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Criminal Process in Texas

By John McCurley, Attorney
What happens when you’re arrested and charged with a crime in Texas.

Like all other states, Texas has “rules of criminal procedure” that govern arrests and criminal prosecutions. This article gives an overview of how the criminal process works in Texas.

Arrests

In most states, an officer needs only “probable cause” to make a warrantless arrest. In Texas, however, police generally can’t arrest a suspect based only on probable cause. Texas law permits an officer to make a warrantless arrest only of a suspect who:

  • the officer believes has committed a felony and is “about to escape”
  • has committed an offense in the presence or within the view of the officer
  • is found in a “suspicious place” and under circumstances indicating the commission of a felony
  • is suspected of a property crime and found with stolen property
  • has caused injury to another and poses a risk of further harm to the victim
  • has caused injury to a family or household member
  • has violated a protective order, or
  • has confessed to the officer to committing a felony.

So, typically, a warrantless arrest is lawful only if one of the above circumstances exists and the officer has probable cause.

Probable cause requirement. Probable cause is a case-by-case determination. But, basically, probable cause exists if the officer has reasonably trustworthy information that would be sufficient to lead a reasonable person to believe a crime has been or is being committed. The idea behind requiring probable cause for an arrest is essentially to strike a balance between protecting citizens against rash police action and giving law enforcement reasonable leeway to do their job. (See Guzman v. State, 955 S.W.2d 85 (1997).)

Arrests inside a residence. Generally, Texas law requires a warrant for all arrests made inside a residence. (The type of warrant depends on the circumstances. Read about search warrants and arrest warrants.) However, officers are excused from the warrant requirement if a person who resides in the residence consents to the officer coming in or “exigent circumstances” justify immediate entry. (Tex. Crim. Proc. Code Ann. art. 14.05 (2017).)

Going Before a Magistrate

An officer who makes an arrest must take the suspect before a judicial officer (called a “magistrate”) without “unnecessary delay”—normally, this must occur no more than 48 hours after the arrest. At this first court appearance, the magistrate informs the suspect of the charges and of certain rights, including:

  • the right to remain silent
  • the right to an attorney (privately retained or court-appointed), and
  • the right to have an attorney present during police interviews and to terminate such interviews at any time.

The magistrate will typically appoint an attorney for indigent suspects who request counsel. And, in most cases, the magistrate sets bail or orders release without bail on the suspect’s promise to come back to court on a later date for arraignment.

For suspects who were arrested without a warrant, some magistrates will also decide at the first appearance whether there was probable cause to support the arrest. A magistrate who finds probable cause was lacking will order the suspect’s release.

(Tex. Crim. Proc. Code Ann. art. 15.17 (2017).)

Pleas, Criminal Trials, and Sentencing

Initially, a person who’s charged with a criminal offense has two options: admit guilt by pleading guilty or nolo contendere or deny the charges by pleading not guilty.

In most cases, a defendant is best served by entering a not-guilty plea at the outset. Pleading not guilty doesn’t necessarily mean the case will go to trial. A not-guilty plea just keeps the case open, allowing the defendant to negotiate a plea deal with the prosecution. And if a satisfactory plea agreement can’t be reached, the defendant still has the option of taking the case to trial.

Criminal defendants have a right to have their case tried before a jury. A criminal jury consists of six jurors in misdemeanor cases and 12 jurors in felony cases. At a criminal trial, the prosecution must prove “beyond a reasonable doubt” that the defendant committed the charged offense. (Read about burdens of proof in criminal cases.) Otherwise, the jury is supposed to find the defendant not guilty.

For most criminal convictions, there’s a range of possible sentences. (For example, a boating-while-intoxicated conviction carries between 72 hours and 180 days in jail.) In most states, it’s up to the judge to decide how—within the allowable range—to sentence a convicted defendant. But Texas has a different way of doing things: Texas defendants usually have the option of being sentenced by the jury rather than the judge. However, to elect jury sentencing, the defendant must notify the judge in writing before jury selection starts.

(Tex. Crim. Proc. Code Ann. arts. 33.01, 37.07 (2017).)

Questions for an Attorney

  • Is it always best to request jury sentencing?
  • Does a jury’s verdict have to be unanimous?
  • Do the Texas rules of criminal procedure apply to traffic infractions?
  • Can I waive my right to a jury trial?
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