Andrew & Andrew on Texas Criminal Defense

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.com
Facebook: 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