Defending Injury to a Child Charges

December 26, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Being criminally charged with injury to a child can be Earth shattering.  

These cases come with all sorts of built-in hurdles such as self-assured prosecutors or CPS members, complications from ongoing divorces, and a lack of understanding of someone being accused.  Aggressive and skillful representation is a must.

Tex.Pen.C. 22.04 is called, “Injury to a Child, Elderly Individual or Disabled Individual.”  That law states in relevant part,

“A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or intentionally, knowingly, or recklessly by omission, causes to a child, elderly individual, or disabled individual:

“(1)  serious bodily injury (defined as ‘bodily injury that 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’);

“(2)  serious mental deficiency, impairment, or injury; or

“(3)  bodily injury (defined as ‘physical pain, illnes, or any impairment of physical condition’).

Here are several notes about cases of injury to a child — First is that these cases are highly subjective.  Standards such as intentionally, knowingly, recklessly or with criminal negligence are subjective enough.  If that weren’t enough, an injury sustained by a child can also be highly subjective in nature.  This means that police agencies in Texas as well as Child Protective Services (“CPS”) have very broad discretion in pursuing these cases.

Secondly, there are many defenses and affirmative defenses available to people accused of injury to a child in Texas.  The main defense is provided by Tex.Pen.C. 9.61 which allows the use of force, but not deadly force, against a child younger than 18 years of age (1) if the actor is the child’s parent or step-parent acting in loco parentis to the child (which includes grandparents, guardians, or any person acting by, through, or under the discretion of a court with jurisdiction over the child, and anyone that has the express or implied consent of the parent or parents of the child); and (2) when and to the degree the actor reasonably believes the force is necessary to discipline the child or to safeguard or promote his welfare.

Injury to a child can be anywhere between a First Degree Felony (5 to 99 years) to a State Jail Felony (18 months to 2 years State Jail) depending on how the offense was committed and on the nature of the injury.

Investigations of these cases can seem innocuous enough from the accused’s standpoint.  It isn’t uncommon for law enforcement or CPS to call and ask the accused to come and answer questions in an ‘informal’ setting.  Any person requested to give a statement to law enforcement or CPS about an injury to a child case should immediately contact counsel.

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

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Posted by Jeremy Rosenthal, Esq.

Does the Fact I’ve Never Been In Trouble Before Mean Anything?

October 26, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

One of the most common questions that I am asked is whether the countless years or decades of a clean-record counts for anything at trial.  The good news is that it does but theres lots to consider.

Texas rule of evidence 404 is a rule which discusses when character evidence is relevant, what limitations are on the types of character evidence may be admitted, and when character evidence may be appropriate.

Generally evidence of “a persons” character is not admissible at all to prove conformity therewith on a particular occasion.  The exceptions, though, tend to swallow the rule.

Tex.R.Evid. 401(a)(1)(A) allows the defense to proffer character evidence of the accused in a criminal case.  The same rule allows the prosecution to attack that character evidence if the defense “opens the door” by injecting character as an issue.

Remember — there are two possible phases to a criminal trial.  Guilt/Innocence and punishment.  Character evidence is wide-open in the punishment part of a trial.  I’m really focusing this article on the trickier part — guilt/innocence.

From a trial lawyers standpoint — proving up good character in the guilt innocence phase is always trickier than it may seem.  Remember that courts only allow evidence through the formal rules which means that good character will almost always have to be proven through a live witness of some sort.  That witness will be subjected to cross-examination… and depending on the facts, your trial attorney will have to do a cost-benefit analysis of whether it is worthwhile to prove-up character in light of the potential cost.

Let’s take a DWI case for example.  Let’s say that a person who was out that evening with the accused would testify that the defendant always calls a taxi if they thought they had too much to drink.  But let’s also say that person drank so much on the night in question himself that he doesn’t remember how much the accused had to drink.  That witness may add value to the case through his positive testimony about the defendant’s traits — but could ultimately hurt the case over-all in light of what he would reveal on cross-examination.

These are they types of decisions experienced criminal defense lawyers, dwi lawyers and dui lawyers must make on a routine basis.

*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 directly consult an attorney about any legal issue.

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Posted by Jeremy Rosenthal, Esq.

Jury Trials vs. Judge Trials

October 14, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy F. Rosenthal

(972) 562-7549

texasdefensefirm.com

Here is the equation as to how any criminal trial in Texas works.  The proper law + the facts = the verdict.

Judges always determine the appropriate law to apply.  Then the facts are applied to the law to reach the verdict.  A jury determines the facts, but if both parties agree — then the judge can determine the facts instead.  The latter is a known as a “bench trial” or “trial by Court” which is commonly known as a “TBC” in the courthouse.

The U.S. Constitution guarantees a criminal defendant a right by jury trial.  Generally speaking its the defendant’s choice whether to choose a judge or a jury.  Texas prosecutors have recently asserted that the State of Texas also has a right to a jury trial as well… and therefore, they argue, that the only way the parties can have a TBC is by agreement.  Their assertion is largely unchallenged even though it’s legally unclear.  Practically speaking, then, both parties agree to waive a jury.

Here’s a practical example of how a jury trial works — in an assault case where the defendant claims self-defense, the Judge will conduct the trial, impanel the jury, and decides what evidence is legally admissible.  Once the evidence is concluded, the judge will decide (1) if the evidence legally sufficient to support a conviction; (2) if the defendant legally raised self-defense; and (3) what jury instructions to give so that the jury understands how to decide the facts.  The jury then deliberates and reaches their verdict based on the jury charge.

For a TBC, the Judge merely listens to all the evidence, rules on objections, and then renders a verdict — often without much deliberation.

There are tons of variables to consider if you’re presented with the option of waiving a jury and asking a judge to decide the case.  The Judge’s history and reputation and obviously the strength of the case must be considered and weighed against the local jury pool.

Judges prefer TBC’s because they’re far more efficient than jury trials.  They’re far quicker, generally less formal, and don’t involve having to manage a jury pool.  Just because judge prefer it, though, doesn’t make it the right choice.

After all, a criminal defense lawyer isn’t in the rights waiving business!

*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 case you should consult an attorney directly.

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Posted by Jeremy Rosenthal, Esq.

Can the Victim Drop Assault Charges?

September 14, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

In a criminal case in Texas — not directly.  In a civil case — yes.

Assault charges can be brought two different ways in Texas — in a criminal court or (far less commonly) in a civil lawsuit.  A civil lawsuit can be brought by the alleged victim to recover money while a criminal charge is brought by the State seeking a criminal conviction on the accused’s record.  Civil cases can always be dropped by the person bringing the suit.

In a criminal action, the parties are the State of Texas and the accused.  The victim is not directly a party to the action and is really more accurately characterized as a witness.  An alleged victim can request that charges be dropped, but the prosecuting attorney does not have to honor that request.

Many prosecutors will ask an alleged victim for what is known as an “affidavit of non-prosecution” or an ANP for short if they don’t want to prosecute.  An ANP is a statement under oath which details the reasons for their not wanting to prosecute.

An alleged victim has potential legal exposure for making a false police report in the event they admit statements on their ANP that are inconsistent with what they originally told police.  For this reason, an alleged victim should seek counsel as well prior to doing an affidavit of non-prosecution (not the same lawyer defending the assault case — that would be a conflict of interest for the lawyer).

The Bottom Line

Assault cases — especially ones involving alleged family violence or spousal abuse — aren’t necessarily dismissed in Texas courts merely because the victim wants the case to be dismissed.  The matters are complicated and the alleged victim should seek a lawyer in addition to the accused having a lawyer where the alleged victim is seeking to ask for charges to be dropped.

*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 specific situation, you should consult an attorney directly.

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Posted by Jeremy Rosenthal, Esq.

Physician – Patient Privilege in Criminal Cases

September 13, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Texas Rule of Evidence 509 governs the physician- patient privilege.  As with all privileges, it acts to protect communications that are confidential between a physician and a patient “relative or in connection with any professional services rendered by a physician to the patient.”

Tex.R.Evid. 509(b), however, practically negates the physician- patient relationship in criminal cases.  That section bluntly says, “There is no physician-patient privilege in criminal proceedings.”

The only small exception under 509(b) is that communications to any person involved in the treatment or examination of alcohol or drug abuse by a person being treated voluntarily or being examined for admission to treatment for drug or alcohol abuse is not admissible in a criminal proceeding.  This is obviously to encourage people who need help for substance abuse to voluntarily get help without recourse.

Police and/or prosecuting agencies can and do regularly subpoena medical records in criminal cases.  Examples are blood samples taken during medical treatment after a car crash where alcohol or substance abuse is suspected.  Other examples include statements made by pharmacy personnel in the reporting or allegation of prescription fraud.

Federal law which protects patients privacy under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) has a recognized exception in Texas for law enforcement purposes when they are issued a grand jury subpoena.  This means that you can’t rely on HIPAA laws to protect your privacy with doctors depending on how the police or prosecuting agency try to attain medical records.

The bottom line — communications between patient and doctor are not legally protected in criminal proceedings. The privileges largely apply in civil cases, but not criminal.

*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 situation you should consult an attorney directly.

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