Procedure

Question 1

Within what amount of time must an arrestee be brought before a magistrate?

Answer 1

 A magistrate judge must make a probable cause determination without unnecessary delay and within 48 hours
 If the magistrate fails to make that determination without unnecessary delay, the arrestee has the right to be released

Question 2

o What are the requisites of an arrest warrant? [F16; J13]:

Answer 2

 An arrest warrant must include:
• (1) The name of the person to be arrested or a physical description;
• (2) The offense the person is accused of committing;
• (3) The signature of the issuing magistrate;
• (4) The judicial office of the issuing magistrate

Question 3

o Is an arrest valid [F16]?

Answer 3

 A valid arrest requires:
• Probable cause to believe a crime has been committed; and
• An arrest warrant (or an exception where warrantless arrests are valid

Question 4

o What document must be filed in every instance in which a search warrant is requested, and what must it state? [F16]

Answer 4

 (1) Include a sworn affidavit,
 (2) Set out the facts stating probable cause,
 (3) The place to be searched,
 (4) Items to be seized,
 (5) Establish the place to be searched where the items to be seized will be contained

Question 5

o What procedural step can you take to seek a reduction in bail, and what argument can you make for such a reduction? [F15]

Answer 5

 Can file a writ of habeas corpus in district court
 Could argue bail is being used as an instrument of oppression
 Could argue there is a strong likelihood of D appearing for trial and that D cannot afford the higher amount

Question 6

o Is there a way that a person charged with a felony can be released from jail if he has no money and cannot secure a surety? [J15; J13]

Answer 6

 A personal bond is the accused’s promise to pay the bond amount if the accused fails to comply with the terms of release
• A personal bond doesn’t require sureties or any other security
 Bail bond – written undertaking by the D and sureties
• Bail bond requires a surety

Question 7

o Is the magistrate authorized to impose a condition that the accused not have any contact with another person? [J13]

Answer 7

 Yes, a magistrate may impose any reasonable condition on bail related to the safety of the victim or the community

Question 8

o Can a Court compel a witness to answer the grand jury’s questions? If so, by what means? [F15]

Answer 8

 Yes, a court can compel a witness to answer the grand jury’s questions (unless the witness were to have a legitimate claim that his/her answers would incriminate himself/herself)
 To compel a witness to answer the GJ questions, the court may impose a fine not exceeding $500 or commit the witness to jail until they are willing to testify

Question 9

o How is a grand jury chosen? [F16]:

Answer 9

 The court summons the grand jurors/grand jurors are selected in the same manner in which trial jurors are selected for civil cases (in the same manner as petit jurors)

Question 10

o Is there a procedural Step that you can take during the early stages of prosecution to complain when grand jurors are improperly summoned? [J15]

Answer 10

 Before grand jury is impaneled, D counsel can raise matter during the grand jury selection process by challenge to the array (challenging the entire group of persons summoned on the basis of improper selection methods)
 The issue can be raised later by a motion to quash the indictment, only if at that time defense counsel makes a showing that he did not have an opportunity to raise this by challenge to the array
o No person other than the attorney representing the State or a grand juror may question a witness before the grand jury

Question 11

o Does D have a right to an examining trial on the charged alleged in the indictment? [F15]

Answer 11

 No, once a D has been indicted by a grand jury, the right to an examining trial is eliminated

Question 12

o List 3 rights the D has at an examining trial [F16]:

Answer 12

 (1) Presence, to cross-examine or confront the witness,
 (2) Right to counsel, subpoena witness or compulsory process, to make an unsworn statement,
 (3) To remain silent or assert the Fifth Amendment privilege

Question 13

o What warning must the magistrate give to D before the examination of any witness’s at D’s examining trial? [J13]:

Answer 13

 Magistrate shall inform the accused that it is his right to make a statement relative to the accusation brought against him, but at the same time shall also inform him that he cannot be compelled to make any statement whatsoever.
 The magistrate shall also inform the accused that if he does make a statement, it may be used in evidence against him

Question 14

o What is a complaint? [J13]

Answer 14

 A sworn statement that alleges there is probable cause to believe someone committed a crime.
 A criminal complaint has several requirements, including that it must be in writing, name the offense and date of crime (if knowable) and specify the name or description of the accused

Question 15

o List 3 requisites of an indictment [F16] – Components of an indictment:

Answer 15

 (1) Must commence with “In the name and by the authority of the State of Texas”,
 (2) Presented in the District Court and in the County where the grand jury was in session,
 (3) must appear to be an act of the grand jury in the proper county,
 (4) state the name of the accused or that it is unknown with adequate identification,
 (5) that the offense presented was in the jurisdiction;

Question 16

o Can a D waive the right to be charged by indictment with a felony? If D can waive that right, what is the procedural step by which a D may do so? [F15]

Answer 16

 Yes, D may waive indictment for all prosecutions, except ones for capital murder
 To waive indictment and instead by charged by information:
• D must be represented by counsel,
• D must waive in writing or in open court, and
• The waiver must be voluntary

Question 17

o Does the TX Code of Criminal Procedure permit two or more offenses to be charged in one indictment? Explain your answer. [F16; F15]

Answer 17

 Yes, the TX Code of Criminal Procedure allows two or more offenses to be charged in one indictment when they arise in the same criminal episode
 Crimes are part of the same criminal episode if they are part of the same transaction

Question 18

o May two criminal Ds be tried jointly if they were charged in two separate indictments? [F16]

Answer 18

 Yes, two or more persons may be tried jointly for the same offense or offenses arising out of the same transaction.

Question 19

o You objection to amendment of the indictment. How should the Court rule on your objection? [F16]

Answer 19

 The objection should be sustained.

 An indictment cannot be amended to add a new or different offense that was not presented to the grand jury.

Question 20

o What procedural step can you take to bring an apparent defect in the indictment to the Court’s attention? If there is a procedural step, when should you take it? [J15]

Answer 20

 You can file a motion to quash the allegedly defective indictment
 A defendant must object to any defect, error or irregularity in the form or substance of an indictment or information 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 proceeding.