Sexual Abuse Charges – Blog 8: Double Jeopardy

November 29, 2020

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Today I’m covering an extremely technical legal aspect of sexual abuse cases which tends to be problematic for the courts – double jeopardy.  For the 40,000 foot view of all my blogs in the sexual abuse categories you can read here.

Why is Double Jeopardy Such a Headache in Sex Cases?

Double jeopardy has different applications.  It prevents folks from being put on trial twice for the same crime.  It also prevents defendants from being convicted and/or sentenced twice of the same crime.

There is a danger defendants are getting convicted and sentenced multiple times for the same singular criminal act simply because our legislature has written so many over-lapping criminal statutes.

For example (and I apologize in advance, as always, for the graphic nature of the subject matter), let’s say there is an act of molestation against a 13-year old which includes the actor causing genital to genital contact of the victim:

In that instance the following criminal offenses have been committed:

  • Indecency by exposure (2-10 years TDC)
  • Indecency by contact (2-20 years TDC)
  • Aggravated Sexual Assault of a Child (5-99 years or life).

But did the legislature intend for there to be three distinct punishments or just one?  If the answer is three punishments then a person could be sentenced to up to 129 years in prison.  We hear these type of sentences in other States, but not Texas.

This is a routine challenge for prosecutors to properly legally strategize as well as Courts and defense lawyers to make sure these things are properly legally handled.

Prosecutors obviously don’t want a defendant acquitted merely because they fail to prove the highest possible charges.  It’s a common tactic for prosecutors to “plead in the alternative” or to plead lesser charges as well as the higher charges for that very possibility.

But here’s the danger for the prosecutors – they risk having some of their good convictions vacated on appeal if those convictions punish someone twice for the same distinct criminal act.

Lesser Included Offenses

One of the challenges is because of what are known as “lesser included offenses” or “lesser included.”  A lesser included means a charge within a charge.  For example, if the prosecution alleges theft over $100 but less than $750 – but at trial it is shown the item stolen was only worth $98 – then defendant may be guilty of the “lesser included” charge of theft under $100.

It’s unfortunately not as clear-cut in sex crimes with regards to “lesser included” offenses.  This is because the statutory scheme by the legislature simply didn’t draft the offenses the same way theft charges or assault charges are drafted.

The test for whether a charge is a “lesser included” offense is if one charge contains an element (a required unit of proof) which the potentially greater charge does not.

Areas Where the Law Gets Extremely Messy

One of the distinct problems with sexual abuse cases is there tend to be often not only multiple allegations of different acts of abuse – but those acts are often alleged to have been committed on different dates and frequently at different places.  Because these cases deal with children who aren’t always the best at communicating the abuse they’ve suffered to the authorities, the courts and lawyers dealing with the cases have a hard time sorting out things too.

Often a prosecutor can charge the defendant with continuous sexual abuse of a child – which tends to “clean up” and legally simplify the charges and the jeopardy issues.  Then again, it’s hard to blame a prosecutor, too, for simply alleging every charge they can articulate in every different way so as to make sure the defendant is convicted.  But the prosecutor may be opening the door to double jeopardy issues down the road on appeal if they do so.

Why Double Jeopardy is an Important Issue

The way a case is charged by the prosecutor affects everything from plea negotiation, preparation of the defense and even frequently post-conviction if the defendant is seeking an appeal.  Sorting out and quantifying the legal impact of the prosecution “throwing the book” at your client is simply part of defending these types of abuse cases.

*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.


Sexual Abuse Charges – Blog 6: Indecency With a Child by Exposure

November 27, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.texasdefensefirm.com

Today we’ll talk about the basic law of indecency with a child by exposure in my continuing blog series about sexual abuse charges.  It goes without saying sexual abuse is an incredibly complex topic in every way – so you can reference this blog as an index to the others including this one.

What is Indecency By Exposure?

This is where a person either exposes themselves to a child or causes the child to expose themselves to any person.  The lynchpin to the exposure being a crime is it must be done with “intent to gratify or arouse any person.”  See Tex.Pen.C. 21.11(a)(2).

Like with Indecency by contact – the legislature felt it better for a jury to decide which situations constituted an offense and which didn’t.

Indecency by exposure is considered an act of sexual abuse for the purposes of the “continuous sexual abuse of a child” statute.

The “Romeo and Juliet defense” is available for indecency by exposure if the actor is not more than three years older than the victim and the victim is 14 years or older.

Sex Offender Registration – A Major Difference

One major difference between indecency by exposure and indecency by contact are the sex offender registration requirements under Chapter 62 of the Code of Criminal Procedure.  Indecency by exposure triggers a ten-year registration instead of a lifetime registration.

*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.

 


Texas Law on Murder and Homicide: 101

November 19, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

A person causing the death of another can be prosecuted in a number of different ways with vastly different punishment ranges in Texas – though they are all felonies in one form or another.

Murder and homicide are legally very similar to assault the main difference where the result of defendant’s actions are death instead of injury.

First Year Law School on Murder

In first year law school criminal law they teach to follow the “mens rea” which is latin for mental state when it comes to murder or homicide.  Premeditation (or lack of pre-meditation) is the single biggest factor in how murder is prosecuted.

The general provision for Texas Criminal Homicide is simple enough though the deeper you get into Texas murder law the more complex it becomes.

Tex.Pen.C. 19.01 TYPES OF CRIMINAL HOMICIDE

(a) A person commits criminal homicide if he intentionally, knowingly, recklessly, or with criminal negligence causes the death of an individual.

(b) Criminal homicide is murder, capital murder, manslaughter, or criminally negligent homicide.

Murder

Murder is committed where someone knowingly or intentionally causes the death of an individual under Tex.Pen.C. 19.02(b).

Sounds legally simple enough but remember to follow the “mens rea.”  If there is “sudden passion” which resulted in the homicide then it carries a lesser punishment.  Tex.Pen.C. 19.02(c).

Also there is a concept called “felony murder” which means if you are committing a felony (like robbing a bank or engaging in a car chase) and someone dies – it’s murder as well.  Tex.Pen.C. 19.02(b)(3).

Capital Murder

Capital murder is murder plus an aggravating factor.  See Tex.Pen.C 19.03 for a full list but it generally includes:

  • The murder of a public servant such as peace officer or firefighter;
  • Murder as a part of another felony act such as kidnapping, burglary or sexual assault;
  • Murder for hire/ solicitation;
  • Murder of a child.

Capital Murder can either be punished by death in certain instances or by automatic life without parole.

Manslaughter

Manslaughter is committed where the person recklessly causes the death of another.  It can often be vehicular in nature.  It can also often involve intoxication.  Manslaughter is a 2nd degree felony punishable by 2-20 years of prison.

Reckless is where a person “…is aware of but consciously disregards a substantial and unjustifiable risk.”  Tex.Pen.C. 6.03(c).

Criminally Negligent Homicide

Where criminal negligence causes a persons death – this statute can be applicable.  This is known as a “state jail felony” punishable between 180 days and 2 years of prison.

Criminal negligence is basically when a person “…ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur.”  Tex.Pen.C. 6.03(d).  It can often be vehicular in nature too.

*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.

 

 


How the Michael Morton Act Overhauls the Texas Criminal Discovery Process

May 17, 2013

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Governor Perry signed the Michael Morton Act into law on May 16, 2013.  It’s intent is to broaden the amount and ease with which a criminal defendant is entitled to access information about a case.  The law goes into effect on January 1, 2014.

You can read the specific changes made to Texas Code of Criminal Procedure 39.14 here.

“Open-File Policies”

Though the effects of new legislation are never known until the law is put into practice and courts have had a chance to wrestle with the issues — this new law mandates a de facto “open-file policy” for all District and County Attorney Offices across the state only a bit broader.

D.A.’s offices in Texas typically have their own individualized policies about how they share information with the accused.  Many counties such as Dallas and Tarrant have had long-standing open-file policies meaning the Defendant had access to practically anything they requested from the prosecutors with certain exceptions.  Collin County began to have it’s open-file policy in 2011.

Previous Open-File Policies Offered No Guarantees or Real Protections

Even with open-file policies, the state was/is never truly bound to share certain information under the lame duck version of 39.14 unless formally ordered to produce information by a Judge.  Prosecutors frequently request Defendant waive certain rights in exchange for information about the case.  For example, in exchange for a police-report a Defendant would have to waive the ability to complain to the court about certain unrelated types of information not turned over or about when information would be due to be turned over.  Waiving rights is often a part of pleading guilty — but is difficult for those asserting their right to trial.

Open-file policies generally give Defendant’s no assurances as to when information would be disclosed.  Understanding police and prosecutors are human too — they often learn new information the Friday before a Monday trial or even after the trial has started.  The new information might not be given to the defense in time for meaningful use.

What the Michael Morton Act Changes

Easier Application Process:  Previously a Defendant would have to petition the Court and show “good cause” in order to get a limited amount of information — and a police report actually wouldn’t have been one of the things a court would order to be given over under 39.14.  Now a Defendant only needs to make a timely request directly to the prosecutor.  The Defense no longer needs to apply to the Court to order disclosure and attempt to prove “good cause” — a maneuver which would typically engender resistance from prosecutors.

More Information:  The Michael Morton Act requires production of offense reports, recorded statements, witness statements, and police statements.  The act even appears to allow discovery of work product of prosecutors and their investigators that are not “otherwise privileged.”

Ease in Production:  The bill allows for electronic discovery and duplication which typically eases the process for everyone.

Post Conviction Discovery:  The bill imposes production of exculpatory or mitigating evidence to the Defense which is not a new requirement.  What is new is required production of exculpatory or mitigating evidence even after a person is convicted.  This would almost certainly assist a person in clearing their name even after being convicted.

What the Bill Means for Those Charged with Crimes

It depends on where the charges are being brought.  As discussed above, many counties already had “open-file policies” which went a large way to alleviating many of the problems 39.14 previously presented.  For counties previously with a closed-file policy this act presents a tremendous change.

The act alleviates the Defense from some of the leverage prosecutors had in they will no longer have to waive unrelated rights in exchange for basic information.

While the act re-codifies the State’s obligation to produce exculpatory or mitigating evidence (called Brady material), this area remains a struggle because Defense lawyers and prosecutors frequently disagree about what constitutes Brady material due to it’s subjective nature.

*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 situation you should contact an attorney directly.


Why Police Do Illegal Searches

January 16, 2013

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Police do illegal searches for one simple reason.  They think they’re dealing with a criminal in a classic struggle of good versus evil.

It is literally life imitating art.  We all grew up watching shows about good versus evil like the “Superfriends” huddling together to defeat “The Legion of Doom,”

Image

or the Lone Ranger fighting injustice, or even shows like Perry Mason where even a wrongful accusation is so blatant as to be obvious injustice.

An illegal search is simply no different.  The police officer has convinced themselves based  on a mix of objective evidence and highly subjective criteria they have uncovered a criminal in the midst of committing a crime.  Sometimes they’re right and sometimes they’re not.

Terry vs. Ohio is the classic Supreme Court case which discusses the differences between officers using “hunches” or supposition instead of using concrete evidence.  It has long been recognized hunches, guesses or other manufactured probable cause go hand in hand with police profiling.

Psychological Studies Recognize People’s Views of Themselves Affects Their Behavior.

People tend to view themselves differently than they view others.  They tend to view themselves as objective, unbiased, and generally more positively.  Additionally, people tend to over-estimate how much we can learn about another during a brief encounter.  Practically, then, it is easy to see where a self-assured officer convinced he or she has uncovered a crime which only they alone can sense pushes, and pushes, and pushes a situation to the point where a search becomes illegal.

How It Works In Reality

A police officer who has pulled over a group of highly anxious teenagers in a beat-up car at 1 a.m. on a Saturday morning is simply more likely to suspect drug or alcohol involvement than if he were to pull over a mom in a minivan at 3:00 p.m. on a Wednesday.

In the former situation, experienced defense lawyers are naturally skeptical of a police report which tends to craftily bend, twist, or slant the officer’s observations which try to convert subjective beliefs into concrete facts justifying a search.

For example, it’s not uncommon to read police reports which claim a suspect “was anxious.”  Anxiety may be present for countless reasons in a suspect yet a police report will often continue, “in my training and experience it is common for drug dealers to be nervous when confronted by police.”  While this is probably true to some extent — its simply pure guesswork.

Other extreme examples I’ve come across include where an officer claimed to have observed the suspect’s heart beating through a t-shirt (which in the officers experience indicated guilt) and when Defendant stepped out of the vehicle — he did so to distance himself from drugs in his car which is a common tactic for drug users (based on the officer’s training and experience).

One last claim I am seeing more and more often is an officer claiming the ability to smell unburnt marijuana — often outside the vehicle or even in containers or baggies.  While police are specifically trained to detect the distinct odor of burnt marijuana — there is virtually no proof the ability to detect unburnt marijuana is anything better than a guess.

*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 situation you should consult an attorney directly