The State of Texas has the power to arrest, charge, try, and convict defendants who violate the state laws of Texas. State courts have broad jurisdiction, so most crimes involving individual citizens- DWI’s, robberies, assaults, sexual assaults, homicides-are usually tried in state courts.
Dallas Texas Criminal Defense Lawyers Clint Broden and Mick Mickelsen have decades of combined experience defending individuals charged with various state charges. Clint Broden and Mick Mickelsen are certified by the Texas Board of Legal Specialization as Criminal Law Specialists and Criminal Appellate Law Specialists, and almost exclusively practice criminal defense.
Often a person waits until they are indicted to hire a lawyer, but hiring a lawyer prior to indictment could result in not being indicted at all. In many counties, the defense is allowed to present evidence to the grand jury considering a client’s case in order to convince the grand jury not to indict the client or only to indict the client on a lesser charge.
The presentation usually is accompanied by affidavits from witnesses that the defense has discovered through a pre-indictment investigation. Sometime we will arrange for our clients to take a polygraph test. While polygraphs are not admissible at trial, they usually can be presented to grand juries. When clients have come to us prior to being indicted, we have many times been successful in convincing the grand jury not to indict our clients or only to indict them on a lesser charge.
If you are being investigated for a State offense but have not yet been indicted, please do not wait until you are indicted to consult an attorney. We do no charge for consultations and would be happy to meet with you to discuss what can possibly be done to avoid an indictment.
Sexual Assault, commonly referred to as “rape,” is perhaps the most stressful allegation with which to be faced, particularly if the allegation involves a child.Most often the State will proceed to trial with uncorroborated statement of the alleged victim and the trial boils down to a “he said/she said” case. As a result, this is one of the crimes for which a person stands the most chance of being falsely accused.
Nevertheless, many are convicted of sexual assault, especially when the alleged victim is a child. The simple fact of the matter is that, just as in the days of the Salem Witch trials, people are predisposed to believe children no matter how fanciful their claims. Individuals with spotless records and substantial life achievements may find themselves spending twenty years or more in prison. If a defendant is convicted of one of these kinds of crimes and given a sentence of probation, the defendant will be a registered sex offender for life and be required to successfully complete a challenging sex offender treatment program. If the defendant does not admit he committed the crime, he will often be deemed to have unsuccessfully completed the program, his probation will be revoked, and he will then be confronted with a lengthy prison sentence.
Although it is not uncommon for a jury to find someone guilty based on an uncorroborated accusation, it is also not uncommon for the jury to find the accused not guilty. Broden & Mickelsen has enjoyed considerable success representing individuals charged with sex crimes. Many of our clients have had their charges dismissed or have been found NOT GUILTY by juries.
These are difficult cases and take a lot of work on the part of the attorney to successfully defend. An investigation is paramount. Indeed,even though the cases were brought in Dallas, our attorneys have traveled to North Carolina, Illinois and Missouri as part of investigating sexual assault allegations and preparing for trial.
A simple assault is essentially defined as intentionally causing “offensive contact” with another person. If no bodily injury is alleged to have occurred, simple assault cases are classified as Class C misdemeanors. Typically, the police do not investigate these allegations, but merely file the charge based on a complainant’s mere assertion that the assault occurred. They are filed in municipal court or “traffic ticket court.” One may simply plead “no contest” and pay a fine or exercise one’s right to a trial. It is feasible for someone charged with a Class C misdemeanor assault to represent one’s self at trial.
A Class A misdemeanor assault means that some bodily injury allegedly occurred. This injury may be nothing more than a bruise or a scratch. These charges are filed in the county courts and, as a practical matter, require the hiring of an attorney. If convicted, one most often has to serve out a period of probation and fulfill requirements of probation such as “anger management class,” in addition to the payment of significant fines.
An aggravated assault allegation means that accused is alleged to either have exhibited a “deadly weapon” in the commission of an assault or caused serious bodily injury in the course of an assault. Some victims, such as police officers, make this a first-degree offense with a penalty range of 5-99 years of imprisonment, rather than a second-degree offense with a penalty range of 2-20 years of imprisonment.
In most assault cases one of the most important steps a competent attorney makes is the hiring of a skillful private investigator as soon as possible to interview the complainant and all witnesses. Broden & Mickelsen have enjoyed considerable success at trial defending clients charged with assault charges.
The charge of murder invokes images of Perry Mason or Matlock skillfully revealing the actual perpetrator of the murder in a dramatic courtroom scene. In real life, the “who dunnit” murder case is very rare. Most murder charges involve individuals who know each other and raise questions of self-defense. Charges of intoxication manslaughter are also common.
As in assault cases, often the most important first step an attorney can make in a murder case is to hire a top-notch private investigator. Many times the overworked homicide detectives have only made a cursory investigation and a private investigator can find favorable witnesses who were not interviewed by the police. Sometimes it is critical to hire experts to challenge the police laboratory’s forensic analysis.
Obviously, the stakes are extremely high in murder cases. At Broden & Mickelsen, we have had juries return verdicts of NOT GUILTY in murder cases and have had charges reduced to “failure to leave the scene of an accident.” Our firm also has had extensive experience representing people charged with crimes carrying the death penalty.
Intoxicated manslaughter is, essentially, drunk driving resulting in death. It is a second-degree felony carrying a potential prison term of 2-20 years. Although a person charged with intoxicated manslaughter is eligible for probation, the person must serve a minimum of 120 days in jail as a condition of that probation.
When defending someone charged with intoxication manslaughter, Broden & Mickelsen will be diligent in filing motions to suppress if there was no probable cause to arrest the person for intoxicated manslaughter. Often, if the judge determines that there was no probable cause to arrest the person, the charge may be dismissed or reduced. If a client elects to have a trial, we will zealously represent him at trial, aggressively cross examine the arresting officer and help him make the decision whether to testify on his own behalf. If he elects not to go to trial, we will zealously represent him to obtain a favorable plea bargain or perhaps a plea to a lesser included offense. Intoxication manslaughter cases require diligent preparation for the sentencing phase because the jury will be conflicted concerning the terrible consequences of the defendant’s mistake and the fact that the defendant intended no harm.
Broden & Mickelsen provides an aggressive defense for those charged with driving while intoxicated (DWI). Unlike most attorneys, we usually include in our fee the representation of our clients before the Administrative Law Court that will decide whether or not to suspend the person’s license. We do this for two reasons. First, if successful in the Administrative Law Court, the client will be allowed to keep his driving privileges. Second, even if unsuccessful in the Administrative Law Court, it gives us an opportunity to cross-examine the arresting officer and to learn the strength of the state’s case in the event of a DWI trial in criminal court. Moreover, in the event a client’s license is suspended, as a part of our fee, we will secure an occupational license for the client that will allow the client to drive for up to twelve hours per day.
While Broden & Mickelsen advises against performing roadside and/or station house sobriety tests or submitting to an intoxilizer analysis, it is a reality that persons often do submit to these tests. We will review the videos of a client’s performance on the sobriety tests and consult with him or her regarding our assessment of his chances of prevailing at trial. In our experience, jurors will often rely heavily on these videotapes as people tend to believe what they can see with their own eyes more than they believe the testimony of a police officer.
Even before talking to a client about the chances of prevailing at a DWI trial, we will be diligent in determining if his constitutional rights have been violated. For example, there must have been reasonable suspicion to stop his vehicle in the first place. Similarly, there must have been probable cause to arrest him for DWI. Both “reasonable suspicion” and “probable cause” are legal terms and are best analyzed by attorneys experienced in search and seizure law such as the attorneys at Broden & Mickelsen.
If a client elects to have a DWI trial, we will zealously represent him at trial, aggressively cross examine the arresting officer and help him make the decision whether to testify on his own behalf. If he elects not to go to trial, we will zealously represent him to obtain a plea to a lesser included offense. In most cases, the penalty, even if the client is convicted at a trial will not be any worse than if the client had accepted the state’s plea offer. Therefore, unlike many lawyers, we will rarely advise a client to accept a plea bargain in driving while intoxicated cases unless it is to a lesser offense such as obstructing traffic.
Fraud cases necessitate a lawyer experienced in defending these complex cases. Whereas almost any criminal lawyer has experience on a DWI or a domestic violence case, relatively few criminal defense lawyers have experience with the complicated legal and factual issues that commonly arise in white-collar criminal defense and fraud cases.
Whether a fraud offense is charged in federal or state court is largely determined by the agency investigating the case. Clint Broden & Mick Mickelsen have extensive experience defending clients charged with white-collar crimes in both Texas and federal courts.
Federal law enforcement agencies that traditionally investigate fraud related crimes, such as the FBI, the Secret Service, the Postal Inspectors, etc., tend to bring their cases to federal prosecutors. State law enforcement agencies, such as local police departments, will bring their cases related to white-collar and fraud to the district attorney’s office for prosecution. Generally speaking, federal agencies expend more resources to investigate and prosecute a fraud case than state agencies. Federal cases will often allege a complex pattern of fraudulent activity or corruption while state fraud prosecutions tend to focus on easily provable allegations, such as a defendant routinely accepting checks for services never rendered.
The firm of Broden & Mickelsen is committed to zealously representing those charged with drug trafficking in Texas courts and making absolutely sure their rights are upheld. Drug cases, more often than other types of cases, lend themselves to suppression motions that can win a case. Broden & Mickelsen are experienced attorneys, practiced in search and seizure law and the rights of citizens under the Fourth Amendment to the United States Constitution. Indeed, both Clint Broden and Mick Mickelsen have been called upon to give lectures to other lawyers on Fourth Amendment search and seizure issues.
Often lawyers attempt to convince clients charged with offenses to accept a quick plea to probation or a small prison sentence. That is absolutely the wrong approach. Before even discussing the merits of going to trial or accepting a plea bargain, we will undertake a complete review of a client’s case to decide if there is a suppression motion that can be brought which might successfully resolve the case. Only if no successful motion can be brought will we move on to the next stage of assessing a client’s chances of acquittal at trial. If a client elects a trial, we will conduct an exhaustive investigation of the case and be fully prepared at trial to aggressively cross-examine the state’s witnesses and, if appropriate, to put on defense evidence. If, on the other hand, the client elects not to go to trial, we will make all efforts to ensure the client receives a favorable plea bargain.
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.
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.
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.
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?
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