Criminal Procedure: Texas Flashcards

Question

GJ: Proceedings – Compel ∆ to appear?

Answer 1

GJ can compel ∆ to appear by having a subpoena issued, but it cannot compel ∆ to answer questions if ∆ invoked privilege against self-incrimination. If ∆ is subpoenaed as a suspect witness, he must be given the following warnings in WRITING: 1. testimony under oath 2. false answer --> perjury 3. can refuse to answer incriminating questions 4. right to counsel appointed 5. right to counsel outside room 6. testimony can be used against ∆ Before appearing, ∆ must have a reasonable opportunity to obtain and consult w/counsel.

Answer 2

∆ will be a suspect witness. Therefore, before questioning ∆ must be warned: 1. the offense of which he is suspected 2. county where it was committed 3. time of occurrence Questions & testimony must be recorded.

Answer 3

No. ∆ may appear as a witness, and he may address the GJ with the GJ's permission. However, only the prosecutor and GJ can examine witnesses.

Answer 4

Yes. A ∆ lawyer may address the GJ if (1) GJ permits it and (2) P consents.

Answer 5

GJ consists of 12 people, and 9 must concur to indict. The prosecutor drafts the indictment.

Answer 6

Unauthorized person present while GJ deliberating/voting --> dismissal of indictment (but not when GJ is hearing evidence) Indictment may NOT be challenged for evidentiary insufficiency; trial is the remedy.

Answer 7

Criminal prosecutions must be brought (or indictment) within a certain amount of time from the commission of the offense SOL Tolled: (a) ∆ out of state (b) charging instrument charging same offense is pending against ∆ and then later dismissed NO SOL FOR: murder/manslaughter, leaving scene of accident, sexual assault/abuse/indecency w/child General SOL: Felony – 3 years Misdemeanor – 2 years Theft, burglary, robbery, kidnapping – 5 years

Answer 8

1. "In the name and by authority of the State of Texas" 2. name of accused/description 3. charge ALL elements of offense 4. enough details to give notice 5. allege date (a) within SOL and (b) before presentment of indictment 6. commission of crime w/in jdx (venue) 7. conclude: "Against the peace and dignity of the state." 8. signed by (a) foreperson if indictment or (b) prosecutor if information NOTE: MUST include mental state

Answer 9

One offense is a lesser included offense of another if: 1. proved by some but not all of the same facts required for more serious offense 2. requires only less serious injury 3. requires only less culpable mental state 4. consists of attempt of more serious offense Jury should be instructed on uncharged offense if: A. other offense is lesser included offense AND B. jury could find not guilty of charged offense but guilty of lesser included offense

Answer 10

If name in indictment is not ∆'s true name: 1. Must raise at arraignment 2. Must specify true name 3. Judge then to correct the indictment NOTE: this is the only remedy; no effect on indictment

Answer 11

General Rule: must be done BEFORE the day trial begins EXCEPTION for Fundamental Defects: (a) no person specified as accused (b) cannot tell what crime is charged If not raised before trial, cannot be raised later in trial court, on appeal, or in HC. If trial court quashes indictment, state can: 1. Appeal 2. Get new indictment 3. Amend

Answer 12

Any amendment ok at any time if ∆ doesn't object Before day of trial: any amendment is permitted (form or substance) Limits – not permitted over ∆'s objection if (1) causes indictment to allege different or additional crime or (2) prejudice to substantial right to ∆ ∆'s procedural protection: notice, TC must authorize, gets at least 10 days to prepare for trial w/amendment Day of trial, before trial begins: NO amendments permitted over objection After trial begins: NO amendments permitted over objection

Answer 13

1. State file for leave to amend 2. ∆ given notice 3. Hearing – trial judge decides whether to amend 4. If ok, amendment made on actual indictment ∆ entitled to a continuance to leave 10 days before trial to prepare.

Answer 14

Takes place in trial court and serves several functions: 1. ∆ enters plea 2. Fix accused's identity 3. Appoint counsel (if not done before)

Answer 15

1. what plea to enter 2. whether to have trial by jury 3. whether to take the stand

Answer 16

No difference in the criminal prosecution. If civil litigation arises out of the same incident, a guilty plea could be used as evidence as , but a nolo contendre plea could not.

Answer 17

Inform ∆: 1. range of punishments 2. state recommendations not binding 3. limited right to appeal 4. deportation possible 5. ask whether there's a plea bargain NOTE: Can be given orally or in writing. Can withdraw plea if judge does not accept plea bargain. Can withdraw before judge takes matter under advisement Withdrawn guilty/NC plea NOT admissible as evidence

Answer 18

1. enter any special plea 2. make challenges to indictment 3. motion for continuance 4. motion for change of venue 5. motion to suppress 6. request for discovery 7. raise entrapment claim ∆ has the right to be present at any pre-trial proceeding, including the pretrial conference.

Answer 19

Pre-trial motion that asks for either/both: 1. pretrial ruling on merits of some question of evidence or procedure that will arise during trial 2. pretrial ruling that opposing counsel must alert judge before raising some matter of evidence or procedure before the jury NOTE: MIL provides no preservation for appeal; counsel MUST object

Answer 20

May be used to raise pretrial any argument that evidence to be offered at trial is inadmissible. Usually used to raise a contention that evidence has been illegally obtained or confession is inadmissible. NOTE: a pretrial ruling on a motion to suppress DOES preserve the issue for appeal. Cf. ruling on MIL.

Answer 21

P may only inquire as to matters related to the hearing issues. CE cannot extend to guilt of the charged crime. ∆ does not waive her right to be silent at the rest of the trial. She may decline to testify at trial and the right to do so remains fully effective. RULE: a ∆ can only testify at a pretrial hearing on issues related to that hearing.

Answer 22

1. witness lists (a) state must provide W list to ∆; (b) trial judge has discretion to order either/both sides to provide other w/list of expert Ws 20 days before trial 2. Depo – either can depose, but judge must issue an order to depose and party must show "good reason" (snowball's chance in hell) 3. Inspection – judge can order State to permit ∆ to inspect certain things, but can't require state to give up possession of the item; inspection must be sufficient to give ∆ info necessary to prepare for trial Mandatory: tangible thing; constitutes material evidence; in possession of state; not work product NOTE: police reports ok; written statements given by state witnesses to police or P ok; names of witnesses testifying in GJ ok-- but testimony of GJ witness ONLY allowed if "particularized need."

Answer 23

Expert: court can order ∆'s expert W's disclosed, but NOT a summary of anticipated testimony Other Ws: court has no authority to compel

Answer 24

Counsel must obtain a court order. Must file a motion supported by affidavit stating "good reason" for taking depo. Notice must be given to other party. Hearing will be held, during which counsel must show "good reason." Should include showing that W's testimony will be necessary for trial and W is likely to become unavailable for trial.

Answer 25

The identity of an informant is generally privileged and can be withheld by the state. Disclosures may be required in 2 situations: 1. informant provided info by which state obtained evidence in a way ∆ claims was illegal; court may have discretion to require disclosure if necessary to establish informer's reliability 2. informant can provide testimony necessary to a fair determination of guilty-innocence (e.g., informant witnessed the crime)

Answer 26

∆'s rights are violated under Brady if: 1. P fails to disclose favorable info that is in its possession; and 2. this information is "material" (had it been disclosed, there is reasonable probability the outcome of the case would have been different." I.e., "Oh crap that's bad for P" evidence NOTE: Evidence that impeaches a P witness is material. Evidence must be disclosed in possession of P, another P, or police.

Answer 27

Criminal proceedings cannot continue if ∆ is incompetent to stand trial. ∆ is incompetent to stand trial if either: 1. lacks ability to consult with counsel w/reasonable degree of rational understanding; or 2. lacks rational and factual understanding of proceedings If after being found incompetent ∆'s condition improves: 1. ∆ can be determined competent; and 2. Prosecution can proceed

Answer 28

1. ∆ or state may by motion suggest ∆ is incompetent 2. TC on its own motion may suggest ∆ is incompetent. Trial judge MUST on court's own motion suggest ∆ is incompetent if evidence suggesting incompetency comes to attention of court. If issue is raised, trial judge will make a preliminary inquiry. If this shows significant evidence of incompetency, judge must hold a full hearing. Determination may be made by jury if parties or judge requests. The legal presumption is that ∆ is competent. To rebut this, ∆ must show by POE that ∆ lacks ability to consult w/counsel or lacks understanding of proceedings.

Answer 29

1. Relevant time: insanity is time of offense; incompetency is time of trial 2. Standard applied: insanity is did not know conduct was wrongful; incompetency is cannot consult w/counsel or understand proceedings 3. result: insanity is NG verdict by reason of insanity; incompetency is (perhaps) temporary bar to proceeding

Answer 30

∆ can seek change of venue if (a) prejudice in county would prevent fair trial or (b) dangerous combination of influential persons against ∆ would prevent fair trial State can seek change of venue if (a) combinations of influences in favor of ∆ would prevent fair trial; (b) lawless conditions would prevent fair trial; (c) life of ∆ or Ws would be compromised Trial court can change venue on its own motion because trial fair and impartial to ∆ and state alike cannot be held.

Answer 31

∆ files: 1. written motion for change of venue 2. affidavits a fair trial cannot be held in county by (a) ∆ and (b) 2 credible residents of county. At hearing, ∆ must present evidence showing there is sufficient evidence in county to prevent fair trial. Motion for change of venue must be filed 7 days before pre-trial hearing. Failure to do so will prevent a later motion to change venue unless court gives permission for good cause shown.

Answer 32

A judge is DQ'd if: 1. victim of the crime 2. counsel for either side and participated in the case 3. related within 3 degrees to ∆ or victim 4. bias

Answer 33

Felony: in a felony case or misdemeanor case punishable by jail time, ∆ must be present at beginning of trial. -Jury case – through swearing in of jury -Nonjury case – through ∆'s plea to indictment ∆ must also be present at sentencing Misdemeanor: if fine only, ∆ can be absent and appear by counsel if P consents. If ∆'s absence is after jury selection and voluntary, trial may proceed up until formal sentencing without her. If/when ∆ eventually returns, the trial judge will formally sentence ∆ to punishment assessed by jury.

Answer 34

An indictment may allege only one offense. If an indictment charges more than that, it may be quashed. ∆ may be tried on only one indictment per trial. If ∆ is scheduled for trial on several indictments, ∆ is entitled to have them severed. NOTE: subject to the CRIMINAL EPISODE EXCEPTION

Answer 35

Exception to the One Offense Rule. The state may join in 1 indictment all offenses arising out of one criminal episode, and ∆ will be tried for all of these in 1 trial unless there is a severance of the charges. (same for different indictments w/same criminal episode). Crimes are part of the same criminal episode if they are: 1. part of the same transaction 2. part of a common scheme or plan 3. same or similar offenses NOTE: state not required to seek single trial of all offenses in single criminal episode NOTE: ∆ has an absolute right to have the charges severed for separate trials; however, judge can make sentences run consecutively if separate trials (only allowed concurrently if 1 trial)

Answer 36

Several ∆s may be charged in 1 indictment and tried together if they are all charged of the same offense. Several ∆s may be joined for trial if: 1. Charged w/same offense; or 2. Charged w/different offenses arising out of same transaction Mandatory Severance: ∆ who moves for severance and shows co-∆ has prior conviction admissible against co-∆ at trial must be granted severance Discretionary Severance: trial judge has discretion to grant motion for severance of trials and should grant such motion if join trial would be prejudicial to ∆ who has moved for severance

Answer 37

1. Must be in writing 2. supported by good cause 3. sworn If made after trial begins, must also: 1. be based on an occurrence that happened after trial began 2. occurrence unanticipated 3. surprise to prevent fair trial NOTE: not granted as a matter of right; up to discretion of judge

Answer 38

1. Name and residence of missing W 2. Efforts made to find and get witness to court 3. Material facts expected to prove by witness

Answer 39

Indigent ∆ SOMETIMES has a right to an appointed attorney. Felony --> always. Misdemeanor --> no, if no jail time. ∆ has a 6th Am right to represent herself. Requires competency to engage in self-representation, meaning ∆ understands the disadvantages and risks of that course. Indigent Status: can't consider whether ∆ was able to post bail except for as it reflects ∆'s financial circumstances as measured by proper considerations (...so really you can)

Answer 40

L must make every reasonable effort to contact ∆ no later than the first working day after the date of appointment. A judge has discretion to replace an attorney who fails to time contact or interview a ∆.

Answer 41

∆'s 6th Am right to effective representation is violated if: 1. L's actions were beyond the bounds of professional competence, and were not simply tactical decisions 2. reasonable probability that had counsel been effective, results of proceeding would have been different NOTE: representation is NOT effective if L: 1. fails to conduct adequate investigation 2. Fails to convey to the client an offer of a plea bargain

Answer 42

Rule: the state must pay for an expert to assist appointed defense counsel if the expert's area is likely to be a significant issue in the trial of the case. File Ake motion (Ake v. Oklahoma held that due process entitles an indigent ∆ to an appointment of an expert). Must show the area of the expert's expertise is likely to be a significant issue in the case. Can make the motion and showing ex parte.

Answer 43

State may dismiss some/all charges. 1. Must file written statement of reasons 2. Trial judge must consent No further prosecution may occur if a dismissal occurs after jeopardy is attached.

Answer 44

State must prove guilt BRD. Verdict must be unanimous. If jurors cannot agree, judge must declare mistrial.

Answer 45

Whether to have a case tried by a jury or not is a decision that must be personally made by ∆. If ∆ wants to have the case tried to a judge, ∆ must waive the jury trial. This must be done before trial. The choice need not be the same as to both phases. Whether or not ∆ waives jury trial on guilt, he can elect jury assessment of punishment or let the judge assess punishment.

Answer 46

1. Can be waived except for capital murder & state seeks death penalty 2. Waiver requires consent and approval of P and trial court

Answer 47

When the jury cannot agree, it may be discharged and a mistrial declared if: 1. both parties agree; or 2. court finds jury has been kept together long enough to render it altogether improbable it could agree

Answer 48

1. Qualified voter in county/state 2. Never convicted of felony 3. Not under indictment/accusation of theft or felony.

Answer 49

Counsel can demand a jury shuffle, which will result in the random reseating of venire members. Must do this before VD begins. Only 1 shuffle per trial.

Answer 50

A challenge for cause is a challenge to a member of the jury panel on the basis of one of the grounds specified in the Code of Criminal Procedure. There is no limit on the number each side may make, but each one made must be justified under one of the statutory grounds. Challenges for cause: 1. conviction of theft/felony 2. under formal charge of theft/felony 3. insane 4. not qualified voter 5. W in the case 6. served on jury in prior trial of the case 7. served on indicting GJ 8. cannot read/write 9. biased/prejudiced for/against ∆ 10. bias/prejudice against any law applicable to case on which P or ∆ is entitled to rely Timing: Must be made during jury selection. EXCEPTION: conviction/charge of felony & insanity are absolute DQs-- verdict can be set aside if ∆ raises before verdict is entered or shows significant harm.

Answer 51

``` Number allowed: Capital Murder – 15 Other felony – 10 Misdemeanor – 3 Misdemeanor in DC – 5 ``` CANNOT exercise them based on race or gender.

Answer 52

Contest improper use of peremptory challenges. Should move to dismiss array of prospective jurors. Motion should be made (a) after list of jurors/challenges submitted and (b) before trial court empanels jury Proof that a party has used its challenges to remove all persons of a particular race/gender make a PF case of racial/gender motivation. Burden shifts to that party to explain the challenges on neutral grounds. Challenging party ultimately has the BOP. If party succeeds in proving the other party exercised its challenges improperly, trial judge must (a) dismiss array and start over or (b) reinstate jurors struck for racial reasons

Answer 53

1. Judge calls for and parties give announcements of ready 2. P reads indictment 3. ∆ enters plea 4. P makes opening statement 5. P presents State's CIC (** general rule) 6. ∆'s opening statement 7. ∆ presents evidence 8. rebuttal evidence 9. judge reads charge 10. final arguments (P, ∆, P) **EXCEPTION: upon request, ∆ can make opening statement immediately after state-- but ∆ cannot be required to do this.

Answer 54

(∆'s motion) Counsel should make a motion for DV of not guilty. Asks the judge to hold that no reasonable jury could find, on the basis of the state's CIC, that all elements of the crime have been proved BRD. Motion should be made out of hearing of jury. Should be made both: 1. At end of state's CIC 2. At close of all evidence.

Answer 55

∆ has a 6th Am right to confront Ws against him-- including a coconspirator/accomplice confession. If confrontation clause challenge unsuccessful, should ask that any reference to ∆ in accomplice's confession be redacted before it is introduced.

Answer 56

Hearsay statement is admissible as against penal interest if: 1. statement shown to have been incriminating regarding declarant 2. reasonable person would not have said it unless true 3. in criminal trials, there are corroborating circumstances that clearly indicate trustworthiness of statement NOTE: admissible even if declarant is not a trial

Answer 57

Predicate for BR: Testimony by the custodian that 1. records kept in regular course of business 2. regular course of business for person w/knowledge to make records or transfer info for inclusion in records 3. entries made at/near time of events 4. W is custodian of records Can do this w/o W if P authenticates by: 1. obtaining affidavit of custodian of records containing elements above 2. files affidavit w/records attached at least 14 days before trial 3. defense given notice of filing at least 14 days before trial

Answer 58

Generally, the state cannot introduce evidence that ∆ has a "bad character" to prove ∆'s guilt. State can prove ∆'s bad character if: (1) ∆ puts it at issue by introducing evidence of good character or (2) at punishment stage of trial Character witness may give opinion or reputation testimony (hearsay exception)

Answer 59

Opinion Witness: W is personally familiar with the person Reputation Witness: W participated in discussions with others of person's reputation or overhead others discussing that reputation NOTE: familiarity must be from BEFORE the charged offense

Answer 60

Opinion: "Did you know?" Reputation: "Have you heard" NOTE: inquiry into specific instances of conduct IS permissible

Answer 61

Extraneous Offense: crime of which the accused cannot be convicted in this trial General Rule: evidence of an extraneous offense is INADMISSIBLE. EXCEPTION: if evidence showing an extraneous offense is relevant to some issue other the accused's character, it is admissible unless the trial judge is convinced the danger of unfair prejudice substantially outweighs the probative value of the evidence. MIMIC Rule: 1. Motie 2. Intent/knowledge 3. Mistake/accident 4. Identity (∆ put it in issue via alibi or impeaching eyewitness) 5. Common scheme/plan Notice: if ∆ makes timely request, state must provide reasonable notice in advance of trial of its intent to introduce such evidence during CIC. No notice re: crimes/acts arising in same transaction as charged offense

Answer 62

Upon timely request by ∆, state must give 404(b) notice: 1. of intent to introduce evidence of other crimes, wrongs, or bad acts 2. not arising in same transaction as charged crime 3. to be introduced in state's CIC 4. must be given in advance of trial

Answer 63

If one party introduces all or part of a writing or recorded statement, the other party is entitled to introduce: 1. Any other part of that writing or recorded statement 2. Any other writing or recorded statement Which should in fairness be considered by the jury at the same time. The other party is entitled to introduce this immediately

Answer 64

If one party introduces part of an act, conversation, or statement, the other party is entitled to prove the rest of the subject

Answer 65

Does NOT apply in criminal litigation. EXCEPTION: person involved in treatment or examination of person who was voluntary treated for substance abuse (including person treated)

Answer 66

The client of an attorney has a privilege to have kept confidential a private communication to the attorney

Answer 67

The spouse of a criminal ∆ has a privilege not to be called as a witness to testify against ∆ or not testify against ∆ EXCEPTIONS: 1. prosecution is for an offense committed against a minor child, household member of either spouse, or the spouse 2. spouse is called by state to testify about matters that occurred prior to the spouse's marriage to ∆ NOTE: the spouse is not DISQUALIFIED, but can invoke the privilege NOTE: the spouse can waive the privilege NOTE: whether the spousal privilege is available turns on whether the witness is married to ∆ at the time of trial

Answer 68

Any person, including ∆, has a privilege to refuse to disclose and to prevent others from disclosing a confidential communication made by the person to his or her spouse during marriage. Communication is "confidential" only if: 1. Made privately 2. Not intended for disclosure to another person EXCEPTIONS: no privilege if 1. Communication made to commit a crime or fraud 2. Prosecution for crime committed against minor child. household member of either spouse, or the spouse

Answer 69

A statement made by ∆ is inadmissible if it was made in the course of plea discussions with a prosecutor

Answer 70

Both sides on application to the clerk are entitled to have subpoenas. Either side is entitled to have an attachment issued for a witness if both: (1) W has been properly subpoenaed and (2) W fails to appear.

Answer 71

1. Name of W 2. Location and vocation of W 3. W's testimony is material to ∆'s case Can get an attachment for W if she was properly subpoenaed but does not appear NOTE: in a criminal case, a subpoena is good statewide (no 150 mile limit)

Answer 72

1. Bad conduct (prior convictions) 2. Contradiction 3. Showing character for untruthfulness 4. Showing bias or interest Bad Conduct: a W may be impeached by showing bad criminal conduct only if the cross-examining party establishes: a. conduct resulted in final criminal conviction b. conviction is not stale (10+ years since conviction or release) c. conviction was for a misdemeanor that involved moral turpitude or a felony d. prejudicial risk of injury substantially outweighed by probative value - Moral Turpitude ≠ DUI, assault, possession of marijuana, unlawfully carrying weapon, but includes prostitution, false report to police, and agg assault on female NOTE: can be impeached based on crime resulting in probation until and if probation has been successfully completed Contradiction: a party can impeach a W for the other side by introducing EE that contradicts what the W said, unless the W's assertion is on a collateral mater. - Matter is collateral if the impeaching party would not be able to prove it as part of its own case - Prior Inconsistent Statement Foundation: counsel must 1. tell W contents of prior inconsistent statement 2. tell W time & place of statement and to whom it was made 3. allow W to explain/deny the statement NOTE: otherwise improper CE is permitted if necessary to correct a misleading impression created by the W's nonresponsive answer

Answer 73

Upon request of either party, W's may be excluded from the courtroom except during their own testimony. If W violates the rule, the court may hold W in contempt and/or exclude the testimony of that W. Admonishment: 1. persons to whom W can talk about the case 2. persons W ay not talk to Exclusion is not permitted of: 1. ∆ 2. If ∆ is corporation, officer or employee of ∆ 3. any person whose presence is shown to be essential (expert W) 4. victim/representative, unless testimony would be materially affected NOTE: spouse not exempt in criminal trials

Answer 74

Generally, an expert W may testify to an opinion without first disclosing the facts or data on which that opinion is based. A party against whom expert testimony is offered has a right, upon request, to VD the expert on the facts or data upon which the testimony will be based before W testifies to the opinion (NOTE: this is discretionary in civil cases) Factors court should consider in determining admissibility of scientific evidence: 1. Acceptance of underlying scientific theory and technique as valid by scientific community 2. Whether scientific literature supports or rejects the theory and technique 3. potential error rate of technique 4. qualifications of expert 5. availability of other experts to test and evaluate the technique 6. clarity with which the theory and technique can be explained in court 7. experience/skill of person who applied the technique in this case

Answer 75

A party is entitled to a writing if W for the other side used it to refresh memory before or during testimony Party is entitled to the prior written or recorded statement of a witness for the other side (or statement W made to GJ) after that witness has finished DE (but does not apply to ∆) Use Before the Jury Rule applies WP Doctrine does not apply here as it does during pretrial

Answer 76

A party is entitled to an item if it is used by opposing counsel in front of the jury in such a way that its contents become an issue

Answer 77

A photograph is admissible if a W would be permitted to give a verbal description of what the photo shows. Authentication of a photo generally requires a sponsoring witness to testify that: 1. W saw the matter show in the photo 2. Photo accurately depicts what W knows the matter looked like

Answer 78

Federal Rule: evidence obtained as a result of a violation of ∆'s 4th, 5th, or 6th Am rights cannot be used to prove ∆'s guilt TX Rule: evidence may not be admitted against the accused at trial if it was obtained by an officer or other person in violation of the US Constitution, federal law, TX constitution, or TX law. Good Faith Exception to TX Rule: illegally obtained evidence is admissible if it was obtained by an officer 1. acting in objective good faith reliance upon a warrant 2. warrant was issued by a disinterested magistrate based on PC NOTE: sometimes, under TX law whether evidence was illegally obtained is a question for the trial jury; state must prove it was legally obtained BRD

Answer 79

In the charge, the judge cannot summarize or comment on the evidence. The judge must read the charge to the jury in court, and this is done before the Ls make final arguments. Jury is given a written copy. Error in jury charge and be preserved by objection or request for special charge containing correct law. - Must be in writing, but oral objection is sufficient if: 1. dictated to court reporter 2. in presence of judge and prosecutor 3. done before final charge is read to jury Fundamental Error: unobjected to error in the jury trial is fundamental and can be raised on appeal for the first time, but only if it resulted in egregious harm to ∆ (denied ∆ to fair trial). 1. Preserved error requires reversal if it results in some harm 2. Unpreserved error requires reversal, but only if it results in egregious harm and prevents a fair trial NOTE: BRD should not be defined NOTE: ∆ entitled to instruction on ∆'s failure to testify (e.g., no adverse inference)

Answer 80

Must be pleaded Jury always instructed BOP on state BOP is BRD

Answer 81

Must be pleaded and negated. Jury always instructed BOP on state BOP is BRD

Answer 82

Need not be pleaded Jury instructed if evidence supporting defense is produced BOP on State BOP is BRD

Answer 83

Do not need to be pleaded Jury instructed if evidence supporting AD is produced BOP on ∆ BOP is POE

Answer 84

In making final arguments, Ls are limited to 4 subjects: 1. Summation of evidence 2. Making reasonable deductions from the evidence 3. Answering arguments of opposing counsel 4. Making pleas for law enforcement Not permitted to: 1. Comment on ∆'s invocation of self-incrimination rights 2. Express personal opinions 3. Argue what the community demands 4. Strike at ∆ over the shoulder of defense counsel Order of arguments is regulated by the judge. In a felony case, the arguments may never been restricted to a number of addresses fewer than 2 on each side. NOTE: the state has the right to argue last P cannot prove or comment on: 1. ∆'s failure to testify at trial 2. ∆'s silence after arrest and Miranda warnings 3. ∆'s silence after arrest (TX law) BUT, P can comment on silence before arrest.

Answer 85

1. Accomplice testimony (includes CIs) 2. ∆'s out of court confession (Corpus Delicti Rule) 3. Sexual assault victim's testimony – can't be convicted on testimony of V without corroborating evidence unless: - V told someone other than ∆ about the offense within 1 year - V was under 18 - V was impaired - V was over 65 4. Some testimony by an undercover informer 5. Jailhouse snitch testimony

Answer 86

If the jury disagrees about a W's statement, the jury may request the judge for the court reporter to read the testimony to them. If they cant, the jury can ask that W be brought back to the stand to repeat the relevant part of her testimony

Answer 87

1. ∆ has a right to have the jury that determined guilt also assess punishment (federal court --> judge does sentence) 2. State cannot have the jury assess punishment if ∆ fails to elect jury sentencing 3. Jury sentencing must be invoked by ∆ in timely election for jury sentencing (before VD of jury panel begins) NOTE: ∆ may change an election regarding assessment of punishment after the finding of guilt, but P must consent. 4. A jury is REQUIRED if the state is seeking capital punishment 5. A ∆ who waived jury trial can elect jury sentencing

Answer 88

1. Punishment is assessed by jury 2. Only available punishment is imprisonment 3. Judge is informed that a plea bargain exists under which the ∆ agrees to imprisonment and the judge follows the agreement 4. ∆ is convicted of capital murder

Answer 89

Extraneous bad acts are admissible at punishment whether or not they resulted in convictions ∆ counsel can make a pretrial request for notice of intent to offer "bad act" evidence at punishment. If ∆ makes this request, the state must provide notice of intent to introduce evidence of prior crimes or bad acts, even if those did not result in convictions. The notice must specify with regard to each prior crime or bad act: 1. the date on which it occurred 2. the county in which it occurred 3. the name of the victim

Answer 90

If ∆ is sentenced to imprisonment, the time served may be reduced by good conduct and he may be reduced on parole. If he is sentenced to imprisonment, ∆ will be eligible for parole when actual time served + good time = 1/4 sentence imposed Jury may consider existence of parole law and good conduct time, but cannot consider: 1. extent to which good time may be awarded to ∆ 2. how parole might be applied to this ∆

Answer 91

1. Is there a probability that ∆ will commit criminal acts of violence constituting a continuing threat? 2. Did ∆: a. actually personally cause the death of the victim; b. intend to kill the victim; c. anticipate that a human life would be taken? (NOTE: this question only submitted if at the guilt stage of the trial the judge instructed the jury that it could convict ∆ as a party to a killing actually committed by someone else.) 3. Are there sufficient mitigating circumstances to warrant life imprisonment rather than death? If jury unanimously votes "yes" on 1 and 2 and "no" on 3, judge must impose death. Otherwise, life sentence imposed.

Answer 92

∆ is eligible for community supervision if punishment assessed does not exceed 10 years imprisonment NOT eligible if: 1. murder 2. sex offense w/child under 14 3. prior felony conviction JURY (but not judge) can give probation if: 1. major crime (but probation not barred); or 2. deadly weapon finding is made Can be revoked: 1. for violation of condition, but only by proof of POE 2. no jury trial is held 3. ∆ required to serve prison sentence previously assessed (or as reduced by judge) If ∆ successfully completes community supervision, trial court has discretion to dismiss charges ∆ must file pretrial application for probation if he wants jury to consider it. Must be: 1. sworn 2. in writing 3. states that ∆ has not been convicted of a felony (previously)

Answer 93

Procedure under which a sentence of imprisonment is imposed and ∆ begins to serve it. During the first 180 days of imprisonment, ∆ is brought back to court. Sentence is suspended, and ∆ is placed on community supervision.

Answer 94

Procedure under which the trial court places ∆ on community supervision without actually finding ∆ guilty; defers a finding of guilt. ∆ is eligible if: 1. offense is NOT an intoxication offense 2. ∆ enters a plea of guilty or NC Procedure: court must 1. receive ∆'s plea of guilty or NC 2. hear evidence 3. find evidence substantiates ∆'s guilt 4. inform ∆ of consequences of violating community supervision (any sentence within statutory range) If ∆ is proved to have violated terms of community supervision, court can proceed to adjudication and find ∆ guilty. But if ∆ successfully completes the community supervision, the charges are dismissed

Answer 95

1. ∆ must be found guilty before probation, but no finding of guilt in DA. 2. ∆ can get regular probation after NG plea; DA ∆ must plead guilty or NC 3. If DA revoked, ∆ can be given any sentence in statutory range. If probation revoked, ∆ gets sentence previously assessed.

Answer 96

Before pronouncing the sentence, the judge is to ask ∆ whether he has anything to say as to why the sentence should not be imposed. Most likely, ∆ can't say anything to change the judge's mind. The only reasons why an assessed sentence should not be pronounced are: 1. ∆ has received a pardon 2. ∆ has become incompetent 3. ∆ not person convicted NOTE: V has a right to make a statement to the court and ∆, but only after the sentence has been pronounced. V may not direct questions to ∆, and court reporter may not transcribe. NOTE: if case is resolved by plea bargain, V must be notified about the existence and terms of the plea bargain.

Answer 97

MNT must be: 1. filed within 30 days of pronouncement of sentence 2. presented to court within 10 days of filing (court can permit within 75 days) Grounds: 1. continuing trial when ∆ required to be present and was not 2. verdict decided by lot 3. ∆'s right to counsel violated 4. juror was bribed or engaged in other corrupt conduct 5. jurors received evidence after retiring to deliberate 6. juror conversed about case with someone not on jury 7. new evidence discovered Must be ruled on within 75 days of sentencing

Answer 98

Should only be granted if the new evidence was material: 1. Unknown to ∆ before trial 2. Failure to discover evidence not due to ∆'s lack of diligence 3. Evidence competent and not merely collateral or impeaching 4. Evidence so persuasive that it would probably cause a different result in anew trial ∆ must file motion within 30 days of sentencing and present to court within 10 days of filing.

Answer 99

Grounds: 1. indictment has defect of substance 2. verdict varies from indictment 3. judgment invalid

Answer 100

∆ can appeal only after conviction and sentencing. NOTE: ∆ convicted of capital murder and sentenced to death and district court has mandatory appeal to CCA ∆ convicted in district/county court --> appeal as of right to COA; seek review from CCA ∆ convicted in justice/municipal court --> appeal is to county court for trial de novo or COA if fine is $100+ or sole issue is constitutionality of statute/ordinance ``` Perfecting Appeal: Notice of appeal must be: 1. in writing 2. filed w/trial court 3. generally filed within 30 days of formal sentencing ``` - If MNT is filed, notice of appeal must be filed within 90 days of formal sentencing - Notice of appeal required in all cases except those in which the death penalty is imposed

Answer 101

Convicted ∆ not eligible for bail pending appeal if punishment is 10+ years. Bail may be denied to ∆ eligible for bail pending appeal if TC finds either that ∆: 1. will not appear if conviction affirmed 2. likely to commit additional offense while on bail

Answer 102

∆ who pleads guilty pursuant to a plea bargain and receives a sentence within that bargain can appeal only if: 1. trial judge grants permission 2. appeal based on matters raised by pretrial written motion and ruled on before trial

Answer 103

Petition to have CCA review case after COA affirms conviction. Whether to grant review is discretionary. Should be filed in the COA, which will send the PDR and other documents to the CCA. No review from TXSC NOTE: prosecutor can file a PDR if COA reverses conviction NOTE: review can also occur on CCA's own motion

Answer 104

State may appeal in 6 pre-trial and post trial situations: If the TC 1. dismisses indictment 2. grants defense motion to suppress evidence before jeopardy attaches (within 20 days of order; evidence of substantial importance and appeal not for delay) 3. sustains ∆'s claim of double jeopardy 4. grants defense MNT 5. grants defense motion to arrest judgment 6. imposes illegal sentence If convicted ∆ appeals, state may cross-appeal on a question of law decided against the state If the state takes an appeal from a pretrial order favoring ∆: 1. ∆ in custody entitled to release on reasonable bail 2. ∆ entitled to personal bond if order ends the prosecution (dismisses the charges)

Answer 105

Appellant has the responsibility to preserve error. What is required depends on the type of error.

Answer 106

Must make an offer of proof showing the substance of the evidence. Can be done by: 1. Counsel's oral summary of excluded evidence 2. Q&A form AND getting ruling on excluding of evidence

Answer 107

Counsel must: 1. make timely objection 2. state specific ground to be relied upon on appeal 3. secure a ruling

Answer 108

Counsel must: 1. immediately object 2. seek instruction to disregard 3. move for mistrial 4. get rulings on each of these

Answer 109

Measured against a hypothetical jury charge correct for the case Whether an allegation is to be included in the jury charge depends on whether the variance between the allegation and the proof is "material." If it is not, the allegation should not be included in the hypothetical charge. A variance is material if it caused the indictment to fail to sufficiently inform the ∆ of the charges so as to enable ∆ to prepare a defense. Variance requires acquittal ONLY if the variance between the allegation and the proof was "material."

Answer 110

Whether viewing the evidence in the light most favorable to the state, could a rational jury have found all elements of the crime to be proved BRD?