Crim Practice 1 Flashcards
Wendy was waitress at a restaurant (“Restaurant”) in Texas. Her friend, Sally, offered to pay her to swipe Restaurant’s customers’ credit cards through a miniature credit card reader to obtain their credit card information. Wendy agreed and began swiping customers’ credit cards through Sally’s credit card reader, as well as through Restaurant’s cash register. Once per week, Sally retrieved the credit card reader from Wendy and gave her a new one.
One month later, Restaurant’s best customer, Emmett, noticed a $300 charge at a store in Illinois on his credit card bill. Because Emmett had never been to Illinois, he called the police. To investigate Emmett’s complaint, Police Detective Loss (“Det. Loss”) went to Restaurant, ordered a meal, and gave Wendy his credit card to pay for it. He saw Wendy swipe his credit card through Sally’s credit card reader as well as through Restaurant’s cash register. Det. Loss arrested Wendy and confiscated Sally’s credit card reader. Wendy told Det. Loss that Sally had given her the credit card reader and had agreed to pay her fro swiping cards. Det. Loss then arrested Sally.
Sally has been charged by a complaint with the second degree felony of fraudulently obtaining, possessing, and using the identifying information of another. She has been brought before a magistrate.
Questions to follow.
- Name three of the right about which the magistrate should advise Sally.
The magistrate must advise the arrestee of (i) the crime charged; (ii) the right to retain counsel; (iii) the right to remain silent; (iv) the right to terminate the interview at any time; (v) the right to have an attorney present during any interview with police officers or attorney representing the state; (vi) the right to have an examining trial; and (vii) any filed affidavits in connection with the arrest.
[Any combination of 3 would be acceptable.]
- You are appointed to represent Sally, who is being held in jail without bail. Within what time period should you contact Sally? What may the Court do if you fail to meet this deadline? Explain fully.
An attorney appointed as counsel for an indigent client must make every reasonable effort to contact the D not later than the end of the first working day after the date on which the attorney is appointed and to interview the D as soon as practicable after the attorney is appointed. The court may replace me as attorney if I do not comply with these client contact requirements.
- What facts, if any, in Sally’s prior criminal record would allow a district judge to deny Sally bail? Explain fully.
A court may find that no bail is appropriate used on the sufficiency of the crime. Here, Sally may be denied bail if: (i) there is substantial proof of her guilt of a presently charged felony and two prior felony convictions, with the first prior conviction occurring before commission of the second; or (ii) she has committed a noncapital felony while released on bail for a presently charged felony for which there is substantial evidence of guilt.
[There are additional situations that may result in denial of bail, but they are inapplicable based on these facts.]
- When you meet with Sally in jail, she claims she was merely gather information for a survey of consumers’ food preferences. She also asks you whether a judge can “throw out” the charges against her. At this early stage of the prosecution of Sally, is she entitled to a proceeding in which the truth of the accusation made against her will be considered? If there is such a proceeding, what is it, and what determination will be made? Explain fully.
Because Sally has been arrested but not yet charged by a grand jury indictment, she is entitled to an “examining trial” in which a magistrate determines whether there is probable cause of guild sufficient to bind the accused over for trial. At the conclusion of the examining trial, the judge must make an order committing the D to jail, discharging him, or admitting him to bail, but the failure to establish probable cause will not bar prosecution.
- Det. Loss is considering obtaining a search warrant for Sally’s apartment. What are the requisites for a search warrant to be sufficient under the Texas Code of Criminal Procedure? Explain fully.
A valid search warrant must be issued by a neutral and detached magistrate based on probable cause, supported by oath or affidavit, and must describe with particularity the places to be searched and the items to be seized. The search warrant also must (i) run in the name of the State of Texas, (ii) identify, as nearly as possible the thing to be seized, (iii) describe, as nearly as possible, the person, place or thing to be searched, (iv) command any police officer to search the person, place, or thing named, and (v) be dated and signed by the magistrate.
- Due to your efforts, bail is set for Sally, and she is released from jail. Sally subsequently disappears, and no one is able to locate her. Thereafter, a grand jury indicts her for the second degree felony of fraudulently obtaining, possessing, and using the identifying information of another. How many jurors serve on a grand jury, how many must concur for a person to be indicted, and who drafts the indictment? Explain fully.
Twelve jurors serve on the grand jury panel. At least nine of the twelve grand jurors must concur in order to issue an indictment. The prosecutor drafts the indictment and give it to the foreperson of the grand jury for presentment to the court.
- After Sally is indicted, the clerk, at the direction of the judge of the Court having jurisdiction of Sally’s case, issues a capias. What is a capias? Explain fully.
A capias (bench warrant) is a writ from the court or the clerk ordering an arrest after the filing of a formal charge (indictment or information) when the D is not already in custody. A capias must be made in the name of “The State of Texas,” name the person whose arrest is ordered, specify the offense the D is accused of, name the court to which and the time when it is returnable, and be dated and officially attested to by the authority issuing it.
- The Court sets a pretrial hearing in Sally’s case. Due to the popularity of Restaurant, you decide to file a motion for change of venue. When must you file your motion? What consequence, if any, is there if you do no file your motion by that date? Explain fully.
My motion to transfer venue is a preliminary matter, and I should file it before the pre-trial hearing to be heard at that hearing. When a criminal case is set for a pre-trial hearing, any preliminary matters not raised or filed by the D 7 days before the hearing, if the D has been given at least 10 days’ notice of the hearing, will not thereafter be allowed to be raised or filed, except by permission of the court for good cause shown.
- After Sally is located, you meet with her. She states that she would be willing to plead guilty, but that she wants a jury to assess the punishment in her case. Does the Texas Code of Criminal Procedure allow a jury to assess punishment when a D enters a guilty plea? Explain fully.
When a D in a case of felony pleads guilty or nolo contendere, if the punishment is not absolutely fixed by law, a jury must be impaneled to assess the punishment unless she waived her right to trial by jury.
- You phone the prosecutor (“Prosecutor”) in Sally’s case and request to inspect the credit card reader that was confiscated from Wendy so that you can prepare for trial. Prosecutor refuses to allow you to inspect the credit card reader. What procedural step, if any, can you take to try to get access to the credit card reader? If there is such a procedural step, what must you show to get access to the credit card reader? Explain fully.
The prosecutor must produce the machine upon my motion showing good cause. I should file a motion to inspect the device, and upon my showing, the court will require the State to produce for inspection and copying any unprivileged evidence within its control or custody, including the machine.
- You propose a plea bargain to Prosecutor that would allow Sally to plead guilty to a misdemeanor that is a lesser included offense of the offense charged in the indictment. Does the district court have jurisdiction over such a lesser included offense? Explain fully.
Because the indictment showed the offense charged to be a felony, jurisdiction in the case is proper in the district court. Criminal district courts can also find the D guilty of a misdemeanor, lesser-included offense even when that court’s jurisdiction was usually limited to felony offenses, if the evidence was sufficient to prove a lesser-included offense but not the alleged felony offense.
- Sally tells you that she wants a jury trial as to her guild and her punishment. She also tells you that: (a) if she is found guilty, she wants probation; and (b) she has no prior convictions in Texas, but has a prior felony conviction in Idaho. Is Sally eligible for probation? If a D is eligible for probation, what procedural step should defense counsel take to allow a jury to recommend it, and when should defense counsel take this step? Explain fully.
To be eligible for community supervision, the D must file a written sworn application (affidavit) before the trial begins stating the she has never been convicted of a felony offense, and failure in a jury case to file an application for community supervision until after the trial has started waives the right to have the jury consider it. Here, because Sally cannot file the affidavit stating she has no prior felonies due to the felony in Idaho, a jury cannot recommend community supervision.
- You and Sally appear in court for jury selection. About an hour after the beginning of jury selection and after numerous prospective jurors have been questioned regarding their ability to be fair in Sally’s case, Sally tells you that she thinks 18 out of the first 20 prospective jurors are customers of Restaurant. What action, if any, can you take to change the seating of the prospective jurors? Explain fully.
I may request a jury “shuffle,” or the re-seating, in random order, of the prospective jurors in the venire panel. On request of either party, the judge must order the clerk to randomly shuffle the jurors’ names and place them on a new list, but only one shuffle is permitted and must be conducted before voir dire. Here, because voir dire has begun, a jury shuffle cannot be conducted.
- During jury selection, Prosecutors ask the prospective jurors the following question: “If the evidence in a hypothetical case, showed that a person gave a credit card reader to a waitress, asked her to swipe customers’ credit cards through it, and then retrieved it on a weekly basis, is there anyone who could not convict that person based on that evidence?” You object to that question. How should the Court rule on your objection? Explain fully.
Hypothetical questions that attempt to commit prospective jurors to a certain punishment verdict based on facts peculiar to the case on trial are improper. The State’s line of questioning was improper as it suggests a predetermined determination of guilt, and the court should sustain my objection.
