Frequently Asked Questions

Q: Someone I know has been arrested, what should I do?

A: There are normally two things to consider in the crucial moments which follow an arrest. The first is securing the person's release from jail as soon as possible. There are a variety of ways this may be accomplished. Which particular procedure is best depends on the facts of each case. You should immediately consult with your attorney to determine the procedure for jail release.

The second concern is to preserve and develop the arrested person's ability to defend against the accusations. It is best for the accused to refrain from making statements to anyone concerning the case until he or she has been able to consult with a trusted attorney.

Q: I have not been arrested, but I have been accused of a crime. What should I do?

A: Use caution. Unless you are certain that the accusation is only a minor one and could not result in jail or prison time, it is best to consult with an attorney. This is especially true if a law enforcement official is asking you to give a statement or cooperate in an investigation. You should consult with an attorney before making any statements. What you say, no matter how well-intentioned, can be misconstrued and may be used against you in a subsequent prosecution. Even if you are promised leniency in exchange for your cooperation, you can never retract what you have already said.

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 or she 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 or her words, however innocent at the time, can and will be used against him or her later, especially if any parts or details of the statement change over time. This becomes very critical if the Defendant ever considers testifying in his or her 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.

Q: How should I choose my attorney?

A: 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 this attorney has the legal ability to handle the matter at hand?
3. Does this attorney limit himself or herself to the practice of criminal law?
4. What is his or her reputation in the community and 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 attorney have trial experience?

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.

One issue that usually determines how an attorney is selected is money and how much the attorney charges. Choosing a defense attorney is like many other areas of life: You get what you pay for. Attorneys, generally, set their fees based upon how much time they plan to spend on a case. Therefore, a low fee can be indicative that the attorney does not plan to spend much time working on your case. If you have a complicated case or a case that will result in trial, then a low fee ought to be a red flag that the attorney may not spend much time working on your case. Unfortunately, an average to high fee does not guarantee quality work. That said, most attorneys who charge higher fees know that if they do sloppy work, their reputation and business will suffer.

Q: What is the role of the Defense Attorney?

A: 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. This 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.

Attorneys, sometimes called lawyers, 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 one's colleagues, it is also extremely important to remember that each case is tied to a unique person who deserves respect and one's best effort.

Q: What are the levels of criminal offenses in Texas and the punishment ranges?

A: 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 higher 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 without parole. 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 5 to 99 years or life in prison and a fine not to exceed $10,000. 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 Substances, and Aggravated Kidnapping.

   A conviction for certain aggravated offenses also means that the Defendant will not be eligible for release on parole until he or she has served one-half of his or her 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 carry a term of 2 to 20 years in prison and a fine not to exceed $10,000. Second degree felonies include Burglary of a Habitation, Sexual Assault of a Child, Intoxication Manslaughter, and Aggravated Assault.

   Third degree felonies carry a term of 2 to 10 years in prison and fine not to exceed $10,000. Third degree felonies include Indecency with a Child by Exposure, Family Violence Assault (with a prior conviction of such), Failure to Register as a Sex Offender, and third or subsequent DWI's.

   State jail felonies carry a term of 180 days to 2 years in a state jail and a fine not to exceed $10,000. 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.

   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 carry a penalty of up to 180 days in jail and a fine not to exceed $2,000. Class B misdemeanors include Criminal Mischief or Theft of $50 to $500, first DWIs, Driving While License Suspended. 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, and Public Nudity. 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).

Q: Am I eligible for probation?

A: Whether the Defendant is charged with a misdemeanor or a felony, many first-time offenders 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.

Certain offenses are no longer eligible for regular probation. These include Murder and most sexual offenses where the victim is under the age of 14. This means that if you are convicted of these offenses, you cannot receive regular probation. The only possible way to get probation for some of these offenses is Deferred Adjudication; however certain offenses like DWI and sexual offenses involving children younger than 6 or the threat of force are not even eligible for Deferred Adjudication. Even if one is eligible for Deferred Adjudication, one must be very careful before accepting a Deferred Adjudication offer on any felony offense, especially sexual offenses.

Q: Can my attorney file a motion asking the judge to dismiss my case because the evidence is weak?

A: This is a common misconception probably resulting from poorly written TV shows. A trial judge does not have the general power to dismiss a criminal case prior to trial because he or she believes the evidence is weak. After a misdemeanor is filed and after indictment in a felony the trial judge may dismiss a case only upon a motion to dismiss brought by the prosecutor or on a defense motion based on a very narrow set of procedural regularities. A judge or jury may acquit an accused after a trial based on insufficient evidence, but may not dismiss the case for that reason prior to trial.

Q: Why won't the State drop the case now that the victim does not want to prosecute?

A: This is another misconception that arises from TV shows. A person does not charge another with a crime. The State of Texas is the only entity that charges criminal offenses. Conversely, the State of Texas is the only entity that can dismiss a case. While the State would like to have cooperative witnesses and victims, it does not need them to prosecute cases. Sometimes it is helpful if the victim tells the prosecutor that he or she does not want the case to go forward, but that does not mean that the State will automatically dismiss the case. Many people are convicted based on the testimony of a victim who did not want the case to go forward.

Q: Is it better to accept a plea bargain or go to trial?

A: Most cases in which criminal charges are filed can be resolved through skillful negotiation and without the necessity of trial. Negotiations can result in a wide variety of outcomes, ranging from a dismissal of charges to a plea bargain agreement involving incarceration. Of course, the choice of whether to accept a "plea bargain" must be made by the accused and should be made only after investigating the facts of the case and studying the available alternatives as well as the terms of the plea bargain offer. Though most cases are resolved without trial, sometimes trial presents a more attractive option. Therefore, it is important to keep the trial option open and to be represented by an attorney who is both willing and able to represent you at trial.

Q: I was arrested a long time ago. Can that case be expunged?

A: If the charge does not result in a conviction being entered against the Defendant, and the Defendant is not placed on probation (either regular probation or deferred adjudication), then he or 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.

Almost any case where you were found "not guilty" is eligible for immediate expunction.