2. Jurisdiction, Venue, Limitations, Pretrial Proceedings Flashcards
What is the criminal jurisdiction of the trial courts?
District Courts: Felonies and misdemeanors involving official misconduct
County Courts: Misdemeanors punishable by jail time and appeals from Municipal and JP courts.
Municipal & JP Courts: exclusive jurisdiction of city ordinances and fine-only offense.
- If the courts have concurrent jurisdiction, case will be handled in court in which it was first filed.
Where is venue proper for a criminal case?
In any county where ANY element of the offense occurred
Where is venue proper if part of the offense occurred outside of Texas?
Any Texas county where D is found or where some element of the crime occurred.
If venue cannot be determined, where is it proper?
In county where D resides, was apprehended, or to which he was extradited.
Who has the burden to prove venue?
The state must prove venue by a preponderance of the evidence.
What is the effect of not raising the issue of venue at trial?
Proper venue is presumed on appeal unless the record affirmatively shows otherwise.
What is the SoL for:
1. a felony indictment
- misdemeanor “information” filing
Felony: 3 years
Misdemeanor: 2 years
What charges have no SoL?
- Murder
- Manslaughter
- Sexual assault
- Continuous sexual abuse of a child
- Indecency with a child
- Leaving scene of accident resulting in death
What charges have a 10 year SoL?
- Theft from an estate or by a public servant
- Forgery
- Arson
- Injury to an elderly or disabled person punishable as a felony
What charges have a 7 year SoL?
Financial Crimes
- Misapplication of fiduciary property
- Felony tax evasion
- Money laundering
- Credit card abuse
- Identity theft
What charges have a 5 year SoL?
- Theft
- Robbery
- Burglary
- Kidnapping
- Injury to child, elderly, or disabled not punishable as a first degree felony
- Child abandonment/endangerment
- Insurance fraud
What will toll the SoL for children after they reach 18?
Sexual crimes against children - 20 years
Injury to a child - 10 years
What else will toll the SoL?
Time D was absent from the state (in hiding) or when https://www.brainscape.com/decks/6079892/cards/quick#a prior indictment or information for the offense was pending.
How soon must a criminal proceeding be initiated after arrest?
Must have first appearance before a magistrate without unnecessary delay but no later than 48 hours after arrest. (Note: this is NOT an arraignment)
Magistrate must make a probable cause determination within:
24 hours for a misdemeanor
48 hours for a felony
Must: set bail, determine indigence, and advise how to get an attorney
Cannot make indigence determination on ability to make bail.
What must magistrate inform D of at first hearing?
- Charges against him
- Right to remain silent
- Right to counsel
- Right to have counsel present during any interrogations
- Right to terminate interrogations
- Right to an examining trial
When must appointed counsel get to work?
Must make every reasonable effort to contact D no later than first working day after appointment.
Must interview D as soon as practicable.
Required to have 10 days to prepare before any proceeding.
What is an examining trial?
A determination by the magistrate to determine if there is probable cause to hold D until trial.
Occurs only BEFORE indictment when D is charged with a felony.
- Rules of evidence apply
- D has right to counsel
- D had right to cross witnesses
- D has right to make statement
What are the possible results of an examining trial?
- Send D to jail
- Discharge D
- Grant him bail
- If no order is issued in 48 hours, default finding of no probable cause.
- There is no jeopardy here, so D can be charged again.
What are 2 the types of bail?
- Personal bond - D promises to pay full bail amount if he doesn’t appear.
- Cash bond - D puts up cash now.
- Bail or surety bond - 3rd party promises to pay if D doesn’t appear.
What factors are considered in setting bail?
- High enough to assure appearance
- Not used to punish
- Nature and circumstances of offense
- Ability of D to make bail
- Future safety of victim and community
What limiting conditions may be imposed when D is released on bail?
Judge may impose any reasonable condition related to the ??? of the victim or community.
If D violates a condition:
- State must prove by PREPONDERANCE
- Bail is revoked and judge can require new bail
When may bail be denied?
If there is clear and convincing evidence that D will be found guilty of a capital crime and will receive the death penalty.
If there is a preponderance of evidence that a family violence D has violated a condition of bond related to the safety of the victim of community.
When may bail be temporarily denied?
May be denied for 60 days if:
- There is substantial evidence of guilt and:
- D has 2 prior felonies
- Felony was committed when released on bail
- Felony involved a deadly weapon and there was a prior felony conviction; or
- Felony is a violent sexual offense while on probation or parole
When does a defendant who makes bail get released?
Entitled to immediate release, EXCEPT:
- Family violence: may be held 4 hours
- Prior arrests for family violence involving a deadly weapons: may be held 48 hours
How does a D challenge excessive bail?
Writ of habeas corpus claiming that bail is excessive
What is going “off bond?”
A surety can “go off” bond by filing an ??? stating reasons to be allowed off bond.
If court accepts it, court will issue a capias for the re-arrest of D.
