WHAT YOU SHOULD KNOW ABOUT THE

CRIMINAL TRIAL PROCESS.

Houston Criminal Defense Attorney John T. Floyd provides vigorous

representation for his clients through every stage of the criminal trial
process. It is a critical process that demands diligent legal representation
from the initial criminal investigation through any final appeal.

The foundation of the American criminal judicial process is based upon the
Fifth Amendments prohibition that no individual shall be denied life or
liberty without the benefit of due process and equal protection of the law.
The Founding Fathers were dedicated the principle of establishing an
adversarial system of justice that rejected all the features of European
inquisitorial systems of justice. They developed a concept of due process
of law that extended to the individual a panoply of protections against
the arbitrary power of the government. These due process protections
were stated in the Sixth Amendment to the United States Constitution:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the State and district wherein the
crime shall have been committed, which district shall have been
previously ascertained by law, and to be informed of the nature and
cause of the accusation; to be confronted with the witnesses against him;
to have compulsory process for obtaining witnesses in his favor, and to
have the assistance of counsel for his defence.

Equal protection and additional due process protections were later expanded
by the Fourteenth Amendment to the United States Constitution and
made applicable to all the States:

Section 1. All persons born or naturalized in the United States, and subject
to the jurisdiction thereof, are citizens of the United States and of the
State wherein they reside. No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its jurisdiction
the equal protection of the laws.

In Texas, Article 1, Section 10, of the Texas Constitution outlines the

“rights” of any individual accused of a crime:
 • In all criminal prosecutions the accused shall have a speedy public
trial by an impartial jury. He shall have the right to demand the nature
and cause of the accusation against him, and to have a copy thereof.
He shall not be compelled to give evidence against himself, and shall
have the right of being heard by himself or counsel, or both, shall be
confronted by the witnesses against him and shall have compulsory
process for obtaining witnesses in his favor, except that when the
witness resides out of the State and the offense charged is a violation
of any of the anti-trust laws of this State, the defendant and the State
shall have the right to produce and have the evidence admitted by
deposition, under such rules and laws as the Legislature may hereafter
provide; and no person shall be held to answer for a criminal offense,
unless on an indictment of a grand jury, except in cases in which the
punishment is by fine or imprisonment, otherwise than in the
penitentiary, in cases of impeachment, and in cases arising in the army
or navy, or in the militia, when in actual service in time of war or
public danger.

The right to counsel, privilege against self-incrimination, and trial by jury

have been the touchstone of due process of law rooted in the foregoing
constitutional provisions. All other due process/equal protection rights
emanated from this trilogy of constitutional guarantees. The following are
the abbreviated stages of the criminal trial process during which these
guarantees should be remembered and forced into play:

• During police investigations that collect physical and eyewitness

evidence designed to identify and arrest a suspect for the offense
committed.
• In the investigatory stage a suspect enjoys the protection from
unreasonable searches and seizures by law enforcement authorities.
• In the investigatory stage a suspect has a right to retain counsel of his
choice.
• Once taken into custody a suspect has a right to silence, appointed
counsel if he/she cannot afford one, and right to reasonable bail
(unless bail is barred by law in capital cases).
• The decision by the State’s prosecuting attorney, who has tremendous
discretion in these matters, to decide, first, whether the suspect should
be prosecuted, and, second, if so, for what charge he/she should be
prosecuted.
 • Charging decisions can be determined through a preliminary hearing
or presentation of the case to a grand jury.
• Once the State has leveled a specific charge, the suspect becomes the
accused who can then challenge the substance of the State’s case
through pretrial motions and statutory regulated discovery.
• Pretrial preparation includes informal exchanges and negotiations
between the defense attorney and prosecutor designed to protect the
accused from “overcharging” and prosecutorial misconduct.

The Sixth Amendment right to an attorney attaches at the initiation of the

adversarial process whether by way of formal charge, preliminary hearing,
indictment, information, or arraignment. See: Brewer v. Williams, 430 U.S.
387, 398 (1977). At least after a formal charge has been filed an accused has
the absolute right to rely upon an attorney as a constitutional buffer between
him/her and the State. See: Maine v. Moulton, 474 U.S. 159, 176 (1985). A
formal charge transforms the suspect into an accused. See: Kirby v. Illinois,
406 U.S. 682, 689 (1972). The accused at this point in the adversarial
process “finds himself faced with the prosecutorial forces of organized
society, and immersed in the intricacies of substantive and procedural
criminal law” with the need for a skilled criminal defense attorney. Id.

In Texas, the adversarial criminal trial process commences when an

individual is arrested pursuant to a warrant obtained through a complaint
filed with a court. See: Barnhill v. State, 657 S.W.2d 131, 132
(Tex.Crim.App. 1983). From this juncture forward, the accused enjoys the
right to assistance of counsel at every “critical stage” of the prosecution.
See: Upton v. State, 853 S.W.2d 548, 553 (Tex.App. 1993). A pretrial stage
is considered “critical” if the accused needs assistance in coping with legal
problems or assistance in meeting his adversary. See: Green v. State, 872
S.W.2d 717, 720 (Tex.Crim.App. 1994). Any post-indictment police
interrogation is certainly a “critical stage.” See: Westbrook v. State, 29
S.W.2d 103, 117 (Tex.Crim.App. 2000).

Texas Code of Criminal Procedure article 33.03 (Vernon 2003) provides that
a criminal defendant has a statutory right to be present during his/her trial.
See: Routier v. State, 112 S.W.3d 554, 575 (Tex.Crim.App. 2003). The trial
begins when the jury is impaneled and sworn. See: Sanchez v. State, 138
S.W.3d 324, 329 (Tex.Crim.App. 2001). A trial is fundamentally unfair, and
constitutionally unacceptable, if the defendant is denied counsel at any
critical stage of his/her trial. See: United States v. Cronic, 446 U.S. 648, 659
(1984). Whether a particular stage is “critical” is determined by counsel’s
usefulness at the time and whether the defendant lost any rights at that stage.
See: Garcia v. State, 97 S.W.3d 343, 347 (Tex.App.-Austin 2003, no pet.).

The following proceedings have been determined to be a “critical stage” in a

criminal case:

• The taking of evidence on the defendant’s guilt.

• Final summation or closing argument.
• Preliminary hearings.
• Arraignment.
• Jury selection.
• In camera hearing on the admissibility of evidence.
• Punishment.
• Appeal.

See: Medley v. State, 47 S.W.3d 17, 22 (Tex.App.-Amarillo 2000); Mempa

v. Rhay, 389 U.S. 128, 134 (1967).

John T. Floyd is committed to providing skilled advocacy in his criminal

defense work, and protection of the individual from the awesome powers of
the State. He stands ready to assist, and defend, anyone facing the
investigatory and prosecutorial powers of the State.