Lewisville Criminal Defense Attorney

Denton Criminal Defense Lawyer

Experienced Counsel on All Felonies and Misdemeanors

What you do at the first hint of a criminal case can drastically impact how the case will end. You need someone in your corner to help you protect your legal and Constitutional rights. The Wright Firm, L.L.P. can be there for you in your hour of need. Contact our office or call us at 1-877-353-4600 to set up a confidential consultation.

Due Process

The United States Constitution requires that the government (State or Federal) cannot take away your life, liberty or property without due process of law. This sounds very grand, but what it means to you in a practical sense is that the State of Texas or U. S. Federal Authorities cannot put you in jail (take away your liberty) without following all the proper procedures.

So what are the proper procedures? Texas has adopted a Code of Criminal Procedure, as have the Federal Authorities(U.S. Code Title 18). These Codes are sets of laws that govern everybody's role in a criminal case. This includes the police, prosecutors, defense lawyers, judges, and juries. These Codes are in place to help insure that the protection promised by the U.S. Constitution is actually carried out by the State of Texas and Federal Authorities.

At every stage of a criminal case, there are "hoops" that the Government has to jump through. These procedural hoops are extremely important to protect your rights and individual liberty. Your Defense attorney should know how the process is supposed to work and can fight to make sure the Government has jumped through every hoop.

Your Constitutional Rights

You have many rights under the United States Constitution, but the following is a list of those that relate most directly to a criminal law case. These all come from the Bill of Rights, which are the first 10 amendments to the Constitution.

From the 4th Amendment:

• The right to not have your home, papers, property and body searched unreasonably
• The right to not have your home, papers, property and body seized (taken by the government) unreasonably
• The right to have search warrants and arrest warrants based on probable cause

From the 5th Amendment:

• The right to a Grand Jury for capital crimes (those which carry the death penalty) and other felonies
• The right to not be put in jeopardy (put at risk) twice for the same crime
• The right to not testify against yourself
• The right to due process of law before the government can take away your life, liberty or property

From the 6th Amendment:

• The right to a speedy and public trial
• The right to an impartial jury from the state and district where the crime was allegedly committed
• The right to be informed of the nature of the crime you are accused of
• The right to confront the witnesses against you
• The right to call your own witnesses
• The right to have a lawyer help defend you

From the 8th Amendment:

• The right that your bail not be excessive
• The right that any fines not be excessive
• The right to not be punished in a cruel or unusual manner

From the 14th Amendment:

• The right to equal protection under State law
• The right to due process under State law

All of these rights have been tested and re-interpreted over the years, but still remain vital today. Your criminal defense attorney can tell you how these rights will work for you.

Your Right to Counsel

You actually have two different rights to counsel. There is a right to counsel while you are being questioned by the police in the 5th Amendment. Under the 6th Amendment, you have the right to have a lawyer defend you, and the court will appoint one for you if you can't afford one on your own.

Your 6th Amendment right to counsel generally only comes into play when you are facing formal charges or an indictment. However, the right can also apply to pretrial lineups, and may even apply when the focus of a criminal investigation rests on you.

For the right to counsel to apply in a misdemeanor case, the charge must carry with it a sentence of six months. There is not a right to counsel in cases which carry a fine only – like a speeding ticket. Even when you do not have a RIGHT to counsel, you will still be permitted to hire a lawyer on your own. Having "the right" to counsel in this sense means that the court must appoint a lawyer for you if you: a) cannot afford one, and b) request that the court appoint a lawyer for you.

Court Appointed Counsel - State Court

To get the Court to appoint a lawyer for you, you will have to prove to the Court that you are indigent. "Indigent" is a nice way of saying that you fit the legal definition of broke. In making its determination of whether or not you are indigent, the Court may consider:

• Your income,
• The source of your income,
• Any assets and property you own
• Any outstanding obligations or debts
• Your necessary expenses,
• The number and ages of dependents
• Your spouse's income
• To the extent that it reflects the your financial circumstances - whether you have posted or are capable of posting bail

If you are requesting that the Court make a determination of indigency so that you may be appointed a lawyer, you must:

1. Complete under oath a questionnaire about your finances - this is called an "Affidavit of Indigency"
2. Answer questions under oath that the judge or magistrate asks you about your financial resources

Or BOTH of the above.

Before the Court can rule that you are indigent, you will be asked to sign a statement that will look essentially like this:

Once the Court has determined that you are indigent, the court will continue to presume that you are indigent through the rest of your criminal proceedings.

If the Court does appoint an attorney for you, that attorney will have certain obligations. Your court-appointed attorney MUST:

• make every reasonable effort to contact you not later than the end of the first work day after the date the attorney is appointed; and
• interview you as soon as possible after the attorney is appointed; and
• represent you until charges are dismissed, you are acquitted, your appeals are exhausted, or the attorney is relieved of his duties by the court or replaced by other counsel after a finding of good cause is entered on the record.

Waiving the Right to Counsel - State Court

You can, of course, waive your right to an attorney. We at The Wright Firm, L.L.P. DO NOT recommend that you waive your right to counsel. However, should you make the decision to do so; you must do so voluntarily, intelligently and in writing. "Voluntarily" means that no one has forced or coerced you into waiving your right. You must make the decision of your own free will. An attorney for the state (in other words, the prosecutor) cannot encourage you to waive your right to counsel. "Intelligently" means that you truly understand the decision you are making, know what the consequences are, and choose to accept those consequences.

If you want to waive your right to counsel, the Court must first explain to you the nature of the charges against you, and the dangers and disadvantages of representing yourself at trial. If you still want to waive your right to counsel, the Court will give you a statement to sign which will look essentially like this:

Be Aware! You can change your mind at ANY TIME if you have waived your right to counsel. BUT YOU WILL NOT GET A "DO-OVER"! Any hearing that did not go in your favor because you chose not to have a lawyer represent you cannot be repeated to give you a second chance.

Steps in a Criminal Case

Every case is different, but generally speaking criminal cases follow this outline:

1. Investigation
2. Arrest
3. Bail
4. Arraignment
5. Preliminary hearing (for felony cases)
6. Plea bargaining
7. Trial
8. Sentencing

Investigation

In the investigation stage, the police are gathering evidence. The police must gather enough evidence a) a crime has been committed, and b) that you are the person who committed it, so that the police can establish "probable cause". The word probable in the law means "more likely than not". Essentially, the police must gather enough evidence against you to establish that it is more likely than not that you committed a crime.

Once probable cause has been established, you may be arrested by the police. Generally, the police must present their evidence of probable cause to a judge who will then sign a warrant before the police may arrest a suspect. However, in certain circumstances, if a police officer has a good faith belief that probable cause exists, the suspect may be arrested on the spot.

Arrest

Not to over simplify things, but this is the stage where the police put you in their car and take you in to the police station. Most people have a pretty good grasp of how this part of the process works. But what about all that "You have the right to remain silent," stuff? Where does that come into play?

Brief history lesson: Miranda v. Arizona

At one time, it was common practice for police to haul a suspect in, shut him in a room cut off from the rest of the world and question him for hours on end, not letting him speak to an attorney, until the suspect broke down and confessed. This interrogation strategy was the subject of the Miranda case. The U.S. Supreme Court decided that a confession taken this way could not possibly be the product of the suspect's free will, and was a violation of a person's right to refuse to incriminate himself. The Court also held that such a confession could not be used in court against a defendant. Any person taken into police custody must be informed of:

• the right to remain silent, but what you DO say can be used against you
• The right to have an attorney
• The right to have an attorney appointed if you cannot afford one
• The right to have that attorney present when you are questioned by the police

This is why before the police ask you any questions, they will read you your rights or "Mirandize" you. But keep in mind – Miranda only applies when the police ask you questions while you are in their custody. If you are not responding to a question, you are "volunteering information" and this can be used against you in court, whether you were read your rights first or not.

So remember:

• Ask for a lawyer
• Don't talk to anyone until you've had a chance to speak to your lawyer
• If you DO start talking during questioning - YOU CAN STOP AT ANY TIME

Bail

So you've been arrested. Now you will be brought before a judge who will set your bail. The amount bail will be based on several things; for example, what charge you are facing, whether you have any previous offenses on your record and whether or not the judge thinks you will try to run away.

Bail is sort of like a bet. You are betting the court the amount of your bail that you will show up for your court date. If you do show, you get your money back. If you don't show, the court keeps your money – and issues a warrant for your arrest. This is a bet you definitely want to win.

Arraignment

This is the next time you are brought before a judge. You will have the charges against you read to you. The judge will ask you whether you have an attorney, and if not, if you want the court to appoint one. The judge will also ask you how you plead to the charges: "guilty," "not guilty," or "no contest."

At this hearing the judge may also re-adjust your bail and set a schedule for any other hearings in your case, and set a date for your trial.

Preliminary Hearing for Felony Cases

This is also called a "probable cause" hearing. This hearing will have more the feel of a trial, because both attorneys (the prosecutor and your defense attorney) will call witnesses and have the chance to cross examine the other side's witnesses. The purpose of the hearing is to determine if the prosecution has enough evidence supporting the charges against you to proceed to a full trial.

The burden of proof on the prosecution is lower in this hearing than at a final trial. Just because the prosecution shows it has enough evidence to go to trial does not mean that you have been convicted of anything.

Plea Bargaining

This is where an experienced defense attorney can really come in handy. Plea bargaining is a negotiation process between the defense and the prosecution. The prosecutor will make various offers from reducing the charge against you, dropping some of the charges, or recommending a lighter sentence. The primary thing that the prosecution wants in exchange for their offers is a guilty plea from the defendant. Beware of an offer to recommend a lighter sentence. Yes, the prosecutor CAN make this recommendation, but there is NO obligation that the judge goes along with it. It is the Court (or jury) that sentences you, not the prosecutor. Your defense attorney can advise you as to whether or not the "deal" being offered by the prosecution is a good one for your particular circumstances.

Trial

If no plea bargain is reached, the case will proceed to trial. While there is some variation on this, generally a trial runs in the following order:

1. The charges (indictment or information) are read to the jury by the prosecutor.
2. The special pleas, if any, are read by the defendant's counsel, including the plea of not guilty.
3. The prosecutor describes to the jury the nature of the accusation and the facts which the prosecution intends to prove.
4. The prosecution will introduce its evidence and question its witnesses.
5. The defendant's attorney will describe to the jury any defenses he is relying on and the facts the defendant's attorney intends to prove.
6. The defense will introduce its evidence and question its witnesses. The defendant MAY testify, but does not have to. No negative conclusion may be drawn by the judge or jury because the defendant does not testify.
7. Each side may introduce "rebuttal" evidence. This is evidence that is presented in direct response to evidence presented by the opposing side.
8. Both sides will get to make closing arguments to the jury. No matter how many "final" arguments are made, the prosecutor will always get to go last. This means the prosecutor gets to "have the last word" to the jury before the jury decides a verdict.

Sentencing

You just heard the words you were really hoping never to hear, "We the jury find the defendant guilty." If you haven't already done so, at this point you and your attorney may decide that you want the jury to sentence you instead of the judge. You attorney can help you weigh the pros and cons of that decision.

Whoever is doing the actual sentencing; both the prosecution and the defense may offer evidence at the sentencing phase of trial on ANY matter that the court (judge) thinks is relevant. This may include:

• the prior criminal record of the defendant,
• the defendant's general reputation and character,
• the circumstances of the offense for which he is being tried,
• evidence of an additional crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant – even if he has not been convicted of this additional crime, and
• any other mitigating (making it better) or aggravating (making it worse) evidence.

Once all this evidence has been put on by both sides, if the jury has the responsibility of sentencing, the judge will give the jury any additional written instructions that may be necessary. Then the jury will deliberate on the sentence just as they did when they decided guilt versus innocence.

When the judge does the sentencing, after hearing the evidence mentioned above, he will announce his decision in open court.

Crime and Punishment

From not coming to a complete stop at a stop sign all the way up to premeditated murder, there is a wide range of acts classified as "crimes" in Texas. It is important to know how the crime you are charged with (or being investigated for) is classified to help you understand the seriousness of the situation, and the potential punishments involved.

Texas Criminal Law - Texas has two main categories for crimes: Felonies and Misdemeanors. Each of these categories has several sub-categories.

Misdemeanors

Misdemeanors are classified according to the relative seriousness of the offense into three categories:

1. Class A misdemeanors;
2. Class B misdemeanors;
3. Class C misdemeanors.

Class A misdemeanors are punishable by a fine not to exceed $4,000; confinement in jail for a term not to exceed one year; OR both a fine and jail time.

Class B misdemeanors are punishable by a fine not to exceed $2,000; confinement in jail for a term not to exceed 180 days; OR both a fine and jail time.

Class C misdemeanors are the lowest level of crime. This is the category traffic tickets fall under. These are punishable by a fine not to exceed $500.

Felonies

Felonies are classified according to the relative seriousness of the offense into five categories:

1. capital felonies;
2. felonies of the first degree;
3. felonies of the second degree;
4. felonies of the third degree; and
5. state jail felonies.

Capital felonies are the highest level of crime. These crimes are punishable by imprisonment for life without parole or by death. This is reserved only for certain types of murder.

A first degree felony is punishable by imprisonment for life or for any term of not more than 99 years or less than 5 years. In addition to imprisonment, a felony of the first degree may be punished by a fine not to exceed $10,000.

A second degree felony is punishable by imprisonment for not more than 20 years or less than 2 years. In addition to imprisonment, a felony of the second degree may be punished by a fine not to exceed $10,000.

A third degree felony is punishable by imprisonment for not more than 10 years or less than 2 years. In addition to imprisonment, a felony of the third degree may be punished by a fine not to exceed $10,000.

A state jail felony is punishable by confinement in a state jail for not more than two years or less than 180 days. In addition to confinement, a state jail felony may be punished by a fine not to exceed $10,000.

Contact The Wright Firm, L.L.P.

For a confidential consultation with an experienced criminal defense attorney, contact us or call us at 1-877-353-4600 to set up an appointment.