Texas Criminal Procedure Flashcards
1
Q
T/F - Arrest is a seizure of the person and is the taking into custody into a criminal charge.
A
True
2
Q
What are the three statutory requirements for an arrest warrant?
A
They are:
1) Name (or reasonable description such as DNA) of the person to be arrested;
2) Name of the offense; AND
3) The signature of a neutral magistrate.
3
Q
What must an officer do to obtain an arrest warrant?
A
The officer must file a complaint, which is a sworn affidavit that charges a commission of a crime and contains facts that allow a determination of probable cause.
The basic requirement for any arrest, with or without a warrant is that it be supported by facts.
4
Q
What is the Four Corners Rule?
A
The rule that the magistrate in issuing the warrant cannot consider anything outside the sworn affidavit for the warrant (the complaint) is called the FOUR CORNERS RULE.
5
Q
What is a summons?
A
Issued in lieu of an arrest warrant. It is in the same form as a warrant but it directs the person summoned to appear at a particular time and is merely served on the defendant.
6
Q
What is a Capias?
A
A bench warrant for a person’s arrest.
7
Q
What can an officer do in executing an arrest warrant?
A
In executing an arrest warrant, an officer may use REASONABLE AND NECESSARY force, but can break down a door to make an arrest ONLY if entry is refused after notice.
Texas allows execution of an arrest warrant at ANY TIME, DAY OR NIGHT.
8
Q
When can an officer arrest someone without a warrant?
A
In Texas, an officer must have an arrest warrant to make an arrest UNLESS the arrest is pursuant to one of nine exceptions, all of which require PROBABLE CAUSE for the arrest.
THE EXCEPTIONS ARE WHEN THE PERSON:
1) Committed the offense in the officer’s presence;
2) Committed an offense involving bodily injury and is likely to cause further injury;
3) Violated a protective order (arrest mandatory if in the officer’s presence);
4) Committed a family-violence offense;
5) Prevented or interfered with an emergency call;
6) Committed a felony, breach of the peace, or public intoxication and is found in a SUSPICIOUS PLACE, which has been interpreted to mean that probable cause has arisen in the presence of the officer;
7) Committed a felony and is about to escape so there is not time to obtain a warrant;
8) Provided probable cause by his VOLUNTARY STATEMENT to the police officer;
9) Possesses stolen property discovered by the officer.
9
Q
What is a citation in lieu of arrest?
A
An officer has discretion to issue a citation to appear in court (ticket) in lieu of an arrest for the following:
1) Traffic offenses, except speeding tickets and open container violations for which a citation is mandatory;
2) Any Class C (fine-only) misdemeanor except public intoxication; AND
3) Certain Class A and B misdemeanors (theft, minor property damage, possession of less than four ounces of marijuana).
10
Q
Jurisdiction for Warrantless Arrests.
A
Any peace officer outside his jurisdiction can make a warrantless arrest of any person who, within the officer’s view, commits a felony, disorderly conduct offense, breach of the peace, or public intoxication.
Local peace officers can arrest for any offense committed in their view, except only city police may arrest for traffic offenses and only those committed in the county where the city is located.
11
Q
What is required for an arrest at a defendant’s residence?
A
Arrest requires a valid arrest warrant unless the officer acting without a warrant has CONSENT OR there are EXIGENT CIRCUMSTANCES (emergency situations).
12
Q
What does the issuance search warrant require?
A
1) Requires a sworn affidavit containing facts from which the magistrate can determine PROBABLE CAUSE for issuing the warrant (that is, a reasonable belief that (a) something subject to seizure (b) is on the certain premises (c) at the time the warrant is issued);
2) The Warrant may be issued by any magistrate, defined as any judge or the mayor or recorder of an incorporated city or town.
13
Q
What are the requirements in the terms of a valid warrant? What things to be searched for may it be issued for?
A
THE WARRANT MUST:
1) Run in the name of the State of Texas;
2) Identify things to be seized;
3) Describe the person, place, or thing to be searched;
4) Command any peace officer to search the person, place or thing named; AND
5) Be dated and signed by the magistrate.
THE WARRANT MAY BE ISSUED FOR:
1) Contraband;
2) Instrument of a crime;
3) Fruits of a crime;
4) Evidence of a crime; OR
5) A person, if located in a third party’s house.
14
Q
What is a Combination Warrant?
A
The magistrate may issue a warrant authorizing both a search and an arrest based on probable cause for both, called a combination warrant.
15
Q
What are Evidentiary (Mere Evidence) Search Warrants?
A
An evidentiary search warrant is a warrant to search for and seize property or items, except personal writings of the accused, constituting evidence of an offense or tending to show that a particular person committed an offense.
16
Q
How are evidentiary search warrants issued?
A
Only judges who are licensed attorneys may issue evidentiary search warrants, except any magistrate may issue the warrant if:
1) The only licensed-attorney judges are judges of districts including more than one county; OR
2) The warrant is for a blood sample from a person arrested for a DWI-related offense who refuses to give a breath or blood alcohol sample.
A SUBSEQUENT EVIDENTIARY WARRANT can ONLY be issued by a DISTRICT COURT JUDGE, or a judge of a court of appeals, the Court of Criminal Appeals, OR the Supreme Court.
17
Q
What are the requirements and limitations are evidentiary search warrants?
A
The affidavit for an evidentiary search warrant must have FACTS establishing:
1) Identity that a specific offense has been committed;
2) Specifically described property to be seized constitutes probable cause of an offense; AND
3) The property can be found in a particular place or on a particular person or thing.
MAY NOT BE ISSUED FOR:
1) Personal writings of the accused; OR
2) Mere evidence in a news media office or radio or television station.
18
Q
How does the Plain View Doctrine affect evidentiary warrants?
A
Only mere evidence in the warrant may be seized, but the Plain View Doctrine will allow seizure of non-evidence items, such as contraband or instruments of a crime.
19
Q
What is the time frame that a warrant is effective?
A
1) Must be executed WITHIN 3 DAYS of its issuance, EXCLUDING the day of issuance and the day of execution; OR
2) WITHIN 15 DAYS for a warrant for a DNA specimen.
20
Q
What must an officer do for an inventory?
A
The officer must produce a copy of the warrant and leave a copy of the inventory and bring the property to magistrate with a copy of the inventory.
21
Q
When may wire tap warrants be issued?
A
ONLY:
1) On probable cause to believe it will reveal evidence of the felony offense of murder, child pornography, or a felony drug offense;
2) By the DISTRICT JUDGE who has been appointed by the presiding judge of the Court of Criminal Appeals; AND
3) For 30 DAYS with 30-day extensions.
22
Q
What is a pen register?
A
This is a device for recording phone numbers called.
May be ordered up to 30 DAYS.
23
Q
What is a Tap and Trace Device?
A
A device for monitoring the origin of phone calls.
May be ordered for up to 30 DAYS.
24
Q
What are the different Criminal Jurisdiction Courts and the crimes they have jurisdiction over?
A
DISTRICT COURT has jurisdiction over:
1) Felonies; AND
2) Misdemeanors involving official misconduct.
COUNTY COURTS AT LAW have jurisdiction over:
1) Misdemeanors punishable by jail time; AND
2) Appeals from the municipal courts and justice-of-the-peace courts (“justice courts”).
MUNICIPAL COURTS & JUSTICE COURTS have jurisdiction over:
1) Exclusive original jurisdiction of city ordinances;
2) Jurisdiction of fine-only offenses.
CONCURRENT JURISDICTION:
1) If a municipal court and justice court have concurrent jurisdiction, the case will be handled in the court in which it was originally filed.
25
When is venue proper?
Venue is proper in ANY COUNTY WHERE ANY ELEMENT of the offense has occurred.
SPECIAL RULES:
1) If part of the offense occurs outside Texas, the offense may be prosecuted in any Texas county in which the offender is found or where some element occurred.
2) If venue cannot be readily determined, venue is proper in any county in which the defendant RESIDES, was apprehended, OR to which he was extradited.
3) The STATE has the BURDEN TO PROVE venue by a PREPONDERANCE OF THE EVIDENCE.
4) If the issue of venue is not raised at trial, proper venue is presumed on appeal UNLESS the record affirmatively shows otherwise.
26
What is the general rules with regard to the statute of limitations to bring an indictment?
FELONY - Indictment must be presented WITHIN 3 YEARS of the commission of the offense.
MISDEMEANOR - Information must be presented WITHIN 2 YEARS of the commission of the offense.
27
What are the exceptions to the general statute of limitations rules?
THERE ARE NO LIMITS FOR:
1) Murder;
2) Manslaughter;
3) Sexual Assault;
4) Continuous sexual abuse of a young child;
5) Indecency with a child; AND
6) Leaving the scene of an accident resulting in the death of a person.
THERE IS A 10 YEAR SOL FOR:
1) Theft from an estate or by a public servant;
2) Forgery ;
3) Arson; AND
4) Injury to an elderly or disabled person punishable as a felony.
THERE IS A 7 YEAR SOL FOR:
1) Misapplication of fiduciary property or property of a financial institution;
2) Securing execution of a document by deception;
3) Felony tax violation;
4) Money laundering;
5) Credit card abuse; AND
6) Identity theft.
THERE IS A 5 YEAR SOL FOR:
1) Theft;
2) Robbery;
3) Burglary;
4) Kidnapping;
5) Injury to a child, elderly, or disabled individual not punishable as a felony of the first degree;
6) Abandoning or endangering a child; OR
7) Insurance fraud.
28
Are there any special SOL rules?
There is a special 20 YEAR limit from the 18th birthday of a child who was the victim of the offense of:
1) Sexual performance of a child; OR
2) Kidnapping or burglary of a habitation committed with the intent to commit a sexual offense against a child.
There is a special 10 YEAR limit from the 18th birthday of a child in the case of injury to a child.
29
Does the SOL of a crime ever toll?
Time during which the accused is absent from the state, or time when a prior indictment or information for the offense was pending, is NOT COUNTED.
30
How is the Criminal Prosecution process initiated?
First appearance before a magistrate must occur NO LATER THAN 48 HOURS FOLLOWING ARREST.
Magistrate must inform the accused of:
1) The charges against him;
2) His right to remain silent;
3) His right to counsel;
4) His right to have an attorney present during any interrogations;
5) His right to terminate a prosecutorial interview; AND
6) His right to an examining trial.
31
What does the magistrate do in the initial proceeding after reading the accused their rights and charges?
Magistrate may:
1) Make a probable cause determination, which MUST BE MADE: (a) within 24 hours in a misdemeanor case; AND (b) within 48 hours in a felony case.
2) Set bail;
3) Make a determination of indigence and advise how to get an attorney appointed if defendant cannot afford to hire one. CANNOT MAKE DETERMINATION BASED ON ABILITY TO MAKE BAIL.
32
What is the duty of appointed counsel?
1) Make every reasonable effort to contact defendant no later than the FIRST WORKING DAY AFTER APPOINTMENT;
2) Interview the defendant as soon as practicable; AND
3) Required to have at least 10 DAYS to prepare for any proceeding.
33
What is an examining trial?
PURPOSE - determination by magistrate whether there is probable cause to hold the accused for trial.
WHEN - Only if defendant is charged with a felony AND no indictment has been returned.
PROCEDURE:
1) Rules of evidence apply;
2) Defendant has the right to an attorney;
3) Defendant has the right to cross-examine witnesses; AND
4) Defendant has the right to make a statement, sworn or unsworn.
RESULT:
1) Order committing defendant to jail, discharging him, or admitting him to bail; OR
2) A finding of no probable cause if no order is made within 48 HOURS. NOTE: If this happens, there is no jeopardy (he can be charged against.
34
What is bail?
PURPOSE - secure defendant's appearance at trial.
TYPES:
1) Personal Bond - defendant promises to pay full bail amount if he does not appear;
2) Cash Bond - defendant loses bail amount if he does not appear;
3) Bail or Surety Bond - Third party promises to pay full bail amount if defendant does not appear.
35
What are the factors in setting bond?
1) High enough to assure appearance at trial;
2) Not used to punish;
3) The nature and circumstances of the offense;
4) The ability of Defendant to make bail;
5) Future safety of the victim and the community
36
Are there any limiting conditions on bail?
Judge may impose any reasonable condition related to the contact of the victim or the community (prohibition to visit alleged victim / limitations on driving).
If Defendant violates a condition:
1) State must prove it by a preponderance of the evidence, AND
2) Bail is revoked and the magistrate can require a new bail.
37
Can bail be denied?
May be denied ABSOLUTELY if:
1) There is clear and convincing evidence that defendant will be found guilty of capital murder and will receive the death penalty; OR
2) There is a preponderance of evidence that a family violence defendant has violated a condition of bond related to the safety of the victim of the offense or the safety of the community.
MAY be denied for 60 DAYS if there is substantial evidence of guilt of a charged felony offense AND:
1) The defendant has two prior felony convictions;
2) The felony was committed while the defendant was released on bail;
3) The felony involved the use of a deadly weapon and there was a prior felony conviction; OR
4) The felony is a violent or sexual offense felony while on probation or parole.
38
Explain release of bail.
A defendant making bail is entitled to immediate release, EXCEPT:
A family-violence defendant may be held for:
1) Up to 4 HOURS after making bail if there is probable cause to believe that violence will continue; OR
2) Up to 48 HOURS by a magistrate's order if there have been prior arrests for family violence or a deadly weapon was involved.
39
Can bail be challenged?
Defendant may challenge bail by petition for writ of habeas corpus claiming the bail is excessive.
40
What does it mean to "go off" the bond?
A surety can "go off" the bond by filing a petition stating reasons to be allowed off the bond.
If court accepts reasons, it will issue a capias for the re-arrest of the defendant.
41
Explain the basics of the Grand Jury.
1) From 15 - 40 jurors;
2) Proceedings held in secret;
3) Purpose is to make a probable-cause determination;
4) Defendant usually not present; and
5) There are no exclusionary rules.
42
What are a defendant's rights to an indictment?
A defendant has the right to be charged by a grand jury indictment if the offense is a FELONY.
He may waive the right to a grand jury indictment EXCEPT in the case of a capital murder.
43
Can the grand jury be selected?
Yes, they may be selected from:
1) The jury wheel (dmv records); OR
2) By commissioners appointed by the court.
44
What are the qualifications to be a grand juror?
1) Be a citizen of the county and qualified to vote;
2) Be of sound mind and good character;
3) Be able to read and write;
4) Never have been convicted of a felony or of misdemeanor theft;
5) Not be related within the third degree of consanguinity or second degree of affinity to a person selected to be on the grand jury;
6) Not have served on the grand jury the year before this grand jury's term; AND
7) Not be a complainant in any matter to be heard by the grand jury.
45
What is an array?
All the persons summoned to serve, but not yet impaneled on a grand jury. Can be up to 125 people. May be challenged on the ground that:
1) They are not the same people commissioners selected; OR
2) There was corruption in the way one or more were selected.
46
What is required for a successful Motion to Set Aside Indictment?
Grounds for setting aside the indictment are:
1) Fewer than 9 grand jurors voted to return the indictment;
2) An unauthorized person was present during deliberations or voting; OR
3) The grand jury was illegally impaneled and the defendant did not have a reasonable opportunity to challenge the array.
The indictment CANNOT be challenged because of the insufficiency or nature of the evidence.
47
What is the procedure during the grand jury proceeding?
1) Case is presented by the prosecutor;
2) Proceedings are secret and only the grand jury may be present during deliberations and voting;
3) Grand jury has subpoena power and witnesses who refuse to answer questions may be jailed for contempt and fined unless they make a valid claim of self-incrimination;
4) A witness may be compelled to answer if granted immunity from use of their testimony by a judge;
5) Questions and answers to an accused or suspected person are recorded.
48
What are the rights of the accused or suspected person?
An accused or suspected person must be advised of:
1) The offense of which he is suspected;
2) The place of its commission; and
3) The time of its commission.
If subpoenaed to appear, the accused or suspected person must be warned that:
1) His testimony is under oath;
2) Giving false answers to material questions is perjury;
3) He has the right to refuse to answer any questions;
4) He has the right to have a lawyer outside the room to give advice;
5) Any testimony could be used against him in a subsequent proceeding; and
6) He has the right to an appointed lawyer if he is indigent.
49
What is a Bill of Indictment?
The presentment to the grand jury becomes a true bill of indictment if at least 9 GRAND JURORS vote for it and it is signed BY THE FOREPERSON, and a NO-BILL IF THEY DO NOT.
50
What are the different formal charging documents?
1) Indictment for felonies;
2) Information for a Class A or B misdemeanor subject to jail time; AND
3) Complaint for a Class C misdemeanor.
51
What are the term requirements for an indictment?
1) Commences "In the name by the authority of the State of Texas;"
2) Appears to be presented in the district court where the grand jury is in session;
3) Appears to be acted upon by a grand jury in the proper county;
4) Contains the name of the person indicted or a reasonable description;
5) Shows the place of the offense is within the jurisdiction of court in which presented (proper venue);
6) Charges commission of offense on a date before date of the indictment (not barred by time limitation);
7) Sets forth offense charged in plain and intelligible language;
8) Concludes with the words, "Against the peace and dignity of the state;" AND
9) Is officially signed by the foreperson of the grand jury.
52
What is the effect of an omission in an indictment?
Any defect of form or substance will be waived or forfeited if not raised at trial, so long as the charging document is clear enough to show the offense the state intends to prosecute.
A jurisdictional defect, such as in cases in which the indictment or information does not charge a crime at all, may be raised at ANY time.
53
What happens if the defendant waives the indictment?
He is prosecuted with an information.
54
What is the difference between an indictment and an information?
The requirements are similar, EXCEPT an information is:
1) Signed by the prosecutor; AND
2) Filed with the court.
An indictment is a written statement of the grand jury alleging a criminal act, and an information is a written statement brought by the state charging the defendant with a criminal act. An indictment is different from an information in two main ways: (i) an indictment is delivered by the grand jury, and an information is produced by the prosecutor; and (ii) an information cannot be presented until an affidavit has been made by some credible person charging the defendant with an offense, whereas an indictment does not have this requirement.
55
What happens pretrial if there are multiple offenses or defendants?
More than one offense may be charged in the same indictment or information if the offenses arise out of the SAME CRIMINAL EPISODE. If the defendant is convicted of multiple offenses in a single trial, the sentences are to be served concurrently, rather than consecutively.
More than one defendant can be charged jointly for the same offense but severance is required if a prior conviction of one will be admitted against one but not the other, or a joint trial would be prejudicial.
56
What are the requirements for an arraignment?
This is a formal court proceeding for every felony, or misdemeanor punishable by jail (unless waived), where:
1) The accused is identified;
2) Counsel is appointed if necessary;
3) Defendant is advised of the charges against him; AND
4) The defendant enters a plea.
The accused enters on of three possible pleas:
1) Guilty;
2) Not guilty; or
3) Nolo Contendere (has the effect of a guilty plea but with some later evidentiary differences.
NOTE: ANY DEFECT in the name of the defendant MUST be raised at arraignment, OR the case will proceed as though the name is correct.
57
What if a defendant stands mute with regard to a plea?
The court enters a not guilty plea for him.
58
Is there a right to an attorney during the arraignment?
A criminal defendant has the right to have an attorney in any adversarial proceeding that might result in jail for the defendant.
If the defendant is indigent, the court may appoint a private attorney or a public defender.
A defendant may waive the right to an attorney and represent himself pro se IF:
1) The judge warns the defendant of the dangers of self-representation; AND
2) The defendant KNOWINGLY and VOLUNTARILY waives his right.
59
What is the test for ineffective assistance of counsel?
TWO PRONGS:
1) There were acts or omissions of professionally competent assistance outside the range ordinarily expected of counsel; AND
2) There is a reasonable probability, but for the unprofessional errors, the result would have been different.
60
T/F - A defendant who has been provided an attorney also is entitled to reimbursement for costs of experts, such as mental health professionals, if those experts are considered reasonable.
True.
61
Are there any special pleas?
DOUBLE JEOPARDY - A defendant may plead former (or double) jeopardy, IF HE CAN PROVE:
1) Former acquittal of the same offense;
2) Former conviction of the same offense;
3) Improper termination of first trial for the same offense; OR
4) Collateral estoppel.
In lieu of a special plea, the defendant may INSTEAD file a petition for WRIT OF HABEAS CORPUS to get the matter resolved before trial.
62
What admonishments must be given in a guilty or nolo plea?
Judge must give the following admonishments orally or in writing:
1) Range of punishment;
2) Defendant may withdraw his plea if court advises him that it will not accept his offered plea bargain;
3) Defendant may appeal only by permission of the court or on a matter raised by a pre-trial motion if the court accepts his offered plea bargain;
4) Defendant may be subject to deportation or denial of citizenship, if he is not an American citizen; and
5) Defendant will be required to register as a sex offender, if applicable.
The judge also is to inquire whether a victim impact statement has been given to the state.
Failure to give an admonishment will be harmless error if it did not affect the defendant's decision to plead.
63
What is the judge required to do in a guilty plea?
1) Determine whether the defendant is mentally competent to plead;
2) Have the defendant waive a jury trial with the court and state approval (but the defendant may elect to have the jury assess punishment if no plea bargain); AND
3) Make sure there is evidence of SUBSTANTIATING GUILT in the record (PLEA IS NOT ENOUGH).
64
Is the defendant allowed to withdraw a plea?
The defendant may withdraw his plea ANY TIME BEFORE THE COURT ACCEPTS IT, OR AFTER THE COURT ACCEPTS IT ONLY AT THE COURT'S DISCRETION.
If the defendant claims innocence despite his plea, the judge can still accept the plea if there is sufficient evidence to support it.
65
Is a plea admissible in another separate proceeding?
Neither a withdrawn plea nor statements made in plea negotiations are admissible against the defendant in a subsequent proceeding.
66
T/F - If the defendant chooses to go to trial, the judge must order a pretrial hearing.
False. The judge may do so, but is not required to.
67
T/F - Any issue that may be raised by pretrial motions must be raised at the pretrial hearing.
True.
68
Can pretrial issues be let in after the pretrial hearing?
Yes, if the defendant can show good cause, the court MAY permit pretrial issues after the pretrial hearing.
69
What are the requirement for motions to quash an indictment or information? What is its effect if successful?
Including all motions used by a defendant to attack a defect in the indictment or information, such as a motion to set aside a judgment, a motion to quash MUST:
1) Be in writing;
2) Be filed BEFORE TRIAL; AND
3) Allege the SPECIFIC defect in the indictment or information.
If successful because the charging document fails to vest jurisdiction in the trial court by alleging an offense, then the state MUST obtain a new charging document. IF A FELONY, the state must GO BACK TO THE GRAND JURY (start from scratch).
70
What if there is a notice defect in a charging document, and the motion to quash is successful?
State may amend the charging document without getting a new one, but the defendant has 10 DAYS TO RESPOND TO THE AMENDED INDICTMENT OR INFORMATION.
The amendment CANNOT charge a different offense or prejudice the substantial rights of the defendant.
71
What are motions in limine?
Seeks to get a pre-trial ruling on a matter of evidence, or at least, a ruling from the judge that there must be an out-of-court hearing before the proponent seeks to introduce it at trial.
It is an attempt to limit the other party's ability to present something at trial.
Acts like a protective order.
72
What is allowed to be discovered in a motion for discovery?
Texas has a statutory OPEN-FILE STATUTE policy, giving defendant the right to request discovery of:
1) Police reports;
2) Witness statements; AND
3) Any other evidence that is material to any matter involved in the trial that is in the possession of the State; EXCEPT
4) Work product of state prosecutors and investigators and otherwise privileged material.
THE STATE MUST ALSO DISCLOSE EXCULPATORY, IMPEACHING, OR MITIGATING EVIDENCE (The Brady Rule). Failure to disclose will result in REVERSAL of a conviction if there is a REASONABLE PROBABILITY that the result would have been different had the evidence been disclosed.
73
What is the state allowed to discover?
The state does NOT have the right to discover anything from the defendant EXCEPT:
1) The names of experts the defense intends to call; AND
2) The defendant's intent to raise the insanity defense at least 20 DAYS before trial, absent good cause for failure to give notice. Breach of this requirement could result in any evidence being inadmissible at the trial.
74
What is discoverable at trial?
The party not calling a witness has the right to see and use on cross-examination:
1) Any statement relating to the case made by the witness, after the witness has testified on direct examination; AND
2) Any statement that a testifying witness has used to refresh recollection.
75
What is a Motion to Depose?
A party may take a deposition on a showing of GOOD CAUSE.
The State has the right to take the deposition of:
1) An elderly person (65 or older); OR
2) A disabled person who is the victim or a witness to a crime.
Testimony at an examining trial is, in effect, a deposition.
A deposition may be used in lieu of live testimony if the person is:
1) Unavailable; OR
2) Prevented from attending the trial by a party seeking to keep the person from testifying.
76
When can a Motion to Disqualify Judge be successful?
When:
1) The judge is the injured party;
2) The judge has been counsel for the state or the accused;
3) The judge is related to the accused or the victim; OR
4) The judge is so biased the defendant cannot get a fair trial.
77
What is a Motion for Continuance?
A recess or postponement of the trial by CONSENT of the parties OR for GOOD CAUSE.
If motioned because a witness is absent, the moving party must show:
1) Diligence;
2) Materiality of the witness's testimony;
3) No motive to delay;
4) Absence not procured by the defendant; AND
5) Witness's testimony cannot be obtained before trial.
78
What should the defendant do if he wants a jury sentencing?
BEFORE TRIAL, a defendant may elect sentencing by the jury instead of the judge by filing either a motion for:
1) Community Supervision; OR
2) An election for jury sentencing.
Defendants can change election after a guilty finding, BUT ONLY with the state's consent.
79
When is a Motion to Suppress used?
To have physical evidence or a confession suppressed at trial because:
1) The evidence was UNLAWFULLY OBTAINED, in violation of the Texas Exclusionary Rule concerning arrests;
2) The evidence was obtained in violation of the rules pertaining to arrest, and search and seizure.
To have testimony suppressed because the witness was subjected to an unnecessarily suggestive lineup, or to a lineup without an attorney.
To suppress the statement, such as a confession, of a defendant that was unlawfully obtained.
80
What happens if evidence was obtained by use of a defective warrant?
The evidence will be ADMITTED UNDER THE GOOD FAITH EXCEPTION, IF:
1) The officer reasonably relied on the warrant; AND
2) The warrant was based on probable cause.
81
Can the defendant do anything if the suppression motion is denied?
Yes, the defendant is entitled to have the issue of admissibility of the evidence or confession submitted to the jury.
82
What is a Motion of Incompetency?
MADE BY THE DEFENDANT. The motion must allege the defendant meets the test for incompetency, claiming that the defendant does not have:
1) Sufficient present ability to consult with an attorney with a reasonable degree of rational understanding; OR
2) A rational, as well as factual, understanding of the proceedings against him.
IF the judge finds enough evidence to support a finding of incompetency, the issue WILL GO TO A HEARING UNLESS the parties agree further proceedings are unnecessary.
83
What are the consequences of a finding of incompetency?
Generally, a STAY OF PROCEEDINGS and confinement of defendant until defendant restored to competency.
Depending on the circumstances, on finding the defendant to be incompetent, the court also has an option to order a civil commitment of the defendant and a dismissal of the charges.
84
What is the difference between incompetency and insanity?
Incompetency relates to the mental condition of the defendant at the time of the TRIAL. A finding of incompetency generally leads to a STAY IN A MENTAL FACILITY which may be temporary or indefinite.
Insanity relates to the mental condition of the defendant at the time of the CRIME. A finding of insanity leads to ACQUITTAL.
85
Explain a motion for change of venue by the defendant and by the State.
By Defendant:
1) Granted if court determines defendant cannot get a fair trial in present venue.
2) Must attach TWO SUPPORTING AFFIDAVITS from credible persons that a fair trial is not possible.
By State:
1) State must prove that conditions FAVOR THE ACCUSED;
2) Prove that there is a lawless condition of affairs in the county; OR
3) Prove that the life of the accused or a witness would be jeopardized by trial in the county where the case is pending.
86
What if there is a mutual motion for change of venue?
Granted:
1) For the convenience of the parties and witnesses;
2) In the interest of justice; AND
3) If agreed to by BOTH parties.
87
What are the results of a granted motion for change of venue?
If granted on the STATE'S MOTION, the trial is moved to a different county in the SAME JUDICIAL DISTRICT OR AN ADJOINING DISTRICT.
If granted on the DEFENDANT'S OR THE COURT'S MOTION, the trial is moved to an ADJOINING DISTRICT IF A FAIR TRIAL IS POSSIBLE THERE.
88
How are subpoenas obtained? What are the different types? What is their effect?
OBTAINED by an application to the court by alleging materiality.
TYPES:
1) Subpoena Ad Testificandum - Orders witness to appear and give testimony.
2) Subpoena Duces Tecum - Orders witness to bring specified documents or physical evidence to court
EFFECT - a witness who refuses to obey a subpoena may be:
1) Fined;
2) Subjected to a writ of attachment (an order to authorities to bring in witness); OR
3) Required to post a bond or be kept in custody until trial.
89
What does the Uniform Act regarding subpoenas allow a judge to do if the witness refuses to show up?
Judge certifying the need for a witness can forward it to a judge in the county where the witness is to be found to secure the appearance of that witness.
90
The criminal defendant has a constitutional right to a jury of how many jurors?
FELONY TRIAL - 12 jurors
MISDEMEANOR TRIAL - 6 jurors
91
How are the jurors selected in the beginning (before voir dire)? Can their selection be challenged?
Potential jurors are summoned from the jury wheel, which is made from a list of registered voters and licensed drivers. The group is referred to as the array.
ARRAY - defendant may challenge the array as being STACKED against the defendant. The judge will qualify the members by questioning them under oath as to whether they:
1) Are qualified voters;
2) Have ever been accused of a felony or theft; OR
3) Have even been convicted of a felony or theft.
The judge will also determine which members are able to claim an exemption or excuse.
92
What are trial panels? What is a shuffle? What is Voir Dire?
This is where the members of the array are split up for service in a trial court with a sufficient number sent to a court to leave the required number for the jury after challenges.
SHUFFLE - After the trial panel is seated, either party may have the order of the jurors randomly changed (shuffled). It can be shuffled ONLY ONCE.
VOIR DIRE - Generally, the state and the defendant will question the prospective jurors in the presence of the judge. IN A CAPITAL CASE in which the state seeks the death penalty, the prospective jurors are questioned individually outside the presence of the others.
93
What are challenges for cause?
Either party may challenge a prospective juror for cause if that person:
1) Is not qualified to vote;
2) Has been convicted of a felony or misdemeanor theft;
3) Is under indictment or legal accusation of felony or theft;
4) Is insane;
5) Has a disability or is blind and the court decides is unfit for service;
6) Was on a grand jury that indicted the defendant;
7) Served on a petit jury in a former trial of the same case;
8) Has a bias or prejudice in favor of or against the defendant;
9) Has a pre-formed opinion that he cannot set aside;
10) Cannot read or write.
STATE can challenge a potential juror if that person:
1) Has conscientious scruples against the death penalty in a CAPITAL CASE;
2) Is related to defendant within the third degree of consanguinity or affinity; OR
3) Has a bias or prejudice against any part of the law the state will rely on. This does NOT mean the juror has a mere opinion regarding the law.
DEFENDANT can challenge a potential juror if that person:
1) Is related to the injured person or prosecutor within the third degree of consanguinity or affinity;
2) Has a bias or prejudice against the law applicable to the case.
94
What are peremptory challenges? How many does each side have?
Strikes of prospective jurors for which no reason has to be given (with one exception).
EACH SIDE HAS:
1) Capital case - 15 each (8 each if two defendants tried jointly);
2) Non-Capital Felony - 10 each (6 each if two defendants tried jointly);
3) Misdemeanor in District Court - 5 each (3 each if two defendants tried jointly); and
4) All other misdemeanors - 3 each (3 each if two defendants tried jointly).
95
What is the exception to the "no reason" requirement for a peremptory challenge? What is the challenge called?
BATSON CHALLENGE - The Supreme Court has held that a juror may NOT be challenged solely on the basis of RACE OR GENDER. The steps for making such a challenge are:
1) The state or deffendant must make a PRIMA FACIE case of exclusion, in that the opposing party has used peremptory challenges to eliminate jurors based on race or gender;
2) If so, a hearing is held for the party making the challenge to give a RACE OR GENDER NEUTRAL EXPLANATION;
3) If the judge finds the explanation inadequate, a new panel is assembled OR the improperly challenged juror(s) are seated.
96
Must the defendant always be present?
The defendant must be present in ALL FELONY PROSECUTIONS, BUT IF he leaves after he pleads or the jury is selected, he will be deemed to WAIVE his right to be present.
97
What is the order of trial?
1) The indictment is read;
2) The defendant enters his plea;
3) The opening statement by the state;
4) The state presents its case-in-chief;
5) The defendant's opening statement (but defendant can do it right after the state's);
6) The defense presents its case if it chooses to present one;
7) The state may offer rebuttal evidence;
8) The state makes a closing argument;
9) The defense makes a closing argument; and
10) The state can make a final rebuttal.
98
What is proper in a closing argument? Improper?
FOUR THINGS:
1) Summary of evidence;
2) Draw inferences from the evidence;
3) Response to the other side; AND
4) Plea for enforcement of the law.
IMPROPER ARGUMENT INCLUDES:
1) Offering PERSONAL OPINION;
2) Attacking opposing counsel; OR
3) Arguing that the community expects a certain result.
99
Who decides the order of trying co-defendants?
Co-defendants may agree on who is tried first, but if they can't, the COURT decides.
100
What is included in the jury charge?
After all evidence is presented and before closing arguments, the judge will give the charge (instructions) to the jury:
1) On applicable law, the abstract charge;
2) An instruction on how it should be applied, the application part;
3) Without any comment on the testimony or the weight of the evidence.
The instruction on applicable law does NOT include a definition of reasonable doubt, UNLESS BOTH PARTIES AGREE TO IT.
101
What is a jury charge conference?
The attorneys must be given a reasonable opportunity to examine the court's charge, make objections, and request special charges.
102
What if a jury charge is objected to?
A case will be reversed on appeal for an objected-to error in the jury charge or the failure to give a requested charge if the defendant suffered harm.
If the error in the jury charge was NOT objected to, the conviction will be reversed ONLY IF it caused EGREGIOUS HARM and DENIED the defendant of a FAIR TRIAL.
103
What are the rules regarding jury deliberations?
JURY ROOM - Deliberations CANNOT BE RECORDED. No one but the jurors may be present in the jury room during deliberations. No one may converse with the jurors without the court's permission.
EXHIBITS - The jury on request will be furnished with all exhibits and may have testimony read to them but ONLY the DISPUTED PART.
QUESTIONS - Questions from the jury must be IN WRITING (no oral messages back to the court). If the judge chooses to answer, he must do so in writing and only if the judge has used reasonable diligence to secure the presence of the defendant and his lawyer.
104
What are the different types of verdicts?
POSSIBLE VERDICTS:
1) Guilty;
2) Not Guilty;
3) Not Guilty by Reason of Insanity (the ONLY SPECIAL VERDICT IN TEXAS.
105
What is Polling the jury? Who may do it?
Either the state or the defendant may ask each juror if the verdict is theirs. If they all say yes, the verdict is entered. If they do NOT, the jury retires again to consider its verdict.
The defendant must be present at reading UNLESS voluntarily absent.
THE VERDICT MUST BE UNANIMOUS (ALL 12) IN A FELONY CASE, but if a juror:
1) Dies or becomes disabled BEFORE the jury charge is read, the jurors left may render a verdict; OR
2) Becomes ill or disabled AFTER the charge is read, a MISTRIAL is declared and the jury is discharged.
106
What if the jurors cannot agree on a verdict?
It is a "hung jury" and the judge may declare a MISTRIAL and discharge the jury.
107
What is the effect of a jury finding that a defendant is guilty of a lesser included offense?
Such a finding will be considered AN ACQUITTAL OF THE HIGHER OFFENSE, so on a retrial, the defendant may be convicted of NO GREATER offense than the lesser included.
108
What is unique about the personal information about the jurors?
Personal information of jurors is CONFIDENTIAL and MAY NOT BE DISCLOSED . . .
EXCEPT on a finding by the court of GOOD CAUSE.
109
What is "The Rule?"
Either party may have witnesses excluded so as not to hear the other witnesses, EXCEPT:
1) The defendant, AND
2) The victim, unless the victim will testify and the testimony would be materially affected if he or she were present.
110
What is the burden of proof in a criminal case?
The state must prove EVERY ELEMENT BEYOND A REASONABLE DOUBT.
111
What is the Recent Outcry Rule?
The uncorroborated testimony of the victim of a sexual offense is admissible if the victim told somebody about it within one year of the alleged offense, EXCEPT IF:
1) The victim was 17 or younger;
2) The victim was 65 or older; OR
3) The victim had a disability that prevented him from taking care of himself.
112
What are the rules regarding the testimony of a child victim?
The child victim UNDER 13 YEARS OLD, whom the judge has found to be "unavailable" because testifying in court would be harmful to the child, may give testimony by:
1) Deposition; OR
2) Electronic means, such as closed-circuit TV; AND
3) The defendant has the opportunity to cross-examine the child.
ALSO ADMISSIBLE:
1) Prior-recorded statements of a child that are result of inquiry by a NEUTRAL individual experienced in child-abuse cases;
2) Hearsay statements of a child victim of a sexual crime 12 years old or younger.
113
How is testimony of an inmate handled?
Inmate may give testimony by deposition or electronic means.
114
What are privileges?
Rights of non-disclosure, the claim of which cannot be commented on or from which any inference can be drawn.
115
What is the Privilege against Self-Incrimination?
1) The defendant cannot be called as a witness BY THE STATE; AND
2) His failure to testify may NOT be commented on by the state.
116
What is Spousal Privilege?
A spouse cannot be compelled to be a witness in a criminal case, EXCEPT:
1) In a case involving that spouse, child, or a household member;
2) In a case involving a matter occurring before the marriage; OR
3) The spouse testifies VOLUNTARILY.
117
What is the Marital Communications Privilege?
EITHER SPOUSE MAY CLAIM. The privilege against disclosure of private communications BETWEEN HUSBAND AND WIFE.
CANNOT be invoked in cases in which the spouse is accused of a crime against the other spouse, a child, or household member.
118
Explain the Attorney-Client Privilege.
The privilege against disclosure of:
1) Communications to an attorney to obtain legal advice; AND
2) Any fact coming from the attorney-client relationship.
119
What is the Drug-Abuse Treatment Privilege?
The privilege against disclosure of statements of a person made in connection with a VOLUNTARY TREATMENT for drug abuse.
120
What is the Physician-Patient Privilege?
THERE IS NO SUCH THING IN TEXAS CRIMINAL CASES.
121
What is the Accomplice Witness Rule?
The State cannot get a conviction solely on the uncorroborated testimony of an accomplice but must have some other evidence connecting the defendant to the crime.
122
What are the rules regarding Extraneous Offenses?
Evidence of past crimes MAY be admitted against the defendant, but only for a limited purpose, such as:
1) To prove a contested issue of identity or motive; OR
2) To rebut a defensive theory.
123
What are the requirements for admitting the evidence of extraneous offenses?
1) Notice by the State of intent to offer, on timely request by defendant;
2) Decision by judge that probative force substantially outweighs prejudice;
3) Finding by judge that jury could find beyond a reasonable doubt that the defendant committed the offense;
4) On request, a limiting jury instruction that the offense only be considered on a specific issue; AND
5) On request, a jury instruction that the offense must be found beyond a reasonable doubt.
SPECIAL RULE IN CASE OF SEXUAL OFFENSE AGAINST A CHILD:
1) Evidence of other acts against the child are ADMISSIBLE to prove the defendant's state of mind and relationship with the child.
124
When is the "door opened" for the admissibility of a defendant's character evidence?
If character has been put into issue by the defendant, the STATE may rebut by either OPINION OR REPUTATION TESTIMONY.
125
When can expert testimony be allowed?
May be admitted if sufficiently relevant and reliable to assist the jury in accurately understanding other evidence for a fact issue in the case.
RELIABLE:
1) The underlying scientific theory must be valid;
2) The technique applying the theory must be valid; AND
3) The technique applying the theory is properly applied in this instance.
FACTORS IN CONSIDERING VALIDITY OF THEORY:
1) Extent to which it has been tested;
2) Its acceptance in the scientific community;
3) The testifying expert's experience;
4) The existence of scientific literature; and
5) The rate of error.
126
How can the credibility of a witness be impeached?
1) OPINION OR REPUTATION TESTIMONY that the witness's character for truthfulness is bad;
2) A PRIOR CONVICTION for a FELONY OR CRIME OF MORAL TURPITUDE in the last 10 YEARS;
3) Prior inconsistent statement;
4) Biases (such as a plea bargain) or interests of witness;
5) Handwriting comparisons;
6) Photographs;
7) Forensic evidence;
8) Results of scientific tests.
127
Can witness credibility be impeached on religious beliefs?
NO (maybe bias though).
128
How can credibility of a witness be attacked in a murder case?
1) All circumstances surrounding the killings;
2) Prior relationships with witness or victim;
3) State of mind of accused at the time of killing.
129
Are defendant confessions admissible?
GENERALLY NO, a confession may be SUPPRESSED IF obtained by a violation of due process, right to counsel, or the privilege against self-incrimination.
A written statement may be attacked as involuntary, that it was taken without the accused being given the proper pre-statement warnings of his rights, or that there was no voluntary waiver of rights when undergoing custodial interrogation.
NOTE: The confession rule does not apply to a statement made to a private citizen. It applies only to a statement resulting from a custodial interrogation conducted by law enforcement.
130
When is a statement involuntary?
1) If the statement is a product of coercion or duress from a person in position of authority; or
2) If the defendant's mental condition did not allow the defendant to exercise free will.
131
When is a custodial confession admissible?
To be admissible in Texas, a written confession that is the result of a custodial interrogation must show on its face that the accused is informed of the following rights:
1) Remain silent and that any statement he makes could be used against him;
2) Have a lawyer present during questioning;
3) Have an appointed lawyer if he can't afford to hire one; AND
4) Right to terminate the interview at any time.
A DEFENDANT MUST WAIVE THOSE RIGHTS:
1) KNOWINGLY;
2) INTELLIGENTLY; AND
3) VOLUNTARILY.
132
What is the admissibility of oral confessions?
Generally inadmissible UNLESS IT COMES WITHIN ONE OF THE STATUTORY EXCEPTIONS:
1) It is electronically recorded and the recording contains the warnings and waiver of rights;
2) It is not the product of a custodial interrogation;
3) It contains assertions of fact that are found to be true and tend to establish guilt;
4) It is the res gestae (circumstances relating to the) of arrest or the offense;
5) It is made at trial, before a grand jury, or at an examining trial;
6) It is used merely to impeach rather than in the state's case-in-chief;
7) It was obtained in another state in compliance with that state's law or by a federal officer in compliance with federal law.
133
What besides the verdict is included in a judgment?
The sentence.
134
T/F - Defendant must be present when the sentence is announced.
True
135
Explain jury sentencing.
If the jury cannot agree on punishment, the judge will:
1) Declare a mistrial on PUNISHMENT ONLY; AND
2) Impanel another jury to determine sentence.
The jury may consider anything the court deems relevant, including:
1) Prior criminal record;
2) Reputation and opinion testimony as to character;
3) The circumstances of the offense;
4) Extraneous offenses; AND
5) Bad acts if they are proven BEYOND A REASONABLE DOUBT.
136
T/F - The court may order a pre-sentence investigation report (PSI) before announcing its decision in open court in a judge sentencing.
True.
137
What is Allocution?
Before the sentence is announced, the defendant has the right to address the court and give the following reasons why the sentence cannot be pronounced:
1) He has been pardoned;
2) He is incompetent; OR
3) He is not the person convicted.
138
What is a victim statement?
After the sentence is pronounced, a victim, a relative of a deceased victim, or a guardian may make a statement to the defendant but may NOT ask questions.
139
What are the sentencing options in a capital murder trial?
There are two sentencing options:
1) The death penalty; OR
2) Life in prison without parole.
The defendant is sentenced to life in prison without parole if the state does not seek the death penalty.
140
What is required for a death sentence?
Jury must UNANIMOUSLY AGREE:
1) That the defendant is a future threat to society; AND
2) There are not sufficient mitigating circumstances to warrant the lesser sentence of life in prison.
141
T/F - Judge has discretion to impose multiple sentences concurrently or consecutively.
True.
142
What is Community Supervision? What are the different types?
PROBATION - May be imposed in lieu of a prison term. The different types of probation include:
1) Suspended Sentence;
2) Deferred Adjudication; and
3) Conditions
143
What is a suspended sentence?
The sentence is pronounced but suspended on condition of compliance with conditions. Available ONLY if:
1) The prison term is LESS THAN 10 YEARS;
2) There is no prior felony conviction; AND
3) The conviction is not for one of the serious offenses for which community supervision is not available.
144
What is a deferred adjudication?
The defendant pleads and the judge suspends the proceedings without imposing a sentence on condition of compliance with conditions. It is NOT AVAILABLE FOR:
1) Driving while intoxicated (DWI);
2) Delivery of a controlled substance to a minor; OR
3) Any drug-related financial transaction.
145
What other conditions can be placed on a sentence involving probation?
The judge may impose any REASONABLE CONDITIONS OF COMMUNITY SUPERVISION, the breach of which, if proven by a PREPONDERANCE OF THE EVIDENCE results in revocation of community supervision.
IF VIOLATED, THE COURT MAY REVOKE PROBATION.
146
What are the alternative sentences to jail?
There are a number of alternatives to jail time in a MISDEMEANOR, which may also be imposed as conditions of community supervision:
1) Work release;
2) Service of sentence in off-work hours;
3) House arrest with electronic monitoring;
4) Community Service; OR
5) Restitution fo any damage or harm done.
147
Who can motion for a new trial? What is the effect on the ability to appeal?
ONLY THE DEFENDANT can motion for a new trial when:
1) Material, favorable evidence to the accused has been discovered since the trial; OR
2) Jury misconduct or other activity denied defendant a fair trial.
EXTENDS TIME AVAILABLE TO FILE A NOTICE OF APPEAL.
148
What are the State's rights to appeal?
MAY APPEAL certain rulings on QUESTIONS OF LAW, such as the trial judge's dismissal of an indictment. MUST DO SO NO LATER THAN 20 DAYS AFTER THE ORDER OR RULING WAS ENTERED.
MAY NOT APPEAL FACT DETERMINATION ISSUES.
149
What are the defendant's rights to appeal?
MAY APPEAL ANY JUDGMENT ORDER EXCEPT a conviction from a plea-bargained guilty plea UNLESS: (a) by permission of the trial court, OR (b) on a matter raised by pre-trial motion.
MUST APPEAL IN THE TRIAL COURT WITHIN:
1) 30 DAYS after the sentence is entered or suspended; OR
2) 90 DAYS if he has moved for a new trial.
150
Can the right to appeal be waived?
YES, IF:
1) Part of a plea bargain; OR
2) After the sentence is imposed.
151
What is the effect of reversal on appeal?
Reversal based on an error in the:
1) GUILT-INNOCENCE PHASE - results in a NEW TRIAL;
2) PUNISHMENT STAGE - results in a NEW TRIAL ON PUNISHMENT ONLY.
152
What is the jurisdiction of the highest appellate court?
The highest appellate court in criminal cases is the Court of Criminal Appeals.
MANDATORY - Jurisdiction is automatic and mandatory in CAPITAL CRIME cases.
DISCRETIONARY - Jurisdiction is discretionary in all other cases, on the filing of a petition for discretionary review (PDR), including those from an intermediate court of appeal; OR on the court's own motion.
The court CONSIDERS WHETHER the issue in case is important enough OR presents a conflict in intermediate court decisions.
153
What is the jurisdiction of the intermediate appellate courts?
Jurisdiction of all criminal appeals EXCEPT CASES:
1) In which the death penalty was imposed; OR
2) That were appealed to the county court where the fine was NOT OVER $100 and the constitutionality of a statute or ordinance was not involved.
154
Is there bail on appeal?
Defendant is entitled to REASONABLE BAIL.
FELONIES HAVE NO BAIL IF:
1) Sentence is 10 YEARS OR MORE;
2) Aggravated assault; OR
3) Drug offense.
155
When can bail be denied on appeal?
IF:
1) There is GOOD CAUSE to believe the defendant will not appear when his conviction becomes final; OR
2) The defendant is likely to commit another offense while on bail.
156
What is Habeas Corpus?
May be used POST-TRIAL as a writ to challenge UNLAWFUL CUSTODY. This attacks legality of the trial court conviction.
FILED IN THE TRIAL COURT.
IF the trial court determines that there are previously unresolved material facts, it will order a hearing. If no hearing is required, then the petition may be filed in the Court of Criminal Appeals.
In death penalty cases, a petition for writ of habeas corpus MUST be filed WITHIN 180 DAYS AFTER counsel is appointed OR WITHIN 45 DAYS of the state's brief on appeal, WHICHEVER IS LATER.
