- In Texas, there are three levels of misdemeanor offenses in the penal code: Class A, B, and C.
- The County Criminal Courts handle Class A and Class B misdemeanor cases that are punishable by confinement in the county jail and/or a fine. In Tarrant County there are ten County Criminal Courts.
- Generally, Class B cases are punishable by confinement up to 180 days in jail and/or a fine up to $2000.00. Class A cases are punishable by confinement up to a year in the county jail and/or a fine up to $4000.00.
- Class C misdemeanors are handled in the municipal and justice of the peace courts and are punishable by fine only. Lawyers who handle Class C misdemeanors generally charge a small fee because they handle a large volume of cases in a relatively short period of time. Mr. Cummings does not handle this level of offense.
Criminal Law Information & Frequently Asked Questions
If you are arrested for breaking a criminal law, you shall be taken before a magistrate without unnecessary delay, not later than 48 hours after your arrest. The magistrate shall inform you of the accusation against you, of your right to retain counsel or have counsel appointed if you cannot afford one, of your right to remain silent, of your right to have an attorney present during any interview with peace officers or attorneys representing the state, of your right to terminate the interview at any time, and of your right to have an examining trial. The magistrate will determine if the arrest is supported by probable cause and set an appropriate bond. If you cannot post the bond, you may be incarcerated until your case is resolved. If you are able to post bond, you may remain free while your case works its way through court.
A police officer may use as much force as is necessary to arrest you. Unreasonable force is assault. After arrest, most police officers will handcuff you as a matter of policy for their protection and yours as well. If force was used to arrest you, whether or not the force was reasonable can be determined in court.
A search warrant is an order issued by a judge that authorizes police officers to conduct a search of a specific location. Before a search warrant may be issued, there must be a showing of probable cause.
In Texas, there is no statutory definition of probable cause. Case law has held that probable cause exists where the facts and circumstances within a police officer’s knowledge, and of which he has trustworthy information, are sufficient to warrant a person of reasonable caution to believe that an offense has been or is being committed. Probable cause requires more than mere suspicion but far less evidence than that needed to support a conviction or even that needed to support a finding by a preponderance of the evidence. A police officer’s hunch, with nothing more, will not satisfy the requirements for probable cause.
Example: Officer Doright observes Tom and Dick walking to their home. Officer Doright has a hunch that Tom and Dick are up to no good. Armed with nothing more, Officer Doright goes to the local judge and attempts to get a search warrant for the boys’ home. Should a judge grant the warrant?
No. A police officer’s hunch, with nothing more, will not satisfy the probable cause requirement. However, if Officer Doright observed Tom and Dick commit a theft, then probable cause would likely exist for a warrant to search their home.
Unless the officer has a warrant, you are under no legal obligation to let the officer search your residence.
It is the common practice of many police officers to ask for consent to search your automobile, home, or person. Many times the police will not have a sufficient legal basis to otherwise conduct that search. If you voluntarily consent to a search then the officer can legally conduct a full search without a warrant. Anything that the officer finds can later be used against you in court. You forfeit valuable rights when you give consent to search.
Police officers do not need a warrant to seize contraband that is in plain view if the officer is in a place that he or she has a right to be.
EXAMPLE: Officer Doright is standing in your doorway talking to you about the weather. While talking, Officer Doright notices a bag of cocaine and a sawed-off shotgun on your couch. Officer Doright can legally seize these items without a search warrant because they are in plain view.
Yes. Police officers do not need a warrant to conduct a search after making an arrest. After making an arrest, the officer can legally search the person being arrested and the area in the immediate control of the person.
Bail is the security given by the accused that he will appear and answer before the proper court the accusation brought against him, and includes a bail bond or a personal bond. There are essentially three types of bail bonds:
- the personal bond, in which the accused promises to appear and agrees to pay some amount of money if he fails to appear;
- the cash bond, in which the defendant promises to appear and submits a cash deposit to ensure appearances; and
- the surety bond, in which a third party, usually a bondsman, promises to pay some amount if the accused fails to appear. In a surety bond, the bondsman usually takes a nonrefundable fee for submitting security for the accused’s release on bail.
There are five levels of felonies in Texas. They are:
- State Jail Felony – punishable in the State Jail Facility (a type of prison facility) by confinement from 180 days to two years and a possible fine up to $10,000.00. There is no good conduct time or parole, confinement is day-for-day. If certain conditions are met, probation is possible. These are generally low-level property crimes and drug offenses of small quantities.
- Third Degree Felony – punishable in the penitentiary by confinement from two to ten years and a possible fine up to $10,000.00. Good conduct time and parole are available with some exceptions. If certain conditions are met, probation is possible. This is the lowest of the traditional felony offenses. Unlawfully carrying a weapon in a bar, DWI after two prior convictions, assault bodily injury of a family member after one prior conviction, and stalking are examples of offenses within this punishment range.
- Second Degree Felony – punishable in the penitentiary by confinement from two to twenty years and a possible fine up to $10,000.00. Good conduct time and parole are available with some exceptions. If certain conditions are met, probation is possible. This is the middle of the traditional felony offenses. Robbery, sexual assault, burglary of a habitation and delivery or possession of moderate levels of controlled substances are examples of offenses in this punishment range.
- First Degree Felony – punishable in the penitentiary by confinement from five to 99 years, or Life and a possible fine up to $10,000.00. Good conduct time and parole are available with some exceptions. If certain conditions are met, probation is possible. This is the highest of the traditional felony offenses. Murder, aggravated robbery, aggravated sexual assault, delivery or possession of large quantities of controlled substances are in this punishment range.
- Capital Felony – only two possible punishments: Life (Without Parole) and Death. A person convicted of capital murder in Texas will not be released from the Texas Department of Criminal Justice until they are dead, either by natural causes or lethal injection. This is the ultimate criminal offense in Texas. Mr. Cummings has represented more than twenty-five individuals charged with capital murder.
In Texas, no person shall be held to answer for a felony unless on indictment of a grand jury.
- In Tarrant County, there is always a grand jury in session. Each grand jury consists of twelve citizens who have been selected by a District Judge and who serve for a three month term.
- If nine or more of the grand jurors vote that there is probable cause to send a case to the district court for trial, they return a true bill and an indictment is the result.
- Once an indictment is returned, the felony case is sent to one of the ten district courts in Tarrant County that hear criminal cases for disposition or trial.
- The District Attorney participates by presenting evidence to the grand jury and by questioning witnesses who appear before the grand jury. The prosecutor but must leave the room during deliberations by the grand jury members however.
- The accused has no right to appear before the grand jury and if he is invited to appear, he does so without the presence of counsel. The accused will most certainly be questioned by the prosecutor and members of the grand jury if they choose to participate.
- If the accused is in custody, the grand jury has 90 days to return an indictment or the accused must be released from custody.
- In Texas, there is an absolute right to an examining trial to determine the truth of the accusation against the accused, but that right is terminated upon indictment. In Tarrant County, a motion for an examining trial is also called a “motion for a speedy indictment” because the prosecution will present their case to the Grand Jury as soon as you request an examining trial. Consequently, they are very rare.
Plea Bargain or Trial
- A plea bargain is an agreement between the prosecutor and criminal defendant facilitated by the criminal defense lawyer. Plea negotiations with prosecutors are a major part of a criminal defense lawyer’s job if the client authorizes his lawyer to negotiate.
- There are a number of reasons why the vast majority of criminal cases in the United States are resolved by agreement.
- A plea agreement removes the uncertainty of a criminal trial for each side.
- The Judge, who in most cases knows nothing about the facts of the case, can accept or reject the plea agreement. If the Judge rejects the agreement, the law protects the defendant by barring the use of the plea agreement for any purpose in a later trial, and the case remains on the court’s docket. If the Judge accepts the agreement, the number of cases on the court’s docket is reduced (which is important to the judge) and there is no appeal. No criminal judge can keep up with their caseload if they do not accept and follow plea agreements so they generally do.
- Plea negotiations can involve much more than a plea of guilty to the crime alleged in return for a specific number of years of incarceration or probation. Negotiations may involve selecting a different crime, elimination of an admission to a prior conviction or an aggravating element that increases the length of time a defendant will serve a particular sentence, specific conditions of community supervision, the amount of restitution owed, if any, or just about anything else that may be relevant and important to the parties.
- The Tarrant County Criminal Courts, felony and misdemeanor, encourage plea bargaining with pretrial settings. The prosecutors are expected to make a plea bargain offer to the criminal defense lawyer to convey to the defendant at the first court setting. The criminal defendant can accept the plea offer without negotiation, reject the plea offer and authorize the criminal defense lawyer to make a counter-offer, or reject the plea offer and set the case for trial. There are usually several pretrial settings in most courts before a case is set for trial.
- Most criminal trials in Tarrant County are jury trials. As citizens we have a constitutional right to a jury trial if we are accused of committing a crime. Texas is one of the few states that permit a criminal defendant to select the jury to assess punishment as well as determine guilt. The prosecutor has the burden to prove the criminal defendant is guilty of the crime.
- You have the right to represent yourself in criminal cases but it is not usually an intelligent choice. The court will expect you to hire a lawyer to represent you if you are financially able to do so. If you are determined to be indigent by Tarrant County, a private attorney who has agreed to take court appointments will be appointed to represent you, even if you are on bond.
- Jury Trials are time consuming and labor intensive to prepare and conduct. Unfortunately, that means they are expensive for the client who needs a jury trial to defend themselves against the state’s charges. Like most criminal defense lawyers, Mr. Cummings charges a two part fee to represent his clients. The first fee covers the analysis of the case and plea negotiations. If the case is resolved as a result, that is the only fee assessed. It is only if the case cannot be resolved by agreement and it is set on the contest or trial docket, that the second fee, the Trial Fee becomes applicable to cover the cost of preparation and participation in the jury trial by Mr. Cummings.