Pre Trial Motions

Question 1

a. CCP 28.01 – The court MAY

Answer 1

set any criminal case for a pretrial hearing.

Question 2

. 28.01(6) – when hearing a motion to suppress, the court may determine the

Answer 2

merits of said motion on the motions themselves, or upon opposing affidavits, or upon oral testimony, subject to the discretion of the court.

Question 3

i. Writ v. State

Answer 3

– defendant charged with aggravated robbery. On the day of the trial, defense files a motion to suppress the evidence. Defense says there was no PC to conduct search. Judge denied the motion at the time. At trial prosecution offers the evidence and the defendant fails to object.

1. A motion to suppress must be filed 7 days prior to trial.
2. To file a motion on the day of trial is considered untimely
3. All motions must be presented to the court (the judge) in order to be argued.
4. Where the hearing on a pre-trial motion to suppress is supported by evidence and the contention presented on appeal is the same as that presented to the trial court at such hearing. You don’t not have to object at trial in order to preserve the error.
5. If you don’t get the hearing, you must object at trial to the admission of the evidence.
6. State has the right to appeal their loss on a pretrial motion to suppress.
7. The objection has to be on proper grounds so that an opportunity is given at that time to correct the matter.

Question 4

ii. Amador v. State

Answer 4

defendant arrested for DWI. Files a motion to suppress all the evidence. Prosecution can object to this motion because it is too vague and fails to provide proper notice as to what the defense has issues with.

1. CCP 38.23 provides greater protection than the 4th Amendment.
2. The defendant has the initial burden to show that the arrest was without a warrant.
3. The burden then shifts to the prosecution to show that the arrest was not unreasonable.
4. Either side can call the officer as a witness because there are no state witnesses or defense witnesses. Only witnesses enjoying a privilege cannot be called by either side.

Question 5

iii. Bishop v. State

Answer 5

defendant arrested for poss. CS with intent to deliver. Defendant makes motion to suppress evidence based on a lack of PC for arrest. Trial court hears motion but denies because the affidavit did not assert a claim of a lack of PC. The motion itself did and the court only used the affidavit. The court of Appeals reverses because the assertion is contained in the motion, even if it wasn’t in the affidavit. The court of Appeals erred because the trial court only used the affidavit, not both. By considering both, the court of appeals gave consideration to evidence not on the record.

1. Trial court does not need to hear witnesses to make a decision on the motion. The motion can be heard on the merits of the motion itself, affidavits, OR, live testimony (CCP 28.01 Sec. 1(6))
2. To avoid the same issues with this case, a good practice is to ask the judge how she prefers to receive evidence for the motion (i.e. motion itself, affidavit, or live testimony).
3. CCP 1.052 – a pleading motion or other paper filed must be signed by at least one attorney and the signature is certification that a reasonable inquiry was made and the instrument was found to not be groundless or made in bad faith.

Question 6

iv. Ford v. State

Answer 6

defendant arrested for marijuana possession. Defendant files a motion to suppress evidence because of improper police conduct. During the hearing, the officer’s non-notorized offense report was admitted over the defense attorney’s objection of hearsay. Based on the offense report, the motion to suppress is denied.

1. CCP 28.01 is a permissive rule and the court holds the rules of evidence do not apply to motions, with the exception of privileges. The judge is allowed to use hearsay evidence in these types of hearings. 28.01 does not create a “best evidence” rule.
2. The defense could have subpoenaed the officer to testify in order to cross examine about the report.
3. If one side subpoena’s a witness, the other side may rely upon that subpoena and not have to subpoena the witness again for themselves.
4. Where the only objection was hearsay (right to confrontation), the court was unsympathetic. However, in dicta, the court says if the defense had objected to accuracy of report then it may have been improper for it to be admitted.

Question 7

v. Hulit v. State

Answer 7

defendant was arrested for DWI after being discovered by officers stopped at a turn lane, back from the intersection, taking a nap. The officers claim they were performing a welfare check to determine if the driver was injured. The defendant moves to have evidence suppressed due to lack of probable cause. Defendant claims no community caretaking exception exist.

1. Under Art. 1 Sec. 9 of Texas Constitution says that people are protected from UNREASONABLE seizure. There is no warrant requirement under the Texas Constitution, it only requires things to be done reasonably and sets out when warrants WILL NOT be issued.
2. Texas statutes that require a warrant for a search or an arrest may not be ignored.
3. The defendant didn’t make a motion under the 4th Amendment because the Supreme Court had already adopted the community caretaking exception, which was adverse to his position.