TX Crim. Pro. & Evidence

Question 1

Contacts between police and citizens:

Answer 1

Voluntary Encounters - No 4th Amendment implications Temporary Detentions - Require reasonable suspicion that one has committed or is about to commit an offense (articulable explanation of why officer thinks suspect might be armed for pat down of outer clothing) Arrests - Must be based on probable cause with or without a warrant

Question 2

Arrests

Answer 2

Actual restraint or custody of an individual Test is whehther they would have felt free to decline the officer’s request or terminate the contact. Seizure requires an application of physical force or submission to showing of authority

Question 3

2 Kinds of Arrest

Answer 3

Warantless and under warrant

Question 4

Probable Cause

Answer 4

Exists when officer has reasonably trustworthy info that would lead reasonable person to believe an offense has been or is being committed May be based on info from citizen, personal knowledge, or a reliable informant (not solely on uncorroborated anonymous tip) Probable cause = valid search

Question 5

Illegal Arrests

Answer 5

No pretextual arrests. If officer has probable cause, subjective intent is irrelevant. Illegal arrest does not require reversal of conviction but resulting evidence is generally subject to exclusion If defendant is arrested without probable cause, given Miranda warnings, and voluntarily confesses, confession is inadmissible as product of illegal arrest

Question 6

Warrantless Arrest

Answer 6

Probable cause required In TX, warrantless arrest is unreasonable unless authorized by statute: 1. Presence or view of officer 2. Suspicious places or circumstances 3. Violation of protective order 4. Preventing consequences of theft 5. Presence or view of magistrate 6. Assaults 7. Fleeing felons 8. Fugitives from another state 9. Interfering with emergency calls 10. Suspect makes admissible confession of felony

Question 7

Arrests Under Warrant

Answer 7

Probable cause required Warrant required for entry into private premises unless consent or exigent circumstances Officers must knock before forcible entry unless futile, dangerous, or likely to result in destruction of evidence Violation of knock requirement does not require suppression of evidence Warrant extends to entire state and any peace officer (unless issued by mayor)

Question 8

Requirements for Arrest Warrant

Answer 8

1. Written order by magistrate issued in the name of “The State of TX” 2. Name or reasonable description of offender 3. Nature of offense 4. Signed and dated by magistrate, and 5. Office of magistrate stated

Question 9

Time, Force, and Notice Connected with Arrest

Answer 9

a. Arrest may be at any time b. Only reasonable force allowed c. Notice of authority and purpose required prior to arrest at residence d. After proper notice, police may break down door e. Accused must be informed of authority under which arrest is made, but…. f. Officer not required to have actual possession of warrant

Question 10

Initial Appearance Before Magistrate

Answer 10

1. After arrest, must be taken before magistrate “without unnecessary delay” (no later than 48 hours) 2. This is “Initial Appearance” 3. Magistrate shall inform D of: a. charges b. Right to counsel c. Miranda rights, including right to terminate interview at any time d. Right to examining trial (only pre-indictment felonies) 4. Set bail if authorized by law

Question 11

Search & Seizure

Answer 11

Search - Governmental activity that invades subjective reasonable expectation of privacy Seizure (person) - Detention of person where person is not “free to leave” based on a reasonable-innocent person standard, not the subjective intent or belief of either the officer or D Seizure (property) - Significant governmental intrusion into a person’s right of possession

Question 12

Search & Seizure: Standards

Answer 12

1. Arrest ALWAYS constitutes seizure of person 2. Investigative detention/stop is seizure, consensual encounters are not 3. Investigative detention/stop requires reasonable suspicion 4. 4A only applies to government officials 5. Only unreasonable seizures violate 4A

Question 13

Searches Under Warrant

Answer 13

Search warrant orders peace officer to search for property, seize it, and return to magistrate Procedure: 1. Sworn affidavit presented to magistrate 2. Magistrate determines whether probable cause exists under totality of circumstances Search warrant may order arrest of person if affidavit establishes probable cause the person has committed a crime Same knock and announce requirement as arrest warrant

Question 14

Probable Cause for Search Warrant Must Show:

Answer 14

1. Specific offense committed 2. Property sought is evidence of offense 3. Property is at location to be searched

Question 15

Four Corners Rule

Answer 15

Court issuing search warrant can only rely on info contained in affidavit Affidavit becomes public info when warrant executed

Question 16

Contents of Search Warrant

Answer 16

1. Runs in the name of “The State of TX” 2. ID’s thing to be sized and property to be searched 3. Commands peace officer to conduct search; and 4. Dated and signed by magistrate and name also typed

Question 17

Execution of Search Warrant

Answer 17

Without delay, but in no case longer than 3 days of issuance (exclusive of issued and executed dates) Copy must be given to or left for owner

Question 18

TX Statutory Good-Faith Exception

Answer 18

When magistrate has issued defective warrant based on probable cause, if executing officer objectively believes in good faith the warrant is valid, evidence is admissible

Question 19

Test for Unreasonableness of Search and Seizure

Answer 19

Court balances the degree of intrusion into person’s privacy against the legitimate reasons for the intrusion

Question 20

Exceptions to Search Warrant Requirement

Answer 20

1. Consent 2. Search incident to lawful arrest 3. Auto exception 4. Inventory searches 5. Exigent circumstances 6. Plain view exception 7. Border searches 8. Community caretaking function 9. Recovery of abandoned property 10. Terry pat-down

Question 21

4th Amendment Standing Requirements

Answer 21

1. D asserts his 4A rights were violated 2. Evidence obtained is intended to be used against him in criminal trial; and 3. D is victim of alleged illegal search or seizure Test is whether D has a reasonable expectation of privacy in the place searched or property seized Passenger in vehicle generally lack standing to challenge search of glove compartment or area beneath passenger seat, but does have standing to challenge a search of his person or personal property in his possession

Question 22

Circumstances that Diminish Reasonable Expectation of Privacy

Answer 22

1. Penal institutions 2. Public schools 3. Administrative searches (e.g., boats) 4. Probationers’ homes

Question 23

Confessions

Answer 23

Bedrock principal = voluntariness Voluntariness determined by totality of circumstances surrounding the statement (look to age of accused, length of interrogation, and whether force, threats, or deception were used) Burden to show voluntariness on state Involuntary statements always inadmissible, even for impeachment

Question 24

Reasons a Confession May Be Inadmissible

Answer 24

1. Involuntary 2. Direct product of Miranda violation 3. 6A right to counsel has been violated 4. Direct product of illegal arrest 5. Unnecessary delay bringing D before magistrate 6. Violation of TX confession statute

Question 25

Miranda Warnings

Answer 25

For custodial interrogations of criminal suspects, police must inform suspects of their rights and suspects must waive those rights before questioning Only required prior to custodial Interrogation

Question 26

Custody

Answer 26

Arrest or any significant restraint on freedom of movement of an individual. A person is only in custody if he reasonably believeshe has been deprived of freedom to a degree associated with a formal arrest Officer’s subjective intent irrelevant Not all interviews are custodial (e.g., routine traffic stop, voluntary interview)

Question 27

Interrogation

Answer 27

Express questions designed to elicit a statement, or; Its functional equivalent (i.e., words or conduct by the police which they know or should know is reasonably likely to produce a statement by teh accused

Question 28

Examples Where Miranda Does not Apply

Answer 28

1. Routine traffic stop 2. Routine investigatory question 3. Suspect voluntarily submits to questioning 4. Routine questions during booking procedures

Question 29

5A Right to Counsel

Answer 29

Once suspect has clearly and unambiguously requrested counsel, 5A prohibits further interrogation until lawyer made available to him (unless D initiates further discussions) Once 5A right to counsel invoked, it applies to interrogations about all other crimes of which suspect may be suspected

Question 30

Admissibility After Miranda Violations

Answer 30

Mere violations of Miranda rules not grounds for suppression of physical evidence Even if arrest is illegal, statement might be admissible if taint between arrest and confession attenuated

Question 31

Jackson v. Denno: Procedures Required When an Accused Challenges Voluntariness of His Statement

Answer 31

1. Initiated by motion to suppress 2. Trial court must then hold a hearing outside the presence of the jury and make an independent finding whether statement was voluntary 3. Court must enter order stating conclusions of law with specific findings of fact re. whether confession is voluntary 4. Conclusions may not be made known to jury 5. In TX, D may challenge voluntariness even though trial court has found confession to be voluntary 6. If court finds statement voluntary, and D raises issue by positive evidence adduced before the jury, the confession is not admissible for any purpose unless the jury believes beyond a reasonable doubt the statement was voluntary

Question 32

Mandatory Recording of Custodial Interrogations

Answer 32

a. Applies only to interrogations in “places of detention” b. Applies only to agencies that employ officers who routinely conduct custodial interrogations c. Applies only to specified crimes (e.g., murder, kidnapping, trafficking, sex offenses against children, educator/student improprieties)

Question 33

Admissibility of Written Statements Requires:

Answer 33

1. D was given proper Miranda warnings 2. D knowingly, intelligently, and voluntarily waived his rights 3. Confession is either handwritten by D or signed by D

Question 34

Admissibility of Oral Statements Requires:

Answer 34

Electronic recording was made 2. D received proper Miranda warnings 3. D knowingly, intelligently, and voluntarily waived his rights 4. Recording device could make accurate recording, operator was competent, and recording is accurate and unaltered 5. All voices on recording are identified; and 6. D attorney has been given accurate and complete copy of all recordings at least 20 days prior to trial

Question 35

Exceptions as to When Unrecorded Oral Statement or Confession may be Admissible

Answer 35

1. D confesses in open court, before grand jury, or at examining trial 2. Spontaneous statements by D 3. Oral confession corroborated by other reliable evidence 4. Statement not a product of custodial interrogation; or 5. to impeach credibility of D’s testimony

Question 36

Pre-Arrest vs. Post-Arrest Silence

Answer 36

If D testifies at trial, pre-arrest silence is admissible to impeach his credibility Post-Miranda silence is never admissible to impeach ***TX Rule: All post-arrest silence is inadmissible for impeachment

Question 37

Bail

Answer 37

Security given by accused that he will appear in court and answer accusation brought against him Bail Bond - Written undertaking by D and sureties Personal Bond - Release of D without sureties or other security

Question 38

Factors Governing the Setting of Bail

Answer 38

a. Large enough to reasonably assure presence of D b. Not excessive or an instrument of oppression or punishment c. Type of crime charged d. D’s financial resources e. Safety of victim and community

Question 39

Conditions of Release on Bail

Answer 39

Only reasonable conditions permitted. Including: a. Stay away from child victim or specific locations b. SUbmit to e-monitoring or house arrest c. Submit to curfew d. Submit to breath analysis device on car e. D not communicate with victim, go near victim’s house or workplace

Question 40

Denial of Bail

Answer 40

Constitutional right to bail with 5 exceptions: 1. Capital murder, assuming substantial evidence 2. D charged w felony, has 2 prior felony convictions 3. D presently on bail for felony and charged with another felony 4. D charged w felony involving use of a deadly weapon and has prior felony conviction 5. D charged w violent or sexual felony while out on probation or parole for another felony

Question 41

Reduction of Bail

Answer 41

D has burden of showing bail is excessive: a. If court refuses to set bail or bail is excessive, D may contest w writ of Habeas Corpus b. Excessive Bail tantamount to no bail c. Bail can be increased for “good and sufficient cause”

Question 42

Grand Jury

Answer 42

Inquires into all offenses liable to indictment about which any member may have knowledge or of which they are informed by prosecutor or other credible person Selection and qualifications match those for other types of juror

Question 43

Indictment and Information

Answer 43

Indictment - Written statement of Grand Jury accusing a person of an offense, either by act or omission Information - Written statement filed on behalf of the state by the prosecution charging on offense

Question 44

Duty of the Grand Jury

Answer 44

To determine whether probable cause exists to formally charge a person with an offense

Question 45

Grand Jury Procedures

Answer 45

Ex parte proceeding. Suspect has no right to appear or present evidence or cross-examine In TX, 12 jurors and 9 votes necessary to indict Meetings are secret. Disclosure of anything transpiring before the Grand Jury subject to fine or imprisonment Normal term is 90 days, subject to one 90-day extension Transcript available to D only if a “particularized need” is shown

Question 46

Who may be present during a grand jury proceeding?

Answer 46

1. Prosecutor and her staff 2. Witnesses being examined 3. Grand jurors 4. Court reporter 5. Interpreter, if necessary; and 6. Others, if allowed Indictment invalid if unauthorized persons present during deliberations (only grand jury members allowed)

Question 47

When may D waive right to be indicted for a felony?

Answer 47

1. Represented by counsel 2. Waiver is in open court or by written instrument 3. Waiver is voluntary; and 4. State is not seeking death penalty

Question 48

Grand Jury: Evidence

Answer 48

a. Exclusionary rule does not apply–illegally obtained evidence can be considered b. Rules of Evidence do not apply c. State not obligated to present exculpatory evidence d. Miranda warnings do not apply

Question 49

If D appears before a grand jury, he is entitled to the following warnings:

Answer 49

1. Right not to answer questions that may incriminate him 2. Notice of what offense he is suspected of committing 3. Right to have counsel outside jury room and consult with counsel before answering any questions; and 4. Right to have questions and answers recorded

Question 50

Examining Trials

Answer 50

Preliminary proceeding conducted by magistrate to determine whether probable cause exists Right to examining trial ONLY EXISTS PRIOR TO INDICTMENT

Question 51

General Rules for Pleadings

Answer 51

D must object to any defect, error, or irregularity in form or substance of indictment or information before the date of the trial, or objection is waived and cannot be raised on appeal Motion to quash alleged defective indictment or information filed on day of trial is not timely filed Complete failure to allege name of D in indictment or information renders the instrument invalid Indictment may still be valid even though foreman fails to sign it Defects in form or substance of indictment may be amended by State Indictment may not be challenged for insufficient evidence

Question 52

Requirements of an Indictment

Answer 52

1. Commences, “In the name and by authority of the State of TX” 2. Indictment was presented in district court of county where grand jury sits 3. Indictment was acted upon by a grand jury in the proper county 4. Name of person indicted (or description) 5. Place of offense 6. Date of offense 7. Offense charged is in clear and plain language, including essential elements and name of victim 8. Must conclude, “against the peace and dignity of the state”’ and 9. Must be signed by grand jury foreperson

Question 53

Art. 39.14 Provisions

Answer 53

State must provide discovery as soon as practicable after receiving timely request from D Following are subject to discovery: 1. Offense reports 2. Written/record witness statements 3. Photographs 4. Tangible items 5. Diagrams 6. Autopsy reports including toxicology 7. Everything that is not privileged or work product Identifying info redacted Disclosure of info re. credibility of jailhouse informants must be disclosed, no request required

Question 54

Time for Filing Motions and Pleadings

Answer 54

Discovery motions must be filed at least 7 days before any scheduled pre-trial hearing D has not less than 10 days before filing date to prepare motions

Question 55

Brady Rule

Answer 55

P must disclose all favorable material evidence in her possession; and P must preserve and make available to D any favorable material physical evidence that an accused cannot otherwise obtain and that may be material to his defense Obligations are irrespective of P’s good or bad faith

Question 56

Incompetency for Trial: Standard

Answer 56

Standard for pleading guilty, waiving counsel, or competency to stand trial is the same: a. Whether D has present ability to consult with lawyer with a reasonable degree of rational understanding; or b. Whether D has a rational and factual understanding of the proceedings against him Burden is on D to prove incompetency by a preponderance of the evidence

Question 57

Incompetency: Procedure

Answer 57

a. May be raised by either party before trial b. Court may appoint experts c. D entitled to jury trial (not same jury that determines guilt) d. Unanimous verdict required e. If found incompetent, D normally committed to mental health facility f. Felony incompetency does not require dismissal of charges

Question 58

Restoration of Competency

Answer 58

a. D returned to court following hospitalization b. Either party may request jury trial c. Burden shifts to state to prove competency d. Unanimous verdict required e. Not the same jury that determines guilt f. Criminal prosecution may resume

Question 59

Insanity Defense

Answer 59

An affirmative defense that at the time of conduct, actor, as a result of severe mental disease/defect did not know conduct was wrong

Question 60

Insanity Procedures

Answer 60

1. Everyone presumed to be sane 2. Burden on proponent to show insanity by preponderance of the evidence 3. Proponent must file notice of intent to raise insanity defense at least 20 days before trial 4. If case is tried by a jury, that jury determines whether D has met his burden 5. Jury verdict is guilty, not guilty, or not guilty by reason of insanity 6. Jury shall not be informed of consequence of verdict of insanity 7. Law provides for post-acquittal institutionalization for one acquitted by reason of insanity

Question 61

Guilty Pleas: Right to Counsel

Answer 61

a. D entitled to representation by counsel at a guilty plea unless waived b. D has 6A right to effective assistance of counsel during plea bargaining process

Question 62

Gulity Pleas: Factual Basis for Plea

Answer 62

a. Texas - D must assert that he is pleading guilty because he is guilty and for no other reason b. Federal: With permission of the government and court, D may claim factual innocence but the record reflects an otherwise voluntary guilty plea

Question 63

Guilty Pleas: Waiver of Rights

Answer 63

a. Every guilty plea must be by a voluntary and knowing waiver of D’s rights b. By pleading guilty, D waives: 1. Privilege against self-incrimination 2. Right to jury trial 3. Right to confront adverse witnesses 4. Right to call witnesses on his own behalf 5. Right to be convicted by proof beyond a reasonable doubt

Question 64

Texas Felony Guilty Plea

Answer 64

Prior to accepting a guilty plea to a felony, trial court must determine on the record that: a. D is competent b. Plea is voluntary c. D is knowingly waiving certain rights d. Any recommendation by P not binding on court e. D’s right to appeal may be restricted f. Whether court intends to follow plea agreement g. Punishment range h. If D is not American citizen, possibility of deportation or denial of citizenship i. Whether prosecutor has given notice of plea bargain to victim or close relative of the deceased j. Acknowledgment by both parties of the disclosure of receipt of all docs provided by state to D k. Admonition that if D successfully completes community supervision, he may be entitled to have conviction set aside

Question 65

Speedy Trial

Answer 65

As far as practicable, criminal trials take precedence over civil trials, and trials of jailed Ds take precedence over those of non-confined Ds

Question 66

Trial: Jury

Answer 66

Felony: 12 jurors Misdemeanor: 6 jurors Failure to register to vote does not disqualify from jury service

Question 67

Presence of D at Trial

Answer 67

Felonies: Must be present at all stages Misdemeanors: Must be present if potential punishment includes imprisonment Exception: If D voluntarily absents himself after jury selected, trial may proceed

Question 68

Voir Dire

Answer 68

a. Conducted in presence of entire panel, except in death penalty cases when it is conducted individually b. Panel may be shuffled on motion of either party, but only once

Question 69

Qualifications for Jury Service

Answer 69

a. Except for failure to register, qualified voter in state and county b. No convictions for theft/felony; and c. Not under indictment/ accusation for theft/felony d. Insanity = absolute disqualification

Question 70

Jury: Challenge for Cause

Answer 70

Examples include: 1. A witness in the case 2. Served on grand jury in the case 3. Biased or Prejudiced for or against D 4. Has reached conclusion in case that will impact verdict 5. Cannot read or write; or 6. Has bias/prejudice against the law upon which one side or the other has a right to rely

Question 71

Jury: Peremptory Challenges

Answer 71

Capital trials: 15 Non-capital felony trials: 10 Misdemeanor trials: 3

Question 72

The Batson Rule

Answer 72

Jurors may not be excluded from service solely because of their race. Applies to prosecutors, defense attorneys, and civil trials. Does not extend to exclusion for religious beliefs.

Question 73

Batson Challenge

Answer 73

a. Must be made before jury is sworn and empaneled b. Prima facie case of purposeful discrimination must then be shown b. Once prima facie case is shown, burden shifts to opponent to show race-neutral reasons for peremptory challenge d. Burden shifts back to proponent to rebut explanations

Question 74

Remedies for Successful Batson Challenge

Answer 74

a. Summon a new array b. Disallow the challenge and seat the improperly challenged juror

Question 75

Jury Trial: General Rules

Answer 75

1. State has burden of proof and must prove every element, except venue, beyond a reasonable doubt 2. Venue must be proved by a preponderance of the evidence 3. State not required to call every available witness or produce witnesses in any particular order 4. Prosecutor should only offer relevant, truthful evidence 5. Unanimous verdicts for guilt/acquittal and punishment are required in TX criminal cases (Not to impose life in death-penalty cases). 6. Inability to reach unanimous punishment verdict results in mistrial as to the punishment only. Guilty verdict stands.

Question 76

Motions in Limine

Answer 76

1. Purpose - To obtain an advance ruling from the trial court as to whether certain evidence will be admissible or inadmissible at trial in order to prevent certain evidence from coming to the jury’s attention 2. A ruling by the trial court on a motion in limine does not preserve any error for appeal. Counsel must object at trial when the evidence is offered, even though the court earlier overruled the motion. (contrast with pretrial motion to suppress, which does preserve an error for appeal)

Question 77

Jury Trial: Order of Proceeding

Answer 77

1. Indictment/information read 2. Plea by D 3. State’s opening statement 4. D’s opening statement (if requested) 5. State’s case-in-chief 6. State rests 7. D’s motion for instructed verdict 8. D’s opening statement (unless previously given or waived) 9. D’s evidence 10. D rests 11. Rebuttal and sur-rebuttal (if desired) 12. State closes 13. D closes 14. Objections to court’s charge (jury instructions) 15. Charge read to jury 16. Final arguments (state opens and closes) 17. Jury deliberations 18. Verdict If D found guilty, process repeats for punishment stage, minus step 7

Question 78

Exclusion of Witnesses (THE RULE)

Answer 78

1. The Rule - Party may request to exclude witnesses so they cannot hear testimony of other witnesses 2. If court invokes The Rule, witnesses will also be ordered not to discuss their testimony with anyone other than the lawyers 3. The Rule does not authorize exclusion of: a. D b. Persons the court determines to be essential to presentation of a party’s cause (e.g., an investigator) c. In most cases, the victim

Question 79

Charge of the Court (jury instructions)

Answer 79

The law requires the court to give the jury a written charge, setting forth the law applicable to the case and applying that law to the facts in evidence. The charge may also include relevant definitions, defenses, and lesser-included offenses, as well as general procedural instructions. Charge is given at conclusion of both stages of the trial. Must inform jury that it is the exclusive judge of the facts, but is bound by the law set forth in the charge. Prior to reading of the charge, both sides shall have a reasonable time to examine the proposed charge and make objections

Question 80

Requirements for Jury Charge

Answer 80

a. Set out applicable law b. Apply law to facts c. Not express any opinion on the weight of the evidence d. Not summarize testimony or facts; and e. Make no statement calculated to arouse sympathy or passions

Question 81

When is the charge read?

Answer 81

TX: Prior to final arguments Federal: Generally after final arguments

Question 82

Punishment: Bifurcated Trials

Answer 82

Guilt/Innocence stage and Punishment phase Applies in all criminal cases except capital murder cases in which the death penalty has been waived. In punishment phase, jury can consider all evidence it heard in guilt/innocence stage Punishment verdict must be unanimous Failure to reach unanimous verdict at guilt stage of TX criminal trial results in a mistrial. Jeopardy does not attach in such an instance. Failure to reach a unanimous verdict at the punishment phase requires a new punishment hearing only Neither side has the burden in a non-death punishment phase trial

Question 83

Punishment: Election

Answer 83

a. Election of judge/jury punishment belongs solely to D b. Once D elects, election can only be changed with consent of the State c. Election must be made pre-trial d. D can plead guilty and still elect jury punishment (an open plea)

Question 84

Punishment Evidence

Answer 84

Evidence on any matter the court deems relevant to sentencing may be introduced at punishment stage

Question 85

Punishment Ranges

Answer 85

Set by TX Penal Code

Question 86

Community Supervision

Answer 86

Court-ordered placement of D under a continuum of programs and sanctions for a specified period. Imposition of sentence is suspended in whole or part.

Question 87

Types of Community Supervision

Answer 87

Straight Probation - D found guilty, but imposition of sentence is suspended and D supervised in community, subject to specified terms and conditions. This is a conviction. Deferred Adjudication - Means enough evidence adduced to find D guilty, but such finding is deferred and D placed on community supervision. If probation is satisfactorily completed, there is no finding of guilt and no conviction results.

Question 88

Deferred Adjudication Requirements

Answer 88

a. In judge’s opinion, the best interest of society and D will be served b. Can only be imposed by judge, not jury c. Can only be imposed prior to trial and prior to a finding of guilt

Question 89

Deferred Adjudication: Application and Eligibility

Answer 89

1. D must file application for probation pre-trial 2. Felony probation application must verify that D has never before been convicted of a felony in TX, any other state, or a court of the US. Must be sworn to by D. 3. Application and statutory eligibility requirements are the same for both straight probation and deferred adjudication 4. Probation may not exceed 10 years. Therefore, any sentence longer than 10 years cannot be probated. 5. TX does not allow for probation in certain offenses and circumstances 6. If jury recommends probation be imposed, court must follow that recommendation 7. However, the court sets specific terms and conditions of probation as allowed by law, and is not bound by a jury’s recommendation in that regard

Question 90

Revocation of Probation

Answer 90

1. If D violates terms and conditions of probation ,court may revoke and sentence him to imprisonment 2. If D’s straight probation is revoked, any resultant term of imprisonment is limited by the length of the probation 3. If deferred adjudication probation is revoked, the court may sentence D to any term within the statutory range of punishment 4. D is not entitled to jury trial at revocation hearing 5. Burden of proof is on State to show a violation of the terms and conditions of probation 6. Standard of proof is preponderance of the evidence