Criminal Law Frequently Asked Questions
What happens if I am arrested?
If you are arrested for breaking a criminal law, you shall be taken before a magistrate without unnecessary delay, not later than 48 hours after your arrest. The magistrate shall inform you of the accusation against you, of your right to retain counsel or have counsel appointed if you cannot afford one, of your right to remain silent, of your right to have an attorney present during any interview with peace officers or attorneys representing the state, and of your right to terminate the interview at any time. The magistrate will determine if the arrest is supported by probable cause and set an appropriate bond. If you cannot post the bond, you may be incarcerated until your case is resolved. If you are able to post bond, you may remain free while your case works its way through court.
Can they use force to arrest me?
A police officer may use as much force as is necessary to arrest you. Unreasonable force is assault. After arrest, most police officers will handcuff you as a matter of policy for their protection and yours as well. If force was used to arrest you, a judge will decide whether or not the force used was reasonable in the circumstances.
What is a search warrant?
A search warrant is an order issued by a judge that authorizes police officers to conduct a search of a specific location. Before a search warrant may be issued, there must be a showing of probable cause.
What is probable cause?
In Texas, there is no statutory definition of probable cause. Case law has held that probable cause exists where police have reasonably trustworthy information, considered as a whole, sufficient to warrant a reasonable person to believe that a particular person has committed or is committing an offense. Probable cause requires more than mere suspicion but far less evidence than that needed to support a conviction or even that needed to support a finding by a preponderance of the evidence. A police officer's hunch, with nothing more, will not satisfy the requirements.
Example: Officer Doright observes Tom and Dick walking to their home. Officer Doright has a hunch that Tom and Dick are up to no good. Armed with nothing more, Officer Doright goes to the local judge and attempts to get a search warrant for the boys' home. Should a judge grant the warrant?
No. A police officer's hunch, with nothing more, will not satisfy the probable cause requirement. However, if Officer Doright observed Tom and Dick commit a theft, then probable cause would likely exist for a warrant to search their home.
If a police officer knocks on my door and asks to search my home, do I have to let the officer in?
Unless the officer has a warrant, you are under no legal obligation to let the officer search your residence.
What if I agree to the search?
If you voluntarily consent to a search of your home, automobile, or person, than the officer can conduct a full search without a warrant. Anything that the officer finds can later be used against you in court.
What is the Plain View doctrine?
Police officers do not need a warrant to seize contraband that is in plain view if the officer is in a place that he or she has a right to be.
EXAMPLE: Officer Doright is standing in your doorway talking to you about the weather. While talking, Officer Doright notices a bag of cocaine and a sawed-off shotgun on your couch. Officer Doright can legally seize these items without a search warrant because they are in plain view.
If I am arrested, can the officer search me?
Yes. Police officers do not need a warrant to conduct a search after making an arrest. After making an arrest, the officer can legally search the person being arrested and the area in the immediate control of the person.
What is bail?
Bail is the security given by the accused that he will appear and answer before the proper court the accusation brought against him, and includes a bail bond or a personal bond. There are essentially four types of bail bonds:
- the personal recognizance bond, in which the accused is released solely upon his reputation and promise to appear;
- the personal bond, in which the accused promises to appear and agrees to pay some amount of money if he fails to appear;
- the cash bond, in which the defendant promises to appear and submits a cash deposit to ensure appearances; and
- the surety bond, in which a third party, usually a bondsman, promises to pay some amount if the accused fails to appear. In a surety bond, the bondsman usually takes a nonrefundable fee for submitting security for the accused's release on bail.
Misdemeanor Cases
- The County Criminal Courts handle Class A and Class B misdemeanor cases that are punishable by confinement in the county jail and/or a fine. Generally, Class B cases are punishable by confinement up to 180 days in jail and/or a fine up to $2000.00. Class A cases are punishable by confinement up to a year in the county jail and/or a fine up to $4000.00.
- Class C misdemeanors are handled in the municipal and justice of the peace courts and are punishable by fine only. Lawyers who handle Class C misdemeanors generally charge a small fee because they handle a large volume of cases in a relatively short period of time. Mr. Cummings does not handle this level of offense.
- If you are charged with a Class A or B misdemeanor, you can plead guilty or not guilty at the first court setting. Or, if the court approves, you can plead nolo contendere, meaning that you will not contest the charges. Legally, this is the same as a guilty plea, but it cannot be used against you in a non-criminal case.
- Before pleading guilty to some first time offenses, such as drug possession in small amounts or minor non-violent crimes, you may want to find out if your county has a pretrial diversion program. Under these programs, instead of fining you or sending you to jail, the court may order you to get counseling which can result in dismissal of the charges if you complete the counseling.
- If Class A or B misdemeanor charges are not resolved at the first appearance, a trial will be held later in the county criminal court.
Felony Cases
There are five levels of felonies in Texas. They are:
- State Jail Felony - punishable in the State Jail Facility by confinement from 180 days to two years and a possible fine up to $10,000.00. There is no good conduct time or parole, confinement is day-for-day. If certain conditions are met, probation is possible. These are generally low-level property crimes and drug offenses of small quantities.
- Third Degree Felony - punishable in the penitentiary by confinement from two to ten years and a possible fine up to $10,000.00. Good conduct time and parole are available with some exceptions. If certain conditions are met, probation is possible. This is the lowest of the traditional felony offenses. Unlawfully carrying a weapon in a bar, DWI after two prior convictions, assault bodily injury of a family member after one prior conviction, and stalking are examples of offenses within this punishment range.
- Second Degree Felony - punishable in the penitentiary by confinement from two to twenty years and a possible fine up to $10,000.00. Good conduct time and parole are available with some exceptions. If certain conditions are met, probation is possible. This is the middle of the traditional felony offenses. Robbery, sexual assault, burglary of a habitation and delivery or possession of moderate levels of controlled substances are examples of offenses in this punishment range.
- First Degree Felony - punishable in the penitentiary by confinement from five to 99 years, or Life and a possible fine up to $10,000.00. Good conduct time and parole are available with some exceptions. If certain conditions are met, probation is possible. This is the highest of the traditional felony offenses. Murder, aggravated robbery, aggravated sexual assault, delivery or possession of large quantities of controlled substances are in this punishment range.
- Capital Felony - only two possible punishments: Life with the possibility of parole after a minimum of 40 years of incarceration and Death by lethal injection. This is the ultimate criminal offense in Texas.
In Texas, no person shall be held to answer for a felony unless on indictment of a grand jury.
- In Tarrant County, there is always a grand jury in session. Each grand jury consists of twelve citizens who serve for a three month term.
- If nine or more of the grand jurors vote that there is probable cause to send a case to the district court for trial, they return a true bill and an indictment is the result.
- Once an indictment is returned, the felony case is sent to one of the nine district courts in Tarrant County that hear criminal cases for disposition or trial.
- The District Attorney participates by presenting evidence to the grand jury and by questioning witnesses who appear before the grand jury but must leave the room during deliberations.
- The accused has no right to appear before the grand jury and if he is invited to appear, he does so without the presence of counsel. The accused will most certainly be questioned by the prosecutor and members of the grand jury if they choose to participate.
- If the accused is in custody, the grand jury has 90 days to return an indictment or the accused must be released from custody.
- In Texas, there is an absolute right to an examining trial to determine the truth of the accusation against the accused, but that right is terminated upon indictment. In Tarrant County, a motion for an examining trial is also called a "motion for a speedy indictment." Consequently, they are very rare.
