The criminal process can be complex and confusing. But it's important to know your legal rights. The best way to be informed is to contact our office as possible. As an Amarillo Criminal Defense Attorney we understand the law as it relates to the crime you've been charged with, and will be able to help you in making informed decisions as your case moves through the process.
You may be stopped for questioning by the police. A stop is not the same as an arrest because, although you may be detained, you aren't moved to a different location. During a stop the police officer may ask you questions, but you have the right to refuse to answer
In order to be arrested, there must be what's called "probable cause." This means that there must be a reasonable belief that a crime was committed and you committed the crime. An arrest warrant is not necessary.After you're placed under arrest, you are protected by constitutional rights. Two important rights to be aware of are right to remain silent and the right to have an attorney. After your arrest, you aren't required to say anything else to police or investigators, until you have an attorney present. You must be given the opportunity to contact an attorney.
After you're arrested, the police will bring you to the police station for the booking process . You'll be fingerprinted and asked a series of questions, such as your name and date of birth. You'll also be searched and photographed. Your personal property such as jewelry will be catalogued and stored.
A search warrant authorizes police to conduct a search of a specific place such as your residence. In order for a warrant to be issued by a judge, "probable cause" is necessary. Probable cause to search means that:
Once criminal charges are filed, you'll make a court appearance known as an "arraignment." If you are incarcerated, this will usually occur within 72 hours of your arrest. During your arraignment, you'll be asked to enter a "plea" to the crime you've been charged with. Texas pleas and corresponding definitions follow:
Guilty plea: If you plead "guilty," you're admitting to the facts of the crime and the fact that you were the one who committed that crime.
Not guilty plea: A "not guilty" plea asserts that you did not commit the crime with which you were accused. After your plea, a pre-trial or trial date will be set.
No contest plea: A "no contest" plea indicates that, while you are not admitting guilt, you do not dispute the charge. This is preferable to a guilty plea because guilty pleas can be used against you in later civil lawsuits.
"Mute" plea: In Texas, you may "stand mute" instead of making a plea. The court will then enter a plea of not guilty. By standing mute, you avoid silently admitting to the correctness of the proceedings against you until that point. You are then free to attack all previous proceedings that may have been irregular. During the arraignment, the court will also: Set bail, refuse to set bail; or
release you on your own personal recognizance, which means that the court takes your word that you will appear when necessary for later court obligations
"Bail" is money or property put forth as security to ensure that you'll show up for further criminal proceedings. In Texas, bail can be paid:
A pledge of property (if permitted in that court)
A bail bond
A professional bail bondsman is an individual whose business is to pledge his or her own property or security to guarantee the bail bond to the court.
Under the Miranda Rule, if you are in police custody you must be informed of specific constitutional rights before interrogation begins. Those rights are as follows:
The right to remain silent
The right to have an attorney present during questioning
The right to have an attorney appointed if you are unable to afford one
Important to note is that Miranda rights do not have to be read until you are taken into custody. That means that you can be questioned by the police before being taken into custody, and anything you say at that point can be used against you later in court.
Appointment of an Attorney
In Texas, if you cannot afford to hire an attorney, and if you are charged with a crime that is punishable by incarceration, an attorney will be appointed to defend you. Once a public defender has been appointed to defend you, you may ask the court to appoint a substitute attorney only for good cause. Good cause requires more than mere dissatisfaction with your appointed attorney and may include:
A conflict of interest between you and the attorney
Your attorney becomes ill and cannot continue to represent you
There is reason to believe that your attorney is not providing effective assistance.
You have a right to a speedy trial under the Sixth Amendment of the United States Constitution, which requires that the trial be held within a certain time frame after a person has been charged with a crime. This right can be waived by asking for additional time for the preparation of your defense.
Speedy Trial rights in Texas
With limited exceptions, a defendant should be brought to trial in Texas within the following time frames:
180 days if the defendant is accused of a felony.
90 days if the defendant is accused of a misdemeanor punishable by imprisonment for more than 180 days.
60 days if the defendant is accused of a misdemeanor punishable by imprisonment of 180 days or less, or punishable by a fine only. A felony is a crime usually punishable by imprisonment for more than one year. A misdemeanor, on the other hand, is usually punishable by a fine or a year or less of incarceration.
Many prosecutors will consider "plea agreements," although it's not legally required. If you don't reach a plea agreement with the prosecutor, your proceedings will move toward the trial stage. In Texas, you have the right to a jury trial in all criminal proceedings, regardless of punishment. This right may be waived by:
Pleading guilty; or
Choosing a bench trial (a trial in front of a judge only)
If you request a bench trial, the judge will perform the fact-finding function that is usually performed by the jury.
If you're found guilty after a trial, you're entitled to an appeals process. This process varies depending upon the crime, but there are always time deadlines by which you must file an appeal. In Texas, you generally have 30 days from sentencing to file an appeal. 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:
Allowing inadmissible evidence during the criminal process, including evidence that was obtained in violation of your constitutional rights
Lack of sufficient evidence to support a verdict of guilty
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.
In Texas, under some circumstances, you may be able to have a criminal record expunged, which means that the records are returned to you or destroyed. You may be eligible for expungement if:
A criminal charge against you has been dismissed, you have been found not guilty, or you have been pardoned; or
Someone used your name or identification when arrested (identity theft); or
You are a juvenile who has completed a deferred sentence; or
You are an underage drinking first offender. If you are eligible to have your records expunged, you may file a petition in court. A person who has reached age 17 must make a sworn written request to have juvenile records expunged.
In addition, if you have received a discharge and dismissal from deferred adjudication community supervision (an alternative sentencing program in Texas), you may petition the court for a nondisclosure order following dismissal for some misdemeanors, five years after dismissal for other misdemeanors, or 10 years after dismissal for felonies. A nondisclosure order prohibits criminal justice agencies from disclosing criminal history information to the public.
Motor vehicle records cannot be expunged