Bruce S. Fox
The Criminal Process
The Role of the Defense Attorney
The role of the criminal defense attorney is to represent the accused or target of an investigation throughout the various complex stages of the criminal justice system. The attorney advocates as follows: offers advice and explores intervention to prosecutions prior to charges being filed; begins investigations; seeks diversions to prosecutions; participates in arraignments, settlement conferences, and plea negotiations; conducts pre-trial hearings and trials. All defense lawyers are sworn to zealously, confidentially, and ethically advocate on behalf of their clients. Criminal accusations and charges can be life-altering — socially, personally, and professionally. Although all defendants are protected with the constitutional guarantee of being innocent until proven guilty, it often does not work out that way in the court of public opinion, or unfortunately in a court of law. Convictions, especially for felonies can, and often do, have devastating consequences.
Implicit in the concept of a right to counsel is the notion of effective representation. As the United States Supreme 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."
The guidance of learned and skilled counsel to protect the rights and interests of the accused is essential to obtain the optimal outcome for each set of facts. Assistance from an adept advocate begins at the first point of contact and continues through each phase of the case. Only after a complete examination of the evidence and applicable law can the attorney propose and prepare a full and proper defense to a charge. Although the process can be drawn out for many months, or even years with more serious and complicated charges, at all times it is the best interests of the client that guide the hand and direction of the defense attorney.
Before making a decision about giving a statement, always obtain the advice of an attorney. Do not make a statement without your attorney present. You may not make a friend and still 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).
There are several good reasons why making a statement to the police or other investigating law enforcement agency is almost always discouraged by defense attorneys. Chief among them being that the state must prove each of its 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 the accused makes a second statement, and any detail(s) of the statements are inconsistent. 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/or the witness stand.
Approximately 90 percent of all arrests made in Travis County are warrantless. That is where 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 or you can go to the Travis County Sheriff's Office "Time in Custody" website at www.tcsheriff.org.
Most charges are filed soon after the arrest, and the Defendant is taken before a Magistrate to be informed of the charges against him, the amount of his bond, the right to remain silent, and the right to counsel, appointed if necessary. On occasion, the police will delay the filing of a charge, which effectively prevents the individual from getting out of jail. 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.
Jail Releases: 24/7
In the evenings and weekends, there are attorneys on call to assist you in securing your release or that of a 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 Pretrial 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 or a fugitive, 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 (breath test over .15, second or subsequent DWIs). There is a $20 fee paid to the county 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. Thirty days after the entry of a 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 a personal bond unless an attorney becomes involved in the case. Typically, this happens when the Defendant’s residence is in question, he lives out of the county, when the charge is especially serious, when the bond amount is over $10,000, when the Defendant is already out on a bond, when the Defendant has a lengthy criminal history, or his personal information cannot be verified. 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 can be 15 or even 20 percent. Only attorneys are allowed to post these types of bonds. In many cases, 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 as guarantor, 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. 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. It is faster to do this through an attorney. However, there is a charge for such a service (slightly higher if the Defendant is housed at 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 Treasurer’s office takes a nominal amount of the proceeds to process the transaction of returning the funds.
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 a 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 and be processed and released. 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.
Arrests on Warrants
1. Arrest Warrants: 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 a 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. If an individual believes a warrant might be in the works, our office will run regular warrant checks. Often times, we can arrange for the client to turn himself in. This can save 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.
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 test 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 now a local rule that an attorney attempting to secure the release of a Defendant charged with a probation violation must go to the Judge or Court 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 personal or 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 (or any) 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. This shortens the amount of time the Defendant spends in jail. A court date is set soon thereafter.
In District Court (felony) probation cases, the warrant is generally 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. 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.
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 a 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, and Aggravated Assaults, only a jury - and not a judge - can grant probation for the Defendant. In some sexual offenses involving children, even a jury cannot give probation.
Some cases carry mandatory minimum punishment because of prior convictions or aggravated circumstances. For instance, the minimum sentence for continuous sexual assault of a child lasting over a 30 day period or a child under 6 years of age (Texas Penal Code §21.02) carries a minimum sentence of 25 years.
A conviction for sexual assault with a prior violent sexual assault conviction will mandate a life sentence without the possibility of parole.
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 a fine up to $10,000.
Third degree felonies, such as Burglary of a Building, Indecency with a Child by Exposure, 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 $10,000.
The District Court system has rules that are more rigidly enforced than in the misdemeanor 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.
Although some new criminal cases make their way to a judge for issuance of a warrant for arrest, the vast majority of warrants are issued after arrests when the individual is already in custody. Often warrants are issued for bond forfeitures or probation revocations. Law enforcement agencies will seek a warrant in cases where a warrantless arrest is not possible, such as sexual assault, embezzlement, assaults where the Defendant has left the scene before the police arrive, or drug distribution cases. Then the investigating agency must marshall enough evidence to convince a Judge that an offense has occurred. In these matters, 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.
If an individual believes a warrant might be in the works, our office will run regular warrant checks. Frequently, we can arrange for the client to obtain a release prior to turning himself in and do what we call a "walk-through". This procedure satisfies the execution of the warrant without the client having to actually see the inside of a jail cell. This can save a significant amount of jail time, not to mention the advantages of not having to worry about when a warrant will be served, being arrested at home in the middle of the night, sometimes in front of family or friends, at work, or having a vehicle impounded after being stopped for a traffic violation.
Ninety-five percent of cases are resolved without a trial. Trials can be held before the Judge only, called a Trial Before the Court (TBC), or one can choose to be tried by a Jury of your (so-called) peers. For misdemeanors that means six residents of Travis Country will be decided your fate or twelve citizens in a felony case. The trial begins with what is called a Voir Dire (which in French means to seek the truth) or jury selection. Both the defense and the prosecution question potential jurors on their ability to be fair and free from bias. After that process, both sides get to exclude three people each in misdemeanors and ten each in felonies whom they determine are not a good fit for their case. So, the actual jurors are not chosen but rather are the ones not stricken or excluded. After the jury is selected and sworn in, the Judge will give the jury instructions which are the rules the jury is to follow. The prosecutor will then read the formal charge to the Jury. The Defendant will then enter a plea of not guilty.
The prosecutor may then choose to make an opening statement outlining what he or she intends to prove in the state's case in chief. If the prosecutor makes an opening statement, counsel for the Defendant may follow with an opening statement or wait to make the statement right before the presentation of the Defendant's case. The prosecution will then present its evidence and attempt to show that the Defendant is guilty as charged. At the conclusion of the State's case in chief, the prosecutor will announce to the court that the State rests its case. At this time, counsel for the Defendant may make a motion for an instructed verdict and are that the prosecutor has not made a prima facie (meaning sufficient established) case of guilt.
If the court grants this motion, the court will instruct the jury to return a verdict of not guilty and the Defendat is acquitted. If the motion is denied, the trial moves to the next phase: the presentation of the Defendant's case in chief. At the conclusion of the Defendant's case in chief, counsel for the Defendant will announce to the court that the Defendant rests.
The prosecutor will then be allowed to present rebuttal evidence. At the conclusion of the rebuttal phase of the trial, both sides will announce to the court that they close. Again, counsel for the Defendant may make a motion for an instructed verdict. If it is denied, the case will proceed to the charge conference. The charge conference is conducted outside the presence of the jury.
At the charge conference, the attorneys and the judge will discuss the charge(s) instructing the jury about the application of the law and the facts of the criminal case. For example, the evidence presented may support a charge of self-defense. If so, a charge of self-defense will be included in the court's charge.
If the Defendant did not testify at trial, the Judge will include an instruction telling the jury that it can consider the Defendant's decision not to testify for any purpose in its deliberations. At the conclusion of the charge conference, the Judge will give each side an opportunity to state objections to the charge and also request additional instructions. The court will then reconvene and read the jury charge(s).
After the Judge reads the jury the charge, final arguments will begin. The prosecutor will be given the option of going first or opening the argument. The prosecutor may choose to pen or may choose to follow defense counsel's argument. If the prosecutor chooses to go first, he or she will still be given an opportunity to close the argument after defense counsel has argued. This is because the prosecution has the burden of proof beyond a reasonable doubt. Although the state courts in Texas no longer give a definition of reasonable doubt, if the jury decides it has not met that burden it is bound by the law to return a verdict of not guilty. If the jury finds that the prosecution has sustained its burden of proof, which is beyond a reasonable doubt, it will return a verdict of guilty. In some cases. a jury will not be able to reach a verdict, and the Judge will declare a mistrial. If the jury returns a verdict of not guilty, the trial ends with the Defendant's acquittal. If the jury returns a verdict of guilty, the trial moves to the punishment phase.
The Constitutional Right to Council
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 the Gideon case 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. The right is designed to prevent one from making statements or taking actions against his or her penal interests. Violation of either doctrine in this context makes 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 the investigator to cease all interrogation and to address all further communication to the suspect's counsel.
Austin is the DWI capital of Texas, if not the entire country. There are more DWI arrests in Austin than in Dallas or Houston. The Austin Police Department has obtained several grants, both State and Federal, which fund the local DWI task force, a special unit of APD which concentrates on the detection and prosecution of these offenses. They regularly patrol the areas around Sixth Street, The Warehouse District, South Congress, Mopac, IH-35, Ben White, and HWY 183 North.
The consequences of a DWI arrest are serious, and a conviction for the offenses can be devastating, both personally and financially. A recent article in the Austin American Statesman estimated that the cost of a first DWI arrest and conviction can be as high as $15,000. After arrest, this includes bail, towing, and legal fees. If convicted, the expenses can include probation, fines, counseling, revocation of your driver’s license, increased insurance, and a three-year annual government surcharge of $1000 - $2000 to maintain your driving privileges. In addition, you could be required to perform community service or spend time in jail.
Many of my colleagues advise and even advertise and would insist that you not take a breath test when offered by the arresting officer. I do not agree that one answer fits all circumstances. For instance, if you have (truly) had only one or two regular drinks, the intoxylizer machine could be your best friend.
Testing under the legal limit would be an extremely important factor in your defense. That said, I am not a big fan or believer in the accuracy of the State’s machine. If you have had more than two regular drinks over a 2 to 3-hour period, then you might be wise to decline the test. Some of that depends on your size and factors such as food intake and metabolism. Additionally, breath tests are usually administered about an hour after you have been stopped. Depending on when you admit to having (or can present proof thereof) your last drink, this could move the results in your favor or in the State’s favor.
Blood tests are far more accurate than breath tests. This could work for you or against you depending on the results. It is not your choice whether to give a breath or blood sample. It is the officer's. Also, beware that with a blood test, they can look for other intoxicants, i.e., marijuana, prescription drugs, and harder controlled substances. If you can get a licensed nurse (or phlebotomist) to the jail within one hour of your arrest, you can actually have them preserve a sample (although, I’ve never seen that done). Recently, the Austin Police Department has been seeking and obtaining warrants to draw blood in all cases where the suspect refuses to give a sample. Given the current political pressures on prosecutors and the judiciary to (over) react to the immense social problem of Driving While Intoxicated, these cases tend to go to trial more often than other types of charges.
There is no universal advice to give you for dealing with the police in a roadside alcohol-related encounter. If you are a gymnast, acrobat, or ballerina, you may be able to pass the State's made-to-fail field sobriety tests. For the rest of us, taking these tests can be a big mistake. Personally, I suffer from numerous sport-related injuries (left knee replacement and surgery on right knee for a torn ACL) and couldn’t pass these tests on my best day. (Please never tell an officer that you “couldn’t pass these tests if I was sober”). There are so many factors here I cannot list them all, but here are a few: Are you tired; wearing the wrong shoes, i.e., flip flops, crocs, or high heels (doing the tests barefoot is generally a mistake); is the terrain level and free of debris; is it cold, or hot; are you the nervous type? In many cases, it is best to refuse to do these tests and take your chances in court with a well-trained advocate.
One of the tests that are routinely used by the State is called the Horizontal Gaze Nystagmus (HGN) test. This is a test used almost exclusively by law enforcement for the detection of intoxicated drivers. In my opinion (and many experts), it is based on faulty science and poorly conducted research. The test consists of having an officer pass an object, like a pen, across your field of vision, while he or she attempts to observe the side-to-side (horizontal) movement of your pupil.
The test results are generally not recorded on the arrest video. Failing this test is not good for your defense. Personally, I would not take the test. There are numerous factors that could affect the results, including passing cars (optokinetic effect), tiredness, recent head injuries, neurological problem, natural nystagmus (2-3% of the population while looking straight ahead, and no data on the percent of the population with natural nystagmus while tracking an object). The cost of an expert to refute a failed HGN test can be a few thousand dollars; however, it is rarely necessary.
In virtually every DWI case there is a video recording of the events leading up to an arrest. The cameras are designed to come on automatically when the officer’s overhead (or in the grill) lights are activated. This download is available to counsel a few months following the arrest. The footage is the most objective evidence in a DWI prosecution. Remember to always take the high road, be polite, and do not talk too much. Exhibiting common sense goes a long way in helping convince a jury you were not intoxicated.
DWI COURT/PRE-TRIAL DIVERSION
This is an alternative to receiving a sentence from the Court or Jury for a first DWI charge where the blood alcohol level is below .20 and there was no collision. The terms or conditions are similar to a regular DWI probation, however, the program can normally be completed in 1 year. There is no jail time to serve, or community service to perform. After an attorney has evaluated the case, and it is determined that the case will not be tried or reduced, this is a good option.
The DWI cases cannot involve victims (i.e., from accidents), or be connected to another pending case (i.e., possession of contraband). The applicant cannot have a significant or violent criminal history. This includes:
1) Individual counseling after an assessment
2) Judicial Oversight
3) Case management by the prosecutor
4) Alcohol/drug testing
5) Miscellaneous programs as needed on a case by case basis.
ALR And The
Administrative License Revocation Hearing
This is a separate hearing/ procedure to challenge the driver's license suspension that comes with a breath/blood test failure or refusal. You must make a request for this hearing within 15 days after your arrest. You can do this by following the directions on the notice you receive when you are released from jail. If you hire an attorney prior to the fifteenth day after your arrest, he or she can make the request on your behalf. If you do not request the hearing in a timely manner, your driving privilege will be automatically suspended on the 40th day after your arrest. For first-time offenders the suspension period is 90 days for a sample failure and 180 days for a sample refusal. The suspensions can be longer for repeat offenders. In either case, with some qualifications, you can obtain an essential needs driver's license, also called an Occupational Driver's License, to conduct your important affairs.
In Texas, misdemeanor offenses are broken down into two systems: the “higher charges,” 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 maximum sentence of up to one year in county 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 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 $2,000, include Criminal Mischief or Theft of $50 to $500, first DWI's, Driving While License Suspended, etc. Class B misdemeanors are also 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, 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 in the county but outside the city limits).
If the charge does not result in a conviction being entered against the Defendant, and the Defendant is not placed on court ordered probation (as is the case with a Deferred Adjudication), then he/she may be eligible (after a waiting period which is determined on a case by case basis) 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 such entries. 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 a year 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
5) Avoiding having to admit on forms, bonds and applications any reference to your case.
In addition to expunctions, a Defendant who was placed on a Deferred Adjudication probation (no conviction entered on the record) may be eligible to have his arrest and court records sealed from the public. This 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 retrive records on such charges/offenses.
One aspect of the law is that it may be possible to block private web sites from disseminating your information once you have your recored sealed and notify them of the same. Certain offenses, e.g., murder, aggravated kidnapping, sexual assault, assualt with family violence, injury to a child, and stalking, are excluded from the sealing statue. Additionally, there is a two year waiting period from the last day of probation or incarceration for most misdemeanors and a similar three year waiting period for most felonies. As is the case with expunctions, with the cosent of the State the waiting period can be waived or shortened.
Sealing of Record
In addition to expunctions, a Defendant who was placed on Deferred Adjudication probation (no conviction entered on the record) 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 now have greater success in preventing private websites from disseminating your information once you have your record sealed and notify them of the same.
Certain offenses, for example, murder, aggravated kidnapping, sexual assaults, assault with family violence, injury to a child, and stalking, are excluded from the sealing statue. Additionally, there is a two-year waiting period from the last day of probation or incarceration for most misdemeanors and a similar five-year waiting period for felonies. Some misdemeanors have no waiting period, such as Possession of Marijuana, Theft, Driving with License Expired and Criminal Trespass. As is the case with expunctions, the waiting period can be waived or shortened with the State's consent.
Misdemeanors: If the Defendant fails to go to County Court on a Class A or B misdemeanor, 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 friend or relative post the entire bond in cash (money orders or cashiers checks only).
Felonies: 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 counsel quickly 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.
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 within 30 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.
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. 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 generally call for the individual to remain trouble-free, without supervision, from 90 days to one year.
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, no conviction is entered on his or her record. 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, 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 of the arrest and prosecution can be expunged.
If the Defendant is on misdemeanor probation and fails to comply with his/her probation terms, e.g., commits another offense, has a positive test for drugs or alcohol, misses probation meetings, etc., the Community Supervision and Corrections Department (the probation department) will issue a violation notice and report which soon thereafter goes to the Judge. In some cases, if the violation of the probation is minor and the probation department is just trying to get your attention, the Judge can issue a summons for you to appear before the Court. In many instances, the Judge authorizes a warrant of arrest and (normally) sets a bond amount.
It is now a local rule that an attorney attempting to secure the release of a Defendant charged with a probation violation must go to the Judge or Court that placed 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 a release on the cash deposit bond, recall the warrant, or may even sign a release card, (a get-out-of-jail card).
If the Defendant knows beforehand that a probation warrant is about to be issued, a "walk-through" may be arranged. In these cases just as described in the prior section, 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. This shortens the amount of time the Defendant spends in jail. A court date is set soon thereafter.
In District Count (felony) probation cases, the warrant is generally issued without a local 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 most felony probation cases in Travis County. Once again, if the Defendant knows a warrant is to be issued, it is possible to obtain an approved bond to allow the Defendant to do a walk-through.
Trials: Part 2 - Punishment
Texas is one of only six states that allow a jury to assess punishment. The Commonwealth of Virginia was the first to do so back in 1796. The other states that currently have jury sentencing are Kentucky, Oklahoma, Arkansas, Missouri, and (still) Virginia. The two phases of a trial are referred to as a bifurcated system.
The Defendant must make an election prior to trial whether he wants to be tried by a jury, and/or sentenced by a jury. If he does not do so, by default he will first be tried by a jury and if convicted, sentenced by a jury. If the Defendant elects to be tried by a Judge only, the State must waive its rights to a jury trial. The same is true for sentencing, meaning that the State must also agree that the Judge is the one to set punishment.
In misdemeanor cases, in which the sentence is a period of time in jail, the Defendant will serve his jail time in a county lock-up facility, or jail. The Defendant may have some credit for time already served in jail on the same case.
If a Defendant is sentenced to prison for a first, second or third-degree felony, the sentence will be served in a unit of the Texas Department of Criminal Justice Correctional Institutions Division. The units are located through the State of Texas. The Prisoner will accumulate good time credit as the sentence is served.
Good time credits are one day for each day served. They can be taken away for rule infractions. If a Defendant is sentenced to a state jail facility for a state jail felony, the sentence will be served day for day. A probationer does not get credit for the time spent on community supervision if the community supervision is revoked and the probationer is sentenced to time in prison, state jail, or the county jail.
Some time credits called "Diligent Participation Credit" are available for participation in various in-jail programs and for active involvement in a work program. Generally, a prisoner is eligible for parole when his actual time served plus his good time equals one-quarter of the total sentence. The Texas Board of Pardons and Paroles (BBP) makes its decision on parole on a case-by-case basis. The individual's case, history, and parole plan are all important factors in the BPP decision. In the most serious cases (found in section 39 of Article 42A.054 of the Texas Code of Criminal Procedure) such as Murder, Aggravated Assault, Sexual Assault, or Kidnapping, the individual is not eligible for parole until he has served one half of his sentence without adding in any good time credits.