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The 167th District Court

The Process of a Felony Arrest in Texas

Commission of the Offense and Arrest

There are two means by which a case may enter the criminal justice system. In one scenario a suspect is arrested at or near the scene of an alleged crime by officers or witnesses who observe the illegal conduct. (Examples: DWI, shoplifting, drug delivery). The second involves situations where a crime is reported and a suspect is later developed from collected evidence. (Examples: home burglary where fingerprints are lifted, store robbery where store video or a line-up is used to identify the suspect, sexual assault where DNA evidence is discovered and tested.)

In scenario one, immediately after arrest, the arresting officer must file a sworn affidavit and complaint, setting out the offense and the alleged conduct. A magistrate will then review this document to determine if sufficient evidence exists to commit the accused to jail. In scenario two, based on the evidence police gather, an arrest warrant will be issued.

This warrant is a written order signed by a magistrate to a police officer ordering that a specific person accused of an offense be taken into custody. It must state the name of the accused, or provide a reasonably definite description that would allow the officer to identify the suspect as the person appearing on the warrant. It must also state that the accused has committed some offense that the state has deemed illegal. The reasons for the arrest must be clearly stated in the warrant.

After the suspect has been arrested in either scenario, he is taken to jail and booked. At that time, the police must choose whether or not to send the case on to the prosecutors so that formal charges can be brought against the accused. The decision to do this will be based on many things, including the amount of evidence available against the suspect and whether that evidence was gathered in a legally acceptable way that will hold up in court. Once the case is sent to the prosecutor's office, the responsibility to continue the process belongs with the prosecutors.

Shortly after the arrest, the defendant is taken before a magistrate to be formally charged. At this hearing, the defendant is told specifically what law he is accused of breaking, and is read his Miranda Rights. These are the basic rights guaranteed to all suspects which are familiar to us from TV, movies and literature. Those defendants who cannot afford a lawyer can also request to have one appointed during or in conjunction with this hearing.

During the presentation before the magistrate, the defendant may also have his bail set. Bail is a security, given by the defendant to assure the court that he will appear to answer the charges at trial. The amount of bail varies, and many factors are taken into account when determining what amount is appropriate for the defendant. The defendant may post a cash bond (deposit the full amount with the sheriff), a surety bond (professional bondsmen or other qualified person guaranties appearances, usually for a percentage fee), or personal recognizance bond (where the defendant is released on a promise to appear if the judge finds such bond appropriate).


In Texas, a charge in a felony indictment must come from the grand jury. The grand jury is a group of citizens who are appointed to examine evidence and decide if there is reasonable cause for the defendant to be charged with a crime. If the grand jury does find that there is enough evidence to charge the defendant, an indictment is issued, setting out the offense charged. If the grand jury determines that there are inadequate grounds for prosecution, a "no-bill" is issued. If a no-bill is issued, the defendant must be released from custody. However, if a true-bill is issued the defendant remains in custody or on bond pending trial.

After the indictment is issued, the defendant must be arraigned. This means that he must be brought before the trial judge. The defendant's name is called and the indictment is read in open court. At this point the defendant must enter a plea. He may plead guilty, not guilty, or in some cases no contest. A guilty plea is an admission by the defendant that he has committed the crime. This is often done after negotiation between the prosecutor and defense attorney have resulted in a plea agreement. The defendant agrees to plead guilty and the district attorney agrees to a lesser punishment than might be expected after a trial and conviction. This is called plea bargaining. The majority of cases in Texas end with a guilty plea. A not guilty plea contests the charges and challenges the state to prove beyond a reasonable doubt that the defendant committed the crime, resulting in a trial. Finally, a plea of nolo contendere is a plea of no-contest. It has the same effect as a guilty plea under criminal law.

Prior to trial pre-trial hearings will often take place. These involve legal questions such as the sufficiency of the indictment, admissibility of evidence and the scheduling of the trial.


During the trial, the defendant is also guaranteed many rights specified by the Constitution. These include the right to an open and public trial, the right to call and confront witnesses and the right against self-incrimination. They also include the right to a trial by jury, although the defendant, with the agreement of the state, may waive this right and allow a judge to decide the case.

The trial by jury begins with the selection of the jury. A panel of approximately 50 potential jurors is assembled and after each side and the judge question the panel, twelve jurors are chosen to hear the evidence. Based on the evidence presented to them during the trial, the jury must determine that the defendant is guilty of the crime beyond a reasonable doubt before a guilty verdict may be returned.

Once the jury has been selected, the trial will begin with the district attorney reading the indictment against the defendant and the defendant will enter his plea before the jury. The attorneys, both prosecution and defense, will then make their opening statements to the jury. This is an opportunity for both sides to present a general outline of their case, and the evidence they expect to present.

After opening statements, the prosecution will begin the presentation of its case. This involves presentation of witnesses, as well as any exhibits that indicate that the defendant is guilty of committing the crime. After the prosecutor has questioned each witness, the defense attorney has the right to cross-examine that witness. The prosecution then has the right to re-direct, or re-question, the witness. After calling all of its witnesses, the prosecution rests its case. The defense then has the opportunity to call witnesses of its own, who may be cross-examined by the prosecution. At the conclusion of its case, the defense also rests. The prosecution then has the opportunity to present rebuttal witnesses, in order to discredit the defense's case, and the defense has the same opportunity. There are many specific rules that the attorneys must follow as to what evidence can be admitted into court and how that evidence can be used.

When both sides have rested, the jury will be read instructions on how to reach its verdict. These instructions, which are written by the judge, with assistance from the prosecutor and defense attorney, are called the jury charge. The jury charge is followed by closing arguments of the prosecution and defense. Because the prosecution must meet such a heavy burden of proof they present their closing argument before the defense, and then are allowed a rebuttal argument after the defense's closing. These closing arguments are the final opportunities the attorneys have to speak to the jury before the jury deliberates and reaches its decision.

The jury then goes to the jury room where they will deliberate until reaching a verdict. During jury deliberations, jurors may not speak with anyone but other jurors, to avoid any possibility that the jury will be unduly influenced. In criminal cases, the jury must come to a unanimous conclusion for the defendant to be found guilty. Once the jury has reached a conclusion, it informs the bailiff, who tells the judge, and the court is called back into session. The judge will then read the verdict in open court. If the jury cannot come to a unanimous conclusion a mistrial is declared and the jury is dismissed. The prosecution must then decide if the case is worthy of a second trial.

If the defendant is found not guilty he is released and cannot be retried for that offense. If the verdict is guilty the sentencing phase of the trial will begin. Prior to the trial, the defendant will have specified whether the judge or jury will determine his punishment. The sentencing phase of the trial is similar to the guilt or innocence phase. Both the prosecution and defense can present witnesses with relevant testimony concerning punishment. Evidence may be offered as to any matter the court deems relevant, including the prior criminal record of the defendant, reputation and character evidence involving the defendant, and other bad acts or conduct of the defendant. Mental health professionals may also testify as to the defendant's mental state. The judge or jury will then deliberate on the proper punishment and issue a verdict. The punishment can include a fine, jail or penitentiary time, or probation.


Once the trial is concluded many things can occur. If the defendant is found not guilty, the process has come to an end. The prosecution cannot appeal the findings of the jury. If, however, the defendant is found guilty, he does have the right to appeal the verdict to an appellate court. The appeals court will then decide if any error was committed during the trial which would require a reversal and retrial or dismissal of the charges.

Last Modified: Friday, June 20, 2008 12:04 PM