How Do I Plead Guilty to a Criminal Charge?

June 8, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

I hate advising clients to plead guilty.

Hate it!

Some tough-guy lawyers will never admit to advising clients to plead guilty but every criminal defense lawyer I know will admit to not only advising clients to accept a deal but begging or pleading with a client on occasion.  Often the facts are stacked against you or the down-side of taking a case to trial is just too scary for the client.

There is no real difference between a guilty plea and a no-contest plea in Texas, so I’m referring to both in this blawg.

A guilty plea is like a contract in Texas.  Both you and the prosecution sacrifice and gain something by way of agreement (you usually sacrifice a lot more).  You are waiving your rights to trial and all that comes with it… the right to prepare, the right to call witnesses, the right to cross examine… etc.  The State is waiving their “right” to seek a greater punishment and, they would argue, their “right” to a jury trial.  In return, you are getting a specific punishment (which may be deferred adjudication depending on your plea deal) and more importantly — you’re also eliminating variables of what may happen to you at trial.  The State benefits because they get a verdict without a trial.

The plea is subject to approval by the judge.  When you plead guilty, you legally empower the judge to (a) find you guilty and (b) sentence you anywhere within the punishment range.

A Texas judge can do one of three things with a plea.  He can accept it (the vast majority of pleas are accepted — I don’t have stats but I’d be willing to bet it’s 99.5% or even greater).  He can reject the plea, or he can accept the plea and modify terms an conditions of probation assuming the plea includes probation.

If the judge flat-out rejects the plea, then he must inform the defendant he’s rejecting the plea so the defendant can withdraw his plea an assert his right to a trial.  A judge rarely knows any specific fact of your case other than what you are charged with — like a DWI, marijuana case, drug possession with intent to distribute, and so on… and for this reason, the Judge is unlikely to tinker with a deal a lawyer and prosector have worked hard to make happen.

Whether to plead guilty or not guilty is a case-by-case analysis.  I advise clients to fight on certain cases for all sorts of reasons and I advise clients to plead guilty on occasion too — because that may be the best answer or because we’re getting a really good deal under the circumstances.

Your choice to plead guilty or not guilty is an extremely important one.  Don’t make the decision alone — have a licensed attorney experienced in the area of criminal law assist you.

*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 specific situation you should consult an attorney.  This article does not create an attorney-client relationship.

 

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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.

Deferred Prosecution for Minors

May 28, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

In Texas juveniles (under the age of 17) that are alleged to have committed crimes can be considered for what is known as “Deferred Prosecution” under Texas Family Code 53.03.

Deferred prosecution means that the juvenile completes an informal probation with the county and if that probation is successfully completed, then the charges are dismissed and not formally prosecuted.  If the juvenile cannot successfully complete the deferred prosecution, then they can be formally prosecuted.

Deferred prosecution for juveniles is better than deferred adjudication is for adults in adult proceedings.  In the adult world, the accused pleads guilty to the underlying charges but forever waives their ability to contest the original charges. Also, in the adult-system, the accused must gain the consent of the prosecutor to get deferred adjudication — not so in the Juvenile Court.  In Juvenile Court, the juvenile has an absolute right to request deferred prosecution directly from the judge AND the juvenile retains the ability to fight the charges later should they be placed on probation… and probation not work out.

Deferred prosecution for juveniles in Texas is almost always a win-win.  The prosecution gets to make sure the juvenile has some sort of semi-formal probation… the juvenile gets a clean record — and just as importantly the juvenile gets to retain his or her important legal rights to fight the case later if necessary.

*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 should be considered legal advise.  For specific legal advice, you should directly consult an attorney about your specific situation.

 

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Posted by Jeremy Rosenthal, Esq.

The Legal Definition of Drug Possession

May 12, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Drug crimes in Texas operate very similarly to one another regardless of the substance alleged to be possessed.  While the specific substance and the quantity dictate the level of offense, the law of “possession” in Texas is consistent.

Many people feel as though because they were in a situation where drugs were present that they are guilty of an offense.  Not so in Texas.

“Possession” is defined by Texas Penal Code 1.07(a)(39) as “actual care, custody, control or management.”

The operative word (in my opinion) is “actual.”  This means the prosecution must prove the drugs were in your possession — i.e. that the defendant ACTUALLY exercised some degree of of care, custody, control or management — of whatever contraband they have alleged the accused possessed.

If you think about how the police tend to encounter drugs — then you begin to get an idea of the struggles at trial of how the prosecutor attempts to persuade a jury that the accused actually possessed drugs (and the task of the defense lawyer to defend against the allegations).  Some arrests are done when the drugs are found somewhere in a car.  Some arrests are the result of drugs found under a search warrant, and some arrests come from pat-downs of someone’s person.  In many instances, it’s not clear who possessed or controlled the drugs.

Generally, the prosecution must show some affirmative link between the accused and the contraband.  This means they present circumstantial evidence of possession — for example if drugs are found in a car — who is the car’s owner?  Who was driving?  Who could have put the drugs where they were found?

Case law is very particular about “affirmative links” and where no legal affirmative links exist — a defendant may legally be entitled to acquittal as the State’s evidence of “possession” may be insufficient.

Defending drug possession cases is a very technical and detail oriented task for experienced criminal defense attorneys.

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 consult an attorney.

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Posted by Jeremy Rosenthal, Esq.

What is a Motion to Suppress?

April 15, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

A criminal defendant can challenge the legality of a detention, a search, seizure or other police tactic which resulted in law enforcement attaining evidence.  If the action is held to be illegal, the evidence is excluded (or suppressed) at trial.

Depending on the facts of any specific case, the suppression of evidence may mean the State’s evidence at trial will be insufficient to sustain a conviction — or it may only eliminate the jury considering damaging evidence during the trial.

Texas Code of Criminal Procedure 38.23 says in relevant part, “No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.”

This provision stems from the Fourth Amendment to the U.S. Constitution and it’s prohibition against unreasonable search and seizures.  Search and seizure law and determining what is or is not a valid or legal arrest, search and/or seizure is a highly complex and highly complicated area of the law.

In Texas, there is actually a legal presumption that if a search is warrant-less, that the search is invalid.  The prosecution can over-come this burden with clear and convincing evidence that the search was valid during a hearing before the Judge.

Motions to suppress are common ways of defending criminal cases.  Again, if evidence is attained illegally and it is excluded, the prosecution may lose it’s only evidence as to certain elements of the case.  Where this is the case, they lose as a matter of law.  This isn’t always the case, though, where the prosecution has other ways of proving a crime independent of the illegally attained evidence.

*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 your own situation you should contact an attorney.

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