Every criminal case begins with an investigation. Law enforcement officers investigate an alleged crime and make a report. This report might be very brief or it might be detailed. One officer might make one report or many officers might write many reports. Regardless, at some point these reports are assembled into a file which is sent to the District Attorney’s office possible legal action.
What Happens Now?
Someone might be arrested very quickly, but from that point on the process can be very slow. In Texas, in a misdemeanor case (one with a maximum jail sentence of one year) the District Attorney’s office decides whether or not to proceed with a criminal charge. The D.A.’s office proceeds by filing what is known as a “complaint”. In a felony case (one with a possibility of more than a year of confinement) the case must go to a “Grand Jury” which is a group of citizens who determine whether or not there is enough evidence to go forward (there almost always is).
If you are charged with a crime, realize that it is very likely that your case might drag on for a very long time. The only way for a criminal case to end quickly is with some sort of agreement. Sometimes that is with a very good deal for the defense or with the defense quickly admitting fault. Make sure you work closely with your attorney and are aware of the effects of taking or rejecting a plea offer.
Guilty, Not Guilty and Plea Bargains
At some point in a criminal case the prosecutor will make an offer to settle the case. Typically this involves some sort of a plea deal, but there are a large number of possibilities. Your attorney should be able and willing to explain the pros and cons to any offer.
At some point you will need to enter your plea. In the vast majority of cases there are three options. Guilty, Not Guilty or Nolo Contendere (No Contest). Guilty is fairly obvious, when someone pleads Guilty they are admitting that they did it. Typically, this is the result of some sort of a plea bargain.
Not Guilty means that the defendant is saying that they did not do it. In this case a jury will decide whether or not the prosecutor has proven their case beyond a reasonable doubt.
Nolo Contendere (No Contest) means that you are not saying you did it, and you are not saying you didn’t do it… you are just saying you aren’t going to fight it. There are slight differences between pleading Guilty and Nolo Contendere, but ultimately, if you plead Nolo Contendere the judge will treat it the same as a Guilty plea.
If you don’t come to an agreement with the prosecutor, it is not unusual to wait over a year to get your trial. Ask your attorney what kind of timetable your particular court has to avoid any unpleasant surprises.
You Need to Shut Up
Sorry to be so blunt, but the phrase, “Take advantage of your Fifth Amendment right to remain silent” doesn’t seem to sink in. Even a fish wouldn’t get caught if it just kept its mouth shut.
Fight the urge to talk your way out of trouble. You won’t. If you are a suspect in a criminal case and the police want to talk to you, you can only make things worse by giving a statement.
The reason for this is that when an officer asks you to give “your side” of the story, one of only two possible situations exist. The first possibility is that the officer(s) believe that they have enough evidence to arrest you even if you don’t say anything. The second possibility is that they don’t feel as if they have enough evidence to arrest you.
If the police believe there is enough evidence to arrest you then they will bring you down to give “Your side of the story”, after which they will arrest you. The purpose of having you give “Your side of the story” before they arrest you is so you commit yourself to your story before you have a chance to think or get a lawyer. Good officers also know that the more you talk the more likely you are to say something your prosecutor can use against you.
Often, officers will ask for your statement even if they don’t feel they have enough evidence to arrest you already. They will give you every opportunity to incriminate yourself. It is amazing how many people do.
When I ask my clients, “Why did you give a statement?” the most common answer is, “I did because I didn’t want to look dishonest.” The law in Texas is clear. IF YOU ASK TO REMAIN SILENT, THE JURY WILL NOT SEE OR HEAR THE REQUEST. Also, IF YOU ASK FOR A LAWYER, THE JURY WILL NOT SEE OR HEAR THE REQUEST.
When the prosecutor looks at the video, the prosecutor will not think, “Hey! That guy’s dishonest!” The prosecutor will think, “Hmm… that’s one piece of evidence I don’t have.”
When a policeman, attorney or judge is being investigated the first thing they always do is shut up. The second thing is ask for their lawyer. There is a reason for that.
The bottom line is, you don’t know the law. I have NEVER, EVER, EVER had a client that was glad that they went to the police to “clear things up”. What people think is a “defense” or, even worse, “explanation” is often a confession. Shut up and discuss your case with your lawyer.
Don’t Give Your Permission
For anything. Don’t give permission to search your car. Don’t give permission to search your house. Don’t give permission to look in your trunk. Don’t give permission to look in your pockets.
Tell the police officers that you won’t give permission for anything without speaking with your lawyer. If you give “your consent” to something your lawyer typically can’t complain about it later. If you give your consent to search your house, for example, your lawyer can’t complain that the police had no right to be there, or that the warrant was defective, etc…
The law regarding searches and seizures is amazingly complicated. It is also changing constantly. Even I regularly have to look up the law to see how it has changed or how it could, would or should be applied in a particular situation.
If you give your consent to anything, it is usually impossible for your lawyer to challenge the validity of it later. Police officers have to make legal judgments in a snap. It is hard job and mistakes are inevitable. Just because they say that they could get a warrant (for example) doesn’t mean that they can (or will).
Officers love when suspects give consent. It usually means that they won’t have to worry about the evidence they find being thrown out of court for legal reasons.
Don’t Believe the Police
Would it surprise you to learn that the police lie? Doesn’t seem right, does it? Aren’t police supposed to be completely honest?
Lying is a completely proper investigative technique. We want our officers to be able to lie. Every undercover detective has to tell many lies and exercise deception.
Good police officers use deception in many different ways. Telling a suspect that they have DNA when they don’t in order to get a confession is very good police work. It is also good police work to make a suspect feel comfortable and believed while the suspect is giving a statement.
Officers don’t have to tell you that they are officers. A good officer would never lie in court, but a good officer will lie during an investigation in order to get information or evidence.
Deception is a valid law enforcement tool.
Take Care when Choosing a Lawyer
Facing criminal charges is a turning point in a person’s life. What happens during a person’s criminal case will affect them for the rest of their lives. Internet background searches are getting cheaper and cheaper and a person’s criminal history will determine whether or not they get a job, mortgage, etc.. Picking a defense attorney is a bigger decision than it has ever been, and it has always been huge.
There are many factors to consider when picking an attorney. Whether or not your lawyer is a former prosecutor is a huge consideration. Another important consideration is whether or not your lawyer is a trial attorney. Also, listen to your instincts when choosing a defense attorney.
It is very difficult to defend or tear into a criminal case if you don’t know how to build one. Only a prosecutor or a former prosecutor knows in detail how to build a criminal case. Only a prosecutor or a former prosecutor knows in detail what sort of evidentiary and practical problems a prosecutor faces on a regular basis.
When lawyers are accused of crimes, they usually pick a former prosecutor to defend them.
Be very aware of whether or not your attorney is an actual trial attorney. Some defense attorneys never go to trial. Most defense attorneys rarely go to trial. Only a select few defense lawyers actually try cases on a regular basis. Prosecutors know which attorneys are willing to fight them and which attorneys will eventually take whatever deal they are offered.
Make sure you know whether or not your attorney actually tries cases.
Another very important consideration is whether or not you feel comfortable with your lawyer. If you are putting your life in someone’s hands, you have the right to feel comfortable with them. Trust yourself to know which lawyer is the right fit for you. You will have to work very closely with them.
This Guide is Only the Beginning
When I meet with a new client, I typically take a long time to answer their questions. Their lives are on the line and if I was in their position, I would have a million questions about what is going on. It is your lawyer’s job to make certain you understand exactly what is going on with your criminal case.
There is no way that this guide could have answered all of your questions. Hopefully, this guide has given you something to think about regarding your criminal case. Please feel free to use this guide as a beginning point to conversations with your lawyer.
Do not base any decision you make based solely on this guide. Use your attorney to understand exactly what is going on in your particular case. Your case is unique and you need to rely on your lawyer to help you decide what is right for you, in your own defense.
Common Crimes and Penalties in Texas
In Texas, the legislature has divided up criminal offenses based on the crime’s severity. Crimes that the legislature believes to be more serious have higher minimum punishments and/or maximum punishments. In most cases, probation is possible instead of incarceration, but that will depend on the very specific factors of any particular case. These rules are full of exceptions and it is important to ask your lawyer how the particular facts of your case may affect your potential punishment. It is important that you know that information.
The least severe “crimes” are class “C” misdemeanors. They are punishable with no jail time and up to a $500 fine. The majority of traffic tickets fall into this category. Examples include Public Intoxication, Driving Under the Influence (NOT THE SAME AS DRIVING WHILE INTOXICATED) and most Thefts under $50.
Class “B” misdemeanors are punishable by up to a $2000 fine and up to 6 months in jail. Driving While Intoxicated (First Offense), Most Thefts between $50 and $500, Possession of Marijuana (less than 2 ounces) and Driving While License Invalid are in this punishment range.
Class “A” misdemeanors are punishable by up to a $4000 fine and up to a year in jail. Crimes of this class include Driving While Intoxicated (Second Offense), Most thefts between $500 and $1500, Possession of Marijuana (2 to 4 ounces) and Assault causing bodily injury.
“State Jail” Felonies have a punishment range from 6 months to 2 years behind bars. It is very important to be aware that anyone doing time for a state jail felony will not get any “good time” credit. Someone sentenced to a year in state jail will spend every day for a year incarcerated. These crimes include Possession of Cocaine (less than 1 gram), Possession of Marijuana (4 ounces to 5 pounds), and Thefts between $1500 and $20,000.
Common Terms During a Criminal Case
Don’t be afraid to stop and ask your attorney what something means if you don’t understand it. Criminal lawyers and judges use some words so often that they don’t realize that not everyone speaks lawyer.
When a person refers to a “1244” they are referring to a section of the Texas Code of Criminal Procedure which allows for misdemeanor punishment for certain felony offenses. Typically, these offers need to be negotiated for with the D.A. “My cellmate told me to file a ‘1244’ motion”.
2 for 1, 3 for 1, etc.
This typically refers to a particular type of plea deal where certain cases are dismissed in exchange for a Guilty or No Contest plea on a case or cases. Typically, the first number refers to the number of cases pleaded guilty to and the second number is the cases being dismissed.”The Prosecutor is offering us a 3 for 2, but we can’t choose which two.”
The formal process of getting a case overturned after conviction. “It is better to avoid an appeal than to win one.”
The legal obligation to prove a case. “In a criminal case the state has the burden to prove their case beyond a reasonable doubt. The defense does not have to prove anything.”
The generic term for both Probation and Deferred Adjudication. “After pleading Guilty, he had to go to the Community Supervision office.”
A “Crawford Issue” refers to the Supreme Court case of Crawford v. Washington, which greatly limited the types of evidence that could come in against a criminal defendant. It typically comes up in the context of a hearsay statement, but must be objected to separately to preserve the issue for appeal. “Harry’s case would have been overturned on appeal, but his lawyer did not make a ‘Crawford’ objection.”
Deferred Adjudication is a special type of probation or community supervision. While on Deferred Adjudication a person will be treated exactly the same as if they were on probation. The major difference is that after completing the term of Deferred Adjudication, the charges are dismissed. Another difference is that if Deferred Adjudication is revoked, the judge has available the full range of incarceration available. “Tom was given deferred adjudication, but he messed up and the judge sentenced him to the full 20 years in prison.”
Formal removal of a charge pending against someone. “Jimmy was happy. He had all of his charges dismissed.”
Serious crime punishable by over a year incarceration. “Wendy had faced misdemeanor charges before, but this was her first felony.”
The general rule that a person can not testify to what another person said. There are many exceptions and usually hearsay can come in. An important exception applies to a criminal defendant based on the Supreme Court case, “Crawford v. Washington”. Even though Crawford is technically not a “hearsay” objection, they typically come up together.
Holding cells for less serious offenders and those awaiting trial. “Even though jail is not prison, it still isn’t fun.”
A crime where the maximum punishment is no greater than one year in jail. Misdemeanor cases are heard in County Courts. “Doug was on probation for a misdemeanor charge when he ‘picked up’ his felony.”
Method in which a defense attorney (or prosecutor) asks for something from the judge. “Janice’s lawyer filed a Motion to Suppress in order to keep out certain evidence.”
No Contest (Nolo Contendere)
A plea that states that even though you are not saying you actually did it, you are agreeing to be found Guilty by a judge. “When Pat pled No Contest, it had the same effect as a guilty plea.”
An objection is the formal means to put disagreement with what is occurring/has occurred on the record. If a defense attorney doesn not object at the right moment, the defendant often gives up his right to complain later. “The testimony against Brutus shouldn’t have come into evidence, but the defense attorney did not object.”
The declaration of a defendant (Usually Guilty, Not Guilty or No Contest) as to their guilt, or lack thereof. “Bob pled Not Guilty and has always said he didn’t do it.”
Plea Agreement or “Bargain”
Typically, an agreement between the prosecutor and defense as to the punishment a defendant will receive if he pleads Guilty or No Contest. “Shirley was going to go to trial, but when the Prosecutor offered her Deferred Adjudication, she changed her mind.”
Slang for having charges filed against a person. “Ernest was on parole when he picked up the Assault charge.”
When a defense attorney makes a proper objection in a proper form it is said to be “Preserving Error”. “After winning his appeal, Oscar was happy his attorney preserved error at his trial.”
In Texas, where serious criminals go for years. “Robert was not surprised when the judge gave him 20 years in prison.”
A person on probation is watched very closely by the government as an alternative to incarceration. Conditions must be followed and if the judge believes a condition of probation is violated the judge can send the probationer to jail or prison. “Maxine has happy to get probation. She thought she was going to prison.”
Type of plea deal where the defendant pleads Guilty or No Contest to a less serious charge. “Neil was not going to plea Guilty, but when the prosecutor offered a reduction from Aggravated Assault with a Deadly Weapon to Simple Assault, he agreed to a plea bargain.”
An intermediate correctional facility between jail and prison. “If you get sentenced to State Jail, you don’t get good time credit.”
State Jail Felony
In Texas, a felony punishable by 6 months to 2 years in a specifically designated “State Jail Facility”. Prisoners sent to State Jail Facilities receive no good time credit. “Even though Nancy was sentenced to less time than Julie, Nancy was behind bars longer, because she committed a State Jail Felony.”
To keep evidence out of a trial. “The judge suppressed the evidence found in the trunk, because the stop was illegal.”
Decision in a case. “It took the jury 20 hours to return with a ‘Not Guilty’ verdict.”
The process of jury selection. “After the court finished the voir dire, a jury was seated.”