Question: How does a felony case get to court?

Benson Varghese: A felony case, unlike misdemeanors in Texas, must go through the grand jury process. What that means is the case started off the same: a detective filed the case with the district attorney’s office or the local prosecuting agency, the agency reviewed it, but instead of filing it directly with the court, they then take it to the grand jury.

The grand jury is a body of individuals who are asked to look at cases to determine if there is probable cause to proceed. It is a secret proceeding and the defense doesn’t have a right to be at that proceeding. Very rarely are witnesses called to those proceedings. The state goes in and makes a presentation to the grand jury and it’s very often a quick summary of what they believed happened. The grand jury is trying to make a very low-level determination of whether or not those facts exist. Because of relationships that defense attorneys have built with prosecuting agencies, it is common for astute defense attorneys to call the district attorney’s office and ask for a presentation to the grand jury. It’s something that I strongly believe in and do on every felony case that I receive before indictment. The reason is that I want the grand jury to hear more about my client than they might otherwise know.

Understand that the detective has a job to do: present just facts of the case to hopefully get an indictment and later a conviction. They don’t know anything about the individual. They don’t have a burden to give the grand jury any information that might be helpful to us. That’s not in their job description; the law doesn’t require it. I believe strongly that the defense can make use of that opportunity even though it’s a low-level determination made by the grand jury and because of that, the defense doesn’t often prevail at the grand jury level. It is absolutely worth making a presentation because if you win the case is over at that level.

Once it gets past the grand jury, the case proceeds very similarly to a misdemeanor case in that there might be a number of settings, generally a month apart, where the state is providing evidence to the defense and the defense has an opportunity to review it and to try to negotiate an outcome if they can; and if they can’t, ultimately set the case for trial.