Criminal Procedure Flashcards
Probable Cause
Officer’s personal knowledge based on facts, circumstances, and reasonably trustworthy information warrants a prudent person to believe crime committed
Arrest
a deprivation of freedom of movement by actual physical restraint or custody
Warrants require:
Probable cause + particularity
Requirements of Arrest Warrant:
- In the name of “The State of Texas”
- Name or description of person to be arrested
- State the alleged offense
- Signed by magistrate
- Accompanied by sworn statement (affidavit/complaint); must establish probable cause
Exceptions to Arrest Warrant Requirement:
- Crime committed in presence of arresting party (officer or citizen)
- Reasonable belief arrestee committed a felony (officer only)
- Exceptions when there is PC:
a. Offense resulting in bodily injury with danger of further injury
b. Violating a protective order
c. Offense of family violence
d. Interference with emergency phone call
e. Felony, breach of the peace, or public intoxication and found in “suspicious place”
f. Felony and about to escape (no time for warrant)
g. Voluntary statement to police that committed a felony
i. Stolen property discovered by the officer
When must an initial appearance occur?
Must see a magistrate within 48 hours of arrest
At the initial appearance, what must the arrestee be advised of?
- Crime charged;
- Affidavits;
- Right to retain counsel (or appointment of counsel);
- Right to remain silent;
- Right to have attorney present during any police interview;
- Right to terminate interview; and
- Right to examining trial.
Form of Search Warrant
- “State of Texas”
- Identify people/objects
- Signed and dated
Evidentiary Warrant Requirements
Must allege sufficient facts to establish PC that:
1. Specific offense has been committed;
2. Specifically described property constitutes evidence of offense or particular person committed that offense; and
→ Only described items may be seized (unless independent grounds)
→ May not be issued for “personal writings of accused” as mere evidence
→ May not be issued for media property as mere evidence
3. Property is located in a particular place or on particular person
When must a search warrant be executed?
Within 3 days not including day of issuance and day of execution
When must a search warrant for a DNA specimen be executed?
Within 15 days
When must a search warrant for electronic consumer data be executed?
Within 11 days
What is Franks Hearing?
An evidentiary hearing held after ∆ alleges deliberate or reckless falsity of the affidavit underlying the search warrant.
Court may only look to the four corners of the affidavit
Exceptions to Search Warrant Requirement
- Search incident to lawful arrest
- Hot pursuit
- Emergencies
- Stop and Frisk
- Automobiles
- Plain-View Doctrine
- Consent
- Administrative Searches
Jurisdiction of District Court
Original jurisdiction for felonies, official misconduct, and cases transferred from county courts
Jurisdiction of County Court
Original jurisdiction for all misdemeanors not under the exclusive jurisdiction of justice court and fine exceeds $500
Appellate jurisdiction for criminal cases originating in inferior courts
Jurisdiction of Justice Courts
Original jurisdiction for cases punished by fine
Jurisdiction of Municipal Courts
Exclusive jurisdiction over criminal ordinance violations within territorial limits punishable by fines not exceeding $500
Concurrent Jurisdiction with justice courts if committed within territory, violates state law, and punishable by fine or sanction.
Jurisdiction of Court of Appeals
All criminal cases except death penalty
Jurisdiction of Court of Criminal Appeals
Final appellate jurisdiction in all criminal cases
Discretionary review, except for death penalty cases
Proper Venue
Any county where offense occurred or offender is found
If neither, where offender resides
Time Limitations on Actions (General)
Felony indictment within 3 years of commission
Misdemeanor within 2 years of commission
Information
Written statement for Class A and B misdemeanors
With affidavit
Complaint
Written affidavit for Class C misdemeanors
Indictment
Written statement by grand jury for felonies
Required Contents of Indictment
- Start with “In the name and by the authority of the State of Texas”
- Requires offense set out in plain, intelligible words
- Must contain specific information concerning jurisdiction, identity of accused, offense charged, and all necessary elements
- End with “against the peace and dignity of the State”
How many people are summoned to be grand jurors?
Between 20 and 125
Key Man System
Commissioners selected by the district judge compile a list of people from which the judge chooses
Jury Wheel
Selection by the district judge directly from a list of petit jurors randomly selected from voter and driver’s license registrations
Grounds to Challenge a Particular Grand Juror
- Juror is insane
- Juror is unfit for service due to mental or bodily defect, including legal blindness
- Jury is a witness in a grand jury investigation
- The juror served on a petit jury in a former proceeding for the same alleged conduct
- The juror has bias or prejudice against the person accused
- The juror has a pre-established conclusion as to guilt or innocence that would influence the juror’s vote
- The juror is related within the third degree to an accused or a victim of an offense the grand jury is investigating
- The juror is not a qualified juror
- The juror has a bias or prejudice against any law upon which the state is entitled to rely
- The juror is the prosecutor of an accusation against the person making the challenge
Quorum for Issuing an Indictment
9 jurors
Capias
AKA Summons
Orders arrest or appearance
Must specify arrestee, offense, name of court, and date
Grounds for Motion to Set Aside an Indictment
- Procedure: no quorum; unauthorized person present; illegal impaneling
- Substance: does not allege ∆ committed an offense; barred by time; indictment contains legal defense; indictment shows court does not have jurisdiction
Guilty Plead Procedure
- Admonishment or advice of rights
- Waiver of those rights and right to trial by jury
- Recitation of facts sufficient to establish guilt
What is an examining trial?
A preliminary hearing where a magistrate determines probable cause to bind accused over
When does ∆ have a right to an examining trial?
In felony cases before indictment
Rights of the accused in an examining trial
- Right to counsel
- Right to be present when witnesses testify
- Right to confront and cross-examine State witnesses
- Right to subpoena witnesses
- Right to request witness sequestration
- Right to make unsworn statement before witness examination and give sworn testimony
When may ∆ be released on recognizance?
If ∆ is charged with a fine-only misdemeanor and has no convictions for felonies or misdemeanors punishable by jail time.
Release when arrested for misdemeanor with no warrant
Must be released on bond within 24 hours
Bond not to exceed $5,000
Release when arrested for felony with no warrant
Must be released on bond within 48 hours
Bond not to exceed $10,000
Determinations Made at Pre-trial Hearings
- Arraignment
- Pleadings
- Exceptions to Indictment or Information
- Motions for Continuance
- Motions to suppress evidence
- Discovery
- Entrapment
- Appointment of Interpreter
Pre-Trial Motions
- Quashing the charge
- Motions in limine
- Motions to disqualify the judge
- Motion to suppress
- Motion for jury sentencing
- Motion suggesting incompetence
- Motion for continuance: absent witness
Test for Competency to Stand Trial
∆ does not have sufficient present ability to consult with lawyer or rational and factual understanding of proceedings against him.
Subpoena
Order to appear before trial court, examining court, coroner’s inquest, grand jury, habeas corpus hearing, or any other proceeding
Subpoena duces tecum
Order to produce tangible evidence
For which offenses is there a right to jury trial?
∆ entitled to jury in all felony trials unless waived
Number of jurors for district court
12 jurors in felonies in district court
Up to 4 alternates
Number of jurors for inferior courts
6 for misdemeanors in inferior court
Up to 2 alternates
Gaskin Rule
After witness testifies (other than ∆), other party may move for any statement relating to the witness’s testimony
Consequences for Failing to Comply with Gaskin Rule
∆: witness testimony stricken
State: mistrial
Allocution
∆ has the right to speak directly to court (sentencing)
Standard of Review on Appeal
Sufficiency of the Evidence viewed in light most favorable to the verdict
Whether any rational trier of fact could have found essential elements beyond a reasonable doubt
Rules for Bail
(1) Bail shall be sufficiently high to give reasonable assurance that the undertaking is to be complied with
(2) Shall not be used as an instrument of oppression
(3) Safety of the victim and the community to be considered
(4) nature of the offenses and the circumstances
(5) Ability to make bail
Factors to Determine Indigence
(1) Income
(2) Source of Income
(3) Assets
(4) Outstanding debt
(5) Necessary expenses
(6) Number and age of dependents
(7) Any spousal income that is available to ∆
Not permitted to consider ability to post bail alone
Motion for Continuance: Absent Witness
(1) Diligence in attempting to procure attendance
(2) Materiality of the Testimony
(3) Not made for purposes of delay
(4) Absence not procured by ∆
(5) No reasonable expectation that attendance can be achieved by trial
If a witness, properly served with a subpoena, refuses to appear, what can you do to secure their attendance?
Have attachment issued
Is an instruction on “reasonable doubt” required?
No, best practice not to have one
Some courts allow it if both parties agree
