Yong J An Former State and Federal Prosecutor What are your Rights if Arrested? The police officer making the arrest is required without unnecessary delay, but no later than 48 hours after the arrest, to take the person arrested before a Judge. The judge is required to inform the person arrested of: • The accusation against the person arrested (defendant) • The right to hire an attorney • The right to remain silent • The right to have an attorney present during questioning by law enforcement or a prosecuting attorney • The right to end the questioning at any time • The right to request a court appointed attorney, if the person arrested is indigent or cannot afford to hire an attorney • The procedures for requesting a court appointed attorney • The right to have an examining trial • The person arrested is not required to make a statement and any statement may, can and will be used against the person arrested. Commencement of a Criminal Case In Texas, a criminal case usually commences with the arrest of a person for the violation of a state criminal statute. The arresting officer will contact the County District Attorney’s Intake Division and give the assistant district attorney working at the intake desk a brief summary of the criminal charge or charges. In felony cases, the Defendant will be given a court date for his or her initial appearance in a County Criminal District Court within seventy- two hours of the arrest.. A criminal case, either a misdemeanor or a felony, is resolved either by a dismissal of the charges, an entry of a plea of guilty or 800 Commerce*Houston, TX 77002 281.300.2252, FAX 281.984.5051
Know Your Rights Yong J. An Attorney at Law 800 Commerce Houston, Texas 77002 281.984.5050
Yong J An Former State and Federal Prosecutor • When Should I Hire an Attorney? One should hire an attorney at the earliest stage of the criminal process. In doing so, it allows the attorney enough time to prepare a defense. Often times the money spent hiring an attorney will be less than the money spent on fees and fines if you handle a case on your own.
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Yong J An Former State and Federal Prosecutor Your lawyer should always follow your instructions concerning your case, unless those instructions dictate illegal or unethical behavior on his/her part. Finally, your lawyer should always put your best interests first and never make any agreement or deal, or obligate you to do anything prejudicial to your case.
How Do I Select A Lawyer? When selecting legal representation one should ask themselves the following questions. • Is the lawyer experienced in criminal law? • Will you be able to get a written contract or agreement clearly describing what type of legal services will be provided and what those services will cost? • If your legal problem or case is a routine matter, does this lawyer charge a standard fee for services, and if so how much is it? If the attorney has a website, one should take a look at it and become familiar with his legal background. Remember when choosing a lawyer a reputable experience goes along way when you want to resolve a pending legal matter What Should You Expect From Your Lawyer? • • •
Your lawyer should always give you honest advice, including the strong and weak points of your case. Your lawyer should keep you informed concerning the status of your case. Your lawyer should never represent another client whose interests might be prejudicial or adverse to yours.
800 Commerce*Houston, TX 77002 281.300.2252, FAX 281.984.5051
What Do I do if I Have a Warrant for my Arrest An attorney should be contacted immediately. How is an Arrest Made? A law enforcement officer must obtain an arrest warrant before taking a person into custody. However, a law enforcement officer may arrest a person without a warrant if: • There is probable cause to believe that the person committed an offense; and • The arrest falls within one of the exceptions in Chapter 14 of the Code of Criminal Procedure, Article 14.01 • A criminal act is committed in a law enforcement officer’s presence or view.
800 Commerce*Houston, TX 77002 281.300.2252, FAX 281.984.5051
Yong J An Former State and Federal Prosecutor DWI A person charged with DWI will also face a suspension of his or her driver’s license for either refusing or failing a breath test. At the time of arrest or during the booking process, the police will give the person arrested a notice of suspension instructing them as to what needs to be done to contest the suspension. A written request for an administrative hearing to contest the suspension must be filed with the Texas Department of Public Safety in Austin, Texas within 15 days of the arrest. Many people arrested who don’t request a hearing are surprised to find out that their license has been suspended. A suspension may not be imposed on a person who is acquitted of DWI. If a suspension was imposed before the acquittal, the Texas Department of Public Safety must rescind the suspension and remove any reference from the person’s computerized driving record. As of September 1, 2003, a person found guilty of the offense of DWI will pay a surcharge to keep his or her driver’s license. The surcharge will be in an amount of $1,000.00 to $2,000.00 and will be paid on a yearly basis for a period of 36 months from the date of the DWI conviction.
Yong J An Former State and Federal Prosecutor no contest, or a verdict of not guilty or guilty after the Defendant has entered a plea of not guilty and requested a trial of the case by the court or jury. Plea of Guilty If the Defendant decides to enter a plea of guilty, it is usually after counsel and the prosecutor handling the case have entered into discussions regarding a plea bargain in the case and, in fact, have entered into an agreement. For example, in a felony case, the Defendant will agree to enter a plea of guilty to the charge filed in the Court, if the prosecutor agrees to recommend a sentence of community supervision (regular probation) for a period of five years. This however does not mean the judge will automatically accept the deal, the judge has the right to deny the plea agreement. Plea Without a Recommendation If the Judge rejects the plea, the Defendant is allowed to withdraw the plea and either set the case for trial, try to negotiate another plea bargain agreement with the prosecutor that the Judge will accept or enter a plea of guilty to the charge without a recommendation from the prosecutor.
Unlike in other misdemeanor cases, a sentence of community supervision (probation) in a misdemeanor DWI case is considered a final conviction and will be reported on the person’s driving record for a period of 10 years. The Criminal Courts require those persons charged with DWI who have a previous conviction for the offense of DWI to install an ignition interlock system in their vehicle as a condition of bond. Trial by Court or Jury 800 Commerce*Houston, TX 77002 281.300.2252, FAX 281.984.5051
800 Commerce*Houston, TX 77002 281.300.2252, FAX 281.984.5051
Yong J An Former State and Federal Prosecutor Most criminal cases filed in Texas are resolved without a jury trial. If, though, the Defendant elects to try his or her case by a jury, he or she can expect the trial to usually occur within six months of the date of arrest if the case is a misdemeanor and usually within nine months to a year if the case is a non capital felony. A jury trial is conducted in the court in which the case was filed. Normally, the Judge hearing the case will schedule a pre-trial hearing in advance of trial to consider pre-trial motions and other matters. Community Supervision Community supervision, formerly known as probation, means the placement of a Defendant by a court under a continuum of programs and sanctions, with conditions imposed by the court for a specified period during which criminal proceedings are deferred without an adjudication of guilt (deferred adjudication) or a sentence of imprisonment or confinement, imprisonment and fine, or confinement and fine is probated and the imposition of sentence is suspended in whole or in part. It is important to note that deferred adjudication is only available from the Judge after a plea of guilty or no contest.
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Yong J An Former State and Federal Prosecutor Remain within the same county Support your dependents as required by law Submit to random urinalysis Participate in a community service restitution program to completion Pay fines and supervisory fees as directed.
Conditions of community supervision may also include enrolling in drug and alcohol classes. This is especially true in driving while intoxicated cases which may also include, as conditions, a driving course for first time offenders and a victim impact panel. Violating Terms & Conditions of Community Supervision If a person (probationer) is placed on either form of community supervision, he or she must abide by the terms and conditions set or answer to a Motion to Revoke/Adjudicate. In a situation where the probationer violates a term or condition of the community supervision, a Motion to Revoke/Adjudicate is filed and a warrant is issued for the probationer’s arrest. If the probationer is on misdemeanor community supervision of either type, he or she is entitled to have a bond set.
Terms & Conditions of Community Supervision • • • • •
Commit no law violations Avoid injurious or vicious habits (illegal drugs and alcohol) Avoid persons or places of disreputable or harmful character Report to the community supervision officer as directed Work faithfully at suitable employment 800 Commerce*Houston, TX 77002 281.300.2252, FAX 281.984.5051
800 Commerce*Houston, TX 77002 281.300.2252, FAX 281.984.5051
Yong J An Former State and Federal Prosecutor Convictions
Yong J An Former State and Federal Prosecutor
A person convicted of a felony will lose certain rights and privileges. Examples are the right to vote, serve on a jury or hold certain types of licenses. If you are an individual visiting the US under a certain type of VISA the risk of deportation will be significantly.
Criminal Penalties A Class B Misdemeanor Conviction is punishable by a fine not to exceed $2,000, confinement in jail not to exceed 180 days, or both fine and confinement. A Class A Misdemeanor Conviction is punishable by a fine not to exceed $4,000, confinement in jail for a term not to exceed one year, or both fine and confinement. A State Jail Felony Conviction is punishable by confinement in the State Jail for any term not more than 2 years, but not less than 180 days and by a fine not to exceed $10,000. Third Degree Felony Conviction, is punishable by imprisonment for any term of not more than 10 years but not less than 2 years and a fine not to exceed $10,000. A Second Degree Felony Conviction is punishable by imprisonment for any term of not more than 20 years but no-less than 2 years and a fine not to exceed $10,000.
Drugs A person who is finally convicted of a drug related offense found in the Health and Safety Code of the State of Texas will have his or her driver’s license suspended by the Texas Department of Public Safety. In many of the Criminal Courts a person charged with a drug related offense will be subject to random urinalysis as a condition of bond. If you have ingested an illegal drug or controlled substance prior to coming to court, it is advisable to tell your attorney. Many employers as well as colleges and universities now ask for detailed information in the application process regarding a person’s use of marijuana and/or controlled substances. The questions usually center around whether a person has been convicted or placed on community supervision (probation) for a drug related offense. Needless to say, an answer of yes can make admission or employment difficult.
A First Degree Felony Conviction is punishable by imprisonment for life or for any term not more than 99 years or not less than 5 years and a fine not to exceed $10,000. 800 Commerce*Houston, TX 77002 281.300.2252, FAX 281.984.5051
800 Commerce*Houston, TX 77002 281.300.2252, FAX 281.984.5051
Yong J An Former State and Federal Prosecutor
Yong J An Former State and Federal Prosecutor of his family or a bail bond company. If a friend or family member is contacted that individual should, if they intend to help the person arrested, contact a criminal defense attorney or bail bond company for assistance. Release Requirements & Fees
Theft Theft is considered a crime of moral turpitude. Moral turpitude is defined in Black’s Law Dictionary as an act of baseness, vileness or the depravity in private and social duties which man owes to his fellow man or to society in general, contrary to accepted and customary rule of right and duty between man and man. A person convicted of a crime of moral turpitude is barred from certain types of employment and cannot serve on a jury. It should be noted that the offense of theft by check is considered a crime of moral turpitude. How Bail is Set
The requirements vary from Bail Bond Companies but the most common are as follows: • How long has the caller known the person arrested? • How long has the arrested lived in the Houston area? • Is the arrested married and have children? • Does the arrested live with his wife and children? • Is the arrested employed and for whom and how long? • Does the arrested have a criminal record? • Is the person on probation or parole? • Is the caller willing to indemnify (guarantee) the appearance of the arrested by signing an indemnity agreement for the full amount of the bond? • Can the caller or someone involved pay or help raise the release fee for the arrested and if not are there others that might help the arrested?
Bail is set according to a schedule agreed to by the Judges having jurisdiction over that particular criminal charge. Several things are considered about the individual arrested. The charge filed against that person, their prior arrest record, history of family violence, or any type of prior sexual related charges, if this person charged poses a danger or further threat to the community and is the person a flight risk. How to Arrange for a Bail Bond While the person arrested is going through all of the above processes that person should have contacted a friend or a member 800 Commerce*Houston, TX 77002 281.300.2252, FAX 281.984.5051
800 Commerce*Houston, TX 77002 281.300.2252, FAX 281.984.5051