crim FAQ-2

Question 1

What two forms can a bail bond take?

Answer 1

Surety Bond: A written undertaking entered into by the defendant and his sureties to secure his appearance in court

Cash Bond: Contains the same undertaking, but the defendant, not a surety, makes a cash deposit with the court in the amount of the bond

Question 2

What is a personal bond?

Answer 2

A personal bond is a written promise by the defendant to appear in court to answer the criminal accusation(s) that is secured only by the defendant’s promise to pay the bond amount if he fails to appear.

Question 3

When may a court release a defendant on recognizance?

Answer 3

Recognizance may be granted by a magistrate if the defendant (i) is charged with a time-only misdemeanor and (ii) has no convictions for felonies or misdemeanors punishable by jail time.

Question 4

In determining the amount of bail, what things are the court required to consider?

Answer 4

The court must consider:

1. What amount is sufficiently high to give reasonably assurance that the defendant will appear;
2. That the power to require bail cannot be used as an instrument of oppression;
3. The nature of the offense and the circumstances under which it was committed;
4. The defendant’s ability to make bail (proof may be taken on this point); and
5. The future safety of a victim of the alleged offense and the community.

Question 5

On what basis must the trial of more than one defendant be severed, and when must the issue be raised?

Answer 5

A trial of multiple defendants must be severed if (i) there is an admissible conviction against one defendant, or (ii) a joint trial would be prejudicial to any defendant. The motion to sever must be made before trial, or if there is a pre-trial hearing, by the pre-trial hearing.

Question 6

If—prior to a trial—a defendant seeks to keep the prosecutor from introducing at trial illegally obtained evidence, what motion should the defendant file?

Answer 6

A defendant should file a motion to suppress the evidence and/or a nontraditional motion in limine asking the court to rule on the admissibility of the evidence at trial.

Question 7

What is the presumption regarding a defendant’s competency, and how is the issue of a defendant’s incompetence raised?

Answer 7

A defendant is presumed competent to stand trial unless proved incompetent by preponderance of the evidence. Either party or the court may suggest by motion that the defendant is incompetent to stand trial.

Question 8

What must a motion for a continuance due to an absent witness contain?

Answer 8

1. Diligence in attempting to secure the witness’s attendance;
2. Materiality of the witness’s testimony;
3. That the motion is not made for purpose of delay;
4. That the absence was not procured by the defendant; and
5. That there is no reasonable expectation that attendance can be obtained by the time of trial.

Question 9

What information must the prosecutor produce for the defendant’s inspection, electronic duplication, photographing, and copying after receiving the defendant’s timely request?

Answer 9

(i) Any offense reports; (ii) any designated documents, papers, written or recorded statements of the defendant or a witness, including witness statements of law enforcement officers; and (iii) any unprivileged designated documents, objects, or other tangible things that constitute or contain evidence and are in the possession, custody, or control of the State

Question 10

Can the prosecutor withhold information subject to the right of inspection as long as the prosecutor does not think will be helpful to the defendant?

Answer 10

No. Unlike the Brady disclosure obligation, there is no requirement that this material be helpful to the defendant.

Question 11

Can a defendant waive the right to a jury trial on the issue of her guilt?

Answer 11

Yes, but only if the defendant makes the waiver (i) in person; (ii) in writing, (iii) in open court, and (iv) with the consent and approval of both the court and the prosecutor.

Question 12

When there is only one defendant, how many peremptory challenges does each party get in (a) a capital case in which the State seeks the death penalty, (b) any other felony case, and (c) a misdemeanor case tried in district court?

Answer 12

DP: 15
Other felonies: 10
Misdemeanor in DC: 5

Question 13

When there is more than one defendant, how many peremptory challenges does each defendant get in (a) a capital case in which the State seeks the death penalty, (b) any other felony case, and (c) a misdemeanor case tried in district court?

Answer 13

DP: 8
Other felonies: 6
Misdemeanor in DC: 3

Question 14

How many peremptory challenges may be exercised against alternate jurors if (i) one or two alternate jurors are to be chosen, or (ii) three or four alternate jurors are to be chosen?

Answer 14

For one or two alternate jurors, the State and the defendant each get 1 peremptory challenge.

For three or four alternate jurors, the State and the defendant each get 2 peremptory challenges.

Question 15

When is a judge disqualified from serving as judge?

Answer 15

A judge is disqualified if the judge (i) is interested (ii) has been of counsel for the State or the accused in the very case before the judge, or (iii) the accused or the party injured is connected with the judge by consanguinity or affinity within the third degree.

Question 16

What restrictions are there on the charge given by the judge to the jury?

Answer 16

The charge may not (i) express any opinion as to the weight of the evidence, (ii) sum up the testimony, (iii) discuss the facts, or (iv) use any argument calculated to arouse the jury’s sympathy or excite its passions.

Question 17

When a party doubts that a juror voted in favor of a verdict, what action can the party take?

Answer 17

The party can ask the judge to poll the jury, which requires the judge to address each juror separately and ask if the verdict is the juror’s.

Question 18

a felony case, how many jurors must be impaneled and how many must agree with the verdict?

Answer 18

12 impaneled and all must agree on the verdict

Question 19

Does a defendant have the right to have a jury determine her sentence?

Answer 19

The judge generally determines the sentence, but a defendant may elect to have punishment assessed by the jury in non-capital cases by making a motion for jury sentencing before voir dire of the jury panel.

Question 20

When must a new trial motion be filed?

Answer 20

30

Question 21

What is the standard for granting a new trial motion based on the verdict?

Answer 21

The verdict must be contrary to the law and the evidence.

Question 22

May the court grant a new trial motion on its own accord?

Answer 22

No, the trial court may only grant a new trial motion on the defendant’s motion.

Question 23

Can a defendant who has been acquitted bring an ineffective assistance of counsel claim?

Answer 23

No, since the defendant cannot show that the result would have been different.

Question 24

When can a defendant be convicted on the testimony of an accomplice?

Answer 24

When the accomplice’s testimony is corroborated.

Question 25

Is there a physician-patient privilege in Texas criminal cases?

Answer 25

No

Question 26

When may a witness be impeached by a prior crime?

Answer 26

Any witness may be impeached by evidence that he committed any felony or any crime involving moral turpitude as long as the probative value of the evidence outweighs its prejudicial effect to a party.
• There is no special rule for a criminal defendant.

Question 27

What action must the proponent of a business record take in order to admit such a record as self-authenticating?

Answer 27

At least 14 days before trial, the proponent of a business record must serve a copy of the record and the custodian’s affidavit on the opposing party.

Question 28

Who has a right to make a statement in court about the impact of the offense, and when can this statement be made?

Answer 28

A victim, close relative of a deceased victim or guardian of a victim has the right to appear in person after the sentence has been pronounced to present to the court and to the defendant a statement of the person’s views about the offense, the defendant, and the effect of the offense on the victim.

Question 29

What is the minimum and maximum length of community supervision for a felony?

Answer 29

The minimum period is the minimum term of imprisonment for the offense. The maximum period is generally 10 years for most felonies, but is five years for some third-degree felonies.

Question 30

In order to be eligible for probation, what is the maximum length of imprisonment to which the defendant can be sentenced?

Answer 30

Ten years.

Question 31

In a jury trial, what action must a defendant take to allow the jury to recommend probation?

Answer 31

Before the trial begins, the defendant must file a written sworn motion with the judge stating that the defendant has not previously been convicted of a felony in this or any other state.

Question 32

What is probation?

Answer 32

The suspension of a defendant’s sentence or the imposition of a fine after conviction or the acceptance of a plea of guilty or nolo contendere and the placement of the defendant on community supervision.

Question 33

What is deferred adjudication?

Answer 33

The judicial deferral of further judicial proceeding without entering an adjudication of guilt and the placement of the defendant on community supervision. The judge may do so after receiving a plea of guilty or nolo contendere, hearing the evidence, and finding that it substantiates the defendant’s guilt, if the judge believes that the best interest of justice, society, and the defendant will be served.