Law Office of Bruce S. Fox, Criminal Law, Austin, Texas

These guidelines are provided as general information that may be of some use to you. To advance to an item of interest, simply click on that item.

The Role of the Defense Attorney

The right to counsel is the critical foundation of our criminal justice system. Without the proper knowledge and background, the defense is ill-equipped to put forth procedural or substantive rights which could be lost if not asserted. What the competent lawyer finds obvious and necessary may be hidden, complex, or bewildering to the under trained litigator.

Implicit in the concept of a right to counsel is the notion of effective representation. As the United States Court said in Powell v. Alabama,(1932) counsel must provide effective aid in the preparation and trial of the case. The text of the Sixth Amendment itself suggests as much. The Amendment requires not merely the provision of counsel to the accused, but, assistance which is to be for ‘his defense’.

Prior to a criminal trial a lawyer will undertake to examine and investigate the facts surrounding the arrest and/or allegations made by witnesses or government agents. He or she will review the charges and the laws implicated therein. Only then can counsel offer an objective opinion as to what course of action should be followed. In the course of the actual trial on the merits, the role of counsel is to address inconsistencies in the state’s case, prepare, and present a strategic defense, and summarize law and facts in the client’s behalf.

Lawyers, sometimes called attorneys, are also known as counselors. In reality, we wear many hats – confidant, advisor, liaison, peacemaker and friend. Although it is imperative to have a strong command of the law and the respect of your colleagues, it is also extremely important to remember that each case is tied to a unique person who deserves respect and your best effort.

How to Choose Your Attorney

Whether you elect to employ me as counsel, or one of my colleagues, you should seek answers to the following questions.

1) Do I trust this person?
2) Do I believe they have the legal ability to handle the matter at hand?
3) Does this person limit himself or herself to the practice of Criminal law?
4) What is their reputation in the community? In the Courthouse?
5) Is the fee competitive with other attorneys with similar experience?
6) If there is the slightest chance that your case will go to trial, does this person have trial experience?
7) Does this attorney have sufficient and trained personnel in his or her office to assist in your defense?

Although it may take you a few hours to obtain these answers, it could be time well spent. Getting a second opinion for a medical procedure, or driving more than one car before making a purchase, is almost routinely practiced. The important decision concerning protection of your freedom should be no different.

The Constitutional Right to Counsel

The first ten amendments to the United States Constitution make up the Bill of Rights. The first eight enunciate the great liberties of a democracy: freedom of speech, press, religion and assembly; protection for the privacy of the home; assurance against double jeopardy and compulsory self incrimination; the right to trial by jury; freedom from cruel and unusual punishment; and the right to counsel.

It was not until the seminal case of Gideon v. Wainright in 1963 that an indigent was guaranteed the right to counsel in felony prosecutions. The case was much celebrated -- no less than Henry Fonda played the drifter Clarence Carl Gideon in the 1980 T.V. movie “Gideon’s Trumpet.” Gideon, a convicted felon, was denied counsel for his Burglary charge. His petition for relief to the Supreme Court was handwritten. After his conviction without counsel was reversed, Gideon was retried for the burglary. With counsel provided, he was acquitted, vindicating his claim and the general proposition that counsel is necessary for a fair trial. But Gideon did not delineate the scope of the counsel doctrine, i.e., would it be limited to special classes of offenders, or offenses? Somewhat surprisingly it took until 1972 in Argersinger v. Hamlin, for the Supreme Court to embrace the spirit of Gideon by holding that even in misdemeanor prosecutions the right of an indigent defendant to the assistance of counsel is protected by the Sixth and Fourteenth Amendments.

The constitutional rights to counsel at one’s arrest and/or interrogation are derived from the Fifth and Sixth Amendments to the United States Constitution, respectively. In both instances the right is designed to prevent one from making statements or taking actions against his or her penal interests. To violate either doctrine in this context is to make any testimony or evidence thereafter obtained inadmissible at the defendant’s trial. This is a part of what is known as the “exclusionary rule,” which has presented the U.S. Supreme Court with some of its most perplexing constitutional questions.

Unlike the right to counsel in other situations, the right to counsel at arrest or interrogation does not necessarily provide representation in the physical form. Instead, by invoking the right to counsel, a suspect forces his accusers to address the investigation and prosecution of the case through the suspect’s attorney. Here, it is the failure to allow for invoking the right to counsel which denies the defendant effective representation at possibly the most important point where legal advice would help.

VERY IMPORTANT STUFF

There are several longstanding generally accepted conventions that you should memorize.

IF YOU ARE EVER CONFRONTED BY A LAW ENFORCEMENT OFFICER, AND HAVE ANY QUESTION OR CONCERN ABOUT YOUR CIRCUMSTANCES, PLEASE IMMEDIATELY AND POLITELY INFORM THE OFFICER THAT YOU WOULD LIKE TO SPEAK WITH AND/OR HAVE COUNSEL PRESENT BEFORE RESPONDING TO THEIR INQUIRIES. REMEMBER, ANSWERING JUST ONE QUESTION, MAKING ONE STATEMENT, OR CONSENTING TO A SEARCH CAN AND WILL BE USED AGAINST YOU. THIS CAN BE THE DIFFERENCE BETWEEN YOUR INNOCENCE AND A GUILTY VERDICT.

You may not make a friend or may immediately be arrested for the perception that you are a/the guilty party, but you will not complicate your situation by saying the wrong thing. Once you invoke your right to counsel, all questioning should cease, (at least legally).

Giving a statement to the police or other investigating law enforcement agency is almost always discouraged by defense attorneys. There are several reasons for this, the chief among them being that the state must prove the allegations against the Accused. The Defendant has no obligation to prove that he is innocent. It is hard to look good when you are denying allegations, or have to answer difficult or uncomfortable questions on the spot. If the Defendant gives a statement, his words, however innocent at the time, can and will be used against him later, especially if any parts or details of the statement change over time. This becomes especially critical if the Defendant is considering testifying in his own defense. It is almost always better to save your statement for your attorney and, if it comes to that, for the witness stand.

Before making a decision about giving a statement, always obtain the advice of an attorney. Do not make a statement without your ATTORNEY present.

Jail Releases: 24/7

Our telephones are answered by a real person all day, everyday. We have attorneys on call to assist you in securing the release of your friend or loved one.

In Travis County, there are four ways to get a Defendant out of jail. These are:

1. Personal Bond. Almost every person arrested in Travis County is interviewed by Pre Trial Services for consideration of a personal bond. If the Defendant does not have an extensive criminal history, the bond amount is not too high and the offense charged is not too serious, and the defendant is not on probation, the Defendant might qualify for a personal bond. Other factors include how long the Defendant has lived in Travis County and the impression he or she makes on the bond officer who does the interview. If the charge is Assault, Pretrial Services almost always requires the alleged victim to sign a statement indicating that he or she is not afraid of the Defendant and is not opposed to his/her release from jail.

If the Defendant is allowed a personal bond through Pre Trial Services, no attorney or bail bondsman is required for the Defendant’s release. However, an attorney can speed up the process considerably. Generally, the Defendant will be released from two to four hours after the personal bond is posted. Quite often, Pretrial Services, and ultimately, the judge, will impose conditions for the release of the Defendant, such as a drug or alcohol assessment, counseling, staying away from the victim (assault cases), supervision or an ignition interlock device (second or subsequent DWIs). There is a $20 fee paid to the couinty for each personal bond granted - more if the case is a DWI second or subsequent and an ignition interlock is required.

It is important to note that the person released is responsible to follow up on his or her court date, which is stated on the bond. Failure to do so could result in a bond forfeiture and a warrant being issued for the accused. Additionally, the Defendant will be responsible to the county for the actual amount of the bond. Within 45 days of the entry of the bond forfeiture, the county normally files a civil lawsuit against the Defendant to recover the face value of the bond plus court costs and filing fees.

Of course, once counsel is hired, the attorney will make all necessary appearances and inform the client when his appearance is necessary.

In some cases, Pretrial Services will deny personal bond unless an attorney becomes involved in the case. Typically, this happens when the Defendant’s residence is in question, when the charge is especially serious or the bond amount is very high, or when the Defendant has a lengthy criminal history.

In other instances, such as when multiple charges are pending, when the Defendant is already on probation or parole, or when an attorney is attempting to do a “walk-through” (see below), Pretrial Services will simply run a criminal history check on the Defendant and make no recommendation on the bond.

When Pretrial Services does not make a recommendation or denies a personal bond, the attorney still can approach a judge/magistrate and plead the client’s case for a personal bond.

2. Cash Deposit Bond. Travis is one of only two counties in Texas that allow attorneys to post cash deposit (percentage) bonds. These types of bonds are usually used in more serious cases or in bond forfeiture cases. In reality, the cash deposit bond is a personal bond that is partially collateralized. As a general rule, the attorney is required to post 10 percent of the total bond amount, although from time to time the percentage will be 15 or even 20 percent. Only attorneys are allowed to post these types of bonds. In many cases, any amount of the fees collected for the release above 10 percent of the bond amount will be deducted from the retainer/legal fee for the case itself.

3. Surety Bond. Surety bonds are usually posted by bail bond companies licensed to do business in Travis County. Under a surety bond, the Defendant, as principal, and the bondsman/attorney contract with the county to either have the Defendant show up for court or, if the client does not timely appear, to pay the county the full amount of the bond, plus legal fees. In some instances, such as high bond amounts or if the Defendant has a history of not showing up in court, the bondsman will require collateral, a promissory note or a third-party guarantor to back up the bond and to protect the bondsman from a forfeiture.

4. Cash Bond. To post this type of bond, a money order or cashier’s check for the exact amount is required. Despite the name, Travis County no longer accepts cash. You can either have an attorney post the bond (and get the Defendant to fill out the cash bond form) or you can take the money order to the Bonding Desk at the Blackwell/Thurman Criminal Justice Center. The jail staff will have the Defendant sign the proper forms. Although it is faster to do this through an attorney, there is a charge for such a service (slightly higher if the Defendant is housed at the Travis County Correctional Center in Del Valle).

If you post the cash bond yourself, there is no additional charge other than the $15 service fee collected by the Sheriff’s Office on all surety or cash bonds. After the case is resolved, the money is returned to the Defendant. It is important to note that the Treasurer’s Office is required by state law to return the money to the Defendant, no matter who posts the cash. The Defendant’s interest in the money can be legally assigned to the person who posts the cash or to an attorney as part of a fee arrangement.

The Criminal Process

Warrantless Arrests: Approximately 90 percent of all arrests made in Travis County are warrantless, that is, a peace officer determines that probable cause exists to arrest a Defendant based on his own observations or on observations related to him by another person. When a person is detained/arrested under these circumstances, he or she is usually taken to the Travis County Jail Booking Desk, where the Defendant is held until formal charges are filed and bail is set. For information about the charges, status of the Defendant and/or bond amounts, call Central Booking at (512) 854-9889.

Most charges are filed soon after the arrest, and the Defendant is taken before a magistrate judge to be warned of the charges against him, the amount of his bond, the right to remain silent and to have an attorney present to represent him. At this time, typically, the Defendant also is informed of his right to have an attorney appointed to represent him/her.

On occasion, the police will place a hold on the individual while an investigation is conducted. Although the U.S. Supreme Court has ruled that the police can hold an individual for up to 72 hours without formally charging him, the general rule in Travis County is that the jail will release a Defendant if charges are not filed within 48 hours, 24 hours for lesser misdemeanors.

The Hobby Rule: In some cases, such as DWI without an accident, or other misdemeanors that do not involve violence, the Defendant can be released to an attorney under the “Hobby Rule.” In Travis County, if a Defendant is arrested after the Magistrate judge has left, or if formal charges have not been filed by the time the judge leaves, usually around 1 a.m., the Sheriff’s Office will release the Defendant to an attorney on the condition that the Defendant and attorney return to the jail before noon on the same day to post a bond.

If the Defendant does not qualify for a Hobby release, he cannot be processed for release until the arresting officer presents a “Probable Cause Affidavit” (or, officially, Affidavit for Warrant of Arrest and Detention), for a judge’s signature. After the Probable Cause Affidavit is accepted by the judge on duty, and a commitment is generated by the Municipal Court staff, the Defendant is placed on a list to be magistrated. At this point, the release process can be expedited by an attorney. For example, if a person is arrested too late at night to be seen by the judge, an attorney can go to the jail and waive the magistrate’s warnings. Intervening at this point could save the Defendant a night, or several hours, in jail, and in some cases, a job when appearance is required the following morning.

Arrests on Warrants

1. New Charges: Although some new criminal cases make their way to a judge for issuance of a warrant, the vast majority of arrests on warrants are for bond forfeitures or probation revocations. However, on occasion, law enforcement agencies will get a case where an immediate, warrantless arrest is not possible. In many instances, such as sexual assault, embezzlement, assaults where the Defendant has left the scene before the police arrive, or drug distribution cases, the investigating agency must marshall enough evidence to convince a judge that an offense has occurred. Under these circumstances, the agency will generate an affidavit for a warrant of arrest and detention, present the paperwork to a judge, and secure issuance of a warrant for the Defendant.

In many cases, if the Defendant believes a warrant might be in the works, our office will run regular warrant checks. Oftentimes, we can arrange for the Defendant to turn himself in. This can save the client a significant amount of jail time, not to mention the advantages of not having to worry about being arrested in the middle of the night, in front of family or friends, at work, or having a vehicle impounded after being stopped for a traffic violation.

This usually comes about by checking with the various law enforcement agencies, or by contacting the officer or detail who is getting the warrant, arranging bond paperwork in advance, then turning the Defendant in to the jail to be processed and released.

2. Probation Warrants: If the Defendant is on misdemeanor probation and fails to comply with his probation terms, e.g. commits another offense, has a positive UA for drugs or alcohol, misses probation meetings, etc., the Community Supervision and Corrections Department (Probation Department) may issue a violation notice, which then goes to the County Attorney’s Office for a Motion to Revoke Probation. (If the Defendant is on a Deferred Adjudication probation, a Motion to Proceed to an Adjudication of Guilt will be filed.) As a general rule, the judge will set a bond when the warrant is issued or, in some cases, the judge will issue a summons to appear before the Court.

It is an unwritten rule that an attorney attempting to secure the release of a Defendant charged with a probation violation must go to the judge who put the Defendant on probation. In many probation cases, if the allegations in the Violation Notice are not too serious, or if the Defendant doesn’t have multiple prior motions to revoke, the judge will allow his release on a cash deposit bond. In a few instances, if the Defendant has not yet been arrested, the judge might recall the warrant and have a summons issued instead.

If the Defendant knows beforehand that a probation warrant is about to be issued, a “walk-through” may be arranged. In these cases, the attorney would have the bond paperwork completed and signed by the judge in advance, allowing the bond to be posted when the Defendant turns himself in and resulting in a short booking process before the Defendant is released to appear in Court at a later date.

In District Court (felony) probation cases, the warrant is issued without a bond. That means that an attorney must approach the judge who has jurisdiction over the case to ask that a bond amount be set and to request that the judge approve a bond. The judge is not required, by law, to set a bond on probation arrests, unless the Defendant is on a Deferred Adjudication probation. However, as a practical matter, no bond is initially set on any felony probation cases in Travis County. Once again, if the Defendant knows a warrant is to be issued, it is possible, in certain cases, to get a bond set and approved to allow the Defendant to do a walk-through.

3. Bond Forfeitures: Class A and B Misdemeanors: if the Defendant fails to go to County Court, the judge usually forfeits the bond, increases the amount of the bond and issues a warrant for the Defendant’s arrest. Typically, the judge also will order that only a cash or surety bond may be posted. (See sections on bonds.) If the Defendant is arrested during the day, there is often a chance that the judge will allow the posting of a cash security bond if the Defendant does not have a history of bond forfeitures or a lengthy criminal history. However, the attorney must go to the judge of the court where the bond forfeiture occurred. If the arrest occurs at night, the only way to get the Defendant out of jail is to have a bond company or attorney post a surety bond or to have a relative or friend post the entire bond in cash (money orders or cashiers checks only).

Felonies: first and foremost, if a felony Defendant fails to attend court, the district attorney could file a felony Bail Jumping charge. This is unlikely where only one court date is missed and the Defendant through cousel gets his case back on the docket in good standing. Bail jumping (Tx. Penal Code, Sec. 38.10) is a third-degree felony (two to 10 years in prison, and/or a $10,000 fine). It is not a difficult case for the state to prove if the Defendant abandons a felony case for a long period of time.

Typically, in felony bond forfeiture cases, the warrant is issued without a bond amount set. As a general rule, the Defendant will have to get an attorney to talk to the judge who has jurisdiction over the case and ask him or her, first, to set a bond amount and, second, to sign a bond to post for the Defendant’s release.

3. Bond Forfeiture Civil Suits: Defendants who forfeit their bonds not only face a warrant and (usually) at least some time in jail, they also face a civil suit to recover the amount of the bond forfeited. As a general rule, the County Attorney’s Office will file a civil suit against the Defendant (and surety) 45 days after the bond forfeiture is entered.

A civil suit can be avoided if the bond forfeiture is set aside withing 45 days of its issuance. However, if the forfeiture is not set aside, the County Attorney’s Office will file the civil suit and start the clock ticking for settlement of the suit. Typically, the fees for settling a civil bond forfeiture lawsuit are the costs of filing the suit, the State's attorney fees, and, in most cases, 5 percent per month of the amount of the bond. These fees are in addition to the cost of hiring your own attorney to handle the settlement.

The System

There are, in effect, three criminal justice systems in the State of Texas, with three different types of courts taking jurisdiction, depending on the offense charged.

1. Felonies: In Texas, felonies, the most serious of charges, are broken down into five different categories: capital murder, first degree felony, second degree felony, third degree felony and state jail felony, sometimes called fourth degree felony.

Clearly, Capital Murder is the most serious charge a Defendant can face, since it carries the potential for a sentence of death or life in prison. This charge is reserved for specific fact situations enumerated by statute, such as Murder of a child under the age of 6, Murder of more than one person, Murder during the commission of other felony offenses, etc.

First degree felonies carry a sentence of five years to 99 years or life in prison and/or a $10,000 fine. First degree offenses include Aggravated Assault on a Peace Officer, Aggravated Sexual Assault of a Child, Murder, Possession of more than 200 grams of certain Controlled Substance, and Aggravated Kidnapping. The maximum term of probation on first, second and third degree felonies is 10 years. In addition, in certain categories of offenses, such as Aggravated Robberies, Aggravated Assaults and some sexual offenses, only a jury - and not a judge - can grant probation for the Defendant.

A conviction for certain aggravated offenses also means that the Defendant will not be eligible for release on parole until he has served one-half of his prison sentence. In other cases, the Defendant can become eligible for release on parole when the time served, plus credits, equals one-quarter of the original sentence.

Second degree felonies, such as Burglary of a Habitation, Sexual Assault of a Child, Intoxication Manslaughter, Aggravated Assault, etc., carry a possible term of two years to 20 years in the penitentiary, and again a fine up to $10,000.

Third degree felonies, such as Burglary of a Building, Indecency with a Child, Assault causing Serious Bodily Injury, Failure to Register as a Sex Offender, and third or subsequent DWI’s carry a term of two to 10 years, and a maximum fine of $5,000.

State jail felonies include offenses such as Possession of a small amount (less than one gram) of Certain Controlled Substances, Interference with Child Custody and Unauthorized Use of a Motor Vehicle, have a maximum term of two years in a state jail facility, and a maximum fine of up to $5,000.

The District Court system has more rules that are more rigidly enforced than in the lower courts. Because the stakes are so much higher, (death penalty, prison time, long probations), the proceedings are more formal. Punctuality, appearance and respect for the court are a must.

2. Misdemeanors: In Texas, misdemeanor offenses are broken down into two systems: the “higher charge,” Class A and Class B, and the lower, Class C, offenses.

Class A misdemeanor offenses, which are heard in the County Courts-at-Law, have a potential for up to one year in jail and a fine not to exceed $4,000. Class A offenses include Assaults with Bodily Injury or Assault involving Family Violence, second DWIs, Criminal Mischief or Theft of Property or cash with a value of $500 to $1,500, and Burglary of a Vehicle.

Class B misdemeanors, which carry a penalty of up to 180 days in jail and/or a fine of up to $3,000, include Criminal Mischief or Theft of $50 to $500, first DWI, driving while license suspended, etc. Class B misdemeanors also are heard in County Courts-at-Law.

Class C misdemeanors carry a penalty of fine only and include traffic offenses, Public Intoxication, Minors in Possession of Alcohol, Disorderly Conduct offenses such as Fighting, Unreasonable Noise, Failure to Display a Driver License, etc. These cases are heard either in Municipal Court (if the offense was alleged to have occurred in the city limits) or in the Justice of the Peace courts (if the offense was alleged to have occurred outside the city limits).

Probation: Whether the Defendant is charged with a misdemeanor or a felony, many first-time offenders in Travis County can expect to be offered probation. The maximum term of probation for felonies is 10 years - except for some state jail felonies, which have a maximum probationary term of five years.

The maximum term of probation for Class A and B misdemeanor is two years. Because Class C misdemeanors are fine only offenses, there is no probation, although a Defendant may enter into a deferred prosecution or deferred disposition agreement, which calls for the individual to remain trouble free without supervision from 90 to 180 days.

There also are two types of probation offered in the State of Texas: regular probation, which entails the entry of a judgment of guilt against the defendant, and Deferred Adjudication, which means that the judgment of guilt is deferred and the Defendant is placed on probation. Under a Deferred Adjudication, if the Defendant successfully completes his term of probation, the charge is dismissed and no conviction is entered. In these types of cases, the Defendant can say that he was not convicted of the offense. However, there still will be a public record of his arrest and of the proceedings against him, including the fact that he was placed on probation.

Other ways to dispose of misdemeanor cases include Pre-Trial Diversion, a program run by the County Attorney’s Office, or Deferred Disposition or Deferred Prosecution. Under these arrangements, the Defendant usually admits the bad act and does some combination of paying a fee, undergoing counseling or taking an educational class, performing community service, and staying out of trouble for a certain period of time. At the end of the deferral period, the case is closed. In most of these instances the records to the arrest and prosecution can be expunged. (See Expunctions below)

Expunctions: If the charge does not result in a conviction being entered against the Defendant, and the Defendant is not placed on probation (as is the case with a Deferred Adjudication), then he/she may be eligible to have the entire record of the arrest and prosecution expunged, or removed.

This procedure requires the filing of a Civil petition in District Court requesting that the judge order all agencies with records pertaining to the arrest to remove, destroy or obliterate all records. The Petitioner must meet certain requirements, such as not having been convicted of a felony within five years of the date of the alleged offense, and not being convicted of any other charge arising out of the criminal incident. The process takes up to six months to complete to ensure that each agency has properly expunged their records. The benefits of expunction include:

1) Being able to legally deny that you were arrested on the specific charge
2) Peace of mind
3) Setting the record straight
4) Vindication
5) Avoiding having to admit on forms, bonds and applications any reference to your case.

Sealing of Record: In addition to expunctions, a Defendant who was placed on Deferred Adjudication probation may be eligible to have his arrest and court records sealed from the public. This relatively new law allows a judge to order public entities to withhold information about a Defendant under certain circumstances, although it does allow law enforcement agencies to retrieve records on such charges/offenses. One nice provision of the new law is that you can prevent private web sites from disseminating your information once you have your record sealed and notify them of the same.

INFORMATION