When do I Have to Plead Guilty or Not Guilty in a Criminal Case?

August 17, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

In Dallas and Collin County criminal defendants are typically not required to enter into a plea on initial court settings and typically only do so either immediately prior to trial (in the case of a not guilty plea), or obviously if and when they make a plea bargain with the State. Most initial and second settings are merely to make sure the defendant is keeping up with requirements of bond as well as giving the prosecutor and defense lawyer an opportunity to make progress towards the resolution of the case… Be that a dismissal, a trial, or a plea bargain. Visiting directly with the judge is rare at these court dates.

Chapter 26 of the Texas Code of Criminal Procedure governs arraignments (the formal process where a court informs the accused of the charges against them as well as advising the accused of other rights). The arraignment is typically where a defendant will enter a plea, but the code is relatively silent on exactly when that must occur. Tex.Code.Crim.P. 26.03 only says arraignment is improper if it’s done within two days of indictment and the accused is still in jail.

Most Texas Courts have their own policies in place for when they do arraignments requiring a defendant to plead guilty or not guilty. In General, Dallas and Collin Counties only require the plea to be made at a guilty plea or before trial begins.

Some courts may seek to arraign defendants at their initial court setting for other reasons. This doesn’t necessarily mean you can’t change your plea but you should obviously consult your lawyer first.

*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 as legal advice. For legal advice you should directly consult an attorney.

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Are There Depositions in a Criminal Case in Texas?

August 5, 2010

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

(972) 562-7549

texasdefensefirm.com

Knowledge is power.  A good criminal defense lawyer will want to know as much of the State’s case as conceivably possible.  Most of the time that will probably only be through the police reports, an independent investigation, or what witnesses will tell you voluntarily.  Depositions in civil cases are common but depositions in criminal cases in Texas courts are extremely rare.

Depositions serve two main functions; (1) discovery — or learning the facts of the case; and (2) to nail down a witness’ version of events for later impeachment.  Insurance companies and civil lawyers know all to well that not many people give identical versions of events on multiple occasions.  They get as many witness statements from the same witness as possible to exploit inconsistencies or weaknesses.

Texas Code of Criminal Procedure 39.02 allows a defendant to petition the Court for a deposition if the defendant can show “good reason” for needing the deposition.  It is such a rarity that most trial judges probably won’t see the utility in allowing a deposition of a police officer though.  In all likelihood, depositions in criminal cases are reserved for instances where a witness may not be available later for trial.  If anything, the law allows the prosecution just as much or more leeway with deposing a witness or an alleged victim.  Section 39.025 requires that if the alleged victim is over 60 years old or disabled then the deposition must be taken by the prosecution no later than 60 days after the deposition is requested.

All is not lost for the accused though.  There are a few different mechanisms that allow deposition-like examinations of a police officer prior to trial. An example is an Administrative Law Review (“ALR”) in a DWI case to determine whether a driver’s license should be suspended or denied.  Another example is what is known as an “examining trial” in felony cases to determine if the State has probable cause to hold someone in jail accused of a Felony prior to presentment to the Grand Jury.  These are both instances where an officer can be sworn-in under oath with a record that can be used later.  A good criminal defense lawyer knows how to seize these opportunities for discovery.

*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 directly.

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Is Intoxication a Defense to Criminal Charges in Texas?

June 11, 2010

Texas Penal Code 8.04 covers voluntary intoxication.  That provision says, “Voluntary intoxication does not constitute a defense to the commission of a crime.”

Temporary insanity may be caused by intoxication and may be admissible in the punishment phase of a trial to attempt to mitigate.  What this means, in layman’s terms, is that you can only utilize voluntary intoxication to the extent that it can help you in the punishment phase of trial — i.e. after the judge or jury has already decided that you are guilty.

Intoxication in this section of the Penal Code means “disturbance of mental or physical capacity resulting from the introduction of any substances into the body.”

Involuntary intoxication (where perhaps someone was drugged without their knowledge — and then committed a crime) is far more complex.  The law used to be well settled in Texas that involuntary intoxication was an affirmative defense to some crimes, however, in 2002 the Texas Court of Criminal Appeals held that the defense was encompassed in other defenses — such as not having the proper mens rea in Mendenhall v. State, 77 S.W.3d 815 (Tex.Crim.App.– 2002).

Jeremy F. Rosenthal, Esq.

(972) 562-7549

*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 matter you should consult an attorney.

 

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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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“No Refusal Weekend” for DWIs in Dallas and Plano

May 30, 2010

Cities around North Central Texas are publicizing their “no refusal” policies this weekend for DWI enforcement in an effort to ramp up law enforcement and discourage impaired driving. Some have issued press releases to the media such as this one. They’re beginning to have these weekends routinely on Memorial Day, the Fourth of July and Labor day.

Although the press release doesn’t spell it out, what they are trying to communicate is that if you refuse to submit to the breath test, they’ll simply go to a magistrate that is on standby to get a warrant signed. That warrant will enable them to draw your blood, hence the “no refusal.”

In Texas, the police must be extremely careful not to coerce a person to voluntarily give a breath specimen. When a person is formally offered a breath test, they are done so through documents called dic-23, 24, and 25. Those documents lay out all the dangers and disadvantages of submitting to a breath test.

An officer cannot coerce or intimidate a person into submitting to a breath test in Texas. If an officer alters, amends, adds, or subtracts warnings (generally be editorializing his opinion in some way) about the warnings or what the resulting action may be — then they flirt with having the breath test thrown out under a line of cases called the Erdman doctrine. The vast majority of officers will read the dic warnings in a scripted fashion because they don’t want the results of the test thrown out.

The press release definitely walks a tight rope. They’re trying to curb drunk driving this weekend (which everyone agrees is a good thing). But, by over-publicizing the “no refusal weekend,” it is quite possible that people arrested for DWI submit to the breath test because they fear the police punish a refusal by jamming a needle into their arms. It is interesting, then, that the press release omits any references to warrants, and merely insinuates that medical personnel will just happen to be around.

Maybe they’re afraid some lawyer might try and put the press release into evidence during a trial down line to show the police are just trying to intimidate everyone into submitting to a breath test?

Jeremy F. Rosenthal, Esq.

(972) 562-7549

*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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