Please click on a topic to read more.
What is a Criminal Offense?
Offenses are designated as either felonies or misdemeanors. A felony is an offense which is punishable by death or confinement in a penitentiary. Persons convicted of a felony may also be fined and/or imprisoned in a county jail. A misdemeanor is an offense which is punishable by a fine, confinement in jail, or both.
Categories of felonies
Felonies are classified into five categories according to the seriousness of the offense: I. Capital Felonies; II. First Degree Felonies; III. Second Degree Felonies; IV. Third Degree Felonies; and V. State Jail Felonies.
Capital Felony
- An individual adjudged guilty of a capital felony in a case in which the state seeks the death penalty shall be punished by imprisonment in the institutional division for life without parole or by death. An individual adjudged guilty of a capital felony in a case in which the state does not seek the death penalty shall be punished by imprisonment in the institutional division for life without parole.
- In a capital felony trial in which the state seeks the death penalty, prospective jurors shall be informed that a sentence of life imprisonment without parole or death is mandatory on conviction of a capital felony. In a capital felony trial in which the state does not seek the death penalty, prospective jurors shall be informed that the state is not seeking the death penalty and that a sentence of life imprisonment without parole is mandatory on conviction of the capital felony.
First Degree Felony Punishment
- An individual adjudged guilty of a felony of the first degree shall be punished by imprisonment in the institutional division for life or for any term of not more than 99 years or less than 5 years.
- In addition to imprisonment, an individual adjudged guilty of a felony of the first degree may be punished by a fine not to exceed $10,000.
Second Degree Felony Punishment
- An individual adjudged guilty of a felony of the second degree shall be punished by imprisonment in the institutional division for any term of not more than 20 years or less than 2 years.
- In addition to imprisonment, an individual adjudged guilty of a felony of the second degree may be punished by a fine not to exceed $10,000.
Third Degree Felony Punishment
- An individual adjudged guilty of a felony of the third degree shall be punished by imprisonment in the institutional division for any term of not more than 10 years or less than 2 years.
- In addition to imprisonment, an individual adjudged guilty of a felony of the third degree may be punished by a fine not to exceed $10,000.
State Jail Felony Punishment
- Except as provided by Subsection (c), an individual adjudged guilty of a state jail felony shall be punished by confinement in a state jail for any term of not more than two years or less than 180 days.
- In addition to confinement, an individual adjudged guilty of a state jail felony may be punished by a fine not to exceed $10,000.
Categories of Misdemeanors
Misdemeanors are classified into three categories according to the seriousness of the offense: I. Class A Misdemeanors; II. Class B Misdemeanors and III. Class C Misdemeanors.
Class A Misdemeanor
An individual adjudged guilty of a Class A misdemeanor shall be punished by:
- a fine not to exceed $4,000;
- confinement in jail for a term not to exceed one year; or
- both such fine and confinement.
Class B Misdemeanor
An individual adjudged guilty of a Class B misdemeanor shall be punished by:
- a fine not to exceed $2,000;
- confinement in jail for a term not to exceed 180 days; or
- both such fine and confinement.
Class C Misdemeanor
- An individual adjudged guilty of a Class C misdemeanor shall be punished by a fine not to exceed $500.
Rights of Accused Persons
In general:
The United States and Texas constitutions impose on the prosecution the burden of proof that all persons are presumed innocent and cannot be convicted absent proof beyond a reasonable doubt.
Due process of law:
The United States Constitution provides that no person may be deprived of life, liberty, or property without due process of law. The analogous provision in the Texas Constitution declares that no citizen of Texas may be deprived of life, liberty, property, privileges, or immunities, or be in any manner disfranchised, except by the due course of the law of the land. This provision is also contained in the Texas Code of Criminal Procedure. Concepts of the meaning of due process announced by the United States Supreme Court are binding on state as well as federal judges, and the state and federal courts' duties and responsibilities in administration of federal constitutional law are coequal.
Right to Fundamental Fairness:
Due process has been said to require that an accused be accorded that fundamental fairness that is necessary to due administration of justice. For example, the Due Process Clause requires dismissal of an indictment if it is shown that pre-indictment delay caused substantial prejudice to the defendant's right to fair trial and that the delay was an intentional device to gain a tactical advantage over the defendant. Furthermore, the dictates of due process necessitate that a defendant's right to an impartial jury and a fair trial be protected in the first instance by the trial court, not months or even years later by an appellate court.
Further, no Texas citizen can be deprived of life, liberty, property, privileges, or immunities, nor can any citizen be disenfranchised in any manner except by the due course of the law of the land.
In all criminal prosecutions, the accused is entitled to:
- have a speedy public trial by an impartial jury;
- have the right to demand the nature and cause of the accusation against him or her and to have a copy of the accusation;
- not be compelled to give evidence against him- or herself;
- the right to be heard by him- or herself, or by counsel, or both;
- be confronted with the witnesses against him or her;
- have compulsory process for obtaining witnesses in his or her favor; and
- to be held to answer for a felony after indictment by a grand jury.
Right to an Attorney:
A person accused of a crime has the right to be represented by counsel. A defendant in a criminal matter is also entitled to be represented by counsel in adversarial judicial proceedings. The right to be represented by counsel includes the right to consult with counsel in private sufficiently in advance of a proceeding to allow adequate preparation for the proceeding. An indigent defendant is entitled to have an attorney appointed to represent him or her in any adversary judicial proceeding that may result in punishment by confinement and in any other criminal proceeding if the court concludes that the interests of justice require representation. A criminal defendant also has a right to a jury trial, absent waiver of that right. Furthermore, if the court determines that an accused is indigent, the court must appoint counsel to defend the accused.
NOT So Equivalent Counsel:
The Due Process Clause does not require the state to purchase for an indigent defendant all the assistance that his or her wealthier counterparts might buy. Rather, the key question appears to be whether there is a high risk of an inaccurate verdict absent the assistance.
Right to Bail:
"Bail" is security given by the defendant that he or she will appear before the proper court and answer the accusation brought against him or her. It includes a bail bond or personal bond. A "bail bond" is a written undertaking entered into by the defendant and his or her sureties for the appearance of the principal before a court or magistrate to answer a criminal accusation.
Bail functions as a complement to the presumption of innocence by permitting a person charged with a criminal offense to regain his or her liberty while permitting the courts some assurance of the defendant's presence at trial, by requiring the defendant to give security, subject to forfeiture, if he or she fails to appear as required. Thus, the Texas Constitution provides that with narrow exceptions (unless for capital offenses when the proof is evident), all prisoners have a right to bail pending trial.
The power to deny bail cannot be used as an instrument of oppression. Bail set in a particular amount becomes oppressive when it is based on the assumption that the accused cannot afford bail in that amount, and for the express purpose of forcing the accused to remain incarcerated pending trial. Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted.
Right to be informed & call witnesses:
The Texas Constitution provides that in all criminal prosecutions the accused has the right to demand the nature and cause of the accusation against her or him and to have a copy thereof, and further provides that the defendant shall have compulsory process for obtaining witnesses in his or her favor. These provisions are contained in the Texas Code of Criminal Procedure.
The requisites of accusatory pleadings in Texas criminal proceedings, and the grounds for objection to an accusatory pleading are specified by statute. The primary pleading in a criminal action on the part of the state is the indictment or information.
A defendant charged with a felony is entitled to be charged by indictment. A defendant originally prosecuted in a district or county court in a misdemeanor case may be charged by an information. After being returned to the district court, the indictment must be certified to the county, justice, or other court with jurisdiction to try the case. In contrast, a defendant in a misdemeanor case originally prosecuted in justice or municipal courts may be charged by a complaint.
Right to impartial treatment:
Furthermore, It is the duty of the prosecution in a criminal trial to deal justly and fairly with the defendant. The prosecuting attorney must assume the position of an impartial representative of justice, not that of counsel for the complainant. Furthermore, the prosecutor is vested with broad discretion as to the manner in which the case for the state is presented, but that discretion is not unlimited.
Right to Advance Warning:
Persons have a right to a fair warning that particular conduct will give rise to criminal penalties, and accordingly a court may not apply a new and unexpected judicial construction of a statute to acts committed before the change in the law. However, the constitutional requirement of due process is not violated merely because mens rea is not a required element of a prescribed crime.
Rights related to Guilty Pleas also Protected:
The requirements of due process and due course of law are not restricted to contested criminal cases; they also extend to cases in which the defendant pleads guilty to the offense charged. A trial court has no statutory authority to view pre-sentencing reports prior to a determination of guilt, and the inspection of such reports prior to the determination of guilt is violative of due process.
Right to Appeal:
Although the right of appeal is not essential to due process of law, the Court of Criminal Appeals has the power and authority to prevent the enforcement of a judgment obtained under circumstances that constitute a denial of due process. To constitute a denial of constitutional rights at trial, harm must be shown.
An appellate court gains jurisdiction over an appeal by the giving of notice of appeal in writing. Notice of appeal must be filed within 30 days after the day a sentence is imposed, or within 90 days after the date sentence is imposed if the defendant timely files a motion for new trial. If notice of appeal is filed late, a court of appeals has no jurisdiction over the appeal.
Right to Identification & Probation:
Due process requirements are applicable to various identification procedures and to proceedings for revocation of probation. The fact that the defendant was not represented by counsel may indicate a violation of due process requirements.
Right to Jury Trial:
A jury trial is fundamental to the American scheme of justice. Thus, the United States Constitution protects the right to trial by jury. Under the Texas Constitution, the right of trial by jury must remain inviolate. Accordingly, the Texas Code of Criminal Procedure provides that no person can be convicted of a felony except on the verdict of a jury duly rendered and recorded, unless the defendant, on entering a plea, personally waives the right to trial by jury in open court in accordance with the requirements of the Code.
A defendant may agree to waive a jury trial regardless of whether the defendant is represented by an attorney at the time of making the waiver. However, before a defendant charged with a felony who has no attorney can agree to waive the jury, the court must appoint an attorney to represent the defendant.
Right to Impartial Jury - Appropriate Venue:
State and federal constitutions guarantee a defendant in a criminal case a right to a trial by an impartial jury. A change of venue may be granted in appropriate circumstances on the court's own motion, on motion by the state, or on motion by the defendant. The grounds for change of venue and the procedural requirements for venue change are prescribed by statute. The jury, if required, must consist of residents of the district or county to which venue is changed. In addition, the court must use the courtroom facilities and any other services or facilities of the district or county to which venue is changed.
Right to Speedy Trial:
The right to a speedy trial is constitutionally guaranteed under both the federal and state constitutions. In addition, the Code of Criminal Procedure provides that in all criminal trials the accused must have a speedy public trial. In Texas, the inquiry as to whether the accused's right to a speedy trial has been violated is the same under both the United States and the Texas constitutions.
When a defendant makes a claim that he or she has been denied the right to a speedy trial, the court reviewing that claim must use a four-part test and must consider the following:
- The length of the delay;
- The reason for delay;
- Assertion of the right to speedy trial; and
- Whether the delay caused harm to the accused.
This balancing test requires weighing case-by-case the conduct of both the prosecution and the defendant. No single factor is a necessary or sufficient condition to the finding of a speedy trial violation. The related factors must be considered together with other circumstances as relevant.
Right to Appointment of experts:
Access to the raw materials integral to the building of an effective defense, which is required by due process, includes the appointment of experts. A defendant is required to show how an expert would help in his or her defense before he or she is entitled to have one appointed, and the defendant must supply at least the court with information as to what type of evidence is to be offered against the defendant and how an expert would help. In determining whether the defendant is entitled to have an expert appointed, the court must examine three factors:
- the private interest that will be affected by the action of the state;
- the governmental interest that would be affected if the safeguard is to be provided; and
- the probable value of additional or substitute procedural safeguards that are sought, and the risk of an erroneous deprivation of the affected interest if those safeguards are not provided.
For Example: For purposes of determining whether the defendant was entitled to have an expert appointed, the defendant had a significant interest in having a doctor evaluate medical records where the defendant was charged with the murder of a child, the child died of a skull fracture and swelling of the brain, there were no eyewitnesses, the defendant claimed the child must have fallen from a bed, and few defendants or their attorneys are competent to examine the evidence to determine what force is necessary to cause someone's brain to swell a certain amount.
Right to Psychiatrist or psychologist examination:
It is an affirmative defense to criminal prosecution in Texas that, at the time of the conduct charged, the defendant, as a result of severe mental disease or defect, did not know that his or her conduct was wrong. The Texas Legislature has enacted detailed provisions governing determination of a criminal defendant's sanity at the time of the offense committed as challenged through assertion of the insanity defense.
By statute, any time the issue of the defendant's competency to stand trial is raised, the court may, on its own motion or motion by the defendant, the defendant's counsel, or the prosecuting attorney, appoint disinterested experts experienced and qualified in mental health or mental retardation to examine the defendant and to testify at any trial or hearing on this issue. Absent any indication that, as a result of a severe mental illness or defect, the defendant did not know his or her conduct was wrong, a psychiatric examination is not warranted. An indigent defendant may obtain experts of the defendant's own choice to have the defendant examined as to his or her competency to stand trial but may not manipulate this right to the appointment of a psychiatrist or psychologist so as to obstruct the orderly administration of justice
Note: Effective September 1, 2005, the Texas Legislature repealed former, and has enacted new provisions governing the insanity defense. The new statutes apply to offenses filed on and after September 1, 2005. Among other things, the new insanity provisions change the findings used to determine if an acquitted person should continue under the jurisdiction of the criminal court or be transferred to the civil system, detail use of outpatient and community-based treatment and supervision, and establish qualifications for experts used to evaluate persons raising the insanity defense.
A person who becomes insane or otherwise incompetent after committing a criminal offense cannot be tried for the offense while in that condition. The legislature has also enacted provisions governing determination of a criminal defendant's competency to stand trial when charged with a felony or a misdemeanor punishable by confinement.
Right to Non-Discriminatory prosecution:
The Legislature does not violate due process under the Texas and United States Constitutions by classifying law violators and imposing different penalties, inhibitions and restrictions on several classes, provided there is a reasonable basis for the distinction. The burden of showing intentional and purposeful discrimination in application of the law against an individual, constituting a denial of due process, is a heavy one. To make out a case for a disparate effect warranting further scrutiny under the Due Process Clause of the Fifth Amendment, it is necessary to show that the class that is purportedly discriminated against consequently suffers a significant deprivation of a benefit or imposition of a substantial burden.
Right to Post-Conviction DNA Testing
A convicted person can make a motion for DNA testing of evidence containing biological material in the convicting court. Also, the convicted person is entitled to counsel. The test under the Code of Criminal Procedure to determine whether the defendant is entitled to DNA testing is the reasonable probability standard of whether the defendant would have been convicted or prosecuted in light of exculpatory DNA tests.
Under this standard a convicted defendant must show a reasonable probability exists that exculpatory DNA tests would prove his innocence. This must be shown by a preponderance of the evidence. In order to show that he has not file the DNA motion to unreasonably delay execution of sentence or the administration of justice, the defendant may have to explain in his motion why he did not request DNA testing at an earlier time. The defendant has the right to appeal an adverse finding on his motion for testing and an adverse finding on whether the results are favorable to him to the appropriate appellate court.
Equal protection of law
The Equal Protection Clause of the Fourteenth Amendment provides that no state shall deny to any person within its jurisdiction equal protection of laws. Nevertheless, states are given broad discretion in enacting laws, including criminal laws, that affect some groups of citizens differently than others. A state criminal procedure does violate the Fourteenth Amendment merely because another method may seem to be fairer or wiser or provide more protection to an accused. In general, government has broad discretion in performance of its functions, and usually it may structure its laws in any way bearing some rational relationship to its legitimate purposes, even though advantage or disadvantage may thereby inure to members of certain class. However, a law that establishes different punishments for the same criminal acts in different political subdivisions of the state fails to accord equal protection. Under the Equal Protection Clause, to establish a prima facie case of discrimination in the selection of grand jurors, a defendant must:
- show that a group that is a recognizable, distinct class has been singled out for different treatment under the laws, as written or as applied;
- prove the degree of under-representation, by comparing the proportion of the group in the total population to the proportion called to serve as grand jurors, over a significant period of time; and
- prove that the selection procedure that is susceptible of abuse or is not racially neutral supports the presumption of discrimination raised by the statistical showing.
Unlawful searches and seizures
"The Fourth Amendment guarantees: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV.
What is a Warrantless Arrest?
Provisions relating to arrests are set forth in the Texas Code of Criminal Procedure. In general, a warrantless arrest is unreasonable per se under the Fourth Amendment, unless the arrest fits into one of a few specifically defined and well-delineated exceptions.
A police officer may arrest an individual without a warrant only if probable cause exists with respect to the individual in question and the arrest falls within one of the exceptions set out in the Texas Code of Criminal Procedure. Probable cause for a warrantless arrest exists when facts and circumstances within the officer's knowledge or about which the officer has reasonably trustworthy information are sufficient to warrant a person of reasonable caution to believe that an offense was or is being committed.
The Code of Criminal Procedure delineates limited circumstances in which a police officer may effect a warrantless arrest. These circumstances include public intoxication, commission of an offense within view of a police officer or magistrate, and commission of a felony offense on representation by a credible person.
What is a Warrant of Arrest?
A "warrant of arrest" is a written order from a magistrate directed to a peace officer or to another named person, commanding the officer or person to take an accused into custody. The purpose of an arrest warrant is to secure the presence of the accused at an adversary proceeding. In general, an arrest warrant issued by a county or district clerk or by a magistrate extends to any part of the state. Any peace officer to whom the warrant is directed or transferred is authorized to execute the warrant in any county in Texas.
A magistrate may issue an arrest warrant:
- in any case in which the magistrate is authorized by law to verbally order the arrest of an offender;
- when any person swears under oath before the magistrate that another has committed a criminal offense; and
- in any case under the Code of Criminal Procedure when a magistrate is specially authorized to issue arrest warrants.
What is a complaint?
A complaint is an affidavit made before a magistrate that charges the commission of an offense. The affidavit must provide the magistrate with sufficient factual information to support an independent judgment that probable cause exists to believe that the accused has committed an offense.
The information in a complaint need not be of the same quantity or quality as the evidence required for a conviction. It need only be sufficient for the defendant to ascertain what he or she is charged with so that the defendant can properly prepare a defense. However, a complaint for an arrest warrant which, standing alone, is conclusory and does not reflect probable cause is invalid.
Note: A magistrate may issue a summons instead of a warrant. A summons commands the defendant to appear before the magistrate at a stated time and place. Thus, a summons generally serves the same purpose as an arrest warrant, while sparing the defendant embarrassment and saving the state time, effort, and expense. If a defendant fails to appear in response to the summons, a warrant will be issued.
