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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Illegal Searches are More Common Than You Might Think

December 11, 2020

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

One of the best weapons in defending many cases is the exclusionary rule.  That rule prevents illegally attained evidence from being used by the prosecution during trial.  The exclusionary rule is the citizens legal protection remedy from illegal police acts.

Isn’t it a Bit Much to Say the Police Acted Illegally?

Think of the word ‘illegal’ in terms of a penalty during a football game such as ‘illegal procedure.’  The word ‘illegal’ has a much lighter connotation when we know it’s just a 5 yard penalty for a player moving the wrong direction before the snap.

Calling a search or particular police action ‘illegal’ is really no different.  As the accused, you’re merely saying there was a foul committed without regard to wether it was intentional or severe.  But the rules are the rules and everyone has to play by them.

Motion to Suppress

A motion to suppress the evidence is a request for the judge to trigger the exclusionary rule and render the illegally attained evidence unusable.  The most common legal grounds are the 4th Amendment to the US Constitution prohibiting illegal search and seizure and Texas Code of Criminal Procedure Article 38.23.

Illegal Searches Can’t be Very Common, Right?

They’re more common than you think.  You have to remember civil rights cases from the 1960’s and 1970’s still have a large imprint on search and seizure law.  The courts are uncomfortable with traffic stops and/or searches based on little more than hunches because those were rightly exposed as profiling.  Though today’s police might also include teenagers or people who have an alternative appearance in addition to racial minorities – there isn’t much of a difference under the law.  Profiling is profiling.

Articulable Facts vs. Subjective Opinion

You also have to remember police in targeting certain groups are often aggressive in their approach.  Police need to be able to articulate the facts which justify traffic stops and continued roadside detentions.  As an example a police officer saying he stopped a car because “he just knew they were up to no good” isn’t going to fly.  It’s a hunch and courts don’t like that.

Closer examples might include thin and subjective reasoning for keeping someone detained at a routine traffic stop – nervousness, the time of day/ night, or even labeling the area of the stop as ‘high crime’ with little or no proof.  Courts have repeatedly said these types of justifications are akin to multiplying zeros when it comes to articulable facts.

Articulable facts, on the other hand, might include “the driver was going 58 in a 45.”  Or the driver smelled like alcohol, said he was on his way to Dallas but was driving the opposite way.

So where an officer can plainly, quickly, and obviously explain the probable cause – the better chance they have of keeping a detention legal.  The more they rely on opinion and conjecture – the more problems they might have explaining it later.

Again, police know they are fighting crime and doing great things by keeping drugs, guns, and drunk drivers off the streets.  They will often push and test the rules for reasons they think are justified.

The end result may be that often they have mis-stepped.

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

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Posted by Jeremy Rosenthal, Esq.

Sexual Abuse Charges – Blog 17: Preparing for Punishment and Mitigation

December 8, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Criminal trials are bifurcated.  This means there are two phases.  The first phase is guilt/ innocence and in the event of a guilty verdict then the second phase is a punishment phase.  The punishment phase can be either before a judge or a jury.  The defense is legally and ethically required to prepare for both.  Preparing for punishment is today’s topic on my continuing series of blogs about sexual abuse charges.

Losing or Pleading Guilty on a Sexual Abuse Charge

Many defense lawyers talk like pro wrestlers.  We talk about how tough we are and how we rip the opponent from limb to limb.  But the fact is we come in second place in our profession more than we’d like and plea bargaining is a critical aspect of defense work.

With the punishments for sexual abuse being as stiff as they are – we always have to keep in mind the possible second phase of the trial.  We have to work just as hard preparing for the possible punishment phase as we do the guilt/innocence phase.

In sexual abuse cases – particularly with child victims – plea bargaining is often not a major component.  This is because the plea offers can be so high that there is either no reason to seriously consider them or if the prosecution wants such a high prison sentence then on our side we may as well go down fighting.  But it never hurts to research, learn and develop mitigating facts either for punishment or on the off-chance we can plea bargain to lower charges.

What is Mitigation?

Mitigation means learning and proving facts which lessen punishment.

Mitigation is a difficult task in a sexual abuse case for a number of reasons.  There is a victim who has suffered horrific abuse which has the potential to emotionally and psychologically scar them for life.  Sex is still — and will always be — a taboo subject for many folks too.  Thus, many folks don’t understand criminal sexual dysfunction and aren’t interested in understanding it.  Another hidden factor is many jurors want to prove to other jurors how tough and intolerant they are of sexual abuse too.

The best mitigating evidence is what I call “three pronged.”  That is it accomplishes the following:

  • It acknowledges the abuse and thus helps the victim heal;
  • It explains underlying causes of the abuse;
  • It provides reason and hope the defendant can conform their behavior in the future.

Examples of Mitigating Facts in a Sexual Abuse Case

A saying I like is “hurt people hurt people.”  Many of the mitigating factors we look for are along those lines.  Examples could include:

  • The defendant was sexually abused themselves;
  • the defendant suffers from some mental deficiency;
  • the defendant suffers from some type of developmental deficiency;
  • the defendant suffers from some type of psychological deficiency;

Another key component of mitigation in sexual abuse cases are evaluations from licensed sex offender professionals which use empirical data to assess the degree of risk and the underlying causes of the dysfunction.  The evaluation can include a prognosis and discuss if any type of treatment will help the accused.

Examples of Mitigation the Prosecution Tears Through

Mitigation and preparation for punishment has to run deep.  There are some cases where the defense parades all of their friends and family to testify what a great person they are and hope it helps to lessen punishment.  I’m not against giving the jury a full picture of the accused’s life but doing a witness parade without something deeper allows the prosecutor to prove-up their narrative the defendant simply has everyone fooled.

Another poorly conceived punishment strategy is to tell the jury they got it wrong in the guilt/ innocence phase.  Don’t get me wrong… there is nothing worse to me than fighting like hell on a case I strongly believe in only to have a jury reject us.  But we only make matters worse by blaming them in a punishment phase.

*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 10: How Most Sexual Abuse Investigations Work in Texas

December 1, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

Today’s topic in my continuing series on sexual abuse is the process for investigations in Texas.  Sexual abuse allegations typically follow a different pattern than investigations for things such as property crimes, drug crimes, or even other crimes against persons like robbery or murder.   This is because many Texas counties have built their own unique infrastructure specifically designed for sexual abuse cases.

Children’s Advocacy Centers

It’s hard to understand the investigation process in an abuse case without understanding a Children’s Advocacy Center (“CAC”).  A CAC is a combined law enforcement initiative.  It’s a central facility and organization where different police agencies can pool their resources under one roof specifically for the investigation and prosecution of crimes against children.  The CAC houses detectives along with other professionals who work with children in an effort to assist in criminal investigation and prosecution.

The CAC typically has liaisons with prosecuting agencies such as District or County Attorneys and it is not unusual for them to “roundtable” their cases where both prosecutors and law enforcement are present.  Most of the professionals who work directly with the children or the accused also testify in court on a routine basis.

My understanding is most, if not all, Children’s Advocacy Centers are non-profits under 501(c)(3) of the tax code.  Many testifying from the CAC are quick to point this out to a jury.  I argue to juries this claim is true for tax purposes but is a bit misleading because it leaves the impression the CAC is a neutral fact-finding group.  The truth is the Children’s Advocacy Center is really just a very unique police station.

What the Advocacy Center Does When they Get an Allegation of Abuse

Allegations of abuse (both physical and sexual) probably hit the CAC from all angles.  It could be a referral from Child Protective Services (CPS), a call to the police from anywhere within the county, or potentially they are even directly contacted by victim’s parents.

Forensic Interviews of the Complaining Witness

It’s very common for the CAC to conduct what is known as a forensic interview of a child they believe to have been sexually or physically abused.

A forensic interview is where a person sits down with a child and asks them open-ended questions and passively steers the conversation to to talking about the alleged abuse.  The interviewer does their best not to show judgment, approval, or anger towards the child’s claims.  The interviewer also does their best not to inject their own terms, phrases, or ideas into the conversation.

The purpose of the forensic interview is part human-polygraph and part legal strategy.  The forensic interviewer typically testifies as an “outcry” witness later in trial.

Suspect Interviews and Interrogations

It’s also common for a suspect to be brought to a CAC for an interrogation.  Perhaps this is because it is less daunting to lure a suspect into “Children’s Advocacy Center” than it is to a police station.  Many of these situations end with the suspect leaving in handcuffs whether or not the police get a confession.  Then again, I’m sure a suspect or two have managed to talk their way out of trouble too (but no lawyer who knows what they are doing will ever advise you to attempt this on your own).

Cross-County or State Investigations

It’s also common for CACs in different locations to coordinate with one another when they need to.  For instance if a child has since moved since the incident or allegation of abuse – the advocacy center where the child now lives may conduct the forensic interview(s) and/or interrogations of suspects.

Decision Making and Prosecution

The CAC staff and personnel go through their decision making process — whatever that may consist of — and they take whatever action they deem necessary.  That could consist of referring the case to a grand jury for prosecution, more investigation, or not proceeding with charges against someone accused.

Optimally an accused gets a lawyer involved as soon as they know the wheels are in motion at the Children’s Advocacy Center for a prosecution.  The lawyer can help talk “apples to apples” with the CAC detectives and try to do their best protect their client.

Of course, ultimately in America decisions about guilt and innocence aren’t made behind closed doors at a roundtable which doesn’t include the accused… which is why we see so much of advocacy centers and their personnel in the courtroom.

*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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Sexual Abuse Charges – Blog 7: The Confrontation Clause

November 28, 2020

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

I’m continuing my series of blogs today on sexual abuse charges.  I’ve broken down the categories into three:  the technical or legal components, the subjective nature of the evidence, and finally the advocacy related topics from the defense perspective.

Today I’m talking about the importance of the confrontation clause under the sixth amendment of the US Constitution to sexual abuse charges which is a common denominator in any sexual molestation charge.

What is the Confrontation Clause?

Your right to confront means the right to cross examine your accusers in open court.

I’m continually amazed by the depth of human intuition and understanding of the framers of our constitution.  Even back in 1789 they seemed to know not just the mob mentality of “the good guys” who prosecute or bring charges – but also some of the mental laziness which comes along with it.  What I mean is asking an accuser “what happened…” followed then by “and then what happened…” and “what happened after that…” doesn’t necessarily get you to the truth.

Cross examination allows the questioner to ask pointed, leading questions to state’s witnesses – questions the accused or witnesses from the state may not want to answer yet are required to do so.

One of my favorite quotes about cross examination:

Cross-examination is beyond any doubt the greatest legal engine ever invented for the discovery of truth … Cross-examination, not trial by jury, is the great and permanent contribution of the Anglo-American system of law to improved methods of trial-procedure.

– John Henry Wigmore

How Does the Right to Confront Impact Sexual Abuse Cases?

Your right to confront means the accuser likely has to testify in almost any case.  There are several rules in place in particular for cases involving child-witnesses.

  • The Testimony Has to Be Live

Courts have been clear:  the right to confront means the right to confront before a jury.  In fact, many of the opinions involving child sexual abuse cases where the prosecution has wanted to have a child testify via closed-circuit television are now particularly applicable as authority during the COVID-19 crisis.  Legally the consensus is a “Zoom” or virtual trial would violate these precedents set by child sexual abuse cases.

  • Outcry Laws

The prosecution is allowed to call witnesses known as “outcry” witnesses.  An outcry witness is any person over 18 years old who was the first adult to hear of the sexual abuse claim from a child.  Courts have construed outcry as a “process” so it’s not uncommon to have several outcry witnesses – some of whom are law enforcement interviewers – all come and testify in an effort to fortify the child’s claim.

An outcry witness can even contradict a child in cases where a child recants an outcry.

One important concept about an outcry witness is they can never replace a child witness altogether.  If the child witness does not or otherwise cannot legally testify – neither can the outcry witness.

  • A Child Witness Must be Competent to Testify

All witnesses have to be “legally competent” to testify.  Texas Rule of Evidence 601(a)(2) deals with children and the judge can examine them to see if they have “sufficient intellect” to testify concerning the matters at issue.  If the court determines the child does not have the ability to testify – then again – they are “unavailable” for confrontation rules and the outcry witnesses cannot replace them.

When is it Not Necessary for a Child Witness to Testify During a Sexual Abuse Case?

The prosecution is tasked with proving each element of a case beyond a reasonable doubt to the finder of fact (either a judge or a jury).  It would not be necessary for a child to testify where the elements of the case can be established through other witnesses with first-hand knowledge of the events – typically eye witnesses but also potentially medical experts if there is sufficient medical evidence in any particular case.

*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.

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