Houston Criminal Defense Attorney | What NOT To Do In Court!

As a Criminal Defense Attorney in Houston I often get asked, “What can I do to screw myself up in court?”  There are multiple things that you can do to call negative attention to yourself in court.  In this blog I am going to talk about a few of the things you can do wrong.  And yes, these things do happen….frequently.

1.     Not Dressing Appropriately.  You would not believe how many times I have had clients show up in shorts.  Shorts are not appropriate for court.  Neither is wearing your pants below your butt.  If you walk into any court you will usually hear a bailiff giving a speech telling someone to pick up their pants and tuck in their shirt.  Its court, not the club.  Dress nice or you run the risk of being singled out.

2.       Being Late.  People are late every single day, in every single court.  It’s nothing new, and the judges get sick of it.  You will usually get one free pass, but the second time you run the risk of getting your bond revoked.  If that happens you could possibly be taken into custody and be forced to post another bond.  Your bond company will not be happy with you either.  And don’t say, “I had a flat tire”, or “my car broke down”….even if it’s true, just trust me.

3.       Your Phone Rings, You Fall Asleep, You Talk To Much, PDA!  These are pretty much self-explanatory.  If your phone rings everyone stares at you.  If you fall asleep the bailiff wakes you up, you get scared, and everyone laughs.  If you talk, they tell you to shut up or to sit in the jury box, if you are kissing on your significant other, they will call you out and kick your “sweetie” outside.  All of these things do the one thing you do not want…call attention to you.  Just lay low in court and be quite.  There will be plenty of time for all of that once you leave court.

4.      Do Drugs On Bond.  This usually comes into play for the people who break the rules above.  If you run into a judge in a bad mood, you run the risk of being sent for a drug test.  If that drug test is positive you could wind up locked up once again.  You shouldn’t be doing drugs in the first place, but you especially shouldn’t be using when there is a chance that you could be sent for a drug test by a criminal judge.

The reason I am writing this blog is because 3 of the 4 happened to me today.  It’s extremely frustrating for a lawyer to have to deal with this.  Instead of working on your case, your Houston Criminal Defense Attorney is going to end up begging the judge not to throw you in jail.  So if you find yourself in trouble and looking for a Criminal Lawyer in Houston, just remember these rules and make life a little easier for everyone!

Houston Criminal Defense Attorney | Jail Phone Calls Are Recorded!!

Just a tip to anyone who might ever be in jail, or have a family member or friend in jail…don’t say anything you on the phone that you would not want the prosecutor handing your case to hear.  Being a Houston Criminal Defense Attorney I have come across many individuals who did not know that all jail phone calls are recorded.  And that’s because there is an automated voice on the phone that tells you the call is being recorded.

A perfect example is a case I heard about where the defendant swore up and down to his attorney that he was innocent.  It got to the point where the attorney was convinced as well that he was telling the truth.  The case dragged on for over a year until the point where it was time to take a plea deal or set it for trial.  The prosecutor called the day before court and said there was some interesting jail phone calls, and that the defense attorney might want to listen to them.

Well surprise, surprise…on these phone calls, the defendant admitted guilt several times and was still running his “business” and giving directions to his people on the outside.  The defense attorney got a copy, let his client listen to the calls, and they took a plea deal the next day.

The first thing this defendant did wrong was lie to his attorney.  If your attorney does not know the truth, then it is extremely hard to defend the case.  The second thing he did wrong was talk about private business on the jail lines.  This was an extreme example, but it can come into play with even the smallest of criminal cases.  You could say something that is completely innocent about your case and your words may be used against you.  A lot of times words are taken out of context and things sound worse than they really are.  Nothing is worse than being innocent and arrested for something you didn’t do.  The last thing you want to do in this situation is say anything that might call your innocence into question.

So to sum it all up, DON’T TALK ABOUT YOUR CASE ON THE JAIL PHONES!  Your family can come visit you, so can your Houston Criminal Defense Attorney.  And it’s really none of your friends business!  There is a proper time to discuss your case, and over the phone is not one of them.  I would be willing to bet that almost every Criminal Lawyer in Houston has a story that is similar to the one above.  So if you are ever in the horrible spot of being in jail, or having a loved one in jail, limit your phone conversations to anything other than your criminal case.

Houston Criminal Defense Attorney | Grand Jury & No Bills

If you are a defendant and you are charged with a felony you should almost never plead guilty before your case is indicted.  In Texas every felony case is passed in front of a grand jury who decides whether or not to indict the case.   If you have a Houston Criminal Defense Attorney they will probably talk to you about the indictment and explain the process to you.  Most of the time cases seem “hopeless” and it is a foregone conclusion that the case will be indicted, but every once in a while a case who everyone (including defense attorneys and prosecutors) think will be indicted gets no billed (or dismissed).

Many times defendants take plea bargains quickly and just sign a “waiver of indictment”.  The judge usually goes over this document and asks again whether or not the defendant wants to plead guilty before the grand jury looks at the case.  Again, if you are pleading guilty, then it is very likely that the grand jury will indict, but you never know!

Today is a perfect example.  I had a client who was charged with a felony and the case was not very good for the defense.  The prosecutors were offering prison time or many years of probation.  Even though it looked like trial was going to be the only option to “win” the case, and that was my recommendation, my client decided he did not want to go to trial and wanted to take probation.  I advised him not to do that because the case had not been indicted, and I wanted to talk to the DA one last time.   I received a surprise today when I found out that my client’s case had been no billed by the grand jury.

While I am shocked that the case was no billed, I am sure any Houston Criminal Defense Attorney would be as thrilled as I am.  It makes you wonder how many people have pled guilty quickly when a grand jury would possibly no bill a case.  So if you are a defendant you should definitely talk to your Criminal Lawyer in Houston about the grand jury process.

Houston Criminal Defense Attorney | Motion for Non-Disclosure

The biggest mistake a Houston Criminal Defense Attorney can make is telling their clients after a deferred adjudication probation, that their record is clean.  Deferred adjudication is a type of probation where your case is dismissed if you finish the probation successfully.  So it is true that you do not have a conviction…BUT THE ARREST RECORD REMAINS VISIBLE TO EVERYONE!

The problem with deferred adjudication is that everyone who works in HR departments understands that you pled guilty to be placed on deferred, and the only reason that your case was dismissed was because you did probation.  To employers, apartment complexes, and schools, that dismissal is the same thing as a conviction.  They don’t care that you have a piece of paper saying that your record is clean.  In order to seal your record after you finish deferred, you need to file a motion for non-disclosure.

A motion for non-disclosure does not completely wipe your record clean, it will still be visible to governmental agencies and law enforcement, but THE GENERAL PUBLIC WILL NOT HAVE ACCESS TO THE RECORD!

Apartments, schools, and public jobs will no longer see that you were arrested, thus making your life less stressful.  In order to be eligible you must have finished your deferred adjudication probation.  With some misdemeanors you must wait two years after you finish probation to file for the non-disclosure.  Other types of misdemeanors allow you to file immediately upon completion of the probation (some judges has rules that you must wait a certain amount of time depending on the type of crime.  Call a local Criminal Lawyer in Houston to get a more personal evaluation).  HOWEVER, IF YOU WERE ON DEFERRED FOR A FELONY YOU MUST WAIT FIVE YEARS AFTER YOU COMPLETE YOUR DEFERRED ADJUDICATION PROBATION BEFORE YOU CAN FILE. 

There is always one big catch.  You are NOT ELIGIBLE TO A NON-DISCLOSURE if you have been previously convicted of or placed on probation for any of the following:

• Sexual performance by a child
• Possession of production of child pornography
• Unlawful restraint, kidnapping, or aggravated kidnapping of anyone under the age of 17
• Attempt, conspiracy, or solicitation to commit any of these listed offenses
• Capital murder
• Murder
• Indecency with a child
• Sexual assault
• Aggravated sexual assault
• Prohibited sexual conduct (incest)
• Aggravated kidnapping
• Compelling prostitution
• Injury to a child, elderly individual, or disabled individual
• Abandoning or endangering a child
• Violation of protective order or magistrate's order
• Stalking
• Burglary of a habitation with the intent to commit any of the above offenses
• Any other offense involving family violence

You also will not be eligible to get a non-disclosure if you were convicted of another crime after you finished your deferred adjudication!  I know it is confusing, so if you have any questions, find a Houston Criminal Defense Attorney that is willing to assist you.

Houston Criminal Defense Attorney | Pre-Trial Intervention (Diversion) Program

As a Houston Criminal Defense Attorney I get the opportunity to defend many young individuals during stressful times in their life.  I see many young adults (17-21) who have gone their entire lives without being in trouble.  Usually they are charged with some misdemeanor such as theft that stemmed from a brief lack of judgment.   They typically enter my office scared that they ruined their future and are looking for guidance.  Luckily in Harris County there is a pre-trial intervention program that is set up to give a second chance to young people who deserve it.

The process starts by submitting a pre-trial intervention application through the chief prosecutor in the court the case is in.  A basic application includes a letter of apology to the victim/complainant, a letter from the defendant explaining why they need this extraordinary opportunity, letters of recommendation, indication of future goals/plans, and indication of a stable lifestyle/mitigating facts.  The court evaluates the application and decided whether or not to offer admission into the program.

If accepted, the pre-trail intervention (or pre-trial diversion) program is typically one year long (can be more for more serious offenses).  During this year the case in question is reset and pending.  Using a recent theft case I handled as an example, what is usually included in the program is an anti-theft class, a certain amount of hours of community service (typically 80), regular reporting to the probation department (even though you are technically not on probation), random drug tests, and a drug/alcohol evaluation.   The fees associated with the program are typically not more than $60 per month as per the agreement.

The bulk of the program can be completed in the first couple of months.  After that, the goal for the rest of the year is to not get in trouble.  When the defendant returns to court in one year, the assistant district attorney runs a criminal background check on the defendant, and if everything comes back clear the case is dismissed.

This is a true dismissal that can expunged off a record (which destroys the record for everyone).  Any good Houston Criminal Defense Attorney would tell you that a pre-trial intervention dismissal is much better than a deferred adjudication (which is a type of probation) dismissal.  The big difference is the fact that pre-trial intervention dismissal is eventually expunction eligible while the deferred dismissal is only eligible for a motion for non-disclosure (which will keep the record visible to law enforcement and government agencies).  If you have a case you think might be eligible make sure to contact a Criminal Lawyer in Houston who can help you.

Houston Criminal Defense Attorney | Using Classes to Make Individuals Better People

Sometimes a Houston Criminal Defense Attorney recommends that a client take remedial action to help their court case.  Some examples include Alcoholics Anonymous (AA) for clients with drinking problems, Narcotics Anonymous (NA) for clients with drug problems and Battering Intervention Prevention Program (BIPP) for domestic violence issues.  While it is true that these types of classes can be used to help in the “damage control” portion of a criminal case, what is truly important is using these programs to make an individual a better person.

It is easy to lose grasp of the fact that all of the individuals with criminal cases are real people with real lives.  Some attorneys have seen thousands of cases and forget this.  My goal is to always know who my clients are, and what their situation is.  At the end of the day, and at the end of the court proceedings, I might never see my client again, but they will go on dealing with their issues forever.  It is not uncommon that I sit down with my clients and recommend different treatment programs that will help them in the future.  Sometimes we never even mention, nor use, the treatment records in court.  It is truly about the big picture and trying to make sure that every one of my clients at least knows what resources are out there to help them.

At the end of the day if my clients choose to take my advice and get help for themselves, then wonderful.  If not, well at least I know that I did everything in my power to try to help them.  Being a Criminal Lawyer in Houston is a job that individuals can use to make a difference, or a job that can be taken for granted.  I take pride in being the best Houston Criminal Defense Attorney I can be.  And sometimes that means being more than an attorney, it means being a mentor, a guide, and a neutral observer who can help someone change their life for the better.

Houston Criminal Defense Attorney | Assault on a Family Member in Texas

Assault-Family Member is a unique charge. You definitely need a Houston Criminal Defense Attorney to help you. What makes it so unique is the person really doesn't even need to be a family member. It can be a roommate, a girlfriend, or even someone that you used to live with. Of course it also applies to other family members such as children, wives, brothers/sisters, etc.
 
One thing that usually accompanies a charge of Assault of a Family Member is a Magistrates Order of Emergency Protection (a restraining/no-contact order). Typically (in Harris County) they are 61 days for a misdemeanor and 91 days for a felony. However, if someone goes through a civil court to get the order, it can be up to 2 years. The ones that are given in court can be signed by the judge even if the family members are no longer mad at one another. It is very difficult for a lawyer to remove this order within the 2 or 3 months that it is intact.

For this particular type of crime the elements are…
1. Intentionally, knowingly, or recklessly causing bodily injury to someone else
2. Intentionally or knowingly threatening someone else with imminent bodily injury
3. Intentionally or knowingly causing physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative
 
Assault - family member is a Class A Misdemeanor. A Class A misdemeanor carries a range of punishment of up to one year in jail and up to a $4000 fine. If found guilty, you will get what the state likes to call "an affirmative finding of family violence" on your record. That will be on your record for the rest of your life. Basically what that means is if you ever pick up a Class A Assault-FM in the future it will be enhanced to a felony.
 
But, if during the alleged assault you cause serious bodily injury or use a weapon against the "victim" you could be charged with Aggravated Assault on a family member which is a 2nd degree felony. A 2nd degree felony carries a range of punishment of 2 to 20 years in prison and up to a $10,000 fine. More commonly in Harris county, we see Aggravated Assault-FM by impeding breath. This is the typical charge you will see when there is an allegation of "choking".
 
It is very important to have a competent Criminal Lawyer in Houston when handling one of these cases. They are defendable, and there are many potential avenues to keep this from going on your record. A Houston Criminal Defense Attorney that has seem multiple Assault-FM cases should have no problem explaining what possible defenses and outcomes they see in your particular case.

Houston Criminal Defense Attorney | Hiring an Out of County Attorney

Some people say you should never hire a Criminal Lawyer in Houston to handle a case in another county.  The people who argue this usually say that it is better to hire someone who is well connected in the other counties court house.  I think that is a complete myth, and that defendants should be more concerned about hiring someone that cares about them and about their case.

I have heard clients express concern over hiring out of town attorneys a ton of times.  As a matter of fact I heard it today in my office.  A lady (who lives in Houston) came in with a case in Galveston County and mentioned that she had met with a couple of Galveston attorneys.  She mentioned that those Galveston attorneys both warned her not to hire a Houston Criminal Defense Attorney because they didn’t know the prosecutors and judges like they do.

I personally think that personal connections mean very little when it comes down to defending a criminal case.  The attitude of the Galveston attorneys probably stems more from the fact that they are concerned that a lot of “their” cases are going to out of town attorneys.  I have worked in more counties than I can remember and I honestly think the results of the cases have been fairly consistent with what I thought would happen on each case.

Each case is very fact specific, so it’s hard to give dismissal percentages, etc.  But almost every Criminal Lawyer in Houston will probably tell you that they have a gut feeling whether or not a case is getting dismissed or going to trial from the first time they hear the story.  And I can honestly say that I do not think I have ever had a prosecutor treat a case unfairly because it was an “out of town” lawyer.

Bottom line, if you are charged with a crime it is your life, your record on the line.  You need to go with the person who you feel the most comfortable with; the person who you think will fight to get you the best possible outcome.  Not the person who you think is most likely to play golf with the judge. 

Houston Criminal Defense Attorney | Finding the Right Attorney for YOU!

Finding the right Criminal Lawyer in Houston is important to anyone with a pending case.  I am a believer that no one attorney is right for every defendant.  I think it is important to visit with at least a few attorneys and go with the person who you feel most comfortable with.

Every Houston Criminal Defense Attorney is different.  Some are young, some are old, some are fit, and some not so much.  But none of this matters as much as the gut feeling you get while talking to them.  Unfortunately some people think 30 years of experience means someone is a better lawyer than 10 years of experience.  The truth is, it is hard to know who is a good lawyer and who isn’t. 

There are lawyers in Houston who haven’t even thought about taking a case to trial in 20 years and there are those who want to take every case to trial.  Honestly, both types can be dangerous.  You need to talk to a variety of lawyers, get a variety of opinions, and go with the person you feel is the most sincere in wanting to truly help you.

I know young attorneys who are awesome and some who are just starting. I know old attorneys who are awesome, and some who are burned out.  A lawyer’s “stats” (40 years experience!) don’t necessarily tell you everything you need to know.

 So bottom line, make sure you are diligent in your research, and make sure you meet with every lawyer you are interested in in person!  If you can’t reach a lawyer when you are trying to hire them, how likely are you to be able to reach them when they are officially representing you?  If you are arrested, it is definitely a stressful time, but I guarantee you that there is a Criminal Lawyer in Houston that is right for you!

Houston Criminal Defense Attorney | Flat Fee vs. Per Appearance

I am a strong believer that no one should ever hire a Criminal Lawyer in Houston who charges per appearance.  What I mean is a lawyer who charges you every time you go to court.  If you are a defendant, and you are reading this, I mean the lawyers who tell you…”Just give me $200 every time we go to court”. 

This is just wrong on many levels and in my opinion creates a huge conflict of interest.  No competent Houston Criminal Defense Attorney would do this.  These are the top 3 reasons I think you should never hire someone with this sort of pricing structure.

1.       Unnecessary resets - Sometimes cases can be won quickly.  Many times I have shown up to court only to have a prosecutor tell me that they are leaning towards dismissing the case.  It only takes a tiny bit of convincing and we get it done.  An unethical lawyer who is getting paid per court date might not have any incentive to get a case thrown out fast.  They could simply reset, and reset, and reset to make more money.

2.       Lawyer feel rushed - Now let’s assume it is a good lawyer trying to do their job.  Sometimes cases take MONTHS to evaluate, gather evidence, etc.  If you are a good lawyer in this situation then you want to finish your case as quickly as possible (since the client is paying per appearance and you don’t want them to think you are stalling), but it simply might not be possible.  Again, you could end up paying more in the long run than you would have if you had only hired someone who charges you a flat fee.

3.       Results in more pleas – Lets face it, most clients who hire these types of lawyers don’t have that much money in the first place.  So they might be sitting there in court with a very defendable case, but they plead guilty.  Why, you ask?  Because they don’t want to have to pay that lawyer to come back in 3-4 weeks….complete BS.

So save yourself the trouble and hire a Criminal Lawyer in Houston who charges a flat fee.  Lawyers come in all sorts of shapes and sizes, and with all different kind of prices.  I ALWAYS charge a flat fee that I feel is fair.  The most important thing should be the case, not trying to make (or save) money.

Houston Criminal Defense Attorney | In Person Consultations

Finding a Houston Criminal Defense Attorney is not hard.  Chances are, if you need one, you are going to be contacted by many.  What is tough is finding a Criminal Lawyer in Houston that you can trust.  I have been a Houston Criminal Defense Attorney since the first day I was licensed in the State of Texas.  In my blog I hope to have an avenue to share my thoughts, and hopefully give advice to those needing the assistance of a good criminal lawyer in Houston.

The first thing I advise anyone who asks me about hiring an attorney  is to make sure you personally meet with every attorney that you are interested in hiring.  All too often (my law firm being no exception), individuals just hire an attorney over the phone.  I just think it makes more sense to go in and have a face to face consultation.  Most consultations are free, so there is little excuse for not making time for such an important decision.  There are three main reasons I believe consultations are better in person:

1.       You have the opportunity to see the person who is going to represent you.  The last thing you want is to walk into court not knowing who the heck your lawyer is.  Meeting an attorney in person prevents the awkward moment in court where your lawyer has to say your name because he has no clue what you look like.  You also might not want to hire an attorney if he doesn’t present himself professionally.  Meeting him before will give you an idea of how the person carries himself from one day to the next.

2.       You get to see the environment where your attorney works daily.  A lawyer’s office can tell you a lot about how he is going to handle your case.  Is his office a mess?  Are there piles of trash in the corner?  Does he even have a physical office?  Does he seem organized?  These are all things that are impossible to determine over the phone.

3.       Your lawyer can get a better feel for you, and for your case, in person.  Sometimes it’s about what’s best for the lawyer too.  It is hard to read people over the phone.  Many times an individual’s physical traits or demeanor can help an attorney decide what the defense of a case is.  It’s always best for your lawyer to know as much about you as possible prior to getting to court. 

Overall it is a win/win for a client/attorney when the consultation is in person.  I know it’s tough to miss days from work, but many attorneys (myself included) are available on weekends and evenings to meet.  Picking a Criminal Lawyer in Houston is an extremely important decision, and you owe it to yourself (and your record!) to inform yourself to the best of your abilities prior to signing an attorney/client contract.  If you are facing a criminal charge and have any questions or would like to set up a free consultation , please feel free to contact me at 713-222-2828.

Houston Criminal Defense Attorney | An Introduction From a Criminal Lawyer in Houston

My name is Eric J. Benavides, and I am a Houston Criminal Defense Attorney.  I am a founding partner of Benavides & Serrano, PLLC.  I decided to start a blog mostly to give myself an avenue to talk about current events, the law, and things that interest me in general.  I don’t expect many individuals who are searching for a criminal lawyer in Houston to read this blog, but hey, maybe you will!  This is just a brief introduction of why I do what I do…

My mother has a framed drawing in her room that I did when I was 4 years old.  It says “I want to be a Lawyer”, and has a stick figure sitting at a poorly drawn desk.  You see, being a lawyer is the only thing I have ever wanted to do.  I can’t exactly tell you why I always wanted to be a lawyer, but I think it stems from wanting to help people.  I think that is a common trait of the good lawyers in our business.  It’s not about the money, because if it was, I sure wouldn’t be a Houston criminal defense attorney.  It’s about the people, and the lives you can change.

Fresh out of law school I started working at a respectable criminal defense firm in downtown Houston.  I knew I wanted to help people, but I’ll never forget the feeling of walking out of court with my first dismissal.  My client gave me a hug and told me I saved her job.  And I’ll definitely never forget the first time I heard “Not Guilty” after arguing to the best of my ability for a wrongly accused client.  It’s a rush, and a sense of accomplishment.  It makes you feel like you are making a difference in the world, even if it only matters to one person (your client!).

The feeling of helping others is what keeps me going every day.  Even though not everyone gets their case dismissed, it’s always the goal to get them the best possible outcome.  And I promised myself long ago that I would never allow a client to plead guilty unless I truly believed the deal he was getting was fair.

If you ever find yourself in the unfortunate situation of needing a criminal lawyer in Houston feel free to contact me at 713-222-2828.  I can’t promise you an outcome, but I promise you that I will always tell the truth, and that I will work to the best of my capabilities.

Eric Benavides