Who Decides at Trial? 5 Choices Only a Texas Criminal Defendant Can Make

Who Decides at Trial? The Choices Only a Texas Criminal Defendant Can Make

Criminal defense lawyers are hired to make decisions.

We decide which motions to file. We decide how to cross-examine witnesses. We decide when to object, which evidence to attack, what themes to develop during voir dire, and how to present the defense to a jury.

But some of the most important decisions in a criminal case do not belong to the lawyer at all.

They belong to the defendant.

That distinction was the focus of this episode of Andrew & Andrew on Texas Criminal Defense. Andrew Decker and I discussed the fundamental decisions that remain in the hands of the accused, even when that person is represented by an experienced criminal defense attorney.

This isn't merely an academic distinction. It comes up in courtrooms every day.

A lawyer may believe accepting a plea bargain is overwhelmingly in the client's best interest. A lawyer may think putting the client on the witness stand would be disastrous. A lawyer may strongly prefer having a judge rather than a jury decide punishment.

Those opinions matter. Good lawyers are supposed to give their clients advice.

But advice and authority are not the same thing.

For certain fundamental choices, defense counsel's job is to explain the risks, benefits, consequences, and available options. The ultimate decision, however, remains with the defendant.

That makes understanding the division of authority between attorney and client essential for anyone practicing criminal defense in Texas.

The Defendant Is the Captain of the Ship

One way to think about the attorney-client relationship in a criminal case is that the lawyer helps navigate the ship, but the client gets to choose certain destinations.

Trial lawyers make countless tactical decisions.

Which witness should we call?

Should we object to this question?

Should we introduce this exhibit?

How aggressively should we cross-examine this witness?

Should we file this particular pretrial motion?

Those are generally questions of trial strategy entrusted to counsel.

But other decisions directly affect the defendant's constitutional rights and the fundamental objectives of the representation.

Those decisions are different.

Among the decisions we discuss in this episode are:

1. Whether to plead guilty or not guilty.

2. Whether to waive a jury trial.

3. Whether to testify at trial.

4. Whether to accept or reject a plea bargain.

5. Whether to elect judge or jury for punishment.

There are important qualifications to several of those rules, which we'll discuss below.

The important starting point, though, is this:

The lawyer advises. The defendant decides.

And when the decision belongs to the client, defense counsel should not substitute the lawyer's judgment for the client's simply because the lawyer believes he or she knows what is best.

1. The Decision to Plead Guilty or Not Guilty

Perhaps the most obvious decision belonging to the accused is the plea itself.

A criminal defense lawyer cannot simply announce that a client is pleading guilty because counsel believes conviction at trial is inevitable.

That decision belongs to the defendant.

Texas law also contains an important distinction between felony and misdemeanor cases.

Article 27.13 of the Texas Code of Criminal Procedure addresses pleas in felony cases and provides, subject to limited statutory exceptions, that a plea of guilty or nolo contendere must be made in open court by the defendant in person.

Article 27.14 addresses pleas in misdemeanor cases and provides different procedures, including circumstances in which counsel may enter a plea on a defendant's behalf.

That distinction makes sense when we consider what a guilty plea actually means.

A defendant pleading guilty isn't merely selecting a procedural option.

The defendant is giving up fundamental rights.

Among other consequences, a guilty plea ordinarily involves relinquishing the right to require the State to prove guilt beyond a reasonable doubt, the right against self-incrimination in connection with the plea, and the right to confront the State's witnesses.

And the consequences can involve years—or even decades—of the defendant's liberty.

As we discussed on the podcast, the lawyer isn't the person who has to serve the sentence.

That is one reason the ultimate decision must remain with the accused.

The episode discusses Graves v. State, 803 S.W.2d 342, in connection with the principle that the decision regarding the defendant's plea belongs to the defendant.

Defense counsel can—and often should—make a strong recommendation.

But recommendation is not decision-making authority.

"My Lawyer Made Me Take the Plea"

Criminal defense attorneys have probably all heard some version of this:

"My lawyer made me plead guilty."

Sometimes what the defendant really means is:

"My lawyer strongly recommended that I take the offer."

Those are very different things.

Imagine a defendant charged with burglary of a habitation who has two prior qualifying felony convictions and potentially faces a habitual punishment range.

The State has strong evidence. There is surveillance video. Police allegedly caught the defendant inside the house. The prosecutor then offers to waive the enhancements and recommend the minimum sentence.

What should the lawyer do?

The lawyer may have a very strong opinion about the offer.

In fact, failing to clearly explain just how favorable that offer may be could itself be problematic.

But when the prosecutor asks:

"Do we have a deal?"

the defense lawyer's answer still has to involve the client.

As Andrew Decker put it in our hypothetical during the episode:

"Let me go talk to my client."

That captures the division of responsibility perfectly.

The attorney's job is to evaluate the evidence, understand the applicable punishment range, identify possible defenses, evaluate the likelihood of conviction, explain the consequences of the offer, and give the client a recommendation.

The attorney can say:

"If you were my brother, I would tell you to take this deal."

But the attorney cannot make the client sign it.

The decision remains the client's.

2. Accepting or Rejecting a Plea Bargain

The same principle applies to plea negotiations generally.

Defense lawyers negotiate plea agreements.

Clients accept them.

That distinction becomes particularly important when the attorney believes the negotiated offer is exceptionally favorable.

Suppose the State's original position exposes the defendant to decades in prison. After negotiations, defense counsel obtains an offer that dramatically reduces that exposure.

From the lawyer's perspective, accepting the deal may appear obvious.

The client may disagree.

That is where counseling becomes critical.

Instead of merely telling the client:

"Take the deal."

a defense attorney should help the client understand why the lawyer is making that recommendation.

Walk through the evidence.

What evidence will the State introduce?

What witnesses will testify?

What physical or forensic evidence exists?

What evidence can the defense challenge?

What viable defensive theories exist?

What is the punishment range if convicted?

What does the plea bargain reduce that exposure to?

What collateral consequences accompany the conviction?

And perhaps most importantly:

What happens if we reject this offer and lose?

A defendant cannot make an informed decision without understanding both sides of the equation.

At the same time, criminal defense lawyers must remember that risk tolerance varies dramatically from person to person.

One defendant may accept probation on a reduced charge rather than face the possibility of prison.

Another may refuse that same offer because the defendant insists the allegation is false and is unwilling to plead guilty to something he says he did not do.

In the episode, Decker describes a sexual-assault case in which the client rejected an extraordinarily favorable reduction because he maintained that he had done nothing nonconsensual.

The client went to trial.

He was acquitted on all three counts.

That doesn't mean rejecting the offer was objectively the "right" decision. Had the jury convicted him, the consequences could have been severe.

Instead, the story illustrates something fundamental about criminal defense:

Lawyers evaluate risk. Clients decide how much of that risk they are willing to accept.

A lawyer's responsibility is to make sure the client's decision is informed.

3. The Right to a Jury Trial—and the Decision to Waive It

The right to trial by jury is fundamental in criminal prosecutions.

Both the United States Constitution and Texas Constitution protect jury-trial rights, and Texas provides particularly broad jury-trial protections in criminal cases.

In the episode, we discuss Robinson v. State, 656 S.W.2d 111, in connection with the defendant's constitutional right to trial by jury.

But there is an important distinction here.

A defendant can decide:

"I want a jury trial."

The defendant cannot necessarily unilaterally decide:

"I want the judge—not a jury—to decide whether I'm guilty."

Why?

Because in Texas, waiving a jury trial may require more than the defendant's preference.

As we discussed during the episode, both sides may have interests in whether guilt or innocence is tried to a jury.

That sometimes surprises clients.

A defendant may believe a judge will be more receptive to a legal defense or less emotionally affected by the allegations and therefore tell the lawyer:

"I want to go to the judge."

But the defense cannot always force the State into a bench trial simply because the defendant prefers one.

That distinction is critical when advising clients about trial strategy.

The defendant's fundamental right is the right to a jury trial.

Waiving that right involves additional legal requirements.

Why a Defendant Might Prefer a Judge

There are legitimate reasons a defense lawyer might recommend a bench trial in an appropriate case.

Perhaps the dispute is unusually technical.

Perhaps the primary defense depends on a narrow legal issue.

Perhaps the alleged offense involves facts that could create an intense emotional reaction from jurors.

Or perhaps counsel has extensive experience with the particular judge and believes the judge will fairly evaluate a defense that may be difficult to communicate to a jury.

But lawyers should be careful about oversimplifying the analysis.

Knowing the judge matters.

Knowing the prosecutor matters.

Knowing the jurisdiction matters.

And knowing the exact facts of the case matters most of all.

During the episode, we discuss the value of asking other defense attorneys about their experience with a particular judge.

For younger lawyers especially, this can be invaluable.

Texas criminal defense lawyers have a tremendous professional network. Local defense bars, statewide organizations such as TCDLA, listservs, and experienced attorneys in the courthouse can provide practical information that no statute or appellate opinion will tell you.

A lawyer considering an open plea to a judge should want to know:

How does this judge historically approach this type of offense?

Does the judge commonly consider deferred adjudication?

How does the judge view probation?

How does the judge handle defendants with significant criminal histories?

Does this judge tend to follow the State's recommendation?

Those aren't substitutes for legal research.

They're part of competent counseling.

The client ultimately needs enough information to make an informed decision about the rights that belong to the client.

4. The Defendant's Right to Testify

This may be the most important practical issue discussed in the episode.

Every criminal defense lawyer understands the defendant's right to remain silent.

The State cannot force an accused person to testify against himself.

And during jury selection, defense attorneys routinely explore whether prospective jurors can genuinely respect that right.

A common voir dire question is essentially:

"Will you hold it against my client if he doesn't testify?"

But there is another side to the right to remain silent.

A defendant also has a constitutional right to testify.

That right belongs to the defendant—not the lawyer.

The episode discusses Rock v. Arkansas, 483 U.S. 44 (1987), a United States Supreme Court decision recognizing the constitutional dimensions of a criminal defendant's right to testify on his or her own behalf.

That creates an extremely important rule for trial lawyers:

You can advise your client not to testify. You cannot simply prohibit a client from testifying when the client chooses to exercise that right.

That can create uncomfortable situations.

Imagine your client has multiple prior convictions.

The State's case has gone better for the defense than expected.

The prosecutor has not been able to introduce much of the client's criminal history.

From counsel's perspective, putting the client on the stand could open doors that have remained closed throughout the trial.

You may think testifying is a terrible idea.

You should explain exactly why you think it's a terrible idea.

But ultimately?

It's still the client's decision.

The Best Practice: Put the Decision on the Record

This leads to one of the most practical lessons from the episode.

Do not assume your client isn't going to testify.

And don't wait until the State rests to discuss the issue for the first time.

Defense counsel should discuss the possibility of testifying well before trial.

Prepare for both possibilities.

Explain the benefits.

Explain the risks.

Discuss potential impeachment.

Discuss criminal history that may become relevant.

Discuss what cross-examination could look like.

And then, after the State rests, discuss it again.

At that point, the theoretical question has become concrete.

You now know what evidence actually came in.

You know which witnesses performed well.

You know what damaging evidence was excluded.

You know whether the State has filled the holes you expected to exploit.

And you know whether the defendant's testimony may be necessary to answer something the State presented.

In the episode, we recommend requesting a recess after the State rests so counsel can once again review the right to testify with the client.

Then put the client's decision on the record outside the jury's presence.

The examination can be straightforward.

Has counsel explained your right to testify?

Do you understand that you also have the right not to testify?

Have you discussed the advantages and disadvantages with your attorney?

Do you understand counsel's recommendation?

After discussing it with counsel, have you decided whether you wish to testify?

Is that your decision?

The point isn't to create some elaborate performance designed to protect the attorney.

The point is to establish a clear record showing that the person who actually possesses the constitutional right made the decision whether to exercise it.

That distinction matters.

When the Client Wants to Testify Against Your Advice

One of the hardest situations for a criminal defense attorney occurs when the lawyer believes the client should remain silent—but the client insists on testifying.

Maybe the defendant has a substantial criminal history.

Maybe the defendant performed poorly during trial preparation.

Maybe the defendant tends to argue instead of answering questions.

Maybe there are prior inconsistent statements that the prosecutor will use during cross-examination.

Or perhaps the defense has successfully kept damaging evidence away from the jury, and putting the defendant on the witness stand risks opening the door to evidence the State otherwise could not introduce.

The defense lawyer may have very good reasons for saying:

"I strongly recommend that you do not testify."

But there is a major difference between advising a client not to testify and preventing a client from testifying.

The decision ultimately belongs to the defendant.

That is why the conversation between lawyer and client matters so much.

Defense counsel should explain specifically why testifying may hurt the case. Don't simply say, "Trust me."

Explain what the prosecutor can ask.

Explain what prior convictions may become admissible.

Explain the areas where the defendant is vulnerable to impeachment.

Explain what damaging evidence could potentially come before the jury.

Then explain the other side.

What does the defendant's testimony add to the defense?

Is the defendant the only person capable of explaining what happened?

Does the case involve self-defense where the defendant's perception of events is critical?

Is there an accusation that only the defendant can directly contradict?

Those are the kinds of considerations that allow a client to make an informed decision.

And if the client listens to all of that advice and still says:

"I want to testify."

Then the lawyer must recognize whose constitutional right is involved.

The defendant's.

Handling a Client's Criminal History

A related problem arises when the defendant has prior convictions.

There is sometimes a tendency to assume:

"My client has a terrible record, so obviously he isn't testifying."

That may ultimately be the correct strategic recommendation.

But it should not become an assumption that replaces the client's decision.

If the client decides to testify despite having admissible criminal history, defense counsel should consider whether to address damaging information during direct examination rather than allowing the prosecutor to reveal it dramatically on cross-examination.

As we discussed during the episode, sometimes the better approach is simply to take the wind out of the State's sails.

If the jury is inevitably going to hear something damaging, there may be value in controlling how they first hear it.

That doesn't mean unnecessarily introducing harmful evidence.

It means recognizing that sometimes the dramatic revelation is worse than the fact itself.

A prosecutor standing up on cross-examination and announcing a defendant's prior conviction can create the impression that the defense was hiding something.

If the evidence is unquestionably coming in anyway, counsel may sometimes choose to address it first.

The defense can acknowledge the bad fact and then move on to the reason the jury is actually there.

Again, that is trial strategy.

But the decision underlying the entire discussion—whether the defendant testifies in the first place—belongs to the defendant.

5. Who Chooses Judge or Jury for Punishment?

Another major decision discussed in the episode involves punishment.

Texas criminal trials generally involve separate guilt-innocence and punishment stages. When a case is tried to a jury, Article 37.07 of the Texas Code of Criminal Procedure governs important aspects of the punishment proceeding.

Texas law provides mechanisms through which a defendant may elect to have the jury assess punishment following a conviction.

That decision can dramatically affect the outcome of the case.

And it should never be treated as an administrative box that gets checked without serious discussion between lawyer and client.

A defense attorney should evaluate the judge.

The lawyer should evaluate the potential jury.

The lawyer should consider the offense.

The lawyer should examine the defendant's criminal history.

The lawyer should understand probation eligibility.

And the lawyer should understand what sentencing options are legally available depending upon who assesses punishment.

Then the lawyer should explain those considerations to the client.

The transcript captures the relationship well: defense counsel remains the advisor, but the defendant is ultimately the person whose liberty is at stake.

Why the Punishment Election Can Change Trial Strategy

The punishment election isn't merely about what happens after a guilty verdict.

It can affect the way the entire trial is presented.

Most importantly, it can affect voir dire.

Suppose the punishment range is two to twenty years and the defendant is eligible for community supervision from a jury.

If the jury will assess punishment, defense counsel may need to question prospective jurors about whether they can genuinely consider the entire range.

Can they consider two years?

Can they consider twenty?

Can they consider probation if the law and evidence permit it?

Does anyone believe that a person convicted of this particular offense automatically belongs in prison?

Those questions can expose biases that matter not only during punishment but also during the guilt-innocence phase.

The episode discusses how a punishment election can therefore become part of broader trial strategy.

Sometimes merely forcing the State to confront a difficult jury panel can change the dynamics of plea negotiations.

Cases settle at the courthouse.

Cases settle during voir dire.

Cases sometimes settle after a panel is busted and everyone realizes they have to come back and do the entire thing again.

That does not mean a lawyer should manipulate the client's punishment election solely as a bargaining tactic.

It means the attorney should understand all of the strategic consequences that flow from the client's decision.

Know Your Judge

The decision between judge and jury punishment also illustrates why local knowledge matters so much in criminal defense.

Statutes tell us what judges can do.

Experience tells us what particular judges are likely to do.

Those are different questions.

An experienced defense attorney may know that one judge frequently considers probation in a certain category of cases while another rarely does.

A judge may have a reputation for being particularly severe toward repeat offenders.

Another may take a more individualized approach.

None of this guarantees a particular sentence.

But it is information that should be considered when advising the client.

Decker gives an example in the episode involving a habitual family-violence case.

The defense elected to have the judge assess punishment. The judge ultimately imposed 30 years and later indicated that a jury likely would have imposed considerably more.

Was 30 years a good outcome?

That depends on the realistic alternatives.

If the minimum is 25 and a jury could realistically impose 50 or 60, a 30-year sentence takes on a very different meaning than it would in isolation.

That is part of what criminal defense lawyers do.

We don't evaluate outcomes in a vacuum.

We evaluate them against the realistic alternatives.

The Boundary Between Client Autonomy and Trial Strategy

At this point, an obvious question arises.

If the defendant gets to decide all of these things, what does the lawyer decide?

Quite a lot.

The distinction is generally between the fundamental objectives of the representation and the strategic decisions used to pursue those objectives.

Defense counsel generally controls the mechanics of trying the case.

Which objections should be made?

Which questions should be asked?

How should a witness be cross-examined?

Which evidence should the defense attempt to introduce?

Which evidence should the defense attempt to exclude?

Which witnesses should be called?

Which legal arguments should be emphasized?

What motions should be filed?

Those are the kinds of decisions where the lawyer's training, experience, preparation, and professional judgment come into play.

A defendant doesn't ordinarily get to sit at counsel table directing every cross-examination:

"Ask that question."

"Object to this."

"Call this person."

"Introduce that photograph."

Trial lawyers are hired to make those decisions.

But there is an important limit.

Trial strategy cannot be used to override a fundamental objective that belongs to the client.

And that brings us to one of the most important United States Supreme Court cases discussed during the episode.

McCoy v. Louisiana: When "Trial Strategy" Goes Too Far

McCoy v. Louisiana, 584 U.S. 414 (2018), provides one of the clearest modern explanations of the boundary between attorney strategy and client autonomy.

Robert McCoy was charged with three counts of first-degree murder.

He maintained his innocence.

His defense attorney believed the evidence against McCoy was overwhelming and concluded that the best strategy for avoiding the death penalty was to concede that McCoy committed the killings while arguing that the State could not establish the mental state required for first-degree murder.

From the lawyer's perspective, that may have appeared to be the most rational strategy.

There was one major problem:

McCoy expressly objected.

McCoy insisted that he was innocent and wanted the defense to maintain that position.

His attorney nevertheless conceded to the jury that McCoy committed the killings.

The United States Supreme Court held that counsel could not override McCoy's objective in that manner.

The Sixth Amendment preserves a defendant's autonomy to decide the objective of the defense, including the decision to maintain innocence. The Court distinguished those fundamental choices from ordinary trial-management decisions entrusted to counsel.

That distinction is critical.

The issue wasn't whether the attorney's strategy was reasonable.

It may have been perfectly rational as a matter of trial strategy.

The problem was that the strategy crossed into a decision that belonged to McCoy.

The Lawyer Is Still the Lawyer

McCoy does not mean that defendants control every strategic decision during trial.

In fact, the Supreme Court specifically distinguished fundamental client decisions from trial-management decisions.

Lawyers still determine how to accomplish the client's lawful objectives.

The attorney decides which objections to make.

The attorney generally decides which witnesses to call.

The attorney determines how to conduct cross-examination.

The attorney decides how to structure arguments and how to present evidence.

But the client gets to determine certain fundamental objectives.

If the client says:

"I am not guilty and I want to maintain my innocence,"

the attorney cannot stand before the jury and effectively say:

"My client did it."

That remains true even when the attorney sincerely believes conceding the criminal act is the only realistic strategy for avoiding a much worse outcome.

McCoy therefore gives criminal defense lawyers a useful way to think about the attorney-client relationship:

Counsel controls the strategy. The client controls certain fundamental objectives.

What Happens When the Client Makes a Bad Decision?

This is where criminal defense becomes difficult.

Sometimes clients make decisions their lawyers believe are wrong.

They reject favorable plea bargains.

They insist on going to trial.

They insist on testifying.

They choose a jury for punishment when counsel prefers the judge.

They refuse to concede something that the evidence appears overwhelmingly to establish.

A lawyer's obligation isn't to pretend those decisions are wise.

We are counselors.

If I believe my client is about to make a catastrophic mistake, I'm going to tell him.

Sometimes very directly.

There is nothing wrong with saying:

"I think you should take this offer."

There is nothing wrong with saying:

"I believe testifying will hurt your case."

There is nothing wrong with saying:

"Based on my experience with this judge, I recommend electing the court for punishment."

In fact, clients hire us precisely because they want professional advice.

The danger comes when:

"This is what I recommend"

becomes:

"This is what I've decided for you."

Those are fundamentally different statements.

Advice Should Be Specific, Not Generic

The best defense lawyers don't simply tell clients what to do.

They explain why.

Consider a plea offer.

Instead of saying:

"Take the five years."

Explain:

"The State's offer is five years. If you reject it and are convicted, your punishment range is 5 to 99 years or life. Here are the three strongest pieces of evidence against you. Here are the weaknesses I see in the State's case. Here is the defense we would present. Here is what I believe our realistic chance at trial looks like. Here is what I think the prosecutor will argue at punishment. Based on all of that, my recommendation is that you accept the offer."

Now the client can make an informed decision.

The same applies to testifying.

Don't say:

"You're not testifying."

Explain:

"If you testify, I expect the State will attempt to impeach you with these statements. This conviction may also become relevant. The prosecutor will likely cross-examine you about this particular fact. On the other hand, your testimony would allow us to explain this part of the case that no other witness can address. My recommendation is that you not testify. But the ultimate decision whether to testify is yours."

That is counseling.

Document the Fundamental Decisions

Another major practical takeaway from this episode is the importance of creating a record.

This is particularly important with the decision to testify.

If the defendant elects not to testify, put the decision on the record outside the presence of the jury.

If the defendant elects to testify despite counsel's advice, put that on the record too.

The purpose should not be to manufacture some meaningless statement that the client is "satisfied with counsel."

As we discuss in the episode, asking a defendant before the verdict whether he is satisfied with his lawyer does not magically defeat a later ineffective-assistance claim.

A defendant may have no idea whether counsel has made a serious legal error.

Instead, document the decision that actually matters.

Did counsel explain the right?

Did the defendant understand the options?

Did counsel provide advice?

Did the defendant make the decision?

That creates a much more meaningful record.

The Central Lesson: Counsel Without Taking Control

Criminal defense lawyers occupy a strange position.

We may understand the law better than our clients.

We may understand the courtroom better.

We may have tried dozens or hundreds of cases.

We may know the prosecutor.

We may know the judge.

We may recognize danger that the client simply cannot see.

That expertise gives our advice enormous importance.

It does not transfer ownership of the client's constitutional rights to us.

The defendant is the person facing conviction.

The defendant is the person who may lose employment, professional licenses, firearm rights, immigration status, relationships, reputation, or freedom.

And ultimately, the defendant is the person who serves the sentence.

That is why certain decisions remain theirs.

Our job is not to take those decisions away.

Our job is to make sure that when the client makes them, the client understands exactly what is at stake.

Conclusion

Criminal defense is a partnership, but it is not a partnership in which every decision is shared equally.

Some decisions belong to counsel.

Others belong exclusively to the accused.

Understanding the difference is essential.

A Texas criminal defense attorney should know when to exercise professional judgment and when to stop, advise the client, and ask:

"What do you want to do?"

The decisions discussed in this episode—pleading guilty or not guilty, accepting or rejecting a plea bargain, waiving a jury, testifying, choosing who assesses punishment, and maintaining innocence as the objective of the defense—can determine the entire direction of a criminal case.

The attorney's responsibility is substantial.

Investigate the case.

Know the evidence.

Know the law.

Understand the judge.

Evaluate the jury.

Explain the punishment exposure.

Identify the risks.

Make a recommendation.

And when the Constitution or Texas law places the ultimate choice with the defendant, respect that choice.

Because sometimes even the best legal advice remains exactly that:

Advice.

The final decision belongs to the person whose liberty is on the line.

Key Takeaways

• Certain fundamental decisions belong to the defendant. Defense counsel's role is to advise the client, not replace the client's judgment on decisions reserved to the accused.

• The defendant decides whether to plead guilty. Counsel can strongly recommend a plea agreement, but the defendant ultimately decides whether to accept it.

• Plea counseling should include meaningful risk analysis. Lawyers should explain the evidence, possible defenses, punishment exposure, consequences of conviction, and advantages and disadvantages of the State's offer.

• A defendant has a constitutional right to testify. Counsel may recommend against testifying but should not simply prevent a client from taking the stand when the client chooses to exercise that right.

• Discuss testimony before trial and again after the State rests. The decision may look different after counsel knows exactly what evidence the jury actually heard.

• Put the client's testimony decision on the record. A short hearing outside the jury's presence can establish that counsel explained the right and that the defendant personally made the decision. The episode specifically recommends this practice.

• Punishment election deserves serious attention before trial. Judge-versus-jury punishment can affect sentencing options, voir dire, and overall trial strategy. Article 37.07 governs significant aspects of Texas jury punishment procedure.

• Know your judge and jurisdiction. The theoretical punishment options available under Texas law are only one part of advising a client. Local experience can be critical to evaluating realistic outcomes.

• Trial strategy generally belongs to counsel. Decisions involving objections, witness examination, evidence, and other trial-management issues ordinarily fall within counsel's professional judgment.

• But strategy cannot override the client's fundamental objective. Under McCoy v. Louisiana, counsel cannot concede guilt over a defendant's express insistence on maintaining innocence. The Supreme Court characterized that violation of client autonomy as structural error rather than ordinary ineffective assistance subject to harmless-error analysis.

• Strong advice is not coercion. A criminal defense lawyer can—and sometimes should—tell a client very clearly that counsel believes a particular decision is a mistake. But the lawyer must distinguish between recommending a decision and making a decision that belongs to the client.

• The guiding principle is simple: defense counsel brings experience, legal knowledge, preparation, and professional judgment to the case. But when the law reserves a fundamental choice to the accused, the lawyer advises and the defendant decides.

Who Decides at Trial? 5 Choices Only a Texas Criminal Defendant Can Make

Suggested Episode Chapters

00:00 — Introduction: Some Decisions Only You Can Make

The Andrews somehow turn Decker's old college nickname, "Andrew Bob," into a discussion about constitutional rights.

02:11 — Decisions Only the Defendant Can Make

The central question: which decisions belong to the client rather than defense counsel?

04:27 — Who Decides Whether to Plead Guilty?

Why the plea belongs to the defendant and the distinction between Texas felony and misdemeanor procedures.

10:05 — Counsel Cannot Plead a Felony Client Guilty

Discussion of Graves v. State and why the defendant controls the plea.

12:18 — Jury Trial or Bench Trial?

The constitutional right to a jury and why a defendant cannot necessarily force the State into a bench trial.

17:10 — Waiving the Right to a Jury

Discussion of the defendant's jury-trial right and Robinson v. State.

18:22 — The Right Not to Testify—and the Right to Testify

Why the Fifth Amendment right to remain silent has another side: the defendant's right to take the witness stand.

21:44 — Rock v. Arkansas

The constitutional basis for a defendant's right to testify.

24:19 — Best Practices Before Your Client Testifies

Why counsel should request a recess after the State rests, advise the client again, and create a record outside the jury's presence.

30:30 — Putting the Client's Decision on the Record

Practical advice for documenting whether the defendant chooses to testify.

32:07 — What If Your Client Has a Terrible Criminal History?

Why a bad record does not transfer the decision to testify from the client to the lawyer.

34:02 — The Plea Deal Your Client Would Be Crazy to Reject

A hypothetical involving enormous sentencing exposure and an exceptionally favorable plea offer.

38:54 — You Still Can't Make the Client Take the Deal

A real-world example of a client rejecting a reduced plea offer, going to trial, and receiving a not-guilty verdict.

39:50 — Who Chooses Judge or Jury for Punishment?

Punishment elections and counsel's responsibility to advise the defendant.

41:19 — Make the Punishment Election Before Trial

Why the decision matters before voir dire begins.

42:31 — Know Your Judge

How experience with a particular judge can influence punishment advice.

45:12 — What Decisions Does the Lawyer Get to Make?

Evidence, objections, witnesses, cross-examination, motions, and other matters of trial strategy.

45:52 — McCoy v. Louisiana

Why counsel cannot concede guilt when a defendant expressly maintains innocence.

49:07 — A Burglary Without Intent to Commit Another Crime?

Andrew Herreth discusses a pending burglary-of-a-habitation case involving a homeless defendant allegedly found sleeping inside a residence and questions whether the facts establish the required intent.

53:29 — Texas Heat, Football and Closing

The episode ends where many Texas conversations eventually end: complaining about August and waiting for football season.

FAQ: Decisions Only a Texas Criminal Defendant Can Make

Can a criminal defense attorney decide to plead a client guilty?

In a Texas felony case, the decision to plead guilty belongs to the defendant. Article 27.13 of the Texas Code of Criminal Procedure addresses guilty and nolo contendere pleas in felony cases, and the episode discusses Graves v. State, 803 S.W.2d 342, in connection with the principle that the plea is the defendant's decision.

Defense counsel may strongly recommend accepting a plea bargain, but the lawyer cannot substitute counsel's decision for the defendant's.

Can my lawyer make me accept a plea bargain?

A defense attorney should advise the client about whether an offer is favorable and explain the risks of rejecting it, but the ultimate decision whether to accept a plea bargain belongs to the defendant.

Good plea counseling should include the strength of the State's evidence, available defenses, punishment exposure, consequences of conviction, and the risks associated with going to trial.

Can a defendant change their mind about a plea bargain?

Until a plea has reached the point where it becomes legally binding, circumstances may permit a defendant to decide not to proceed with the anticipated plea.

As discussed in the episode, however, withdrawing from an anticipated agreement can have practical consequences. A prosecutor may withdraw or change an offer that previously had been available.

The exact consequences depend upon where the case is in the plea process.

Who decides whether a Texas criminal case goes to a jury?

A criminal defendant has a constitutional right to a jury trial.

Waiving a jury is different. In Texas, the defendant cannot necessarily require the State to proceed to a bench trial merely because the defendant would prefer the judge to decide guilt or innocence.

Counsel should therefore distinguish between the defendant's right to a jury and the requirements associated with waiving that jury.

Can a defense attorney stop a defendant from testifying?

A criminal defendant has a constitutional right to testify on his or her own behalf.

Defense counsel can strongly recommend against testifying and should explain the risks associated with taking the witness stand. But Rock v. Arkansas, 483 U.S. 44 (1987), recognizes the constitutional dimension of the defendant's right to testify.

The ultimate decision belongs to the defendant.

What if the defendant wants to testify but the lawyer thinks it is a terrible idea?

The lawyer should explain exactly why testifying may be harmful.

That may include discussing prior convictions, inconsistent statements, impeachment evidence, damaging cross-examination, or evidence that could become admissible if the defendant takes the stand.

If the defendant understands those risks and nevertheless chooses to testify, counsel must respect the client's constitutional right.

Should the decision whether to testify be put on the record?

As a practical matter, that is the best practice recommended during the episode.

After the State rests, defense counsel can request a recess and review the issue with the client again.

Outside the jury's presence, counsel can then create a record establishing that the defendant understands the right to testify and the right not to testify, has discussed the decision with counsel, and personally made the decision.

Who decides whether a judge or jury assesses punishment in Texas?

The punishment election is an important defendant decision made with the advice of counsel.

Counsel should explain the available sentencing options, probation eligibility where applicable, the punishment range, the characteristics of the particular judge, and strategic considerations associated with jury punishment.

The election may also affect voir dire because counsel may need to question prospective jurors about their ability to consider the entire punishment range and any legally available community-supervision options.

What decisions does the criminal defense attorney make?

Defense counsel generally controls matters of trial strategy and trial management.

Those can include which objections to make, how to cross-examine witnesses, what evidence to offer or challenge, which witnesses to call, what questions to ask, and many pretrial strategic decisions.

Those decisions must still be made consistently with the fundamental objectives of the representation that belong to the client.

Can a defense lawyer admit the defendant is guilty as a trial strategy?

Not over the defendant's express objection when the defendant insists on maintaining innocence.

In McCoy v. Louisiana, 584 U.S. 414 (2018), the United States Supreme Court held that counsel could not override the defendant's express objective of maintaining innocence by conceding that the defendant committed the killings.

That decision illustrates the distinction between matters of trial strategy entrusted to counsel and fundamental decisions reserved to the accused.

What is the difference between legal advice and making the decision for the client?

A defense lawyer can give very strong advice.

Counsel can tell a defendant:

"I believe accepting this plea is in your best interest."

Or:

"I strongly recommend that you do not testify."

The lawyer should explain the reasons for that recommendation.

But when the ultimate decision is legally reserved to the defendant, counsel's recommendation does not become the decision itself.

Resources, Statutes and Rules Discussed

Texas Code of Criminal Procedure Article 27.13

Plea of Guilty in Felony

Discussed in connection with the requirement that the defendant personally make the plea in a felony prosecution.

Texas Code of Criminal Procedure Article 27.14

Plea of Guilty or Nolo Contendere in Misdemeanor

Discussed in connection with the different procedures applicable to misdemeanor pleas and circumstances involving pleas made through counsel.

Texas Code of Criminal Procedure Article 37.07

Verdict Must Be General; Separate Hearing on Proper Punishment

Relevant to the discussion of punishment proceedings and the defendant's election concerning punishment.

Texas Code of Criminal Procedure Chapter 42A

Community Supervision

Discussed in connection with the differences between judge and jury punishment options and community-supervision eligibility.

Texas Rule of Appellate Procedure 21.3

Discussed in the episode in connection with circumstances requiring a new trial and errors affecting a defendant's rights.

Texas Rule of Appellate Procedure 44.2

Discussed in connection with constitutional error and harmless-error review.

Cases Discussed in the Episode

Graves v. State, 803 S.W.2d 342

Discussed for the proposition that the decision concerning a defendant's plea belongs to the defendant rather than defense counsel.

Robinson v. State, 656 S.W.2d 111

Discussed in connection with the defendant's constitutional right to a jury trial.

Rock v. Arkansas, 483 U.S. 44 (1987)

A United States Supreme Court case recognizing the constitutional right of a criminal defendant to testify on his or her own behalf.

This is one of the central cases for the episode because it demonstrates that the defendant possesses not only the right to remain silent but also a right to testify.

Chapman v. California, 386 U.S. 18 (1967)

Discussed in connection with harmless-error analysis for constitutional violations.

McCoy v. Louisiana, 584 U.S. 414 (2018)

A major Sixth Amendment client-autonomy decision.

The Supreme Court held that a defense attorney cannot concede a defendant's guilt over the defendant's express objection when the defendant's objective is to maintain innocence.

The case illustrates the boundary between strategic decisions generally entrusted to counsel and fundamental objectives belonging to the defendant.

Andrew Herreth 0:05

Hello, defenders. Welcome to another episode of Andrew and Andrew on Texas criminal defense. My name is Andrew Herreth, and as always, joining me is Andrew Decker. How are you, sir?

Andrew Decker 0:15

I'm fine. Good afternoon, sir. How are you?

Andrew Herreth 0:18

Doing well. Doing well. I, you know we talking before we hit record and I'm really surprised I didn't call you by your college nickname Andrew Bob. Well, it's because you

Andrew Decker 0:30

just you just learned this.

Andrew Herreth 0:32

It was right on top of mind, and I just was like, no, play it straight. Let's not get all kooky and weird in our intros, God forbid, we do that, right?

Andrew Decker 0:46

Yes. So in college, I was called Bob or Andrew Bob most of the time. There were four Andrews on my freshman hall, and I jokingly said, "Well, if all its fellas call me Bob, and it stuck. I mean, like professors, other students. I ran for office in college and put, you know, remember Bob spelled backwards as Bob is my campaign motto. Didn't get elected, but

Andrew Herreth 1:14

that's that's funny. I like,

Andrew Decker 1:19

and so lots of people in college thought my name was Andrew Robert, and you know my cousin named Robert. Yeah, yeah. I am. I am not named Robert. I'm Andrew John. But it it truly stuck with me for those four years because it was, you know, like the day you move into the dorms. We have a meet and greet that night of all the 28 guys on the hall that night, I became Andrew Bob, and it stuck after college for a few years. There would be people that knew me that would call me that, but it's it died away probably within two or three years of what

Andrew Herreth 1:55

it. What an interesting decision you made in that moment that affected you for quite some time thereafter.

Andrew Decker 2:04

Yeah, yeah. There are some decisions only you should get to make.

Andrew Herreth 2:07

How do you like this segue?

Andrew Decker 2:10

Hey, we did good.

Andrew Herreth 2:11

And and that brings me to to to to another point, which is there are just some decisions that only defendants can make, right? And that's what we're going to talk about today.

Andrew Decker 2:27

Yeah, yeah. That basically decisions only defendant can make regarding their rights prior to and during trial.

Andrew Herreth 2:37

And this is not some, you know, something that you learn in law school and then forget about. This is something that defenders every single day are living out in a courtroom. They're they you know if you're going to trial, your clients you must be reviewing certain decisions that they only they can make. And your role is as advisor and counselor, but you cannot make as the attorney, as the as the defense attorney, cannot make these these decisions for your client,

Andrew Decker 3:10

right? Because at the end of the day, it's there are some things that are theirs and theirs alone, and we can't make it. The judge can't make it. The prosecutor can't make it. Really, the only one of these decisions that sometimes a judge will make for a client is during arraignment. They'll say, you know, they'll ask them. You know, a judge will ask, "You're here. Do you need an attorney? Yes. I'm going to end. I will enter a plea of not guilty on your behalf until an until an attorney has had a chance to visit with you regarding your case. So sometimes the judge will enter that decision at arraignment or at magistration on behalf. They won't ask the client because, well, you can imagine if I'm sitting in a jail cell, I've been there for about 12 hours, and some guy goes, "Dude, were you were you DWI last night? In that, I'm still hungover, stupid. They might go, "Yeah, yeah, I was real drunk. Right. That's not exactly fair. So, but that's but that's the only place where I know where these really somebody does it for them and nobody asks a question.

Andrew Herreth 4:27

Yeah, and what I what I always tell clients is like a judge putting a not guilty plea on your behalf. He's just putting a pin in it. This is not a trial. There's been no evidence presented. It is absolutely your right in front of a jury once you've been indicted and all that kind of stuff, to to make that determination in open court. But for now, like, what's the alternative? Like, you plead guilty at arraignment, and then there's nothing for us to do. So that that's the first. I guess we're alluding to it heavily. Where where would we make money on that? Exactly, man. That's a terrible decision. So, the the first thing that we're really going to talk about is the decision to plead guilty or not guilty in in open court at trial. And it's important to remember, trial doesn't necessarily have to be with a jury in the box, ready to take witnesses on cross examination. Technically, when you have an agreement, a plea bargain agreement, anything like that, that is quote unquote trial. The two sides are meeting. They're ready to adjudicate a case. That decision to accept that deal or not is the defendant's decision,

Andrew Decker 5:42

and and it's theirs up until the point where they the judge asks, "How do you plea? You know, really, at any time the the client could say, "I don't want to take this deal. Often, that if you back out of an agreed deal, that's going to come with a little bit of a a tax, as we call it, where the prosecutor says, "Well, you know, I I agreed to three, well now it's four, right? Yeah, which

Andrew Herreth 6:13

irks me, but you know, yeah, okay, yes, their trial tax is does exist, and it's just like it just irritates the crap out of me.

Andrew Decker 6:22

Sometimes it's just a waste of time tax, right? You know, you you said you were doing this, rewrote it up. Depending on the prosecutor, someone will be like, "I know. If they signed for three, they got cold feet. We'll give them three next week.

Andrew Herreth 6:35

So what? What though, mr. Decker? The law kind of gives a distinction about pleading in open court on felony cases versus misdemeanor cases. The am looking at the criminal procedure article 27.13, Texas Code of Criminal Procedure 2713, and Texas Code of Crown Procedure, Article 2714, will will will be where you find that. So, what like is the difference between the felony and misdemeanor case here with the with so so

Andrew Decker 7:12

remember at least in a misdemeanor that it's a fine only the client need not appear does not have to appear the attorney can do that for them, and so most likely that's what you're looking at. You're looking at a traffic violation, possession of paraphernalia, disorderly conduct, fine only offense.

Andrew Herreth 7:35

Yeah,

Andrew Decker 7:36

right now some some municipalities are requiring the client to be there and sign off because they've had some dingalings, you know, attorneys. Well, either the person go, "I didn't agree to that, I didn't sign it, or the attorney not pass it on. So now suddenly you're having to corral someone to pay you and still come to court to get a $250 deferred speeding ticket,

Andrew Herreth 8:08

yeah, and and the law does allow for plea and absentia on misdemeanor cases. Yes, that is true. A lot of local jurisdictions will require it to be in person, but the law allows it at the court's discretion. But in in felony court 2713, that plea must be made by the defendant in open court in person.

Andrew Decker 8:33

Yes, that could be by Zoom.

Andrew Herreth 8:37

I mean, it could. Yeah, does does Zoom qualify as in person? See, I don't know if like yes, so

Andrew Decker 8:46

yeah, because remember during COVID we had to you had to agree, you actually signed a form that said this plea can be taken via Zoom, and so the client would stay at the jail, and some some courts still do that.

Andrew Herreth 9:04

Jail, yeah.

Andrew Decker 9:04

So they're not in person, but it's in open court. It's being broadcast in the courtroom. It's why when they were doing it other ways, they had to put those pleadings into a secure Zoom link where people could view it, but they couldn't interrupt.

Andrew Herreth 9:24

Yeah,

Andrew Decker 9:24

but then you got some weird. There, you got some weird people doing weird stuff. You know, like commenting on the judge or the prosecutor. And anyway, that's a different. Oh yeah, yeah, yeah.

Andrew Herreth 9:38

Just Just spectators, creepy internet trolls. Yeah. So, the can in a felony trial can a can the attorney make the decision to plead guilty or not? For their client,

Andrew Decker 10:02

no,

Andrew Herreth 10:04

no,

Andrew Decker 10:05

that simple. That's

Andrew Herreth 10:07

always the purview of the defendant. Think about like you know if it's a felony and they're going away, their liberties at stake. You know maybe they're looking at years in prison. Like the attorney doesn't have to sit there for that time. That is that time is going to be the defendant, so they must make that decision. That comes directly from Graves v. State, 803 Southwest Second 342. So we've we've got case law that says this.

Andrew Decker 10:34

Yes. Well, but think about it. It's really ultimately the plea of guilty would be you are automatically revoking your right to remain silent. In some plea paperwork, they'll actually say that you understand that taking this plea is giving up your right against self-incrimination, your right to remain silent. So it's it basically that is again a purview only of the client. So the agreement to take a plea to plead guilty is only theirs. Theirs alone. No one else can make that decision for them. We can tell them it's a good idea. We can tell them you ought to do this. Sometimes family members will call and say, "Hey, I've told them, hey man, they need to take the seven. And you're like, "I get you. I agree. It's not our decision.

Andrew Herreth 11:29

It's

Andrew Decker 11:29

not Mama's decision. And when so sometimes if you get if if I get a 20 year old looking at Mama for help, I'm like, well, what, what do you think? You know, especially if it's someone who you can tell they're scared and moms, but you get the 40 year old going, I've got to ask my mom, and I'm like, your mom ain't doing the time, big man.

Andrew Herreth 11:53

Yeah, yep, that's exactly right. What if what if they the the defendant doesn't know what they should do as far as like going to a judge or going to a jury, you know what should our defenders do in that sense?

Andrew Decker 12:15

Well, like for the trial itself.

Andrew Herreth 12:17

Yeah.

Andrew Decker 12:18

Okay. So remember, we have a constitutional right to a jury, both in Texas and the United States. In fact, Texas is one of the few places where you actually have a constitutional right to have a jury trial for any criminal allegation, even a speeding ticket. Most states, you do not get a jury trial on something like a speeding ticket. You get a an administrative judge. Texas, you can you pick a jury, pick a jury for for speeding. So here we definitely we definitely have that right. Now, if you say you want a jury only, are you? I want to go to the judge, mr. Herreth. Is that a decision? While that's a decision you you cannot make for your client, is it only up to us?

Andrew Herreth 13:13

No, the state also has a right to a jury trial on guilt innocence.

Andrew Decker 13:19

Yes,

Andrew Herreth 13:20

so that's that's an important distinction because sometimes, like you know, I just had a guy accept a plea deal. We're set for jury trial, etc. And and he's like, "No, I want to go to the judge. I want to go to the judge. I'm like, "Well, look, man, I know that you feel like the prosecutor is just being a bully, and you know they kind of got so they might be right, but they also have a right under the law to a jury trial, and he's not waiving his jury trial for guilt innocence. And so we can pick a jury, plead guilty to a jury, and then you know have a punishment hearing. But why would we go through all that if you know, like you, we can't just go and say you know not guilty. I want the judge to make the decision. Like they they still have a right to pick a jury to have a jury consider guilt innocence,

Andrew Decker 14:12

right? You you both sides have to waive the jury,

Andrew Herreth 14:15

yeah,

Andrew Decker 14:16

for guilt innocence. If you really just want the judge for punishment, and there's no question about how your client feels on guilt. What would we do, there, mr. Herreth?

Andrew Herreth 14:28

Well, I mean, you you have a number. I mean, I guess like the best thing to do is is obviously you know plead guilty or maybe an open plea. Ah, there's reset it for a precinct investigation, and so you'd have a hearing after the court or probation department compiles a pre-sentence investigation report and presents it to the the judge. You know, even in some jurisdiction, a lot of jurisdictions, you can even like approach the judge and be like, "Hey, judge, you know, with the prosecutor there." Like, hey, judge. The prosecutor is at five. You know, would you defer? Would you give deferred adjudication? Would you give something like? Would you give three? Would you? You know what I mean? Like some jurisdictions will entertain a conversation like that. Yeah.

Andrew Decker 15:13

Sometimes, sometimes you'll even have. I've I've actually had a judge say, "Hey, mr. Digger, why are we not taking this deal on a felony case? And I'm like, "Well, you know this, and they're like, "Let's wait till that prosecutor's on vacation and come back,

Andrew Herreth 15:41

yeah. Like they know,

Andrew Decker 15:43

they get it. They realize that this is just a, or or I've actually had them say, "Do you want to do an open plea? And they look at you like you're going to get what you're asking for if you do an open plea.

Andrew Herreth 15:58

Yeah.

Andrew Decker 16:00

So,

Andrew Herreth 16:02

yes, yeah. I mean, don't be afraid to like run these deals by your judge, right? And and and honestly, for our younger defenders out there, this is a great opportunity to just ask another maybe older defense attorney in that courtroom, like, hey, this is like my basic fact pattern. Here's what the state is saying. This is what I want. Like, what do you think the judge would do? I mean, our list serves all over the state and TCDLA's listservs are full of people who are like, "Hey, let me pick your brain on who's practiced in front of this judge. What do you think they would do? We, you know, attorneys who have been around have this information readily available.

Andrew Decker 16:42

Yes. So, but sometimes sometimes you'll get the they're new, and I wouldn't want to be the first one to try it out. Yeah.

Andrew Herreth 16:49

Yeah. Exactly. Oh, you mean the judge I was just appointed, who's only ever been a prosecutor, who is known as like the death penalty prosecutor? Yeah. Let's go to that guy Or girl, okay. So the decision to waive jury trial,

Andrew Decker 17:09

yeah,

Andrew Herreth 17:10

only a defendant can make.

Andrew Decker 17:14

Yes, as to the as to the defense, yes,

Andrew Herreth 17:18

and that comes straight out of. I'm going to read a case law here. We are giving you guys gems here. This should really be CLE Robinson v State 656 Southwest Second 111 111. The defendant in criminal prosecution has a constitutional right under the U.S. Constitution and the Texas Constitution to a trial by a jury. So I think I said that, didn't I? Yeah, I think I said that you did. You did, Mister. There's gonna be a lot of like repeating what the smart one of the two has said on this show for sure. I'm gonna let you take away the right to testify on one's own behalf because you've done a lot of research on this, and then maybe we'll come back in a couple months and give the full story. But but you know, mr. Decker, if I've got a guy who I just really don't want to take the stand on their own behalf, I really, really. Well, first of

Andrew Decker 18:22

all, let's let's back up. Right, we we all are very aware that you have a right to remain silent. You have a right not to incriminate yourself. You have a right not to testify. And even if you think your client might be testifying during jury selection, do you go through a little bit of the hey, are you going to hold it against my client if she doesn't testify?

Andrew Herreth 18:44

Oh, it's absolutely included, regardless if I think they're going to testify or not testify. I always talk about that in Vor Dyer. I mean, I'm looking for reasons to kick prospective jurors.

Andrew Decker 18:57

Yes, especially if it's a case where I needed to to go my way.

Andrew Herreth 19:03

Yeah.

Andrew Decker 19:05

So we obviously know that, right? But with that, so back in seminary, we we you know I went seminary. I studied what's called the theol. There was a In my theology class, systematic theology, one of the books we had to read was the theology of no. That when you say no to some things, there is often a flip automatic on the other side, a yes, or vice versa. If I say yes to some things. I've automatically say no to others. So let's just make this fairly simple. I agree to say yes to recording a podcast this afternoon. It means I can't be on a on a conference call about another issue at the same time.

Andrew Herreth 19:55

Yeah. Right.

Andrew Decker 19:56

Right. Truly. True. Right. If I. Say yes to going to dinner with my wife. I've said no to going dinner with a friend, right? Or my brother, and vice versa. If I say no to some things, I might be saying yes to others. So if I say no, I don't want to testify. That's pretty clear. But what if I want to testify? So, the U the Texas Constitution is very clear under the rights of the accused in the USX in the US in the Texas Constitution. It says the defendant may be heard by themself, by counsel, or both.

Andrew Herreth 20:40

Right. Yeah.

Andrew Decker 20:41

I mean, it's very clear. So both can actually speak. So it's interesting. We actually say that once you have an attorney, you can't speak on your own behalf. I think that might be an unconstitutional statement. That even if you're represented by counsel, you might really be able to have pro se hearings and make pro se decisions. I don't think it'd be smart, but I think technically, if if you're saying that you have a right to be heard, that that might still be the case.

Andrew Herreth 21:09

I think we get into a conversation then about dual representation, which yeah,

Andrew Decker 21:15

that might be a different question, right? But I mean, it's it's at least something where you could go. I could see the right person arguing that and possibly having a problem. But even in the U.S. even under U.S. law, we've recognized that criminal clients have a right to testify under their own behalf under the Due Process Clause of the 14th Amendment, compulsory clause of the Sixth Amendment, and the Fifth Amendment's privileging against self-incrimination. Okay,

Andrew Herreth 21:44

yeah,

Andrew Decker 21:44

they cannot be forced to testify, but they have a right to testify. So I'm going to Arkan to Rock v. Arkansas. This was out of 1987. Were you even born?

Andrew Herreth 21:54

Yes. Come on.

Andrew Decker 21:56

That's it. I was kidding. So they say there. This went up to the U.S. Supreme Court that it is the right of the defendant only, without limitation, for the defendant has a constitutional right to testify, and it cannot be arbitrary or disproportionate to the purposes. They have to be able to testify in their own behalf, and and actually the court says there that sometimes the best person to to counter the the state or the government's information and case is the client themselves. Only they know what happened in the room that day, that night, whatever, and this person was denied their right to testify, and that case got reversed. So you you automatically have a right not only to remain silent, but to testify. And who gets to make that decision?

Andrew Herreth 23:03

The defendant,

Andrew Decker 23:05

only the client, only the defendant. So, again, you've said, you know, we've talked about that. I've done research on this. If I'm quoting chapters in verse, under the Texas Rule of Appellate Procedure 21.3, there are some times when a new trial must be granted in a criminal matter, one of them is if the court has misdirected the jury about the law or has committed some material error. So, if the court refused to let the client testify for some reason, maybe even advertently, because that could be same as misdirected the jury about the law. They wouldn't do it on purpose, and that material error is it has likely injured the defendant's rights, right? So almost it's automatic if the somehow the court kept it out. But then let's say that somehow it's the someone else, not the court attorney for the defendant, keeps it out. Says, "Hey, no, mr. Harris, not testifying today. Right?

Andrew Herreth 24:16

Yeah. I mean, how often does that happen? You know, like

Andrew Decker 24:19

not not real often. Usually, what do we normally do if if we have gone through state's case and they go, mr. Herreth, would you is your client going to testify today? What do you normally say?

Andrew Herreth 24:30

Well, first off, I ask for a recess so I can go over that with my client. But this is one more time going to be

Andrew Decker 24:35

yes,

Andrew Herreth 24:36

yeah. This is going to be best practices, I think, for our defenders out there, and and we have a lot of defenders with all sorts, all sorts of trial experience, right? So, if you're not doing this as as a trial attorney, this is this is what you should do. You ask for a recess to go over the client's rights to testify or not testify on their own behalf. The pros and cons of it, right? You have to lay it out for your client and let them decide. And when you come back, regardless of their decision, call them to call them to testify outside the presence of a jury and have put that on the record. Ask them questions. Ask them what their decision is, if it's their decision alone. But make sure there is a record of your client speaking that they do want to testify or don't want to testify.

Andrew Decker 25:33

Yes, and and that is that is, and you ask them. We, you know, lots. I've seen it. I do some of this. I don't do, you know. Like I've had some people go, I've seen it where they go, "Are you satisfied with my work up to this point?

Andrew Herreth 25:48

Yeah,

Andrew Decker 25:49

you know, you're trying to cover yourself from some ineffective assistance counsel. I don't think that's going to hold water because if you really are ineffective, them saying yes, I'm satisfied before they're found guilty, yeah, they

Andrew Herreth 26:04

don't they don't know what really that question means, right? I mean, yeah, sure, I'm, I mean, you don't stutter in front of a jury. That's great, I love that. And meanwhile, like they don't know that you haven't filed an application for probation and they're probation eligible, right? Or yeah, so right. That that may not hold water, but sure, it makes you feel nice.

Andrew Decker 26:26

Right. It yes. So that's the best practice. But if I just say mr. Harris not testifying today, that might be a constitutional error under the Texas Rules of Appellate Procedure 44.2, which is then judged under the harmless error, which is based on the Chapman standard from the U.S. Supreme Court 1967. God, I love I love research.

Andrew Herreth 26:58

Do you? My gosh, I

Andrew Decker 27:00

know it is really not good to give me a research project.

Andrew Herreth 27:04

That's amazing. No, I love that, man. I um I I'm the opposite. I mean, I I enjoy it like sometimes, but as like a matter of course, I would just rather be in court talking.

Andrew Decker 27:17

Yeah. So again, most people don't know this about me. I really am an introvert. I really like kind of digging into things and just letting them keep digging. Now,

Andrew Herreth 27:26

you calling yourself an introvert is laughable.

Andrew Decker 27:30

Every time I do it, every time I do a Myers Briggs, I come out as an introvert.

Speaker 1 27:34

That's I

Andrew Decker 27:34

really do. It's where I go to recharge. If you're an

Andrew Herreth 27:40

introvert, that means that I am just an a-hole who just doesn't like people.

Andrew Decker 27:45

Well, that might still be true. I'm what's called a social introvert. I can go be social, but if you really ask me what I prefer, I prefer groups of two, three, maybe a dinner of four people. You get big groups bigger than that, and I'm like, no, really don't want to do that.

Andrew Herreth 28:03

Yeah, yeah.

Andrew Decker 28:04

But anyway, so constitutional error is a harmless error standard, which means they must reverse unless it's beyond a reasonable doubt the error did not contribute to the conviction. So let's go back to Rock v. Rock v. Arkansas.

Andrew Herreth 28:19

Uh huh.

Andrew Decker 28:20

Who's who's the best person to controvert the state's evidence?

Andrew Herreth 28:24

Oftentimes, it is the defendant.

Andrew Decker 28:28

So if I don't put my if I don't put Mister Herreth on the stand and he wants to take the stand, I've just committed reversible error, and in Texas, that's ineffective assistance of council. It's like an automatic.

Andrew Herreth 28:46

That is, yeah, that's that's the scary phrase right there, right? Like, yeah, and it's really

Andrew Decker 28:51

not that scary. I mean, what it what it really does for most jurisdictions, it just takes you off the wheel if there's anything there.

Andrew Herreth 29:00

Yeah, I mean, even even then, it it may not take your depends on the wheel, bud. It depends on the

Andrew Decker 29:05

jurisdiction. Yeah, right. Yeah, they might go, "What happened? You're like, "I forgot to ask this one question, and they might go, "Well, you know, okay, you learned that's never going to happen again.

Andrew Herreth 29:17

Bet you won't forget that ever again.

Andrew Decker 29:19

No, no, no, no, never. But you have to let them decide, and then make it clear on the record. Ask them, "Do you agree, mr. Herreth, that you wish to not take the stand?

Andrew Herreth 29:34

Right,

Andrew Decker 29:36

right. And you might even say, "I've advised you. You know, especially if they're like I want to, then that's when I say I've advised you. I don't think it's going to necessarily help your case, but you wish to take the stand, and we're going to call you as our witness in just a few minutes. Yes, because I've had one that she wanted to take the stand. She wasn't going to not, so I just said I've told you that I don't think it's going to be helpful, but you would like to testify. Yes. And we're going to call you in just a few minutes. Yes, and the state even didn't want her to testify, so it was truly like we asked questions. It kind of kept her in a box for her own protection. She was a little cuckoo. That's another question. That's another story. Yeah.

Andrew Herreth 30:14

Wait. I don't know. We have we talked about that yet on on an episode. I thought we had.

Andrew Decker 30:19

I'm sure we know which

Andrew Herreth 30:20

case you're talking about. Yeah, we'll I'll try to find it and put it in the show notes if we if we had talk about

Andrew Decker 30:27

it. Yeah, man. So

Andrew Herreth 30:30

so I guess like you know best practices obviously before trial you need to be making like talking with your client about them wanting to testify. Take a recess once it the state is rested and you're putting on your case, okay, to go over once again their right to testify or not testify, and then when you come back, put it on the record. Have your client put it on the record. Ask them questions outside the presence of the jury on whatever decision they Have made

Andrew Decker 31:02

yes.

Andrew Herreth 31:03

Am I missing anything? Should anything else? No, that's it. That's all you. That

Andrew Decker 31:08

that's all you got to do is just make sure it's on the record. And if they don't want to test,

Andrew Herreth 31:13

I think the the I think the um the default right when we have a client who has just a you know a criminal history as long as you know their forearm you know they it's always like okay well no obviously they're not going to testify because you're not going to get into the fact that he's already been to prison for murder and this is like a shoplifting case like that this is that would be damning evidence right But you, as the defender, do not assume that, and make sure that you put it on the record, or and have them put it on the record that whatever their wish is, because that is dangerous, not only for you, for your name as a as a defense attorney, because of the ineffective finding, but you know it's it's not your decision,

Andrew Decker 32:07

right? It's just that simple. And if they want to testify, if they want to testify, let them testify, right? It is their decision. It's there. Even and I and I've been in CLEs recently this summer where they talked about my client had a long criminal history. They were habitual. They were and we put it on the record, you know, kind of put it on. And they said it really is good when it's like drugs, drugs, drugs, theft, and this is an aggravated assault, deadly weapon.

Andrew Herreth 32:45

Yeah,

Andrew Decker 32:46

right. Put it on, right, and then just admit you've been. You know, have you ever been in the penitentiary? Why, you know, and this was in and admit the judgments, right? Kind of the you're laying it out there, so you're not hiding squat. Well, then you can put that person on the record.

Andrew Herreth 33:07

No, I I agree. Like if if your client's going to testify and they have a lot of history, or or they don't have you know they have some history and it's not bad. Like take the wind out of the state's sails on every single piece of information that they're going to use against your client, because then you can at least try to control it. I mean, the prosecutor is going to get into it anyways. Why let them have the big surprise and look like a genius cross examiner? They're not. They never are. They don't cross examine. They're not good at it. But you want to introduce that evidence first. You you don't don't leave it to them to to to make your guy look like the worst thing in the world,

Andrew Decker 33:51

right?

Andrew Herreth 33:52

Anyways, that's a little trial strategy.

Andrew Decker 33:54

Yeah, that's just trial strategy. So sorry, I kind of got lost where I was in my head.

Andrew Herreth 34:02

I'm going to give you a fact pattern here, mr. Decker. I got a guy charged, you know, with burglary of habitation. He's been to prison twice before, so he's 25 to life. I go into court, and the prosecutor's like, "Eh, you know what? We're going to give you a great deal. We're gonna waive the enhancements, and then our offer is two years TDC, the minimum.

Andrew Decker 34:28

Yes,

Andrew Herreth 34:28

what? It's a great deal. They've got your guy dead to rights. He's on surveillance video. The police found him in there, stuffing a you know a bag. He's got a black mask on. He looks like a burglar. He's caught red-handed. Your offer is two years, and the the prosecutor's like, "I need to know right now. What do you say?

Andrew Decker 34:48

I say, "Let me go talk to my client.

Andrew Herreth 34:50

Dang right, dang right. Now

Andrew Decker 34:52

I I may practically say write it up, but I'm gonna I'm gonna tell him write it up so I can show it to him.

Andrew Herreth 35:00

Yeah,

Andrew Decker 35:01

right. It's not a guarantee they're going to sign it. Now we all we have all heard the person who said my attorney made me sign this.

Andrew Herreth 35:18

Yeah,

Andrew Decker 35:19

maybe, maybe.

Andrew Herreth 35:21

Yeah, I mean, I you know, I I think a lot of times clients can hear my recommendation and be like, "Well, I feel like I don't have a choice, and I'm like, "Your choice is 25 or two? Is that like what choice do you want? I want to go home. I can get you home in two years. You know, like I, they may be interpreting your recommendation as not really having a choice at all. I think it's important in that in that instance to kind of go over the facts of the case with them, and like this is the evidence that they're going to present. What what do you think that we would do at trial to counteract this evidence?

Andrew Decker 36:04

Yes, I mean this this morning I got the mr. I don't know that you're really doing anything to change to make it less than yeah 20, and I'm like, well, right now as a as charged, you've got a two to 20 that you're good for. You've got a similar case pending in a different state, and this other case is 25 to 99 or life with no possibilities of parole. If you get a 20 with parole options, you need to take

Andrew Herreth 36:43

it. Yeah,

Andrew Decker 36:44

right. That's not me not doing my job. That's me laying out the facts that you and mr. Herreth. You can kind of figure it out, right? This might be a sex offender, right? He he lies about his age. He he does some of the things to to date teenage girls. A jury's going to have a heyday, and and prosecutors aren't going to give that case away in any jurisdiction.

Andrew Herreth 37:14

Yeah,

Andrew Decker 37:15

they'll give some jurisdictions will give away the possession under a gram. Why? Because they just don't have time to mess with it. This they're not giving away. If you get a 20, you probably ought to sign it if you're eligible for. Well,

Andrew Herreth 37:25

and and I and I think you know to that point, there are some cases that that jurors are are going to be less inclined to like really care about. They may be a little bit more particular, and in drug possession, and depending on your jurisdiction, there may be a lot of jurors who are anti the the government policing drug possession for personal use.

Andrew Decker 37:48

Okay,

Andrew Herreth 37:50

but I don't think I've found a jury or a jurisdiction where they're okay with the idea of somebody who's accused of, you know, abusing children sexually or physically, right? You know, they're okay with those people in their in their jersey. It's gonna. It's a harder. It's a harder case. Those cases are won every single day by fantastic defenders. I'm not saying that they're they're they can't be won. They absolutely are.

Andrew Decker 38:19

Right. Harmony Sherman and I won one complete not guilty kid was under five. We walked him, so they are winnable.

Andrew Herreth 38:32

Absolutely winnable. Absolutely winnable for sure. That's now we need the help.

Andrew Decker 38:36

Call Andrew Decker and Harmony Sherman.

Andrew Herreth 38:38

Yeah, that absolutely not what we're saying, right? Like, but but juries will care more about certain cases than they will others, and so you may get a prosecutor who's like, "Look, I'll cut you a bigger, a better deal on those cases than these other cases, right?

Andrew Decker 38:54

But you cannot make them take a deal. I had a case I got not guilty on. It was a sexual assault three count. We got it down to like a class A assault against a family member, and the guy's like, he goes, but I didn't do, I didn't do anything that wasn't consensual. He turned down a deferred on a class A, stood his ground, and I told him, I was like, "If you're my brother, I tell you, you need to take this, right? Just on, I said, "I think we've got a good shot at trial, but there are no guarantees. He stood his ground. We went and tried the case, and we walked him on all three counts. He almost threw up when the when the verdict came in. It was oh, I can imagine.

Andrew Herreth 39:41

I I can imagine the stress. Oh, I couldn't imagine the stress, honestly. Yeah, you guys saved his life for sure.

Andrew Decker 39:50

So, as to punishment, I think we I think we've covered whether or not the person gets to testify, and yeah, you know. Ah, make them take a deal, and we can advise them. But ultimately, that's their decision. I think the only one we haven't really talked about is punishment, election to punishment. This is one where I think some attorneys disagree, but the law I think is pretty clear. Who gets to decide, judge or jury for punishment, mr. Herreth,

Andrew Herreth 40:21

that is the defendant. Only the defendant gets under under advice of counsel. Obviously, right, right. I mean, yes, we have a role. That doesn't mean we just sit there and be like, "You tell me what you want to do. We we act as as advisors and counselors at all times, at all times, we need to be giving our clients the you know lay it out for them. Like if you choose to go this route, this is what potentially could happen, and this this is what this means. This is what I think, and my you know over 20 years of experience, whatever the case may be. But ultimately, they are the captain of their ship. They they pick the destination,

Andrew Decker 41:08

right?

Andrew Herreth 41:08

So if they want at punishment, they you know this needs to be this decision needs to be made before trial because you have to file an election as to punishment,

Andrew Decker 41:19

right? But it has to be done before jury select before trial before jury selection starts. In part because that can be an important piece as to the jury selection process.

Andrew Herreth 41:30

Yeah. Right. Yes.

Andrew Decker 41:31

You, if you're having to say you're going to have to assess a punishment anywhere between two and 20 years, and they're probation eligible, can you consider probation? Blah blah blah, right? That becomes important. If you're not going to to the jury for punishment, you're skipping all of that,

Andrew Herreth 41:48

right? Yeah, and I I really like going to a jury, electing to juries for punishment, just so I can talk about that range of punishment, all that kind of stuff. If especially if I think that if I bust a panel, I'm going to get a better deal. You know, there's some cases where like a prosecutor is just going to kind kind of relent a little bit if you've already tried to pick a jury and they, you know, and it and they and they but we bust a panel and now they're like, I don't want to do that again. I'll, I'll get,

Andrew Decker 42:24

yeah, you're able to basically kill the kill the case before you ever seat a jury,

Andrew Herreth 42:30

right?

Andrew Decker 42:31

Yeah, yeah. So the on picking judge or jury, and this is the thing where you really, as the attorney, have to have some know what does this judge think? Right. This is a judge that's going to hear you and go, "All right, I understand why you went to me, or you can get probation from them, but not from her.

Andrew Herreth 42:58

Right. Correct. Yeah. Right. So again, beginning to be reading 42 A Code of Criminal Procedure when it comes to jury punishment options versus versus the the judge giving punishment. Okay,

Andrew Decker 43:13

right. So that becomes an important piece, and obviously those would be things that most likely a client's going to take into consideration. Oh, I can't get probation if I choose the judge. I might be able to get probation if I choose the jury. They want to know that. They have to know that. If you don't let them know that and they pick wrong, again, we might be going back to that in effects of assistance counsel. The the other piece is to kind of know where the bomb lays. I had a guy who was habitual family violence, and we went to the judge for punishment. The judge gave him 30, and the judge said after at sentencing, based on your history and your history of violence, I don't feel comfortable giving you a minimum of 25. I'm going to give you 30. And then when the case was over, the judge said, "I can see why you chose the judge, not the jury. He goes, "A jury would have given him a lot more. He said, "But I don't think it would have made any difference in the long run. So you know, I mean, the judge, the judge saw what I was doing and went, "I'll give you what you're asking for.

Andrew Herreth 44:28

Right. Yeah. Right.

Andrew Decker 44:30

And and I said, Judge, I think this is a 30 year case. I mean, I said that at some point, like off the record, and it's exactly what I got. And he said, "I heard you.

Andrew Herreth 44:41

And I mean, and and I'm sure your client was, you know, I mean, 30 is much better than 60, and I'm sure your client was maybe not happy, but at least knowing that he got the best deal published. Oh no, he

Andrew Decker 44:55

he still he's still mad as hornets, but. That's I can't fix that.

Andrew Herreth 45:01

That's how that's how it is. That's how it is. Well,

Andrew Decker 45:04

he gets mad as hornets at his girlfriends and wives and stuff too. So I mean, you know, again, I can't fix it. Yeah.

Andrew Herreth 45:12

So we've kind of gone over just briefly today the choices that a defendant alone can make when when in trial on their case, keep in mind defenders like your job always is to be advising your clients, giving your you know your best advice to them so that they can make these decisions. Now, an attorney does have certain choices during trial. That is just their strictly their choice, right? Like trial strategy,

Andrew Decker 45:52

what evidence to try to get in, what evidence try to keep out, questions to ask, cross examinations to give, trial strategy generally. But again, McCoy v. McCoy v. Louisiana. Almost said Illinois. Louisiana says that if the defendant says I'm not guilty, even if trying to make it he's guilty, but some other thing, you know, you can't do that. That's that's jumping into his purview. So don't do that. Like

Andrew Herreth 46:25

alluding to his guilt or conceding his guilt.

Andrew Decker 46:28

Yes, even when he says like, "No,

Andrew Herreth 46:29

I'm not guilty. Like, okay, yeah, avoid that.

Andrew Decker 46:34

Yes, right. Because basically, that's stepping back over to I pled not guilty. I said I didn't do it. You can't say, "Well, it was really sudden passion. No, can't you can't do that,

Andrew Herreth 46:50

right?

Andrew Decker 46:52

So you have to be careful about you know, but but generally, trial strategy: what's coming in, what's coming out, what's you know, if you're going to question given witness objections, all those, even some pre-trial motions to file, all those are your to call a witness on your own on your client's behalf. That's where your expertise comes in. I have a client that wants me to call in witnesses on his sex offender registration case, and I said, "So we called this person in, and they go, 'Yes, I know he was staying at this place, da da da da, and he's been out for six months. And I said, 'And the prosecutor's going to ask one question: Did you see him there every Night,

Andrew Herreth 47:42

yeah.

Andrew Decker 47:43

How many nights did you see him there? Well, I saw him there two or three nights when I dropped him off to stay. Pass the witness.

Andrew Herreth 47:50

Yeah, yeah.

Andrew Decker 47:52

It's that's like that's not going to help you. That doesn't cover the other six five months and 27 days.

Andrew Herreth 48:00

That's right.

Andrew Decker 48:03

So, anyway, what do I know? A

Andrew Herreth 48:06

lot, a lot, sir. You know a lot. What, what else you got? I know you got some things coming up that are pretty exciting. Any trials on the horizon?

Andrew Decker 48:17

Well, I have several things that I think are going to go to trial. The question is when I have a a case that could be self defense, but it involves an aggravated assault with a deadly weapon. I have sexual assault case that could go to trial. I can't think right now, right now, but those coming down the pike, I have several cases that are I don't have a solid trial date, but probably are going to go to trial. Yeah, and it's it's kind of an all or nothing. It's either you walk them out the back door, they're going to get a bunch of years. There's not going to be an in between.

Andrew Herreth 49:00

Yeah, that's right. I have a case. I've got

Andrew Decker 49:04

I've got a DWI that's probably going to go to Trump.

Andrew Herreth 49:07

Hey, there we go. Maybe we'll talk about it. We haven't talked about DWIs in a in a while. Um, I've got one. I I I I got appointed on him, and it's burglary of habitation, and he's kind of just a homeless guy, and he was sleeping on a couch. Definitely broke into somebody's house, sleeping on a couch, and has a number of like criminal trespassive habitation cases. And I, I really think I was like, where's I don't think the state has probable cause to pursue a burglary case. Where is his intent to commit a felony theft, a felony theft or assault.

Andrew Decker 49:45

Is this guy that like made a sandwich?

Andrew Herreth 49:48

No, he didn't. Does a different guy. But you know, and and I I don't know, I I don't know how it's going to go. But the the judge found probable cause, and I was like. I'm going to set it for an examining trial because I I still I fail to see where where the state can make probable cause. So no, where's the we set that a felony

Andrew Decker 50:09

within? Yeah, right.

Andrew Herreth 50:11

Yeah, and and it'll be interesting to see if like okay, if you if you commit a criminal trespass of a habitation, so essentially breaking into somebody's house, right? Like like breaking a window, coming into the house. That alone is not. That alone, right there, breaking a window is not enough for a burglary. Not not unless they can show some intent to commit a felony theft or assault. Then going in and sleeping on a couch, but then when you're arrested, you have controlled substance on your person. Is that enough? That's felony controlled substance, right? Is that enough then to get to burglary of habitation? I don't know. I don't know. What do you think?

Andrew Decker 51:00

Well, I didn't intend to. So he carries a little bit of meth in his pocket,

Andrew Herreth 51:06

right?

Andrew Decker 51:08

Yeah,

Andrew Herreth 51:09

I don't know that like into somebody else's house. I don't know. I don't know if he intended to commit the possession of a controlled substance. I mean, I guess he did. If it's on his person, he is committing. You know, they are committing felon. But that's kind of what happened. But

Andrew Decker 51:24

but that but that's effectively going back to the old. You can't carry wire cutters. So it's illegal to carry wire cutters into a fenced property in the state of Texas. Why? Because right, it is right because it used to be that people would cut the fences, but no one's getting stopped. If I get in a fight on somebody else's property, even out in West Texas, and I'm in my truck and I've got I've got wire cutters and I've got pliers and I've got all sorts of stuff, no one's charging me with carrying wire cutters onto their property.

Andrew Herreth 52:01

Yeah, what would that be like? Possession of of burglary instruments?

Andrew Decker 52:08

No, it's something different. It may not be on the books anymore, but it used to be a it used to be a crime to carry wire cutters on other people's property because you would cut cut wires. You know, it's that open range question again. We're now off into things that Andrew shouldn't know, but I

Andrew Herreth 52:27

do. The but I yeah, it it

Andrew Decker 52:30

seems similar. Like anyway, well, yeah, it seems kind of ridiculous,

Andrew Herreth 52:33

right? Like it's two. It seems like two separate

Andrew Decker 52:37

cases. If I'm a juror, I'm going. That's not a burglary.

Andrew Herreth 52:41

That's not a burglary, right? Definitely not a burglary. And I think if I gave any jury an option, and so, anyways, I don't know. My guy, you know, he's got criminal history, so I imagine the prosecution's going to back off and like will come to some normal resolution. But I was just like, anyways, that just popped up today, and I just been kind of mulling it over in my head, like how can I just get my poor homeless guy out of custody? You know, get him the maybe try to get him the help he needs, but that's not really my role either. But like, why is he in custody for a second degree felony when I don't think there's anything here that's a second degree felony,

Andrew Decker 53:18

right?

Andrew Herreth 53:19

But anyways, that'll I'm gonna work on that for the rest of the day.

Andrew Decker 53:25

Well, good for you.

Andrew Herreth 53:26

We'll see.

Andrew Decker 53:29

Well, that's really all I've got. That and stay out of the heat. God, I hate this time of year.

Andrew Herreth 53:33

august 15. We're almost through it. You know.

Andrew Decker 53:37

Really, really, until the heat breaks, and I mean breaks, I just from about mid July through early September, it's my least favorite time of year.

Andrew Herreth 53:51

Oh yeah, yeah, but hey, the the what football season is starting?

Andrew Decker 54:02

About two weeks, three weeks, three weeks, really.

Andrew Herreth 54:06

I mean, we just had a we just had an NFL game.

Andrew Decker 54:09

Preseason does not count, and it's the NFL.

Andrew Herreth 54:12

I mean, that's true. Preseason, you and

Andrew Decker 54:16

I, you and I could almost get on the field in a preseason NFL game.

Andrew Herreth 54:20

It does foretell of of things changing, so I'm I'm happy. I'm excited about it.

Andrew Decker 54:30

Okay, yeah, I will give you that. I will give you that. So

Andrew Herreth 54:35

times are changing, my friend.

Andrew Decker 54:37

They are. Well, so mr. Herreth, that's all I've got. Obviously, our friends and our families and our loved ones can still find us on the web at TexasCrimindDefense.com. You can find us on the Facebook at Andrew and Andrew on Texas Criminal Defense. We technically still have a X. I have not kept up with it because

Andrew Herreth 54:58

have we have we opened a threads? Account,

Andrew Decker 55:01

no. We also don't. We also don't have a Snap, or a WhatsApp, or a Telegram, or any of that crap that gets you in trouble. We don't do that here.

Andrew Herreth 55:12

Yeah, just find us on the web. I don't know why we need all these other accounts, anyways.

Andrew Decker 55:16

All right, and really, just find us on your favorite podcast app, and of course, share it with a loved one or friend. Tell them about Andrew and Andrew on Texas Criminal Defense.

Andrew Herreth 55:30

Sounds great. So,

Andrew Decker 55:31

anything else you need to add before I sign us off?

Andrew Herreth 55:33

No, sir.

Andrew Decker 55:34

So, for Andrew Herreth, I'm Andrew Decker.

Andrew Herreth 55:37

For Andrew Decker, my name is Andrew Herreth.

Andrew Decker 55:40

Y'all be good.