Crim.Pro Flashcards
District Court hear cases where:
1) Felonies
2) Misdemeanors that are lesser included offenses of charged felonies
3) Mis. involving official misconduct
4) transferred county court prosecutions for misdemeanors punishable by jail time
Justice Courts hear cases:
for offenses punishable only by fine
Municipal Courts hear cases where:
a) exclusive jurisdiction: offenses created by city ordinance and punishable by fine only
b) concurrent jurisdiction: offenses created by state law and punishable by fine only
County Courts hear cases where:
Misdemeanors over which exclusive jurisdiction is not given to justice courts
Magistrate:
any judge, including justices of the peace and municipal courts
A felony prosecution begins with filing in district court of an:
indictment
Steps of a felony prosecution:
- Arrest
- presentment before magistrate
- examining trial
- consideration by grand jury
- presentment of indictment
- arraignment
- pretrial hearing
- trial/ guilt or innocence
- trial penalty(assessment of sentence)
- pronouncement of sentence
- motion for new trial
- motion to arrest judgement
- notice of appeal
- appeal to court of appeals
- review of court of crim appeals
- habeas corpus
What is a writ of habeas corpus?
court order commanding someone with a person in custody to produce that person before the court and show why the person is being held
To whom is the habeas writ directed?
A writ is directed to someone having another person in restrain. It should name the office of the person to whom it is directed.
What remedy does a habeas writ seek?
The writ seeks to have the custody of the person restrained to be produced.
By whom may a habeas writ be granted?
The writ may be granted by the Court of Criminal Appeals, the District Courts, the County Courts or a judge of any of these courts.
Under TX Law, when must a D be taken before a magistrate?
The officers must present him before a magistrate without unnecessary delay, but in any case within 48 hrs of arrest
What are the duties of a magistrate at such an appearance?
The magistrate is to:
1)tell D the charges
2)tell him of his rights to counsel
3) an examining trial
4) warn D that in regard to police questioning he has the right to remain silent
5) any statement he makes can be used against him
6) he has a right to an attorney present during questioning
he can request an appointed attorney and at any time he can terminate an interview with the police.
7) Set BAIL
Also, the magistrate can determine whether probable cause exists.
Rules for Bail:
- Release on bail required if no probable cause determination by magistrate.
a) felonies after 48 hrs of arrest without warrant
b) misdemeanors after 24 hrs of arrest without warrant
2) magistrate can delay release for not more than total of 72 hours.
Denial of Bail:
- Capital Murder
2. Certain prosecutions for non capital felonies
Which court can deny bail of a noncapital prosecution?
District Court
Must file motion for denial of bail in district ct. Any order denying bail must issue within 7 days of Ds apprehension
Bail can be denied in a noncapital case only if at a hearing the prosecution shows:
- D is charged with a noncapital felony and
- substantial evidence of Ds guilt of that crime
- and one of the following
a) two prior felony convictions or
b) present offense committed out on bail on felony or both:
1) one prior felony conviction and
2) present offense involved used of a deadly weapon
c. present offense was a violent or sexual offense committed while on felony probation or parole.
Bail can be denied:
Bail can be denied if on bail on a felony charge, D violates a condition of bail related to the safety of the victim or the community.
If Bail is denied, how can D challenge?
Immediately appeal the order denying bail to court of criminal appeals.
How long can a denial of bail last?
Denial of bail in a noncapital prosecution lasts only 60 days as long as the defense does not move for a continuance of the trial proceedings.
Hypo: The prosecution does not seek to have bail denied, and the magistrate sets bail for Sims at 500K bail bond on the charge of aggravated assault.
Sims unsuccessfully requests the magistrate to lower the bail to 10K. What steps can he take to seek a reduction of bail?
- File application for writ of habeas corpus in DISTRICT COURT.
- At hearing, introduce evidence showing:
a. bail set was excessive
b. he cannot meet bail set
c. the amount of bail he can meet - the DC judge my order bail reduced
- If not, D can before trial appeal to Court of Appeals (Intermediate Court)
What are three rules that a trial court should follow when fixing the amount of bail, or determining whether bail set is excessive?
Factors are LASSO:
Likelihood of D appearing before trial
Ability of D to make bail
Seriousness of the crime charged
Future saftey of the victim and of the community
Required bail is not to be an instrument of oppression.
Is D better off if bail is set at 500K personal bond?
Yes. Bonds require surety (someone who guarantees it) or a cash deposit. Personal bond requires neither kind of security. A personal bond is the accused’s promise to pay the amount if the bond is forfeited.
Bail is set, but the magistrate imposes a condition that D not have any contact with children under 12. HOw can D challenge this?
A magistrate may impose any reasonable condition on bail related to the saftey of the victim or community. Nothing in the facts suggests Sims is a danger to children. SO this condition is not reasonably related to the safety of the victim or community.
