Frequently Asked Questions
FAQs – Practice Areas
State Court Cases
If you can make a bond (money to secure your release), then you will be released from jail, but only if you have no other holds. (A hold is a detainer placed on you by another governmental agency which requires you be held pending clearance of the hold.) If you cannot make a bond (or do not qualify for pretrial release), then you will remain in jail while your case is pending. If you are free on bond, then you will be expected to hire an attorney to represent you. However, if you can prove that you are an indigent (unable to afford to hire an attorney), then you may request that the court provide you with a court-appointed lawyer. The court itself must pay for the services of the court appointed lawyer. A court appointed lawyer may be either a private lawyer who takes court appointments or may a public defender. If you are not a U.S. Citizen, in most cases ICE will place a hold on you. The way in which your criminal case is handled will directly affect your resident status.
Offenses are prosecuted at the lowest level of Class B misdemeanor up to highest level of First-Degree felony. Examples of the level of each type of offense and the possible ranges of punishment are as follows:
- Class B Misdemeanor – confinement for a term not to exceed 180 days in the county jail: and/or fine not to exceed $2,000. Examples: DWI, Criminal Trespass, Theft by Check $50 to $500, evading arrest or detention.
- Class A Misdemeanor – confinement for a term not to exceed one year in the county jail; and/or a fine not to exceed $4,000. Examples: a second DWI, Assault, Burglary of a Vehicle, Unlawfully Carrying a Weapon.
- State Jail Felony – confinement for a term from 180 days to two years in a state jail; and an optional fine not to exceed $10,000. Examples: Credit Card Abuse, Unauthorized Use of a Motor Vehicle, Reckless Injury to a Child.
- Third Degree Felony – confinement for a term from two to 10 years in prison; and an optional fine not to exceed $10,000. Examples: a third DWI, Indecency with a Child, Kidnapping, Possession of a Firearm by a Felon.
- Second Degree Felony – confinement for a term from two to 20 years in prison; and an optional fine not to exceed $10,000. Examples: Aggravated Assault or Kidnapping (if the victim is released unharmed), Arson, Robbery, Sexual Assault.
- First Degree Felony – confinement for life or a term from five to 99 years in prison; and an optional fine not to exceed $10,000. Examples: Murder, Aggravated Kidnapping, Robbery or Sexual Assault.
- Capital Felony – punishment in prison for life or death penalty.
Misdemeanor cases are filed by the police agency with the District Attorney’s Office.
If the District Attorney’s Office decides to prosecute the case, a document is created called an Information. (The Information is a written statement filed and presented on behalf of the State of Texas by the district attorney, charging the defendant with an offense.) It provides the defendant with notice as to the offense for which he stands charged.
Felony level offenses are filed by the police agency with the District Attorney’s Office. The District Attorney’s Office then generates a charging instrument known as an Indictment. (An Indictment is the written statement of a grand jury accusing a person therein named of some act or omission which, by law, is declared to be an offense.) The indictment puts the defendant on notice regarding the charges being brought.
Once the paperwork has been generated for a felony office, the case is then set to be heard by the grand jury. The grand jury is a panel of citizens who briefly review information provided by the police who then make a determination whether there is sufficient evidence to believe that an offense has occurred.)
Any person charged with a felony offense has an absolute right to have his/her case indicted by the grand jury. The grand jury will either issue a true bill of indictment or a no bill. True bill means that the grand jury found that there was enough evidence to believe that an offense did occur and the case will then be forwarded to the felony court to which it was assigned. A no bill means that the grand jury did not believe that there was enough evidence to proceed with the case as it was filed.
If you are in jail you will be brought to the court on the jail chain . You will not be brought to court on your own request, but at the request of the court or the attorney representing you. This should occur within a few days after your arrest. If you are not brought down to the court or notified that an attorney has been appointed to your case, then you should request the sheriff in the jail allow you to send a kite to the court. (A kite is a form available to inmates in the jail which allows them to contact the court directly without going through the regular mail procedures.) If you are set for a jury trial, you will be dressed out in the clothes you were booked into jail in. Family or friends may bring you proper street clothes for the trial (see discussion of proper clothes below). The clothes should be taken to the jail, and the sheriff will keep them there until needed or your attorney will be able to give them to you the day of the trial. At all other times when you are brought to court you will be dressed in a jail uniform. If you are on bond you will be notified by mail (at the address you gave the jail when you were released) as to which court your case has been assigned, the court date and the time you are to appear. On your court date, you should go directly to the court. Each court posts a docket sheet in front of the courtroom. The docket sheet lists the name of each person who has a court setting on any particular day, the name of their attorney and the type of setting (announcement, plea, trial). You must be in court on the day and time instructed or the court may forfeit your bond and issue a warrant for your arrest. (Bond forfeiture means that you lose the money that you have posted as a guaranty to the court that you would appear on the setting date.) Some courts require that you come inside the courtroom, while others will tell you to remain in the hall directly outside the assigned courtroom until your name is called by the court bailiff. If you don’t know where to go, it is always best to enter the courtroom and check in with the court bailiff or court coordinator.
While it is hard to generalize, cases in state court often take a long time to resolve. If the case is eventually set for a trial, it may be reset several times. Older cases and cases in which the defendant 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.
- Misdemeanor Cases: This process begins once the case has been filed by the police and the District Attorney’s Office drafts an information.
- Felony Cases: This process begins when the Grand Jury issues a true bill of indictment. Once the case has been indicted, the process begins.
- The First Appearance Setting: If on bond the person accused must appear in court. It will be determined at this setting if the defendant must hire an attorney or if they qualify for a court appointed lawyer. If in jail the person will be brought to the court on the jail chain. If the defendant cannot afford to hire an attorney and if a lawyer has not already been appointed for the defendant, one will be appointed at this time.
- Announcement Settings: Theses settings allow both the defense lawyer and the assistant district attorney an opportunity to discuss the case and determine if the case will be dismissed, plea bargained (a plea bargain is a resolution of the case where both the State and the defendant agree to a certain punishment without involving either a judge or jury) or set for a jury or bench trial. (A bench trial is a trial to a judge without a jury.) Generally, a case may be set for announcement two or three times. A person on bond may be required to appear in court every time the case is set on the court’s docket, regardless of the type of setting and regardless of whether that person’s attorney must also appear.
- Final Announcement Setting: At this setting it is determined whether or not the person accused wishes to reach a plea bargain agreement with the Assistant District Attorney or to have a trial.
- Plea Setting: If a defendant chooses not to have a jury or bench trial, then the case is set for a plea. At the plea setting a person enters a plea of either guilty or no contest to the charges. (A plea of no contest means that a person is not pleading guilty but chooses to “not contest” the charges brought against him. It has the same legal effect as a pleading guilty to the charge.) A person who pleads guilty or no contest to the charge may accept either the plea bargain offered by the State, or he may enter an open plea. (An open plea means that the defendant has rejected the plea bargain and asks the judge to set punishment.)
- Trial Setting: Every person charged with a criminal offense has an absolute right to plead not guilty to the charge and have a trial by jury or a trial before a judge (bench trial). In either case, the State of Texas, through an Assistant District Attorney, must prove a person guilty of the offense charged beyond a reasonable doubt. In a misdemeanor trial there are six jurors who hear the evidence presented in the trial. At the felony level there are 12 jurors. There are three possible phases to each jury trial: voir dire (jury selection phase); guilt/innocence phase (the time during the trial when evidence is presented); and, if the person is determined to be guilty, the punishment phase. A jury’s decision with regard to guilt or innocence must be unanimous (that means that all six or 12 people must reach the same conclusion as to the guilt or innocence of the person on trial). If the jury does not reach a unanimous verdict the judge may declare a mistrial (also known as a “hung jury”) and the case may be retried. A defendant who has been found guilty of an offense may choose whether the jury or the judge will set his or her punishment. In a bench trial the judge determined the guilt or innocence of the defendant and sets the punishment.
- 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.
All persons convicted of a misdemeanor are eligible for probation regardless of whether they elect to have a judge or jury assess their punishment.
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; (8) a felony where a deadly weapon was used or exhibited (9) some other serious felony offenses set forth in Section 42A.054 of the Texas Code of Criminal Procedure.
If you are convicted of a felony (except murder, various sexual offense against children 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.
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 sealed.
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.
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?
Please read our blog post – Difference Between an Appeal and an Application for Writ of Habeas Corpus.
Federal Court Cases
Unlike state court, criminal cases tend to progress quickly in federal court. The Speedy Trial Act requires that an indictment be sought within 30 days of a person’s arrest. With few exceptions, a case is tried 70 days from either the date a person is arrested or the date an indictment is returned against the person, whichever is later.
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 you committed the crime charged. If you are arrested for a felony offense before an indictment is returned, you have a right to a preliminary hearing where a magistrate judge determines if there is probable cause you committed the crime charged.
- You have a right to be represented by an attorney and have an attorney appointed by the court if you can show that you cannot hire an attorney.
- You have a right to a detention hearing if the government seeks to keep you in jail pending your trial.
- You have a right to discover the evidence against you.
- You have a right to have the government prove any charge against you beyond a reasonable doubt. The beyond-a-reasonable-doubt standard is the highest standard of proof in the American justice system.
- You have a right to a speedy jury trial. Unlike in state court, a jury in federal court only decides the issue of guilt and innocence, not the sentence.
- If there is a trial, you have a right to testify at the trial. But, on the other hand, you cannot be forced to testify, and if you choose 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.
- If there is a trial, you have a right to have your lawyer cross-examine the government’s witnesses.
- 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.
The federal sentencing guidelines are complex, and one of the primary reasons you need a lawyer with experience in federal criminal defense if you are charged with a crime in federal court.
The sentencing guidelines calculate prison sentences using a table that includes factors such as your criminal history, all of your criminal conduct, whether you accepted responsibility for the charges against you, and your role in the offense. The sentencing guidelines also determine if you are eligible for probation or home confinement. Usually, only those with no criminal history or a minor criminal history qualify for probation or home confinement. A judge typically will consider these guidelines while imposing a sentence.
In some circumstances, the judge can depart or vary upward or downward from the sentencing guidelines in a particular case. Downward departures are most frequent in cases where a defendant cooperates with the government by giving information regarding other people. Again, it is vital to retain a lawyer who works with the federal sentencing guidelines on a daily basis and is familiar with how the guidelines are applied and the exceptions to the guidelines.
Most drug cases involve not only the sentencing guidelines, which are quite harsh in drug cases, but also involve mandatory minimum sentences determined by the amount of drugs involved. Moreover, a defendant can be held accountable for drugs possessed by another person simply if the defendant and the other person engaged in joint criminal activity, and the other drugs were foreseeable to the defendant.
Sentences are particularly harsh in cases involving crack cocaine. For example, if it is found that a defendant with no criminal history possessed with the intent to distribute 280 grams of crack – or even if only part of the 280 grams was possessed by the defendant and the rest was possessed by a co-conspirator and foreseeable to the defendant – the defendant faces a mandatory minimum sentence of 10 years in prison.
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 are:
- Do you understand all the consequences of the plea bargain?
- Do 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 federal court:
- What will you be admitting to?
- Does the plea bargain provide for a specific sentence?
- Do you fully understand how the sentencing guidelines will affect your case and whether you will be eligible for a downward departure or subject to an upward departure?
- Are there any mandatory minimum sentences that apply to your case?
- If you are not a United States citizen, will the plea bargain affect your ability to remain in the United States?
- If there will be a sentence of confinement, do you understand how supervised release works?
- Are you waiving your right to appeal the application of the sentencing guidelines, or will you be able to appeal how the trial judge applies the guidelines?
Absolutely. The probation officer will do the preliminary calculation of your sentencing guidelines and, therefore, will have a great deal of influence on your ultimate sentence. Your lawyer owes it to you to attend this critical meeting in order to make sure that nothing is said that could have a detrimental effect on how your guidelines are calculated.
Following a trial, you may appeal to the U.S. Court of Appeals provided you file a Notice of Appeal within 14 days of the judgment. Following a guilty plea, you may appeal if you did not waive your right to appeal.
If you lose an appeal in the Court of Appeals, you can ask the U.S. Supreme Court to consider your case. However, the U.S. Supreme Court gets to choose which cases it hears. It generally hears 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 of habeas corpus if you believe you were denied a constitutional right or that your lawyer was ineffective. But make sure you did not waive your right to file such petitions as part of your plea agreement.
Parole has been abolished in the federal system. If you are sentenced to prison, you are eligible for 54 days of good time credits for sentences of more than one year. Therefore, you will usually serve about 85 percent of your sentence. If you can demonstrate an alcohol or drug problem, it is also possible to have your sentence reduced by up to a year by participating in a drug program called RDAP.
Appeals and Habeas
Yes. If you pled not guilty, went to trial, and lost your case, you have an absolute right to file a direct appeal. If you were convicted in a federal court in Texas, you would appeal to the U.S. Court of Appeals for the Fifth Circuit. You can seek relief based on errors that occurred during the guilt-innocence phase of your trial or during the sentencing phase.
In most cases, a defendant waives the right to appeal if they enter a plea agreement in federal court. Your lawyer from Broden & Mickelsen, LLP can review your agreement to determine if you waived your right to appeal. If you pled guilty in federal court without a plea agreement, you can appeal your sentence if you believe that the judge miscalculated your sentencing guidelines or imposed an unreasonable sentence.
In federal court, you must file a notice of appeal within 14 days of the written sentencing judgment in your case.
The answer depends on a lot of factors. Generally, it depends on how much material a court will need to review to make its decision. It typically will take several months and possibly more than a year until the appeal is resolved.
In most federal cases, you must begin serving your sentence while your appeal is pending. Nevertheless, we can file a Motion for Release Pending Appeal, which could allow you to remain on release pending appeal.
If you lost your appeal in federal court, you have 90 days to ask the U.S. Supreme Court to hear your case by filing a petition for writ of certiorari. Keep in mind that the Supreme Court agrees to hear less than 1 percent of the cases it is asked to hear each year. Usually, those cases involve critical constitutional issues that apply to numerous cases rather than one individual case.
- Results in State Court Cases
- Results in Federal Cases
- Results in Federal Criminal Appeal Cases
- Results in Texas Criminal Appeal Cases
If you went to trial and lost your case, you have an absolute right to file a direct appeal to the Court of Appeals. For example, convictions in federal courts in Texas, Louisiana and Mississippi are appealed to the United States Court of Appeals for the Fifth Circuit which sits in New Orleans. Generally an attorney is looking for the following when looking for issues to appeal: (1) an error made by the judge; (2) an error that was objected to by the defense lawyer at trial and (3) an error that might have affected the trial. It is also possible to appeal the application of your Sentencing Guidelines in Federal Court.
In most cases a defendant waives his or her right to appeal if they enter a Plea Agreement in federal court. You will need to review your Plea Agreement to determine if you waived your right to appeal.
Yes, if you pled guilty in federal court without a plea agreement, you can appeal your sentence if you believe that the judge miscalculated your sentencing guidelines or imposed an unreasonable sentence.
In federal court, you must file a Notice of Appeal within fourteen days of the written sentencing judgment in your case.
There is no general answer that applies to all cases with respect to how long you can expect your appeal to take and it often depends on whether or not there was a trial and how long the trial lasted. You should expect a federal appeal to take at least several months and quite possibly more than a year.
In mostly all federal cases you must begin serving your sentence while your appeal is pending. Nevertheless, Broden & Mickelsen, LLP have had some success in the past filing a Motion for Release Pending Appeal which allowed our client to remain on release pending appeal.
If you have lost your appeal in federal court, you have ninety days to ask the United States Supreme Court to hear your case by filing a Petition for Writ of Certiorari. Keep in mind, however, that the Supreme Court agrees to hear less than one percent of the cases it is asked to hear and usually those cases involve important constitutional issues that have applicability to numerous cases rather than just one individual case.
FAQs – Other Resources
Federal Courts in Texas
- Sherman Federal Court
- Tyler Federal Court
- Waco Federal Court
- Forth Worth Federal Court
- Plano Federal Court
- Dallas Federal Court