Criminal Defense Lawyer Texas

Criminal offenses, although diverse, can typically be categorized as:

• Statutory crimes
• Financial crimes
• Inchoate crimes
• Property crimes; or
• Personal crimes

Statuary Crimes

These crimes include financial/white collar crimes, drug crimes, alcohol-related crimes, and traffic offenses. They are crimes which are specifically prohibited by individual statues and cover a range of specific offenses under each category. For example, alcohol-related crimes include DUI/DWI, open container, boating DUI, minor possession of alcohol and other crimes.

Financial and Other Crimes

These crimes typically involve financial gain through deception or fraud. They include but are not limited to: embezzlement, fraud (mail/wire), cybercrime, money laundering, tax evasion, blackmail and more.

Inchoate Crimes

These crimes are those which were initiated but not completed. They also include any acts that may “assist” in the commission of a crime. In order to be found guilty of an inchoate crime the accused must be proven to have taken a “substantial step” towards the furtherment of the crime. Inchoate crimes include but are not limited to: conspiracy, attempt and aiding and abetting.

Property Crimes

Crimes that fall into this category are those that involve interference with another party’s property. This can involve deprivation or use of the enjoyment of the property by the property’s rightful owner. Such crimes include but are not limited to: burglary, auto theft, shoplifting, theft, larceny and more.

Personal Crimes

Personal crimes involve or result in either physical or mental harm to another individual. Such crimes include but are not limited to: assault and battery, rape, arson, child abuse, domestic abuse, kidnapping and more.

After a crime is committed, a law enforcement agency conducts its investigation. After the law enforcement agency has completed its investigation, the case may be filed with the prosecuting attorney for review and, if appropriate, criminal prosecution. The prosecuting attorney considers such matters as the legality of the arrest, whether certain evidence essential to the case was legally obtained, and/or whether additional investigation is required. Depending on the facts and law involved, the prosecuting attorney may: accept the case for prosecution as filed; increase/reduce the charge filed; file additional/different charges; return the case for further investigation; or reject the case for prosecution.

As a general rule, a police officer must obtain an arrest warrant before taking a person into custody. But a police officer may arrest a person without a warrant only if: (1) there is probable cause to believe that the person committed an offense; and (2) the arrest falls within one of the exceptions specified in chapter 14 of the Code of Criminal Procedure. For example, article 14.01(b) provides that a police officer may arrest an offender without a warrant for any offense committed in the officer’s presence or view.

The person making an arrest is required without unnecessary delay, but not later than 48 hours after the person is arrested, to take the person arrested before a magistrate. The magistrate is required to inform in clear language the person arrested of: (1) the accusation against the person arrested and of any affidavit filed therewith; (2) the right to retain counsel; (3) the right to remain silent; (4) the right to have an attorney present during any interview with peace officers or attorneys representing the state; (5) the right to terminate the interview at any time; (6) the right to request the appointment of counsel if the person arrested is indigent and cannot afford counsel; (7) the procedures for requesting appointment of counsel; (8) the right to have an examining trial; and (9) the person arrested is not required to make a statement and any statement made may be used against the person arrested. The magistrate is also required to allow the accused reasonable time and opportunity to consult counsel and to be admitted to bail if allowed by law.

A peace officer who is charging a person with committing an offense that is a class C misdemeanor (other than public intoxication), may, instead of taking the person before a magistrate, issue a citation (ticket) to the person that contains written notice of the time and place the person must appear before a magistrate, the name and address of the person charged, and the offense charged.

Additional rights of an accused in a criminal prosecution include: the presumption of innocence until proven guilty beyond a reasonable doubt; the right against self-incrimination; the right to not be prosecuted for a felony unless indicted by a grand jury; the right to a copy of the accusation and a speedy trial by an impartial jury; the right to confront (cross-examine) the witnesses and to have compulsory process (subpoena) for obtaining witnesses, and the right of appeal.

The defendant in a criminal prosecution for any offense may waive any rights secured him/her by law. It should be noted, however, that in a capital felony prosecution in which the prosecutor notifies the court and the defendant that the state will seek the death penalty, the defendant does not have the right to waive trial by jury.

As a resident of Texas you have certain rights, even when arrested. These rights apply to everybody, including undocumented immigrants. One of those rights is the “right to remain silent”. This is part of your Miranda Rights and should be verbalized to you during (or as part of) your arrest. You also have the right to have an attorney present with you when you do decide to speak to the police. It is always advisable to politely assert these rights and to wait until your attorney is present before saying ANYTHING to the police. Ask if you are being arrested and/or charged. If you are informed that you are, politely and clearly state that you invoke the right to remain silent until such time as you have legal counsel present.

In most situations, contacting a Texas criminal defense attorney as soon as the first indication of potential trouble arises is your best option. The right criminal defense lawyer in Texas can advise you on the right course of action and the steps you can take to prevent an arrest, end an investigation, stop charges from being filed and more. Our criminal defense attorneys will ensure you take every measure possible to position you for a positive outcome. Signs you Should Contact a Criminal Defense Attorney:

• People have told you the police are asking about you
• You have been contacted by law enforcement
• You have been arrested or charged
• The police have informed you that you are under investigation or that you are a suspect or “person of interest” in a case

The exact process and steps will vary depending on the unique circumstances surrounding your case. However, the basic steps and procedures in Texas are as follows:

• Arrest
• Booking
• Charged / Arraignment
• Bail
• Preliminary hearing
• Trial
• Sentencing
• Punishment or exoneration (fines, probation, jail, or exoneration)
• Appeal

The Texas Legislature designates criminal offenses in our state’s Penal Code as misdemeanors or felonies. Based on the relative seriousness of the offense, misdemeanors and felonies are classified into these categories:

A criminal case is prosecuted in the name of the State of Texas against the accused (defendant), and is conducted by the appropriate prosecuting attorney (prosecutor) acting under the authority of the state.

Prosecution of a class C misdemeanor in municipal or justice court is initiated by filing a complaint. A complaint is a written affidavit made by some credible person charging the defendant with the commission of an offense.

Prosecution of a class A or B misdemeanor in a county court, county court at law or county criminal court is initiated by filing an information. An information is a written statement presented in behalf of the state by the prosecutor, charging the defendant with the commission of an offense. An information must be based on a proper complaint and the complaint must be filed with the information.

A felony is prosecuted in a district court or criminal district court and an indictment (sometimes called “bill of indictment”) is required unless waived by the defendant. An indictment is a written statement of a grand jury presented to a court accusing a named person of some act or omission which, by law, is declared to be an offense.

The grand jury, organized by the district judge for a set term (usually 3 to 6 months), has jurisdiction only over offenses occurring in its own county. The prosecutor is entitled to go before the grand jury and inform them of offenses liable to indictment at any time except when they are discussing or voting upon the issuance of an indictment. The grand jury determines whether there is sufficient evidence to require the accused to stand trial for a criminal offense. At least 9 of the 12 grand jurors must concur to issue an indictment (“true bill”) and be present when the indictment is delivered to the judge or clerk of the court (to be filed in the court’s records). If the grand jury does not find sufficient evidence the case is “no-billed” and the suspect discharged. A no-bill does not bar indictment by the same or different grand jury at a later date.

When an information or indictment is filed, if the defendant is not in custody or under bond, a capias may issue. A capias is a writ issued by the court or clerk, and directed “To any peace officer of the State of Texas,” commanding the officer to arrest a person accused of an offense and to bring the accused before that court immediately, or on a day or at a term stated in the writ. Instead of a capias, the prosecutor may request that a summons be issued. A summons is in the same form as a capias except that it summons the defendant to appear before the proper court at a stated time and place. If the defendant fails to appear in response to the summons a capias will be issued.

The court may set any criminal case for a pre-trial hearing before it is set for trial upon its merits. The pre-trial hearing is to determine legal issues only such as: (1) arraignment of the defendant, if such be necessary; (2) appointment of counsel to represent the defendant, if such be necessary; (3) motions for change of venue; (4) motions for continuance; (5) defense motions to discover the state’s evidence in the case; (6) defense motions to suppress (exclude) evidence; and (7) any other defense motion. These matters are decided by the judge; sometimes the defense and/or prosecution present evidence and/or witness testimony.

Plea Bargaining

The disposition of criminal charges by agreement between the prosecutor and the defendant, under judicial supervision, is called “plea bargaining.” In exchange for the defendant pleading guilty or nolo contendere (no contest) and waiving the right of trial by jury, the prosecutor recommends a specific punishment which the judge can follow or reject. If the judge rejects the agreement, the defendant is permitted to withdraw his/her plea. If the judge follows the agreement, the defendant must obtain the judge’s permission before the defendant may appeal any matter in the case except matters raised by written motions filed prior to trial. The defendant usually waives the right of appeal as part of the plea bargain. The vast majority of all criminal cases are resolved by plea bargaining.

Non-negotiated Guilty Plea (Open Plea)

A defendant may plead guilty or nolo contendere to a criminal charge without an agreement with the prosecutor as to the punishment the prosecutor will recommend. The judge has the responsibility to assess the punishment applicable to the offense unless the defendant requests that a jury assess punishment. This is called a “non-negotiated guilty plea” or “pleading open to the court.” The defendant retains the right to appeal, but non-jurisdictional defects occurring prior to the entry of the plea may have been waived.

Trial

The Texas Constitution guarantees the accused in all criminal prosecutions the right to a trial by jury. The defendant may waive trial by jury and proceed with trial to the court (judge) with the consent and approval of the judge and the prosecutor in any criminal prosecution except a capital felony in which the prosecutor notifies the court and the defendant that the state will seek the death penalty.

Dismissal

The prosecutor may, with the consent of the judge, dismiss a criminal case. Common reasons for dismissal include: (1) insufficient evidence – for example, after indictment trial preparation reveals a fatal lack of evidence such that the court would instruct a verdict for the defendant; (2) crucial evidence is suppressed (excluded) because of an illegal arrest or search; (3) the case is re-filed to correct mistakes in the information or indictment or to better plead the case; (4) at the request of the victim; (5) the defendant pleads guilty to other offenses; (6) the defendant has never been arrested; and/or (7) necessary witnesses cannot be located.

Community supervision, formerly called “probation,” means that the defendant is released into the community under certain conditions set by the court and subject to court supervision. The maximum period of community supervision is ten years in a felony case; two years in a misdemeanor case (three years if extended by the judge). However, if the offense is indecency with a child, sexual assault, or aggravated sexual assault, the judge may extend the period of supervision for a period not to exceed 10 additional years. And the judge may extend the period in a misdemeanor case not to exceed an additional two years beyond the limit to pay the fine, costs, or restitution.

Basic conditions of community supervision include, for example, that the defendant: (1) commit no criminal offense; (2) report to the supervision officer as directed; (3) permit the supervision officer to visit at the defendant’s home or elsewhere; (4) work faithfully at suitable employment and support his/her dependents; (5) remain within a specified place; and (6) pay restitution to the victim and any fine assessed and all court costs. Defendants placed on community supervision are supervised by community supervision officers, formerly called “probation officers.”

A defendant’s eligibility for community supervision depends on factors including: (1) the type of community supervision; (2) the offense involved; (3) whether the defendant used or exhibited a deadly weapon or knew that a deadly weapon would be used or exhibited; (4) whether the defendant has previously been convicted of a felony offense or placed on community supervision; (5) whether the judge or jury sets the defendant’s punishment; and (6) whether the defendant is sentenced to a term of imprisonment exceeding ten years.

One type of community supervision is a regular community supervision. The defendant is convicted and given a term of confinement which the judge immediately suspends and then places the defendant on community supervision.

In a deferred adjudication community supervision, after receiving the defendant’s plea of guilty or nolo contendere, hearing the evidence, and finding that it substantiates the defendant’s guilt, the judge defers further proceedings without entering an adjudication of guilt and places the defendant on community supervision. Unlike the other types of community supervision, if the defendant successfully completes the supervision period, the judge is required to dismiss the proceedings and discharge the defendant. However, if the defendant violates a condition of the deferred adjudication community supervision, the defendant may not appeal the court’s decision to proceed with the adjudication of guilt on the original charge.

Finally, in a continuing jurisdiction community supervision (formerly called “shock probation”) or state boot camp program, the defendant is convicted and given a sentence requiring confinement. After serving a set period of confinement, the judge may suspend further execution of the sentence and place the defendant on community supervision.

At any time during the period of any community supervision, the prosecutor may file a motion to revoke and the judge may issue a warrant for violation of any of the conditions of the supervision and cause the defendant to be arrested and held without bond until a hearing within 20 days after demand. The state must prove by a preponderance of the evidence (greater weight and degree of credible evidence) that the defendant violated the conditions of the community supervision. After a hearing without a jury, the judge may either continue, extend, modify or revoke the community supervision or, in a deferred adjudication community supervision, proceed to adjudication. In a deferred adjudication, the judge may assess the full range of punishment prescribed for the offense; if it is one of the other types of community supervision, the judge may not go beyond the original term of confinement. No part of the time that the defendant is on community supervision shall be considered as any part of the time that he/she shall be sentenced to serve.

An appeal generally occurs after a conviction when the defendant requests a higher (appellate) court to determine whether errors were committed in the trial that require a retrial or acquittal. The decision of the appellate court is made without a jury. If the case is affirmed, then the sentence must be served; if the court finds error that beyond a reasonable doubt contributed to the conviction or punishment, the case is reversed and a new trial or punishment hearing may be ordered. Sometimes, though rarely, a case may be reversed and the defendant ordered acquitted, that is, set free (e.g., state failed to provide sufficient evidence of guilt).

The state is entitled to appeal a limited number of orders of a court in a criminal case. For example, the state may appeal an order: dismissing all or any portion of an indictment or information; granting a new trial; or granting a defendant’s pre-trial motion to exclude evidence or a confession. The state may not appeal from a judge’s decision or jury’s verdict finding a defendant not guilty of an offense.

Parole is a system by which a prisoner earns the privilege to be released from prison prior to completing the full sentence. A prisoner may earn time off his/her sentence through the award of good conduct time. Prison authorities may award good conduct time to a prisoner who exhibits good behavior, diligence in carrying out prison work assignments, and attempts rehabilitation. If a prisoner engages in misconduct, prison authorities may also take away all or part of any good conduct time earned by the prisoner.

A prisoner under sentence of death is not eligible for parole. A prisoner serving a life sentence for a capital felony committed on or after September 1, 2005, is not eligible for parole. If a prisoner is serving a life sentence for a capital felony committed on or after September 1, 1993, the prisoner is not eligible for release on parole until the actual calendar time the prisoner has served, without consideration of good conduct time, equals 40 calendar years; it is one-half of the maximum sentence or 30 calendar years, whichever is less, if the trial court enters an affirmative finding that the prisoner used or exhibited a deadly weapon or knew that a deadly weapon would be used or exhibited, or the prisoner is serving a sentence for murder, indecency with a child, aggravated kidnapping, aggravated sexual assault, aggravated robbery, or sexual assault. In most other cases prisoners may be eligible for release on parole when their calendar time served plus good conduct time equals one-fourth of the maximum sentence or 15 years, whichever is less.

The decision whether to grant parole is made by the pardons and paroles division of the Texas Department of Criminal Justice (512/406-5250; for victims only 1-800-848-4284). A prisoner released on parole remains under the division’s supervision and control subject to conditions much like a defendant placed on community supervision (e.g., report to a parole officer as directed; pay restitution to the victim).

Illegal reentry is considered to be a serious offense that can result in heavy monetary fines and imprisonment. The maximum term of imprisonment will depend on the criminal history of the defendant. The maximum terms are the following:

• Imprisonment for no more than 2 years;
• If the defendant has 3 or more misdemeanors involving drugs, crimes against the person, or a felony that is not an aggravated felony, imprisonment for no more than 10 years; and
• If the defendant has a conviction of an aggravated felony, imprisonment for no more than 20 years.

In Texas, Aggravated Assault is when a person commits assault and he/she either: 1. Causes serious bodily injury to another, or 2. Uses or exhibits a deadly weapon during the commission of the assault.

Overall, when one considers collateral consequences, the government treats the assault of a family member as a more serious crime than the assault of a stranger. It isn’t uncommon for Travis County judges to issue emergency protective orders (EPOs) in family violence cases that forbid defendants from returning to their homes and sometimes even prevents them from seeing their children. If children were present at the time of the incident then Texas CPS (Child Protective Services) may also investigate. In divorce court, a family violence conviction can be used to deny child custody and limit visitation rights. A family violence conviction can also cause you to permanently lose for any reason. If you are in the military, you may be discharged; if you work in law enforcement, you may be reassigned or fired. A family violence conviction could cost you a professional license or, if you are a skilled tradesman, make it impossible for you to be bonded. It will appear in your criminal record and will show up in pre-employment and pre-leasing background checks. Non-citizens convicted of family violence may be denied a green card or deported and denied re-entry. If you are convicted of even the lowest level of family violence assault, any future misdemeanor family violence or stalking charges may be prosecuted and punished as third degree felonies and you are permanently disqualified for an order of non-disclosure if you successfully complete deferred adjudication probation for any type of offense in the future.

Texas law allows prosecutors to seek a “family violence” conviction even when the defendant and alleged victim are not what one might ordinarily consider family. In addition to blood relatives, a family violence allegation can be made against a foster child or parent, former spouse, domestic partner, roommate, boyfriend, girlfriend, and even a former boyfriend or girlfriend. Depending on the relationship, the term “dating violence” is sometimes used in place of “family violence.”

You might think the term “bodily injury” would require some sort of visible injury like a cut or even a bruise but the legal definition includes mere physical pain. As a result, you can be charged with “Assault with Bodily Injury,” a Class A Misdemeanor and jailable offense, if you are accused of merely slapping another person or pulling his or her hair. The definition of “serious bodily injury” is more intuitive. It means bodily injury that “creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”

Texas law does not require the alleged victim to sustain an actual injury in an assault case. Physical contact that merely causes pain can suffice for an assault with “bodily injury,” which is a Class A Misdemeanor, punishable by up to 180 days in the county jail and a fine of up to $4,000 (note that a jail sentence may be probated, depending on various factors, in which case a defendant may not actually spend any time in jail). Furthermore, a mere verbal threat or “offensive” physical contact can qualify as Class C Misdemeanor Assault under Texas law. This lesser assault is the equivalent of a traffic ticket.

To begin the process for expunction of records, one must first file a petition. A hearing will be set no sooner than 30 days after the petition is filed. Usually the expunction will be granted at that time, assuming the petitioner is eligible. From that point forward, the petitioner can legally deny the arrest which has been expunged. The arrest records, however, will not be destroyed immediately. Instead an order is transmitted to the agencies that maintain the records instructing them to destroy the records. Typically it takes up to 90 days for the agencies to destroy the records. It is important to check for compliance with this order since agencies often fail to fully comply with the order.