By: Mark Diaz
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9 Common Legal Questions Asked Around Galveston Texas
As I’ve said before, you always need an attorney when you are charged with a crime. A misdemeanor can lead to a criminal conviction, which would be on your criminal record for life. So, George, even if you think it’s not serious, it is a criminal case. You would indeed want a criminal defense attorney to handle that for you.
What are some of the most important rights I have as an accused person?
The first right is to keep your mouth shut. In other words, the right to remain silent. You of course have various rights, but the one that my clients always hurt themselves on, is the right to remain silent. When you speak to the police, they are only trying to extract information from you that would help gain a conviction.
When there is a criminal investigation, they are not there to help clear you of the charges. Therefore, you should not talk to the police in a criminal investigation without your attorney present. There’s no exception to this that I can think of. You always want your attorney with you when you’re going to speak to the police so that you can know what questions you should or should not answer. I can tell you 98% of the time when people come to me and the police want to speak to them, the answer is no.
There have been very few occasions where I would allow an interview, and of course, I would be present. Again, as an accused, you’re only the accused, you’re presumed innocent under our system of justice, until and unless the state meets their burden of proof and proves your guilt beyond a reasonable doubt.
What should I expect to happen at my first court appearance?
That is going to depend on whether you are charged with a felony or misdemeanor, it’s going to depend on which jurisdiction you’re in, here in Galveston County, you shouldn’t expect much to happen. Your attorney should be there to answer the docket for you.
If your attorney is not there when the docket is called, you would just stand up and say present, when they called your name, and you would sit back down. If your attorney is there during the docket call, and if it’s me, then I would stand up and say “present with counsel” and point at you so that the judge knows you’re present.
Depending upon when your first court date falls in relation to your arrest, I may or may not have discovery before your first court appearance. If I don’t, on the first court appearance, I will ask the state for whatever they have at that point, even if it’s something as small as the offense report, I need somewhere to start. That’s usually pretty easy. I can usually ask for that in court and they can email it to me while we’re in court.
Other than that, I get a new setting, and we just reset to figure out what discovery I’m missing, and any investigation I may want to do. So I’ll get a subsequent court date. Typically, a first-court appearance is not very eventful. Sometimes if it is a case involving family violence or a victim that the state doesn’t want you to have contact with, there’ll be some bond conditions dealt with before the court on your first court date, meaning you can’t have contact with this person, or you can’t go to or near this person’s residence.
In some courts, if it’s a drug offense, the judge will issue a bond condition making you start drug testing when you come to court. So that could happen depending on which court you’re in as well. As far as your case, you shouldn’t expect much on your very first court appearance.
What determines whether my case will go to trial?
There’s a lot that goes into that question. It could be that I don’t think the state has enough evidence to prove your guilt beyond a reasonable doubt, so my recommendation to you is that we go to trial. It could be that we’re so far apart on punishment. For example, you want probation and you’re legally eligible for probation, but the state will only offer time in a plea bargain. In that situation, we might end up going to trial.
There are other alternatives, but that has been a trial issue in the past where our main focus was punishment. It is possible to avoid the trial and just do punishment in some circumstances, but a lot of times my attitude ends up being, if the state’s not going to give me what I want, then they’re going to have to earn it. I’m not going to lie down and give them a guilty plea over a punishment issue if they’re not going to work with me.
What else could make your case go to trial? Well, you could. It’s your constitutional right, no matter what I think, if you demand a jury trial, I’m going to give you a jury trial. There are also no offer cases. A lot of times this happens with murder cases, the state simply will not make an offer because of the seriousness of the offense. So we have no choice but to go to trial.
No offer cases can be other types of cases, not just murder. I’ve had it in a drug case before because of the number of kilos. So there are several reasons why your case might go to trial, just like there are reasons your case wouldn’t go to trial.
If the police never read me my rights, can my attorney get the charges dismissed?
I get this question a lot. I guess this comes from too much television. The police do not have to read you your rights, to arrest you. The police have to read you your rights if they’re going to interrogate you.
So if you are the subject of an investigation, and the police want to talk to you and try to get information from you, or a confession from you, then they have to read you your rights, which is Miranda. So they have to Mirandize you before they can try to get a statement from you.
That does not mean if they see you commit a criminal offense, they have to read you your rights before they handcuff you. Normally, people think I’m going to get off because they put the handcuffs on me and threw me in the patrol car, and never read me my rights. Well, that’s because it was an arrest, not an investigation.
Can the police arrest me without evidence of my guilt?
The simple answer is yes. It would depend on the circumstances. People get arrested all the time because of what police officers believe, what other witnesses stated, etc. They don’t have to have evidence that you’re guilty to arrest you. Simply being arrested doesn’t mean you’ll be found guilty. Just because you get arrested doesn’t mean you’re going to get convicted. The state will do the investigation and try to gather evidence of guilt.
The police officers don’t necessarily do any of that before effecting an arrest. The arrest could be based on a number of things, like I said, someone else said you did something. Any number of circumstances. They don’t have to have evidence just to arrest you. I mean, the easiest thing I can think of is, for instance, in a sexual assault case, whether it be an adult or a child, oftentimes there’s no witness. It is just the person who was assaulted making the accusation. So they accuse you, and the police arrest you, but the case still has to be built. So yes, the police can arrest you without evidence of your guilt.
If the person who filed criminal charges against me does not want to go to court or continue with the case, will the charges be taken away?
The answer is most of the time. The Constitution guarantees you the right to confront your accuser. So if your accuser is not willing to present and face you, and let you cross-examine them, then that would violate your constitutional rights. The case cannot proceed forward in that situation. There are some exceptions.
Let’s say the person was interviewed at the scene, and there was a certain amount of emotion involved, and we would have to have a hearing to determine whether or not that’s admissible without having that person testify under certain evidentiary rules. Most of the time, your right to confrontation is going to be the controlling factor.
If I have a warrant for my arrest, will hiring a lawyer help me avoid jail?
No, I can’t make the warrant go away. If a warrant has been issued for your arrest, the case doesn’t become active until you’ve been arrested. Many times the case has not even been assigned to a court for me to try and talk to a prosecutor. There’s nothing I can do to avoid that initial jail visit.
Depending upon the type of warrant, you would contact me and say I have a warrant. I’ll find out if it’s a felony or a misdemeanor, and then we’ll set you up with a bonding company, and have you do what we call a turnaround. Meaning you go in with your bonding company with bond in hand, turn yourself in, and you have to go for processing and then you’ll turn around and come right out.
Most of my clients report that that’s about a three-hour process. So I can help shorten the amount of time you’re going to be in jail, but I cannot avoid the jail check altogether.
What happens if I can’t afford the amount of bail set for me? Can a lawyer help me get that reduced?
Yes, we do Bond Reduction hearings almost weekly. We did one this morning. So it oftentimes happens that a person can’t afford the amount of bail that is set by the court. So we typically file a writ of habeas corpus seeking bail reduction. It’s a motion to get your bail reduced. We have a hearing, we have to have someone testify regarding your financial position or their funds, depending on who would post bail, whether or not they’ve talked to a bonding company, what type of bail you could afford, etc. We go through that process so you can get a bail reduction.
The important part about hiring a lawyer who knows where they are is that depending upon which court you fall in, I have some idea of the chances of getting that reduction or not getting it. Generally speaking, yes we get bond reductions all the time. Now, people do call sometimes and ask if they can hire us just to do a bail reduction. I don’t do that.
Here in Galveston County, if you’re going to come on to a case you’re coming on to a case. Many years ago here in the county, there was a time when we could make an appearance just for bail reduction. However, the county stopped that. Regardless of whether they allowed it, I wouldn’t do that. If I’m coming on your case, I’m coming on your case. I’m not just coming in to try and help you get out of jail, and then jump back off. If I’m going to defend you, I’m going to defend you.