Important Lessons from the Zimmerman Verdict and Interactive Poll

July 15, 2013

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

I’ll be honest.  I didn’t watch much of the trial — or the hoards of legal analysts who told us what to think.  So you won’t be getting red-hot opinions about how smart/stupid the jury was here.

I see merit in virtually every argument I’ve read online from friends and family in social media or even from editorials on TV or in the newspaper.  George Zimmerman may have gotten away with cold-blooded murder.  Then again maybe he was defending himself from an attacker.  I don’t know.  I wasn’t there.  I just know we did our best to figure it all out.

The strong reaction I see everywhere — going both directions — reminds me of simple truisms about why the framer’s of the constitution gave us the rights we have.

Humans are biased.  Others need protection from our biases because when we put our heads together in big numbers we can be very dangerous to people we aren’t interested in hearing from.

Don’t think so?  I guess advertising doesn’t work on you… it just works on me?

Our rights guaranteed by the framers of the Constitution are designed to combat our biases, prejudices, and knee-jerk reactions we would naturally have in protecting our families and communities in favor of protecting individuals.

The presumption of innocence holds jurors must presume an accused person as innocent as they would a neighbor or even the judge.

The accused has the right to remain silent because strapping someone in a chair and launching loaded questions at them is a tactic of 3rd world justice.

The burden of proof never shifts to the accused.  It’s impossible to prove you’re innocent of a traffic ticket when you think about it.  Especially if you’re dealing with a jury or judge whose default is to trust the policeman who wrote you the citation.

But here’s where the rubber meets the road — these rights are hollow unless we understand why we have them and they’re hollow if we only give them lip service.

The aftermath of this verdict has been ugly arguments and protest.  Anytime we debate our system of justice, though, it’s a healthy exercise as long as it leads to greater understanding instead of disillusionment.

*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 this situation or any other, you should contact an attorney directly

 

 


DWI 2nd In Texas

August 30, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

First I’ll talk a bit about the technical/ legal information of a 2nd DWI charge in Texas — then I’ll discuss some of the more practical aspects or things you won’t find written down anywhere about the attitudes of police, prosecutors and even judges about second DWI arrests.

The Law on a 2nd DWI Charge

Texas Penal Code 49.09(b) says in relevant part:

“an offense… is a Class A misdemeanor… if it is shown on the trial of the offense that the person has previously been convicted one time of an offense relating to the operating of a motor vehicle while intoxicated, an offense of operating an aircraft while intoxicated, an offense of operating a watercraft while intoxicated, or an offense of operating or assembling an amusement ride while intoxicated.”

I should point out what I consider to be several extremely important parts of this provision.  The most obvious is a 2nd DWI is enhanced from a Class B to a Class A misdemeanor and carries a heavier punishment which I discuss in more detail below.

What can be confusing to many, though, is the requirement the first case must have resulted in a “conviction.”  The law is actually a bit tricky here even though it may seem straight forward — it normally means the previous arrest must have resulted in either a guilty plea or a trial where the person was convicted by the judge or jury.  But there are some weird fact scenarios that tend to pop up from time to time.

To be clear for starters — if a first DWI arrest resulted in a dismissal, reduction, or acquittal, then it cannot be used to enhance the first DWI arrest into a 2nd DWI arrest.

A common scenario is where a person is arrested for DWI and before that case can be resolved — the person is arrested again for DWI.  Both arrests would technically qualify as first DWI arrests because on the date of arrest for either, the person had never been “convicted” of Driving While Intoxicated.  Each case would be regarded as a first DWI arrest although if ultimately convicted of both, a third DWI arrest would be enhanced to a Felony DWI 3rd.

Another common issue is that the person’s first DWI, DUI or OUI arrest might be from a state, territory or jurisdiction besides Texas.  The problem here is 49.09(b) has rather loose language that the previous conviction must be of “…an offense relating to the operating of a motor vehicle while intoxicated.”  The result is a court must harmonize whatever happened elsewhere to see if it’s substantially similar to our DWI law.  This is very problematic because some state’s have very different requirements for what constitutes DWI, DUI or OUI.

The last major part of 49.09(b) I should point out is there is no time limitation in the statute — meaning the first DWI conviction can be more than 10, 20, or 30 years ago and the second arrest will still be enhanced.  This was a change from previous Texas law which held that the first conviction must have been within 10 years of the second arrest.  In what can only be described in a constant patter of tightening DWI laws — the legislature did away with the 10 year requirement.

More Major Differences Between a First and Second DWI

  • If you’re arrested for a DWI 2nd offense, you’re required by law upon release from jail to have an interlock ignition device installed on your car as a term and condition of bond pursuant to Tex.Code.Crim.P. 17.441;
  • The punishment range goes from 72 hours jail to 180 days and up to $2,000 fine (on a Class B – 1st DWI ) to 30 days minimum to 1 year confinement in the county jail and up to $4,000 fine for the Class A misdemeanor;
  • Though an the entire jail sentence (as described above) can be probated, the Judge must order a person convicted of a second DWI to at least 10 days of jail as a minimum “term and condition” of probation under Tex.Code.Crim.P. 42.12 Sec.13(a)(1).
  • An interlock ignition device is mandatory on probation.
  • The sur-charge to keep your driver’s license with the Texas Dept. of Public Safety in Austin is $1,500 per year for three years (up from $1,000 per year on a first DWI arrest).

DWI Court/ Drug Court

Collin County has several courts which act as special courts trying to deal with drug and/or alcohol abuse issues.  If someone either pleads guilty or is found guilty of a Second DWI offense, the DWI Court can evaluate a person to see if they’re appropriate candidates for the program.  The court can conduct an intensive but incentivized probation for the person convicted of the second DWI.

Fighting the 2nd DWI Charge

The good news is almost always the Texas Rules of Evidence will disallow a jury from any knowledge of a first DWI conviction during the guilt-innocence portion of a trial.  This means not-guilty verdicts are still just as possible as they are for first time arrestees and juries aren’t tainted with the irrelevant knowledge of a previous arrest .  If anything, the tougher punishments and sentences for a 2nd DWI actually gives a person more incentive to fight than to plead guilty on average.

What You Won’t See in Books

Police and prosecutor attitudes about 2nd DWI arrests can be a bit stubborn.  Remember, it’s not the police or prosecutor’s job to presume a person innocent — and with a 2nd DWI they surely don’t.  Many think even though the first arrest may have been years and years ago that they are dealing with an alcoholic who needs to be taught a lesson.

Fortunately you have options.  First is that these cases can still be defended aggressively, powerfully and persuasively and often do result in acquittals.  Secondly, although punishment on intoxication cases have progressively gotten meaner and meaner — there has been more of a prevailing attitude over the past decade which finally understands cruelty, jail and harshness don’t help someone battling alcohol issues.

*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.  Contacting the attorney through this forum does not create an attorney-client relationship.  Communications sent through this forum are not confidential nor protected by the attorney-client privilege.


Dallas Morning News Articles on Police Alcoholism

January 18, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

The Dallas Morning News ran articles about police and alcohol abuse this past weekend (January 14, 15, and 16, 2012).  The articles included this article about a passenger of a car driven by a drunk, off-duty officer, this article about the culture of drinking and alcohol abuse within the police force, and this article about the toughening up of licensing requirements for officers who have committed alcohol related offenses.

These articles are very in-depth about this overlooked topic.  To be outraged and grandstand about what may, on it’s face, appear as mild hypocrisy (how many times do we see the friendly life-lecture on COPS?) misses the point with bad police behavior.  What needs to be focused on is that police are people too.  They’re vulnerable to peer pressure, they have psychologically demanding jobs, and they — like all of us — are products of the environment of which they live day in and day out.

Understanding police psychology including the understanding of police culture is essential in defending people accused by the police of wrongdoing whether it be DWI or any other offense.

*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.  Contacting the attorney through this blog does not create an attorney-client relationship.  Communications sent through this blog are not confidential.


How Do I Appeal A Criminal Case In Texas?

June 25, 2011

By Texas Criminal Defense Lawyer Jeremy Rosenthal

(972)369-0577

texasdefensefirm.com

First of all, Appeals should not be attempted without a lawyer.  Also, this article is intended to be for class b misdemeanors and above… not for class c misdemeanors.  This blog only skims the surface of this extremely complex area.

We can handle appeals anywhere in the State of Texas through e-filing which is now in place.

What is an Appeal?

In America we get our day in Court.  We don’t, however, get our day in court over and over again until we win.   A common misconception about an appeal is that it is a do-over.  An appeal can generally be analogized more of an “instant replay” than it is a re-trial.

Appeals generally focus on specific things which happened during the trial such as improper court rulings, improper testimony or even improper conduct of the prosecutor (or even the defense lawyer).  These things are known as “error” and if the error is bad enough, an appeal may result in a reversal, a new trial, or possibly even an acquittal.

Appeals are done through briefs and through transcripts of the trial.  On occasion, the Court of Appeals may request an oral argument by lawyers, but this is somewhat rare and tends to be focused on contested legal points.   I often visit with people who think that perhaps they can get the appeals judge to “understand” because the original judge didn’t seem to get it.  That really isn’t what an appeal is for.

Successful appeals can result in either a new trial or an acquittal.

What Types of “Errors” Result in Reversals?

Simply because there was an error made by the trial court does not automatically entitle a defendant to a reversal or a new trial.

As a general rule, the more fundamental or serious the error, the more likely it is to result in a reversal.  The seriousness is often measured by how directly it affects a right under the U.S. Constitution.  Good examples can be violations of the confrontation clause or a substantial defect in the jury charge.

Many errors — if not most errors — are classified as “harmless.”  This means that even though there was a mistake made at trial, the appeals courts may rationalize the conviction by claiming the error wasn’t a big deal.

Additionally, when a mistake is made at trial, the defendant’s lawyer is usually required to make an appropriate objection.  This is called “preserving error.”  Unfortunately the appellate courts can easily duck difficult legal questions where error was not preserved by counsel at the trial level.

How Do I Appeal?

Appeals have very tight deadlines.  The deadline to file a notice of appeal is 30 days from the date the judgment was entered.  Texas Rules of Appellate Procedure 26.2.  Frequently, a “Motion for New Trial” is filed in conjunction with a notice of appeal.

Who Hears the Appeals?

In Texas, there are two layers of appeals after trial.  There are 14 appeals districts which are the first line appeals courts.  These courts handle both civil and criminal appeals.  Above those courts, there is the Texas Court of Criminal Appeals — which is the highest criminal court in the State.  (Civil appeals ultimately go to the Texas Supreme Court).

Motions for New Trial

A motion for new trial is a request made to same judge for a new trial under Texas Rule of Appellate Procedure 21.  You can read more the specifics in motions for new trials here.  A motion for new trial typically has a duel purpose.  First, is to see if the same judge that presided over the original trial will simply allow a new trial — but more commonly as a way to preserve points for appeal which may not have been presented or properly preserved during trial.  A motion for new trial must also be filed within 30 days after the imposition or sentence, but the court can hear it as late as 75 days after the sentencing.

What Happens After the Notice of Appeal is Filed?

The Court of Appeals requests that the Court Reporter furnish the record (which consists of transcripts, motions and exhibits from the trial).  Once that has been filed by the Court Reporter with the Court of Appeals, the Defendant has 30 days to file an appellate brief arguing why the appeal should be successful.  The State has 30 days to file a reply brief after Defendant files their brief.

After briefs (and supplemental briefs – if necessary) have been filed, the Court will eventually issue it’s ruling.

What Happens if I Missed the Appeal Deadline?

After the 30-day deadlines have expired, there are still some available remedies for appeal but those are far more limited.  The most common are under Chapter 11.07 of the Texas Code of Criminal Procedure for felony offenses which deal with controverted, previously unresolved facts which are material to the legality of the applicant’s confinement.  This may be because of newly discovered evidence, because it is discovered the prosecution did not turn over exculpatory evidence to the defense, or ineffective assistance of counsel.  The filing of an 11.07 writ can be extremely complicated and should be discussed directly with an attorney.

Indirect Appeal and Post-Conviction Relief

Appeals are a confusing topic and complex topic.  Most of what people think about for appeals involve direct appeals — or the appeal of something which happened at trial and was taken down by the Court Reporter.  Indirect Appeal — called a Writ of Habeas Corpus — usually involves things which weren’t taken down by the court reporter.  This could include the prosecutor hiding evidence, improper legal advice by an attorney, or the discovery of new evidence after the conviction.

*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 directly consult an attorney.


Two More Dallas County DNA Exonerations

January 4, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

Dallas County is expected to exonerate the longest-serving prisoner shown to be innocent through DNA evidence this week.  Cornelius Dupree Jr., and Anthony Massingill were wrongly identified by a rape victim in 1979.  You can read about it here.

Yet again we see themes common to many of these cases.  Bad eye-witness testimony, failure to presume people innocent, and and decades of indifference.  Dallas has had the single most exonerations in America.

*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 on any matter you should contact an attorney directly.