Fort Bend DWI Lawyer | Sugar Land Criminal Defense Attorney
If you or a loved one are facing criminal charges or accusations, are under investigation for a crime, or have been arrested for a crime, you may be anxious and confused as to ‘what’s next’. Because you generally only get one chance to defend yourself in court, the decisions you choose to make about your defense will likely affect the rest of your life.
Any criminal charge, no matter how minor, should be taken extremely seriously. I seriously encourage you to seek the help of a seasoned criminal lawyer as soon as possible. Avoid any attempt to be appointed a public defender and make sure that you choose a Houston criminal defense lawyer whom you feel comfortable with.
The following is a brief outline of the criminal process in Texas, including Houston, Sugar Land, and its surrounding counties.
Criminal Offenses in the State of Texas
Typically criminal offenses fall into two categories: felonies and misdemeanors. Occasionally and depending on the circumstances of the case, a crime can be charged as a felony or misdemeanor. This situation is referred to as a “wobbler.”
A Felony in Texas is a crime that is serious enough for you to spend one or more years in jail, depending on the degree of the felony.
A Misdemeanor in Texas is a crime less serious than a felony, punishable by no more than one year in jail. Within each misdemeanor classification vary degrees of severity and consequences. For example, a class C misdemeanor is punishable by fine only.
Before arresting any suspect, police officers generally must have a warrant. However, if there is probable cause that a suspect committed an offense, or an offense is committed in the presence of the officer, the officer does not need a warrant to make an arrest.
If you have been detained and the police officer clearly indicates that you are not free to leave, you could be under arrest. Even if the officer does not say ‘you are under arrest’ or restrain you with handcuffs, you can still be under arrest. Nevertheless, if you are questioned about your involvement in or knowledge of a crime, and the answers are going to be used against you in a court of law, those questions must be preceded by the Miranda warnings (‘You have the right to remain silent, you have the right to an attorney, etc.). If you state that you do not wish to answer the questions, the questioning must stop.
Your Rights as an Accused
After being arrested Texas law requires you to be taken, without delay, to a magistrate, or judge, at which time the judge must advise you of any accusations against you, any affidavits filed regarding the accusations, your right to retain legal counsel, your right to remain silent, your right to have an attorney present during any interviews, your right to terminate any interviews at any time, your right to request a court-appointed lawyer, your to have a fair trial, and your right not to make a statement that may be used against you. (Miranda warnings). It is also your right to have a reasonable amount of time to contact an attorney.
As the accused, you also have the right not to be prosecuted unless indicted by a grand jury when facing a felony, the right to be presumed innocent until guilty beyond a reasonable doubt, the right not to incriminate yourself, the right to a speedy trial, the right to confront any witnesses against you, and the right to appeal.
Selecting a Houston Criminal Attorney
Regardless of where you are in your case, you have the right to hire a criminal defense lawyer at any time. However, the best time to retain a lawyer is if and when you first hear of an investigation.
If you cannot afford to hire a lawyer, a court appointed lawyer or public defender will be appointed for you on your behalf. At the conclusion of the case, the costs relating to the court appointed lawyer or public defender may still be your responsibility.
‘Booking’ simply means when arrestees are brought to the jail and their information is taken. The booking process starts when the jail staff records the name, age, address, and reason for arrest. Then before an arrested person is placed behind bars, a booking number is assigned, a mug shot (booking photograph) and fingerprints are taken, and clothing and personal effects are collected and inventoried. It is often at this stage that many illegal drugs are found on an arrestee’s person, leading to additional charges being brought against that person.
Houston Texas Criminal Charges
At this stage a formal accusation of criminal activity ‘a charge’ is brought against you. After reviewing police reports, statements made by witnesses, and any other evidence, a prosecutor will announce the charge or charges at your arraignment, which is your first setting before the court. Only the district attorney’s office has the authority to bring or drop charges against you. Often time, if there is a victim involved in the crime, the victim will almost always in some way influence their decisions.
Getting or Reducing Bail in Texas
Bail is money paid to the court to guarantee your presence at court at a later date. This is also commonly known as a bail bond. There are different types of bail bonds. A surety bond is the most common where a bail bondsman will charge you a fee; generally 10-15% of the total bond and cover the remaining portion.
A personal recognizance bond (PR bond) is a bond that does not require any money to secure your appearance at a future court date. This is generally the best type of bond to secure if a judge will allow it. For an offense such as a DWI however in Harris or Fort Bend County, PR bonds are almost never granted. If you believe your bail is set too high or unreasonable, motions to reduce bail can be made at the arraignment setting.
Criminal Arraignment Setting
After you have been arrested, the law allows the police to hold you for a limited amount of time without setting bail. Unless it is a weekend or holiday, in most cases, you can be held for up to 72 hours on a misdemeanor charge. If it is a weekend or holiday, you can also be held for that weekend and/or holiday before you are arraigned, or able to get in front of a judge.
The arraignment is your initial appearance before the judge where you will enter a plea of not guilty, ask to post bail, and, if you cannot afford attorney, determine if you are eligible to have one appointed for you.
Pre-Trial Discovery Process
The pre-trial discovery process is simply where the defense asks the prosecution for documentation and information relevant to their client’s case. During discovery, typically, the following information is exchanged: diagrams, expert analysis, medical records, photographs, police reports, probation reports, witness statements, and other physical evidence. On any case I am retained on I always subpoena the 911 dispatch tapes from the incident, the mobile data terminal logs (the information regarding where the officer is and what he is doing), the arresting officer’s personnel file, certification records, internal affairs records, and civil complaint history. This stage is the most crucial in that it will lead to the ultimate decision of whether to take a plea bargain or set the case for trial.
Generally, preliminary proceedings only occur in felony cases. As a criminal defense lawyer, I use the preliminary proceedings to expose the prosecution’s case and to solidify their witness list while preparing for trial.
Some legal issues determined in a pre-trial hearing are the arraignment, appointment of counsel (if necessary), motions for change of venue, and defense motions to discover or suppress state evidence. The judge makes the final decision on each issue.
A good criminal defense lawyer can force a dismissal of charges or pressure prosecutors to change positions using an assortment of pre-trial motions. Common motions include: Compel Discovery, Dismiss the Information, Sever Counts, Speedy Trial, Strike Counts, and Suppress Evidence. A Motion to Suppress is often the most frequently filed motion wherein the defense is alleging that the initial reason for a police encounter lacked ‘reasonable suspicion’ to apprehend an individual. For example, if a police officer walked up to you at a bus stop while you were simply waiting for a bus and immediately demanded to search your person, he would lack reasonable suspicion and this would be a good time to file a motion to suppress.
Plea Bargaining Process
90% of all criminal cases generally result in plea bargains. Personally, I only use a plea bargain when there is little to no likelihood of winning at trial. It is possible that your criminal case can be settled between the defense, prosecution, and sometimes the judge. Typically, you would plead guilty to a lesser crime or fewer charges in exchange for a guaranteed sentence that is shorted than the punishment you may face at trial if convicted. Here, the prosecution is certain of a conviction and a sentence, the defense avoids the risk of a higher sentence, and the judge is able to move on to other cases.
Another plea option would be enter a “non-negotiated guilty plea”, meaning rather than you negotiating a punishment with the prosecutor, the judge or jury assigns the punishment applicable to the crime. A separate hearing called a Pre Sentence Investigation hearing typically follows this type of plea.
Texas Criminal Trial Process
Under the Texas Constitution, any suspect in a criminal prosecution has the right to a speedy trial by jury. Texas is one of the only states that allow trial by jury for any criminal offense, including a speeding ticket. If you are charged with a felony, your trial should begin within 180 days of the arrest and within 60-90 days if you are charged with a misdemeanor.
The right to a jury trial may be waived and, with the consent of the judge and prosecution, the trial will become a ‘bench trial’, or a trial where the judge hears all the evidence and makes a determination. This is the case for all criminal prosecutions with the exception of those that are capital felonies where the prosecution has made it known that the State will seek the death penalty, which requires a trial by jury.
There are several steps to the criminal trial by jury:
- The jury panel is assembled after both the prosecution and the defense have the opportunity to jointly examine the jury prospects. This process is called ‘voir dire’ (pronounced VOHRR DIE-ER).
- The indictment (in a felony case) or information (in a misdemeanor case) is read to the jury.
- The defendant enters a plea of not guilty.
- Prosecution and defense make opening statements.
- State testimony is presented.
- Defense testimony is presented.
- The opportunity for rebutting testimony is given by either prosecution or defense.
- The jury hears the court’s written charge (the ‘jury charge’) describing the applicable case law.
- Prosecution and defense make closing arguments.
- Jury deliberation: If, after deliberation, the jury finds the defendant guilty, the trial continues on to sentencing. If the jury finds the defendant not guilty, the trial ends and the defendant is free to go. If the jury does not come to a unanimous verdict, a mistrial is declared and the case may be tried again later.
- Sentencing: The judge decides punishment unless the defendant requests the jury to assess punishment or the State is seeking the death penalty.
Texas Case Dismissals
A criminal case may be dismissed by the prosecutor, and very rarely in limited circumstances by the judge, for the following reasons:
- Insufficient evidence
- Evidence is suppressed due to an illegal arrest or search
- Mistakes in the indictment
- To better plead the case
- Victim’s request
- Defendant pleads guilty to other charges
- Defendant has no arrest record
- Witnesses cannot be located
- In the interest of justice
Consequences of a Criminal Conviction
If you were charged with a misdemeanor or a felony, according to the judge’s discretion, you may lose the right to vote, possess a firearm of any kind, and associate with known criminals. Depending on the circumstances of your case, you may also have to register as a sex or narcotics offender, and/or pay increased penalties in future convictions. Some of these consequences may be removed by expunction or nondisclosure with a motion to the court depending on the circumstances of your plea or sentencing.
Another often-overlooked consequence of a criminal conviction, especially in the context of a Driving While Intoxicated offense, is the drivers license repercussions. A guilty plea or verdict on a first time DWI offense leads to a minimum license suspension period of one year, or two years if a blood or breath specimen was taken resulting in over .15 the legal limit.
Appealing a Criminal Case in Texas
If a judgment was rendered against you in your trial, you have the right to appeal the decision to a higher court, usually within thirty (30) days. Any such appeals must be done in a written motion to the court. Normally, the appellate court will accept as true all facts that the trial judge or jury found to be true, and decides if laws were understood and correctly applied.
If the appellate court decides a mistake was made and changes the judgment against you, it will direct the lower court to hold a new trial. More often than not, any mistakes found are minor or ‘harmless error’, and the judgment is not overturned.
Expunction or Nondisclosure in Houston
An expungement is the legal term by which a conviction is removed from your records. Ultimately, an expungement makes it possible for you to gain employment that would otherwise be unavailable to you or to deny that any arrest occurred in the first place.
You may be eligible for expungement if criminal charges against you have been dismissed (depending on the reason for the dismissal), you were found not guilty, you were pardoned, someone used your name or identification when you were arrested, you were a juvenile who completed a deferred sentence, or you were a first-time offender of underage drinking.
Some convictions carry consequences that cannot be removed by an expungement, such as sex offender registration.
It is also possible to have your records sealed. While sealing your records does not completely remove the conviction from your record, it will not show up on a background check.
A nondisclosure is a more lenient way of clearing your record if you pled guilty and received deferred adjudication. Only certain governmental agencies are legally allowed to retain and disclose your criminal history after an order of nondisclosure has been signed by the court.
Though the crimes below are some of the more common crimes committed in Texas, Lawrence Law Firm, PLLC handles any and all crimes under the Texas Penal Code. If you are charged with a crime that is not listed below, rest assured that we can still help you. Please set up a free consultation today.