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How to Win and Keep Your Criminal Record Clean

By February 9, 2024February 13th, 2024Criminal Defense, Criminal Record Sealing

How to avoid a conviction if you have been charged with a crime?

Hi, I’m Jeff Hampton, the managing partner of Fort Worth Criminal defense attorneys. I want to answer a question I get all the time. “How do I avoid a conviction if I’ve been charged with a crime?”

The number one thing you should do right out of the gate is hire an attorney early in the process. The reason why I say that is that there is work being done behind the scenes.  Soon after you have been arrested the file is sent by the detective straight to the District Attorney’s office. A DA (District Attorney) is laying eyes on it and making assumptions and determinations, based on only one side of the story, which is the police. In fact, there are many times there’s a decision made to both file a case and to sometimes indict a case with the grand jury, by only hearing one side of the story. So, it’s really important that you hire an attorney.

Now, let’s say you hire that lawyer. What should you do next? Your attorney should then be getting access to the police reports, the video, and all the other evidence associated with the entire file.  The attorney will have you come in, sit down, and take a look at everything to get your feedback. It’s not going to be surprising when you take a look at that evidence from the police that it’s going to be pretty one sided.  It’s probably not going to be correct, because they will have written the reports after you were arrested to make a determination to justify that arrest. So, many times there will be an opportunity for you to be able to look through that information, provide that information back to your lawyer, and now your lawyer can sit down to create a defense strategy.  They can, then, come up with a plan of attack. For example, let’s say maybe there were some things that were done illegally. Sometimes we find what looks like, in the police report, a supposed legal search that ends up being an illegal search, after looking at the video. Maybe there was a confession “so-called”, or maybe there are some things that the police are claiming that you said. Once the actual video is reviewed, along with other evidence, it can be determined that it may not have been a confession at all. Perhaps, it was just the police filling in the blanks, maybe they violated the confession statute, or they didn’t read you your Miranda rights. Now, that confession can possibly be thrown out.

LAWYER: How to Win Your Criminal Case

There are many things that can be done early in the process. Your attorney could file a motion to suppress to get that evidence thrown out. Another thing that is really important, is if your case is an actual felony, it must be indicted by a Grand Jury. A grand jury is a panel of citizens that listen to evidence and essentially filter out bad cases. That’s, kind of, the point of it all. The reality of it is that unless you hired an attorney early in the process and unless they take your information and present your side of it, then they’re only looking at one side of the story. They only get to hear what the cops had to say. So, overwhelmingly, what do you think is going to happen? They’re going to believe whatever the police said because they didn’t hear any other side of the story. That usually happens within the first 30 to 60 days after your case has been filed so it’s important to have an attorney and get that done. Having an attorney involved is critical, early in the process.

Additionally, your attorney really needs to find a way to get the prosecutor to listen to your side of the story, and that is more effective when done early in the criminal justice process.  Look, I used to be a prosecutor, and these prosecutors, many times, do not want to indict bad cases.  There have been many times I’ve been able to get an ally with a prosecutor where they began to realize, maybe, I don’t want to try this case. This is a garbage case. I need to get rid of it at the grand jury phase because everything in the grand jury is secretive. That case can, then, be kind of pushed off and be done with at that point in time. That’s why it’s very important to hire the right attorney. It’s really important to hire an attorney that knows the area that you’re in, knows the county and state for which you were looking to get a defense. I mean, think of it this way. They need to know the nuances.  Have they dealt with this type of judge? Have they worked with these prosecutors before? What kind of track record do they have? Have they actually gotten the results that you’re looking for, similarly, with this particular prosecutor, and in this court?  If not, the reality of it is that you need to know that there’s an attorney that you’re working with that has some bit of a track record of being able to establish the results that you’re looking for.

Now, what if it’s your first-time offense? If it is your first-time offense, you may be able to examine a diversion program. Not only could this help you to avoid a conviction, but it could get your case dismissed and get this charge off your record. For instance, in the Dallas Fort Worth area, there are a number of diversion programs that could be helpful. There are the drug diversion programs, there’s the veteran’s program, there’s the mental health diversion program, and there’s the first offender drug program. Now, why do I say that well? I could go through a list of additional programs that are out there.  Some people might say “I don’t need a program.” Sometimes people do need a program because it is something that could be a support mechanism for them. The real carrot at the end of the stick, on the diversion programs, is that if you successfully complete these programs at the end, your case is dismissed and many times you’re eligible for an expunction, complete destruction of your records.  This can happen sooner under a diversion program than if your case was just dismissed for lack of evidence. I know it doesn’t make a lot of sense why they would do that, but these diversion programs are in place, and they’re funded by the state.  Essentially what it does is pull your case out of the court system. For example, in the Fort Worth area, which is in Tarrant County, you can do what’s called the DPP program (the deferred prosecution program). Literally if it is a misdemeanor, the whole thing could be over within four months. All you have to do is mail in a form once a month, for four months, and stay out of trouble. Don’t get arrested and then either be in school or be working a job. So, some of these things are very quick. Instead of having to wait two years to get this thing expunged off your record, under a diversion program, you could get it done as soon as four months. So that’s one option we can talk about.

Next, an option we can talk about is a possible dismissal for lack of evidence. This is the old fashioned, “The state can’t prove it”. Remember, the prosecutor must prove the case beyond a reasonable doubt. At no time does the burden of proof shift over to the defense. The prosecution must always prove the case.  As a result of that a good, experienced attorney can come in, exploit the weaknesses of the case, and convince them to dismiss. Sometimes we have been able to go in and talk directly to the prosecutor, exposing the fact that it’s a weak case, which can convince them to dismiss it for lack of evidence. For example, we had a client that was wrongfully charged with the crime of harassment. His ex-wife was trying to bait him into this harassment charge. She would try to make him think that her and one of his children were hurt or having some sort of medical episode.  Then he would begin to call, and she would ignore him. He would call and call and call until there was this log of multiple calls.  She would not respond to his multiple text messages or calls back and forth. Of course, she then takes that to a detective who believes her claims. The next thing you know, he’s staring at a harassment charge. Once we exposed what her real motive was, the prosecutor understood, and he did not want to have any part of that in a possible trial. That’s the other point you can make is a dismissal for lack of evidence.

Well, what if there’s a gray area?  For instance, what if the evidence is a little questionable about whether or not it can be proven or not? Another option is, what’s known as, a conditional dismissal. A conditional dismissal means that the prosecutor will agree to dismiss your charge in exchange for you doing something in return. For instance, we’ve had many first-time shoplifters or drug offenses where we can convince the prosecutor to turn around and dismiss your charge. For a drug offense, we can arrange for you to take an online drug class and a clean drug test for a period of time.  If it’s shoplifting, maybe you do an online theft prevention class and some community service hours. Now, some people might say I don’t really want to do those things. Does that make me look guilty? Absolutely not. The only reason that you would even consider doing a conditional dismissal is that you want that same dismissal in hand. That makes you eligible to still get the entire thing expunged from your criminal record. That’s a conditional dismissal.

Now, let’s talk for a moment about a reduction to a lesser charge. This is a strategy where the actual evidence may establish that a crime has taken place, but maybe it’s debatable about whether, or not, it was as charged. A good example of this is, we’ve represented many people for the crime of aggravated assault, deadly weapon. Maybe it was by threat, and no one actually fired the gun, instead it was just being held. We’ve had many aggravated assault, deadly weapons charges dropped down to lesser charges. Some we had dropped to either assault or a terroristic threat.  We have even had it where we got a discharge of a firearm in a municipality, because at no time, objectively, was the “so-called” victim ever in fear of bodily injury or death. I use that example to say that really experienced attorneys, that are aggressive, can often come in and convince the prosecutor to drop that charge from an aggravated assault, which is a second-degree felony, down to a misdemeanor. That allows you to stay out of jail, be able to avoid a conviction, and get this thing off your criminal record.

The next thing we look at is not only a reduction of charges, but let’s talk about what happens when evidence pretty clearly shows that something happened here.  One of the things you can do, many times, is get a deferred adjudication.  This is kind of a last-ditch thing for us. We prefer our clients, if at all possible, to get one of these other options we’ve discussed.  What is a deferred adjudication? Deferred adjudication essentially means you must make a plea before the judge, but instead of the judge finding you guilty, the judge defers a finding of guilt. The judge places you on probation for a period of time and upon completion of that probation, the case is administratively dismissed. Now it is true, you avoid prison, you avoid jail, and you avoid a conviction, so to speak.  The real questionable area on this is whether, or not, you can get it off your record. A deferred adjudication does not make you eligible for an expunction, but it can make you eligible for a non-disclosure. If you take deferred adjudication on some crimes, like sex-based crimes, you may not be able to get those nondisclosed or sealed from your criminal record. That’s why it’s so important to work with an attorney that knows how to get you a good result, but also knows the law, as it relates, to getting these crimes off of your criminal record. So that’s deferred adjudication.

Finally, what’s one of the last things you can do? You, obviously, have a right to a jury trial. Every person has the right to a jury trial. If the state persists in moving forward with your case, and the reason why I’m saying that is, it can many times be risky, but sometimes it’s required. I’ve had clients who’ve actually said things like “well, you know I’m 100% innocent and I want to move forward with trial” and you have a right to do that.  An attorney cannot control who shows up on the jury panel that day, so you may have an 85-year-old Church of Christ grandma, which nothing against the Church of Christ grandma, it’s a wonderful thing. The reality of it is she may come in and believe anything and everything that the police officer says even if it doesn’t make a whole lot of sense.  Part of why it’s important to have a good lawyer is that jury selection is one of the most important parts of a criminal jury trial. You want to try to avoid having those people on your jury that might be biased against you.  If you have a 60-panel jury and you’ve got ten of them that are all similar, then you may not be able to get all of them off the jury, so there is some risk moving forward with the jury trial.  This is why all of these other options we’ve discussed should be exhausted before you move forward with that process. Remember, if you do have to go to trial, there must be a unanimous verdict against you in order to find you guilty. So, if it’s a misdemeanor charge, there must be 6 jurors in Texas that are unanimous in finding you guilty. If there is a felony charge, there must be 12 jurors that are unanimous in finding you guilty, and all it takes is one. If there’s one who says, “I don’t know, I’m holding out on this”, then there can be a mistrial and you will not be found guilty.

You may be thinking thanks Jeff, but what role do I have in avoiding a criminal conviction? How do I make sure that I am contributing the best I can when I’m working with my lawyer? One of the first things you can do is to be patient. I can tell you, speaking of the cases in the North Texas area, these prosecutors have got a very high caseload, particularly since COVID.  They can be working anywhere between 200 to 300 cases. That’s no excuse for them not to do their job, but the reality of it is “to the patient goes the prize”.  Many prosecutors, and I know this because I used to be one, are trained to come at people (even weak cases) with offers that they know they can’t sustain if the case goes to trial. The reality of it is experienced, aggressive attorneys will absolutely say no and continue to push that prosecutor all the way up, closer to a trial setting. As that case gets closer to a trial prosecutors begin to cave. That offer begins to come down, and now there could be opportunities you’re missing out on if you rush the process. Many times, you have to let the wheels of justice, that move very slowly, continue to move until things start to move in your favor. We have literally had cases where someone starts off with a 10-year prison offer and by the time it gets all the way up to a trial setting, that individual is now looking at a misdemeanor charge, or they’re on probation. A much more favorable result!  Don’t just let your lawyer do everything that they’re doing. You need to review your evidence. You need to provide feedback. Your lawyer was not there. They don’t know for sure what happened. They’re only getting one side of it. If they don’t hear it from you, you need to absolutely provide feedback and let people know exactly what you were doing and give that feedback and any evidence so that your attorney can actually help you in the process.

One of the things I want to talk about is a brag book, particularly if you’re a first-time offender. You know, we’ve represented lots of doctors, lawyers, engineers, and people in professional positions, but also just good people that have never been in trouble before. They’re really being brought in and characterized as criminals. If you did do something wrong, it might have been a lapse of judgment and not that you’re a criminal whatsoever. So, I really like our clients to be able to bring in a brag book, establishing your good character, all these wonderful things about who you are. The reality is that prosecutors are still people and when we can show them that you’re not a criminal they can see that you’re a good person. In this situation, many times a brag book helps your attorney to be able to establish getting that favorable result to kind of push it over the edge.

Finally, never forget the goal. What’s the goal when you hire an attorney and you’re fighting a case? Number one, you always want to find a way to avoid jail time in prison. No one wants to go to jail. Number two, you want to avoid a conviction. You don’t want to be a convicted felon or convicted of anything for that matter. Number three, you want to make sure you can get your case dismissed, if at all possible. Finally, number four, even getting your case reduced to a lesser charge, an experienced attorney can be creative in finding ways to resolve your case.  The ultimate goal is that you can look back and no one can see your case, because you were able to get your case expunged or sealed from your criminal record. These are some of the goals that you should have.  If you have a case in North Texas, we will provide you with a free consultation and free case analysis. I hope this has been helpful for you. I hope you’ll check out our next video series.

Jeff Hampton

After getting his Juris Doctor from the University of Houston Law Center, Jeff Hampton began practicing criminal law in Texas in 2005. Before becoming a felony crimes lawyer, he worked as a prosecutor for the Tarrant County District Attorney’s Office – experience he uses to anticipate and cast doubt on the arguments that will be used against his clients. Over the course of his career, he has helped countless Texans protect their rights and get the best possible outcome in their criminal cases. He has been named one of the 3 Best DUI Lawyers in Fort Worth, recognized by Expertise, National Trial Lawyers, Avvo, and others, and he is Lead Counsel rated.