Criminal Defense FAQs

1. I was arrested for Family Violence but my spouse/partner told the authorities that they do not want to prosecute. Will the case go away?

ABSOLUTELY NOT! Once the police make an arrest, then they turn the file over to the District Attorney's Office. The matter is then in the hands of the State of Texas and even though your family member or dating partner does not want to have you prosecuted that is not the determining factor in the outcome of the case. In fact, one of the most common misconceptions about domestic violence cases is that the problem will go away if the accuser changes his or her mind. These cases are prosecuted whether or not the alleged victim wants to drop the charges.

In short, this problem is not going away. Your choices are to either face it now or forever suffer the consequences of an emotional mistake.

2. How Much Worse Is an Allegation of Choking Compared to a Regular Assault?

Much worse. Typically, a regular assault is charged as a misdemeanor offense. However, if there is an allegation that the victim was choked it is prosecuted as a third-degree felony and you face 10 years in prison.

Assault by choking/impeding breath has the following range of punishment:

· 2 to 10 years of confinement in the Texas Department of Correctional Facilities;

· Up to a $10,000 fine;

· Both such fine and confinement.

3. Because I was arrested for choking, does that mean I'm going to suffer a lifetime of dealing with this allegation?

There is no question that you will unless you hire a law firm that concentrates its criminal practice on assault. We do. Be glad you found us. It is critical to address these types of allegations from the very outset. Over the years, we have amassed a very impressive record of dismissals and Grand Jury "no bills" in assault by choking/impeding breath and other assault cases.

4. What Is Assault With Choking/Impeding Breath?

Texas Penal Code Section 22.01(b)(2) (B) states:

(t)he offense is committed by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person's throat or neck or by blocking the person's nose or mouth.

5. What Is an Emergency Protective Order in Texas?

After an allegation of assault involving family violence, the complainant may apply for and obtain an Emergency Protective Order. The standard order provides that the citizen accused cannot go to the house of the complainant for 61 days. That is true even if he or she owns the home and the complainant is simply residing there and not paying a single bill.

Failure to comply with that order will result in additional criminal charges.

If you have been arrested for or are under investigation for assault by choking/impeding breath, then do not wait to contact our experienced assault trial lawyers. There are almost always more options available if you act prior to the Grand Jury meeting and shortly after the arrest

6. I got a call from a Detective who seemed very nice and said he just wanted to clear some things up and wanted me to give a statement so that he could close the file up on my case. Should I call him back?

NO, UNLESS YOU WANT A CRIMINAL RECORD AND GO TO JAIL. Any contact you have with the authorities is good for them and extraordinarily bad for you. Rest assured, the police, investigators, detectives and FBI are not going to be completely honest with you. If they contact you, the only thing that you should say is, "I want to talk to my attorney," then hang up and dial our number.

7. What is my best chance of avoiding a felony indictment?

SEE US TODAY. A "Grand Jury Packet" is your best shot of ending your nightmare before your case becomes a political issue. A "Packet" is typically a cover letter combined with any exculpatory evidence that our own investigation turns up which supports our position that your case should be thrown out.

Many, many times in the past we have submitted a "Packet" to the Grand Jury and it put an end to the criminal investigation/prosecution. More often than not, these "no-bill dismissals" occurred in assault investigations (family violence, aggravated assault, choking cases, sexual assaults, etc.). Unfortunately, many more times our less hurried clients who did not hire us in time suffered an unnecessary indictment and their lives spun into a turmoil that could have been avoided altogether. Do not delay. Call us today.

8. My friend or family member is in jail and bond has been set at an amount that is going to wipe me out financially, what should I do first: (a) get a bail bondsman, or (b) hire an attorney?

If bond is set at an excessively high amount, you can probably save thousands by hiring us first to file a Writ of Habeas Corpus - Motion to Reduce Bond. Our attorneys will not only file the Writ, but also guide you down the road successfully defending your loved one.

Typically, most bail bond companies will require you to pay 10% of the amount of the bail up front to post your bond. For example, if bond is set at $50,000, then you would have to pay the bail bondsman $5,000 up front to get out of jail and you will not get that money back and you still wouldn't have a lawyer.

However, if our attorney fees are only $5,000 and after filing a Writ of Habeas Corpus and convince a District Judge that the magistrate's bond is too high and he reduces the bond down to $10,000, then you would only be out of pocket $1,000 up front for the bail bondsman plus you would have already retained us with the $5,000 retainer (a total of $6,000 between paying the bail bondsman as well as paying our attorney fees to defend you). Kind of a "no-brainer."

9. What should I do if I am being investigated for a felony?

Talk to us immediately. Before the Grand Jury convenes on your life-changing event/decision of whether or not to indict you, we can put together a "packet" to submit to the District Attorney for the Grand Jury. But, time is of the essence. Run, do no walk to our office if you are under investigation for any crime.

10. How does a felony prosecution work?

A felony allegation is so serious that it means that the citizen under investigation could be reprimanded into the custody of the Texas Department of Correctional Facilities for a period of up to 99 years or life.

For a misdemeanor prosecution to begin, all the state has to do is get a peace officer to sign a "probable cause affidavit," an Information is then filed and the case begins.

However, a felony prosecution is so grave that before the case can formally proceed, a panel of 12 citizens must be empaneled at a Grand Jury Meeting and find that probable cause exists that a felony offense occurred against the peace and dignity of the State of Texas. That is not the trial you see on Boston Legal or other shows on TV. The Grand Jury meeting is behind closed doors and is the ultimate game changer in felony cases.

Without exception, a citizen accused of a felony offense should not attend nor submit any testimony to the Grand Jury without an attorney as that can be used against him/her at their actual trial in front of the Petite Jury (what you do see on TV).

11. Is the outcome of my case going to have an impact on my life?

YES. Even if you avoid a lengthy jail sentence, a conviction will define the rest of your life.

There are four types of criminal convictions that will affect your long-term ability to obtain employment:

I. Felony: Employers know that if they hire a convicted felon and he/she misbehaves, they are going to get sued.

II. Sex Offenses: Employers know that if they hire a sex offender, and the convicted sex offender acts improperly towards a co-worker or customer, they are going to get sued.

III. Violent Offenses: Employers know that if they hire a violent offender, and the violent offender later threatens or hits a customer or co-worker when a heated issue arises, they are going to get sued.

IV. Theft Offenses: Employers do not want employees stealing out of their cash register, so they are not going to hire someone with a theft conviction.

12. Since I was arrested, is there a chance of avoiding a lifetime of problems after this disaster?

YES, NO QUESTION...IF YOU GET US HIRED IMMEDIATELY.

DO NOT GIVE UP. To arrest you, the police only needed "probable cause." That is very easy for them to allege in most cases. However, the District Attorney must prove you guilty "Beyond a Reasonable Doubt" in order to actually convict you. That is the highest evidentiary standard in the law. Just because you have been arrested DOES NOT mean that you are guilty. Do not forget that "probable cause" is only a tiny fraction of the evidence the government needs to hold you liable. Remember that you are presumed to be innocent under the Texas Code of Criminal Procedure!

WE CAN HELP YOU. You do not deal with the criminal justice system on a daily basis. We do. What people do not know about their constitutional rights will hurt them. You would not go into a gun fight with a butter knife. If you performed surgery on yourself, you would likely bleed to death. Ask yourself why you would even consider going into court facing incarceration without the best representation.

CALL US TODAY. Pelley Law Office, L.L.P. has helped thousands of clients in their time of need since 1974 ... and we will be happy to help you in your crisis. See a Pelley attorney today before it is too late.

13. How can I get my bond reduced?

Hire us to file a Writ of Habeas Corpus - Motion to Reduce Bond before doing anything else. Pursuant to Article 17.15 of the Texas Code of Criminal Procedure, entitled "Rules for Fixing Amount of Bail," we have successfully argued on most occasions that the bail that was currently set was excessive and unconstitutional based on the following reasons:

1. The bond is far above of what would be sufficiently high to give reasonable assurance that the undertaking would be complied with;

2. The power to require bail is currently set so high as to make it an instrument of oppression;

3. Considering the nature of the offense and the circumstances under which it was allegedly committed, and considering the same amount is excessive;

4. Considering the Defendant's ability to make bond, and the proof taking upon the same;

5. Considering the future safety of the alleged victim of the alleged offense and that of the community.

14. I was arrested for possession of illegal drugs that I was caught with red-handed, am I certain to go to prison or be put on probation?

ABSOLUTELY NOT! YOU HAVE FOURTH AMENDMENT CONSTITUTIONAL RIGHTS!

If you have been arrested for possession or delivery of drugs, than it is absolutely imperative that you hire the right trial lawyer who can properly assert your constitutional rights. When you have an encounter with a police officer, you have many Fourth Amendment protections against warrantless searches and seizures. First of all, the police had to have a reason to come into contact with you. Secondly, they had to be looking in an appropriate place where they found something they reasonably thought was drugs or contraband. YOUR Constitution entitles you to privacy rights and shelter from improper police intervention.

The police often go beyond the legal boundaries of where they can search for drugs or contraband. Whether on your person, in your car, or in your house-you have privacy rights that the police cannot violate. If they do, then the evidence can be thrown out and your case dismissed.

15. I am an educator and have been contacted about an improper relationship with a student. What should I do?

DO NOT TALK TO ANYONE. KEEP YOUR MOUTH SHUT AND CALL US RIGHT NOW! You have heard and read the news, the hot button for prosecuting authorities right now is Improper Relationship With a Student cases. District attorneys are making an example in these types of cases, and educators are going to prison.

The very least of your worries is being placed on administrative leave by the school district, so do not speak to anyone about these allegations except for our attorneys!

TEXAS CODE OF CRIMINAL PROCEDURE 21.12

An employee of a public or private primary or secondary school commits an offense if the employee engages in:

(a) Sexual contact, sexual intercourse, or deviate sexual intercourse with a person who is enrolled in a public or private primary or secondary school at which the employee works; or

(b) Conduct described by Second 33.021, with a person described by Subdivision (1), regardless of the age of that person.

This type of offense is most often indicted as a second-degree felony, punishable by confinement in the Texas Department of Correctional Facilities from 2 to 20 years and/or up to a $10,000 fine.

If you or a loved one is under investigation for Felony Improper Relationship With a Student, do not delay hiring our experienced felony trial lawyers. The longer you wait, the stronger the case the State of Texas will build against you.

16. If I am under investigation for a sexual offense, besides prison time what kind of additional problems am I facing?

Sex Offender Registration:

Pursuant to Tex. Code Crim. P. ART. 62, unless your case is dismissed or you are acquitted, then you will be required to register as a Sex Offender. Every time you move residences, you will be required to re-register 7 days before you move and within seven (7) days after you move.

If you go somewhere for 2 days, three times a month, then you must report to the authorities in that city or county as well. Failure to comply with registration requirements is another felony. Depending on the circumstances of the particular case, the range of punishment can be 180 days to 20 years in prison for EVERY SINGLE violation.

The police will also automatically be provided your Sex Offender status upon request when they run a check on your driver's license or license plate number. In addition, the Texas Attorney General has authorized local governments as of 2003 to broadcast information about registered sex offenders on a local cable TV channel because it is "public information."

17. How do I escape my criminal record and am I eligible to file a Petition for Expunction or Non-Disclosure?

If you were acquitted at trial or the charges against you were eventually dismissed, then you can have your criminal record expunged after the applicable statute of limitations runs. After the expunction, the arrest would be removed from your criminal record completely. As a matter of fact, even if the statute of limitations has not run, you are probably able to file a "Waiting Period Expunction."

In cases where you are not eligible to obtain an expunction and you were not convicted, it is probably still possible to file a petition for non-disclosure. Then your arrest record would be sealed from all but a select few agencies.

The bottom line is, this is a very complicated of law. A very small percentage of attorneys have a firm grasp on how to clean up your criminal record and mistakes of the past. Call us today for free and sound advice. You will be glad you did.

18. I was arrested for an assault offense, is there a chance that I can avoid a criminal conviction?

ABSOLUTELY. WE GET MORE DISMISSALS ON ASSAULT CASES THAN ALL OTHER TYPES OF CRIMES COMBINED. But, you have to know what you are doing or it can end in a life shattering disaster!

Even in the toughest cases, there are almost always a number of defenses available. We will pick apart the government's case by our own independent investigation of:

· Was the accused acting in self-defense?

· Was the accused protecting an innocent third party?

· Was the crime committed accidentally?

· Can the identity of the accused be proven?

· Was it mutual combat - a fight agreed to by both the accused and the other person?

· Is there any evidence of physical injuries?

· Were there any eyewitnesses besides the citizen accused and the complaining witness?

- The list of inquiries goes on endlessly. You just have to know what to ask.

If you were involved in a bar fight, street fight or domestic dispute, and find yourself facing assault charges of any kind then you need us...and you need us right now.

Aggravated assault and assault with a deadly weapon charges are serious felony allegations in Texas. You can spend up to 99 years in prison under certain circumstances. Pick up that phone and protect yourself right now.

19. My probation officer has filed a Motion to revoke my probation. Is there any hope to avoid a lengthy jail/prison sentence?

ABSOLUTELY. CALL US TODAY. Many, many times in the past we have been able to help our clients avoid prison time and continue their regular or deferred adjudication probation sentences. That has been the case even sex case violations. Our attorneys have successfully won many probation violation cases arising out of failed urinalysis (dirty UA), arrests on subsequent crimes, failures to report and other violations of the terms and conditions of probation. Do not delay. The State's burden to put you behind bars following a Motion to Revoke is very low but our success rate is incredibly high. You need to call us right now.

20. My child has been arrested as a juvenile, what do I do and what is "Delinquent Conduct?"

Delinquent conduct is generally defined as conduct that if committed by an adult could result in imprisonment or confinement in jail. Typically, once the authorities believe that " probable cause" exists that a juvenile between the ages of 10 and 17 committed an offense against the State of Texas (and if the juvenile is not caught in the act by the authorities) then a Directive for Apprehension is issued.

The Directive for Apprehension is like an arrest warrant for the juvenile. Typically, when the juvenile suspect is apprehended, they are taken to the juvenile detention center. The juvenile is entitled to a hearing on whether or not they will be released pending trial within 10 days and can be represented by counsel. The magistrate at the detention hearing will make the decision of (1) whether or not the juvenile is a flight risk (in other words, does the magistrate/judge feel confident that the juvenile will return to court to face the charges); and (2) whether or not the juvenile would be a danger to him/herself or others if released into the custody of their guardian prior to facing the charges. It is imperative to have competent legal representation at that 10-day hearing so that the juvenile is well represented from the beginning of the case. Anything that the juvenile says or does while incarcerated at the detention hearing can and will be used against them at trial.

21. Is my minor shoplifting arrest going to affect my life in a bad way if I do not get an attorney who knows how to get this off of my record?

NO QUESTION. Maybe you think that the worst consequence of a guilty plea or conviction for shoplifting is the embarrassment you feel. Think again. Shoplifting, like other theft offenses, is considered a "crime of moral turpitude." A conviction for shoplifting is like an indictment against your character, one that will almost certainly impact your employment opportunities forever.

22. I was arrested for Burglary of a Habitation. Is there a chance this case can be thrown out altogether?

YES, BUT YOU ARE WALKING ON THIN ICE. If you have been arrested for Burglary of a Habitation, it is wrong to assume that you will be convicted and go to prison for 20 years. But, it you are dreadfully wrong with false hopes that this charge might go away without serious implications. Judges and jurors hate the idea of someone walking into their own homes. You need us right now.

In every encounter with a police officer, you have many Fourth Amendment protections against warrantless searches and seizures. First of all, the police had to have a reason to come into contact with you. Secondly, they had to be looking in a very specific place where they found something they thought was stolen if they actually had a search warrant.

The police often go beyond the legal boundaries of where they can search for contraband or stolen items. Whether on your person, in your car, or in your house-you have privacy rights that the police cannot violate. If they do, then the evidence can be thrown out and your case dismissed. But, your attorney has to know how to assert those rights or you completely waive and give them up. We can help you do that while most lawyers cannot.