Texas - Post Conviction

Question 1

What are the types of errors in Texas?

Answer 1

(1) Structural Error - constitutional error that is not subject to harmless error analysis;
(2) constitutional error that is harmful;
(3) constitutional error that is harmless;
(4) nonconstitutional error that is harmful, that is, affects a substantial right; and
(5) nonconstitutional error that is harmless, that is, does not affect a substantial right.

Question 2

What are some examples of “Structural Errors”?

Answer 2

1. total deprivation of counsel at trial;
2. unlawful exclusion of members of defendant’s race from grand jury
3. denial of right to self-representation at trial
4. denial of right to public trial
5. instruction that lowers burden of proof below “beyond a reasonable doubt”
6. bias judge

Question 3

What is “Structural Error”?

Answer 3

Error that affects entire conduct of the trial from beginning to end.
Not subject to harmless error analysis

Question 4

What may the State appeal an order of the court?

Answer 4

TCCP 44.01
An order:
(1) Court dismisses charge;
(2) Court arrests or modifies a judgment;
(3) Court grants a new trial;
(4) Court sustains a claim of former jeopardy;
(5) Court grants a motion to suppress evidence, a confession, or an admission, if jeopardy has not attached in the case and if the prosecuting attorney certifies to the trial court that the appeal is not taken for the purpose of delay and that the evidence, confession, or admission is of substantial importance in the case; or
(6) Court issued under Chapter 64;
(7) illegal sentence;
(8) if D appeals, any question of law

Question 5

When must the State appeal an order or sentence?

Answer 5

20 days after order or judgment

Question 6

Can a revocation hearing on a new charge bar future prosecution of the charge in another county?

Answer 6

Yes. Under doctrine of res judicata, but NOT Double Jeopardy

Question 7

How does appellate court review non-structural “Constitutional Error”?

Answer 7

reverse unless finds beyond a reasonable doubt that the error did not contribute to the conviction or had but slight effect
State’s burden to disprove harm BRD

Question 8

How does the appellate court review “Nonconstitutional Errors” affecting substantial right?

Answer 8

affirm if after examining the record as whole, fair assurance that the error did not influence the jury or had but a slight effect
Defendant burden - harm affirmatively on record

Question 9

How does the appellate court review “Nonconstitutional Errors” not affecting substantial rights?

Answer 9

Disregard.

Question 10

How do you know if error is “constitutional”?

Answer 10

not whether the error touches upon a constitutional right but whether the error violates a constitutional provision

Question 11

When must a “Motion for New Trial” be filed?

Answer 11

Within 30 days

Question 12

How long does the trial court have to rule on a Motion for New Trial?

Answer 12

75 days

Question 13

When may a D have hearing on motion for new trial?

Answer 13

Only if it’s for matters not determinable on the record;
Filed motion within 30 days;
Presents to court motion within 10 days of filing.
Court’s discretion to grant

Question 14

Why must a new trial be granted?

Answer 14

1. Court misdirects jury about law, or some other material error;
2. Verdict decided by lot;
3. Juror bribed or corrupt conduct;
4. Brady violation;
5. Jury misconduct: received evidence in deliberation; talked with someone about trial; became intoxicated probably influenced vote;
6. Jury Misconduct: D didn’t get a fair trial;
7. Verdict contrary to law or evidence.

Question 15

When may D amend Motion for New Trial?

Answer 15

Within the 30 day deadline

Question 16

What if new trial for punishment granted after jury punishment?

Answer 16

Returns to jury unless D, state, and court agree to change election