Criminal Procedure Flashcards
Arrest Warrant Requirements
1) In the name of Texas
2) Name or reasonably specific description of the person to be arrested;
3) Name of the offense
4) Signature of the magistrate
Complaint
A sworn affidavit filed by an officer seeking an arrest warrant; it charges a commission of the crime and contains facts that allow a determination of probable cause. Based on personal knowledge or a reliable informant (alleging the informant’s veracity, reliability, and basis of knowledge).
Standard for Arrest
Probable cause, by warrant or otherwise
Four-Corners Rule
Magistrate may only evaluate the complaint for probable cause to issue the warrant.
Summons
May be issued instead of an arrest warrant - just tells a person to show up at a particular time.
Arrest Without Warrant
Probable cause and one of 9 exceptions:
1) Committed in the presence of an officer;
2) Committed offense involving bodily injury and likely to cause further injury;
3) Violated a protective order (mandatory if in the officer’s presence)
4) Family-violence offense
5) Prevented or interfered with an emergency call;
6) Committed a felony, breach of the peace or public intoxication and is found in a suspicious place (e.g., probable cause has arisen in the presence of the officer)
7) Committed a felony and is about to escape
8) Provided probable cause by a voluntary statement
9) Possesses stolen property discovered by the officer
Citation in lieu of arrest
- Traffic offenses (mandatory for speeding tickets and open container violations)
- Class C misdemeanor except for public intoxication
- Certain Class A and B misdemeanors (theft, minor damage to property, possession of 4 ounces or less of marijuana)
Arrest at aresidence
Requires a warrant, consent or exigent circumstances.
Search Warrant Standard
Requires a sworn affidavit by which the magistrate can determine probable cause that (1) something subject to seizure (2) is on the certain premises (3) at the time the warrant is issued.
Affidavit must show (1) that an offense has been committed; (2) the items searched for are evidence or a particular person committed it; and (3) the items or person are at the time and place specified.
Search Warrant Requirements
1) Runs in the name of the State of Texas
2) Identifies the things to be seized
3) Describes the person, place or thing to be searched
4) Commands any peace officer to search, and
5) is dated and signed by the magistrate
Purpose of a Search Warrant
May be issued for:
1) contraband
2) instruments of a crime
3) fruits of a crime
4) evidence of a crime or
5) a person if located in someone else’s house
Evidentiary Warrants
A warrant to search for and seize property or items constituting evidence of an offense or tending to show that a particular person committed it, other than personal writings of the accused. May not be issued for evidence in a news media office or radio or television station.
Issuance of an evidentiary warrant
Only judges who are licensed attorneys may issue, unless the only such judges are judges of districts including more than one county or the warrant is for a blood sample of a person arrested for DWI-related offense who refuses to give a breath or blood sample.
Timeframe for warrants
Must be executed within 3 days of issuance, excluding day of issuance and day of execution, or 15 days for a DNA specimen warrant.
Wiretap
May be issued only:
1) on probable cause for a felony murder, child pornography, or a felony drug offense, by a particularly appointed district judge and lasts for 30 days.
Pen REgister
A device for recording phone numbers called, may be ordered for up to 30 days.
Trap and Trace Device
A device for monitoring the origin of phone calls, may be ordered for up to 30 days.
Jurisdiction
- District court: felonies and misdemeanors involving official conduct;
- County courts - misdemeanors punishable by jail time and appeals from justice-of-the-peace courts.
- Justice-of-the-peace courts and municipal courts have exclusive jurisdiction of city ordinances violation and have jurisdiction over fine-only offenses.
Venue
1) Where any element occurred
2) If any part of the offense occurred outside of Texas, may be the county in which the offender is found
3) If venue cannot be determined, where the defendant resides, was apprehended, or to which he was extradited.
State has burden to prove with a preponderance of the evidence. If not disputed appeals will revert only if the record affirmatively shows no venue.
Statute of limitations (general rules)
- Generally three years for felonies
- Generally two years for misdemeanors
Statute of Limitations (no limits)
- Murder
- Manslaughter
- Sexual assault (a) of a child, (b) when probable cause suggests at least five victims, or (c) when forensic evidence is available for DNA testing.
- Continuous sexual abuse of a young child
- Indecency with a child
- Leaving the scene of an accident resulting in death
Statute of Limitations (10 years)
- Theft from an estate or by a public servant
- Forgery
- Arson
- Injury to an elderly or disabled person punishable as a felony
- Other sexual assaults
Statute of limitations (7 years)
- Misapplication of fiduciary property or property of a financial institution
- Securing execution of a document by deception
- felony tax violation
- money laundering
- credit card abuse
- identity theft
Statute of limitations (5 years)
- Theft
- robbery
- burglary
- kidnapping
- injury to a child, elderly or disabled individual not punishable as a felony of the first degree
- abandoning or endangering a child
- insurance fraud
Special 10-year statute of limitations
From 18th birthday of a child in the case of injury to a child.
Special 20-year statute of limitations
From 18th birthday of a child who was the victim of (1) sexual performance of a child or (2) kidnapping or burglary of habitation committed with the intent to commit a sexual offense against a child.
First appearance before a magistrate
Must occur without unnecessary delay, but no later than 48 hours after arrest.
Magistrate must inform the accused of:
1) charges against him
2) right to remain silent
3) right to counsel
4) right to have his attorney present during any interrogation
5) right to terminate a prosecutorial interview;
6) right to an examining trial
7) any affidavits filed in connection with the arrest
Magistrate may:
Probable cause determination must be made by magistrate within 24 hours in a misdemeanor case and within 48 hours in a felony case.
Set bail
Make a determination of indigence (but cannot be based on ability to make bail)
Appointed Counsel
Must make every reasonable effort to contact the defendant on the next working day, interview the defendant as soon as practicable and have at least 10 days to prepare for trial.
Purpose of examining trial
Determine whether probable cause exists to hold the accused for trial, if defendant charged with a felony and no indictment yet.
Types of bail
Personal bond, cash bond and bail or surety bond.
Factors for bail
1) assure appearance at trial,
2) nature and circumstances of the offense
3) ability of defendant to make it
4) future safety of the victim/community
May also place any reasonable condition related to the safety of a victim or the community.
Bail denial
Clear and convincing evidence defendant will be found guilty of capital murder and will receive death penalty or preponderance of the evidence of a violated condition.
Bail denial for 60 days
Substantial evidence of a felony crime and:
1) two prior felony convictions
2) committed while on bail
3) involved the use of a deadly weapon + prior felony conviction OR
4) violent or sexual offense while on probation or parole.
Grand jury number of jurors
Minimum of 12 jurors and 4 alternates
Grand jury qualifications
1) Citizen of the county able to vote
2) of sound ind and good character
3) able to read and write
4) never been convicted of a felony or misdemeanor theft
5) not be related within the 3rd degree of consanguinity or second degree of affinity to another person selected to be on the grand jury
6) not have served on the grand jury the year before this term and
7) not be a complainant in any matter heard by the grand jury.
Grand jury array
Up to 125 people, and may be challenged on the ground they are not the same people commissioners selected, improper method or there was corruption in selection.
From these, the district judge selects the grand jurors.
Setting aside indictment
May be set aside if less than 9 grand jurors voted to return the indictment, an unauthorized person was present during deliberations or voting, or illegally impaneled and defendant did not have a reasonable opportunity to challenge the array.
Rights of accused subpoenaed in grand jury
Must be warned that:
1) Testimony is under oath
2) Giving false answers to material question is perjury
3) right to refuse to answer questions
4) right to have a lawyer outside
5) any testimony may be used against him
6) right to an appointed lawyer if indigent.
Charging documents
- Indictment (presented by the grand jury) for a felony
- Information (presented by the state) for Class A or B misdemeanor subject to jail time
- Complaint otherwise
Indictment Requirements
1) In the name and authority of the State of Texas
2) Appears to be presented in the district court where the grand jury is in session
3) Appears to be acted upon by a grand jury in the proper county
4) Name or reasonable description of person indicted
5) Shows proper venue
6) Charges an offense that occurred prior to the date of the indictment
7) Sets forth the charged offense in plain and intelligible language
8) Signed by the foreperson of the grand jury
9) ends with the words “against the peace and dignity of the state”
Severance Required
If a prior conviction of one will be admitted against one but not the other, or a joint trial would be prejudicial.
Pro Se requirements
Judge warns the defendant of the dangers of self-representation and the defendant knowingly and voluntarily waives his right.
Ineffective assistance of counsel
1) Acts or omissions outside the range ordinarily expected of counsel and
2) Reasonable probability the result would have been different
Admonishments for guilty plea
1) Range of sentences
2) Defendant may withdraw plea if court advises him that it will not accept his offered plea bargain
3) Defendant may appeal only by permission of court or on a pre-trial motion
4) Immigration consequences
5) May be registered as a sex offender
-Judge may inquire whether a victim impact statement has been given to the state.
Requirements for guilty plea
1) Defendant is mentally competent
2) Defendant waives a jury trial with the court and state approval and
3) enough evidence to substantiate guilt
Plea withdrawal (Felonies)
- Anytime before court accepts it;
- Later at the court’s discretion
Discovery by defendant
1) Police reports
2) Witness statements
3) Any other material evidence the state has and is not privileged or work-product.
Brady Rule
State must disclose exculpatory, impeaching or mitigating evidence. Otherwise conviction may be reversed if there is reasonable probability the result would have been different.
Discovery by the State
1) names of testifying experts
2) intent to raise insanity defense at least 20 days before trial
Motion for continuance because of the absence of a witness
1) Diligence
2) Materiality of the testimony
3) No motive to delay
4) absence not procured by defendant
5) witness’ testimony cannot be obtained before trial.
Good faith exception to a defective warrant
Evidence will be used if the officer reasonably relied on the warrant and it was based on probalbe cause.
Motion to change venue by defendant
Requires two affidavits from credible persons
Motion to change venue by state
1) Conditions favor the accused
2) Lawlesness
3) Life of the accused or a witness would be jeopardized.
Minimum jury
12 in a felony
6 for a misdemeanor
Jury Qualifications
Qualified voters
Have ever been accused or convicted of a felony or theft
Number of peremptory challenges
Capital case - 15
Non-capital felony - 10
Misdemeanor in district court - 5
Other misdemeanors - 3
Proper closing argument
- Summary of the evidence
- Inferences of the evidence
- Response to the other side
- Plea for enforcing the law
Reversion due to jury charge
If objected-to, if defendant suffered harm.
If not objected to, whether it caused egregious harm and denied the defendant a fair trial
Recent Outcry Rule
Uncorroborated testimony of a victim of sexual offense admissible if the victim told somebody about it within 1 year of the offense, except if:
1) Victim under 18
2) Victim was 65 or older
3) Victim had a disability that prevented him from taking care of himself
Testimony of a child
If under 13 and found “unavailable” by a judge, may give testimony by deposition or electronic means, and the defendant may cross-examine.
Hearsay of a victim of a sexual crime that is under 13 also admissible
Exceptions to spousal privilige
Case involving the spouse, child or a household member
Exceptions to marital communications privilege
Spouse is accused of a crime against the other spouse, a child or household member, or for bigamy
Requirements for admitting evidence of an extraneous offense
- Notice of intent if timely requested by defendant
- Decision that the probative force outweighs prejudice
- Finding that jury could find previous offense beyond a reasonable doubt
- On request, a limiting instruction
Evidence of other acts against a child in cases of sexual offense against the child admissible to show relationship and state of mind.
Admissibility of written confession
Written confession must show, on its face, that accused was informed of the following rights:
1) Remain silent and that any statement can be used against him;
2) Have a lawyer present during question
3) Lawyer appointed if he can’t afford
4) right to end the interview
Defendant must waive rights:
1) voluntarily
2) knowingly and
3) intelligently
Admissibility of oral confession
Generally inadmissible
1) Electronically recorded and recording contains the proper warnings and waiver of rights
2) not the product of a custodial interrogation
3) Contains assertions of fact that are found to be true and tend to establish guilt
4) it is the res gestae of the arrest or the offense (speech crime)
5) Made at trial, before a grand jury or at an examining trial
6) Used to impeach
7) Obtained in another state in compliance with that state’s law or by a federal officer in compliance with federal law
Requirements for death penalty
Jury must unanimously agree:
1) Defendant is a future threat to society and
2) There are not sufficient mitigating circumstances to warrant the lesser sentence of life in prison
Suspended Sentence
Available if:
1) prison term is less than 10 years
2) No prior felony conviction and
3) not one of the serious offenses for which community supervision is not available
Deferred Adjudication
Not available for DWI, delivery of a controlled substance to a minor, or any drug-related financial transaction.
Appeal deadlines
For the state, 20 days from ruling or order. State may file an interlocutory appeal if evidence is of substantial importance.
For the defendant, 30 days or 90 if defendant moved for a new trial.
Habeas Corpus
A writ of habeas corpus is a remedy for any person who is held under restraint, commanding the party having the defendant in custody to produce the person in custody and show why he is held under restraint. It may be issued by a court of competent jurisdiction (i.e., the district court in felony cases and the county court in misdemeanor cases).
For death penalty cases, must be filed within the later of 180 days after counsel is appointed or within 45 days of the state’s brief on appeal.
Deadline to file pre-trial motions
Must be filed 7 days before pre-trial motion.
Exclusion of private citizen evidence
If could not have been done by the government, excluded.
Motion for challenging an indictment
Motion to quash
1) in writing
2) filed before trial
3) specifying the alleged defect
Power to impanel a grand jury
District court judge
Grand jury notice to accused prior to questioning
The grand jury must advise him of the offense of which he is suspected or accused, the county where the offense is said to have been committed, and the time of commission of the offense.
Due date for preliminary matters, such as a motion for a continuance
Must be raised 7 days before trial or a preliminary hearing, if any.
Challenging bail
Requires a writ of habeas corpus showing that it is impermissibly high and defendant tried to make bail.
Attachment
Issued on a witness that fails to appear following a subpoena.
When may a defendant be released on recognizance
1) fine-only misdemeanor
2) no previous convictions for felonies or misdemeanors punishable by jail time
Victim impact statement
- after the sentence is pronounced
- A victim, close relative of a deceased victim, or guardian of a victim
Standard for a motion for a new trial after the jury verdict
Jury verdict is contrary to the law and the evidence.
Impeachment with a crime
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.
Self-authenticating a business record
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.
What action must a defendant take to request that the jury recommend probation?
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.
At sentencing (by jury or judge), the sentence must be for 10 years or less.
General maximum length for probation for a misdemeanor
2 years
Maximum/minimum probation for felonies
Minimum is minimum sentence, max is usually ten years.
Application Paragraph
While the judge is required to give the jury a written charge containing all of the applicable law in the abstract, the trial court is also required to apply these abstract statements of law to the facts of the case in an “application paragraph.”
Jury Conviction
- Must be unanimous
- If by less than 12 for some reason, it must be signed by every member of the jury.
Capias
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 defendant is not already in custody. Among other things, it specifies the offense the defendant is accused of and names the court to which and the time when it is returnable.
Standard for sufficiency of the evidence appeal
In considering a sufficiency of the evidence challenge, the appellate court reviews the evidence in the light most favorable to the verdict and determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. If that standard is met, the verdict is not reversed for insufficiency of evidence.
