Practice Areas

GENERAL INFORMATION:
MISDEMEANORS & FELONIES & PROBATION

A criminal case, either a misdemeanor or a felony, is resolved by a dismissal of the charges, an entry of a plea of guilty or no contest, or a verdict (of not guilty or guilty) after the Defendant has plead not guilty and proceeded to a trial of the case by the court or jury. A jury must reach a unanimous verdict (12 of 12 in a felony, or 6 of 6 in a misdemeanor) or the case can be retried at a later date. This is often referred to as a 'hung jury'.

Misdemeanors

In Texas, misdemeanor offenses are broken down into two systems: the "higher charges," Class A and Class B, and the lower, Class C offenses.

Class A misdemeanor offenses, which are heard in the County Courts-at-Law, have a maximum sentence of up to one year in county jail and a fine not to exceed $4,000. Class A offenses include Assaults with Bodily Injury or Assault involving Family Violence, first DWI with BAC<.15, second DWI’s, Criminal Mischief or Theft of Property with a value of $750 to $2,500, and Burglary of a Vehicle.

Class B misdemeanors, which carry a penalty of up to 180 days in jail and/or a fine of up to $2,000, include Criminal Mischief or Theft of $100 to $750, first DWI's, Driving While License Suspended, etc. Class B misdemeanors are also heard in County Courts-at-Law.

Class C misdemeanors carry a penalty of fine only and include traffic offenses, Public Intoxication, Minors in Possession of Alcohol, Disorderly Conduct offenses such as Fighting, Unreasonable Noise, etc. These cases are heard either in Municipal Court or in the Justice of the Peace courts depending on the agency for which the ticketing officer works.

Felonies

In Texas, felonies, the most serious of charges, are broken down into five different categories: capital murder, first degree felony, second degree felony, third degree felony and state jail felony.  Clearly, Capital Murder is the most serious charge a Defendant can face, since it carries the potential for a sentence of death or life in prison.

First degree felonies carry a sentence of five years to 99 years, or life in prison, and/or a $10,000 fine. First degree offenses include Aggravated Assault on a Peace Officer, Aggravated Sexual Assault of a Child, Murder, Possession of more than 200 grams of certain Controlled Substance, and Aggravated Kidnapping. The maximum term of probation on first, second, and third degree felonies is 10 years. In addition, in certain categories of offenses, such as Aggravated Robberies, and Aggravated Assaults, only a jury - and not a judge - can grant probation for the Defendant. A conviction for certain aggravated offenses also means that the Defendant will not be eligible for release on parole until he has served one-half of his prison sentence. In other cases, the Defendant can become eligible for release on parole when the time served, plus credits, equals one-quarter of the original sentence.

Second degree felonies, such as Burglary of a Habitation, Sexual Assault of a Child, Intoxication Manslaughter, Aggravated Assault, etc., carry a possible term of two years to 20 years in the penitentiary, and a fine up to $10,000.

Third degree felonies, such as Burglary of a Building, Indecency with a Child by Exposure, Assault causing Serious Bodily Injury, Failure to Register as a Sex Offender, and third or subsequent DWI's carry a term of two to 10 years, and a maximum fine of $10,000.

State jail felonies include offenses such as Possession of a small amount (less than one gram) of certain Controlled Substances, Interference with Child Custody and Unauthorized Use of a Motor Vehicle, have a term of 180 days to two years in a state jail facility, and a maximum fine of up to $10,000.

The District Court system has rules that are more rigidly enforced than in the misdemeanor courts. Because the stakes are so much higher, (death penalty, prison time, long probations), the proceedings are more formal. Punctuality, appearance and respect for the court are a must.

Probation

Whether the Defendant is charged with a misdemeanor or a felony, many first time offenders in Texas can expect to be offered probation. There are two types of probation offered in Texas: Standard or regular probation, which entails the entry of a judgment of guilt against the Defendant; or Deferred Adjudication, which means that the judgment of guilt is deferred and the Defendant is placed on probation. Under Deferred Adjudication, if the Defendant successfully completes his term of probation, no conviction is entered on his or her record. In these types of cases, the Defendant can say that he/she was not convicted of the offense. However, there will still be a public record of his arrest and of the proceedings against him/her, including the fact that he/she was placed on probation.

The maximum term of probation for felonies is 10 years. The maximum term of probation for Class A and B misdemeanor is two years. Because Class C misdemeanors are fine only offenses, there is no probation, although a Defendant may enter into a deferred disposition agreement, which generally calls for the individual to remain trouble free, without supervision, from 90 days to one year.

Other ways to dispose of misdemeanor cases include Pre-Trial Diversion and Deferred Prosecution in some Counties. Under these arrangements, the Defendant usually admits the bad act and does some combination of paying a fee, undergoing counseling, taking an educational class, performing community service, and staying out of trouble for a certain period of time. At the end of the deferral period, the case is closed. In most of these instances the records of the arrest and prosecution can be expunged.

DRUG CHARGES POSSESSION, DELIVERY AND/OR MANUFACTURING

Possession of Marijuana (POM)

Marijuana is still illegal to possess in Texas. Possession of any amount up to 2 ounces is a Class B misdemeanor, between 2-4 ounces is a Class A misdemeanor, 4 ounces to 5 pounds is a State Jail Felony, 5 pounds to 50 pounds is a Third Degree Felony, 50 pounds to 2000 pounds is a second degree, and more than 2000 pounds is a First Degree Felony. Also, a conviction for Possession will automatically suspend a person's driver's license for 180 days. The suspension will be lifted after 180 days if the defendant completes a State approved 15 hour Drug Offender Education Program during the 180 days.

When it comes to possession of marijuana cases in Central Texas the outcome, as with every case, depends on what county you are in and whether or not you have prior arrests. Even though it is illegal and you may have been caught red handed, that does not mean that you have to come away with a conviction. Prosecutors and judges understand the consequences associated with a conviction for having a personal amount of marijuana and thus in many cases defendants can take a class and/or do some community service to get their case dismissed. Many counties offer Pretrial Diversion type programs that require the defendant to complete a short informal probation, and if successful, the case will be dismissed and you can get the case immediately expunged.

Possession of a Controlled Substance (POCS)

Possession of a controlled substance is a little more complicated due the fact that Texas Controlled Substances Act (found in the Health and Safety Code 481.102) has several different penalty groups depending on the substance and the amount. Certain pills, like Xanax, are penalized as a Class A misdemeanor until the quantity exceeds 28 grams. Possession of substances like Oxycodone, Cocaine, Methamphetamine, Heroin, and Hashish are going to be felonies regardless of the quantity. However, the weight of the illegal substance will determine the level of offense. Generally, an amount under 1 gram will be a State Jail Felony, 1 gram up to 4 grams will be a Third Degree Felony, 4 grams up to 200 grams will be a Second Degree Felony, and an amount of 200 grams or more will result in a First Degree Felony charge.

Possession of Drug Paraphernalia (PDP)

Possession of drug paraphernalia is a Class C misdemeanor that carries with it a $500 fine for a conviction. A conviction for this charge can result in a 180 day driver's license suspension.

DWI/DUI

Driving While Intoxicated (DWI) & Driving Under the Influence (DUI)

The consequences of a DWI arrest are serious, and a conviction for the offenses can be devastating - both personally and financially. The cost of a first DWI arrest and conviction can be as high as $15,000.00. After arrest this includes bail, towing, and legal fees. If convicted, the expenses can include probation, fines, counseling, occupational driver's license, increased insurance, and a three year annual government surcharge of $1000.00 - $2000.00 to maintain your driving privileges. In addition, you could be required to perform community service or spend time in jail.

In almost every DWI case there is a video recording of the events leading up to an arrest. The cameras are designed to come on automatically when the officer's overhead (or in the grill) lights are activated. This tape is usually available to counsel in the month following the arrest. The tape is the most objective evidence in a DWI prosecution. Remember to always take the high road, be polite, and do not talk too much. Exhibiting common sense goes a long way in helping convince a Jury you were not intoxicated.

THEFT

Theft charges can range from a Class C Misdemeanor to a First Degree Felony. The level of the charge depends on the amount or value of property stolen, how the property was stolen, or from where the property was stolen. It is a Class C misdemeanor if the value of property is less than $100. It is a Class B misdemeanor if the value of the property is between $100 and $750. A person can also be charged with a Class B misdemeanor when the value is under $100 when that person has a prior conviction for any level of theft. Most cases of theft in the courts are of the Class B variety because most arrests are for shoplifting. The law allows for a cite and release in this type of offense.In other words, if you are believed to have committed a Class B theft then the officer has option to give you a ticket and allow you to show up at a later date for processing. This practice is only followed in Travis County when the suspect lives in Travis County.

It is a Class A misdemeanor if the value is between $750 and $2500. Generally, it is a State Jail Felony when the value of the property is between $2500 and $30,000. Additionally, when a person has two prior convictions for theft a third arrest can be enhanced to a State Jail Felony. Theft from a person is a State Jail Felony regardless of the value. Theft is considered a crime of moral turpitide which can carry additional collateral consequences.

ASSAULTS and ASSAULT FAMILY VIOLENCE

There are different levels of Assault, ranging from a Class C Misdemeanor to a First Degree Felony. There can also be enhancements to an assault charge such as Family Violence and Deadly Weapon.

Charges of assault and Assault Family Violence can carry severe penalties in Central Texas. Since assault is a violent crime, the prosecution will be taking your offense seriously. This is even more true if there is a weapon involved in the crime, or if the victim of assault is seriously injured.

Assault/Family Violence Charges

Perhaps treated even more seriously than an assault charge, is an assault/family violence charge, in which the alleged victim is a family member, a spouse, a significant other, or a child of the alleged attacker. Being convicted of domestic violence can seriously affect your rights to visit with your family, as well as your child custody arrangement. Depending on the brutality of the crime, it may be judged as a misdemeanor or a felony. In addition, if you have been convicted of Assault Family violence previously, a second charge is an automatic felony, regardless of how minor the injury may be. Assault/Family Violence is also a crime of moral turpitide which has additiona collateral consequences.

TEXAS PROBATION REVOCATION

MOTION TO REVOKE, MOTION TO ADJUDICATE

A probation revocation case begins with either a Motion to Revoke Probation, or a Motion to Adjudicate for defendants on deferred adjudication. These motions will list the alleged probation violations. A warrant for arrest will be issued.

The most common reasons for a probation revocation are :

  • committing a new offense
  • failing drug tests
  • not reporting
  • not completing required drug/DWI classes
  • not completing community service
  • not paying fees.

BURDEN OF PROOF- PREPONDERANCE OF THE EVIDENCE

Probation violations only have to be proven by a preponderance of the evidence, not beyond a reasonable doubt. This is a much lower standard.

NO JURY TRIAL

Probation revocation hearings are always held in front of a judge. There are no jury trials for probation revocation hearings.

RANGE OF PUNISHMENT

If you are put on regular probation then your original plea bargain contains the maximum number of years you can be sentenced to. For example, if you are on probation for a 3rd degree felony your sentence could be 5 years in jail, probated for 5 years. Lawyers call this "five for five."

Deferred adjudication probation is different. In that case there is no set amount of years set as your maximum punishment. Instead, if you are revoked you are eligible to get the entire range of punishment available.

COMMON PROBLEMS

  • Not Reporting - Most judges and probation officers take a hard line on not reporting. It is not enough to have an excuse (I was sick). You MUST always report. What if you miss a date, or can't report? If it is really impossible to report you must document your attempt to report and show up as soon as possible. Call, write, fax your probation officer and let them know exactly why you are absent, and that you plan to be there as soon as possible. This will not be a defense, however, it will show your efforts to report and may help your case.
     
  • Getting Arrested - If you do get arrested you must report this to your probation officer within 48 hours. Do NOT discuss any new charges with your probation officer. They can and will testify against you.
     
  • Failing Drung Tests - Many probationers have substance abuse problems. Don't let an addiction send you to jail. Make use of the treatment options available.

ARE YOU FACING A PROBATION REVOCATION?

This is just an introduction to a complex field of criminal law. Probation revocation hearings are much more difficult to win than criminal trials. It is important that your attorney has experience fighting these cases.

  
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