Criminal Defense in State Court
Frequently Asked Questions
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.
If the police threaten to get a warrant for your blood it is still not advisable to give them consent to take the sample. Let them get a warrant. The could have problems getting the warrant or they could make mistakes which might result in the suppression of the blood test results. If, however, you consent to giving police a blood sample it is very unlikely that the results would be suppressed.
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.
- 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.
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; (8) a felony where a deadly weapon was used or exhibited (9) some other serious felony offenses set forth in Section 3g of Article 42.12 of the Texas Code of Criminal Procedure.
Under the current law, 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.
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.”
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.
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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