Crim Practice 5 Flashcards
Bill, Reggie, and Sally decided to steal an automatic teller machine (“ATM”) from Munchies, which was a local convenience store in Houston, Texas. At 2:00 a.m. on December 24, 2015, Bill gave Reggie and Sally a ride to Munchies in his black 2010 Ford pickup truck. bill got out, and Sally backed the pickup truck through the front door and dislodged the ATM inside of Munchies from its base. Bill and Reggie loaded the ATM onto the pickup truck, and the three of them drove back to Reggie’s apartment in Houston.
At 6:00 p.m. on December 24, 2015, Houston Police Officer Jones (“Officer Jones”) found a dismantled ATM, but no money, in an alley in Houston. Officer Jones surmised that the ATM was the one stolen from Munchies, and he had an expert lift fingerprints from it. The fingerprints lifted from the inside of the ATM matched fingerprints from it. The fingerprints lifted from inside of the ATM matched fingerprints on file for Reggie. A security videotape showed a 2010 black Ford pickup truck driving into and out of the parking lot at Munchies at around 2:00 a.m. on December 24, 2015.
Officer Jones obtained an arrest warrant for Reggie and arrested him in Houston on January 1, 2016. Reggie was detained in the county jail and was charged by a criminal complaint with the second degree felony of theft for stealing the ATM.
- List 3 requisites of an arrest warrant.
1) Individual’s name,
2) the offense, and
3) signature of the magistrate.
- A magistrate has scheduled an examining trial on the accusation that Reggie committed the theft of the ATM.
List 3 rights that Reggie has at his examining trial.
1) Presence, to cross-examine or confront the witness,
2) right to counsel, subpoena witness or compulsory process, to make an unsworn statement,
3) to remain silent or assert the Fifth Amendment privilege
- Officer Jones wants to search Reggie’s apartment for the cash that was in the ATM when it was stolen.
What document must be filed in every instance in which a search warrant is requested, and what must it state?
Requisites for a Search Warrant:
1) Include a sworn affidavit,
2) set out the facts stating probably cause,
3) the place to be searched,
4) items to be seized, and
5) establish the place to be searched where the items to be seized will be contained.
- Pursuant to a search warrant, Officer Jones searches Reggie’s apartment and finds a stack of $20 bills and a photograph showing Bill, Reggie, and Sally standing in front of Bill’s 2010 black Ford pickup truck. Officer Jones immediately leaves Reggie’s apartment and arrests Bill and Sally. Bill and Sally are each charged by a criminal complaint with the second degree of theft of the ATM. You are appointed to represent Sally.
Was Officer Jones’s arrest of Sally valid? Explain your answer.
In this case the officer arrested an individual without a warrant who had not committed a felony offense in his presence.
1) No offense had been committed,
2) the officer had no warrant,
3) the officer had no probable cause to believe she had committed a crime, and
4) the officer did not observe her commit a felony in his presence.
- A grand jury is convened in Houston to consider the theft of the ATM from Munchies.
How is a grand jury chosen?
Law has recently changed from the old “key man system.” Now:
1) The court summons the grand jurors,
2) the grand jurors are summoned in the same manner as petit jurors
- The grand jury returns an indictment of Reggie, charging him with the second degree felony of theft for stealing the ATM in one count and additionally charging him with the state jail felony of burglary for burglarizing Munchies in a second count.
Is it legal for one indictment to charge Reggie with the two offenses of theft of the ATM and burglary of Munchies? Explain your answer.
1) Yes, the offenses can be indicted together,
2) the same indictment is proper for the offenses arising from the same criminal episode.
- The grand jury returns separate indictments against Bill and Sally charging each of them with the second degree felony of theft for stealing the ATM.
List 3 requisites of an indictment.
1) Must commence with “In the name and by the authority of the State of Texas,”
2) presented in the District Court and in the County where the grand jury was in session,
3) must appear to be an act of the grand jury in the proper county,
4) state the name of the accused or that it is unknown with adequate identification,
5) that the offense presented was in the jurisdiction,
6) the time anterior to the date of the indictment but within the statute of limitations,
7) offense set forth in intelligible words,
8) must conclude “against the peace and dignity of the State,”
9) must be signed by the Grand Jury Foreman,
10) upon the finding of probably cause
- You give the prosecutor (“Prosecutor”) a timely written request for discovery, and Prosecutor allows you to review the discovery in her office. When you request to make a photocopy of the offense report authored by Officer Jones, Prosecutor refuses to allow you to do so.
As Sally’s attorney, do you have the right to make a photocopy of the offense report written by Officer Jones? Explain your answer.
1) Yes,
2) the Code of Criminal Procedure expressly provides that you can inspect and copy police reports
- Prosecutor tells you that Officer Jones will testify at trial as follows: “I recall that, after I arrested Sally, read her rights to her, and questioned her, she responded that she had helped Bill and Reggie commit the crime.”
What procedural step, if any, can you take to try to prevent Prosecutor from introducing this testimony by Officer Jones at trial? If there is such a step, on what basis can you take it?
[an unrecorded statement can be suppressed or excluded unless independent evidence corroborated that statement]
1) file a motion to suppress or exclude evidence,
2) the statement was not recorded as is required,
3) unless it is corroborated by other evidence
*not motion in limine
- Sally tells you that she is not guilty and that she wants a jury trial. She also tells you that she wants to be placed on probation if she is convicted.
What procedural step should you take to allow the jury to recommend probation, and when should you take that step?
1) File a sworn motion for probation asserting that there is no prior conviction of felony,
2) file the motion before trial
- Reggie decides to cooperate with Prosecutor and to accept a plea agreement that provides for him to enter a plea of nolo contendere to his indictment.
In what ways is a plea of nolo contendere the same as or different from a plea of guilty? Explain your answer.
A plea of nolo contendere has the same legal effect as a plea of guilty, but it cannot be used in a civil case to attach as liability.
- Prosecutor tells you that she wants to have a joint jury trial of Bill and Sally for the theft of the ATM.
May Bill and Sally be tried jointly given that they were charged in two separate indictments? Explain you answer.
1) Yes,
2) two or more individuals may be tried jointly for the same offense of offenses arising out of the same transaction.
- Assume that a setting has been docketed for a joint jury trial of Bill and Sally. Bill has a prior felony conviction for theft that will be admissible at trial, but Sally has never been convicted of a crime.
What procedural step can you take to try to protect Sally from the admission of this evidence at trial?
Bill’s prior felony conviction entitles Sally to a severance.
1) You would move for severance, and
2) severance should be granted because of Bill’s prior felony.
- Prosecutor files a motion requesting that Sally have her fingerprints taken by a certified latent fingerprint examiner so that the fingerprints may be compared to the fingerprints lifted from inside of the ATM. You file a response to Prosecutor’s motion, objecting that ordering Sally to submit to fingerprinting would violate her right against self-incrimination.
How should the Court rule on your objection? Explain your answer.
1) The Court should overrule my objection because
2) fingerprints are not testimonial-they are physical attributes and identity (exemplars).
- Bill and Sally are tried together at a joint jury trial. On the morning of jury selection, Prosecutor asks the Court to amend Sally’s indictment to add a count charging Sally with the state jail felony of burglary for burglarizing Munchies. You object to amendment of the indictment.
How should the Court rule on your objection? Explain your answer.
1) It is sustained,
2) it cannot amend an indictment with an additional offense or different offense than that presented to the grand jury.
