Criminal Defense Attorney Resource Center

General Rights of the Accused

Burden of proof – In a criminal case, the burden of proof is the government (the prosecution). In order to get a conviction in court, they have to prove you guilty. If they cannot prove you guilty, you are by default not guilty. This means you don’t have to prove that you didn’t do it; you don’t have to prove anything. Even if the jury thinks you most likely did it or probably did it, that’s not enough. Most likely and probably = Not Guilty.

Level of Proof – The government must carry the burden of proof and must do so by proving you guilty beyond a reasonable doubt. This is the highest level of proof in our legal system (and the highest in the world). In civil cases (like car accidents or lawsuits by corporations for millions of dollars) the level of proof is much lower. The criminal law combination of the burden of proof (on the government), the level of proof (beyond a reasonable doubt), and the presumption of innocence (you’re not guilty unless the government meets it’s burden and proves you guilty beyond all reasonable doubt) – especially in the hands of a skilled Dallas criminal lawyer – can make it very difficult to convict.

General Rights – The US Constitution, as well as the Texas Constitution, guarantees all of us with some important and powerful rights against government overreach and oppression. First and foremost is the right to a public trial. Trials must be public so that everyone can see what the government is up to. Next is the right to confront one’s accusers. Secret witnesses and sealed testimony were common in the Old World countries at the time of our country’s founding. When you’re accused of something, the government must bring its evidence and witnesses to the open and public court so that you can see what they have and who is saying what against you. You then, through your criminal defense attorney, get to cross-examine them. Third, you have the right to call witnesses to court to testify on your behalf. This coupled with a witness subpoena power equal to the government’s somewhat levels the playing field for you when you’re accused of a criminal offense. And finally, you have the right to testify on your own behalf or remain silent. These are equal powers that no one can take away from you. No one can stop you from testifying if that’s your choice and no one can make you testify if you don’t want to. If you choose not to testify, that cannot be taken as evidence of your guilt or for any reason whatsoever.

Know Your Rights

Want more information about these and more rights? Check out our Know Your Rights page where we have compiled a list of your rights, your responsibilities, and what to do in common situations when you encounter law enforcement.

Mental States Defined

All criminal offenses must involve a voluntary act. Most (but not all) criminal offenses a culpable mental state: that the accused acted intentionally, knowingly, recklessly, or with criminal negligence. Offenses that do not involve a culpable mental state are commonly called “strict liability offenses.”

Intentionally – A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.

Knowingly – A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

Recklessly – A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.

Criminal Negligence – A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.

Responsibility of Other’s Conduct

Law of Parties – Commonly called being an accessory, in Texas a person is criminally responsible for the conduct of another as if he himself committed the crime if:

  • acting with the kind of culpability required for the offense, he causes or aids an innocent or non-responsible person to engage in conduct prohibited by the definition of the offense;

  • acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; or

  • having a legal duty to prevent the commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent the commission of the offense

Defenses

Self-defense – A person is justified in using force in self-defense against another when and to the degree the actor reasonably believes is immediately necessary to protect against the other’s use of or attempted use of unlawful force. The belief that the force was immediately necessary is presumed reasonable if the actor knew or had reason to believe the other person:

  • unlawfully and with force entered or was attempting to enter their habitation, vehicle, or place of business or employment,

  • removed or was attempting to remove the actor from their habitation, vehicle, or place of business or employment, or

  • was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

The actor must not have provoked the other person and must not have been otherwise engaged in criminal activity when they used force in self-defense.

The Texas “castle doctrine” states that a person who has a right to be present at the location where force was used is not required to retreat before using force. The jury/judge cannot consider failure to retreat in deciding if force was immediately necessary. Many people mistake this law to mean that they can automatically use force or even deadly force in their home no matter what. That’s not necessarily the case. You don’t even have to be in your home; you only must have the right to be wherever you are when the force is used. But just because you don’t have to retreat doesn’t automatically make your use of force justified; it still must be deemed reasonable & immediately necessary.

A person is justified in using deadly force in self-defense when they are justified in using force (as described above) and when and to the degree the actor reasonably believes deadly force is immediately necessary:

  • to protect actor against other’s use or attempted use of lawful deadly force, or

  • to prevent other’s imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery

The belief that deadly force was immediately necessary is presumed reasonable if the actor know or had reason to believe the other person:

  • unlawfully and with force entered or was attempting to enter their habitation, vehicle, or place of business or employment,

  • removed or was attempting to remove the actor from their habitation, vehicle, or place of business or employment, or

  • was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

The actor must not have provoked the other person and must not have been otherwise engaged in criminal activity when they used force in self defense.

 

Defense of a Third Person – A person is justified in using force in defense of a third person if, under the circumstances as the actor reasonably believes them to be, the actor would be justified in using self-defense or deadly force (as explained above) if he was standing in the third person’s shoes and the actor reasonably believes force or deadly force is immediately necessary to protect the third person.

 

Defense of Property – A person who is in lawful possession of property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other’s trespass on land or unlawful interference with property.

Deadly force in defense of property is justified when force would be justified (above) and when and to degree actor reasonably believes deadly force immediately necessary:

  • to prevent other’s commission of arson, burglary, robbery, aggravated robbery, theft during nighttime, or criminal mischief during the nighttime, or

  • to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and

  • he reasonably believes that

    • and/property can’t be protected or recovered by other means or

    • use of force other than deadly force would expose the actor or another to a substantial risk of death or serious bodily injury

 

Mistake of Fact – It is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense. Although an actor’s mistake of fact may constitute a defense to the offense charged, he may nevertheless be convicted of any lesser included offense of which he would be guilty if the fact were as he believed.

Mistake of law (not knowing something was illegal) is not a defense against prosecution.

 

Intoxication – Voluntary intoxication is not a defense to criminal prosecution, but can be used as evidence in mitigation of punishment.

 

Insanity & Incompetency – Insanity and incompetency is commonly confused. Insanity, which is a defense to prosecution, means that due to a severe mental disease or defect, the actor did not know that their action was wrong. Incompetency (or being incompetent to stand trial), which is not a defense, means that at some point after the commission of the crime the accused does not have:

  • sufficient present ability to consult with the person’s lawyer with a reasonable degree of rational understanding; or

  • a rational as well as factual understanding of the proceedings against the person.

 

Differences Between a Misdemeanor and a Felony

Texas law splits up all criminal charges into felonies and misdemeanors. A felony is any crime that carries a possible punishment range of more than one year of incarceration. People jailed for a felony conviction serve their sentence in the state prison (called the Texas Department of Criminal Justice, or TDC, Institutional Division) or state jail facility. A misdemeanor in Texas is any crime that carries a possible punishment range of no more than one year. People jailed for a misdemeanor conviction serve their sentence in the county jail. Generally, misdemeanor offenses involve shorter probation lengths, less strict probation conditions, and lower (but still substantial) fines.

 

Misdemeanor Penalty Ranges

Misdemeanor offenses are divided into three classifications:

  • Class C Misdemeanors – commonly referred to as tickets or citations, these are punishable by a fine of up to $500 and no jail time

  • Class B Misdemeanors – punishable by up to 180 days (6 months) in the county jail and a fine of up to $2,000

  • Class A Misdemeanors – punishable by up to 1 year in the county jail and a fine of up to $4,000

 

Felony Penalty Ranges

Felony offenses are divided into four degrees or classifications:

  • Capital Felony – punishable by life in prison without the possibility of parole or the death penalty.

  • First-Degree Felony – punishable by between 5 and 99 years or life (with parole) in prison and up to a $10,000 fine.

  • Second-Degree Felony – punishable by between 2 and 20 years in prison and up to a $10,000 fine.

  • Third-Degree Felony – punishable by between 2 and 10 years in prison and up to a $10,000 fine.

  • State Jail Felony – punishable by between 180 days (6 months) and 2 years in the state jail facility and up to a $10,000 fine.

 

Criminal Process

Misdemeanor Offenses – A criminal case starts with some sort of police involvement. The responding officer will generally write a police report (commonly called an incident report) and may or may not make an arrest there at the scene. The officer will then turn in their incident report to their supervisor and, depending on the type of the case, it may get assigned to a detective (sometimes called investigating officer) to conduct additional investigation. The officer (or detective if involved) will then make the decision of whether to submit the case to the District Attorney (prosecutor). The District Attorney’s office will then review the case to decide whether they will accept or reject the case. If they accept it, it is considered “filed.” For misdemeanor cases, once a case is filed it is assigned to criminal court and the court issues a first court setting.

Felony Offenses – Felony offenses follow the same basic pattern as a misdemeanor (described above), except after filing it must go through the additional step of being heard by the grand jury. The grand jury acts as a check on the District Attorney by making sure they have enough evidence (probable cause) to move forward with the case. Experienced criminal defense lawyers in Dallas will consider whether to make a presentation to the grand jury (sometimes called a “grand jury packet”) arguing that the grand jury dismiss the case. If the grand jury decides the prosecutor has evidence amounting to probable cause, they will indict the case an issue an indictment, which is the charging instrument that lays out the elements of the crime that the prosecutor must prove the accused guilty beyond a reasonable doubt. If the grand jury decides the prosecutor doesn’t have probable cause for the crime alleged, they can return an indictment for a lesser criminal charge (called an “information” if the lesser charge is a misdemeanor) or they can dismiss the case outright. If a case is indicted it then gets assigned a court and the court issues a first court setting

 

What is the Difference Between Deferred Probation & “Regular” Probation

Probation (also called community supervision) is divided into two basic types: deferred adjudication probation and “regular” probation. The day-to-day life of a probationer on both types is essentially the same. There are, however, some major differences.

Conviction – In deferred adjudication probation the judge does not pronounce you guilty. Instead, the judge defers (or holds off) the finding of guilt and places you on probation. If you successfully complete that probation you are never found guilty of the offense and the case is discharged and dismissed. In “regular” probation, however, when the judge places you on probation he/she does pronounce guilt (find you guilty).

Penalty Range – In deferred adjudication probation, because the judge has not found you guilty, the entire possible punishment range remains open while you are on probation. If your deferred probation is revoked (or in legal terms “adjudicated”), the judge can sentence you anywhere within the punishment range for the offense. In a “regular” probation, however, when the judge sentences you, he or she sentences you to a jail or prison term and then probates that sentence and puts you on probation. If the judge later revokes that probation, your sentence is then capped at (can go no higher than) whatever the jail/prison sentence the judge originally pronounced.

Ability to Seal Your Record – In legal terms, this is called a petition for nondisclosure. Only deferred adjudication probation cases are eligible to be sealed once successfully completed. After your deferred probation is discharged and dismissed and any applicable waiting period has elapsed, you can then petition the court for a nondisclosure (to seal your record) as long as your offense is not automatically ineligible for nondisclosure (like assault family violence cases).


The information contained on this website is for informational purposes and should not be construed as legal advice, a substitute for legal advice, or as creating an attorney/client relationship between the reader and the Law Office of Mike Howard. Consult an attorney about your specific situation and the facts involved for comprehensive legal advice.