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Frequently Asked Questions
Assault
I was charged with family violence against my wife. If she calls the District or County Attorney's office and tell them that she does not want me prosecuted for this offense, is the DA or CA required to dismiss the case?
Criminal Law
What do I look for in hiring an attorney?
DUI & DWI
Domestic Violence
Drug Crimes
How is drug court different from regular criminal court?
Juvenile Law
What is juvenile court?
What is the maximum age for juvenile court?
Assault
I was charged with family violence against my wife. If she calls the District or County Attorney's office and tell them that she does not want me prosecuted for this offense, is the DA or CA required to dismiss the case?
No. Although your wife is considered to be the victim, the crime is also considered to be against the "peace and dignity of the State." Although your wife's desire not to prosecute may or may not be helpful regarding punishment, often times these type of offenses are prosecuted with or without the assistance of the victim.
Does there have to be some type of visible injury for someone to be charged with assault?
There are several categories of assault in Texas. For misdemeanoros, visible injury is NOT required. ANY instance of pain can be considered "bodily injury". Also, just a threat of bodily injury can possibly be considered anoffense under Texas law.
Criminal Law
What do I look for in hiring an attorney?
You need a lawyer with experience in the area of law where your problem exists. For example, when facing criminal or juvenile charges, you need a lawyer experienced in criminal or juvenile law. Not all lawyers are experienced in these areas. These are specialized areas of law that follow different rules and procedures. You need a lawyer who understands your case and is able to effectively protect your rights.
Legal fees are also an important factor in choosing your lawyer, but do you really want the cheapest attorney when your freedom and liberty are on the line? The old adage you get what you pay for is certainly true when it comes to legal fees. Quality representation is what you should seek to find, but that representation should come at a fair price.
I've been charged with a crime, what do I do now?
It is very important that you consult with an attorney as quickly as possible. You have key constitutional rights that need to be protected. Depending on the type of case, legal motions and requests may need to be filed immediately.
If you have not yet posted bond, you need an attorney to review your case and determine whether or not your bond can be lowered, thereby saving you hundreds of dollars in bonding fees. This is a critical time to consult an attorney otherwise you could end up being arrested on the warrant and end up spending more time in jail waiting to bond out (or spending more money by getting arrested while driving and then having your car towed and stored, incurring additional expenses).
If you have posted a bond, or if you have a loved-one in jail who is unable to bond out, your attorney needs to begin working on preserving critical evidence that may aid in your defense.
What happens when I go to court?
Your first court setting is usually called the "arraignment." Historically, this is when the court will tell you what you are charged with and the range of punishment for that offense. Some judges forego the formality of an arraignment. In those courts, your attorney will simply give you that information.
This is also an opportunity for your lawyer to gather information about your case by reviewing the District Attorney's file. In Bell County, the District Attorney has an open file policy, allowing defense attorneys to view the police report and other evidence associated with your case. Also, at this time, the District Attorney may make a plea offer in an attempt to "plea-bargain" the case and avoid a trial.
Often, this setting will result in a reset of your case to a future date. This is usually necessary so that your attorney can gather additional information, talk to witnesses, and test the state's case and evidence. Your attorney will be able to advise you on whether or not you should reset your case. At the Brown Law Firm, we strive to complete your case with as few number of court appearances as necessary, without sacrificing your rights. What is going to happen to me if I'm found guilty?
That depends upon the offense. Sometimes your lawyer will be able to "plea-bargain" for a lesser charge or a lesser sentence. The range of punishment ultimately depends upon the conviction offense. The following list gives the range of punishment by class of offense:
Class C misdemeanor (tickets): fine only, amounts vary by offense
Class B misdemeanor: up to 180 days in jail and/or up to $2,000 fine
Class A misdemeanor: up to one year in jail and/or up to $4,000 fine
State Jail felony: minimum 6 months in state jail, maximum 2 years in state jail, without credit for "good time", and up to $5,000 fine
3rd degree felony: minimum 2 years in prison, maximum 10 years in prison and up to $10,000 fine
2nd degree felony: minimum 2 years in prison, maximum 20 years in prison and up to $10,000 fine
1st degree felony: minimum 5 years in prison, maximum 99 years or life in prison and up to $10,000 fine
**Note: This list serves as only a baseline for punishment -- certain enhancements (prior criminal history or aggravating circumstances) can increase the punishment range by increasing the minimum time, the maximum time, or both. And, some clients will qualify for probated sentences or deferred adjudication in lieu of jail/prison sentences.
Because the punishment range depends upon the conviction, this is where an experienced lawyer can help. As an experienced criminal trial lawyer, Brown Law Firm will work toward the best possible outcome, which might include a dismissal or a plea to a lesser charge which means a lesser sentence.
What is the difference between probation and deferred adjudication?
Probation refers to "community supervision." In a probation case, the defendant is found guilty (i.e., convicted) and sentenced to a period of time in jail or prison; however, the jail time or prison time is "probated" or suspended, meaning put on hold. Probation time can range from 6 months on a misdemeanor to 10 years on a felony. During the probation period, the defendant meets with a probation officer and is monitored closely to ensure compliance. Some of the rules of probation include: commit no offenses, perform community service hours, pay a fine, pay court costs, not use drugs or alcohol, provide random urine tests, attend counseling or therapy, work faithfully or attend school full-time. Other rules often apply but are based on the particular offense. And, for any probation, the judge may order some jail time as a condition of the probation. At the end of the probation term, if the defendant is successful on probation, the judge will release the defendant from probation; however, if the defendant violates probation, he is subject to being sentenced to jail or prison for the period of time originally assessed. Probation gives a defendant the opportunity to stay out of jail or prison and be a productive member of society.
Deferred Adjudication refers to a form of community supervision wherein there is no finding of guilt and no conviction, so long as the period of supervision is successfully completed. For practical purposes, it is the same as being on probation, with the same conditions listed above. HOWEVER, the difference is the judge "defers" the finding of guilt -- the judge applies a wait and see philosophy. If the supervision is successfully completed, there is no finding of guilt and no conviction. But, if the defendant violates the supervision, the judge can find the defendant guilty and sentence him accordingly -- a conviction. Because a successful deferred adjudication is not a conviction, in most cases it cannot be used against the defendant in the future to enhance punishment. The current law even allows most deferred adjudications to be "sealed" as a non-public record after a certain period of time. This is an important advantage because once the record is sealed (or made non-public) the defendant can deny the arrest, charge, and period of supervision -- it need not be disclosed.
Consult your attorney to find out if deferred adjudication or probation is applicable to your case and if you should consider them as an alternative to a final conviction. While it sounds good, it is not always the best alternative!
There is a warrant for my arrest, what should I do?
Contact an attorney as quickly as possible. Your attorney may be able to assist in getting a bond set for you or getting the court to reduce the amount of the bond in your case. This can save you hundreds of dollars in bonding fees. Also, your attorney will be involved from the very beginning to safeguard and protect your rights. In some cases, your attorney will be able to prevent your incarceration by working with a bonding company to post a "no-arrest" bond.
What if my case is set at "no bond?
Again, contact an attorney as quickly as possible. Your attorney will be able to assist you in getting a bond in almost all cases. Your attorney will appear with you in court and request a bond as you surrender to the court. You should also have a bonding company accompany us to court to post your bond as you are surrendered to the court.
The police did not read me my rights; will my case be dismissed?
Most likely, no. These "rights" are referred to as Miranda rights, coming from a Supreme Court case Miranda v. Arizona. The Supreme Court stated that police must inform suspects of their rights prior to interrogating or questioning a suspect in custody (that familiar phrase: "you have the right to remain silent; anything you say can and probably will be used against you at your trial; you have the right to have a lawyer present prior to and during any questioning; if you cannot afford a lawyer, one will be appointed for you; and you have the right to terminate the interview at any time").
When the police fail to read your rights, the effect is simply that your answers to questions made by the police while you were in custody are suppressible. This is where it is important to hire an experienced lawyer who can deal with the suppression issues. At Brown Law Firm serving Waco, Temple and Killeen, I have dealt with both adult statements and juvenile statements and have been successful in suppressing both, sometimes resulting in a dismissal. Whether or not your case will be dismissed depends upon the other evidence available to the prosecution.
DUI & DWI
What must be proved to find you guilty of DWI?
- Your identity.
- You were operating a motor vehicle in a public place, in Texas, while your Blood Alcohol Level was .08 or higher, by the introduction of alcohol, a drug, or a combination thereof into the body.
Do not give a breath sample. The officer will most likely tell you that you will be arrested if you don't take the breathalyzer, and that your license will be suspended. What they don't tell you is that if you blow over .08 (the legal limit) you will be arrested and your license will be suspended anyway.
In order to keep your license from being automatically suspended, we will request an Administrative License Revocation (ALR) hearing to contest DPS's contention that there was probable cause for your arrest.
In short, No. DPS will try to suspend your license independent of anything that is happening with your case in court. Additionally, upon a final conviction of DWI, the criminal court judge can suspend your license for anywhere from 6 months to one year depending on your age and the circumstances of your case, prior convictions, etc.
If you have a clean criminal record and there were no serious injuries in your first misdemeanor DWI, you should not have to worry about doing any additional jail time. In Bell County, probation is an option as an alternative to jail time.
For DWI's in Texas, even if you receive probation, you will have a final conviction on your record. The law states that on your second DWI, you must spend at least 30 days in jail if you are convicted. This enhancement can sometimes be waived, however.
A DWI 1st carries a maximum fine of $2,000 which can be paid monthly as a part of probation. Additionally, as of Sept. 1st 2003, DPS will assess an additional penalty of a minimum of $1,000 per year for three years upon a final conviction for DWI.
Absolutely not. A breath sample from an Intoxilyzer machine can be inaccurate. There are ways to attack the validity of the breath test results.
This is a common question. Sobriety tests are generally considered non-testimonial in nature and Miranda does not apply to non-testimonial evidence.
Your lawyer should conduct a thorough investigation of the facts of your case,he should be able to prepare and conduct a rigorous cross examination of the State's witnesses. In most cases, this is the most important part of the trial, he should have a comprehensive understanding of constitutional rights, how they may be violated and how to protect those rights.
He should have experience in the type of case you are hiring him for.
- Whether the stop was constitutional.
- Whether the administration of roadside tests was constitutional.
- Whether there was Probable Cause for the arrest.
- How Miranda will play a role in the case with statements and other evidence.
- How the roadside tests were administered.
- The administration of any Breath or Blood Samples given.
- The constitutionality of the search and seizure.
You should contact an attorney immediately if you or a member of your family or a close friend has a warrant for their arrest. A warrant is issued by a magistrate or a judge. The arrest warrant commands a law enforcement officer or some other person specifically named to arrest the body of the accused and take the body to be dealt with according to law. By contacting my firm, I can help resolve the warrant problem.
The police officer is required to take a person in front of a magistrate without unnecessary delay, but no later then 48 hours. The magistrate is required to inform the person accused of:
- The charges against him.
- They have the right to hire an attorney.
- They have the right to remain silent.
- They have the right to have an attorney present during questioning by law enforcement or a prosecuting attorney.
- The have the right to terminate the questioning at any time.
- They have the right to request a court appointed attorney, if the person arrested in indigent or cannot afford to hire an attorney.
- The procedures for requesting a court appointed lawyer.
- They have the right to 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. The magistrate is also required to allow the accused reasonable time and opportunity to consult counsel and to be admitted to bail if allowed by law.
Any confession you make during a custodial interrogation cannot be used against you unless you are first advised of your Miranda rights. Some statements and confessions may be used against you prior to arrest and prior to a custodial interrogation under certain circumstances.
Domestic Violence
Domestic violence is the use of physical, sexual, economic, emotional and/or psychological abuse by an intimate partner or family member to control the actions of another. In most states, domestic violence crimes include behaviors that constitute battery, sexual assault, sexual battery, stalking, kidnapping, false imprisonment and other criminal offenses that result in physical injury or death.
Yes. Minor physical injuries, and even the threat of violence, may result in an arrest in a domestic violence case. However, the severity of the injury may influence the specific charge brought.
Drug Crimes
The most common challenges in drug cases relate to how the evidence was obtained. If the police violated the defendant's Fourth Amendment search and seizure rights or Fifth Amendment rights against self-incrimination, the court will suppress the drugs or statements as being unlawfully obtained. Without this evidence, the prosecution may not be able to prove its case beyond a reasonable doubt and the case may be dismissed as a result.
Drug courts combine criminal justice and medical treatment models to deal with drug crimes. They recognize that incarceration may not be the most effective method for breaking the cycle of drug addiction and crime, especially for first-time and low-level offenders. Drug courts emphasize a cooperative approach between the prosecutor, defendant and court, and they favor rehabilitation over jail. Successful completion of drug court programs can result in reduced charges or sentences, or dismissal of charges altogether.
Juvenile Law
What is juvenile court?
Children who break the law are subject to a separate judicial system called the juvenile court system. Generally, the focus of the juvenile court system is more on rehabilitation than on punishment. In some cases, however, older juveniles who commit crimes that are serious will be charged as adults and tried in the adult criminal courts. In such cases, sentences will be in accord with adult punishment, whereas in juvenile court any incarceration is usually in a rehabilitative setting and generally ends when the juvenile attains the age of majority.
What is the maximum age for juvenile court?
The most common maximum age for a child to be in juvenile court is seventeen years. Some states set different ages for particular types of crimes. In most states, cases involving a juvenile of any age may be transferred to adult court.
My child was charged criminally for causing damage to my neighbor's property. I have paid for the repairs to my neighbor's property and my neighbor is satisfied. Will the charges be dropped automatically?
Not necessarily. Paying restitution may be a factor considered for the court's sentence, but it does not in and of itself guarantee dismissal of the charges. Forgiveness by the victim or parental punishment may be a factor in determining the court's sentence, but it is not a reason for the case to be dropped.
Do we need a lawyer to represent my child even if my child is innocent?
Yes. Children who have been wrongly accused definitely need competent legal representation to ensure that their rights are protected and that justice prevails. Employing the services of a seasoned criminal defense attorney is the best way to prevent injustice.
If my child simply intends to plead guilty, why does he or she need a lawyer?
Children in the juvenile justice system must be represented by a lawyer during most proceedings. Because juvenile proceedings are a combination of civil and criminal rules and procedure, you should hire a lawyer who practices in juvenile court and understands the juvenile system.
In some cases, the judge will appoint a lawyer for the child and require the parents to reimburse the county for the court-appointed lawyer.
What do I look for in hiring an attorney?
You need a lawyer with experience in the area of law where your problem exists. For example, when facing criminal or juvenile charges, you need a lawyer experienced in criminal or juvenile law. Not all lawyers are experienced in these areas. These are specialized areas of law that follow different rules and procedures. You need a lawyer who understands your case and is able to effectively protect your rights. Legal fees are also an important factor in choosing your lawyer, but do you really want the cheapest attorney when your freedom and liberty are on the line? The old adage you get what you pay for is certainly true when it comes to legal fees. Quality representation is what you should seek to find, but that representation should come at a fair price.
Do I need to post a bond for my child?
No, juvenile offenders are not subject to being released on "bond" but are either detained or released depending upon the circumstances.
The police say my child is being charged with a crime, what is going to happen?
Often juveniles are taken into custody by the police. In some cases, the police will release the child to a parent or guardian. When this happens, the parents are simply told their child is being charged but they can take the child home. During the next few days or weeks, the police are sending their information to the District Attorney. Once the District Attorney receives the information, a petition is filed with the juvenile courts. After the petition is filed, the child and his parents are "served" with paperwork to appear in court on a particular day. Papers are served or delivered to you by a Deputy Constable who usually will come to your home.
Also, the juvenile probation department begins their process. The probation department is responsible for gathering information about your child and your family and preparing a report for the court. In most cases, a probation officer will contact you or your child to discuss his situation. Often, the probation department will contact you even before the petition is filed with the court.
It is important that you and your child talk with his or her attorney prior to speaking with the probation department. Although you will want to be cooperative with the probation department, you must be careful to protect your child's rights. Remember, all information provided to the probation department may end up in the report that is ultimately given to the prosecutor and the court for consideration.
What does the court consider in deciding whether to detain or release a juvenile?
The court considers five factors in determining whether to hold the child in the detention center pending court or to release the child to a parent or guardian: (1) whether the child is likely to abscond or be removed from the jurisdiction of the court, (2) whether a parent or guardian can provide suitable supervision, care, and protection for the child, (3) whether the child has a parent or guardian who is able to return him to court when required, (4) whether the child may be a danger to himself or others if released, and (5) whether the child has previously been found to have engaged in delinquent conduct and is likely to commit a new offense if released.
It is important for the parents (or guardian) to be present with a lawyer at the detention hearing to explore whether or not the judge will release the child.
What happens when I go to court?
Your first court setting is usually called the "arraignment." This is an opportunity for your lawyer to gather information about your case by reviewing the prosecutor's file. In Bell County, the County Attorney has an open file policy, allowing defense attorneys to view the police report and other evidence associated with your case. Also, at this time, the County Attorney may make a plea offer in an attempt to "plea-bargain" the case and avoid a trial.
Also, at this setting, your attorney will be able to review the court probation report related to your case. The probation department has likely already contacted your family and your school to obtain information about your behavior and performance at home and at school. It is important that the information contained in this report be accurate as it will be relied upon by the court for disposition or punishment purposes.
Sometimes, this setting will result in a reset of your case to a future date. This may be necessary so that your attorney can gather additional information, talk to witnesses, and test the state's case and evidence. Your attorney will be able to advise you on whether or not you should reset your case. At Brown Law Firm, I strive to complete your case with as few number of court appearances as necessary, without sacrificing your rights.
What is an adjudication?
An adjudication is a finding by a juvenile court that a child committed a delinquent act. An adjudication is generally not considered a conviction for a crime and will not deprive the juvenile of civil rights, such as the right to vote.
Are children locked up in the same places as adults?
Federal law strongly discourages keeping children confined with adult offenders or suspects. The law requires physical and visual separation of juveniles and adults. Usually, a child is to be confined with adults for no more than six hours, while awaiting a transfer to a juvenile facility.
Since the goal of the juvenile court system is to rehabilitate rather than punish, juveniles who are incarcerated are sent to places different from adult jails. Many juvenile facilities are more like an ordinary residence than a prison.
What is diversion?
Many cases involving juveniles are not heard in court. The child's case is handled by another agency, usually a public or private social services agency. This is known as "diversion." The child, the child's parents and the agency come to an agreement about how to handle the child's offense. This will often involve meeting certain conditions, such as, restitution, community service, counseling or school attendance. If the child meets all of the agreed conditions, the case will be dismissed without court action. If the conditions are not met, the child may be referred to juvenile court.
What is restitution?
Restitution involves ordering the juvenile to pay the victim a sum of money designed to compensate the victim for the monetary costs of the crime, usually, property damage. A juvenile court will often order restitution as a condition of probation.
What is a status offense?
A status offense is an offense that would not be a crime if committed by an adult. The most common status offenses are truancy, curfew violations or underage consumption or possession of alcohol. Other status offenses include "incorrigibility."
What is going to happen to me if I'm found guilty?
First of all, juveniles are not found "guilty"; they are said to have "engaged in delinquent conduct" if the court or a jury finds beyond a reasonable doubt that an offense was committed. This is a minor distinction but benefits the child in the future. For example, most job applications ask whether or not a person has been "convicted" of a crime; a juvenile is not convicted therefore may answer in the negative.
If a child is found to have engaged in delinquent conduct, the disposition or ramifications can range from probation where custody is left with the parents or guardians to probation where the juvenile is taken out of the home and placed into a juvenile facility to commitment or incarceration in the Texas Youth Commission. In some instances, the juvenile may face transfer or certification to the adult court to stand trial as an adult.
Can juvenile records be sealed?
Depending on the circumstances, many juvenile cases can be sealed. In a misdemeanor adjudication with a finding of delinquent conduct, there is a two year waiting period before the records may be sealed. The statute’s states the judge shall seal the records if (1) two years have elapsed since final discharge for a non-felony offense and (2) there have been no convictions or adjudications on any charge since final discharge and no such action is pending.
If the adjudication is for a felony offense, the sealing is discretionary for the court (may or may not be granted) and the child must wait until he or she is at least 21 years of age and there can be no convictions or adjudications on any charge since final discharge and no such action pending. However, in a "determinate sentencing" case, these records may never be sealed.
Another possibility of sealing records without waiting either 2 years or until age 21 exists where there is no adjudication, i.e., no finding of delinquent conduct. This result is common when charges are dismissed or when a case is passed for deferred prosecution (a special form of probation which does not include a finding of delinquent conduct).
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