Physician – Patient Privilege in Criminal Cases

September 13, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

texasdefensefirm.com

Texas Rule of Evidence 509 governs the physician- patient privilege.  As with all privileges, it acts to protect communications that are confidential between a physician and a patient “relative or in connection with any professional services rendered by a physician to the patient.”

Tex.R.Evid. 509(b), however, practically negates the physician- patient relationship in criminal cases.  That section bluntly says, “There is no physician-patient privilege in criminal proceedings.”

The only small exception under 509(b) is that communications to any person involved in the treatment or examination of alcohol or drug abuse by a person being treated voluntarily or being examined for admission to treatment for drug or alcohol abuse is not admissible in a criminal proceeding.  This is obviously to encourage people who need help for substance abuse to voluntarily get help without recourse.

Police and/or prosecuting agencies can and do regularly subpoena medical records in criminal cases.  Examples are blood samples taken during medical treatment after a car crash where alcohol or substance abuse is suspected.  Other examples include statements made by pharmacy personnel in the reporting or allegation of prescription fraud.

Federal law which protects patients privacy under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) has a recognized exception in Texas for law enforcement purposes when they are issued a grand jury subpoena.  This means that you can’t rely on HIPAA laws to protect your privacy with doctors depending on how the police or prosecuting agency try to attain medical records.

The bottom line — communications between patient and doctor are not legally protected in criminal proceedings. The privileges largely apply in civil cases, but not criminal.

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

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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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Robbery

July 23, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

Our mind’s eye tends to think of a typical robbery as a person holding up a bank or a convenience station with a gun and asking for all the loot.  In reality, the Texas robbery statute is far thinner and believe it or not, some robbery cases can be extremely difficult cases for the prosecution.

Texas Penal Code Section 29.02 governs robbery and under subsection (a), robber is committed where, “…in the course of committing theft as defined in Chapter 31 and with the itent to obtain or maintain control of the property, he; (1) intentionally, knowingly or recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.

One main reason why these cases present difficulties to the State is that there is no requirement under the law that the robbery be pre-meditated.  In other words, it is a common scenario for a “robber” to be someone that in the course of simple shoplifting gets into an altercation with a shop-owner.  So a person who merely intended to shoplift property from a store can walk-out being saddled with a robbery charge!  These present the prosecution with headaches because jurors think robbery charges in those circumstances may be a bit harsh.

Aggravated Robbery is committed under Penal Code Section 29.03 and differs from a simple robbery because the victim suffers serious bodily injury or the defendant “use or exhibits” a deadly weapon.

Robbery is a 2nd Degree felony punishable between 2 and 20 years in prison and a fine not to exceed $10,000; and aggravated robbery is a first-degree felony and is punishable between 5 and 99 years of prison and a fine not to exceed $10,000.

Punishment in these types of cases are often the greatest battles.  The Collin County District Attorney’s Office, for example, has policies which do not allow prosecutors to plea negotiate very much and have harsh prison recommendation for first-time defendants.

Getting a lawyer on a robbery case is important for both guilt-innocence and punishment phases of a trial.  Having a trial lawyer that knows how to show you as a human to the jury is critical.

*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.

Interference With Child Custody

July 18, 2010

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

texasdefensefirm.com

(972) 369-0577

As most people know, divorces may unfortunately turn very nasty. On occasion there are collateral criminal problems which can arise from a party’s conduct either prior to or after the court makes custody determinations for the children. While the blame may often seem trumped-up or baseless — being accused of interference with child custody is as serious as a heart attack because it’s a felony accusation in Texas. Also –as with any criminal prosecution –it is important to remember that the charges are no longer between you and your divorcing spouse; it’s between you and the State of Texas.

Texas Penal Code Section 25.03 is titled “Interference With Child Custody,” and that section reads accordingly:

(a) A person commits an offense if the person takes or retains a child younger than 18 years when the person:

(1) knows that the person’s taking or retention violates the express terms of a judgment or order, including a temporary order, of a court disposing of the child’s custody; or

(2) has not been awarded custody of the child by a court of competent jurisdiction, knows that a suit for divorce or a civil suit or application for habeas corpus to dispose of the child’s custody has been filed, and takes the child out of the geographic area of the counties composing the judicial district if the court is a district court or the county if the court is a statutory county court, without the permission of the court and with the intent to deprive the court of authority over the child.

(b) A noncustodial parent commits an offense if, with the intent to interfere with the lawful custody of a child younger than 18 years, the noncustodial parent knowingly entices or persuades the child to leave the custody of the custodial parent, guardian, or person standing in the stead of the custodial parent or guardian of the child.

(c) It is a defense to prosecution under Subsection (a)(2) that the actor returned the child to the geographic area of the counties composing the judicial district if the court is a district court or the county if the court is a statutory county court, within three days after the date of the commission of the offense.

(d) An offense under this section is a state jail felony.

The legal and factual scenarios and defenses are seemingly endless. Take, just as one example, a case prosecuted under 25.03(a)(1)… A prosecution under that section would probably include a complete order from the Divorce Judge which may or may not be written clearly enough to provide a party with sufficient guidance as to what is or is not permitted for times of custody (at least in the context of criminal liability.)

Also, Section (C) provides what is known as a “safe harbor,” where the offense was committed under 25.03(a)(2)… Which is to say that if the violating person returns the child within 3 days to the area or county controlled by the Court they have a defense to prosecution. This is to facilitate the return of children and to a lesser degree (I suspect) because the criminal justice system has a some biases against getting involved in the micromanagement of custody disputes and orders.

If you are being accused of interference with a child custody order, you should involve competent and qualified criminal representation at once. It’s not something to fool with.

*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 situation you should consult an attorney directly.

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Posted by Jeremy Rosenthal, Esq.

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