Eric D Jensen, Attorney At Law
903-581-1992
Frequently Asked Questions on Criminal Procedure and
Crimes
(Home)
What exactly is a crime?
A "crime" is defined as any act or omission (of an
act) in violation of a public law forbidding or
commanding it. Crimes include both felonies (more
serious offenses -- like murder or rape) and
misdemeanors, which cannot be punished by a term of
jail over one year (like most drunk driving cases
unless an injury is involved or many prior
convictions are involved where a felony might be
charged, other misdemeanors include shoplifting,
prostitution, or vandalism, possession of marijuana
under 2 oz, assaults causing minor injuries).
Historically, most crimes have been established by
individual state law, with that law varying
significantly state to state. In Texas , the Texas
Penal Code serves as a good starting place for those
seeking to gain an understanding of the basic
structure of criminal liability.
All statutes describing criminal behavior can be
broken down into its various elements. Most crimes
(with the exception of strict-liability crimes)
consist of two elements: an act, or "actus reus "
and a mental state, or "mens rea." Prosecutors have
to prove each and every element of the crime beyond
a reasonable to a unanimous jury of 12 people to
gain a conviction.
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What is bail and how is it set?
The amount of bail - money or other security
deposited with the court to insure that you or your
attorney will appear at court appearances - is set
by a schedule in each county. You may be notified
that you can forfeit or give up bail instead of
appearing in court if you receive a traffic
citation. However, if you have any doubt and have
not contacted an attorney, go to court so a warrant
is not issued for your arrest for failing to appear.
Forfeiting bail does not mean that the charges are
dropped. It means a warrant will issue for
your arrest and you will sit in jail until the court
calls your case to trial or you bail out at usually
a hire bond. Under certain circumstances an
attorney can request that your bond be reinstated if
you prove that you missed court for some legal or
believable reason, usually sickness with a doctor's
note.
If you cannot post or put up the bail, you will be
kept in custody. Depending on where you are
arrested, you may have the opportunity to request a
bail reduction through filing a habeas corpus motion
whereby you get a hearing to show that the bond is
excessive and/or you cannot afford the bond that is
set. The goal is to set the bond in such an
amount that will hurt if forfeited if you fail to
appear to answer to the charges in court.
When you are taken to court for bail setting or
release, the judge will consider the seriousness of
the offense you are charged with, any prior failures
to appear (even for traffic tickets), any previous
record, your connections to the community, as well
as the probability that you will appear in court.
The amount of bail is set according to an un-
written schedule based on your charges. Unlike the
assumption of innocence the law presumes you are
guilty of the charges for purposes of setting bail
or release.
Instead of paying bail, you might, at the judge's
discretion, be released on your own personal
recognizance or "P.R." (or supervised P.R.). This
means that you do not have to pay bail because the
judge believes that you will show up for court
appearances without the need for bail. Bail bond's
men (and women) usually charge 15% of the total bail
for their fee which is nonrefundable (i.e.
$10,000.00 bail = $1,500.00 fee).
What should I do if I'm charged with a
crime?
If you are charged with or arrested for a crime, you
are entitled to certain constitutional rights. I
suggest you shut your mouth and not answer any
questions. Call your attorney immediately. You
have the right to remain silent, the right to know
anything you say can be used against you in court,
the right to stop answering questions at any time
and the right to an attorney. These rights are
commonly referred to as your "Miranda" rights. Your
right to an attorney includes all stages of the
criminal proceedings and begins at the point you
become the "focus" of a police investigation
including being stopped for a traffic violation.
You are required only to identify yourself.
You can be patted down by the police to make sure
you have no weapons. Deny request for searching your
vehicle or home. Deny you have weapons or
dope. Let them bring on the dogs, you can't
stop them.
If you
cannot afford an attorney, the court will appoint
one without charge, subject to a determination of
legal fees at the conclusion of your case if the
facts warrant. If you are arrested, you have the
right to know the charges against you, the identity
of the police officers and witnesses and to make one
phone call. This call should be to an attorney, your
family or a trusted friend. If you are booked at the
police station, you should cooperate only by giving
basic identity information (name, address etc) NOT
discussing the facts of what happened or "your side
of the story". Do not confess even though the
officer is acting nice to you. That's his job
is to make his job easier by tricking you to believe
that he can help you by getting your to 'fess up.
Don't fall for this trick.
Before you answer any questions, it is best to talk
with your attorney. What you tell your attorney is
confidential and can never be told to anyone or used
against you in any way. Further, the fact that you
decline police questions cannot be used against you
in a criminal proceeding. Unless you are charged
with a crime punishable by life imprisonment, you
have the right to some amount of bail or bond
through the court proceedings, although the amount
might be quite high and even posting 10% may be
unaffordable.
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Once I am told my Miranda rights, can I be
questioned?
You can be questioned, without a lawyer present,
only if you voluntarily give up your rights and if
you understand what you are giving up. If you agree
to the questioning, then change your mind,
questioning must stop as soon as you say that you
want a lawyer. If the questioning continues after
you request a lawyer and you continue to voluntarily
talk, your answers can be used against you if you
testify to something different.
As noted previously, you may be required to give
certain physical evidence. For example, if you are
suspected of driving under the influence of alcohol
you may be requested to take a test to measure the
amount of alcohol in your system. If you refuse to
take the test, your driver's license will be
suspended and the refusal will be used against you
in court to increase your penalties. I suggest you
take no sobriety tests whatsoever, including the
breath test. The tests were designed for
failure.
Once you are booked, meaning your arrest is written
into official police records and you are
fingerprinted and photographed, you have a right to
make and complete a telephone call that is free
within the local dialing area. Call or arrange for
an attorney as soon as possible.
What is the difference between being
arrested and detained?
If you are arrested, you can be taken into
custody, which means that you are not free to leave
the scene. Without being arrested, you can be
detained, however, or held for brief questioning for
a short time if a police officer or other person
believes you may be involved in a crime. For
example, an officer may detain you if you are
carrying a large box near a burglary site. A
storekeeper can also detain you if he/she suspects
you have stolen something until the police arrive.
Whether you are arrested or detained, you do not
have to answer any questions except to give your
name and address and show some identification if
requested. If a DUI or drug arrest is involved you
may need to provide a chemical test or face
additional penalties. Again, take no
tests. Suffer the penalties which is a
suspended license, which we can appeal, but must
appeal immediately with 15 days of arrest for DUI.
Are police the only people who can arrest
me?
All law enforcement officers - such as police
officers, county sheriff officers, investigators in
a district attorney's or an attorney general's
offices and highway patrol officers - can arrest you
whether they are on or off duty, in most cases. A
probation or parole officer also can arrest you.
They can arrest you - even if they do not have an
arrest warrant - if they have reasonable suspicion
or probable cause or good
reason to believe you committed a felony, such as
armed robbery. (A felony is a crime of a more
serious nature than a misdemeanor, usually
punishable by imprisonment for more than a year.)
They do not have to see you commit a felony in order
to arrest you. They do, however, have to see you
commit a misdemeanor in order to arrest you.
If you commit a misdemeanor or an crimes,
instead of taking you into custody, they may ask to
sign a citation or notice to appear, but usually not
in Smith County, Texas. They will take you to
jail.Crimes are
public offenses even more minor than a misdemeanor,
such as a traffic violation (speeding), where the
punishment usually is only a fine. Defense lawyers
believe you can be arrested to no insurance on your
vehicle and other minor Class C traffic offenses
except speeding. If you sign the
citation, you are not admitting guilt; you are only
promising to appear in court. If you have no
identification to show the officer or refuse to sign
the citation, however, the officer may take you into
custody.
Any person, such as a private security guard or even
a citizen, can make a "citizen's arrest" if they see
a misdemeanor being attempted or committed. (A
misdemeanor is a criminal offense, usually
punishable with a fine or short jail maximum of
under one-year.) They also can make a legal arrest
for a felony as long as it actually was committed
and they have good reason to believe you did it.
They must take you to a police officer or judge who
is required by law to take you into custody or give
you a citation to appear in court.
How can I get out of jail?
If you are arrested and taken to jail, certain
procedures may be carried out before your release.
You will be advised of preliminary charges against
you. If you are fingerprinted and photographed
within a reasonable time of your arrest, you may be
taken before a judge who will inform you of the
charges filed against you, your basic rights and the
bond requirements to be released from jail.
The amount of bond necessary to secure your release
usually depends on the seriousness of the crime,
your previous criminal record (convictions) if you
have ever missed another court appearance, the time
you have lived in (and your family or professional
connections to) the area. You can request the bail
be lowered in consideration of your ties to the
community, lack of financial resources, employment
record and any factors in your favor.
It is sometimes easier to get out of jail if you
hire an attorney. The attorney can also request your
bail be lowered if it appears excessive. Although not likely,
even without an attorney you may be released upon a
personal recognizance bond or on your personal
promise to appear in court. If you do not appear for
your court date, your bond will be forfeited and a
warrant will be issued for your arrest.
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When should I see a lawyer?
If you are arrested for a crime,
particularly a serious one, you should contact a
lawyer as soon as possible. He or she has a better
sense of what you should and should not say to law
enforcement officers should they contact you again
(as they have been known to do) to avoid being
misinterpreted or misunderstood. The lawyer also can
advise you or your family or friends on the bail
process if necessary.
When should I talk to the police?
The general (and safe) rule is to make no statement
and sign nothing (confessions) for the police. If the police are
investigating you, you may or may not be aware of
it. At some point, they may ask you to come into the
station and give a statement. You may believe this
is your chance to tell your side of the story,
that's what they want you to believe but this is
really not in your best interest. Understand that
this is a very dangerous time for anyone charged or
under investigation for a serious offense. Instead
of talking to the police, hire a good criminal
defense attorney. A good attorney can intercede on
your behalf and talk to detectives. This is a great
way to get valuable information and may result in
charges not being filed. Most importantly, doing so
will keep you from giving a statement that WILL
ultimately be used against you. Remember that the
police are not there to clear you of the charges;
the police are there to make a case against you. Any
statement you make will undoubtedly be used AGAINST
you by the District Attorney. Even statements made
by you that you believe to be harmless can be, and
often are, the strongest piece of evidence against
you. For example, the police may not know whether
you were even in the area of an alleged crime. If
you make a statement to the police saying that you
were there but had nothing to do with it, the
District Attorney no longer needs to prove your
presence at the scene of the crime. You have just
done that for them!
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Can the police arrest me without evidence of my
guilt?
Only if the police have probable cause to believe
you have committed the crime. Once they have
probable cause, they can arrest you in a number of
ways: (1) They can simply come and arrest you
(either taking you to jail or releasing you on a
promise to appear citation); (2) If they believe you
are not a flight risk, they may submit your case to
a District Attorneys office who in turn will send
you a letter in the mail asking you to appear for an
arraignment; or (3) They may ask a judge to issue an
arrest warrant and ask you to voluntarily surrender
yourself at the police station for booking (photo
and fingerprinting).
The warrant must be signed by a magistrate or judge,
who must have good reason to believe that you, whom
the warrant names, committed a crime. If your name
is unknown, "John Doe" can be used on the warrant -
along with your description.
Once an arrest warrant is issued, any law
enforcement officer in the state can arrest you -
even if the officer does not have a copy of the
warrant. Generally, there is no time limit on using
a warrant to make an arrest.
Before entering your home, a law enforcement officer
must knock and identify himself or herself and tell
you that you are going to be arrested. If you refuse
to open the door - or if there is another good
reason - the officer can break in through a door or
window.
If the police have an arrest warrant, you should be
allowed to see it. If they don't have the warrant
with them, you should be allowed to see it as soon
as practical.
The police may search the area within your reach. If
you are arrested outdoors, they may not search your
home or car unless specifically allowed to do so by
the warrant or consent. Never consent to a search.
Resisting an arrest or detention is a crime in and
of itself. If you resist arrest, you can be charged
with a misdemeanor or felony in addition to the
crime for which you are being arrested. If you
resist, an officer can use "reasonable" force to
overcome your resistance or prevent your escape. The
officer can even use deadly force if it appears you
will use force to cause great bodily injury.
Injury to a police officer is easy to do in a
struggle. Do not struggle or you will face
serious felony charges.
If you are arrested and are in custody, your
arraignment must occur within 48 hours of your
arrest; however, if you are arrested on a weekend,
you may be held for additional time not to exceed 72
hours.
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When can an officer conduct a search?
An officer always may only make a search with
either your consent or a search warrant. You have a
right, however, to see the warrant before the search
begins. Never consent to a search.
When can an officer search you, your home or
your car without a warrant?
Body Searches: If you are arrested, an officer
can search you, without a warrant, for weapons,
evidence or illegal or stolen goods. Strip searches
should not be conducted for offenses that do not
involve weapons, drugs or violence unless police
reasonably suspect you are concealing a weapon or
illegal goods and they have authorization from the
supervising officer on duty. If you are booked and
jailed, you may undergo a full body search,
including body cavities.
Home Searches: In emergencies, such as when an
officer may be trying to prevent someone from
destroying evidence, your home can be searched
without your consent and without a warrant. If you
are taken into custody in your home, an officer
without a warrant can search only the limited area
in which you are arrested. Other rooms - and even
other parts of the same room - are off limits,
unless the officer believes that other suspects are
hiding in other rooms. While searching your home, an
officer can seize evidence of any crime, such as
stolen property or drugs, that is in plain sight.
Car Searches: Your car and trunk can be searched
without your consent or a warrant if an officer has
good reason to believe it contains illegal or stolen
goods or evidence. If the police stop your car for
any legal reason - such as a broken taillight - they
can take any illegal goods in plain sight. Most
commonly cars are searched to take an inventory of
their contents after the driver's arrest.
If you, your home or your car is searched illegally,
a judge might say that any evidence found during the
search cannot be used against you in court. If you
or your lawyer, however, do not object to the
evidence before trial, the court might allow the
evidence to be used. Even if the judge does decide
that the evidence cannot be used against you that
does not always mean that your case will be
dismissed, but it should weaken the case against
you.
When can I be released?
If, during the questioning and before a charge is
filed, the police are convinced that you have not
committed a crime; they will give you a written
release. Your arrest then will be considered a
detention and not recorded as an arrest. If arrested
on a misdemeanor DUI the normal range in custody is
between 2-8 hours - usually 4, but is highly
variable. If you are kept in custody of a lengthy
period of time, your attorney may be able to get you
credit for the excess time applied against the
sentence you eventually receive.
What is an arraignment?
Your arraignment will likely be your first
appearance in court whether or not you are in
custody. At arraignment, your attorney should
receive the police reports on your case and any
additional evidence that the District Attorney has
in his or her possession. Your attorney should also
receive a formal complaint, which officially states
the charges that have been filed against you. It is
important to note that the charges may be different
than those for which you were arrested. Where the
police can arrest you for one pair of charges, the
District Attorney's office may disagree and file a
completely different set of charges if they feel the
facts support those charges.
If you are in custody, your attorney should have the
opportunity to argue for a bail reduction. However,
it is important to note some courts will not hear a
bail argument without proper notice and motion to reduce bond and habeas corpus proceeding to see if you present a risk of not
showing up in court. The court and state's attorneys will ask about your
personal background, your job, where you live, your
job history, and what family support you have within
the community. Because this is a bail hearing, the
only inquiry is 1) whether or not you are likely to
flee the state or country if released on just your
promise to return for all court proceedings in your
case; and 2) the seriousness of the case. Bail matters get complicated and be careful not to quickly spend money on bondsmen when you could spend it on an attorney.
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What happens after the arraignment?
After the arraignment, if your case is a misdemeanor, the case is set directly for trial where an attempt can be made by your attorney to settle the case or to set motions to weaken or dismiss the case or for trial. If the case is a felony the case is usually set for pre-preliminary hearing conference or set directly for the preliminary hearing, or the court can issue a scheduling order designating a timetable.
What happens at trial?
If no disposition is reached on your case, it will
be set for trial. The form your trial
takes will depend entirely upon the particular
circumstances of your case. A prepared attorney will
develop an overall theme to your case and call
witnesses and introduce evidence, which supports
your innocence.
Before trial commences, you and your attorney will
have the opportunity to select a jury. This is
commonly called voir dire. If you are charged with a
felony offense, your attorney will have the
opportunity to dismiss potential jurors simply
because you do not believe they will be favorable to
your defense.
After the jury is seated, your attorney will argue whatever motions are required in order to give you a fair trial. After those motions are heard, the trial will commence. The prosecution will give an opening statement. Your attorney can give an opening statement either at that time or reserve opening statement until after the prosecutions case is over.
After the opening statement, the prosecution will present its evidence in the form of police officers and other civilian witnesses. Your attorney will have the opportunity to cross-examine each of those witnesses. Once the prosecution rests the case, your attorney will put on your case, calling any helpful witnesses to the stand. These witnesses can include percipient witnesses who watched or viewed the event, as well as character witnesses who can testify as to your good character. After your attorney finishes his or her case, the prosecution has an opportunity to put on rebuttal evidence.
Once all the evidence is closed, the prosecutor and your attorney will give a closing argument to the jury. Your attorney will focus on reasonable doubt and the facts of your case. The jury will then retire to reach its decision. In Texas , the jury must reach a unanimous decision. If they are deadlocked and cannot reach a unanimous decision, a mistrial will be declared by the judge. In the event of a mistrial, the prosecution has the option to retry the case or dismiss or plea bargain a settlement.
Who maintains arrest records and what do
they include?
Local police departments, Court Clerks and the
Texas Department of Public Safety keep arrest
records. According to law, the police departments
and DPS cannot show them to anyone except law
enforcement officers and may only show records of
your convictions to certain licensing agencies,
which have a right by state law to investigate your
criminal background. However in reality many people,
including private investigators, have access to your
criminal record through the Court Clerks' offices.
Info in these records is mined and placed on the
internet.
The arrest record includes when and why you were
arrested, whether the charges against you were
dropped or whether you were convicted of the
charges, and the subsequent sentence imposed. Both
pleading guilty (or pleading no contest) and being
found guilty after a trial equally count as
convictions.
If you are convicted of committing a misdemeanor,
placed on probation and stay out of trouble for the
period of that probation, you may be able to have
the conviction removed from your DPS record for such
purposes as employment background checks after
probation is successfully completed. Expunging
records from DPS will not cause the record to be
removed from local county clerk records and
for-profit information sites, although certain laws
have become enacted to require for-profit info
centers to delete records or risk lawsuits for
failure to do so. If you are convicted of certain
felonies and you successfully complete probation,
you maybe able to have the felony expunged on your
record. The misdemeanor may then be cleared as noted
above. No record is completely removed,
expunged or deleted. There will be a record
somewhere. The important thing is to remove
the effect of a conviction from your record because
it can haunt you for your entire life.