Tex Crim Pro

Question 1

What are the items required in an arrest warrant

Answer 1

1. Name (or physical description) of person to be arrested 2. name of the offense 3. signature of magistrate and his office

Question 2

What are the items required in a search warrant

Answer 2

1. Statement that it runs in name of state of Texas 2. specification of the person, place, or thing 3. specification of items to be seized 4. an endorsement of the date and hour it was issued 5. signature of the issuing magistrate NOTE: must be executed within 3 days, exclusive of date of issuance and day of execution (so really 5 days)

Question 3

When is an arrest valid without a warrant

Answer 3

Officer had reasonable belief suspect was about to escape, suspect found with stolen property, D committed felony in presence of officer, D, believed to have committed felony, found in a suspicious place

Question 4

When is officer permitted to break down the door to arrest someone

Answer 4

1. Officer has probable cause to believe the person committed the felony 2. officer gives notice of the officer’s authority and purpose 3. officer is refused admittance

Question 5

What is the statute of limitations period for certain crimes?

Answer 5

NO SOL: murder, manslaughter, leaving scene of accident resulted in death, indecency with child, sexual assault with child General SOL for felonies - 3 years 10 years for sexual assault, injury to elderly, arson 5 years for theft, burglary, robbery, kidnapping, abandoning/endangering a child, insurance fraud

Question 6

Where is venue proper?

Answer 6

General rule: proper in county in which crime or part of crime was committed

Question 7

What is needed to establish that D is incompetent to stand trial, and what is the burden of proof needed?

Answer 7

1. he lacks sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding; OR 2. He lack rational as well as factual understanding of the proceedings. Must be proven by preponderance of the evidence by the party who asserts incompetency. If found incompetent, D will either be released on bail for treatment or committed to a mental health facility Prosecution will proceed once D has regained competency.

Question 8

Within what amount of time should a magistrate decide whether probable cause exists to believe that a person committed a felony offense? What are the consequences if a magistrate fails to make probable cause determination within that time?

Answer 8

Magistrate should decide whether probable cause exists within 48 hours of the arrest. If not, D has the right to be actually released on bail and to have bail set so he can make it. This may require personal bond. Bails must be no more than $10,000

Question 9

What is probable cause?

Answer 9

Facts on which a reasonable person would conclude there was a fair probability that D was the perpetrator

Question 10

What is bail? What is a bail bond? In what major way does a person bond differ from a bail bond?

Answer 10

Bail is the security given by a D to assure that he will appear in court to answer the accusation against him. A bail bond is a written undertaking to the D and one or more sureties that they will pay that they will pay the amount of bail if the D does not make his required appearance. A personal bond requires neither an adequate surety or a cash deposit in the amount of the bond.

Question 11

What is a personal bond?

Answer 11

Requires the D to pay the amount but does not require a surety or cash deposit. Magistrate may impose any reasonable condition on the bail that is related to the safety of the victim of the crime or community

Question 12

What are 3 rules for fixing the amount of bail?

Answer 12

1. Bail shall be sufficiently high to ensure D appears before court settings and trial 2. not set so high as to be an instrument of oppression 3. judge shall consider the nature of the charged offense in determining bail 4. judge shall consider D ability to make bail 5. judge must consider the future safety of victim and community

Question 13

What is a writ of habeas corpus?

Answer 13

Court order directing someone to produce an individual before the court to show why that individual is being held. It is directed to a person having the individual in custody or under restraint. The writ may granted by the CCA, a district court, county court, or judge in any of these courts.

Question 14

What is an indictment? Discuss two ways in which an indictment and an information differ?

Answer 14

An indictment is a written statement of a grand jury accusing a named person of a criminal offense. Differences: 1. an indictment must be approved by a grand jury and signed by the foreman, while an information needs only be authorized and signed by prosecutor 2. An information must be supported by a sworn complain filed with the court, while an indictment does not require such support.

Question 15

What are the formal requirements of an indictment?

Answer 15

1. commence with words “In the name and by authority of The State of Texas” 2. appear that it was presented in the district court of county where grand jury is in session 3. appear to be the act of grand jury of the proper county 4. contain name of accused (or reasonably accurate description if unknown) 5. show where offense committed is within jurisdiction of court in which indictment is presented 6. charge the offense on a date before the presentment of indictment 7. set forth offense in plain and intelligible words 8. conclude with the words “Against the peace and dignity of the State” and 9. be signed officially by the foreman of grand jury

Question 16

Can D waive indictment?

Answer 16

Yes, indictment can be waived in ALL cases except prosecutions for capital murder. If a D waives this, the D will be charged by an information signed and filed by the Prosecutor. Waiver of indictment has 3 requirement: 1. D must be represented by counsel 3. must be written or in open court 3. must be voluntary

Question 17

Does D have right to address the grand jury?

Answer 17

No, however, the grand jury may permit him to appear. The prosecutor must consent to defense counsel’s addressing the grand jury.

Question 18

What is the purpose of an examining trial?

Answer 18

To require the State to produce evidence establishing that there is probable cause to believe D is guilty of the offense charged. If State fails to show, D is to be discharged until he is indicted.

Question 19

What are 3 decisions a criminal D must personally make?

Answer 19

1. What plea to enter 2. Whether to have a trial by jury 3. whether to take the witness stand

Question 20

What should be the composition of the grand jury?

Answer 20

TCCP requires commissioners, to extent possible, select grand jurors who represent a broad-cross section of population as to race, sex, and age. To challenge composition, raise matter during the grand jury selection process by challenge to array. Raise it later by a motion to set aside the indictment but only show that there was no opportunity to raise this by challenge to array.

Question 21

What are the circumstances on which you can appear and present evidence before a grand jury on behalf of the D?

Answer 21

Defense counsel may address grand jury if grand jury is willing and Prosecutor approves. Can provide body with evidence, but cannot question witnesses because only prosecutor and grand jurors can do that.

Question 22

How can an indictment be challenged?

Answer 22

By filing an exception, often called MOTION TO QUASH. Should be filed before the day on which the trial on the merits commences.

Question 23

When must an application for probation be filed?

Answer 23

Before trial

Question 24

When must an election for jury sentencing be filed?

Answer 24

Before the beginning of voir dire examination of the prospective jurors.

Question 25

What must be done to allow the jury to recommend community supervision?

Answer 25

D should file a sworn motion for community supervision stating that D has never been convicted of a felony in TX or elsewhere. Also, punishment assessed must not exceed 10 years imprisonment. This should be filed BEFORE TRIAL.

Question 26

Can D withdraw his guilty plea if court decides not to follow the plea agreement?

Answer 26

Yes. IF TC does not follow the plea agreement, D must be allowed to withdraw his plea and enter a not guilty plea if he wishes. A plea of guilty to judge can be withdrawn as a matter of right before the court takes the plea under advisement. Plea of guilty later withdrawn cannot be used against D.

Question 27

What is the effect of pleading guilty or nolo contendere?

Answer 27

In criminal prosecution itself, it has same legal effect. But if civil litigation where to arise of the same incident, a plea of guilty could be used against D, but not nolo contendere.

Question 28

What are 2 differences between deferred adjudication and probation?

Answer 28

1. deferred adjudication can be imposed without a conviction or a finding that D is guilty, while probation can be imposed only if D has been found guilty 2. revocation of deferred adjudication permits the court to sentence D to any term of imprisonment within statutory range, wile revocation of probation limits the term of imprisonment to the one assessed before D was placed on probation.

Question 29

Can jury place D on deferred adjudication?

Answer 29

NO. Only judge can place a D on deferred adjudication. In order to be eligible, D must plead guilty or nolo contedere rather than going to trial and being found guilty.

Question 30

D tells attorney he had a felony. D wants attorney to file an application for community supervision. Should attorney do so?

Answer 30

No. An application for community supervision must state UNDER OATH that D has never been convicted of a felony. To file the application would be unethical participation in making a false statement to the court and may result in criminal liability. If application is not filed, D’s previous criminal history need not be disclosed to the State because attorney learned during confidential communication with D and disclosure would violate A/C privilege.

Question 31

D wants to testify concerning his incriminating statement at pre-trial hearing. Does this waive right to remain silent at his trial?

Answer 31

No. D has not waived his right to remain silent at trial. Additionally, the State’s cross-examination at pre-trial hearing is limited to circumstances surrounding the post-arrest statement; it cannot ask him about his guilt of the offense

Question 32

What procedural step can be taken if D cannot obtain a fair trial?

Answer 32

Counsel can move for a change of venue. At the hearing that will be held on the motion, Prosecutor must show that because of influences in original county, a trail fair and impartial cannot be held.

Question 33

Does D have to be present at trial?

Answer 33

D has a right to be personally present, and in fact, can be compelled to be present. But in a felony trial, a trial can continue without the D if the D was present though selection of jury and after that he voluntarily absents himself from the trial.

Question 34

Can defense counsel be ordered to produce witness lists to the State?

Answer 34

Judge has no authority to order defense to provide general witness list for State, but does have statutory authority to order defense to provide a list of expert witnesses it may call, so the judge has discretion to order a list of expert witnesses the defense will call.

Question 35

Is Prosecutor required to provide exculpatory information to D?

Answer 35

As a matter of federal due process under Brady, Prosecutor MUST disclose exculpatory information, even if witness statement is unsigned. Duty does NOT require or depend on a request by D.

Question 36

What is the D’s right of pre-trial inspection (discovery)?

Answer 36

D’s right of inspection is limited by State’s work-product protection. Following NOT subject to pre-trial inspection: 1. written statements of W’s 2. notes and other work product of counsel and investigators (includes police reports) 3. written communications between state agents or employees

Question 37

When is a pre-trial deposition allowed?

Answer 37

Either party may apply to the court for authorization to depose a witness. Application must be accompanied by an affidavit setting out good cause for the taking of the deposition. Notice must be given to the opposing party. A hearing is held, and if the court finds good cause it may grant application.

Question 38

Who decides what plea will be entered, and what are three admonishments that the court must give before accepting a plea of guilty?

Answer 38

Defendant must decide. Admonishments include: - range of penalties that must be imposed - any recommendation on punishment is not binding on court - limited right to appeal after conviction on guilty plea - deportation may result if not a citizen

Question 39

What three questions must the court ask in testing the qualifications of a prospective juror?

Answer 39

1. are you a qualified voter in county and state 2. ever been convicted of theft or any felony 3. under indictment or accusation of theft or any felony

Question 40

How many for cause and peremptory challenges does each side get?

Answer 40

Each part gets unlimited for cause challenges. In non-capital felony with only 1 D, entitled to 10 peremptory (6 if more than 1 D)

Question 41

What challenges of a prospective juror can you “for cause”?

Answer 41

Biased or prejudiced for or against the accused, biased or prejudiced against any law applicable to case, prior conviction for theft/felony, insane, not qualified to be voter, cannot read/write, is a W in case, served on indicting grand jury.

Question 42

What procedure should defense counsel use to prevent Prosecutor from referring to prior bad acts during voir dire and how do you preserve the issue for appeal?

Answer 42

Employ the procedure of motion in limine. Move the court order the Prosecutor to not, during voir dire, refer to alleged acts of misconduct. Object immediately even if judge granted motion in limine. This is because a ruling on motion in limine does not itself preserve a matter for appeal.

Question 43

What procedure should defense counsel use to ensure that Prosecutor will disclose before trial whether he intends to use prior bad acts in evidence at trial?

Answer 43

TO ensure that the State will disclose before trial that he intends to introduce such evidence on guilty-innocence as proof of prior bad at, D should make a timely request for such notice. D should also request pre-trial notice of the State’s intention to introduce at punishment evidence of extraneous crimes or bad acts under TCCP.

Question 44

Can an action of striking all Black jurors be challenged?

Answer 44

Yes, neither party can exercise peremptory challenges based on race. Opposing party must attempt to rebut challenge by offering evidence that each strike was in fact made for reasons other than race.

Question 45

What is the procedure for continuing the proceedings because of a missing witness?

Answer 45

D’s first motion for continuance because of missing witness must state: - name and residence of witness - diligence which has been used to procure attendance of witness - material facts which expects witness will help prove - Witness not absent by procurement or consent of D - Motion not for delay - no reasonable expectation that witness can be presented during present term of TC

Question 46

What is the proper predicate for business records to come in?

Answer 46

Must show that the witness had custody of the records, records were made in regular course of business, persons making the entries in records had or receiving the information from someone with firsthand knowledge of the matters, and entries were made near time of events recorded in records.

Question 47

What should the court consider in determining admissibility of scientific evidence?

Answer 47

1. Extent to which underlying scientific theory/technique are accepted as valid by scientific community 2. qualifications of expert 3. existence of literature supporting or rejecting underlying theory 4. potential error rate 5. availability of other experts to test and evaluate

Question 48

Should court sustain defense counsel’ objection when Prosecutor calls D to stand, and how should the issue of prejudice be persevered on appeal?

Answer 48

Yes. D has constitutional right to not testify and to not have the failure to testify called to jury attention To preserve matter for appeal, Appeal must do more than object since objection was sustained. Must move for instruction to jury to disregard the references to D failure to testify. If motion granted, D must then move for mistrial on grounds that instruction will not be effective, and jury will nevertheless consider D’s refusal to testify.

Question 49

What must the jury charge contain?

Answer 49

Jury charge should contain both abstract portions and an application portion. Application portion should incorporate the specific allegations of the indictment and instruct the jury on what specifically it must find to convict the D. Also, the court need not include a definition of reasonable doubt. This is because any effort to define reasonable doubt will be of no help and will tend to confuse the jury.

Question 50

What happens if a juror becomes disabled after trial begins but before the instructions are ready for the jury?

Answer 50

If felony case, the remainder of jurors can reach valid verdict. All jurors, however, must sign the verdict.

Question 51

Does the Code of Criminal Procedure confine the jury to reaching a verdict only on the state jail felonies charged in the indictment, or does it provide for some other alternative?

Answer 51

TX Code of Crim Pro. provides for jury to convict D of a less serious offense than the offense charged in indictment. Jury should be given this alternative only if both: (i) that offense is a lesser-included offense of the charged offense, which means it requires proof of some but not all of the facts required for charged offense; AND (ii) there is evidence before the jury that the D is not guilty of the charged offense but is guilty of less serious one.

Question 52

What should defense counsel do if they believe Prosecution has not shown D’s guilty beyond a reasonable doubt?

Answer 52

Defense counsel should, before beginning defense case, move for an instructed verdict of not guilty. Defense counsel should argue that the state’s evidence would not permit a reasonable jury to find all elements of crime proved beyond a reasonable doubt, and thus D is entitled as a matter of law to an acquittal. Counsel should not do this within hearing of jury because this is matter of law for judge.

Question 53

May D change his mind about jury sentencing after jury finds him guilty?

Answer 53

An election may be changed after trial begins only if Prosecution consents.

Question 54

Can Prosecutor argue to the jury to in his closing argument to consider that D will only serve one-half his sentence?

Answer 54

No. This invites the jury to consider how parole law will be applied to this D. Jury may consider parole in general, but not as applied to the particular case. Prosecutor is suggesting that jury should assume parole law will be applied so as to release D on parole as soon as eligible.

Question 55

Can a judge declare a mistrial on punishment issue only?

Answer 55

Yes. If a jury cannot agree on punishment, judge is to declare mistrial on punishment issue.

Question 56

Can court ignore jury’s recommendation of community supervision?

Answer 56

No. If jury recommends suspension of a sentence and placement of D on community supervision and D is eligible, judge must suspend sentence and place D on community supervision.

Question 57

What standard of proof is required to obtain verdict of guilty, and how many jurors have to concur in the verdict?

Answer 57

State must prove guilt beyond reasonable doubt. All members of jury have to concur in verdict of guilty. If all jurors cannot agree on verdict of guilty and they cannot all agree on not guilty, judge must grant a mistrial.

Question 58

How can you get the information of the jurors if you suspect juror misconduct?

Answer 58

Information collected during jury selection is confidential and cannot be disclosed. however, a party to the case can apply for an order permitting disclosure if good cause is shown.

Question 59

What can D do to attack his conviction if his lawyer sucked?

Answer 59

D may attack on ground that defense counsel failure violated 6th Amendment rights to adequate defense representation. To prevail, D must show: - counsel failure was below the standard professional competence and not simply tactical decision - D was prejudiced, reasonable probability that if counsel had preformed adequately, outcome would have been different.

Question 60

When should a Motion for New Trial be filed?

Answer 60

Must be filed within 30 days of sentencing and then present it to trial court within 10 days of filing. Trial court can permit D to present it within 75 days of sentencing.

Question 61

How must appeal be perfected?

Answer 61

D must file written notice of appeal in trial court, which must be done within 30 days of formal sentencing.

Question 62

When is there a violation of the Double Jeopardy clause?

Answer 62

Clause is not violated if each crime requires at lease 1 element that the other does not.

Question 63

What are the first two steps that must be taken in a criminal trial prior to the presentation of evidence?

Answer 63

The indictment must read and a plea entered.