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Can a Texas judge hold someone in jail without bond before trial? The Texas Constitution guarantees a general right to bail, but that right has important exceptions. Under Article I, Sections 11, 11a, 11b, 11c, and 11d, courts may deny bail in certain criminal cases involving repeat felony allegations, violations of release conditions, protective-order violations, and serious public-safety concerns. In this episode of Andrew & Andrew on Texas Criminal Defense, attorneys Andrew Herreth and Andrew Decker examine the constitutional framework governing pretrial bail in Texas and discuss how no-bond hearings are being handled in Harris County, Tarrant County, and other jurisdictions. Andrew Herreth shares his experiences with prosecutors filing motions to deny bail in Houston, including situations where defendants remain incarcerated awaiting a hearing only for the State to ultimately request a monetary bond instead. The attorneys also discuss the newer Section 11d, adopted in 2025, and its separate evidentiary standards for willful nonappearance and public-safety concerns. Topics include: The general constitutional right to bail in Texas. The capital-offense exception under Article I, Section 11. When repeat felony allegations can justify denying bail under Section 11a. Violations of safety-related bond conditions under Section 11b. Family violence protective-order violations under Section 11c. Public-safety and nonappearance hearings under Section 11d. Preponderance of the evidence versus clear and convincing evidence. Whether one violent allegation is enough to establish a continuing danger. Judicial discretion, political pressure, and potential unequal treatment. Differences between bond procedures in Harris, Tarrant, and Parker Counties. The consequences of remaining in jail before a criminal case is resolved. The episode asks a fundamental question: How should Texas courts protect public safety without undermining the constitutional rights of people who have not been convicted? Listen as Andrew and Andrew discuss the law, the practical realities of no-bond hearings, and the questions that Texas courts will continue confronting as bail procedures evolve. Learn more: TexasCrimDefense.com This podcast is for educational purposes and is not legal advice.

These Choices Only a Defendant Makes Who actually gets to make the big decisions in a Texas criminal case—the defendant or the defense lawyer? A criminal defense attorney controls much of the strategy involved in trying a case, but some decisions are so fundamental that they belong to the defendant alone. In this episode of Andrew & Andrew on Texas Criminal Defense, Andrew Herreth and Andrew Decker break down the line between client autonomy and attorney trial strategy. They discuss who decides whether to plead guilty, whether to accept a plea bargain, whether to waive a jury, whether the defendant will testify, and whether a judge or jury should assess punishment. The discussion also covers one of the most dangerous areas for trial lawyers: what happens when a client wants to testify and the lawyer thinks doing so is a terrible idea? The answer isn't simply, "You're not testifying." The defendant has a constitutional right to testify. Andrew and Andrew discuss Rock v. Arkansas, the importance of making a record of the client's decision, and practical steps Texas defense lawyers can take after the State rests. They also examine McCoy v. Louisiana and the limits of attorney control over trial strategy. A lawyer may generally control tactical decisions, but counsel cannot override a defendant's express decision to maintain innocence by conceding guilt. Finally, the episode turns to punishment elections and the practical considerations involved in deciding whether a judge or jury should determine punishment. In This Episode Andrew and Andrew discuss: Which decisions belong exclusively to a criminal defendant The difference between client decisions and attorney trial strategy Who decides whether a defendant pleads guilty Felony versus misdemeanor plea procedures in Texas Whether an attorney can accept a plea bargain for a client Counseling a client about a favorable plea offer The defendant's constitutional right to a jury trial Waiving a jury and proceeding before a judge The defendant's right to remain silent The equally important constitutional right to testify What to do when your client wants to testify against your advice Why defense counsel should put the testimony decision on the record Handling a defendant's prior criminal history when the client testifies Electing judge or jury for punishment How punishment elections can affect voir dire Why knowing the sentencing tendencies of the trial judge matters Which strategic decisions generally belong to defense counsel McCoy v. Louisiana and a defendant's right to maintain innocence Ineffective-assistance concerns when counsel interferes with a defendant's fundamental rights

Entrapment Defense Trial: Louisiana Lawyer Wins Not-Guilty Online Solicitation Case What does an entrapment defense actually look like when it is presented to a jury? In this episode of Andrew & Andrew on Texas Criminal Defense, Andrew Herreth and Andrew Decker are joined by Louisiana criminal defense attorney Patricio Ramos, who recently obtained a not-guilty verdict in an online solicitation case after presenting an entrapment defense. The case did not look promising on paper. Ramos's client had continued communicating with an undercover officer after being told the purported girl was 15 years old. Police found condoms when they arrested him. Even worse for the defense, Ramos said his client gave investigators a recorded statement admitting he knew the purported girl's age and explaining that he had brought condoms for their protection. Nevertheless, Ramos and his co-counsel took the case to trial. What changed the case was a careful examination of the undercover investigation itself. The client initially encountered the undercover persona on an adult-oriented website whose terms required users to be 18. The undercover profile initially represented its user as an adult. Investigators found no prior material on the client's phone suggesting a sexual interest in minors. Then there were the government's own messages. According to Ramos, the undercover officer used sexually suggestive language, continued pressing the defendant when he appeared reluctant to meet, created urgency when he suggested waiting until another day, and even changed the proposed meetup location when the original location was inconvenient. Eventually, the defendant started toward the meeting location—but turned around and began walking home before police arrested him. Ramos turned those facts into an entrapment defense. The episode explores how he developed that defense, how he used the government's own investigative policies during cross-examination, and why jury selection may have been as important as anything that happened during the evidentiary portion of the trial. In This Episode Andrew, Andrew, and Patricio discuss: How Patricio went from dropping out of high school to serving eight years in the Navy, attending UCLA, graduating from law school, and becoming a criminal defense lawyer. Why working as a prosecutor convinced him that criminal defense was where he wanted to practice. The facts behind the online solicitation sting that led to his client's arrest. Why an apparently devastating confession did not end the defense investigation. The difference between providing an opportunity to commit a crime and inducing criminal conduct. How the defense attacked the prosecution's theory of predisposition. Why the absence of similar material on the client's extracted phone became important. How the adult-only terms of the website supported the defense theory. Why defense attorneys should scrutinize every message sent by undercover investigators. How statements such as “I'm looking to have some fun” and references to cleaning off a bed became important cross-examination material. How law enforcement allegedly continued pushing the encounter when the defendant tried to delay or disengage. Why changing the meetup location became relevant to the entrapment argument. The significance of the defendant turning around and beginning to walk home before his arrest. How Ramos used jury selection to identify prospective jurors who could not fairly consider an entrapment defense. Why challenges for cause allowed the defense to preserve valuable peremptory strikes. The bar-and-red-wristband analogy Ramos used to explain entrapment to prospective jurors. How an undercover officer's explanation of investigative policy can become a roadmap for cross-examination. The Confrontation Clause dispute created when the FBI agent responsible for the communications did not testify at trial. Why Ramos invoked Crawford v. Washington and attempted to preserve the issue for appeal. The importance of continuing to preserve appellate issues even when the defense believes it has a chance of winning the trial. The emotional moment when the jury returned a not-guilty verdict. What Ramos later learned about why the jurors rejected the prosecution's case. Why preparation—not a magic trick—was ultimately the foundation of the defense. Ramos's advice that criminal defense attorneys need to be among the most prepared people in the courtroom. Why trial lawyers should never assume that terrible facts automatically make a case unwinnable.

Statutory defenses can be some of the most powerful—and most overlooked—tools available to Texas criminal defense attorneys. In Part 2 of our series, we examine Texas Penal Code Chapters 8 and 9, discussing affirmative defenses, justification defenses, jury charge issues, and real-world trial strategy. Topics include insanity, mistake of fact, mistake of law, intoxication, duress, entrapment, necessity, self-defense, defense of others, defense of property, and deadly force under Texas law. Along the way, we share practical courtroom experiences and discuss how these defenses actually work before Texas judges and juries. Topics Covered Texas Penal Code Chapter 8 Texas Penal Code Chapter 9 General defenses to criminal responsibility Justification defenses Affirmative defenses Insanity defense Competency vs. insanity Mistake of fact Mistake of law Involuntary intoxication Duress Entrapment Necessity Self-defense Defense of third persons Defense of property Deadly force Jury charge strategy Trial tips for Texas criminal defense attorneys Resources Download Andrew Decker's Statutory Defenses paper Texas Penal Code Chapters 8 & 9 Texas Code of Criminal Procedure Connect With Us 🌐 TexasCrimDefense.com

Statutory defenses can win criminal cases—but only if you know how to recognize, preserve, and argue them. In this episode of Andrew & Andrew on Texas Criminal Defense, Andrew Herreth and Andrew Decker celebrate seven years of the podcast before diving into one of the most overlooked topics in Texas criminal practice: statutory defenses under the Texas Penal Code and Code of Criminal Procedure. Drawing from Decker's CLE paper on statutory defenses, the Andrews explain the critical differences between: Exceptions to prosecution Defenses to prosecution Affirmative defenses They discuss how each affects the burden of proof, when the defense must produce evidence, and how these issues impact jury instructions and appellate preservation. The conversation also explores practical trial strategy, including: Reading the indictment alongside the applicable Penal Code section Finding hidden defenses inside charging instruments Raising self-defense without putting your client on the witness stand Using the State's own witnesses to establish your defensive theory Protecting error through proper jury charge objections Why writing CLE papers makes better trial lawyers Andrew Decker also shares real courtroom examples of successfully turning prosecution witnesses into defense witnesses through effective cross-examination and explains why mastering statutory defenses can dramatically improve trial results. Whether you're a seasoned criminal defense attorney or just beginning your practice, this episode offers practical guidance you can immediately apply in Texas criminal cases. In This Episode Celebrating seven years of Andrew & Andrew on Texas Criminal Defense Why teaching CLEs makes you a stronger trial lawyer What are statutory defenses? Exceptions vs. defenses vs. affirmative defenses Understanding the burden of proof in Texas criminal cases Why every defense attorney should carefully read the charging instrument Raising self-defense without client testimony Jury charge strategy and preserving appellate error Cross-examination techniques that support defensive theories Upcoming CLEs and trial updates Resources Mentioned Andrew Decker's CLE Paper: Guarding Our Sacred Trust: Statutory Defenses Harris County Public Defender's Office statutory defenses checklist Texas Penal Code Chapter 2 Texas Code of Criminal Procedure Texas jury charge preservation rules and appellate standards Topics Covered Texas criminal defense • Texas criminal law • statutory defenses • affirmative defenses • defense to prosecution • exception to prosecution • Texas Penal Code • jury charges • jury charge objections • appellate preservation • self-defense • criminal trial strategy • cross-examination • burden of proof • criminal defense CLE • Texas criminal lawyers • trial advocacy • indictment review • Texas defense attorneys About the Podcast Andrew & Andrew on Texas Criminal Defense is hosted by Texas criminal defense attorneys Andrew Herreth and Andrew Decker. Every episode delivers practical courtroom strategies, trial tactics, case law updates, and real-world insights designed to help criminal defense lawyers become more effective advocates throughout Texas. For additional episodes, resources, and downloadable materials, visit TexasCrimDefense.com. Download the materials here

State v. Barber, Brady Violations, and Texas Jail Credit Questions | Andrew & Andrew on Texas Criminal Defense In this episode, Andrew Herreth and Andrew Decker answer listener-submitted questions and break down several important developments in Texas criminal law. The discussion begins with a practical question every criminal defense lawyer encounters: what happens to a client's jail credit when a case is dismissed for lack of probable cause but later refiled or indicted under a different warrant number? Andrew and Andrew explain how Texas law treats backtime credit and discuss strategies for ensuring clients receive every day of credit they have earned. The conversation then shifts to Brady violations, the Michael Morton Act, and prosecutors' ongoing discovery obligations. The hosts examine recent examples of discovery disputes and discuss the distinction between intentional misconduct and inadvertent failures to disclose evidence. Finally, they analyze the Texas Court of Criminal Appeals' recent decision in State v. Barber (2026), a potentially significant case involving warrantless DWI arrests. The opinion clarifies that an offense is not committed within an officer's "presence or view" simply because the officer later develops probable cause through an investigation. The case could have important implications for future DWI suppression motions throughout Texas. Topics Covered Texas jail credit and backtime credit Dismissal for lack of probable cause Reindictment and new warrant numbers Texas Code of Criminal Procedure Article 42.03 Brady violations Michael Morton Act discovery requirements Prosecutorial disclosure obligations State v. Barber (2026) Warrantless DWI arrests Chapter 14 arrests Probable cause standards in Texas Criminal defense trial strategy Recent Texas Court of Criminal Appeals decisions Key Takeaways Defendants should generally receive credit for all time served on the same criminal incident, even if a case is dismissed and later refiled. Discovery violations remain a major issue in Texas criminal litigation despite the Michael Morton Act. State v. Barber may provide new arguments for challenging certain warrantless DWI arrests. Probable cause remains a relatively low standard, but officers must still comply with statutory arrest requirements. Defense attorneys should carefully review arrest procedures when officers arrive after the alleged offense has already occurred. Resources Mentioned Texas Code of Criminal Procedure Article 42.03 Texas Code of Criminal Procedure Article 14.03 Michael Morton Act Brady v. Maryland State v. Barber (Tex. Crim. App. 2026) Contact Questions for a future episode? Visit TexasCrimDefense.com or reach out to Andrew Herreth and Andrew Decker on social media.

Examining Trials in Texas: Strategy, Pressure, and Practical Use In this episode of Andrew & Andrew on Texas Criminal Defense, Andrew Herreth and Andrew Decker reunite after a brief hiatus to dive into one of the more underused procedural tools in Texas criminal defense practice: the examining trial. The Andrews discuss when examining trials actually make strategic sense, why they are rarely used in larger counties, and how they can become powerful leverage tools in rural jurisdictions — especially in felony drug cases where lab results delay indictments. Topics covered include: What an examining trial is under Texas law The low probable cause burden prosecutors must meet Why examining trials often disappear after indictment How defense lawyers can use them to pressure prosecutors Discovery advantages before indictment Bond considerations and possible release outcomes Risks of discharge and later re-arrest Differences between Harris County and smaller rural counties Practical strategy considerations for in-custody clients Whether examining trials are worth filing in modern practice The episode also turns into a broader conversation about the increasing role of AI tools like Lexis AI and ChatGPT in criminal defense work, including: How attorneys are using AI for legal research and brainstorming Ethical and practical concerns surrounding AI-generated legal work Why younger lawyers may need to embrace these tools to stay competitive Concerns about future malpractice and grievance claims involving AI Along the way, the Andrews reflect on why the podcast matters, how listeners are using episodes to prepare for trial, and why real-world conversations between practicing defense attorneys continue to resonate with lawyers across Texas. Key Takeaways Examining trials remain a viable but underutilized defense tool Filing for one can force prosecutors to move cases faster They may create opportunities for early discovery and bond relief Timing and jurisdiction matter enormously AI is rapidly changing the practice of criminal defense law Mentioned in This Episode Texas Code of Criminal Procedure Articles 16.01, 15.17, and 16.17 Jeff Shearer’s examining trial strategy Lexis AI and Westlaw AI Rusty Duncan Advanced Criminal Law Course Train the Trainers CLE Program Connect With Us Follow Andrew & Andrew on Texas Criminal Defense for practical discussions, war stories, and real-world strategy from two Texas criminal defense attorneys actively practicing in the trenches. Website: TexasCrimDefense.comFacebook: Andrew & Andrew on Texas Criminal Defense Have a topic suggestion or a crazy courtroom story? Reach out — you might end up on the show.

In this episode of Andrew & Andrew on Texas Criminal Defense, we sit down with Natalie Ware, Chief of Misdemeanor and Training Director for the Harris County Office of Managed Assigned Counsel (MAC) to break down how Texas is transforming indigent defense at the misdemeanor level. If you’re a Texas criminal defense attorney — or simply interested in how the criminal justice system works — this episode offers a rare inside look at: What the Harris County Managed Assigned Counsel system actually does How attorneys qualify to take appointed misdemeanor cases Training requirements for MAC list attorneys Pay structure and voucher oversight Caseload standards in Harris County Recidivism data and dismissal rates The client-centered, holistic defense model How social workers and immigration attorneys support appointed counsel Why holistic criminal defense reduces jail time without increasing future crime We also discuss how the MAC office provides interdisciplinary support — including social workers, immigration specialists, and resource attorneys — to ensure clients receive representation that addresses both legal and life circumstances. For criminal defense lawyers across Texas, this episode is a must-listen discussion on the future of indigent defense reform and what other counties can learn from Harris County’s model. If you practice criminal law, serve on appointment lists, or are interested in public defense reform, this conversation provides practical insight into how systems change happens. Learn more about the Harris County MAC office at: https://mac.harriscountytx.gov 00:00 Introduction 03:00 What is Managed Assigned Counsel? 08:00 How attorneys qualify for the MAC list 14:00 Training requirements for appointed counsel 19:00 Holistic defense explained 23:00 Immigration support & Padilla implications 29:00 Pay structure for appointed attorneys 37:00 Recidivism and dismissal statistics 44:00 The future of indigent defense in Texas

The Andrews discuss potential charges to look out for if you’re planning to go out and protest the government. Defenders, you may be seeing an uptick in these cases if you practice in an area thats seeing higher levels of unrest than “usual”

The Andrews sit down with Christopher Seals to discuss the struggles that affect us all as Defenders during the holiday time. You’ll hear how Christopher, as a professional, treats depression and how we can help out each other we see struggling. sealslpc.com

The Andrews are joined, once again, with Julie Balovich and Shane O’neal who, no one is surprised to hear, are winning once again out west. Listen in as we discuss the latest shenanigans these two have come across. We’ll discuss the Motion to Disqualify and Motion to Dismiss filed by Shane and you’ll be shocked by the outcome of this trial. Click here to see the Motions

The Andrews are delighted to have Courtney Miller back on the show to discuss a crazy situation (yes, another one!) with a client she recently got a dismissal on! Take a listen to learn some things about representing those wrongly accused!

42A.054 is confusing, especially when you throw the Government Code in the mix.

The Andrews discuss what constitutes testimonial evidence. In doing so, we look at the Crawford Analysis and the Davis Rule.

The Andrews discuss objections in today’s episode. Listen in on our tips for preparing to make objections and maybe re-thinking how often you should make objections.