Texas Criminal Justice Process

Every step in the criminal justice process is critical to a person who is accused of a crime or who is about to be accused. Therefore, a suspect/accused person is better off with an attorney helping them than they are without an attorney.

	Criminal Investigations		Police Stops
	Searches		Arrest
	Miranda Rights		Magistration
	Classifications of Offenses		Arraignment
	Bail/Bond		Pre-Trial Hearings
	Resolution of the Case Prior to Trial		Trial
	Sentencing		Confinement
	Community Supervision (a.k.a. Probation)		Appeal

Criminal Investigations
If you suspect that you are the subject of a criminal investigation, you should immediately contact an experienced criminal defense lawyer. In some cases, an experienced criminal defense lawyer can prevent charges from being filed against his or her client.

A police investigation usually begins after someone has alleged that a crime may have been committed. The first officers arriving at the scene of the alleged crime initiate a preliminary investigation. Once the scene of the crime is secured and any emergency medical issues, if any, are handled, the officers will begin to gather evidence. In most cases, the victim of the alleged crime is the first person the police speak to because they generally are able to provide the best information. Officers will also speak to any "eye witnesses" to the incident. If the suspect is still at the scene of the crime, the officers will detain and question the suspect in order to determine whether to arrest or release the person. The evidence that is gathered in the preliminary investigation includes: witness statements; physical evidence; photographs; videotapes (especially for DWI cases); and spatial measurements of the crime scene.

In many cases, such as when the crime has been discovered rather than witnessed, the investigation is conducted by detectives. The investigators will perform criminal background checks on the suspect and key witnesses, ascertain who had motive and opportunity, and reexamine any physical evidence gathered at the crime scene.

Once the law enforcement agency has concluded its investigation with some definite conclusions about who committed the crime, the case may be filed with the prosecuting attorney for review. In Texas, the district attorneys usually prosecute felonies and the county attorney usually prosecute misdemeanors. With rare exception, the decision of whether to proceed with a prosecution against someone accused of a crime by a law enforcement agency is solely at the discretion of the prosecuting attorney. The decision to prosecute rests on factors such as: the legality of the arrest; whether the evidence gathered is likely to be admissible at trial; and whether the admissible evidence is sufficient to prove the suspect/accused guilty beyond a reasonable doubt (more on that later). The choices available to the prosecutor include: (1) accept the case as filed; (2) increase or reduce the charge filed; (3) file additional charges; (4) file other charges; (5) give the case back to law enforcement for further investigation; and (6) reject the case and refuse to prosecute.

Police Stops
The police are permitted to stop a person, question them, and even frisk them, without "arresting" the person. The U.S. Supreme Court held in Terry v. Ohio (1968) that police officers, based on their street experience that someone is acting suspiciously, may stop a person and pat them down to determine if they are carrying a weapon. In Minnesota v. Dickerson (1993), the Court extended Terry to allow a police offer to pat down a suspect for contraband (usually drugs) so long as the contraband is obvious through the suspect's clothing. As a result of a "Terry Stop," the police can remove a weapon, but not the contraband. The purpose of a Terry Stop is to protect the police officer and to prevent destruction of evidence.

Searches
Usually a search warrant is required in order for police conduct a search of a specific place such as a home or office. In order to obtain a search warrant, which must be issued by a judge, the police must convince a judge that "probable cause" exists to believe a crime has been committed or is being committed. In order to establish probable cause, the police must present evidence (usually in the form of a sworn affidavit) that the specific items for be searched for are connected with the crime and that those specific items will be found in the place to be searched.

While the general rule is that a warrant is required for a search, there are several exceptions under Texas law:

Arrest
An arrest occurs when a person no longer reasonably believes that he or she is not free to leave. Because of its short duration and limited scope, a Terry Stop is not an arrest. However, if a person is not allowed to leave the scene of a police stop for an extended period of time, that person may be considered to be under arrest whether the officer uses the word "arrest" or not. If a person is restrained in handcuffs, or locked in the back of a police vehicle, or is otherwise prevented from leaving, that person will generally be adjudged to have been arrested.

Most arrests require that a police officer to obtain an arrest warrant signed by a judge after presenting evidence that the suspect is the individual who probably committed the alleged crime (in order words, "probable cause"). For most misdemeanor offenses, a police officer can only make a warrantless arrest if the offense is committed in the officer's presence. In contrast, police officers can arrest people for felonies based upon witness statements, but usually obtain a warrant in order to facilitate prosecution.

Miranda Rights
In Miranda v. Arizona (1966), the U.S. Supreme Court that police must inform a person in police custody of specific constitutional rights before interrogation begins. These rights, as any person who has watched American television during the past four decades knows, can be summed up as follows: "You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed to represent you. You have a right to have an attorney present during questioning."

It is important to note that Miranda rights do not have to be read to the accused until they are taken into custody. In other words, anything a defendant said while being questioned prior to being arrested can be used by the prosecutor in court. In contrast, statements made after being arrested but prior to recitation of Miranda rights are not admissible in court.

Magistration
Within 48 hours of being arrested, the person making the arrest must be take the accused before a magistrate. The magistrate is required by the Texas Code of Criminal Procedure to inform the arrested person in "clear language" of the accusations against him or her, the right to retain counsel, the right to remain silent, the right to have an attorney present during any interview with the police or prosecutors, the right to terminate any interview, and the right to have an "examining trial" to determine if probable cause exists to send the case forward to a grand jury. The magistrate is also required to inform the arrested person of their right to appointed counsel and the procedure required to appoint counsel. If the charges against the person are punishable by jail, the magistrate will also set a bond amount. If the charges are not punishable by jail, the magistrate may order the accused released without bond.

Classifications of Offenses

Arraignment
Once criminal charges are filed, the accused makes a court appearance known as an "arraignment." If the accused is incarcerated, arraignment usually occurs within 72 hours of arrest.

During the arraignment, the defendant is asked by the judge to enter a "plea" to charges brought by the state. Texas law requires the defendant to make one of the following pleas in response to the judges inquiry "How do you plea?": (1) "Guilty": In other words, the defendant admits to the facts of the crime and admits that he or she is the person who committed the crime. (2) "Not Guilty": A "not guilty" plea is the defendant's assertion that he or she did not commit the crime for which they are accused. Pre-trial hearings, and ultimately trial, are scheduled following a plea of not guilty. (3) "Non Contest": A "no contest" or nolo contendere plea indicates that the defendant does not want to admit guilt, but also does not dispute the charges against him or her. Defendants plead "no contest" so that the plea cannot be used against them in subsequent civil proceedings. (4) "Mute Plea": In Texas, one may "stand mute" instead of making a plea. The court will then enter a plea of not guilty. By standing mute, the defendant avoids admitting to the correctness of the proceedings against him or her to that point. They are then free to attack all previous proceedings that may have been irregular.

Also during arraignment, the court will either set bail, refuse to set bail, or release the defendant on their own recognizance based on the defendant's promise to appear for later court obligations.

Bail/Bond
Bail/bond refers to security a defendant posts as a guarantee that they will appear at subsequent court proceedings. The 8th Amendment to the U.S. Constitution prohibits "excessive bail." Accordingly, bail/bond should be set at the minimum amount necessary to insure the defendant will not abscond.

There are general 3 types of bail bonds used in Texas: personal recognizance; cash, and/or surety. A court will release a defendant on "his own recognizance" without the necessity of collateral whenever the court is satisfied that the person will abide by all the terms of release. A cash bond requires that the defendant remit the full amount of the bond to the county sheriff or court to be held in trust in order to assure the defendant will abide by the terms of release. A cash bond is returned once the obligations of release have been fulfilled and the case is resolved by plea bargain or trial. A surety bond is posted by a third party in exchange for the defendant providing an agreed upon percentage of the total bond to the bail bonds company. The fees paid to the bail bondsman is not refundable.

Pre-Trial Hearings
The court may set any number of hearings prior to trial in order to address and resolve various legal issues that may arise during the course of both prosecution and defense preparing their respective cases for trial. Pre-trial matters are decided by the judge and, with rare exception, both defense and prosecution are allowed to present evidence and testimony. At pre-trial hearings, judges hear evidence in order to determine what evidence will be admissible at trial. The burden of proof is on the prosecution, and if that burden is not met, the evidence will be "suppressed." For example, if the police officer during a Terry Stop searched beneath the defendant's clothing and found a small quantity of drugs that resulted in the arrest, that evidence will most likely be suppressed because a Terry Stop does not allow for searches under a person's clothing - i.e. the prosecution cannot use the evidence at trial. In similar fashion, other issues that are often addressed in pre-trial hearings are whether the defendant "knowingly, intelligently and voluntarily" waived his or her right to remain silent or whether the procedures used in a line-up or photo array improperly suggested the defendant was the perpetrator of the crime.

Resolution of the Case Prior to Trial
After indictment, there are essentially 3 ways to resolve a criminal case without a trial: (1) dismissal; (2) plea-bargaining; and (3) non-negotiated guilty plea. The most favorable form of pre-trial disposition is a dismissal. The prosecutor may, with the consent of the judge, dismiss a criminal case for a variety of reasons: (1) the evidence gathered may be insufficient to prove each element of the charged crime beyond a reasonable doubt; (2) critical evidence may have been suppressed because it was illegally gathered; (3) the victim may request dismissal and may refuse to cooperate in the prosecution; (4) the defendant may plead guilty to other crimes (sometimes in other courts in the same county); (5) necessary witnesses cannot be located; and/or (6) the defendant has made restitution, has never been arrested for a crime, or is otherwise a person for whom a criminal record is inappropriate in the opinion of the prosecutor.

The disposition of criminal charges by agreement between the prosecutor and the defendant, under judicial supervision, is called "plea bargaining." In exchange for the defendant pleading guilty or nolo contendere (no contest) and waiving the right to trial by jury, the prosecutor agrees to recommend a specific punishment which the judge can either follow or reject (which is called "busting" the plea). If the judge rejects the plea bargain, the defendant is permitted to withdraw his or her plea. If the judge follows the plea agreement, the defendant's right to appeal is severely limited, if not eliminated altogether. In fact, the defendant usually waives the right to appeal as part of the plea bargain. The overwhelming majority of criminal cases are resolved by plea bargaining.

A defendant may plead guilty or nolo contendere to a criminal charge without an agreement with the prosecutor as the punishment the prosecutor will recommend. The judge will then assess punishment unless the defendant requests that a jury assess punishment. This is called a "nonnegotiated guilty plea" or "pleading open to the court." The defendant retains the right to appeal, but nonjurisdictional defects occurring prior to entry of the plea might be waived.

Trial
The Texas Constitution guarantees the accused in all criminal prosecutions the right to a trial by jury. The defendant may waive trial by jury and proceed with trial to the court (judge) with the consent and approval of the judge and the prosecutor in any criminal prosecution except a capital felony in which the prosecutor notifies the court and the defendant that the state will seek the death penalty.

A criminal trial before a jury (sometimes called a "petit jury") proceeds as follows:

The jury deliberates. If the jury finds that the state proved beyond a reasonable doubt that the defendant committed the offense charged (or a lesser included offense), the trial proceeds to the punishment phase. A not guilty verdict ends the trial and discharges the defendant. If the jury is unable to agree to a unanimous verdict, a mistrial or "hung jury" occurs and the jury is discharged. The case may be retried at a later date.

If the jury's verdict is "guilty," the judge assesses punishment unless the defendant requests the jury to assess punishment or the state seeks the death penalty in a capital felony. The judge may be required to direct a supervision (probation) officer to prepare a presentence investigation report. Testimony concerning the circumstances of the offense may be considered by the judge or jury in determining the punishment to be assessed. Victim impact evidence (e.g., degree of physical or emotional injury to the victim) may be admissible as a circum-stance of the offense if the evidence has some bearing on the defendant's personal responsibility and moral guilt. Evidence is also admissible concerning the defendant's prior criminal record, his/her general reputation and character, and any other evidence of an extraneous crime or bad act shown beyond a reasonable doubt to have been committed by the defendant.

After the introduction of evidence relevant to punishment has been concluded, if the jury has the responsibility of assessing the punishment, the judge will give additional instructions as may be necessary and the order of procedure is the same as on the issue of guilt or innocence. If the jury fails to agree to a unanimous verdict on punishment, the verdict is not complete and a mistrial is declared and the jury discharged. The punishment phase of the case may be retried at a later date.

Prior to the imposition of sentence by the court, if the court has received a victim impact statement it must consider the information provided in the statement. Before sentencing the defendant, the court is required to permit the defendant or his/her counsel a reasonable time to read the statement, comment on the statement, and, with the approval of the court, introduce testimony or other information alleging a factual inaccuracy in the statement.

A court may order witnesses excluded from the courtroom under "the rule" so that they cannot hear the testimony of other witnesses. Witnesses may not converse with each other or with any other person about the case, except the lawyers involved in the case. Witnesses cannot read, watch or listen to any report of or comment upon the testimony in the case while the trial is being conducted. This rule does not authorize exclusion of the victim, unless the victim is to testify and the court determines that the victim's testimony would be materially affected if the victim hears other testimony at the trial.

Sentencing
The great majority of sentences in Texas are arrived at by agreement following the negotiations that lead to a guilty plea. When a case goes to trial, the guilt or innocence is determined in a proceeding that is separate from the sentence determination-referred to as a bifurcated trial. If a guilty verdict is returned at a trial, the sentencing phase begins immediately.

Before trial, the defendant elects whether to have any potential punishment determined by a judge or a jury. This is a strategic decision best made in close consultation with an experienced defense attorney - one who can advise the client on sentencing trends in particular courts or in juries selected from the community, and effectively present mitigating factors.

The choice of going to a judge or jury for sentencing may also depend on eligibility for probation, now called community supervision. In the case of certain serious crimes or those involving a deadly weapon, only a jury can sentence the defendant to probation. In these cases the defendant must also be probation eligible, meaning that there are no prior felony convictions.

Confinement
Local correctional facilities designated by law for the confinement of persons include: (1) municipal (city) jails - generally hold arrested persons until either bonded or transferred to county jails; (2) county jails - hold defendants awaiting trial or transfer to prison, or confined for misdemeanor punishment or a condition or violation of a community supervision; and (3) community corrections facilities - such as restitution centers, boot camps, and substance abuse treatment facilities.

The institutional division of the Texas Department of Criminal Justice operates and manages the state prison system with more than 100 facilities located across the state, including: (1) transfer facilities - hold defendants awaiting transfer to prison; (2) boot camps - for first time felony (except state jail) offenders (age 17-25) using a regimented program similar to military boot camps; (3) state jail facilities - for defendants convicted of state jail (4th degree) felonies; (4) substance abuse felony punishment facilities (SAFPFs); (5) psychiatric and minimum, medium, and maximum security units (prisons) for inmates convicted of capital, 1st, 2nd and 3rd degree felonies, and inmates awaiting execution; and (6) private prisons - serve as pre-release centers for prisoners awaiting release on parole.

Community Supervision (a.k.a. Probation)
Community supervision, formerly called "probation," means that the defendant is released into the community under certain conditions set by the court and subject to court supervision. The maximum period of community supervision is ten years in a felony case; two years in a misdemeanor case (three years if extended by the judge). However, if the offense is indecency with a child, sexual assault, or aggravated sexual assault, the judge may extend the period of supervision for a period not to exceed 10 additional years. And the judge may extend the period in a misdemeanor case not to exceed an additional two years beyond the limit to pay the fine, costs, or restitution.

Basic conditions of community supervision include, for example, that the defendant: (1) commit no criminal offense; (2) report to the supervision officer as directed; (3) permit the supervision officer to visit at the defendant's home or elsewhere; (4) work faithfully at suitable employment and support his/her dependents; (5) remain within a specified place; and (6) pay restitution to the victim and any fine assessed and all court costs. Defendants placed on community supervision are supervised by community supervision officers, formerly called "probation officers.

A defendant's eligibility for community supervision depends on factors including: (1) the type of community supervision; (2) the offense involved; (3) whether the defendant used or exhibited a deadly weapon or knew that a deadly weapon would be used or exhibited; (4) whether the defendant has previously been convicted of a felony offense or placed on community supervision; (5) whether the defendant pleads guilty or nolo contendere; (6) whether the judge or jury sets the defendant's punishment; and (7) whether the defendant is sentenced to a term of imprisonment exceeding ten years.

One type of community supervision is a regular community supervision (sometimes called straight probation). The defendant is convicted and given a term of confinement which the judge immediately suspends and then places the defendant on community supervision.

In a deferred adjudication community supervision, after receiving the defendant's plea of guilty or nolo contendere, hearing the evidence, and finding that it substantiates the defendant's guilt, the judge defers further proceedings without entering an adjudication of guilt and places the defendant on community supervision. Unlike the other types of community supervision, if the defendant successfully completes the supervision period, the judge is required to dismiss the proceedings and discharge the defendant. However, if the defendant violates a condition of the deferred adjudication community supervision, the defendant may not appeal the court's decision to proceed with the adjudication of guilt on the original charge.

Finally, in a continuing jurisdiction community supervision (formerly called "shock probation") or state boot camp program, the defendant is convicted and given a sentence requiring confinement. After serving a set period of confinement, the judge may suspend further execution of the sentence and place the defendant on community supervision.

At any time during the period of any community supervision, the prosecutor may file a motion to revoke and the judge may issue a warrant for violation of any of the conditions of the supervision and cause the defendant to be arrested and held without bond until a hearing within 20 days after demand. The state must prove by a preponderance of the evidence (greater weight and degree of credible evidence) that the defendant violated the conditions of the community supervision. After a hearing without a jury, the judge may continue, extend, modify or revoke the community supervision, or, in deferred adjudication community supervision, proceed to adjudication. In a deferred adjudication, the judge may assess the full range of punishment prescribed for the offense; if it is one of the other types of community supervision, the judge may not go beyond the original term of confinement. No part of the time that the defendant is on community supervision shall be considered as any part of the time that he/she shall be sentenced to serve.

Appeal
An appeal generally occurs after a conviction when the defendant requests a higher (appellate) court to review the trial and determine whether errors were committed that require a retrial or acquittal. If the appellate court finds no reversible error the judgment is affirmed and the sentence must be served; if the court finds error that beyond a reasonable doubt contributed to the conviction or punishment, the case is reversed and a new trial or punishment hearing may be ordered. Sometimes, though rarely, a case may be reversed and the defendant ordered acquitted, that is, set free (e.g., state failed to provide sufficient evidence of guilt).

There are numerous reasons for an appeal from a guilty verdict in a criminal case, including what's called "legal error." Legal error may include: (1) Allowing inadmissible evidence during the criminal process, including evidence that was obtained in violation of your constitutional rights; (2) Lack of sufficient evidence to support a verdict of guilty; or (3) Mistakes in the judge's instructions to the jury regarding your case.

You may also appeal due to misconduct on behalf of the jurors, or if there is newly discovered evidence to exonerate you. However, a jury's determination of what is a fact or of the witness's credibility (or a judge's determination when there is no jury) will rarely be disturbed.

Almost every trial will contain some error. However, we are only guaranteed a fair trial, not a perfect one. Therefore, a trial court will only be reversed when the error is considered harmful, or one that is shown to affect the verdict or the punishment.

The state is entitled to appeal a limited number of orders of a court in a criminal case. For example, the state may appeal an order dismissing all or any portion of an indictment or information, granting a new trial, or granting a defendant's pre-trial motion to exclude evidence or a confession. The state may not appeal from a judge's decision or jury's verdict finding a defendant not guilty of an offense.

The first criminal appeal is decided by the Court of Appeals. Texas has 14 Courts of Appeals, each having at least three judges. A panel of three judges reviews the trial based on the printed record and the written arguments (briefs) prepared by attorneys for both sides. There are no witnesses and no new evidence may be presented.

This appellate process varies depending upon the crime, but there are always time deadlines by which you must file an appeal. The process is begun by filing a Notice of Appeal with the trial court. In Texas, you generally have 30 days from sentencing to file the notice of appeal. If a motion for new trial is filed, the deadline is 30 days from the day the motion is denied.

The defendant must also make arrangements to obtain the record. This consists of the clerks record (a copy of all the documents filed with the court) and the reporters record (a transcript of everything said in court).

After the record is prepared, the appellant, or the party asking for review, must prepare a brief detailing the errors complained of, the state of the law that applies to that type of error, and how that law applies to the facts of this particular case. The other side then has an opportunity to write a brief in response. The Court of Appeals has the option to either consider the case on the written briefs alone or to allow oral argument. In oral argument each side is given a short time to present their case and answer questions from the panel of judges.

The Court of Appeals has no deadline for deciding an appeal. The actual length of time will depend on a variety of factors, but many cases take longer than a year.

The party who loses in the Court of Appeals can appeal that decision to the Court of Criminal Appeals. Appeals to the Court of Criminal Appeals is discretionary, meaning the court can refuse to hear the appeal. However, cases that present issues important to legal practice throughout the state of Texas or that present important issues that have been decided differently by appellate courts throughout the state stand the best chance of having the court hear the appeal.

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