Texas Criminal Procedure and Evidence Deck (Part 1)

Question 1

District Court’s have jurisdiction over what type of cases?

Answer 1

1. Felonies
2. Misdemeanors that are lesser included offenses of charged felonies
3. Misdemeanors involving official misconduct
4. Transferred county court prosecutions for misdemeanors punishable by jail time

Question 2

Justice Courts have jurisdiction over what type of cases?

Answer 2

Criminal offenses punishable by only a fine.

Question 3

Municipal Court’s have jurisdiction over what type of cases?

Answer 3

Exclusive jurisdiction over criminal cases (i) in which was allegedly committed within the territorial limits of the city, (ii) arising under an ordinance of the municipality, and (iii) punishable by a fine not exceeding $500.

Concurrent jurisdiction with the justice courts over criminal cases (i) in which was allegedly committed within the territorial limits of the city, (ii) arising under state law, and (iii) punishable only be a fine.

Question 4

County Court’s have jurisdiction over what type of cases?

Answer 4

Misdemeanors over which exclusive jurisdiction is not given to justice courts.

Question 5

Dale is arrested by Tarrant County officers when the officers see him running away from the home of Peter. The officers also heard Peter shouting, “Dale just threatened me with a gun!” What courts have jurisdiction to conduct trial of Dale for aggravated assault? What courts have jurisdiction to conduct a trial of him for criminal trespass, which is punishable by confinement in jail for up to one year and a fine not to exceed $4,000?

Answer 5

Only a district court has jurisdiction to conduct a trial for aggravated assault because it is a felony.

A County court has jurisdiction to conduct a trial for the misdemeanor of criminal trespass, because it is a misdemeanor beyond the jurisdiction of the justice and municipal courts.

Question 6

********What is a writ of habeas corpus? To whom is a writ directed? What remedy does a writ seek? By whom may it be granted?

Answer 6

A writ of habeas corpus is a court order commanding someone with a person in custody to produce that person before the court and show why the person is being held.

A writ is directed to someone having another person in restraint. It should name the identity of the person to whom it is direct

The writ seeks to have the custody of the person restrained temporarily.

The writ may be granted by the Court of Criminal Appeals, the District Courts, the County Courts or a judge of any of these courts.

Question 7

If Bob is arrested for a felony, when must Bob be taken before a magistrate?

Answer 7

The officers must present him before a magistrate without unnecessary delay, but in any case within 48 hours of arrest.

Question 8

What are the duties of a magistrate?

Answer 8

1. Tell the arrestee of the charges
2. Tell the arrestee of his rights: retain counsel and examining trial
3. Warn the arrestee that in regard to police questioning:
   - he has the right remain silent
   - any statement he makes can be used against him
   - he has a right to have an attorney present during questioning
   - he can request an appointed attorney
   - at any time he can terminate an interview with the police
4. Set bail
5. May determine whether probable cause exists

Question 9

Steve is arrested for a felony without an arrest warrant. 48 hours after the arrest, no magistrate has determined that probable cause to believe him guilty exists. What right does Steve now have?

Answer 9

He has a right to be released on bond, and to have bond set so this can happen. Bond must be no more than $10,000 and personal bond if necessary to assure release.

Question 10

Jack is arrested for a misdemeanor without an arrest warrant. How long can the cops keep him in custody if no magistrate has determined probable cause?

Answer 10

24 hours, then he must be released on bond.

Question 11

What is the main type of case where bond will be denied?

Answer 11

Capital murder cases

Question 12

The prosecution decides to prosecute CJ for aggravated assault and would like to have bail denied. Six years earlier CJ was convicted of felony theft. How must the prosecutor go about getting bail denied?

Answer 12

Prosecutor must file a motion for denial of bail in District Court. Any order denying bail must issue within 7 days of the defendant’s apprehension. Only a district judge can deny bail in a noncapital prosecution.

Question 13

The prosecution decides to prosecute CJ for aggravated assault (used a deadly weapon) and would like to have bail denied. Six years earlier CJ was convicted of felony theft. Can bail be denied to CJ?

Answer 13

Probably yes. The State can show one prior felony conviction, and use of a deadly weapon in the present offense.

Question 14

What must the prosecution show at a hearing in a noncapital case to deny bail?

Answer 14

1. D is charged with a noncapital felony; and
2. Substantive evidence of D’s guilt of that crime; and
3. One of the following:
   
   • two prior felonies
   • present offense committed out on bail on felony
   • both: one prior felony conviction and present offense involved use of deadly weapon
   • present offense was a violent or sexual offense committed while on felony probation or parole

Question 15

What is the general rule for denying bail if D is on bail on a felony charge?

Answer 15

If D violates a condition of bail related to the safety of the victim or the community

Question 16

Harry is arrested on a noncapital felony charge and is denied bail. How does Harry challenge this ruling?

Answer 16

Immediately appeal the order denying bail to the Court of Criminal Appeals.

Question 17

Jerry is arrested on a noncapital felony charge and is denied bail. Things then just drag on and on. What can Jerry’s counsel do?

Answer 17

Denial of bail for a noncapital felony can last only until 60 days from the defendant’s initial detention. At that point, the order denying bail is automatically vacated and the defendant is entitled to have bail set. So, after 60 days have passed, counsel should make a motion to have bail set.

Question 18

The prosecution does not seek to have bail denied, and the magistrate sets bail for Matt at $500,000 bail bond on the charge of aggravated assault. Matt unsuccessfully requests the magistrate to lower bail to $25,000. What procedural steps, if any, can he take to seek a reduction of bail?

Answer 18

1. File an application for writ of habeas corpus in district court.
2. At hearing, introduce evidence showing
   
   • bail set was excessive
   • he cannot meet bail set; and
   • amount of bail he can meet
3. The district judge may order bail to be reduced
4. If not, Matt can, before trial, appeal to Court of Appeals

Question 19

What factors should be considered in setting bail and deciding whether bail is set is excessive?

Answer 19

1. Likelihood of D appearing for trial
2. Ability of the defendant to make bail
3. Seriousness of the crime charged
4. Future safety of the victim and of the community
5. Required bail is not to be an instrument of oppression

Question 20

Which is better for a defendant, personal bond or bail bond?

Answer 20

Personal bond because a bail bond requires a surety or a cash deposit. Personal bond requires neither kind of security. A personal bond is the accused’s promise to pay the amount if the bond is forfeited.

Question 21

Zack is arrested for DWI. Bail is set but the magistrate imposes a condition that Zack not have any contact with children under the age of 12. What valid basis, if any, is there for challenging this condition?

Answer 21

A magistrate may impose any reasonable condition on bail related to the safety of the victim or the community. Nothing in the facts suggests Zack is a danger to children. So this condition is not reasonably related to the safety of the victim or community.

Question 22

Matt is arrested for a felony. 5 months after bail is set, defense counsel telephones the prosecutor to discuss reduction of bail. The prosecutor responds, “No way! I’m not ready for trial, and I’m not going to Matt loose on the street while I get ready.” Is there any legal basis for trial court to reduce Matt’s bail in these circumstances?

Answer 22

No. Matt must be released, either on personal bond or on reduced bail, since the State is not ready for trial and 90 days have passed since Matt’s arrest.

Question 23

If the State is not ready for trial, a defendant charged with a felony must be released when?

Answer 23

After 90 days of arrest

Question 24

If the State is not ready for trial, a defendant charged with a Class A misdemeanor must be released when?

Answer 24

After 30 days of arrest

Question 25

If the State is not ready for trial, a defendant charged with a Class B misdemeanor must be released when?

Answer 25

After 15 days of arrest

Question 26

If the State is not ready for trial, a defendant charged with a Class C misdemeanor must be released when?

Answer 26

After 5 days of arrest.

Question 27

You are defense counsel for Kim who was arrested for a felony. Prior to the grand jury considering the felony allegation against Kim, you wonder about an examining trial for him. What court(s) have jurisdiction to hold examining trials?

Answer 27

Any magistrate can hold an examining trial. Therefore, it may be held in any court.

Question 28

What magistrate can hold an examining trial?

Answer 28

Any magistrate

Question 29

What is the purpose of an examining trial?

Answer 29

The examining trial is a pretrial hearing before a magistrate. Its purpose is to require the State to produce evidence showing probable cause to believe the defendant guilty of the crime.

Question 30

If an examining trial is held, what rights does the defendant have at it?

Answer 30

The defendant has the rights to:

1. present
2. be represented by counsel
3. have the rules of evidence applied
4. cross-examine State witnesses
5. Subpoena and present defense witnesses

Question 31

Under what conditions, if any, is a defendant permitted to make an unsworn statement at an examining trial?

Answer 31

A defendant can make an unsworn voluntary statement, but this must be done before any witnesses testify.

Question 32

When is a defendant entitled to an examining trial?

Answer 32

1. She is charged with a felony

AND

2. An indictment has not yet been returned

Question 33

D is arrested and been charged with a felony, but an indictment has not yet been returned. Is D entitled to an examining trial?

Answer 33

Yes

Question 34

D is arrested and been charged with a felony and an indictment has been returned. Is D entitled to an examining trial?

Answer 34

No

Question 35

Suppose an examining trial is held and D “wins” it, that is, the magistrate finds that the State failed to show probable cause. What will be the result?

Answer 35

This “win” will not prevent prosecution and conviction. But D will be entitled to go free until and if he is indicted.

Question 36

If the prosecution decides to charge D with a crime, what instrument must be used? How does the State go about getting this instrument?

Answer 36

The State must seek an indictment. To get this, a grand jury must vote to return a “true bill” against him. This requires the grand jury to find that probable cause exists to believe D is guilty. The foreperson will then sign the indictment, and it will be filed in District Court.

Question 37

Suppose D wants to waive his right to grand jury indictment. Can he do so?

Answer 37

Yes, if it not one of those offenses for which indictment is not absolutely required.

Question 38

When can a defendant waive an indictment?

Answer 38

In all prosecutions except ones for capital murder.

Question 39

What requriements must be met in order for a person to waive indictment?

Answer 39

1. The defendant must be represented by counsel
2. Waiver must be by written instrument or in open court
3. The waiver must be voluntary

Question 40

If D waives indictment, how will he be charged?

Answer 40

The State will file an information

Question 41

Suppose the prosecutor tells defense counsel D will only be charged with a Class A misdemeanor in county court by an information. What is an information? Name one in which an information differs from an indictment.

Answer 41

An information is a pleading filed by the State charging the person named with a criminal offense.

It differs from an indictment in that it need only be approved and signed by the prosecutor. An indictment must be approved by a grand jury and signed by the foreperson.

Also, an information (but not an indictment) must be supported by a valid and sworn complaint, which must also be filed.

Question 42

If the prosecution decides to charge D with a Class C misdemeanor (punishable only by fine) in municipal or justice of the peace court, how does the State go about getting this done?

Answer 42

The State filed a sworn complaint, which itself is the charging instrument.

Question 43

How are prospective grand jurors selected?

Answer 43

In the same manner as trial jurors are selected for civil cases. The prospective grand jurors are summoned to the district court which tests their qualifications and then impanels twelve as a grand jury.

Question 44

Defense counsel learns that a grand jury that will consider D’s possible indictment is about to be impaneled. She also learns this grand jury was hand-picked by the victim’s father, a grand jury commissioner, to include only the victim’s close family members. When and on what basis should defense counsel challenge the composition of the grand jury?

Answer 44

Counsel should challenge the composition of the grand jury on the ground that the Code of Criminal Procedure requires grand jury commissioners, to the extent possible, to select grand jurors who represent a broad cross section of the population considering race, sex, and age.

Since counsel has this information before the grand jury is impaneled, she should raise the matter during the grand jury selection process by a challenge to the array. She can raise it later by a motion to set aside the indictment, only if at that time she makes showing that she did not have an opportunity to raise this by a challenge to the array.

Question 45

The prosecution decides to present D’s situation to a grand jury for possible indictment. Can the grand jury compel D to appear and give testimony regarding his possible involvement in the case?

Answer 45

The grand jury can compel D to appear by having a subpoena issued. But it cannot compel D to answer questions if D invokes his privilege against self-incrimination.

Question 46

If D appears voluntarily before a grand jury, what must occur before and as he is questioned?

Answer 46

He will be a suspect witness. Therefore before questioning he must be warned:

1. the offense of which is suspected
2. the county in which it was committed; and
3. the time of its occurrence

Also, the questions asked and his testimony must be recorded

Question 47

If D is subpoenaed to appear before a grand jury, what warning must he receive, if any?

What other rights does D have if subpoenaed to appear?

Answer 47

As a subpoenaed suspect witness, he must be given the following warnings before being questioned:

1. Testimony will be under oath
2. A false answer to a material question subjects him to prosecution for perjury
3. He can refuse to answer incriminating questions
4. He has a right to have counsel appointed if he is unable to employ a lawyer
5. He has a right to have a lawyer present outside the room; and
6. His testimony can be used against him

Rights

1. He must be given a written copy of the warnings; and
2. He must have a reasonable opportunity before appearing to obtain and consult with counsel

Question 48

The prosecution calls Victim to testify. What rights, if any, does D have to cross-examine Victim before the grand jury so as to present his version of the events?

Answer 48

D has no right to participate. He may appear as a witness. With the grand jury’s permission, he may be allowed to address the grand jury.

BUT he may not cross-examine Victim. Only the prosecutor and grand jurors may examine witnesses.

Question 49

Are there circumstances under which defense counsel can appear and present evidence before a grand jury on behalf of a client?

Answer 49

Yes. A lawyer representing a suspect may address the grand jury if (1) the grand jury permits this, and (2) the prosecutor consents to it.

Question 50

After the grand jury is empaneled, the grand jurors send for the Prosecutor and ask her for legal advice about the governing law. Prosecutor appears before the grand jurors and gives them legal advice. Did the grand jurors violate the law by asking Prosecutor for her advice?

Answer 50

No. The grand jury may send for the prosecutor and ask her advice upon any matter of law.

Question 51

How many jurors serve on a grand jury, how many must concur for a person to be indicted, and who drafts the indictment?

Answer 51

A grand jury consists of 12 people. At least 9 must concur for a person to be indicted. The prosecutor drafts the indictment.

Question 52

D is indicted by the grand jury. He wants to move to set aside the indictment based on irregularities in the grand jury procedure. May he have the indictment set aside if an unauthorized person was present while the grand jury was hearing evidence?

Answer 52

No. Only authorize persons should be present, but dismissal is not required.

Question 53

D is indicted by the grand jury. He wants to move to set aside the indictment based on irregularities in the grand jury procedure. May he have the indictment set aside if an authorized person was present while the grand jury was deliberating or voting?

Answer 53

Yes. Once the grand jury begins deliberating, the only persons who may be present are grand jurors. Violation of this rule requires dismissal of the indictment.

Question 54

D is indicted by the grand jury. He wants to move to set aside the indictment based on irregularities in the grand jury procedure. May he have the indictment set aside if the information on which the grand jury acted was not sufficient to establish probable cause to believe him guilty of aggravated assault?

Answer 54

No. An indictment may not be challenged for evidentiary insufficiency.

Question 55

The running of the period of limitations is “tolled”, and the time elapsing is not counted in what two situations?

Answer 55

1. while the defendant is out state

2. while a charging instrument charging the same offense is pending against the accused and later dismissed

Question 56

What is the general period of limitation for misdemeanors?

Answer 56

2 years

Question 57

What is the general period of limitations for felonies?

Answer 57

3 years

Question 58

What is the general period of limitations for theft, burglary, robbery, or kidnapping?

Answer 58

5 years

Question 59

The DA develops information suggesting that the defendant committed a felony on May 1, 2009. Unfortunately the DA does not decide to act on this until June, 2012. Can the prosecutor get a valid indictment charging the defendant with the felony?

Answer 59

The period of limitations for felony assault is 3 years. This means an indictment for an assault committed on May 1, 2009 must be presented by May 1, 2012. It is now June of 2012. Therefore, the prosecution is fucked.

Question 60

The Code of Criminal Procedure imposes a list of “requisites” that must be met on the face of an indictment or an information. What are they?

Hint: there’s 8 of them

Answer 60

1. Commence: “In the name and by the authority of the State of Texas”
2. Name of the accused (or describe him)
3. Set forth all elements of the offense
4. Specify enough details to give accused notice
5. Allege the crime was committed on a date that is both (a) within the period of limitations and (b) before the presentment of indictment
6. Allege commission of the crime in a county within court’s jurisdiction
7. Conclude: “Against the peace and dignity of the State”
8. Be signed

Question 61

The State proves that D committed the crime exactly as alleged in the indictment except that instead of proving that it was done on May 1, 2009, it was actually done on April 2, 2009. D moves for a directed verdict on the ground of a variance between the pleading and the proof. How should the trial judge rule?

Answer 61

Overrule the motion because the date alleged is not binding on the State at trial.

Question 62

One offense is a lesser included offense of another (and more serious) if:

Answer 62

1. it is proved by some but not all of the same facts that are required to prove the more serious offense; or
2. it requires only a less serious injury to the same person, property or interest as the more serious offense; or
3. it requires only a less culpable mental state than the more serious offense
4. it consists of an attempt to commit the more serious offense

Question 63

When should a jury be instructed on an uncharged offense?

Answer 63

1. The other offense is a lesser included offense of the crime charged; and
2. The evidence before the jury is such that the jury could find both: (a) D is not guilty of the charged offense and (b) D is guilty of the lesser included offense.

Question 64

State witnesses testified that D threatened V with a gun. Defense witnesses testified that D threatened V but did not have a gun. What procedural step could defense counsel take to give the jury the option of convicting D of simple assault rather than aggravated assault? When and how should counsel take that step? How should the court rule?

Answer 64

Counsel should ask that the jury be given a charge on simple assault. This should be done after the evidence has been closed and the parties have rested.

This request poses the question of whether a jury should be instructed on an uncharged offense. Therefore, the judge needs to ask:

1. Is simple assault a lesser included offense of aggravated assault? - Yes
2. Does the evidence permit a conclusion that D is guilty only of simple assault? - Yes

Consequently, request for an instruction on simple assault should be granted.

Question 65

Suppose D is charged with aggravated assault, but is only convicted on simple assault. What effect does this have on the charged offense of aggravated assault?

Answer 65

D is acquitted of that offense.

Question 66

If D believes that the name of the accused in the indictment is not D’s “true” name, what must happen?

Answer 66

1. D must raise this at arraignment
2. D must specify his true name
3. The judge is then to correct the indictment so it accuses D by his true name

Question 67

When D and defense counsel appear for the arraignment, the court calls D’s name during the arraignment as “Dez Bryant” exactly as it is shown in the indictment. D’s true name is “Dezmond Bryant” rather than Dez Bryant. What may defense counsel do? What will the judge do in response?

Answer 67

Counsel may raise this at the arraignment and inform the judge that the accused’s name is Dezmond Bryant rather than Dez Bryant. The judge will then cause the indictment to accuse Dezmond Bryant.

Question 68

Suppose the name on the indictment is wrong, but D waits to raise this issue until trial. Then, when a variance develops between his name as alleged and as the proof shows it is, he demands acquittal on variance grounds. What will be the result?

Answer 68

No relief because raising the matter at arraignment is the only remedy available.

Question 69

Generally, when must defects in charging instruments be raised?

Answer 69

Before trial

Question 70

What procedure is available to D to challenge the indictment and at what stage of the proceedings must he assert such a challenge?

Answer 70

D can challenge the indictment by the appropriate motion, either (1) an exception to the form of the indictment; or (2) an exception to the substance of the indictment. These motions are informally called “motions to quash” the indictment. The motion must be filed before the day on which trial begins.

Question 71

The arraignment takes place where? What are the functions of the arraignment?

Answer 71

In the trial court

Functions:

1. The accused enters a plea
2. This is the point for fixing the accused’s identity
3. The judge appoints counsel if that hasn’t already been done

Question 72

What decisions must a criminal defendant make?

Answer 72

What plea to enter

Whether to have a trial by jury

Whether to himself take the witness stand at trial

Question 73

Suppose CJ wants at trial to introduce evidence that he was insane at the time he threatened Victim. What, if anything, must he do before trial?

Answer 73

Notice of the defendant’s intent to introduce such evidence must be filed 20 days before trial.

Question 74

What difference or advantage would there be for D in pleading nolo contendere rather than guilty?

Answer 74

There is no difference in the criminal prosecution. If civil litigation were to arise out of the same incident, a plea of guilty could be sued as evidence against D. A plea of nolo contendere could not be so used.

Question 75

CJ decides not to contest his guilt of a felony assault charge. What five admonitions the trial judge must give him before accepting a felony plea of guilty or nolo contendere?

Answer 75

1. Inform him of the range of punishment
2. Inform him that recommendations by the State are not binding
3. Inform him of the limited right, after a guilty plea, to appeal
4. Inform him that plea may result in deportation
5. Inquire as to whether there is a plea bargain

Question 76

Pending arraignment, right-handed D breaks his right arm and it is placed in a cast. When he seeks to plead guilty, the court asks him to sign a document containing admonishments regarding the plea. D cannot sign it because of his broken arm. Does the court have to make the plea admonishments in writing and have D sign them, or can D plead guilty even if he cannot sign?

Answer 76

D can plead guilty even if he cannot sign the admonishments, because they can be given either in writing or orally.

Question 77

At arraignment, the judge asks D how he pleads and D says “Guilty.” A moment later D says “Actually, I’ve changed my mind and want to take back my guilty plea and go to trial.” May D withdraw his guilty plea at this point in the proceeding?

Answer 77

Yes, because a guilty plea can be withdrawn at any time before the trial court takes the matter under advisement.

Question 78

At arraignment, the judge asks D how he pleads and D says “Guilty.” A moment later D says “Actually, I’ve changed my mind and want to take back my guilty plea and go to trial.” If D is permitted to withdraw his guilty plea, can the State introduce evidence at trial that he first pleaded guilty?

Answer 78

No, because Evidence Rule 410 makes inadmissible withdrawn pleas of guilty or nolo contendere

Question 79

If a pretrial hearing and conference is set, the parties must do certain things 7 days before that hearing and conference. What are they?

Answer 79

1. Enter any special plea
2. Make challenges to the indictment
3. Make motions for continuance
4. Make motion for change of venue
5. Make motion to suppress evidence
6. Make requests for discovery
7. Raise claims of entrapment

Question 80

In Matt’s felony prosecution, the trial judge schedules a pre-trial hearing and conference. How, if at all, does this affect how defense counsel needs to go about challenging the indictment? What consequence, if any, is there if counsel does not file the motion by that date?

Answer 80

Now the motion to “quash” must be filed 7 days before the pretrial hearing, not just before the day on which trial begins. If it is not filed then, it cannot be raised later except by permission of the court on the basis of good cause.

Question 81

The trial court schedules a pretrial hearing at 9:45am on a specific date. On that day, the court begins the hearing 30 minutes early, although D has not yet arrived and defense counsel objects. The judge overrules. Did the court correctly overrule the defense? Does D have a right to be present at a pretrial proceeding?

Answer 81

The trial judge erred, because defendant has a right to be present at any pretrial proceeding.

Question 82

What is a motion in limine?

Answer 82

A pretrial motion that asks for either

1. a pretrial ruling on the merits of some question of evidence or procedure that will arise during trial
2. a pretrial ruling that opposing counsel must alert the judge before raising some matter of evidence or procedure before the jury

Question 83

Defense counsel makes a motion in limine, asking the court to order the prosecutor to make no reference during jury selection to any attacks by Jack on persons other than Victim. The trial court grants the motion. During examination of a prospective juror, the prosecutor asks whether the juror would be affected by hearing that Jack has attacked 50 other people. What, if anything, does defense counsel need to do to preserve any error?

Answer 83

Nothing, because the pretrial ruling on the motion in limine mean action taken in violation of it is preserved error.

Question 84

Defense counsel makes a motion in limine, asking the court to order the prosecutor to make no reference during jury selection to any attacks by Jack on persons other than Victim. The trial court denies the motion. What, if anything, does defense counsel need to do to preserve error in admitting the evidence?

Answer 84

Object to any reference during jury selection and to the evidence itself when it is offered at trial.

Question 85

Matt’s attorney believes that the search by which the police obtained evidence the State will offer at trial was illegal. The evidence was obtained in a search of Matt incident to an arrest. What are ways available for defense counsel to raise the admissibility of the evidence?

Answer 85

Counsel may either:

1. Make a pretrial motion to suppress the evidence; or
2. Wait and object to the evidence when the State offers it at trial

Question 86

Does a pretrial ruling on a motion to suppress preserve the issue for appeal?

Answer 86

Yes

Question 87

Does a pretrial ruling on a motion in limine preserve the issue for appeal?

Answer 87

No

Question 88

Defense counsel has moved to suppress the gun seized during a search of Scott’s apartment. The trial judge schedules a hearing on this motion. Scott informs defense counsel that he wishes to testify at the hearing. If he does, what issues may the prosecutor inquire into on cross-examination and does Scott waive his right to remain silent at the remainder of his trial?

Answer 88

The prosecutor may only inquire as to matters related to the hearing issues - the validity of the search. Cross-examination cannot extend to guilt of the charged crime. Scott does not waive his right to remain silent at the rest of the trial. He may thus decline to testify at trial and his right to so do remains fully effective.

Question 89

When must the State provide the defense with a list of expert witnesses it may call at trial?

Answer 89

On the defendant’s request and at least 20 days before jury selection

Question 90

Prior to trial, defense counsel for D decides it would be a good idea to take the oral deposition of his alibi witness, Jones, before Jones begins scheduled sky-diving lessons. What procedure must counsel follow before counsel will be allowed to take Jone’s deposition?

Answer 90

Counsel must obtain a court order. To get the order, counsel must file a motion supported by an affidavit stating “good reason” for taking the deposition. Notice must be given to the State. A hearing will be held. Counsel must be prepared to show “good reason”. This should include a showing that the witness’s testimony will be necessary for trial and that the witness is likely to become unavailable before trial.

Question 91

Counsel for Scott files a pretrial motion requesting that the State reveal the name of any informant from whom it acquired information about the case. The prosecutor acknowledges that an informant provided the State with information but refuses to divulge his identity. Defense counsel files a motion to compel the State to reveal the identity of its informant.

Answer 91

The court should overrule the motion to compel. The identity of an informer is generally privileged and can be withheld by the State.

Question 92

What two situations may require the State to divulge the identity of an informant?

Answer 92

1. If the informant provided information by which the State obtained evidence in a way the defendant claims was illegal, the court has discretion to require disclosure if necessary to establish the informer’s reliability.
2. Upon showing the informant can provide testimony necessary to a fair determination of guilt-innocence, the court must order disclosure.

Question 93

A defendant in incompetent to stand trial if what?

Answer 93

Either:

1. lacks the ability to consult with counsel with a reasonable degree of rational understanding
2. she lacks a rational and factual understanding of the proceeding

Question 94

What happens if after being found incompetent, the accused’s condition improves?

Answer 94

The defendant can be determined to be competent and the prosecution can then proceed.

Question 95

If an issue of incompetence is raised, how will it be resolved?

Answer 95

Trial judge will make a preliminary inquiry. If this shows significant evidence of incompetency, the judge must hold a full hearing. If either party or the judge requests, the determination must be made by a jury.

Question 96

What is the standard to overcome the presumption of competence?

Answer 96

Preponderance of the evidence

Question 97

What are three ways in which incompetency differs from insanity under Texas law?

Answer 97

1. Relevant time
   - insanity: time of offense
   - incomp: time of trial
2. Standard applied
   - insanity: did not know conduct was wrong
   - incomp: could not consult with counsel or understand proceeding
3. Result
   - insanity: final verdict of not guilty by reason of insanity
   - incomp: (perhaps termporary) bar to proceeding

Question 98

Generally, venue lies where?

Answer 98

In the county where the crime was committed

Question 99

What are the two reasons a defendant may seek to change venues?

Answer 99

1. Prejudice in county would prevent fair trial

2. Dangerous combination of influential persons against D would prevent fair trial

Question 100

What are the three reasons the State may seek to change venue?

Answer 100

1. Combinations or influences in favor of D would prevent fair trial
2. Lawless conditions would prevent fair trial
3. Life of D or a witness would be jeopardized by local trial

Question 101

When must defense counsel file the motion to change venue? What consequences are there if you do not by that date?

Answer 101

A motion to transfer venue must be filed 7 days before the pre-trial hearing. Failure to do so will prevent a later motion to change venue unless the court gives permission for good cause is shown.

Question 102

The local newspaper gives extensive coverage to the case after it is revealed that Victim is the son of the police chief. Defense counsel begins to be concerned that it may be difficult for D to get a fair trial in that county. What procedural steps should defense counsel take to protect D’s right to a fair trial?

Answer 102

The procedure is a change in venue. To obtain, this defense counsel must file:

1. a written motion for change of venue
2. affidavits that a fair trial cannot be held in the county by the defendant and two credible residents of the county.

At the hearing, he must present evidence showing there is sufficient prejudice in that county to prevent a fair trial.

Question 103

When must a defense counsel file a motion to change venue by? What consequences are there if you do not file by that date?

Answer 103

7 days before trial

Failure to do so will prevent a later motion to change venue unless the court gives permission for good cause shown.

Question 104

A judge is disqualified if what?

4 instances

Answer 104

1. Judge was VICTIM
2. Judge was lawyer for either side in this case
3. Judge is related within 3 degrees
4. Bias

Question 105

In what two types of cases does the defendant have to be present at the beginning and end of the trial?

Answer 105

Felony or misdemeanor punishable by jail time

Question 106

Will a case proceed if the defendant is voluntarily absent in the middle of it?

Answer 106

Yes

Question 107

What is the rule for the presence of the accused in a misdemeanor case not punishable by jail time?

Answer 107

The defendant can be absent because he may appear “by counsel”, if the prosecution consents.

Question 108

Blake is at his trial where he charged with a felony, he appears and sits the counsel table while the jury is selected and sworn. After the first State witness testifies, the trial judge calls a recess. Blake goes out for a smoke. In fact, he gets in his car and goes to Colorado, because he senses things are not going well with the trial. When the court reconvenes, of course, Blake is not there. What can the trial judge do?

Answer 108

Since Blake’s absence is after selection of the jury and voluntary, trial may proceed. But it cannot proceed further than assessment of punishment. The formal sentencing cannot occur until Blake is recaptured and brought into court. - even if it takes 20 years or longer

Question 109

How many offenses may an indictment allege? What happens if there is more than the allowed number of offenses?

Answer 109

1, if more it must be quashed

Question 110

A defendant may be tried on how many indictments per trial? What happens if the defendant is being tried on more than the number of indictments allowed?

Answer 110

1 per trial

If more than one, the defendant is entitled to have the trials severed

Question 111

What is the exception to the “One Offense” rule?

Answer 111

The “Criminal Episode” exception

Question 112

What is the “Criminal Episode” exception?

Answer 112

The exception to the “One Offense” rule.

The state may join in one indictment all offenses arising out of one “criminal episode,” and the defendant will be tried for all of these in one trial unless there is a severance of the charges.

Question 113

What if the defendant is charged with different indictments with offenses arising out of one “criminal episode,” the state may do what?

Answer 113

The state may have those indictments consolidated for trial together

Question 114

What are the three ways crimes can be part of the same criminal episode?

Answer 114

1. Part of the same transaction
2. Part of a common scheme or plan
3. The same or similar offenses

Question 115

Is the state required to seek trial together of offenses arising out of one criminal episode?

Answer 115

No

Question 116

What right do you have to sever charges?

Answer 116

An absolute right

Question 117

Risk of severing charges?

Answer 117

Prison terms running concurrently vs. consecutively

Question 118

Several defendants may be charged in one indictment and tried together if what?

Two instances

Answer 118

1. They are all charged with the same offense

2. They are charged with different offenses arising out of the same transaction

Question 119

When is there mandatory severance?

Answer 119

When a defendant moves for severance and shows her co-defendant has a prior conviction admissible against that co-defendant at trial

Question 120

When should a judge severe charges?

Answer 120

If a joint trial would be prejudicial to the defendant who has moved for severance

Question 121

Generally, a motion for a “continuance” must be what?

Answer 121

1. In writing
2. supported by a showing of good cause
3. sworn

Question 122

Zack’s case is set for trial and defense counsel prepares. Counsel discovers that a defense witness is unavailable and decides to file a first motion for continuance. List three items that he must allege in his motion.

Answer 122

1. Name and residence of the missing witness

2.

Question 123

Is the granting of a defendant’s first motion for continuance a matter of right?

Answer 123

It is not a matter of right. All motions for continuances are addressed to the discretion of the trial judge.

Question 124

During CJ’s felony assault trial, defense counsel is amazed at the complexity of the testimony of the of the State’s expert firearms witness. Counsel seeks a continuance to locate another expert who will cast doubt on the accuracy of the State’s witness’s conclusions. Is the defense entitled to a continuance?

Answer 124

Probably not. This testimony could have been anticipated and therefore is not a basis for delay in the trial.

Question 125

Suppose when the D appears before the judge, the judge determines the D is indigent and offers to appoint a lawyer to D. D refuses to accept a lawyer. What must the judge do to preserve D’s rights?

Answer 125

D is asserting his right to represent himself. The judge must make sufficient inquiries of D, on the record, to assure that he is competent to engage in self-representation.

Question 126

Can a judge require D to accept an appointed attorney unless D can demonstrate that he knows procedure and evidence law?

Answer 126

No, because competency to engage in self-representation requires only that he understand the disadvantages and risks of that course.

Question 127

On February 5, the trial judge appoints Lawyer to represent D. Lawyer, busy, makes not effort to contact D until February 12, when Lawyer visits D in jail. On June 18, the judge replaces Lawyer with Attorney. Did lawyer make a timely effort to contact D, and was the court authorized to replace Lawyer based on her efforts to contact D?

Answer 127

Lawyer did not make timely effort. An appointed attorney must make every reasonable effort to contact D not later than the first working day after the date of appointment. An attorney is to interview D as a soon as practicable.

The court was authorized to replace Lawyer with Attorney. A judge has discretion to replace an attorney who fails to timely contact or interview D.

Question 128

The judge reduces Jack’s bail to $10,000. Jack has no money but his grandpappy offers to post the bail. The judge tells Jack that if bail is posted, the court will no longer allow him to have the services of appointed counsel. Can the judge consider whether Jack has posted or is capable of posting bail in determining whether Jack is indigent?

Answer 128

The general rule is that the judge may not consider whether a defendant has posted or is capable of posting bail. The exception is that this may be considered as it reflects the defendant’s financial circumstances as measured by proper considerations, such as income, property owned, dependents, etc.

Question 129

You have been appointed to represent D. You decide that you need the assistance of a forensic criminalist to help you evaluate the physical evidence in the case. However, neither you nor D can afford to hire such an expert. What pleading should you file to obtain the assistance of such an expert?

Answer 129

I should file an Ake motion involving Ake v. Oklahoma, holding that due process entitles an indigent defendant to appointment of an expert. To get the expert, I must show that the area of the expert’s expertise is likely to be a significant issue in the case. So that I do not have to reveal our thoughts to the State, I can make the motion and showing ex parte.

Question 130

Must the State pay for an expert to assist appointed defense counsel if the expert’s area is likely to be significant issue in the trial of the case?

Answer 130

Yes

Question 131

Defense counsel for Ricky Bobby, charged with aggravated assault, is preparing for trial and begins to ponder some aspects of trial procedure. What standard of proof must the State satisfy in order to obtain a guilty verdict? How many jurors must concur in the guilty verdict? What is the consequence if fewer than the requisite number vote guilty?

Answer 131

The State must prove guilty beyond a reasonable doubt.

The verdict must be unanimous, so all jurors concur

If the jurors cannot agree on the required unanimous verdict, the judge must declare a mistrial.

Question 132

What procedure is employed to express the choice whether to try the case to a jury or the judge? Who has the right to make that decision? At what stage of the case must the decision be made? And what must the choice be the same as to both guilt and the punishment phases of the trial?

Answer 132

Whether to have a case tried by a jury or judge is a decision that must be mad personally by the defendant.

If a defendant wants to have the case tried to a judge, the defendant must waive jury trial. This must be done before trial.

The choice need not be the same as to both phases. Whether or not the defendant waives jury trial on guilt, he can elect jury assessment of punishment or let the judge assess punishment.

Question 133

Jury trial on guilt can be waived except when?

Answer 133

In prosecutions for capital murder where the State seeks death penalty.

Question 134

Waiver of jury trial on guilt requires consent and approval of who?

Answer 134

Prosecutor and trial court

Question 135

When, if ever, can the jury have the court reporter read from the reporter’s notes the substance of testimony taken during trial?

Answer 135

The jury may apply to the court for such a reading of testimony if the jury disagrees as tow what the testimony was. The judge may have the court reporter read only those notes relating to the specific testimony in dispute.

Question 136

Suppose D’s trial proceeds, evidence is taken, and the jury begins its deliberations. Following two days of deliberations, the jury announces that it is hopelessly deadlocked. Defense counsel moves for a mistrial but the State opposes. In order for the court to grant a mistrial, must the State join in the defense motion?

Answer 136

The State need not join in the defense motion. The judge can, without agreement of the parties, declare a mistrial and discharge the jury if it cannot agree and the judge determines the jury has been deliberating long enough to establish that it is unlikely to reach a verdict.

Question 137

When members of the jury panel have been sworn, and before the voir dire examination of the jurors begins, the court tests the qualifications of the jurors b asking three questions. What three matters must the court determine regarding a prospective juror’s legal qualifications to serve?

Answer 137

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

Question 138

When the jury panel of 42 venire members is assembled, D’s attorney notes that several police officers and a former bar examiner are among the first 15 venire members. Counsel quickly concludes that these individuals may not be favorable defense jurors. What action, if any, can counsel take to change the seating order of the venire members? At what stage of the proceeding should she take this action?

Answer 138

Counsel can demand a jury shuffle, which will result in the random reseating of the venire members.

She must do this before voir dire of the venire members begin.

Question 139

Counsel request a jury shuffle, it is granted, and the jurors are reseated. Prosecutor notes that the first 10 venire members put down their occupation as “social worker.” Can Prosecutor get a shuffle?

Answer 139

No. There can only be one shuffle per trial.

Question 140

What is a challenge for cause? How many is each side allowed?

Answer 140

A challenge for cause is a challenge to a member of the jury panel on the basis of one of the grounds specified in the Code of Criminal Procedure. There is no limit on the number each side may make, but each one made must be justified under one of the statutory grounds.

Question 141

List 5 challenges for cause that may be made by either the State or the defense?

9 are listed

Answer 141

1. Prior conviction for theft or a felony
2. Under formal charge for theft or felony
3. Insane
4. Not qualified to be a voter
5. Is a witness in the case
6. Served on a jury in prior trial of the case
7. Served on indicting grand jury
8. Cannot read and write
9. Bias or prejudice

Question 142

D is convicted of a felony. After trial, D discovers that one of the jurors was on probation for theft at the time of the trial. Can D have his conviction held invalid?

Answer 142

Probably not. An absolutely disqualified juror sat, but D did not raise this before the verdict was entered. Therefore, he must show that the juror’s service on the case caused him “significant harm.”

Question 143

Matt is on trial for aggravated assault. During the voir dire examination of the jury panel, one prospective juror states that no person convicted of aggravated assault should ever get probation. Can defense counsel properly make a challenge to this prospective juror and, if so, what kind of challenge should counsel make on what ground?

Answer 143

The law requires that a juror be able to consider the full range of punishment provided by the law for the offense. This juror is subject to a challenge for cause if the juror is unable to do this. Specifically, the challenge should on the ground that the juror is biased against the law applicable to the case.

Question 144

A jury is being selected for D’s trial. During defense counsel’s voir dire examination of the jury panel, prospective juror #8 says, “Of course I believe D is guilty, and nothing you say will change my mind about it.” What challenge should defense counsel make to this juror?

Answer 144

Defense counsel should make a challenge for cause on the basis that the juror is biased because he has already formed an opinion on guilt. To prevail, D must show that the juror cannot put aside this opinion and decide on the basis of law and evidence presented at trial. If the juror admits that the conclusion would influence the verdict, the judge must discharge the juror. If the juror says the option would not, D must convince the judge that the juror would be unable to put aside the opinion and decide the case on the law and evidence.

Question 145

During jury selection, Prosecutor asks the prospective jurors the following question: “If the evidence in a hypothetical case shows that D threatened the victim with a gun is there anyone who could not convict that person?” Defense counsel objects to the question. How should the court rule?

Answer 145

The court should sustain the objection because the prosecutor has asked an improper commitment question. The question fails to specify each element of the offense and that those elements must be proven beyond a reasonable doubt and is therefore not permissible.

Question 146

During jury selection, defense counsel notices one prospective juror keeps staring at him. Can defense counsel exercise either (a) a challenge for cause or (b) a peremptory challenge to exclude the prospective juror on the basis of the juror’s stare alone?

Answer 146

Counsel cannot exercise a challenge for cause, because the staring is insufficient to establish bias.

Counsel can exercise a peremptory challenge, because no basis for this challenge need be shown.

Question 147

Number of preemptory challenges in capital murder death penalty case?

Felony cases?

Misdemeanors in county, municipal or justice courts?

Misdemeanors tried in district court?

Answer 147

15

10

3

5

Question 148

A 42-person jury panel is summoned for D’s trial. 8 of the persons are African-American. The prosecutor uses 8 of her peremptory strikes on these venire members. What procedure, if any, should defense counsel empty to contest this action by Prosecutor, and at what stage of the proceeding should counsel employ it?

Answer 148

Counsel should make a Batson challenge on the ground that the State has exercised its peremptory challenge on racial grounds. She should move to dismiss the array of prospective jurors.

The motion should be made:
(a) after each side submitted its list of jurors it challenges and (b) before the trial court empanels the jury

Question 149

A 42-person jury panel is summoned for D’s trial. 8 of the persons are African-American. The prosecutor uses 8 of her peremptory strikes on these venire members. Defense counsel makes a Batson challenge. How should the Prosecutor respond and how should the trial court rule?

Answer 149

The court should rule that proof that the State has used its challenges to remove all African-American persons makes a prima facie case of racial motivation. The burden therefore shifts to the State to explain its challenges on racially neutral grounds.

Prosecutor should therefore attempt to explain each challenge of African-American jurors on racially neutral grounds.

But D ultimately has the burden of proving racial motivation

If D succeeds in moving that the State exercised its challenges on racial grounds, the trial judge must do one of two things:
(a) dismiss the array and start jury selection over or (b) reinstate those jurors struck for racial reasons

Question 150

What is the order of proceeding in a Texas felony trial?

10 steps

Answer 150

1. Judge calls for and parties give announcements of ready
2. Prosecutor reads the indictment
3. Defense counsel enters a plea for the defendant
4. Prosecutor makes State’s opening statements
5. Prosecution presents State’s case in chief
6. Defense counsel makes defense opening statement
7. Defense presents evidence
8. Rebuttal evidence is presented
9. The judge reads the charge to the jury
10. Counsel make final arguments to the jury

Question 151

After the jury is seated and the indictment is read, the prosecutor makes an opening statement. When the prosecutor has concluded, the judge asks defense counsel if she wishes to make an opening statement. She tells the judge she will make her statement after the State has rested its case-in-chief. The judge tells her that if she wishes to make an opening statement, she must do so immediately or waive the right to do so. Is the judge’s ruling correct?

Answer 151

The ruling is not correct. The defense has the right on request to make the opening statements after the State’s opening statement. But the defense cannot be required to do this. Defense counsel is entitled to proceed under the general rule: her opening statement is to be made after the State rests its case in chief

Question 152

During the State’s case-in-chief, the following exchange occurs:

Prosecutor: “Your honor, the State of Texas calls D. Only he can tell us what really happened.”

Defense: “Objection. The prosecutor knows full well that she cannot call the defendant to testify.”

Prosecutor: “But your honor, D voluntarily testified before this court at the pretrial hearing on the voluntariness of his confession.”

How should the judge rule?

Answer 152

Sustain the objection, because D has a privilege to avoid being called as a state witness.

Question 153

The State presents its case-in-chief and rests. Counsel for D thinks the State has failed to show D guilt beyond a reasonable doubt. What procedural steps, if any, should counsel take before beginning presentation of the defense case, and should counsel do this within the hearing of the jury?

Answer 153

Counsel should make a motion for a directed verdict of not guilty. This asks the judge to hold that no reasonable jury could find, on the basis of the State’s case-in-chief, that all elements of the crime have even proved beyond a reasonable doubt.

Since this presents an issue for the judge rather than the jury, the motion should not be made within the hearing of the jury.

Question 154

The State’s first witness is D’s murder trial is the arresting officer:

Prosecutor: “After D’s arrest, did you speak with any of his neighbors about any problems over at D’s house?”

Witness: “You bet. They told me they had heard D bragging about the pistol he had just bought. They said that one time they heard him say…”

Defense: “Objection”

Court: “State the basis for your objection counsel.”

What should be the evidentiary basis for the objection and how should the court rule?

Answer 154

The objection should be that he question calls for inadmissible hearsay. The objection should be sustained because the neighbors would be the out-of-court declarants and thus the answer would be hearsay even tho D is a party opponent.

Question 155

At a bench conference, Prosecutor informs the court that she intends to introduce a confession by Robert Kelly that he and D planned and carried out the attack on Victim. Defense counsel is aware that Mr. Kelly will invoke his 5th amendment privilege if called as a witness. What objections or request, if any, should defense counsel make with regard tot he admission of Mr. Kelly’s confession into evidence?

Answer 155

Counsel should object that since the defense cannot cross-examine Mr. Kelly, introducing the confession would violate D’s 6th amendment right to confront witnesses against him.

If that is unsuccessful, counsel should ask that any reference to D as Mr. Kelly’s partner in crime be redacted from the confession before it is introduced.

Question 156

The hearsay exception for statements against interest means what?

Answer 156

A statement is admissible if it is shown to have been made against the declarant’s penal interest.

Question 157

A statement is admissible as against “penal” interest if what?

Answer 157

1. The statement is shown to have been incriminating regarding declarant;
2. A reasonable person would not have made it unless she believed it to be true; and
3. (in criminal trials) there are corroborating circumstances that clearly indicate the trustworthy of the statement.

Question 158

Is a hearsay statement against interest admissible whether or not the out-of-court declarant is unavailable?

Answer 158

Yes

Question 159

The defense calls for Detective Matt to testify that he arrested C, D’s alleged co-conspirator, and during questioning C said that he, acting alone, committed the crime against Victim. The State objects that this is hearsay. What argument in response might D make?

Answer 159

This is a statement against penal interest, admissible if corroborating circumstances indicate its trustworthiness

Question 160

What do you need to show to lay the predicate to introduce business records?

Answer 160

1. The records were kept in the regular course of business;
2. It was the regular course of business for a person with knowledge of the matter to make such records or transfer information for inclusion in the records;
3. Entries in the records were made at or near the time of the events; and
4. The witness is the custodian of the records.

Question 161

If the witness is unavailable to authentic business records, how else can they be authenticated?

Answer 161

1. Obtain an affidavit of the person in charge of the records containing all the elements a witness would have to show to authentic the records
2. File the affidavit with the records attached with the court at least 14 days before trial starts; and
3. Gives the defense notice of the filing at least 14 days before trial.

Question 162

When can the State prove the defendant’s bad character?

Answer 162

1. If accused “puts his character in issue” by exercising his right to introduce evidence of good character; and
2. At punishment stage of the trial

Question 163

Character witness may give what two kinds of testimony?

Answer 163

1. opinion

2. reputation

Question 164

What do you have to show to lay the foundation for character evidence?

Answer 164

Opinion: The witness has personally familiar with the person

Reputation: The witness participated in discussions.

Question 165

What is an extraneous offense?

Answer 165

A crime of which the accused cannot be convicted in this trial

Question 166

Extraneous offense evidence may be admissible as relevant to what?

MIMIC

Answer 166

Motive

Intent

Mistake of accident

Identity

Common scheme or plan

Question 167

At a bench conference, Prosecutor informed the court and defense counsel that the next State witness (W) will testify that two weeks before the attack on Victim, D attacked W in the same distinct way D attacked V. Prosecutor adds that D’s attack on a helpless victim in the past shows that he attacked Victim in this case. What objection should defense counsel make to this testimony and how should the court rule on it?

Answer 167

Defense counsel should object that this testimony impermissibly shows an extraneous offense committed by the defendant. It is being offered only to show guilt by proof of bad character. The trial court should sustain the objection.

Question 168

At a bench conference, Prosecutor informed the court and defense counsel that the next State witness (W) will testify that two weeks before the attack on Victim, D attacked W in the same distinct way D attacked V. Prosecutor adds that D’s attack on a helpless victim in the past shows that he attacked Victim in this case. Defense counsel has introduced testimony by an alibi witness that at the time of the attack on V, the witness and D were in a different state attending a needlepoint convention. Defense files an objection to W testifying, how should the court rule?

Answer 168

The evidence tends to show an extraneous offense. But by introducing the alibi testimony, D has put identity into issue. This makes admissible evidence that he committed other quite similar offenses, unless the probative value is substantially outweighed by the risk of unfair prejudice.

Here, the extraneous offense is quite similar to the charged offense. While the trial judge has considerable discretion, the judge should find the evidence admissible.

Question 169

One month prior to trial, defense counsel makes a written request upon the State to provide the defense with any “404(b) crimes, wrongs, or acts” which they intend to introduce. The State refuses the request. What obligation, if any, does the State have to provide the defense with such notice?

Answer 169

Since the defense has made timely request, the State must provide reasonable notice in advance of trial of its intent to introduce such evidence during the State’s case-in-chief. But no such notice is required concerning crimes, wrongs, or acts arising in the same transaction as the charged offense.

Question 170

If one party introduces all or part of a writing or recorded statement, the other party is entitled to introduce what?

Answer 170

Any other part of that writing or recorded statement; or

Any other writing or recording statement

Question 171

At D’s trial, the State calls as a witness a co-worker of D, who testifies D sent her a letter which contains potentially damaging admissions regarding the attack on V. The State offers this letter into evidence. But D also sent the witness a second letter which recanted the first letter. Should defense counsel wish to do so, when and under what authority can counsel offer the second letter before the jury?

Answer 171

Counsel can offer the second letter under the authority of Rule 106 regarding writings. It is another writing which should in fairness be considered by the jury at the same time as the first letter to avoid an inaccurate interpretation of the first letter. Counsel can offer the second letter at the same time as the State offers the first letter.

Question 172

At D’s trial, the State introduces the testimony of D’s neighbor, N, that D admitted to him that he had threatened Victim. Cross-examination includes the follow:

Defense: “Isn’t it true that there has long been bad blood between you and D? Didn’t you call the police on him once and charge him with trespass?”

N: “Yeah that happened.”

On redirect, the following occurs:

Prosecutor: “Isn’t it true that you dislike D because he brutally raped your sister back in 1989?

Defense: “Objection. The answer would show an extraneous offense.”

On what basis might the prosecutor respond to the objection?

Answer 172

The defense, by its questions on cross-examination, “opened up” the subject of N’s attitude towards D and the basis for that attitude. Therefore, under the rule of optional completeness, the State is entitled to introduce otherwise inadmissible testimony to she “the rest of the subject.”

Question 173

As its final witness in D’s assault case, the State calls Doctor. The following exchanged occurs:

Prosecutor: “Doctor, do you know D?

Doctor: “Yes. I treated him for several months.”

Prosecutor: “During the treatment, did he discuss his violent temper with you?”

Defense: “Objection, your honor. Privilege.”

How should the court rule on the privilege objection?

Answer 173

Overrule the objection. The Physician-Patient privilege does not apply in criminal litigation.

Question 174

The calls a witness who says she was D’s licensed drug treatment counselor when D voluntarily came to the Addict’s Center for treatment. The prosecutor asks the witness whether D ever told her that he planned to harm Victim. Does D have any basis for objecting and, if so, how should the court rule?

Answer 174

D should object that the answer would reveal a statement by a person being voluntarily treated for alcohol or drug abuse to a person involved in the treatment. The court should sustain the objection.

Question 175

D is charged with assault against V. Defense counsel’s investigator locates G, who says she saw the interaction between D and V and that D made no threat. What procedural steps, if any, can defense counsel take to ensure that G appears at trial to testify as a witness?

Answer 175

Before trial, counsel can get a subpoena issued directing G to appear on the day of trial.

To apply for a subpoena, the defendant must state: (1) the name of the witness, (2) the location and vocation of the witness, and (3) that the witness’s testimony is material to the defense’s case.

During trial, counsel can get an attachment for G directing an officer to bring her into court, if G was properly subpoenaed and she did not appear as directed.

Question 176

State calls a five-year old boy to testify, D objects due to lacking competency. The judge sends the jury out of the courtroom. What inquiry must the court make to ensure that the boy is competent, and should the inquiry occur on or off the record?

Answer 176

A child witness should be examined by the judge, to determine whether the child has sufficient intellect to relate transactions regarding which he will be asked to testify.

This should be on the record, to preserve any possible error for appeal.

Question 177

Counsel for D has obtained a subpoena for a witness who lives in Amarillo, 740 miles away from the trial location. Although properly served, the witness refuses to show up claiming she is exempt by virtue of the fact that she resides more than 150 miles from the county of prosecution. Is the summoned witness obligated to honor the subpoena and appear as directed?

Answer 177

Yes, because in a criminal case a subpoena is good statewide.

Question 178

At trial, the State calls W to testify that he and D committed the crime. On examination, defense counsel asks W whether or not he entered into an agreement with the State under which he would testify against D and the State would give him immunity from prosecution. The prosecutor objects that this line of questioning is irrelevant. How should the court rule on this objection?

Answer 178

The court should overrule the objection. If there is in fact such an agreement, this shows a motive for the witness to falsify and thus bias or interest. Inquiry into any such agreement is thus proper cross-examination.

Question 179

Suppose at trial D takes the witness stand and testifies to his actions on the day of the attack on Victim. He testifies he arose at 7am and went directly to work. He asserts he never encountered Victim during that day. On cross-examination, the following takes place:

Prosecutor: “Isn’t it true that at 7:20 that morning, on your way to work, you stopped at Wilma’s place for a quickie?”

D: “No. I’m happily married.”

Later, during rebuttal evidence, the prosecutor offers the testimony of Wilma that on that morning D did stop at home for a quickie. The defense objects that this is improper impeachment with extrinsic evidence on a collateral matter. How should the court rule?

Answer 179

Sustain the objection, as this improper extrinsic evidence of a collateral matter.

Rule: A party can contradict a witness’s testimony with extrinsic evidence but only if the matter is one the party would be able to prove as part of the party’s own case.

Question 180

How long until a conviction becomes too moot?

Answer 180

10 years

Question 181

Crimes not of moral turpitude that you think would be

Answer 181

DWI

Possession of marijuana

unlawfully carrying a weapon

Violating a liquor law license

Assault

Question 182

Crimes of moral turpitude

Answer 182

Theft

Perjury

Making false police report

Aggravated assault

Forgery

Question 183

At trial, D takes the stand during the defense case and testifies that he pulled his shank on Victim only in self-defense. On cross-examination:

Prosecutor: “Isn’t it true you’ve wanted long wanted to kill V?”

D: “No of course not, I don’t want no trouble. I’ve never been in any trouble with the law ever.”

Prosecutor: “Isn’t it true that you’ve been arrested for public lewdness?”

The defense objects. How should the trial court rule?

Answer 183

Overrule the objection, because the prosecutor is properly correcting an erroneous impression created by the witness;s non-responsive answer.

Question 184

Otherwise improper cross-examination is permitted if what?

Answer 184

Necessary to correct misleading impression created by a witness’s unresponsive answer.

Question 185

The State calls a police officer to the stand:

Prosecution: “What, if anything, did D’s neighbors tell you about D?”

Defense: “Objection, hearsay.”

Judge: “Sustained. But why are you interrupting us again, Counsel? This jury disentitled to know the truth about your client.”

What objection, if any, should defense counsel make regarding the foregoing comment by the judge?

Answer 185

Defense counsel should object that the judge has commented on the evidence and the merits of the case.

Question 186

In making trial rulings, the judge must not what?

Answer 186

1. Comment on the weight of the evidence

2. Convey to the jury the judge’s opinion of the merits.

Question 187

What is “The Rule”

Answer 187

Upon request of either party witnesses must be excluded from the courtroom except during their own testimony.

Court should swear them in and order them not to discuss the case.

Question 188

What happens if a witness violates “The Rule”?

Answer 188

The court may hold the witness in contempt and/or exclude the testimony of the witness.

Question 189

Are expert witnesses subject to “The Rule”?

Answer 189

No because their presence is shown to be essential to the presentation of a party’s case.

Question 190

Are victim’s that testify subject to “The Rule”?

Answer 190

No unless the trial court finds that the testimony would be “materially affected” by hearing other testimony

Question 191

Generally, an expert witness may testify to an opinion without first disclosing what?

Answer 191

Facts or data on which that opinion is based.

Question 192

In criminal cases, a party against whom expert testimony is offered has a right, upon request, to what?

Answer 192

To voir dire the expert on the facts or data upon which the testimony will be based before the witness testifies to the opinion.

It’s discretionary in civil cases

Question 193

D offers as a defense witness Professor Dickweed, who claims to be an expert concerning unreliability of eyewitness identification. The prosecutor objects that the testimony is neither relevant nor reliable under TX Rule of Evidence 702. List 5 factors the court should consider in determining the admissibility of this scientific evidence.

(7 listed)

Answer 193

1. Acceptance of the underlying scientific theory and technique as valid by the scientific community
2. Whether scientific literature supports or rejects the theory and technique
3. The potential error rate of technique
4. The qualifications of the expert offered to testify
5. Availability of other experts to test and evaluate the technique
6. The clarity with which the theory and technique can be explained in court
7. Experience and skill of person who applied the technique in this case

Question 194

The prosecution moves to conduct a voir dire of D’s expert witness before the jury hears from the witness. Should the court grant the request?

Answer 194

Yes. In a criminal case, a party has a right to conduct a voir dire examination of an expert’s facts and basis for opinion

Question 195

During trial, the State calls W, who testifies to having observed the crime. At the end of Wolfe’s direct examination, the following occurs:

Court: Defense counsel, you may proceed.

Defense: “You Honor, the defense now moves for the production of the witness’s statement for use during cross-examination.”

Prosecutor: “ We object. First the request is untimely. Counsel should have asked for the statement at pre-trail. Secondly, this is our work-product. We refuse to produce the statement.”

How should the court rule on each stated ground?

Answer 195

Timeliness: court should overrule because the statement was not available pre-trial.

Work-Product: overrule because work-product does not apply to witness statements demanded at trial.

Question 196

Defense request production of witness statements. What sanctions may the court impose if Prosecutor refuses to produce the statement?

Answer 196

The court shall order that the direct testimony of the witness be struck from the record.

It may also dismiss the prosecution if it determines that the interests of justice require this.

Question 197

General rule: A photograph is admissible a witness would be permitted to what?

Answer 197

Give a verbal description of what the photo shows

Question 198

Authentication of a photograph generally requires that a “sponsoring” witness testify that what?

Answer 198

1. The witness saw the matter shown in the photo

2. The photo accurately depicts what the witness knows the matter looked like

Question 199

D is arrested for shooting V causing serious bodily injury. At trial, the State offers and properly authenticates a color photograph of V’s wound as it appeared when he came to the hospital emergency room for treatment. What objection might defense counsel make, and how should the judge rule on it?

Answer 199

D’s counsel could object on the ground that the probative value of the evidence is substantially exceeded by the risk of unfair prejudice from its use. (Rule 403 objection) The trial judge has discretion in ruling on this. She should overrule the objection.

Question 200

What is the illegally obtained evidence exclusionary rule in Texas?

Answer 200

Evidence may not be admitted against the accused at trial if it was obtained by an officer or other person in violation of:

1. The Constitution of the United States
2. The laws of the US
3. The Constitution of TX
4. The law of TX

Question 201

What is the “Good Faith” exception to the Texas illegally obtained evidence exclusionary rule?

Answer 201

Illegally obtained evidence is admissible if it was obtained by an officer (a) acting in objective good faith reliance on a warrant; and (b) this was issue by disinterested magistrate based on probative cause.

Question 202

D’s attorney believes that the search by which police obtained the drugs that the State will offer at trial was illegal. The drugs were obtained in a search of D incident to an arrest, which the arresting officer maintains was based on a tip from a reliable informant. Defense counsel has identified and interviewed the informant and he denies giving the officer any information regarding D. Pre-trial, D made a motion to suppress the evidence, and the judge held a hearing and denied the motion. Is the any way that D can get to the jury on the legality of the arrest and search?

Answer 202

Yes. D can get to the jury if he can raise a contested question of fact before the jury concerning the legality of the manner in which the drugs were obtained. Here, he can do this by calling the informant to testify contrary to the officer’s testimony that the officer received a tip.

Question 203

D’s attorney believes that the search by which police obtained the drugs that the State will offer at trial was illegal. The drugs were obtained in a search of D incident to an arrest, which the arresting officer maintains was based on a tip from a reliable informant. Defense counsel has identified and interviewed the informant and he denies giving the officer any information regarding D. Pre-trial, D made a motion to suppress the evidence, and the judge held a hearing and denied the motion. D gets the question to the jury. What should the jury be told by the judge in the instructions?

Answer 203

The jury should be told to consider whether the evidence was illegally obtained. It should be further told that it should disregard the evidence unless it finds the State proves beyond a reasonable doubt that the evidence was illegally obtained.

Question 204

In a jury charge, what is the judge not supposed to do?

Answer 204

1. Summarize the evidence

2. Comment on the evidence

Question 205

Must a judge read the jury instruction in court?

Answer 205

Yes

Question 206

When is the jury given instruction?

Answer 206

Before the parties make final arguments

Question 207

Is the jury also given a written copy of the jury instructions?

Answer 207

Yes

Question 208

How can an error in a jury instruction be preserved?

Answer 208

1. An objection

2. A request for a special instruction containing the correct law

Question 209

After both sides have rested and closed, the court directs that any requested special charges and objections be heard. Defense counsel decides to make her requests and objections orally. List two of the three conditions that must be met in order for counsel to make these requests and objections orally, and state whether counsel must later reduce them to writing.

Answer 209

An oral objection or request is sufficient if:

1. It is dedicated to the court reporter
2. In the presence of the judge and the prosecutor
3. This is done before the final charge is read to the jury

If these requirements are met counsel is no longer required to reduce them to writing.

Question 210

Objections and requests for charges must be what?

Answer 210

In writing

but this can be accomplished by dictation to the court reporter

Question 211

Remember to look at page 70 of lecture

Answer 211

*

Question 212

The judge is D’s case gives her proposed jury charge to both sides. D notes that under the Penal Code, the defendant must act knowingly or intentionally. Thus the proposed jury charge is incorrect in permitting conviction on proof the defendant acted “maliciously.” May defense counsel withhold any objection to this and raise it for the first time on appeal as error.

Answer 212

Probably yes. Unobjected to error in the jury charge is “fundamental” and can be raised on appeal for the first time, but only if it resulted in “egregious” harm to the defendant, that is, denied the defendant a fair trial. This error permitted conviction on less than facts required by the Penal Code. It most likely is fundamental.

Question 213

Must the court include a definition of “reasonable doubt” in the jury charge?

Answer 213

Yes, because juries need an explanation of the term to assure conviction only proof beyond a reasonable doubt.

Question 214

Is the defendant entitled to a jury instruction on the defendant’s failure to testify. If so, what instruction should be given?

Answer 214

Yes. The instruction should tell the jury that a defendant has a right to not testify and his failure to testify should not be taken as a circumstance against him. It should make clear to the jury that it should draw no adverse inference against the defendant from his failure to testify.

Question 215

Must the elements of a crime be pleaded?

Answer 215

Yes

Question 216

When is the jury instructed on elements of the crime?

Answer 216

Always

Question 217

Severity of burden of proof for proving elements of a crime?

Answer 217

Beyond a reasonable doubt

Question 218

Severity of burden of proof for proving an affirmative defense?

Answer 218

Preponderance of the evidence.

Question 219

Suppose trial is held and D wants to have the jury instructed concerning her contention that the library in which she smoked did not have adequate notice that smoking was prohibited. On what basis should the trial judge decide whether to instruct the jury on this?

Answer 219

An instruction should be given only if D presents evidence that an adequate notice was not adequately displayed.

Question 220

Counsel is not permitted to do what?

Answer 220

1. Comment on D’s invocation of self-incrimination rights
2. Express personal opinions
3. Argue what the community demands
4. Strike at D over the shoulder of defense counsel

Question 221

How is the order of argument and number of arguments regulated in Texas criminal cases? Can the judge permit defense counsel to argue last?

Answer 221

Order of arguments is regulated by the judge. In a felony case, the arguments may never be restricted to a number of addresses less than 2 on each side. But the State must have the right to argue last.

Question 222

During final arguments, the prosecutor says, “Don’t be fooled by the tricks of defense counsel. Counsel is just trying to blind you to the truth with a big smoke screen and some fun house mirrors. Can D properly object to this, and if so, on what basis might objection be made?

Answer 222

D can properly object. This is striking at the defendant over the shoulder of defense counsel. The argument accuses defense counsel of misconduct. This goes beyond permissible argument.

Question 223

During final arguments, the prosecutor says, “Do you think I would risk my career and put on witnesses I didn’t think were telling the truth? I’ve never seen anyone more honest than our witnesses in this case. Can D object and if so on what grounds?

Answer 223

D can properly object. A prosecutor cannot express a personal opinion as to matters at issue. That is what is done here. This goes beyond permissible argument.

Question 224

During final arguments, the prosecutor says, “Members of the jury, it is clear that the good and law-abiding folks of this county are counting on you. They D convicted. You need to respect their desires and return a verdict of guilty. Can D object and if so on what grounds?

Answer 224

D can properly object. The prosecutor cannot argue that he community demands a particular outcome in a case. This goes beyond permissible argument, because it goes beyond what is or could be in evidence.

Question 225

During final arguments, the prosecutor says, “You have all read about situations like this in the newspaper. You probably said, “Why doesn’t someone do something.” Well, now you are someone and you can do something about it.” Can D object and if so on what grounds?

Answer 225

D cannot properly object. This is simply an argument that the jurors should do their duty. It is a permissible “plea for law enforcement.”

Question 226

During final arguments, the prosecutor says, “I’ll point out another thing. Even the judge didn’t believe D’s evidence. You saw how often she sustained my objections.” Can D object and if so on what grounds?

Answer 226

D can properly object. The judge’s rulings are not evidence, and this argument goes beyond the evidence.

Question 227

When told to call her next witness, the prosecutor says, “Your honor, the State calls D to the stand.” On what basis should defense counsel object and how should the court rule?

Answer 227

The prosector’s action calls the jury’s attention to D’s refusal to testify. Thus it is an impermissible burden on the exercise of that right. The objection should be sustained.

Question 228

Can a defendant be convicted on the testimony of an accomplice witness?

Answer 228

Yes, but only if there is corroborating evidence that tends to connect the defendant to the crime.

Question 229

What is an accomplice witness?

Answer 229

A witness who could be charged of the crime charged.

Question 230

What is the Corpus Delicti Rule?

Answer 230

A defendant cannot be convicted on an out-of-court confession unless there is corroborating evidence tending to show a crime was in fact committed.

Question 231

What is the Sexual Assault Victim Rule?

Answer 231

A defendant cannot be convicted on the testimony of a sexual assault victim without corroborating evidence connecting the defendant to the offense unless:

1. The victim told someone else than D about the offense within one year of its commission;
2. The victim was under 18 at the time of the crime.
3. The victim was impaired, that is, unable to satisfy her need for food, shelter, care and protection; or
4. The victim was 65 years or older

Question 232

What is the “Jailhouse Snitch” Rule?

Answer 232

A conviction cannot rest on the testimony of a person to whom the defendant made a confession to while that person was confined in jail with the defendant. The testimony of such a person must be corroborated by testimony tending to connective defendant to the offense.

Question 233

At D’s trial, the prosecution’s case rests primarily upon the testimony of Homer because Victim cannot identify his assailant. Homer testifies that he and D planned the assault, that he procured the weapon from Company and give it to D, and he watched while D threatened Victim with the weapon. Company’s proprietor, Mr. Trump, testifies that in fact Homer came in and purchased the weapon. Can D be convicted?

Answer 233

No. Homer is an accomplice witness, because he could himself be convicted of the crime charged. Therefore, his testimony must be corroborated. Trump’s testimony does not tend to connect D to the assault on Victim so D cannot be convicted.

Question 234

At D’s trial, Victim testifies that somebody poked a pistol in his back and threatened to shoot him. But he could not see the person. The only other evidence produced by the prosecution is the testimony of a police officer that D signed a written confession to the assault on Victim and of course, that written statement. Can D be convicted?

Answer 234

Since the prosecution is relying heavily on D’s out-of-court confession, it must produce some other evidence of the corpus delicti. Victim’s testimony is sufficient because it tends to show a crime was committed, and D can be convicted.

Question 235

Walter is being prosecuted for selling meth. The State relies almost exclusively upon the testimony of Mr. Ratt, a career informant who testifies that D sought him out and forced him to buy a ten gallon bucket of meth. A chemist testified that the bucket was in fact full of meth. Can D be convicted?

Answer 235

D cannot be convicted. This is a drug prosecution in which the prosecution relies upon an informant who acted covertly for law enforcement. Therefore the prosecution must introduce corroborating information that tends to connect D to the crime.

Question 236

After closing argument and about an hour into jury deliberations, the jurors disagree about whether a witness - W - testified to seeing a weapon in D’s hand or not. What can the jury do, if anything, to find out what W said?

Answer 236

If the jury disagrees about a witness’s statement, the jury may request of the judge that the court reporter read the relevant testimony to them from his or her notes. If the court reporter is not able to read his or her notes, the jury can request that W be brought back to to the stand to repeat the relevant partition of her testimony.

Question 237

Defense counsel is able to negotiate a plea bargain with the Prosecutor under which D will only spend a few years in prison. Is the court required to impose that sentence?

Answer 237

No. The court is not required to follow the plea agreement. If the court refuses to impose the sentence recommended by the prosecutor, the court must allow D to withdraw his guilty plea.

Question 238

Decides to go to trial and is convicted of a felony. Describe two situations in which the judge is not required to direct a probation officer to prepare a pre sentence report in a felony case.

4 are listed

Answer 238

1. The punishment is assessed by a jury.
2. The only available punishment is imprisonment
3. The judge is informed that a plea bargain exists under which the defendant agrees to imprisonment and the judge follows the agreement.
4. The defendant is convicted of capital murder

Question 239

Defense counsel learns that at the sentencing phase of the trial, Prosecutor will offer evidence that D, after the assault on V, committed a bank robbery using the same gun he used to threaten V. D has not been charged with or convicted of that robbery. Is evidence that D committed the bank robbery admissible in evidence in the sentencing phase of the trial?

Answer 239

Yes, because extraneous bad acts are admissible at punishment whether or not they resulted in convictions.

Question 240

While preparing for trial, D’s attorney hears rumors about the bank robbery. She becomes concerned that at sentencing the prosecution will surprise her with testimony about that robbery. What, if anything, can she do to prevent such a surprise?

Answer 240

She can make a pretrial request for notice of intent to offer “bad act” evidence at punishment. If the defense makes this request, the State must provide notice of intent to introduce evidence of prior crimes or bad acts, even if those did not result in convictions. This notice must specify with regard to each crime or bad act:

1. The date on which it occurred;
2. The county in which it occurred; and
3. The name of the victim

Question 241

Defense can request what two kinds of notice?

Answer 241

1. Extraneous offense of notice (at guilt-innocence); and

2. Notice of extraneous offenses (at punishment).

Question 242

D informs you that he is willing to plead guilty but wants the jury to assess punishment. Does the the Code allow a jury to assess punishment when a defendant enters a guilty plea?

Answer 242

Yes. The Code allows a defendant to plead guilty but still elect a jury to assess punishment.

Question 243

D has been convicted a crime. Pre-trial, he filed an election for jury sentencing. The jury finds D guilty of the crime after less than 20 minutes of deliberation. In light of swiftness of the verdict on guilt-innocence, D decides he would prefer to have the judge assess punishment. The prosecutor objects. May D change his election at this stage of the trial?

Answer 243

No. A defendant may change an election regarding assessment of punishment after the finding of guilt. BUT the prosecutor must consent. So, given the prosecutor’s objection, D cannot change his election.

Question 244

D’s trial proceeds to the sentencing phase and the jury is to assess punishment. Defense counsel is afraid that the jury will have an unrealistic picture of “good conduct time” and parole. What can D have the jury told about its ability to consider good time and parole?

Answer 244

If the defendant is sentenced to imprisonment, the time served may be reduced by good time and he may be released on parole.

If he is sentenced to imprisonment, the defendant will be eligible for parole when [actual time served plus good time equals 1/4 of the sentence imposed]

You may consider “the existence” of parole law and good conduct time. But you are not to consider either:

(a) the extent to which good time may be awarded to this defendant; or
(b) how parole law may be applied in this case

Question 245

During the penalty stage of the trial, the prosecutor recalls that she was not successful during the guilt stage in calling D as a State witness. She tries again at this stage, and defense counsel objects again. Would the trial court’s ruling be any different than it was at the guilt-innocence stage of the trial?

Answer 245

It would be the same. The privilege against self-incrimination applies at the punishment stage.

Question 246

Suppose at guilt-innocence, D offers no evidence and is convicted. Then, during the penalty phase of the trial, the State offers testimony of D’s neighbor that in his opinion D is a violent and dangerous person. The defense objects that this is improper evidence of bad character. How should the judge rule?

Answer 246

Overrule the objection because at he penalty stage of the trial the defendant’s character is automatically at issue.

Question 247

Suppose the jury convicts D as charged. In an effort to keep the sentence to a minimum, D takes the stand at the punishment hearing, admits that he committed the assault, and says that he is “real sorry.” The jury nevertheless gives the maximum sentence. D seeks to appeal the verdict and sentence. Does his testimony prevent him from winning on appeal?

Answer 247

No. There error were committed and got a conviction and serious sentence.

Question 248

At the punishment phase of D’s trial, the jury deliberates for two days and sends a note to the judge stating it is hopelessly deadlocked. The court rules: “I am declaring a mistrial in this case. Since the jury has agreed on D’s guilt, that finding will be left undisturbed. A new jury panel will be summoned for tomorrow. At what time, we will commence a new hearing on punishment.”

Is the court’s decision correct? Why or why not?

Answer 248

Yes, because the legislature has now authorizes a mistrial on punishment only where the jury cannot reach a unanimous verdict on punishment.

Question 249

When can a judge declare a mistrial?

Answer 249

At punishment phase

Question 250

Suppose D had killed a clerk in the course of a robbery of a convenience store, the grand jury had charged capital murder, the State sought the death penalty, and D was convicted of capital murder. What would determine whether he receives the death sentence?

Answer 250

The jury will be given tow or three “special issues”:

1. Is there probability that the defendant will commit criminal acts of violence constituting a continuing threat?
2. Did the defendant:
   (a) actually personally cause the death of the victim;
   (b) intent to kill the victim; or
   (c) anticipate that a human life would be taken?
3. Are there sufficient mitigating circumstances to warrant life in prison rather than death?

Questions 1 and 3 are always submitted. Question 2 is submitted only if at the guilt stage of the trial the judge instructed the jury that it could convict the defendant as a party to a killing actually committed by someone else.

If the jury unanimously votes “yes” on questions 1 and 2 and “no” on question 3, the judge must impose death. Otherwise life imprisonment is imposed.

Question 251

A defendant is eligible for community supervision if what?

Answer 251

The punishment does not exceed 10 years of imprisonment.

Question 252

D is convicted of aggravated assault by the trial jury and he has elected jury sentencing. He wants to be placed on community supervision. Can he have the jury consider whether to recommend that he be placed on community supervision and, if so, what must he do to have the jury consider this?

Answer 252

Yes, the jury can be asked to consider recommending community supervisor if, after it assesses the punishment, the defendant is eligible, that is, the sentence assessed does not exceed 10 years. To have the jury consider such a recommendation, D must have filed pretrial for probation.

Question 253

List two or three requirements for a proper application for felony probation.

Answer 253

1. In writing
2. Sworn
3. States that the defendant has not been convicted of a felony.

Question 254

D admits to defense counsel he was convicted of a felony in Idaho under a different name. Can counsel file an application for probation on behalf of D?

Answer 254

No, because the sworn application must assert D has no prior final felony convictions in any jurisdiction.

Question 255

D is convicted of aggravated assault. At the prosecution’s request, the jury finds he used a deadly weapon during the commission of the offense. How does this affect whether D can get community supervision?

Answer 255

He can only get community supervision if the jury recommends it.

Question 256

Suppose the judge is unwilling to place D on “regular” community supervision, but offers him “shock” community supervision or probation. What would this involve?

Answer 256

This is a procedure under which a sentence of imprisonment is imposed and the defendant begins to serve it. Later, during the first 180 days of the term of imprisonment, the defendant is brought back to court. The sentence is then suspended and the defendant is place on community supervision.

Question 257

Deferred adjudication is what?

Answer 257

A procedure under which the trial court places the defendant on community supervision without actually finding the defendant guilty, because it defers a finding of guilt.

Question 258

A defendant is eligible for deferred adjudication if what?

Answer 258

The charge is an offense other than:

(1) DWI, FWI, BWI
(2) Intoxicated assault
(3) Intoxicated manslaughter

The defendant enters a plea of guilty or nolo contendere

Question 259

What are two ways in which deferred adjudication differs from probation?

3 listed

Answer 259

1. Defendant must be found guilt before probation can be imposed; deferred adjudication involved no such finding
2. Defendant can get regular probation after a plea of not guilty; deferred adjudication requires a plea of guilty or nolo contendere
3. If deferred adjudication probation is “revoked,” D can be given any sentence in statutory range; if regular probation is revoked, D gets sentence previously assessed.

Question 260

D is convicted of aggravated assault, the jury assessed punishment at 9 years imprisonment, and the judge inquires whether D has any reason why sentence should not be pronounced. What would he be able to raise that would prevent sentence from being pronounced?

Answer 260

Most likely, nothing. The only reasons why an assessed sentence is not to be pronounced are:

1. The defendant has received a pardon;
2. The defendant has become incompetent to continue the proceedings; or
3. The defendant is not the person convicted of the crime.

Question 261

After the jury convicts D and assesses his punishment at 9 years imprisonment, Victim demands to make a “victim’s statement” in open court. Should the court permit this and, if so, what procedures must the court follow in allowing him to make such a statement?

Answer 261

Yes it should permit this because a victim (or a relative of a deceased victim) has a right to make a statement to the court and the defendant. It must be permitted only after sentence has been pronounced.

The victim may not direct questions to the defendant during the statement.

The court reporter may not transcribe the statement.

If the case is resolved by a plea bargain, the victim must be notified about he existence and terms of the plea bargain.

Question 262

A motion for a new trial must be what?

Answer 262

1. Filed within 30 days of pronouncement of sentence; and

2. Presented to the court within 10 days of filing (but court can permit presentation within 75 days from sentencing).

Question 263

D has been formally sentenced to 9 years imprisonment, his mother calls defense counsel. She reports she has just located a witness who is willing to testify that he saw Victim get attacked and that the attacker clearly was not D. What procedural steps can defense counsel take to bring this information to the attention of the trial court and to attack D’s conviction? How long does defense counsel have to take this procedural step?

Answer 263

D should move for a new trial on the basis of newly discovered evidence. A new trial should be granted only if the new evidence is “material,” which means that:

1. it was unknown to D before trial;
2. failure to discover the evidence earlier was not due to D’s lack of diligence;
3. the evidence is competent and not merely collateral or impeaching; and
4. the evidence is so persuasive that it would probably cause a different result in a new trial.

Defense counsel must file motion within 30 days of sentencing and then present it to the court within 10 days of filing.

Question 264

After the trial, defense counsel decides to have her investigator interview the jurors regarding possible jury misconduct as a ground for a motion for new trial. However, the district clerk refuses to give defense counsel the jurors’ home addresses and home telephone numbers. What procedure, if any, is available to defense counsel to obtain the juror contact information?

Answer 264

Such personal information about jurors is confidential and may not be disclosed. The defense, as a party to the case, may apply to the court for disclosure. Disclosure is to be ordered only on a showing of good cause. Good cause requires a firm foundation for believing that misconduct occurred.

Question 265

D, sentenced to 9 years’ imprisonment, begins his appeal. The prosecutor wants to avoid having him at large while the appeal is pending. How should the prosecutor go about this?

Answer 265

The prosecutor should seek to have the trial court deny bail pending appeal on a finding that D will not appear or will commit additional crimes. But denial of bail pending appeal is not automatic because the punishment assessed is not 10 years.

Question 266

A convicted defendant is not eligible for appeal if what?

Answer 266

Punishment assessed is 10 years in prison or more.

Question 267

D is convicted of aggravated assault and sentenced to 9 years impriosnment. He tells defense counsel he wants to appeal. Defense counsel states orally and in open court that the defendant hereby appeal. Defense counsel states orally and in open court that the defendant hereby appeals the verdict and the grounds therefore. She files nothing in writing regarding the appeal and neglects to file a motion for new trial. Has defense counsel adequately preserved an appeal, and may she still file a motion for a new trial? If she may still file a motion for new trial, within what time period must she file it and may the court grant her an extension beyond that time?

Answer 267

Counsel has not “preserved” an appeal, because notice of appeal must be in writing.

Counsel may file a motion for new trial. It must be filed within 30 days of formal sentencing.

The trial court has no authority to extend the time for filing the motion.

Question 268

Slim Shady, D’s accomplice, reached a plea bargain with the prosecution. Pursuant to that bargain, Slim Shady pleaded guilty, the prosecution recommend a punishment often years’ imprisonment, and the trial court convicted Slim Shady and imposed a sentence of 10 years imprisonment. After reading D’s appellate brief, Slim Shady decides he should have fought the charges and therefore seeks to appeal his conviction. Will he be successful?

Answer 268

Probably not. It appears that the trial judge has not granted permission, and there is no indication that the appeal would be based on matters raised by pretrial written motion and ruled on pre-trial.

Question 269

A defendant who pleads guilty pursuant to a plea bargain and receives a sentence within that bargain can appeal only if what?

Answer 269

1. The trial judge grants permission; or

2. The appeal is based on matters raised by pretrial written motion and ruled on before trial.

Question 270

D begins an appeal and is denied bail pending appeal. Irritated, he saws through the bars of his prison cell and escapes as his attorney drafts the appellate brief.

(a) When the prosecutor discovers this, what action can the prosecutor take?
(b) Is there any way D may be entitled to have his appeal reinstated?

Answer 270

(a) The prosecutor should move to dismiss must be denied or a dismissed appeal reinstated only if the defendant returns to custody.
(b) Most likely no. The motion to dismiss must be denied or a dismissed appeal reinstated only if the defendant returns to custody: voluntarily and within 10 days of escape.

Question 271

D appeals his conviction to the Court of Appeals and that court affirms the conviction. What option(s) is/are open to him now?

Answer 271

He can file a Petition for Discretionary Review by the Court of Criminal Appeals. But he has no right to review by that court of the decision of the Court of Appeals. Whether to grant review is discretionary with the high court.

The PDR should be filed in the Court of Appeals, which will send the PDR and other documents in the case to the Court of Criminal Appeals.

D has no way to seek review from the Texas Supreme Court.

Question 272

D appeals his conviction to the Court of Appeals and that court reverses the conviction because it finds the trial judge committed error. Does the prosecutor have any recourse?

Answer 272

Yes. The prosecutor can file a Petition for Discretionary Review seeking review by the Court of Criminal Appeals.

Question 273

State may appeal pre-trial if the trial court does what?

Answer 273

1. Dismisses the indictment;
2. Grants a defense motion to suppress evidence before jeopardy attaches; or
3. Sustains a defendant’s claim of double jeopardy.

Question 274

State may appeal post-trial if the trial court does what?

Answer 274

1. Grants a defense motion for a new trial;
2. Grants a defense motion to arrest judgment; or
3. Imposes an “illegal” sentence

Question 275

D is indicted for aggravated assault on Victim. Bail is set at $500,000, an amount too high for him to pay. D therefore languishes in jail. Defense counsel filed a pretrial motion to suppress the gun taken from D’s police and the trial judge grants the motion before the jury is selected. The State immediately announces that it will “appeal the order and all the way to the Texas Court of Criminal Appeals.” Is the state entitled to pursue an interlocutory appeal in this instance? What requirements, if any, must be met by the State to do so?

Answer 275

Yes the State can take an appeal. The requirements the State must meet are:

1. Show jeopardy had not yet attached when order was entered;
2. The appeal must be taken within 20 days of the order; and
3. The State must certify that:
   (a) the evidence is of substantial importance in the case; and
   (b) the appeal is not taken for purposes of delay.

Question 276

At D’s assault trial, defense counsel calls a meter reader who witnessed the assault and asks whether, in his opinion, D was insane at the time he assaulted Victim. The prosecutor objects that this is inadmissible lay opinion testimony, and the trial judge sustains the objection. What must defense counsel do to preserve for appellate consideration any error in excluding the evidence?

Answer 276

Counsel must assure that the record shows the content of the excluded evidence. This is accomplished by making an offer of proof.

Question 277

To preserve error in excluding evidence counsel must make an offer of proof showing the substance of the evidence. This can be done how?

Answer 277

1. Counsel’s oral summary of the excluded evidence; or

2. “Question and Answer” form; AND getting a ruling excluding the evidence.

Question 278

At D’s aggravated assault trial, the prosecution offers the testimony of a health food store employee that in his opinion D was “as sane as anyone.” Defense counsel believes this is inadmissible. What must counsel do to preserve error in admitting the testimony?

Answer 278

Counsel must make an objection at the earliest possible time. This must state specifically the ground for regarding the testimony as inadmissible, and this must be the same ground relied upon during appeal. Finally, counsel must get a ruling from the judge.

Question 279

During closing argument at D’s trial, the prosecutor makes the following statement: “Ladies and gentleman of the jury, the law-abiding citizens are watching you. They demand a conviction and the harshest penalty.”

Assuming this argument is improper, what must defense counsel do to preserve error in such circumstances?

Answer 279

1. Immediately object that this was an improper argument; and
2. Make a motion for an instruction to the jury to disregard the argument; and
3. Make a motion for a mistrial, on the ground that the jury will not be able or inclined to follow the instruction.

Question 280

During her opening statement in D’s trial, the prosecutor told the jury the State would show that D threatened Victim “with a silver-plated” pistol. She immediately corrected herself, however, and told the jury evidence would should just that the gun was a .22 Ruger. At the charge conference, the judge inserted in the application paragraph that the jury should convict only if convinced the assault was made with a silver-plated weapon. This was wrong; the State did not have to prove that. D is convicted and appeals on the ground that the evidence is insufficient. What standard should the appellate court use to decide whether the evidence is sufficient?

Answer 280

A hypothetical jury charge correct for the case given the indictment’s allegations, but not including anything (like the plating of the weapon) erroneously inserted in the actual jury charge by the trial judge.

Question 281

A D’s trial, the State’s evidence showed D used a Luger. The application paragraph of the jury charge, however, tracked the indictment’s allegation of a Ruger and read:

“Now, if you find from the evince beyond a reasonable doubt that on or about the 1st day of May, 2002 in Duval County, Tx, the defendant, D, did intentionally or knowingly threaten Victim with imminent bodily injury by means of a .22 caliber Ruer pistol, and said .22 caliber Ruger pistol is a deadly weapon, then you will find the defendant guilty”

Defense counsel argued to the jury, “We knew all along the gun was a Luger. But the rules are rules. The prosecution called it a Ruger and they have to prove it was a Ruger.” The jury, however, convicted. D appealed on the good that the evidence was insufficient because of a variance, since the State’s evidence showed he committed the crime but by using a .22 caliber Luger pistol. How should the appellate court analyze whether this variance between the pleading and proof renders the evidence insufficient and requires acquittal?

Answer 281

The sufficieny of the evidence is to be measured against a hypothetically correct jury charge. The issue is whether this hypothetical charge should include the unproved allegation that the pistol was a Ruger.

Whether the allegation is to be included depends upon whether the variance between that allegation and the proof is “material”. If it is not, the allegation of Ruger should not be included in the hypothetical charge.

A variance is material if it caused the indictment to fail to sufficiently inform the defendant of the charges os as to enable the defendant to prepare a defense. Here, the record shows that despite the variance the defense knew the State would prove use of a Luger. Thus the variance is not material.

Thus the evidence of guilt is sufficient.

Question 282

At D’s trial, the prosecution introduces evidence that D “hated Victim’s guts.” Victim testifies that a masked intruder threatened him with a gun; he is certain the gun was a Ruer and says that he masked gunman “looked pretty much like D, although he seemed skinnier than D is.” The defense introduces the testimony of several nuns that the entire day of the attack on Victim, D was fixing the convent’s fountain. The nuns watched him the whole time, finding his dedication to his work spiritually uplifting. The jury convicts, and D appeals. What argument should D make based on what the defense perceives as the inadequacy of the prosecution’s evidence, and how should the court of appeals resolve that contention?

Answer 282

D should argue that the evidence is legally insufficient and thus he is entitled to an acquittal. In resolving this, the court of appeals will ask only whether, viewing the evidence most favorable to the State, a rational jury could have found all elements of the crime proved beyond a reasonable doubt. The evidence is probably sufficient.

Question 283

D, convicted of aggravated assault, appeals his conviction and establishes to the satisfaction of the court of appeals that the trial judge erred in trial. Suppose the error consisted of admitting the testimony of health food store employee that in his opinion D was “as sane as anyone,” and that this is non constitutional error. What argument might the prosecution make that the conviction should nevertheless be affirmed, and how should the court of appeals resolve the matter?

Answer 283

The prosecution can argue that the error is harmless. Since the error is non-constitutional, the court of appeals should disregard it, and affirm the conviction despite the error, if the error did not affect any substantial rights of the appellant. The prosecution can argue that the other evidence is so strong that the wrongfully admitted testimony did not affect the outcome of the trial.

Question 284

D, convicted of aggravated assault, appeals his conviction and establishes to the satisfaction of the court of appeals that the trial judge erred in trial. Suppose that the error consisted of admitting evidence seized from D in violation of his rights under the 4th amendment to the US Constitution. What argument might the prosecution make despite this constitutional error, the conviction should be affirmed? How should the court of appeals resolve the matter?

Answer 284

The prosecution can argue that the error, although constitutional, is harmless and the conviction should be affirmed. Since the error is constitutional, the court of appeals should disregard it and affirm the conviction only if the court determines beyond a reasonable doubt that the error did not contribute to the reasonable doubt that the error did not contribute to the conviction or the punishment.

Question 285

Post-conviction attacks on convictions are brought by applications for what?

Answer 285

Habeas corpus

Question 286

D appeals his conviction and it is affirmed. Counsel now wants to attack that conviction on other grounds. How is counsel to go about this?

Answer 286

1. Counsel should file an application for the writ of habeas corpus in the convicting district court.
2. If there are factual matters that need to be established, counsel should seek a hearing in that court and at the hearing, be prepared to prove the fats necessary to get relief.
3. The district judge will then compile a record, which may include findings and conclusions.
4. The record will be transmitted to the court of Criminal Appeals, which will determine whether D gets relief or not.

Question 287

Peace Bond Procedure

Answer 287

A magistrate may issue a peace bond against a named person upon a showing that the person seriously threatened or was about to commit an offense. The bond may require the person not to commit the offense and to keep the peace for a period not to exceed one year.

Question 288

What are the requisites of a search warrant?

Answer 288

The search warrant must name or describe, as nearly as may be possible, the person, place, or thing to be search. It also must identify, as nearly as may be possible the object of the search. Finally, the warrant must be dated and signed by the magistrate.

Question 289

Warrant based on affidavit

Answer 289

A search warrant may be issued only upon a sworn presentation of facts showing probable cause to believe that the items to be search for are in the premises to be searched.

Question 290

“Four Corners” Rule

Answer 290

In defending a search warrant, the state is limited to the facts set out in the written and sworn affidavit. It may not support the warrant by showing that additional information was given to the issuing magistrate and considered by the magistrate.

Question 291

Sealed Affidavit

Answer 291

An affidavit may be sealed for 30 days and one further 30-day extension. This may be done only if the state demonstrates that public disclosure would jeopardize the safety of a victim, witness, or confidential informant, or would cause destruction of evidence, or if the affidavit contains information from a wiretap still being conducted.

Question 292

Evidentiary search warrants

Answer 292

Search warrants may be issued for property or items constituting evidence of an offense or someone’s guilt.

Question 293

Time of execution of search warrant

Answer 293

General rule is the warrant must be executed within 3 days of its issuance. The time period does not, however, include the day of the warrant’s issuance or its execution.

DNA - 15 days

Stored customer data - 10 days

Question 294

Requirements for an arrest warrant

Answer 294

An arrest warrant must (i) specify the name of the person to be arrested, or if the person’s name is unknown, give a reasonably definite description of the person; (ii) state that the person is accused of a particular offense and give the person adequate notice of what that offense is; and (iii) be signed by the magistrate and give the office of that magistrate, either in the body of the warrant or in connection with the signature.

Question 295

Does the officer executing an arrest warrant need to have it in his possession at the time of the arrest?

Answer 295

No, but must inform person that a warrant has been issued, and upon request, must show the person the warrant as soon as possible.

Question 296

What is a complaint?

Answer 296

A complaint is a sworn statement that alleges that there is probable cause to believe someone committed a crime.

A criminal compliant has several requirements, including that it must be in writing, name the offense and date of the crime (if knowable), and specify the name or description of the accused.

Question 297

What warning must the magistrate give to the accused person before the examination of any witnesses at his examining trial?

Answer 297

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

Question 298

What is a personal bond?

Answer 298

A personal bond is the accused’s promise to pay the bond amount if the accused fails to comply with the terms of release. Does not require a surety.

Question 299

Who selects grand jurors?

Answer 299

Either (i) by grand jury commissioners appointed by the district judge; or (ii) in the same manner in which trial jurors are selected for civil cases. The prospective grand jurors are summoned to the district court, which tests their qualifications and then impanels twelve as a grand jury.

Question 300

What procedural steps must you take to allow the jury to sentence your client to probation and when must you make it?

Answer 300

Must file a sworn application for probation. Must file the application pretrial. It must be in writing, it must be sworn, and it must state the defendant has not been convicted of a felony.

Question 301

What three criteria must evidence derived from a scientific theory meet to be reliable?

Answer 301

1. the underlying scientific theory is valid
2. the technique applying the theory is valid
3. the technique was properly applied