Defending Injury to a Child Charges

December 26, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Being criminally charged with injury to a child can be Earth shattering.  

These cases come with all sorts of built-in hurdles such as self-assured prosecutors or CPS members, complications from ongoing divorces, and a lack of understanding of someone being accused.  Aggressive and skillful representation is a must.

Tex.Pen.C. 22.04 is called, “Injury to a Child, Elderly Individual or Disabled Individual.”  That law states in relevant part,

“A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or intentionally, knowingly, or recklessly by omission, causes to a child, elderly individual, or disabled individual:

“(1)  serious bodily injury (defined as ‘bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ’);

“(2)  serious mental deficiency, impairment, or injury; or

“(3)  bodily injury (defined as ‘physical pain, illnes, or any impairment of physical condition’).

Here are several notes about cases of injury to a child — First is that these cases are highly subjective.  Standards such as intentionally, knowingly, recklessly or with criminal negligence are subjective enough.  If that weren’t enough, an injury sustained by a child can also be highly subjective in nature.  This means that police agencies in Texas as well as Child Protective Services (“CPS”) have very broad discretion in pursuing these cases.

Secondly, there are many defenses and affirmative defenses available to people accused of injury to a child in Texas.  The main defense is provided by Tex.Pen.C. 9.61 which allows the use of force, but not deadly force, against a child younger than 18 years of age (1) if the actor is the child’s parent or step-parent acting in loco parentis to the child (which includes grandparents, guardians, or any person acting by, through, or under the discretion of a court with jurisdiction over the child, and anyone that has the express or implied consent of the parent or parents of the child); and (2) when and to the degree the actor reasonably believes the force is necessary to discipline the child or to safeguard or promote his welfare.

Injury to a child can be anywhere between a First Degree Felony (5 to 99 years) to a State Jail Felony (18 months to 2 years State Jail) depending on how the offense was committed and on the nature of the injury.

Investigations of these cases can seem innocuous enough from the accused’s standpoint.  It isn’t uncommon for law enforcement or CPS to call and ask the accused to come and answer questions in an ‘informal’ setting.  Any person requested to give a statement to law enforcement or CPS about an injury to a child case should immediately contact counsel.

*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 for any specific matter you should consult an attorney directly.

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Posted by Jeremy Rosenthal, Esq.

Probation Conditions

November 22, 2010

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

(972) 562-7549

texasdefensefirm.com

When you’re on probation in Texas, you are given a host of “terms and conditions” of probation (otherwise more formally known as “community supervision.”).  Those terms and conditions comprise the laundry list of everything you’re responsible for doing (or not doing as the case may be.)

Common examples of terms and conditions of probation are community service hours and paying off costs and fines.  Usually the nature of the underlying case is reflected in some of the probation requirements.  For example, in a theft case the prosecutor may recommend an anti-theft class and prohibition from entry into a store where the theft occurred.

For DWI probation, the legislature has made several requirements which must be completed.  Examples are attending a victim impact panel and going to a DWI class.  Recently the legislature has added provisions for drunk driving probation depending on the blood alcohol level of persons arrested.  In cases where the blood or breath test is over a 0.15, a deep lung device must be installed on the vehicle for at least 1/2 of the probation period.

Drug offenders are generally required to give random urinalyses and it is not uncommon for probation on drug and alcohol cases to be fairly intensive.  In some extreme cases (felonies), the Judge can order a person to go to county or state-run in-patient rehabilitation which can take upwards of a year to complete.  Even though the program is essentially prison — it is done as a “pre-requisite” of probation.

It is a safe assumption that a violation of the laws of the State of Texas or any other state can trigger a revocation.

A probation officer does not determine whether you have violated your probation (regardless of what they tell you).  They do have a lot of power, however, in a revocation proceeding.  Usually it is the probation officer that can trigger the violation to be heard by a judge by suggesting the prosecutor file a “motion to revoke” or “motion to adjudicate” in deferred adjudication cases.  The judge determines whether there has been a violation and it is a much lower standard of proof than would normally be at trial.

*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 any situation you should always contact an attorney directly.

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Posted by Jeremy Rosenthal, Esq.

If You’re Under Investigation for Injury to a Child

October 13, 2010

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

texasdefensefirm.com

(972) 562-7549

Child abuse allegations are extremely serious in nature.

Texas law takes these matters so seriously that we are all charged with an affirmative duty in Texas of reporting any abuse or neglect of a child to the authorities.  This duty even cuts through the attorney-client relationship.

It is extremely common for law enforcement, either a local police agency or Child Protective Services (CPS) to conduct investigations of child abuse or endangerment — without trying to ‘tip off’ the accused that he’s being investigated for a felony.  What may seem like an innocuous request to have an in-person interview, may be a back-handed attempt to get a confession.  If you have any question about why you’ve been contacted for an investigation you should speak with a lawyer immediately.

The law surrounding child abuse allegations in Texas are extremely complex and if you’re accused, you shouldn’t attempt to navigate these waters alone.  Child abuse can be either a crime where someone is alleged to have acted “intentionally” or “knowingly” or it can be what is known as an “inchoate” crime which is a crime of omission — or failing to act.

For starters, “Injury to a Child” is defined by Texas Penal Code 22.04 which says,

(a)  A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or intentionally, knowingly, or recklessly by omission, causes to a child, elderly individual, or disabled individual:

(1)  serious bodily injury;

(2)  serious mental deficiency, impairment, or injury; or

(3)  bodily injury.

There are affirmative defenses under this statute, however:

Penal Code 9.61 governs the parent-child relationship and says, “(a)  The use of force, but not deadly force, against a child younger than 18 years is justified:

“(1)  if the actor is the child’s parent or stepparent or is acting in loco parentis to the child; and

“(2)  when and to the degree the actor reasonably believes the force is necessary to discipline the child or to safeguard or promote his welfare.

“(b)  For purposes of this section, “in loco parentis” includes grandparent and guardian, any person acting by, through, or under the direction of a court with jurisdiction over the child, and anyone who has express or implied consent of the parent or parents.

Teachers are also provided an affirmative defense in some situations under Section 9.62:

“The use of force, but not deadly force, against a person is justified:

“(1)  if the actor is entrusted with the care, supervision, or administration of the person for a special purpose; and

“(2)  when and to the degree the actor reasonably believes the force is necessary to further the special purpose or to maintain discipline in a group.

Again, law surrounding injury to a child is extremely complicated and the stakes are very high.  By handling things on your own or simply trusting investigators that have contacted you — you are taking a huge gamble with your future!

*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 contact an attorney directly.  Contacting Jeremy F. Rosenthal through this blog does not create an attorney-client relationship and that contact is not considered privileged or confidential in any way.

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Posted by Jeremy Rosenthal, Esq.

Project Innocence Interview — Peter Neufeld

August 19, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

Today I’m posting an interview done  by Slate Magazine with Peter Neufeld, the co-founder of project innocence.  It’s an amazing read.

The main stream regularly writes off people like Mr. Neufeld and project innocence as “village idiots” unless and until the system turns on them.  The main theme that runs throughout his interview, although they don’t say it in these terms, is confirmation bias — where the police grab onto a theory and won’t let the facts get in the way.

*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 you should consult an attorney directly.

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Should I Just Throw Myself on The Mercy of The Court?

July 28, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

texasdefensefirm.com

I get asked this question on a regular basis at the onset of a case.  My answer is this — there may be a time and place for that, but you can’t be acquitted that way.  If begging for mercy gets you the best result possible besides an acquittal — it is usually just a coincidence.

Most of us are programmed with integrity and a sense of shame if we think we’ve done something wrong.  Those traits serve us well most of the time.  But there are three things you may be incorrectly assuming in thinking that just pleading guilty and begging for mercy is the only thing to do; (1) you’re assuming that it’s improper or somehow dishonest to assert your constitutional rights such as remaining silent and forcing the State to prove it’s case beyond all reasonable doubt; (2) you’re assuming that a judge or a jury will punish you more for holding the police and the prosecution to the burdens and standards they accepted when they took the job; and (3) you’re assuming that the Judge’s or prosecution’s view of justice is fair — and that you’ll have a frame of reference to know whether or not the deal you’re getting is raw.

Notice I used the word “assume” four times in the above paragraph.  When you make the decision to plead guilty before you’ve had a lawyer evaluate the case — you’re making a ton of assumptions which means you’re ultimately making a very uninformed decision.

A good general doesn’t take an effective battle weapon off the table when planning for war.  A good doctor doesn’t take a useful procedure out of consideration when dealing with an illness… so why should you limit your options and fight what may be the most critical situation of your life with your hands behind your back?

There may be all sorts of legal defenses available in any given case, or at the very least, an attorney can help you have a voice when the prosecutor is being unfair with punishment options… but you won’t know unless you make the decision to at least keep the option of being aggressive on the table!

*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 about any specific situation.

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