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What’s Legal in Your State Might Not Be Legal in Texas

Gun and Knife

Many of us will be traveling during the holiday season. When you cross states lines, however, you need to be aware that there are certain items that may be legal in your destination but not Texas, and vice versa. And we’re not talking about your grandmother’s fruitcake–we mean potentially dangerous weapons, like firearms, knives, and stun guns.

Here is a brief rundown of how laws differ among states with respect to some of these items and what is legal in Texas:

Firearms

Texas is well-known for its permissive gun laws. Just about anyone can purchase a firearm with a state-issued ID. Texas does not require any waiting period for firearms purchases, and you can travel with a handgun in your case so long as it is concealed.

However, you do need a license to carry a concealed handgun in Texas. If you already have such a permit, you may be wondering if that applies when you travel outside of the state. The answer to this depends on where you are going. Texas has negotiated “reciprocity” agreements with a number of other states with respect to concealed handgun permits. For example, such an agreement exists between Texas and Oklahoma. This means that if you hold a concealed handgun permit from either state, you can freely travel to the other state with your weapon.

But what about states with more restrictive firearms laws? Suppose you are flying to New York City to visit a family member. The State of New York does not have a reciprocity agreement with Texas. And in fact, New York does not allow anyone to own–much less carry–a handgun without a license. So the mere fact you have a concealed-carry permit from Texas will not help you. If the New York police find you with a gun, you can and will be arrested.

On the other hand, if you are among the select group of people who do have a license to carry a handgun from New York, Texas will allow you to bring your weapon into this state. In 2006, then-Gov. Rick Perry issued a unilateral proclamation “granting full faith and credit to valid concealed weapon permits issued by the State of New York.” There are a number of states where Texas has similar “unilateral” policies. The Texas Department of Public Safety maintains a current list of each state and its present relationship with Texas with respect to concealed firearms agreements.

Note that it is important to check the gun laws of the state you are traveling to before getting on a plane. Do not assume that your weapon is legal at your destination simply because you were able to check it with the Transportation Security Administration (TSA). The TSA regulations simply require firearms be unloaded and locked in a hard-sided container that is checked baggage. But you can still be arrested if the laws of your destination state do not permit concealed carry of weapons.

Knives, Knuckles & Stun Guns

Up until recently, Texas actually had fairly strict laws banning the use of certain knives. That changed in 2017 when the legislature largely deregulated the possession of knives with blades over five and one-half inches, including switchblades and even larger items like machetes and swords. Such blades are now classified as “location-restricted knives,” and cannot be carried in certain places, such as schools, hospitals, churches, and amusement parks. Shorter knives may generally be carried anywhere without restriction.

One category of weapon that remains illegal in Texas is “knuckles.” In the Texas Penal Code, this refers to “any instrument that consists of finger rings or guards made of a hard substance and that is designed, made, or adapted for the purpose of inflicting serious bodily injury or death by striking a person with a fist enclosed in the knuckles.”

Although we commonly associate knuckles with brass knuckles, there are other devices that fall within the state’s ban. Indeed, the Dallas Morning News reported earlier this year that some people have been arrested for carrying “plastic self-defense keychains” that qualify as knuckles. These inexpensive devices, which are “usually shaped like cats or other animals with pointed ears” are popular among women looking to defend themselves from potential attackers. And while they may be perfectly legal in other states, they remain prohibited under Texas law.

Another popular self-defense tool, stun guns (i.e., Tasers), are perfectly legal to possess in Texas, so long as they are used solely for self-defense. But as with firearms, there are some states–notably New York and New Jersey–that ban stun guns. Individual cities, such as Philadelphia and Washington, DC, also restrict the use of such devices. So once again, it is important to check all local laws before you travel.

Marijuana

The most important thing to remember is if you are from a state where marijuana is legal, once you cross state lines into the Lone Star State, Texas laws go into effect. You may have bought the marijuana legally for example in Colorado, but it is illegal as soon as you cross into Texas.

In Texas, the possession of up to two ounces of marijuana could translate to six months in jail and up to $2,000 in fines. Marijuana intoxication can also be used as grounds to charge someone with a DWI.

It’s never legal to fly with cannabis, even if you’re traveling within a legal-weed state like California or between states that both permit marijuana. Air travel falls under federal jurisdiction, and under federal law it remains illegal to possess or transport any amount of cannabis. When TSA officers do find a stash, they hand the incident – and the weed – over to local law enforcement. This can also include Cannabis oil (CBD oil) and cannabis infused products (edibles).

No matter how much of an extract you possess, if caught, you are facing felony prosecution. And remember that Texas will hold you accountable for adulterants and dilatants. In other words, if you are caught in Texas with a brownie that contains THC extract or an edible, expect the state to charge you for the entire weight, even the part that does not contain THC.

Bottom line – Don’t travel with cannabis across state lines.

Need Help from a McKinney Criminal Defense Attorney?

If you do find yourself in hot water here in Texas for an item brought into the state, and you need to speak with a Collin County criminal lawyer, contact Rosenthal & Wadas, PLLC today.

Posted in Criminal Defense, Federal Firearms Violation

Porch Pirates Could be Arrested for Federal Charges

Christmas Presents

With the increase in people shopping online comes an increase in the number of packages left on people’s porches or doorsteps for them to pick up when they return from work. But as many people are finding out, those packages sometimes go missing before they return home.

The culprit? Porch pirates. Seeing a package sitting out on a porch can be very tempting for people to pick up and run away with. In fact, social media is filled with home surveillance videos showing people running onto a neighbor’s property to grab a package before dashing away. According to one survey, about 30% of people have had a package stolen from them, and these numbers could be climbing.

If you are tempted to take a package that does not belong to you, think twice. Not only is stealing a state crime, but you might find yourself caught up in federal charges, in particular, theft.

Federal Theft Statute

Theft is typically a state crime, and Texas vigorously prosecutes those who steal from another person. However, when someone steals mail, then they have also violated federal law, in particular 18 U.S.C. § 1708.

Under this statute, it is a crime to steal, take, or obtain by fraud any mail or to destroy or embezzle any mail. It is also a crime to attempt to commit this crime as well. You can be punished with a fine of up to $250,000 or up to five years in prison, or both.

Other Crimes

Depending on what you take, you might have also committed other crimes. For example, if you stole something that contains identifying information, then you might be guilty of identity theft depending on whether you use the information. Personal information includes things like:

  • Date of birth
  • Address
  • Tax ID numbers
  • Social Security numbers
  • Passport or driver’s license information

Someone you know might take this information and use it to obtain loans or credit cards, even if you do not use it. Either way, you are vulnerable to prosecution.

Why You Want to Avoid Federal Court

The federal government has much more resources to commit to prosecuting federal crimes than Texas does prosecuting state crimes. For this reason, we always recommend that you try to avoid violating federal law. Federal prosecutors will throw the book at even a small-time criminal defendant. Think of that the next time you are tempted to abscond with someone’s Amazon package.

Federal criminal law and procedure also differs from state law, and not every attorney is prepared to defend you in federal court. An inexperienced attorney does not know how to negotiate a plea agreement with a federal prosecutor or how to get charges reduced or dismissed.

With so much at stake, why put your future in the hands of an inexperienced Texas criminal defense attorney?

Defenses to Theft

If you are caught red-handed with someone else’s package, then it might be hard to build a credible defense. Nevertheless, in some situations, our clients have legitimate defenses to raise:

  • The person caught on the video is not you. Someone else who took the package might look like you.
  • The package was left on your doorstep and you opened it. Sometimes, delivery drivers make mistakes. It is not a crime to have a package if it is erroneously delivered to you and you did not notice that the package was not addressed to you when you opened it.
  • The police illegally searched you. If the police found a small package on your person, they need to have had probable cause to search you. They might have lacked it, which means you can often get the goods excluded from trial.

Each case is different. Porch pirates often face both state and federal charges in Collin County, so the process of defending against these claims is lengthy.

Speak to a Criminal Lawyer in Collin County Today

If you have been arrested for theft or another crime, you need an attorney to help protect your rights. At Rosenthal & Wadas, we see clients make critical errors in the days following an arrest. For example, far too many make incriminating statements to the authorities which are very difficult to suppress or explain away later.

As soon as you realize that the police suspect you of committing a crime, reach out to us. You can call 877-538-8640 or send us an online message. One of our Collin County criminal defense lawyers will meet with you to assess your situation and come up with a plan for your defense.

Avoid delay. The sooner we get to work defending you, the better our chances of obtaining a favorable resolution.

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Posted in Theft

Jeremy Rosenthal & Kyle Therrian Co-Authors For Study

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Jeremy Rosenthal and Kyle Therrian were co-authors for the study “Police Discretion and Racial Disparity in Organized Retail Theft Arrests: Evidence from Texas.” The primary author of the research, Michael Braun, an associate professor at the SMU Cox School of Business worked with Mr. Rosenthal and Mr. Therrian to publish the study in the December 2018 issue of the Journal of Empirical Legal Studies.

The new study estimates that for a typical Texas police department arresting the same number of blacks and whites for “property theft” of less than $1,500, nearly twice as many blacks than whites were arrested for the more serious offense of “organized retail theft.” The researchers conducted a statistical analysis of arrests for both property theft and organized retail theft from 2012 to 2015. They estimated an association between the arrest charge and the race of the arrestee for 669 Texas police departments and predict that a “typical” department would make about twice as many organized retail theft arrests of blacks than whites, and about 20 percent more of Hispanics than whites, given the same number of property theft arrests.

Visit this site to read the entire article.
https://www.smu.edu/cox/Learning-Culture/ResearchPapers/20181206_Braun

Posted in Criminal Defense

Criminal Defense Never Takes a Holiday

Arrested 1

Many people take vacation in December, which would seem to lower stress levels, but with financial obligations, busy schedules and family issues, holidays can be extremely overwhelming.

If a loved one is arrested during the holiday season, they may be sitting in a holding cell for 48 to 72 hours before they go in front of a judge for arraignment. Courts are closed on major holidays (including Christmas Eve and Christmas Day) so an arrest during this time, may cause a longer time in jail than usual.

DWI

The holidays season includes parties, happy hours and social gatherings. Be responsible and designate a driver that evening that is not drinking or have Uber or Lyft drive you around town. If you are driving keep your car in good condition. Broken tail lights or other defects on your car give police officers an opportunity to pull you over and question you.

Shoplifting

Retail stores of all sizes will frequently increase their security and loss-prevention measures during holiday weekends, as there is no doubt they will see increased traffic in the store. Even a misdemeanor shoplifting charge can carry heavy fines and even jail time. If you are accused of shoplifting or retail theft, the most important step is to seek legal counsel quickly.

Domestic Violence

Sometimes the holiday stress can be overwhelming, and people lash out towards those people they feel closest to. A holiday argument could very well escalate into allegations of domestic violence. When a case of domestic violence is reported to law enforcement, the state will likely press charges even if the alleged victim does not want to pursue criminal charges.

Discuss Your Case and Defense with a Collin County Criminal Defense Attorney

While we hope you never have to contact our office, it is important to have our phone number in your cell phone just in case. Just like your insurance agent you want to have a plan of who to call when you need assistance. If you or a loved one is arrested, Rosenthal & Wadas is available to assist you 24 hours a day, including holidays ~ 972-369-0577.

Posted in Criminal Defense

What Is an Affidavit of Non-Prosecution (ANP) and How Does It Affect a Criminal Case?

Signing Document

Many Collin County criminal cases start with someone contacting the police and filing a report. This is a common occurrence in family violence cases–someone tells the police their partner assaulted them. After some time has passed, however, the accuser may not wish to go forward with criminal prosecution. Maybe the person made up the whole thing, or perhaps they simply want to put the incident “behind them” and avoid testifying at a public trial.

There is a misconception among many people that an accuser can simply “drop the charges,” thereby ending the criminal case against the defendant. But that is not how the criminal justice system operates. In a civil case, a plaintiff may voluntarily dismiss his or her lawsuit against the defendant. In contrast, a criminal case is handled by the District Attorney, not the accuser, as the legal representative of the State of Texas. This means that once a case is in the system, it is ultimately up to the DA to decide whether or not to proceed.

Obviously, a DA’s job is more difficult if the accuser no longer wishes to cooperate. Prosecutors will certainly take the accuser’s wishes into account, but they are not legally bound by them. If the DA decides to proceed with the case, he or she can still compel the accuser to testify in court by issuing a subpoena. And as with any witness, if the accuser tries to ignore the subpoena, the court may issue an arrest warrant and cite the person for contempt of court.

That said, the accuser may try to avoid the need for testifying by filing a document known as an “affidavit of non-prosecution” (ANP). An affidavit in Texas is basically a written document sworn before a notary that states certain facts and attests to their truthfulness under oath–i.e., under penalty of perjury. While the precise form will vary based on the case, an ANP essentially states that the accuser does not wish to pursue charges against the defendant and presents any additional facts or circumstances the District Attorney and the judge should be aware of before proceeding any further with prosecution. The ANP should also make it clear the accuser understands she may still be compelled to testify in court, and that she is signing the affidavit voluntarily and not under coercion, threat, or promise of any future consideration.

This last point is critical. The defendant must not take any action in order to secure an ANP. It must be the accuser’s free and voluntary action. And in many family violence cases, a defendant who attempts to contact the accuser about an ANP may also violate a standing order of protection. So, under no circumstances should a defendant ever try to pressure or lobby their accuser into making a statement renouncing their previous allegations.

If you are a defendant facing a false accusation or an accusing witness looking to avoid a trial, contact the criminal lawyers in Collin County at Rosenthal & Wadas, PLLC, today if you need immediate legal advice or assistance.

Posted in Uncategorized

Can You Refuse to Testify if Subpoenaed by a Texas Court?

Courtroom

Have you received a subpoena to testify as a witness in a criminal trial or grand jury proceeding? If so, you probably have many questions regarding the law and your rights. For example, can you ignore the subpoena? If not, what are the penalties if you refuse to show up in court and testify? And can you be forced to testify if what you say might incriminate you?

Here is a brief explanation of what subpoenas are and how you may be able to avoid testifying under certain circumstances. Keep in mind that this is simply general information and not specific legal advice for you. As with any legal matter, you should speak with a qualified Collin County criminal defense lawyer if you require assistance with a specific problem.

What Is a Subpoena?

A subpoena is basically a court order directing the recipient to appear before a court for a specific purpose. That purpose is usually to testify at a criminal trial or before a grand jury, although there are other kinds of legal proceedings where subpoenas may be used, such as a coroner’s inquest. The subpoena itself is normally issued to a peace officer, such as the local sheriff, who serves it on the recipient.

A Texas court may also issue what is known as a “subpoena duces tecum.” This is an order directing the recipient to bring a particular “instrument of writing or other thing desired as evidence” to the court for use in a criminal proceeding. For example, a subpoena duces tecum may direct you to bring certain records to the court which are relevant to a particular trial.

What Happens If I Ignore a Subpoena in Texas?

A subpoena is not a polite request. It is a legally enforceable court order requiring the recipient appear in court–or bring the requested evidence–and testify at a given date and time. If you fail to obey a subpoena, a judge can fine you up to $500 if the underlying case involves a felony, or up to $100 if it is a misdemeanor trial.

The fine itself is conditional. If you later appear in court and “show cause”–i.e., provide the judge with a valid explanation of your prior failure to obey the subpoena–the court may reduce or waive the fine. Also, if you show up and testify after initially disobeying the subpoena, the judge has the discretion to reduce or waive your fine, although you may be still be assessed court costs.

Can I Go to Jail for Disobeying a Subpoena?

In a Texas state court, a judge may issue an order known as a writ of attachment, which orders a police officer to physically bring you to court in order to comply with a subpoena. It is effectively an arrest warrant. And in theory, the judge could order you held in custody until the underlying criminal trial is completed.

With respect to federal court, disobeying a subpoena is considered an act of “criminal contempt.” This means you can be separately charged and tried for refusing to appear or testify in the original case. If convicted–and you are entitled to a jury trial for criminal contempt–the judge can send you to jail for up to six months.

How Can I Fight a Subpoena?

While you cannot simply ignore a subpoena without facing the legal consequences outlined above, there are situations where you may fight the subpoena. The two most common examples of this are cases where the witness might incriminate themselves through their testimony, or scenarios where the testimony itself is subject to privilege.

The Fifth Amendment to the U.S. Constitution states that no person “shall be compelled in any criminal case to be a witness against himself.” So even if you are under subpoena, you can never be compelled to testify when doing so might place you in legal jeopardy. Along similar lines, there are certain types of legal communications that are privileged–i.e., protected from compelled testimony. For instance, spouses cannot be forced to testify against one another.

If you have received a subpoena yourself and believe you may be protected by constitutional or other legal privilege, you should speak with an Collin County criminal defense lawyer. Call Rosenthal & Wadas at 972-369-0577 today if you need immediate legal advice.

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Posted in Federal Criminal Defense

Moving Out of State While On Probation

Traveling

In most misdemeanor–and many felony–cases, a defendant is not sent to jail upon conviction. Instead, Texas law allows the judge to sentence the defendant to community supervision, which is more commonly known as “probation” in other states. Probation basically means the defendant remains free, subject to his or her compliance with certain conditions imposed by the court. In misdemeanor cases, probation can last up to 2 years. In felony cases, probation may run as long as 10 years, although it is possible to seek early release under certain circumstances.

If you are under community supervision in Collin County, Texas, you know that you must frequently report to a probation officer. You must also typically obtain your probation officer’s permission to change jobs or residences. This raises a number of questions that you might not have previously considered: What if I want to move outside of Texas? Can I do so? And does my probation continue in my new state? Alternatively, if you are currently serving probation in another state, is it possible to move to Texas?

The short answer is yes, it is possible to move from one state to another while on probation. Texas is part of a legal agreement known as the Interstate Compact for Adult Offender Supervision. This is basically a contract between the 50 state governments and the District of Columbia that makes it possible to “transfer” probation from one jurisdiction to another.

Mandatory Transfer of Supervision

So how does the Interstate Compact work? Let’s say you are currently serving probation here in Texas and you want to move to Arizona. In order to make that happen, you must file an application with your probation officer before you move. If your probation officer and the State of Texas approve your application, it is then sent to Arizona officials for their review and approval.

In some cases, the receiving state–Arizona in our hypothetical example–must accept your application. This is known as a “mandatory transfer of supervision.” But you are only qualified for a mandatory transfer if you meet all of the following conditions:

1. There are more than 90 calendar days left on your term of probation.
2. You have a “valid plan of supervision.”
3. You are in “substantial compliance” with your existing probation conditions.
4. You are a resident of the receiving state.
5. You have family members who live in the receiving state and are willing and able to assist with your plan of supervision.
6. You can obtain a job in the receiving state or possess other financial means to support yourself.

There are also scenarios where a receiving state must accept a qualified transfer from an offender who is either a member of the armed forces or a family member who lives with a member of the armed forces. For example:

1. You are a member of the armed forces currently on probation in Texas and you have been deployed to the receiving state.
2. You are a civilian on probation in Texas but married to a spouse who has been deployed to the receiving state.

Along similar lines, if you or your spouse hold a non-military job and a transfer to another state is necessary as a condition of maintaining your employment, you are eligible for a mandatory transfer under the Interstate Compact, assuming the person on probation still meets all of the other conditions described above.

Discretionary Transfers

Even if you do not qualify for a mandatory transfer of supervision, you can still apply for a discretionary transfer under the Interstate Compact. Keep in mind, however, that discretionary means just that–neither the sending nor the receiving state is obligated to grant your request. Under the Interstate Compact, the sending state must provide “sufficient documentation” to justify an offender’s request. But the receiving state is still free to say no, provided they specify their reasons.

Also note that even in mandatory transfer cases, the receiving state still has the right to conduct an investigation to ensure the offender meets all of the requirements under the Interstate Compact. According to the terms of the agreement, the receiving state typically has 45 calendar days from the receipt of the sending state’s request to complete its investigation.

Contact a Collin County Criminal Defense Lawyer Today

This is only a brief overview of the Interstate Compact and how it works. If you have any further questions about how transferring your probation to or from another state may apply to your family situation, you need to speak with a qualified criminal lawyer in Collin County. Contact the dedicated Collin County probation violation lawyers at Rosenthal & Wadas, PLLC if you need immediate legal advice or assistance.

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Posted in Federal Criminal Defense, Probation

Attorney Vanita Budhrani Parker Joins Rosenthal & Wadas

Attorney Vanita Parker Profile

Rosenthal & Wadas is pleased to announce the addition of attorney Vanita Budhrani Parker to its practice, having joined the firm in September 2018.

With more than 20 years of criminal law experience, including her background as both a Dallas County prosecutor and criminal defense attorney, Vanita is a tremendous asset to clients charged with alleged criminal violations,” said Derk Wadas, co-managing partner of the firm.

Since leaving the Dallas District Attorney’s office in 2009, Vanita has spent her time defending clients charged with crimes ranging from misdemeanors to Capital Murder. She specializes in defending clients diagnosed with mental illnesses or impairments and works with mental health providers and doctors to ensure that her clients are getting the treatment they need.

Over the course of her career, Vanita has represented law enforcement officers, acting as both a legal advisor and General Counsel for the Dallas Chapter of the National Latino Law Enforcement Organization and representing police officer defendants in various crimes as a defense attorney. She has also represented officers with the Texas Municipal Police Association.

Vanita brings litigation and leadership experience to our office and we’re excited to have her on board,” said Jeremy Rosenthal, co-managing partner of the firm.

Rosenthal & Wadas, PLLC

Rosenthal & Wadas, the largest criminal defense firm in Collin County, has two partners board certified in criminal law by the Texas Board of Legal Specialization. Both partners are former state criminal prosecutors and head a firm of seven lawyers who have dedicated their practice to the defense of individuals charged with criminal offenses. Our firm represents people that stand accused in a variety of criminal cases, including complex white-collar matters, federal conspiracies, state felony and misdemeanors and other serious allegations. www.RWLawyers.org

Posted in Uncategorized

Rosenthal & Wadas Attorneys Selected for 2018 Super Lawyers List

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Rosenthal & Wadas PLLC is pleased to announce that Derk Wadas and Bo Kalabus have been selected for inclusion in the 2018 Texas Super Lawyers list.

Derk Wadas serves as a managing partner of Rosenthal & Wadas and has been selected for the Super Lawyer list for 5 consecutive years. He is Board Certified in Criminal Law by the Board of Legal Specialization and is a former Collin County prosecutor.

Bo Kalabus is celebrating 7 consecutive years on the Super Lawyers list. He has been practicing law for eighteen years, focusing solely on criminal defense since 2010.

Super Lawyers recognizes lawyers from more than 70 diverse practice areas across the state who have attained a high degree of peer recognition and professional achievement. Only five percent of attorneys in the state are selected for inclusion on this list, which is compiled through the publication’s patented, multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. For more information about the Super Lawyers list, visit SuperLawyers.com.

About Rosenthal & Wadas, PLLC

Rosenthal & Wadas, the largest criminal defense firm in Collin County, has two partners board certified in criminal law by the Texas Board of Legal Specialization. Both partners are former state criminal prosecutors and head a firm of seven lawyers who have dedicated their practice to the defense of individuals charged with criminal offenses. Our firm represents people that stand accused in a variety of criminal cases, including complex white-collar matters, federal conspiracies, state felony and misdemeanors and other serious allegations. For more information, visit RWLawyers.org or call 972-369-0577.

Posted in Uncategorized

What Is the Difference Between a Dismissal, an Acquittal, and “No Charges Filed” in a Texas Criminal Case?

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Most people’s view of the criminal justice system is that there’s a trial, and the defendant is pronounced either “guilty” or “not guilty.” But the reality is often not that simple. When police open a criminal investigation, there are many ways it can be resolved–and if you’re a potential suspect, you need to be aware of how different outcomes affect your legal rights.

When Can the Police Arrest You?

The first step towards pursuing a formal criminal case–as opposed to mere investigation–is for the police to make an arrest. There are many scenarios where an arrest may occur. In some cases, a police officer personally witnesses a crime in commission, such as a robbery or drug deal. In most cases, however, the officer decides there is “probable cause” to make an arrest after conducting an investigation and asks a magistrate to issue an arrest warrant.

Can the Police Drop the Charges Against Me?

One of the more common myths regarding criminal defense law–and one that is often perpetuated by television police dramas–is the notion that an officer can promise “your case will be dismissed” if you cooperate. This is simply not how the legal system works. The police are charged with investigation and arrest. But once an arrest is made, the police hand the case over to the District Attorney’s office, which has the legal authority to make prosecutorial decisions for the State of Texas. So even if an officer promises that your case will be dismissed, do not rely on it. Ultimately, it’s the District Attorney’s call.

What Happens if the DA Does Not Immediately File Charges?

Texas gives its prosecutors enormous discretion when it comes to deciding what cases to bring to the court for trial. A prosecutor may tell you they will not file any charges against you “at this time.” This does not mean you are off the hook. Many times, prosecutors feel the police investigation has not yielded sufficient evidence to secure a conviction–but that could change at a later date.

Keep in mind, there is nothing that requires a District Attorney to file criminal charges immediately after an arrest. The only deadline the DA must follow is the applicable statute of limitations for the charged offense. And for many serious felonies–such as murder, aggravated sexual assault, or crimes against children–Texas has no statute of limitations, which means a DA could wait months (or years) to file a case.

What If the Grand Jury Refuses to Indict Me?

In misdemeanor cases, the District Attorney will charge you by “information,” which does not require approval by a grand jury. In felony cases, however, the District Attorney must first present the case to a grand jury. Like a trial jury, a grand jury is composed of 12 members of the community. But unlike a trial, which is a matter of public record, grand jury proceedings are secret. The process is also tightly controlled by the District Attorney–even your own criminal defense attorney may not appear before the grand jury without permission.

And while a trial jury must be unanimous, in the grand jury only 9 of the 12 jurors need to find there is probable cause to indict the defendant. If fewer than 9 jurors agree, it is referred to as a “no-bill.” This does not necessarily mean the case is over. The prosecution is free to refile and try again if they discover additional evidence. Since a grand jury proceeding is not a trial, the constitutional protection against “double jeopardy” does not apply to a no-bill situation.

Dismissal, Acquittal, and Appeal

Once a prosecutor files an information or obtains an indictment, the criminal case is now before the trial court. The prosecutor may still change his or her mind and move to dismiss the case. If the dismissal is “without prejudice,” the District Attorney’s office reserves the right to refile at a later date. In rarer cases, the prosecution–or the judge–will dismiss the case “with prejudice,” meaning the charges cannot be refiled.

Similar to a dismissal with prejudice, an acquittal by the jury is considered a final adjudication. Double jeopardy attaches to an acquittal, so the District Attorney cannot retry you on the same charges. And if you are convicted, you may appeal the jury’s verdict. If there was some error made in the conduct of your trial, the appellate court may “overturn” the conviction. This is not the same thing as an acquittal. Depending on the circumstances, the appellate court may simply return the case for a new trial or sentencing hearing.

Contact Our Collin County Criminal Defense Lawyers Today

If you are facing any kind of felony or misdemeanor charge, the best thing you can to do to protect yourself is to work with an experienced criminal lawyer in Collin County. Never rely on the word of the police or the District Attorney that “everything will be okay.” Instead, contact Rosenthal & Wadas, PLLC, to get immediate legal advice and assistance.

Posted in Criminal Defense

Frequently Asked Question's

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 3rd Degree Felony. A 3rd 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 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, or go near a particular residence. 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

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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?

7. 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.

8. 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.

9. 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.

10. 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.

Theft Laws

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.

All FAQ's

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