The Criminal Process Guide

The court system can be confusing if you do not understand the process or the steps taken to arrest you. Here is a step-by-step process of what the workings are that will happen before the arrest and the steps after the arrest. As always, never take on the court system without an attorney to guide you through it. Legal representation is important not only in your case but also to protect you from being accused of something you did not do.

The Investigation

This part of the criminal process is important to note because before a police officer can arrest you, they must first have probable cause. Probable cause means they have reasonable grounds for making a search and pressing a charge. Probable cause is a requirement of the 4th Amendment and usually must be met before a police officer or a sheriff makes an arrest, conducts a search or receives a warrant.

Police officers of a sheriff are expected to investigate and justify the charge against you through procedures like interrogating suspects and witnesses to the crime. They should be searching the property where they suspected the crime was committed using a warrant. And they should be seizing property they suspect is linked to the case and can be presented in court as evidence.

Courts find probable cause when there is a reasonable basis for believing a crime may have been committed or when evidence of a crime is presented in a place to be searched.

Only under exigent circumstances, can a probable cause justify a warrantless search or seizure. Exigent circumstances are circumstances that would cause a reasonable person to believe an entry is necessary to prevent physical harm to others or police officers. This also includes preventing the destruction of relevant evidence, the escape of the suspect or some other consequence.

People who are arrested without a warrant are required to be brought before a competent authority. This means after being arrested without a warrant, you will appear before a neutral judge who will decide if the arrest was made with probable cause.

The Arrest

When you are arrested officers must inform you of your Miranda Rights, these rights include the right to remain silent, that any statements can be used against you, the right to consult with an attorney or have an appointed attorney if you cannot afford one and the right to have an attorney present during questioning. If an officer fails to read you the Miranda Rights, any statement made before your rights were read can be thrown out of the case.

If you get arrested even when you are innocent it is in your best interest to stay silent and ask for an attorney. Doing this ensures the officer will follow due process and you will also be advised on how to approach the arrest. Asking for an attorney can only benefit you as it will help you stay protected and make sure you do not incriminate yourself to the police.

Once you get to the police station, you will be searched for any type of weapon or illegal substance; they will take your fingerprints and photograph you. They will also record the charges against you, if the crime committed was a misdemeanor class C, then the prosecutor will file a complaint against you. But if it was a misdemeanor class A or B, then the prosecutor will file information against you. For felony cases, the prosecutor will have to seek an indictment before officially filing criminal charges. It is important for you to maintain your silence and contact a lawyer for assistance.

The Arraignment

After the arrest, the defendant is set for arraignment this is when the formal charges are filed against you. This should happen as soon as possible but according to the state of Texas law; the arraignment can occur within the first 48 hours. During the arraignment, the judge will ask if you will plead guilty or not guilty to the charges against you.

You will receive a copy of the complaint that was made, the indictment or the information that was charged against you. The judge will also remind you of your legal rights. Such as, you have the right to retain an attorney or have a court order an attorney for you if you cannot afford it. The right to remain silent, but if any statement is made to the police, sheriff or the court it can be used against you. The right to have an attorney with you during any interview with an officer. The right to terminate an interview at any time and the right to conduct an examining trial, meaning a trial that will include a jury. Most of the time, defendants will plead not guilty at their arraignment hearing to avoid going straight into receiving a sentencing. The defense attorney or prosecution could request a continuance, such as a request from the defense attorney or prosecution to ask the court for more time to investigate the case further and gather more evidence.

After being told your rights, the judge is required to give you a reasonable amount of time and an opportunity to consult with your attorney if you have one or to hire an attorney and will set a bond if the law allows it. Then the judge will set bail or bond on your case to ensure you will come back to court.

Bail, Bond and Cash Bond

A bond is essentially an agreement or a contract. A bond is posted on a defendant’s behalf, usually by a bail bond company to secure his or her release. Many states, including the State of Texas, allow private bail bondsmen to help the alleged defendant create a bond agreement. This type of bond is called a surety bond. Under the terms of a bail bond, the defendant must pay 10% of the total bail amount to the bail bondsman, who will then pay the defendant’s bail with the court. The defendant can then be released from jail.

There is also a bond called a cash bond. In this type of bond, the defendant can pay the full amount of the bond and receive most of it back at the end of the defendant’s case. However, there may not be a personal bond available to you for an aggravated assault charge, also known as a felony in the State of Texas.

Bail is another way a defendant can be released from custody while awaiting trial. Bail is money a defendant must pay to be released from custody as the defendant awaits to go to trial. A defendant with pending warrants is usually not eligible for bail.

The Court will decide if the defendant is qualified for bail or bond. The Court will then notify the defendant of its decision within 48 hours after he or she is arrested and notify him or her about which type of bond was ordered. The defendant will also be notified if they are denied bail.

The Indictment

This happens when the charge is a felony, then the indictment will occur. A grand jury consisting of 12 members will determine if there is enough sufficient evidence to hold the accused for trial. If 9 out of 12 agree, then it will move forward. It is important to note grand juries do not find people guilty or not guilty, they instead will vote a “True Bill” or “No Bill”. True Bill means that they found probable cause that the accused committed the crime and No Bill means that they did not find probable cause. If the prosecutor wants to continue fighting for the charges to be filed, then they have to present the case to a grand jury for another judgment.


The pre-trial consists of multiple things; in these types of hearings, you can have a meeting that can include you, your attorney and the prosecutor. The attorneys might talk about your case’s strengths and weaknesses, start negotiations and a settlement proposal and look at the evidence of your criminal history, if there is one. You will also announce to the court if you are ready to proceed to trial or not.

Pre-Trial: Plea Bargain

The first thing that could happen is a plea bargain, as most cases are solved in this way to save the client time and money. A plea bargain is an agreement between the prosecutor, the defense attorney and the defendant. Plea bargains are mostly given to the defendants in exchange for benefits, like lowering their sentencing, charges, counts or fact. You can make a plea bargain any time before the prosecutor files their charges or it can be arranged after the jury has started. You can choose to plead guilty or no contest, when you plead guilty it is an admission of guilt, whereas a no contest is when a defendant is not contesting a charge. So, you are not admitting guilt, but you will take the punishment given. A no-contest can be beneficial to you later if a civil case were to open against you. The prosecution cannot use your no-contest against you; whereas a prosecutor can use a guilty plea against you in civil court.

Pre-Trial: Discovery

You will then enter into Discovery. Discovery is a process where information about a case is exchanged between the prosecutor and defendant. You can file a motion for discovery either before or during a trial, but it is best to do it before a trial so you know what evidence they have and your attorney can defend you better. There is no automatic discovery, so be sure to ask your attorney for one. Evidence you can request to inspect or gain access to is: audio, video, photographic and electronic evidence. You can also gain access to documents, written or recorded statements from the defendant, books, objects or tangible things like guns or drugs.

Pre-Trial: Suppression Hearing

This will happen if your attorney files a motion to suppress evidence to request the judge exclude certain evidence. This is beneficial to you as the defendant if evidence was obtained by law enforcement illegally. Then the questionable evidence will not be allowed to be used during the trial.

The Trial

If the case goes to trial, you will have the choice to choose a trial by jury or waive your right and have a trial by judge, also known as a bench trial. A trial by jury is the most common and you will have to present your case to a jury of 12 people. The jury will have the burden of unanimously agreeing if you are guilty or not guilty. There will be a jury selection process to make sure the jury you have holds no prejudice and will be as impartial as humanly possible. Juries are great, as they are ordinary people and as such, it is hard for people not to be emotional. This can benefit your case as you can sway their emotions to win them over. But the prosecution can do the same and it can be just as detrimental to your case. A jury trial can also take a long time; it can go on for a couple of days, to week, and at the longest months. This can be very costly and time-consuming for the defendant and court, which is why most cases will not go to trial.

If you choose to waive your right of a trial by jury, you can have a bench trial. This type of trial can be denied by a judge and then you will have to be tried by a jury. The only person who can waive your right is you. Make sure you consult your attorney to see if this type of trial would best suit your case. The advantage of a trial by a judge is that it can move more quickly as there will not be a jury process. This is a lot more cost-efficient and saves time for the defendant; which might be more appealing to some. The disadvantage of a bench trial is, the judge will be the only one to decide if you are guilty or not guilty, whereas, in a jury trial, the 12 jurors must agree together of your innocence or guilt. A bench trial is good for complex cases as the judge will understand the law a lot better than a jury.

The Verdict

After the trial is complete, the jury or judge must give a verdict of guilty or not guilty beyond a reasonable doubt. For a jury trial, the verdict must be unanimous; meaning all 12 jurors must agree on guilty or not guilty. If they cannot come to an agreement and it is a hung jury, then the court will declare the case as a mistrial. If the verdict is a mistrial, the defendant can go free, but the prosecution has the right to try the case again. For a bench trial or trial by a judge, the judge will look at the evidence presented and the law before giving their verdict.

The Sentencing

If the defendant is convicted or pleads guilty, then they will be sentenced for their crime. Each crime type and level of offense will come with its own standardized sentencing given by the Penal Code, but there are other factors that can play a role in the severity of the sentence. These factors include previous criminal activity if there is any and the severity of the crime. Some punishments that could happen include: house arrest, probation, prison or state jail time, rehabilitation programs and fines.

The Appeal

If convicted of a crime, you may have the right to appeal the conviction unless you have given up the right to appeal as part of a plea bargain. In order to appeal, your attorney and you must show evidence of improper procedures that occurred during the trial. If your appeal is successful, then you may get a retrial, although you only get a retrial if the prosecutor chooses to refile against you. If they choose not to, then the charges will be dropped. It is important to remember, though, that the case can be retried later on as long as it is within the statute of limitations.

Need Help? Call Us Now!

Do not forget when you or anyone you know is facing a criminal charge, you have us, the Law Office of Bryan Fagan, by your side to help you build the best defense case for you. We have professional and knowledgeable criminal law attorneys who are experienced in building a defense for you that suits your needs for the best possible outcome to benefit you. We offer complimentary consultations via zoom, phone or in-person. And we will provide you with as much advice and information you need so you can have the best possible result in your case. Call us today at: 281-810-9760.

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