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Criminal Procedure

Defending all Texas Criminal Defendants in Houston

If you have been arrested in Houston, Texas, the first step in an aggressive defense of your rights is for you to contact an experienced criminal defense lawyer. The founding attorney at Chernoff Law 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 practicing criminal defense law. Texas criminal procedure underpins all of prosecution and defense in the state, protecting the rights of defendants and the constitutional rights of all Americans.

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:

  • 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 immediately to be 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 on 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.

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.

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, and can verify and monitor warrants.

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.

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 re-direct the focus of the investigation, or at the very least provide the investigator exculpatory information.

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.


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.

Appearance of 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

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. Paradoxically, the department is rarely used to replace the traditional bail system. In many courts the judge only uses the pretrial department to administer additional conditions attached to the accused’s bail.

That’s not to say that a Judge can’t release a prisoner on pretrial supervision without requiring a surety bond, and Pretrial will interview the accused shortly after his arrest, but this will continue to be a rare occurrence unless legislation forces a philosophy change in our judges.

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 to the Grand Jurors to review. A letter to the foreman of the Grand Jury usually accompanies this 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, 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 given 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 expunged from the record. This is an obvious advantage in serious felony cases.


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, 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 Texas criminal procedure. Whatever crime you have been charged with, contact Chernoff Law for a free consultation.