Tx Crim P/E Flashcards
02/09: What are three rules that a court should follow when fixing the amount of bail?
1) Bail should be set sufficiently high to give reasonable assurance that the defendant will appear;
2) The defendant’s ability to make bail (and thus his resources) should be considered; and
3) the future safety of any victim of the crime and of the community must be considered
02/09: Can the court consider whether Troy is capable of posting bail in determining whether Troy is indigent and is still entitled to appointed counsel? Explain fully.
No. As a general rule, a court cannot consider whether the defendant has posted or is capable of posting bail. This can be considered, however, insofar as it reflects the defendant’s financial circumstances.
02/09: If the court denies your request to reduce Troy’s bail to $10,000, what procedural step, if any, can you take to seek a reduction in bail, and what argument, if any, can you make for such a reduction? Explain fully.
I can file an application for habeas corpus in district court. I can argue that Troy is being improperly detained because bail was set at an excessive amount. At a hearing on the application, I can introduce evidence that he cannot meet the bail set and what amount he could meet. I can argue that $25,000 bail is not necessary to assure his appearance or to protect the community, and a lower amount that he could meet would suffice for this. If the district judge denies relief, I can immediately appeal to the court of appeal.
02/09: Eager to get a great plea bargain, Roscoe meets with Officer and tells him that Troy has purchased many illegal weapons from him in the past and that they are locked in a closet in Troy’s apartment.
In order for a search warrant to be issued authorizing the search of Troy’s apartment for evidence, what facts must Officer allege and in what document must he do this? Explain fully.
Officer must execute a written and sworn affidavit. In that document, officer must allege facts from which a magistrate can find there is probable cause to believe:
1) a specific offense has been committed,
2) the evidence tends to prove that the offense was committed or who committed it, and
3) the evidence is located in the promises to be searched.
02/09: Subsequently, Troy is released on bond. A Harris County grand jury returns an indictment charging both Troy and Roscoe with the felony of intentionally and knowingly possessing a short-barrel firearm.
Is venue proper in Harris County, Texas? Explain fully.
Yes, venue is proper in Harris County. As a general rule, venue is proper in the county in which the crime was committed. Here, the state’s evidence will show that the shotgun was placed in the SUV with the shotgun into Harris County. Thus, Troy and Roscoe may have committed the “possession” of the short-barrel firearm in Harris County as well as in fort Bend County.
02/09: The court sets a pretrial hearing for 9:45 AM on December 17, 2008, and sets trial for January 5, 2009. You then learn that Roscoe’s girlfriend saw Roscoe secretly place the sawed-off shotgun in the SUV, while
Troy was not present. Unfortunately, Roscoe’s girlfriend has gone on vacation, and you do not know how to contact her.
What procedural step, if any, can you take to obtain more time before the trial in order to find Roscoe’s girlfriend; by what date must you take such a step, if any; and what must you show the court? Explain fully.
To obtain more time, I can move for a continuance to locate a missing witness. The motion must be sworn. To get the continuance, I must show the court:
1) the name and residence of a witness,
2) the material facts I plan to show by this witness,
3) the diligence I have used to try to get the witness, and 4) that the motion is not being made for delay.
Since a pretrial hearing has been set, I must file this motion seven days before the date of that hearing; so I must file it by December 10.
02/09: While preparing for trial, you realize that prohibiting the prosecutor from introducing the sawed-off shotgun into evidence will result in an acquittal of Troy.
What procedural step, if any, can you take to try to keep the sawed-off shotgun from being introduced into evidence, and what argument, if any, can you make in support of your position? Explain fully.
I can file a motion to suppress the shotgun. In support, I can argue that the stop of Troy was reasonable and in violation of the fourth amendment because it was made without the reasonable suspicion necessary for such a Terry stop. Since the shotgun was observed and seized as a result of the stop, I would argue that the shotgun is “fruit of the poisonous tree” and thus inadmissible.
02/09: Against your advice, Troy decides to plead guilty. In court, the following occurs:
COURT: How do you plead to the indictment? TROY: Your Honor, I plead guilty.
COURT: Well, let me warn you about some things.
TROY: Actually, Your Honor, I have changed my mind and want to take back my guilty plea and go to trial.
May Troy withdraw his guilty plea at this point in the proceeding? Explain fully.
Yes. Plea of guilty to the judge can be withdrawn as a matter of right before the court takes the plea under advisement. Here, the judge has not yet taken the plea under advisement, so Troy has a right to withdraw his plea.
02/09: Assume that Troy can and does withdraw his guilty plea.
Is Troy’s guilty plea admissible at his trial as evidence of his guilt? Explain fully.
No. Under Texas rule of evidence 410, a plea of guilty that is later withdrawn cannot be used against the defendant who entered the plea.
02/09: Before the December 17, 2008, pretrial hearing, you discover that Roscoe was convicted and sentenced in 2006 for unlawfully possessing a firearm silencer.
What procedural steps, if any, can you take to try to protect Troy from the prejudice he will suffer from the introduction of Roscoe’s prior conviction if Troy and Roscoe are scheduled to be tried together? Explain fully.
I can move for a severance of Troy’s trial from that of Roscoe’s. A trial judge must grant the motion because severance is mandatory if the moving defendant shows the co-defendant has a prior conviction admissible against that co-defendant at trial. I might be able to get a pretrial determination of whether Roscoe’s conviction is actually admissible by filing a pretrial motion in limine asking a trial court to hold it inadmissible. If a trial court rules the conviction admissible during pretrial, I must still object at trial to preserve any issue for appeal.
02/09: During your investigation of Troy’s defense, you locate Roscoe’s girlfriend, Glenda, who lives in Harris County. She confirms that she saw Roscoe put the sawed-off shotgun in the back of Troy’s SUV when Troy was not present.
What procedural steps, if any, can you take to ensure that Glenda appears at trial to testify as a witness? Explain fully.
I can obtain a subpoena for Glenda by applying to the clerk of the trial court. This subpoena will order her to appear. If Glenda does not appear as required by the subpoena, I can then get an attachment, which will authorize a peace officer to locate her and bring her before the court. If I fail to properly subpoena her, however, I cannot get an attachment if she fails to show up. Any case, I cannot get the attachment until (and if) she actually fails to show up as required by the subpoena.
02/09: At 9:15 a.m. on December 17, 2008, the court begins the pretrial hearing 30 minutes early, even though Troy has not arrived yet. You object to the court’s beginning the hearing in Troy’s absence, but the court overrules your objection.
Did the court correctly rule on your objection, and does a defendant have a right to be present at a pretrial proceeding? Explain fully.
No, the court did not correctly rule on my objection. Article 28.01 of the Texas code of criminal procedure specifically states a defendant must be present at any pretrial proceeding. Therefore, the hearing should not have begun without Troy.
02/09: At the joint trial of Troy and Roscoe on January 5, 2009, the jury panel is assembled and voir dire begins. During voir dire, one prospective juror states the opinion that “no person convicted of possessing an illegal firearm should ever get probation.”
Can you properly make a challenge to this prospective juror, and, if so, what kind of challenge should you make and on what ground? Explain fully.
Yes, I can challenge this juror for cause. The law provides that probation is a possible penalty upon conviction of the charged offense. Thus, each juror must be able and willing to at least consider it as a possible penalty. This prospective juror is unwilling to consider it and thus is biased or prejudiced against part of the law on which Troy is entitled to rely. This is a basis for a challenge for cause. I could also use one of my peremptory challenges against this juror, but that should be unnecessary because my challenge for cause should be sustained.
02/09: After the jury is selected, you notice that Officer and the State’s tattoo expert, who will be witnesses at trial, are conferring in the courtroom about Troy’s case.
What procedural step, if any, can you take to stop Officer and the expert from conferring about the case and from remaining in the courtroom during trial? Explain fully.
I can invoke the rule of exclusion of witnesses from the courtroom. If I do this, and no exception to the rule applies, the trial judge must exclude officer and the state’s tattoo expert from the courtroom and order them not to talk with anyone about the case, except with the permission of the trial judge. The state might possibly argue that the prosecutors need either or both officer and the tattoo expert to be in the courtroom to assist them. This might trigger the exception to the rule for witnesses who are shown to be essential to the prosecution of a party’s case.
02/09: Prior to any testimony, the prosecutor asks for a bench conference and tells the court that she intends to introduce Roscoe’s confession to show that he owned the sawed-off shotgun and that Troy put the sawed-off shotgun in the SUV. You know from a conversation with Roscoe’s lawyer that Roscoe has chosen not to testify at trial.
What objections or requests, if any, should you make with regard to the admission of Roscoe’s confession into evidence? Explain fully.
I should object on grounds that this would be hearsay and further that admission of this hearsay would violate Troy’s sixth amendment constitutional right to confront witnesses against him. Troy’s statement that he owned the shotgun might be admissible as a statement against penal interest. Even if it is, this would not render admissible the statement that Troy put it in the SUV, as this would not tend to incriminate Roscoe. In any case, Roscoe’s statement is testimonial and Troy will not be able to cross examine him, so admission of his statement would violate Troy’s confrontation right.
02/09: During trial, Officer testifies on direct examination about how he pulled Troy’s SUV over and discovered the sawed-off shotgun. During your cross-examination of Officer, you request a copy of Officer’s report concerning these events, but the prosecutor objects, stating: “Police reports are work product and do not have to be produced as part of discovery.” The court denies your request for a copy of Officer’s report.
Is the court’s ruling correct? Explain fully.
No, the ruling is not correct. Police reports our work product exempt from pretrial discovery. However, there is no such work product exception to the requirement that a prior statement of a testifying witness be turned over to the other party after the witness finishes direct examination. Troy is entitled to the report under this rule.
02/09: At a conference on the court’s proposed jury charge, you object that, although the charge instructs that the jury must acquit unless it is satisfied beyond a reasonable doubt of the defendant’s guilt, it does not define the phrase “reasonable doubt.”
Must the court include a definition of “reasonable doubt” in the jury charge? Explain fully.
No, the court need not include a definition of reasonable doubt in the jury charge. In fact, it should not do so. This is because any effort to define reasonable doubt will be of no help and will tend to confuse the jury.
02/09: Troy decides not to testify in his own defense. During closing argument to the jury, the prosecutor makes the following statement:
PROSECUTOR: Ladies and gentlemen of the jury, if Troy really were not guilty, don’t you think he would have gotten up on the witness stand and told you so!
Is the prosecutor’s argument improper? If a prosecutor makes an improper closing argument to the jury, what procedural steps, if any, must defense counsel take to preserve error? Explain fully.
Yes, the argument is improper. Troy has a Fifth Amendment right not to testify and to not have the jury draw an adverse inference from his failure to testify. The prosecutor’s argument invites the jury to draw on improper influence from this. To preserve error, defense counsel must:
1) Object and get a ruling,
2) Request an instruction to the jury to disregard the argument and get a ruling, and
3) Move for a mistrial on the ground that the instruction cannot be effective and get a ruling on that motion.
02/09: The jury finds both Troy and Roscoe guilty as charged in the indictment. Although you did not previously request that the jury determine Troy’s sentence, you immediately file a written motion for the jury to assess punishment.
Is your request for jury sentencing timely at this stage of the proceedings? Explain fully.
No, the request or “election” for jury sentencing is not timely because this must be filed before voir dire of the perspective jurors begins. By failing to file this, Troy “elected” sentencing by the judge. Troy can, however, change his election after the jury finds him guilty, but he can do this only if the prosecutor consents.
02/09: The prosecutor gave you timely and proper notice that, at the sentencing phase of the trial, she would seek to introduce evidence that Troy committed a bank robbery on November 18, 2008, using Roscoe’s sawed- off shotgun. Troy has not been charged with or convicted of the bank robbery.
Is evidence that Troy committed the bank robbery admissible against Troy in the sentencing phase of the trial? Explain fully.
Yes. At sentencing, all evidence that the trial judge deems relevant to punishment is admissible. By statute, this explicitly includes other (“extraneous”) offenses even if the defendant has not been charged with or convicted of them. The state must prove beyond a reasonable doubt that the defendant committed these extraneous offenses. If the defense has requested notice, the prosecution must give pretrial notice of its intent to introduce such evidence but that notice requirement has been met here.
07/09: Was Detective Don required by law to obtain one warrant authorizing the search of Ike’s apartment and a separate warrant authorizing the arrest of Ike? Explain fully.
No. A search warrant may also authorize an arrest and thus constitute an arrest warrant as well as a search warrant.
07/09: Did Detective Don have the authority to break down Ike’s door in order to enter the apartment? Explain fully.
Yes. An officer can break down the door of the house to make an arrest if the arrest is for a felony, the officer gives notice of the officer’s authority and purpose, and the officer is then refused admittance.
07/09: At Ike’s examining trial, the Court refuses to set bail for Ike. You decide to file an application for a writ of habeas corpus.
What is a writ of habeas corpus? To whom is it directed? By whom may it be granted?
Explain fully.
A writ of habeas corpus is a court order directing someone to produce an individual before the court and to show why that individual is being held. It is directed to any person having the individual in custody or under restraint. The writ may be granted by the court of criminal appeals, a district court, a county court, or a judge of any of these courts.
07/09: Prosecutor is considering whether to proceed with the prosecution of Ike for the felony of burglary of a habitation or instead to prosecute him for the misdemeanor of criminal trespass, which is punishable by confinement in jail for up to one year and a fine not to exceed $4,000.
What courts have jurisdiction to conduct a trial of Ike for burglary of a habitation, and what courts have jurisdiction to conduct a trial of Ike for criminal trespass? Explain fully.
The only court with jurisdiction to conduct a trial for burglary of a habitation is a district court. Criminal trespass is a misdemeanor, so a county court has jurisdiction to conduct a trial for this offense.
07/09: Prosecutor decides to seek an indictment from the grand jury.
Who selects the people who will serve on the grand jury? Explain fully
Persons are selected to serve on a grand jury in either two ways. First, a district judge may appoint jury commissioners, who select persons to serve. Second, a district judge may direct grand jurors to be selected in the same manner as jurors are selected in civil cases. After this, the persons selected are examined and 12 are impaneled by the judge as the grand jury
07/09: The grand jury indicts Ike for the felony of burglary of a habitation. On January 23, 2009, the Court notifies you that it has set a pretrial hearing for February 16, 2009. You decide to file a motion for discovery.
By what date should you file your motion for discovery? What consequence, if any, is there if you do not file your motion for discovery by that date? Explain fully.
When a pretrial hearing has been set, motions for discovery must be filed seven days before the hearing. Thus, my motion should be filed by February 9, 2009. If it is not filed by that time, it cannot be filed unless the court, for good cause shown, permits it to be filed.
07/09: You timely file your motion for discovery. Prosecutor has a report in his case file stating that Ike’s roommate, George, confessed to Detective Don that he alone stole Aaron’s big screen TV and that Ike had no knowledge of and took no part in the crime.
Is Prosecutor required to disclose to you the contents of this report? Does your answer depend on whether your discovery motion requested disclosure of any reports in Prosecutor’s possession? Explain fully.
The information in this report is exculpatory because it indicates the defendant’s innocence. As a matter of Federal due process under Brady, prosecutor is required to disclose this information. This duty to disclose does not depend on a request by the defendant, so the answer does not depend on whether my discovery motion as to disclosure of reports in Prosecutor’s possession.
07/09: Prosecutor files a motion requesting that you disclose the names and addresses of all lay and expert witnesses who will testify for the defense at trial.
Does the Code of Criminal Procedure provide any basis for Prosecutor’s request? Explain fully.
Yes, in part. The trial judge does have the authority to order a defendant to disclose to the prosecution the names and addresses of expert witnesses the defense may use at trial. There is no basis in the Texas code of criminal procedure for the trial judge to order a defendant to disclose any information regarding lay witnesses to the prosecution.
07/09: As part of the discovery process, Prosecutor gives you a copy of the search and arrest warrant obtained by Detective Don. The only description of the appearance, location, and address of Ike’s apartment that is contained in the warrant is the following: “The apartment is located in a white building in a residential neighborhood on a street on the west side of Houston, Texas.”
Is this description of Ike’s apartment legally sufficient? Assuming that description is not sufficient, what procedural step can you take to challenge the warrant, and what relief should you request? Explain fully.
No, the description of the apartment is not sufficient. The description must be sufficient to enable officers to identify both the building in which the apartment is located and the specific apartment to be searched within that building. To challenge the warrant, I should file a motion to suppress the evidence found by execution of the warrant—the TV. I should ask the court to hold the search warrant and the search of the apartment unreasonable and to bar the prosecution from introducing the TV into evidence.
07/09: Ike tells you that he is considering pleading guilty to the indictment, and asks you what will occur at the guilty plea proceeding.
List three admonitions that the Court must give Ike before accepting his felony plea of guilty.
The admonitions should include:
1) The range of penalties for the offense,
2) That any recommendation by the state as to the penalty is not binding on the court, and
3) That the defendant has a limited ability to appeal if convicted pursuant to a guilty plea.
07/09: Ike decides that he wants a jury trial, and he asks you if he will be eligible for probation if he is convicted by the jury.
List three prerequisites for Ike to be eligible for a sentence of probation.
The prerequisites include:
1) The punishment assessed must not exceed 10 years imprisonment;
2) (to get probation from the jury) Ike must have filed a pretrial sworn motion for probation; and
3) (again to get probation from the jury) Ike must show he has not previously been convicted of a felony.
07/09: During jury selection, Prospective Juror No. 8 makes the following statements in response to your question about the presumption of innocence: “Of course I believe Defendant Ike is guilty, and nothing you say will change my mind about it. Why else would a grand jury indict him?”
Do these statements provide you with any basis to challenge Prospective Juror No. 8? If so, what is the legal basis of your challenge, and what kind of challenge should you make? Explain fully.
I can challenge the juror on the bases the juror has bias against a defendant and has a bias against a part of the law on which the defendant is entitled to rely. The law provides that the fact that a defendant has been indicted gives rise to no inference of guilt. This juror is biased against this law
07/09: After the jury is selected, Prosecutor makes an opening statement. When you tell the Court that you will make your opening statement after the State has presented its case in chief, the Court tells you that you must make your opening statement now or waive it.
Is the Court correct? Explain fully.
No. Defense counsel is entitled, by statute, to make the defense opening statement immediately after the state’s opening statement. This right has been extended to permit the defense opening statement to be made after the state rests its case in chief (Grant v. State).
07/09: As Prosecutor’s first witness, Detective Don testifies about his investigation of Ike. When you begin your cross-examination, you move the Court to order Prosecutor to produce any transcript of Detective Don’s grand jury testimony about his investigation of Ike. Prosecutor responds that he has the transcript, but will not produce it because grand jury proceedings are secret.
How should the Court rule on your motion for production of the transcript? Explain fully.
The court should grant my motion for production. Under Texas rule of evidence 615, a party is entitled to the statement of an opponent’s witness after that witness has finished direct examination. “Statement” includes a transcription of testimony by the witness to a grand jury.
07/09: As his second witness, Prosecutor calls Ike’s roommate, George, who admits to burglarizing Aaron’s apartment. George also testifies that, even though he previously tried to protect Ike from prosecution, the truth is that Ike helped him commit the burglary. When you begin to cross-examine George about the fact that George presently is on probation, the Court cuts you off and states: “Counsel, we’re not going to go into that. It’s got nothing to do with this case.”
Is the Court’s ruling correct, or are you entitled to cross-examine George about his probation?
Explain fully.
No, the court’s ruling is probably not correct. A witness may be impeached by a conviction for which the witness received a probated sentence if the probation has not expired. Of course, the conviction must be for a felony or a misdemeanor involving moral turpitude.
07/09: At a bench conference, Prosecutor informs you and the Court that his next witness, Megan Watts, will testify as follows: “On December 27, 2008, I stopped Ike in the parking lot of my electronics store as he was loading one of my store’s big screen TVs into his pickup truck. Ike had taken the TV out of the store without paying for it.” Prosecutor states that he is offering this testimony because “Ike’s theft of a big screen TV in the past shows that he stole Aaron’s big screen TV in this case.”
What objection should you make to this testimony, and how should the Court rule on it? Explain fully.
I should object that this testimony shows an extraneous offense and thus is inadmissible to prove guilt by showing Ike is a bad person and therefore committed the charged offense. It could be admitted if it was relevant to guilt in some way other than by proof of that defendant’s bad character, but prosecutor has not argued any other relevance. Therefore, the objection should be sustained.
07/09: The jury charge prepared by the Court contains a number of legal definitions and statutes pertinent to the case. You object to the Court’s jury charge and request in writing that the Court include a paragraph instructing the jury regarding the circumstances under which Ike can be convicted or acquitted. The Court denies your request, stating that it does not want to confuse the jury.
Is the Court’s ruling correct? Explain fully.
No, this ruling is not correct. A jury charge should contain both abstract portions and an application portion. The application portion should incorporate the specific allegations of the indictment and instruct the jury on what specifically it must find to conduct the defendant. The defense request was for such an application portion. It should have been granted.
07/09: During his closing argument, Prosecutor makes the following comments:
Ladies and Gentlemen of the jury, you now have heard all of the testimony, and it shows beyond a reasonable doubt that Ike is guilty. Do you think I would risk my career and put Detective Don on the witness stand if I didn’t think he was telling the truth? I’ve never seen anyone who was more honest than Detective Don. And when he arrested Ike and read Ike his Miranda rights, Ike just kept his mouth shut and said nothing. That in itself shows Ike is guilty. Based on this evidence, you should return a verdict of guilty.
On what grounds, if any, can you object to these remarks?
First, I can object that prosecutor is not arguing evidence but rather is improperly asserting his personal opinion as to Detective Don’s credibility. Second, I can object that prosecutor is improperly commenting on Ike’s exercise of his Fifth Amendment right to avoid compelled self incrimination by asking the jurors to give effect to Ike’s silence.
07/09: The jury convicts Ike of burglary of a habitation as charged in the indictment.
What standard of proof was the State required to meet to obtain a verdict of guilty? How many jurors had to concur in the verdict? What would have been the consequence if fewer than the minimum number of jurors voted for a verdict of guilty? Explain fully.
The state must prove guilt beyond a reasonable doubt. All members of the jury had to concur in the verdict of guilty; Texas law requires of this although Federal constitutional law does not. If all jurors cannot agree on a verdict of guilty and they cannot unanimously agree on a verdict of not guilty, the trial judge must grant a mistrial. In that event, the defendant can be retried.
07/09: Ike ultimately receives a sentence of probation. Three days after Ike is sentenced, you learn that George bribed four of the jurors to convict Ike.
What procedural step can you take to bring this information to the attention of the trial court and to attack Ike’s conviction? How long do you have to take this procedural step? Explain fully.
I can bring this to the attention of the trial court by making a motion for new trial. Among the grounds for a motion for new trial is that a juror has been bribed or is otherwise guilty of corrupt conduct. I must file a motion for new trial within 30 days of sentencing and then present it to the trial court within 10 days of filing. The trial court can, however, permit me to present it within 75 days of sentencing.
02/10: Is the prosecution barred because the State waited too long to file this felony charge against
Lenny? Explain fully.
no, the prosecution is not barred. The period of limitations for arson is 10 years, so an indictment can be filed at any time until 10 years from commission of the offense. Any case, a general rule for felonies is three years and no felony has a period of limitations of less than three years. Therefore, apart from the special 10 year rule for arson, the state would have three years to file any felony charge.
02/10: When you first speak with Lenny, he seems slightly confused. You briefly wonder about Lenny’s competence to stand trial.
What would you need to establish to prove that Lenny is incompetent to stand trial, and what burden of proof would you need to meet? Explain fully.
to prove Lenny is incompetent to stand trial I would have to prove either that:
1) he lacks sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding; or
2) he lacks a rational as well as factual understanding of the proceedings. I would have to prove one of these by a preponderance of the evidence
02/10: After a minute or two, Lenny snaps out of his confusion and is perfectly fine. During your conversation with him, he asks you to explain what bail is and what he has to do to get released from jail.
What is bail? What is a bail bond? In what major way does a personal bond differ from a bail bond? Explain fully.
bail is the security given by a defendant to assure that he will appear in court to answer the accusation against him. A bail bond is a written undertaking by the defendant and one or more sureties that they will pay the amount of bail if the defendant does not make his required appearances. A personal bond differs from a bail bond in that a bail bond requires either on adequate surety or a cash deposit in the amount of the bond. A personal bond requires neither. It is simply the defendants promise to pay the amount if he fails to make the appearances.
02/10: A few days later, Lenny posts bail and is released from jail. The prosecutor phones you and asks you whether Lenny would be willing to resolve the case quickly by waiving his right to indictment and pleading guilty to an information in return for the State’s recommendation of a lenient sentence.
What is an indictment? Discuss two ways in which an indictment and an information differ?
Explain fully.
indictment is the written statement of a grand jury accusing a named person of a criminal offense. Among the ways in which it differs from an information are:
1) indictment must be approved by a grand jury and signed by the foreman, while in information need only be authorized and signed by the prosecutor; and
2) an information must be supported by a sworn complaint filed with the court, while in indictment does not require such support.
02/10: While considering the State’s plea offer, Lenny asks you what will happen if he pleads guilty but the Court does not agree with the plea agreement.
Will Lenny be allowed to withdraw his guilty plea if the court rejects the plea agreement?
Explain fully.
yes. If the trial court decides not to follow the plea agreement, Lenny must be allowed to withdraw his plea and enter a not guilty plea if he wishes
02/10: Lenny tells you that he thinks it would be better for him to enter a plea of nolo contendere rather than a plea of guilty. He believes that a nolo contendere plea does not have the same legal effect as a guilty plea.
Is Lenny’s belief correct? Explain fully.
yes, but only to a minor degree. In the criminal prosecution itself, the nolo contendere plea has the same effect as a plea of guilty. But if civil litigation were to arise out of the same incident as gave rise to the criminal charges, a plea of guilty could be used against Lenny. A plea of nolo contendere not be so used
02/10: Lenny decides to reject the prosecutor’s offer. The grand jury subsequently returns an indictment that appears to charge Lenny with the felony of arson for setting the SUV on fire. However, you believe that the indictment fails to charge two of the elements of arson and thus fails to charge Lenny with that crime.
What procedural step, if any, can you take to challenge the indictment? Assuming that you can take some procedural step, when should that step be taken? Explain fully.
I can challenge the indictment by filing an exception, or what is often called a motion to quash. Since my ground would be the failure to charge an offense, the exception would be one to the substance of the indictment. I should file the exception or motion to quash before the day on
which the trial on the merits commences
02/10: Prior to trial, your arson expert asks you for a copy of Officer’s police report. You file a motion for discovery that requests a copy of Officer’s police report.
Must the prosecutor produce a copy of Officer’s police report to you as part of discovery before trial? Explain fully.
yes. As soon as practicable, after reviewing a timely request from the defendant, the state must provide any written or recorded statement of any law enforcement officer, including the police report
02/10: Lenny is eligible for community supervision, and you believe that a jury might be sympathetic and recommend community supervision.
What procedural steps can you take to obtain jury sentencing and to allow a jury to recommend community supervision? When should you take these steps? Explain fully.
to obtain jury sentencing, I should file a written election for jury sentencing. This should be filed before jury voir dire commences
02/10: You timely take the proper procedural steps to obtain jury sentencing and to allow a jury to recommend community supervision. Prior to trial, Lenny tells you that he used to play with matches and that he set his grandfather’s barn on fire six years ago. You worry that the prosecutor might try to introduce evidence of this previous event at trial.
What procedural step, if any, can you take to ensure that the prosecutor will disclose before trial whether he intends to introduce in the State’s case at trial evidence of this previous event? Explain fully.
to ensure that the prosecutor will disclose before trial that he intends to introduce evidence of this event on guilt innocence as proof of a prior bad act under evidence rule 404 B, I should make a timely request for such notice. To assure that the prosecutor will disclose that he intends to introduce such evidence at the punishment stage of the trial, I should also request pretrial notice of the state’s intention to introduce at punishment evidence of extraneous crimes or bad acts under section three of article 37.07 of the Texas code of criminal procedure.
If I make these requests timely, the state must provide me with such notice prior to trial.
02/10: During discovery, you learn about Lenny’s confession to Officer at the police station. You also learn that the prosecutor intends to have Officer testify at trial about his recollection of Lenny’s confession at the police station.
What procedural step, if any, can you take to have the Court exclude Officer’s testimony about this confession from evidence? On what basis, if any, can you take this step? Explain fully.
I can file a pretrial motion to suppress the testimony concerning the confession. I could do this on the basis that under article 38.22 of the Texas code of criminal procedure, evidence that the defendant orally confessed during custodial interrogation is inadmissible unless one of
the exceptions apply
02/10: In one of your discussions with Lenny, he tells you that he went to the police station one year after he set the SUV on fire and told the receptionist on duty the following: “I am feeling guilty about something I did. Is Officer here? I really need to talk to him about a fire and about getting my friend’s lighter back.” Lenny also tells you that he left the police station when the receptionist went to find Officer because he became scared. You have no doubt that the prosecutor will have the receptionist testify at trial about what Lenny told him at the police station.
What procedural step, if any, can you take to have the Court exclude the receptionist’s testimony from evidence? On what basis, if any, can you take this step? Explain fully.
to have the court exclude the testimony, I could wait until the prosecutor offers the testimony during trial and then object. Or, I could before trial file a motion in limine asking the court to address the admissibility of the testimony and hold it inadmissible. There is, however, no basis on which to take either of the steps. Out of court admissions by a criminal defendant are admissible. They are not hearsay because they constitute an admission by a party opponent. At the time he made these admissions, Lenny was not in custody and he was not being interrogated. Neither Miranda nor article 38.22 of the Texas code of criminal procedure provides any basis for excluding the testimony by the receptionist.
02/10: On the day of trial, the jury panel is assembled and voir dire begins. When questioned, one prospective juror states that he retired from the fire department in Shawnee, Kansas, about ten years ago. He also states that he would be able to follow the court’s instructions and reach a fair and impartial verdict based on the evidence.
Can you exercise a challenge to exclude this person from the jury? If so, what kind of challenge can you use, and to how many such challenges are you entitled? Explain fully.
I cannot exercise a challenge for cause to this person, because he maintains that he can be fair and decide on the evidence. I can exercise a peremptory challenge. This is because I do not need to have any reason or justification for such a challenge. Because this is a non capital district court felony prosecution, I am entitled to 10 such challenges
02/10: After the jury is selected and sworn and opening statements are given, one of the jurors suddenly has a massive heart attack and is taken to the hospital. The prosecutor requests a mistrial on the ground that, under the laws of Texas, no less than twelve jurors can return a verdict in a trial of a felony.
Must the Court grant a mistrial? Explain fully.
the court need not grant a mistrial. If in a felony case a juror becomes disabled after trial begins but before the instructions are read to the jury, the remainder of the jurors can reach a valid verdict. All of the jurors, however, must sign the verdict.
02/10: As his first witness, the prosecutor calls an arson expert to testify that the SUV was set on fire with George’s cigarette lighter. Your expert has told you that this arson expert’s opinion is nonsense. You ask the Court to allow you to question the prosecution’s arson expert about his qualifications and the basis of his opinion outside of the jury’s presence. The Court denies your request.
Is the Court’s ruling correct? Explain fully.
no, ruling is not correct. In a criminal case, a party against whom their testimony is offered as a right on request to conduct a voir dire of the witness on underlying facts and data. This is different from civil trials, in which whether to permit this is discretionary.
02/10: The prosecutor tells you that he intends to call Lenny’s wife, Kate, as his second witness to testify that she saw Lenny holding George’s cigarette lighter two hours before the SUV burned. Outside of the jury’s presence, however, Kate tells the Court that she does not want to testify against Lenny.
Does Kate have any right to refuse to testify against Lenny? Does Lenny have any right to prohibit the prosecutor from calling Kate as a witness? Explain fully.
Kate has a right to refuse to testify against Lenny because the spouse of a criminal defendant as a privilege not to testify for the state. But Lenny has no right to prohibit the prosecutor from calling Kate. This is because the privilege belongs to the spouse and cannot be invoked by the defendant.
02/10: A few minutes before trial begins on the second day, Lenny calls you on your cell phone and tells you that he does not like the way things are going and that he “might not make it to court due to other plans.” Lenny does not come to court.
Does a defendant have the right to be personally present at trial? May the trial proceed in
Lenny’s absence? Explain fully.
a defendant has a right to be personally present and, in fact, can be compelled to be present. But in a felony trial, a trial can continue without the defendant if the defendant was present through selection of the jury and after that voluntarily absents himself trial. This is the second day of trial, so apparently jury selection is over and Lenny is voluntarily declining to come to court. Thus, the trial may proceed in his absence.
02/10: At the end of trial, you ask the Court to instruct the jury as follows: “You are not bound by the State’s arson expert’s opinion that George’s cigarette lighter was used to set the SUV on fire. You are the ultimate arbiters of the credibility and reliability of that opinion and should consider it with great skepticism because the expert is paid by the State.” The prosecutor objects to your proposed instruction, and the Court decides not to give it to the jury.
Is the Court’s ruling correct? Explain fully.
yes. In the instructions, the court is not to convey to the jury courts’s view as to the weight of the evidence
02/10: The jury convicts Lenny of arson. The jury also assesses Lenny’s punishment at five years’ incarceration, but recommends to the Court that it suspend the imposition of the sentence and place Lenny on community supervision.
May the Court ignore the jury’s recommendation of community supervision and impose a sentence of five years’ incarceration only? Explain fully.
no. If the jury recommends suspension of a sentence and placement of the defendant on community supervision and the defendant is eligible for community supervision, the judge must suspend the sentence and place the defendant on community supervision. Here, the punishment assessed (five years) does not exceed 10 years. Lenny is eligible for community supervision and the court may not ignore the jury’s recommendation
02/10: You decide not to file a motion for new trial in Lenny’s case. Lenny tells you that he wants to appeal.
What procedural step must you take to perfect Lenny’s appeal, and how long do you have to take that step?
to perfect lenny’s appeal, I must file a written notice of appeal in the trial court. Since no motion for new trial is being filed, this must be done within 30 days of formal sentencing.
07/10: Within what amount of time should a magistrate decide whether probable cause exists to believe that a person committed a felony offense? What is the consequence if a magistrate fails to make a probable cause determination within this amount of time? Explain fully.
The magistrate should decide whether probable cause exists within 48 hours of the arrest. If this is not done, Wilbur has the right to be actually released on bail and to have bail set so he can make it. This may require personal bond. The bail must be no more than $10,000
07/10: A magistrate is considering releasing Wilbur on bond without sureties or other security, but she is concerned that Wilbur cannot be controlled by his parents and will roam the streets after dark.
What kind of bond is the magistrate considering? What conditions of bond, if any, can the magistrate impose to allay her concerns about releasing Wilbur on bond? Explain fully.
the magistrate is considering personal bond, which on forfeiture requires the defendant to pay the amount but does not require a surety or cash deposit. The magistrate may impose any reasonable condition on the bail that is related to the safety of the victim of the crime or the community. Thus, the magistrate could condition the bond on Wilbur being in his home after nightfall, since this would reduce the danger to the community from future offenses of the sort charged against him in this case
07/10: Wilbur is released on bond and visits his attorney (“Defense Counsel”). Wilbur asks Defense Counsel whether Officer was allowed to arrest and handcuff him as he was walking away from RHS.
Was Officer’s arrest of Wilbur valid? Explain fully.
the arrest is valid, first, only if officer had probable cause. This required that he had facts on which a reasonable person would conclude there was a fair probability that Wilbur was the perpetrator. Here, Ms. Rosie’s description was very general. Further, Wilbur’s height was different from her description of the perpetrator and the clothing he wore was different. Officer probably lacked probable cause. Second, the lack of an arrest warrant, as required by the Texas code of criminal procedure, must be justified. The only exception that might apply here is that for persons found in suspicious places. Because RHS was the scene of prior offenses and the likely location of future offenses, it probably was a suspicious place.
07/10: Wilbur asks Defense Counsel whether he can waive his right to indictment to get his case moving more quickly.
Can a defendant waive his right to indictment? If so, what requirements must be met, and what charging document will be used instead of an indictment? Explain fully.
yes, a defendant can waive indictment in all cases except prosecutions were capital murder. If a defendant waives this, the defendant will be charged by an information signed and filed by the prosecutor. Waiver of the indictment has three requirements:
1) the defendant must be represented by counsel;
2) the waiver must be by written instrument or in open court;
3) the waiver must be voluntary.
07/10: Wilbur decides not to waive his right to indictment. Because he believes he’s been misunderstood, he demands to have an opportunity to address the grand jury.
Does Wilbur have the right to address the grand jury? Explain fully.
Wilbur has no right to address the grand jury. However, the grand jury may permit him to appear. The prosecutor must consent to defense council’s addressing a grand jury, but prosecutors consent is not necessary for Wilbur, as the suspected party, to himself address the body.
07/10: The grand jury returns a five-count indictment based on the five consecutive nights that RHS was spray painted. Each count is based on a different night and charges Wilbur with having committed the state jail felony of graffiti by knowingly and intentionally making marks on a school with aerosol paint.
Was it permissible to charge the five offenses in the same indictment, or was a separate indictment required for each of the five offenses? Explain fully.
it was permissible. Generally, an indictment may charge only one crime. However, several crimes may all be charged in one indictment if they are part of the same criminal episode. Crimes consisting of violating the same criminal statute or part of the same criminal episode.
Thus, all five graffiti’s can be charged.
07/10: What procedural step can Defense Counsel take to obtain a separate trial for Wilbur on each count of the indictment? Could taking this procedural step ultimately affect Wilbur’s sentence? Explain fully.
defense counsel can move for a severance of the charges for separate trials. If defense counsel does not do this, and Wilbur is convicted of all or several offenses, and a sentence to imprisonment, the prison terms must run concurrently. But if he gets separate trials, is
convicted, and is sentenced to imprisonment, the judge has discretion to stack the sentences—that is, make them consecutive
07/10: The Court notifies Defense Counsel that her deadline for filing any pleadings is five days after the date on which Wilbur was served with a copy of the indictment.
Did the Court give Defense Counsel the proper amount of time in which to file her pleadings? Explain fully.
no. Those cases in which a defendant is entitled to be served with the indictment, the defendant must have 10 days from that service within which to file written pleadings
07/10: Defense Counsel becomes concerned that the prosecutor (“Prosecutor”) will mention to the jury that
Wilbur was kicked off the basketball team.
What procedural step should Defense Counsel take to prohibit Prosecutor from mentioning this fact? If Prosecutor mentions this fact at trial, what should Defense Counsel do to preserve the issue for appeal? Explain fully.
defense counsel should make a motion in limine, asking that the court order prosecutor not to mention this fact to the jury because it suggests a prior bad act relevant only to Wilbur’s character. Hence, it is inadmissible under evidence rule 404 B. Alternatively, the motion should ask that the court order prosecutor to alert the court and the defendant if and when prosecutor intends to mention this fact, so defense counsel can object before the jury hears about it. Even if the court grants the motion and orders prosecutor not to mention this fact, defense counsel should—if prosecutor nevertheless does mention it—object and get a ruling. This is because a ruling on a motion in limine does not preserve anything for appeal
07/10: Defense Counsel learns that Prosecutor intends to introduce into evidence at trial the digital pictures of
RHS found on the cell phone taken from Wilbur.
What procedural step, if any, can Defense Counsel take to try to keep the pictures from being introduced into evidence, and what arguments, if any, can Defense Counsel make in support of her position? Explain fully.
defense counsel can file a motion to suppress the pictures, arguing that they were obtained in violation of law and are thus inadmissible. In support, defense counsel can argue, first, that the search by which of the pictures were discovered could only be permitted by the fourth amendment as a search incident to a valid arrest. The arrest was invalid, and thus the pictures are the inadmissible fruit of that poisonous tree. Second, defense counsel can argue that examining the pictures on the cell phone was so intrusive as to go beyond what is permissible as a search incident to even a valid arrest
07/10: Defense Counsel discovers that Prosecutor intends to call Ms. Rosie as a witness in order to have her identify Wilbur as the person who was lurking around RHS with a can of spray paint.
What procedural step, if any, can Defense Counsel take to try to stop Ms. Rosie from testifying about this, and what argument, if any, can Defense Counsel make in support of her position? Explain fully.
defense counsel can make a motion to suppress Ms. Rosie’s testimony. In support, defense counsel can argue that due process prohibits the admission of testimony of an eyewitness who, before trial, identified the defendant at a showup procedure so suggestive that it creates a high likelihood that the witness will erroneously identify the defendant as the perpetrator. Officer’s presentation of Wilbur to Ms. Rosie with the comment suggesting officers thought he was the perpetrator was such an impermissibly suggestive procedure.
07/10: Prosecutor believes that, regardless of the evidence introduced at trial, it will be virtually impossible to convict Wilbur in his hometown due to his widespread fame as a basketball player and the efforts that the media, businesses, and residents have jointly attempted to bring about the dismissal of the charges.
What procedural step, if any, can Prosecutor take to seek relief from this problem? If there is some step that Prosecutor can take, what must Prosecutor show in order to obtain this relief? Explain fully.
prosecutor can move for a change of venue. At the hearing that will be held on the motion, the Prosecutor must show that because of influences in the original county in favor of defendant Wilbur, a fair and impartial trial to the state cannot be held
