The rules of criminal procedure and the penal code in Texas are established by the Legislature, and are rarely revised or updated. The last time the Legislature engaged in a substantial revision of the [link]289|Texas Code of Criminal Procedure[/link] was in 1965, largely in response to the need to make state procedures for prosecuting violations of Texas law conform to a series of U.S. Supreme Court rulings related to searches and seizures, arrests, and confessions.
The 1965 code - with its sixty-eight sections and hundreds of individual articles - still contains today the basis for the system of criminal prosecution in Texas. Despite this continuity in criminal procedure, some important updates have been made, such as the prohibition on racial profiling (Article 2.131).
The cornerstone of the Texas Code of Criminal Procedure can be found in Article 1.05 of the Code which affirms the basic rights of the accused, including the right to a speedy public trial by an impartial jury, and the right not to be compelled to give evidence against oneself.
These rights, in turn, rest on the principle in American jurisprudence of the presumption of innocence. This presumption has been incorporated in the Texas Penal Code, which defines crimes and appropriate punishments in the state. Section 2.01 of the Penal Code states that:
All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that he has been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at his trial.
We tend to focus on criminal trials when we think of criminal prosecution - a judge, jury, prosecutor, defense lawyer, witnesses, evidence and the accused. But these elements form only part of the larger process. Before a serious criminal case (one that involves a felony) goes to trial, the accused must be indicted for the crime. In this phase of the prosecution the original accusation must be found to have merit worthy of the time, expense and impact on the accused of going forward with a trial. So, the prosecuting attorney - either the district attorney or an assistant district attorney - prepares a formal written accusation charging a person or persons with a specific crime and presents it to a grand jury which decides if enough evidence exists to merit a trial.
If the grand jury agrees that the accusation merits a trial, then it issues an indictment . If not, the accused goes free. In the case of misdemeanors, a grand jury indictment is not necessary. Law enforcement officials or other persons may issue a complaint accusing an individual of a specific crime.
If indicted, the accused can request release from custody for the duration of the trial. Sometimes, the accused may be released on his or her own personal recognizance , a promise to appear as ordered for trial. This is granted only if the crime was not of an aggravated or violent nature, and if the accused has a good reputation as a responsible citizen and is not considered either a threat to the community or a flight risk.
In cases where the defendant is considered a flight risk, but otherwise not a threat to the community, the court may grant release on bail, requiring the accused to surrender a specified sum of cash that would be seized by the court should the defendant flee.
Before a case goes to trial the accused is asked to enter a plea, either guilty, not guilty or nolo contendere (no contest). This last, like a guilty plea, avoids a trial and the case proceeds to the penalty phase. But unlike a guilty plea, it avoids admission of guilt, recognizing that the costs and difficulty of successfully defending oneself are too high to make it worthwhile.
Texas law guarantees a trial by jury in all criminal cases, even those involving minor misdemeanors. However, with the agreement of the prosecuting attorney, defendants may waive this right in all cases except those in which the district attorney is seeking the death penalty. When trial by jury is waived and the judge finds the accused guilty, the judge determines the sentence.
Jury trials often touch the lives of average citizens, who may be called for jury duty . But many criminal cases never go to trial. Instead, prosecutors and defense attorneys frequently engage in a process of plea bargaining, in which the accused agrees to plead guilty to a lesser charge or to the same charge, but with a promise that the prosecutor will seek a lighter sentence from the court. Judges usually accept such plea bargains.
Plea bargaining no doubt expedites what could be a long and expensive process of criminal prosecution. Such economies are even viewed as necessary if our criminal justice system is going to be able to handle its very large caseload. Nevertheless, some critics have raised concern that this process effectively denies a fair hearing of criminal cases, and emboldens prosecutors to pursue cases they would otherwise discard if they had to be brought to trial. In short, plea bargaining risks sending innocent people to jail.