As stated previously, the individual arrested today in Texas for Driving While Intoxicated, faces bewildering procedures and enters into a world they usually have never been a part of before. Most of us have just read about the criminal justice system or we may have been called for jury duty seeing and experiencing only one small facet of the system. Some people have experienced municipal court with its usual one day appearance and trial, others have seen the "Practice," “Boston Legal,” "Law and Order," "Judge Judy" or the "Peoples Court" none of which prepare someone for the Criminal Court process in Texas. After all, most of these "courts" last one hour; it is over, and we are waiting for next week's storyline. This page is designed to answer some of the many questions, explain some of the terminology, and shed some light on the Criminal Court Process in Central Texas and the I-35 Corridor.

STEP 1: THE ARRAIGNMENT

The formal court case against a person charged with DWI generally begins with an "Arraignment" setting. In some counties this court date will be mailed by the court. Others, particularly those individuals who have charges pending in Travis and Williamson Counties will generally receive their court date at the time of their release from custody. Just because no one told the person arrested that they have a court date does not mean that individual will not be charged or they will not be going to court sometime in the future. It depends on the county in which the individual was arrested. For example, in Comal, Hays, Caldwell, and Bell counties, a defendant and/or their bonding company will be notified by mail of the court date, and the bonding company in turn should notify the individual of the court date. On the other hand, for those persons charged in Travis and Williamson Counties, the copy of the bonding papers they receive upon release from custody, whether a bonding company is used or a cash bond is made, will more than likely have the court date and time, the case number, and the court where the individual is to appear.

At the "Arraignment" setting, the defendant will enter some sort of a plea to the charge. In most courts, a defendant is not required to stand formally before the Judge and enter a plea, it is automatically understood that they are entering a "Not Guilty" plea so that the defense attorney will have time to investigate the evidence in the case. By the way, never plead guilty at "Arraignment" unless you are represented by an attorney who specifically advises you to enter such a plea. It is never in your best interest to plead guilty without the advice of counsel, even if you think you are guilty and just want to end the case immediately. You lose many valuable rights and you will not likely get them back if you just plead guilty at "Arraignment."

At "Arraignment" the Judge may set conditions on an individual’s release or bond. The Judge may order that the accused not operate a motor vehicle without a Deep Lung Breathing Ignition Interlock Device installed on their automobile. This is particularly true if that person has ever been charged before with Driving While Intoxicated, or the person’s breath test score was high. The Judge may also order the accused to submit to random urine testing or wearing an ankle monitor.

When an individual enters a plea of Not Guilty, the next court date will be set. The nature of this court date varies depending on what County in Texas an individual’s case is pending. For instance, in Bell, Bexar, Caldwell, Guadalupe, Hays, Travis, and Williamson Counties the Defense will receive a couple of what are called "No-Issue" and/or “Announcement” court settings before having to set the case for trial. On the other hand, in some counties, the next scheduled court date may either be a trial setting or a "Pre-trial Motion" setting depending on the court the case is assigned.

STEP 2: THE PRE-TRIAL OR NO-ISSUE COURT DATES

Depending upon which Court the charges are pending, there will be at least one, and sometimes several court appearances. The accused party’s appearance at these court settings is usually mandatory, and occur before the actual trial. Most of the courts call these settings "No-Issue" settings or “Pre-Trial Conference” settings. Basically, it gives the experienced DWI attorney time to review the prosecutor’s file to take notes from the police officer’s report and see the evidence against the client. These settings also allow the experienced DWI attorney time to investigate the case more thoroughly. Sometimes, the prosecutor’s file is missing certain items of evidence that is crucial for the defense to see and or review before setting the case for trial. This setting or settings are for that purpose also. The number of these settings vary depending upon which Court the charges are filed.

Additonally, there is usually a "pre-trial motion" setting, "pre-trial hearing" or "pre-trial conference," whatever the name used, that follow the "No-Issue" setting. "Pre-trial motions" are usually filed by the DWI attorney and presented at this hearing.
Sometimes, there may be a special motion hearing date, where "Motion to Suppress" are presented to the court and argued. A "Motion to Suppress" is a motion that attempts to suppress some type of illegally obtained evidence or illegally obtained statement made by the accused to the police. Some courts allow a separate date for hearing this type of motion, while most insist that such motions will be argued on the day of trial or during the trial itself.

There may be a "Trial Call," “Call Docket,” or an "Announcement" appearance shortly before the trial to confirm that all sides are ready for trial. A plea bargain can usually be entered at any "pre-trial" court dates depending on local rules and the particular judge involved. The negotiating of plea bargains between defense attorney and prosecutor cannot usually be done over the telephone. Again, depending on the county where the case is pending, plea bargaining can sometimes be done in the prosecutor’s office. However, most of the time such discussions are conducted when all parties are in Court at counsel table before or during court or in the back halls of the courtroom. If an accused decides to accept a plea bargain, their attorney will fill out a "Plea of Guilty, Waiver of Rights and Stipulation Agreement" form. This form specifies all the rights the accused gives up by accepting the plea bargain, and usually outlines the plea bargain agreement that the accused, the defense attorney and the prosecutor have agreed to in the case. Keep in mind, that the Judge cannot reduce a DWI to some other type of offense on his own, the prosecutor must recommend and charge the individual differently prior to going before the Judge to enter into such a plea bargain. Moreover, all plea bargains must be agreed to by the Judge.

STEP 3: THE TRIAL

The DWI trial usually takes one to two days, but could be longer if there is complex scientific evidence, or numerous witnesses or it is a felony DWI. The facts of a trial may be decided by either a Jury or a Judge. Similarly, if the verdict is guilty, a defendant has the right to have the punishment decided by a Jury or Judge. Generally, most DWI lawyers recommend that the Jury decide the facts of the case, and the Judge decide the punishment. Again, these decisions depend upon the court, the case, and the Judge.

The first stage of trial is the "Voir Dire" or jury selection. Jurors are selected from a pool of potential peers from the community where the individual resides. It is during this process that each lawyer and sometimes the Judge have a brief opportunity to question potential jurors to expose bias. Jurors are then struck from the panel and the ones left are the ones that will be selected as the jury. Six (6) jurors are selected in misdemeanor cases and twelve (12) jurors are used in felony cases. Once the Jury is empaneled, the Judge will swear them in and issue some instructions as to their duties in the case.

Each lawyer will then give their "Opening Statement". After Opening Statements, the prosecution will begin by presenting its case, followed by the DWI Attorney presenting the client’s case to the jury.

In order to sustain a conviction, the prosecution must prove each and every element of the crime beyond a reasonable doubt. Throughout the trial, the DWI attorney should be doing many things, but the most important is attempting to create reasonable doubt for the jury. He will build and make a final argument. He will protect the trial record for appeal by objecting to improper evidence, questions, testimony or procedures.

During the trial, the Defense may bring in experts who give scientific testimony about the effects of alcohol or drugs on the body, the rate of chemical absorption, field sobriety testing, the intoxilyzer, and many other subjects that help to create reasonable doubt. Sometimes, the courts require advanced written notice of such experts.

Many DWI cases are won on the experienced DWI Lawyer’s cross-examination of the officers involved in the case. These officers are usually the prosecution’s entire case. They observed the accused driving. They witnessed the "signs or clues of intoxication." They administered the field sobriety exercises, if the accused participated. They made the arrest. They took the breath sample, if one was given. Part of the job of the DWI Attorney is to highlight what mistakes the police officers may have made in the case.

There is fertile ground for reasonable doubt when proper procedures are not followed, or evidence is otherwise tainted, or when the officers made up their mind that the accused was intoxicated before even approaching the vehicle.

A crucial decision in every trial is whether the accused will testify on his or her own behalf. Doing so allows the prosecutor to cross examine the client. Therefore, a good DWI attorney will carefully weigh the pros and cons with the Client so that the Client can decide whether or not they will testify on there own behalf.

Probably the most stressful part of any jury trial is Jury deliberations. First and foremost Juries are unpredictable and are "living breathing entities of their own." There is no one that can predict the outcome in a jury trial. Moreover, Juries in DWI cases are known to deliberate anywhere from ten minutes to 3 days. Verdicts reached by jurors in criminal cases must be a unanimous decision of either "Not Guilty" or "Guilty." There is no majority vote. However, if one juror is indecisive, and the jury cannot reach a unanimous decision, then after a period of time the judge may call a mistrial and the case may have to be retried to another jury.