Practice Areas

Rosenthal & Wadas provides complete representation to people charged different criminal offenses ranging from misdemeanors to serious felony offenses. Click on the links below to find out more information on various areas of our criminal practice:

Frequently Asked Questions

Here is a list of commonly asked questions about a variety of our practice areas. If you have any further questions or would to meet in person for a free consultation call our McKinney TX office at (972) 369-0577

DOMESTIC VIOLENCE

DOMESTIC ASSAULT & FAMILY VIOLENCE FAQ’S

What’s the difference between “domestic violence” and “family violence”?

Not much.  “Domestic violence” commonly refers to violence between adults who are married, but “family violence” as defined in the Texas Family Code is broader and includes individuals who are:

  • Related by blood or marriage
  • Current and/or former spouses
  • Parents of the same child
  • Foster parents and children

It doesn’t matter for the above groups whether they live together or not.  But the definition also includes:

  • Roommates
  • Individuals who are or were in a dating relationship

In a family violence case, the prosecutors may seek to add to add what is known as an “affirmative finding of family violence.”  This finding, though it can be attached even the smallest of misdemeanor cases, can have serious future consequences.

 

What are the different kinds of charges for family violence cases?

Several different offenses can fall under the “family violence banner,” but the most common cases are:

  • Assault (offensive touching, sometimes a reduction from a higher charge) – class C misdemeanor, $0 to $500 fine
  • Assault Family Violence – class A misdemeanor, 0 to 365 days jail and/or up to $4,000 fine
  • Assault Family Violence with prior FV conviction – 3rd degree felony, 2 to 10 years prison and/or up to $10,000 fine
  • Continuous Family Violence (2 or more incidents alleged in one year) – 3rd degree felony, 2 to 10 years prison and/or up to $10,000 fine
  • Aggravated Assault causing Serious Bodily Injury with Deadly Weapon with Family Violence – 1st degree felony, 5 to 99 years or life in prison and/or up to $10,000 fine

 

Does it matter if it was a punch or “just a push”?

Yes and no.  Bodily injury means any “physical pain, illness, or any impairment of physical condition.”  It can be as serious as a stab or gunshot wound, or as simple as pulling someone’s hair.  The issue is “did it hurt?” or “did it cause pain?”  Some felony offenses allege “serious bodily injury,” meaning “injury that creates a substantial risk of death, serious permanent disfigurement, or [extended] loss or impairment of the function of” part of the body.  The more serious the injury, the higher level the offense will be charged.  And if the officers aren’t sure, they will usually err on the side of charging the higher offense.

 

What if I’ve been convicted of a case with a finding of Family Violence case before?

If you’ve already been convicted once before of a case with an affirmative finding of family violence, then the second arrest may be charged as a third degree felony.  A third degree felony is punishable by 2 to 10 years in prison and/or a fine of up to $10,000.  If the State can’t prove the enhancement (the prior case), they may still prosecute the case as a lower offense, usually a class A assault family violence misdemeanor.

 

I was issued an Emergency Protective Order.  What does that mean?

An EPO can be issued on request from a police officer, an alleged “victim”, a guardian, or an attorney for the State.  It may prevent someone from committing family violence or assault, communicating in a harassing or threatening manner, going near a particular residence, workplace or school, or possessing a firearm.  An EPO can be effective for anywhere from 31 to 91 days, and it can be “replaced” upon request by a complainant with a standard Protective Order.

 

What happens if the complaining party doesn’t want to prosecute?

A criminal charge is between the State of Texas and the accused – not the alleged victim and the accused.  If the alleged victim doesn’t want to prosecute, then he or she can file an Affidavit of Non-Prosecution (“ANP”) with the District Attorney’s office.  This can be done through an attorney or, sometimes, DA’s offices have their own protocol.  An ANP may be the right thing in some cases but it’s a matter that needs to be discussed with your attorney because prosecutors are naturally skeptical if not cynical about an ANP.  An ANP or requesting the charges be dropped may or may not significantly impact your case.

Can I still own a gun once if I plead guilty to Assault Family Violence?

If you are convicted of a Family Violence offense, like Assault Family Violence, you forfeit your rights to ever possess or transport a firearm or ammunition under federal law.  If you violate the law, you will be subject to penalties under federal – not state – law.

DRUG POSSESSION

Possession of illegal drugs and controlled substances is an extremely complex area of the law. It’s best to start simply.
Illegal drugs fall into three main categories:

  • Prescription pills possessed without a valid prescription
  • Drugs made, manufactured or processed by unlicensed individuals
  • And marijuana.

Possession in Texas is legally defined as “actual care, custody, control or management” so to be in “possession” of anything illegal there must be evidence actually linking the accused to the contraband. Being with someone in possession or merely being in a place where drugs may be (and knowing drugs are present) is not sufficient to sustain charges in-and-of themselves.

The level of offense is dictated by certain factors in the Health and Safety Code Chapter 481.
Those factors are:

  • The type of drug
  • The amount possessed
  • And aggravating factors such as whether drugs were possessed in a drug free zone or possessed with intent to distribute.

Search and seizure law is a critical component of defending drug cases. This is because the way the police or any law enforcement attains the evidence in question is subject to a 4th Amendment analysis. Your lawyer should be an expert in probable cause, reasonable suspicion and up to date on the constantly evolving current case-law on the topic.

At Rosenthal & Wadas, PLLC, we pride ourselves in our aggressiveness on search and seizure issues as well as forcing the State to prove affirmative links to the drugs in question.

DRUG OFFENSES FAQ’S

 What’s the difference between “possession” and “distribute” or “manufacture”?

“Possession of a Controlled Substance” or simply “possession” is the basic charge for any drug offense, whether it is marijuana or methamphetamine.  Proving possession requires a showing of “actual care, custody, control, or management.”   To “distribute,” a person must deliver a drug in some way other than “administering or dispensing” it.  But “manufacture” is the broadest definition of all, including the creation and altering of any drug (other than marijuana), by chemical synthesis and/or extracting natural substances.  It can also include the packaging and labeling of a drug.

 

What’s a “penalty group” and how does it affect how I’m charged?

The legislature has divided controlled substances into 4 penalty groups, and each one has its own punishment range, depending on whether the offense is possession or manufacture and distribution, the amount of the substance, and generally based on the dangerousness of the drug itself.

Some common drugs and their associated penalty groups are:

  • PG 1 – Methamphetamine, Cocaine, Heroin, Hydrocodone (over 300 mg)
  • PG 2 – Ecstasy, PCP
  • PG 3 –  Valium, Xanax, Ritalin, Hydrocodone (under 300 mg)
  • PG 4 – Morphine, Buprenorphine

 

How will the amount affect how I’m charged?

Charges are divided up by the amount involved, based on the penalty group.

For example,  marijuana possession is charged as:

  • Less than 2 oz – class B misdemeanor
  • 2 to 4 oz – class A misdemeanor
  • 4 oz to 5 lbs – 3rd degree felony
  • 5 lbs to 2000 lbs – 2nd degree felony
  • Over 2000 lbs – 1st degree felony

For Penalty Groups 1 and 2 –

  • Less than 1 gr – state jail felony
  • 1 to 4 grams – 3rd degree felony
  • 4 to 200 grams (or 4 to 400 grams for PG2) – 2nd degree felony
  • 200 or more grams (or over 400 grams for PG2) – 1st degree felony

 

What is SAFP?

SAFP stands for the Substance Abuse Felony Punishment program.  This is an intense treatment program for probationers and parolees who need substance abuse treatment.   It includes an “in-prison” phase consisting of orientation, treatment, and then re-entry and relapse prevention.  Then there is a 3 month stay at a transitional treatment center, similar to a half-way house, followed by 9 months of outpatient treatment.  The program can last up to 30 months, depending on successful progress towards recovery and sobriety.  SAFP is perhaps the most intense drug treatment program available, but it is also considered one of the most effective.

DRIVING WHILE INTOXICATED – DWI

We are Collin County’s largest criminal defense law firm and DWI is the single-most common type of case we handle.

Our lawyers have worked on hundreds and hundreds of DWI cases as both prosecutors and defense attorneys collectively – and virtually all in Collin County.

Having 5 lawyers is better than having just 1.  We take a team approach to our DWI cases to make sure every possible path to victory is explored.  We have unique combined work sessions where your case will be broken down and discussed by up to 5 skilled DWI lawyers – even though you may be only hiring one of us.

If you’re reading this page, then you or a loved one have probably undergone the traumatic experience of a DWI arrest.   Unfortunately the case won’t go away on it’s own overnight.  But there is hope.  At Rosenthal & Wadas, we know the key to successful results is thorough analysis, precise research, and an aggressive mind-set.

DWI representation can be expensive, but being the largest criminal defense law firm in the county allows us the flexibility to help as many people as possible.  We believe in what we do.  We’d like to help!

DWI FAQ

I was arrested for DWI. What happens next?

Please remember that you have only FIFTEEN DAYS from the date of arrest to request a hearing on the potential suspension of your driver’s license. If you do not request a hearing your license will be automatically suspended 40-days from the date of the arrest.

In a typical case, the arresting police agency will send your arrest report to the District Attorney’s Office (“DA”). The DA will then file the formal charge against you in one our six County Courts at Law and you will receive a notice to appear. Generally, there is a four to six week time lapse between the time of your arrest and your fist court appearance.  The period between the arrest and the filing may be much longer in blood draw cases where lab results are pending.

How long will it take to resolve the charge against me?

The length of time it takes to resolve a DWI charge will vary. Each case is as unique as a snowflake based on the underlying facts as well as your goals and the prosecutor’s stance on your particular case.  Cases can be resolved as quickly as three months or as long as a year.

I failed or refused to submit to a breath or blood test. Is my driver’s license automatically suspended?

No. If you request hearing through the Administrative License Revocation (ALR) process within fifteen days of your arrest, your license will remain valid until such time as a hearing takes place. We will personally handle all aspects of the ALR process on your behalf.  At the hearing the State must prove certain facts. If they fail to do so, your license will not be suspended.

Why Request a ALR Hearing?

The Administrative License Revocation hearing will likely be the only opportunity you have to question the police officer that arrested you under oath prior to trial. If a hearing is set our attorneys will compel the State’s lawyers to turn over all the evidence they intend to use against you at the hearing. This will include all police reports and frequently breath or blood test results. Also, unless strategy suggests otherwise, our attorneys will require the presence of the arresting officer at your hearing. The ALR hearing is a tremendous opportunity to test the strength of the State’s case against you and to look for weaknesses in their case. At the ALR hearing we will be looking for ways to challenge all aspects of the state’s case in an effort to maintain your right to drive. By way of example only:

  • Did the police stop your vehicle in violation of the law?
  • Did the police properly perform the HGN test according to their training?
  • Did the police properly administer the other Standardized Field Sobriety Tests in accordance with their training and the standards of the National Highway Traffic Safety Administration?
  • Do the recorded police observations concerning alleged intoxication rise to the level of probable cause?
  • Was there a valid refusal of a breath or blood test?
  • Did the police comply with the observation period prior to requesting a breath test?
  • Was discovery provided in a timely manner by the State’s lawyers?
  • In blood test cases, is there proof that shows that the blood test was taken in a sanitary place, and by a qualified person?
  • In a Chapter 524 case, is there admissible, sufficient proof of operation?
  • Did the police provide any erroneous or extra statutory advice concerning the consequences of refusing or submitting to a breath test.

If you prevail at the ALR hearing the civil case is dismissed and you WILL RETAIN YOUR RIGHT TO DRIVE.

What happens if my license is suspended?

If your license is suspended you will likely be able to petition the court for an Occupational Driver’s License (ODL). An ODL is a restricted driver’s license that will allow you to drive up to twelve hours a day.

Why do I need an attorney who focuses his practice on DWI defense?

Defending DWI cases properly requires intricate knowledge of the applicable law; the science involved in breath, and the procedure used by the police to obtain and evaluate evidence in a DWI case. Most attorneys, even those who practice criminal law, do not focus on DWI defense. An experienced DWI attorney may see defenses that may be overlooked by some other attorney.

In selecting a DWI attorney, just a few questions to consider are:

  • Does the attorney have experience and success trying DWI cases?
  • Can the attorney explain in clear terms the basic operation of the breath testing device known as the Intoxilyzer 5000?
  • Does the attorney remain current on DWI focused continuing legal education?
  • What specific strategy does the attorney plan to advance in your ALR hearing?
  • Does the attorney try blood draw cases to a jury?

I refused to submit to the Standardized Field Sobriety Tests, am I in trouble?

No. You have a lawful right to refuse to submit to any field sobriety test, including the One Leg Stand, the Walk and Turn, the Horizontal Gaze Nystagmus test, and the Preliminary Breath Test.
You may also refuse to submit to the Breath Test, however your refusal may trigger certain consequences for your driver’s license.

I am guilty, do I still need a lawyer?

The short answer is yes. Even a first offense DWI carries a potential punishment range of up to one hundred eighty days in the County Jail and up to a $2,000 fine. Even if you are sure that you are factually “guilty” you should still seriously consider an experienced DWI lawyer who knows the law, the science, and the ins and outs of the court system.
First and foremost, we will always force the State’s Attorney’s to turn over ALL of the evidence to me. The evidence should include, at a minimum, all of the police generated documents, the DVD or video of both the roadside and Intoxilyzer room, and witness statements, the Intoxilyzer breath testing slip, and a lab report in blood test cases.
Only when all of the evidence is available can you make intelligent decision about how to proceed. Even if you feel that you were intoxicated, and experienced DWI attorney should be looking at issues such as:

  • How do you look on video?
  • Was the breath or blood evidence obtained lawfully?
  • Was the breath or blood evidence obtained in such a way that it’s validity may be compromised?
  • Was the stop of your car by police lawful?
  • Did the police officer administer the Standardized Field Sobriety Tests correctly?
  • Does the police report contain internal contradictions, or is it contradicted by the video?
  • Will the State be able to locate and secure the attendance of the witnesses at trial?

So, even if you think you are guilty, do yourself a favor and hire an experienced DWI attorney who can analyze your case for weaknesses that may benefit you.

Am I able to obtain a Deferred Adjudication for a Driving While Intoxicated Charge?

Not under the current state of the law. However legislation was introduced recently introduced which would authorize people charged with a first driving while intoxicated case in Texas to receive deferred adjudication.  The legislation failed, however it may be raised again at a future date in the Legislature.   In a deferred adjudication situation, no judicial finding of guilt is made and and the end of the deferral period the case is dismissed.

When would I need SR-22 Insurance?

Ordinarily, SR-22 insurance will be required after a DWI conviction or when a person needs an occupational driver’s license due to a driver’s license suspension. Frequently the suspension is the result of a DWI conviction or an ALR suspension.

You may obtain SR-22 insurance by contacting your own insurance company or by contacting another agency. Our office regularly recommends two separate agencies that have provided excellent service to our clients.

GRAND JURY

I just got a grand jury letter.  What does that mean?

Prosecutors cannot charge someone with a felony merely because they want to.  A grand jury is a body of citizens empaneled by a District Judge for a particular county that convenes regularly to hear cases and decide whether or not to issue a “true bill of indictment” or a “no bill.”  To issue a “true bill,” the grand jury must vote that there is probable cause an offense occurred.  Once the “true bill” is issued, a felony case is filed against the person.  If you received a grand jury letter telling you that you have a matter being heard by a grand jury, then you are under criminal investigation.

What happens at a grand jury?

Though a grand jury meeting is secretive by law, the grand jurors typically hear testimony and see evidence from cases and decide whether the evidence and law merit indictment (if there’s probable cause).  A prosecutor typically presents the evidence to the grand jurors and makes their recommendation.  Some prosecutors will allow defendant’s to submit a “grand jury packet” consisting usually of a legal brief, affidavits and/or evidence or exhibits for the grand jurors to also consider.

What are my rights with regard to a grand jury?

Neither a criminal defendant nor their attorney has the right to be present for grand jury proceedings.  While these rules seem extremely one-sided and unfair, understand the rationale behind a grand jury is that it’s very existence – in and of itself – is a crucial safeguard of the citizens from over-zealous prosecutors who would be made to clear the grand jury hurdle prior to indicting someone.

Is there anything I can do if I’ve got a case going to the Grand Jury?

A defendant may be allowed to present to the grand jury what is known as a “grand jury packet.”  This packet typically consists of a legal brief, affidavits under oath and/or evidence or exhibits for the grand jury to consider.  Also, defendants can make themselves available to testify before the grand jury in their own defense, however, the grand jury is under no obligation to allow a person to testify in their own defense.  In Collin County, the district attorney will not deal directly with people under grand jury investigation and will only deal with their attorneys to negotiate a “grand jury packet” or voluntary grand jury testimony.

What should I do if I get a Grand Jury Letter?

Consult with a lawyer immediately.  Felony charges are the legal equivalent of cancer on your life.  A grand jury packet may or may night be the right strategic move in your case based on variables in your case.  Only a qualified criminal defense lawyer can properly diagnose these types of issues.

JUVENILE LAWS

How old is someone to legally be a juvenile under Texas Law?

A person is considered to be an adult for criminal prosecution on their 17th birthday.  Teenagers 16 and under, therefore, fall into the juvenile justice system.  On very rare extremely serious cases, a juvenile could be certified to stand trial as an adult if a District Judge agrees.

Do the same rules apply to Juvenile cases as criminal cases?

Yes and no.  Texas Family Code Chapter 53 is a compilation of civil statutes that govern juvenile proceedings.  Chapter 53 holds the Texas Penal Code governs criminal actions with some significant differences.  Jail release and the classifications of criminal cases into sanction levels (instead of misdemeanors or felonies) are examples of some of the bigger differences.  Also there are differences in how records are sealed in juvenile cases.

How Do I get a Juvenile out of jail?

Police have two different options when arresting a juvenile.  They can release them to the parents and issue them the equivalent to a citation – or they can take the juvenile into custody.  If the juvenile is taken into custody then the juvenile has a right to a detention hearing pursuant to the Texas Family Code where a judge determines whether the child should be released back to the parents.  These procedures are complicated and an attorney should be consulted about this type of release.

Will my child be sent to prison or to the Texas Youth Commission?

Every case is obviously different.  That being said, children being sentenced to short term confinement or long term confinement – while always a possibility for some offenses – is extremely unlikely.  The vast majority of cases result in some type of probation.

Can I have my child’s records cleared when it’s over?

The juvenile justice system affords several different ways to keep a child’s record clean.  Again, each case presents it’s own challenges and you should consult an attorney as to the specifics of making sure your son or daughter is eligible for having their record sealed

MARIJUANA POSSESSION

What are the laws and penalties regarding marijuana possession?

Here’s a Quick Guide:

Weight Classification Penalty
2 ounces or less Class B misdemeanor Not more than 180 days in a county jail and/or a fine of not more than $2,000
More than 2 ounces, but less than 4 ounces Class A misdemeanor Not more than 1 year in a county jail and/or a fine of not more than $4,000
More than 4 ounces, but less than 5 pounds State jail felony 180 days to 2 years in a state jail and/or a fine of not more than $10,000
More than 5 pounds, but less than 50 pounds Third-degree felony 2 to 10 years in a state prison and/or a fine of not more than $10,000
More than 50 pounds, but less than 2,000 Second-degree felony 2 to 20 years in a state prison and/or a fine of not more than $10,000
More than 2,000 pounds Enhanced first-degree felony 5 to 99 years and a fine of not more than $50,000

 

How likely is it that I’ll get this arrest off my record?

There are more options now than ever to expunge a drug arrest from your record – but it is certainly not guaranteed.  You can always fight the charges if your rights were violated or the State can’t prove beyond all reasonable doubt you were in ‘possession’ of marijuana.  If that doesn’t work, there are several alternatives your attorney can discuss to show your arrest was a one-time mistake and that you deserve leniency.

What does possession really mean?

The Texas Penal Code Section 1.07(39) defines “possession” as “actual care, custody, control, or management.”  In other words, the State has to prove that someone was in actual care, custody, control, or management of the marijuana not just that someone was merely in close proximity to the drugs.

The police violated my rights.  Does that mean anything?

Maybe.  An illegal search would trigger Texas Code of Criminal Procedure 38.23 (otherwise known as the exclusionary rule).  Put plainly, evidence attained where the police violated your rights with an illegal detention or search would be inadmissible and could often result in an acquittal.  Miranda violations have a more limited impact, but based on the facts of your case – it could mean the difference between a conviction and acquittal.  Remember police target young people and others for drug use and can often be overly-aggressive in detaining and searching.

What exactly is considered marijuana?

The legal definition of marijuana is defined in the Texas Health and Safety Code.  Marijuana is in its own category and for the purposes of marijuana possession, is defined as any Cannabis sativa plant, whether it is growing or not, the seeds of the plant and any preparation of the plant such as a joint or a package containing dried and shredded buds.

Does having a possession of marijuana conviction on my record affect my driver’s license?

Yes, you can be sentenced to a suspended driver’s license for up to six months following a conviction on any violation of the Texas Controlled Substances Act, which includes possession of marijuana.

PROBATION VIOLATION

How does a probation revocation proceeding start?

A probation revocation begins with either a Motion to Revoke Probation, or a Motion to Adjudicate for defendants who have been placed on deferred adjudication. These motions will list the alleged probation violations.

Why is the State trying to revoke my probation?

There are many reasons why you could be facing a revocation.  The most common reasons for a probation revocation/adjudication are that your probation officer believes you have:

  • Committed a new offense while on probation;
  • Failed a random drug test;
  • Failed to pay to fines or court costs;
  • Not reported to the probation office;
  • Not completed required drug/DWI classes;
  • Not completed community service;

What happens after a Motion to Revoke/Motion to Adjudicate has been filed in my case?

A warrant will be issued for your arrest.  You will have to turn yourself into to authorities to dispute or resolve the revocation.

Am I entitled to a bond during a revocation proceeding?

It depends.  If you are on probation (either deferred or regular probation) for a misdemeanor, you are entitled to have a bond set.  If you are on felony probation you are only entitled to have a bond set if you are on deferred adjudication.  Regular felony probationers may be held with no bond.

Can I dispute the revocation?

Yes, you are entitled to a hearing on the revocation.  If you are incarcerated, you are entitled to have the hearing within 21 days.

What happens at the hearing?

The State has the burden to prove up your probation violations–usually the State will call your probation officer to prove up your violations.  The State does not have to prove the violations up by proof beyond a reasonable doubt; the State only has to put on a preponderance of the evidence that you violated your probation.  This is a much lower burden for the State to prove its case.

Can I have a jury trial for the revocation hearing?

No.  Probation revocation hearings are always held in front of a judge and the judge will decide if the State has met its burden of proof regarding your violations.  There are no jury trials for probation revocation hearings.

If the State proves its case against me at the revocation hearing, what type of punishment am I looking at?

If you are on regular probation then your original plea bargain contains the maximum number of years you can be sentenced to.  For example, if you are on probation for a 3rd degree felony your sentence could be a negotiated plea agreement of 5 years in jail, probated for 5 years.  Lawyers call this “five for five.”  In this case, your maximum jail exposure is capped at 5 years as a result of the original plea agreement.  Deferred adjudication probation is different.  In the case of deferred adjudication there is no set amount of years as your maximum punishment.  Instead of being revoked you are adjudicated (formally convicted of the charge you were placed on deferred adjudication probation for).  As a result, you are now at risk of being exposed to the full range of punishment for the offense.  For example, if you are on deferred adjudication for a 3rd degree felony you could be facing up to 10 years in jail and up to a $10,000 fine following an adjudication proceeding.

THEFT

I was arrested for Theft, what happens next?

 The State typically files a criminal case within 1-2 months. Theft cases can range from a Class C Misdemeanor all the way to a First Degree Felony. The level of offense will depend on the value of what is alleged to have been stolen.

Misdemeanor Theft is the most common form of Theft prosecuted in Collin County.

  • Class C Theft (property less than $50),
  • Class B Theft (property $50 – $500);
  • Class A Theft (property $500 – $1,500).

Felony Theft involves property valued at $1,500 or more.

What are the possible punishments for Misdemeanor Theft?

Potential punishment increases with each degree of theft:

  • Class C: $0 – $500 fine
  • Class B: 0 days  – 180 days in jail and/or $0 – $2,000 fine
  • Class A: 0 days – 1 year in jail and/or $0 – $4,000 fine

The vast majority of Theft cases resolved by a plea or finding of guilt result in some form of probation. Misdemeanor probation can last up to 24 months and can include a wide array of probation terms and conditions, including payment of hefty fines and fees.

How will a Theft case affect my record?

Theft is a crime of moral turpitude. If you are convicted of a theft offense, it will remain on your record for life. Unlike some criminal offenses, a Theft conviction will usually raise the concern or disapproval of a current or potential employer.

Is there a way to keep a Theft case off my record

There are a few of ways to keep a Theft off your record. The likelihood of doing this will depend upon a variety of factors, including the circumstances of the case and the person who is accused of committing Theft.

What happens at my first court appearance?

The first appearance is more like a work session than anything else. It is an opportunity for your attorney to meet with the prosecutor and discuss the case. Typically, the prosecutor will have a police report, video, and witness statements to share with your attorney along with an initial recommendation for a punishment that the you can receive in exchange for a guilty plea. The first appearance date is usually concluded by selecting another appearance date.

What evidence is there that I stole something?

In a shoplifting case, there is usually one or more store employee who claim to have seen something take place inside the store. Frequently, a shoplifting case will involve camera footage shot from one or more angles. Depending upon the circumstances, the police may have conducted further investigation when they arrived, but they don’t always. The State does not need a police officer to testify to prove their case.

A store employee was harassing and humiliating to me, did he violate my rights?

Many places of business employ a loss prevention department. These are people who can be dressed up like officers or in plain clothes secretly watching customers. The law allows these people to use limited force to prevent shoplifting. They may grab you, detain you, and question you until the police come. They are not required to play by the same rules that police do because the law considers them to be private, as opposed to government, entities… therefore their thoughtless conduct rarely negates an arrest – but judges and juries have little tolerance for such conduct by store employees and may give them little credibility as witnesses.

Why am I in trouble when my friend did it?

The law allows the State to try and put you on the hook for the conduct of another person. Specifically, the law says “A person is criminally responsible for an offense committed by the conduct of another if, acting with the intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the person to commit the offense.” However, mere presence alone will not make someone a party to the offense.

In this type of case, the prosecution has the burden to show you did something to affirmatively aid the person committing the theft.  Mere presence alone is not enough.

How did they come up with a dollar amount greater than what was on the sticker?

The law also allows the State to try and prove a dollar amount that varies from the sticker price. Specifically, the law says that “the value of the property taken is the fair market value of that property at the time and place of the offense,” and “fair market value is . . . the amount the property would sell for in cash, giving a reasonable time for selling it.”  Merchants are aware of the statutory amounts, and it’s not uncommon for them to attempt to find creative ways to ‘pile-on’ the price.  This is a specific area a trained attorney knows to attack.

Is there a link between shoplifting and depression

Studies have shown that there is a link between shoplifting and depression especially for middle-aged women. While this may not be a circumstance which leads to a jury finding someone not guilty, it is something to consider when talking about punishment.

ASSAULT FAMILY VIOLENCE

1. What’s the difference between “domestic violence” and “family violence”?

Not much. “Domestic violence” commonly refers to violence between adults who are married, but “family violence” as defined in the Texas Family Code is broader and includes individuals who are:

  • Related by blood or marriage
  • Current and/or former spouses
  • Parents of the same child
  • Foster parents and children

It doesn’t matter for the above groups whether they live together or not. But the definition also includes:

  • Roommates
  • Individuals who are or were in a dating relationship

2. What are the different kinds of charges for family violence cases?

Several different offenses can fall under the “family violence banner,” but the most common cases are:

  • Assault (offensive touching, sometimes a reduction from a higher charge) – class C misdemeanor, $0 to $500 fine
  • Assault Family Violence – class A misdemeanor, 0 to 365 days jail and/or up to $4,000 fine
  • Assault Family Violence with prior FV conviction – 3rd and/or up to $10,000 fine
  • Continuous Family Violence (2 or more incidents alleged in one year) – 3rd to 10 years prison and/or up to $10,000 fine
  • Aggravated Assault causing Serious Bodily Injury with Deadly Weapon with Family Violence
  • 1st degree felony, 5 to 99 years or life in prison and/or up to $10,000 fine

3. Does it matter if it was a punch or “just a push”?

Yes and no. Bodily injury means any “physical pain, illness, or any impairment of physical condition.” It can be as serious as a stab or gunshot wound, or as simple as pulling someone’s hair. The issue is “did it hurt?” or “did it cause pain?” Some felony offenses allege “serious bodily injury,” meaning “injury that creates a substantial risk of death, serious permanent disfigurement, or [extended] loss or impairment of the function of” part of the body. The more serious the injury, the higher level the offense will be charged. And if the officers aren’t sure, they will usually err on the side of charging the higher offense.

4. What if I’ve been convicted of a case with a finding of Family Violence case before?

If you’ve already been convicted once before of a case with a finding of family violence, then the second arrest will be charged as a third degree felony. A third degree felony is punishable by 2 to 10 years in prison and/or a fine of up to $10,000. If the State can’t prove the enhancement (the prior case), they may still prosecute the case as a lower offense, usually a class A assault family violence misdemeanor.

5. I was issued an Emergency Protective Order. What does that mean?

An EPO can be issued on request from a police officer, an alleged “victim”, a guardian, or an attorney for the State. It may require you to not commit family violence or assault, communicate in a harassing or threatening manner, go near a particular residence, workplace degree felony, 2 to 10 years prison degree felony, 2 degree felony, 5 to 99 years or life in prison and/or up to $10,000 fine or school, or possess a firearm. An EPO can be effective for anywhere from 31 to 91 days, and it can be “replaced” upon request by a complainant with a standard Protective Order.

6. What happens if the complaining party doesn’t want to prosecute?

If the person who is alleged as the “victim” doesn’t want to prosecute, then he or she can file an Affidavit of Non-Prosecution with the District Attorney’s office. This can be done through an attorney or, sometimes, DA’s offices have their own protocol. This does not mean the case will dismissed – if the DAs feels they should go forward with the case or even if they can prove it without his or her testimony, they may still prosecute the case. But filing an ANP doesn’t hurt.

7. Can I still own a gun once if I plead guilty to Assault Family Violence?

No. If you are convicted of a Family Violence offense, like Assault Family Violence, you forfeit your rights to ever possess or transport a firearm or ammunition under federal law. If you violate the law, you will be subject to penalties under federal – not state – law.

DRUG OFFENSES

1. What’s the difference between “possession” and “distribute” or “manufacture”?

“Possession” is the basic charge for any drug offense, whether it is marijuana or methamphetamine.  Proving possession requires a showing of “actual care, custody, control, or management.” To “distribute,” a person must deliver a drug in some way other than “administering or dispensing” it. But “manufacture” is the broadest definition of all, including the creation and altering of any drug (other than marijuana), by chemical synthesis and/or extracting natural substances. It can also include the packaging and labeling of a drug.

2. What’s a “penalty group” and how does it affect how I’m charged?

The legislature has divided controlled substances into 4 penalty groups, and each one has its own punishment range, depending on whether the offense is possession or manufacture and distribution, the amount of the substance, and generally based on the dangerousness of the drug itself.

Some common drugs and their associated penalty groups are:

  • PG 1 – Methamphetamine, Cocaine, Heroin, Hydrocodone (over 300 mg)
  • PG 2 – Ecstasy, PCP
  • PG 3 –  Valium, Xanax, Ritalin, Hydrocodone (under 300 mg)
  • PG 4 – Morphine, Buprenorphine

3. How will the amount affect how I’m charged?

Charges are divided up by the amount involved, based on the penalty group.
For example,  marijuana possession is charged as:

  • Less than 2 oz – class B misdemeanor
  • 2 to 4 oz – class A misdemeanor
  • 4 oz to 5 lbs – 3rd degree felony
  • 5 lbs to 2000 lbs – 2nd degree felony
  • Over 2000 lbs – 1st degree felony

For Penalty Groups 1 and 2 –

  • Less than 1 gr – state jail felony
  • 1 to 4 grams – 3rd degree felony
  • 4 to 200 grams (or 4 to 400 grams for PG2) – 2nd degree felony
  • 200 or more grams (or over 400 grams for PG2) – 1st degree felony

4. What is SAFP?

SAFP stands for the Substance Abuse Felony Punishment program.  This is an intense treatment program for probationers and parolees who need substance abuse treatment.   It includes an “in-prison” phase consisting of orientation, treatment, and then re-entry and relapse prevention.  Then there is a 3 month stay at a transitional treatment center, similar to a half-way house, followed by 9 months of outpatient treatment.  The program can last up to 30 months, depending on successful progress towards recovery and sobriety.  SAFP is perhaps the most intense drug treatment program available, but it is also considered one of the most effective.

DWI

I was arrested for DWI. What happens next?

Please remember that you have only FIFTEEN DAYS from the date of arrest to request a hearing on the potential suspension of your driver’s license. If you do not request a hearing your license will be automatically suspended 40-days from the date of the arrest.

In a typical case, the arresting police agency will send your arrest report to the District Attorney’s Office (“DA”). The DA will then file the formal charge against you in one our six County Courts at Law and you will receive a notice to appear. Generally, there is a four to six week time lapse between the time of your arrest and your fist court appearance.  The period between the arrest and the filing may be much longer in blood draw cases where lab results are pending.

How long will it take to resolve the charge against me?

The length of time it takes to resolve a DWI charge will vary. Each case is as unique as a snowflake based on the underlying facts as well as your goals and the prosecutor’s stance on your particular case.  Cases can be resolved as quickly as three months or as long as a year.

I failed or refused to submit to a breath or blood test. Is my driver’s license automatically suspended?

No. If you request hearing through the Administrative License Revocation (ALR) process within fifteen days of your arrest, your license will remain valid until such time as a hearing takes place. We will personally handle all aspects of the ALR process on your behalf.  At the hearing the State must prove certain facts. If they fail to do so, your license will not be suspended.

WHY REQUEST AN ALR HEARING?

The ALR hearing will likely be the only opportunity you have to question the police officer that arrested you under oath prior to trial. If a hearing is set our attorneys will compel the State’s lawyers to turn over all the evidence they intend to use against you at the hearing. This will include all police reports and frequently breath or blood test results. Also, unless strategy suggests otherwise, our attorneys will require the presence of the arresting officer at your hearing. The ALR hearing is a tremendous opportunity to test the strength of the State’s case against you and to look for weaknesses in their case. At the ALR hearing we will be looking for ways to challenge all aspects of the state’s case in an effort to maintain your right to drive. By way of example only:

  • Did the police stop your vehicle in violation of the law?
  • Did the police properly perform the HGN test according to their training?
  • Did the police properly administer the other Standardized Field Sobriety Tests in accordance with their training and the standards of the National Highway Traffic Safety Administration?
  • Do the recorded police observations concerning alleged intoxication rise to the level of probable cause?
  • Was there a valid refusal of a breath or blood test?
  • Did the police comply with the observation period prior to requesting a breath test?
  • Was discovery provided in a timely manner by the State’s lawyers?
  • In blood test cases, is there proof that shows that the blood test was taken in a sanitary place, and by a qualified person?
  • In a Chapter 524 case, is there admissible, sufficient proof of operation?
  • Did the police provide any erroneous or extra statutory advice concerning the consequences of refusing or submitting to a breath test.

If you prevail at the ALR hearing the civil case is dismissed and you WILL RETAIN YOUR RIGHT TO DRIVE.

What happens if my license is suspended?

If your license is suspended you will likely be able to petition the court for an Occupational Driver’s License (ODL). An ODL is a restricted driver’s license that will allow you to drive up to twelve hours a day.

Why do I need an attorney who focuses his practice on DWI defense?

Defending DWI cases properly requires intricate knowledge of the applicable law; the science involved in breath, and the procedure used by the police to obtain and evaluate evidence in a DWI case. Most attorneys, even those who practice criminal law, do not focus on DWI defense. An experienced DWI attorney may see defenses that may be overlooked by some other attorney.

In selecting a DWI attorney, just a few questions to consider are:

  • Does the attorney have experience and success trying DWI cases?
  • Can the attorney explain in clear terms the basic operation of the breath testing device known as the Intoxilyzer 5000?
  • Does the attorney remain current on DWI focused continuing legal education?
  • What specific strategy does the attorney plan to advance in your ALR hearing?
  • Does the attorney try blood draw cases to a jury?

I refused to submit to the Standardized Field Sobriety Tests, am I in trouble?

No. You have a lawful right to refuse to submit to any field sobriety test, including the One Leg Stand, the Walk and Turn, the Horizontal Gaze Nystagmus test, and the Preliminary Breath Test.
You may also refuse to submit to the Breath Test, however your refusal may trigger certain consequences for your driver’s license.

I am guilty, do I still need a lawyer?

The short answer is yes. Even a first offense DWI carries a potential punishment range of up to one hundred eighty days in the County Jail and up to a $2,000 fine. Even if you are sure that you are factually “guilty” you should still seriously consider an experienced DWI lawyer who knows the law, the science, and the ins and outs of the court system.
First and foremost, we will always force the State’s Attorney’s to turn over ALL of the evidence to me. The evidence should include, at a minimum, all of the police generated documents, the DVD or video of both the roadside and Intoxilyzer room, and witness statements, the Intoxilyzer breath testing slip, and a lab report in blood test cases.
Only when all of the evidence is available can you make intelligent decision about how to proceed. Even if you feel that you were intoxicated, and experienced DWI attorney should be looking at issues such as:

  • How do you look on video?
  • Was the breath or blood evidence obtained lawfully?
  • Was the breath or blood evidence obtained in such a way that its analytical reliability or validity may be compromised?
  • Was the stop of your car by police lawful?
  • Did the police officer administer the Standardized Field Sobriety Tests correctly?
  • Does the police report contain internal contradictions, or is it contradicted by the video?
  • Will the State be able to locate and secure the attendance of the witnesses at trial?

So, even if you think you are guilty, do yourself a favor and hire an experienced DWI attorney who can analyze your case for weaknesses that may benefit you.

Am I able to obtain a Deferred Adjudication for a Driving While Intoxicated Charge?

Not under the current state of the law. However legislation was introduced recently introduced which would authorize people charged with a first driving while intoxicated case in Texas to receive deferred adjudication.  The legislation failed, however it may be raised again at a future date in the Legislature. In a deferred adjudication situation, no judicial finding of guilt is made and and the end of the deferral period the case is dismissed.

When would I need SR-22 Insurance?

Ordinarily, SR-22 insurance will be required after a DWI conviction or when a person needs an occupational driver’s license due to a driver’s license suspension. Frequently the suspension is the result of a DWI conviction or an ALR suspension.

You may obtain SR-22 insurance by contacting your own insurance company or by contacting another agency. Our office regularly recommends two separate agencies that have provided excellent service to our clients.

GRAND JURY


Q.        I just got a grand jury letter. What does that mean?

A.        Prosecutors cannot charge someone with a felony merely because they want to.  A grand jury is a body of citizens empaneled by a District Judge for a particular county that convenes regularly to hear cases and decide whether or not to issue a “true bill of indictment” or a “no bill.”  To issue a “true bill,” the grand jury must vote that there is probable cause an offense occurred.  Once the “true bill” is issued, a felony case is filed against the person.  If you received a grand jury letter telling you that you have a matter being heard by a grand jury, then you are under criminal investigation.


Q.        What happens at a grand jury?

A.        Though a grand jury meeting is secretive by law, the grand jurors typically hear testimony and see evidence from cases and decide whether the evidence and law merit indictment (if there’s probable cause).  A prosecutor typically presents the evidence to the grand jurors and makes their recommendation.  Some prosecutors will allow defendant’s to submit a “grand jury packet” consisting usually of a legal brief, affidavits and/or evidence or exhibits for the grand jurors to also consider.


Q.        What are my rights with regard to a grand jury?

A.        Neither a criminal defendant nor their attorney has the right to be present for grand jury proceedings.  While these rules seem extremely one-sided and unfair, understand the rationale behind a grand jury is that it’s very existence – in and of itself – is a crucial safeguard of the citizens from over-zealous prosecutors who would be made to clear the grand jury hurdle prior to indicting someone.


Q.        Is there anything I can do if I’ve got a case going to the Grand Jury?

A.        A defendant may be allowed to present to the grand jury what is known as a “grand jury packet.”  This packet typically consists of a legal brief, affidavits under oath and/or evidence or exhibits for the grand jury to consider.  Also, defendants can make themselves available to testify before the grand jury in their own defense, however, the grand jury is under no obligation to allow a person to testify in their own defense.  In Collin County, the district attorney will not deal directly with people under grand jury investigation and will only deal with their attorneys to negotiate a “grand jury packet” or voluntary grand jury testimony.


Q.        What should I do if I get a Grand Jury Letter?

A.        Consult a lawyer immediately.  Felony charges are the legal equivalent of cancer on your life.  A grand jury packet may or may night be the right strategic move in your case based on variables in your case.  Only a qualified criminal defense lawyer can properly diagnose these types of issues.

JUVENILE LAW

Q.        How old is someone to legally be a juvenile under Texas Law?

A.       A person is considered to be an adult for criminal prosecution on their 17th birthday.  Teenagers 16 and under, therefore, fall into the juvenile justice system.  On very rare extremely serious cases, a juvenile could be certified to stand trial as an adult if a District Judge agrees.

Q.        Do the same rules apply to Juvenile cases as criminal cases?

A.        Yes and no.  Texas Family Code Chapter 53 is a compilation of civil statutes that govern juvenile proceedings.  Chapter 53 holds the Texas Penal Code governs criminal actions with some significant differences.  Jail release and the classifications of criminal cases into sanction levels (instead of misdemeanors or felonies) are examples of some of the bigger differences.  Also there are differences in how records are sealed in juvenile cases.

Q.        How Do I get a Juvenile out of jail?

A.        Police have two different options when arresting a juvenile.  They can release them to the parents and issue them the equivalent to a citation – or they can take the juvenile into custody.  If the juvenile is taken into custody then the juvenile has a right to a detention hearing pursuant to the Texas Family Code where a judge determines whether the child should be released back to the parents.  These procedures are complicated and an attorney should be consulted about this type of release.

Q.        Will my child be sent to prison or to the Texas Youth Commission?

A.        Every case is obviously different.  That being said, children being sentenced to short term confinement or long term confinement – while always a possibility for some offenses – is extremely unlikely.  The vast majority of cases result in some type of probation.

Q.        Can I have my child’s records cleared when it’s over?

A.         The juvenile justice system affords several different ways to keep a child’s record clean.  Again, each case presents it’s own challenges and you should consult an attorney as to the specifics of making sure your son or daughter is eligible for having their record sealed.

PROBATION REVOCATION

Q:       How does a probation revocation proceeding start?

A:        A probation revocation begins with either a Motion to Revoke Probation, or a Motion to Adjudicate for defendants who have been placed on deferred adjudication. These motions will list the alleged probation violations.

Q:       Why is the State trying to revoke my probation?

A:        There are many reasons why you could be facing a revocation.  The most common reasons for a probation revocation/adjudication are that your probation officer believes you have:

  • Committed a new offense while on probation;
  • Failed a random drug test;
  • Failed to pay to fines or court costs;
  • Not reported to the probation office;
  • Not completed required drug/DWI classes;
  • Not completed community service;

Q:       What happens after a Motion to Revoke/Motion to Adjudicate has been filed in my case?

A:        A warrant will be issued for your arrest.  You will have to turn yourself into to authorities to dispute or resolve the revocation.

Q:       Am I entitled to a bond during a revocation proceeding?

A:        It depends.  If you are on probation (either deferred or regular probation) for a misdemeanor, you are entitled to have a bond set.  If you are on felony probation you are only entitled to have a bond set if you are on deferred adjudication.  Regular felony probationers may be held with no bond.

Q:       Can I dispute the revocation?

A:        Yes, you are entitled to a hearing on the revocation.  If you are incarcerated, you are entitled to have the hearing within 21 days.

Q:       What happens at the hearing?

A:        The State has the burden to prove up your probation violations–usually the State will call your probation officer to prove up your violations.  The State does not have to prove the violations up by proof beyond a reasonable doubt; the State only has to put on a preponderance of the evidence that you violated your probation.  This is a much lower burden for the State to prove its case.

Q:       Can I have a jury trial for the revocation hearing?

A:        No.  Probation revocation hearings are always held in front of a judge and the judge will decide if the State has met its burden of proof regarding your violations.  There are no jury trials for probation revocation hearings.

Q:       If the State proves its case against me at the revocation hearing, what type of punishment am I looking at?

A:        If you are on regular probation then your original plea bargain contains the maximum number of years you can be sentenced to.  For example, if you are on probation for a 3rd degree felony your sentence could be a negotiated plea agreement of 5 years in jail, probated for 5 years.  Lawyers call this “five for five.”  In this case, your maximum jail exposure is capped at 5 years as a result of the original plea agreement.  Deferred adjudication probation is different.  In the case of deferred adjudication there is no set amount of years as your maximum punishment.  Instead of being revoked you are adjudicated (formally convicted of the charge you were placed on deferred adjudication probation for).  As a result, you are now at risk of being exposed to the full range of punishment for the offense.  For example, if you are on deferred adjudication for a 3rd degree felony you could be facing up to 10 years in jail and up to a $10,000 fine following an adjudication proceeding.

THEFT IN COLLIN COUNTY

1.     I was arrested for Theft, what happens next?

The State typically files a criminal case within 1-2 months. Theft cases can range from a Class C Misdemeanor all the way to a First Degree Felony. The level of offense will depend on the value of what is alleged to have been stolen.

Misdemeanor Theft is the most common form of Theft prosecuted in Collin County.
Class C Theft (property less than $50),
Class B Theft (property $50 – $500);
Class A Theft (property $500 – $1,500).
Felony Theft involves property valued at $1,500 or more.

2.     What are the possible punishments for Misdemeanor Theft?

Potential punishment increases with each degree of theft:

  • Class C: $0 – $500 fine
  • Class B : 0 days  – 180 days in jail and/or $0 – $2,000 fine
  • Class A: 0 days – 1 year in jail and/or $0 – $4,000 fine

The vast majority of Theft cases resolved by a plea or finding of guilt result in some form of probation. Misdemeanor probation can last up to 24 months and can include a wide array of probation terms and conditions, including payment of hefty fines and fees.

3.     How will a Theft case affect my record?

Theft is a crime of moral turpitude. If you are convicted of a theft offense, it will remain on your record for life. Unlike some criminal offenses, a Theft conviction will usually raise the concern or disapproval of a current or potential employer.

4.     Is there a way to keep a Theft case off my record

There are a few of ways to keep a Theft off your record. The likelihood of doing this will depend upon a variety of factors, including the circumstances of the case and the person who is accused of committing Theft. 

5.     What happens at my first court appearance?

The first appearance is more like a work session than anything else. It is an opportunity for your attorney to meet with the prosecutor and discuss the case. Typically, the prosecutor will have a police report, video, and witness statements to share with your attorney along with an initial recommendation for a punishment that the you can receive in exchange for a guilty plea. The first appearance date is usually concluded by selecting another appearance date.

6.     What evidence is there that I stole something?

In a shoplifting case, there is usually one or more store employee who claim to have seen something take place inside the store. Frequently, a shoplifting case will involve camera footage shot from one or more angles. Depending upon the circumstances, the police may have conducted further investigation when they arrived, but they don’t always. The State does not need a police officer to testify to prove their case.

7.     A store employee was harassing and humiliating to me, did he violate my rights?

Many places of business employ a loss prevention department. These are people who can be dressed up like officers or in plain clothes secretly watching customers. The law allows these people to use limited force to prevent shoplifting. They may grab you, detain you, and question you until the police come. They are not required to play by the same rules that police do because the law considers them to be private, as opposed to government, entities… therefore their thoughtless conduct rarely negates an arrest – but judges and juries have little tolerance for such conduct by store employees and may give them little credibility as witnesses.

8.     Why am I in trouble when my friend did it?

The law allows the State to try and put you on the hook for the conduct of another person. Specifically, the law says “A person is criminally responsible for an offense committed by the conduct of another if, acting with the intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the person to commit the offense.” However, mere presence alone will not make someone a party to the offense.

In this type of case, the prosecution has the burden to show you did something to affirmatively aid the person committing the theft.  Mere presence alone is not enough.

9.     How did they come up with a dollar amount greater than what was on the sticker?

The law also allows the State to try and prove a dollar amount that varies from the sticker price. Specifically, the law says that “the value of the property taken is the fair market value of that property at the time and place of the offense,” and “fair market value is . . . the amount the property would sell for in cash, giving a reasonable time for selling it.”  Merchants are aware of the statutory amounts, and it’s not uncommon for them to attempt to find creative ways to ‘pile-on’ the price.  This is a specific area a trained attorney knows to attack.

10.  Is there a link between shoplifting and depression?

Studies have shown that there is a link between shoplifting and depression especially for middle-aged women. While this may not be a circumstance which leads to a jury finding someone not guilty, it is something to consider when talking about punishment.