CP&E Flashcards
What are the items required in an arrest warrant?
(i) Name (or physical description) of person to be arrested; (ii) name of the offense; (iii) signature of the magistrate and his office.
What are the items required in a search warrant?
(i) statement that it runs in the name of “The State of Texas”; (ii) a specification of the person, place, or thing to be seized; (iii) specification of items to be seized; (iv) an endorsement of the date & hour it was issued; (v) signature of the issuing magistrate. NOTE: must be executed w/in 3 days, exclusive of date of issuance and the day of the execution (so really 5 days).
When is an arrest valid w/o a warrant?
(i) Officer had reasonable belief suspect was about to escape, suspect found with stolen property, (ii) D committed felony in presence of officer, (iii) D believed to have committed a felony, (iv) found in a “suspicious place”. Arrest is not made at a suspicious place if D is found arrested around crime area but the crime occurred two weeks ago.
Is a combination warrant proper?
- Yes, a warrant can include both a search warrant and an arrest warrant. This is called a combination search and arrest warrant. However, the warrant must be based upon dependent PC to arrest and PC to search.
When is officer permitted to break down the door to arrest someone?
Knock and Announce: (i) officer has probable cause to believe the person committed the felony; (ii) officer gives notice of the officer’s authority & purpose; (iii) officer is refused admittance.
What is the statute of limitations period for certain crimes?
- (i) No SOL: murder, manslaughter, leaving scene of accident resulted in death, indecency w/ child, sexual assault w/ child; (ii) general SOL for felonies: 3 years; (iv) 10 years: sexual assault, injury to elderly, arson; (v) 5 years: theft, burglary, robbery, kidnapping, abandoning/endangering a child, insurance fraud.
Where is venue proper?
- As a general rule, venue is proper in the county in which the crime was committed. Venue is also proper in the county where D is found or in any county where any element of the crime occurred.
Which party has the burden to prove venue is proper or improper and what standard of proof must be satisfied to meet that burden?
- The state has the BOP to prove proper venue. To meet the burden the state must prove by a preponderance of the evidence that the county is proper venue. D can challenge venue by showing that there is so great prejudice against him that he cannot receive a fair trial.
What is needed to establish that D is incompetent to stand trial, and what is the burden of proof needed?
D would have to prove that (i) he lacks sufficient present ability to consult w/ his lawyer w/ a reasonable degree of rational understanding; or (ii) he lacks rational as well as factual understanding of the proceedings. This must be proven by preponderance of the evidence by the party who asserts incompetency. If found incompetent, D will be either released on bail for treatment or committed to a mental health facility. Prosecution will proceed once D has regained competency.
Within what amount of time should a magistrate decide whether probable cause exists to believe that a person committed a felony offense? What are the consequences if a magistrate fails to make a probable cause determination w/in that time?
- Magistrate should decide whether probable cause exists w/in 48 hours of the arrest. Arrestees are normally taken before the magistrate of the county where arrested but if more expeditious, transfer to another county is proper. If not, D has the right to be actually released on bail and to have bail set so he can make it. This may require personal bond. Bails must be no more than $10,000.
What is “probable cause”?
Facts on which a reasonable person would conclude there was a fair probability that D was the perpetrator.
Is a peace officer authorized, on the basis of a warrant issued in another county in TX, to arrest D in another TX county?
- Yes, an arrest warrant issued by a magistrate extends to any part of the state and any peace officer who has possession of the warrant is authorized to execute it.
What should D raise if in a search warrant affidavit officer includes a statement that he knows to be false in every respect and a search warrant is issued based on the affidavit authorizing search of D’s residence, and officer finds evidence at residence?
- Move for a Franks Hearing seeking suppression of the evidence. D has the BOP to show a substantially preliminary showing that the false statement was knowingly and recklessly included and demand false potion to be struck from affidavit. If remainder of affidavit does not support PC then the evidence will be suppressed.
May police search the D on his person when he is arrested and booked at the station?
- Yes, an arrest warrant issued by a magistrate extends to any part of the state and any peace officer who has possession of the warrant is authorized to execute it.
What should D raise if search warrant executed 7 days after warrant was issued and evidence was found by officer?
D should move to suppress the evidence because the warrant was not timely executed (stale). A search warrant must be executed w/in 3 days exclusive of the date of issuance and execution.
What procedural step if any can you take to have the jury at D’s trial consider whether D’s post arrest statement was voluntarily made? What evidence must you present to get the court to allow jury to consider voluntariness issue?
If D can show that voluntariness of the confession is an issue of fact, then he may have the issue presented to the jury. The jury shall be instructed that it must find beyond a reasonable doubt that the confession was voluntary in order to consider it as evidence.
What procedural step if any can D take to have court exclude officer testimony about D’s confession from evidence? On what basis can D take this step
D can move to suppress the confession on the basis that oral confessions are inadmissible in TX unless a specific statutory exception applies. Here the confession was the result of a custodial interrogation and was not recorded nor did it lead to evidence that corroborated the statement. Thus it is inadmissible.
What is required for an electronic recording of a confession to be admissible at trial?
The confession must be voluntarily made, it must be recorded on an adequate recording device, the recording msut be accurate, all key voices must be identified, the statutory warnings must be given on the recording and the recording must be turned over 20 days prior to trial.
When must counsel be appointed for indigent defendant?
All felonies. Misdemeanors where state seeks more than a fine.
What services must state provide?
Interpreter, transcript, use of experts.
When must court appointed counsel contact the defendant?
No later than the first working day after appointment
What is bail? What is a bail bond? In what major way does a personal bond differ from a bail bond?
“Bail” is the security given by a D to assure that he will appear in court to answer the accusation against him. A bail bond is a written undertaking to the D and one or more sureties that they will pay the amount of bail if the D does not make his required appearance. A personal bond requires neither an adequate surety or a cash deposit in the amount of the bond.
What is “personal” bond?
Requires the D to pay the amount but does not require a surety or cash deposit. A Magistrate may impose any reasonable condition on the bail that is related to the safety of the victim of the crime or the community.
What are 3 rules for fixing the amount of bail?
(i) bail shall be sufficiently high to ensure that D appears for court settings and for trial; (ii) not set so high as to be an instrument of oppression; (iii) judge shall consider the nature of the charged offense in determining bail; (iv) judge shall consider the D’s ability to make bail; and (v) judge must consider the future safety of the victim and the community.
What is a writ of habeas corpus and in what circumstance should is be filed?
Where a magistrate denied D bail even though has no prior criminal record, counsel should file this writ. It is court order directing someone to produce an individual before the court and to show why that individual is being held. It is directed to a person having the individual in custody or under restraint. The writ may be granted by the Court of Criminal Appeals, a district court, a county court, or a judge in any of these courts.
What is an indictment? Discuss two ways in which an indictment and an information differ?
An indictment is a written statement of a grand jury accusing a named person of a criminal offense. Differences: (i) an indictment must be approved by a grand jury and signed by the foreman, while an information needs only be authorized and signed by the prosecutor; (ii) an information must be supported by a sworn complaint filed w/ the court, while an indictment does not require such support.
What are the formal requirements of an indictment?
(i) commence w/ words “In the name and by authority of The State of Texas”; (ii) appear that it was presented in the district ct. of the county where the grand jury is in session; (iii) appear to be the act of the grand jury of the proper county; (iv) contain name of the accused (or give reasonably accurate description if unknown); (v) show where offense committed is w/in jurisdiction of the court in which indictment is presented; (vi) charge the offense on a date before the presentment of the indictment; (vii) set forth offense in plain & intelligible words; (viii) conclude with the words “Against the peace and dignity of the State”; and (ix) be signed officially by the foreman of the grand jury.
Can D waive indictment?
Yes. Indictment can be waived in all cases except prosecutions for capital murder. If a D waives this, the D will be charged by an information signed and filed by the Prosecutor. Waiver of indictment has 3 requirements: (i) D must be represented by counsel; (ii) waiver must be by written instrument or in open court; (iii) waiver must be voluntary.
Does D have right to address the grand jury?
No. However, the grand jury may permit him to appear. The Prosecutor must consent to defense counsel’s addressing the grand jury.
What is the purpose of an examining trial?
Where D has been charged with a felony and not yet indicted she is entitled to an examining trial. Used to require the State to produce evidence establishing that there is probably cause to believe D is guilty of the offense charged. If the State fails to show probable cause, D is to be discharged until he is indicted. Magistrate will determine whether there is PC to belie D is guilty. D has the right to cross examine at an examining trial.
Under what conditions is D permitted to make an unsworn statement at the examining trial?
The D is entitled to make an unsworn statement at the examining trial if the magistrate warns him that 1) it is not required, 2) that it can be used against him, and 3)he may only make such a statement before other witnesses have testified. The statement must also be reduced to writing and signed.
What are 3 decisions a criminal D must personally make?
(i) what plea to enter; (ii) whether to have a trial by jury; and (iii) whether to take the W stand.
Who selects the people who serve on the GJ?
Commissioners appointed by the District judge will compile a list of 15-40 persons form which the District Judge will impanel 12 grand jurors and 2 alternates OR the District Judge himself will pick the grand jury members for a petit jury list.
