Pre-Trial Issues: Pleadings

Question 1

Objections to indictments or informations must be made

Answer 1

before the date of trial, otherwise such objection is waived and may not be raised for the first time on appeal or in any post conviction proceedings

Question 2

Invalid indictment or information when

Answer 2

complete failure to allege the name of the defendant

Question 3

Requirements for an indictment (9)

Answer 3

(1) Starts with “in the name and by authority of Texas”
(2) was presented in the district court of the county where grand jury sits
(3) acted upon by a grand jury in the proper county
(4) name of person indicted
(5) place of offense
(6) date of offense
(7) offense charge is clear and plain language, including essential elements of offense and name of victim (mental state)
(8) Close with “against the peace and dignity of the State”
(9) Signed by the foreperson

Question 4

Michael Morton Act Requires

Answer 4

state must provide discovery as soon as practicable after receiving a timely request

Question 5

Following items are subject to discovery (7)

Answer 5

(1) offense reports
(2) written/record witness statements
(3) photographs
(4) tangible items
(5) Diagrams
(6) autopsy reports, including toxicology
(7) everything else that is not work product

Question 6

Reciprocal Discovery (2)

Answer 6

(1) disclosure by the defense of the name and address of expert witnesses
(2) notice of intent to raise insanity defense

Question 7

Time for filing motions and pleadings (2)

Answer 7

(1) 7 days before pre-trial hearing

(2) Defendant has not less than 10 days before filing date to prepare motions

Question 8

Brady Rule Obligations (3)

Answer 8

(1) Prosecutor must disclose all favorable material evidence in her possession, and
(2) Must preserve and make available to defendant any favorable, material physical evidence that an accused cannot otherwise obtain and that may be material to defense
(3) includes impeaching evidence

Question 9

Favorable Evidence Definition

Answer 9

is material if there is a reasonable probability that had the evidence been disclosed, the result of the proceeding would have been different

Question 10

Failure to Preserve potentially useful evidence effects

Answer 10

(1) does not violate due process
(2) does not require dismissal of charges
(3) unless, can show bad faith