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.
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.
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.
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.
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
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.
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.
Regardless of whether you are charged with a felony or misdemeanor in Texas, there is an entire range of punishment you may face. The are many factors that influence the outcome of a case, including the severity of the crime, whether certain punishment is mandatory, and mitigating or aggravating circumstances. In addition, an important factor is your criminal history. The question of whether a particular offense merits (or legally requires) punishment involving “straight probation,” deferred adjudication, county jail time, penitentiary time or some combination thereof is often a legally and factually complex question. You should never attempt to predict the likely outcome of a particular case until you have discussed it in detail with a qualified criminal defense lawyer who has become very familiar with the facts of the case and the facts and circumstances of the accused person’s life.
Nevertheless, we will explain in general terms the legal significance of the different types of punishments under Texas law, and some of the factors that influence the punishment.
There are also different arrangements for probation, which Texas law terms “community supervision.” You may be generally familiar with probation as a way to avoid jail time, and you may know that there are certain terms you must comply with during the probation period. However, if you are facing charges, you need to have a deeper understanding of the two primary types of community service, especially since there can be serious consequences for probation violations in Texas. An overview of deferred adjudication and straight probation should be helpful.
Deferred Adjudication in Texas
With this type of community supervision, you are on probation for a designated period of time after pleading guilty to the charges. However, the judge does not officially enter an order of guilt at these proceedings; your guilty verdict is “deferred,” or put off instead. Under the circumstances of a deferred adjudication, admitting guilty is not considered a conviction. Your criminal record will show an arrest for the underlying offense, as well as the deferred adjudication resolution to your case.
When you are under deferred adjudication status, there will be certain terms of probation. You must report to the proper authorities, must avoid an additional arrest, and comply with other conditions. If you complete the terms of your deferred adjudication within the time required by the court order, there is no finding of guilt entered. If you violate the terms of your probation, you return to court, where the judge may sentence you up to the full punishment for the underlying crime. Since you already pled guilty, you would no longer be entitled to a jury trial, however you are legally entitled to a hearing before a judge to contest any allegation that you violated the terms of your community supervision. At that hearing, the State would bear the legal burden of proving you violated any term or condition of your community supervision by a preponderance of the evidence.
In a deferred adjudication supervision situation, there is no minimum amount of time you must be on deferred adjudication before you may seek early termination of supervision. In addition, in most cases, you may seal the record if you successfully completed deferred adjudication. The technical legal term for a court order sealing the record is an Order of Nondisclosure. However, there are notable exceptions to the general rule that you may seal the record after deferred and different offenses have different waiting periods. This is an area of law that is a bit complex and one should consult an attorney prior to the decision to be placed on deferred adjudication.
Finally, deferred adjudication on Class C offenses will allow you to expunge the record, not merely seal it. However, this option is available only for Class C deferred adjudication. Deferred on a Class B offense or higher-level offense will result in eligibility to seal the record only.
Like deferred adjudication, straight probation requires to you plead guilty; however, the difference with this arrangement is that it is considered a conviction for purposes of your punishment and criminal record. A judge will enter your plea of guilty and sentence you to a designated period of incarceration, and then suspend the sentence of the agreed upon probationary term. For example, the order for straight probation may read “180 days in prison, probated for 12 months.” You still avoid incarceration because the court holds off on your jail sentence and places you on community supervision.
If you comply with the terms of your straight probation, you will not serve time in jail. Unlike deferred adjudication, a violation of your probation conditions means that you could be incarcerated only for the time period indicated in the order. In the above example, you could not be imprisoned for more than 180 days.
Still, the most severe consequence of this process is the conviction itself. You cannot petition for non-disclosure as you can for deferred adjudication.
Considerations with Specific Offenses
You should note that there are certain restrictions on what a prosecutor can agree to or what a judge can order for probation. If you are charged with a “3g” offense, termed as such under an older version of Texas Code of Criminal Procedure, you may be ineligible for straight probation from a judge, and must request it from a jury. However, if you also have a previous felony conviction you may also be ineligible for probation from a jury. If you are a person who has been charged with a 3g offense, and you have a previous felony conviction, you are ineligible by law to receive straight probation. You must negotiate a deferred or be sentenced to prison if convicted. This is a very complex area of the law. Please consult a qualified lawyer if you or a loved one are this situation.
The 3g crimes are quite serious, including:
Aggravated offenses that involve use of a weapon, such as kidnapping, sexual assault or robbery;
Certain types of drug crimes;
Assault on an elderly person, child, or disabled individual; and,
Other offenses as designated by law.
Consult with a Skilled Collin County Criminal Defense Attorney Today
This summary of Texas law on deferred adjudication or straight probation may be helpful, but it is no replacement for having a knowledgeable lawyer on your side. Not only are the eligibility rules complex, but there are harsh sanctions for violations of either type of probation.
Our Collin County criminal lawyers at Rosenthal & Wadas can explain your legal options regarding deferred adjudication or straight probation, and assist you with the process. Contact us at 972-369-0577 or check us out online to schedule a consultation with one of our criminal defense attorneys.
We live in a visual age. Thanks to modern technology we can all carry around small video recording devices at all times. And in a culture where people now routinely photograph and share their restaurant meals with the rest of the world, it stands to reason we expect to see photos and video evidence employed as evidence in serious criminal cases.
Rule 403 and “Unfair Prejudice” to Criminal Defendants
Now, you might just assume that visual evidence is automatically admissible in a criminal trial. After all, what better evidence could there be than a photograph or video recording? But all evidence is subject to certain basic rules under Texas law, regardless of the medium or source.
The reality of the criminal justice system is that juries are not exposed to all of the available evidence in a case. The judge is required to screen all evidence upfront to ensure what it is admitted–i.e., seen by the jury–will actually be useful in resolving any factual disputes. Just as important, the judge must ensure the evidence itself is credible and was not obtained by illegal or improper means.
One of the key provisions of the Texas Rules of Evidence (Rule 403) is that a judge may “exclude relevant evidence” if its potential usefulness to the jury is “substantially outweighed” by one or more of the following risks:
confusing the issues;
misleading the jury;
undue delay; or
presenting cumulative evidence.
The first risk listed–unfair prejudice–is one often raised by defense attorneys in seeking to exclude photographic or video evidence. As we all know, seeing something produces a much more visceral reaction that hearing about the same thing.
For example, imagine a witness testifies about the night she saw the defendant shoot and kill the victim. This testimony is fairly compelling on its own. But now suppose the prosecutor introduces a video tape, say from a security camera, of the crime. The latter is far more likely to sway the jury, especially since eyewitness testimony tends to be seen as less reliable than video evidence.
But using video to manipulate a jury’s emotions can also cross the line into unfair prejudice. Consider this 2002 decision from the Texas Court of Criminal Appeals. A 16-year-old defendant was tried and found guilty of murder. During the sentencing phase of the trial, the victim’s parents presented a compilation of photographs that was displayed at their son’s funeral. The prosecutor moved to admit these photographs as evidence, which the judge admitted over the defense attorney’s objection.
What the jury actually saw was later described by the Court of Criminal Appeals as “an extraordinarily moving tribute” to the victim’s life composed of “approximately 140 still photographs” accompanied by music including Celine Dion’s famous song, “My Heart Will Go On,” from the 1997 motion picture Titanic.
The jury ultimately sentenced the defendant to 35 years in prison. The defendant was given a new sentencing hearing, however, after the Court of Criminal Appeals determined it was a legal error to admit the photographic montage at trial. Although “victim impact evidence” is admissible during the punishment stage of a Texas criminal trial, the Court nevertheless said such evidence “may become unfairly prejudicial through sheer volume.” And in any event, the trial judge is supposed to review the evidence for probative value before showing it to the jury, which did not happen in this case.
Ensuring Police & Prosecutors Only Use Reliable Evidence
Beyond the issues of relevance and possible prejudicial effect, video and photograph evidence must also be reliable. In other words, the evidence itself must be properly authenticated before it is admitted. Although you often hear the phrase, “The camera doesn’t lie,” the truth is that it is far too easy nowadays to manipulate visual images and recordings. Indeed, even a non-manipulated image may be skewed simply by the angle at which it was taken or a lack of proper lighting.
With respect to video evidence, it is critical that the prosecution prove all of the steps it took to preserve and authenticate an image or video recording. This may include calling expert witnesses to testify about the equipment and procedures used, demonstrating the “chain of custody” was followed, and certifying the accuracy of any reproductions made of the images.
Contact Our Criminal Lawyers in Collin County if You Need Help Today
In short, everyone involved in the Texas criminal justice system must take every precaution to ensure that only reliable, credible, and admissible visual evidence is employed against a defendant accused of a crime. But you cannot simply rely on prosecutors and judges to do the right thing. If you are accused of a crime and need an experienced Collin County criminal defense lawyer to help protect your rights, contact Rosenthal & Wadas, PLLC, today.
As long as the legal drinking age in Texas stays at 21, teenagers will probably continue to obtain fake IDs in order to get served alcohol at bars and nightclubs. Indeed, many college and high school students view a fake ID as a “right of passage” and a victimless crime. But the reality is quite different. Getting caught trying to pass off a fake ID can lead to criminal charges, as well as potential disciplinary from a student’s school. In addition, any business that serves a student with a fake ID, even unwittingly, may face serious legal consequences.
What Constitutes a Fake ID in Texas?
A fake ID is basically any document you present as identification that contains false information or was not personally issued to you by a government agency. Some teenagers manufacture fake IDs by altering their own documents–e.g., changing the year in the date-of-birth on their driver’s license. In other cases, they may present a valid ID issued to someone else as their own. And then there’s simply buying forged documents from an illegal vendor. Regardless of how one obtains a fake ID, however, it is against the law.
More precisely, it is a Class A misdemeanor in Texas to possess or display a “driver’s license or certificate that the person knows is fictitious or has been altered.” This also covers situations where someone misrepresents someone else’s driver’s license as their own. If convicted, a Class A misdemeanor carries a maximum possible sentence of one year in jail and a $4,000 fine.
In addition to these offenses, it is also a Class A misdemeanor to submit a false application in order to obtain valid government identification. In other words, if you lie on an application to the Texas Department of Motor Vehicles to obtain a driver’s license stating you are over 21–when you are not–you can be charged with a crime even if you never actually obtain or use the ID.
There is also a separate offense in the Texas Transportation Code for minors who possess any document “that is deceptively similar to a driver’s license or a personal identification certificate” and misrepresents their age as 21 or older. There is an exception for documents that contain a clear statement that it is “NOT A GOVERNMENT DOCUMENT.” But absent such a disclaimer, a police officer may confiscate any document if a “reasonable person would assume” that it is government-issued identification.
A violation of this particular law is classified as a Class C misdemeanor, which unlike a Class A misdemeanor does not carry the possibility of jail time. However, if convicted a person may still be fined as much as $500 and ordered to perform 8 hours of community service. And if a person is convicted a second time of the same offense, the number of community service hours increases to 12.
It is also possible for Texas prosecutors to charge someone who alters an otherwise valid driver’s license or government-issued identification card with the crime of “tampering with a government record.” Unlike the offenses discussed above, tampering in this manner is classified as a third-degree felony in Texas. This means that if you are tried and convicted, you can be sent to prison for up to 10 years and fined as much as $10,000.
Finally, even if you managed to escape criminal prosecution with nothing more than a fine, keep in mind that if you are a college student, your institution may initiate separate disciplinary proceedings against you for violating their own drinking policies.
Who Else Can Get in Trouble If I Use Fake Personal Identification in Texas?
Even if you don’t care about the potential risks to you of using a fake ID, you should consider who else you are putting in legal jeopardy. Using a fake ID is far from a victimless crime. To the contrary, it can lead to significant legal problems for the people who give you the ID, as well as those who accept it.
Let’s start with the bar or club you use the fake ID to obtain liquor from. It is against the law to sell alcohol to anyone under 21, period. A business that breaks the law can lose their liquor license, and individual employees may face civil or criminal sanctions. And the Texas Alcoholic Beverage Commission (TABC) will not let a bar or restaurant off the hook just because they thought that fake ID you showed them looked convincing. In fact, the TABC itself regularly conducts “undercover operations” where they send underage agents into bars to test their ability to spot and reject fake IDs.
And then there’s the person who “lends” you their ID so you can claim to be over 21. This is just as much a crime as actually using someone else’s ID. And the law treats the lender the same as the user–by charging them with a Class A misdemeanor.
So if you are charged with using a fake ID in Texas, you need to take the matter seriously. Your first step should be to contact a qualified Collin County criminal defense attorney. Call Rosenthal & Wadas at 972-369-0577.
People rely on documents every day to renew driver’s licenses, apply for benefits, and request help from the government. Society depends on the authenticity of these documents. For this reason, Texas has made it a crime to falsify documents, and the penalties can be steep. If you have been accused of falsifying documents, you need a Collin County criminal defense attorney who can mount a vigorous defense on your behalf.
In Texas, it is illegal to use false information to alter, create, or sign a document for the purpose of harming or defrauding another person. The law encompasses the following:
Altering a document without permission, such as changing the date or time on a document or altering the amount of money on a check.
Creating a forged document, such as a birth certificate or driver’s license.
Possessing forged documents with an intent to use them, such as possessing a forged title to a piece of real estate with the intent of defrauding a potential buyer or renter.
A key element in the law is the intent to use the falsified documents with an intent to harm someone. For example, Sam might forge a check in his father’s name and try to cash it at a bank. Because he uses the falsified document, Sam is guilty of breaking the law. However, if Sam merely found a check that was falsified and had it in his wallet, he is not guilty because he did not create it and did not intend to use the check.
The law applies to more than checks. For example, Sam might sell a baseball card and forge a certificate of authenticity. He then uses the certificate to convince a buyer to pay him $300 for the baseball card. Here, Sam is guilty of falsifying documents as well.
Punishment for Forgery
Penalties vary, with more severe penalties reserved for examples of forgery that Texas deems more serious. However, any criminal conviction can seriously disrupt your life, leading to negative collateral consequences such as job loss or trouble renting an apartment in the future.
If a person forges a credit card, check, mortgage, or will, they can be convicted of a felony. Punishment includes:
Up to a $10,000 fine
A jail sentence ranging from 180 days to two years
If a person forges postage stamps, money, government documents (like birth certificates or drivers license) or stocks, then he can be convicted of a third-degree felony. Punishment includes:
Up to a $10,000 fine
Between two and ten years in state prison
If other documents have been forged, then a person could face a Class A misdemeanor charge if the documents were minor. Punishment for a Class A misdemeanor includes:
Up to a $4,000 fine
A jail sentence for up to one year
A word about defrauding the elderly: Texas will enhance all penalties if the victim was someone 65 or older.
If you have been accused of falsifying documents, you need a criminal defense attorney in your corner immediately. A criminal defense attorney can help you begin building your defense by analyzing the state’s evidence and identifying holes in the case. Your lawyer can also gather evidence that shows you did not commit forgery.
For example, you might be able to claim the following as defenses:
The state does not have evidence of every element of the offense.
You did not intend to use falsified documents in your possession.
The documents are not actually falsified.
The document came into your hands already falsified, and you did not know this fact.
You made an honest mistake filling out the document and had no intent to mislead anyone.
Each of these defenses requires evidence. Forgery cases often turn on your state of mind, so you might need to offer evidence in your own defense as to what you were thinking when you filled out or found a document.
Speak with a Collin County Criminal Defense Attorney
After being accused of a crime, you might not know what to do or where to turn. Fortunately, the Collin County criminal defense attorneys at Rosenthal & Wadas are here to help. Our criminal defense lawyers in Texas have decades of combined experience helping defendants just like you, and we are prepared to build a defense on your behalf. Contact us today to schedule your free consultation by calling 972-369-0577.
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:
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.
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:
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.
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.
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.
"Rosenthal & Wadas was confident and positive from the very first telephone interview. They assured me that they would work until the end for me and explore every angle of my case. When I was uncertain and scared at times, they were very reassuring. The outcome exceeded my expectation and changed my life in positive ways. I would highly recommend Rosenthal & Wadas."