Texas Criminal
Law
Frequently Asked Questions
I. How can I find
and hire the right lawyer?
III. Bail
and release.
IV. Search
and Arraignment.
V. DWI & BWI
I. How can I find
and hire the right lawyer?
WHY MIGHT I NEED
A LAWYER?
Legal
advice is like medicine: You can
take some to cure problems and
some to prevent them. If you are
accused of committing a crime, a
Felony, or Class A, B or C
misdemeanors, you need legal
advice. The punishment range for
some of such crimes is as
follows:
PUNISHMENT RANGES and
GENERAL PENALTIES
A.
FELONIES OFFENSES:
Capital Felony
Life or
Death
FIRST DEGREE FELONY
Life or 5-99 years in prison
and optional fine not to exceed
$10,000
SECOND DEGREE FELONY
2-20 years in prison and
optional fine not to exceed
$10,000
THIRD DEGREE FELONY
2-10 years in prison and
optional fine not to exceed
$10,000
STATE JAIL FELONY
180 days - 2 years in State Jail
and optional fine not to exceed
$10,000
B. MISDEMEANOR
OFFENSE
Class A Misdemeanor
Fine
not to exceed $4,000 and/or 1
year or less in jail
Class B
Misdemeanor
Fine not to
exceed $2,000 and/or 180 days or
less in jail
Class C
Misdemeanor
Fine not to
exceed $500
Sometimes you can
add to your problems by failing
to call a lawyer immediately. If
you are arrested, witnesses
should be interviewed and
evidence gathered as soon as
possible. You should contact a
lawyer immediately. Preventive
legal advice often can save you
time, trouble and money by
preventing problems from larger.
HOW DO I
FIND A LAWYER?
Recommendations. Maybe
you know a lawyer. Lawyers can
refer you to other lawyers who
have experience with your kind
of problem.
Ask your
friends, co-workers and
employers if they know any
lawyers. Business people or
professionals such as bankers,
ministers, doctors, social
workers and teachers may be able
to give you a lawyer name.
If you are accused of committing
a crime and cannot afford a
lawyer, you may qualify for free
legal help. A judge may appoint
a private attorney to represent
you without charge if you
qualify for such assistance.
DO LAWYERS SPECIALIZE?
A Board Certified attorney is an
attorney who has demonstrated
special competence in a
particular field in which the
Texas Board of Legal
Specialization has certified
his/her competence.
The Texas Board of Legal
Specialization was created by
the Supreme Court of Texas, and
the Board members are appointed
by the President of the State
Bar of Texas. The Board, in
turn, administers the program
through which an attorney may
demonstrate their special
competence in a particular area
of law practice.
A lawyer who is Board Certified
in Criminal Law must have
experience in the trial of
serious criminal matters and the
preparation of such cases for
trial. They must have extensive
knowledge of state and federal
constitutional law, evidence,
procedure, and penal laws
involved in the trial of
criminal cases.
The requirements for an attorney
to receive Board Certification
in Criminal Law include:
Handling a wide variety of
criminal matters to demonstrate
experience and involvement.
Attending criminal law
continuing legal education
seminars regularly to keep their
legal training up to date.
Being evaluated by fellow
lawyers and judge.
Passing a day-long written
examination.
Certification is for a period of
5 years. To remain certified
after that time, every 5 years
the attorney must apply for
re-certification and meet the
requirements for continued
experience, peer review, and
continuing legal education.
Gilbert G. Garcia has been Board
Certified in Criminal Law by the
Texas Board of Legal
Specialization since 1989.
Gilbert has over 30 years of
criminal trial experience.
HOW WILL I KNOW WHICH LAWYER
IS BEST FOR ME?
It is recommended that you meet
briefly with a lawyer instead of
discussing your problem on the
telephone. A face-to-face
meeting will allow the lawyer to
gather all of the details
pertaining to your case and
correctly evaluate your options.
At such a meeting you may want
to ask how much experience the
lawyer has had with problems
like yours, and how recently the
attorney handled a similar case.
We suggest hiring a lawyer who
primarily practices law in the
jurisdiction where your case is
located, has familiarity of the
courts and personnel of the
courts and has an office in the
area.
The Gilbert G. Garcia Law Firm
offers FREE initial interviews.
Contact us today for your case
evaluation and to establish a
personal case survival plan.
SHOULD I HIRE THE LAWYER?
That depends on how you feel
after your meeting with the
lawyer and his/her staff. When
meeting with the lawyer bring
the names, addresses, and
telephone numbers of everyone
connected with your case. You
also should bring all papers
involved in your case, such as
any documents you received from
governmental source.
Ask to hear about cases like
yours that the lawyer may have
handled.
You should know that most
lawsuits and other legal work
are not sure things.You should
be very cautious of an attorney
who guarantees results. However,
a lawyer should be able to tell
you the strengths and weaknesses
of your case.
Ask yourself the following
questions:
- Will you be comfortable
working closely with the
lawyer?
- Do you believe the
lawyer has the experience
and skill level to handle
your case?
- Do you understand the
lawyers explanation of what
your case involves?
- Does the fee seem
reasonable?
WHY IS IT IMPORTANT TO HAVE A
WRITTEN FEE AGREEMENT?
No matter what the amount, no
one likes to pay legal fees.
Therefore, it is important for
you and your lawyer to agree, in
writing, about what you will pay
the lawyer and what services the
lawyer will perform. This way,
both of you will know what to
expect from each other as you
work together on your case. Fee
agreements should be in writing.
WHAT SHOULD BE IN THE FEE
AGREEMENT?
Your written fee agreement
should set out the services the
lawyer will perform for you, and
the type and amount of fees you
will be expected to pay. The
agreement should also say how
the other case expenses/costs
will be handled and explain the
lawyers billing practices. The
agreement should also say if the
lawyer is going to add interest
or other charges to unpaid
amounts.
A fee agreement may also include
your obligations as a client.
For instance, you may need to
agree to be truthful, to
cooperate, to abide by the
agreement and to pay your bills
on time. You make a fee
agreement in the same way that
you would make an agreement with
a contractor or other
businessperson. Tell the lawyer
what services you will want, and
ask questions to find out what
the charges will be. You may
want to ask a friend or relative
to come with you if you are not
sure what to ask.
Some suggested questions:
- How will the lawyer bill
for his or her time?
- Who else will be working
on the case - associate
lawyer, legal assistant,
paralegal?
- How will that time be
billed?
- What can be done to
reduce fees and costs?
- Can you have a payment
plan and if so, what are the
terms for the payment plan?
- What is the lawyers
estimate of the total
charges?
- We strongly suggest not
hiring a lawyer without a
written Fee Agreement.
WHAT DO I NEED TO DO TO HAVE
A SUCCESSFUL LAWYER-CLIENT TEAM?
The answer to this is simple and
straightforward:
Be sure that you and your lawyer
have the same goals.
Be sure you understand and are
comfortable with the lawyers
working style.
Be especially certain that you
have a clear picture of the
expected timetable of your case
- when you can expect
significant developments.
Be sure you provide the lawyer
with the information and
documents necessary to
understand your case.
Be sure you understand and agree
with the lawyers billing
practices.
Be sure if you have questions or
concerns about your legal
matter, you express them to the
lawyer and listen to the
responses.
WHEN SHOULD I SEE A LAWYER?
If you are arrested for a crime,
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 to avoid
being misinterpreted or
misunderstood. The lawyer also
can advise you, your family or
friends on the bail process. It
is important to contact a lawyer
immediately to preserve evidence
and witness information.
Contacting a lawyer immediately
after the arrest will provide
you with better resolution
opportunities.
II. What
Should I Know If I Am Arrested?
WHAT IS AN ARREST?
When you are arrested, you are
taken into custody. This means
that you are not free to leave
the scene. However, without
being arrested, you still could
be detained or held for
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
recent burglary site.
Storekeepers also can detain you
if they reasonably suspect you
have stolen something. 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.
WHAT RIGHTS DO I HAVE?
You have certain rights if you
are arrested.
Before the law enforcement
officer questions you, he or she
should tell you that:
* You have the right to remain
silent.
* Anything you say may (and
probably will) be used against
you.
* You have a right to have a
lawyer present while you are
questioned.
* If you cannot afford a lawyer,
one will be appointed for you.
These are your Miranda rights,
guaranteed by the U.S.
Constitution. If you are not
given these warnings, your
statement may be inadmissible.
However, this does not apply if
you volunteer information
without being questioned by the
police.
ONCE IM TOLD MY 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, the questioning must
stop as soon as you say so or as
soon as you say that you want a
lawyer.
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 drivers license
may be suspended and the refusal
may be used against you in
court. However, if you take the
test and it shows an alcohol
concentration of a level
specified in Section 49.01,
Texas Penal code, your drivers
license may be suspended, and
the results of the test may be
used against you in court.
WHO CAN ARREST ME?
All law enforcement officers
(such as police officers, county
sheriff officers, investigators
in a district attorneys office
and highway patrol officers) can
arrest you whether they are on
or off duty. A probation or
parole officer can also arrest
you.
They can arrest you even if they
do not have an arrest warrant if
they have probable cause or good
reason to believe you committed
a crime.
If you commit an infraction,
they may ask you to sign a
citation or notice instead of
taking you into custody. This is
a minor offense, such as a
moving violation, where the
punishment is usually a fine. If
you sign the citation you are
not admitting guilt, you are
only promising to appear in
court. If you have no
identification or refuse to
sign, an officer may take you
into custody.
WHO MAINTAINS ARREST RECORDS
AND WHAT DO THEY INCLUDE?
Local Police Departments, The
State of Texas, and the Federal
Government all maintain arrest
records.
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 and nolo
contendere, and being found
guilty after a trial count as
convictions.
WHEN IS AN ARREST WARRANT
USED?
Usually, a warrant is required
before you can be taken into
custody from within your home.
However, you can be arrested at
home without a warrant, if fast
action is needed to prevent you
from escaping, destroying
evidence, endangering someones
life or seriously damaging
property.
An arrest warrant must be signed
by a magistrate or judge, who
must have good reason to believe
that you committed a crime. 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,
identify him or herself and tell
you that youre 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 do
not have the warrant with them,
you should be allowed to see it
as soon as it is practical.
At an arrest site, the police
may search the area within your
reach. If you are arrested
outdoors without a search
warrant, they may search your
home or car. Resisting an arrest
or detention is a crime. If you
resist arrest, you can be
charged with a crime in addition
to the crime for which you are
being arrested. If you resist,
an officer can use force to
overcome your resistance or
prevent your escape.
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 usually release you. Under
this circumstance, such a
situation can then be considered
a detention and may not be
recorded as an arrest.
III. Bail and
Release
WHAT IS BAIL AND HOW IS IT SET?
The amount of bail - money or
other security deposited with
the Sheriff to insure that you
will appear - is set by a
magistrate. Normally, after an
arrest you are taken before a
Magistrate for a Probable Cause
Hearing. Your bond amount is set
at that hearing. Appear at all
hearings. If you have any doubt,
go to Court so a new warrant is
not issued for your arrest for
failing to appear.
If you fail to appear, your bail
will be lost and a new warrant
will be issued for your arrest.
For traffic citations, officers
at the jail may be able to
accept bail. If you cannot post
or put up the bail, you will be
kept in custody.
IV. Search and
Arraignment
WHAT HAPPENS AT AN ARRAIGNMENT?
You have a right to be arraigned
without unnecessary delay. At
the arraignment you will appear
before a judge who will tell you
officially of the charges
against you. An attorney may be
appointed for you if you cannot
afford one, and the bail can be
raised or lowered depending on
the circumstances of the case.
You also can ask to be released
on a P.R. bond (personal
recognizance), even if bail was
previously set.
WHEN CAN AN OFFICER CONDUCT A
SEARCH?
An officer always can make a
search with either your consent
or a search warrant.
However, you have a right to see
the warrant before the search
begins.
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.
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, which 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 seize any illegal goods in
plain sight.
If you, your home or your car
are searched illegally, a judge
might say that any evidence
found during the search cannot
be used against you in court. If
your lawyer does 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, it
does not always mean that your
case will be dismissed.
V. DWI & BWI
If you are charged with
D.W.I./B.W.I.,
you only have 15 days from
the day you receive a Notice of
Suspension of your drivers
license to notify the Department
of Public Safety of your request
for a hearing. If you have
received such a notice and do
not timely notify the Department
of Public Safety, YOUR LICENSE
WILL BE SUSPENDED. WE RECOMMEND
THAT OUR CLIENTS REQUEST A
HEARING.
Can my driver's license be
suspended if I'm arrested for
operating a boat while
intoxicated?
Yes. Effective 9/1/2001, a
person's drivers license will be
automatically suspended if the
arrested person:
* Is operating a watercraft
powered with an engine having a
manufacturer's rating of 50
horsepower or above; and
* The person refuses to provide
a specimen (breath or blood) to
determine intoxication.
* The period of suspension for
1st time offenders is 180 days.
Gilbert G. Garcia, has practiced
Criminal Law since 1978 and has
been Board Certified in Criminal
Law since 1989. The Gilbert G.
Garcia Law Firm is the logical
choice to represent you in your
criminal case, providing the
quality legal services you
deserve in your most important
matters.
Free initial consultations and
reasonable fees. Personal
payment plans available and most
major credit cards accepted.
Many issues are able to be
handled via e-mail, phone calls
and fax and after hours and
weekend appointments are
available upon request to meet
the needs of each client.
Conveniently located on the
Montgomery County Courthouse
square since 1983.
For more information
Texas Criminal Law Frequently
Asked Questions
Contact Gilbert Garcia today at
936-756-3333. |
