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What is the Difference Between Deferred Adjudication and Straight Probation?

Book of Law

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.

Straight Probation

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:

  • Murder;
  • 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.

Posted in Federal Criminal Defense, Felony

Are Photos and Video Evidence Always Allowed in Texas Courts?

iPhone

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:

  • unfair prejudice;
  • 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.

Posted in Criminal Defense

What Are the Laws Regarding Fake IDs in Texas?

Bar

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.

Posted in Criminal Defense

Falsifying Documents in Texas

Falsiying Documents

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.

Forgery Defined

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.

Defenses Available

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.

Posted in Criminal Defense

Four Mistakes To Avoid After Criminal Charges Have Been Filed

Businessman in office

Most people have never faced criminal charges in Collin County before, the first time you are arrested comes as a serious shock. Many Collin County residents have no idea how to deal with the situation. And unfortunately, their ignorance often leads them to make some easily avoidable mistakes that harm their ability to successfully defend themselves in court.

Here are some of the more common mistakes that our firm has seen people make after they are charged with a crime:

1. Talking to the Police Without an Attorney Present

If you have ever watched a television police drama, you know that law enforcement officers are trained to interrogate a suspect to elicit as much information as possible before the right to counsel is invoked. Yet many people are reluctant to contact an attorney right away. Some people think they can “talk their way out of” an arrest. Others assume that asking for a lawyer will only make them seem more guilty. The truth is, if the police have already taken you into custody, they already think you are guilty. Not hiring a lawyer only hurts you.

2. Speaking to Other People–Other than an Attorney–About Your Case

We all have a natural desire to want to talk to someone about a stressful situation. But talking about a pending criminal case to anyone except your defense lawyer is generally a bad idea. This is especially true if you are being held in jail pending a bail hearing or trial. Texas law allows law enforcement to record any phone calls you make from a jail telephone, so anything you tell a family member or friend may be used as evidence against you at trial.

Never talk to your fellow inmates in jail about your case. Again, it is perfectly understandable that you want to commiserate with someone about a stressful situation. But many prison inmates know they can bargain for leniency of a reduced charge if they can “rat out” a fellow inmate.

3. Hiring the Wrong Lawyer

If you have never hired a criminal defense attorney before, you might just assume that all lawyers are the same. Some defendants may simply hire an attorney they already know even if they do not specialize in criminal defense matters. But law is a highly specialized profession. An attorney who dedicates 90 percent their practice to tax matters probably will not be much help if you are charged with capital murder.

Another problem we often see is criminal suspects trying to hire an attorney on the cheap. Trust us: When your life and liberty are at stake, you do not want to go “bargain hunting” for a lawyer.

That said, you should also not feel like you need to hire the most expensive lawyer you can find. As is the case when you hire any kind of skilled professional you should do some research first. It is important to look into an attorney’s background, education, and most importantly, their experience in handling criminal cases similar to yours.

4. Trying to Manage Your Own Criminal Case

Once you do hire a highly skilled criminal defense lawyer, you need to let that person do their job. If you are the type of person who needs to be in control of every situation, this may be difficult. But trying to manage–or micromanage–your own criminal defense is generally counterproductive.

You also need to consider that are likely in an emotionally vulnerable place when facing criminal charges. For instance, if the prosecution presents you with a plea offer, your first instinct may be to reject it and angrily insist on going to trial. But that may not be the best possible outcome under the circumstances. By working with–and listening to–your attorney, you may be able to resolve the charges against you in a more satisfactory manner.

Speak With Our Collin County Lawyers Today

If you are facing any kind of criminal charges, you do not have to face them alone. At Rosenthal & Wadas, our firm can assist you in preparing a defense and making sure the judge or jury hears your side of the story. Contact us today at (972) 369-0577 for a complimentary consultation.

Posted in Criminal Defense

4 Mistakes To Avoid After Criminal Charges Have Been Filed

Boy Hanging Head

Most people have never faced criminal charges in Collin County before, the first time you are arrested comes as a serious shock. Many Collin County residents have no idea how to deal with the situation. And unfortunately, their ignorance often leads them to make some easily avoidable mistakes that harm their ability to successfully defend themselves in court.

Here are some of the more common mistakes that our firm has seen people make after they are charged with a crime:

1. Talking to the Police Without an Attorney Present

If you have ever watched a television police drama, you know that law enforcement officers are trained to interrogate a suspect to elicit as much information as possible before the right to counsel is invoked. Yet many people are reluctant to contact an attorney right away. Some people think they can “talk their way out of” an arrest. Others assume that asking for a lawyer will only make them seem more guilty. The truth is, if the police have already taken you into custody, they already think you are guilty. Not hiring a lawyer only hurts you.

2. Speaking to Other People–Other than an Attorney–About Your Case

We all have a natural desire to want to talk to someone about a stressful situation. But talking about a pending criminal case to anyone except your defense lawyer is generally a bad idea. This is especially true if you are being held in jail pending a bail hearing or trial. Texas law allows law enforcement to record any phone calls you make from a jail telephone, so anything you tell a family member or friend may be used as evidence against you at trial.

Never talk to your fellow inmates in jail about your case. Again, it is perfectly understandable that you want to commiserate with someone about a stressful situation. But many prison inmates know they can bargain for leniency of a reduced charge if they can “rat out” a fellow inmate.

3. Hiring the Wrong Lawyer

If you have never hired a criminal defense attorney before, you might just assume that all lawyers are the same. Some defendants may simply hire an attorney they already know even if they do not specialize in criminal defense matters. But law is a highly specialized profession. An attorney who dedicates 90 percent their practice to tax matters probably will not be much help if you are charged with capital murder.

4. Trying to Manage Your Own Criminal Case

Once you do hire a highly skilled criminal defense lawyer, you need to let that person do their job. If you are the type of person who needs to be in control of every situation, this may be difficult. But trying to manage–or micromanage–your own criminal defense is generally counterproductive.

Speak With Our Collin County Lawyers Today

If you are facing any kind of criminal charges, you do not have to face them alone. At Rosenthal & Wadas, our firm can assist you in preparing a defense and making sure the judge or jury hears your side of the story. Contact us today at (972) 369-0577 for a free consultation.

Posted in Criminal Defense

Fireworks in Collin County, Texas

Firework - Sparkler

With the Fourth of July coming up next week, we pulled some facts together about shooting off fireworks in Collin County.

Can I shoot off my own fireworks in Collin County?

Use and possession of fireworks is allowed, but only in the unincorporated areas of Collin County. In other words, as long as you are not within the city limits of any town in Collin County, feel free to have your own fireworks-related fun. Just be careful, because fireworks can turn dangerous in a hurry and without any warning.

Also, it is important to respect the rights of others. Loud or dangerous conduct can disturb others and land you in trouble with the sheriff’s department. Also remember that fireworks and alcohol do not mix. Texas Penal Code § 49.02 (Public Intoxication) makes it a crime to be intoxicated to the extent that you are a danger to yourself or others.

What about in the city limits?

Every major city in Collin County prohibits not only the use of fireworks, but their possession by local ordinance. Fines can be up to $2,000 for violations.

Where can I watch the fireworks this year?

Browse 40 of the top local festivals, parades, parties and observances in the link below. Please note, many events take place during the weekend before and days leading up to July 4.

Where to watch fireworks
No matter what you end up doing, remember to be safe and be responsible. Happy July Fourth!

Posted in Uncategorized

Theft, Robbery and Burglary Charges…What is the Difference?

Theft - Burglary

If you were charged with robbery, burglary, or other types of theft crimes in Texas, the first thing to keep in mind is that an arrest is not a conviction: You have constitutional rights and the prosecuting attorney must prove your case beyond a reasonable doubt, which is a relatively heavy burden. You will have your day in court to fight the allegations and present a defense, and you have an advantage if you retain an experienced Texas theft crimes lawyer to represent your interests.

Still, you probably have a number of questions about your case. You may be confused about the differences between robbery and burglary in Texas, and how these crimes are distinct from other theft offenses. Your concerns are well-founded, but you are not alone. The definitions of theft under Texas law are extremely convoluted, and there are multiple degrees of felony and misdemeanor falling within each category.

Theft Charges

The unlawful taking of another person’s property, with the intent to deprive the owner of the property, is theft under Texas law. The statute goes on to provide that taking an item is considered “unlawful” if:

  • The taking is accomplished without the owner’s consent;
  • The actor takes property knowing it was stolen by another person; or,
  • The property is in custody of authorities due to it being a stolen it, and the actor takes it.

There are multiple degrees of theft crimes, which are distinguished based upon the value of the property. A minor offense involving less than $100 may be a Class C Misdemeanor, though Class A Misdemeanor charges apply to amounts up to $2,500. A conviction could mean up to a year in jail and a maximum fine of $4,000.

Theft is a felony is $2,500 or more, or if the subject of the crime consists of certain types of property; examples include livestock, firearms, and certain metals. State law includes harsh penalties for felonies, so you face years in prison and hefty fines for a conviction.

Robbery

The crime of robbery is more serious than theft, even though both offenses refer to an unlawful taking of property. With robbery, a prosecutor must prove that, during the commission of the crime:

  • You intentionally, knowingly, or recklessly cause injury to another person; or,
  • You make a threat to hurt a person.

If you are arrested for robbery, you face Second Degree Felony charges. A conviction means at least two and up to 10 years of incarceration, plus a maximum fine of $10,000.

Burglary

If you enter into a structure without consent, for purposes of committing a felony, theft, or assault, you could be arrested for burglary. This crime is among the most serious types of theft crimes in Texas, but you do not even have to take any property to be charged. The fact that you intended to unlawfully take something inside the structure is enough to support a conviction. Burglary is always a felony, but the nature of the charges depends upon the type of building you enter.

  • If you enter into a residential building or habitation, the crime is a First-Degree Felony punishable by at least five years in prison and a $10,000 fine.
  • If the structure is not a dwelling, Second Degree Felony charges apply, so you face a minimum of two years’ incarceration and a $10,000 fine.

Defenses to Property Crimes

There are multiple defenses to theft, robbery, and burglary offenses, which could help you reduce your punishment or beat the charges entirely. If officials violate your constitutional rights, such as by engaging in an illegal search or seizure, any evidence they obtain could be thrown out of court.

Discuss Your Case with a Collin County Criminal Lawyer

Regardless of whether you are charged with robbery, burglary, or other theft offenses, you need a skilled attorney to assist with your case. You could face serious penalties, including jail time, fines, and probation. Plus, you could have a conviction on your permanent criminal record, which has harsh consequences for your future.

At Rosenthal & Wadas, our Collin County theft lawyers have in-depth knowledge of criminal law, backed up by years of experience in a Texas courtroom. We can tell you more about your criminal defense options after reviewing your case, so please call us at 972-369-0577 to schedule a free consultation. You can also visit our website to learn more about our legal services.

Posted in Federal Criminal Defense, Theft

Do I Turn Myself In If There’s a Warrant for My Arrest?

warrant for arrest

Most criminal cases in Texas begin with a judge or magistrate issuing a warrant for the suspect’s arrest. If you have reason to believe there is an active arrest warrant for you, your first instinct might be to try and run. That is never a good idea. The longer a person waits to turn themselves in a warrant, the more it looks like they are being either irresponsible or trying to avoid the legal process or both. In representing someone, we advise people turn themselves in and post bond in an orderly way at their convenience as soon as they can. In turning yourself in you develop a track record of conscientious and responsible behavior that is sure to pay dividends to you as your case proceeds.

Your second option with respect to a warrant is to simply wait for the police to come to your home and arrest you. But you may also opt to turn yourself in and “face the music,” as it were. Before taking this step, however, it is always a good idea to first speak with a qualified Collin County criminal defense lawyer. Remember, you have a constitutional right to the advice and assistance of counsel at all stages of a criminal case against you. This includes the period of time before you choose to surrender yourself to police custody.

Arrest Warrant vs. Summons

In some criminal cases an arrest warrant is unnecessary. For example, if you are driving your car and a police officer pulls you over, you are subject to immediate arrest if there is evidence to suggest you committed a crime such as driving under the influence of alcohol. But when you are not already in police custody, it is necessary for a magistrate to issue an arrest warrant under Section 15.01 of the Texas Code of Criminal Procedure.

A warrant is simply a written order to a police officer “or some other personal specifically named” directing them to take a “person accused of an offense” into custody. A warrant is not the same thing as a formal indictment. In other words, it will not include a detailed account of the specific charges or evidence against the suspect named. However, it must include a statement that the person “is accused of some offense against the laws of the State, naming the offense.”

Negotiating Your Surrender & Making Bail

Once a magistrate issues a warrant, you will be taken into custody. The only question is whether you surrender yourself voluntarily or wait for the police to find you. Keep in mind, once a warrant is issued, law enforcement can arrest you at any time and in any place. Leaving Collin County, or even the State of Texas, will not defeat the warrant. And once the police do find you, they are not obligated to “give you time” to put your affairs in order before entering into custody.

Put another way, time is of the essence when there is a warrant for your arrest. So, the first thing you should do once you learn there is an arrest warrant is contact a Collin County criminal defense attorney. Defense lawyers are experts when it comes to assisting criminal suspects through the arrest and booking process. Depending on the nature of the charges, a defense attorney may be able to assist you in negotiating the specific terms of your surrender and even help you make bail within a few hours of your formal arrest.

Indeed, in all but limited circumstances such as repeat family violence or protective order violations, you are entitled to reasonable bond. Your defense attorney can help you deal with the court at a bond hearing. It may be possible to reduce or even eliminate the need for cash bail. Again, a lot depends on the specific nature of your case and the severity of the charges against you. But not having a lawyer will almost certainly make your case for reasonable bail more difficult.

Facing a Warrant for Your Arrest in Texas? We Can Help

Once you have dealt with the arrest and bail process, you are still facing a criminal trial. At Rosenthal & Wadas, our experienced criminal lawyers in Collin County can assist you in preparing a defense and making sure the judge or jury hears your side of the story. Contact us today at (972) 369-0577 if you need immediate legal advice or assistance.

Posted in Bail, Federal Criminal Defense

Getting Caught With Weed – Collin County vs. Dallas County

Marijuana

What happens if you get caught with weed in Texas depends on the amount of marijuana with which you are caught and the city you are in.

In Dallas County, if you are caught with less than 4 oz. of weed, the police no longer have to take you to jail due to a Cite and Release program that was instated December 2017. Instead, you could be fingerprinted and then given a court summons.

This does not change the potential punishment range for the offense, instead only avoids the initial arrest. The purpose of this change is to free up officers in the field so that they can handle offenses that are more serious. The law benefits the arrestee by allowing them to go home the same day of the offense instead of spending the night in jail. The punishment range is still the same if an arrestee is convicted of the offense.

When using the Cite and Release law, Dallas police officers must determine two things:
1. Where the arrestee lives
2. Whether the arrestee has any warrants

If the person resides within the county and has no warrants, they are given a field release citation and told to report on a certain date in the future.

In Collin County if you are caught with less than 4 oz. of marijuana you will more than likely be arrested and charged with possession. Even though the cite and release law has been on the books since 2007, few Texas cities and counties have implemented this program— but the list is growing. Houston, Austin and San Antonio are among large cities with similar programs in place.

So be prepared, if you are caught with marijuana in cities outside of Dallas County (Collin, Denton, Tarrant County) you could be arrested and taken to jail.

Posted in Criminal Defense, Drug Crimes

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.

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