Five Keys to Defending Assault/ Family Violence Cases

May 1, 2020

By Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

Police and prosecutors have built a machine to combat domestic violence.  Their intentions are noble yet often misguided and built on false assumptions and one-size fits all narratives.

Family assault cases are one of the most common cases our office handles.  Every one of them is unique but the more and more we focus on them, the better able we are to know the focal points needed for success.

  1.  “No Compromise” attitude.

The fact is in domestic violence cases, the harder you work and the less willing you are to compromise — the luckier you’ll be.  In family assault cases the prosecution’s case tends to deteriorate when pressed.  This doesn’t mean I have to be a jerk to the prosecution — in fact, quite the opposite.  I want to be able to offer them a way out – but on my terms.  If they don’t want out, then we have to be ready to hammer them at trial.  A lawyer’s attitude in these cases is the single most important key to defending these cases.

2.  Legal (And not Emotional) Analysis of the State’s Case.

The law surrounding domestic violence and assault cases is complex and intricate.  There are enough cases analyzing the Sixth Amendment to the US Constitution’s confrontation clause to fill an entire law school course.  There are also multiple defenses to assault which might often apply in any given fact scenario – and your lawyer must also understand in what circumstances the Judge would legally be required to instruct a jury as to those defenses.

Legal analysis is critical because often we know well before the case goes to court the prosecution can’t or is unlikely to win.  This gives us the power and leverage to dictate our terms to the State.

One of the main reasons our system provides for lawyers is so we can effectively divorce our legal problems from our emotional ones.  By that, I mean these cases require a cold-dispassionate analysis.  Just because you might “feel” like you should be at fault doesn’t mean the law says this.

3.  Aggressive Factual Investigation

In spousal abuse allegations your lawyer can’t be afraid of the facts.  As discussed above, the harder we work, typically the luckier we get.  One distinct advantage a criminal defense lawyer has over the prosecution in the vast majority of cases is we typically have a better road map.  We know their side of the story in the police report and they either don’t have our side of the story (because of the 5th Amendment right to remain silent) or they know our story but tune it out because they never think they’re wrong.  In any event, I feel like we always have a more “powerful flashlight” to find the aspects of the case we know will help us win.

Also, it is key to be aggressive particularly from the outset of the case.  Perspectives and accounts tend to change in these cases.  By capturing witness’ recollections early, a lawyer can capitalize on changing stories instead of being victimized by them.

4.  Knowing the Collateral Consequences of a Domestic Violence Charge

One of the reasons I think it is important to have an attitude of “no compromise” is because family assault cases can be so damaging in ways which aren’t obvious.  We call these “collateral consequences.”  Direct consequences would be things such as possible jail sentences (up to a year in Class A Misdemeanor assault cases or up to 10 years prison for cases where impeding breath is alleged), fines, and court costs.  Collateral consequences are issues such as loss of 2nd Amendment rights to possess firearms, your ability to adopt a child in the future, inability to hide your criminal record from the public and on and on.  In truth, even misdemeanor family violence charges can act like “mini-felonies” and there are abundant tripwires.

5.  Persistence

Many of my client’s want me to waive a magic wand and have the problem go away with the snap of my fingers.  It might work like that from time to time but usually not.  One of the keys to a good outcome in a domestic violence charge is knowing we have to be prepared for a “marathon” as compared to a “sprint.”  If we get lucky sooner — so much the better.  But we have to understand the “luck” is normally a function of hard work.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He is recognized as a Texas Super Lawyer by Thomson Reuters for 2019.



The Top 5 Things You Should Tell Your Lawyer

December 5, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

It’s common for people who’ve never been in trouble before to assume everyone knows (or will know) all the details of their case… this includes their attorney.  Try as I might, I’m just not a psychic.  There aren’t many types of cases I haven’t seen… but each case I handle is truly it’s own snowflake.

Not only is each case it’s own snowflake, but everyone has different motivating factors in decision making.  Often how we treat a case depends more on a collateral issue (such as professional licensing, a medical condition, or immigration status) as it does the actual underlying facts.  It’s too important to assume your attorney understands what truly keeps you up at night about the case.

I hope my client knows I’m not the high school principal, a policeman, or a judge.  Nothing they tell me is going cause me to treat their case anything other than professionally.

As such, today we’re discussing the 5 things you should tell your lawyer:

5.  All the facts about the case you think are important.

I want my clients to feel comfortable.  They can tell me every detail about their case or none of the details because we don’t live in a country where we must prove our own innocence. One of the problems I have in evaluating a case through only a police report, though, is police reports tend read like a soviet history book with white-washed and self-serving facts and conclusions.  Often I find a police report doesn’t support nor contradict my client’s version of events.  This shows the importance of my client’s own account to the over-all evaluation of the case.

4.  If You’ve Been in Trouble Before.

Most people have only 1 or 2 run-ins with the law during their lifetime.  If you’ve been in trouble in the past, it’s important your lawyer know this because it could dramatically effect plea negotiations and even the Prosecutor’s ability to enhance the charges against you.

3.  If You’re Citizenship Status is Anything Less than A Full Citizen.

Immigration is a hot topic in Washington.  Criminal actions can have extremely complicated and far-reaching implications for people seeking naturalization or people who may seek to apply for citizenship in the future.  Immigration issues often put people in “must-win” situations in Court.

2.  If You Have Special or Professional Licensing.

Criminal charges and professional licenses don’t mix well.  If you’ve got any type of special licensing required by your job it’s important your lawyer know so they can do everything possible to protect that licensing.  It ranges from a license to practice law, medical licensing and even commercial driver’s licenses.  Again, we’re not psychic and a criminal conviction can might only result in probation — but a loss of licensing could cause permanent damage to your livelihood.

1.  The Truth.

Having criminal charges pending against you isn’t much different from being on an operating table.  You wouldn’t lie or even shade the truth to your Doctor about where they need to cut to save your life.  Telling your lawyer something which misleads them only hurts you in the long-run.

*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 on any situation you should contact an attorney directly. 

America’s Imprisonment Crisis

April 22, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

Today I’m going to share a great piece I saw this morning on CBS Sunday Morning called “Incarceration Nation“.  The stats are stunning.  America jails a higher percentage of it’s population than any other country on the planet.  We account for 5% of the worlds population but 25% of the worlds inmates.  It’s even more puzzling when our national crime rate has dropped by more than 40% over the last 20 years.

The story will make you think twice the next time you hear a politician trying to score cheap points by being “tough on crime.”  The Texas legislature has made a push in recent years to alleviate the burden drug cases cause the system, yet the legislature continues to toughen it’s vice grip on other crimes with harsh mandatory minimum sentences and eliminating parole opportunities.

*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 through this blog are not confidential nor privileged.

Big Wins for 2011

January 10, 2012

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

It’s been a fun year and it seems like I was in trial virtually every week — and it’s frequently the case to have more than one judge fighting over where I’m going to be that week!

It’s also hard to pare down some of my favorites from this year to fit into one blog, but here it goes in no particular order:

Victory 1

Charge: DWI

Facts: Defendant was taking someone home who was clearly impaired — likely from illegal drugs.  Defendant became combative with police  after lengthy interrogation and was eventually wrestled to the ground during the arrest.  Defendant was clearly agitated at the police station and was taped ‘flipping off’ the officer standing off camera.

Theory:  Defendant simply wasn’t intoxicated.  Defendant performed well on field sobriety tests and the officer was being manipulative and harassing.  Only when Defendant passed all of the tests did he become agitated with the officer who initiated hostilities.  While off camera, the officer was making faces at Defendant which is why Defendant flipped him off.

Outcome: Not Guilty verdict after approx. 15 minute jury deliberation.

Victory 2

Charge:  Aggravated Assault/ Unlawful Restraint

Facts:   Father and 18-year old son got into a fight at home.  During the fight, the two rolled over a glass table which severely lacerated the 18-year old’s leg.  At the hospital, the doctors called the police who separated the members of the family and interrogated father.  The father, having nothing to hide, told his story to the police and was arrested for aggravated assault and unlawful restraint.

Theory:  Although a ‘victim’ cannot legally consent to aggravated assault, the fighting in question was mutual in nature and the injury wasn’t severe enough to warrant felony charges.

Result:  Case dismissed.

Victory 3

Charge:  Possession of Marijuana

Facts:  Male and female students studying in a room on the side of the house.  Neighbor calls police for noise/ possible drug use complaint.  Officer comes to the side of the house, orders the male (resident of the house) to open the front door of the house… and while already inside of the house intimidates the male to allow a search of his room to which he consents.  Marijuana found in bag belonging to female (Client).

Theory:  The officer’s search of the house was an illegal warrantless search of a home because he ordered the resident to allow him inside.  Additionally, the female had an expectation of privacy in the bedroom and in her purse such that a search of her purse required her consent which was not attained.

Result:  Search found to be illegal and all evidence attained was suppressed.  Not Guilty verdict at trial for female.  Male’s case subsequently dismissed as well — with a gracious thank you from his lawyer!

Victory 4

Charge: DWI

Facts:  Officer arrested defendant after 911 caller notified police of erratic driving.  Client failed field sobriety tests according to officer and was arrested.

Theory:  Officer lied to client to manipulate him into taking field sobriety tests.  Also, the officer himself was unsure due to the length of his own deliberation.  It was an extremely cold night and client was clearly in physical discomfort while taking the field sobriety tests.  Officer admitted lie to the jury and also admitted it was a close case.

Result:  Not Guilty verdict.

Victory 5

Charge:  Aggravated Robbery with a Deadly Weapon

Facts:  Four residents of an apartment were robbed at gunpoint late in the night.  Three intruders knocked on the door and forced their way into the apartment.  The intruders tied up the residents in their separate rooms and rummaged through their belongings stealing cash and various other items.  Client’s fingerprints discovered in the apartment and client was identified in photo-lineup by at least one of the victims.  Client was the only person tried for the offense.

Theory:  The apartment may have been a drug house due to the excessive cash on hand and due to the fact they would expect visitors late in the evening.  The residents also were transient workers of a local restaurant that didn’t know one another very well.  Not all the residents were present in the apartment during the robbery and some didn’t cooperate with police.  Based on those facts, there could be a number of reason’s client’s fingerprints might be in the apartment unbeknownst to the victims testifying.  Additionally, the fingerprints were found on a small, portable cell phone box which had clearly been handled by complete strangers prior to the time they were purchased by the victim.  During trial it was revealed the police agency did not know and was indifferent to recent federal guidelines on conducting photo-lineups.  The identification by the witness revealed to be very shaky on cross-examination.

Result:  Not Guilty on 4 counts of Aggravated Robbery with Deadly Weapon

Victory 6

Charge:  DWI — breath test over 0.08

Facts:  Client pulled over for small traffic infraction.  Client was out with group of friends that had been drinking and was driving them home.  Officer administered field sobriety tests and made determination defendant was intoxicated.

Theory:  Client may have had test score over 0.08, however, the facts in his case from the time he last ate and drank, combined with his height and weight made it possible — if not likely — that his blood was actually below 0.08 at the time he was pulled over.

Result:  Not Guilty verdict

Victory 7

Charge:  Attempted Aggravated Sexual Assault of a Child

Facts:  Accuser made outcry of sexual abuse by her father when she was 3 or 4 years old.  Victim was 16 at the time of the outcry.  Accuser made specific detailed allegations about an incident where she alleges client sexually abused her in her bedroom.  Client had also been charged with a sex crime in the same time vicinity of the outcry.

Theory:  Defense showed the nature of the strained relationship between the accuser and her father.  Defense also showed how the accused’s mother — long since divorced from client — had systematically and thoroughly poisoned the accuser against the father.  Defense showed how through negligent investigation accuser learned the facts of the other sex case investigation.  Finally Defense called expert in memory and family psychology to explain to the jury that the memory of the abuse by the accuser was inconsistent with how children her age remember things.  Children that are 3 or 4 probably cannot recall things chronological order because at that age they probably haven’t learned the concept of time.  The expert also explained to the jury that the constant poisoning of the accuser and the accuser’s knowledge of the other investigation could explain or compound the false memory.

Result:  Not Guilty verdict on Attempted Aggravated Sexual Assault of a Child

Victory 8

Charge:  DWI — 0.19 breath test score

Facts:  Client followed by 911 caller to a gas station.  At the gas station, client exists and goes back into car.  Police arrive and conduct DWI investigation.  Defendant arrested and blows 0.19 at the police station.

Theory:  Client’s intoxication might not have been prior to the time of driving.  There was a long waiting period in between the driving and the police contact where client (unseen by 911 caller) may have been consuming alcohol.  Breath test score not admitted into evidence due to our objection based on law.

Result:  Not Guilty verdict

Victory 9

Charge:  DWI — 0.14 Blood Alcohol Concentration

Facts:  Client was at a wedding on a Saturday night.  While heading home, he had a single car accident.  Client was at the scene when emergency responders and police arrived.  Client admitted to driving vehicle and thought he was somewhere completely different than where he was.  Police conducted field sobriety tests then applied for a blood warrant.  Blood revealed a concentration of 0.14.

Theory:  Blood warrant affidavit was unreliable and therefore should be thrown out along with the blood result.  The other symptoms of confusion and/or intoxication were due to the car accident in question.

Result:  Blood evidence suppressed/ Not Guilty verdict at trial.

Victory 10

Charge: DWI — 0.18 Blood Alcohol Concentration

Facts:  Client was followed by 911 caller who observed car crash.  Police investigate crash and do field sobriety tests on client who has dazed memory, had nausea, no balance, and was sleepy.  Client takes breath test and scores 0.18 blood alcohol level.

Theory:  Breath test score thrown out because of improper procedure.  Evidence shown to jury that client suffered from concussions sustained when playing high school football. All symptoms of facts also consistent with concussions as well as intoxication.

Result:  Hung jury (I normally wouldn’t include this as a victory, but it was a really fun one!)

*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.  Past results are not promises or guarantees of future results.  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 submitted through this forum are not confidential.

Texas Grand Jury FAQ’s

April 2, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

What is a Grand Jury:

A Grand Jury is a panel that decides whether a felony should be indicted or not.  The DA’s office can file misdemeanors on their own, however, to file felony charges a grand jury must agree there is probable cause.

Grand jury meetings are secretive and confidential.  The public has no access to their deliberations.  Typically they deliberate matters brought before them by the District Attorneys office.  Here is a link to some technical and historical information about Texas grand juries.

Grand Jury Findings

Grand juries can do several things with cases they hear.  They can issue a true bill which equals a felony indictment or they can issue a no-bill turning the case down.  Occasionally they will charge a person with a misdemeanor instead of a felony through indictment.  After a true bill is issued, the case gets assigned to a court and proceeds normally.

Criminal Defendant’s Rights During Grand Jury Proceedings

If you really think about it… having a grand jury as a hurdle for the prosecution in and of itself is the only real right you have in this process (in theory anyway).

A criminal defendant does not have the right to testify at the grand jury nor does your attorney have the right to be present.  Because the proceedings are secretive the transcript, if any, is not available.  You can’t even watch.

What Can I Do If I’m Under Grand Jury Investigation of if I Get a Grand Jury Letter?

Call an attorney.  The prosecutors have discretion to allow your attorney to submit a packet of information to a grand jury to attempt to dissuade them from indictment.  Also the prosecutor can agree to allow you to testify before the grand jury — but not in the presence of your attorney.  On many cases, prosecutors have incentive to negotiate with you prior to your case going to grand jury.  As a policy, Collin County DA’s office will not negotiate with people at the grand jury phase that are unrepresented by counsel.  This may seem like a frustrating policy — but frankly it’s for your own protection.  Grand jury situations are very complicated and the ramifications are very serious if mismanaged.

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 consult an attorney.