First, let’s start with a crime. Let’s assume an individual has been suspected of committing a crime and the police believe there is probable cause that a crime was committed.
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“Probable cause” refers to the standard by which a police officer has the right to make an arrest, conduct a personal or property search, or to obtain a warrant for arrest. It is also used to refer to the standard to which a grand jury believes that a crime has been committed (which we’ll discuss shortly). If there is probable cause than an individual committed a crime that person will be arrested.
The Constitution generally favors arrest warrants as opposed to warrantless arrests. If a detective or police officer concludes somebody has committed a crime based on some investigation and evidence (probable cause), an arrest of that suspect can take place pursuant to that warrant. The Code of Criminal Procedure requires that a warrant be signed by an impartial magistrate who reasonably believes that the evidence presented to him in the warrant affidavit establishes that a crime has been committed and that the person named in the warrant either committed the crime or was a party to the crime.
There are also arrests that can be made without a warrant. For a warrantless arrests, an officer is justified in making an arrest without a warrant if the officer reasonably believes that the defendant has committed a misdemeanor or felony in his or her presence. For example, if an officer pulls an individual over for speeding but that individual has alcohol on his breath, the officer can make an arrest for DWI without a warrant if his investigation establishes probable cause that the individual is driving while intoxicated.
Once an arrest is made the defendant is taken to jail and a bond is set by a magistrate. A “bond’ is a set amount of money an accused pays for their freedom in between the arrest and trial. The reasoning behind this is that the accused will not want to forfeit the money by fleeing. Once the case is over, the bail money will be returned.
Most people raise the money for bail from their savings, a loan, or by borrowing from family and friends. If this isn’t possible, a bail bondsman can be contacted. A bondsman is a professional who, in essence, posts the bond for you and charges a fee that comes out of your pocket whether or not you show up for trial.
If the bond can be posted that individual gets to go home and await the next step in his criminal case. If the bond cannot be posted (accused is indigent, bond is set too high, etc) then the person arrested will remain in jail until an attorney can get the bond lowered or a PR bond is granted by the judge. A “PR” bond is one where you simply promise to return for trial. This is called being released on your "own recognizance" or "personal recognizance."
So what happens while an individual is out on bond or sitting in jail? Over the next few days or weeks, the officer who made the arrest (warrantless or pursuant to a warrant) will have written up a police report or offense report regarding that specific case. This report will contain the facts of the case—his involvement of the case, the description of the crime itself, the investigation, contact with witnesses, witness interviews, the evidence, the arrest, etc. This police report is then submitted to the district attorney’s office.
The intake division of the DA’s office reviews the submitted case and they have three options: accept the case, refuse the case, or send the case back to the submitting agency for more information. If a case is refused, then generally the case is over (I say generally because there are always exceptions). If the case is accepted then it’s either referred to a Grand Jury (felony cases) or an Information is filed (misdemeanor cases). An “Information” is the charging document by which the State of Texas formally accuses the individual arrested of a criminal offense. Keep in mind that in misdemeanor cases, there is no Grand Jury to review the case before the charges are formally filed.
In felony cases the Grand Jury is the one who prepares and presents the Indictment (charging document in felony cases). A Grand Jury is a secret proceeding in which nine of the twelve grand jurors must agree there is probable cause for the case to be filed or indicted. Grand jurors have the power to “true bill” or “no bill” the case. A true bill means the case will be indicted and they will prepare and present the indictment.
Once the charging document is prepared—either an information or indictment—the case then gets assigned to a prosecutor. The court clerk will send out a notice of the first court date, the prosecutor will prepare a plea-bargain recommendation, and the accused will be required to show up in court. During and in-between the several upcoming court appearances, a skilled criminal defense attorney will evaluate the case, the evidence, and the law (most defense attorneys begin investigating the case and preparing for trial as soon as possible—long before the case is set for a first court appearance). If somebody has been wrongfully charged or treated, the defense attorney must fight for fairness, their rights, and advocate for justice.
It is important to remember that an accused in Texas (or any state in the United States) is innocent until proven guilty. An arrest or indictment (or information) does not rise to ANY inference of guilty. In fact, the presumption of innocence follows an accused until they plead guilty or are found guilty by a jury of their peers. The burden of proof in every criminal case is on the State of Texas—they have to show a crime has been committed beyond a reasonable doubt; the accused has no constitutional duty to prove his innocence. Oftentimes, the truth behind a criminal offense and the innocence of the accused is flushed out during a trial when evidence is presented by the State of Texas, cross-examined by the defense, and weighed by an impartial jury. This is because “beyond a reasonable doubt,” the standard by which a jury convicts an accused, is the highest burden in law—much higher than probable cause.
