CRIMINAL DEFENSE FAQ
What is criminal defense?
Criminal defense is the practice of legally representing and defending individuals who have been charged with a crime. This can cover a wide variety of cases, ranging all the way from minor theft to capital murder. At the law office of Phillip A. Linder, we offer experienced criminal defense for any state or federal charge.
What is the role of a criminal defense attorney?
Navigating the legal system without the help of a trusted attorney may mean the difference between freedom and spending time behind bars. Criminal charges can lead to hefty fines, time in prison or jail, and probation. Phillip Linder will represent your case and fight on your behalf to prove your innocence or lessen the severity of your charges.
You never want to represent yourself in court because you lack the knowledge of the system itself, the language, the process, and the ability to see both sides of the argument. Understanding how the judicial system works is vital in the outcome of the trial.
As a former prosecutor, he understands how they think and the course of the proceedings. Having Mr. Linder on your side will allow you to see things from both sides of the court and have a clear understanding of what’s to come.
Is a private attorney better than a public defender?
When facing criminal charges, it’s important to assess your options. While a private attorney may seem like a costly investment, it may save you money in the long run by lessening the severity of the charges against you. Private attorneys may recommend expert witnesses or lab tests to support your case.
If you don’t have the financial means to hire a private attorney, a public defender will be appointed to your case. Public defenders are government employees. They’re typically overworked and underpaid. That being said, they won’t have as much time to spend on your case and may overlook details that are necessary to prove your innocence or lighten the sentence.
If your attorney was a former prosecutor, can that help your case?
Yes. When you have experience as a prosecutor then you know the way they prepare a case for trial. You can anticipate the potential problems with the State’s case and prepare a defense that wins. It is kind of like having a player on your team who last season played for your opponent's team and knows the offense that they run. Don’t you think you are going to be able to mount a better defense? Of course you are.
It is not uncommon to talk to criminal defense attorneys who were formerly prosecutors though. Experience is vital but it is not the only factor to consider. You must also look for an attorney who can creatively formulate a defense for your individual case. That means they thoroughly investigate the facts and circumstances of your case and listen to you so that your defense is not easy for a prosecutor to anticipate.
When you combine experience as a prosecutor and defense attorney, creativity, and the dedication to serve each client to the best of his ability, then you have an attorney who will represent you or your loved one well.
Why should I trust your firm with my case?
Choosing the right firm to represent you and your case is vital to its outcome. With over 25 years of experience and over thousands of trials under his belt, Mr. Linder is connected and respected within the community as someone who truly understands the ins and outs of criminal justice.
After you discuss your goals, Mr. Linder will explain everything from the beginning so you have a clear understanding of your options and the strategy so you can mentally prepare for the days ahead. He’ll stay in close communication with you throughout the process, answer any questions you may have, and provide legal advice.
What qualities should I look for in a defense attorney?
Finding the right defense attorney can be a grueling process. Knowing what to look for can save you time throughout the process and behind bars. You’ll want an attorney with the following qualities:
Understands your goals
Establishes a strategy
Knowledgeable and experienced
Keeps you informed and updated
Reputable and has references
Will I serve my full sentence?
There is no parole in the federal system. If you are sentenced to prison, you are eligible for fifty-six days of good time credit for sentences of more than one year. As an example, if you are sentenced to a ten-year sentence then you could get released after 8 years and 4 months. There are several other factors that can also reduce the actual amount of time served in federal prison such as drug treatment programs and the use of halfway houses, etc. In addition, federal sentences always include a period of supervised release after a defendant is released from prison. These range from 3 to 5 years and are similar to what is called parole in the state system. If a defendant is on supervised release and violates the terms and conditions of the release, then they can be re-incarcerated for the balance of their time of supervised release.
If I lost my trial or pleaded no contest or guilty in state court, but I am not satisfied with the outcome, is there anything I can do?
Some lawyers handle appeals and others do not. If you have hired an attorney be sure to ask early on whether you will have to hire a different one in the event you decide to appeal. This will usually be spelled out in the fee agreement.
Following a trial, you may appeal your case to the Texas Court of Appeals provided you file a Notice of Appeal within thirty days of your conviction. Following a plea, you may appeal your case only in very limited circumstances. If the appeal concerns the trial court’s “jurisdiction” to hear your case, the trial court denied one of your written motions, or if you receive permission from the trial court to appeal. A Notice of Appeal would still have to be filed within thirty days.
If you lose an appeal in the Texas Court of Appeals, you can then ask the Texas Court of Criminal Appeals and then the United States Supreme Court to consider your case. The Texas Court of Criminal Appeals and the United States Supreme Court are allowed to pick and choose the cases they will hear and, as a result, both courts hear a small number of cases that are submitted and tend to accept only those cases raising issues that might have an effect on many different cases.
After losing an appeal, you can file a post-conviction petition for a Writ for Habeas Corpus if you believe you were denied a constitutional right or if you believe your lawyer was ineffective. Such petitions must first be filed in state court and can later be filed in federal court. However, that there are strict deadlines for filing petitions in federal court. You should consult with an experienced appellate lawyer regarding these deadlines.
How long will it take to resolve a case in Dallas County?
Cases in Dallas County often take a long time to resolve, particularly if the case is a felony. Unlike federal court, the State receives cases filed by law enforcement agencies throughout the county that they have had no contact with until it is filed. It can be 4-6 weeks after arrest before a felony case is heard by the grand jury and in some cases involving drugs, it can take much longer as they wait for a lab report on the drugs to be completed. The grand jury may hear the case and decide that there is enough evidence to return a “True Bill” of the indictment but when the Prosecutor reviews the case they may determine that more investigation needs to be done. Some of these things might include speaking to witnesses, verifying collected evidence, getting photos printed, etc.
During this time often your case will be “passed for announcement” a few times to give the defense and the State a chance to investigate the case and see if the case can be resolved without a trial. It is up to the individual judge whether you will be required to appear in court for “announcement” settings. In most felony courts you will have to appear but in most misdemeanor courts you will not.
If the case is eventually set for a trial, it may be reset several times. Most courts set multiple cases for trial on each day. Because it is so difficult to have everyone available and ready for trial, having several cases to choose from will usually ensure that someone goes to trial. Older cases and cases where the person has been incarcerated will usually be given priority.
How long will it take to resolve my federal case?
Criminal cases tend to progress much more quickly in federal court than in state court. In general, the majority of federal cases tend to reach conclusions within 6 to 12 months of arrest and indictment. However, there are exceptions for large conspiracy and financial type cases. Some very large federal cases can have 25, 50, or more defendants. When there are that many people fighting the same case it can take extra time.
The Speedy Trial Act requires that an indictment must be sought within thirty days of a person’s arrest. Additionally, if an indictment has already been returned and the defendant is in jail, the Speedy Trial Act requires the government to be ready to proceed to trial in 70 days. If the government is not ready to proceed to trial in the required amount of time, that can give rise to the defendant having additional rights as to being temporarily released from jail. All federal prosecutors and agencies are aware of these rules and usually do not move forward prosecuting a case until they have all the evidence that they can gather to be ready for trial.
It is not uncommon for a defendant in a federal case to waive the right to have a trial in that short amount of time in order to hire an attorney and give them enough time to investigate the allegations before proceeding to trial.
Am I eligible for a court appointed attorney?
In state court in Texas, if you are in jail and unable to make bail, you will often qualify for a court-appointed lawyer. As explained above, however, the court-appointed lawyer will often be taken away if you are able to post the bond. If you have paid a significant amount of money to post the bond then the court will assume that you have the financial ability to hire an attorney as well. It is usually in your best interest to look for an attorney as soon as possible after getting out of jail because many attorneys will work out payments for the fees and the sooner you find one the more time you will have left to pay out the fees owed for representation.
If after posting bond you wish to request that the court-appointed attorney be allowed to stay on the case it must be approved by the judge of the court. You will be required to submit an affidavit detailing your monthly income and expenses so that they can determine if you are indigent.
In federal court, many people qualify for court-appointed lawyers. This is due to the fact that the legal fees charged for federal court representation are normally significantly higher than state court representation. In order to qualify for a court-appointed attorney in federal court, you will have to submit an affidavit detailing your income and expenses and have it reviewed by a magistrate judge. The magistrate judge will determine if you qualify for an appointed attorney.
What should I do if I am stopped on the road for possibly driving under the influence of alcohol?
First, be polite and courteous to the police officer. If the police officer believes you have been drinking, he or she will likely ask you to perform “roadside tests” (e.g. walking toe to heel). If you are absolutely sure that you are not under the influence of alcohol, you may choose to perform the tests because successfully performing the tests could result in the officer allowing you to leave. On the other hand, if you have doubt about your ability to perform the tests successfully, tell the officer firmly, but politely, that you will not perform the tests without being allowed to consult with an attorney. While you do not have a right to consult with an attorney at this point, you cannot be forced to perform roadside tests. If you are charged with driving under the influence of alcohol, the officer will testify as to how you performed on these roadside tests and it is also possible that your performance will have been recorded on videotape.
If you fail the roadside tests or if you refuse to perform the roadside tests, you will likely be arrested. Once arrested, you will be asked to give a breath specimen and may be asked to perform additional “tests.” It is our advice that you tell the officer that you refuse to submit a breath specimen or take additional tests unless you are allowed to consult with an attorney. Again, you have no right to consult with an attorney before giving a breath specimen, but you cannot be forced to give a breath specimen. The machine that takes breath specimens is not always accurate.
I am not a citizen. Could this affect my case?
It could. Recent changes in immigration laws have made it very easy to deport non-citizens even for misdemeanor convictions. Any plea to or conviction of an offense that involves family violence or a possible punishment of one year or more can haw serious immigration consequences.
If you are a non-citizen, before accepting ANY plea bargain, even if it is to probation or deferred adjudication, you should make sure that your attorney fully understands any immigration consequences that may occur as a result of your plea. If you have any doubts as to your attorney’s competence in the area of immigration law whatsoever, you owe it to yourself to consult a knowledgeable immigration attorney BEFORE entering the plea. Phillip Linder routinely consults with experienced immigration lawyers on behalf of his clients when immigration issues might arise.
I have been offered a plea bargain in federal court. Should I accept the plea or go to trial?
This is a difficult question to answer. It completely depends on the plea bargain offer and your culpability for the offense or offenses you are charged with. Typically, the plea bargain offer would require you to serve less time in jail than would be required if you went to trial and were found guilty on all of the charges. However, it is quite common for a defendant to only be actually guilty for some of the offenses he is charged with and not all of them. In this scenario, it is absolutely imperative that you discuss all of the possible scenarios with your lawyer.
Some things to make sure you understand before accepting a plea bargain in federal court:
(1) What will you be admitting to?
(2) Does the plea bargain provide for a specific sentence?
(3) Do you fully understand how the sentencing guidelines will affect your case and whether you will be eligible for a downward departure or subject to an upward departure?
(4) In any cases involving amounts such as financial cases and drug cases do you fully understand how the sentencing guidelines apply and may change based on the probation officers' calculations?
(5) Are there any mandatory minimum sentences that apply to your case?
(6) If you are not a United States citizen, will the plea bargain affect your ability to remain in the United States?
(7) If there will be a sentence of confinement, do you understand how “supervised release” works?
(8) Are you waiving your right to appeal the application of the sentencing guidelines or will you be able to appeal how the trial judge applies the guidelines?
If I have not been charged with a crime, but I am being investigated by state and/or federal authorities, what should I do?
If you believe you are being investigated in connection with a criminal offense, especially a felony offense, you should consult with an experienced criminal defense attorney immediately. An attorney, especially one who has been a prosecutor in the past, can very often make calls to various law enforcement officials and determine if there is a case being investigated. The attorney will be able to give you advice as to whether you should make any statements to investigators or allow a search of your property. You do not have to give a statement to the police. Any statement can and will be used against you. Likewise, unless the police have a search warrant, you have an absolute right not to allow the police to search your property except in very limited circumstances. You do not have to consent to the search. However, any denial of cooperation on your part to law enforcement should be done very politely.
In addition, an experienced attorney, if called during the investigation stage, can often:
(1) obtain information regarding the investigation so that you can make intelligent decisions regarding how to proceed;
(2) attempt to convince investigators and/or prosecutors not to go forward with a prosecution;
(3) in state court and sometimes federal felony cases, make a presentation to the grand jury on your behalf urging that it not return an indictment against you;
(4) make self-surrender and bail arrangements so that, if you are eventually charged, you can turn yourself in, so as to avoid being arrested at your home or work.
If I am not happy with my current attorney, what are my options?
You have the right to hire a private attorney if the one you have is court-appointed. If you are not happy with a court-appointed attorney, the court will not generally entertain a request to appoint a different one. If you are not paying for his services you don’t get to be too picky. If you are unhappy with an attorney that you have hired you have the right to hire a new one to replace the first one.
However, this can be a difficult situation. It is important to remember that most criminal defense lawyers charge a flat fee and not an hourly rate and are reluctant to return the fee after it is paid. If you find yourself in this situation, you should start by having a frank discussion with the lawyer to see if there is a way to fix the problem that you have with his representation. Tell the lawyer why you are not satisfied. Many times, there may simply be a misunderstanding of the goals or the process that can be resolved with a phone call. In this way, you will avoid possibly losing the money you have paid and still needing to hire another attorney.
If necessary you should also read your fee contract to see what it says about early termination of the attorney/client relationship. You may suggest that the lawyer return a portion of your fee so that you can hire another lawyer. It is generally a good practice to notify the attorney in writing that you wish to terminate his representation and notify any new attorney that you hire that you had another attorney on this case previously. You can request a copy of your file from the first attorney so that you can present any information already obtained to the new attorney.
Am I eligible for probation if I go to trial and I am found guilty?
Before answering this question, it is important to remember that there are two types of probation in Texas State Courts as discussed in the above section. There is deferred probation and there is regular probation. Deferred probation is a nonconviction type of probation and is not available if a defendant goes to trial and is convicted. Regular probation is a probation in which a defendant is found guilty and sentenced to a term in prison of 10 years or less and is then that prison sentence is probated by the judge or the jury. Whether or not the judge or the jury can give probation is a very important question that you need to know if you are thinking about going to trial and have never been convicted of a felony before. As mentioned above there are some cases in which only a judge can give probation and some cases in which only a jury can give probation. You need to know how your case fits into this scenario.
There are also very limited situations in which a defense attorney, a prosecutor, and a judge can all agree to do a “no contest TBC”. As a defendant, you do not have a right to this type of trial. It is simply subject to the agreement of all of the parties. In this situation, a defendant is allowed to plead “no contest” and then have the prosecutor present its witnesses in court. This is done with a judge and not a jury. At the conclusion of the state’s case, the judge can then make a ruling that the defendant is not guilty or that there is sufficient evidence to find the defendant guilty for the offense but then defer further proceedings and put the defendant on deferred adjudication probation. This is typically only done in cases where a judge cannot give a defendant probation once he has been convicted of an offense but can give deferred if there has been no actual “conviction”.
All persons convicted of a misdemeanor offense are eligible for probation if they elect to have a judge assess their punishment. Persons convicted of a misdemeanor offense are eligible for probation from a jury if, before the trial begins, the defendant files a written sworn motion with the judge that the defendant has not previously been convicted of a felony in Texas or any other state, and the jury enters in the verdict a finding that the information in the defendant’s motion is true.
Under the current law, if you are convicted of a felony and are sentenced by a judge, you are eligible for probation provided that your sentence is ten years or less and you are not convicted of: (1) capital murder; (2) murder; (3) aggravated kidnapping; (4) aggravated sexual assault; (5) aggravated robbery; (6) indecency with a child; (7) sexual assault of a child; (8) a second drug offense in a drug-free zone; or (8) a felony where a deadly weapon was used or exhibited.
Under the current law, if you are convicted of a felony (except a state jail felony, a second drug offense in a drug-free zone, murder, and certain sexual offenses involving children) and sentenced by a jury, you are eligible for probation if the jury sentences you to ten years or less and the jury finds that you have never previously been convicted of a felony.
The maximum period of probation for Class A and Class B misdemeanors is two years and for first, 2nd and 3rd-degree felonies is ten years. For State Jail felonies the maximum term of probation is 5 years. Once on probation, your probation can be extended to up to double the original length of probation if you do not fully comply with the terms and conditions of probation
Do I need an investigator?
Investigation is often a very important part of preparing a defense in a criminal case. A skilled investigator can obtain information that could result in winning a trial or obtaining a more favorable plea bargain. Police officers are usually very overloaded with cases and can miss important information or witnesses. Having an investigator that is working for you can bring this information to light that might not have otherwise been discovered.
Most lawyers have several investigators that they work with depending on the type of case. Some investigators are better in a murder investigation and others might be better in a sexual assault or drug case. Picking the right investigator can also be an important factor.
An expert witness can also be invaluable in certain types of cases, especially in cases in which the prosecution has its own experts. A jury will evaluate the witnesses and the weight to be given their testimony. If there are experts on one side but not on the other it can be the difference in the outcome of the trial. Consider the complexity of the case and whether an expert will bolster your defense.
At your initial meeting with your lawyer, you should discuss the need for an investigator to interview witnesses and possible uses for expert witnesses. It should be clear in the fee contract whether the costs of an investigator and expert are part of the fee to be paid by your lawyer or whether such costs will be additional.
How does bail work and how do I make bond?
In state court, a person is entitled to have bail set in all cases except for capital murder cases and probation violation cases. In a probation violation case, a bond for a defendant is solely at the discretion of the Judge. In federal court, prosecutors either move for detention or not. If a prosecutor moves for detention, he must prove the defendant is a danger to the community or a “flight risk” (not likely to show up to court appearances) before bail can be denied. Often, in federal court, a person may be released on their “own recognizance” without the need for bail.
If a bail amount is set in federal court, that amount typically needs to be posted in full at the Federal District Clerks' office because federal courts typically do not allow the use of bondsmen. The money is then returned at the conclusion of the case. If a bail amount has been set in state court, you can post the bail in one of two ways. The first way is that you or a family member can post the full bail amount in cash. This is done at the county jail itself. The advantage of doing it this way is that, assuming you show up to your court appearances and abide by the bail conditions, you or your family member will get that money back once your case is finished.
The second way, if you cannot afford to post the full amount, is that you can go through a bail bondsman. Bail bondsmen, however, charge a fee (usually between 10 percent and 20 percent of the bail amount) and you do not receive that money back at the end of the case. Bail bondsmen also may ask you to post collateral. An experienced criminal defense attorney will be able to put you in touch with an honest, reputable bail bondsman. And often, if you are referred by an attorney, you will pay a lower percentage fee and have less stringent collateral requirements.
If you are arrested in one of the smaller municipalities in Dallas County, it is sometimes necessary to hire an attorney in order to get a bond set the night of the arrest. This is referred to as getting an “attorney bond” or “running a writ”. Also, if you are arrested in a smaller municipality within the county, the bonds are typically set higher initially than if you are arrested in the city of Dallas. Additionally, a bond that is initially set in a smaller municipality, will be lowered to a more reasonable amount once a defendant is transferred to the Dallas County jail.
There are some things about which you must also be aware. In state court in Dallas County, if you have a court-appointed attorney and are able to make a bond, the judge may then require you to hire your own attorney. If you truly cannot afford an attorney, some judges will eventually appoint you an attorney if you arrive at court without an attorney and prove to the Court that you are, in fact, unable to hire one. Additionally, if you are in jail with a court-appointed attorney and you want to get your bond lowered, the court will typically make you hire a lawyer before conducting a bond reduction hearing.
If you are in jail on a noncapital murder case or a nonprobation violation case and you feel that your bond is too high, you can have your attorney file a Motion to Reduce Bond or a Writ of Habeas Corpus. There is a significant amount of case law regarding a defendant’s right to reasonable bail. Dallas County even has a preset bond schedule that most of the judges tend to follow once a defendant is in the Dallas County jail-thus the reason bonds are typically lowered for a defendant being transferred from a smaller municipality into the Dallas County jail.
How can I tell if there's a warrant for my arrest?
When you first speak to our attorney Phillip A. Linder, one of the most crucial pieces of information he’ll need to know is if there’s a warrant for your arrest. If you want to find out for free, your best bet is to contact a bail bond company – most will look up your warrant status for no charge. Otherwise, some websites will verify it for a small fee.
I have to bail someone out of jail – what information do I need?
In order to save time and avoid hassles, make sure you have the following information before contacting a bail bondsman:
Defendant’s Full Name and Birth Date
Record of Prior Arrests
Amount of Bond