Computer Crimes in Texas: Online Impersonation

June 13, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Laws lag behind online crimes. Society gets outraged when stories come on the news about online bullying, for example, but the truth is that the legislature naturally plays catch-up to technology.

Who knew Facebook or Twitter would become as popular as they’ve become… Much less had the foresight to know how to keep people from victimizing one another just two or three years ago?

One recent step taken by Texas is the addition of Texas Penal Code Section 33.07 which criminalizes “online impersonation.” That statute was passed several legislative sessions ago and it criminalizes the creation of an account on a social networking site that not only isn’t you — but is purportedly someone else (or their persona) and was created for the express purpose to harm, defraud, intimidate or threaten ANY person.

The punishment for such an offense would be a third degree felony (2-10 years TDC and/or a $10,000 fine). Similarly, it is a class A misdemeanor to send out a bogus email, text (or similar communication) purported to be from someone else that is intended to harm or defraud another person. (up to a year of county jail and/or a $4,000 fine).

The full impact of these particular Texas laws aren’t really fully understood. The main problem with criminal law as it relates to technology crimes is because the ways to commit crimes out-paces the solutions, prosecutors try to be “creative” with bending and stretching older laws that were never intended to apply to these newer problems. When prosecutors get “creative,” is when rights tend to get violated.

Computer crimes also have heavy overlapping issues with evidence rules, confession rules, and also search and seizure rules. The enactment of new codes (such as 33.07) is only the ‘tip of the iceberg’ for computer crime lawyers.

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 your own specific case, you should directly consult an attorney.

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Posted by Jeremy Rosenthal, Esq.

Do the Police Have a Right to Enter and Search a House Without Your Consent?

June 5, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

They usually need a warrant to search a house.

As a rule of thumb, the more private an area is to an individual, the more difficult it is for the police to search under the Fourth Amendment to the U.S. Constitution.

A home obviously has the greatest expectation of privacy and is clearly more private than an office or a car or any other place the police may search for drugs, weapons, or even computers.  Police can only search without a warrant in very limited circumstances.

If the police search a home improperly, then the evidence will not be admissible during a trial.  This can mean cases ranging from possession of marijuana, cocaine, methamphetamine or possession of drugs with intent to distribute, all the way up to murder cases, can be severely crippled or even thrown out because of an invalid entry by police into a home.

Police can use an exception called “exigent circumstances” to do warrant-less entries into the home.  Where police have probable cause to believe an offense has been committed and there are “exigent circumstances” they can enter a house without a warrant.

Examples include if they are in “hot pursuit” of a suspect, there is clearly danger to someone inside, or if the officer is in danger.  Another exigent circumstance is if the officer believes evidence is being destroyed inside.  For an officer to claim he fears that there is destruction of evidence, he needs to have strong probable cause of a serious offense.

The main way police search houses without warrants, however, is because the homeowner (or another resident) consents to the search.  The consent must be voluntary and cannot be coerced.  Displays of force or threats to get search warrants can call the search into question.  A person does not have to consent to a voluntary search of a home.

Police use a technique called a “knock and talk” which courts have consistently upheld as being valid.  This is where an officer suspecting drugs or drug trafficking (for example) merely knocks on the door and asks to search.  Where police attempt to manipulate or coerce consent is where there have been legal problems with the searches.

The police won’t tell you it is perfectly legal to tell them to go away the same as if they were trying to sell you cookies at your doorstep… and if you allow them to search voluntarily, you’ve punted a ton of rights away.

*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, you should consult an attorney directly.

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Posted by Jeremy Rosenthal, Esq.

Should I Just Call The Prosecutor To Help Them Get My Loved One Help with a Drug or Alcohol Problem?

June 1, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

I’m asked every now and again by a family of a client if they shouldn’t just talk with a prosecutor in a case where their loved one clearly has a drug or alcohol problem — to see what the prosecutor can do to facilitate treatment.

That many not be the best idea.

Here’s why — because the prosecutor’s version of help and the real version of help may be completely different concepts.

Some prosecutors understand drug and alcohol dependency issues and others simply don’t.  Prosecutors who tend to see addiction and mental disorders as excuses may use what you tell them as a battering ram against your loved one.  To be fair — many prosecutors “get it” and do bend over backwards to help.  The problem from a family member’s stand-point is that divulging negative information to an agent of the State is always a gamble.

As criminal defense lawyers and prosecutors, substance abuse treatment and counseling aren’t really at the core of what we do.  We tend to analyze people’s cases from legal perspectives but there’s obviously a heavy overlap with substance abuse and treatment.

My advice is typically to seek private treatment over treatment affiliated with probation or directly with the criminal justice system.  The reason being is that there are several legal layers of protection in the private setting which are not available otherwise.

HIPAA and patient privacy laws will protect a patient in a private treatment facility but may not in a state or probation run program.  Also there tends to be better customer service in the private sector.  There, the treatment facility is accountable to the paying client.  In the probation setting — the treatment providers are conflicted between treating the patient and reporting violations to the prosecutors or the Judge.

If treatment is ordered as part of probation, for instance, and the patient doesn’t follow through with meetings — or admits to other unresolved crimes during treatment — those could be used for further prosecution and/or probation revocation.

*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 of your own situation you should directly consult an attorney.

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Posted by Jeremy Rosenthal, Esq.

What Does a Jury Do?

May 27, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Lawyers take for granted that everyone understands a trial from television — but not even television makes the distinctions very clear.  And there’s no such thing as a stupid question.  Usually.

A jury determines what are known as “questions of fact.”  a judge determines “questions of law.”  The difference can be complicated but here’s a common example that demonstrates the difference.

Take an assault/ family violence case where self-defense was an issue: the judge would determine whether the evidence of self defense was admissible and whether it rises to the level which would allow him or her to give the jury an instruction on self defense.  The judge makes no decision on whether the evidence is believable or not… just that it is sufficient for a jury to consider the defense without completely guessing.

The jury would determine whether the evidence of self defense is believable and whether the state has dis-proven the theory of self defense beyond a reasonable doubt.

Jurors are the exclusive judges of the credibility of witness and decide whether the prosecution has met their burden.  The jury obviously doesn’t rule on objections (because again, it’s the judge that decides the law).

A person’s right to a jury trial is guaranteed by the U.S. Constitution in both civil and criminal cases and is a cornerstone of our legal system.

*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, you should directly consult an attorney.

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How Long After an Arrest Do I Need a Lawyer?

May 18, 2010

By Criminal Defense Lawyer Jeremy Rosenthal

www.texasdefensefirm.com

(972) 369-0577

When is it time to get a lawyer?

That’s an excellent question.  There are two main reasons to hire a lawyer immediately after an arrest.  The first is to advise you during a police investigation and the second is to assist you in securing a release from jail.

Legal Advice During a Police Investigation

Arrests happen different ways — from a traffic stop, an arrest warrant, or at the scene of an incident or altercation just to name a few.

Police Investigations Prior to Arrest

Often the police will investigate a crime prior to applying for an arrest warrant.  In doing their investigation, they may call the accused and request they participate in voluntary interviews, searches, or even biological testing.  It is always a good idea to have a lawyer involved if this is the case.  Experienced counsel can property help you navigate the investigation and it is very dangerous to try and do so alone.

Police Investigations After an Arrest

In Dallas and Collin County state criminal cases, the vast majority of police work and investigation is done at the scene of the arrest.  In most DWI stops and/or drug arrests the police do most of their work on the road-side.  There is brief follow-up at the police station (a breath test and/or an interview), but once the person is booked-in to jail, any investigation is usually over.

For the timing reasons alone, it is extremely difficult to involve an attorney quickly enough to provide much useful counsel in these situations.  Usually an experienced criminal defense attorney, if involved quickly enough, will generally advise someone arrested not to participate in any interviews or voluntary searches.

Assisting in Jail Release

Attorneys can help people get released on most DWI’s, thefts, and marijuana cases from the Plano City Jail or the Frisco City Jail in Collin County.  Generally, though, an attorney may be of limited value in securing release from jail.  Once a person is arrested then they are entitled to see a magistrate judge who sets the bond (if the bond isn’t pre-set from an arrest warrant).  At that point the bond can be paid for the person to be released.  Often a bail bond company is consulted where the amount of the bond is too expensive for the friends or family members of the accused to pay.  Some attorneys are bail bondsman but most are not.  Always make sure you understand whether your are dealing with an attorney, a bondsman, or both and make sure they explain to you everything involved and everything they are responsible for.  The accused can hire an attorney to assist in getting the bond amount reduced as well.

Once the case proceeds after the arrest stage and formal charges are filed, it is always a good idea to have your attorney represent you in the future court proceedings.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas.

 

 

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