Understanding Options for State Jail Felony in Texas
May 25, 2016 12:46 PM   Subscribe

Posting for a friend: Someone I'm very close to is in a criminal legal situation and while I totally understand that Metafilter is not a substitute for actual legal advice, I'm writing this in hopes of getting educated opinions or shared experiences (and won't say no to legal advice in the process).

We're in Texas (sigh). He's 20 years old, comes from a very difficult socioeconomic background, and is indigent. I have been trying to help by providing some measure of love and stability, a quiet place to stay temporarily, food to eat, and gentle prodding toward the right path.

Before the recent arrest, he was on 5 years probation for felony possession of a controlled substance, which could've been reduced to a misdemeanor with successful completion of the terms of his probation. Up until last week's arrest, he'd been on probation for about 2 years total with no issues (other than being constantly behind on court fees). He's seen his probation officer every month, passed urine tests every month.

Then last week he was arrested and charged with possession of drug paraphernalia and they tested this little container on his key chain and found methamphetamine residue, so then they upped the charge to felony possession of a controlled substance under 1 gram along with the possession of drug paraphernalia. From what I gather, they told him that once he's indicted (a formality) he'll be jailed until his court date. I helped him fill out and mail in his application for a court-appointed attorney (an affidavit of indigency). That was mailed today. While he's hopeful for some probable cause issue (the driver didn't consent to be searched and was searched anyway, although I think he did give the officer permission to look at his keychain), my overall impression is that if he fights this on probable cause/police misconduct grounds, he'll piss off the prosecutor and cops and lose anyway with worse outcomes. If he goes in with a different attitude from the beginning and asks for rehab (which he needs, separately), he might get a better outcome.

I live in Austin, and the arrest took place in a small town about an hour away. I spoke briefly to an attorney's office in Austin, and they suggested that if I want to find and pay for a defense attorney for him, to find one closer to the town where he was arrested (his hometown) because an attorney in that town would have more familiarity with the legal system there, plus it would save money on attorney travel fees. The guy basically said he doesn't think there's much that can be done at this point, that an attorney won't be able to wave a magic wand and get him out of this, and that it might be best just to get him a court-appointed attorney and have his basic rights protected through this process.

Is this a cut-and-dry deal? Looking up information so far, it looks like he's going to get somewhere between 6 months and 2 years for a state jail felony (I guess this means he won't be in with offenders who committed violent crimes?).

I don't have unlimited resources to help him legally, but I'm willing to pay something if it would actually lead to a better outcome for him (my initial suggestion to him was to beg the court for in-patient rehab in lieu of jail time). Should I send him back home once the court-appointed attorney is actually appointed? His experience in the past with court-appointed attorneys was negative (he claims they didn't maintain his confidentiality with the judge, which he may be confused about because that seems like an egregious violation of legal ethics).

There's a part of me that also wonders if jail time (or court-mandated rehab, ideally) wouldn't potentially force him to address a very serious addiction issue. I just wish there were more resources and that the criminal justice system wasn't the front line for nonviolent drug offenders. He's so young... and because of his background he got caught up in meth when he was 16. The whole thing is heartbreaking. He's also very small and looks younger than his age, and imagining him in jail for 6 months scares the shit out of me.

Right now my hope is to mitigate the damage as much as possible from the arrest and get him ASAP into treatment. I've found resources for treatment, but the focus for now is the criminal case. It's left him despondent and depressed waiting for the shoe to drop. One potential positive is that he said the judge in his town is known as judge "hug a thug" by the cops and prosecutors, and may not be your typical Texas small-town "lock 'em up and throw away the key" type. His hometown is rife with meth and other illegal drug use, and the dockets are full of these possession cases. Would they really spend the resources to keep a nonviolent drug offender in jail for 6 months or longer? Could he be out quicker? Could he potentially get rehab instead of jail? Should I spend money on a defense attorney or leave him to the court-appointed attorney?
posted by odayoday to Law & Government (12 answers total)
There's a part of me that also wonders if jail time (or court-mandated rehab, ideally) wouldn't potentially force him to address a very serious addiction issue.

So you know that people generally aren't going to get clean until they decide for themselves, right? Does he actually want to get clean? Has he talked about rehab before? Does he actually want to go to rehab or is it possible he is saying rehab because he's facing more jail time? Clients of my agency have gone though court-mandated rehab before so that's a possibility but some of them go back using again because they didn't really want it. So if he doesn't want to get clean for himself, it could only be a temporary measure.

That said, I work with a lot of people in recovery and at least three of them have said "I wouldn't have gotten clean had I not gone to jail." Some people respond to care, some to tough love. What makes someone turn their life around is really going to vary from person to person.

Good luck.
posted by Beti at 1:21 PM on May 25, 2016 [1 favorite]

I have no idea how the legal process works in Texas regarding how quickly you get a public defender, etc. But I would caution you against assuming that just because something seems cut and dry to you that it actually is cut and dry. He may have a legal defense here, or a valid motion to prevent the state from using the evidence against him depending on the circumstances of the search. Either he goes with a public defender (which is fine, there are many fantastic public defenders out there) or you hire a lawyer for him. I would agree with the advice you received that hiring someone local relative to the court or jurisdiction he's in right now is smart from both a cost-savings perspective and to find someone who's familiar with that particular system and knows its strengths and weaknesses. Good luck!
posted by Happydaz at 1:47 PM on May 25, 2016

Detoxing in jail is probably the worst possible place (indoors, at least) to do it. And many people find that it's not that hard to get the drugs they want there, anyway.

they told him that once he's indicted (a formality) he'll be jailed until his court date

This is not automatically true. Unless he's got some other wacky priors you haven't mentioned that would lead him to be seen as a flight risk or an active danger to the community, the court should set bail. Whether he can afford to post bail is, of course, another matter.

my overall impression is that if he fights this on probable cause/police misconduct grounds, he'll piss off the prosecutor and cops and lose anyway with worse outcomes. If he goes in with a different attitude from the beginning and asks for rehab (which he needs, separately), he might get a better outcome.

This is what they want you to think. It isn't true. Once you start admitting things, you are absolutely at their mercy. He may or may not be able to cut a deal he can live with prior to trial--that's what he needs a good lawyer for--but don't fool yourself that the prosecution gives two hoots about his humility or whatever.

It reads to me like you have a somewhat idealistic view of this as an opportunity for him to turn his life around and the prosecutors and the courts as the people to help him do it. This does happen on occasion, but it's not something you should rest your hopes on, and you shouldn't encourage him to make himself vulnerable to them on the theory that they really want to help him, rather than get a conviction. Sorry to be so cynical, but a lot of people get screwed over on the theory that the cops want to "help you if you'll help them."
posted by praemunire at 1:53 PM on May 25, 2016 [4 favorites]

If you're on probation in many cases a condition of probation is to allow police searches, so it possible that the very thin hope of 'probable cause' is non-existent. Additionally, people on probation aren't to associate with known criminals. Not to say the guy driving was a criminal, but if you know the situation, does this person have a criminal past? If so, this person is not someone your friend should be associating with. He had drug paraphernalia. If he's not using, then why does he have it? Why does he have a container on his key chain? Why does it have meth in it? He flat out violated his probation.

Don't keep pouring money into this person, and surely not for this. Let the public defender take care of this. It's possible a plea deal can be worked out to reduce the charges to a misdemeanor. But honestly, don't bail this person out. It's not going to help much, so long as he keeps making bad choices. Let the court appointed attorney determine the best strategy on this.

You mention his poor background, as though it's some sort of excuse for bad behavior, and it does explain the poor choices. There are plenty of folks who grew up disadvantaged who don't break the law, don't become addicts and who do the right thing. At any point in time your friend could have availed himself of programs and resources to put himself on the right path. He chose not to do so.

Constantly bailing out a person who is not making good decisions will only lead to more of the same. That said, very few jails do anything to help addicts and clearly stiff sentences do NOTHING to deter this behavior. It's possible that he could get deferred to Drug Court and a long-term in-patient program, which would be the best outcome, IMHO. Or he can serve out the remainder of his sentence.

Be emotionally supportive if you want to be, but don't beggar yourself to help him.
posted by Ruthless Bunny at 2:05 PM on May 25, 2016 [6 favorites]

So you know that people generally aren't going to get clean until they decide for themselves, right?

I know one young person who was arrested on a drug felony. His parents hired an attorney, and a deal was worked out for this young man to go into rehab, rather than jail. I don't know if anyone could have been more opposed to rehab than this person; he would never have agreed to the deal if the alternative were anything other than jail. But between jail and rehab, he agreed to rehab.

It took at least two solid months before he even began to commit to the rehab process. Before that, all he wanted to do was escape. Now, he has been sober for years, and is very commited to staying that way. He did a complete turn-around, without initially wanting to at all.

That's just one person, I know, but I wonder if the thing about not getting anything out of rehab unless you go voluntarily might be a bit of a myth.
posted by merejane at 3:58 PM on May 25, 2016

Well, I can say that there is some good news in all of this, if the particular jail he ends up spending time in (which is up to the old court, not the new court, WRT his old charge) isn't one where drugs are easily available, he will be far beyond any physical addiction if he's there for at least a couple of months.

Meth isn't hard to kick compared to benzos, opiates, or alcohol. It's much, much closer to caffeiene than it is those things. He'll be irritable and want to sleep for a few days and then the worst will be over. He won't shit himself, have cold sweats, seizures, or anything like that.

Back to the legal situation, the new court certainly can mandate inpatient treatment, but he will be subject to resentencing by the old court once he gets out. In a small town like that there won't be a public defender so much as an attorney from the community assigned to him. Problem is that they may well not have all that much criminal experience. They might, though!

Given that it is a misdemeanor, he may be able to avoid an appearance entirely and plea bargain to a fine if he hires his own attorney who can show up in court for him. Courts can waive otherwise mandatory appearances if appearing in person is a hardship.(BTDT on a bullshit charge in bumblefuck, AZ, but that was with a previously clean record, not with a previous felony that I was still on probation for) He needs to look at the terms of his probation and ensure that he notifies his PO as is likely required. Not doing that will make things even worse for his old case.
posted by wierdo at 4:04 PM on May 25, 2016

My sister has a similar legal history (started with a misdemeanor drug charge, violated probation many times, now a felon) and is currently in prison. I would encourage you to establish boundaries with the person and read up on enabling addiction - How Al-Anon Works should provide some insight. My family has poured thousands and thousands of dollars down the drain in legal fees for my sister and she continues to fuck up in large part *because* she has that safety net in place. I completely empathize with the impulse to provide emotional and physical shelter as well as pay for her legal fees (I have done the same), but I regret not setting firm boundaries with her 4 years ago when addiction first took hold of her.

I've also learned that to a layperson, the justice system is whimsical and I would stop trying to predict anything w/r/t time frames or drug court or rehab vs. jail - even a private attorney rather than a public defender would be unable to answer your questions definitively. Try to learn to relinquish control over this chaotic situation now (learning about Al-Anon will be helpful in that respect.) Best wishes.
posted by tatiana wishbone at 5:06 PM on May 25, 2016 [3 favorites]

Hi. Here's what I'd say to your friend:

I'm a foster parent and my adoptive daughter's mother (Pam) is in jail right now having been arrested for heroin possession. I've been dealing with her and her family for eight years and have had more experience with this kind of situation than I'd like to. (Her mom has been clean for a lot of it, but got addicted to heroin about a year ago).

Right now, Pam has has a bond, but the judge will only release her to rehab and she can't find one that will take her. This option was negotiated by her court-appointed lawyer.

I don't think the blanket negative attitude towards court-appointed lawyers is justified. For one thing, they know the system inside and out. I agree with the attorney who told you there is no magic wand here. So, I don't think paying for legal counsel is the best way help.

Also, I would seriously question the story about the residue on the key chain turning into a possession charge. That sounds like complete bullshit to me. I would be sure that you're questioning any information that comes from him. I would also be very suspicious of the who gave consent/police misconduct story. I guarantee you that is made up. The theme of the story (I just had a little something on me, I'm being oppressed by the man, the lawyers suck) is very familiar.

For example, Pam had a trial last week and she was possibly going to be released with time served, but she wasn't. Normally I go to the hearings, but I couldn't get to this one. I called Pam's mom (a drug addict) to see what happened and she told me this long story about how Pam's lawyer was horrible and hadn't helped her at all, had never come to visit her in jail, and because of his incompetence Pam wasn't released. She asked me if I knew how to file a complaint against an attorney.

This made no sense to me, but I didn't know what happened. I could look it up online, but all I could see was that the trial was continued. By coincidence, a friend has a niece in the same jail as Pam. She told her aunt that Pam had tried to extort $200 in canteen money from another inmate, had spent time in solitary, and when she got to court her trial date was postponed. Her mom left out the extortion part...

So, given the story you've told, my first piece of advice would be to find out if it's true. And I don't think it's a good investment to get an outside attorney.

I will tell you that when Pam was arrested I was flooded with relief. She's been in jail for a number of months and it's been awesome. I know she's safe. I know she's not going to be killed, or pimped out or overdose. She's clean. I want her to stay there a long time. I am able to send her books from Amazon, so I've sent her things like "In the Realm of Hungry Ghosts" by Gabor Mate, along with the James Patterson she asked for.

Jail is not the end of the world. It's not Sing-Sing. This is not an emergency. It's not crisis. This is a consequence based on his behavior. He makes it feel like a crisis, because addicts tend to live crisis to crisis (they can't sit still, in my opinion, or the suffering will catch up to them). It doesn't have to be a crisis for you. You can ask to get permission to speak with his attorney if you want, but you don't have to.

There's no way to fix this. He may be able to get rehab. He may not. That's not going to depend on what you do.

And you're right that the police misconduct is not the way to go. It makes my eyes roll back in my head. Seriously? I'm not saying the police don't do bad things, but police misconduct and my lawyer is an idiot are the two main themes of the arrested folk.

Taking responsibility and asking for help is the way to go. Trust me, the idea of someone saying, "I'm sorry and I need help" would be so novel, he'd probably be set free and given a week at the Hilton.
posted by orsonet at 5:55 PM on May 25, 2016 [4 favorites]

With all due respect, if you help him find a private attorney, it could make a major difference in the outcome. He's been successfully passing UAs for two years, and that sounds like significant evidence in favor of whatever case he'll need to make.

Attorneys often provide free or low-cost consultations, and you likely can find a lawyer to briefly discuss whether they could help keep this child out of a broken and dangerous system.

Also, the general rule of Don't Talk to Police applies to helpful friends and family in situations like these, because they might use social media to publicize information that really should remain confidential.
posted by Little Dawn at 11:01 PM on May 25, 2016

I am a criminal defense attorney. I am not your criminal defense attorney, and I am not licensed to practice in Texas. This is not legal advice.

There is so much bad advice in this thread that I don't even really know where to start. So I'll start with this: if you care about this person, keep her out of jail. Not only are jails dangerous, violent places (and yes, people do get killed in jail), and terrible places for any sort of medical or mental health issues (many jails have zero programming of any kind, and the medical care can literally be fatal, it's so bad in some places), but also, people who are in jail pending trial have worse case outcomes. Numerous studies show that people who are jailed pending trial are more likely to plead guilty, more likely to be sentenced to jail time, more likely to end up with longer or harsher sentences, and more likely to end up with negative outcomes. Keep your loved one out of jail if there is any way you possibly can.

Second, your friend needs a lawyer ASAP. Without knowing the specific jurisdiction (and please don't post that), no one can tell you whether or not the public defender system there is good. Some of them are excellent, and some are terrible, and it varies from one jurisdiction to another. But he needs a lawyer as soon as you can get him one, and he needs to stop doing anything until he has a lawyer to give him advice about what to do. It may be that the public defender has better lawyers than the private attorney you could afford. It could be the reverse. You'll want to try to find out what's true in his jurisdiction. Memail me if you want me to try to find out more about the reputation of the public defense system in the jurisdiction where he's charged.

Third, your friend needs to stop talking to you about the facts of what happened. The only person he should ever be talking to about the circumstances of his arrest is his lawyer, and anyone his lawyer advises him to talk to. You are not in that group. The last thing you want is to be subpoenaed to testify at his trial about what he has told you. I would recommend that you ask for this question to be deleted. (I know that a lot of people will say I'm overreacting, but if there's even the tiniest chance that this post is going to end up as a confession introduced as evidence at his trial, I find that to be an unacceptable risk. And there's no upside to having this post remain up.)

If you decide that you're not willing to help, as some people have suggested you should for your own good, you owe it to your friend to tell him that now. Be honest about it, so that he can be honest with himself and his lawyer about available resources. But if you're willing to provide financial assistance, housing, or even just show up to court to show the judge that someone gives a shit about this person, that can actually make a huge difference. Support of loved ones has directly resulted in substantially better outcomes in cases I am personally aware of, both in terms of pleas offered and in terms of sentences ultimately imposed by the judge.

Memail me if you want to talk. But please stop talking to him about this case, and please don't listen to anyone who tells you that you can't make a difference and that going to jail will be good for your friend. That last piece of advice, in particular, makes me physically ill, it's so bad.
posted by decathecting at 11:18 PM on May 25, 2016 [11 favorites]

My friend (the one I posted the question for, not the subject of the question) wanted me to extend thanks to everyone for your thoughts and the fact that you cared enough to offer your experiences and suggestions. It's difficult for people without much knowledge or resources in this arena to have any idea where to start trying to help (and where that help should end, for that matter), so your contributions are truly, deeply appreciated.

Thanks again, so much.
posted by odayoday at 6:42 AM on May 26, 2016

In Arkansas there is a drug rehab that offenders can be sent to that is on the prison grounds and is considered prison but is physically separate from the general population prisoners. Offenders can be sent specifically to that rehab via a suspended sentence (I don't know how the judges order is worded) and if they complete it they are released on probation with their original sentence suspended. Violating probation afterwards could mean the original sentence is immediately enforced. For example, someone I know couldn't keep himself out of possession charges (DUIs, etc) so he was sent to that 90 day program with a 10 year suspended sentence. He completed the program but I've lost track of him so don't know how he is doing now.

Whomever the attorney turns out to be, your friend should inquire about treatment options if they want to do that. Texas may have an option similar to Arkansas.
posted by MultiFaceted at 9:46 AM on May 26, 2016

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