Navigating the Decision Making Process: Plea Deal vs. Trial in Texas

Posted by Steven Clary | Feb 01, 2023 | 0 Comments

Introduction to the decision making process of whether to plea or go to trial.

An overview of the Decision Making Process of taking a plea deal or going to trial.

The decision to take a case to trial is usually a tough decision and a lot normally rides on the decision. This blog discusses the decision making process and factors to consider. Anyone reading this blog may or may not have an attorney. This blog is this author's suggestions and opinions based on his experiences in the criminal defense field for 27 years. If you have an attorney, you can use this discussion to help in your decision, but it is not meant to preempt his judgement. Listen to what he is saying and use this write up to maybe help in the discussion and decision. If you do not have an attorney it suggested strongly that you obtain one.

Like any decision, the decision to go to trial is weighing the various courses of actions and taking the one with the best reward versus the risk.

The best way to explain something is to use examples so let's go through a few scenarios.

Scenario 1: Shoplifting Case

Let's assume the defendant in our example is accused of shoplifting at Walmart. The amount taken was around $200, a class B misdemeanor theft offense carrying up to 6 months in jail. Let's also assume he has never been in trouble before and is a college student. The prosecutor will probably offer deferred adjudication probation. This means the defendant would be on probation and when the probation is completed, the case would be dismissed. At that point, once dismissed, he can get an attorney and get the record sealed by getting a nondisclosure order signed by a judge ordering this case not be revealed to the general public. Not a bad deal, but the case is still on the record and can still be seen by the prosecutors and about 20 government agencies. Another option maybe obtainable from the prosecutor would be a pretrial diversion program or the equivalent; not all counties offer this. For a theft case of this type, pretrial diversion usually involves performing some community service hours, taking an anti-theft class, and paying a fee to the District Attorney's office and the probation department.Once successfully completed, usually in about 6 months, the case is dismissed and can be expunged at that time. This is good because now the record can be expunged and the case should not show up on any government record or records like So, now you are at the question of should I take a deal or go to trial. If you go to trial and win, the case can be expunged immediately after trial. However, if you are found guilty, you have a conviction that stays on your record permanently. There is recent law that does allow the conviction to be sealed, but you have to wait a few years before you can do that, in the meantime, it on the record for all the world to see. In my opinion, the best deal appears to be the a pretrial diversion program. It carries almost no risk and allows the case to be expunged and wiped off the record upon completion of the program. If deferred adjudication is taken, although the case can be sealed against the general public,  it is still on the record. Going to trial is more expensive and carries the risk of a conviction.

Scenario 2: Assault Family Violence Case

Assume a person that  is a lawful permanent resident (ie green card holder) argues with his wife and throws his cell phone against the wall and it bounces off, hits, and causes a slight injury to his wife. The police are called and, due his reckless conduct causing injury, he is charged with Assault Family Violence with bodily injury, a class a misdemeanor carrying up to a year in jail. This is a crime involving moral turpitude (CIMT), which could get him deported. He could have been in the country for years and being deported would cause great hardship to him and his family. He is offered deferred adjudication which will cause the case to be dismissed when probation is complete. Because it is family violence, he cannot get the record sealed. Even if he could, it would not help him with immigration because they consider it a conviction, even if received deferred adjudication and the was dismissed. So he probably does not want to go this route.  Now let's say this county offers a pretrial diversion program for this  offense. This may not work either, because to get pretrial diversion in many counties, the defendant has to stipulate (admit) they committed the offense so this may not help them with immigration. There may be other options available based on all the circumstances, but for this example, he is faced with the 1 of the 2 deals above or going to trial. In this case, his back is against the wall, so to speak, and the best option may be to take the case to trial. If he wins, the case can be expunged. It would probably keep immigration from attempting to deport him.

As you can see, the decision to take a plea deal or go to trial can be complex and it usually involves the best reward versus the risk. It involves the thought process of looking at each course of action and choosing the one that is best for unique you with the least amount of risk. 

Scenario 3: Aggravated Robbery Case

Assume an individual is charged with Aggravated Robbery, a first degree felony that carries 5 years up to 99 years in prison. Assume also he does not have a criminal record. A plea deal is worked out where the defendant is offered 5 years deferred adjudication probation or 5 years in the penitentiary.  Also assume, there is no pretrial diversion available for this offense, which normally there would not be for this type of offense. Assume also there are credible witnesses that will testify against him and that the state has a fairly good, but not airtight, case. If the case is taken to trial and he wins, the case can immediately be expunged and  the record wiped clean. But, if he is found guilty, and he elected to go to the judge for punishment, the judge cannot give him probation for this offense (it is too late to get deferred adjudication because at this point he has been found guilty) and judge must sentence him to prison time. If no one was hurt in the robbery the defendant would have a good chance at getting probation from the jury, however, it would not be deferred and would be a conviction.  This is pretty much an easy decision and that would be to take the 5 years deferred adjudication probation and not go to trial, but the defendant would have to wait 5 years after successfully completing probation (a total of 10 years) before he can get the record sealed; this is all part of the equation.

Scenario 4: A Different Look at Aggravated Robbery

Assume the defendant is adamant that he is not guilty and is willing to take the risk of going to trial. If he wins and is found not guilty, the risk paid off and the record can be expunged. If the case is not an egregious one (ie no one was hurt) and he is went to trial and was found guilty and elected go to the judge for punishment, he would probably get close to the minimum time, 5 years penitentiary time but no probation. If he went to the jury for punishment, he would probably get probation of about 10 years. The key word here is probably. He may be sentenced to a greater amount of prison time by the judge or the Jury may not give him probation and sentence to significant prison time. This avenue carries too great a risk, in my opinion, and the 5 years deferred still looks like the best route.


I could go on and on. I think the reader gets the point. That point being: the decision to go to trial depends on many factors. Each case is unique. The defendant should, let's say must, have a competent attorney advising him of all the various courses of actions available to him in his particular situation. The examples above are fairly simple so bear in mind each case is different and the decision making process can much more complex. On top of that, each individual's circumstances are different and that adds more to the decision making process.

When I am advising a client about what to do, I try to, in a straight forward manner, explain to him, and to anyone he wants to participate, each course of action he has available and the pro's and con's of each course. I discuss these with him until I am sure that he understands the ramifications of his decision. This usually results in him making the correct decision.

Call my office if you would like to discuss this topic further. My number is: 972-722-0887 or text: 972-814-7318

About the Author

Steven Clary

Steven Clary was born in Winston Salem, NC and moved to Dallas, TX at age seventeen, He served in the U.S. Air Force for 9 and a half years in the computer field and was honorably discharged. He learned how to fly in United States Air Force flying clubs with the wo...


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