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Criminal Procedure in Texas

Defending All Texas Criminal Defendants in Houston

If you have been arrested in Houston, Texas, the first step to an aggressive defense of your rights is for you to contact an experienced criminal defense lawyer. The founding attorney at Chernoff Law Ed Chernoff is board-certified in criminal law by the Texas Board of Legal Specialization, as well as a former chief prosecutor and assistant district attorney who is dedicated to criminal defense law. Texas criminal procedure underpins all prosecution and defense in the state, protecting the rights of defendants in particular and the constitutional rights of all Americans.

What Happens After the Arrest

Your drunk driving, sexual assault, domestic violence, theft, or any other case begins when there is probable cause to believe that a crime has been committed. There are three ways that a case can be brought to court in Texas:

  • arrest of the accused at the scene of the crime or soon thereafter
  • arrest based on a warrant issued by a court as a result of a sworn complaint
  • arrest based on an indictment by a grand jury after investigation

The arrested individual may be taken to various substations and city jails before eventually being housed in the County Jail. Very rarely will he be available to be immediately bailed out of jail. Until the network of government clerks, prosecutors, and law enforcement have completed the paperwork and computer entries necessary for identifying and formally charging the individual, he won’t be recognized in the system. (This is commonly called “making it on the computer”). No notice will be given to family or friends waiting to bail out the accused when the accused has made the computer. The best they can do is to have a bondsman continuously check the status of the accused’s case.

What Is a Warrant?

If a warrant is issued as a result of a complaint or indictment, the accused will be subject to arrest at any place and at any time. The accused cannot assume that if the crime is a misdemeanor, law enforcement won’t knock down his door or embarrass him at work. Very often there are financial incentives to peace officers serving warrants and a misdemeanor warrant may be more palatable to a peace officer than some murder warrant.

An arrest warrant is different from a bench warrant, although both are issued by a judge. A judge will issue an arrest warrant when enough evidence exists to suspect an individual has committed a crime. These orders notify police to seek out and arrest an individual. Sometimes police officers obtain an arrest warrant for the sole purpose of questioning an individual they believe was involved in a crime. This type of warrant may not be filed through the District Clerk and so would not show up in a search. This is known as a “pocket warrant”.  

An arrest warrant authorizes the police to take you into custody, and in some cases you may not be informed about the impending arrest until the police show up on your doorstep. It is essential that you contact a Houston criminal defense attorney specializing in arrest warrants as soon as you know one has been issued for you or a loved one in the Houston area.

Our advice is to contact a board certified criminal lawyer at Chernoff Law when it becomes known or suspected that a warrant has been issued. We have access to the Harris County and other County computer systems, in addition to contacts with law enforcement and can verify and monitor warrants.

Harris County District Attorney Decides the Charge

In Harris County, the district attorney makes the decision whether to charge a person with a crime. A federal prosecutor is more likely to seek an indictment before issuing an arrest warrant or summons. In the majority of cases, one of the assistants stationed at the intake division of the District Attorney’s office will review a case for filing. More often than not, this will involve a single phone call from an officer on the scene. During the call, the officer will explain to the assistant the facts of his case and the assistant will make the immediate decision whether probable cause exists to charge a crime. It is important to note that in the vast majority of cases an Assistant DA makes the decision to charge based solely on a short phone call with the officer. Any information, including exculpatory information, is controlled by the officer on the scene.

In most federal cases and some state cases, a lengthy investigation ensues before the decision is made to file a charge. Usually the person being looked at knows of the investigation. If that person has experienced legal counsel, he may be able to redirect the focus of the investigation, or at the very least provide the investigator exculpatory information.

What Is a Preliminary Appearance?

The person making the arrest must, without unnecessary delay, take the accused before a magistrate. The magistrate must inform the accused of his constitutional rights and determine whether probable cause exists for the arrest. This first appearance usually occurs within twenty-four hours of the arrest.

Sometimes the accused bails out of jail before he can be brought before the magistrate. In those cases, and sometimes irrespective of whether he has seen a magistrate, the trial judge may bring the accused before her bench on the first setting to explain his constitutional rights and review probable cause to determine whether bail is sufficient. This in one of the most important reasons we advise charged citizens to get legal representation early. A skilled lawyer may be able to dissuade her honor from raising bail or attaching bail conditions.

Bail vs. Bond

For many crimes, bail has been previously determined by the courts and is in a list of standard bail amounts. In certain circumstances, bond is denied to the accused. The judge assigned to the case may set bail or change the bail amount depending on the circumstances. In federal court, the magistrate will usually require that an accused satisfy the conditions of a pretrial release.

In some circumstances, bail is set too high for the accused to get out of jail. This happens quite often in theft or drug cases since the bail amount is initially determined by a multiplication of the value of the alleged loss in the theft case or the street value of the drugs. (notwithstanding the recognized unconstitutionality of this approach.)

When bail is set too high, there are formal and informal techniques the accused’s lawyer must use to reduce the amount. Since bail is supposed to be set for the purpose of assuring the accused returns to court, often the relationship the lawyer has with the prosecutor plays a role in getting the bail amount reduced. If the prosecutor is comfortable that the accused is not about to flee, he may agree to a reduction. If no agreement can be made, then the lawyer must turn to the judge. The Judge may, after hearing the facts of the case and the life circumstances of the accused, informally reduce the bail amount. In other cases, a writ of habeas corpus must be filed and prosecuted.

Everyone Has the Right to an Attorney

Every person accused of a crime has the right to an attorney. If you cannot afford an attorney, the state must provide one, although you do not have the right to choose a particular attorney.

Pretrial Services in Texas

The federal system has a pretrial service agency that administers the pretrial release of prisoners. Essentially, pretrial service has replaced the familiar bail system found in State courts, and it does a very good job.

Some Texas counties, like Harris County, have a pretrial release department. Historically, the department was rarely used to replace the traditional bail system. This has changed in the last few years. Now it is not unusual to see more than half of the misdemeanor defendants out on a pretrial bond.  In many courts the judge uses the pretrial department to administer additional conditions attached to the accused’s bail irrespective of whether a surety is involved.

What Is the Role of the Grand Jury?

The district attorney is required to present felony cases to the grand jury. Most presentations before the grand jury are without witnesses. A misdemeanor charge does not require a grand jury indictment.

In some cases, it might be advantageous for an attorney to fight the case at the Grand Jury stage in order to convince them to dismiss his client’s case. Often, we at Chernoff Law prepare and present information packets with evidence for the Grand Jurors to review. A letter to the foreman of the Grand Jury usually accompanies this evidence packet explaining why we believe the case should be “No billed”.

It should be remembered that the Grand Jury does not determine guilt or innocence. The members of the Grand Jury can very easily have serious doubts about the guilt of the accused and still indict. It is concerned only with probable cause. The body understands that it is only one step in the process of prosecution. As such, it indicts in the overwhelming majority of cases.

Only on rare occasions will we allow our client to testify in front of the Grand Jury. There is no right to representation in the Grand Jury room and the prosecutor has unimpeded access to the accused while he is testifying. The accused is placed under oath and everything he says is taken down by a court reporter. Once his testimony is memorialized, there is no reworking of his defense. Therefore, unless we feel perfectly comfortable that the prosecution is on board with our version of the facts, our Houston, Texas, criminal attorneys don’t run the risk of leaving our client unprotected in the Grand Jury room.

An indictment is the loss of a battle, not the war. Most of our dismissals are earned after indictment. However, there is at least one very important reason for attempting to achieve a “no-bill” if possible or a dismissal before indictment. In such a circumstance, the accused may have the ability to have his case quickly expunged from the record. This is an obvious advantage in a serious felony case.

What Is an Arraignment in Texas?

The first appearance of the accused after indictment is called an arraignment. Unless formal arraignment is waived, the judge will verify the identity of the accused and ask for his plea.

Except in Federal Court, which continues to maintain its formality, arraignment has gone the way of the dinosaurs. Very likely, if the accused is represented, the arraignment will be anticlimactic. He will probably not be called on to do anything at the first setting but identify himself at docket call.

Seek the support you need to understand the Texas criminal procedure. Whatever crime you have been charged with, contact Chernoff Law for a free consultation.

What Are the Possible Outcomes of a Criminal Case?

Case Dismissed!

The best case scenario is dismissal, and this is the ultimate goal in any criminal case. Every decision we make in the representation of your case has this goal in mind. However, other results are possible as well.

In effect, there are only three possible resolutions for any indicted criminal case: 1) Dismissal, 2) Plea Agreement, or 3) Trial. The prosecution has sole authority to dismiss his own case, though he may be persuaded to do so after conversation with defense counsel. A plea agreement, commonly referred to as a “plea bargain” becomes an acceptable alternative if the evidence available to the prosecution is strong enough to convict and the jury is likely to administer greater punishment than what is being offered.

Expunction is available to a defendant when his case has been no-billed, dismissed or he has been acquitted at trial. However, it is possible that an immediate expunction will not be possible even with a dismissal. This often depends on the case charged.

What Is the Meaning of Acquittal?

An acquittal means a charged individual has been found “not guilty” by either the Judge or Jury. This type of result will allow this individual to immediately expunge his criminal record. Unlike a dismissal, he can not further be charged for the same criminal episode, since his constitutional right against double jeopardy would be implicated.

What Does Conviction Mean?

A conviction means that a person has been found guilty of an offense. One of the benefits of deferred adjudication is that the court never finds the individual guilty of the offense unless he fails to complete the conditions of his community supervision.

If an individual is found guilty of a criminal offense, either through a plea or trial, his sentence can be suspended by the implementation of probation. He is then placed on community supervision for a period of time in lieu of a prison or jail sentence. The main distinction between probation and deferred adjudication is the finding of guilt.

A sentence not suspended by either probation or deferred adjudication will be served in jail or prison. The vast majority of prison sentences involve a period of parole, where a portion of the sentence is served in the community under state supervision. The amount of time a person must serve until he is eligible for parole depends on the crime. Most crimes allow for parole after the time served plus good time equals one-quarter of the sentence. However, aggravated felonies require a greater percentage to be served in prison. Some felonies do not allow for parole.


Individuals who have been convicted of a crime have not reached the end of the criminal process. A Defendant who is convicted at trial, has the right to seek review of his conviction by appeal. In certain circumstances, a conviction as a result of a plea of guilty may be appealed. This right is severely limited by waivers and appellate jurisprudence.

In some circumstances, irrespective of waiver, a criminal defendant may seek relief by post-conviction writ of habeas corpus. The basis of this relief is fundamental fairness as dictated by the due process clause of the Texas and U.S. Constitutions. If a defendant has made his plea because of misinformation or the ineffectiveness of his counsel, he may have grounds to seek relief.

You must remember that the window for appealing a criminal court decision is limited. Your initial consultation with a criminal defense lawyer at our firm is free and confidential and we urge you to act soon.

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