Pre-Arrest Investigation

Investigations take place after suspected criminal activity has been reported or while law enforcement observes a potential crime.  The amount of work done by an officer before an actual arrest is made depends on many factors including the severity of the allegation, the people involved, and the type of harm. An investigation can be conducted regarding whether or not a crime has actually been committed, as well as whether or not an individual should be arrested. If during the investigation, the officer believes the facts indicate that a crime occurred, a suspect may be arrested or evidence of the incident may be presented to the prosecuting attorney. The prosecuting attorney can then decide whether or not to accept charges. Once charges are accepted, an arrest may take place. Alternatively, there may also be an instance in which law enforcement determines that there is insufficient evidence to pursue the matter, which can result in no arrest being made.

Arrest

Generally defined, an arrest occurs when a suspect is taken into custody by law enforcement for a crime that they have allegedly committed. This can follow an officer observing a crime in progress and determining there is probable cause for an immediate arrest.  An officer can act under the authority of an arrest warrant issued by a judge or magistrate. The procedures following an arrest vary depending on the jurisdiction and police department involved, as well as the type of alleged crime.  For example, after an arrest for driving while intoxicated (DWI), the suspect could be forced to submit to a blood draw.

Initial Appearance

Following an arrest, the suspect must be brought before the court as soon as reasonably possible. Texas law states that 48 hours is a reasonable amount of time.  During the initial appearance, the suspect will be informed of the charges brought against them, as well as their rights to remain silent and their right to retain counsel. Additionally, the judge will typically set the bail amount or the defendant may be released on a personal recognizance bond (PR bond) as well.

Grand Jury Indictments

A Grand Jury consists of group of private citizens chosen to listen to cases presented by the prosecutor’s office to determine whether probable cause exists for a case to continue toward trial. Their basic function is to act as a buffer between law enforcement and the court system. Their proceedings are closed to the public, and what goes on behind their door is supposed to remain secret. Part of their responsibilities is to conduct an investigation which can involve compelling testimony from anyone involved in the case, including complaining witnesses. Once the grand jury has heard the evidence presented to them and conducted their own investigation, they will then decide whether a defendant should be indicted with a “True Bill,” or if the case should be dismissed with a “No Bill.” Grand Juries in Texas hear felony level offenses, but they can indict for misdemeanors.

Preliminary Hearing and Examining Trial

Another time for determining whether probable cause exists is the Preliminary Hearing or Examining Trial. During this type of hearing, the defendant has the right to both be present and represented by counsel. Both the defense and prosecution can present evidence, including witness testimony, to challenge whether the judge should believe probable cause exists that a felony was committed. If the court determines that probable cause exists, the defendant will be bound over for trial. On the other hand, if the court determines that no probable cause exists, then the case will be dismissed and the defendant must be released, if still in custody.

In Harris County and most surrounding counties, a probable cause hearing with the judge is usually an informal discussion with the judge.  The prosecutor typically reads a summary of the facts of the case to the judge, and defense counsel may provide some information to persuade the judge that the case should go away, but most cases do not get dismissed at this point.

The more formal, Examining Trial, rarely occurs in Harris, Fort Bend, Montgomery and Galveston counties.  This type of proceeding requires time to subpoena witnesses and gather evidence.  A prosecutor will usually take a case to the Grand Jury to determine probable cause before an Examining Trial can happen.

Arraignment

Once charges have been filed against a defendant, this is when an arraignment will take place. During this phase, the suspect will be formally informed of the charges against them, provided with a copy of the document charging them with a crime (e.g., Indictment, Information or Complaint), and may be asked to enter a plea related to the charges. Typically, the case is reset without entering a formal plea to allow both sides to work on Discovery.

Discovery & Motion Practice

Discovery is the portion of the pretrial process where material and information regarding a case is exchanged between the prosecutor and the defendant. Texas law requires that law enforcement turn over the evidence they plan to use at trial to the defense.  This process can sometimes take months because of the volume and backlog of cases the prosecutor is working on.  Motion Practice refers to papers filed with the court requesting it to do something related to the case. This could include actions such as suppressing evidence, quashing a subpoena, and dismissing the case.

Plea Bargaining & Entry of Plea

If a defendant does not want to go to trial, they can instead choose to plead guilty pursuant to a plea agreement.  Pleading guilty happens after the defense attorney and prosecutor come to an agreement about the punishment. Prosecutors will sometimes give concessions in order to close a case which can include the following:

*Dismissing other charges

*Reducing the amount of time in jail or under supervision (i.e., probation, deferred adjudication, pre-trial diversion)

*Waiving fines or community service hours

Once a plea agreement has been reached, the plea will then be presented to the court. The judge will then do one of three things:

*Reject the agreement

*Discuss alternatives that the court would deem to be acceptable

*Accept the agreement

If the judge rejects the agreement or adds anything different to it, the defendant can withdraw their guilty plea.

When a defense attorney and prosecutor cannot reach an agreement, and the defendant still does not want to go to trial, the defendant can plead guilty to the judge.  This can be risky to do because the judge does not have give an idea about what they are thinking beforehand.

Trial

Trial is where evidence is presented and guilt is determined. In Texas, we have a right to a jury but the defendant can waive their right and take the case to the judge—otherwise known as a bench trial. A jury trial proceeds in the following manner:

*Voir Dire: During jury selection, a group of people called a jury panel is questioned about their thoughts and feelings on issues relevant to the case.  Typically, the judge talks to the panel first, then the prosecutor and finally the defense attorney.  The parties cannot go into the facts of the case itself, but use hypothetical scenarios to determine whether a potential juror can be “struck for cause.” After everyone has their chance to speak with the panel, the defense and the government use their strikes to cut people until they have twelve people for a felony case and six people for a misdemeanor.

*Guilt: This phase typically begins with an opening statement from the prosecutor, followed by the defense attorney. In some jurisdictions, the defense can reserve its opening statement for the beginning of their case-in-chief. The prosecutor will present the case for the state, while the defense can ask the court to acquit the defendant by arguing that there is insufficient evidence to convict them. In the event that the motion of the defense is denied, the defense will then present their case-in-chief. Once the case for the defense has been concluded, each side may present a rebuttal case, and the defense may then once again present a motion for a directed verdict or acquittal. If the motion is again denied, closing arguments are made by each side, followed by the case being submitted to the jury for deliberation.

*Sentencing: If a defendant is found guilty on either some or all of the charges levied against them, formal sentencing will then occur. Depending on the defendant’s choice, either the judge or jury will decide the sentence imposed on the defendant. Sometimes a probation officer will prepare a pre-sentence report prior to a sentencing hearing taking place. A sentencing hearing cannot occur unless the defendant is present; however, there are some circumstances in which the defendant can waive that right. Furthermore, there are some jurisdictions that allow victims to be present at the hearing and to present a statement prior to sentencing. During the hearing, the court can impose a sentence such as jail and/or a fine. Another alternative is that the court may impose a sentence for jail time, but suspend it and put the defendant on probation subject to certain conditions. Once a sentence has been imposed, the defendant may file a motion for new trial within 30 days or an appeal within one year.

*Restitution: This is the monetary payment made to a victim from a defendant in order to help compensate them for financial issues caused by a crime being committed. This is something that can be requested either at the sentencing hearing. Generally, the victim will receive an order for an amount of restitution with a specific payment schedule.

*Appellate Review by Defendant or State: An appeal enables you to ask a higher court to review the actions of a lower court in order to determine whether or not anything improper occurred. There are different types appeal with a criminal case.  Some of the most common appeals include interlocutory, direct, post-conviction, writ of habeas corpus, and writ of mandamus.

*Probation & Revocation Hearings: Probation involves a defendant is convicted of a crime, but instead of being put into jail, they are released under conditions placed upon them by the court. If those conditions are violated, the defendant will likely be arrested and brought to court for the judge to determine whether or not there is a preponderance of evidence to believe that a violation actually took place. If the judge determines the allegations are true, then the defendant will be subject to have their probation revoked and the full range of punishment opens up, including potential jail/prison time.

*Parole/Parole Revocation Hearings: Parole involves a defendant being released by the parole board prior to their original term of prison time ending. Prior to release, a parole hearing takes place in order to determine if a reasonable probability exists that the offender can be released without any real issue to the community. If the reviewing board determined that the proper move is to release the individual, then they will grant it under supervision with certain conditions in place. If any of those conditions are violated, the individual may be arrested, jailed, and provided  the opportunity for a hearing to determine whether any violation actually occurred.

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