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Criminal Procedure Flashcards

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1
Q

Arrest Warrant Requirements

A

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

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2
Q

Complaint

A

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).

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3
Q

Standard for Arrest

A

Probable cause, by warrant or otherwise

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4
Q

Four-Corners Rule

A

Magistrate may only evaluate the complaint for probable cause to issue the warrant.

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5
Q

Summons

A

May be issued instead of an arrest warrant - just tells a person to show up at a particular time.

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6
Q

Arrest Without Warrant

A

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

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7
Q

Citation in lieu of arrest

A
  • 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)
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8
Q

Arrest at aresidence

A

Requires a warrant, consent or exigent circumstances.

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9
Q

Search Warrant Standard

A

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.

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10
Q

Search Warrant Requirements

A

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

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11
Q

Purpose of a Search Warrant

A

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

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12
Q

Evidentiary Warrants

A

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.

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13
Q

Issuance of an evidentiary warrant

A

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.

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14
Q

Timeframe for warrants

A

Must be executed within 3 days of issuance, excluding day of issuance and day of execution, or 15 days for a DNA specimen warrant.

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15
Q

Wiretap

A

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.

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16
Q

Pen REgister

A

A device for recording phone numbers called, may be ordered for up to 30 days.

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17
Q

Trap and Trace Device

A

A device for monitoring the origin of phone calls, may be ordered for up to 30 days.

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18
Q

Jurisdiction

A
  • 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.
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19
Q

Venue

A

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.

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20
Q

Statute of limitations (general rules)

A
  • Generally three years for felonies

- Generally two years for misdemeanors

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21
Q

Statute of Limitations (no limits)

A
  • 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
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22
Q

Statute of Limitations (10 years)

A
  • 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
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23
Q

Statute of limitations (7 years)

A
  • 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
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24
Q

Statute of limitations (5 years)

A
  • 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
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25
Q

Special 10-year statute of limitations

A

From 18th birthday of a child in the case of injury to a child.

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26
Q

Special 20-year statute of limitations

A

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.

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27
Q

First appearance before a magistrate

A

Must occur without unnecessary delay, but no later than 48 hours after arrest.

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28
Q

Magistrate must inform the accused of:

A

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

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29
Q

Magistrate may:

A

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)

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30
Q

Appointed Counsel

A

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.

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31
Q

Purpose of examining trial

A

Determine whether probable cause exists to hold the accused for trial, if defendant charged with a felony and no indictment yet.

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32
Q

Types of bail

A

Personal bond, cash bond and bail or surety bond.

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33
Q

Factors for bail

A

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.

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34
Q

Bail denial

A

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.

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35
Q

Bail denial for 60 days

A

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.

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36
Q

Grand jury number of jurors

A

Minimum of 12 jurors and 4 alternates

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37
Q

Grand jury qualifications

A

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.

38
Q

Grand jury array

A

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.

39
Q

Setting aside indictment

A

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.

40
Q

Rights of accused subpoenaed in grand jury

A

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.

41
Q

Charging documents

A
  • 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
42
Q

Indictment Requirements

A

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”

43
Q

Severance Required

A

If a prior conviction of one will be admitted against one but not the other, or a joint trial would be prejudicial.

44
Q

Pro Se requirements

A

Judge warns the defendant of the dangers of self-representation and the defendant knowingly and voluntarily waives his right.

45
Q

Ineffective assistance of counsel

A

1) Acts or omissions outside the range ordinarily expected of counsel and
2) Reasonable probability the result would have been different

46
Q

Admonishments for guilty plea

A

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.

47
Q

Requirements for guilty plea

A

1) Defendant is mentally competent
2) Defendant waives a jury trial with the court and state approval and
3) enough evidence to substantiate guilt

48
Q

Plea withdrawal (Felonies)

A
  • Anytime before court accepts it;

- Later at the court’s discretion

49
Q

Discovery by defendant

A

1) Police reports
2) Witness statements
3) Any other material evidence the state has and is not privileged or work-product.

50
Q

Brady Rule

A

State must disclose exculpatory, impeaching or mitigating evidence. Otherwise conviction may be reversed if there is reasonable probability the result would have been different.

51
Q

Discovery by the State

A

1) names of testifying experts

2) intent to raise insanity defense at least 20 days before trial

52
Q

Motion for continuance because of the absence of a witness

A

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.

53
Q

Good faith exception to a defective warrant

A

Evidence will be used if the officer reasonably relied on the warrant and it was based on probalbe cause.

54
Q

Motion to change venue by defendant

A

Requires two affidavits from credible persons

55
Q

Motion to change venue by state

A

1) Conditions favor the accused
2) Lawlesness
3) Life of the accused or a witness would be jeopardized.

56
Q

Minimum jury

A

12 in a felony

6 for a misdemeanor

57
Q

Jury Qualifications

A

Qualified voters

Have ever been accused or convicted of a felony or theft

58
Q

Number of peremptory challenges

A

Capital case - 15
Non-capital felony - 10
Misdemeanor in district court - 5
Other misdemeanors - 3

59
Q

Proper closing argument

A
  • Summary of the evidence
  • Inferences of the evidence
  • Response to the other side
  • Plea for enforcing the law
60
Q

Reversion due to jury charge

A

If objected-to, if defendant suffered harm.

If not objected to, whether it caused egregious harm and denied the defendant a fair trial

61
Q

Recent Outcry Rule

A

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

62
Q

Testimony of a child

A

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

63
Q

Exceptions to spousal privilige

A

Case involving the spouse, child or a household member

64
Q

Exceptions to marital communications privilege

A

Spouse is accused of a crime against the other spouse, a child or household member, or for bigamy

65
Q

Requirements for admitting evidence of an extraneous offense

A
  • 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.

66
Q

Admissibility of written confession

A

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

67
Q

Admissibility of oral confession

A

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

68
Q

Requirements for death penalty

A

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

69
Q

Suspended Sentence

A

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

70
Q

Deferred Adjudication

A

Not available for DWI, delivery of a controlled substance to a minor, or any drug-related financial transaction.

71
Q

Appeal deadlines

A

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.

72
Q

Habeas Corpus

A

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.

73
Q

Deadline to file pre-trial motions

A

Must be filed 7 days before pre-trial motion.

74
Q

Exclusion of private citizen evidence

A

If could not have been done by the government, excluded.

75
Q

Motion for challenging an indictment

A

Motion to quash

1) in writing
2) filed before trial
3) specifying the alleged defect

76
Q

Power to impanel a grand jury

A

District court judge

77
Q

Grand jury notice to accused prior to questioning

A

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.

78
Q

Due date for preliminary matters, such as a motion for a continuance

A

Must be raised 7 days before trial or a preliminary hearing, if any.

79
Q

Challenging bail

A

Requires a writ of habeas corpus showing that it is impermissibly high and defendant tried to make bail.

80
Q

Attachment

A

Issued on a witness that fails to appear following a subpoena.

81
Q

When may a defendant be released on recognizance

A

1) fine-only misdemeanor

2) no previous convictions for felonies or misdemeanors punishable by jail time

82
Q

Victim impact statement

A
  • after the sentence is pronounced

- A victim, close relative of a deceased victim, or guardian of a victim

83
Q

Standard for a motion for a new trial after the jury verdict

A

Jury verdict is contrary to the law and the evidence.

84
Q

Impeachment with a crime

A

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.

85
Q

Self-authenticating a business record

A

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.

86
Q

What action must a defendant take to request that the jury recommend probation?

A

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.

87
Q

General maximum length for probation for a misdemeanor

A

2 years

88
Q

Maximum/minimum probation for felonies

A

Minimum is minimum sentence, max is usually ten years.

89
Q

Application Paragraph

A

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.”

90
Q

Jury Conviction

A
  • Must be unanimous

- If by less than 12 for some reason, it must be signed by every member of the jury.

91
Q

Capias

A

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.

92
Q

Standard for sufficiency of the evidence appeal

A

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.

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