TX CRIMINAL PROCEDURE

Question 1

This action is required to properly charge a defendant with a crime

Answer 1

** What is a valid indictment?

Question 2

Elements of written statement charging a person with a criminal offense: begins with the words “In the name and by authority of the State of TX; identify the accused; show that the place of the offense was within the court’s jurisdiction; show that prosecution of the offense is not barred by time limitations; state the offense charged in plain wording; conclude with the words “against the peace and dignity of the State” and be signed by the grand jury foreman.

Answer 2

** What are the elements of a sufficient indictment?

A - by authority of the State of TX
A - identify accused
J - place of offense is in courts' jurisdiction
B - not barred by time limitation
P - plain wording
S - against peace and dignity of state
S - signed by jury foreman

Question 3

D can knowingly, voluntarily and intelligently waive this for a noncapital felony when represented by defense counsel and the waive its made in writing.

Answer 3

** When can D waive an indictment?

Question 4

It is a written statement that the State district or county attorney files in and presents to a court in order to charge a defense with an offense that can be prosecuted.

Answer 4

What is an information?

Question 5

A - by authority of the State of TX
A - identify accused
J - place of offense is in courts' jurisdiction
B - not barred by time limitation
P - plain wording
S - against peace and dignity of state
S - signed by jury foreman

Answer 5

** What must a sufficient information contain, among other things (same as indictment) ?

Question 6

Applesauce And Jam Butter Peanut Sandwich Soup
A - by authority of the State of TX
A - identify accused
J - place of offense is in courts' jurisdiction
B - not barred by time limitation
P - plain wording
S - against peace and dignity of state
S - signed by jury foreman

Answer 6

** What is the mnemonic for the elements of a sufficient indictment?

Question 7

This motion is used to challenge the indictment or information based on defects in form or substance at the pretrial stage of the proceedings.

Answer 7

** What is a motion to quash? (NOTE: usually granted when the charging instrument’s wording regarding the D’s conduct is so vague or indefinite that it denies the D effective notice of those acts that D has allegedly committed.

Question 8

An imperfection in the style, manner, arrangement, or nonessential part of a legal document, as distinguished from a a defect of substance.

Answer 8

** What is a defect of form? It is exists if the indictment or information does not comply with the strict requirements of Texas law.

Question 9

If D fails to object to a “defect, error, or irregularity of form or substance in an indictment prior to D’s trial date, D cannot raise it on appeal or any other post conviction proceeding.

Answer 9

** What is a D’s waiver of rights or objection?

Question 10

If at least two offenses arise from the same criminal episode, then the State can join these offenses in one information, indictment or complaint, with each offense stated in a separate count.

Answer 10

** What is joinder of offenses?

Question 11

The commission of at least two offenses, regardless of whether the harm is inflicted upon or directed toward more than one person or item of property, under these circumstances: 1) the offenses are committed pursuant to the same transaction or pursuant to at least two transactions that are connected or constitute a common plan or scheme; or 2) the offenses are the repeated commission of the similar or same offenses

Answer 11

• What is a criminal episode?

Question 12

Whenever at least two offenses have been duly consolidated or joined for trial, a D has right to a severance of the offenses.

Answer 12

** What is a motion can D make to severe offenses joined for trial? If granted, D has the right to separate trials.

Question 13

If the State would be unfairly prejudiced by a prosecution for offenses arising from the same criminal episode with concurrent or consecutive sentences.

Answer 13

** When does D right to severance not apply?

Question 14

A D can make a motion showing good cause for discovery and provide notice of the motion to the other parties. If granted, the trial court must order the State to produce and permit the D to inspect, copy or photograph documents, papers, and the D’s written statement (e.g. confession) as well as other non-privileged discoverable items (e.g., books, accounts, letters, photographs). To obtain discovery of potential evidence, a party must show good cause, materiality, and possession of the potential evidence by the State. Materials excluded include witness statements, work product notes.

Answer 14

*** What is traditional discovery practice that applied in Texas before 1 January 2014?

Question 15

This discovery approach requires the State to disclose (A) all witness statements and police reports, regardless of whether they are material to guilt or punishment as well as (B) any other evidence is material to any matter. The State must provide “open file” discovery and may not decide what evidence is relevant or may/may not be admissible.

Answer 15

*** What is the modern approach to discovery practice that applies after 1 January 2014?

Question 16

Before trial or entry of a nolo contende plea or guilty plea, the defendant and the State must acknowledge on the record in open court or in writing the disclosure, receipt, and the itemization or all Materials provided to the defendant.

Answer 16

*** When must both parties acknowledge disclosure of materials?

Question 17

Evidence that is material if a reasonable probability exists that its disclosure to the defense would have resulted in a different outcome in the case.

Answer 17

*** What is exculpatory evidence?

NOTE: AKA Brady Material (Brady v Maryland) - state is required to disclose.

Question 18

Any evidence that is exculpatory, impeachment, or mitigating materials that the State, which tend to negate the defendant’s guilt or reduce punishment for the crime charged.

Answer 18

*** What is the modern statutory duty that the State has with respect to evidence that must be disclosed?

Question 19

Obligation to disclose all exculpatory evidence or evidence that mitigates the offense.

Answer 19

*** What is the ethical obligation of a prosecutor in a criminal case?

Question 20

Upon a party’s motion and with notice to any other parties, the court can order disclosure of the name and address of any person the moving party may use at trial (e.g., by testifying) to provide this type of witness evidence under certain TX Rules of Evidence.

Answer 20

*** When is disclosure of an expert witness required?

Question 21

When both State and defense file pretrial discovery motions seeking lists of all expert and non-expert witnesses, the court will deny the State’s request regarding the non-expert defense fact witnesses, even though all other motions may be granted. The lawyer-client privilege of confidentiality protects disclosure of the non-expert defense fact witnesses.

Answer 21

*** What type of witness does not have to be disclosed?

Question 22

A party seeking a ___ must: 1) file with the court clerk an affidavit stating good reason (i.e. good cause) for taking the ___ and 2) an application to take the ___.

Answer 22

• What are the two requirements for requesting a witnesses deposition?

Question 23

This motion may be filed by a defendant to ask the court to set aside a charging instrument (indictment or information).

Answer 23

** What is a motion to quash?

Question 24

1) special pleas; 2) guilty pleas; 3) not guilty pleas; 4) nolo contendere pleas; 5) application for probation; 6) an election to have the jury set the punishment if the defendant is found guilty; and 7) any other pleadings that the law permits the defendant to file.

Answer 24

** What are the pleadings available for defendant to present?

Question 25

After arrest or service of indictment, a defendant has 10 days to file these.

Answer 25

** How much time does defendant have to file pleadings and motions? NOTE: Court must give D 10 days unless D waives the time period.

Question 26

The trial court can direct the State and the defendant and defense counsel, if any to appear before the court for this hearing.

Answer 26

** What is a pretrial hearing?

Question 27

Guaranteed by the Confrontation Clause in the Sixth Amendment of the Constitution.

Answer 27

** What is D’s right to be present in court for arraignment, pretrial and trial proceedings?

Question 28

When D’s absence from a pretrial proceeding violates the statutory requirement of D’s presence.

Answer 28

** What is reversible error? (NOTE: Not every violation of mandatory statutory provision requires reversal. Instead, any such violation needs to be considered on a case-by-case basis.

Question 29

This test applies when the trial court conducts a pretrial proceeding in a defendant’s absence. This test seeks to determine how the defendant’s absence from a pretrial proceeding affects the advancement of the defendant’s defense.

Answer 29

** What is the reasonably substantial relationship test?

Question 30

Unless the D’s presence has a reasonably substantial relationship to the defendants opportunity to defend, no harm is shown by the D’s absence. In other words, the D’s presence does not bear a reasonably substantial relationship to the opportunity to defend when the defendant’s presence would not have furthered the defense. This test addresses concerns of D’s rights under the 6th amendment and to due process under the 14th Amendment to the Constitution.

Answer 30

** How is the reasonably substantial relationship test applied?

Question 31

These matters are considered at this hearing: 1) defendant’s arraignment, if necessary; 2) appointment of defendant’s counsel, if necessary; 3) defendant’s pleading; 4) special pleas; 5) exceptions to the indictment or information; 6) motions for continuance; 7) motions to suppress evidence; 8) motions to change venue; 9) discovery (e.g., motion for discovery; 10) entrapment; and 11) motions for appointment of interpreter.

Answer 31

• What is the purpose of a pretrial proceeding?

Question 32

Matters that that are adversarial, recorded, contained argument or evidence, resulted in a written order, and involved in a conclusion by the court.

Answer 32

• What factors are considered to determine if matters are considered a pretrial proceeding?

Question 33

These matters must be raised or filed seven days prior to the hearing and may not be raised or filed thereafter without the court’s permission on a showing of good cause.

Answer 33

** What is the timeline for filing pre-trial matters?

Question 34

D must have sufficient notice to allow D at least 10 days in which to raise or file the preliminary matters.

Answer 34

** How much notice must be given to D before a pre-trial hearing?

Question 35

Notice of hearing, three elements: 1) the trial court’s announcement in open court in the presence of the defendant or the defense counsel; 2) personal service to the defendant or the defense counsel; or 3) mail to either the defendant or the defense counsel – deposited by the clerk in the mail at least six days before the hearing date.

Answer 35

** What elements make a notice of hearing sufficient?

Question 36

If at least two defendants are jointly complained against or indicted for the same offense, then they may be tried together. Multiple defendants may be joined for trial if they are complained against or indicted for the same offense or any offense coming out of the same transaction.

Answer 36

** What is the joinder of defendants?

Question 37

A D can make this motion requesting a separate trial on the charges against the defendant, instead of a joint trial with other defendants.

Answer 37

** What is a motion for severance?

Question 38

If at least two defendants are separately or jointly complained against or indicted for the same offense or any offense coming out of the same transaction, then a Texas trial court has discretion to try the defendants separately or jointly.

Answer 38

** What is a discretionary severance?

Question 39

If a previous admissible conviction exists against one defendant, or if a joint trial would be prejudicial to any defendant, then the court must order a severance of the defendant who joint trial would prejudice the other defendants.

Answer 39

** What is a mandatory severance?

Question 40

This motion may be made in any misdemeanor or felony case punishable by confinement.

Answer 40

• When may D or the state make a motion to transfer venue?

Question 41

A court can continue (i.e. adjourn or postpone) a criminal case on the written motion of the State or of the defendant, upon sufficient cause shown.

Answer 41

*** What is a motion for continuance?

Question 42

This motion serves to stop trial proceedings when there is an error that is so prejudicial that additional time and expense would be futile and wasteful. Parties can make this motion jointly or separately. An adverse ruling on this motion is appealable.

Answer 42

• What is a motion for mistrial?

Question 43

This motion requests that the trial court direct or instruct a verdict in favor or a party. Generally, this motion is made at the close of the other party’s case. Such a motion could assert, for example, improper venue or failure to prove venue.

Answer 43

*** What is a motion for a directed verdict?

Question 44

This informs the jury of the law relevant to the evidence and the offense at issue.

Answer 44

What is a jury charge?

Question 45

Abstract - describes the theory of the law.

Application - describes how the law works in a practical context.

Answer 45

What is the two parts of a jury charge?

Question 46

A person making a warrantless arrest or a person having custody of a person arrested must take the person arrested or have her taken without unnecessary delay, but not later than __ hours after the person is arrested, before a magistrate to provide the person arrested the legally required hearings.

Answer 46

** What is the 48-hour time limit for warning hearing?

Question 47

The 4th Amendment to the Constitution requires a prompt determination of probably cause after a warranty arrest of a person.

Answer 47

** What is the requirement for a prompt probably cause determination?

Question 48

This motion seeks to exclude evidence from criminal proceedings. Generally, must be made during the pretrial stage, rather than at or during trial. This motion can contest the validity of a search in which evidence was found and seized and can allege the insufficiency of the contents of an affidavit supporting the search warrant as required by the TX Criminal Code.

Answer 48

*** What is a motion to suppress?

Question 49

A sworn affidavit setting forth substantial facts must state: 1) a specific crime was committed; 2) specifically described property subject to the search is evidence of a specific crime committed by a particular person; and 3) the property is located where the search will occur or on the person subject to the search.

Answer 49

** What must an affidavit for a search warrant state?

Question 50

This warrant differs from other search warrants because: 1) of the foregoing additional affidavit requirements; and 2) what evidence a court may issue an evidentiary search warrant to search for and seize.

Answer 50

** What is an evidentiary search warrant?

Question 51

If the facts presented to a magistrate for a search warrant also establish the existence of probable cause that a person has committed some crime under TX law, then the search warrant may also order the arrest of the person.

Answer 51

** What is a combined search and arrest warrant?

Question 52

A type of adversarial hearing to inquire into whether probable cause exists to send a felony case to a grand jury. Typically, this hearing does not occur unless an arrested person demands it.

Answer 52

** What is an examining trial?

Question 53

This court exists when a magistrate sits to inquire into a criminal accusation against an arrested person.

Answer 53

** What is an examining court?

Question 54

Criminal trials are divided into two parts in TX. The first part, the guilt or innocence phase, determines a defendants culpability for a crime. The second part of the trial, the punishment phase, determines the sentence that will be imposed upon the defendant.

Answer 54

• What is bifurcation of a criminal case?

Question 55

A defendant who makes this plea to a charged crime admits culpability for the crime and is subject to a legal sanction (i.e. penalty) for the crime.

Answer 55

*** What is a plea of guilty?

Question 56

A defendant who makes this plea to a charged crime neither disputes or admits responsibility for the crime. However, the defendant consents to the imposition of a legal sanction for the the crime. Generally this please does not constitute an admission of responsibility that can be used for other purposes.

Answer 56

*** What is a plea of nolo contendere?

Question 57

1) the scope of the punishment for the offense; 2) the fact that the prosecuting attorney’s recommendation as to punishment is not binding upon the court; 3) the fact that if the punishment is not greater than the punishment recommended by the prosecutor and agreed to by the defendant and his or her attorney, the trial court must give its permission to the defendant before the defendant can prosecute an appeal on certain matters in the case; 4) the fact that the defendant may be deported if the defendant is not a United States citizen.

Answer 57

*** What are the five required admonishments that a court must give a defendant before accepting a plea of nolo contendere?

Question 58

Prior to trial, a D who does not enter a guilty plea decided whether to have his or her criminal case tried by a court (with the State’s concurrence) or by a jury. in TX, no D can be convicted of a felony except by a jury verdict, unless upon entering a please, the D waives a right to a trial by jury.

Answer 58

*** What is a right to jury trial and waiver?

Question 59

These juror challenges are made without providing a reason. The number of challenges depends upon the type of case. 15 in capital cases with the death penalty, 10 in capital cases w/o death penalty/non-capital felony cases. In cases involving multiple defendants, each party has eight peremptory challenges. Misdemeanor cases tried in district court included five peremptory challenges.

Answer 59

*** What is a peremptory challenge?

Question 60

These juror challenges are a party’s objection to a specific juror, asserting some fact that renders the juror incapable or unfit to sit on the jury.

Answer 60

** What is a challenge for cause?

Question 61

Basis for these juror challenges include but are not limited to: 1) that a juror is not a qualified vote in TX; 2) the juror has a bodily or mental disease or defect that renders the juror unfit; 3) the juror is a witness in the parties’ case; the juror served on the grand jury that issued the indictment; 4) the juror served on a petit jury in a former trial of the parties’ case; the juror’s bias or prejudice; 5) the juror has reached a conclusion as the defendant’s guilt or innocence; 6) the juror cannot read or write.

Answer 61

** What are reasons for challenges for cause?

Question 62

A D can make this motion with supporting arguments based on relevant facts such as: the bail amount is excessive or unreasonable; and bail is intended to protect the community and ensure the defendant’s appearance, not just confine the defendant.

Answer 62

*** What is a motion to reduce bail?

Question 63

Five court considerations for this are: 1) making bail high enough to reasonably ensure compliance; 2) avoiding oppression in setting bail; 3) the nature of the crime and the circumstances of its commission; 4) the defendants ability to make bail, and 5) the safety of the victim and the community

Answer 63

*** What are the rules for setting the amount of bail?

Question 64

A writ issued by a judge of a court having jurisdiction of a case after bail or commitment and prior to trial, or by a court clerk at the judges discretion. The writ commands the officer to arrest a person accused of an offense and present the arrested person before that court immediately or a time states in the writ.

Answer 64

• What is a capias?