These answers are meant to provide general information regarding common questions asked to criminal defense lawyers. Nevertheless, every case must be analyzed individually. This information is not a substitute
for consulting with an experienced criminal
defense lawyer about your case. This information
is also not meant to give legal advice, but
is meant solely for general informational
purposes.
What should I do if I am stopped on the road for possibly driving under the influence of alcohol?
How long will it take to resolve my case if I am charged with an offense in Dallas county?
What are some of my important rights in state court?
Am I eligible for probation if I go to trial?
What is the difference between "straight probation" and "deferred adjudication probation"?
I have been offered a plea bargain instead of going to trial. In state court, should I accept the plea bargain?
I am not an United States citizen, does that make a difference?
I either lost my trial or pleaded not contest or guilty in state court, but I am not satisfied with the outcome, is there anything I can do?
What should I do if I am stopped on the road for possibly driving under the influence of alcohol?
The first thing to remember is to be polite
and courteous to the police officer. Nothing
will get you arrested quicker than being
obnoxious to a police officer. If the police
officer believes you have been drinking,
he or she will likely ask you to perform
"road side tests" (e.g. walking toe to heel).
If you are absolutely sure that you are
not under the influence of alcohol, you
may choose to perform the tests because
successfully performing the tests could
result in the officer allowing you to leave.
On the other hand, if you have doubts about
your ability to perform the tests successfully,
tell the officer firmly, but politely, that
you will not perform the tests without being
allowed to consult with an attorney. You
do not have a right to consult with an attorney
at this point, however, you cannot be forced
to perform the roadside tests. Keep in mind
that, if you are charged with driving under
the influence of alcohol, the officer will
testify as to how you preformed on these
roadside tests and it is also possible that
your performance will have been recorded
on videotape. Therefore, if it is possible
that you will fail the tests, it is better
not to take them in the first place.
If you fail the roadside tests or if you
refuse to perform the roadside tests, you
will likely be arrested. Once arrested,
you will be asked to give a breath specimen
and may be asked to perform additional "tests."
It is our advice that you tell the officer
that you refuse to submit a breath specimen
or take additional tests unless you are
allowed to consult with an attorney. Again,
you have no right to consult with an attorney
before giving a breath specimen, however,
you cannot be forced to give a breath specimen.
The machine that takes breath specimens
is not infallible. Also, if you have reached
this stage, it is definitely possible that
you are under the influence of alcohol.
By providing a breath specimen and/or doing
additional tests, you are simply giving
the police evidence that will be used against
you.
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How long will it
take to resolve my case if I am charged
with an offense in Dallas county?
While it is hard to generalize, cases in
Dallas County often take quite awhile to
resolve. Often your case will be "passed
for announcement" a few times to give
the defense and the state a chance to investigate
the case and see if the case can be resolved
without a trial. It is up to the individual
judge whether you will be required to appear
in court for "announcement" settings.
If the case is eventually set for a trial,
it may be reset several times. Older cases
and cases where the person is incarcerated
will usually be given priority.
The Texas Court of Criminal Appeals declared
Texas' Speedy Trial Act unconstitutional.
Therefore, there is no right to a speedy
trial under the Texas Code of Criminal Procedure.
A defendant in a criminal case has a limited
right to a speedy trial under the United
States Constitution.
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What are some of
my important rights in state court?
• You have a right to refuse to make
any statements. If you have a lawyer, never
make a statement to anybody without talking
to your lawyer first.
• If you are charged with a felony,
you have a right to have your case presented
to a grand jury where a group of citizens
vote as to whether there is probable cause
to believe you committed the crime charged.
If you are arrested for a felony offense
before an indictment is returned, you have
a right to an "examining trial" where a
judge determines if probable cause exists
to believe you committed the crime charged.
• If there is even the possibility
you could be put in jail upon conviction
of the offense, you have a right to be represented
by an attorney and to have an attorney appointed
by the court if you can show that you are
unable to hire an attorney.
• You have a right to have the state
prove any charge against you "beyond a reasonable
doubt." The "beyond a reasonable doubt'
standard is the highest standard of proof
that exists in the American justice system.
• You have a right to a jury trial
(a jury consists of six persons in misdemeanor
cases and twelve persons in felony cases).
You have a right to have the jury decide
your guilt and innocence, and, if it finds
you guilty, you have a right to have the
jury decide your sentence.
• If there is a trial, you have a right
to testify at the trial. On the other hand,
you cannot be forced to testify and, if
you chose not to testify, that fact cannot
be used against you.
• You have a right to use subpoenas
to make witnesses come to court and testify
on your behalf at any trial.
• You have a right, if there is a trial,
to have your lawyer cross examine the state's
witnesses.
• If you lose at trial (and in some
cases if you plead guilty), you have a right
to appeal your case and, if you cannot afford
a lawyer, you have a right to an appointed
lawyer on appeal.
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Am I eligible for
probation if I go to trial?
All persons convicted of a misdemeanor are
eligible for probation regardless of whether
they elect to have a judge or jury assess
their punishment.
Under the current law, if you are convicted
of a felony and are sentenced by a judge,
you are eligible for probation provided
that you sentence is ten years or less and
you are not convicted of- (1) capital murder;
(2) murder; (3) aggravated kidnapping; (4)
aggravated sexual assault; (5) aggravated
robbery; (6) indecency with a child; (7)
sexual assault of a child; (8) a second
drug offense in a drug-free zone; or (8)
a felony where a deadly weapon was used
or exhibited.
Under the current law, if you are convicted
of a felony (except a state jail felony
or a second drug offense in a drug-free
zone) and sentenced by a jury, you are eligible
for probation if the jury sentences you
to ten years or less and the jury finds
that you have never previously been convicted
of a felony.
The maximum period of probation for Class
A and Class B misdemeanors is two years
and for felonies is ten years.
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What is the difference
between "straight probation"
and "deferred adjudication probation"?
With "straight probation," even if you successfully
complete the probationary period, you are
considered to have been convicted of the
offense for which you have been placed on
probation. On the other hand, if you are
placed on "deferred adjudication probation"
and successfully complete the probationary
period, the charge against you is dismissed
and there is no conviction.
Some lawyers tell clients that if they complete
"deferred adjudication probation"
they will not have "a record."
This is not exactly true. There will be
"a record" that you entered a
plea to the charge and were put on "deferred
adjudication probation" and this can
have an effect for such things as applying
for a permit to carry a weapon or calculating
your criminal history in federal court.
Still, you will not have "a conviction"
and can truthfully answer "no"
on job applications and alike if asked if
you have ever been "convicted"
of an offense. Also, at some point following
the deferred adjudication period, you may
become eligible to have your record expunged
so that it no longer exists.
If you are placed on "straight probation,"
you are sentenced to a particular term in
jail or prison and that term is probated
for a particular period (for example, a
sentence of 180 days probated for two years
is a possible sentence for a first time
DWI conviction). If you then violate "straight
probation" and the probation is revoked,
you can be incarcerated up to the original
jail or prison term that was imposed (in
the above DWI example, your sentence would
be up to 180 days in jail if your probation
was revoked). If you are placed on "deferred
adjudication probation," you are not sentenced
to a particular jail or prison term at the
time the "deferred adjudication probation"
is imposed. If you violate the "deferred
adjudication probation" and the probation
is revoked, the judge may sentence you to
any term provided by law at the time of
the revocation.
There are certain offenses (e.g. driving
while intoxicated) for which a judge cannot
grant "deferred adjudication probation,"
although the judge can still grant "straight
probation." Likewise, there are certain
offenses for which a judge cannot grant
"straight probation," although the judge
can still grant "deferred adjudication probation."
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I have been offered
a plea bargain instead of going to trial.
In state court, should I accept the plea
bargain?
It is impossible to provide a general answer
to this question, although most cases are
generally resolved through a plea bargain.
In deciding whether to accept the plea bargain,
the two most important things is to make
sure you understand all the consequences
of the plea bargain and to make sure you
have confidence that your lawyer is acting
with your best interest in mind.
Some things to make sure you understand
before accepting a plea bargain in state
court: (1) What will you be admitting to?
(2) Does the plea bargain provide for a
specific sentence? (3) If there is a jail
sentence, what kind of good time credit
will you be eligible for? (4) If there is
a prison sentence, how will the parole laws
affect your release eligibility? (5) If
there is a prison sentence and you have
not previously been sentenced to prison,
did your lawyer explore other options such
as "shock probation?" (6) If you are not
a United States citizen, will the plea bargain
affect your ability to remain in the United
States?
While it is sometimes necessary, be very
cautious about entering a plea bargain where
you waive your right to appeal, because
you will have no recourse if you receive
a sentence higher than expected.
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I am not an United
States citizen, does that make a difference?
It very well could. Recent changes in the
immigration laws have made it very easy
to deport non-citizens even for misdemeanor
convictions. If you are a non-citizen, before
accepting ANY plea bargain, even
if it is to probation or deferred adjudication,
you should make sure that your attorney
fully understands any immigration consequences
that may occur as a result of your plea.
If you have any doubts as to your attorney's
competence in the area of immigration law
whatsoever, you owe it to yourself to consult
a knowledgeable immigration attorney BEFORE
entering the plea.
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I either lost my trial
or pleaded not contest or guilty in state
court, but I am not satisfied with the outcome,
is there anything I can do?
Following a trial, you may appeal your case
to the Texas Court of Appeals provided you
file a Notice of Appeal within thirty days
of your conviction. Following a plea, you
may appeal your case only if the
appeal concerns the trial court's "jurisdiction"
to hear your case, or the trial court denied
one or more of your written motions, or
if you receive permission from the trial
court to appeal. Again, a Notice of Appeal
would have to be filed within thirty days.
If you lose an appeal in the Texas Court
of Appeals, you can then ask the Texas Court
of Criminal Appeals to consider your case
and, after that, you can ask the United
States Supreme Court to consider your case.
The Texas Court of Criminal Appeals and
the United States Supreme Court pick and
choose the cases they will hear and, as
a result, both courts hear only those cases
raising issues that might have an effect
on many different cases.
After losing an appeal, you can file a post-conviction
petition for a Writ for Habeas Corpus if
you believe you were denied a constitutional
right or if you believe your lawyer was
ineffective. Such petitions must first be
filed in state court and can later be filed
in federal court. Keep in mind, however,
that there are strict deadlines for filing
petitions in federal court and you should
consult with an experienced lawyer regarding
these deadlines.
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