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A face-to-face meeting with Walter Reaves will help answer all of your questions, but until then, here are a few of the most frequently asked questions we hear.
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What is PTIP or pretrial diversion?
Pretrial diversion (or pre-trial intervention) is a fairly common way to resolve cases especially minor misdemeanors. It is not available in every county, and the way it is set up and administered can vary depending on which county you are in. In McLennan County, it is formally called the Pre-trial Intervention Program, or PTIP for short.
Here, I want to explain what it is and how it operates so that you can have a basic understanding of what's involved. This explanation covers McLennan County, so if you are in another county this may not be the way the program works there - if they even have one.
Difference between pretrial diversion and probation
The best way to explain PTIP, is by comparing it with probation. In a probation case - whether it be a regular probation or deferred adjudication - you go to court and enter a plea. In a deferred adjudication case the judge finds that there's enough evidence to find you guilty and defers a finding of guilt. In a regular probation case the judge would find you guilty, and then place you on probation for a certain term. For example you might be placed on probation for 15 months.
The terms (or conditions of) of probation, can vary, but there are several that are imposed in every case. The obvious one is that one you don't get in any trouble - which is pretty basic; after all, everyone is supposed to that do that anyway. Generally, you will have to report to a probation officer at least once a month; you will also have probation fees to pay which are usually $60 a month.
Most probation orders have some type of class that you have to attend, and sometimes there will be more than one. There will usually be some amount of community service, and there may be other terms that are that are specific to the particular type of case you have.For example, assault cases, especially family violence cases, may have some type of anger-management class. There may be other types of cases that involve different types of classes or programs; another example is theft cases, which typically have some type of financial planning class.
In a deferred adjudication case, once the term of probation expires the court would enter an order dismissing the case and discharging you from probation, In a regular probation case at the end of the term there would be an order discharging you from probation.
Pretrial intervention works in a similar way, although there are some significant differences. A big difference, at least in McLennan County, is that pretrial diversion is not administered by the court and it's not administered by the probation department. Instead, it's a program that runs out of the district attorney's office. That means that unlike a normal probation case where you would report to a probation officer, in a pretrial diversion case you don't report to anybody. Instead, you take care of whatever is required, such as community service and completion of classes, and then you show proof that you've done it to the pretrial diversion office.
Conditions of pretrial diversion
The terms of pretrial diversion are generally similar to the terms that would be imposed in a probation case. There are classes, community service and there's always some type of fee involved, although in pretrial diversion you're not actually paying a monthly fee so you don't have that cost.
Because of the advantages you are receiving under pretrial diversion, and because there is not anybody watching over your, the terms of pretrial diversion may be more stringent than you might see in a probation case This is especially applicable true in cases involving alcohol such as DW.I In regular probation you would be prohibited from drinking, and you would have random UA’s and random drug tests to make sure you weren't drinking. If your breath test was high or if you're a repeat offender you might have an order that required you to impose an interlock on your car.
If you are granted pre-trial diversion in a DWI case you're probably going to have some type of monitoring that's going to be far more stringent than what would be imposed if you were on regular probation. You are going to start out with some type of monitoring that is done on a daily basis. The most common one is a remote breath device which is something that you have to take with you, or have available, and blow into it a few times a day to verify that you haven't had anything to drink. There may also be a requirement that you submit to hair follicle testing to make sure that you haven't been drinking over the last 90 days. Those conditions are generally imposed at the beginning, and continue for three to six months. After that condition expires, there's generally a requirement for an interlock for an additional few months.
When will your case be dismissed
You probably want to know what happens on your case if you are accepted into PTIP. In misdemeanor cases, once you sign the agreement the case is dismissed which means that you no longer have a case pending in court. If there's no case pending in court then it would just be refused so you wouldn't end up with the case in court. Felony cases are handled differently, since they are more serious. Instead of dismissing the case when the agreement is signed, they will wait to dismiss the case until the diversion period is completed.
You have to admit guilt when you accept pretrial diversion
There are a couple of things you need to be aware before you decide to seek pre-trial diversion. The first is that under the program in McLennan County, you are required to sign an agreement that admits guilt. That means that it is not available if you are contesting your guilt, or don’t want to admit to committing the offense. While at first blush that might not seem fair, the reasoning does make sense. You should not be agreeing to any type of conditions if you didn’t commit an offense. Also, as a practical matter, if you are don’t believe you are guilty you are going to resent the conditions imposed on you, which makes it less likely that you are going to successfully complete the program.
Another thing to be aware of is that you are usually required to admit the offense you were charged with. Sometimes, an officer files a more serious charge than the evidence realistically supports. The attorney screening the case might recognize that, and file a lesser offense. Alternatively, your lawyer may work with the prosecutor to get a reduced charge. If you enter into pre-trial diversion agreement, especially if you do it early before charges are formally filed, you may have to accept the offense you were charged with.
Hopefully this provides you with a basic or general understanding of pretrial diversion and how it works and as always if you have any questions about the specifics or how it operates or the facts of your case please let us know
Can you be arrested for walking while drunk?
Recently I've had a couple of cases where intoxicated individuals in the Waco Texas area have been arrested even though they weren't driving. It might sound like a silly question, but the truth is you CAN be arrested for walking while drunk.
The actual offense is Public Intoxication. Fortunately, it's only a Class C misdemeanor, which means you only get a ticket. Unfortunately, you can also be taken to jail.
The offense of public intoxication involves more than appearing intoxicated in public. You also may appear to be a danger to yourself or others. The typical situation involves someone on the road, or out in a public place. Someone might be at a party, and decide to do the responsible thing and not drive home. They decide to walk but don't do it very well. Maybe they're walking in the street, or maybe they don't have a clue on how to get home. The police are notified and have a choice. Do they let the person go, and possibly get hit, or cause an accident, or do they get them off the street? You can guess the decision they usually make. What happens next varies. Some officers might allow you to find someone to come get you. Others might just take you to jail to sleep it off. The next morning you are free to leave and are told when to show up in court.
Public intoxication is very subjective. Tests are rarely given, so there is no evidence as to how intoxicated you are. Unlike DWI, you are presumed to be intoxicated when you reach a certain level. Instead, it's up the officer to determine if you pose a danger to yourself or others.
If you're thinking you can't win, you might be right. You certainly don't want to get behind the wheel, but you might still get arrested if you try to walk home. The good news is that it won't be as serious. So, the lesson is to find a friend to take you home or call an Uber.
What is reasonable suspicion?
One of the standards used in criminal cases is “reasonable suspicion”. This standard applies to police encounters short of an actual arrest. The most common encounter is a traffic stop. Since your freedom is being infringed on – even if just for a little while – there must be a reason to do so. The standard the courts will apply is “reasonable suspicion.” So what does that mean?
Here’s an excerpt from an opinion by the Houston Court of Appeals in State v. Bernard, 503 S.W.3d 685 (2016):
A warrantless automobile stop is a Fourth Amendment seizure analogous to a temporary detention, and it must be justified by reasonable suspicion. Berkemer v. McCarty, 468 U.S. 420, 439, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984); see Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011). The reasonableness of a temporary detention is determined from the totality of the circumstances. Leming, 493 S.W.3d at 562; Zuniga–Hernandez v. State, 473 S.W.3d 845, 848 (Tex. App.–Houston [14th Dist.] 2015, no pet.). If an officer has a reasonable basis for suspecting a person has committed a traffic offense, then the officer legally may initiate a traffic stop. Id. Reasonable suspicion is present if the officer has “specific, articulable facts that, combined with rational inferences from those facts, would lead [the officer] reasonably to conclude that the person ... is, has been, or soon will be engaged in criminal activity.” Derichsweiler, 348 S.W.3d at 914; Zuniga–Hernandez, 473 S.W.3d at 848. “An officer's stated purpose for a stop can neither validate an illegal stop nor invalidate a legal stop because the stop's legality rests on the totality of the circumstances, viewed objectively.” Id.
Unless you’re a lawyer, you probably wonder what all that means. Basically, it means the officer has to have a reason he can put into words as to why he thinks you committed an offense. Speeding cases are pretty easy when radar is involved – "I was using my radar, and clocked the car going XX." Most traffic offenses are also pretty simple – "he didn’t use a turn signal when changing lanes," or making a turn, or didn’t stop at a stop sign.
The harder cases (and better cases for defense lawyers) are when the stop involves some subjective determination – such as following too close or failing to signal 100 feet before turning. Generally, those decisions are based on estimates – which must be reasonable.
There also can be issues when the interpretation of a statute is involved. An example is a case I had where the defendant was charged with failing to signal a lane change, even though he was in a turn lane. We won the motion to suppress because the judge found that wasn’t a violation (after having to dig up some really obscure documentation on lane markers).
Something people are sometimes surprised to learn is that the subjective intent of the officer is not an issue. For example, an officer might see you driving down the highway and think you look like a drug dealer so he starts following you. He cannot stop you because of his suspicions, but if you commit a traffic offense while he’s following you, that’s fair game. It also can go the other way. The officer may believe you’ve committed a certain offense, but if his interpretation of the law is wrong, that doesn’t validate the stop.
In case you’re wondering, reasonable suspicion is not enough to justify an arrest. There is a higher burden required to actually place you in custody. I’ll address that in another question.
If you want more information on the criminal justice system, get a free copy of our "Layman's Guide to the Criminal Justice System".
I made bond - now what?
You got arrested, found a bondsman, and got out of jail. You don't want to go back to jail, so there a few things you need to make sure you keep up with.
Many times the bond paper you receive will have a court date. In McLennan County, whether or not you have a court date depends on the nature of the charge. If you were arrested for a misdemeanor offense, you will probably have a date. If it's a felony, the bond may say "Instanter".
The term "Instanter" technically means at that moment, or instantly. However, it doesn't mean you have to go to court as soon as you get out of jail. Instead, it's used as more of a placeholder. By using this term, it means you will appear in court when directed. In felony cases, the case has to be presented to a grand jury. That may be done fairly quickly, or it may be several months. You won't have a court date until you are actually indicted. Once that is done, a case number and date will be assigned to your case, and the Court will set a date to appear for arraignment.
Misdemeanor cases are treated differently because the case doesn't have to go to the grand jury. Instead, the District Attorney can file an information, which serves the same purpose as an indictment. That is usually done more quickly. As with an indictment, once the information is filed you will be assigned a case number and a court.
Just because there is a date in the bond, that doesn't mean that is the date you will go to court. Sometimes the District Attorney may want to do some additional investigation, so they will wait to file an information. If they are not ready by the date specified in the bond, then you don't have to appear.
How do you receive notice of your court date?
When you were arrested and booked into jail they wrote down your address. You need to make sure that is correct because that is where notices are sent. Normally, the Court will send notice to you if you are not represented by an attorney. The Court doesn't know that unless the attorney notifies them. If you haven't hired an attorney, it is your responsibility to keep up with your court date and make sure you appear.
Since the bond company has promised the Court you will show up for court, they are usually pretty good about keeping up with court dates. They are also usually good about making sure you know about your court dates. However, remember, it is still your responsibility to show up. If you don't the bondsmen is only out money; you, however, lose your freedom by going back to jail.
Keeping your bondsmen happy
You should always remember that you are out of jail because of your bondsmen. If you decide to "go off" of your bond, you can go back to jail. Most bonding companies have a schedule for checking in. Make sure you comply with that. Also, if you owe them money, make sure you pay it. They are under no obligation to stay on bond. If you don't pay or don't check in like you're supposed to, they will go to court and ask to be released from your bond.
What happens if you don't show
Failure to appear for a court is a serious matter. Not only can your bond be revoked, it is also a new offense. If you are on bond for a felony, the charge will be a felony. Likewise, if you are on bond for a misdemeanor, it will be a misdemeanor. That means that instead of one charge, you now have two.
Mistakes do happen. The best advice if you miss a date is to promptly notify your bondsmen, and your attorney if you have one. If there is a legitimate reason for missing, they may be able to avoid having the bond revoked. It's important to do this quickly because the longer you wait, the more likely it is that things are going to turn out badly.
If your bond is revoked, you will have to post a new bond. Sometimes you will have to go back to the court and have another bond set. Other times the court will set a new bond when the old one is revoked. It is always going to be higher, which means you are going to be out more money. You also will lose all the money you put up to post bond in the first place.
Take this seriously
It always amazes me how cavalier some people seem to be about court dates. While most people are diligent about keeping up with them, some don't seem to be concerned at all. This is a serious matter, and you need to take it seriously. I've seen too many take a simple case and turn it into a big problem because they didn't take it seriously. Don't make that mistake!
What happens if I don't show up for court?
Something we see fairly often is people who don't show up for a court appearance. This occurs most often on the first court appearance. If you don't hire a lawyer fairly quickly - or if your lawyer doesn't properly notify the court - it's up to the bondsmen to notify you after charges are filed and you have a court date. Most of the time they do this, but sometimes they don't. If you've moved, the notice may have been sent to the wrong address.
When you don't appear the court will forfeit your bond, and issue an arrest warrant. That means you will be re-arrested, and you will have to bond again - usually at a much higher amount. Most times the authorities will actively try to arrest you; if they can't locate you the warrant will show up on a records check if you are stopped for any reason.
Most times the failure to appear is the result of a mistake - or sometimes stupidity. If you have an attorney, most courts will notify your attorney - who can go to the judge and try to convince them to withdraw the warrant. Often that is successful, but you better not miss another one.
In addition to forfeiting your bond, the failure to appear for a court appearance can also be a separate charge. The prosecutor can choose to file a new charge for failure to appear. If the original offense is a misdemeanor, the new charge will be a felony. A bond will be set on the new charge, which you can expect to be high. Most times prosecutors don't file a new charge unless the failure to appear is flagrant.
No one wants to go to court and face punishment, but it's not something you can ignore. If you simply ignore the case or intentionally try to avoid going to court, your situation is going to be far worse. Not only will you add a new charge but the result on the original charge will no doubt be worse than it would have been originally.
Can the Judge send me to jail even if I get probation?
The recent case of former Dallas Cowboy Josh Brent has generated a lot of discussion. Most of the discussion has focused on whether probation is appropriate in a case where a death occurred. Many have also wondered how the judge could sentence him to 180 days in jail when the jury gave him probation.
To understand the answer, you need to understand how probation works. Probation - (or community supervision) is nothing more than a suspended sentenced. You are sentenced to a term in prison or the county jail, and that sentence is suspended. Instead of going to prison or jail you are placed under supervision. If you violate the conditions of supervision then your probation can be revoked and the sentence can be imposed. In Brent's case the jury sentenced him to 10 years in prison, so if he violates probation he can go to prison for 10 years.
Once you are released on probation, you are under the supervision of the probation department. The probation department basically works for, and reports to the judge. The judge is the person who ultimately decides whether you have complied with the conditions of probation, and if not, what sentence to impose. In addition to adjudicating violations, the judge also has the authority to impose the conditions of supervision. Most of those conditions are fairly standard, such as staying out of trouble, reporting regularly, and working or going to school. Some conditions are tailored to the type of offense; for example, anger management classes are often required in assault cases. The judge can also order you to receive treatment, such as drug or alcohol counseling.
One of the conditions of probation a judge can impose is time in jail. On the surface that doesn't appear to make a lot of sense since your sentence is being suspended. However, the theory is that some time in jail is necessary to make sure the person realizes how serious the case is. The maximum amount of time the judge can impose is 180 days, which is what was assessed in Brent's case.
There are two important aspects of time imposed as a condition of supervision. The first is that it is day for day - so if you are ordered to serve 30 days, you will spend the whole 30 days in jail. The other aspect is that you do not receive credit for the time in the event your probation is eventually revoked. Since it's not part of the sentence but is a condition of probation, you are not entitled to credit against any sentence that may be imposed.
You might wonder whether this applies to plea bargains, and it does. Most plea offers involving probation recommend that probation is granted, and may even recommend specific terms of probation such as attending certain classes. However, the judge is not limited to those, and can impose any condition he/she believes appropriate. More than a few defendants have been surprised by having to go to jail, instead of directly to the probation department after sentencing.
Most people think that if they receive probation they will walk out of the courtroom and start their probation. As you can see, that is not always the case. Fortunately, lawyers who regularly appear before a certain judge generally know the type of cases where jail time may be imposed and will discuss that with you.
Will my case go to trial on that date it is set?
Most people understand that there are far more cases on the dockets of most courts than can be tried. That means that on any given week there may be as many as 25-30 cases set for trial. Some of those may end up pleading guilty, but there are usually several defendants who are want to go to trial. The way those cases are handled varies among the courts.
In McLennan the two courts that handle felony cases - the 19th and 54th District Courts - handle cases basically the same. Cases are numbered from one until they run out of cases - generally starting with the person who has been in jail the longest. The number one case is the one that will go to trial unless the court either grants a continuance, a plea agreement is reached, or the case is dismissed. That means that theoretically, everyone set for trial that week has to be ready to go.
Even though there may be 25-30 cases set for a trial, the fact is there are only a limited number of prosecutors in each. While they might be able to get 2 or 3 cases ready, they are not going to get them all ready. No only is it not practical, its also not very effecient because you would have to keep issuing and re-issuing subpoenas if the case was not reached. That usually means that if your case is down the list, there is no realistic chance you are going to trial. It also means that you may end up getting ready for trial more than once.
It may seem like a waste of time to set more cases than you can get ready for and try. However, it does serve a purpose. One is to keep the case on the docket, so it can eventually end up at the top. The other is to encourage resolution. If the case is going to be a plea - and and agreement has been worked out - the existences of a trial settting may be incentive to go ahead and get it done.
While lawyers understand how the system works, it's always confusing for clients. Your lawyer should keep you advised about all the court settings, and the likelihood of going to trial. While there is always stress involved, knowledge about how the system operates and how it impacts you can at least lessen some of that stress.
What's the difference between a Nolo Contendre Plea and a Guilty plea?
The recent plea of former judge Ken Anderson in Williamson county has many people wondering what a "Nolo Contendre" plea is, and how is it different from a guilty plea. There are several differences, athough in terms of what happens to you there's no real diffence.
With a guilty plea you admit you did what you are charged with, and are guilty of the offense. With a Nolo Contendre plea you don't admit guilt; instead you admit the State has enough evidence to convict you; basically you concede that if you went to trial you would be convicted.
So why would you plead Nolo Contendre instead of Guilty? The biggest reason is that a defendant doesn't want to admit guilt; there's some distinction in most people's minds between pleading guilty, and conceding you would be convicted if you went to trial. Legally, a Nolo Contrende can't be used against you in civil trial, although that's rarely an issue.
Some people will try to claim they weren't convicted after a nolo contendre plea but that's not true. The judge still finds you guilty - the end result is no different from when you plead guilty, or go to trial and are convicted.
The policy on nolo contendre pleas differ among different jurisdictions. Some judges will not accept a nolo contrende plea; they may not accept them all cases, or in only a few types of cases, such as sexual assaults and cases where probation is being offered. Generally that is more likely to happen in felony cases than in misdemeanor cases. Some District Attorney's also may not offer a plea bargain if the defendant is going to plead guilty.
Rarely do you get any benefit out of entering a nolo contrendre plea as opposed to guilty. The opposite may instead be true - you may be jeopardize an otherwise good deal that has been worked out. As with most things, this is something that should be discussed with an experienced lawyer who is knowledgable of how things work where your case is at.
How many times will I have to show up in court?
While it isn't the first question most people have, at some point you want to know how many times you are going to have to take off from work and appear in court. Like most things, the answer is it depends.
Generally, you are going to have show up to court fewer times for less serious charges. After you are arrested you are given a court date in McLennan County. That is an appearance date and is mainly for tracking purposes. If you hire a lawyer before this date, you don't have to show up. Instead, your lawyer will call in and enter an appearance for you. Depending on what you have discussed, they may put the case on the trial docket or the plea docket. Those designations are not final since you usually don't know what you are going to do at this point.
If the case is set on the trial docket you will get a pre-trial date. That is a date where the court takes announcements, and either assigns a trial date, or schedules a date to hear pre-trial matters. If an agreement is reached the case can also be set for a plea. Many times the case will be passed, and you will receive another pre-trial date. You do have to appear for these pre-trial hearings. Sometimes there may be only one, while in other cases there may be multiple hearings.
If the case is set for a plea, you will get a court date - which is always on Thursdays. Those dates are often re-set, but you don't have to be present for that.
Some people only have to show up for court one time - when they enter a plea. Others may have to show up several times if the case is set on the trial. However, rarely will you have to show up more than 3-4 times.
As you might guess, felonies are entirely different. Your obligation to show up in court doesn't start until your case is indicted. Once that occurs you are given an arraignment date. You can waive that by signing a written document and avoid having to show up in court. Once that is done, the case is set for trial, and you will get a date for an announcement docket. The purpose of that hearing is to ensure that your lawyer and the district attorney talk about your case and see if it can be resolved. If you reach an agreement, it will be set for a plea. If not, it will be set for trial. Many times you need more time, and the case will be set for another announcement docket. As of the time of writing this post (October 31, 2013) you don't have to appear for these dockets. Instead, your lawyer will take care of that, and submit the necessary form.
If the case is set for a plea, you will have to show up for that. If the plea agreement is for probation, you will not be sentenced then. Instead, a pre-sentence report will be ordered, and you will be given a new date to come back for sentencing.
If the case is set for a trial, you will get a pre-trial date. You must show up for this. At the pre-trial, the case will either be numbered for trial or passed. If it is numbered for trial, a status hearing will be set for the following week. The process here varies according to which court you are in. If you are in the 19th District Court you don't have to show up for the status hearing. If your case is not reached when it is set for trial and another pre-trial date is set you also don't have to show up for that. If your case is in the 54th District Court though, you must show up for all your court settings.
Even if your case is set for trial it is probably not going the first time it is set. For the most part, priority is given to the oldest cases and the people who have been in jail the longest. It is not uncommon for cases to be set on the pre-trial multiple times. If you are in the 54th, that means you may have to multiple court appearances - sometimes as many as 10 or more.
CAUTION - The above information is specific for McLennan County and Waco. Each county handles their docket differently, and as you can see, even courts in the same county may handle their docket differently. If you are in another county you need to talk to your lawyer to make sure you understand how the system works there.
No matter whether you have to show up in court once, or multiple times, it is EXTREMELY IMPORTANT that you show up each and every time - and ON TIME. If you don't show up or show up late, your bond can be forfeited and you may spend the rest of time in jail while waiting for your case to be reached.
When can I get an evidentiary hearing?
One of the more common questions I get is whether you can get an evidentiary hearing. The question usually comes up in cases where the evidence is weak. Sometimes clients simply want a hearing where the state has to show all their evidence. Unfortunately, the answer in both situations is no.
Many people believe that a judge can dismiss a case if he or she believes there is insufficient evidence. They do have that authority, but not until after the trial starts. Then they can grant a directed verdict after the State rests. Before the trial starts though, a judge cannot force a prosecutor to dismiss a case. That's a hard concept for some people to accept.
A judge's role is to basically referee the trial, and the proceedings leading up to trial. If there is evidence that needs to be suppressed, the judge will make that decision. The judge can also make decisions on whether certain evidence can be disclosed, or tested. The judge will also make pre-trial rulings that control how the case will be presented. At no time, however, is the judge presented with all the evidence the State has.
A judge in Texas also cannot force the State to show all their evidence (Starting on January 1, 2014, the State had to begin to provide offense reports to a defendant's lawyer). They can order the State to allow the defense and their experts to look at the evidence, but the actual evidence remains with the State.
There are a lot of differences between criminal and civil trials. Even though life and liberty are at stake, discovery is more limited, as is the judge's control over the case. That's something I've never understood - and after more than 37 years as a criminal defense attorney, I'm sure I never will.
What should I do if I'm arrested while on probation in Waco, Texas
Even if they didn't tell you, you already know that you're not supposed to commit another offense while on probation. Every order granting probation (or community supervision) in Waco, Texas contains the condition that you commit no offense against the laws of the State of Texas, any other state or even the federal government. That even includes minor crimes such as speeding or other traffic offenses.
So what happens if you did get arrested for a new charge?
There are several things you need to know. The first is that it really makes no difference whether you are guilty or not. While that will be an issue later, it's not something that's important now. Every probation order I've ever seen has the condition that you report an arrest within a certain amount of time - generally 48 hours. That means that if you don't tell your probation officer you were arrested - even it's a bogus charge - you've committed a probation violation. So do it!! The worst thing you can do is nothing, and have your probation officer call you up and ask about it.
So what happens after you tell them you've been arrested, or they find out on their own? It depends on a lot of factors, such as how long you've been on probation, what you've done, and how serious the charge is. The options the probation officer has may be limited by the nature of the charge and the official policy. In many places, an arrest for a felony requires the officer to request a motion to revoke probation. In other places, and in other situations, they may handle it within the probation system - such as modifying the conditions of probation to include additional classes or counseling, or even weekends in jail.
Most people are worried about whether they will be arrested if they go in and report an arrest. The short answer is not usually. A probationer is generally not arrested unless there is a warrant for your arrest. To obtain a warrant the probation officer will submit the case to the District Attorney's office, who will file a motion to revoke probation and request a warrant from the judge. That takes some amount of time, which means a warrant may not be issued for several days - or several weeks, depending on the practices of where you are.
If an arrest warrant is issued, you will be taken to jail, and have to post bond to be released. Generally a bond amount is set when the judge issues a warrant. In some cases, the judge may deny bond - especially if the arrest is for a serious offense. Your probation officer may or may not tell you a warrant has been issued. If you've always been cooperative with them they will usually let you know so you can make arrangements to post the bond. In other cases, they may just wait until your next reporting date and have you arrested at the office.
You might wonder what happens if the arrest is not justified, and you aren't guilty of the new offense. If a motion to revoke is filed you will have a hearing, and have an opportunity to present evidence that you didn't commit the offense. But remember, they have to prove the offense beyond a reasonable doubt. The burden is the preponderance of the evidence, which is a much lower burden. That means that if you couldn't be convicted of the new charge, your probation may still be revoked.
While a new arrest is not a good thing, the worst thing you can do is ignore it. It's not going away, and your probation officer will always find out about it. It's better they find out from you. While it's difficult to do that, it's something that has to be done.
The best advice - hire a lawyer
Time is critical in revocation hearings. You may have a hearing scheduled within a few weeks of your arrest. That means it's important to do something fast, which includes hiring a lawyer. An experienced criminal defense lawyer can help with securing a bond in some cases, or negotiating a resolution with the District attorney's office. They can also help you understand what you are looking at. In McLennan County, all violations are taken seriously. If it's serious enough to get a warrant, you definitely need to talk with a lawyer to understand your options. Don't wait until its too late!
If you are on probation or community supervision in McLennan County, or any of the surrounding counties such as Bell, Hill, or Bosque give us a call at 254-296-0020 and see if we can help.
Are there time limits for filing criminal charges?
This week in Waco the State is prosecuting a murder case where the murder happened 18 years ago. When some people see a case like this, it's not uncommon to wonder how long the State has to file charges against someone. There are time limits - which are different according to the type of case it is. As you would probably guess, the more serious the charge, the longer the State has to file it.
What governs the time for filing charges is the Statute of Limitations. In Texas, that is found in Chapter 12 of the Texas Code of Criminal Procedure. Art. 12.01 addresses the time limits for felonies. For some offenses, there is no time limit. That includes murder and manslaughter, as well as most sex offenses where the victims are children.
There is a 10 year limit for certain types of theft as well as forgery, injury to the elderly or a disabled person, sexual assault and arson.
Financial offenses such as misapplication of fiduciary property, or property of a financial institution, securing the execution of documents by deception, false statements to obtain property or credit, money laundering, credit card or debit card abuse and use or possession of identifying information are all subject to a seven-year limitation.
Most other offenses are subject to a five year limitation period.
As you can see, there are several different periods, along with a number of rules concerning how you calculate time. No lawyer I know of has that list memorized. However, you should know enough to know when should you check and see if its an issue.
Misdemeanors are little simpler. The limitation period is two years.
Limitation does not come up very often because most cases are prosecuted fairly promptly. However, when it is, it must be investigated and pursued. If you are outside the limitations period - and there are no exceptions - the case must be dismissed. It makes no difference how guilty you may be.
As with any legal issue, you must rely on the advice of a competent criminal defense attorney. Time periods change, and there are exceptions which may apply in any case. You need a lawyer to investigate and review the case and determine whether it is something you might be able to take advantage of.
What is the law of Self-defense in Texas?
In the wake of the George Zimmerman/Trayvon Martin verdict, there's been a lot of discussion about self-defense. Unfortunately, many of the reports in the media have been misleading, if not downright false. So to set the record straight, here's the definition of self-defense according to Texas law. The same law that applies in Waco or McLennan County, or any other city and county in Texas.
Self-defense is referred to as a "justification" - that is defined in Section 9.02 of the Texas Penal Code as something that is a "defense to prosecution". Section 9.31 sets for the general requirements of self-defense. Generally, force is justified "when and to the degree necessary to protect the actor against the other's use or attempted use of unlawful force." The individual must have a "reasonable belief that the use of force is immediately necessary.
So to start, force is justified when an individual has a "reasonable" belief. The use of force must also be immediately necessary. You can't walk away and then come back and assault someone.
There are some limits on the use of force. Those include:
- the person did not provoke the person against whom force was used
- the provocation is not strictly verbal - you can't assault someone just because they called you bad names
Under Section 9.31 the use of force is limited to the force used by the other person. For example, if someone hits you, you can't pull out a knife and stab him.
There are special rules which govern the use of deadly - such as using a weapon. Generally, you cannot use deadly force unless it's immediately necessary to protect against the other person's use or attempted use of deadly force. In other words, you have to reasonably believe someone is trying to use deadly force against you.
You are also authorized to use deadly force if it's necessary to prevent the imminent commission of "aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery or aggravated robbery." You can also use deadly force against someone who "unlawfully and with force" enters your habitation, vehicle or place of work.
So there's the law of self-defense. The concept is basically pretty simple. You can protect yourself and others, but only to the extent that it's necessary. Your decision must be reasonable, which is usually where the difficulty comes in when establishing the defense. You have to convince jurors you acted reasonably - which is where a lawyer's skills are necessary.
Walter Reaves has over 30 years of criminal defense experience. If you have been arrested for defending yourself and need help, contact our office at (254) 296-0020.
Should I take a polygraph?
If you are the target of an investigation - i.e. a suspect - you might be asked to take a polygraph. Should you take one or not? As you might guess - since this is advice from a lawyer - the answer is it depends.
The answer usually depends on why they are asking you to do it. They might be convinced you are guilty and want you to take one and fail so they can get a confession out of you. Or they might hope to get a confession before you even take it. How do they do that? If you fail, they tell you the results and use all the interrogation techniques they have been taught - which is usually to convince you that you'll be better off - and feel better - if you just admit what you did. Some police polygraphers also talk with the person before they even take the test, and convince them they would better off confessing before they take the polygraph and flunk it.
Sometimes investigators do not know who to believe. While this situation is rare, they might want something to fall back on - which would be a polygraph. This may happen in cases where it's not clear what happened, and there are two or more people telling equally convincing stories.
The problem with making this decision is that polygraphs are not always accurate - that's why they can't be used in court. A recent story shows that one particular machine has a history of problems that have largely been ignored. That means that you might fail even if you are telling the truth. If you truly are innocent and you fail, you suddenly become a suspect.
So do you look guilty if you refuse? Maybe - but what difference does it make? The police still have to investigate and obtain evidence. If you refuse they will probably look harder. On the other hand, you also appear guilty if you fail a polygraph - and most police officers won't even entertain the idea that the test was wrong.
The decision to take a polygraph is not one you should take without talking to a lawyer. Generally, if I don't know anything about the investigation my advice is always going to be not to take one. If I'm convinced the police simply want to use the polygraph to eliminate the individual as a potential suspect I might be more inclined to recommend it; that's only if I don't think there's a possibility the investigation will re-focus on them if they fail. The decision is not one that should be made without knowing as much as you can about the evidence - both from the police and the client.
Even if you do decide to take the polygraph, who administers it is important. It is best to have it done by someone not affiliated with law enforcement. It is even better to make arrangement for the test yourself.
You probably have more questions now than when you started reading this. There's a reason for that - as I said at the beginning the answer is "it depends." You can only make the decision after knowing all the facts and evaluating the risks and rewards. An experienced lawyer is the best person to make that decision - it will be worth whatever you pay.
The offense I've been accused of is pretty minor and I think I should be fine. Do I still need a lawyer?
It depends what you consider to be "minor," but there's a very good chance that you still need to consult with an experienced criminal defense attorney. Most attorneys, including our office, will offer free consultations—so you have nothing to lose by talking to a lawyer to find out how serious your case could actually be.
It's easy to say you're going to represent yourself in court because you know you are innocent or because you think it's going to be quick and pretty cut-and-dried. However, when you actually set foot in that courtroom and your heart starts to pound, your palms get sweaty, and your mind starts to race, you begin to wonder why you thought it was a good idea to do this alone. Remember this: lawyers do this almost every single day. This is their job. Being convicted of a crime is stressful enough—don't put the entire weight of a trial on your own shoulders.
We've met with people who say that if they go to court they will "just" be convicted of a misdemeanor. Yes, a misdemeanor is not as serious as a felony, but that doesn't mean it couldn't have a harsh impact on your life. Misdemeanors can carry fines and jail time; you could lose your license and ruin future job prospects.
Did you know that in Texas, your first DWI conviction can carry many penalties, including a $1,000 per year surcharge that you have to pay for three years? Did you know that some drug cases also carry license suspensions? Or that a conviction for assault of family violence carries federal firearm restrictions?
The point is, don't assume your crime isn't a big deal. An experienced criminal defense attorney on your side will make sure things go smoothly by fighting on your behalf.
If you've been accused of a crime in the Waco area, contact Texas criminal defense attorney Walter Reaves at 254-296-0020 for a free consultation.