Can My Lawyer Make Decisions for Me? 5 Choices You Control in a Texas Criminal Case

When you hire a criminal defense lawyer, you are hiring someone to make a lot of decisions on your behalf.

Your attorney decides how to cross-examine witnesses, which objections to make, what evidence to challenge, which motions to file, and how to present your defense.

But your lawyer does not get to make every decision.

Some choices in a Texas criminal case are so fundamental that they belong to you—the person accused of the crime.

Your lawyer's job is to explain your options, tell you the risks, give you a recommendation, and help you make an informed decision. But when it comes to certain constitutional rights, the final decision remains yours.

Here are five of the most important decisions a Texas criminal defendant may have to make.

1. You Decide Whether to Plead Guilty or Not Guilty

Your lawyer cannot simply decide that you should plead guilty.

This is particularly clear in a Texas felony case. Article 27.13 of the Texas Code of Criminal Procedure generally requires a defendant's plea of guilty or nolo contendere to be made by the defendant in open court.

That makes sense when you consider what a guilty plea means.

By pleading guilty, you are giving up some of the most important rights you have in the criminal justice system. Instead of requiring the State to prove its accusation beyond a reasonable doubt at trial, you are entering a plea that can result in a criminal conviction and punishment.

Your attorney should make sure you understand exactly what you are doing before entering that plea.

And sometimes your lawyer may give you very strong advice.

If the evidence against you is substantial and the prosecutor makes an unusually favorable offer, your attorney may tell you:

"I strongly recommend that you accept this plea."

That is legal advice.

It isn't the same thing as making the decision for you.

Ultimately, you decide how you plead.

2. You Decide Whether to Accept a Plea Bargain

This is closely related to the first decision, but it deserves separate attention because plea bargaining is how the overwhelming majority of criminal cases are resolved.

A prosecutor may offer to reduce a charge, recommend probation, dismiss another case, waive an enhancement, or recommend a particular sentence in exchange for a guilty or no-contest plea.

Your attorney's job is to evaluate that offer.

That means more than simply telling you whether the deal "sounds good."

Before deciding whether to accept a plea bargain, you should understand questions such as:

• What does the State have to prove?

• How strong is the evidence against you?

• Is any of that evidence subject to suppression?

• Are there witnesses whose credibility can be challenged?

• What defenses are available?

• What is your potential punishment if you are convicted?

• What punishment does the plea agreement require or recommend?

• Will the conviction affect your employment or professional license?

• Are there other important consequences of accepting the plea?

Once you understand the answers, your lawyer should give you a recommendation.

Sometimes that recommendation may be forceful.

A good defense lawyer shouldn't be afraid to tell a client when rejecting an excellent offer appears to create an enormous and unnecessary risk.

But your lawyer cannot make you accept a plea bargain.

You are the person who will live with the conviction and sentence.

The final decision belongs to you.

3. You Have the Right to a Jury Trial

A person accused of a crime has a fundamental right to a jury trial.

That means your attorney cannot simply decide that it would be easier to let the judge determine whether you are guilty.

However, there is an important distinction between having the right to a jury and having an absolute right to a bench trial.

If you want to waive a jury and have the judge decide guilt or innocence, Texas law imposes requirements on that waiver. Depending on the circumstances, you cannot necessarily force the prosecution to agree to a bench trial simply because you believe the judge would be more favorable.

This is another area where an experienced criminal defense attorney can provide valuable advice.

There are cases where a lawyer may believe a judge is better suited to evaluate a technical legal or factual issue.

There are other cases where having twelve members of the community decide guilt is a major advantage for the defense.

The right choice depends on the allegations, evidence, applicable law, prosecutor, judge, and circumstances surrounding the case.

But your constitutional right to a jury cannot simply be taken away because your lawyer prefers a different strategy.

4. You Decide Whether to Testify at Your Trial

Most people know about the right to remain silent.

If you are charged with a crime, the State cannot force you to take the witness stand and testify against yourself.

If you choose not to testify at trial, jurors are not supposed to treat your silence as evidence of guilt.

But there is another side to this constitutional protection that receives less attention:

You also have a right to testify.

The United States Supreme Court recognized the constitutional importance of that right in Rock v. Arkansas, 483 U.S. 44 (1987).

That means your criminal defense attorney can recommend that you not testify—but the attorney cannot simply take that decision away from you.

Why Would a Lawyer Tell Me Not to Testify?

There can be very good reasons.

Taking the witness stand subjects you to cross-examination by the prosecutor.

Depending on the circumstances, testifying could also allow the State to introduce evidence that otherwise might never have reached the jury.

Prior statements could be used to challenge your credibility. Certain prior convictions may become relevant. A prosecutor may attempt to expose inconsistencies between your testimony and other evidence.

Sometimes the defense may already have created reasonable doubt without putting the defendant on the witness stand.

In that situation, testifying can create risks without adding much to the defense.

But the opposite can also be true.

There are cases where the defendant is the only person capable of explaining what happened.

A self-defense case is an obvious example. What did you see? What did you believe was about to happen? Why did you respond the way you did?

Those questions may make the defendant's perspective particularly important.

That's why the decision shouldn't be automatic.

Your attorney should discuss the advantages and disadvantages of testifying with you before trial and reevaluate the decision after hearing the State's evidence.

Ultimately, however, whether you testify is your decision.

5. You Have an Important Say in Who Determines Your Punishment

Texas criminal cases can involve another important strategic decision: whether punishment will be assessed by a judge or jury when the law permits that election.

This can be an enormously important decision.

A particular judge's sentencing history may favor one option.

The nature of the accusation may favor another.

Your eligibility for community supervision can matter.

Your criminal history can matter.

And what a jury will learn during the punishment phase can substantially change the analysis.

An experienced local criminal defense attorney should be able to explain the potential advantages and disadvantages of each option.

This is also something that needs to be considered before trial, not after a guilty verdict.

The punishment election can affect how your attorney conducts jury selection and discusses the possible range of punishment with prospective jurors.

This is exactly the kind of decision where your lawyer's experience matters—but where you also need to understand the consequences of the choice being made.

What Decisions Does My Criminal Defense Lawyer Make?

None of this means the defendant runs the trial.

There is an important difference between fundamental decisions that belong to the accused and strategic decisions that are generally entrusted to the attorney.

Your lawyer generally determines things such as:

• What motions to file

• What objections to make

• How to cross-examine a witness

• What questions to ask

• What evidence to attempt to admit

• What evidence to attempt to exclude

• How to structure the defense

• How to conduct voir dire

• Which legal arguments to emphasize

These are the areas where you are relying on your attorney's training and courtroom experience.

But even trial strategy has limits.

Your Lawyer Cannot Admit You're Guilty When You Insist You're Innocent

One of the most important modern cases addressing that boundary is McCoy v. Louisiana, 584 U.S. 414 (2018).

McCoy was charged with murder and maintained that he was innocent.

His attorney believed the evidence against him was overwhelming. The lawyer therefore decided the best strategy for avoiding the death penalty was to acknowledge that McCoy committed the killings while disputing the State's theory about his mental state.

There was a problem:

McCoy expressly objected to that strategy and insisted he was innocent.

The United States Supreme Court held that the lawyer could not override McCoy's decision to maintain his innocence.

That doesn't mean a defendant gets to dictate every question, objection, or tactical decision during a trial.

It means there are limits to what a lawyer can call "trial strategy."

If you insist that you are not guilty, your lawyer cannot simply override that fundamental objective and tell the jury that you committed the crime because the lawyer believes admitting guilt gives you a better chance at a favorable outcome.

"But My Lawyer Says I Should Take the Deal"

This is where the distinction between advice and control becomes especially important.

Suppose your attorney tells you:

"I think you should accept this plea bargain."

That does not necessarily mean the lawyer is pressuring you improperly.

In fact, you should want a criminal defense lawyer who is willing to tell you something you don't want to hear.

If the evidence is strong and the prosecutor has offered probation instead of a substantial prison sentence, your lawyer should tell you if the offer is unusually favorable.

Likewise, if your attorney thinks you are about to hurt your case by testifying, the lawyer should tell you.

The important question is why.

Your attorney should be able to explain the recommendation.

Why is the plea offer favorable?

What evidence makes trial dangerous?

What defense do you have?

Why does your attorney think you shouldn't testify?

Why does your lawyer recommend a judge instead of a jury—or the opposite?

You should understand the consequences well enough to make an informed choice.

Your Criminal Case Is Still Your Case

Being charged with a crime can make you feel as though you have lost control.

The police made the arrest.

The prosecutor decides what charges to pursue.

The court tells you when to appear.

Your attorney handles complicated rules and procedures that may be completely unfamiliar to you.

But you haven't surrendered control over every important decision.

Certain choices remain yours because you are the person whose liberty and future are at stake.

A good criminal defense attorney does more than tell you what to do.

The lawyer investigates the case, challenges the State's evidence, identifies defenses, explains the law, evaluates the risks, and gives you candid advice—even when that advice is difficult to hear.

Then, when the law places the ultimate decision in your hands, you should have enough information to make it intelligently.

Facing Criminal Charges in Texas?

If you have been arrested or charged with a crime, decisions you make early in the case can affect what happens later.

Before accepting a plea bargain, giving up your right to a jury trial, deciding whether to testify, or making other significant decisions about your case, make sure you understand the evidence against you, the defenses available, and the potential consequences of each option.

Herreth Law represents people accused of DWI and other criminal offenses in Houston and surrounding Texas counties.

If you need to discuss a pending criminal case, contact Herreth Law to schedule a consultation.

This article is for general informational purposes and does not constitute legal advice. The appropriate strategy depends on the specific facts and circumstances of each case.