Texas Criminal Defense Guide

A simple assault is assault not alleging family violence, an assault not alleging choking, an assault not alleging any sort of serious bodily injury, an assault is not involving a weapon. If it’s an assault without those things, it is a simple assault and it’s a Class A misdemeanor. With a Class A misdemeanor, it’s highly likely if you have no criminal history that they’ll offer you a deferred adjudication, which if that’s all you can get, that’s better than a conviction. Usually on an assault case, there are usually parts or facts that the state doesn’t know. Very often, there’s self-defense. Very often, it’s a mutual combat type of situation.

Usually, when somebody comes in on a simple assault case, I know more about the case than the prosecutor does, so we’ll sit down and talk. We’ll figure out a game plan, see if there’s a way to get somebody totally out of the charge. If so, we’ll go down that route. If not, we’ll try to resolve the case to the benefit of the client.

If you’re charged with possession of cocaine, the first thing you need to do is interview some lawyers, find somebody you’re comfortable with, and talk about what the potential avenues are. You can fight the case, or get the case thrown out. You should also know what the potential plea deals are that will allow you to maintain your livelihood, keep your job, and keep your license. In state court, it may even be possible to get the case diverted out of the criminal system and into some sort of diversion program where it’s really about rehabilitation.

If that’s not possible, the thing you want to also look at is if there is a problem with how the officer found the drugs. If there is, a successful motion to suppress could result in the case getting thrown out. If all that fails, one thing that may be offered is a pretrial diversion. The other thing that might be offered is a deferred adjudication. Deferred adjudication is not perfect, but it does allow you to avoid the conviction and avoid losing your driver’s license, which will happen if you’re convicted of a drug offense.

If you’re charged with possession of heroin, the first thing you need to do is find a lawyer. Interview a couple lawyers to find out who you’re comfortable with. Then the lawyer will go about collecting the evidence, which may involve video tapes, police reports, and a look at your criminal history. All those things play a role in what the lawyer will do for you.

On a possession of heroin case, most of those cases are in state court. In state court, there’s really no penalty for dragging the case out and doing the research. Very often, in state court, your deal will get better as the case gets older. What we very often do is investigate, collect the evidence, talk to the client, and decided on a game plan. Very often, the game plan involves filing a motion to suppress to see if we can get the case thrown out for an invalid search or an invalid stop.

If you’re charged with possession of a prescription drug, if it’s only a few pills and you say you got them from your mother, or from your brother because you hurt your back and he had a prior back surgery, and he had a few of those laying around, sometimes you can get the prosecutor to drop that type of case.

If you’re caught with a 30-day supply of a drug and you don’t have a prescription, then it’s a much more difficult case to deal with. The good thing is in most cases, it’s a misdemeanor. You still don’t want to have that conviction.

In Texas, distribution of a controlled substance or possession with intent to distribute is an offense where what’s going to happen to the case depends a lot on if you’re in state or federal court. If you’re in federal court, then time is not to your benefit. In federal court, you want to make a decision quickly about what you’re going to do. The investigation has to happen quickly, and decisions have to be made, because the time you spend to fight the case in federal court, you’re going to be penalized for by the court for not taking responsibility. In state court, there’s no such penalty; you can take your time. You can try to interview as many witnesses as possible. You can do the investigation that’s needed. You can even drag the case out if it’s to your advantage.

Also, the other issue in state court is, very often, you can get the prosecutor to drop the quantity of drugs possessed, because that will drop the offense level. You can also look to do a motion to suppress – if they stopped a vehicle, for instance, and found the drugs in a vehicle. Very often, that stop was done incorrectly or for an invalid reason. The fact that you’re charged doesn’t mean that you’ll be convicted of this offense.

If you are on probation or deferred adjudication and the court has a motion to revoke, what that usually means is that a warrant will be issued for your arrest. You’ll be arrested and processed in the jail. You’ll bond out, and then you’ll have a hearing about whether the judge is going to take away your probation or take away your deferred adjudication.

If you believe that one is going to be filed because you either picked up a new offense, failed to report, or you tested positive for alcohol or drugs while on probation, call a San Antonio criminal lawyer. Call somebody with experience in this area, and what they can do is go and talk to the judge to see if they can get the motion to revoke withdrawn. If they can’t it withdrawn, they’ll try to process the individual in a satellite office. What that means is the processing to get you booked, get you out, will take two hours, approximately, versus all day if you get arrested and taken to jail.

Your lawyer will talk to probation and the DA at your hearing to see if it can be resolved without them revoking your probation or deferred which it very often can be for minor violations. Minor violations would be things like missing an appointment, or picking up a very minor offense. What becomes more difficult is if you pick up what the state refers to as a new number one which is a new criminal offense. However, in most cases, the state won’t try to revoke your probation if the only allegation is you picked up a new criminal offense. They don’t want to try that new offense in a motion to revoke, so they usually will hold back on that motion to revoke until your new offense is resolved. What’s really important on a motion to revoke is to get a lawyer, get a bond set, and get out of jail or get processed, so you can start preparing a defense.

Shoplifting in Texas is a kind of shorthand version for theft. The difference is on a shoplifting case, very often it’s a store and they have a loss prevention person, and they may have watched through video cameras and saw the theft occur. It’s the dollar amount that determines what the range of punishment is. If it’s under $100, it’s a Class C misdemeanor. If it’s over $100, but less than $750, generally you’re looking at a Class B. Above that amount, it is a Class A misdemeanor. In most cases, you want to avoid a conviction for a theft case because a theft case is a crime of moral turpitude and it can have ramifications.

What I usually do, if I represent somebody on a theft case or a shoplifting case, is try to see if there’s a way to get the person off. Can we win the case? Can we get the case thrown out through a motion to suppress? If we can’t win the case, if we can’t get it thrown out, then what you want to do is avoid a conviction through some alternative method. Maybe we can get the state to offer a pretrial diversion, which gets you out of the criminal justice system; or maybe we can get a deferred adjudication, where you avoid the conviction and down the road, you can seal it.

A theft conviction can affect you down the road in job applications. It can even be used against you in a suit. Let’s say you’re going through a divorce and the fact is if you’re convicted for a theft, they’re going to use it against you to show you’re not trustworthy. It’s important to avoid even a minor theft case conviction.

Burglaries are serious offenses. In all cases, other than burglary of an automobile, they’re felonies. Burglary of an automobile is a misdemeanor. Any other burglary involving a building, or a habitation is a different grade of felony depending on what the person wanted to do when they entered the building. Is it a burglary to commit a theft? Is it a burglary to commit an assault? Is it a burglary to commit a sexual assault? All those things will determine what grade of offense it is.

One thing that happens quite often on a burglary is that you can get the case reduced to a trespass case. When someone enters the home or enters the building, that’s when you had to have the intent to commit, let’s say, a theft. It’s not uncommon for somebody to enter a building because your car broke down and it’s late at night, or you’re just trying to locate somebody to help you and so you knock, no one comes in and you holler and you go into a barn. You may then get charged with burglary of the building, but you had no intent to commit a theft. What you did was a trespass, which is a misdemeanor. We need to always look to see whether our client is correctly charged with a burglary, when in fact it just might be a misdemeanor trespass.

When you’re charged with forgery, forgery by itself is a very complicated offense. The statute is a couple pages long describing all the different ways that you can be charged with forgery. It usually requires an in-depth investigation. You kind of need to see exactly what the state is saying as far committing a forgery. A lot of people think forgery is just signing someone else’s name. Forgery can also involve presenting a document to somebody that you know is false. There are a lot of different ways to commit the offense, all of which you need to fight vigorously because in most cases, forgery’s going to be considered a crime of moral turpitude, and it’s going to affect you down the road if you’re convicted.

If you’re caught with a stolen credit card, there are a lot of different ways you can be charged. If you try to use the credit card, it can be one charge. If you’re just caught possessing it, it could be another charge. In a lot of cases, it’s a theft charge. All these cases involve potential crimes of moral turpitude that can affect you down the road, so you really need to get a lawyer involved to see if there’s a method or something that can be done to avoid the conviction.

If you’re charged with domestic violence or family violence, the one thing you need to know is that you have to fight the charge. In Texas, family violence has a lot of different ramifications. If you’re ever charged at any point in the future with another family violence case, it becomes a felony. That means that on a second charge, you end up getting arrested; it’s called a felony arrest. The officers may pull their guns on you. They may take you down, throw you on the ground and handcuff you; all that’s possible. The other thing that’s possible if you’re charged with a felony family violence, because it’s your second charge, is you can end up serving up to 10 years in prison, so it’s really important to avoid that family violence conviction.

The other thing that happens if you’re charged with a family violence offense is, if you are convicted, you cannot possess a weapon under federal law for the rest of your life. That’s important to a lot of people, and so you need to avoid that conviction. In fact, you even need to avoid a deferred adjudication on that family violence charge.

In Texas, a family violence charge can also be somebody that you’ve never had a dating relationship with, somebody that you did not have a marriage with, or somebody that’s not even a family member. It can be somebody that you just cohabitated with, and that’s real important to know. If you’re cohabitated with somebody, living with somebody, but you’re not dating, you can still be charged with family violence. In those circumstances, under federal law, you would not be prevented from possessing a weapon because a federal statute provides dating relationships, family members, or spouses.

On a family violence case, the person that may have been injured, will want to drop charges. That doesn’t mean the state will drop the charges. What happens in a family violence case is the state picks up the case. It becomes theirs; it is no longer the victim’s case. The fact that the person may want to drop these charges doesn’t mean it will get dropped. Likely, we’ll still have to vigorously fight the case.

The person that’s alleged to have been assaulted in a family violence case can take an affidavit of non-prosecution to the police station, but it is not their choice whether to drop the case. Once a case is filed, it becomes the state’s case. In most cases, I do not have a client have somebody come in to give a non-prosecution affidavit right away, even if they want to. I want to look and see what evidence is out there. I want to see what the state is saying happened. If the person still wants to come in and talk to me, I’ll have them come in and have them describe to me what happened, and what statement they want to make.

I also do not make just a basic non-prosecution affidavit. If they can add some facts to give it some more meat, that helps my client and if they’re confident that what they’re saying is truthful, I will have them add some additional facts. An example might be that the complainant, the person that was allegedly injured, started the altercation. If they’re adamant that’s what happened, we put it in the affidavit.

When I have somebody come into the office with a family violence charge, there are some questions that I’ll always ask. One is, who called the police? Was it a neighbor? Was it the alleged victim? Did you call the police? That all plays a role in evaluating the case. The other thing I want to know is, were there any visible injuries to the complainant? Another thing I want to know is, are there any pictures of the complainant? Maybe one of the most important things is, does the complainant want to prosecute you?

If someone comes in and they’re the ones that called the police and there were no visible injuries, and the person wants to drop the charges, that’s probably the best fact situation you can have in fighting one of these cases. It doesn’t mean it’ll go away, but those are probably the best facts. What I usually do is talk to the client, figure out what’s going on, and I tell them I don’t want to go into any great detail at this point. I also don’t want to talk to the complainant at this point. What I want to do is collect from the state all their evidence, including videos, police reports, statements that were made. I want to look at that before I talk to witnesses, before I talk to the complainant, because I kind of want to see what’s going on, and how the story has changed. If the complainant wants to drop the charges, very often I’ll ask somebody else to be in the room when I interview the person in case that person changes their mind or changes their story. I want somebody to be able to back up what was said to me.

In most cases, there is a strategy that will vary, but there are some common themes including trying to figure out how strong or weak the case is before we start interviewing and talking to everybody and seeing what evidence the police have.

Deadly conduct is a misdemeanor offense. There are a couple different ways that someone can commit the offense. One is that you just place someone in eminent danger, serious bodily injury, or death. Another way is discharging a firearm at a car or a home. Those are ways in which you can be charged with this crime. The fact that the gun isn’t loaded isn’t necessarily an affirmative defense. In fact, they’ll presume that that was reckless, and you could end up getting charged and even being convicted because you pointed an unloaded gun at somebody. It’s really important in those cases to get a lawyer to look at the facts, and to see if there’s some defensive issue to it.

It’s important to realize, also, that the purpose of the statute about discharging a firearm towards a home or car, was targeting gang violence. Today, I represented somebody many years ago who was cleaning his weapon in his home and it discharged, and went through the wall of his house and hit the neighbor’s house, and they actually charged him with that crime. It’s important to realize that this crime can take many different turns and twists that you can’t anticipate.

If you’re charged with criminally negligent homicide in Texas, you must be careful because it is kind of a slippery slope. You can be charged for that crime for basically negligent behavior. An example might be you’re speeding and you’re on your cell phone texting, and you get in a wreck. You could conceivably be charged with criminally negligent homicide. When you think of it, that charge is where you are undertaking some action that a reasonably prudent person ought to have known that there was an unreasonable risk of harm or death. It’s one of those offenses that is discretionary for the prosecutor. There are some offenses that are cut and dry. On a theft, did you take the item with intent to steal and walk out of the store? Did you possess the drug; yes or no? Some are much clearer cut.

With criminally negligent homicide, you have to get into the mindset. You get into the what a reasonable person is, and if they should have known. I think today a lot of people talk on their cell phones, and I think that people would say that doesn’t have that high-degree of risk that would warrant a charge. However, some prosecutor may disagree with that and say, you’re on your cell phone, driving down the highway, that’s criminally negligent homicide if you get in a wreck and kill somebody.

You can see where there’s no cut standards that are clearly out of bounds or in-bounds. There are some that are clearly out of bounds. If you’re driving 120 miles an hour, it’s at night, and you shut your lights off to evade the police, well, that’s clearly criminally negligent homicide. However, if you are going 20 miles over the speed limit, not on your phone, I would argue that it is not criminally negligent homicide, but somebody else may disagree. You need to get a San Antonio criminal lawyer, because the fact is that those offenses are not clear cut and very often you can convince a prosecutor that the person is overcharged.