By: Mark Diaz
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Self Representation And The Dated Systems In Galveston County
Galveston Misdemeanor Courts
As most of you know, we handle felonies and misdemeanors in this office, and I don’t often make it to the misdemeanor docket call. In the hierarchy of cases, you go to district court first, and then the lower courts. So usually, my mornings start in felony court on the third and fourth floors of Galveston County Justice Center.
However, recently, I had a case that had been assigned to a special prosecutor from another county. We had worked out my case for a misdemeanor and we had to be in misdemeanor court to do this plea. Since he was coming from out of town, I made it a point to be a misdemeanor docket call, so that I wouldn’t waste this guy’s time when he was coming from out of town.
So you know, here in Galveston County, there is a practice that I don’t agree with, in each of the misdemeanor courts. Before the docket is called, the judges will tell you that you have three options if this is your first time in court. Option number one is asked to reset your case, so you can have time to hire an attorney. Option number two is to request a court-appointed attorney, which means you have to fill out a financial affidavit to see if you qualify for the court to appoint your counsel. Then you’re told that your third option is to speak to the DA yourself, which means to represent yourself, which legally we refer to as being pro se. It’s just been happening for so long that I just kind of forgot about it.
Why I Am Against Self Representation
I think it’s a horrible idea for you to represent yourself in court. I can talk about that a little more later. It happens every day here in Galveston County. So, then the judge will start calling the docket and people will answer options one, two, or three. There is a surprising amount of people that choose option three, which is to talk to the state.
As this prosecutor and I are standing there, and this was a felony court prosecutor from another county, a completely different jurisdiction, and not someone familiar with what we do here in Galveston daily. As he’s listening to this, and he’s hearing people raise their hands and say, I want to speak to the DA, he looks at me and he goes, didn’t we stop that?
I say, what do you mean? He’s like, I shouldn’t be talking to the defendants. I started laughing. I said I know. Nowhere else does it that I know of, except Galveston County. He says no, I’m serious, didn’t we stop that? I say no, it’s still legal. You still have a right to represent yourself, but that doesn’t make it a good idea.
He was just completely shocked. I’m just so used to it, that I just kind of started to overlook it. They call you up. The district attorney gives you a speech about how they don’t represent you, they represent the state of Texas, and anything you say can and will be used against you. Then they make you sign a document that says you understand this and that you’re waiving your rights. Well, that should be your first red flag, they want you to sign a document acknowledging that you’re waiving valuable and important rights.
Even still it happens every day. So, what happens is they will talk to you a little bit about your case. Of course, most defendants can’t resist telling their side of whatever the accusation is, which is bad, because now you’ve told the prosecutor your position and they can use that against you if you change your mind. The judge that calls the docket does tell you that if you change your mind later, you can always hire an attorney. Of course, if you’ve already hurt yourself by talking to the state, it puts us in a bad position trying to clean up what may have been done before, right.
Consequences Of Accepting A Plea Deal
So, they will talk to you about your case, and then end up making you an offer. The offer may sound really good. The problem is, that they don’t tell you the collateral consequences. For instance, a very common misdemeanor is theft. There are a whole bunch of theft cases, for instance, at a Walmart here on the island. You think you go into court, and you’ve got this little shoplifting theft charge and it’s not that big of a deal. Then the prosecutor will say, hey, I’ll tell you what, if you plead guilty, I’ll just give you time served, and a fine. Pick any number you want, $100 fine, plus court costs.
A lot of defendants say, oh, all I have to do is pay a fine, I don’t have to go to jail. That person will sign up for that. Now, what the state didn’t tell you is that theft is a crime of moral turpitude. So unless you don’t ever plan on trying to get a job, then I guess that conviction is probably okay. If you plan on trying to get a job, with a crime of moral turpitude in your background, it’s not going to happen, no one is going to hire you, they won’t hire you to be a cashier, because they think you will steal their money, they won’t hire you to handle their goods, because they think you will steal their goods.
Another common one is family violence, assault, husband, and wife, whatever it is. I see this a lot with men, same offer you just got, sounds great. Well, I hope you’re not a hunter, because if you just took a conviction for family violence, you can’t own firearms or ammunition for a certain period, a certain number of years after the conviction. So, if you’re a hunter, you just gave up your ability to hunt. These are the things they don’t tell you.
It’s sort of like, if you are watching a trial, you’ve seen trials on TV and whatnot. If you can imagine a trial where the attorney isn’t objecting, isn’t asking questions that matter, isn’t trying to speak, is trying to testify, rather than ask questions to the witness, and then keeps getting shut down by the judge. And you just think this attorney is sitting there messing it all up? You would think that person has a great chance to appeal because their attorney didn’t do anything and did a horrible job. They should be entitled to ineffective assistance of counsel. Well, not if you represent yourself.
So, like I said, it’s been going on so long here in Galveston County that I just forgot, didn’t even pay attention to it. It was when this out-of-county prosecutor was looking at me wondering what was going on here? Why are they doing this? I just started laughing. It happens every morning. In each of the county courts in Galveston County, people are given the opportunity to not go hire a lawyer, to not ask for a court-appointed lawyer. Just got to talk to the state and see what they have to say. See if you can work it out.
It’s just a horrible idea. As I’ve said many times, the problem with criminal cases is that a conviction can have lifelong consequences. People have called me over the years and said, hey, I got a conviction for whatever 15 years ago, isn’t it so old that it goes off my record? The answer is no. Once you get a conviction, with limited exception, it stays on your record. It’s never a good idea to go to court without an attorney when you’re being accused of a crime, and then certainly not to sit there and talk to the person that represents the state of Texas and is trying to prosecute you.
If You Can’t Afford An Attorney Ask For A Court Appointed Attorney
I suspect that the two main reasons people choose to do this are related. One, they don’t want to spend the money to hire an attorney, or two, they think they can’t afford to hire an attorney, and they think they can’t get a court-appointed attorney. If you found yourself in that situation, my advice would be to ask for a court-appointed attorney.
This is assuming you haven’t called several attorneys to see if you actually can or cannot afford one, work out some type of payment plan or find a way to get counsel. If you can’t, I would suggest that you apply for court-appointed counsel and see if you do qualify. If you do, the court will appoint you a lawyer. Then you at least have someone who knows the rules of evidence, knows the rules of law, knows what you should or shouldn’t answer to this prosecutor, and someone who will try to work something out for you that is not necessarily going to impact your life, your professional license, etc… There are so many collateral consequences to a conviction, that you need someone on your side who knows those collateral consequences and is trying to avoid any collateral consequences for you in the future. You’re just not going to know that on your own. I mean, this is what we do, every single day.
Protecting Your Occupation
When people come in, one of the first things I ask them when we meet is what are your concerns about this case? We’ll go through that together. I’ve had lots of people with professional licenses that sometimes haven’t even realized that there might be collateral consequences. Where we are, with UTMB, I’ve represented nurses, doctors, and the doctors always know, but I’ve had many nurses that haven’t thought about it yet. We many times have had to find a way to resolve a case that would not impact the nurse’s license.
Also, with the plants so close by, most of the plants use a point system for criminal convictions, certain convictions have higher point assignments than others. At certain plants, the worker can only have x number of points or fewer to be allowed into that plant as a worker. So, I’ve found situations where I had to get creative on a way to resolve the case so that my client didn’t get more points than what was allowed in the plant that he or she worked in. There are so many things that have to be taken into consideration, other than just what sounds like a good plea agreement.
When you’re representing yourself, the state of Texas doesn’t care about any of that. What matters to them is prosecuting you. They will make you feel like you’ve got a good deal. It will sound good, and you will walk out of the courtroom. But now you’ve just done something that could impact your job, your license, and so on. So, I wish that they would stop this practice.
I remember many years ago, when I did a lot more work in Harris County there would, every once in a while, be someone in the audience who wanted to represent themselves. The judge would call them up to the bench and show them the Code of Criminal Procedure and the rules of evidence and say, are you familiar with these books? And the defendant would always say no. Then the judge would go through a whole litany of reasons why you shouldn’t represent yourself. We don’t do that in Galveston County. Galveston County is like, you want to represent yourself? Go ahead.
I guess it’s an efficient way to move the docket. I guess. When you’ve got 40 people in the audience, you want to get through your morning as quickly as possible. I’m not sure what the rationale is. I strongly discourage anyone from representing themselves.
Kind of a funny side story. Many of you know Katie Jo Muncie used to work here in my office. She’s now up in Austin, Texas. When she was a prosecutor across the street, I would sometimes get bored in the mornings when I was done with my docket, and I would go sit near enough to her to hear her talk to pro se defendants. I would heckle her, so to speak, when she would be talking to a pro se and make him an offer. I would chime in say, for instance on the theft. She’s not telling you that that’s a crime of moral turpitude and if you take that deal, you’re not getting the job anywhere. And she would always get irritated with me, but she kind of played long because she knew what I was doing was right. She just didn’t like it because it was messing up her morning and making her stay longer in court.
I’ve always been against this practice that we do in Galveston County, or that the judges do in Galveston County. There’s sort of an inside joke between the court staff and I, one day, the judge was not on the bench. It was a court staff member calling the docket. When she’s done reading out the three options to the defendant I say, or there’s option four. Option four is to hire Mark Diaz. Everyone got a big kick out of that. Every once in a while, that person will still call me option four. It’s just kind of a little inside joke, but this is something that we need to address as a defense bar at some point in the future here in Galveston County. You’ve got people taking deals without legal advice on matters that impact their future.
As I said, I haven’t had a good topic in a couple of weeks. When this happened the other day it just kind of made me think. So hopefully I’ll be back next week. Thank you all for listening.
To learn more about how the laws apply to your unique situation, please contact criminal defense attorney Mark Diaz. Our law firm serves clients in Greater Houston and throughout Galveston County, so we are ready to advocate on your behalf. You can set up a no-cost consultation with a Texas criminal defense lawyer by calling 409-515-6170.