TX Criminal Pro

Question 1

Req in an Arrest Warrant

Answer 1

(1) Name (or physical description) of person to be arrested;
(2) name of the offense;
(3) signature of the magistrate and his office.

Question 2

Req in a Search Warrant

Answer 2

1) statement that it runs in name of “The State of Texas”;
2) a specification of person, place, or thing to be seized;
3) specification of items to be seized;
4) an endorsement of date & hour issued;
5) signature of issuing magistrate.

NOTE: must be executed w/in 3 days, exclusive of date of issuance and day of execution (so really 5 days).

Question 3

When Arrest is Valid w/out a Warrant

Answer 3

1) Officer had reasonable belief suspect was about to escape
2) suspect found with stolen property
3) D committed felony in presence of officer
4) D, believed to have committed a felony, found in a “suspicious place”.

Question 4

When can Officer Breakdown a Door

Answer 4

1) has probable cause to believe person committed felony;
2) officer gives notice of officer’s authority & purpose;
3) officer is refused admittance.

Question 5

Crimes with NO SoL

Answer 5

1) murder
2) manslaughter
3) leaving scene of accident resulted in death
4) indecency w/ child
4) sexual assault w/ child

Question 6

General SoL for Felonies

Answer 6

3 years

Question 7

Crimes w/ 10 Yr SoL

Answer 7

1) sexual assault
2) injury to elderly
3) arson

Question 8

Crimes w/ 5 Yr SoL

Answer 8

1) theft
2) burglary
3) robbery
4) kidnapping
5) abandoning/endangering a child
6) insurance fraud.

Question 9

Where is Venue

Answer 9

As a general rule, venue is proper in the county in which the crime was committed.

Question 10

Req for D to Prove to be Incompetent to Stand Trial and Burden of Proof

Answer 10

1) lacks sufficient present ability to consult w/ his lawyer w/ a reason degree of rational under; or
2) lacks rational & factual under of the proceedings
3) preponderance of evidence by party who asserts
4) If found incompetent, D either released on bail for treatment or committed to mental health facility
5) Prosecution will proceed once D has regained competency.

Question 11

Time Magistrate has to Decide if Probable Cause Exist for Felony

Answer 11

1) w/in 48 hours of arrest

Question 12

Result if Magistrate Doesn’t find PC in Time

Answer 12

1) D has right to be released on bail and have bail set so he can make it.
2) may require personal bond
3) no more than $10,000

Question 13

Probable Cause Def

Answer 13

1) Facts on which a reasonable person would conclude there was a fair probability that D was the perpetrator.

Question 14

Bail Def & Bal Bond Def

Answer 14

1) security given by D to assure will appear in court to answer accusation against him
2) written undertaking to D and one or more sureties that will pay bail if D does not make required appearance.

Question 15

How does a Person Bond Differ From a Bail Bond

Answer 15

1) personal bond requires neither an adequate surety or a cash deposit in amount of the bond.

Question 16

Personal Bond Def

Answer 16

1) Requires D to pay amount but does not require a surety or cash deposit
2) Magistrate may impose any reasonable condition on bail that is related to safety of victim of crime or community.

Question 17

Req for Fixing Amount of Bail

Answer 17

1) sufficiently high to ensure D appears for court settings and trial;
2) not so high as to be an instrument of oppression;
3) judge shall consider nature of charged offense in determining bail;
4) judge shall consider D’s ability to make bail; and
5) judge must consider future safety of victim and community.

Question 18

Writ of Habeas Corpus Def

Answer 18

1) court order directing someone to produce an individual before court and show why individual is being held
2) directed to person having individual in custody or under restraint
3) writ may be granted by the CCA, a district court, a county court, or a judge in any of these courts.

Question 19

Indictment Def

Answer 19

1) written statement of grand jury accusing named person of criminal offense.

Question 20

2 Ways Indictment and Information Differ

Answer 20

1) indictment:
a) must be approved by a grand jury and signed by foreman
b) doesn’t need to be a sworn complaint filed w/ ct an indictment does not require such support.
2) information
b) needs only be authorized and signed by prosecutor

Question 21

Req of Formal Indictment

Answer 21

1) words “In the name and by authority of The State of Texas”;
2) appear it was presented in district ct. of county where grand jury is in session;
3) appear to be act of grand jury of proper county;
4) contain name of accused (or give reasonably accurate description if unknown);
5) show offense committed is w/in jurisdiction of court in which indictment is presented;
6) charge offense on a date before presentment of indictment;
7) set forth offense in plain & intelligible words;
8) conclude with words “Against the peace and dignity of the State”; and
9) signed officially by foreman of grand jury.

Question 22

How can D Waive Indictment

Answer 22

1) can be waived in all cases except capital murder.
2) D will be charged by an information signed and filed by Prosecutor
Waiver 3 requirements:
a) D must be represented by counsel;
b) must be written instrument or in open court
c) must be voluntary.

Question 23

Can D Address Grand Jury

Answer 23

1) No.
2) However, grand jury may permit him to appear.
3) Prosecutor must consent to defense counsel’s addressing grand jury.

Question 24

Purpose of Examining Trial

Answer 24

1) To require State to produce evidence establishing there is probably cause to believe D is guilty of offense charged.
2) If State fails to show probable cause, D is discharged until he is indicted.

Question 25

3 Things D Must Make on his Own

Answer 25

1) what plea to enter
2) whether to have trial by jury; and
3) whether to take the W stand.

Question 26

How Grand Jury is Composed

Answer 26

1) Tex. Code. Crim. Pro. requires commissioners, to extent possible, select grand jurors who represent a broad-cross section of population as to race, sex, and age.

Question 27

How to Challenge GJ Composition

Answer 27

1) raise matter during grand jury selection process by a challenge to the array
2) raise it later by a motion to set aside the indictment but only show there was no opportunity to raise this by a challenge to the array.

Question 28

When Able to Appear & Present Evidence before GJ on Behalf of D

Answer 28

1) Ds counsel may address grand jury if grand jury is willing and
2) prosecutor approves
3) can provide body with evidence, but cannot question witnesses b/c only Prosecutor and grand jurors can so.

Question 29

How to Challenge Indictment

Answer 29

1) file an exception, aka motion to quash.

2) Should be filed before day on which trial on merits commences.

Question 30

When to File Application for Probation

Answer 30

1) before trial

Question 31

When Election for Jury Sentencing be Filed

Answer 31

1) before beginning of voir dire examination of prospective jurors.

Question 32

Req to Allow Jury to Recommend Comm Supervision

Answer 32

1) D should file a sworn motion for community supervision
2) stating D has never been convicted of a felony in TX or elsewhere.
3) punishment assessed must not exceed 10 years’ imprisonment.
4) this should be filed before trial.

Question 33

Can D Withdraw Guilty Plea if Ct Doesn’t Follow Plea Deal

Answer 33

1) Yes
2) D must be allowed to withdraw his plea and enter a “not guilty” plea if he wishes.
3) A plea of guilty to judge can be withdrawn as matter of right before court takes plea under advisement.
4) plea of guilty later withdrawn cannot be used against D.

Question 34

Effect of Pleading “guilty” or “nolo contendere”

Answer 34

1) has same legal effect
2) if civil litigation were to arise out of same incident, a plea of guilty could be used against D, but not a plea of nolo contendere.

Question 35

2 Differences b/t Deferred Adjudication & Probation

Answer 35

1) deferred adjudication can be imposed w/o a conviction or a finding that D is guilty
2) probation can be imposed only if D has been found guilty
3) revocation of deferred adjudication permits court to sentence D to any term of imprisonment w/in statutory range
4) revocation of probation limits term of imprisonment to one assessed before D placed on probation.

Question 36

Can Jury Place D on Deferred Adjudication

Answer 36

1) No
2) only judge can place D on deferred adjudication
3) to be eligible, D must plead guilty or nolo contendere rather than going to trial and being found guilty.

Question 37

What if D tells Atty to File for Comm Supervision

Answer 37

1) application must state under oath D has never been convicted of a felony
2) to file application would be unethical participation in making a false statement to court and may result in criminal liability.
3) if application is not filed, D’s previous criminal history need not be disclosed to State b/c atty learned of it during a confidential communication w/ D and disclosure would violate A/C privilege.

Question 38

What is D Testifies at Pre-Trial Hearing About Incriminating Statement

Answer 38

1) he doesn’t waive right to remain silent
2) State’s cross-examination at pre-trial hearing is limited to circ surrounding post-arrest statement
3) it cannot ask about guilt of offense

Question 39

Steps if D Doesn’t Get Fair Trial

Answer 39

1) counsel can move for change of venue
2) at hearing held on motion, Prosecutor must show that b/c of influences in original county, a trial fair and impartial cannot be held.

Question 40

D Being Present at Trial

Answer 40

1) has right to be present, in fact, can be compelled to be present
2) But in felony trial, a trial can continue w/o D if D was present through selection of jury and after he voluntarily absents himself from trial.

Question 41

Can D’s Counsel be Forced to Produce W List

Answer 41

1) Judge has no authority to order defense to provide a general witness list for State
2) does have statutory authority to order defense to provide a list of expert witnesses it may call, so the judge has discretion to order a list of any expert witnesses the defense will call.

Question 42

Exculpatory Information by P

Answer 42

1) federal due process under Brady v. Maryland, P is required to disclose exculpatory info (even if W statement is unsigned).
2) duty to disclose does not depend on request by defendant.

Question 43

D’s Right of Pre-Trial Inspection (Discovery)

Answer 43

1) right of inspection limited by State’s “work product” protection
2) following are not subject to pre-trial inspection:
a) written statements of W’s;
b) notes & other work product of counsel and investigators (including police reports); and
c) written communications b/t state agents or employees (including such things as lab reports from state experts).

Question 44

When Pre-Trial Depo is Allowed

Answer 44

1) either party may apply to the court for authorization to depose a W.
2) application must be accompanied by an affidavit setting out “good cause” for taking depo
3) Notice must be given to opposing party.
4) hearing is held, and if court finds good cause it may grant application.

Question 45

Who Enters Plea Deal

Answer 45

D must decide

Question 46

3 Admonishments Ct Must Give D Before Accepting Guilty Plea

Answer 46

1) numerous required, including:
a) range of penalties that must be imposed
b) any recommendation by prosecution on punishment is not binding on court; and
c ) limited right to appeal after conviction on a plea of guilty.

Question 47

3 Questions Ct Must Ask to Qualify Prospective Juror

Answer 47

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?

Question 48

of “For Cause” Strikes

Answer 48

1) Each party entitled to unlimited challenges for cause provided party can establish grounds for challenge.

Question 49

of “Peremptory” Strikes

Answer 49

1) each party in a noncapital felony prosecution involving only 1 D is entitled to 10 peremptory challenges
2) 6 if more than 1 D

Question 50

Reasons to Strike “For Cause”

Answer 50

1) biased or prejudiced for or against the accused
2) biased or prejudiced against any law applicable to case
3) prior conviction for theft
4) prior conviction for felony
5) insane
6) not qualified to be a voter
7) cannot read/write
8) is a W in the case
9) served on indicting grand jury.

Question 51

Procedure D Uses to Prevent P from Reffering to Prior Bad Acts During Voir Dire

Answer 51

1) file motion in limine

2) move that court order Prosecutor to not, during voir dire, refer to alleged acts of misconduct.

Question 52

How D Perserves Error for Appeal in Motion and Limine Violation

Answer 52

1) object immediately
2) even if judge has granted motion in limine
3) because a ruling on motion in limine does not itself preserve a matter for appeal.

Question 53

Making Sure P Intends to Disclose Prior Bad Acts Before Trial

Answer 53

1) D should make a timely request for such notice.
2) D should also request pre-trial notice of State’s intention to introduce at punishment evidence of extraneous crimes or bad acts under Tex. Code of Crim. Pro.

Question 54

Result of Striking All Black Potential Jurors

Answer 54

1) State nor defendant can exercise peremptory challenges on racial grounds.
2) opposing party must attempt to rebut challenge by offering evidence each strake was made for reasons other than race of juror.

Question 55

Procedure for Continuing Proceedings When W Missing

Answer 55

1) D’s first motion for continuance b/c of a missing W must state:
a) name & residence of W
b) diligence has been used to procure attendance of W
c) material facts which D expects to prove by W
d) W is not absent by procurement or consent of D
e) motion not made for delay
f) there is no reasonable expectation W can be presented during present term of trial court.

Question 56

Reqs for Biz Records Into Evidence

Answer 56

1) show witness had custody of records
2) records made in regular course of business
3) persons making entries in records had or received information from someone with firsthand knowledge of matters
4) entries were made near time of events recorded in records

Question 57

Ct Considerations in Determine Admissibility of Scientific Evidence

Answer 57

1) extent the underlying scientific theory and techniques are accepted as valid by scientific community
2) qualifications of expert
3) existence of literature supporting or rejecting underlying theory and technique
4) potential error rate of technique
5) availability of other experts to test and evaluate technique.

Question 58

Jury Change Contents

Answer 58

1) abstract portions and application portion
2) application portion should incorporate specific allegations of indictment and instruct jury on what specifically it must find to convict defendant
3) court need not include a definition of reasonable doubt any effort to define reasonable doubt will be of no help and will tend to confuse jury.

Question 59

Result of Juror Becoming Disabled (After Trial Begins but Before Instructions Ready to Jury)

Answer 59

1) in a felony case, remainder of jurors can reach a valid verdict
2) All jurors must sign verdict

Question 60

Does Jury Have to Decide Only on State Jail Felonies in Indictment or is There Alternative

Answer 60

1) jury can convict D of a less serious offense than offense charged in indictment
2) jury should be given this alternative only if both
a) offense is a lesser-included offense of charged offense, which means it requires proof of some but not all facts required for charged offense; and
b) there is evidence before jury that D is not guilty of charged offense but is guilty of less serious one.

Question 61

Steps if D Thinks P hasn’t Shown Guilt Beyond Reasonable Doubt

Answer 61

1) D should, before beginning defense case, move for an instructed verdict of not guilty
2) D should argue state’s evidence would not permit a reasonable jury to find all elements of crime proved beyond a reasonable doubt, and D is entitled as a matter of law to an acquittal.
3) Counsel should not do this w/in hearing of jury b/c this is a matter of law to be decided by judge.

Question 62

Can D Change Mind About Jury Sentencing after Jury Finds Him Guilty

Answer 62

1) An election may be changed after trial begins only if Prosecution consents.

Question 63

Can P Argue in Closing Arg that D Will Serve Half of Sentence

Answer 63

1) No.
2) This argument invites jury to consider how parole law will be applied to this particular defendant.
3) Jury may consider parole in general, but not as applied to the particular case.
4) Prosecutor is suggestion that jury should assume that parole law will be applied so as to release D on parole as soon as he becomes eligible.

Question 64

Can Judge Declare Mistrial on Punishment Issue Only

Answer 64

1) Yes

2) if a jury cannot agree on punishment, the judge is to declare a mistrial on punishment issue.

Question 65

Can Ct Ignore Jurys Recomm of Comm Supervision

Answer 65

1) No.
2) If jury recommends suspension of a sentence and placement of D on community supervision and D is eligible, judge must suspend sentence and place D on community supervision.

Question 66

Standard of Proof for Guilty Verdict

Answer 66

1) beyond a reasonable doubt

Question 67

Number of Jurors That Must Concur in Verdict

Answer 67

1) all members of jury have to concur in verdict of guilty
2) if all jurors cannot agree on verdict of guilty and cannot unanimously agree on verdict of not guilty, judge must grant a mistrial.

Question 68

Getting Info on Juror if Suspect Misconduct

Answer 68

1) Info collected during jury selection is confidential and cannot be disclosed
2) However, a party to case can apply for order permitting disclosure if good cause shown.

Question 69

Ds Remedies if Had Inadequate Counsel

Answer 69

1) D may attack his conviction on ground that defense counsel’s failure violated his 6th amendment right to adequate defense representation.
2) D must show
a) counsel’s failure was below standard of professional competence and not simply a tactical decision; and
b) D was prejudiced, there is reasonable probability if counsel had performed adequately, outcome of proceeding would have been different.

Question 70

Filing Motion for New Trial Timing

Answer 70

1) w/in 30 days of sentencing
2) then present it to trial court w/in 10 days of filing
3) trial court can however permit D to present it w/in 75 days of sentencing.

Question 71

How to Perfect Appeal

Answer 71

1) D must file a written notice of appeal in trial court,

2) must be done w/in 30 days of formal sentencing.

Question 72

When Double Jeopardy is Violated

Answer 72

1) not violated if each crime requires at least 1 element other does not.