Is Sexual Harassment A Crime in Texas?

May 21, 2018

By Criminal Defense Lawyer Jeremy Rosenthal

jeremy@texasdefensefirm.com

(972) 369-0577

Sexual Harassment

No, while reprehensible in and of itself it does not constitute a crime.

Sexual harassment whereby one or more employer or co-worker creates a hostile work environment for other workers is civil, not criminal.  This means a person’s remedy is in the courts is through a lawsuit they normally bring themselves.

But there could be over-lap between sexual harassment and actual sex crimes.

Sex crimes are typically committed where there is unwanted touching or exposure.  So crude talk, innuendo, or inappropriate language are not enough to rise to the level of a criminal offense.  However, possible criminal liability can ensue such as indecent exposure, simple assault if there is unwanted non-sexual touching, or even sexual assault.

Can I Be Charged With A Sex Crime Even If I’m Being Sued for Sexual Harassment?

In theory, yes.

I worked at an employment law boutique right out of law school.  I don’t know that I ever saw that happen.  People who sue generally don’t go to the police… and when they do AFTER going to a lawyer first, I suspect the police are a bit leery of a money-grab (not to mention the case has normally gotten much older).

If you’re being prosecuted for a sex crime and are now worried about a sexual harassment claim — that’s normally hard to do too.  Sexual harassment claims have very tight time-lines which could be lost by this point.  If you’re being prosecuted for a sex crime of any time then sexual harassment is a much lesser matter in my book.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas.  He has been recognized as a Super Lawyer by Thomson Reuters.

 

 

 

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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

 

 

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The Top 6 Things You Should Know Before Pleading Guilty

September 7, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Pleading guilty may be the best option in a case – but it should never be the first option.  The decision to plead guilty is often not much different than the decision to get a permanent tattoo everyone can see.  You should fully know and understand the consequences and alternatives before making this choice.

1.  What does it mean if I Plead Not Guilty?

It means you are exercising your right to a trial by judge or jury.  Every person has the right to a trial and every person has the right to plead “Not Guilty” to a criminal charge regardless of whether they committed the crime alleged.  There is nothing dishonest or immoral about pleading “Not Guilty” because your claim is essentially the state or government is unable to prove your case beyond all reasonable doubt.  Some backwards countries require you to prove your innocence — but the U.S. isn’t one of them.  By asking the State to bring it’s proof against you — you are keeping your government accountable to the people.

2.  What Rights am I Giving Up?

The framer’s of our constitution really knew what they were doing.  They gave us several extremely powerful rights — which in and of themselves could actually prevent you from being convicted regardless if you are “guilty as sin” or are completely innocent.  My list is only partial, but here are some of the rights you’ll waive in a guilty plea:

  • The right to a jury trial, the value of which speaks for itself;
  • The right to testify in your own defense and be heard — or the opposite — to remain silent so you don’t have to be exposed to harassing or abusive questions (known in the legal profession as “do you still beat your wife” questions) from the prosecutor.
  • You’re waiving arguably your most important right — the right to cross examine a witness.  Cross examination is a powerful way to break down the State’s case and show the jury or judge the full truth of an accuser’s account.
  • You’d typically (but not always) waive your right to appeal which means barring some remarkable unknown circumstances — the case will be final once the judge accepts the plea.

3.  What Are the Consequences of My Guilty Plea?

Know what you’re signing up for.  Understand the differences between deferred adjudication and a conviction and ask your lawyer about how it impacts your ability to expunge (clear) or hide (non-disclose) your record.  Understand the requirements you’re agreeing to if you’re accepting probation — and the punishments if you fall short.  Ask about other collateral consequences particular to the type of charge you’re pleading guilty to… will it affect your right to vote?  To own a firearm?  Could it cost you your job, a professional license or the ability to get a professional license?  If you’re agreeing to go to jail or prison, know the parole guidelines first.

4.  Can I Actually be Acquitted at Trial?

I tell juries all the time the truth that, “people are acquitted in courthouses all around America every single day.”  Your lawyer should be able to discuss the strengths and weaknesses of each case with you.  Again, the prosecution bears the burden of proof beyond all reasonable doubt which never shifts back to you.  Not only that, but you are presumed innocent.   Just because some facts may look bad in your case doesn’t mean you’ll lose.  Before you make the decision to plead guilty, you should know what may or may not happen at trial.

5.  Will the Punishment be Worse if I Take the Case to Trial?

People often assume the prosecutor’s plea offer is a better shake than the judge or jury will give in the event you’re convicted after a trial.  Often prosecutors, in making plea offers, simply don’t have their fingers on the pulse of the community.  Merely because the individual prosecutor may be judgmental doesn’t mean a judge or jury will agree with them.  A prosecutor asking to jail a 42 year homemaker with 3 kids for a DWI after a night of drinks with girlfriends may find the jury is angry with him for what could be seen as a mean suggestion.

6.  Won’t Fighting the Case Make the Prosecutor or Judge Mad?

Maybe.  But so what?

If you’re charged with a crime, you have to be far more concerned with how the case will impact you 10, 20, or 30 years down the road… long after both the judge or prosecutor have forgotten your name.  Besides, the vast majority of judges I’ve been around actually appreciate strong advocacy from defense lawyers and few judges (or juries) give in to a frustrated prosecutor upset about having to prove a case.

*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 and for legal advice about any situation you should consult with an attorney directly.  Contacting the attorney through this forum does not create an attorney-client relationship an communications sent through this forum are not privileged nor confidential.

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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.

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Texas Grand Jury FAQ’s

April 2, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(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. 

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