Criminal Law FAQs

My Criminal Defense Law Practice is located in downtown Houston at 917 Franklin St., Suite 300, Houston Texas. This is three blocks from the Harris County Criminal Justice Center. I am always available by phone or email. Most emergency phone calls are answered or returned immediately. After speaking with me on the phone, an appointment can be set within two days. I always reserve at least one day on the weekend to allow for these appointments. During our meeting, a discussion is had to determine the best course of action to take in your criminal case. A fee is set for the exact type of defense you are most interested in pursuing. At the conclusion of the meeting a contract may be prepared which details your exact fee and method of payment, including any payment plan arrangements. I will personally accompany you to court on your court date. If it is your first court date, you may meet me at my office prior to going to court that morning. At all times, the responsibility for your case will be mine. You will be responsible for showing up in court at the times and dates provided to you by the Court.

I have tried numerous famous criminal trials, and although I appreciate the trust these clients put in me, I don’t believe that this alone demonstrates my value as a criminal lawyer.I have spent 27 years defending those accused of crimes, and in that time I have been re-certified in Criminal Law by the Texas Board of Legal Specialization four times. I have tried over 100 jury trials, and have achieved favorable results in nearly all of them. I speak at seminars and teach other lawyers how to handle their criminal cases. However, I don’t consider any of these things to be the main factor in making me the best at what I do.

It is the philosophy of my practice that puts me ahead of the pack. Dedication to results is what sets me apart from most other criminal defense attorneys. I don’t consider any person unredeemable, nor any case unwinnable. I am honest with my clients about their options, but I don’t push any particular resolution onto my client. It is his case, and his life. However, I do whatever is necessary to make sure that the best possible outcome is provided to my client.

The 6th Amendment of the U.S. Constitutional guarantees that every person has the right to counsel at the initiation of criminal proceedings. Additionally, the Texas Code of Criminal Procedure mandates that a defendant in a criminal matter is entitled to be represented by counsel in an adversarial judicial proceeding. Generally speaking, this means that the right to an attorney does not apply before formal charges are filed, irrespective of whether the person is in police custody. If you have been arrested, you may not be given the right to speak to an attorney until criminal proceedings are initiated. These criminal proceedings include questioning, interrogation, physical examination, arraignment or a hearing. However, the right to an attorney will apply even before formal charges have been presented in some circumstances. For example, if you are in custody and are being interrogated, you have the right to ask to speak to an attorney. When you make this request, the interrogation must stop and cannot resume again until you have consulted an attorney.

Even if you are a lawyer, you need a lawyer for your case. You are placed at a high risk for prison or jail time by being accused of a crime, and the criminal justice system is known for being harsh and unforgiving. Texas prosecutors look to take advantage of the accused, especially those who are accused for the first time, and will try to saddle you with the maximum punishment available. When you hire a legal professional like Ed Chernoff who has a thorough understanding of criminal law, you are enlisting the help of a powerful advocate who has years of experience in courtrooms throughout Houston and Harris County. It is risky to try and represent yourself, and you have a far better chance of avoiding a conviction with the help of a knowledgeable criminal defense lawyer. Lawyers also know how to strike deals and create lesser sentences, and a good lawyer can get prosecutors to reduce jail or prison time significantly.

Many people have a hard time understanding why they should pay to hire an attorney when they are entitled to a public defender at little or no cost? This may be a good solution, but there are some serious drawbacks as well. A court will not appoint you an attorney simply because you don’t want to pay for one. You will need to be classified as indigent. If the Judge does appoint you a public lawyer, it won’t be the lawyer of your choice. This lawyer’s experience, energy and desire for justice might not meet your expectations. The bottom line is if you can afford to hire a lawyer, you are substantially better off with one you choose. You should plan on spending more for a lawyer who has experience and training and who has an excellent reputation as a trial lawyer, and this may have a substantial impact on the outcome of your case. With that type of lawyer, you are likely to get what you pay for. However, you should never make a decision about which lawyer is right for you until you meet them and see how each one responds to your concerns. My suggestion is that you call a few lawyers and ask them how much they charge. Ask as well if they are willing to take credit cards and are amenable to payment plans. You might be surprised at how affordable a quality lawyer can actually be!

The first question you must ask is why the person is in jail in the first place. In most situations, the quickest way to free someone from jail is to ask for the amount of cash bond and pay the jail in cash. Most detention centers will not accept a personal check. If a person is charged with a state crime, he can be bonded out by a professional bondsman or a bail bond service. A professional bondsman is someone who has entered into an agreement with the County to guarantee the appearance of the accused at future court dates. Therefore, you must be prepared to answer a lot of questions before a bondsman will agree to pay the bail. Once the bondsman has drawn up the appropriate paperwork, the County will then release the accused on a bondsman’s guaranty. A professional bondsman normally charges 10-20% of the bail amount for his service. We recommend Aaron Bail at 713-223-2665. If you are looking to avoid the bondman’s charge and can afford to pay the bail in cash, you can post a cash bond in Harris County at the bonding window at 49 San Jacinto, Houston, Texas. However, you must realize that if you post a cash bond, it may take the County Sheriff several weeks after the case is over to return the money you have paid. There is currently a problem in Harris County with no arrest warrants. Many charges based on warrant start out without a bail amount attached, which is a change in policy from years prior. This is problematic since it essentially subjects everybody to a no-bond status before they see a magistrate. The best way to resolve this problem is to hire a lawyer to surrender you in court and make an immediate request for bail. You can then take advantage of the “in and out” procedures provided by the Sheriff.

If you are concerned about a potential criminal charge in Harris County, you can call a professional bondsman and ask him to check for warrants. Most reputable bondsmen will provide this service for free. You can also visit the Harris County courthouse and ask the court official, and they will give you the details and information concerning your warrant in Harris County. Of course, they also might arrest you! Warrants are often issued for failure to appear in court for traffic tickets and failure to pay court-ordered fines. In some cases, the victims of identity theft will have numerous warrants out for their arrest because of criminal activities that someone else committed. Alternatively, you can give us a call. We will track down any warrants.

If you have received a “no bond”, this means that you cannot be released out of jail by paying a bond until a bail amount is set by the assigned judge. In the last few years, this has been a common occurrence since almost every case is now referred to the magistrate for a bail determination. In theory, this is supposed to protect individuals who cannot afford to get out of jail, since a PC magistrate can authorize a pretrial release bond. However, in practice it mostly injures those who want to make bail and get on with their case.

There are other reasons for being denied bail. You may receive a “no bond” if you are on probation or are out on bond for another criminal offense. If you have been charged with a particularly violent crime like sexual assault or murder, the judge or prosecutor might consider you to be a “flight risk”, and you will be held without bond. Additionally, you may be denied bail if you have been previously sentenced to prison two or more times. Frankly, it could just be the result of a mistake by the Judge or prosecutor.

Fortunately, there is a solution. If you have a charge against you and you have been informed by a bondsman that bail has not been set, contact me and we can make arrangements to approach the assigned Judge prior to surrender. Most Judges will allow you to leave court with your bondsman to make a bond. Then you can go file your bond at the Harris County Inmate Processing Center without going into formal custody.

If you have been arrested for a criminal offense in Harris County, expect a wait of about 18 hours after arrest. If it takes longer than 24 hours, you might have cause to become concerned. Currently, the law states that if a person has been arrested for a misdemeanor and has not been taken before a magistrate for probable cause determination within 24 hours, he or she is required to be released on a bond not exceeding $5000. For a felony arrest, the individual must be released on a bond not exceeding $10,000 no later than 48 hours after arrest. (There are exceptions to these bail amounts depending on the type of offense and the criminal record of the accused.) An attorney can help by filing a Motion to Set or Reduce Bond in applicable situations where someone has already been taken into custody.

Our criminal defense lawyers almost always recommend that you refrain from conversing with a police officer about a crime that you are accused of committing. Even if you are innocent, police investigators are highly skilled at distorting seemingly innocent statements into ammunition that can be used against you in court. It is difficult to overcome the police officer’s predisposed opinion about you, and therefore it is wise to seek the help of a skilled attorney. According to the 5th amendment of the US Constitution, you are protected from self-incrimination and cannot be arrested for refusing to answer questions that might get you into trouble. However, there are some situations where you may have to provide certain information to police. For example, if there is a warrant for your arrest. Police do not have to read you your Miranda Rights in order to question you if you are not under arrest. Police in Houston and throughout Texas are allowed to stop you for questioning if they have a “reasonable suspicion” that you are taking part in criminal activity. A police officer may try to tell you that the District Attorney will appreciate your honesty or that they think you were justified in your actions, but you must never admit to any criminal activity. Some police officers will even lie to make their case against you, so it is vitally important to speak with an attorney prior to making any statement to an accusing police investigator. Your lawyer can uncover the officer’s motivation and decide whether a statement will help or hurt your case.

When a federal criminal prosecutor needs to determine whether enough evidence of a crime exists to pursue additional charges against an individual, a grand jury will be called. Grand juries are typically made up of 16 to 23 people and every felony case must be indicted by a grand jury unless waived by the accused. In State or Federal grand juries, a prosecutor will present the evidence in a felony case, and if the grand jury finds probable cause, an indictment is returned. If probable cause is found lacking, the case is dismissed. Historically, the grand jury was an English construction that was created to provide a fair method for instituting criminal proceedings against people who were thought to have committed a crime. Today, grand juries have been abolished in certain states, but grand juries still remain a significant part of criminal cases in most states including Texas. A grand jury’s decision about a criminal case is limited to the information that is provided by the presenter, which is typically the prosecutor. If the prosecutor believes the case should be indicted, he or she can certainly present the case in a way which is likely to get that result. The decision by the grand jury does not have to be unanimous, and a simple majority is sufficient to result in an indictment. Grand juries are made up of ordinary citizens with no prior experience in the law and no special training, and they usually follow the lead of the prosecutor that is assigned to them. This can result in unfair persuasion, and it is important for an accused individual to seek powerful legal representation.

A federal detention hearing is essentially a bail hearing that occurs after one has been arrested on federal charges. If the US Attorney has moved for detention, then a hearing will be held before a Federal Magistrate to determine whether certain circumstances exist to detain the accused without bond. This hearing will usually take place immediately, but sometimes it is delayed for 3-5 days. The Bail Reform Act of 1984 lists several factors that the judge or magistrate must take into account in making that determination, including the nature and circumstances of the offense, the weight of the evidence against you, and your history and characteristics. Except in certain cases, the government has the burden of persuasion and must present evidence in a detention hearing. Usually, this is accomplished by presenting testimony from the FBI case agent or another law enforcement officer with knowledge of the facts of the case. The testimony may be based on hearsay, and the attorney for the accused has the right to fully cross examine the government’s witness and may present his own witness to rebut the government’s claims. The judge will then decide to detain, temporarily detain, or release the accused with certain conditions after the federal detention hearing is completed.

The impression that most people have, when they make a complaint to the police, is that they are the ones bringing a criminal charge against the accused. In some States, this is true. In those States, it is the complainant who decides whether to go forward on their criminal case. Unfortunately, Texas is not one of those States. In Texas, the complainant does not have the power to “drop” her case, because the case is brought by the State of Texas, on behalf of the people of Texas. Despite all appearances to the contrary, the complainant in a domestic assault case is merely a witness. She can be subpoenaed and forced to take the stand. The Judge can order her to testify against her husband or boyfriend. This does not mean that the complainant’s desire is irrelevant. Most prosecutors will take the complainants statement into consideration when determining whether to dismiss. This process will require a strong and effective criminal defense attorney.

Even if your case is dismissed, the only way to completely clear your record from data banks is to sue for an expunction. The law in Texas allows you to expunge your criminal record in certain instances, and this is important if you are looking to secure new housing, get a new job, or apply for special licensing. With more than 80% of employers conducting criminal background checks, it has become necessary to pursue expungement in order to move forward in life. You will generally have the right to an expunction if your case was dismissed as a result of mistake or lack of probable cause. You will also have the right to an expunction if you are found “not guilty” after a trial. Contrary to what some lawyers are telling their clients, there is no right to expunction after a successfully completed deferred adjudication. Instead, you may be eligible for a nondisclosure. Non Disclosures are similar to expunctions except that law enforcement and certain licensing agencies will still have access to your criminal record. A successful expungement will allow you to legally tell employers, friends, and family that you have not been convicted of a crime. You may become eligible for student loans, housing assistance and more types of professional licenses and certificates as well.

Although they are not as powerful as expunctions, a Petition for Nondisclosure can serve many of the same functions as an expunction. If the court has issued an Order of Nondisclosure, potential and current employers, apartment property managers and others should not be able to find out about your prior deferred adjudication. Unlike expunction, however, law enforcement will still have access to your priors. Your fingerprints and any police records on your case will remain on file. For most crimes, nondisclosure is available upon completed deferred adjudication. However, individuals who have committed the following crimes will not be eligible for a Petition of Nondisclosure: Indecency with a child, sexual assault, aggravated kidnapping, compelling prostitution, capital murder, murder, stalking, violation of a protective order, and any offense involving family violence.

Yes, shoplifting charges can be sealed, but Courts will determine whether to expunge a criminal record based on how the case was disposed. It is wise to hire a criminal defense attorney who is familiar with the expungement process because these matters can be lengthy and complex. The process of expunction can take three months or more. A Petition for Non-Disclosure will require a hearing in front of the Court that sentenced the defendant to deferred in the first place. The Judge has discretion on whether to approve the Petition.

Juvenile records are not automatically sealed at age 18. One must petition the court and in many cases, the court will not seal the records. It depends on whether the juvenile crime conviction is for a misdemeanor or felony charge in Texas. If a child has a finding of delinquent behavior for a misdemeanor he must wait two years after the finding to have the record sealed. Even then it will not be sealed if he has had later offenses. If there is a finding of delinquent behavior for a felony, he must wait until age 21 to apply for record sealing and in that time period there can be no additional felony violations.

I have always suggested that you research criminal lawyers carefully prior to hiring. It is substantially difficult to clean up another lawyer’s mess, after he or she has already had conversations with prosecutors on your case. So its best to hire right the first time.You should hire a criminal attorney who has extensive experience both in the type of case with which you are charged and in the court you have been assigned. You want a lawyer that knows the proclivities of your Judge, and if possible, the prosecutors who will be making decisions in your case. Bottom line: Hire the most experienced possible.

I would strongly suggest you hire a criminal lawyer who is Board Certified in Criminal Law. This means he or she has gone through a rigorous vetting process. You might also strongly consider an attorney who has some experience as a prosecutor. It is amazing how helpful this is during negotiations.

Some criminal defense attorneys will claim to limit their practice to certain types of criminal cases. For instance, some lawyers advertise their services as DWI specialists. Some of these lawyers are quite good at representing individuals in one type of case. Some others have simply decided on a business model that works best for them, and they are no better(and sometimes worse) than the lawyer who has an expansive practice.

Ask the criminal defense attorney you are interviewing about the number of jury trials he has litigated. The greater his reputation at fighting, the better chance you have of resolving your case in the way you want. Don’t let him weasel out of an answer by giving you some general answer like, “I have a whole file cabinet filled with them!” One of the benefits of hiring a Board Certified Specialist is that he is required to have tried a certain number of cases. The more experience he has in front of a jury, the better.

Make sure you meet your criminal lawyer personally, and determine whether he has the type of personality you can work with for an extended period of time. Many cases take several months to resolve. Finally, verify that the lawyer you are interviewing is the same lawyer who will defend you in court. Some law firms sell an experienced lawyer to you, and saddle you with an inexperienced associate.

Good Luck!