Tattoo Traffic Stop Shotgun Confiscation

Question 1

1. What are three rules that a court should follow when fixing the amount of bail?

Answer 1

The amount of bail is within the discretion of the court and is governed by the TX Constitution.
Bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with. The nature of the offense, the circumstances under which it was committed, the safety of the victim, and ability to pay are to be considered.

Question 2

2. Can the court consider whether Troy is capable of posting bail in determining whether Troy is indigent and is still entitled to appointed counsel? Explain fully.

Answer 2

The court may consider many factors when determining whether a defendant is indigent (e.g., income, assets, debt, expenses, dependents, etc.), but is not permitted to consider whether Troy has posted or is capable of posting bail, except to the extent that it reflects the defendant’s financial circumstances as measured by the above factors.

Question 3

4. Eager to get a great plea bargain, Roscoe meets with Officer and tells him that Troy has purchased many illegal weapons from him in the past and that they are locked in a closet in Troy’s apartment.
   \In order for a search warrant to be issued authorizing the search of Troy’s apartment for evidence, what facts must Officer allege and in what document must he do this? Explain fully.

Answer 3

A valid search warrant must be based on probable cause supported by oath or affidavit.
Because a showing of probable cause exists when the officer has either (i) personal knowledge, or
(ii) trustworthy hearsay from an informant or other person, the supporting affidavit must allege the informant’s veracity, reliability, and basis of knowledge.

Question 4

5. Subsequently, Troy is released on bond. A Harris County grand jury returns an indictment charging both Troy and Roscoe with the felony of intentionally and knowingly possessing a short-barrel firearm. Is venue proper in Harris County, Texas? Explain fully.

Answer 4

Yes, venue is proper in Harris County because venue is generally proper in the county where all or part of the criminal act occurred.
Here, the possession of the firearm occurred at least in part in Harris County, so Harris County is the proper venue.

Question 5

6. The court sets a pretrial hearing for 9:45 a.m. on December 17, 2008, and sets trial for January 5, 2009. You then learn that Roscoe’s girlfriend saw Roscoe secretly place the sawed-off shotgun in the SUV, while Troy was not present. Unfortunately, Roscoe’s girlfriend has gone on vacation, and you do not know how to contact her. What procedural step, if any, can you take to obtain more time before the trial in order to find Roscoe’s girlfriend; by what date must you take such a step, if any; and what must you show the court? Explain fully.

Answer 5

I should file a motion for continuance by December 10, containing the name and address of the witness and alleging a diligent attempt to secure her attendance, materiality of her testimony, that the motion is not made for purpose of delay, that the absence was not procured by the defendant, and that there is no reasonable expectation that she will attend.

Question 6

7. While preparing for trial, you realize that prohibiting the prosecutor from introducing the sawed-off shotgun into evidence will result in an acquittal of Troy. What procedural step, if any, can you take to try to keep the sawed-off shotgun from being introduced into evidence, and what argument, if any, can you make in support of your position? Explain fully.

Answer 6

I can argue that the shotgun should be suppressed as the fruit of an illegal stop because seeing a tattoo and concluding that Troy was “up to no good” was not sufficient to give the officer a reasonable suspicion based on articulable facts to stop Troy, and that if not for the illegal stop, the officer would not have found the shotgun.

Question 7

8. Against your advice, Troy decides to plead guilty. In court, the following occurs:

COURT: How do you plead to the indictment?

TROY: Your Honor, I plead guilty.

COURT: Well, let me warn you about some things.

TROY: Actually, Your Honor, I have changed my mind and want to take back my guilty plea and go to trial.

May Troy withdraw his guilty plea at this point in the proceeding? Explain fully.

Answer 7

For a felony, a defendant may withdraw his guilty plea at any time before the court takes the plea or pronounces judgment on the plea.
Here, the court has not yet accepted the plea because the judge has not yet read the defendant the necessary admonishments, so the defendant may withdraw his guilty plea.

Question 8

9. Assume that Troy can and does withdraw his guilty plea. Is Troy’s guilty plea admissible at his trial as evidence of his guilt? Explain fully.

Answer 8

Troy’s guilty plea cannot be used against him.
Neither a withdrawn plea nor a statement made in a plea negotiation is admissible against the defendant in a subsequent proceeding.

Question 9

10. Before the December 17, 2008, pretrial hearing, you discover that Roscoe was convicted and sentenced in 2006 for unlawfully possessing a firearm silencer. What procedural steps, if any, can you take to try to protect Troy from the prejudice he will suffer from the introduction of Roscoe’s prior conviction if Troy and Roscoe are scheduled to be tried together? Explain fully.

Answer 9

I should file a motion to sever alleging that there is a previous admissible conviction against Roscoe and that a joint trial would be prejudicial to my defendant because of Roscoe’s admissible conviction.
An alternative would be a motion in limine to exclude the co-defendant’s prior conviction, with subsequent objections to preserve error at trial.

Question 10

3. If the court denies your request to reduce Troy’s bail to $10,000, what procedural step, if any, can you take to seek a reduction in bail, and what argument, if any, can you make for such a reduction? Explain fully.

Answer 10

A claim of excessive bail is made through a petition for writ of habeas corpus claiming inability to make bail and arguing that $10,000 is enough to give reasonable assurance that Defendant will appear; Defendant was charged with a nonviolent, victimless crime; Defendant could afford bail at $10,000; and Defendant made an effort to furnish the $25,000 bail.

Question 11

11. During your investigation of Troy’s defense, you locate Roscoe’s girlfriend, Glenda, who lives in Harris County. She confirms that she saw Roscoe put the sawed-off shotgun in the back of Troy’s SUV when Troy was not present. What procedural steps, if any, can you take to ensure that Glenda appears at trial to testify as a witness? Explain fully.

Answer 11

I can apply for a subpoena to the clerk to summon Glenda to appear.
However, if she has been properly served with a subpoena to appear and testify, and she fails to appear, I can have an attachment issued against Glenda.

Question 12

12. At 9:15 a.m. on December 17, 2008, the court begins the pretrial hearing 30 minutes early, even though Troy has not arrived yet. You object to the court’s beginning the hearing in Troy’s absence, but the court overrules your objection. Did the court correctly rule on your objection, and does a defendant have a right to be present at a pretrial proceeding? Explain fully.

Answer 12

The general rule is that in all felony prosecutions, the defendant must be personally present at the trial, and has a right to be present at all pre-trial hearings.
Here, the court did not correctly rule on my objection, and Troy has a right to be present at the pre-trial proceeding.

Question 13

13. At the joint trial of Troy and Roscoe on January 5, 2009, the jury panel is assembled and voir dire begins. During voir dire, one prospective juror states the opinion that “no person convicted of possessing an illegal firearm should ever get probation.” Can you properly make a challenge to this prospective juror, and, if so, what kind of challenge should you make and on what ground? Explain fully.

Answer 13

A challenge for cause is an objection made to a particular juror, raising some fact that renders the juror incapable or unfit to serve on the jury, such as bias, prejudice, or preconceived notions.
Here, I should assert that the juror is prejudiced and has preconceived notions regarding persons convicted of possessing illegal firearms.

Question 14

14. After the jury is selected, you notice that Officer and the State’s tattoo expert, who will be witnesses at trial, are conferring in the courtroom about Troy’s case. What procedural step, if any, can you take to stop Officer and the expert from conferring about the case and from remaining in the courtroom during trial? Explain fully.

Answer 14

At the request of a party, the court must order witnesses excluded so that they cannot hear the testimony of other witnesses.
I can request the witnesses be sequestered (i.e., placed under “the rule”), and they will not be permitted to converse with each other or with any other person about the case, except by permission of the court.

Question 15

15. Prior to any testimony, the prosecutor asks for a bench conference and tells the court that she intends to introduce Roscoe’s confession to show that he owned the sawed-off shotgun and that Troy put the sawed-off shotgun in the SUV. You know from a conversation with Roscoe’s lawyer that Roscoe has chosen not to testify at trial. What objections or requests, if any, should you make with regard to the admission of Roscoe’s confession into evidence? Explain fully.

Answer 15

I should object that the confession of a non-testifying co-defendant is hearsay that violates the Confrontation Clause because Troy cannot confront Roscoe and the presumption of unreliability is not overcome by an independent showing of reliability.
I can also request severance of the joint trial or redaction of the prejudicial portion of the confession.

Question 16

16. During trial, Officer testifies on direct examination about how he pulled Troy’s SUV over and discovered the sawed-off shotgun.
    During your cross-examination of Officer, you request a copy of Officer’s report concerning these events, but the prosecutor objects, stating: “Police reports are work product and do not have to be produced as part of discovery.” The court denies your request for a copy of Officer’s report. Is the court’s ruling correct? Explain fully.

Answer 16

The Court’s ruling is incorrect.
After a witness other than the defendant has testified on direct examination, pursuant to the Gaskin rule, the party not calling the witness, on motion, will be given any statement of the witness relating to the witness’s testimony in the possession of the other party.
Thus, Troy should receive the requested statement.

Question 17

17. At a conference on the court’s proposed jury charge, you object that, although the charge instructs that the jury must acquit unless it is satisfied beyond a reasonable doubt of the defendant’s guilt, it does not define the phrase “reasonable doubt.” Must the court include a definition of “reasonable doubt” in the jury charge? Explain fully.

Answer 17

An instruction of reasonable doubt is not required and, in fact, the better practice is no definition.
However, some cases have allowed the instruction if both parties agree to it.

Question 18

18. Troy decides not to testify in his own defense. During closing argument to the jury, the prosecutor makes the following statement:

PROSECUTOR: Ladies and gentlemen of the jury, if Troy really were not guilty, don’t you think he would have gotten up on the witness stand and told you so!

Is the prosecutor’s argument improper? If a prosecutor makes an improper closing argument to the jury, what procedural steps, if any, must defense counsel take to preserve error? Explain fully.

Answer 18

Yes, it is improper for the prosecutor to comment on a defendant’s Fifth Amendment right to remain silent.
To preserve the error, defense counsel should object to the statement when it is made and move for the jury to disregard the comment.
The defense could also move for a mistrial based on the prosecutor’s improper comment.

Question 19

19. The jury finds both Troy and Roscoe guilty as charged in the indictment. Although you did not previously request that the jury determine Troy’s sentence, you immediately file a written motion for the jury to assess punishment. Is your request for jury sentencing timely at this stage of the proceedings? Explain fully.

Answer 19

The defendant may elect to have punishment assessed by the jury by filing a sworn motion before trial for community supervision or making an election in writing before voir dire of the jury panel. If an election is not made, the judge will set the punishment.
My request for jury sentencing at this stage of the proceedings was not timely.

Question 20

20. The prosecutor gave you timely and proper notice that, at the sentencing phase of the trial, she would seek to introduce evidence that Troy committed a bank robbery on November 18, 2008, using Roscoe’s sawed off shotgun.
    Troy has not been charged with or convicted of the bank robbery. Is evidence that Troy committed the bank robbery admissible against Troy in the sentencing phase of the trial? Explain fully.

Answer 20

At sentencing, evidence of this bank robbery can only be admitted if it is shown beyond a reasonable doubt that the crime was committed by the defendant or that he could be held criminally responsible for it, regardless of whether Troy has previously been charged with or finally convicted of the robbery.