Skip to main content

What is pretrial motion?? And why don't the da dismiss the case before pretrial motion why wait to pretrial motion to dismiss???

Beaumont, TX |

I don't know what pretrial motion is but Iwas wondering can I my attorney show them and tell them how weak the case is for them to ralize to dismiss.the case can this happan in pretrial motion??? Secound question they are accusing me of burglary of a building don't they have to prove Iwas inside the building??? I'm innocent and I'm not going down for this???

+ Read More

Attorney answers 4


First, if you don't already have a lawyer, please get one immediately.

Since you mentioned the D.A., I am assuming your case is a criminal matter. With that in mind, after the preliminary hearing and before a criminal case goes to trial, the prosecutor and your defense lawyer usually appear before a criminal court judge and make pre-trial motions -- arguments that certain evidence should be kept out of the trial, that certain persons must or cannot testify, or that the case should be dismissed altogether.

Pre-trial motions are tools used by the government and the defense in an effort to set the boundaries for trial, if one were to take place: Examples: "What physical evidence and testimony can be used?" "What legal arguments can and cannot be made?" "Is there any reason that the defendant should not be forced to stand trial?"

One possible reason (of many) that the DA has not dismissed your case is that your defense lawyer may not yet have asked the DA to dismiss the case. Another is that the DA believes the case is worth taking to trial.

Regarding what the DA has to prove regarding a charge of burglary, Texas, like every state, has departed markedly from the common law definition of burglary. The Texas Penal Code ("TPC") provides the elements of burglary of a building:

§ 30.02. BURGLARY. (a) A person commits an offense if, without the effective consent of the owner, the person:
(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault; or
(2) remains concealed, with intent to commit a felony, theft, or an assault, in a building or habitation; or
(3) enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.

A number of terms in this statute are defined in the TPC.

“Effective consent” basically means voluntary consent by a competent person. Sec. 1.07(19) provides that "Effective consent" includes consent by a person legally authorized to act for the owner.

Consent is not effective if: (A) induced by force, threat, or fraud; (B) given by a person the actor knows is not legally authorized to act for the owner; (C) given by a person who by reason of youth, mental disease or defect, or intoxication is known by the actor to be unable to make reasonable decisions; or (D) given solely to detect the commission of an offense.

Sec. 30.02 (b) provides:, "’enter’ means to intrude: (1) any part of the body; or (2) any physical object connected with the body”

Notice that the common law requirement of a “breaking” is not included, and the person does not have to get completely inside the habitation or building. The second form of burglary (hiding) requires no entry with intent. It requires “remaining concealed” with intent after entering, even if the initial entry was with consent. Note that the intent to commit the other crime, (a) (1) and (2), must occur at the same time as the entry or remaining.

Other terms are defined in sec. 30.01:
(1) "Habitation" means a structure or vehicle that is adapted for the overnight accommodation of persons, and includes: (A) each separately secured or occupied portion of the structure or vehicle; and (B) each structure appurtenant to or connected with the structure or vehicle.
(2) "Building" means any enclosed structure intended for use or occupation as a habitation or for some purpose of trade, manufacture, ornament, or use.

At common law, only the dwelling of another could be the object of a burglary, and the crime could only be committed at night. Texas rejects these limitations.


I agree with the other attorney's assessment, you need to get a criminal defense lawyer ASAP!

Legal disclaimer:This message does not constitute legal advice and does not create an attorney-client relationship. Any statements are made for general informational purposes and do not constitute legal advice. No attorney-client privilege is created by this communication. Attorney is licensed in California only.


These questions should be addressed to your attorney.


I'm sorry, but I have no idea. This is not a "Litigation" issue, but rather a criminal law one. Therefore, I am editing the practice area and tag you selected so that you will get answers from lawyers who know the answers.

If you have a lawyer, you should pose your questions to him or her, as opposed to strangers who know nothing about your case. If you do not have a lawyer, it is imperative that you hire one right now. You will have no chance of getting your case dismissed and avoiding a trial without a lawyer.

Good luck.

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer