What Happens After You're Arrested in Texas?

You're told to turn around. They put your hands behind your back. You hear the clicks of the handcuffs and feel the discomfort as they begin to tighten around your wrists. You're having a bad day, and it's only going to get longer. You're under arrest. You have been accused of a crime. You are in the custody of the county sheriff until further notice.

The Criminal Justice system is just that: a system. While every case is different, and ever person accused of breaking the law is an individual in their own right and distinctly different from everyone else, there are some generalities the justice system guarantees consistency on.

As the writer, I imagine the reader facing this situation, or someone you love is facing this situation and you feel like you're facing it with them. I'm writing this as if I'm talking directly to the person that's been arrested. But welcome, if you're a member of that person's village. I'm truly sorry we have to meet under these circumstances but I hope to make you feel lucky to have found me once this is all said and done.

So lets get to it, here's my take from the Texas criminal defense trial attorney perspective of challenging criminal allegations.

Transport.

Whether you're going to jail in the back of a police unit, or to the hospital with a police escort, you're going to be restrained in some way and transported for further processing.

In most cases you will go strait to jail into the booking department or processing office of your county's jail. This is where they take your picture, record your fingerprints, confirm your identity, assign you a System Person Number (or SPN) if you don't already have one, issue you your jailhouse scrubs or jumpsuit, give you credit for two phone calls, and determine what part of the jail you will be housed in.

In exceptional cases, your first stop will be the hospital, where the emergency room staff will get you in good enough shape to release you to the nurse at the jail. Once you leave the hospital, you will have the same experience provided above. Remember, it's a system.

Magistrate.

You next encounter with the justice system will be in Magistrate Court. In some counties, this happens in a courtroom at the courthouse. In the Galveston County Jail, this happens in the jail where you talk to your defense attorney through the glass and the judge and prosecutor are on a monitor over a videoconference being broadcasted on the internet for anyone who's awake at 6 AM (or bored at 6 PM) to watch.

The purpose of Magistrate Court, or being magistrated, is very important. In this initial part of the process you get a lot of useful information.

By law, a person charged with committing a crime will have to be magistrated within 48 hours. Technically, Texas Code of Criminal Procedure, Article 15.17, requires: in Texas, the state must bring a person arrested under a warrant before a magistrate without unnecessary delay, but no later than 48 hours after the arrest.

Practically, the requirement to avoid unnecessary delay usually means that you'll be in front of a judge within a day. Galveston County, highlighted for how differently (but not in a bad way) they do things, has Magistrate Court twice a day. If you're "lucky" (notwithstanding the fact that you're in jail) you'll be arrested at 3 am, and hopefully they'll need less than 3 hours to process you so that you can make it to court at 6am— but if not, you'll be on the 6 pm docket. Full Disclosure: the only reasons I've seen inmates be held off of a docket is because they're in medical (they're hurt bad enough that they cant walk from their pod to the jailhouse courtroom), they're sobering up or coming down from their high in the drunk tank, or they've been isolated in solitary confinement (due to threats of suicide, asssaulting jail staff, assaulting other inmates, or severe mental illness)— but even in those cases, the 48 hour timer is a very strict constitutionally significant deadline.

Now that we know about when Magistrate Court has to happen, let's discuss what happens in magistrate court.

You'll talk to a criminal defense lawyer, usually provided at the cost of the county— but you can have your own lawyer appear on your behalf [if you've got it like that]. That attorney will inform you of what your charge is and what the State (the prosecutor, or DA) is going to ask the Magistrate Judge to set your bond at. More on this conversation later.

At Magistrate Court, you're formally Mirandized ("you have the right to remain silent") by the judge. The judge will ask you if you're a citizen, if you're out on bond for any other case, if you've served in the military, and if you intend to hire your own lawyer or if you need a court appointed attorney. After answering these questions, the judge will announce your charge to you— every one else in the courtroom will hear it and maybe the viewers watching online too. Sidenote: this is when you will feel the first tensions that come with sex abuse of a child cases or rape cases— we do not currently accept these cases at The Smotherman Law Firm but we do offer pretrial and appellate support to lawyers who do.

After asking you the statutory questions and informing you of your charge, the Magistrate Judge will turn to the prosecution for their bond request. In this conversation, the DA will discuss the facts alleged in the officer's affidavit or offense report, your criminal history, and recommend a bond amount. Put simply, the DA is telling the judge what the cops say you did, what other crimes you've been convicted of committing, and how much it costs to secure your presence at your court appointments in light of the information provided. We'll talk more about the arguments that get made at this stage, and how you can ask the judge for a lower amount later. But if the judge finds that the facts sworn to by the officer amounts to probable cause that a crime was committed, the bond gets set and you're done. If the judge doesn't find probable cause, the State dismisses the case (subject to being refiled with a cure to the judges issues with probable cause).

Bond, or bail.

This part is simple, but it's also the part where a lot of spirits get broken. Take a deep breath, keep your head up.

Lets make a hypothetical here.

You've been arrested. For possession of drugs. And it's not the first time, either— they know about 2020 and 2016. You get caught at the cruise terminal with weed (flower) and some THC cartridges because you were on your way to have a relaxing 5 days at sea. You get charged with a misdemeanor for the flower (weed is still illegal in Texas, though most major cities have decriminalized possession of flower weed— but in court, it's a class B misdemeanor to have natural marijuana) and a felony possession of a controlled substance for the cartridges (and depending on how big the cartridge is, or how many of them there are will determine whether you're facing a state jail felony, or a third or second degree). All things considered, judge sets your bond at $50,000. Steep. But at least you have a bond.

People often feel the weight of their case when there bond is set. On the one hand, there's literally a number that correlates with your accusation. In theory, the higher the number, the more confrontational the representation will be. On the other hand, you're either about to lose some money, or have a much larger sum held by the court while your case is pending, or you're not getting out of jail until your lawyer, the prosecutor, and the judge figure it out.

In our hypothetical where you got busted for bringing weed on a cruise ship your bond was set at $50,000 for one misdemeanor and one felony. Financially, that means one of 3 things.

If you have $50,000, you can basically give it to the court to hold as collateral to insure against your disappearance. If you don't have any bond revocations, violations, or forfeitures then you get this money back once your case is disposed, even if you're guilty.

If you don't have $50,000 you can hire a bondsman. A bondsman is like an insurance company and a bank together. You pay them a small amount on a monthly basis for their contractual obligation to pay a larger amount if something goes wrong. A bondsman makes their money by charging bail fees, usually about 10% of the bond the Magistrate Court Judge set. In your case, it should ultimately cost you about $5,000. And you kiss it goodbye, you do not get this money back.

If you don't have $5,000, this is when you start praying. Because the only thing you can do before your case is disposed of is ask the judge to lower your bond. We'll talk about this more in depth later, but your magistrate judge is not going to be the judge that presides over your criminal cases. So if you file a motion to lower your bond, or a writ of habeas corpus if you haven't been indicted on a felony, that motion or writ will be heard by a county court or district court judge elected by the citizens of the county.

Court Appearances.

This part might be self explanatory, but this is the part where everyone starts to get familiar with the criminal justice process. This is also where most of the work gets done on your case(s) where the attorneys for both sides are forced to conference with each other and provide the court with an update as to how the case is progressing and if either attorney needs the assistance of a court order to effectuate their preparation of their ultimate presentations to the court or a jury. One thing worth noting though, court appearances are not trials. Once you make bond, you're given a court date, and you have to show up unless your lawyer tells you otherwise. Once at court, you will be sitting amongst other defendants who are in a boat similar to yours. You'll hear the judge handle other cases on the docket, revoking people's bonds, dismissing cases, finding probable cause, setting cases for trial, ruling on motions that were written and filed with the court at a public hearing with both sides present. You'll hear the prosecutors talking to defense attorneys and defense attorneys talking to their clients. You'll see people being pulled out of the court to go take a drug test— and you'll know the result of the drug test before the judge does based on whether they sit back in the seat they were initially sitting in. It's not a terribly exciting process but this is where the brunt of the work gets done. Discovery (evidence like pictures, videos, lab reports, etc) is exchanged, requests for more evidence are made, pretrial motions are filed and argued, witnesses are identified, lab reports are analyzed, all the things. This is the part of the process where we start to develop the case for what it really is. We see everything they have, and they know what parts of the case we're going to fight about and that leads to the negotiation of offers to dispose of the case. Some offers are take a class and the case is dismissed, or a probation, other offers are prison time.

Trial.

Believe it or not, trials are optional. You don't have to have one, but you can if you want to. And in some cases you might need to.

If all else fails, you're going to trial. This is where decisions are made for you. This is where you put your life in a judges hand or the hands of 6-12 of your community members— we now start referring to them as fact-finders. This is where we face the music. Often times, this is when the prosecutors really start to look at the file and evaluate the validity of all of the defense attorney's previous arguments and complaints.

Once cases get set for trial, we have a very detailed schedule, with deadlines that rarely move, about what has to happen before trial. Witnesses have to be identified, pretrial motions with regard to what the state can bring up in trial or who the state can call as a witness, evidence that the fact-finder will see is presented to the opposing lawyers before it's admitted for the inspection of the fact-finder, and much more. The amount of resources dedicated to a case grows 10-fold once it gets set for trial.

Trials take at least 2 days.

Often, the court will dedicate the morning of the trial day to assure that the parties are present, appropriately dressed, and ready to pick a jury. The jury get picked in the afternoon after each side makes a presentation called Voir Dire (as with everything in my first published post), more on that later).

During Voir Dire, each side's primary attorney is going to stand in front of their audience, referred to as the jury pool, and ask some questions.

The Prosecutors will be focused on making sure the jurors can "simply" uphold the law, and they don't do much else. In my experience, the prosecutors voir dire is the same no matter what county, and generally with no distinction between felony and misdemeanors with exception to the number of jurors going from 12 to 6.

The defense's voir dire is going to be very very fact based. If it's a DWI, they're going to be talking about alcohol, and driving, and other distractions that could cause the car to swerve. If it's a child abuse case, they're going to ask you if you could really believe a 5 year old if there is no physical evidence cooberating the child's testimony. If it's an assault case, the defense attorney should definitely be asking you questions to get a read on whether or not you think men are entitled to defend themselves against women.

Please keep in mind, there is no right answer in voir dire, but it's the only chance the lawyers get to talk to their potential jurors before jeopardy attaches to the accused.

Once the lawyers strike the jurors they don't want, or jurors who statutorily cannot serve, it's the first 6 or 12 that they didn't find offensive to their position in their responses to the previous questions. This process generally takes about 3.5 hours. So if we show up at 10:00 to let the court know we're ready, we're going to lunch because we can't pick a jury in an hour and a half. We're coming back at 1:00 and we're done around 4:30. Opening statements is the next part of the trial and those generally take more than 30 minutes. And remember, judges are elected in Texas. The quickest way to lose 12-90 votes it to abuse your jury pool just once by keeping them in court during lunch time or keeping them long after 5:00 after they've been sitting in a room all day listening to someone tell a story one way and then for someone else to say it didn't happen that way— if it happened at all.

Sidenote, but still on point: I imagine being on a jury is like watching TV all day. It sounds enjoyable, but you probably start wondering if you keep wanting to watch TV after 2 hours or so. Is that why netflix asks if you're still watching after 2 episodes? Hm. And what if after an hour, you realize you don't like the show? but you can't stop watching it, and you can't leave.

But I digress.

After you pick your jury, you usually come back the next morning and start with opening statements. Prosecutor goes first. Opening statements is the story telling part of being a criminal defense trial lawyer. All you can do here is tell the jury what you're going to show them. You can preview the states case to take some of the steam and sting out of it, but you can't make an argument for or against anything at this point. Almost every statement or point begins with some variation of "the evidence will show." And you tell your story. But you have to be careful here, juries are calculating your credibility at every step of the way. If you say you're going to show them something, you better get around to showing them or they're going to think you're trying to trick them and scrutinize your case a lot heavier than the prosecution's in that deliberation room.

What comes after opening statements is evidence. Evidence can be physical, like a gun, or the powder that was was the basis of the lab tests, or a receipt showing that a purchase was made at this place at this time to verify an alibi. But, evidence can also be testimonial, like calling the child to testify and establish evidence that is not physically available or a witness identifying the defendant as the person who drove away from a car accident without giving their information.

One important part of the evidence phase is the constitutionally protected right to confront your accuser. This is called cross-examination. The testimony elicited from cross examination, too, is evidence. So if a witness identifies you as the perpetrator in court and she's wearing glasses in the court room, but she wasn't wearing those glasses in the officer's body camera footage... that's something a good defense lawyer is going to have some questions about. Were you wearing those glasses at the time of the event in question? Can you see without them? But how strong is your prescription? How far away did you say this was? And it was a foggy? At night? But you wore glasses today? You see what I mean? So not only is cross examination your opportunity to confront your accusers, it's also a great way to get favorable evidence from someone who isn't on your side and almost always is held to be more credible to the jury when it clearly wasn't planned or rehearsed. This is typically the longest part of the trial, think about having to call the kid, then the child psychologist to explain the impact of these acts on the kid, then the detective who interviewed the kid, then the CPS case worker, then maybe the mom of the kid, or the coworker that the accused supposedly admitted something to. Effectively anyone having to do with the "victim" or complaining witness (CW), or anyone attached to the CW as a social worker. In drug cases you have to call technician that work at the drug lab to talk about how the evidence come into their custody and what they did to it, and why blue means cocaine, blasé blasé. And then those people get questioned at least twice. And they might be requestioned based on how the last round of the answers to the opposing counsel's questions went.

But after both sides call their witnesses and have a chance to examine the witnesses called against them, both sides rest. Depending on how things went in the evidentiary phase and what was said, the defense has the opportunity to make some motions, like direct the judge to issue a not guilty verdict, or maybe a mistrial for whatever reason they want to argue, or a motion on how to instruct the jury to handle their deliberations. The only motion the state can make after resting and before sending the jury into the sacred deliberation room is a Motion to Dismiss— which always has been, and always will be, unopposed by our firm.

After the judge makes all the rulings, if a jury is still needed they take the charge(s) and go back and discuss amongst themselves. The trial is over. The case is closed. It's up to the fact finders. If each one of them is convinced beyond a reasonable doubt that you committed a crime, it's a tough day. But if at least one of them have some questions about what happened, or who did it, or how we got here, that's a good thing. Technically, it could lead to a hung jury and we have to do the whole thing over again next week, or it could lead to you having a few jurors on your side and they all eventually vote Not Guilty.

If the verdict is guilty, next is sentencing. The rules are a lot more relaxed in the sentencing phase. The jurors get to hear about your criminal history, and usually some of the more prejudicial facts that would have been held from the jury prior to making their decision of guilt in an effort so as not to cloud their judgment before they got there on their own. I'm happy to say that I've never had to go through the sentencing process for my clients, but I have sat in on a lot of cases and even second-chaired other lawyer's cases and my observation from counsel's table and the gallery is that this is the public's and the victim's (and the victim's family's) last opportunity to shame the defendant. Witnesses get called to talk about how they're feeling, supporters can be called to ask for the judge or jury's leniency, even pretrial officers can be called to talk about how you acted while on bond.

Then the fact finders go deliberate once more and they come up with a number within the range of punishment for the crime you have now been convicted of. This is the part where they pick a number between 25 and life for premeditated murder, or a number between 3 days and 6 months for the first DWI,

Appeal.

After your trial is over, assuming you lost because the state does not have a right to appeal— but you can. And you can complain about anything from the rulings that were made on motions before the trial, to the jury selection process, to the rulings that were made on objections during trial, to the fact finder's decision based on the evidence that was admitted to the amount of time being too much even if it's within the range of punishment.

Appeals from County or District Court proceed to the Appellate Courts. Texas has 14 Appellate Courts, with the 1st and 14th Courts of Appeals located in Houston. Appellate cases are managed differently; no new evidence or testimony is introduced. Instead, they rely on the trial court's record and admitted evidence. The lawyers will submit briefs with statutes (fancy word for "laws") and case law (previous decisions by this or higher courts that bind lower courts) to support their arguments of why the lower court was right or wrong. And then after the briefs are submitted, the court sets a date to argue. And these arguments arent between the attorneys for the court to hear and make a decision. Oh no, no no no. These are argument's between each attorney, one at a time, and the 3-13 Justices (Dallas has the most) who have reviewed the briefs and prepared their own arguments. These are shared publicly for consideration by fellow justices when voting on whether to overturn the trial court's decision.

It's very much like the congressional hearings where you've got a CEO that was ordered to testify in front of a committee of congress where like 13 representatives try to have their moment of relevance while peppering the subject of their hearing with questions and arguments.

Supreme Court

This is essentially your final opportunity. While you can technically seek a pardon from the governor or reach out to your congressman to advocate for a change in the law under which you were wrongly convicted, these options are usually long shots, often accessible only to those who are privileged, well-connected, or wealthy. If you lose at trial and your appeal is unsuccessful, you have just one more chance for an appeal, except in rare cases where new evidence emerges that could have altered the trial's outcome if it had been admitted.

However, if the Supreme Court of Texas doesn't rule in your favor, you're essentially in a difficult situation and will need to rely on the possibility of being granted parole after serving 25% of your sentence. If your sentence exceeds 60 years, you become eligible to request parole after 15 years.

The End.

That's it, generally.

If you require a bold criminal defense lawyer in the Houston Area, text the law firm. We also handle cases in Dallas, San Antonio, and Austin, and are generally prepared to travel within a 3-hour radius of Houston. Don't forget, #gogetGary

281-455-0902, texting is better than calling but also email works or use the form at the bottom of our homepage.

-Gary Smotherman, II

Principal Attorney

The Smotherman Law Firm, PLLC