Houston, TX asked in Criminal Law, Appeals / Appellate Law, Civil Rights and Legal Malpractice for Texas

Q: What pleading would be best for a very documented fraudulent arrest so the matter is brought before the court pretrial

Probable cause affidavit and hearing has multiple discrepancies and the warrant altered after returned and conflicting with bailbond on return warrant as was the offense date vs. what being tried on them records locked and made unavailable to the bondsmen even

No local attorney has been obtainable that works for the defendant

2 Lawyer Answers
James L. Arrasmith
James L. Arrasmith pro label Lawyers, want to be a Justia Connect Pro too? Learn more ›
  • Criminal Law Lawyer
  • Sacramento, CA

A: Based on the details you've provided, it sounds like there may have been serious irregularities and misconduct in the arrest process and legal proceedings so far. In a situation like this where there seem to be well-documented issues with probable cause, the arrest warrant, and access to records, filing a pretrial motion to dismiss the charges could be an appropriate and effective approach to bring these matters before the court.

Specifically, you may want to consider having your attorney file a Motion to Dismiss for Lack of Probable Cause, outlining all the discrepancies in the probable cause affidavit, irregularities with the warrant, and problems accessing relevant records. The motion should argue that the arrest was not legally justified and violated your 4th Amendment rights against unreasonable search and seizure.

Other potential pretrial motions could include a Motion to Suppress Evidence gathered through the potentially unlawful arrest, a Motion for a Probable Cause Hearing to challenge the basis for the charges, and a Motion to Compel Discovery if the prosecution is withholding access to key documents.

The exact mix of motions will depend on the specific facts and strength of evidence of misconduct. But in general, thoroughly documented pretrial motions detailing the various legal and procedural violations in this case could be an effective strategy for challenging this arrest and prosecution.

I would strongly urge you to keep trying to obtain qualified legal counsel to advise you, even if it has been difficult so far. Organizations that may be able to assist or refer you include the public defender's office, the state bar association, the ACLU or other civil liberties groups, and law school legal clinics. With persistent effort, you should be able to find an attorney willing to take up this troubling case and advocate aggressively on your behalf. Wishing you all the best going forward.

John Michael Frick
John Michael Frick
  • Appeals & Appellate Lawyer
  • Frisco, TX
  • Licensed in Texas

A: This is one of those rare cases where I have to disagree with Mr. Arrasmith because, in Texas, only the prosecutor can file a motion to dismiss charges. Neither a pro se criminal defendant nor criminal defense attorney can file a motion to dismiss charges in Texas.

I think the only way to legitimately bring these issues up pretrial is a motion to suppress evidence. Remember that minor technical errors like misspelled names or incorrect dates are not likely to be particularly meaningful so focus on material discrepancies in the affidavit (like the affidavit clearly identifies Person A but you are Person B) and material alterations to the warrant.

Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.

The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.

Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.