Texas Criminal Defense Guide

Texas Criminal Defense Guide

The time after being accused of a crime in Texas is some of the most important.  The Texas Criminal Defense Guide was created by San Antonio attorney Kurt Gransee to help residents protect their future from one mistake.

If you’re facing criminal charges, your freedom, your rights, and your reputation are on the line. Don’t face the State of Texas alone. Hiring a criminal defense lawyer can be your best chance to rebuild your life. If you or someone you love is facing a criminal charge, contact us now to schedule your free consultation.

Getting Arrested and Charged with a Crime Is the Start of a Long Journey

Texas Criminal Defense GuideIf you’re arrested and charged with a crime, you’re at the start of a long journey through the Texas court system. There’s a lot on the line. You could lose your job. You could be evicted. You could lose custody of your children. If you’re a college student, you could be expelled and barred from returning. You could also lose your right to vote, own a gun, or the ability to qualify for federal student loans.

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With all of that stress comes pressure from the State. Should you plead? What happens if you go to trial? Does the State really have enough to prove you’re guilty? Should you really trust that law enforcement can and will follow through on their offer to help you or to tell the prosecutor that you cooperated?

Ask yourself whether you should put your freedom and your future into the hands of a public defender. Most Texas public defenders do their best to help, but they often have few resources and are extremely overworked. A private team of San Antonio criminal defense lawyers have the distinct job of looking out for your best interest while mounting a vigorous defense to protect your freedom and your rights.

How a Criminal Charge Will Affect a Professional

If you’re a professional and are facing a criminal charge, you won’t necessarily be cut any slack by the Prosecutor. In fact, you could lose your job and any professional license you hold. Professionals should consult with a south Texas criminal defense lawyer to determine whether a dismissal is probable with a zealous defense.

How to Choose a South Texas Criminal Defense Lawyer

How to Choose a South Texas Criminal Defense LawyerNot all south Texas criminal defense lawyers are the same. When you’re looking to hire a lawyer, look for the following traits:

  1. The lawyer is a well-respected member of the south Texas legal community.
  2. The lawyer has verifiable experience handling the type of charge or charges you’re facing.
  3. The lawyer has a verifiable track record of success with the type of charge or charges you’re facing.
  4. The lawyer treats you like a person and takes the time to answer your questions and explain the process.
  5. The lawyer is willing and able to mount a vigorous defense that fits your circumstances.
  6. The lawyer has both negotiation and trial experience.

While not mandatory, you can also look for a San Antonio criminal defense attorney who offers free consultations. This can be an important step to help you determine if the lawyer is someone you feel like you can trust. It’s imperative that you feel like you can be totally truthful with your lawyer.

How Crimes Are Classified in Texas

Crimes are classified as felonies and misdemeanors. Texas uses determinate sentencing. This means that the State has sentencing guidelines that help determine the punishment for a crime. Here are the classifications from least serious to most serious:

  • Class C misdemeanor – fines of no more than $500 and no jail sentence
  • Class B misdemeanor – fines of up to $2,000, up to 180 days in county jail, and up to three years of probation
  • Class A misdemeanor – fines of up to $4,000, up to a year in the county jail, and up to three years of probation
  • State jail felony –a state crime that doesn’t fit into the felony degree classification system, fines of up $2,000, between 180 days and two years in jail, and subject to probation
  • Third degree felony – fines of up to $10,000, a prison sentence between two and ten years, and the possibility of probation
  • Second degree felony – fines of up to $10,000, a prison sentence between 2 – 20 years, and the possibility of probation
  • First degree felony – fines of up to $10,000, a prison sentence between 5 – 99 years (or life), and the possibility of probation
  • Capital felony – life imprisonment or the death penalty

Factors That Are Considered During Sentencing

Factors That Are Considered During SentencingUltimately, no two charges are alike. The facts surrounding the situation can mean that some, all, or none of these factors are considered during sentencing. This is another reason why it is vital for you to seek out the help of an experienced south Texas criminal defense lawyer. The factors include:

  • Whether you’re a first-time offender
  • Whether you’re considered a repeat offender
  • Whether you’re considered an accomplice or the main suspect
  • Whether someone was harmed
  • Whether the commission of the crime was unlikely to cause injury to anyone
  • Whether the suspect was suffering from mental illness, including extreme stress
  • Whether the suspect acted in a way that would be considered especially cruel or destructive
  • Whether the suspect appears remorseful for what happened

If you’ve been arrested and you’re being charged with a criminal offense, schedule your free consultation with our south Texas criminal defense lawyers. Know your rights. Let us help you protect your freedom and your future.

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Frequently Asked Questions | Texas Criminal Defense Guide

What is the Difference Between Felony and Misdemeanor?

There are many types of felonies, and many types of misdemeanors, but generally, felonies involve the potential to go to prison while misdemeanors have the potential to go to jail. The difference is the maximum period of incarceration for a felony is up to life in prison, and on a misdemeanor the longest period that can be imposed is one year in jail.

There are felonies of the state jail, felonies third-degree, second-degree, and first-degree; those are increasing in severity. There are misdemeanors including Class A, which is the most severe; then there is Class B and Class C. The Class C misdemeanors are those that you go to municipal court for. Misdemeanors where you really have no risk of going to jail include speeding and littering; it’s a fine-only type offense. Class B misdemeanors are offenses like theft. A lot of first-time offender type offenses are Class B misdemeanors where you can go to jail up to six months and have up to a $2,000 fine. Class A misdemeanors are things like assaults and theft over a certain dollar amount. Those have a penalty range that can go up to one year in jail.

Most people that have clean records, other than traffic offenses, can expect there’s a very low likelihood that they’ll go to jail on a misdemeanor. On felony cases, if it involves a theft or something of that nature, the court’s going to want some restitution, some dollar amount paid back to the victim, to avoid going to prison.

In Texas, there are a lot of different categories. If you’re charged with one category, very often we can get the case dropped down to a lower category to lessen your punishment.

Should I Let the Police Search My House?

If police officers come and knock on your door and ask for permission to search, your answer should be, “Do you have a warrant?” If they don’t have a warrant, say no. You have no obligation to let them into your house. You don’t get any benefits for letting them in. In fact, instruct them to get a warrant. I suspect if they had enough evidence to get a warrant, they would already have one.

Should I Let an Officer Search My Car?

In Texas, if a police officer asks to search your vehicle and search your trunk, the answer ought to be no. There are some circumstances where an officer is going to be able to search your car, regardless if you give consent or not. If he stops you for a criminal offense and you’re driving the car, and he’s going to arrest you, then he can do what’s called an inventory search of your car. He’s going to be able to search your car anyways.

If an officer just asks to search your car – he didn’t stop you, he didn’t pull you over – the answer ought to be no because he needs a warrant. Secondly, you don’t know always what’s in your car. Other people use your car, you’ve had passengers in your car, and the fact is there could be something found in your car that will be attributed to you and get you charged with a criminal offense.

Should I Go Down to the Police Station for Questioning?

If a police officer or detective calls you and says, “I would like you to come down and give your side of the story to an incident,” I would suggest you immediately call a criminal defense lawyer that’s handled those types of cases or handled that situation before. Normally, what I instruct my client to do is have me call the officer and say, “He’s not going to come down and meet with you. That’s my advice.” You’re acting on the advice of a lawyer; do not refuse to go down.
Should I Go Down to the Police Station for Questioning
I would suggest that you tell the officer you’re going to talk to a lawyer first because there is some risk in going down and talking with the police officer. In 25 years, I’ve probably gone down two or three times with a client, and met with police officers, and met with the detectives, and ultimately those cases were dismissed. However, it’s very risky to go down, especially without a lawyer, because normally when you walk in the room, the detective will tell you you’re free to leave, you’re not under arrest, you’re there voluntarily, and that puts you at ease. But if you’re not under arrest, and you’re free to leave, then he doesn’t have to read you your Miranda rights – he doesn’t have to describe the risk you’re taking – and so people very often think they can go in and talk freely which is very risky.

Very often, you can say things that are very innocent, things you would think wouldn’t be able to be used against you, but the fact is the officer may find a way to use that incident against you. If you find out the date of an alleged incident, you may end up having a defense to it. You may be able to have an alibi, you may have been out-of-state, but when you meet with the officer, you don’t probably know the exact date; you don’t know the allegation. Very often, they’ll get you to commit to something. Were you drinking? Is it possible you were intoxicated? All those questions could come back and hurt you. It’s best to talk to a lawyer first and make an informed decision about whether you want to go down and meet with the police officer.

How Are Juvenile Crimes Handled?

In most juvenile crimes, if the juvenile has no criminal history or very little criminal history, very often the prosecutors will allow some sort of diversion program to allow them to get out of the criminal justice system. This may be supervised for some short period, but basically, it’s more trying to change behavior and less about punishment. Now, if someone’s charged with a very serious crime as a juvenile, that can all change. They can even be diverted into the adult court system. Generally, a misdemeanor crime involving a juvenile will involve getting them some sort of program to change behavior. If they successfully complete the program, the case is dismissed in most cases.

What Are the Simple Assault Penalties?

The penalties for a simple assault are up to a $4,000 fine and up to one year in jail. Of course, very seldom does that happen where somebody gets the maximum penalties. In most cases, a simple assault would involve a period of probation, community service and a small fine. The period of probation usually extends for a year, and that year can be terminated early.

If there are issues regarding self-defense, or mutual combat, a lot of times those cases can either be won at trial or they can be reduced. You might be offered some alternative program to get you out of the criminal justice system. With a good lawyer, you can sit down and talk about those options and develop a game plan for handling your charge.

How Do You Defend Assault Charges?

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.

What Happens If I’m Charged with Possession of Cocaine?

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.
What Are the Shoplifting Penalties
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.

What Happens If I’m Charged with Possession of Heroin?

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 we’re successful at that point, the case gets thrown out and you can even expunge it.

What Happens If I’m Charged with Possession of Prescription Drugs?

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. Very often on that type of case we can get the person diverted into some sort of program that allows them to avoid a conviction and allows them to even avoid conviction to the extent where it can be expunged down the road. You really need to avoid that conviction at all costs, and very often you can.

How Should I Defend Myself Against a Distribution of a Controlled Substance Charge?

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.

What is a Motion to Revoke?

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.

What Are the Shoplifting Penalties?

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 Are the Shoplifting Penalties
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.

How Can We Defend a Burglary Charge?

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.

What is Forgery?

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.

What Happens If I’m Caught with a Stolen Credit Card?

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.

What If I’m Arrested for Domestic Violence?

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.

Can the Plaintiff Drop the Charges for Domestic Violence?

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.

What Are Strategies for Fighting Family Violence Cases?

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.

What is Deadly Conduct?

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.

What If I’m Charged with Criminally Negligent Homicide?

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.
What If I’m Charged with Criminally Negligent Homicide
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.

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If you are facing a difficult legal situation, please give our office a call to meet with our San Antonio criminal defense attorney. We are here to fight for your justice and will do so fiercely.

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