Texas Criminal Procedure & Evidence

Question 1

What is the Writ of the Habeas Corpus?

Answer 1

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

Question 2

When is release on bail required if no probable cause determination by the magistrate?

Answer 2

1. Felonies after 48 Hours
2. Misdemeanors after 24 Hours
3. Magistrate can max it out at 72 Hours

Question 3

What are the factors used when determining if bail set was excessive?

Answer 3

LASSO

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 the community
5. Required bail is not to be an instrument of oppression

Question 4

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

Answer 4

D has the right to:

1. Be present
2. Be represented by counsel
3. Have the rules of evidence applied
4. Cross-examine State witnesses; and
5. Subpeona and present defense witnesses

Question 5

When is D entitled to an examining trial?

Answer 5

1. She is charged with a felony AND

2. an Indictment has not yet been returned

Question 6

What is proper probable cause based on?

Answer 6

May be based on:
1. Information from a citizen–bystander or victim
2. Personal knowledge by arresting officer or other officers
3. Hearsay from a RELIABLE informant
CANNOT be based solely on an anonymous tip

Question 7

If Probable Cause exists, what warrantless arrests are allowed?

Answer 7

1. Presence or view of officer
2. Suspicious places or circumstances
3. Violation of a protection order
4. Preventing consequences of theft
5. Presence or view of magistrate
6. Assaults
7. Fleeing felons
8. Fugitives from another state
9. Interfering with emergency phone calls
10. When suspect makes an admissible confession to a felony

Question 8

What are the requirements for a Texas Arrest Warrants

Answer 8

a. Written by magistrate, issued in name of “The State of Texas”
b. Name of offender or a reasonable description
c. Nature of offense “Murder”
d. Signed and dated by the magistrate
e. Office of magistrate state: “Judge, criminal district court number”

Question 9

At the initial appearance before the Magistrate what is D informed of?

Answer 9

1. Charges
2. Right to retain counsel
3. His Miranda rights
4. His right to an examining trial
5. If authorized by law, set bail

Question 10

What is the probable cause required for a Search Warrant?

Answer 10

1. What specific offense was committed
2. Property sought to constitutes evidence of that offense
3. That property sought is at the location to be searched.

Question 11

What must a warrant contain to be sufficient?

Answer 11

1. Runs in the name of “The State of Texas”
2. Identifies the ting to be seized and the property to be searched
3. Commands peace officer to conduct the search
4. Dated and signed by the magistrate

Question 12

What are two requirements for the execution of a search warrant?

Answer 12

1. Must be executed without delay, but in no event longer than three days after issuance
2. Copy of warrant must be given to the owner of the place to be searched or a copy left if the owner is not present

Question 13

What are the exceptions to the search warrant requirement?

Answer 13

1. Consensual Searches
2. Searches incident to lawful arrest
3. Automobile exception
4. Inventory searches
5. Exigent circumstances
6. Plain view exception
7. Border searches
8. Community caretaking function
9. Recovery of abandoned property
10. Terry Pat-downs

Question 14

What warnings will a subpoenaed suspect witness be given?

Answer 14

1. The 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 counsel
5. He has a right to have a lawyer outside the room
6. His testimony can be used against him

Question 15

What are the general statutory limitations for prosecution on crimes?

Answer 15

1. No limitation for murder
2. 7 years for Rape
3. Misdemeanors 2 years
4. Felonies 3 years
5. Theft, burglary, robbery, kidnapping 5 years

Question 16

What is included in an indictment?

Answer 16

Alleges only facts. It does not identify the crime by name or the statute creating the crime. Facts only
To Charge the Offense:
a. Facts constituting ALL elements must be alleged
b. Statutory language is usually sufficient
c. Any victim must be named
Must give D notice of Trial

Question 17

What statements or confessions are inadmissible?

Answer 17

1. Statement is VOLUNTARY
2. Direct violation of Miranda warnings
3. 6th Amendment right to counsel has been violated
4. Direct product of an illegal arrest
5. Unnecessary delay in bringing defendant before magistrate following arrest
6. Violation of Texas Confession Statute

Question 18

How is voluntariness of a confession initiated?

Answer 18

a. A motion to suppress initiates the process
b. The trial court must then hold a hearing outside the presence of the jury and make an independent finding of whether the statement of accused was voluntary.
c. Court enters an order stating their conclusions of law with specific findings of fact as to whether the confession is voluntary or involuntary
d. Conclusions of the court may not be made known to the jury
e. If the court finds the statement to be voluntary and the defense raises issue by positive evidenced adduced before the jury, the guilt/innocence charge must inform the jury that the confession is not admissible for any purpose unless the jury believes beyond a reasonable doubt that the statement was made voluntarily.

Question 19

Under what circumstances may a written statement from D be admitted?

Answer 19

1. D was given prior Miranda rights
2. The Defendant, prior to and during the making of the statement, knowingly, intelligently, and voluntarily waived his rights; and
3. The confession is either handwritten by the defendant or signed by the defendant

Question 20

When may an Oral statement by D be admitted?

Answer 20

1. Electronic recording was made
2. Proper Miranda warnings including his right to terminate at any time
3. Knowingly, intelligently, and voluntarily waived his Miranda rights
4. The recording device was capable of making an accurate recording, the operator was competent and the recording is accurate and not altered
5. All voices on the recording are identified
6. The defense attorney has been given an accurate and complete copy of all recordings at least 20 days prior to trial.

Question 21

When are unrecorded oral statements and confessions admissible?

Answer 21

1. Confession in open court or before a grand jury
2. Spontaneous statements by D
3. Oral confession is corroborated by other reliable evidence
4. Statement is not a product of custodial interrogation or
5. To impeach the credibility of D’s testimony

Question 22

Who may be present during a Grand Jury proceeding?

Answer 22

1. Prosecutor and her staff
2. Witnesses being examined
3. Grand jurors
4. Court reporter
5. Interpreter
6. Others, if allowed

Question 23

How many jurors must agree for an indictment?

Answer 23

9 out of 12

Question 24

When may D waive his right to be indicted for a felony offense if he is?

Answer 24

1. Represented by counsel
2. The waiver is in open court or by written instrument
3. Is voluntary
4. The state is not seeking the death penalty

Question 25

What is the General Rules for Pleadings?

Answer 25

1. D must object to any defect, error, or irregularity in the form or substance of an indictment or information BEFORE the date of trial. Otherwise the such objection is waived and may not be raised on appeal

Question 26

What are the Requisites of an Indictment?

Answer 26

1. Commences “in the name and by authority of the State of Texas”
2. That the indictment was presented in the district court of the county where the jury sits
3. That the indictment was acted upon by a grand jury in the proper county
4. Name of person indicated (or reasonable description)
5. Place of offense (venue)
6. Date of offense (must be before indictment and not barred by limitations)
7. Offense charged is in clear and plain language, including essential elements of offense and name of victim
8. The indictment must conclude “against the peace and dignity of the State and
9. Signed by foreperson of the grand jury

Question 27

What Items are subject to discovery?

Answer 27

1. Offense reports
2. Written/record witness statements
3. Photographs
4. Tangible items
5. Diagrams
6. Autopsy reports, including toxicology
7. Pretty much everything which is not privileged or work product.

Question 28

What constitutes Identifying Information

Answer 28

1. Addresses
2. Social security numbers
3. Driver’s license numbers
4. Bank account numbers, among others

Question 29

What is the deadline for filing motions prior to trial?

Answer 29

7 Days before pre-trial hearing

D must file motions no less than 10 days

Question 30

What is required through reciprocal discovery?

Answer 30

1. Provides for disclosure of the name and address of expert witnesses 20 days before trial
2. Provides for notice of intent to raise insanity defense 20 days prior to trial

Question 31

What are the prosecutor’s obligations under the Brady Rule?

Answer 31

1. P must disclose all favorable material evidence in her possession
2. Prosecutor must preserve and make available to defendant any favorable, material physical evidence that an accused cannot otherwise obtain and that may be material to his defense

Question 32

What is the standard for pleading incompetency?

Answer 32

1. Whether defendant has the present ability to consult with his lawyer with a reasonable degree of understanding
2. Whether defendant has a rational as well as factual understanding the proceedings against him.

Question 33

What rights are waived by a guilty plea?

Answer 33

1. Privilege against self-incrimination
2. Right to a jury trial
3. Right to confront an adverse witness
4. Right to call witnesses on his behalf
5. Right to be convicted by proof beyond a reasonable doubt.

Question 34

When accepting a guilty plea what must the court determine on the record?

Answer 34

1. The defendant is competent
2. The plea is voluntary
3. Defendant is knowingly waiving certain rights
4. Any recommendation is not binding on the court
5. Right to appeal may be restricted
6. Punishment range to the offense pled
7. Whether the court intends to follow the plea agreement
8. Deportation
9. Whether prosecutor has given notice of the plea bargain to victim
10. Ackowledgement by both parties of the disclosure and receipt of all documents provided by the state to the defenese

Question 35

What is a Batson Objection?

Answer 35

Must be made:

1. Before the jury is sworn and empaneled
2. A prima facie case of purposeful discrimination must then be shown by the proponent (objecting party)
3. Once Prima Facie case is shown, the burden shifts to the opponent to show racial-neutral reasons for the peremptory challenge
4. Finally, the burden shifts back to the proponent to rebut the opponent’s explanations if they can.

Question 36

What are the Daubert Test Factors?

Answer 36

1. Extent to which the theory is tested
2. Extent to which technique relies upon subjective interpretation
3. Whether theory subjected to peer review
4. Potential error rate
5. General acceptance of theory
6. Nonjudicial uses of theory

Question 37

What are the predicates that must be set for in an Affidavit for an authentication for Business Records?

Answer 37

1. Affiant is the custodian
2. Records kept in regular course of business
3. Notations made by employee with knowledge of the event recorded
4. Made at/near time of the event; and
5. The attached record is the original record or an exact duplicate

Question 38

What factors are considered when determining bail?

Answer 38

1. Large enough to reasonably ensure the presence of the defendant
2. Not excessive or an instrument of oppression or punishment
3. Type of crime
4. Financial Resources
5. Safety victim & Comm.

Question 39

What are the five exceptions to the Constitutional right to bail?

Answer 39

1. Capital murder; must have substantial evidence of defendant’s guilt
2. Defendant charged with felony and has two prior consecutive felony convictions
3. Defendant presently on bail for felony offense and is charged with committing another felony while on bail
4. Defendant is chargest with a felony involving the use of a deadly weapon and has a prior felony conviction or
5. Defendant is charged with a violent or sexual felony while defendant was on probation or parole for a prior felony.

Question 40

What must be contained in a Jury Charge?

Answer 40

1. Set out the applicable law
2. Apply the law to the facts
3. Not express any opinion on the weight of the evidence
4. Not summarize testimony or facts
5. Make NO statements calculated to arouse sympathy or passions

Question 41

Who may be present during Grand Jury Proceedings?

Answer 41

1. Prosecutor and her staff
2. Witnesses being examined
3. Grand jurors
4. Court reporter
5. Interpreter if necessary

Question 42

What is an indictment and what is an information? What is the difference between the two?

Answer 42

1. Indictment: written statement of the grand jury accusing a person of an offense, either by act or omission.
2. An information is a written statement on behalf of the State by the prosecution CHARGING an offense