Tx Crim P/E Flashcards
1
Q
02/09: What are three rules that a court should follow when fixing the amount of bail?
A
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
2
Q
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.
A
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.
3
Q
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.
A
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.
4
Q
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.
A
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.
5
Q
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.
A
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.
6
Q
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.
A
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.
7
Q
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.
A
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.
8
Q
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.
A
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.
9
Q
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.
A
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.
10
Q
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.
A
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.
11
Q
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.
A
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.
12
Q
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.
A
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.
13
Q
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.
A
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.
14
Q
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.
A
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.
15
Q
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.
A
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.
16
Q
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.
A
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.
17
Q
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.
A
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.
18
Q
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.
A
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.
19
Q
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.
A
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.
20
Q
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.
A
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.
21
Q
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.
A
No. A search warrant may also authorize an arrest and thus constitute an arrest warrant as well as a search warrant.
22
Q
07/09: Did Detective Don have the authority to break down Ike’s door in order to enter the apartment? Explain fully.
A
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.
23
Q
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
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.
24
Q
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.
A
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.
25
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
26
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.
27
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.
28
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.
29
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.
30
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.
31
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.
32
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
33
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).
34
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.
35
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.
36
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.
37
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.
38
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.
39
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.
40
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.
41
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.
42
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
43
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.
44
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.
45
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
46
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
47
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
48
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
49
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
50
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.
51
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
52
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.
53
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
54
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.
55
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.
56
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.
57
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.
58
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
59
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
60
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.
61
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
62
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
63
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.
64
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.
65
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.
66
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.
67
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
68
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
69
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
70
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
71
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.
72
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
73
07/10: Wilbur insists that he is not guilty, and he tells Defense Counsel he wants a jury trial.
What three questions must the court ask in testing the qualifications of a prospective juror?
Explain fully.
The three questions are:
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?
74
07/10: During jury selection, Prosecutor uses his peremptory challenges to strike all of the male prospective
What procedural step can Defense Counsel take to challenge Prosecutor's action? How may Prosecutor rebut this challenge? What must Defense Counsel show to succeed in her challenge? Explain fully.
counsel can make a batson challenge. Specifically, she should make a challenge to array after both sides submit their lists of challenges to the judge and before the judge impanels the final jury. Since prosecutor’s striking of all males makes a Prima facie case of gender motivation, prosecutor may rebut this by explaining its challenge on gender neutral grounds. Ultimately, defense counsel has the burden of persuading the judge that prosecutor’s
peremptory challenges were actually made on gender grounds
75
07/10: As his first witness at trial, Prosecutor calls a handwriting expert. The expert testifies that he compared the spray painted writing on RHS's walls to the known writing of Wilbur and concluded that they were written by the same person.
Can an expert's testimony of handwriting by comparison alone be sufficient to establish the handwriting of a person? Explain fully.
proof by comparison of handwriting, either by experts or the jury without expert testimony, is not sufficient to establish that the handwriting that of a witness or person, if that witness or person denies under oath that this is his signature. If the witness or person does not so deny that the signature is his, comparison is sufficient.
76
07/10: Prosecutor calls Ms. Rosie as his next witness to testify about the male she saw lurking near RHS. In order to discredit Ms. Rosie, Defense Counsel begins to cross-examine her about her conviction eight years ago for the misdemeanor of driving while her license was suspended. Prosecutor objects to Defense Counsel's cross-examination on this topic.
How should the Court rule on Prosecutor's objection? Explain fully.
the objection should be sustained. A witness can be impeached by a prior conviction for a misdemeanor only if that misdemeanor was a crime involving moral turpitude. Driving while one’s license is suspended does not involve moral turpitude.
77
07/10: After Prosecutor presents his case in chief, Defense Counsel begins to present the defense. As her first witness, Defense Counsel calls the minister from Wilbur's church, who testifies that Wilbur is a law abiding citizen who would never deface private or public property. During cross-examination, Prosecutor asks the minister: "Isn't it a fact that Wilbur has privately obtained spiritual advice from you regarding his urge to express himself by spray painting public buildings?"
On what basis can Defense Counsel object to Prosecutor's question? What should Prosecutor argue in response? Explain fully.
defense counsel should object on the ground that the answer to the question would reveal a confidential communication by Wilbur to a member of the clergy in the ministers professional character as a spiritual adviser. Prosecutor should respond that under evidence rule 511, the protection of the privilege is waived if the person with the privilege calls the spiritual adviser as a character witness and the communications are relevant to the aspects of character as to which the adviser testifies. Here, urges to spray are relevant to Wilbur’s character regarding defacing property of others.
78
07/10: After the close of the evidence, Defense Counsel believes that Prosecutor has not presented any evidence to prove that the building that was spray painted was a school, as alleged in the indictment. Without that proof, Defense Counsel believes that Wilbur at most can be found guilty of the Class A misdemeanor of graffiti, which is a lesser included offense of the felonies charged in the indictment.
Does the Code of Criminal Procedure confine the jury to reaching a verdict only on the state jail felonies charged in the indictment, or does it provide for some other alternative? Explain fully.
the code provides for a jury to convict a defendant of a less serious offense then the offense charged in the indictment. The jury should be given this alternative only if both:
1) that offense is a lesser included offense of the charged offense, which means it requires proof of some but not all of the facts required for the charged offense; and
2) there is evidence before the jury that the defendant is not guilty of the charged offense but is guilty of the less serious one
79
07/10: During closing argument, Prosecutor makes the following comments:
Ladies and gentlemen of the jury, you heard Officer testify about his arrest of Wilbur. Ms. Rosie identified Wilbur as the person who was lurking around RHS. And, you saw the pictures on Wilbur's cell phone. We have met our burden of proof. The presumption of innocence is for the truly innocent only, and the presumption disappears once some evidence of defendant's guilt is offered. The burden of proof beyond a reasonable doubt is a shield for the innocent, not a barrier to conviction for the guilty.
On what grounds, if any, can Defense Counsel object to these remarks?
defense counsel can object that prosecutors argument mistakes the law applicable to the case. Prosecutor has argued that the state’s introduction of some evidence of guilt makes the presumption of innocence and the burden of proof beyond a reasonable doubt inapplicable. That is not the case. The presumption of innocence and the burden of proof beyond a reasonable doubt must be applied by the jury in considering whether the evidence introduced the accused’s guilt beyond a reasonable doubt
80
07/10: The jury convicts Wilbur, and sentence is imposed. After the trial is over, Wilbur complains to Defense Counsel that she failed to investigate his claims that: (I) he was in a town I 00 miles away from RHS on the night that Ms. Rosie saw the male with a can of spray paint lurking around RHS; and (2) the cell phone in his pocket when he was arrested belonged to his girlfriend, and she took the pictures of RHS that were on the cell phone.
If Wilbur's claims are true, what legal ground does he have to attack his convictions? What legal standard must he meet to prevail?
he may attack his conviction on the ground that defense council’s failure to investigate violated his sixth amendment right to adequate defense representation. To prevail, he must establish two things:
1) council’s failure to investigate was below the standard of professional competence and not simply a tactical decision; and
2) there is a reasonable probability that if counsel had performed adequately—that is, investigated his claims—the outcome of the proceeding would have been different
81
02/11: Was Officer authorized to arrest Viggo in Fort Bend County on the basis of an arrest warrant that was issued in Harris County? Explain fully.
yes. Under the Texas code of criminal procedure, a valid arrest warrant issued by a magistrate extends to every part of the state. Any peace officer is authorized to execute the warrant.
82
02/11: What are three requirements for an arrest warrant?
the three requirements for an arrest warrant are:
1) an arrest warrant must be issued in the name of the state of Texas,
2) it must specify the name of the person to be arrested (or a reasonably definite description of the person is his name is unknown),
3) it must name the offense the person is accused of, and 4) it must be signed by a magistrate and name his office.
83
02/11: Because it was the most expeditious way to warn Viggo about his rights, he was returned to Harris
County and taken before a magistrate in Houston 36 hours after his arrest.
Was Viggo taken before the magistrate in a timely manner? Explain fully.
yes. An arrestee must be brought before a magistrate without unnecessary delay, but not later than 48 HRS. The arresting officer may take him before a magistrate in the county where he was arrested or, if it is more expeditious, before a magistrate in another county.
84
02/11: You are appointed as Viggo's attorney. At the examining trial, the prosecutor ("Prosecutor") calls Officer to testify about Owner's description of the robbery and the robbers. When you object to this hearsay testimony, Prosecutor states that this is just an examining trial, not a jury trial, and that the rules of evidence do not apply.
Is Prosecutor's statement correct? Explain fully.
No. Pursuant to the code, the same rules of evidence that govern a criminal trial also apply to an examining trial.
85
02/11: Viggo asks you whether he can be released on bail.
What are three rules for fixing the amount of bail?
Bail is to be sufficiently high to ensure that the defendant appears for court settings and for trial; bail must not be set so high as to be an instrument of oppression. In determining bail, a judge must consider:
1) the nature of the charged offense;
2) the defendant’s ability to make bail; and
3) the future safety of the victim and the community.
86
02/11: After a grand jury is selected, the grand jurors send for Prosecutor and ask for his legal advice concerning their investigation of Keith, Viggo, and the robbery. Prosecutor appears before the grand jurors and gives them legal advice.
Did the grand jurors violate the law by asking Prosecutor for his legal advice? Explain fully.
No. Under the code, a grand jury may send for the atty representing the state (prosecutor) and ask for his advice on any matter of law
87
02/11: Keith and Viggo are charged in the same indictment with acting together to commit aggravated robbery against Owner at Convenience on December 27, 2010, in Houston, Harris County, Texas.
Was the grand jury required to charge Keith and Viggo individually in two separate indictments with aggravated robbery? Explain fully.
No. More than one defendant may be charged in a single indictment if they are both charged with the same offense
88
02/11: Prosecutor thinks Owner will not recover from his injuries and be able to testify at trial. However, Cardholder will be available to testify at trial. Prosecutor files a motion to amend the indictment to charge Viggo with the state jail felony of credit card abuse for using the stolen credit card at Variety. You object to Prosecutor's motion.
How should the Court rule on Prosecutor's motion? Explain fully.
the court should deny the motion. Because the charge of credit card abuse is a completely different and additional crime, prosecutor must go back to the grand jury to have it indict Viggo for that crime. An indictment cannot be amended by the court to add an additional charge.
89
02/11: Prosecutor informs you that he intends to introduce the stolen credit card into evidence at trial. You file a motion to suppress this evidence arguing that Viggo did not consent to the search of his property and that there was no search warrant for Viggo's property.
How should the Court rule on your motion to suppress? Explain fully.
the court should deny the motion. Under the inventory exception to the warrant requirement, the lease may inventory all of the items on a person so long as the police follow an existing department policy and are not engaged in general rummaging. Because the stolen credit card was found pursuant to a routine inventory search, it is admissible. Additionally, if the credit card was discovered immediately following Viggo’s arrest, it would also be a admissible under the search incident to arrest doctrine.
90
02/11: Viggo tells you that he really wants to be placed on community supervision if he is convicted of the aggravated robbery charge because he needs to work to support his wife and children.
Should Viggo have the judge assess punishment? Explain fully.
no. For most offenses, judges can place defendants on community supervision. However, for certain enumerated and particularly serious offenses—including the crime of aggravated robbery—judges may not impose community supervision. Only a jury can impose community supervision for aggravated robbery.
91
02/11: If Viggo chooses to have the jury assess punishment, what procedural step must you take to accomplish this, and by what deadline must you take that step? Explain fully.
Viggo must file a sworn motion for community supervision before trial has begun. To have a jury assess punishment, Viggo must elect this in writing before the commencement of voir dire.
92
02/11: If a jury assesses punishment, can it place Viggo on deferred adjudication? Explain fully.
No. Only a judge can place Viggo on deferred adjudication. To be eligible for deferred adjudication, Viggo must plead guilty or nolo contender rather than proceeding to trial and being found guilty
93
02/11: Viggo asks you to negotiate a plea agreement in which Prosecutor agrees to recommend a prison sentence of only a few years.
If Prosecutor agrees to recommend a specific prison sentence as part of the plea agreement with
Viggo, is the Court required to impose that sentence? Explain fully.
no. A court is not obligated to follow the plea agreement reached by prosecutor and Viggo. However, if the court refuses to impose the sentence recommended by prosecutor and agreed to by Viggo, then the court must allow Viggo to withdraw his guilty plea
94
02/11: Viggo decides that he wants a trial.
If Viggo has a jury trial and is tried alone, how many peremptory challenges to prospective jurors may Viggo and Prosecutor each make? If Keith and Viggo are tried together, how many peremptory challenges may Viggo, Keith, and Prosecutor each make? Explain fully.
in felony cases where the state does not seek the death penalty, the prosecutor and defendant each may make 10 peremptory challenges. However, if Viggo and Keith are tried together, they are each entitled to six peremptory challenges, and prosecutor is entitled to 12 peremptory challenges (six for each defendant).
95
02/11: What are three challenges for cause that may be made by the State or the defendant to prospective jurors?
the state or defendant may make a challenge for cause for a number of reasons, including that the juror
1) is not a qualified voter;
2) has been convicted of or is presently under indictment for theft or a felony; or
3) is biased or prejudiced
96
02/11: Keith decides to cooperate with Prosecutor, and Prosecutor calls him as his first witness at trial. Keith testifies that he and Viggo purchased the two shotguns, the ammunition, and the two ski masks at Variety and subsequently went to Convenience and robbed Owner. During Keith's testimony, Prosecutor also introduces into evidence Keith's shotgun, his ski mask, and the cash register.
Can Viggo be convicted on the basis of this evidence? Explain fully.
no. Because Keith is an accomplice, Viggo can be convicted on keith’s testimony only if there is sufficient corroborating evidence linking Viggo the crime. While the shotgun, ski mask, and cash register provide corroboration that the crime occurred, those items are not link Viggo to the crime. The evidence is therefore inadequate.
97
02/11: Prosecutor calls as his next witness, Variety's custodian of records in order to introduce into evidence the credit card receipt for the purchase of the shotguns, ammunition, and ski masks.
What evidentiary predicate must the custodian of records provide in order for the receipt to be admitted into evidence? Explain fully.
the evidentiary predicate must show that the receipt was kept in the regular course of business, that it was the regular course of business for a person with knowledge to make the record, that the receipt was made at or near the time of the event, and that the witness is the custodian of records.
98
02/11: Prosecutor intends to call as his next witness a man named "Lefty," who will testifY as follows:
Four of us were involved in the robbery: me, Keith, Viggo, and a guy named "HurtU." HurtU said: "Viggo, here's a stolen credit card. Go to Variety and buy the weapons. Then rob Convenience on December 27th because the store usually is not crowded between Christmas and New Year's Day. Lefty, you stand outside as a lookout, and Keith and Viggo, you guys go inside and get the money in the cash register." We pulled off the robbery just like HurtU told us.
You object to the admission of Lefty's testimony into evidence.
How should the Court rule on your objection? Explain fully.
a court should sustain the objection. Because HurtU is not a defendant in the case, the statements are not admissible under the hearsay exception for party opponents. Additionally, because HurtU’s statements have not been corroborated, they are not admissible as statements against interest.
99
02/11: At the end of trial, Viggo is convicted of aggravated robbery as charged in the indictment.
Describe two situations in which a judge is not required to direct a probation officer to prepare a presentence report in a felony case. Explain fully.
the judge is not required to direct a pre-sentence report if
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 intends to follow the agreement; or
4) the defendant is convicted of capital murder.
100
02/11: Before punishment is assessed, the Court permits Owner to appear in person and present a statement to the Court and Viggo about the effect that the offense had on him as a victim. You object to this procedure, but the Court overrules your objection. After Owner makes his statement, Viggo is sentenced to serve ten years in prison.
Was the Court's ruling on your objection correct? Explain fully.
no. Also the court must permit the victim to present a statement about how the crime has affected him, the statement can be given only after punishment has been assessed. Here, the owners of a statement was made before punishment was assessed, and it is therefore
improper.
101
07/11: Name three of the rights about which the magistrate should advise Sally.
The magistrate should advise Sally of:
1) the accusations against her,
2) her right to counsel,
3) her right to remain silent,
4) her right to have an Atty present during questioning,
5) a right to terminate the interview at any time, and
6) her right to an examining trial.
102
07/11: You are appointed to represent Sally, who is being held in jail without bail.
Within what time period should you contact Sally? What may the Court do if you fail to meet this deadline? Explain fully.
as sally’s appointed lawyer, Bail must make every reasonable effort to contact her no later than the end of the first working day after the date of being appointed. If I fail to meet that deadline, a court may replace me.
103
07/11: What facts, if any, in Sally's prior criminal record would allow a district judge to deny Sally bail? Explain fully.
a judge can deny bail if Sally
1) has two prior felony convictions;
2) committed the present offense while on bail for another felony; or
3) had a prior felony conviction and committed the present offense with a deadly weapon
104
07/11: When you meet with Sally in jail, she claims she was merely gathering information for a survey of consumers' food preferences. She also asks you whether a judge can "throw out" the charges against her.
At this early stage of the prosecution of Sally, is she entitled to a proceeding in which the truth of the accusation made against her will be considered? If there is such a proceeding, what is it, and what determination will be made? Explain fully.
because Sally has been charged with a felony and has not yet been indicted, she is entitled to an examining trial. At an examining trial, the magistrate will determine whether there is enough evidence to demonstrate probable cause to believe Sally is guilty of the crime
105
07/11: Det. Loss is considering obtaining a search warrant for Sally's apartment.
What are the requisites for a search warrant to be sufficient under the Texas Code of Criminal
Procedure? Explain fully.
a search warrant must contain
1) a statement that it runs in the name of a state of Texas;
2) a specification of the person, place, or thing to research; 3) a specification of the items to be seized;
4) an endorsement of the date and our it was issued; and
5) the signature of the issuing magistrate.
106
07/11: Due to your efforts, bail is set for Sally, and she is released from jail. Sally subsequently disappears, and no one is able to locate her. Thereafter, a grand jury indicts her for the second degree felony of. fraudulently obtaining, possessing, and using the identifying information of another.
How many jurors serve on a grand jury, how many must concur for a person to be indicted, and who drafts the indictment? Explain fully.
a grand jury consists of 12 jurors and two alternate jurors. Nine grand jurors must concur for there to be a true bill and for Sally to be indicted. The Atty. Who represents the state (prosecutor) then drafts the indictment.
107
07/11: After Sally is indicted, the clerk, at the direction of the judge of the Court having jurisdiction of Sally's case, issues a capias.
What is a capias? Explain fully.
a capias is a writ issued by a judge that directs a peace officer to arrest a person accused of an offense and to bring the arrested person before the court immediately or on a day specified in the writ
108
07/11: The Court sets a pretrial hearing in Sally's case. Due to the popularity of Restaurant, you decide to file a motion for change of venue.
When must you file your motion? What consequence, if any, is there if you do not file your motion by that date? Explain fully.
a motion for change of venue must be filed at least seven days before the pretrial hearing. Failure to do so will prevent any later motion to change venue unless the court gives permission for good cause shown
109
07/11: After Sally is located, you meet with her. She states that she would be willing to plead guilty, but that she wants a jury to assess the punishment in her case.
Does the Texas Code of Criminal Procedure allow a jury to assess punishment when a defendant enters a guilty plea? Explain fully.
yes. The code specifies that if a defendant pleads guilty, a jury may be impaneled to assess punishment if the defendant elects jury sentencing
110
07/11: You phone the prosecutor ("Prosecutor") in Sally's case and request to inspect the credit card reader that was confiscated from Wendy so that you can prepare for trial. Prosecutor refuses to allow you to inspect the credit card reader.
What procedural step, if any, can you take to try to get access to the credit card reader? If there is such a procedural step, what must you show to get access to the credit card reader? Explain fully.
as sally’s Atty., I can move to inspect the credit card reader. I must demonstrate that it is a tangible item, and contains material evidence, is in the possession of the state, it is not work product of the state
111
07/11: You propose a plea bargain to Prosecutor that would allow Sally to plead guilty to a misdemeanor that is a lesser included offense of the offense charged in the indictment.
Does the district court have jurisdiction over such a lesser included offense? Explain fully.
yes. Under the code, a district court has jurisdiction over felonies as well as many lesser included offense, even if that offense is a misdemeanor
112
07/11: Sally tells you that she wants a jury trial as to her guilt and her punishment. She also tells you that: (a) if she is found guilty, she wants probation; and (b) she has no prior convictions in Texas, but has a prior felony conviction in Idaho.
Is Sally eligible for probation? If a defendant is eligible for probation, what procedural step should defense counsel take to allow a jury to recommend it, and when should defense counsel take this step? Explain fully.
no. To be eligible for probation, a defendant must file a sworn application for probation stating, in writing, that the defendant has never been convicted of a felony. The application for probation must be filed pretrial
113
07/11: You and Sally appear in court for jury selection. About an hour after the beginning of jury selection, and after numerous prospective jurors have been questioned regarding their ability to be fair in Sally's case, Sally tells you that she thinks 18 out of the first 20 prospective jurors are customers of Restaurant.
What action, if any, can you take to change the seating of the prospective jurors? Explain fully.
either the defendant or the state may request a jury shuffle in which the jury is randomly reseated. There can be only one shuffle per case. Unfortunately for Sally, a jury shuffle must be requested before voir dire of the panel begins, and here an hour of jury selection has already occurred.
114
07/11: During jury selection, Prosecutor asks the prospective jurors the following question: "If the evidence, in a hypothetical case, showed that a person gave a credit card reader to a waitress, asked her to swipe customers' credit cards through it, and then retrieved it on a weekly basis, is there anyone who could not convict that person based on that evidence?" You object to the question.
How should the Court rule on your objection? Explain fully.
the court should sustain the objection. Prosecutor has asked improper commitment question. The question does not specify that each element of the offense must be proven beyond a reasonable doubt. Jurors cannot be asked to commit to a hypothetical scenario without this information.
115
07/11: After the jury is selected, Prosecutor informs you that he intends to introduce into evidence Wendy's statement to Det. Loss when she was arrested because Wendy is asserting her right to remain silent.
What objections or requests, if any, should you make with regard to the admission of Wendy's statement? Explain fully.
Sally’s attorney Should object that admitting Wendy’s statement violates the confrontation clause because Sally will not have an opportunity to cross examine Wendy in court. Sally can request that Wendy’s statement be redacted to eliminate any references to Sally before it is read to the jury.
116
07/11: Prosecutor makes a deal with Wendy that he will not prosecute her if she testifies against Sally. Wendy testifies at trial and incriminates Sally. On cross-examination, you ask Wendy: "Isn't it true that you made a deal with Prosecutor and that is why you aren't being prosecuted?" Prosecutor objects that the status of Wendy's prosecution is irrelevant to Sally's guilt.
How should the Court rule on Prosecutor's objection? Explain fully.
The court should overrule prosecutors objection. If there is such an agreement, it shows a motive for Wendy to falsify her testimony, thus showing bias or interest. Inquiry into any such agreement is a proper subject for cross examination
117
07/11: Prosecutor calls Emmett as a witness, and he testifies that: (1) there was an erroneous charge on his credit card for a purchase in Illinois; (2) he has no idea whether his credit card infonnation was stolen at Restaurant; and (3) he never noticed any unusual behavior by Wendy. Prosecutor then asks Emmett: "Do you have any opinion about whether Sally knowingly and intentionally committed the crime charged in the indictment?"
On what grounds, if any, can you object to Prosecutor's question? Explain fully.
I can object that Emmett has no factual basis for opining on whether Sally committed the crime. Emmett has offered no testimony about sally’s involvement or her mental state. Furthermore, as a fact witness, Emmett should be permitted to testify only about facts within his knowledge,
not his opinions
118
07/11: During your cross examination of Emmett, you try to attack his credibility by asking him: "Didn't you lie on Tuesday about having an affair with your boss?"
Prosecutor objects to your question.
How should the Court rule? Explain fully.
court should sustain the objection. A party can contradict a witness’s testimony with extrinsic evidence, but only if the matter is one of the party would be able to prove as part of the parties own case. Whether Emmett lied about an affair is a collateral matter, however, and cannot be the subject of cross examination
119
07/11: After closing argument and about an hour into jury deliberations, the jurors disagree about whether Emmett testified that the erroneous credit card charge resulted from a purchase made in Illinois or a purchase made in Texas.
What can the jury do, if anything, to find out what Emmett actually testified to? Explain fully.
if jurors disagree about a witness’s statement, the jury may request of the judge that the court reporter read the relevant testimony from her notes. The jury may not request that other portions of the witness’s testimony be read. If there is no court reporter or if her notes cannot be read, the jury can request that the witness again be brought to the stand to repeat the relevant portion of his testimony.
120
07/11: Sally is convicted and the sentence is imposed. She appeals challenging the legal sufficiency of the evidence to support her conviction.
What is the standard of review for the legal sufficiency of the evidence? Explain fully.
the standard for legal sufficiency is “viewing the evidence in the light favorable to the state, could a rational jury have found all elements of the crime proved beyond a reasonable doubt.” This standard is very deferential the prosecution, so Sally is unlikely to be successful
121
02/12: Was Sgt. Law's arrest of Bubba valid? Explain fully.
probably not. The code requires a warrant to arrest, subject to a handful of exceptions. It is possible that this situation could fall under the exception for a suspect being found in a suspicious place, although that would be a weak argument. Other exceptions to the arrest warrant requirement—such as the offense being committed in view, the suspect being about to escape, violating a protective order, or the suspect confessing to an officer about a felony—are not applicable here.
122
02/12: If Bubba is denied bail, what procedural step can you take to challenge that ruling, and what are two of the requisites of that procedural step? Explain fully.
you can file a petition for a writ of habeas corpus. The requisites of the petition are that it:
1) state that the defendant is illegally restrained and by whom;
2) attached a copy of the order confining him;
3) pray for a writ of habeas corpus; and
4) swear that the allegations in the petition are true
123
02/12: When you meet with Bubba, he tells you that he was unaware of what he was doing when he hid the security camera in the bathroom and put the video recordings on the Internet. Bubba states that he had a mental episode that caused him to lose all control of his brain and that he has had similar episodes throughout his life. He tells you that he is fine now and has no problem as long as he takes his medication.
Should you consider raising (a) incompetency, (b) insanity, or (c) both as a defense at Bubba's jury trial? Explain fully.
you should raise insanity because Bubba might have been insane at the time he committed the crime, which would be a defense. By contrast, incompetency refers to Bubba’s inability to stand trial because he does not understand the proceedings or lacks the ability to console with counsel. Competency is not a defense crime itself. Even though Bubba says he is fine now, you should nevertheless have him examined by a mental expert to ensure he is competent to stand trial
124
02/12: A grand jury indicts Bubba. The indictment alleges the following:
IN THE NAME AND BY THE AUTHORITY OF THE STATE OF TEXAS:
THE GRAND JURY hereby charges that, on December 11,2011, BUBBA PLATT did then and there intentionally and knowingly by videotape or other electronic means record, broadcast, and transmit a visual image of another, the Complainant, Edgar West, at a location that is a bathroom.
AGAINST THE PEACE AND DIGNITY OF THE STATE.
______________________________
FOREPERSON OF THE GRAND JURY
Identify three defects in this indictment. Explain fully.
the indictment is defective because
1) it does not demonstrate that the grand jury in session and that the indictment was presented in the district court of the county where the grand jury is in session;
2) it does not contain a date on which the indictment was issued and therefore cannot demonstrate that the crime occurred before the indictment was presented; and
3) it does not show the place where the offense was committed is within the jurisdiction of the court in which the indictment was presented
125
02/12: What procedural step, if any, can you take to challenge the indictment based on these defects?
If there is some procedural step you can take, by when must you take it?
you should file a motion to quash the indictment. The motion must be filed before the date trial begins
126
02/12: The case file of the prosecutor ("Prosecutor") contains Sgt. Law's notes of his discussions with Prosecutor about Bubba's case. You file a motion for discovery of all notes that Sgt. Law has made about Bubba's case.
How should the Court rule on your motion for discovery of Sgt. Law's notes? Explain fully.
the court should grant the motion. Under the discovery statute, any written or recorded statement made by a witness or law enforcement must be disclosed to the defendant
127
02/12: Prosecutor files a motion for discovery of the names and addresses of all witnesses that you intend to call at trial in Bubba's defense.
How should the Court rule on Prosecutor's motion to discover all witnesses that you intend to present at trial? Explain fully.
a court should deny the prosecutor’s motion. The code does not give the court authority to compel the defendant to provide the state with names and addresses of the defendants witnesses
128
02/12: Sgt. Law drafts a sworn affidavit for an evidentiary search warrant in order to search Bubba's home for all videotapes and video cameras present there. In his affidavit, Sgt. Law states that the videotapes and video cameras are located in Bubba's home, and he also states the home's correct address.
Is Sgt. Law's affidavit for the evidentiary search warrant sufficient? Explain fully.
no. The requirements for an evidentiary warrant or more rigorous. The affidavit must also establish probable cause: 1) of the specific offense that has been committed; and
2) that the described property (here, the videotape and camera) are evidence of that offense.
129
02/12: You timely file a written pretrial motion requesting that the Court prohibit Prosecutor from introducing into evidence Station's security camera and the videotape within it, because Sgt. Law seized them without a warrant.
What argument, if any, can Prosecutor make in response to your motion? Explain fully.
first, the prosecutor can argue that Bubba lacks standing since he has no reasonable expectation of privacy in stations videotapes or camera. Second, the prosecutor can argue that (even if Bubba has standing) the exigency exception applied because stations often tape over old videos and the evidence might disappear if officers had to seek a warrant
130
02/12: Bubba is considering entering a guilty plea to the indictment.
If Bubba enters a guilty plea and receives the sentence provided for in his plea agreement, will he be barred from appealing a denial of your motion to prohibit Prosecutor from introducing the security camera and videotape into evidence? Explain fully.
no. Generally, a defendant who pleads guilty pursuant to a plea bargain and gets a sentence within the bargain cannot appeal. However, defendants can appeal based on matters raised pretrial by written motion and ruled on before trial. Therefore, as long as Bubba’s motion was made a pretrial in writing, then he can appeal that issue
131
02/12: During discovery, Prosecutor gives you the copies of the security camera's videotape. As you are viewing the videotape, you see that the trial judge in Bubba's case was recorded while using Station's bathroom.
What procedural step, if any, can you take to ensure that Bubba has a fair and impartial judge presiding over his trial? What legal basis, if any, is there for taking a procedural step in these circumstances? Explain fully.
you can move to disqualify the judge. Judges can be disqualified if they were victims of the crime, counsel for either side, biased, or related to the defendant or victim within 3 degrees. Here it appears the judge was a victim of the crime and should be disqualified
132
02/12: You plan to call Bubba's psychiatrist to testify at trial about Bubba's mental affliction and its effect on his behavior and thoughts. Unfortunately, the psychiatrist is visiting a foreign country and will not return until after Bubba's trial date.
What procedural step can you take to seek a postponement of the trial? What are two of the requisites you must satisfy as part of this procedural step? Explain fully?
you can file a written motion for a continuance demonstrating good cause. Specifically, you must demonstrate the name and address of the witness, the efforts made by the defense to find and get the witness to court, and the material facts the defense expects the witness to prove
133
02/12: Bubba chooses to have a jury decide whether he is guilty, and the court holds a pretrial hearing to discuss the trial schedule. The trial will be held in Midland County, Texas.
During jury selection, three prospective jurors provide the following information: (1) Juror A is qualified to vote in Midland County, Texas, but has not registered to vote there; (2) Juror B has been convicted of misdemeanor theft; and (3) Juror C has been charged with, but not convicted of, misdemeanor theft. Prosecutor challenges all three of these jurors for cause, and you oppose Prosecutor's challenge.
How should the Court rule on Prosecutor's challenges for cause of Jurors A, B, and C? Explain fully.
the court should overrule a challenge juror A. A prospective juror must be qualified to vote but need not actually be registered. The court should grant the challenges for jurors B and C. Any prospective juror who has been convicted of theft or is currently under a formal charge of theft should be struck for cause
134
02/12: The Court allows you and Prosecutor eight peremptory challenges each. You use your seventh and eighth peremptory challenges to strike two prospective jurors because they are wearing ugly plaid shirts. The Court asks you to justify your seventh and eighth peremptory challenges.
Did the Court allow you the correct number of peremptory challenges? Were you entitled to use your peremptory challenges to strike jurors based on their ugly plaid shirts, and must you justify your use of your peremptory challenges? Explain fully.
no. The court should give each side 10 peremptory challenges in felony cases. You can use peremptory challenges to strike the jurors for ugly plaid shirts, and you do not need to justify your strikes. You only have to justify peremptory challenges if the other party alleges they were motivated by race or gender, rather than neutral criteria.
135
02/12: After a jury is impaneled, what are the first two steps in the order of proceeding in trial? If these two steps are skipped, can the error be fixed later in the trial? Explain fully.
the first two steps of trial are
1) the reading of the indictment or information to the jury by the prosecutor; and
2) the entry of a plea by the defendant. Failure to take these steps can be fixed during trial.
Upon learning of the error, the indictment should be read to the jury and the defendant should enter a plea. Thereafter, the state should reintroduce the evidence or the parties may stipulate to the evidence already presented.
136
02/12: Prosecutor calls Sgt. Law as his first witness at trial. Sgt. Law begins to testify about Bubba's oral confession at the jail on the day of his arrest. You object that such testimony is inadmissible because you were never informed about the confession in response to your request for discovery. Prosecutor hands you a tape recording of the confession and argues that Bubba's oral statement is admissible.
By what deadline, if any, should Prosecutor have made the tape recording available to you, given his intent to introduce Bubba's oral statement at trial? Explain fully.
the prosecutor must provide the recording to the defense at least 20 days before trial. Oral confessions are disfavored, but can be admissible if they are actually recorded, reflect that the accused was warned of his rights and that he knowingly and voluntarily waived them, and all voices on the recording were identified
137
02/12: During a break in the trial, you listen to the tape recording ofBubba's oral statement and hear him talking about the devil in response to most of Sgt. Law's questions. Bubba also says "yes, yes, yes, ha, ha, ha" in response to Sgt. Law's question: "You know you want you to waive your Miranda rights and that the devil wants that too, don't you?" Later in the recording you hear Bubba say, "I did it, I did it, I did it!," in response to Sgt. Law's question: "You know that the devil will get you if you do not admit that you placed the security camera in the bathroom, don't you?"
Had Prosecutor given you the tape recording of Bubba's confession prior to trial, what procedural step would you have taken to obtain a ruling that the confession was inadmissible and on what legal basis would you have taken this step? Explain fully.
you would have filed a motion to suppress the confession. First, I would argue that Bubba did not validly waive his Miranda rights because he did not do so voluntarily, since he was led to believe that the devil wanted him to. Second, you would argue that Sargent Law coerced
Bubba’s confession through extreme psychological trickery and threats of force by saying “devil will get you” if you don’t confess
138
02/12: Prosecutor informs you that his next witness will testify that Bubba assaulted him two years ago.
What objections, if any, should you make to the admissibility of this testimony? Explain fully.
you should object that extraneous offense evidence is not typically admissible. The exceptions to this rule—prove motive, intent, malice, identity, or common scheme or plan—are not implicated here, because a prior assault has nothing to do with the current charge of improper visual recording
139
02/12: You filed no pleading concerning the assessment of Bubba's punishment. Will the judge or the jury assess punishment in this case? Explain fully.
the judge will assess punishment. The defendant has the option to elect jury sentencing, but to do so he must elect the jury before the start of trial. At this point, it is too late for Bubba to ask for a jury, so the judge will impose punishment.
140
02/12: Bubba is convicted, sentenced, and sent to jail. Some of the people he videotaped using Station's bathroom were minors. He thus is charged in federal court with producing child pornography based on the same security camera and videotape that were used to obtain his Texas conviction for improper visual recording.
Does the federal prosecution for producing child pornography violate the Double Jeopardy
Clause of the United States Constitution? Explain fully.
no. First, Texas and the Federal government are separate sovereigns. Under the dual sovereignty doctrine, separate sovereigns can prosecute in succession. Second, improper visual recording is a different offense then child pornography for double jeopardy purposes. Because each of those crimes requires proof of at least one element that the other does not, they can be prosecuted in succession without violating the prohibition on double jeopardy
141
07/12: Was Deputy required to obtain an arrest warrant to arrest Hank? Explain fully.
no. Although the code ordinarily requires officers to procure an arrest warrant, there are exceptions. An officer may conduct a warrantless arrest when the offender commits, in the office is view, a felony or a misdemeanor that is against the public peace. Texas courts have concluded that the misdemeanor of unlawfully carrying a weapon is a breach of the public peace that authorizes a warrantless arrest. Additionally, the prosecutor could argue that Hank was found in a suspicious place, which would also authorize a warrantless arrest.
142
07/12: What are three of the requirements that had to be met for Deputy to legally make a warrantless arrest of Bobby?
an officer can make a warrantless arrest when, based on information from a credible person, the officer believes a felony has been committed and the suspect is about to escape. Therefore, the officer may arrest bobby without a warrant if
1) Susie is a credible witness;
2) there is probable cause to believe bobby was involved in a felony (here aggravated kidnapping); and
3) body is about to escape and there is no time to procure a warrant (because he is in the lobby and in close proximity to his vehicle)
143
07/12: Hank and Bobby are each charged by a complaint with aggravated kidnapping. Hank hires an attorney, and you are appointed to be Bobby's attorney.
Where may or must the prosecution of Hank and Bobby for aggravated kidnapping take place? in a kidnapping prosecution, venue is proper in the county where the offense was committed and in any county through which the victim was taken. Thus, in this case, venue would be proper in Harris county, Tarrant county, or any county Hank and bobby traveled through with Susie
144
07/12: A magistrate holds an examining trial on the aggravated kidnapping charge against Bobby, but his jailors leave him in his jail cell instead of bringing him to court.
Is it permissible to conduct the examining trial in Bobby's absence? Explain fully.
no. Bobby has the right to be present at the examining trial. An examining trial is a pretrial hearing to determine whether there is probable cause to believe the defendant is guilty of the crime. In order to challenge the evidence against him and consult with counsel, bobby must be allowed to be present at the examining trial.
145
07/12: Bobby demands that he have an opportunity to tell his side of the story to the magistrate at his examining trial. You advise Bobby that, to do this, he will be required to testify under oath.
Is your advice to Bobby correct? Explain fully.
no. Ordinarily, testimony at an examining trial is sworn in under oath. However, the code affords a defendant the right to make a voluntary statement before the examination of any witnesses. The defendant’s statement at the examining trial is transcribed by a reporter, but not sworn under oath
146
07/12: By order of the Court, an officer summoned persons for service on a grand jury to investigate and consider Suzie's kidnapping. Your investigation discovers, however, that this officer acted corruptly in summoning many of these people.
What procedural step, if any, should you take in light of the officer's actions? If there is such a procedural step, when should you take it? Explain fully.
counsel should make a challenge to the grand jury array on the grounds that the code requires that grand jurors represent a broad cross section of the population considering race, sex, and age. If counsel has this information before the grand jury is impaneled, a challenge to the array should be made during the grand jury selection process. If the grand jury has already been impaneled, counsel can raise the challenge later by making a motion to set aside the indictment and showing that there was no opportunity to raise a challenge to the array
147
07/12: Hank and Bobby are charged in the same indictment with having committed the first degree felony of aggravated kidnapping, by abducting Suzie by use of a deadly weapon. You locate a witness who will testify that Suzie voluntarily ran away with Hank to marry him.
Prior to trial, what procedural step, if any, can you take to have the Court dismiss the indictment based on the insufficiency of the evidence to convict Bobby? Explain fully.
counsel can move to quash the indictment. This is very unlikely to be successful, however, because a claim that evidence is insufficient is ordinarily not grounds to dismiss an indictment
148
07/12: Bobby is considering pleading guilty. You negotiate an extremely lenient plea bargain and ask the prosecutor ( 11 Prosecutor") not to let Suzie know about it.
If Bobby pleads guilty, will Prosecutor be able to get through the guilty plea proceeding without letting the Court know whether Suzie has been told about the plea agreement? Explain fully.
no. The code requires that the court asked whether Susie is aware of the plea bargain agreement. Specifically, before accepting a guilty plea, the court must ask the prosecutor
1) whether a victim impact statement has been returned to the state, and
2) whether the prosecutor has notified the victim about the existence and terms of the plea bargain agreement.
The court is required to “substantially complied” with these requirements, although the defendant may not move to set aside his conviction if the court fails to comply
149
07/12: Bobby has no prior criminal record. The Court has ruled that Prosecutor will be allowed to introduce
Hank's prior aggravated assault conviction at the trial of Hank and Bobby.
What procedural step, if any, can you take on Bobby's behalf to try to avoid the introduction of
Hank's prior conviction? Explain fully.
counsel should move to sever Bobby’s trial from Hank’s trial. When a defendant has a prior conviction that is admissible only against himself, a codefendant must be granted severance if he requests it. Thus, bobby’s motion for severance should be granted.
150
07/12: Bobby decides he wants to go to trial, and he asks you whether he will have a better chance of getting community supervision at a trial to the judge or a trial to the jury.
What is your advice to Bobby? Explain fully.
bobby should ask for a trial by jury because he is charged with aggravated kidnapping, which is a 3 G offense. Only the jury (not the judge) can impose community supervision on a defendant convicted of a 3g offense
151
07/12:
Hank's attorney files a motion to prohibit Prosecutor from introducing into evidence the piece of paper that Deputy took from Hank's pocket on the ground that it was obtained as a result of an illegal search.
How should the Court rule on this motion? Explain fully.
The motion should be denied. It appears that Hank was lawfully arrested. Under the search incident to arrest doctrine, an officer may search the person of an arrestee and his immediate grabbing space. During the search incident to arrest, the officer can open all items, even if there is no reason to believe the item is incriminating or poses a danger to the officer. Deputy was therefore permitted to remove the paper from hanks pocket and open it, and hanks suppression motion should be denied.
152
07/12: Prosecutor also intends to introduce into evidence the rope and duct tape that were found inside of the backpack in Bobby's car.
What procedural step, if any, can you take to try to keep these items from being introduced into evidence, and on what legal ground, if any, can you do so? Explain fully.
counsel should move to suppress the duct tape and a rope found in bobby trunk, and this motion should be granted. Deputy searched pursuant to an inventory policy that gives deputy sole discretion to search in order to discover evidence of a crime. This is not a valid inventory policy. Inventories must be conducted pursuant to a standard administrative policy in which
all officers follow the same predetermined protocol. Additionally, inventories cannot be conducted for the purpose of discovering evidence. Rather, inventories must be conducted for the purpose of cataloging items in order to protect property and prevent false claims of theft
153
07/12: Prosecutor's case file includes Suzie's sworn written statement in which Suzie says that she used to be in love with Hank and wanted to run away with him.
Is Prosecutor required to disclose Suzie's sworn written statement to you? Explain fully.
yes. The prosecutor must disclose the statement pursuant to the Brady doctrine. Regardless of whether it is requested by the defense, prosecutors must disclose all favorable evidence that is material. Favorable evidence includes that which is exculpatory or could be used for impeachment. Here, the fact that Susie used to be in love with Hank is potentially favorable to the defense and it is material two susie’s allegations that she was kidnapped
154
07/12: Prior to trial, you make an application for a subpoena for the motel clerk who was on duty when Bobby was arrested.
List three things that you are required to state in your application for a subpoena.
to apply for a subpoena, the code requires the defendant or his Atty. To state
1) the name of the witness;
2) a location and location of a witness; and
3) that the witness’s testimony is material to the defense’s case.
155
07/12:
During jury selection, you request to ask prospective jurors one or two questions. The Court rules that your proposed questions are proper, but refuses to let you ask them because the Court's practice is to conduct voir dire without any participation by attorneys.
Is the Court's practice consistent with Texas law? Explain fully.
yes. The trial judge has discretion to allow counsel to personally examine perspective jurors, but the code does not require that counsel be permitted to do so and non capital cases. In capital felonies and which the state seeks the death penalty, counsel is entitled to personally participate in conducting the voir dire examination of perspective jurors. Here, and bobby have been charged with a felony (but not a capital felony in which prosecution seeks death penalty), so counsel has no right to personally address voir dire questions to prospective jurors
156
07/12: After the jury is selected and sworn, you discover that one of the jurors has previously been convicted of a felony.
What should you do to preserve this error for appeal, and when should you do it? Explain fully.
counsel should object as soon as they learn how about the jurors felony conviction and in no event later than when the verdict is entered. Conviction for a felony or misdemeanor theft renders a juror “absolutely disqualified.” The convention will be reversed for allowing an absolutely disqualified voter to sit only if
1) the defendant raises the disqualification before the verdict is entered; or
2) the disqualification was not discovered until after the verdict was entered, and the defendant is able to show significant harm by the service of the disqualified juror.
157
07/12: At trial, Prosecutor's first witness is Dr. Sam, who treated Suzie for abrasions on her wrists within an hour after Deputy discovered her in the motel room. Dr. Sam testifies that Suzie told him that the abrasions were caused by the rope that Hank had tied around her wrists. You object to this testimony on the ground that it is hearsay and request that the Court strike it.
How should the Court rule on your objection? Explain fully.
a court should overrule your objection, at least in part. While it is hearsay for Dr. Sam to testify about the out of court statements that Susie made to him, and there is an exception. Under the rules of evidence, statements made for purposes of medical diagnosis or treatment, including pain or symptoms, susie’s statements to Dr. Sam occurred within an hour of the entity arriving in the motel room, and the portion of her statement concerning the rope relates directly to her injuries. Thus, that part of the statement is admissible. Note, however, that the portion of the statement identifying Hank is not permit to her diagnosis or treatment. Thus, it may be excluded
158
07/12: During the trial, Suzie testifies that she never liked Hank and never wanted to run away with him. On cross-examination, you start to ask Suzie about her sworn written statement in which she said that she used to be in love with Hank and wanted to run away with him. Prosecutor objects that you cannot ask Suzie about her sworn written statement because it is hearsay.
How should the Court rule on Prosecutor's objection? Explain fully.
the court should probably overrule prosecutors objection. Under The rules of evidence, a sworn prior statement is not hearsay if it was given under oath subject to the penalty of perjury at trial, hearing, or other proceeding accept a grand jury proceeding in a criminal case, or in a deposition. If susie’s sworn statement was made in this context, it is not hearsay. Regardless, susie’s statement is likely a prior inconsistent statement that can be used to impeach her on cross examination.
159
07/12: You decide you want the jury to acquit Bobby based on the defense of duress.
What procedural step can you take to give the jury that option? How can you preserve the issue for appeal if the Court prohibits the jury from considering that option? Explain fully.
as long as counsel has introduced evidence to support a duress defense, then counsel should move that the jury be instructed that the defendant can be acquitted based on the affirmative evidence of duress. Council should make clear that there is evidence in the record to support an acquittal based on duress. If the judge refuses to instruct the jury about duress, council sould object to the jury instructions
160
07/12: Hank and Bobby are convicted and sentenced to serve a number of years in prison. Two days after the trial, a local newspaper quotes the following statement by one of the jurors: "During deliberations, I used my cell phone to call my cousin, who is a prosecutor. Based on what he knew about the case and his opinion that Hank and Bobby were guilty, all of the jurors voted to convict Hank and Bobby."
Is there a procedural step by which you can bring this matter to the trial court's attention? If there is such a procedural step, when should you take it? Explain fully.
counsel should file a motion for a new trial. A motion for a new trial can be granted on multiple grounds, including when
1) a juror conversed to about the case with someone who is not on the jury; or
2) jurors receive new evidence after retiring to deliberate.
Either of those two rationales would be grounds for a new trial. A motion for a new trial must be filed within 30 days of pronouncement of sentence and ordinarily must be presented to the court within 10 days of filing
161
02/13: Within what amount of time must Amy and Connie be brought before a magistrate?
pursuant to the code, Amy and Connie must be brought before a magistrate without unnecessary delay, but in any case no later than 48 hours after arrest.
162
02/13: You are appointed to represent Amy. The magistrate denies Amy bail even though she has no prior criminal record.
What procedural step, if any, can you take to challenge the denial of bail?
Amy can challenge of the denial of bail by immediately appealing the order denying bail to the court of criminal appeals.
163
02/13: The magistrate sets bail for Connie, and she is released after she posts the required amount of bail. The magistrate denies Connie's request for appointment of counsel on the ground that she was able to afford bail.
Is the magistrate's ruling correct? Explain your answer.
no, the magistrate’s ruling was not correct. In determining whether a defendant is indigent, the court cannot consider whether the defendant has posted bail. Thus, it was an error for the magistrate to deny Connie’s request for counsel on the ground that she was able to afford bail.
164
02/13: Amy tells you she stabbed Vicky in self-defense. She demands that you arrange for her to testify to the grand jury and also demands that you attend the grand jury proceedings to advise her.
Does Amy have the right to testify to the grand jury, and does she have the right to have counsel present at the grand jury proceedings? Explain your answer.
Amy has no right to testify before the grand jury, nor does she have the right to have her counsel present at the grand jury proceedings. An accused person and, upon approval of the prosecution, the accused’s lawyer may be permitted to address the grand jury, but neither has the right to do so. Thus, Amy may address the grand jury and have counsel present if permission is so granted.
165
02/13: The prosecutor ("Prosecutor") goes to the grand jury room during the grand jury's deliberations and presents a closing argument in which he asks the grand jurors to indict Amy and Connie. As soon as the grand jurors hear Prosecutor's argument, they unanimously agree to indict Amy and Connie.
Did Prosecutor follow proper procedure? Explain your answer.
no, the secured did not follow the proper procedure. Pursuant to the code, a prosecutor is permitted to present in the grand jury room while the grand jury is conducting proceedings. However, the code specifies that when the grand jury is deliberating, only the grand jurors may be present in the room. Thus, while prosecutor could have made a closing argument to the grand jurors, he was not permitted to do so after the grand jurors began deliberations.
166
02/13: Following the return of the indictment, you ask Prosecutor for the names and addresses of the grand jurors so that you can interview them to learn why they decided to indict Amy.
Is Prosecutor obligated to give you the grand jurors' names and addresses as part of discovery? Explain your answer.
no, prosecutor is not obligated to give defense counsel the grand jurors’ names and addresses. Grand jurors personal information is confidential. While the code allows for the disclosure of personal information for a “showing of good cause,” this has not been demonstrated here.
167
02/13: The indictment charges the offense of aggravated assault by "causing bodily injury to another by use of a sharp object," but nowhere mentions the term "deadly weapon" or the words "intentionally,""knowingly," or "recklessly."
What procedural step, if any, can you take to challenge the indictment? If there is a procedural step that you can take, by when should you take it?
I can file a motion to quash the indictment on the grounds that it is lacking a culpable mental state and fails to mention a deadly weapon, which are elements of the offense. The motion must:
1) be in writing,
2) be filed before the day on which trial on the merits begins, and
3) specify the particular aspect of the charging instrument that the defendant regards as effective.
168
02/13: Amy asks you to explain what will happen if she decides to enter a plea of guilty.
List three admonitions that the Court must give Amy before accepting her plea of guilty.
the court must inform Amy of
1) the range of penalties attached to the offense;
2) that any recommendation by the prosecution as to the penalty will not be binding on the court; and
3) that there is a limited right to appeal following a guilty plea.
The court must also inform Amy that if she is not a United States citizen a guilty plea may result in deportation, the exclusion from admission to this country, or the denial of naturalization under Federal law. The court must also inquire as to the existence of a plea bargain between the state and the defense and request from the prosecutor the victim impact statement.
169
02/13: You file a motion to exclude from evidence at Amy's trial the bloody steak knife that Officer Otis found during his warrantless search.
What argument should Prosecutor make in response to your motion?
prosecutor should argue that Amy lacks standing to challenge the search of Connie’s car. A person may challenge a search only if her own rights were violated by the search, which generally requires a reasonable expectation of privacy in the place searched. Here, Connie owned the car that was searched. Amy lacks a reasonable expectation of privacy in Connie’s car (Connie could consent to a search over Amy’s objection, since it is Connie’s car)
170
02/13: During discovery, Prosecutor informs you that his first witness at trial will be Officer Otis and that he will testify about his recollection of Amy's oral confession to him.
What procedural step, if any, can you take to try to prevent Prosecutor from introducing this testimony by Officer Otis at trial? If there is such a step, on what basis can you take it?
I can move to suppress amy’s confession officer otis and exclude it from the evidence. Under the code, oral confessions are strongly disfavored. The code makes exceptions for judicial confessions, res gestae statements, statements that were electronically recorded, and
statements that were corroborated. However, none of these exceptions up here to apply here
171
02/13: Amy decides to have a jury trial so that she can try to show the jury that she acted in self-defense.
What procedural step, if any, can you take to have the jury decide Amy's punishment? If there is such a step, by when should you take it?
Amy can elect to have a jury assess punishment. To elect jury sentencing, Amy must do so in writing before the commencement of the voir dire examination of the jury panel.
172
02/13: During voir dire, one of the potential jurors states that she has a prior misdemeanor conviction for
Is this potential juror qualified to serve on the jury? Explain your answer.
no, the potential juror is not qualified to serve on the jury. The code specifies that a juror is absolutely disqualified from serving if she has been convicted of theft or any felony.
173
02/13: Prosecutor uses his peremptory challenges to strike all of the women who are potential jurors.
What objection, if any, can you make to Prosecutor's use of his peremptory challenges? If there is an objection, how may Prosecutor defend his use of his challenges?
I can object that prosecutors use of his peremptory challenges was improper for striking jurors based solely on gender. To defend the strikes, prosecutor must point to a gender neutral reason for each woman he struck. For example, prosecutors could argue that he struck the women because they did not make eye contact or because they appear to have a good rapport with defense counsel.
174
02/13: Connie enters a plea agreement with Prosecutor. At Amy's trial, Connie testifies that she saw Amy become enraged and stab Vicky with a steak knife.
Can Amy be convicted on the basis of Connie's testimony alone? Explain your answer.
no. Pursuant to the accomplice witness rule, a defendant cannot be convicted on the testimony of an accomplice unless there is corroborating evidence that tends to connect the defendant to the crime. Since Connie could (and in fact was) convicted of the crime, her testimony cannot be the sole basis for Amy’s conviction.
175
02/13: Prosecutor tells you that he intends to call James as a witness at trial. Prosecutor also tells you that James will testify that he visited Amy in jail and that Amy told him she stabbed Vicky as an act of true love for him. You tell Prosecutor that you will object to this testimony as hearsay and that you will ask that the Court exclude it.
What foundation must Prosecutor establish for this testimony to be admissible?
the statement that Amy made to James should be admissible as an admission by a party opponent. Admissions by a party opponent are not hearsay. Prosecutor must establish that Amy is a party opponent (which can be done because she is the defendant) and that Amy made the statement to James.
176
02/13: Prosecutor calls Steve Thompson, Chief of Records at the County Crime Lab, to introduce a County Crime Lab report written by Forensic Analyst William Jones. Mr. Jones's report concludes that Vicky's blood and Amy's DNA are on the knife that Officer Otis found.
What objection, if any, should you make to the admission of this report? Explain your answer.
I should object that admission of the report violates the confrontation clause. Under recent supreme court precedent, the forensic analyst who conducted the testing must testify and be subject to cross examination. Here, prosecutor is putting forward a different person (Steve Thompson) rather than the analyst (William Jones) who wrote the report.
177
02/13: Prosecutor's next witness is Lola Spivey. Ms. Spivey testifies that Amy stabbed her in the stomach last year when they revealed to each other that they both were in love with Eric, who was a classmate of theirs. You are completely surprised by this testimony.
What objection, if any, should you make to this testimony? What response, if any, can
Prosecutor make to your objection?
I should object that Ms. Spivey’s testimony is evidence of an extraneous offense that serves only to show a propensity and is therefore not admissible. Prosecutor can respond that while Ms. Spivey’s testimony does relate to an extraneous offense, it is admissible because it shows
a common scheme and the probative value substantially outweighs the risk of unfair prejudice
178
02/13: What procedural step, if any, could you have taken to have avoided being surprised by Lola's testimony?
I could have made a request that the state provide reasonable notice advance of trial of its intent to introduce in its case in chief evidence of other crimes, wrongs, or bad acts not arising in the same transaction as the charged crime
179
02/13: Prosecutor has a non-refundable vacation that will begin in twenty-four hours. To save time, he requests that the Court allow the jury to hear all of the evidence on both guilt and punishment before it deliberates and returns any verdict. The Court denies Prosecutor's request.
Is the Court's ruling correct? Explain you answer.
the court’s ruling is correct. The guilt and punishment phases are bifurcated into separate proceedings. Evidence related to the punishment cannot be brought before the jury until a defendant has been found guilty at the guilt/innocence stage of the trial. Prosecutors request to introduce punishment evidence earlier in the trial would potentially prejudice the jury by allowing them to hear evidence unrelated to whether the defendant is guilty of the charges.
180
02/13: Although the jury returns a verdict of guilty, it cannot agree on the punishment to be assessed. You move for a mistrial and request a retrial of Amy as to her guilt and punishment. The Court grants your motion and your request.
Is the Court's ruling correct? Explain your answer.
no, the court’s ruling is incorrect. When the jury is able to reach a guilty verdict but unable to reach a verdict on punishment, a court may grant a mistrial only with respect to punishment. The guilty verdict should remain intact and Amy should be retried only with respect to the punishment.
