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Roger
Roger, Attorney
Category: Legal
Satisfied Customers: 26160
Experience:  Litigation Attorney
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I received a Notice of Hearing for Jury Trial to appear in

Resolved Question:

I received a Notice of Hearing for Jury Trial to appear in Plano Municipal Court on Oct 28th. On July 18th I had received a speeding ticket for driving 53 in a 40mph speed zone and wished to fight this in a non standard way.

Article 2.05 of the Texas Code of Criminal Procedure states: WHEN COMPLAINT IS MADE. If the offense be a misdemeanor (speeding is a Class C Misdemeanor- criminal case), the (District) attorney shall forthwith prepare an information based upon such complaint and file the same in the court having jurisdiction; provided, that in counties having no county attorney, misdemeanor cases may be tried upon complaint alone, without an information, provided, however, in counties having one or more criminal district courts an information must be filed in each misdemeanor case. If the offense be a felony, he shall forthwith file the complaint with a magistrate of the county.

I appeared to the judge and told him I had no valid charging instrument to plead as I did not receive an Information as described in Article 2.05. The judge appeared annoyed and entered a plea of not guilty for me. I objected to that but ended up with this Notice of Hearing for Jury Trial anyway. So I am supposed to show up and defend myself.

I wanted to make a demand for this case to be dismissed without prejudice as the court failed to comply with due process.

I didn’t know it was going to go this far. I am getting cold feet and don’t feel comfortable representing myself Pro Se on this matter because I feel more research is warranted for me to feel confident to handle the situation properly. I would like to exit out of this situation and minimize my costs. What do you suggest I do at this point?
Submitted: 9 months ago.
Category: Legal
Expert:  Roger replied 9 months ago.

Roger :

Hi - my name is XXXXX XXXXX I'm a litigation attorney. Thanks for your question. I'll be glad to assist.

Roger :

If you are you just wanting to pay the ticket and move on, all you should have to do is contact the prosecutor's office and tell him/her that you want to withdraw your not guilty plea and plead no contest, pay the ticket and move on.

Roger :

That would give you the simplest exit out of the matter, and would be a compromise offer given that there could be some issues with the prosecutor's ability to pursue the charges against you, anyway.

Roger :

I see that you're offline, and I'm going to step away and assist some other customers. When you come back online, if you'll post a reply I'll be notified and we can pick back up.

Customer:

I was prompted to type my user name and password XXXXX couldn't remember it. I waited a good 10-20 minutes for an email with new password XXXXX never got one. Instead I got your answer.

Customer:

My ticket has a fine of $167.10 with maximum fine of $302.10. I really don't want to pay the high amount. What do you think they would do? Also would this result in a ding on my driving record?

Customer:

What are all the consequences of "giving up" on fighting this?

Customer:

Should I explain to the prosecutor what my argument was (and that I would probably win the case on this technicality) Would that convince him to allow me to pay the lowest fine?

Customer:

Can I contact the prosecutor the week before the hearing or do I have to wait til the day of? I would like to know his answer before I make my final decision and how to resolve this...

Customer:

Also Do I phone him, or write letter or go in person?

Customer:

hello?

Customer:

I am stepping out and will be back at 5:45pm. Hope that's OK.

Roger : Hi - sorry for the delay. I'm back and will post a response shortly. Let me read over your post.
Roger : The only real consequences of foregoing the trial is payingn the fine and having it on your record. Depending on your driving record, it may take points off.
Roger : But, if you haven't had a ticket in the past few years, you may be eligible to go to driving school and hero this off of your record.
Roger : You wiykd have to discuss that with the prosecutor. Unfortunately, lost prosecutors won't discuss anything with you until the day your case is set.
Roger : Thats the biggest advantage of having a lawyer as he/ she can speak with the prosecutor before that time.
Roger : Sorry for the typos - I've got an auto correct feature that was on. I think I've got it off now.
Roger : As for the fine, judges usually assess a minimum fine unless there are unusual circumstances - such as the person being a repeat offender.
Roger : Here's a link to how the point system works: http://www.txdps.state.tx.us/driverlicense/drp.htm
Roger : You certainly can try to contact the prosecutor before the trial, and if he/she will speak to you, then you can try to negotiate a deal.
Customer:

Hello Roger

Roger : Hi -
Customer:

sorry about the wait. I had to step out..... so assuming I would pay the lesser fine, would I be required to pay any court fees at this stage of the game?

Roger : That's up to the judge, but you'd likely have a good chance to avoid anything other than the fine since the judge apparently isn't happy with how the prosecutor has handled the case/charges thus far.
Customer:

The prosecutor hasn't been involved at all at this point. When I first approached the bench to "plead" he was definately displeased at my argument for wanting this case dismissed for failure to follow due process.

Roger : Ok.
Roger : If you can work a deal to plead no contest or get a deferred adjudication, you can likely get out of there with just a fine.
Customer:

So if I just talk to prosecutor before would that avoid court charges? Can the prosecutor make those decisions about what court fees I may have to pay? If so how much are they?

Roger : The judge would have to approve any deal, but if you and the prosecutor reach an agreement, the prosecutor will recommend it to the judge, who will usually always accept it.
Roger : As for the fees, every court is different and has its own fees, but it's usually not a large amount - - maybe a hundred dollars or so.
Customer:

Should I write a letter to prosecutor? Should I just show up one morning out of the blue and see if I get a chance to speak to him? Any other options?

Roger : A letter likely won't be responded to. It's best to go to his office and try to speak with him.
Customer:

I guess phone call won't work?

Customer:

I am curious. What do you think of my defence? It seems like what I wanted to present was not used by anyone - not even lawyers!

Roger : You can try, but it's not as good as trying a face to face. The prosecutor may not speak with you or may be "out of the office"
Roger : It's tough to win a speeding citation, and there usually aren't many defenses. So, I can't say that you'd win, but I also can't say you'd lose.
Roger : These type of defenses are so fact specific, it would be impossible for me to say anything more than you can make your defense and argue the points to the judge.
Customer:

I think I am almost finished. So...what should I say to the prosecutor to win him on my side?

Roger : Good question.
Customer:

:-)\

Customer:

~*:-)

Roger : Unfortunately, there's no magic formula. Instead, the best pitch is usually the inform the prosecutor that you're willing to make a deal of either deferred adjudication or no contest to avoid the time and expense of a trial.
Roger : Usually, if a prosecutor can get a case moved off of his/her docket - - especially a non-violent offense like this - - he/she is usually happy to.
Customer:

Regarding me asking the prosecutor for deferred adjudication, this Notice of Hearing says " I understand by entering a plea of not guilty, I am waiving my right to take a driver safety course or deferred disposition"

Roger : You may be waiving your right, but that doesn't necessarily mean that you still can't agree to that - - you just lost your right to demand it.
Customer:

What is the worst case scenario if the prosecutor doesn't want to be agreeable?

Roger : The worst case would be that you lose and have to pay the fine the judge assesses - - which could be anywhere between the minimum and maximum fine.
Roger : There's no threat of jail time for a speeding ticket, so the only exposure would be financial.
Customer:

If I know in advance that the prosecutor isn't agreeable then I could proceed with my argument and have no choice except to proceed with the trial. WIth a jury trial what would be the first steps? Would I have to participate in choosing jurors etc?....In my opinion, a jury trial is not appropriate for my argument which is that of faulty due process. I should just be talking to the judge!

Roger : That's right. If you can talk to the prosecutor before, you would know what to do/how to proceed.
Roger : Your due process argument would be made by a motion to dismiss before the trial begins. If the judge were to grant your motion, then you wouldn't go to trial before the jury.
Roger : IF the judge denies the motion, then you would have to proceed with the trial, and you'd have to participate in picking the jury, questioning witnesses, etc.
Customer:

I didn't even plead. The judge entered the plea for me - to proceed with jury trial. He should have set up the other type (don't remember name). I should be speaking to judge alone and not wasting time choosing jurors then having to give them a school lesson on TX Criminal Code! Your thoughts?

Roger : The only way to have an audience with the judge is to file a motion to dismiss based on your argument.
Roger : The judge will hear and decide this before proceeding with the trial. A motion is how you get this issue before the judge BEFORE the trial begins.
Customer:

Ok I understand. One more thing - I am 99% sure that this argument is never used in court, even though it is very obvious. Why don't lawyers defend their clients using this argument?

Roger : That I can't say. It may be something that is just overlooked.
Customer:

Ok then Roger. I don't have any more questions. I have asked them all! I will end now...

Roger : Ok. Thanks for allowing me to assist, and if you need anything further, please let me know.
Roger : This question will remain open even after you rate our conversation, so if something comes up later, you can post it here and we can continue our discussion.
Roger, Attorney
Category: Legal
Satisfied Customers: 26160
Experience: Litigation Attorney
Roger and 12 other Legal Specialists are ready to help you
Expert:  Roger replied 9 months ago.
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