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  • Writer's pictureBrian Foley

Montgomery County Criminal Defense Attorney - What decisions do I get to make about my case?

Montgomery County Criminal Defense Attorney - Brian Foley - Board Certified in Criminal Law.

When you hire a lawyer many times clients do so for the first time in their life. If you don't understand the law and consequences it can be difficult to understand exactly what your lawyer can do for you. What kinds of decisions does your lawyer make for you? What do you get to decide for yourself? There are many aspects of strategy that your lawyer might take into account before deciding on a specific course of action. For example, if a certain defense like self defense is unlikely to be persuasive to a jury and it is likely to "open the door" to other negative information like a prior conviction that would not be admissible otherwise, then a good defense attorney will not ask questions about this during a trial.

Trial strategy is something that is left to the discretion of the attorney. The Texas Disciplinary Rules of Professional Conduct provide that in a criminal case the defendant makes three main decisions on their own.

  1. If a Plea bargain will be accepted.

  2. Whether to waive a jury trial and have the judge decide the case instead.

  3. Whether to testify during the trial.

These decisions are so sacred that they must be made by the criminal defendant themselves. Ironically these are some of the most difficult decisions to make and clients ask for their lawyer's advice most often in these three areas.


The choice of accepting a plea bargain and pleading guilty or no contest is entirely up to the defendant. A lawyer cannot force you to accept a deal or plead guilty. If your lawyer tries to force you into a decision they are violating their oath as an attorney. Lawyers give advice every day about if a plea bargain is good or bad based on their experience with cases in the jurisdiction and the punishment range prescribed by law. Sometimes the advice of your lawyer is the determining factor when a client decides to enter a plea bargain. Ultimately, however, it is not your lawyer's life that is going to be changed by entering into an agreement. It is your life that is on the line. It is a decision that you will have to deal with not only during the probation, jail time, or other punishment, but potentially for the rest of your life.

Ultimately a criminal case only ends when a plea bargain is reached, a dismissal is filed, or the judge or jury makes a decision as to guilt and punishment. Having quality advice from an experienced and Board Certified Criminal Defense Attorney in Conroe and The Woodlands, Texas is a must.


Sometimes the best strategy for a case is to waive the right to a jury trial and proceed in front of the judge either at a bench trial or a punishment hearing. A bench trial is the same as a jury trial except the judge makes the determination of what facts they believe and if the case has been proved beyond a reasonable doubt. Often times judges are harder on technicalities in evidence or testimony and they make less emotional decisions. This can lead to a good outcome if the facts of your case are difficult for a regular juror to hear but the police made a mistake or error in collecting important evidence. A lawyer can help you understand the positive and negative aspects of making the decision to waive a jury.

You may also want to waive a trial altogether and plead for the trial court to render a punishment of probation in order to avoid what might be a lengthy prison sentence if punishment were to be assessed by a jury. One option for a judge at a punishment hearing is to put the defendant on deferred adjudication probation which if successfully completed ends without a conviction. If the jury has not been waived and you have been found guilty by a jury, a judge no longer has the ability to give you deferred adjudication.


The decision as to testifying in a criminal case always belongs to the defendant. The 5th Amendment to the United States Constitution says that no person may be forced to testify against themselves in a trial. This is one of the most important laws we have and certainly the most important, along with the presumption of innocence, in criminal law. Lawyers will consistently give the advice not to talk with the police and not to testify in your case. There are few types of cases where testifying on your own behalf does anything but damage your case. However, it is up to the client, and some people believe that if their life and future is on the line they would like to have a say in the matter. Although this is almost universally a bad idea, the decision is not for your lawyer to make. In my days as a prosecutor I used to live for the moments where the defendant took the stand. Again it almost always went badly for defense. Sometimes jurors would say that they were going to find the defendant not guilty but after the defendant testified it answered questions that they had previously not resolved. The few cases where testimony can benefit in my experience is bar fight assaults that do not involve family members, and highly technical theft or fraud cases where the issue is the intent to engage in criminal conduct. These are always fact specific and you should consult and listen to an attorney that you trust before making a decision like this!


(a) Subject to paragraphs (b), (c), (d), (e), and (f), a lawyer shall abide by a client's decisions:

(1) concerning the objectives and general methods of representation;

(2) whether to accept an offer of settlement of a matter, except as otherwise authorized by law;

(3) In a criminal case, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial, and whether the client will testify.

(b) A lawyer may limit the scope, objectives and general methods of the representation if the client consents after consultation.

(c) A lawyer shall not assist or counsel a client to engage in conduct that the lawyer knows is criminal or fraudulent. A lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel and represent a client in connection with the making of a good faith effort to determine the validity, scope, meaning or application of the law.

(d) When a lawyer has confidential information clearly establishing that a client is likely to commit a criminal or fraudulent act that is likely to result in substantial injury to the financial interests or property of another, the lawyer shall promptly make reasonable efforts under the circumstances to dissuade the client from committing the crime or fraud. (e) When a lawyer has confidential information clearly establishing that the lawyer's client has committed a criminal or fraudulent act in the commission of which the lawyer's services have been used, the lawyer shall make reasonable efforts under the circumstances to persuade the client to take corrective action. (f ) When a lawyer knows that a client expects representation not permitted by the rules of professional conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer's conduct.


For litigants who do not have counsel: Reading this blog post does not create an attorney client relationship. Call to set up a free consultation.

For the general public: This Blog/Web Site is for educational purposes only and it provides general information and a general understanding of the law, but does not provide specific legal advice. By using this site, commenting on posts, or sending inquiries through the site or contact email, you confirm that there is no attorney-client relationship created. Don't just read this as a substitute for competent legal advice from a licensed attorney.

For attorneys: This Blog is informational and educational in nature and is not a substitute for Westlaw or other research and consultation on specific matters pertaining to your clients. As you know the law can change day to day based on recent case opinions. And unfortunately you shouldn't cite it in court as binding authority because it is not. Mention it to your friends, just seek real consultation if its something important.

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