Texas Criminal Defense Explained: Constitutional Rights, Police Searches, Plea Deals, and the Role of the Defense Lawyer
Texas Criminal Defense Explained: Constitutional Rights, Police Searches, Plea Deals, and the Role of the Defense Lawyer
Most people encounter the criminal justice system through television.
A police officer makes an arrest.
The officer immediately reads Miranda rights.
A prosecutor announces the charge.
A defense lawyer makes an impassioned courtroom argument.
The jury delivers a verdict before the hour ends.
Real criminal cases rarely look like that.
They involve different levels of courts, complicated constitutional rules, negotiations, delays, financial pressure, pretrial motions, evidentiary disputes, and difficult decisions about whether to accept a plea or risk trial.
In this bonus episode of the Texas Criminal Defense Podcast, attorney Andrew Decker gives a classroom presentation explaining criminal law from the defense perspective. The transcript identifies the audience as students studying subjects including paralegal work, although the lessons are equally valuable for nurses, legal professionals, defendants, and anyone trying to understand how Texas criminal cases actually operate.
Decker’s presentation covers far more than courtroom procedure.
He explains the role of the criminal defense lawyer, the constitutional rights that appear in real cases, the difference between merely having a right and knowing how to exercise it, and why people sometimes plead guilty even when they maintain their innocence.
He also illustrates how a carefully researched pretrial motion can take a client from facing decades in prison to having the case dismissed.
The central lesson is simple:
Criminal defense is not about approving of every act a client is accused of committing.
It is about requiring the government to follow the Constitution, prove its allegations lawfully, and respect the rights of every person it prosecutes.
Who Is Andrew Decker?
At the time of the presentation, Andrew Decker had practiced criminal defense for approximately five years.
His legal background included internships with a district attorney’s office and work involving post-conviction habeas proceedings before he entered private criminal defense practice.
After law school, he worked with an established group of Fort Worth attorneys, initially performing legal research, drafting, editing, and other support work. He later opened his own office near Weatherford in Parker County before rejoining the Fort Worth lawyers as a named member of the firm.
His practice extended beyond one courthouse.
He handled cases in Tarrant, Parker, Johnson, Palo Pinto, Jack, McLennan, Denton, Eastland, Dallas, and other Texas counties.
That geographic range illustrates an important difference between prosecutors and defense attorneys.
A prosecutor usually works for one county or jurisdiction.
A defense lawyer goes where the client’s case is pending.
The rules may be statewide, but courthouse culture varies.
Judges differ.
Prosecutors differ.
Bond practices differ.
Discovery procedures differ.
Plea policies differ.
A defense lawyer practicing across several counties must understand both Texas law and the local practices that shape how the law is applied.
The Different Levels of Texas Criminal Courts
Decker begins by explaining that not every criminal allegation is handled in the same type of court.
At the lowest level are municipal and justice-of-the-peace courts.
These courts commonly handle traffic tickets and other fine-only offenses.
A person accused in one of these courts may hire a lawyer, and defendants still possess important legal rights. But because the offense does not authorize incarceration, the defendant generally is not entitled to have counsel appointed at public expense.
The distinction is critical.
The right to hire a lawyer is not always the same as the right to receive a court-appointed lawyer.
Appointed counsel is generally connected to the possibility that the government may take away the defendant’s liberty.
If the only authorized punishment is a fine, the Constitution ordinarily does not require the government to provide an attorney.
Decker gives the example of representing a client in a justice court on a simple-assault citation.
The allegation involved offensive or provocative contact rather than an injury requiring proof of pain.
Even though the possible punishment was only a fine, the client still chose to hire counsel and exercise the right to trial.
Above the fine-only courts are misdemeanor and felony courts.
Class A and Class B misdemeanors may carry jail sentences, while felonies carry increasingly serious ranges of imprisonment.
Because liberty is at stake at those levels, the right to counsel becomes far more significant.
What Is the Role of a Criminal Defense Lawyer?
Decker draws from the Texas Criminal Defense Lawyers Association’s description of its mission:
Defense lawyers protect and preserve the individual rights guaranteed by the Texas and United States constitutions in criminal cases.
That mission may sound abstract until someone is accused of a crime.
Constitutional rights do not enforce themselves.
Police officers do not always recognize that a search exceeded lawful limits.
Prosecutors do not necessarily agree that evidence should be excluded.
Judges do not raise every potential defense issue on their own.
Someone must identify the violation.
Someone must file the motion.
Someone must question the witness.
Someone must create a record.
Someone must ask the court to enforce the rule.
That person is often the criminal defense lawyer.
Decker explains that his earlier work as a minister continues to influence how he views criminal defense.
He describes himself as generally courteous and professional, but intensely passionate when constitutional rights are threatened.
The two qualities are not inconsistent.
A lawyer can be respectful without being passive.
A defense attorney can maintain productive relationships with prosecutors and judges while remaining prepared to challenge them when the government crosses a legal boundary.
The United States Constitution and the Texas Constitution
Many people know that the federal Constitution protects freedom of speech, the right to bear arms, freedom from unreasonable searches, the right to remain silent, and the right to an attorney.
Fewer people realize that the Texas Constitution contains its own bill of rights.
In some circumstances, Texas constitutional language provides protections that are phrased differently or may be interpreted more broadly than parallel federal guarantees.
Texas criminal defense lawyers should therefore examine both sources.
A motion based only on the United States Constitution may overlook a useful state-law argument.
Decker identifies several rights that repeatedly arise in criminal litigation:
freedom of speech;
the right to bear arms;
freedom from unreasonable searches and seizures;
the right to remain silent;
the right to counsel;
equal protection and due process.
These are not theoretical classroom concepts.
He had argued each of them in actual criminal cases.
Freedom of Speech Is Broad but Not Unlimited
The First Amendment protects freedom of speech, religion, assembly, and the press.
Texas provides an additional speech protection in Article I, Section 8 of the Texas Constitution.
The government generally cannot criminalize speech merely because it is unpopular, offensive, or critical of public officials.
A person may praise a political leader.
A person may condemn that same political leader.
The government cannot punish either viewpoint simply because officials dislike it.
But freedom of speech has limits.
Certain threats, incitement, fraud, solicitation, and other narrowly defined forms of speech may support criminal liability.
Decker describes representing a woman accused of threatening a police officer.
She repeatedly called a police department and described a violent method by which she would kill the officer if she encountered him.
The defense argued that her statements expressed anger and a grievance against the government.
Decker also argued that Texas’s strong constitutional protection against laws curtailing speech should apply.
The argument was unsuccessful, and the client received a prison sentence.
The case demonstrates the complexity of speech prosecutions.
The issue is not merely whether the words were offensive.
Courts may examine whether the statement constituted a “true threat,” whether it was directed toward a specific person, whether a reasonable listener would understand it as a serious expression of intent, and whether the context supports criminal punishment.
The line between protected anger and a criminal threat can become the central issue at trial.
The Right to Bear Arms and the Consequences of a Family-Violence Finding
The Second Amendment protects the right to keep and bear arms.
Article I, Section 23 of the Texas Constitution also recognizes a right to possess arms for self-defense and defense of the State, while expressly allowing the Legislature to regulate how weapons are carried in the interest of public safety.
That balance explains why a person may possess firearms generally but remain prohibited from carrying them in certain places or under certain conditions.
Decker notes that courthouses provide an unusual example.
Judges, bailiffs, and certain prosecutors may be authorized to carry weapons in a courthouse, while a defense attorney ordinarily may not.
But one of the most significant firearms issues in routine criminal practice arises after an assault-family-violence case.
A family-violence finding can trigger serious firearm restrictions under both Texas and federal law.
Many people assume “family violence” always involves a spouse repeatedly abusing another spouse.
Texas law is broader.
Household members may qualify even when they are not romantically involved or related by blood.
Decker gives a hypothetical involving two roommates nearing the end of a lease.
They argue over ownership of an inexpensive microwave.
One pushes the other.
The second roommate falls and experiences temporary pain or develops a minor bruise.
A neighbor hears the dispute and calls police.
The officers arrive, separate the roommates, and arrest the person who admitted pushing the other.
That incident may support a charge of assault causing bodily injury involving a household member.
The pain does not need to be permanent.
It does not need to require hospitalization.
Under Texas assault law, bodily injury includes physical pain, illness, or impairment.
A minor incident can therefore produce a family-violence finding with consequences extending far beyond the immediate punishment.
The accused may lose the right to possess firearms, even though the roommates were separating and may never see one another again.
This is why defense lawyers focus carefully on collateral consequences.
A plea that appears to involve minimal probation, a small fine, or no jail may affect employment, housing, professional licensing, immigration status, future prosecutions, and firearm possession.
Clients need to understand those consequences before entering a plea.
The Fourth Amendment: Searches, Seizures, and Traffic Stops
The Fourth Amendment protects people against unreasonable searches and seizures.
Article I, Section 9 of the Texas Constitution provides a parallel state protection.
In general, a search conducted without a warrant is presumed unreasonable, although courts recognize numerous exceptions.
Those exceptions are especially important during traffic stops.
A person may be stopped for speeding, failing to maintain a lane, violating a traffic-control device, or committing another observed traffic offense.
What begins as a minor citation can quickly become a criminal investigation.
The officer asks where the driver is coming from.
The officer claims the driver appears nervous.
The officer notices an odor.
The officer directs the driver to step outside.
The officer asks whether there is anything illegal in the vehicle.
Then comes the critical question:
“Do you mind if I take a look?”
Many drivers say yes because they believe cooperation will get them home faster.
But consent is a recognized exception to the warrant requirement.
By agreeing, the driver may authorize a far more intrusive search than expected.
An officer may discover a marijuana grinder, residue, prescription medication, a weapon, a container belonging to a passenger, or an object the driver forgot was in the vehicle.
Once officers find evidence suggesting criminal activity, the scope of the search may expand.
The central legal questions become:
Was the original stop lawful?
Was the detention extended beyond the time reasonably necessary to address the traffic violation?
Was consent voluntary?
What did the driver actually authorize?
Did the officer have probable cause?
Did a recognized vehicle exception apply?
These issues are often resolved through a motion to suppress rather than during the jury trial itself.
Consent Is Easy to Give and Difficult to Undo
People often misunderstand consent searches.
They may believe they are required to cooperate.
They may assume that refusing permission will make them look guilty.
They may believe the officer will search regardless of the answer.
But a person generally has the right to decline a request for consent.
A driver can calmly say:
“I do not consent to any searches.”
That statement does not guarantee the officer will end the encounter.
The officer may believe another legal justification exists.
A drug-detection dog may become involved under certain circumstances.
Probable cause may develop.
But refusing consent prevents the government from later claiming that the person voluntarily authorized the search.
The safest approach is usually to remain calm, avoid physically interfering, and clearly state the lack of consent.
Legal objections should be litigated later in court, not through resistance on the roadside.
Texas’s Statutory Exclusionary Rule
Texas provides an important additional protection through Article 38.23 of the Texas Code of Criminal Procedure.
The statute generally prohibits the admission of evidence obtained in violation of the United States Constitution, the Texas Constitution, or Texas law.
In plain terms:
The government ordinarily should not benefit in court from evidence it obtained illegally.
Decker compares this to theft.
Police officers cannot simply take evidence unlawfully any more than an ordinary person can steal property and expect the legal system to reward the conduct.
The practical mechanism for enforcing this rule is often a motion to suppress.
The defense asks the judge to exclude evidence obtained through an unlawful stop, detention, search, seizure, interrogation, or blood draw.
If the challenged evidence is central to the prosecution, winning the motion may result in dismissal.
The Right to Remain Silent
The Fifth Amendment protects a person from being compelled to incriminate himself.
Texas also protects the rights of the accused through Article I, Section 10 of the Texas Constitution.
Most people have heard the familiar language:
“You have the right to remain silent. Anything you say can and will be used against you.”
The difficulty is not knowing that the right exists.
The difficulty is actually using it.
People are taught from childhood to cooperate with police.
They feel nervous.
They want to explain themselves.
They believe an innocent person should have nothing to hide.
An officer asks where the driver has been.
The driver identifies a restaurant or bar.
The officer asks whether the driver consumed alcohol.
The driver says, “Only two beers.”
That answer may become the foundation for a DWI investigation.
The initial speeding offense had nothing to do with where the driver was coming from.
But the driver volunteered information that expanded the encounter.
Remaining silent does not require hostility.
A person can say:
“I do not wish to answer questions.”
“I am invoking my right to remain silent.”
“I would like to speak with a lawyer.”
Then the person must actually stop talking.
Why Police Do Not Always Read Miranda Rights
One of the most common questions Decker receives from new clients is:
“Why didn’t the officer read me my rights?”
Television creates the impression that police must read Miranda warnings immediately whenever they arrest or question someone.
That is inaccurate.
Miranda warnings are generally required before a custodial interrogation.
Both elements matter.
The person must be in custody, and police must be interrogating the person.
An officer can knock on someone’s door and ask questions without first giving Miranda warnings.
The resident may decline to speak and close the door, assuming the officer lacks a warrant or other legal authority to enter.
Similarly, a person may be temporarily detained during a traffic stop without necessarily being considered “in custody” for Miranda purposes.
Police may ask questions during that detention.
The constitutional issue becomes more complicated once the person is formally arrested or the circumstances become the functional equivalent of custody.
A failure to administer Miranda warnings does not automatically dismiss the case.
Instead, the remedy may be suppression of statements obtained through custodial interrogation.
Other evidence may remain admissible.
The prosecution may still proceed without the statement.
That distinction is another example of how television simplifies criminal procedure.
The Right to an Attorney
The Sixth Amendment protects the right to counsel in criminal prosecutions.
Texas provides similar protection through Article I, Section 10.
A defendant may retain a lawyer at any level, including a fine-only municipal or justice-court case.
But the right to appointed counsel generally arises only where incarceration is possible.
Decker describes a troubling situation in which a prosecutor increased a probation offer after an unrepresented defendant requested a lawyer.
The client had been offered twelve months of probation.
After asking for counsel because he did not understand the documents he was being asked to sign, the offer became eighteen months.
Decker raised the issue with the elected county attorney.
When he later returned to court, the prosecutor denied that the increase had been punishment for requesting counsel.
The office had clearly discussed the concern, and Decker did not encounter the same practice again.
The principle is fundamental:
A person should not receive a harsher offer merely for exercising a constitutional right.
The right to counsel is meaningless if requesting a lawyer itself produces punishment.
Defense attorneys must be alert to practices that indirectly discourage defendants from seeking representation, remaining silent, filing motions, or exercising the right to trial.
Due Process and Equal Treatment Under Law
The Fourteenth Amendment guarantees due process and equal protection.
It also provides the constitutional mechanism through which many federal Bill of Rights protections apply to state governments.
Texas’s Constitution contains its own equality and due-process protections.
Due process is sometimes described as a catch-all, but its importance should not be underestimated.
It encompasses notice of the accusation, a meaningful opportunity to defend against it, access to counsel, confrontation of witnesses, fair procedures, and decision-making by a neutral court.
The prosecution cannot simply announce that a person is guilty.
The State must follow a lawful process.
That process is what separates criminal adjudication from arbitrary punishment.
Rights Matter Only When Someone Uses Them
The first half of Decker’s presentation emphasizes a recurring truth:
Possessing a constitutional right is not the same as knowing how to exercise it.
A driver may have the right to refuse a search but give consent.
A suspect may have the right to remain silent but answer every question.
A defendant may have the right to counsel but accept a plea without understanding the consequences.
A person may have a strong suppression argument but never raise it.
The criminal defense lawyer exists to turn constitutional language into courtroom protection.
That requires investigation, research, motions, negotiation, and a willingness to challenge the government.
The Constitution establishes the boundary.
The defense lawyer makes the government respect it.
Why Most Criminal Cases End Without a Trial
Every person accused of a crime has the right to trial.
In practice, however, most criminal cases are resolved before a jury hears evidence.
Decker estimates that approximately 95% to 98% of cases end through plea agreements, pretrial diversion programs, dismissals conditioned on completing certain requirements, or another negotiated resolution.
That does not mean every defendant who accepts a deal believes the accusation is true.
People plead for many reasons:
they have already spent time in jail;
they are afraid of trial;
the punishment risk is enormous;
they cannot afford continued litigation;
the evidence appears strong;
the negotiated outcome protects employment or family stability;
or the plea allows them to go home immediately.
Understanding plea bargaining requires looking beyond the simple question of guilt.
Pretrial Diversion and Other Alternatives to Conviction
Not every negotiated resolution requires a formal guilty plea.
A first-time offender accused of possessing a small amount of marijuana, for example, might be offered an agreement requiring:
community service;
clean drug tests;
completion of a drug-education course;
and no new arrests during a specified period.
If the person completes those requirements, the prosecutor may dismiss the case.
Different jurisdictions use different names for these programs, including:
pretrial diversion;
memorandum agreements;
deferred prosecution;
intervention programs;
or conditional dismissal agreements.
These resolutions can prevent a conviction and reduce the long-term impact of a relatively minor accusation.
But they are not automatically risk-free.
The defendant should understand whether the arrest record will remain, whether the case will qualify for expunction, what happens after an alleged violation, and whether participation requires an admission.
Jail Changes the Plea Decision
One of the greatest pressures in plea bargaining is pretrial detention.
Consider a college student arrested for DWI.
The student cannot afford bail and remains in county jail for ten days.
When the case first reaches court, the prosecutor offers thirty days in jail.
The jail gives credit that may effectively count each day as more than one day because of trustee status or local credit policies.
The defendant learns that accepting the plea on Friday may result in release by Sunday.
At that point, the practical choice is not simply:
“Am I guilty or innocent?”
It becomes:
“Do I accept this case and go home in two days, or remain in jail for weeks or months while fighting it?”
The pressure is obvious.
A person may accept a conviction not because the evidence is persuasive, but because freedom today feels more valuable than the uncertain possibility of vindication later.
Innocent People Can Plead Guilty
Decker describes representing a jailed person whose police paperwork itself raised questions about guilt.
A reviewing officer expressed doubt that the defendant had committed the offense.
Decker asked the judge to grant a personal-recognizance bond so the client could fight the case outside jail.
The request was denied.
The judge reduced the financial bond, but the amount remained meaningless to a homeless person who could not pay it.
The client eventually accepted a plea to obtain release.
That result illustrates one of the harshest realities of pretrial detention:
An innocent or defensible person may plead guilty because continued incarceration is unbearable.
A person who is free can meet with counsel, preserve employment, care for children, locate witnesses, and prepare for court.
A person in jail may lose a job, housing, medication, relationships, and access to evidence.
The bargaining positions are not equal.
Fear Can Be Stronger Than the Legal Risk
Not all pressure comes from jail.
Some defendants are terrified of trial itself.
Decker describes cases in which he believed the defense had a legitimate chance to win.
The client faced a misdemeanor, had no serious criminal history, and was unlikely to receive a harsh sentence even after conviction.
From a purely legal perspective, the trial risk was manageable.
Yet the client preferred probation to the fear and uncertainty of appearing before a jury.
Courtrooms are intimidating.
Defendants worry about public embarrassment, missing work, testifying, facing accusers, and hearing the worst facts repeated in open court.
Even when the lawyer believes trial is the better option, the decision ultimately belongs to the client.
The attorney advises.
The client chooses.
Trial Risk Can Become Overwhelming in Felony Cases
In serious felony cases, the calculation changes dramatically.
Decker describes representing a man with two prior prison sentences for drug offenses.
Because of those prior convictions, the client faced habitual-offender punishment.
Under the enhancement alleged, the minimum sentence after conviction could be twenty-five years, with the maximum extending to life.
The client had previously received lower offers but rejected them.
By the time Decker entered the case, the offer had increased.
The evidence included methamphetamine inside a lunch bag located near the client’s feet in a vehicle, along with his bank card.
Decker advised that a jury was likely to convict and might sentence the client far above the statutory minimum.
The difference between a negotiated twenty-five-year sentence and a possible thirty-five-year, fifty-year, or life sentence was not theoretical.
It was the central decision in the case.
A Plea Is Often a Risk-Management Decision
Defense lawyers frequently evaluate pleas in terms of expected risk.
Suppose a defendant is offered five years, but trial exposes him to twenty years.
Even a strong defense may not eliminate the risk of conviction.
Witnesses can be unpredictable.
Judges can make adverse evidentiary rulings.
Jurors can interpret facts differently from counsel.
A defendant may decide that a certain five-year sentence is preferable to even a modest possibility of twenty.
That does not necessarily mean the defendant confesses moral guilt.
It means the defendant is making a decision under uncertainty.
The greater the punishment range, the more coercive the gap between the offer and trial exposure can become.
The Cost of Trial Also Matters
Private criminal defense is expensive because trial preparation is labor-intensive.
A lawyer preparing for trial may need to:
review hours of video;
study medical or scientific records;
locate and interview witnesses;
hire investigators;
consult experts;
draft motions;
prepare exhibits;
research evidentiary issues;
rehearse examinations;
and devote several uninterrupted days to court.
During trial, the lawyer cannot work normally on other cases.
Decker explains that trial occupies his thoughts even outside business hours.
He may wake early, make notes, and mentally cross-examine witnesses while sleeping.
That intensity affects fees.
A client may believe in innocence but conclude that the financial cost of trial is beyond reach.
Court-appointed counsel reduces the direct cost to an indigent defendant, but appointed systems have their own pressures, including heavy caseloads, limited investigative funding, and local compensation rules.
A Guilty Plea Must Belong to the Client
Decker explains that clients sometimes insist they did not commit the offense while asking to accept a plea.
That places the lawyer in a difficult position.
The attorney cannot force a client to plead guilty.
The attorney also cannot personally certify facts the client denies.
Decker tells clients that if they accept the agreement, they must stand before the judge and make the plea voluntarily.
They cannot claim the lawyer forced them or misrepresented the decision.
In some circumstances, Texas procedure may permit a plea without a traditional factual confession, but the exact form and consequences depend on the charge and court.
The central ethical principle remains:
The plea decision belongs to the defendant.
Why Offers Change
Plea offers are not permanent.
They can improve or worsen as a case develops.
A prosecutor may initially make a high offer based on a police report.
Later, the defense discovers favorable evidence, files a motion, or exposes a weak witness.
The offer improves.
The opposite can also happen.
A defendant rejects an offer.
The prosecutor prepares for trial, obtains an indictment with enhancements, or learns additional damaging facts.
The offer becomes harsher or disappears entirely.
Defendants should never assume that a rejected offer will remain available.
At the same time, prosecutors should not punish defendants merely for requesting counsel or exercising constitutional rights.
The distinction between legitimate negotiation and unconstitutional retaliation can be difficult but important.
Burdens of Proof in Criminal Cases
Decker next explains several legal standards, beginning with the relatively low threshold required for a traffic stop and ending with proof beyond a reasonable doubt.
The standards include:
reasonable suspicion;
probable cause;
preponderance of the evidence;
clear and convincing evidence;
beyond a reasonable doubt.
Each serves a different purpose.
Confusing them can lead jurors, students, and even professionals to apply the wrong level of confidence to a decision.
Reasonable Suspicion
A police officer needs reasonable suspicion to conduct an investigative detention such as a traffic stop.
The officer must identify specific, articulable facts which, together with rational inferences, suggest that a person committed or is committing an offense.
A hunch is not enough.
For example, seeing a vehicle leave a restaurant that serves alcohol does not by itself justify a DWI stop.
The driver may have eaten dinner without drinking.
But radar showing the vehicle traveling thirty-eight miles per hour in a thirty-mile-per-hour zone provides a specific fact supporting a stop for speeding.
Reasonable suspicion is a relatively low standard.
It permits investigation.
It does not establish guilt.
Probable Cause
Probable cause is a higher standard used for arrests and many searches.
It exists when the facts would lead a reasonable person to believe that a crime occurred and that the person or place is connected to it.
During a DWI investigation, officers may rely on observations such as:
odor of alcohol;
bloodshot or glassy eyes;
slurred speech;
unsteady movement;
admissions to drinking;
poor driving;
and performance on standardized field-sobriety tests.
These observations are common in reports, sometimes so common that defense lawyers question whether they accurately describe the individual encounter or merely repeat standard language.
Probable cause still does not prove guilt beyond a reasonable doubt.
It authorizes the government to take certain investigative steps.
Preponderance of the Evidence
Preponderance of the evidence is most commonly associated with civil cases.
It means that a fact is more likely true than not true.
A useful image is a balanced scale tipping slightly to one side.
This standard may determine financial responsibility in a car-accident case or resolve certain preliminary questions in other proceedings.
A person can lose under this standard even when the evidence falls far below what would justify a criminal conviction.
Clear and Convincing Evidence
Clear and convincing evidence is higher than preponderance but lower than beyond a reasonable doubt.
Texas courts often describe it as evidence producing a firm belief or conviction in the truth of an allegation.
This standard may arise in matters involving termination of parental rights and other significant civil proceedings.
Decker uses it during jury selection to show jurors how high the criminal burden must be.
If a firm belief or conviction is still less than beyond a reasonable doubt, then “probably guilty” cannot satisfy the criminal standard.
Beyond a Reasonable Doubt
Beyond a reasonable doubt is the burden required for criminal conviction.
Texas does not provide juries with a comprehensive statutory definition.
The concept is intentionally demanding.
It does not require mathematical certainty or proof beyond every imaginary doubt.
But it requires far more than suspicion, probability, or a belief that the defendant “probably did it.”
The burden remains with the State throughout trial.
The defendant does not have to prove innocence.
The defendant does not have to testify.
The defense may present no evidence at all and still argue that the prosecution failed to meet its burden.
Decker emphasizes that the lower standards on his jury-selection chart remain legally “not guilty.”
That visual reminder helps jurors resist collapsing reasonable doubt into ordinary decision-making.
Pretrial Motions Are Where Many Cases Are Won
Television focuses on opening statements and cross-examinations.
Real criminal defense often turns on written motions litigated before trial.
Decker identifies three important examples:
motions to suppress;
motions to quash an indictment;
and motions to disclose evidence.
Paralegals and legal assistants frequently help organize evidence, edit drafts, prepare exhibits, and manage deadlines associated with these motions.
Though less dramatic than closing argument, pretrial motion practice can determine whether a trial happens at all.
The Motion to Suppress That Eliminated a 25-Year Minimum
Decker returns to the habitual drug case in which his client faced at least twenty-five years in prison.
The vehicle had been stopped for allegedly traveling in the left lane of Interstate 20 despite signs designating the lane for passing only.
At first, the stated basis appeared lawful.
Driving contrary to a traffic-control device can justify a stop.
Decker researched cases involving left-lane restrictions and then investigated the roadway himself.
His wife drove while he recorded the route.
They discovered that the last passing-only sign was approximately fifteen miles before the location of the stop.
Between the sign and the stop, the vehicle had passed through a construction zone, entered another city, and encountered multiple speed changes.
Decker filed a motion to suppress, arguing that the officer lacked reasonable suspicion because the traffic-control notice was too remote from the alleged conduct.
Legal Research Must Be Combined with Factual Investigation
The prosecutor initially suggested handling the suppression question during trial.
Decker insisted on a separate pretrial hearing because a defense victory would eliminate the need for a jury.
The prosecutor then found the controlling authority Decker relied upon and sent an investigator to examine the road.
After confirming the distance, the State dismissed the case.
The client went from facing a minimum of twenty-five years to no prosecution.
The outcome required several things working together:
careful review of the stated reason for the stop;
legal research;
personal inspection of the roadway;
documentation of the distance;
knowledge of the controlling case;
and insistence on a pretrial ruling.
The drugs did not become inadmissible because they disappeared.
They became inadmissible because police reached them through an unlawful stop.
A Motion to Suppress Enforces the Constitution
Some people describe suppression as a technicality.
That description misses the point.
The Fourth Amendment creates a rule limiting government power.
If courts allow the government to use evidence obtained by violating that rule, the protection becomes meaningless.
Suppression gives the constitutional boundary practical force.
The remedy does not exist to reward criminal behavior.
It exists to prevent officials from gaining an advantage through unlawful conduct.
When the excluded evidence is essential, dismissal may follow.
That result reflects the prosecution’s inability to prove the case lawfully.
Motions to Quash an Indictment
An indictment must provide sufficient notice of the accusation.
A defendant needs to know what conduct the State intends to prove so the defense can investigate, prepare, and avoid surprise.
Decker describes a case in which the State alleged two offenses but appeared to possess evidence supporting only one.
Prosecutors claimed the client admitted the additional offense during grand-jury testimony.
Decker filed a motion seeking disclosure of that testimony and established the particularized need required to obtain normally secret grand-jury material.
After reviewing it, the defense identified possible problems in the grand-jury process and prepared a motion to quash.
He also describes another indictment that tracked a statute listing three separate methods of committing an offense.
The indictment alleged all three without explaining which theory applied.
Although an indictment that follows statutory language is often sufficient, problems can arise when the statute provides multiple distinct manners or means and the pleading fails to give adequate notice.
A motion to quash asks the court to require clarity or invalidate the defective charging instrument.
Motions to Disclose Evidence
A motion to disclose seeks material the defense believes exists but has not received.
Decker gives an example involving police reports mentioning interviews with two other people.
Because those interviews could affect the client’s culpability, he moved to obtain them early.
The recordings turned out to be helpful.
The prosecution’s offer dropped from approximately fifteen years to approximately five.
The evidence did not produce dismissal, but it changed the bargaining position dramatically.
Discovery motions can involve:
body-camera video;
interrogation recordings;
photographs;
forensic reports;
dispatch records;
phone extractions;
physical evidence;
disciplinary records;
witness statements;
and exculpatory or impeachment material.
A lawyer cannot evaluate a case based only on the evidence the government chooses to emphasize.
Defense Lawyers Protect Imperfect People
Near the end of the presentation, Decker quotes a description attributed to criminal defense lawyer Stuart Kinard:
The defense lawyer protects the Lord’s children who have fallen short of perfection from the wrath of those who believe they have attained it.
The quotation captures the human side of criminal defense.
Some clients have done serious harm.
Others made isolated mistakes.
Some are addicted.
Some acted during grief, mental illness, fear, immaturity, or desperation.
Some are innocent.
The role of counsel does not depend on deciding that the client is morally perfect.
It depends on recognizing that government punishment must remain lawful, proportionate, and fair.
Not Every Defendant Needs Destruction
Decker describes a man in his seventies whose wife of fifty years had died three months earlier.
The man became depressed, visited her grave, drank alcohol, and was stopped while driving home.
His breath result was approximately half the ordinary per se limit, yet he still faced a DWI charge.
Decker’s point is not that grief excuses unsafe driving.
It is that context matters.
The man may have needed intervention, counseling, support, or accountability.
He did not necessarily need a permanent criminal record.
A humane justice system should distinguish between dangerous patterns and singular moments of collapse.
Why Severe Cases Still Resolve by Plea
Decker also addresses why a prosecutor might reduce an offer from seventy-five years to forty-five in a case involving an especially disturbing offense.
To the public, the reduction may appear inexplicable.
But trying cases involving child sexual abuse, capital murder, or extreme violence imposes tremendous costs.
The emotional burden falls on:
the complainant;
the family;
witnesses;
prosecutors;
defense counsel;
judges;
bailiffs;
jurors;
and courtroom staff.
Jurors exposed to graphic evidence may experience symptoms associated with trauma.
A lengthy sentence may achieve the State’s practical goal without forcing everyone through trial.
A forty-five-year sentence for a young adult may mean release is unlikely or comes only in old age.
The difference between forty-five and seventy-five may have little practical effect while saving the complainant from testimony and eliminating trial uncertainty.
A Trial Lawyer’s Willingness Affects Negotiations
Decker emphasizes that clients should hire lawyers who are willing to try cases even when everyone hopes to avoid trial.
A prosecutor’s offer is influenced by the perceived risk of litigation.
A defense lawyer known to file motions, investigate facts, and select juries creates real uncertainty for the State.
A lawyer who never tries cases may receive weaker offers because prosecutors do not believe rejection will produce meaningful resistance.
That does not mean every case should go to trial.
Most should not.
But the ability and willingness to try the case strengthens every stage of negotiation.
Conclusion
Andrew Decker’s presentation offers a practical explanation of Texas criminal defense from the perspective of the lawyer standing beside the accused.
The defense lawyer’s job begins with constitutional rights.
Freedom of speech.
The right to bear arms.
Freedom from unreasonable searches.
The right to remain silent.
The right to counsel.
Due process.
Those rights appear in textbooks, but their real meaning emerges when a person faces arrest, prosecution, jail, or prison.
A driver consents to a search without understanding the consequences.
A suspect answers questions because silence feels rude.
A jailed defendant accepts a conviction to get home.
A person requests counsel and fears the offer will become worse.
A minor household dispute produces a family-violence finding and firearm restrictions.
These are the moments when constitutional protections become practical rather than theoretical.
The presentation also shows why plea bargaining cannot be reduced to a simple admission of guilt.
Defendants negotiate under pressure from detention, fear, cost, sentencing exposure, and uncertainty.
Some accept offers because the evidence is overwhelming.
Others accept them because the consequences of losing are too severe.
Some plead simply because remaining in jail is no longer tolerable.
Pretrial motions provide one of the most important checks on that pressure.
Decker’s left-lane case demonstrates the power of careful lawyering.
A client faced a minimum of twenty-five years.
The officer’s stated basis for the stop initially sounded valid.
But legal research and a drive along the roadway revealed that the relevant traffic sign was fifteen miles away.
The motion to suppress eliminated the stop, the evidence, and ultimately the prosecution.
That result did not come from courtroom theatrics.
It came from noticing a detail, investigating it, finding the law, and insisting that the Constitution be enforced.
Criminal defense lawyers represent imperfect people in an imperfect system.
Their role is not to declare that every client is innocent or every accusation trivial.
Their role is to ensure that punishment follows proof, that evidence is obtained lawfully, that defendants understand their choices, and that the government remains within its constitutional limits.
Rights matter only when someone is prepared to invoke them.
In a Texas criminal courtroom, that person is often the defense lawyer.
Key Takeaways
Texas criminal cases may be handled in municipal, justice, misdemeanor, or felony courts, and the right to appointed counsel generally depends on whether incarceration is possible.
Criminal defense lawyers protect rights guaranteed by both the United States Constitution and the Texas Constitution.
Texas constitutional provisions may provide arguments separate from or broader than federal constitutional protections.
Freedom of speech is broad but does not necessarily protect a serious, targeted threat.
A family-violence finding can arise from a dispute between household members and may trigger major firearm restrictions.
Consent is one of the most common exceptions to the warrant requirement, and drivers often authorize searches without realizing they may refuse.
Texas Code of Criminal Procedure Article 38.23 generally excludes evidence obtained in violation of federal law, Texas law, or constitutional protections.
Miranda warnings are generally required for custodial interrogation, not every interaction with police.
The right to remain silent must be affirmatively exercised; many people incriminate themselves while attempting to cooperate.
A defendant should not receive a harsher plea offer merely for requesting an attorney or exercising another constitutional right.
Most criminal cases end through plea agreements, diversion, conditional dismissals, or other negotiated resolutions rather than jury verdicts.
Pretrial detention can pressure innocent or defensible people to plead guilty simply to obtain release.
Plea decisions are often based on risk, fear, cost, and sentencing exposure rather than a simple determination of factual guilt.
Reasonable suspicion permits investigation, probable cause supports arrest or search, and neither standard is equivalent to proof beyond a reasonable doubt.
“Probably guilty” is not the criminal burden of proof.
Motions to suppress, quash, and disclose may determine the outcome before trial begins.
Legal research must be combined with factual investigation; Decker’s roadway investigation helped eliminate a prosecution carrying a twenty-five-year minimum.
Suppression is not merely a technicality—it is the mechanism that prevents the government from benefiting from unconstitutional conduct.
A criminal-defense lawyer does not need to believe the client is perfect. The lawyer must ensure that the process remains lawful and fair.
Context matters in punishment, and not every person accused of wrongdoing requires the most destructive available consequence.
A lawyer’s willingness to file motions and proceed to trial can improve plea negotiations even when the case ultimately resolves without trial.
Speaker 1 0:03
Okay. Good morning, everybody. This is Charity Rolfs, and today we're so excited to have Andrew Decker join us and tell us a little bit more about criminal law. This time from the defense side. So we've already heard about how the district attorney operates and how the state of Texas can bring cases from you know the time when the the crime happened and all the way through the process. So Andrew's going to tell us now what it looks like from the defense side. So I'm really thankful he's here. Andrew has an awesome background. He started off not in law. He was a minister, so I think he brings great compassion and understanding of people to his job, which is really unique for attorneys, probably. But I'm really thankful he's here. So I'm going to turn it over and let him tell us all the things. Okay.
Andrew Decker 0:53
Okay. Well, thank you, Charity. Appreciate the invitation. Let me start by just introducing myself. I'm Andrew Decker. I am a criminal defense attorney. I've been licensed for five years. All I've done is criminal defense. While I was in law school, I did intern with the DA's office several times and with district courts answering 1107 habeas writs. That is way a far field of what we're going to talk about today. But I have worked with the courts answering those. I know what they look like. They're kind of a unique subset. And then, but upon graduation and being barred, I started working with a group of attorneys in Fort Worth as their clerk. Kind of a glorified paralegal in a sense. I did a lot of writing, a lot of drafting, a lot of editing, and then after a year and a half of that, opened up my own office, which I'm in right now, in Weatherford, Texas, or just outside of Weatherford, Texas, in Parker County, and then a year and a half later, so I've been barred three years. The same guys that I started working with invited me to come back and put my name on the door, so I am now part of that office in Fort Worth. So I really have two offices: one in Fort Worth, Texas; one in Weatherford, Texas, and primarily practice in Tarrant and Parker County, but have cases currently in Tarrant, Parker, Johnson, Palapinto, Jack, one in McLennan, which is Waco. I've had several in Denton, several in Eastland and Dallas. So obviously, I travel around. The advantage of being a prosecutor is you prosecute in one place. The difference in being a defense attorney is you go where the business is, so it's kind of a have have law book will travel phenomenon. So I did watch most of the assistant district attorney's presentation, or about half of it, and then I had to step away for other things. I watched it earlier this week, so I'm going to kind of follow her format a little bit, respond a little bit to what she said. I think everything she said was true, but hopefully give a little bit different perspective, and then also talk about a few things that maybe she did not talk about. And if you do have questions that were online, please send them to me or get them to me, and I'd be glad to answer them. So let's start with the levels of the court. She talked about that there are JPM municipal courts which handle traffic tickets, basic citation fine only offenses. That is the you you are you have a right to an attorney, and I get hired on those kind of cases, in a few weeks, I'm going to trial in a in a JP court for a citation only offense. A guy basically he and his neighbor got an argument, and he's charged with assault, a simple assault, which would be offensive or provocative touching, nope, no pain has to be involved. But basically, he's been charged with touching his neighbor, to wit, slapping him in the back of the head and saying, "You're drunk, go home. Seems like maybe not an offense, but so we're actually going to trial in a JP court. He's not; he has a right to an attorney, but the courts have not yet said that he's entitled to an attorney at that level. So he has to hire an attorney if he wants one. You are you have a you have a right to an attorney when you get to the higher levels of court. So misdemeanor courts, felony courts, which are really the only two left, and depending on your jurisdiction, the misdemeanor courts, Class A, Class B misdemeanors, are run by a county attorney, and other places that office is still the district attorney. So I just want to clarify that even though you have a right to an attorney at that low. Level the JP or the municipal court. If you want an attorney, you actually have to hire them. You cannot be appointed an attorney, and the reason being is that your liberty is not at stake. You do not have a constitutional protection at that point. That your liberty is not going to be taken away.
Andrew Decker 5:16
So we, our land, our life, and our liberty are constitutionally protected, but our money fine only offense is not constitutionally constitutionally protected, and so they do not grant you, assign you, appoint you an attorney at those those levels at that lowest level. Just something I wanted to make sure y'all knew. So, what is the role of a defense attorney? This is an interesting piece. This is literally from the Texas Criminal Defense Lawyers Association website. They say that TCDLA, and I read it as basically every defense attorney in the state of Texas. Our duty, our role is to protect and ensure by rule of law those individual rights guaranteed by the Texas and federal constitutions in criminal cases. So Charity told you I was previously a minister. I did that for 15 years, and literally I was on the phone yesterday with a paralegal friend of mine here in Weatherford, and she knows me very well. We're in business groups together, but we also've done some legal stuff together. And she kind of got me on a roll, and I started going. But we have this right and this right, and I think they overstepped these bounds. And she starts giggling, and I was like, and I said, Rochelle, you have to understand, next to Jesus, the Constitution is really important to me. So, so these things get me fired up, and well, it's part of what has helped build for me a good reputation in the area in this part of the world as a good defense attorney. But generally, I'm also a nice guy, so I've also earned a reputation as a amenable attorney, in the sense that I'm going to be professional, I'm going to be courteous, I'm going to be those things. But when it comes to those rights guaranteed by the Texas and federal constitutions, I start getting really passionate very quickly. So, so we all know we have a U.S. Constitution, and and for those of you who don't know, this Tuesday was Constitution Day. Tuesday, September the 17th, 1780-seven is when the Constitution, the original Constitution of the United States, was ratified. And so it's kind of fun to talk about the Constitution on such a week. So we have constitutional rights in Texas and in the United States, and the ones that are up on the board right now are ones that I have had to argue or have come up in cases I've worked on in court. These are not kind of when you start talking about really what's going on. The the the defense. defense attorney is often the one that starts talking about your constitutional rights, your rights under the law, your rights to be free, things that we would take very much for granted in the United States and in the state of Texas. We have those rights, and it's often someone like me or one of my colleagues who is arguing those rights and arguing for those things. And so I'm just going to want to go through them and let you know where they sit in the U.S. Constitution and in the Texas Constitution, and maybe even how they differ. So the freedom of speech is obviously the First Amendment of the U.S. Constitution. We have a freedom of assembly, freedom of religion, and freedom of speech and freedom of the press. In other words, you can't hold me criminally. You can't criminally charge me for saying either I love Donald Trump or I hate Donald Trump. Both those are protected. I can say it all I want. It may not be smart, depending on who I'm with, to say one or the other. But I can say either one. I have that freedom. But the freedom of speech is not unlimited. We all understand that you cannot yell fire in a crowded theater. That's that. That's the rule that the U.S. Supreme Court came up with years ago. We understand that there are times where you can't just say anything you want at any given time. It doesn't make sense. So there are some limitations on that. I've literally tried a case where a lady was charged with threatening an officer. She called the police department, and she had a problem with the police officer. She had an ongoing issue. She should have just left it alone.
Andrew Decker 9:47
They weren't doing anything to her, but she kept calling and threatened the officer and said, "If I ever find him, I'm gonna and listed off a heinous way of killing him, and. I argued unsuccessfully that she had a freedom of speech. She has a right to be able to say I am disgruntled. That basically she's airing a grievance against the state, and that's protected. I didn't win that, and I would say sadly, it's really at her own peril that we went to trial, and I told her not to go to trial. We'll talk about pleas in a little bit. I want to follow up on those. That she ended up being sentenced to about three and a half years in the state penitentiary. But the freedom of speech actually comes up in criminal trials. It happens, but it's also protected under Article One, Section Eight of the Texas Constitution and under the Texas law, we actually have more freedom. We have more rights than we do under the U.S. law. They're more clearly defined, and it says that no law shall ever be passed curtailing the liberty of speech or the press in the state of Texas. And so I argued that under the under the Texas Constitution, that saying that I can't threaten a cop, that we're basically giving a police officer greater protection than we would a normal citizen, and we're curtailing the rights of the citizen of the state of Texas or the person in the state of Texas from being able to express their feelings by protecting a cop from from a threat that probably never would happen. Second Amendment: right to bear arms. We have a right to own weapons, own guns. We talk about this on a regular basis. It is in the news, you know. And sadly, right now, those of you who are in Midland are kind of in the in the, for lack of a better term, kind of cleanup mode from that. A little over 20 years ago is 20 years ago. I think last week I was blocks away from the Wedgewood Baptist shooting. I was literally working as a pastor at the Methodist Church closest to that, and was in a Bible study. And we got phone calls saying, "Hey, there's a so so I understand that fear and that that that reality, but we do have a right to bear arms, and again, the Texas Constitution also grants us that right. Article one, Article One is the Constitution for Texas or the Bill of Rights, Section 23 bearing arms. We have a right to bear arms to defend ourselves and to defend the state according to the Constitution, but in Texas it actually says the legislature has a right to curtail the wearing of arms in view of public safety. So it's interesting that we have an open carry law, a right to carry law, and at the same time, our legislature is actually given the power to legislate for public safety, the wearing of, and so they can make you actually get a license. They can make you have certain rules, certain places we can carry them, certain places we can't. So, for example, going to court, I go to court almost every day. It's unusual. I won't go to court today, but in the courtroom, the the concealed carry license, the the the right to carry extends to obviously the bailiffs, the law enforcement in the room. It extends to the judges, and there's at least one judge that I know who literally has a sidearm under his robe, and I know that because he's told me as I was preparing to speak on changes to gun laws a couple of years ago, and I kind of knew that I knew the guy well enough to know that. And then the prosecutor has a right. So, so that ADA the other day has a right to carry a gun, but as a defense attorney, I do not. I do not have a right to bear arms in a courtroom in the state of Texas. I'm the only officer of the court not allowed to to to arm myself against an attack. And again, the legislature has written it that way. And I've argued the right to bear arms. So it comes up usually following a a family violence case.
Andrew Decker 14:12
So anyone who's found guilty, and in their finding of guilt, there's a finding of family violence. That person cannot, under Texas and U.S. law, own a firearm. Well, okay. So obviously, one of the there are some reasons for that. One of them is that persons who commit mass shootings, the single they are the single most common piece, aside from them being white males, ironically, is the next piece is they've had a charge at some point of family violence. So, and persons who are who are killed by their killed or seriously wounded by their their spouse usually. Have had some form of family violence in the home prior to that final act, so it becomes reasonable. But let me explain this: that a finding of family violence does not have to be that someone has has an ongoing abusive relationship, and families extended pretty far out under the laws. So you have a roommate. You're not. You've agreed to live together for 12 months under a contract. You all, as you're splitting up your property, you're moving out, but you're still living together. Are arguing about who owns the microwave? Y'all bought at Walmart for 30-790-five and in that, one of you puts it in your stuff, and the other one goes and picks it up and takes it back to their stuff. You know, y'all y'all are just trying to divvy up your items, and one of you pushes the other one, and they fall. You know, they they might have a little mark on their chest from the push. They might their butt might hurt from falling on the ground, but there are no serious injuries. Well, in the argument, the neighbor calls the cops because you live in an apartment. They can hear it. They call the police. The police come out and they separate the tubing. They say, "What's going on? Well, we're just hard. We're you know we still got a week together. We're trying to divvy up our stuff. Most of it's real clear. You know, yeah. You know, I one of you goes, yeah, I pushed my roommate, and the other one goes, well, they pushed me, and you know, they pushed me right here, and you know, my probably gonna have a bruise in the morning, and my my butt hurts because I fell on the ground. And they go, okay, and so they arrest the one who shoved the other one. Now we're in court, and the charge is going to be an assault, family violence with bodily injury. You go really, it's pain that's going to last 10 minutes, but that's enough. If it causes pain, it's enough to be a bodily injury. So that person who who ending a year long relationship with a roommate, not romantic, not related, may never see each other again. But because they were living together and in that argument over the microwave, when it comes to $37 microwave, why are we fighting about this? There's a push, and now the state of Texas and the federal government, if that family violence finding ends up on a charge, ends up on a on a plea of guilty or a finding of guilt, they cannot own a firearm under the laws of the state of Texas or under federal law and federal laws forever, Texas will will will kind of allow that right to come back in time, and so literally I will argue about that. That you know part of the reason we don't want to do this, we don't want to have a family violence filing, is is that this guy has no, or this woman, and there there sometimes it's women has no no history of violence, no history of being unreasonable, and they live in an area that likes to hunt, and basically where they're going to lose that right for over arguing over something. And sometimes the one who's bruised will say, I don't want to press charges, and because they called the cops, the the police, law enforcement now has the discretion, and most of them will do it automatically. Take the person, the other person, into custody, and and again, you end up with family violence finding, which will then infringe upon your right to bear arms. So it does get argued. The Fourth Amendment is your search and seizure. You have a right to be free from unreasonable searches and seizures.
Andrew Decker 18:48
And in Texas, that is called well. It's in Article One, Section Nine. But there's also the Texas Exclusionary Rule. So if under the Texas under the U.S. Constitution, the you are free to be free from unreasonable searches and seizures, and the presumption is that there's not a warrant; it is unreasonable. Well, there are lots of ways to work around that, and the places where searches happen without a warrant happen often when you get stopped for doing 30-eight and a 30, I literally have a case right now that was the chart, or for driving in the left lane where left lane is passing only signs are posted, or you're driving down the road and well you're looking at the radio and messing with your kid in the back and and you're you know somebody sends you a text and so you're distracted driving and you kind of do that little bit of a weave your your tires cross the white line and an officer lights you up and suddenly you're sitting on the side of the road and they go where are you coming from tonight have you had anything to drink and you seem a little nervous why because your kids. In the back, you're worried about something at the house. You've had a long day, and the officer goes, "You sure seem real nervous tonight. Why don't you step out of the car for him? Okay, and because you've stepped out of the car, they're then going to basically frisk you for weapons. They say for officer safety, so they pat you down. It's just got to be kind of a simple pat, you know. They they can't they can't grab. It's much more like a Terry Frisk. That's but they can pat you down, and they they feel something that well, it's not a weapon, and they kind of they they may they may they may grab a little bit and feel it. Well, that that's that's not what they're supposed to be doing, but they find just a little bag, little bag, or they find your cigarette pack in your coat pocket, and they pull it out. Well, why? Because they know from their experience and their training that often people take their cigarettes out and put marijuana in there, and suddenly you've been searched. Or he gets you out of the car and go, "Hey, do you have anything illegal in the car? No, no, no, no, sorry, not nothing illegal. You mind if I mind if I take a look? And they will literally they can take your car apart with your permission. You said, "No, I don't have anything illegal, nothing going on your thing, and I just want to get out of here, and he finds, well, a a a marijuana. What whoa, what you and I would, what you might call a pepper grinder. That's what's going to look like, and he's going to call that a grinder, and that's paraphernalia. So then he has more right to search because now there's there's reasonable for a crime, and and you consented. You told them it's okay, so it's reasonable because you said yes. Please search my car. I want you to find paraphernalia, and I'm not saying any of you carry anything like that. But this is the reality of what gets dealt with on a regular basis, and and the Supreme Court in Texas and the United States, or Court of Criminal Appeals and the Supreme Court of the United States, have said that things like consent, a reasonable suspicion of a crime, especially would there be a vehicle that becomes like an exigent circumstance. Why? Because you can drive away and hide, clean out your car before the cops get back. Those become means where someone can search your vehicle and possibly find things that, well, you may have forgotten were there. They may have been. They may be relatively old, and suddenly you've got a problem. Just like sometimes, if you have kids, you will find that half-drank bottle of milk that's been in the car in the summertime for a few days, and you're like, "Dude, that was Sunday morning on the way to church. We were having donuts, and oh, I should have cleaned that out. And it's now just Tuesday, and you have to be very careful. Why? Because you forgot about the bottle of milk.
Andrew Decker 23:02
It's not a crime, but it's going to be disgusting when you try to get it out of the car. Well, the Texas exclusionary rule says, and that's Code of Criminal Procedure Article 3823A says that any any evidence that's illegally obtained cannot be used against you in a court of law. An unreasonable search or seizure is an illegal taking. That information, that evidence, whatever it is, cannot be used against you in that court of law. The cops can't steal from you, just like I can't steal from you. Right to remain silent. The problem is not that you have a right to remain silent. The problem is most people, when they're being asked and questioned by the police, is they do not know how to remain silent, they will talk. Why you're nervous? You've told to kind of you've been told all your life to do to be cooperative with law enforcement, to respect them, and so they ask you, "Where are you coming from tonight? Well, if I'm doing 38 and 30, what difference does it make where I was coming from, but you go well. I'm coming from and name the local barbecue joint that sells beer. Okay, here here in Willow Park, it's the Railhead, and oh, like well, I'm coming from the Railhead. He goes, yeah, yeah. Tonight's Tuesday. It's Steve Helms is playing tonight, didn't he? Oh, yeah, yeah, yeah. He's a good guy. We love him. So, did you have anything to drink while you're there? Well, yeah. And and funny, the answer is always I had two beers, and then he's getting you out and doing full sobriety tests. Well, why? Because you answered his questions. You have a right to remain silent. The difficulty is using that right, and it's also protected under the. Text Constitution, Article One, Section 10, the rights of the accused. So it actually covers a couple of U.S. constitutional rights. But the right to remain silent. Off the the the number one thing that I'm asked currently. Take my time. The number one thing I'm asked currently by by a new client is, why was I not read Miranda? I wasn't Mirandized. We've watched TV. Everyone has watched a crime show or a movie where as soon as they arrest them, you know they kind of lean them over and they go, "You're being arrested for the murder of blah blah blah, because it's always a murder if it's on TV. And you have a right to remain silent. Anything you say can and will be used against you in a court of law. You have a right to an attorney, blah blah, and they go on. And we kind of all we all know the dance. We know what it sounds like. We know what it looks like. And so, you know, an officer stops you on the side of the road or comes to your door, knocks on your door, and you answer it. You know, you reach over and answer the door. There's a door over here, and you answer the door and say hello, and he goes, "Hey, I want to ask you about last week. You have the right to go, "No, sir, I need you to leave now and close the door. But we will kind of automatically go, "Well, what do you want to know about next week? Well, you're not in custody, and you're not being interrogated while in custody. You're being asked questions that any citizen could ask, and any any person that comes up and asks you, you don't have to answer questions. So people don't get Mirandaized because they're not in custody. You can even be detained. Again, you're on the side of the road. You're not free to leave. You're detained. You you can't leave, but the officer can ask you questions because you're not in you're not in custody. You haven't been arrested yet. And there's actually a piece in the DWI that I won't talk about now. I truly get upset about because the officer literally says you are now under arrest for the offense of DWI, and then he goes on and reads a whole bunch of other stuff and then asks some more questions. I think that automatically that's he should they should be Mirandaized in the middle of that sentence. Why? Because the Constitution demands it.
Andrew Decker 27:20
So the Sixth Amendment provides you in a right to an attorney. I've talked about that. You don't. You have a right to an attorney at any level of court, but you cannot be appointed one unless you're liberty, unless you can be jailed for the offense at every level. And again, the United-that's U.S. Sixth Amendment, Texas Article One, Section 10. Again, that's right of the accused. You have a right to speak for yourself or have an attorney speak for you. And the the next piece I'm going to talk about-a piece that kind of crosses over into due process of law, often, especially in misdemeanor, so you can be in jail for up to a year, up to 365 days on a misdemeanor in the state of Texas, Class A or Class B. I've had cases where before someone who was an appointed an attorney, the the the county attorney made an offer and said, "Hey, six months in jail, or or 24 months deferred, or something. And the person knows enough to know that they don't know what the answer should be, and so they very honestly say, "I think I need an attorney. Well, the guy was off for 12 months. Think probation. He asked for an attorney, and the offer immediately became 18 months. So, by him exercising his constitutional right, the plea offer, and this is probation, so he get to go home. He get to go do what he wants to do, basically. But because he asked for an attorney, he practiced his constitutional right to say, "I'm signing something. I don't know what I'm signing. I need someone to help me. The offer went up. Well, before we went back to court, happened to run into the elected county attorney, and he he he happened to ask me. John asked me, Andrew, how how how are things going? You know, you're kind of new to the area. What's going on? Tell me. And I said, actually, things are great, John. You know, I'm really impressed with your office. And then I went, wait. I had one where the offer changed when he asked for an attorney. The offer went up, and John looked at me really carefully, and I said, "John, I'm not. Why would I? Why would I make that up? And he said, "Well, tell me who. And I said, "John, I don't feel like that's fair. I don't. You know, it's a one-time deal. I don't know if it's a one-time mistake or whatever." But I want you to know that that changed. I went back like two weeks later for this guy, and the attorney goes without me saying anything. He said, "Hey, hey, I didn't, I didn't change that because he asked for an attorney. I was just trying to get him to plead and get it done with. And and and I was like, obviously, they talked about it in their office. I have not had that experience since then. My guess is that it's probably happened several times. Just no one has pointed it out to to the to the boss. So having a right to an attorney should not, just like your right to remain silent, should not hurt you in in court. My job is not to. Well, my job is to help you, help, help, help the accused. And then due process of law is the 14th Amendment, and it's kind of mixed under Article One, Section Three, and Article One, Section 10 in Texas. Basically, that we are all equal under the law, and we all have due process of law. It's kind of the catch-all now. At this point, it is how the 14th Amendment of the United States is how the first, second, fourth, fifth, sixth, eighth, etc. Amendments have been open to the states. They were not prior to the Civil War, even for the first few years following. But that's how they how they get in there. That basically all of us are equal under the law. All of us have a right to due process under the law. We have a right, basically, to confront witnesses, etc. So those are the constitutional rights under Texas United States. She went through some of those. I wanted to kind of follow up on them, tell you a little bit also that Texas has them as well.
Andrew Decker 31:46
So the ADA the other day talked about plea agreements, and and there were some questions as to why people take a plea, why pleas change, why you know what's going on. So all of us have a right to trial, but about 90-five to 90-8%-it really almost 90-8% of all criminal cases flee. In other words, or or are worked out prior to trial. It could be that it's your first offense. You're you're 20 years old. You have a little bit of marijuana, and the the the DA doesn't want you to end up with a criminal record. And so they say, hey, in the next 90 days, I want you to do community service. You submit three clean UAs. In other words, pee in the cup. Comes back. There's no marijuana in your system, and take a drug education course. So you kind of do some do some betterment of yourself, betterment of the community, kind of figure out how things are going on, and then we'll dismiss your case. Okay, so that would be one that got worked out prior to trial, but it's not really a plea. It's called a memo agreement or a pre-trial diversion or something of that effect, depending on your jurisdiction. Well, why did pleas happen? Well, on a misdemeanor, again, a little bit of pot, DWI, an assault, family violence, bodily injury-not serious bodily injury-you can be taken into custody, and if you don't have the if you don't have the money to make bail, and your jurisdiction doesn't give you a PR bond, a personal recognizance bond. You can be held in custody for a couple of weeks before you get into court. So you've been held in the county jail for, let's say, 10 days on a well, we'll use DWI. Okay, I don't drink and drive, but you know you've had a few too many drinks at that barbecue joint, or at the club, or whatever, or at your friend's house, and you're driving home, and you're just a little over the legal limit. They throw you in the county, jail you don't have money to bond out. Why? Because you're a college student, and you're then brought in front of a judge with an with an attorney that probably met with you one afternoon, and you're in court the next morning, and they say so. The offer is 30 days county jail and a $200 fine plus court cost. Well, you get three for one, three days credit in most county jails for every day that you're there, especially if you're a trustee, and if all you've got is a DWI, and you're you're a sound mind, sound mind, and sound body. They make you a trustee. Why? Because that means you can work in the kitchen, you can work in the laundry room. In in Parker County, you're out mowing the grass. You're doing all sorts of stuff. So being a trustee is a good deal. So you're you've been in there 10 days. They give you three for one, and they tell you, "Well, it's a Friday morning. If you stay until Sunday morning, even your court costs, you will owe nothing. At that point, do you care if you're guilty or innocent? You're going. I can spend two more nights, and I'm done. At that point, you you don't care. The stop was good. You don't care if if there's some problem with the issue. You know you're just like sign me up so I can be done. I literally had a case where on in the police report the reviewing officer said I have questions as to the guilt of of the defendant. The officer reviewing the file said, "I don't think he's guilty. I said to the judge on a jail run, just like that. I said, "Judge, this person needs to be granted a personal cognizance bond because literally there is doubt in the paperwork, and for him, he either has to take a plea, go home, or he sits here until we can get this worked out, and the judge said, "Judge denied my personal card to respond. He said, "I'll lower it from $1,500. Well, that didn't help my guy out at all. He was homeless, and so he ended up taking the deal, so he he so that he could leave, so he could get out of jail.
Andrew Decker 36:01
So when you're in custody, plea agreements become convictions very quickly because you want to get out of jail. We all want that get out of free free jail card, just like Monopoly, and it feels like that when they offer you a deal and you can go home today, or in a few days versus the unknown. So there's obviously fear. I've had several cases where I've told my client this is a case you need to try. The risk is not that you know the the fear and risk are related. So they've been offered 20 124, months probation, which is the most you can get on a misdemeanor, and I said I think we can beat it. I think there's some issues with the stop. I think not with stop, but with with what happens on video. They don't draw your blood. I think we can win. I think there's some problems with the with the with the witness, not the cop, but the guy that called. I said, I think we can win this, and it can't get worse. They're not. It's your first offense. They're not going to put you in jail, and they're so afraid of court. They're so afraid of the unknown. They're so afraid of the process that they will plead to to a little bit better deal than the 24 months just to be done, and so so a plea happens because of that. Then there's risk on misdemeanor. The fear and the risk are it's the fear is greater than the risk because again a misdemeanor you can't spend more than a year in jail, and most jurisdictions, unless you already have a felony conviction, are going to probate you. You're going to get on probation. Why? Because it costs less. Costs less to the county. It costs less to the taxpayers. So they they don't want you sitting in custody. Let's talk about risk. I recently had a case where a guy is habitual. It's a felony. He has been to the been been to the penitentiary twice: once for four years, once for five years, and he actually didn't spend that long there. It was on drug cases. He he's an addict. Just being honest, and he's now in his his mid 50s. He's not a young man. He didn't start using meth until he was in his 40s. Basically, his life kind of cratered, and in the midst of a midlife crisis, took some stupid steps. He was offered 10 years. So, if you're habitual in the state of Texas, the least you can get from a jury is 25 years. So, the sentence is 25 to life. He was offered 10 years pre-indictment while he was in custody, and he said to his at that point appointed attorney, "No, he was in offer 20 years. He said yes, but when he went to sign, his sister talked him out of it. Said, "I don't know that this is a good deal. So he says no, and that pissed off the county attorney or the district attorney. And suddenly, the offer became 30. I got hired late, as it's getting ready for trial, and we, I went back to the district attorney because I because I was new to it. Ask him, tell him, give me the background. He's only been in the pen for four and five years. Why did we jump to 25 Why are we jumping to 30? And literally, I sat down with him and said, "Look, the 25 while it sucks is the very, very least you can get. And at the end of the day, the evidence shows that you had met, because there was a basically a lunch bag that he used kind of as his man purse. You know, with those insulated lunch bags. And he, in that lunch bag, there was there was a little bit of meth, more than he should have had. Was you know, but but just over just over a gram, and his bank card, and it was sitting right at his feet in this car that he wasn't driving, and I said, "Look, you're gonna be found guilty. You need to take the 25 because I think a jury in Parker County on an habitual will will start the bidding at 35 or more. You will. It'll.
Andrew Decker 40:42
It'll be for a long, long time, and so sometimes the the plea agreement becomes an issue of risk. Is it worth the risk of trial? And that becomes a real issue for people. I mean, I don't want to. I wouldn't want to take that risk. I don't think. And then finally, cost. If you can afford an attorney, you may be you will be responsible to pay that attorney. Now, at this point, depending on the where you are, somewhere between the lowest I've seen is 50, the highest I've seen is 80% and especially of felonies, of felonies it gets 70-five to 80% of all persons have an appointed attorney. I'm on the wheel. I can be appointed to cases. I get hired on cases as well. So I so I do both. But if you're hiring me, you're going to pay me a certain amount up to the point of a trial, and then if there's a trial, the work level, the I can't do anything else for those, you know, three days plus a couple of days beforehand on my weekend before shot because I'll end up thinking about it. I wake up early in the morning. I I go in. I'm making notes. I find myself cross and examining witnesses in my sleep. So I end up charging you a lot of money to go to trial. Well, the cost is it worth this much money for the risk and the fear, and so a lot of people will go. I just can't afford to do it, and so they take maybe a well. They may say, Hey, I'm not guilty, but I can't. I can't afford to do it, and and I'm not putting my hands in the hands of of an appointed attorney at that point. So plea plea agreements happen for lots of reasons, and often we'll look at people and go, "I hear you telling me you're not guilty. So, and I'll tell them, "If you say you're not guilty, you didn't do it. You don't take a plea. Well, the DA will will that that offer of five years on a third degree felony where you get two to 10 drops to three, and they realize I could be in jail for eight months, eight months to a year, and then be released on parole if I don't take it or go to trial. It could be, and and they'll be like, and they'll say I want to take the deal. And I said, "Okay, you've told me you're not guilty, but you're going to stand in front of that judge and you're going to plead guilty because you are guilty, not because I forced you to, not because I told you to, not because I told you it's a great deal. And they'll say, "Yes. Are they guilty or not? Sometimes my my answer is in their hearts. I don't know if they are or not. I can tell you what the evidence says, but evidence evidence that's given or evidence right there at the at the moment isn't all there is. So let's talk about the burdens of proof. The the the DA the other day talked about three of these. I want to talk about a little bit farther back because I end up arguing all of them at some point. The bottom, at the very bottom of your screen, you see reasonable suspicion. What an officer needs in order to make a traffic stop. They need specific and articulable facts along with rational inferences. So again, it can't be more than a hunch. Kind of well, they left the railhead, so they must be drunk. That's a hunch. There's nothing articulable there, unless he watched me literally drinking at the bar and then get in my car. He has no articulable facts that just because I'm leaving the railhead, which is also dinner place and a barbecue place and a lunch place, that that I that I'm DWI. So he's got to have specific and articulate facts along with rational inferences that I'm breaking the law. So if he clocks me at 38 and a 30, well, that's a specific and articulable fact that whoever's driving that's breaking the law, and so he has a right to to make a traffic stop. Okay. Probable cause is the next level. This is the legal standard for an arrest or a search. The reasonable person, the.
Andrew Decker 44:59
A reasonable belief that a person committed a crime more than reasonable suspicion, so it's a little bit higher burden. So if the officer makes that stop and says, "Wow, smells like a lot of alcohol in that car for one person, you know, your breath smells, and you know, and you kind of have that, "Hey, officer, ooh, look on your face, that might be probable cause for him at least to detain you, and then follow up with some stuff on that.
Speaker 1 45:30
When I prosecuted the DWIs, I feel like I heard the officers. It felt like they always saw the same things, like glassy eyes, bloodshot eyes. The smell of alcohol was very strong. I mean, it was like the same, and the person was always speeding or swerving. Like there was something about their driving that alerted the police.
Andrew Decker 45:51
Right, right. That's exactly right. The the they're always going to read the same. And in fact, if you want to know, I'm not going to talk a lot about DWIs right now, but I'll give a plug. A friend of mine and I, Andrew Herreth, and I started a podcast, and our October two sessions on Andrew and Andrew on Texas criminal defense are both on DWIs, and we talk about that. It's always glassy eyes. It's always slurred speech. It's always they couldn't find the driver's license. They seem nervous. Anyway, but that's enough to add probable cause to get you out and and and walk the line kind of deal. Preponderance of evidence. This is the first one the the ADA talked about is enough. It's kind of that the scales are tipped slightly in in one direction. It's enough to get money more like. likely than not, it's probably true that you know the automobile accident caused this person's injuries, and so the driver who's who caused the accident should pay for those injuries. That's what we're talking about. The reason I came I came back to them really for the legal burdens was to cover the bottom two, and this is actually a slide I use in trial during void dire during jury selection, so that they can see this, so they can see what all is not. Notice it says not guilty in big letters. Everything we're talking about so far, not guilty. The next level is the clear and convincing evidence, and you know, and the prosecutor will always say it's the legal burden used to remove a child from his parents. Well, the the case law defines clear and convincing evidence that the trier of fact must have a firm belief or conviction in the truth of the allegation, and so I look at people and I say, "What do you have a firm belief in? If I say I have a firm belief in something, I'm almost willing to die for that belief. I'm going to stand there and come hell or high water, not move from it. I can be that convinced, and my client is not guilty under the law. and so when you realize that you realize beyond a reasonable doubt is just a little bit higher. It's a very high standard. Doesn't mean that that people can't be found guilty. Doesn't mean that they are not guilty, but or not that they didn't commit the crime, but they may not be able to be proven guilty. But but I want you to hear the main reason I put this in was for those bottom two, and for you to hear under the definition of the law under case law, firm belief of a conviction in the truth of the allegations is less than the burden of beyond a reasonable doubt, you know, and so juries go back in the back, and and they kind of go, well, you know, I'm pretty sure he did it. Technically, I don't think that that's enough. I wouldn't stand and come hell or high water go, I'm pretty sure he did it, so let's find him guilty. But again, I'm a criminal defense attorney, so I know I'm biased. All right. So, but I want you to see those one more time. You're most of you are studying to be paralegals. Some of you might be taking the class for other reasons. So, I want to talk about pre-trial motions because it's not a glorious form of the law, but it is what you will end up helping with a lot. These are very important. My assistants write letters to clients. They will draft basic pieces for me, but sometimes I'll say, "Hey, I need you to edit this motion to quash or this motion to suppress as we get ready because I because I think there's a problem. And I'm actually going to go through each one of these. These are ones that I've used in used in court, and sometimes have had them be definitive enough that prior to trial, there. The case gets thrown out, so I'm going to use the motion to suppress. I told you about the guy that had the meth, was now at 25 years to life. We're preparing for trial. He turned down the offer one more time, and so I literally am now scouring.
Andrew Decker 50:15
And I got hired last minute because he didn't want to take a deal, and he fired. He basically fired his court-appointed attorney, and his sister came in and hired me. And the reason for the stop was that the officer said that the car was driving the left lane of I-20 going westbound in Parker County, and the left lane is designated with multiple signs as left lane for passing only, and there wasn't a lot of traffic. So then I start searching case law on left lane for passing only. Is that really enough? Well, it's considered a traffic control device, so it is enough. But then I started thinking about. I was like, I don't, I don't recall those signs. So literally, I drove it on Labor Day of this year. Well, my wife drove, and I put my literally used my iPhone. 15 miles had passed from the last sign to where my guy was stopped, or actually the lady driving the car was stopped, 15 miles. He had gone through; they had gone through a construction zone. They had passed through a city limit. The speed zone had changed two or three times. I filed the motion to suppress, and the DA very rightfully, you know, write you know emails back and go, hey, we just can handle this with trial. We can you know ask the jury to step out because this would be a outside the presence of the jury argument. And I emailed back and I said, hey, Jeff, no, I think this is one because if if I win this, we don't need a jury. That was on Thursday afternoon, about three, about 530 I get an email from him, and he goes, "Are you talking about Abney? Like, like he's he's found the case law that I'm talking about. And I email back, "Yes, sir. The last sign is 15 miles back, and he said, "Let me send an investigator out. That was Thursday afternoon, late on Monday morning. And he said, "He goes, if you're right, I'll dismiss it. Monday morning, he filed the motion to dismiss prior to our hearing on Thursday, and we would have gone to trial the following Monday. So he he dismissed it. We didn't have to go to trial because basically the he didn't the the officer didn't have a right to stop that vehicle. There was not specific and articulable facts with reasonable inferences that a crime was being committed because there wasn't a traffic control device there. The motion to suppress my guy went from facing 25 years to getting his case dismissed when I called him and told him he literally started crying. And I and he goes, you know, what can I do to thank you? What can I do to thank you? And I said and I and I said to my, I said, Peter, I said the best way to thank me is you've got to get in a program and get clean. But that motion to suppress completely took away the stop, which then took away all the evidence that my client had met in his possession. A motion to quash indictment. So, so these are a little more rare. Literally, once you've been indicted, generally that's the charging instrument. That what that's what tells you as a defendant what you're being charged with. And I filed. I've only filed two of these. Filed my second one yesterday. One of my filed because, well. because they the they the the the DA in a rural county said that my guy had committed two offenses, but we only had evidence of one. And so I asked, I was like, "Where's this other offense? Where's they said, "Well, it's he he admits to it, and I'm like, "Where? And they said, well, he admitted into it in the grand jury. Okay, so I filed a motion to disclose the grand jury testimony for various reasons. Had a particularized need. That's what you have to have to get grand jury testimony normally. And the judge ruled in my favor. We got the grand jury testimony, and then we found there might be some problems in the grand jury, and we're actually hearing that motion to quash next week, next Tuesday. I filed that one a year, 11 months ago. We're hearing it Tuesday. Okay, so wheels of justice are slow.
Andrew Decker 54:59
Slow, but I think we've got a good option, good good piece on that. The one I filed the other just yesterday, there are three three means to commit the offense listed in the statute. They list all three, and it says by deception. threat, or false document in the statute, they list all three, and the DA does not clarify which one. And normally, if you if you quote the statute, it's presumed to be a good indictment unless there's multiple means or or methods to commit the crime, and if that's the case, then then it's presumed not to be enough because I don't know which one you're charging my client with. So we're asking basically for them to quash the indictment as to as to vagueness. And then finally, a motion to disclose evidence. You file these when you think that there's something out there that you don't have yet. I had a case where a guy was being charged, and in the ref in the in the in the police reports, they talk about two other people being being interrogated, being questioned while in custody, and I was like, "Those are going to become important. And so I filed a motion to disclose evidence, so I could get those earlier than later, so I could view them, so I could watch them to find out what did they say. Sure enough, they were helpful. My guy's offer got a lot better. He ended up taking a deal, didn't make it go away, but it got so much better that he couldn't refuse it. It went from being a 15-year offer to being about a five-year offer, because I fought hard for my client. They're sudden. They knew that there were some issues. My guy was probably good for the crime, and it becomes a second. So the next time he's habitual, so next time he he could be facing 25 to 99 inner life, but that motion to disclose. I also filed one the other day. I have a guy who, well, we want to look at some physical evidence that's still in the possession of the police department, kind of following a hunch on my part that that I think will be beneficial at trial, and don't really want to talk about it right now because it's well, it's a fairly big case in this part of the world, and don't want to tip my hand too much. Not that you're going to tell, but just in case, you know, you become paranoid. So those are pre-trial motions. Those they become great, great assets in cases, and I've got several motion motion to suppress, and most often is the one where they didn't get a blood. You know, they didn't get a warrant to draw the blood, and they should have. Why? Why the stop wasn't a legit stop? Plain. Plain view doctrine shouldn't have applied, and so again, we actually talk about the motion to suppress in our podcast. You can learn more about those. It's our our pilot episode is a motion to suppress. So let's move on. All right, so man, I've been going. I thought I'd go right about an hour. So, so what do I do? This Stuart Kennard, what is a famous, famous now deceased criminal defense attorney, and this is a saying that he that he had, and I think it's exactly what most criminal defense attorneys feel like they're doing for protecting the Lord's children who have fallen short from perfection from the wrath of those who believe they have attained it, and that's not true of every prosecutor or every jury. But often, kind of, what you find is is that you get a you get a prosecutor who kind of goes, well, it's what the law says, and they just kind of have this blank look of anyone who would ever break the law. Obviously, is a well, maybe a terrible person. Well, that might be true. There are some terrible people. I've I've been in trial. I've represented some terrible people, but lots of times they're they're not. There, it was. I literally have a guy who's facing a DWI. He's in his 70s. His wife, a 50 year 50 years, passed away three months before, and he was depressed and went out drinking.
Andrew Decker 59:36
Went out to the graveside, had a few drinks, driving home, gets pulled over, and he blows a .04, half the legal limit, and they still are charging him with a DWI. That that that's that's why I do the job. You kind of go. This is not a guy that needs a needs a criminal record. This is a guy. That needs well somebody basically to give him a hug. So anyway, that's what I do. That gives you a pretty good idea of kind of what goes on. Oh, I want to talk a little bit more about the plea agreements. I know I've just wrapped up, but the question of you know how does 75 years become 45 years is one of them, or pleas without guilt, and I know I just looked down at my notes and saw that, and I wanted to make sure I got back to it. So, lots of times that initial offer, that 70-five years on a heinous crime, is what a DA thinks they can get on a heinous crime, aggravated sexual assault of a child, and they don't want to try that case any more than the defense wants to try that case. Well, why? Because it is hard on every person in the room. It's hard on the defense attorney. It's hard on the defendant, and maybe it should be hard on the defendant, right? I mean, if they've really done this, it's hard on the prosecutors. It's hard on the judge. It's hard on the bailiffs. They've done studies on juries who've come out of cases like this and out of capital murder cases, especially ones that last well, really, almost regardless length, but especially if you start talking a week or more, and they suffer from symptoms of PTSD, post-traumatic stress disorder, it is incredibly hard to be in those courtrooms. Well, why? Because the crime that the crime is incredibly heinous. They're often details that just make you almost sick, and so that 70-five years, they're like, I know I can get 70-five years. I can put you away for the rest of your life. Da da da da da. But they also have to weigh the cost to the county, the emotional cost, the time it's going to take, and they go 40-five years. Will you do 40-five? Because on that crime he has to do at least at least half. So he's going to do at least 20-two and a half years before he's parole eligible. And what I've seen on crimes that involve children, especially sexual assault crimes against a child, he's going to do 70-five or all of it. And so, so that plea that it may not seem reasonable, but in reality, everyone who has to deal with it kind of goes, "I'm going to cut it loose, partly because it is too hard on everyone to to want to do it, and so that so you end up getting some pleas that are maybe to the general public seem unreasonable or unfair, but at the end of the day, it's really about well, justice is served. You're taking someone and putting them away for 40-five years. So, you know, if this person's 25, they're not getting out until they're what 70, and you spend 45 years in the Texas penitentiary. Your life expectancy is not going to be the 80 it is for everyone else. It's going to be much shorter. So there's a decent chance they never see daylight again. So at that point, we're just we're playing with numbers about how we feel, not really about how we're if we're protecting. So I just wanted to go back and kind of catch that because because often you know we get asked how did you get that one worked out? It's that no one wanted to try it because it's so gross, and the defendant feels like somehow they have a chance to see daylight again with 40-five, and I don't know the exact case that was brought up, but those were the numbers. And the state feels like we've put this person away long enough that they're really not going to be a danger to our society. So, in plea agreements again, you know, it's how 90-8% of cases work out. I would say I'm less than that. I work out fewer than most because I'm willing to go to trial. Do criminal defense trial attorneys.
Andrew Decker 1:04:13
That's what we are. So you hire us, and one of the questions I'm going to ask is, I've had people ask me why hire me versus someone else, and I'm like, well, would this would you need to hire someone who'd be willing to go to trial on this case? And they'll say, well, I don't want to go to trial, and I'm like, I don't either, but I'm willing to. And the defense attorney who's not willing to go to trial, those offers aren't as good. They're not going to fight on things like pretrial motions. It's going to be much more. How do how do we work this out? Which which again, most my cases. But it's probably my. I'm between 90 and 95 Not between that 95 and 98% of my cases get worked out. And if you really count the ones that I get beaten with a pretrial motion, I'm really at that. Probably 90% are not flatly or worked out in other form other forms. So, wanted to catch that catch that again. So anyway, that's what we do. Any questions?
Speaker 1 1:05:18
I think we're good. I will. If anyone has any questions, they're happy to. I'm happy to have you guys email me, and then I'll send them to Andrew. Andrew, we really appreciate you speaking with us today. Any other questions? If not, I'm gonna end the recording and end the webinar. All right. I think that's all right. No
Andrew Decker 1:05:38
questions. Okay.
Speaker 1 1:05:40
Thank you so very much. We appreciate you.
Andrew Decker 1:05:43
All righty. Thank you. I appreciate having the opportunity.
Speaker 1 1:05:46
Take care.
Andrew Decker 1:05:48
All right. Bye.