Criminal Procedure: Texas

Question 1

District Court Jurisdiction

Answer 1

1. Felonies
2. Misdemeanors that are lesser included offenses of charged felonies
3. Official misconduct misdemeanors
4. Transferred county court prosecutions for misdemeanors punishable by jail time

Question 2

Justice Court Jurisdiction

Answer 2

Offenses punishable by fine

Question 3

Municipal Court Jurisdiction

Answer 3

Exclusive: offenses created by city ordinance and punishable by fine

Concurred: offenses created by state law and punishable by fine

Question 4

County Court Jurisdiction

Answer 4

Misdemeanors over which exclusive jurisdiction not given to justice courts

Question 5

Definition: Writ of Habeas Corpus

Answer 5

A writ of habeas corpus is a court order commanding someone with a person in custody to produce that person before the court and show why the person is being held.

A writ is directed to someone having another person in restraint. It should name the office of the person to whom it is directed.

The writ seeks to have the custody of the person restrained produced.

The writ may be granted by the CCA, DCs, county courts, or a judge of any of these courts.

NOTE: Never the TXSC – that is ONLY civil.

Question 6

Under TX law, when must ∆ be taken before a magistrate?

Answer 6

The officers must present ∆ before a magistrate without unnecessary delay, but in any case within 48 hours of arrest.

Question 7

What are the duties of a magistrate at an initial appearance?

Answer 7

1. Tell ∆ charges
2. Inform ∆ of right to retain counsel and an examining trial
3. Warn ∆ that in regard to police questioning: (a) right to remain silent (b) any statement can be used against him (c) right to have attorney present during questioning (d) at any time can terminate interview
4. Set bail

MAY also determine whether PC exists

Question 8

If no magistrate determines PC for arrest after 48 hours of arrest…

Answer 8

∆ has a right to be released on bond and to have bond set so this can happen. Bond may not exceed $10,000 and personal bond if necessary to assure release.

Felony: after 48 hours of arrest w/o warrant
Misdemeanor: after 24 hours of arrest w/o warrant

Can delay release for not more than 72 hours

Question 9

Denying Bail

Answer 9

Only possible in 2 cases:

1. capital murder prosecutions
2. certain prosecutions for noncapital felonies

P must file motion for denial of bail in district court. Order must issue within 7 days of ∆’s apprehension.
NOTE: ONLY a district court judge can deny bail in noncapital prosecution.

GENERAL RULE: Bail can be denied in noncapital case only if at a hearing P shows:

1. ∆charged w/noncapital felony
2. substantial evidence of ∆’s guilt
3. one of the following:
   (a) 2 prior felony convictions
   (b) present offense committed while on bail for felony
   (c) both (i) 1 prior felony AND (ii) present offense w/deadly weapon
   (c) violent/sexual offense while on probation or parole

Question 10

Appealing denial of bail

Answer 10

∆ can appeal order denying bail to CCA.

Denial of bail can last for only 60 days from ∆’s initial detention. After that, bail must automatically be set.
EXCEPTION: ∆ moves for continuance of trial proceedings

Question 11

Procedure for reduction of bail

Answer 11

1. File application for writ of HC in district court
2. At hearing, introduce evidence showing:
   (a) bail excessive
   (b) cannot meet bail
   (c) amount of bail ∆ can meet
3. district judge may order bail reduced
4. If not, ∆ can appeal to COA (cf. DENYING bail –> CCA)

Question 12

Rules a trial court should follow when fixing amount of bail/determining whether bail set is excessive

Answer 12

LASSO

1. LIKELIHOOD of ∆ appearing for trial
2. ABILITY of ∆ to make bail
3. SERIOUSNESS of crime
4. SAFETY of victim/community
5. OPPRESSIVE – is the amount an instrument of oppression?

NOTE: conditions must be reasonably related to safety of victim/community

Question 13

Bail Bond vs. Personal Bond

Answer 13

Bail Bond: requires a surety or cash deposit

Personal Bond: neither kind of security required; promise to pay amount if bond is forfeited

PERSONAL BOND IS BETTER FOR ∆

Question 14

A jailed ∆ must be released on bond if state is not ready for trial within…

Answer 14

1. Felony: 90 days of arrest
2. Class A Mis.: 30 “ “
3. Class B Mis.: 15 “ “
4. Class C Mis.: 5 “ “

Question 15

Examining Trial (Preliminary Hearing): Jurisdiction

Answer 15

Any magistrate can hold an ET. Any court has jdx.

Question 16

Examining Trial (Preliminary Hearing): Purpose

Answer 16

The ET is a pretrial hearing before a magistrate. Its purpose is to require the State to produce evidence showing PC to believe ∆ guilty of crime.

Question 17

Examining Trial (Preliminary Hearing): ∆’s Rights

Answer 17

∆ has the rights to:

1. Be present
2. Be represented by counsel
3. Have rules of evidence applied
4. CE state witnesses
5. Subpoena/present ∆ witnesses

∆ can make an unsworn voluntary statement, but this must be done before any witnesses testify.

Question 18

Examining Trial (Preliminary Hearing): When is ∆ entitled to one?

Answer 18

1. Charged w/felony
2. Indictment has not yet been returned

NOTE: NO ET ONCE YOU HAVE AN INDICTMENT.

Question 19

Examining Trial (Preliminary Hearing): What if ∆ “wins” it and no PC found?

Answer 19

∆ entitled to go free until/if ∆ is indicted, but will not prevent prosecution/conviction.

Question 20

Indictment: Process

Answer 20

State must seek an indictment. A GJ must vote to return a “true bill” against ∆. Requires a GJ to find that PC exists to believe ∆ is guilty. Foreperson will sign the indictment and it will be filed in the DC.

Question 21

Indictment: Waiver

Answer 21

Can be waived in all prosecutions except capital murder

Requirements:

1. ∆ has counsel
2. Written or in open court
3. Voluntary

If ∆ waives indictment, state will file an information.

Question 22

Indictment: Compare w/Information

Answer 22

An information is a pleading filed by the State charging the person named with a criminal offense. It differs from an indictment in that it need only be approved and signed by the prosecutor. An indictment must be approved by a GJ and signed by the foreperson.

Also, an information (but not an indictment) must be supported by a valid and sworn complaint, which must also be filed.

Question 23

GJ: Selection

Answer 23

Two methods:

1. GJ commissioners appointed by district judge
2. in same manner as trial jurors selected for civil cases

The prospective grand jurors are summoned to the DC, which tests their qualifications and impanels 12 as a GJ.

Question 24

GJ: Challenge to the Array/Set Aside Indictment

Answer 24

Counsel should challenge the composition of the GJ if there is not a broad cross section of the population (race, gender, age) represented by the GJ.

If counsel has this info before the GJ is impaneled, she should raise the matter during the GJ selection process by a challenge to the array.

She can raise it later by a motion to set aside the indictment, only if at that time she makes a showing that she did not have an opportunity to raise this by challenge to the array.

Question 25

GJ: Proceedings – Compel ∆ to appear?

Answer 25

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.

Question 26

GJ: Proceedings – ∆ appears voluntarily?

Answer 26

∆ 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.

Question 27

GJ: Proceedings – Can ∆ examine witnesses?

Answer 27

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.

Question 28

GJ: Proceedings – Can ∆ present evidence?

Answer 28

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

Question 29

GJ: Proceedings – # to indict

Answer 29

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

Question 30

GJ: Proceedings – Challenges to indictment based on GJ proceedings

Answer 30

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.

Question 31

SOLs for Prosecutions

Answer 31

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

Question 32

Formal Requirements of Indictment

Answer 32

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

Question 33

Uncharged/Lesser Included Offenses

Answer 33

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

Question 34

Name of ∆ on Indictment

Answer 34

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

Question 35

Raising Indictment Defects

Answer 35

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

Question 36

Curing Indictment Defect by Amendment

Answer 36

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

Question 37

Procedure for Amending Indictment

Answer 37

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.

Question 38

Arraignment

Answer 38

Takes place in trial court and serves several functions:

1. ∆ enters plea
2. Fix accused’s identity
3. Appoint counsel (if not done before)

Question 39

A criminal ∆ must PERSONALLY make these decisions in a prosecution

Answer 39

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

Question 40

Nolo contedre vs. Guilty

Answer 40

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.

Question 41

Admonitions judge must make before entering guilty/nolo contendre plea

Answer 41

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

Question 42

If pretrial conference is set, 7 days before parties must…

Answer 42

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.

Question 43

Motion in Limine

Answer 43

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

Question 44

Motion to Suppress

Answer 44

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.

Question 45

Testimony of ∆ at Pretrial Hearing

Answer 45

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.

Question 46

Discovery Allowed

Answer 46

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.”

Question 47

Compelling ∆ to disclose witnesses

Answer 47

Expert: court can order ∆’s expert W’s disclosed, but NOT a summary of anticipated testimony

Other Ws: court has no authority to compel

Question 48

To obtain depo before trial…

Answer 48

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.

Question 49

Informant Disclosure

Answer 49

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)

Question 50

Duty to Disclose Exculpatory Evidence

Answer 50

∆’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.

Question 51

Competency to Stand Trial: Requirements

Answer 51

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

Question 52

Competency to Stand Trial: Procedure

Answer 52

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.

Question 53

Competency vs. Insanity

Answer 53

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

Question 54

Change of Venue: When can it be requested?

Answer 54

∆ 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.

Question 55

Change of Venue: Procedure

Answer 55

∆ 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.

Question 56

Disqualification of Judge

Answer 56

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

Question 57

Presence of Accused

Answer 57

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.

Question 58

One Offense Rule

Answer 58

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

Question 59

Criminal Episode Exception

Answer 59

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)

Question 60

Joinder and Severance of ∆s

Answer 60

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

Question 61

Motion for Continuance

Answer 61

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

Question 62

Motion for Continuance to Obtain Missing Witness

Answer 62

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

Question 63

Right to Counsel & Self-Representation

Answer 63

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)

Question 64

Replacing Appointed Attorney

Answer 64

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 ∆.

Question 65

Right to Effective Counsel

Answer 65

∆’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

Question 66

Appointment of Expert Witness for Indigent ∆

Answer 66

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.

Question 67

Dismissal of Charges

Answer 67

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.

Question 68

Standard of Proof at Trial & Verdict

Answer 68

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

Question 69

Choice of jury trial & jury sentencing

Answer 69

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.

Question 70

Waiver of Jury Trial on Guilt

Answer 70

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

Question 71

Mistrial – Jury Can’t Agree

Answer 71

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

Question 72

Jury: Legal Qualifications

Answer 72

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

Question 73

Jury: Shuffle

Answer 73

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.

Question 74

Jury: Challenge for Cause

Answer 74

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.

Question 75

Peremptory Challenges

Answer 75

Number allowed:
Capital Murder –15
Other felony – 10
Misdemeanor – 3
Misdemeanor in DC – 5

CANNOT exercise them based on race or gender.

Question 76

Batson Challenge

Answer 76

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

Question 77

Order of Proceeding in Felony Trial

Answer 77

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.

Question 78

Directed Verdict Procedure

Answer 78

(∆’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.

Question 79

Confrontation Clause

Answer 79

∆ 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.

Question 80

Statements Against Penal Interest

Answer 80

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

Question 81

Business Records

Answer 81

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

Question 82

Character Evidence

Answer 82

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)

Question 83

Foundation for Character Testimony

Answer 83

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

Question 84

Cross-Examination of Character Witnesses

Answer 84

Opinion: “Did you know?”
Reputation: “Have you heard”

NOTE: inquiry into specific instances of conduct IS permissible

Question 85

Extraneous Offense Evidence

Answer 85

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

Question 86

404(b) Notice

Answer 86

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

Question 87

Introducing Writings or Recorded Statements into Evidence

Answer 87

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

Question 88

Rule of Optional Completeness

Answer 88

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

Question 89

Physician-Patient Privilege

Answer 89

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)

Question 90

Attorney-Client Privilege

Answer 90

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

Question 91

Spousal Privilege

Answer 91

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

Question 92

Privilege of Marital Communications

Answer 92

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

Question 93

Statements Made in Plea Bargaining Discussions

Answer 93

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

Question 94

Calling and Examining Witnesses

Answer 94

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.

Question 95

To apply for a subpoena, ∆ must state:

Answer 95

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)

Question 96

Methods of Impeachment

Answer 96

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

Question 97

“The Rule”

Answer 97

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

Question 98

Expert Testimony and Scientific Evidence

Answer 98

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

Question 99

Disclosure During Trial

Answer 99

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

Question 100

Use Before the Jury Rule

Answer 100

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

Question 101

Photographs

Answer 101

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

Question 102

Exclusionary Rule: Evidence Illegally Obtained

Answer 102

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

Question 103

Jury Charge

Answer 103

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)

Question 104

Must be Pleaded? When jury instructed? BOP on? Severity of BOP? –Elements of Crime

Answer 104

Must be pleaded

Jury always instructed

BOP on state

BOP is BRD

Question 105

Must be Pleaded? When jury instructed? BOP on? Severity of BOP? – Exceptions

Answer 105

Must be pleaded and negated.

Jury always instructed

BOP on state

BOP is BRD

Question 106

Must be Pleaded? When jury instructed? BOP on? Severity of BOP? – Defenses

Answer 106

Need not be pleaded

Jury instructed if evidence supporting defense is produced

BOP on State

BOP is BRD

Question 107

Must be Pleaded? When jury instructed? BOP on? Severity of BOP? – Affirmative Defenses

Answer 107

Do not need to be pleaded

Jury instructed if evidence supporting AD is produced

BOP on ∆

BOP is POE

Question 108

Final Arguments

Answer 108

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.

Question 109

Types of evidence that require corroboration

Answer 109

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

Question 110

Jury Disagrees on Content of Testimony

Answer 110

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

Question 111

Jury Assessment of Punishment

Answer 111

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

Question 112

The judge is not required to direct a probation officer to prepare a PSR if…

Answer 112

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

Question 113

Bad Acts Evidence in Sentencing

Answer 113

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

Question 114

Good Conduct Time and Parole

Answer 114

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 ∆

Question 115

What jury considers to determine whether ∆ gets death sentence in conviction for capital murder

Answer 115

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.

Question 116

Community Supervision (Probation)

Answer 116

∆ 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)

Question 117

Shock Community Supervision

Answer 117

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.

Question 118

Deferred Adjudication

Answer 118

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

Question 119

Probation vs. Deferred Adjudication

Answer 119

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.

Question 120

Pronouncement of Sentence

Answer 120

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.

Question 121

Motion for New Trial

Answer 121

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

Question 122

Motion for New Trial – New Evidence

Answer 122

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.

Question 123

Motion in Arrest of Judgment

Answer 123

Grounds:

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

Question 124

Appeal

Answer 124

∆ 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

Question 125

Bail Pending Appeal

Answer 125

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

Question 126

Plea Bargain + Appeal

Answer 126

∆ 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

Question 127

Petition for Discretionary Review

Answer 127

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

Question 128

Appeals by the State

Answer 128

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)

Question 129

Preserving Error: Generally

Answer 129

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

Question 130

Preserving Error: Excluding Evidence

Answer 130

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

Question 131

Preserving Error: Admitting Evidence

Answer 131

Counsel must:

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

Question 132

Preserving Error: Improper Argument or Comment/Improper Question

Answer 132

Counsel must:

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

Question 133

Sufficiency of Evidence & Variance

Answer 133

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.”

Question 134

Standard for Legal Sufficiency

Answer 134

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?