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  • Writer's pictureBrian Foley

Montgomery County Criminal Defense Attorney - Will my case go to a Jury Trial?

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

When you see criminal law cases on TV or in movies you almost always see a jury trial. In the movies it is always a 12 member jury. But did you know in Texas you may get a jury of only 6 if you have been charged with a misdemeanor? Only felony cases and ones tried in District Court are required to have 12 jurors. Another misconception from television is that every case goes to a jury trial to determine the outcome.

Nothing could be further from the truth. Almost every criminal case ends without a jury trial.

If the prosecutor makes an offer that the client can't work with, or is inconsistent with justice, only then will a case proceed to a jury trial. Jury trials are risky because outcomes are uncertain. Most of the time it is better to be in control of the process through negotiation and plea bargaining. That being said you must have a lawyer that is comfortable in trial and has the trial experience to know what the likely outcomes are going to be. A lawyer who is afraid of trial will negotiate from a weaker position and will end up with worse outcomes.

Here are the different ways the case can end from best to worst case scenario for the person accused of the crime.

  1. Dismissal - For legal or evidentiary reasons

  2. Dismissal - after completing conditions

  3. Pretrial Diversion

  4. Deferred Probation

  5. Straight Probation

  6. Fine only

  7. Jail or Prison time.

Dismissal - For legal or evidentiary reasons

The best possible result for someone accused of a crime in Texas is for the case to be dismissed for some legal or evidentiary based reason. This means your lawyer found a problem with the way the police investigated, initiated a traffic stop, or collected evidence. The prosecutor is the only party with the power to dismiss a charge so for this type of deal to be reached your lawyer must persuade the prosecutor that the law has been violated in some way or that there is insufficient evidence to obtain a conviction beyond a reasonable doubt at trial. This type of dismissal can result in an expunction of the charges from your criminal record which is also the best possible outcome in a criminal case.

Dismissal - after completing conditions

If you can't get the case dismissed for a legal or evidentiary reason you may be able to persuade the prosecutor to dismiss your case for other reasons. Usually these considerations are the severity of the crime, the honesty of the person when confronted with their mistake, cooperation with police, and other factors. In this type of dismissal the prosecutor may tell you that if you complete a certain amount of community service and take a class either online or in person, then your case may be dismissed. This could also include the payment of restitution if the person listed as the victim had property damaged or destroyed in the case. Its a little worse than a dismissal for evidentiary or legal reasons only because it requires some effort and payment of restitution or payment for classes by the person accused of a crime. This type of dismissal can also end in an expunction the best possible outcome after a criminal arrest.

Pretrial Diversion

A pretrial diversion is a form of probation that is run by a district attorney's office in Texas. You may report to a probation officer for a period of 9-15 months and be required to randomly drug test and pay fines, fees, and participate in rehabilitative classes. In a DWI you might be required to have an ignition interlock device placed on your vehicle. This is a device that prevents your car from being started if you have alcohol on your breath. A pretrial diversion is more costly and labor intensive, but sometimes it is the only option if you have to have a dismissal and expunction. This is the last option of outcome for your case if an expunction is required.

Deferred Probation

A deferred probation is very similar to a Pretrial diversion, however this is the first type of outcome that cannot be expunged from your record. A deferred probation is normally eligible for a non-disclosure if you have had no prior criminal convictions. However an assault family member case is not eligible for non-disclosure and can even be used to enhance future family violence charges that involve bodily injury to the level of Third Degree Felony. When you end a deferred probation successfully then you can legally say that you were never convicted of the offense. If the question is were you arrested then you may be forced to answer yes. Over time deferred adjudication has become less and less beneficial for persons accused of a crime because more and more private entities have access to court records which have become easier to search with the invention of the internet.

Straight Probation

A straight probation can be a good outcome if your sole focus is to avoid jail time. The problem with a straight probation is that even thought he sentence is probated you have already been convicted of a criminal offense. If someone asks if you were convicted on a job application the answer would be yes. Straight Probations are only eligible for non-disclosure in limited circumstances like DWI first offenses. A straight probation will sometimes have a lower fine or less requirements than a pretrial diversion or deferred probation because the prosecutor knows this is a conviction. A straight probation can only be reversed by judicial clemency or pardon by the governor. Both of these are very rare.

Fine only

A fine only punishment means that any jail time is waived and the person accused of a crime is convicted and pays the clerk of the court a fine and the court costs. Court costs are typically between $200 - $500. A fine only is a good solution for someone who doesn't mind having a conviction on their record and doesn't want the hassle of probation. For example, if you are self employed at a tree cutting business and you do not require a license from the State of Texas to operate your business then you may feel free to accept a conviction on your record that does not have the possibility of being expunged or non-disclosed. One thing to note is that if you have never been convicted before then on a first time DWI even a fine only may be eligible for non-disclosure.

Jail or Prison time

Finally the worst outcome for a criminal case is jail time or Prison time. But even in this circumstance there may be a silver lining. For example if you have already served time in jail on some other charge before you go to court because you are unable to make a bond, then an offer which gives you credit for the time you have already served may help you avoid having to pay court costs or deal with a probation which could last years. Additionally in felony cases sometimes a short sentence to TDC or what we call "real prison" may end up with a shorter sentence than if you had actually been given State Jail time.

Considering these multitude of options available for negotiation and the uncertainty of results at trial you can see why most cases end without the ultimate exercise of American jurisprudential power, the jury trial.


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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