it or not.  Clearly that is opposite of the presumption of innocence which suggests no evidence at all means the State hasn’t met their burden of proof and the accused should be acquitted.

Although most prosecutors won’t admit to this — one of the aspects they find the most frustrating about DUI and DWI trials is that the person on trial ACTUALLY GETS the presumption of innocence from jurors with similar backgrounds and experiences as the accused.  As this abstract readily points out — jurors need very little encouragement to allow pre-existing biases and prejudices wipe-away the presumption of innocence with the concept of congruence (which I understand to mean that once the jury learns certain background information of an accused person — such as occupation, age, income level, or race; they then draw negative inferences about the person in general).

With a DUI or DWI trial, the jury can readily identify with the defendant and so there is probably less chance the jury draws negative inferences from the accused’ profile — and the greater chance the accused is actually presumed innocent.

A common tactic used by prosecutors in a driving while intoxicated trial is to ask prospective jurors whether the person on trial “looks like a drunk driver” or “what does a drunk driver look like?”  Of course, the prosecutor readily points out that ANYONE can be a drunk driver (and it’s implied that even though this person looks innocent — they might be a criminal.)  Again, while prosecutors see this as an innocuous question — I see an underhanded swipe at the presumption of innocence.

The bottom line is that when hiring a criminal defense lawyer in Dallas or Collin County, you should select a trial lawyer that not only understands the presumption of innocence, but will fight the State’s underhanded attempts at undermining what is one of the most critical cornerstones of American justice.

*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 for any specific case you should consult an attorney directly.

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Texas Assault/ Family Violence Common Legal Issues

June 23, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Assault is governed by Texas Penal Code Section 22.01(a)(1).  That section provides that someone has committed the offense of assault if the person “intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse.”  At first blush, this statute looks scarily broad but in Dallas and Collin Counties in Texas, these cases are among the hardest to successfully prosecute.

What is the Definition of “Bodily Injury?”

Texas Penal Code 1.07(a)(8) defines “bodily injury” as physical pain, illness, or any impairment of physical condition.”  Again, scarily broad.  But not to worry.  There are plenty of strong defenses and other mountains the prosecution has to climb if they want to convict someone.

Self Defense

Self defense can absolutely be an affirmative defense in assault cases alleging “bodily injury.”  Section 9.31(a) defines self defense as stating in part, “a person is justified in using force against another when an 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 forces…”  While words enough are never alone to provoke a self-defense claim, it may be established liberally as well with the conduct of the victim.

Consent

A less prominent affirmative defense is consent.  A consent defense is just like it sounds — that the person assaulted agreed on being assaulted to the extent of causing bodily injury.  A person can never legally consent to aggravated assault or worse (causing serious bodily injury or the use of a weapon).  The classic law-school example of consent is where athletes (such as football players) routinely hit one another in the course of an event.  Another example could potentially be where the “victim” provokes an assault by inviting someone to hit them (perhaps by physically “bowing-up” to the accused).

Confrontation Clause Issues — Testimony of “Victim” is Usually Necessary

Though every case and factual circumstance is unique, the victim generally has to testify against the accused in an assault case to satisfy all the legal elements of the prosecution’s case.  The confrontation clause in the U.S. Constitution mandates that we get to face our accusers in open court.  Prior to 2004, the prosecution could successfully prosecute assault cases by calling police officers as witnesses to testify as to what the “victim” said at the scene even though the witness wasn’t in court.  Although that is technically known as “hearsay,” the court’s held that the statements usually fall within the “excited utterance” exception to the hearsay rule.

In 2004, a U.S. Supreme Court case called Crawford v. Washington, 541 U.S. 36 (2004) held (and I’m overly-generalizing) that a person’s right to confront accusers can over-ride some of the less established hearsay exceptions — such as an excited utterance.

In English, this means that unless the State can otherwise prove all the elements of their case through other witnesses (perhaps other people that witnessed the alleged assault), then if the victim does not testify, the prosecution’s case is probably going to be legally insufficient and will result in an acquittal.  As a note of caution, though, this rule of evidence can be un-intentionally waived by people that represent themselves or even by lawyers that don’t know what they’re doing.  You should also know that it is illegal to tamper with or otherwise intimidate a witness… and is frankly it’s a worse offense than the underlying assault charge itself.

Juror Attitudes

Prosecutors also have a hard time with assault cases for the reason that many jurors are hesitant to have the government get involved in the personal lives of others.  When they see a reluctant “victim” being forced to testify by the state or when they simply can’t tell who was really at fault in the altercation then they generally render the right verdict — which is NOT GUILTY.

Affirmative Finding of Family Violence

Perhaps an over-riding concern in a family assault case (whether it be a class c misdemeanor assault or a class a as discussed above) is the State’s attempt to hang on your record what is called an “affirmative finding of family violence.”  That finding is bad news.

Texas Family Code Sections 71.0021, 71.003, and 71.004 in conjunction with Penal Code 22.01(b)(2)(A) can cause an affirmative finding of family violence to enhance a second offense from a misdemeanor to a third-degree felony.  Simply because you get deferred adjudication does not mean this affirmative finding goes away.

In summary

People often make the mistake of under-estimating the degree of difficulty and the level of consequences of a family violence/ assault allegation.  Having a lawyer that knows what they’re doing is invaluable and can potentially save you mountains of headaches down the road.

*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 regarding any specific case, you should consult with an attorney directly.

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Posted by Jeremy Rosenthal, Esq.

Texas Possession of Marijuana Common Legal Issues

June 22, 2010

Texas Penal Code Section 481.121 makes the possession of marijuana a criminal offense.  Sounds simple, right… if there were drugs where you were and the police found them then you’re guilty, right?  Not exactly.  Remember, not only does the state have to prove beyond all reasonable doubt every element of this charge, but they may also have to prove whatever mechanism the used to attain the marijuana (the search) was lawful.

What is the Legal Definition of Possession?

Texas Penal Code Section 1.07(39) defines “possession” as “actual care custody, control or management.”  Proving this for the prosecution is harder than it may seem.  In other words, it’s not enough to prove that someone was merely in close proximity to the drugs.  The state must prove that the accused somehow ACTUALLY took some action to control the paraphernalia in question.  Take for example where a car with 4 passengers is pulled over.  A passenger in the back seat has marijuana in his pocket — gets nervous — and tosses the marijuana underneath the driver’s seat.  After an eventual search of the car – let’s assume the driver gets charged with marijuana possession.  The prosecution must still prove at trial that the driver exercised actual care, custody, control, or management of the marijuana in question.  If the only evidence is that the drugs were found near the driver, the driver in this scenario may be acquitted of possession of marijuana.

Were the Police Allowed to Search?

That is always a question which must be reviewed in great detail.  Everyone within our country’s borders are free from unreasonable searches and seizures based on the 4th Amendment to the U.S. Constitution.  Your remedy from an illegal search or seizure is through what is known as the exclusionary rule.  That rule blocks anything and everything attained illegally by police or the government from coming into evidence at trial.  With no evidence at trial, the prosecution loses because they have the burden of proof.

Though I could write about this all day, there are two main kinds of searches.  With or without a search warrant.  A search can be as simple as a pat-down by and officer or a full scale digging of a car or house.  Most searches are without a warrant and the law actually presumes those searches to be unreasonable.  The state must prove their reason to search fits within an exception by clear and convincing evidence if the defendant challenges the search.  A search warrant is presumed reasonable, but is more difficult and time consuming for the police to attain.  You can still challenge a search warrant if it was done improperly.

The word “illegal” with searches tend to throw people too.  Think of it more like an “illegal procedure” penalty in a football game and not some action that will get the police officer thrown in jail himself for doing it wrong.

Judges can and do frequently throw out illegal searches for drugs, marijuana, and other paraphernalia whether they are from cars, houses, and even illegal searches in schools.

Punishment Ranges — What Level Offense is it in Texas?

The punishment for possession of marijuana depends on the amount alleged to have been possessed though other surrounding circumstances can kick up the punishment range such as possession a school zone or possession with intent to distribute.  Otherwise the punishment ranges are as follows:

A usable quantity but less than 2 ounces is a class b misdemeanor;

More than two ounces but less than four is a class a misdemeanor;

More than four but less than five is a state jail felony;

More than five pound but less than 50 pounds is a third degree felony;

More than 50 pounds but less than 2,000 pounds is a second degree felony;

Over 2,000 pounds is a first degree felony.

Jeremy F. Rosenthal, Esq.

(972) 562-7549

*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 contact an attorney directly.

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The Attorney – Client Privilege

May 2, 2010

The attorney client privilege prevents an attorney from revealing confidential communications and other facts they have learned by reason of the attorney-client relationship.

For criminal cases in Texas, the attorney client privilege is controlled by Texas Rule of Evidence 503(b)(2) which is called the “special rule of privilege in criminal cases.”  That rule states, “in criminal cases, a client has a privilege to prevent the lawyer or lawyer’s representative from disclosing any other fact which came to the knowledge of the lawyer or the lawyer’s representative by reason of the attorney-client relationship.”

A confidential communication is defined by the rules as a communication “… not intended to be disclosed to third persons…”  I put the words in bold above to highlight the fact that the criminal privilege is even broader than the privilege in civil cases.  This means that the lawyer cannot reveal any communication not intended to be disclosed to third persons nor any other fact which came to the knowledge of the lawyer by reason of the attorney client relationship.

Here’s what this means in English for Texas criminal cases:  virtually everything your lawyer knows about the case (assuming he learned it from you or by investigating your case) is privileged.  The lawyer cannot be compelled by law enforcement or even a judge to disclose confidential information.  If you take the Texas rule to it’s logical extreme — even the mere fact that you visited with an attorney could be considered privileged information!  This goes for situations where you’re actually charged with a crime or even just the subject of an investigation.

The attorney-client privilege is an extremely important and powerful privilege for the reason that without it — an individual may never confide in their attorney critical information needed for their defense.  People charged with crimes can and do still feel tepid at times revealing information to their attorney.  Whether that be for lack of trust or for mere embarrassment — the law does everything possible to facilitate communication between you and your attorney.

As with practically everything in the law — there are exceptions.  An attorney may not aid the furtherance of a crime or a fraud and communications regarding the same are not privileged.  Also an attorney has an affirmative duty to report the abuse or neglect of a child or to report a situation where someone may be in immanent danger.  As a general rule, if the facts or disclosure is about something that has happened in the past in a criminal case — then it will almost always be privileged.

The attorney – client privilege is at the cornerstone of the lawyer – client relationship and is one of the fundamentals of our criminal justice system.

Jeremy F. Rosenthal, Esq.

(972) 562-7549

*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 your case you should directly consult an attorney.

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