Houston Criminal Law Journal by Texas Lawyers covering DWI Drunk Driving Arrests, Criminal Defense Charges, Drug Possession, and Assault

Today while at the courthouse an attorney asked for advice. I have absolutely no problem with that. I think its a great idea to ask your peers their opinion on legal issues. But this question was something a client should be asking his attorney and an attorney should know the answer. If an attorney is asking the question they shouldn't be practicing criminal defense law.

The question was whether his client was eligible for probation after having served time in TDC for a felony conviction. The answer is no. Not to say that defendants with previous felony convictions don't sometimes get probation with a judges approval either through a Presentence Investigation or through a plea bargain after prosecutor is convinced based on the facts that probation is warranted.

How can an attorney represent someone accused of a felony and not have a basic understanding of the law? It reminds me of the many calls we get asking whether someone can get their record cleared or expunged after a conviction. I always inquire as to what their attorney advised. Some attorneys actually advise that the conviction can be expunged. Other times the client failed to ask what the consequences were.

It is the responsibility of an attorney to explain the options and consequences of a particular legal matter. If you are charged with a crime and paying an attorney to represent you, you should expect the attorney to explain the process and options so that you can make an informed decision. You don't want to be in a position years down the road with a conviction preventing you from getting a job or apartment. We always encourage our clients to come into our office and sit down and discuss the case. You should expect this of your attorney.

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A common practice in Harris County, Texas criminal courts is for the judge to admonish someone that is accused of a crime before setting a case for trial.  I am not a fan of this tactic.  Typically, the scenario is like this:  The judge asks the prosecutor "What is Mr. X charged with....  Then the judge turns to Mr. X and says "well Mr. X I can not believe that the State is even offering you that.  Let me tell you that I will not accept any type of plea agreement once we set this case for trial in my court.  In fact, the maximum sentence for this charge is ____."  In this common scenario the judge is assuming that the person is guilty.  They are forgetting that the person before them is PRESUMED TO BE INNOCENT.  Also,  the judge's role is to be neutral.  I always give the example that the judge should act like a referee making sure that everyone is playing by the rules of the court.

In my practice, all of my clients are well informed and know the range of punishment.  I advise them of all their options.  While no lawyer can guarantee the outcome of the case I am there to protect my client and give them my opinion regarding all the possible scenarios.  A person is scared enough during the criminal process that they do not need a judge scolding them for asserting their constitutional right to a trial.

If you find yourself in the position that a judge is making you feel like you should take the deal being offered trust your attorney's advice.  If you do not trust your attorney's advice find another one quickly because you should value your attorney's advice above anyone else in that courtroom.

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Did you know that the conversation you are having with your loved in jail may be recorded ?  More importantly, courts find it perfectly legal to record these conversations.  Their reasoning is that that people in jail do not have an expectation of privacy.

I have been told by prosecutors in the past that they obtained recordings of an inmate's conversation with their loved ones and plan to use it against them at trial.  These recordings could potentially sabotage an entire defense, make the other person a witness in the case or be used as punishment evidence.

Therefore, I advise everyone not to talk about issues relating to their case over the phone.  Big brother will be listening.  Tell each other how much you miss them and love them, but never discuss how you plan to beat the case or that the prosecutor does not about this person that knows the whole story.

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