These answers are meant to provide general information regarding common questions asked to criminal defense lawyers. Every case must be analyzed individually. This information is not a substitute for consulting with an experienced criminal defense lawyer about your case. This information is also not meant to give legal advice. It is meant solely for general informational purposes.
CRIMINAL DEFENSE IN STATE COURT:
What Should I Do If I Am Stopped On The Road For Possibly Driving Under The Influence Of Alcohol?
First, be polite and courteous to the police officer. If the police officer believes you have been drinking, he or she will likely ask you to perform “road side tests” (e.g. walking toe to heel). If you are absolutely sure that you are not under the influence of alcohol, you may choose to perform the tests because successfully performing the tests could result in the officer allowing you to leave. On the other hand, if you have doubt about your ability to preform the tests successfully, tell the officer firmly, but politely , that you will not perform the tests without being allowed to consult with an attorney. While you do not have a right to consult with an attorney at this point, you cannot be forced to perform the roadside tests. If you are charged with driving under the influence of alcohol, the officer will testify as to how you preformed on these roadside tests and it is also possible that your performance will have been recorded on videotape.
If you fail the roadside tests or if you refuse to preform the roadside tests, you will likely be arrested. Once arrested, you will be asked to give a breath specimen and may be asked to preform additional “tests.” It is our advice that you tell the officer that you refuse to submit a breath specimen or take additional tests unless you are allowed to consult with an attorney. Again, you have no right to consult with an attorney before giving a breath specimen, but you cannot be forced to give a breath specimen. The machine that takes breath specimens is not always accurate.
How Long Might It Take To Resolve My Case If I Am Charged With An Offense In Dallas County?
Cases in Dallas County often take a long time to resolve, particularly if the case is a felony. Often your case will be “passed for announcement” a few times to give the defense and the state a chance to investigate the case and see if the case can be resolved without a trial. It is up to the individual judge whether you will be required to appear in court for “announcement” settings. If the case is eventually set for a trial, it may be reset several times. Older cases and cases where the person has been incarcerated will usually be given priority.
What are some of my important rights in state court?
- You have a right to refuse to make any statements. If you have a lawyer, never make a statement to anybody without talking to your lawyer first. Do not send emails to anyone about the facts of your case. Do not talk to your family or friends about the facts of your case, either in person or over the phone.
- If you are charged with a felony, you have a right to have your case presented to a grand jury where a group of citizens vote as to whether there is probable cause to believe you committed the crime charged. If you are arrested for a felony offense before an indictment is returned, you have a right to an “examining trial” where a judge determines if probable cause exists to believe you committed the crime charged.
- If there is even the possibility you could be put in jail upon conviction of the offense, you have a right to be represented by an attorney and to have an attorney appointed by the court if you can show that you are unable to hire an attorney.
- You have a right to have the state prove any charge against you “beyond a reasonable doubt.” The “beyond a reasonable doubt” standard is the highest standard of proof that exists in the American justice system.
- You have a right to a jury trial (a jury consists of six persons in misdemeanor cases and twelve persons in felony cases). You have a right to have the jury decide your guilt and innocence, and, if it finds you guilty, you have a right to have the jury decide your sentence or punishment.
- If there is a trial, you have a right to testify at the trial. On the other hand, you cannot be forced to testify and, if you chose not to testify, that fact cannot be used against you.
- You have a right to use subpoenas to make witnesses come to court and testify on your behalf at any trial.
- You have a right, if there is a trial, to have your lawyer cross examine the state’s witnesses.
- If you lose at trial (and in some cases if you plead guilty), you have a right to appeal your case and, if you cannot afford a lawyer, you have a right to an appointed lawyer on appeal.
Am I Eligible For Probation If I Go To Trial And I’m Found Guilty?
All persons convicted of a misdemeanor offense are eligible for probation if they elect to have a judge assess their punishment. Persons convicted of a misdemeanor offense are eligible for probation from a jury if, before the trial begins, the defendant files a written sworn motion with the judge that the defendant has not previously been convicted of a felony in Texas or any other state, and the jury enters in the verdict a finding that the information in the defendant’s motion is true. Under the current law, if you are convicted of a felony and are sentenced by a judge, you are eligible for probation provided that you sentence is ten years or less and you are not convicted of: (1) capital murder; (2) murder; (3) aggravated kidnapping; (4) aggravated sexual assault; (5) aggravated robbery; (6) indecency with a child; (7) sexual assault of a child; (8) a second drug offense in a drug-free zone; or (8) a felony where a deadly weapon was used or exhibited.
Under the current law, if you are convicted of a felony (except a state jail felony or a second drug offense in a drug-free zone) and sentenced by a jury, you are eligible for probation if the jury sentences you to ten years or less and the jury finds that you have never previously been convicted of a felony.
The maximum period of probation for Class A and Class B misdemeanors is two years and for felonies is ten years.
What Is The Difference Between “straight Probation” and “deferred Adjudication Probation”?
With “straight probation,” even if you successfully complete the probationary period, you are considered to have been convicted of the offense for which you have been placed on probation. On the other hand, if you are placed on “deferred adjudication probation” and successfully complete the probationary period, the charge against you is dismissed and there is no conviction.
Some lawyers tell clients that if they complete “deferred adjudication probation” they will not have “a record.” This is not exactly true. There will be “a record” that you entered a plea to the charge and were put on “deferred adjudication probation” and this can have an effect for such things as applying for a permit to carry a weapon or calculating your criminal history in federal court. Still, you will not have “a conviction” and can truthfully answer “no” on job applications and alike if asked if you have ever been “convicted” of an offense.
If you are placed on “straight probation,” you are sentenced to a particular term in jail or prison and that term is probated for a particular period (for example, a sentence of 180 days probated for two years is a possible sentence for a first time DWI conviction). If you then violate “straight probation” and the probation is revoked, you can be incarcerated up to the original jail or prison term that was imposed (in the above DWl example, your sentence would be up to 180 days in jail if your probation was revoked). If you are placed on “deferred adjudication probation,” you are not sentenced to a particular jail or prison term at the time the “deferred adjudication probation” is imposed. If you violate the “deferred adjudication probation” and the probation is revoked, the judge may sentence you to any term provided by law at the time of the revocation.
There are certain offenses (e.g. driving while intoxicated) for which a judge cannot grant “deferred adjudication probation,” although the judge can still grant “straight probation.” Likewise, there are certain offenses for which a judge cannot grant “straight probation,” although the judge can still grant “deferred adjudication probation.”
I have been offered a plea bargain instead of going to trial. In state court, should i accept the plea bargain?
It is impossible to provide a general answer to this question, although most cases are generally resolved through a plea bargain. In deciding whether to accept the plea bargain, the two most important things is to make sure you understand all the consequences of the plea bargain and to make sure you have confidence that your lawyer is acting with your best interest in mind.
Some things to make sure you understand before accepting a plea bargain in state court: (1) What will you be admitting to? (2) Does the plea bargain provide for a specific sentence? (3) If there is a jail sentence, what kind of good time credit will you be eligible for? (4) If there is a prison sentence, how will the parole laws affect your release eligibility? (5) If there is a prison sentence and you have not previously been sentenced to prison, did your lawyer explore other options such as “shock probation?” (6) If you are not a United States citizen, will the plea bargain affect your ability to remain in or re-enter the United States? (7) Will you be required to attend counseling, complete community service, submit to random drug tests, wear an electronic monitor, or register as a sex offender? The bottom line: ask questions.
I am not a united states citizen, does that make a difference?
It could. Recent changes in the immigration laws have made it very easy to deport non-citizens even for misdemeanor convictions. If you are a non-citizen, before accepting ANY plea bargain, even if it is to probation or deferred adjudication, you should make sure that your attorney fully understands any immigration consequences that may occur as a result of your plea. If you have any doubts as to your attorney’s competence in the area of immigration law whatsoever, you owe it to yourself to consult a knowledgeable immigration attorney BEFORE entering the plea. Milner Finn attorneys routinely consult with experienced immigration lawyers on behalf of their clients.
I Lost My Trial Or Pleaded No Contest Or Guilty In State Court, But I Am Not Satisfied With The Outcome, Is There Anything I Can Do?
Following a trial, you may appeal your case to the Texas Court of Appeals provided you file a Notice of Appeal within thirty days of your conviction. Following a plea, you may appeal your case only if the appeal concerns the trial court’s “jurisdiction” to hear your case, or the trial court denied one or more of your written motions, or if you receive permission from the trial court to appeal. A Notice of Appeal would have to be filed within thirty days.
If you lose an appeal in the Texas Court of Appeals, you can then ask the Texas Court of Criminal Appeals to consider your case and, after that. you can ask the United States Supreme Court to consider your case. The Texas Court of Criminal Appeals and the United States Supreme Court pick and choose the cases they will hear and, as a result, both courts hear only those cases raising issues that might have an effect on many different cases.
After losing an appeal, you can file a post-conviction petition for a Writ for Habeas Corpus if you believe you were denied a constitutional right or if you believe your lawyer was ineffective. Such petitions must first be filed in state court and can later be filed in federal court. However, that there are strict deadlines for filing petitions in federal court and you should consult with an experienced lawyer regarding these deadlines.
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