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Arrest to Appeal:
A Guide to Criminal Prosecutions in Texas State Court
This is a rough guide. Please seek an attorney for legal advice about your situation.
PRESENTATION
After someone has been arrested for committing a crime, the police must present the person to a judicial officer within 48 hours of the arrest. This appearance is known as presentation. During presentation, the judicial officer will inform the person of the charges against him and of his Miranda rights. Also, the judicial officer will make the initial bail determination.
BAIL
Most counties set bail amounts with a standardized schedule. Most accused persons have a right to bail. However, bail may be denied in two instances: for capital murder and for repeat offenders in certain circumstances. A hearing is required to deny bail. Usually, when prosecutors want to deny bail, they will avoid the hearing by setting the bail at a high amount that most people will not be able to pay.
Certain conditions may be imposed on persons released on bail. For example, the judge may instruct the defendant not to go near the alleged victim, or the court may require the defendant to submit to electronic monitoring.
If the bail is set too high, the amount may be challenged in a habeas corpus suit.
EXAMINING TRIAL
The examining trial is a pretrial hearing available to people charged with felonies. The purpose of an examining trial is to see whether probable cause exists that the defendant is guilty of the charged crime. Some Texas case law suggests that the probable cause needed for an examining trial is greater than the probable cause needed for an arrest.
An examining trial rarely occurs. A prosecutor can prohibit an examining trial by getting an indictment from a grand jury.
THE INFORMATION AND THE INDICTMENT
The information and the indictment are the formal charging instruments used by Texas courts to inform the defendant of what criminal behavior he is accused of.
An information is the charging instrument for most misdemeanor crimes. An information does not go to a grand jury. Rather, an information must be signed by a prosecutor and supported by a sworn complaint.
An indictment is the charging instrument for felony crimes. An indictment must be voted on a by a grand jury. The grand jury consists of twelve persons. To get an indictment, the prosecutor must persuade nine out of the twelve grand jurors that probable cause exists that the defendant is guilty. This is known as a “true-bill.” When the prosecutor fails to get nine votes, a “no-bill” occurs.
However, if the indictment is no-billed, the prosecutor can try again.
Furthermore, an accused person has no right to participate in a grand jury proceeding in Texas. An accused does not even have the right to know that a grand jury is considering his case.
An information will be forwarded to a misdemeanor court, typically a County Court, while a grand jury indictment will usually be forwarded to a District Court or Criminal District Court.
DOCKET AND RESETS
Shortly after an arrest, the accused will be required to appear in court. At the first trial setting, the defense lawyer will meet with the prosecutor to discuss your case. Usually, the prosecutor will allow the defense lawyer to look at the state’s file. The state’s file will contain offense reports by police officers along with other information related to the case like lab test results or sworn affidavits by witnesses to the crime.
The prosecutor will usually “rec” the file. In other words, the prosecutor will look at the offense report along with other pertinent information like the accused’s criminal history and come up with a proposed punishment. The defense lawyer will communicate the offer to the accused.
Most likely, the case will be reset for another docket call. Cases will often be reset several times as the prosecutor and defense lawyer argue and negotiate over the evidence.
Ultimately, either both sides will reach a plea agreement or the case will be set for trial.
TRIAL
Introduction
In Texas, the trial is composed of two stages. The first stage is known as guilt-innocence because it is when the jury decides whether the accused committed the crime. If the jury finds the accused guilty of the crime, the second stage of the trial occurs. The second stage is known as the punishment phase. During the punishment phase, the defendant can choose to have either the judge or the jury decide the punishment.
A criminal defendant has the right to a jury trial unless the defendant waives that right and wants to be tried in front of a judge. (One exception—a capital murder trial must be tried to a jury). For felonies, the jury is composed of twelve people. For misdemeanors, the jury is made up of six people. A jury verdict must be unanimous. If the jury cannot agree on a verdict, the judge can declare a mistrial and the accused may be tried again.
Motion to Suppress
Before trial, the defense lawyer may file a motion to suppress. A motion to suppress is a way to keep out evidence that was obtained by the police in violation of a defendant’s legal rights. For example, a defense attorney may file a motion to suppress if the police seized evidence from the accused without a proper warrant or forced a confession from a defendant. In a DWI prosecution, a defense attorney may file a motion to suppress if the police did not have reasonable suspicion to pull the defendant’s vehicle over for violating a traffic ordinance.
Selecting the Jury
The process of selecting a jury is known as voir dire. During voir dire, a panel of people will be questioned by both sides about their background, beliefs, and biases. The jury will be selected from this larger panel.
Each side has an unlimited number of challenges for cause. Usually, a challenge for cause is made when one side believes that a prospective juror has a bias against them. For example, a prosecutor in a capital murder trial might challenge a prospective juror who says that she objects to the death penalty because of her religious beliefs. The defense attorney might challenge a prospective juror who says that he believes that any defendant who does not testify is guilty. Such a point of view contradicts the Fifth Amendment of the Constitution.
Each side may make a limited amount of peremptory challenges. A peremptory challenge does not have to be explained. That is, each side can simply strike a certain number of prospective jurors from consideration. The amount of peremptory challenges varies according to the type of trial and the number of defendants.
In the typical felony trial, each side is entitled to ten strikes. In the typical misdemeanor trial, each side is entitled to three strikes.
There is one exception to peremptory strikes. The state may not make strikes based on race. That is, the state may not strike African-American or Hispanic panelists because the defendant is the same race or because the prosecutor believes that minorities are soft on crime. When a defense attorney believes that the prosecutor may have made improper race based strikes, he will make a Batson challenge. A Batson challenge (named after the U.S. Supreme Court case that forbids race based strikes) requires the prosecutor to show that his strikes were not racially motivated.
The Trial
At the start of the trial, the prosecutor will read the charging instrument to the jury. The prosecution must then make an opening statement. The defense lawyer may make an opening statement or postpone it until later. An opening statement must not contain arguments; rather, the opening statement must only describe the facts that the prosecutor and defense lawyer believe the evidence to be presented will show.
After opening statements, the state will present evidence through its witnesses. The defense will have an opportunity to cross-examine the state’s witnesses. After the state finishes its case, the defense may elect to present evidence. After the defense finishes its case, the state can call rebuttal witnesses. The defense can then follow with other rebuttal witnesses.
Once all the testimony is finished, the judge will prepare a jury charge. The charge contains law and instructions to help the jury decide the verdict. The charge is prepared outside the presence of the jury.
The charge is then read to the jury. The prosecutor and the defense counsel then make their closing arguments to the jury. The jury is given a copy of the charge and they decide the verdict in secrecy.
Mistrial
If the jury cannot reach an unanimous verdict, the judge can declare a mistrial. A mistrial means that the trial concluded without a decision for guilt or innocence.
A mistrial can also occur during the trial if one side violates certain rules of evidence. For example, if a defendant has a past criminal conviction, the prosecutor usually cannot mention it during trial. If the prosecutor improperly brings up the criminal conviction, the judge will probably declare a mistrial.
When a trial ends in a mistrial, the state may usually try the defendant again. However, sometimes a mistrial suggests to the state that they have a weak case, and they will dismiss the charges.
Punishment Phase
If a defendant is found guilty, a punishment phase to determine the sentence occurs.
In Texas, the judge is the default choice to decide the sentence. However, a defendant has a right to have a jury decide the sentence.
The punishment phase is similar to guilt-innocence in that both sides make opening and closing statements and put on witnesses. The big difference is that almost any information about the defendant can be considered in the punishment phase. The state may prove up the defendant’s prior criminal record, put on witnesses to testify about the defendant’s character, or try to prove that the defendant committed other bad acts. Basically, the state can ask the judge or jury to consider much more information about the defendant—information that would not be allowed into evidence during the guilt-innocence phase.
APPEAL
Direct Appeal
For most crimes, the defendant has the right to appeal to one of the fourteen Courts of Appeals. Each Court of Appeals covers a certain geographic area. If someone is convicted of capital murder, the appeal bypasses the Court of Appeals and goes directly to the Court of Criminal Appeals (the highest court of appeals in Texas for criminal cases).
If the Court of Appeals denies the appeal, the defendant may then appeal to the Court of Criminal Appeals. If the Court of Criminal Appeals denies the appeal, the defendant may—in some circumstances—petition the United States Supreme Court.
The path from Court of Appeals to Court of Criminal Appeals to U.S. Supreme Court is known as a “direct appeal.”
To appeal a conviction, the defendant must generally give notice to the trial court within thirty days of formal sentencing.
During a direct appeal, the appellate courts will not hear new evidence. Rather, they will limit their consideration to the record of what happened in the trial court.
Habeas Corpus
Generally, habeas corpus appeals concern the denial of a constitutional right. Two prominent examples are ineffective assistance of counsel and a Brady claim.
Ineffective assistance of counsel means that your trial lawyer’s performance was so poor that your constitutional rights were violated. A Brady claim is when the prosecutor withheld evidence that showed you might be innocent.
Unlike a direct appeal, in a habeas corpus suit, one is not limited to what is in the trial record. New evidence may be presented.
A habeas corpus appeal is known as a “collateral attack.”
A habeas corpus appeal may only be filed after the direct appeal is ruled on. A habeas corpus appeal starts in state district court. From there, it may be appealed to the Court of Criminal Appeals. If the state courts do not grant relief, the convicted person may file a habeas corpus action in federal district court. If the federal district court rules against the convicted person, then an appeal may be made to the Fifth Circuit of Appeals and from there to the U.S. Supreme Court.
Contact Fred Dahr directly at 713.487.7575.
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