Texas Crim Pro & Evidence Flashcards
“Bail”
Personal Bond / Bail Bond
Bail is security given by the accused that he will appear in court and answer to the accusation brought against him.
A personal bond is a monetary amount that a defendant must pay if he fails to appear, but it doesn’t require a surety or other security. A bail bond does require a surety or other security.
Examining Trial
Preliminary proceeding conducted by magistrate to determine whether probable cause exists. Prior to indictment.
The rules of evidence apply at an examining trial. Once indicted, no right to examining trial.
Writ of Habeas Corpus
Used when refused to court set bail or it is excessive.
Remedy to be used when person is restrained in his liberty. Order issued by the court, directed to one having person in custody, ordering him to produce person at set time and place and show cause why person is custody
“Indictment” Defined
Written statement of grand jury accusing person of offense
“Information” Defined
Written statement filed by protection charging an offense
“Complaint” Defined
A complaint is a sworn statement that alleges there is probable cause to believe someone committed a crime.
Persons on grand jury
12 persons, 9 required to indict
Examining Trial
To establish, before the magistrate, whether there is enough evidence to prove probable cause.
Object to Indictment or Information
Motion to set aside (quash) the indictment. Form or substance; before the date of trial or else waived. A motion filed on the date of trial is not timely. Failure to include name of Defendant is invalid.
May Search Warrant Authorize Arrest Warrant?
Yes, if the affidavit establishes probable cause that person has committed a crime
Disclosure of D’s Witnesses
Tex Code Crim Pro provides for disclosure by defense of name and address of expert witness.
Time for Filing Motions and Pleadings
At least 7 days before any scheduled pre-trial hearing
Brady Rule
Duty to disclose exculpatory evidence and make available physical evidence. Only material evidence.
Standard for Pleading Guilty, Waiving Counsel, or Competency to Stand Trial
Present ability to consult with lawyer (reasonable degree of rational understanding); or rational as well as factual understanding of proceedings against him.
Peremptory Strikes
10- Felony; If two or more defendants then 6 each and prosecutor gets 6 for each D.
Verdicts
Must be unanimous. Failure to do so results in mistrial. D can be retried
Election for Jury Sentencing
Pretrial; Belongs solely to defendant
Eligibility for Probation
Pretrial application for probation; must swear in application never convicted of felony; sentence not longer than 10 years
Probation versus Deferred Adjudication
“Straight probation” is a conviction but sentence is suspended subject to terms and conditions of probation
Deferred Adjudication means enough evidence to find D guilty, but the finding is deferred. If completes program, no finding of guilt and no conviction
Right to Address Grand Jury
No one other than a witness or the prosecutor may address the grand jury. The accused or attorney may address only if state permits.
Who may be in the room during grand jury deliberations
Only grand jurors may be in the grand jury room while the grand jury is deliberating
Who may be indicted together
Two defendants complained against for any offense may be tried jointly or separately
Can court ignore plea agreement
Yes but if the court rejects the plea agreement the court must allow D to withdraw his plea
Motion to change the seating of prospective jurors
Motion to have the jury shuffled. A defendant has the absolute right to have the jury panel reshuffled on demand.
First Two Steps of Criminal Trial
The indictment is read by the prosecutor and a plea of not guilty shall be stated.
Prior Bad Act Evidence
Prosecutor is not required to provide 404(b) testimony unless requested notice of prior bad act evidence.
Extraneous Offenses At Sentencing
Admissible if prosecutor can show beyond a reasonable doubt that D committed this act.
Appointment of Expert for Indigent Defendant
Ake Motion. Due process entitled an indigent defendant to the appointment of an expert if the expert’s expertise is likely to be a significant factor in the case.
What is the procedure where the Judge asks D how she pleads to the charge
Arraignment
If D does not answer the judge, what plea should be noted?
Since the defendant did not answer, not guilty should be noted. A criminal defendant must affirmatively plead guilty or nolo contender.
Criminal lawyer provide the prosecution with discovery?
Unlike the prosecution, the defense has not duty to provide the prosecution with pretrial discovery–other than name and address of expert witnesses testifying at trial .
Must lawyer make opening statement at that time?
Lawyer may, but is not required to make an opening statement immediately after the prosecutor.
Experts Opinion in Criminal Trials
Unlike the FRE, the TRE do not bar expert opinion on the ultimate mental state of the defendant.
Insanity Defense At Trial
Must file with the court a notice of Ds intention to offer that evidence. If no pretrial hearing, at least 20 days before the case is set for trial. A copy must be served on the prosecutor.
Who, besides a court, may take the defendants’ bail in the amount set by the magistrate
Any peace officer, sheriff, or jailer
How is a grand jury formed?
In the same manner as a civil petit jury–from a randomly summoned fair cross-section of the community
Getting a separate trial
Motion to sever. A court may grant upon a showing that one defendant will be unfairly prejudiced
May a complainant be excluded from the courtroom?
Yes. If the judge believes their testimony will be materially affected by what she sees or hears during the course of trial
Juror Speaking With Parties
Mistrial. Jurors are not allowed to speak with parties to the trial until after the trial is over with.
Contents of a Warrant
Name of “State of Texas’
Thing to be seized
Commands cop to conduct search
Dated and signed by Magistrate
Oral Statements & Confessions
Generally inadmissible in proceedings unless an exception applies
Factors governing the setting of bail
LASSO
Large enough to assure presence Ability to meet bail Safety of victim & community S-type of crime charged Oppression (not instrument of oppression)
Grand Jury Warnings
The right to not answer incriminating questions
notice of crime
The right to have counsel outside courtroom
The right to have q&a’s recorded
Gaskin Rule
Production of witness statements after a witness testifies
One indictment for multiple offenses
Yes, if arising out of the same criminal episode
