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The Early Part of a Texas Criminal Case in State or Federal Court

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Why a Defense Lawyer is So Important in the First Stages of a Criminal Case

Crimes that can get you arrested in the Dallas – Fort Worth Metroplex, as well as the rest of the Lone Star State, are defined by the Texas Penal Code as well as federal statute.  Every single day, arrests are made here for serious felony violations under both these systems of law.

Felony Arrests under Two Systems: Texas or Federal Law

Pursuant to the state and federal criminal codes, felonies can cost someone many years of freedom, if not the rest of their days – or even their life itself.  However, how the process works and what can happen to the accused is not the same for Texas arrests as they are for federal busts.

It’s vital for anyone whose freedom is threatened to understand the distinctions between federal and state. It’s also imperative that they know that it is in the early part of these felony cases that people need a criminal defense lawyer the most. 

When you are arrested in Texas, the state peace officer usually has an arrest warrant authorizing taking you into custody (there are exceptions to needing a warrant).  See, e.g., Tex. Code of Crim. Proc. Art. 14.03.  Here in Dallas, you most likely taken down to Lew Sterrett, the big Dallas County Jail down on West Commerce.

If you are arrested on federal charges, it may be based upon a criminal complaint or an arrest warrant. Federal agents take you into custody.  It’s likely that you’ll end up at Seagoville, the big federal detention center here in Dallas County.

Legal rights and constitutional protections exist for the accused immediately upon questioning (even before you are taken into custody).  Were you given your Miranda Rights? When?  Miranda Rights are required in both state and federal arrests and must be given by the arresting officer. 

Things are different once you are arrested.  Texas criminal procedure is not the same as federal procedure, but the accused’s need for a criminal defense lawyer as soon as possible is unchanged.



After Arrest:  Arraignment and Getting Freed on Bail Bond in Texas

Once the defendant is arrested and brought to jail, he will stay there until his Initial Appearance at the Arraignment.  The accused must be brought before the court within 48 hours of being arrested.

Arraignment.  This is a short hearing before a Texas magistrate, where bond is set after formal charges are filed against you by the prosecutor and you enter a plea (usually not guilty).  You have a right to have an attorney represent you at the arraignment.  You have a right to reasonable time and opportunity to consult with your lawyer before the arraignment begins.

At the Arraignment, the Magistrate must inform the accused, in language easy enough to understand, of the following:

  1. the accusation against the person arrested and of any affidavit filed therewith;
  2. the right to retain counsel;
  3. the right to remain silent;
  4. the right to have an attorney present during any interview with peace officers or attorneys representing the state;
  5. the right to terminate the interview at any time;
  6. the right to request the appointment of counsel if the person arrested is indigent and cannot afford counsel;
  7. the procedures for requesting appointment of counsel;
  8. the right to have an examining trial; and
  9. the person arrested is not required to make a statement and any statement made may be used against the person arrested.

Most importantly for the accused, now is when the bail bond amount is set.  Bail gives the defendant his freedom to return home while the charges against him are pending.


In Texas, the defendant will remain in jail until a magistrate sets a bond (which is required by law).  Bond is set pursuant to Texas Code of Criminal Procedure 17.15.  The five factors the Magistrate is supposed to consider are:

  1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.
  2. The power to require bail is not to be so used as to make it an instrument of oppression.
  3. The nature of the offense and the circumstances under which it was committed are to be considered.
  4. The ability to make bail is to be regarded, and proof may be taken upon this point.
  5. The future safety of a victim of the alleged offense and the community shall be considered.

There is a specific bond schedule that should be followed.  (Review the current Dallas County Bond Schedule in my Digital Library.)

If the bond amount set is too high, the defense lawyer can file a motion for a writ of habeas corpus to get the bond amount reduced.

Examining Trials

Before a defendant is indicted on a felony charge under Texas law, he has the right to ask for an “examining trial.”  The Magistrate must inform the accused of this right at the Arraignment.

In Texas, you are usually arrested based upon an arrest warrant.  However, the prosecutor cannot proceed on a felony charge without doing more than relying on that arrest warrant.  All felonies in Texas must be prosecuted pursuant to an Indictment.

An Indictment is a grand jury’s determination that there is probable cause and sufficient evidence to believe that the accused committed the felony crime.  The prosecutor brings evidence before the grand jurors, and if at least 9 of the 12 members of the grand jury agree on the charges, then the Indictment is issued.

Before the Grand Jury proceedings begin, the defendant can fight to have the case tossed out.  This is through an “examining trial.”

Under Texas Code of Criminal Procedure 16.01, every defendant is entitled to have an examining trial prior to the grand jury hearing.

At the examining trial, the defense lawyer has an opportunity to cross examine the state’s probable cause witnesses. This is usually done in front of a magistrate with a court reporter present.

A skilled defense attorney can usually get an unprepared witness to make admissions which will be very damaging to the Government’s case. The admissions will be recorded on the record.  They will be evidence that can be used later in front of the Grand Jury or even at trial.

It is important to hire a defense lawyer early in a case because the defense lawyer can request an examining trial and conduct a probable cause hearing prior to the grand jury becoming involved. This can sometimes yield helpful testimony in preparation for Grand Jury or even trial.  It can end up with the charges being dismissed, as well.

After Arrest:  Appearance and Freed or Detained in Federal Criminal Process

In the federal system, the defendant is arrested and brought directly to a U.S. Magistrate Judge for an Initial Appearance.

Initial Appearance

The Initial Appearance in federal court legally must take place within 48 hours of the arrest.  At the Initial Appearance, the accused will get a copy of the federal charges filed against him.

The indictment or complaint is read to the defendant, and the Magistrate Judge will appoint defense counsel if the accused has not retained a defense lawyer and cannot afford one.

Bail Hearing

It is at the Initial Appearance that the Magistrate Judge will make a decision on whether or not the accused can be freed or must remain in federal custody and behind bars.  This is considered a bail hearing that takes place during the Initial Appearance.  It is the decision of the magistrate whether or not to grant bail to the accused facing federal felony charges.

However, the defense lawyer may think a brief delay on the bail hearing will allow the defendant to be better prepared to demonstrate why bail should be granted.  If so, the lawyer can request that bail not be decided at the Initial Appearance but deferred for a time. 

Having an experienced defense lawyer for the Initial Appearance may increase the likelihood of getting freed on bail. 

Motion to Detain – No Bail

The prosecutor in federal court is from the United States Attorney General’s Office.  If the federal prosecutor does not want the accused to be freed, he or she files a Motion to Detain the Defendant which is not heard by the Magistrate Judge at the Initial Arraignment.

Bail is not decided when this motion is filed by the government.  Instead, the accused must remain in jail for no more than 3 days longer, when the Motion to Detain the Defendant will be heard by the Magistrate Judge at a “detention hearing.”

Detention Hearings

Some offenses brought against the accused create a Presumption of Detention.  If the defense cannot refute the presumption, then the defendant cannot be granted bail of any amount and bonded out.  He or she must remain in custody through trial.

The prosecution may not have to do a thing here because the language of the indictment may establish the presumption.  Under federal law, there are certain charges in an indictment that raise a rebuttable presumption that the accused should be detained.  See,  United States v. Dillon, 938 F.2d 1412 (1st Cir.1991)Suppa, 799 F.2d at 119United States v. Dominguez, 783 F.2d 702, 706 n. 7 (7th Cir.1986)Hurtado, 779 F.2d at 1477-79United States v. Contreras, 776 F.2d 51 (2d Cir.1985)United States v. Hazime, 762 F.2d 34, 37 (6th Cir.1985)United States v. Mosuro, 648 F.Supp. 316, 318 (D.D.C.1986).

Rebuttable Presumption of Detention

There are three kinds of offenses that created a presumption that the defendant should be detained and not allowed freedom before trial.  Under 18 U.S.C. § 3142(e), these are criminal offenses that give rise to a rebuttable presumption that “no condition or combination of conditions” will:

(1) “reasonably assure” the safety of any other person and the community if the defendant is released; or

(2) “reasonably assure” the appearance of the defendant as required and “reasonably assure” the safety of any other person and the community if the defendant is released.

The three offenses are:

  • the person has been convicted of a Federal offense that is described in subsection (f)(1) of this section, or of a State or local offense that would have been an offense described in subsection (f)(1) of this section if a circumstance giving rise to Federal jurisdiction had existed;
  • the offense described in paragraph one of this subsection was committed while the person was on release pending trial for a Federal, State, or local offense; and
  • a period of not more than five years has elapsed since the date of conviction, or the release of the person from imprisonment, for the offense described in paragraph (1) of this subsection, whichever is later.

18 U.S.C. § 3142(e)(1)-(3).

Overcoming the Presumption to Gain Release on Bail

It is possible for the accused to get bail even if there is a presumption of detention in his case.  If the defense lawyer can overcome the presumption with direct testimonial evidence at the detention hearing, the Magistrate can rule in favor of the defendant being released on bail.

Key here is having an experienced federal criminal defense lawyer prepared and ready within the short time from arrest to the detention hearing (i.e., in a few days) to have live witnesses ready to take the stand and testify on behalf of the defendant before the magistrate.  The goal will be to demonstrate to the Magistrate that the defendant is not a danger to the community or a flight risk, and that bail should be granted.    

Probable Cause Hearing at the Federal Detention Hearing

Not every defendant in federal court is charged based upon an indictment.  Federal charges also originate in a sworn complaint filed by the Attorney General’s Office.

If the defendant is arrested strictly on a sworn complaint, then that defendant is legally entitled to challenge the probable cause for his arrest at the same time that as the detention hearing before the Magistrate.

Indictments are issued by the federal grand jury.  The federal prosecutor must present evidence to the grand jury, and they must make a decision on whether or not there is probable cause to believe that the accused has committed a federal crime.  Sworn complaints do not have the preliminary determination by a grand jury about probable cause.

Accordingly, the defendant has the right to challenge whether or not there was sufficient legal basis to arrest him in the first place when the arrest is based upon a sworn complaint.

In these situations, having an experienced federal criminal defense lawyer at this early stage of the federal proceeding may mean the end of it.  The defense may be able to gut the government’s case by showing insufficient probable cause existed to support the arrest in the first place.

Key here is having a defense lawyer who is ready and prepared to cross examine the U.S. Government’s witnesses about probable cause.

Pre-Trial Release

In federal proceedings, it is possible to be released pre-trial, subject to the supervision of a United States Probation Officer.  Here, the accused is freed on his or her personal recognizance or unsecured appearance bond, as decided by the Magistrate Judge.

The defendant may be released and freed subject to one or more conditions. These are set by the Magistrate in the order granting pre-trial release.

It is considered favorable to release defendants pending trial because “… deprivation of liberty pending trial is harsh and oppressive, subjects defendants to economic and psychological hardship, interferes with their ability to defend themselves, and, in many instances, deprives their families of support.”  ABA Standard 10-1.1 Pretrial Release.

For example, in an earlier post, we referenced how neurologist Dr. Eugene Gosy was able to negotiate his ability to continue practicing medicine while facing trial on an 166-count indictment for health care fraud.

The Pre-Trial Release Report.

Before making the decision to grant pre-trial release to the defendant, the Magistrate will seek and review a United States Pre-Trial Release Report.  These contain the findings of the investigation performed by officers of the U.S. Probation and Pretrial Services Division.

It is imperative that the accused and his or her family understand the perception and approach that will be taken by those who are compiling the Pre-Trial report.

As the Northern District of Texas Office explains,

The most important thing to know is what is expected of you to succeed, and the most important thing to do is communicate openly and honestly with your probation and pretrial services officer.   The officer’s greatest responsibility is protection of the public.  That means we will assist you in acquiring assistance and resources, but we will also monitor your condition and activities to ensure that you are in compliance with the Court’s order or expectations, while treating you with respect and dignity as outlined in our Role and Authority of the Officer document.

From a criminal defense perspective, it is important for defendants and their families to cooperate as much as possible with probation. Pre-trial release is a good thing and being uncooperative with the Pre-Trial Release process will not help matters.

Having an experienced criminal defense lawyer involved at this stage can be invaluable to those facing federal felony charges.  That defense lawyer will explain how this process works, and how it can be complicated and sometimes, even self-sabotaging.

For instance, it is not wise for any defendant to discuss their criminal history with probation officers.  Why? Anything they say now can be used against them later on, in their criminal history category calculation for sentencing purposes.

Instead, defendants might simply state they do not know the exact details of their criminal history when they are asked about it.  Or refer to their defense lawyer for details.  (The probation officer will run a full NCIC anyway.)

The Wisdom of Hiring Your Defense Attorney ASAP

The early stages of a criminal case in either the state or federal systems can be tremendously slanted in favor of the government, even if the defendant is a highly-educated professional or someone with great wealth and backing.

This is because the process in each system of justice is complicated and both the arresting officers and the prosecutors are well-versed in getting their jobs done and building their cases.  They are in it to win it, and delaying efforts on your part to level the playing field by getting your own lawyer cannot serve to help you.

There are no guarantees that having an aggressive and experienced defense lawyer will get your case dismissed or your son free on bail – but failing to get a defense lawyer advocating on your behalf at the earliest possible moment does guarantee that the state will be operating at a tremendous advantage.


For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article,” Pre-Arrest Criminal Investigations.”



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