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TBE Criminal Procedure and Evidence #1

The texas trial courts are ...
(1) district court;
(2) justice courts;
(3) municipal courts;
(4) county courts
TBE Criminal Procedure and Evidence #2

Texas district courts have criminal jurisdiction in ...
(1) felonies;
(2) misdemeanors involving official misconduct;
(3) transferred county court proseuctions for misdemeanors punishable by jail time
TBE Criminal Procedure and Evidence #3

Texas justice (of the peace) courts have criminal jurisdiction in ...
... offenses punishable only by fine.
TBE Criminal Procedure and Evidence #4

Texas municipal courts have criminal jurisdiction ...
(1) exclusively for offenses created by city ordinance punishable only by fine;
and
(2) concurrently for offenses created by state law punishable only by fine.
TBE Criminal Procedure and Evidence #5

Texas county courts have criminal jurisdiction in ...
... "misdemeanors over which exclusive jurisdiction is not given to justice courts," but because no such misdemeanors exists, these courts usually hear more serious misdemeanors that county courts could hear.
TBE Criminal Procedure and Evidence #6

The steps of a felony prosecution are ...
(1) arrest;
(2) presentment before magistrate;
(3) examining trial;
(4) consideration by grand jury;
(5) presentment of indictment;
(6) arraingment;
(7) pretrial hearing;
(8) trial for guilt or innocence;
(9) trial for assessing sentence or penalty;
(10) pronouncement of sentence;
(11) motion for a new trial;
(12) motion to arrest judgment;
(13) notice of appeal;
(14) appeal to court of appeals;
(15) review by court of criminal appeals.
N.B.! A D may file a habeas corpus action as a collateral attack to many of the steps listed above.
TBE Criminal Procedure and Evidence #7

Officers must present D before a magistrate __ __ __ and never more than __ __ after arrest.
Officers must present D before a magistrate WITHOUT UNNECESSARY DELAY and never more than 48 HOURS after arrest.
TBE Criminal Procedure and Evidence #8

When a D is presented before a magistrate, the magistrate must ...
(1) inform D of the charges;
(2) inform D of rights to retain counsel and have an examining trial;
(3) inform D that during police questioning (a) D has right to remain silent; (b) any statement he makes can be used against him; (c) D has a right to an attorney present during interrogation; (d) D can request an appointed attorney; and (d) at any time D can terminate a police interview;
and
(4) set bail.
N.B. A magistrate may (not must) also determine whether probable cause exists.
TBE Criminal Procedure and Evidence #9

For felonies, a release on bail is required if no magistate has determined __ __ after __ __ of an arrest __ __.
For felonies, a release on bail is required if no magistate has determined PROBABLE CAUSE after 48 HOURS of an arrest WITHOUT WARRANT.
TBE Criminal Procedure and Evidence #10

For misdemeanors, a release on bail is required if no magistate has determined __ __ after __ __ of an arrest __ __.
For felonies, a release on bail is required if no magistate has determined PROBABLE CAUSE after 24 HOURS of an arrest WITHOUT WARRANT.
TBE Criminal Procedure and Evidence #11

A magistrate may delay release of D entitled to release for no more than ...
... 72 HOURS.
TBE Criminal Procedure and Evidence #12

If D has a right to release on bond, then ...
... D also has a right that bond be set so this can happen---i.e., the bond must be no more than $10K and personal bond if necessary to assure release.
TBE Criminal Procedure and Evidence #13

A prosecutor seeking to have bail denied in a noncapital case must ...
... file a motion for denial of bail in district court.
TBE Criminal Procedure and Evidence #14

Any order denying bail must issue within __ __ of the __ __.
Any order denying bail must issure within 7 DAYS of the DEFENDANT'S APPREHENSION.
TBE Criminal Procedure and Evidence #15

Only a __ __ can deny bail in a noncapital prosecution.
DISTRICT JUDGE
TBE Criminal Procedure and Evidence #16

Bail can be denied in a noncapital case only if ...
... at hearing the prosecution shows
(1) D is charged with a noncapital felony;
(2) substantial evidence of D's guilt;
and
(3) EITHER
(a) two prior felony convictions;
(b) D committed the charged offense while out on bail on a felony;
(c) one prior felony conviction and charged offense involved use of deadly weapon;
(d) charged offense was a violent or sexual offense committed while on felony probation or parole;
OR
(e) D violated a condition of previous bail related to safety of victim or community.
TBE Criminal Procedure and Evidence #17

A D may challenge a denial of bail by ...
... immediately appealing the order denying bail to the COURT OF CRIMINAL APPEALS.
TBE Criminal Procedure and Evidence #18

A denial of bail for a noncapital felony may last only until __ __ __ __ __, after which the order denying bail is __ __ and D is entitled to have __ __ upon __ __ __ __ __ __ __.
A denial of bail for a noncapital felony may last only until 60 DAYS FROM DEFENDANTS INITIAL DETENTION, after which the order denying bail is AUTOMATICALLY VACATED and D is entitled to have BAIL SET upon FILING A MOTION TO HAVE BAIL SET.
TBE Criminal Procedure and Evidence #19

Denial of bail in a noncapital prosecution may last over 60 days only if ...
... defense has filed for a continuance.
TBE Criminal Procedure and Evidence #20

A prosecutor seeking to have bail denied in a capital case must ...
... ask the magistrate to whom D is presented for denial of bail.
TBE Criminal Procedure and Evidence #21

To obtain a denail of bail in a capital case, the prosecution must show ...
(1) D is charged with capital murder;
(2) a likelihood that D will be convicted of that crime;
(3) a likelihood that the death penalty will be imposed --- i.e., the juror will answer the special issues in favor of the state.
TBE Criminal Procedure and Evidence #22

A D in a captial case may challenge a denial of bail by ...
... applying for the writ of habeas corpus in district court.
TBE Criminal Procedure and Evidence #23

In a capital case, after a D has applied for a writ of habeas corpus in district court ...
... a hearing will be held and a judge will decide whether bail was improperly denied and whether bail must therefore be reset.
TBE Criminal Procedure and Evidence #24

In a capital case, a D may challenge a district courts refusal to reset bail in a habeas corpus action by ...
... immediately appealing the habeas corpus decision to the COURT OF CRIMINAL APPEALS.
TBE Criminal Procedure and Evidence #25

Defense may seek to have undenied bail reduced by ...
(1) filing habeas corpus action in district court;
and
(2) request district judge for reduction of bail at hearing by showing that (a) bail was excessive, (b) D cannot meet bail, and (c) what bail D can meet.
TBE Criminal Procedure and Evidence #26

If judge denies D's habeas corpus action for reduction in bail, D may challenge by ...
... appeal BEFORE TRIAL the denial of habeas corpus to the COURT OF APPEALS.
TBE Criminal Procedure and Evidence #27

When considering what bail to fix for D or whether a preset bail is execessive, the court must consider ...
... LASSO
(1) [L] the LIKELIHOOD of D appearing for trial;
(2) [A] the ABILITY of D to make bail;
(3) [S] the SERIOUSNESS of the crime charged;
(4) [S] the future SAFETY of the victim and community;
(5) [O] the required bail is not an instrument of OPPRESSION.
TBE Criminal Procedure and Evidence #28

The difference between a bail bond and a personal bond is ...
... that a bail bond requires security (either surrety of another to pay or a cash deposit), but a personal bond requires no security and is a promise to pay the amount of the bond if it is forfieted.
TBE Criminal Procedure and Evidence #29

The court may condition bail on ...
... anything it is specifically authorized to do and any reasonable condition related to the safety of the victim's community.
TBE Criminal Procedure and Evidence #30

D may challenge conditions on her bail by ...
... filing a collateral habeas corpus action.
TBE Criminal Procedure and Evidence #31

An examining trial is held for the purpose of ...
... requiring the State to produce evidence before a magistrate showing that probable cause exists to believe the defendant is guilty of the charged crime.
TBE Criminal Procedure and Evidence #32

A D is entitled to an examining trial only if ...
(1) D is charged with a FELONY;
and
(2) no indictment has been returned by the grand jury (which, if done, would establish probable cause to believe D guilty).
TBE Criminal Procedure and Evidence #33

If an examing trial shows no probable cause exists to belive D is guilty, ...
... D will go free until and if he is indicted.
TBE Criminal Procedure and Evidence #34

If D desires to make an unsworn voluntary statement at an examining trial, may do so ...
... only before any witnesses testify.
TBE Criminal Procedure and Evidence #35

During an examining trial, D has the rights to ...
(1) be present;
(2) be represented by counsel;
(3) make an unsworn voluntary statement before any witnesses testify;
(4) have the rules of evidence applied;
(5) cross-examine state witnesses;
and
(6) subpoena present defense witnesses.
TBE Criminal Procedure and Evidence #36

To charge a defendant with a felony, the State must ...
... seek an indictment.
TBE Criminal Procedure and Evidence #37

For the State to obtain an indictment, ...
... a grand jury must have found that probable cause exists to believe D is guility; it must have produced a written statement; the foreperson must have signed that statement; and that statement must be filed in the district court as an indictment.
TBE Criminal Procedure and Evidence #38

A D may waive the State's requirement of obtaining an indictment for charging in all prosecutions except for __ __.
CAPITAL MURDER.
TBE Criminal Procedure and Evidence #39

For a person to waive indictment, ...
(1) D must be represented by counsel;
(2) the waiver must be by written instrument or in open court;
and
(3) the waiver must be voluntary.
TBE Criminal Procedure and Evidence #40

If D has waived indictment, the State will charge him by ...
... filing an information.
TBE Criminal Procedure and Evidence #41

An information is ....
... a pleading filed by the State charging the person named with a criminal offense.
TBE Criminal Procedure and Evidence #42

An information differs from an indictment because ...
... an information must be approved and signed by a prosecutor and filed with a valid and sworn complaint, while an indictment must be approved by a grand jury and signed by a foreman.
TBE Criminal Procedure and Evidence #43

If the State wants to charge D with a class C misdemeanor (punishable only by fine), it will ...
... file a sworn complaint in municipal or justice of the peace court, which is the charging instrument.
TBE Criminal Procedure and Evidence #44

A grand jury can compel D to appear by ...
... having a subpoena issued.
TBE Criminal Procedure and Evidence #45

If D appears before a grand jury voluntarily, D is a __ __ __, and therefore, ...
VOLUNTARY SUSPECT WITNESS, and therefore ...
(1) he must be warned of (a) the crime of which he is suspected; (b) the county in which that crime was committed; and (c) the time of its occurrence;
and
(2) the questions asked him and his answers must be recorded.
TBE Criminal Procedure and Evidence #46

__ of grand jury proceedings must be recorded except ...
NONE except questions asked suspect witnesses and answers given suspect witnesses.
TBE Criminal Procedure and Evidence #47

If D appears before a grand jury under subpoena, D is a __ __ __, and therefore, ...
SUBPOENAED SUSPECT WITNESS, and therefore,
(1) he must be orally warned that (a) his testimony will be recorded, (b) his false answers subject him to prosecution for perjury, (c) he may refuse to answer incriminating questions, (d) he has a right to counsel, (e) he has a right to have a lawyer OUTSIDE THE CHAMBER, and (f) his testimony can be used against him;
(2) he must be given a written copy of the warnings;
and
(3) he must have a reasonable opportunity before appearing to obtain and consult with counsel.
TBE Criminal Procedure and Evidence #48

D may __ cross-examine a nonsuspect grandjury witness because ...
NOT because only the prosecutor and grand jurors may examine witnesses.
TBE Criminal Procedure and Evidence #49

D may address a grand jury himself only if ...
... the grand jury gives him permission to do so.
TBE Criminal Procedure and Evidence #50

D's lawyer may address a grand jury only if ...
... both (1) the grand jury gives him permission and (2) the prosecutor consents.
TBE Criminal Procedure and Evidence #51

While a grand jury is hearing evidence, the presence of an unauthorized person ...
... is prohibited, but will not require dismissal.
TBE Criminal Procedure and Evidence #52

While a grand jury is deliberating or voting, only __ __ may be present and the presence of any unauthorized persons will ...
GRAND JURORS ... require dismissal of the indictment.
TBE Criminal Procedure and Evidence #53

An indictment __ __ be challenged for evidentiary insufficiency.
MAY NEVER
TBE Criminal Procedure and Evidence #54

The period of limitations for criminal prosecutions require ...
... that an indictment must be presented within a period of time specified for the offense.
TBE Criminal Procedure and Evidence #55

When a period of limitations is "tolled," ...
... the time elapsing is not being counted for period of limitation purposes.
TBE Criminal Procedure and Evidence #56

Period of limitations are tolled when ...
(1) while the accused is out of the state;
and
(2) while a previously dismissed charging instrument (indictment, information, or complaint) for the same offense was pending.
TBE Criminal Procedure and Evidence #57

A charging instrument alledges ...
FACTS ONLY; it does not specify the charged crime by name and it does not specify the statute creating the crime.
TBE Criminal Procedure and Evidence #58

Charging instruments must ...
(1) charge the offense
and
(2) provide the accused with trial preparation notice.
TBE Criminal Procedure and Evidence #59

To charge the offense, the charging instrument must ...
(1) facts constituting all elments of the offense, though statutory language describing the offense is sufficient,
and
(2) NAME ANY VICTIM.
TBE Criminal Procedure and Evidence #60

To provide the accused with trial preparation notice, the charging instrument ...
... may need to alledge facts with greater specificty and detail than is sufficient to charge an offense.
TBE Criminal Procedure and Evidence #61

To meet the necessary formal requisites, an indictment or information must ...
(1) commence with "In the name and by the authority of the State of Texas";
(2) name or describe the accused;
(3) set forth (charge) all elements of the offense;
(4) specify enough details to give accused notice;
(5) allege the crime was committed on a date that is both (a) within the period of limitations and (b) before the presentment of the indictment;
(6) allege the commission o fhte crime in a county within the court's jurisdiction;
(7) conclude with "Against the peace and dignity of the State";
and
(8) be signed by appropriate person (by foreperson for an indictment and by prosecutor for information).
TBE Criminal Procedure and Evidence #62

An otherwise valid indictment will __ if it alleges a single crime was committed in two ways or with two weapons because ...
SUCCEED because it puts accused on notice that the State may prove he committed the crime on either of two alternative theories.
TBE Criminal Procedure and Evidence #63

If an indictment alleges a single crime was committed in one way "and" in another way, and that case goes to trial, then the prosecution's burden will be to prove ...
... only one of the ways because the "and" in the indictment will be read to mean "or" and as indicating an alternative theory.
TBE Criminal Procedure and Evidence #64

Generally, a jury can convict D only of an offense __ __ __ __, but sometimes a jury is instructed as permitted to convict D of __ __ offenses.
Generally, a jury can convict D only of an offense CHARGED IN AN INDICTMENT, but sometimes a jury is instructed as permitted to convict D of LESSER INCLUDED offenses.
TBE Criminal Procedure and Evidence #65

An inconsistency between specific detailed allegations in indictment and what is proved is called a "__", which sometimes requires __.
An inconsistency between specific detailed allegations in indictment and what is proved is called a "VARIANCE", which sometimes requires ACQUITAL.
TBE Criminal Procedure and Evidence #66

The date alleged in an indictment is __ __ on the State at trial.
NOT BINDING
TBE Criminal Procedure and Evidence #67

A lesser included offense of another more serious offense if ...
(1) it is proved by SOME but not all facts necessary for the more serious offense;
OR
(2) it requires only a less serious injury to the same person, property, or interest as the more serious;
OR
(3) it requires only a less culpable mental state than the more serious;
OR
(4) it consists of an attempt to commit the more serious offense.
TBE Criminal Procedure and Evidence #68

A jury should be instructed on an uncharged offense if ...
(1) the uncharged offense is a lesser inlcuded offense of the charged crime;
and
(2) the evidence before the permits it to find (a) D IS NOT GUILTY of the CHARGED CRIME and (b) D is guilty of the lesser included offense.
TBE Criminal Procedure and Evidence #69

If a lesser included offense is submitted to the jury and the jury convicts on that offense, then ...
... the defendant is acquitted of the more serious charged offense.
TBE Criminal Procedure and Evidence #70

If the name specified as the accused in an indictment is not the defendant's true name, then ...
(1) the defendant must raise this at arraignment;
(2) the defendant must specify his true name;
and
(3) the judge is then to correct the indictment so it accuses the defendant by his own true name.
TBE Criminal Procedure and Evidence #71

A defendant may __ seek acquital by alleging a variance between his true name and the name of the accused on the indictment and as proof showed at trial.
NOT
TBE Criminal Procedure and Evidence #72

All defects in charging instruments must be raised __ __ except ...
BEFORE TRIAL except defects that prevent an instrument from being an indictment or information can be raised at any time.
TBE Criminal Procedure and Evidence #73

A motion challenging a charging instrument as defective is called a "__ __ __" and must be filed by __ __ __ __ __.
A motion challenging a charging instrument as defective is called a "MOTION TO QUASH" and must be filed by THE DAY BEFORE TRIAL BEGINS.
TBE Criminal Procedure and Evidence #74

If a trial court quashes an indictment, the State may respond by
(1) taking an appeal;
or
(2) obtaining a new indictment;
or
(3) amending the quashed indictment.
TBE Criminal Procedure and Evidence #75

Motions to quash an indictment can take exception either to the __ or the __ of the indictment.
FORM or SUBSTANCE
TBE Criminal Procedure and Evidence #76

If a defect in an indictment is not raised before trial, then it __ be raised later in trial, on appeal, or in post-conviction habeas corpus actions.
CANNOT
TBE Criminal Procedure and Evidence #77

The only defect to an indictment that may be raised after trial has begun is ...
... a defect that renders an instrument to be "not an indictment."
TBE Criminal Procedure and Evidence #78

The defects that render an instrument not an indictment are ...
(a) the instrument contains an error that fails to specify any person as charged with the offense;
(b) the error makes the instrument so unclear that the accused cannot determine what crime the state claims he committed.
TBE Criminal Procedure and Evidence #79

On appeal, a conviction will be reversed for error in overruling a motion to quash or set aside made for ...
EITHER
(1) a defect of form if the defendant shows harm;
and
(2) a defect of substance without inquiry into harm.
TBE Criminal Procedure and Evidence #80

Indictment defects of substance are usually ...
... failures to allege all elements of the crimes.
TBE Criminal Procedure and Evidence #81

Indictments defects of form include ...
(1) lack of formal requisites;
(2) failure to provide sufficient specificity to give accused notice.
TBE Criminal Procedure and Evidence #82

An amendment to an indictment is permitted __ __ so long as D does not __.
ANY TIME so long as D does not OBJECT.
TBE Criminal Procedure and Evidence #83

An indictment may not be amended over D’s objection before the day of trial if ...
... the amendment would:

(1) cause the indictment to allege a different offense;

(2) cause the indictment to allege an additional offense;

OR

(3) prejudice the substantial rights of the defendant.
TBE Criminal Procedure and Evidence #84

For any allowed amendment to an indictment, D’s three procedural protections are ...
(1) D is entitled to have advance notice of the amendment;

(2) the trial judge must authorize an amendment (prosecutor may not amend unilaterally);

AND

(3) upon D’s request, D must have no less than 10 days to prepare for trial on the amended indictment and trial may be delayed by continuance to provide this.
TBE Criminal Procedure and Evidence #85

Any amendment sought on the day of the trial is ...
... denied.
TBE Criminal Procedure and Evidence #86

When an amendment is sought after trial begins, the amendment will be prohibited if ...
... D objects, regardless of D’s reason for objecting.
TBE Criminal Procedure and Evidence #87

Procedurally, a prosecutor amends an indictment by ...
(1) filing a motion for leave to amend;

(2) giving D adequate notice of the proposed amendment;

(3) appearing at the trial judge’s hearing to decide on whether the amendment will be allowed;

AND

(4) if authorized, amend the actual indictment.
TBE Criminal Procedure and Evidence #88

An amendment to an indictment prejudices the defendant’s substantial right to be tried only on a grand jury indictment if ...
... the amendment so changes the allegations that the defendant can be convicted on the basis of a different incident than that considered by the grand jury.
TBE Criminal Procedure and Evidence #89

The arraignment takes place in the __ court and during it ...
(1) the accused enters a plea;

(2) the court fixes the accused’s identity;

AND

(3) the judge appoints counsel to accused if not yet done.
TBE Criminal Procedure and Evidence #90

The pleas available to a D are ...
(1) guilty;

(2) not guilty;

and

(3) nolo contendere.
TBE Criminal Procedure and Evidence #91

A criminal defendant must personally decide ...
(1) what plea to enter;

(2) whether to have a trial by jury;

and

(3) whether to himself take the witness stand.
TBE Criminal Procedure and Evidence #92

If D wishes to prove insanity as a defense, __ __ before trial he must ...
10 DAYS before trial he must provide his notice of intent to introduce such evidence.
TBE Criminal Procedure and Evidence #93

A plea of nolo contedere means ...
... the D does not wish to contend his charges and will have the same effect as a guilty plea in his prosecution; however, any subsequent civil litigation will not be able to use his nolo contedere plea as evidence against D, as it would be able to with a guilty plea.
TBE Criminal Procedure and Evidence #94

Before accepting a felony plea of guilty or nolo contendere, a judge must ...
(1) inform D of the range of punishment;

(2) inform D that recommendations by the State are not binding;

(3) inform D of the limited right after a guilty plea to appeal;

(4) inform D that his plea may result in deportation, exclusion from the U.S. or denial of naturalization;

and

(5) inquire as to whether there is a plea bargain.
TBE Criminal Procedure and Evidence #95

If a judge decides to impose a sentence other than set out in a plea bargain, then ...
... D has a right to withdraw his plea.
TBE Criminal Procedure and Evidence #96

A judge __ set a case for pretrial hearing and conference.
MAY
TBE Criminal Procedure and Evidence #97

If a pretrial hearing and conference is set, the parties have until __ days before that hearing and conference to ....
... 7 DAYS before that hearing and conference to:

(1) enter any special plea;

(2) make challenges to an indictment (motion to quash);

(3) make motions for continuances;

(4) make motions for change of venue;

(5) move to suppress evidence;

(6) make requests for discovery;

AND

(7) raise claims of entrapment
TBE Criminal Procedure and Evidence #98

A motion in limine is ...
... a pretrial motion that asks for either or both:

(1) a pretrial ruling on some question of EVIDENCE or PROCEDURE that will arise during trial;

AND/OR

(2) a pretrial ruling that opposing counsel must alert the judge before raising some matter of evidence or procedure before the trial.
TBE Criminal Procedure and Evidence #99

To preserve an error resulting from a violation of an in limine motion during trial, counsel ...
... must object at the time of error because the violation of the in limine motion does not preserve itself for appeal.
TBE Criminal Procedure and Evidence #100

To preserve an error resulting from evidenced introduced in accordance with an in limine motion, counsel ...
... must object, as simply making an in limine motion on that evidence at the start of trial is insufficient to preserve errors for appeal.
TBE Criminal Procedure and Evidence #101

A motion to suppress may be used to raise any argument pretrial that __ __ __ __ __ __, but it is most often used to contest __ __ __ and __ __ __ __ __.
A motion to suppress may be used to raise any argument pretrial that EVIDENCE TO BE OFFERED AT TRIAL IS INADMISSIBLE, but it is most often used to contest ILLEGALLY OBTAINED EVIDENCE and INADMISSABLE OUT OF COURT CONFESSIONS.
TBE Criminal Procedure and Evidence #102

Though a motion to suppress is available for challenging evidence as illegal or inadmissible, counsel __ __ to admitting that evidence at trial.
MAY OBJECT
TBE Criminal Procedure and Evidence #103

A pretrial ruing on a __ __ __ preserves the issue for appeal, but a pretrial ruling on a __ __ __ does not.
MOTION TO SUPRESS preserves the issue for appeal, but MOTION IN LIMINE does not.
TBE Criminal Procedure and Evidence #104

If a defendant testifies at a pretrial hearing, then ...
(1) his testimony must be limited to the issues related to that hearing only;

(2) Cross-examination cannot extend to the guilt or innocence of the charged crime;

and

(3) D does not waive right to remain silent for remainder of trial and may remain silent for remainder of trial.
TBE Criminal Procedure and Evidence #105

A party losing a motion to suppress is entitled to ...
... have the judge make findings of fact explaining and justifying that ruling.
TBE Criminal Procedure and Evidence #106

Generally, a trial judge has __ to order the state to provide the defense with a list of __ __ __ __ at trial.
... trial judge has DISCRETION to order the state to provide the defense with a list of WITNESSES IT WILL CALL at trial.
TBE Criminal Procedure and Evidence #107

Trial judge has discretion to order any side of the case to provide the other with lists __ __ it may call to be delivered at least __ __ __ trial date.
... lists of EXPERT WITNESSES it may call to be delivered at least 20 DAYS BEFORE trial date.
TBE Criminal Procedure and Evidence #108

Either side __ depose a witness.
MAY
TBE Criminal Procedure and Evidence #109

To depose a witness, either side must obtain an __ __ the deposition by showing __ __ for the deposition.
... obtain and ORDER AUTHORIZING the deposition by showing GOOD REASON for the deposition.
TBE Criminal Procedure and Evidence #110

Depositions may be used for ...
(1) discovery---obtaining unknown information to prepare for trial;

OR

(2) preserving testimony for later use at trial.
TBE Criminal Procedure and Evidence #111

A trial court __ order inspection of a thing if ...
MUST ... if the thing:

(1) is a tangible existing thing;

(2) constitutes or contains material evidence;

(3) is in the possession of the State;

and

(4) is not WORK PRODUCT of the State.
TBE Criminal Procedure and Evidence #112

Any ordered inspection __ require the State to give up __ __ __.
Any ordered inspection CANNOT require the state to give up POSESSION OF THE THING.
TBE Criminal Procedure and Evidence #113

Any ordered inspection must be permitted to the extent that it ...
... gives the accused information necessary to prepare for trial.
TBE Criminal Procedure and Evidence #114

Defense counsel __ inspect a report by state crime lab technicians ...
CANNOT ... because it is WORK PRODUCT.
TBE Criminal Procedure and Evidence #115

Defense counsel __ examine police reports of investigating officers ...
CANNOT ... because it is WORK PRODUCT.
TBE Criminal Procedure and Evidence #116

A Defense counsel __ get names of testifying grand jury witnesses ...
CAN ... because the prosecutor should have endorsed this information on the indictment and court may cure this by order if prosecutor did not.
TBE Criminal Procedure and Evidence #117

Defense counsel __ get testimony of grand jury witnesses ...
CAN ... ONLY IF defendant shows PARTICULARIZED NEED for this.
TBE Criminal Procedure and Evidence #118

A judge should __ a defense motion requesting a witness list from the state ...
GRANT ... because judge has discretion and policy favors sharing such lists.
TBE Criminal Procedure and Evidence #119

A trial judge __ exclude or include witnesses omitted from a witness list ...
MAY ... and will consider whether (1) the omission was intentional and (2) whether defense actually received notice that omitted witness would testify.
TBE Criminal Procedure and Evidence #120

Upon conviction, authorities in possession of evidence must preserve it if ...
(1) the evidence contains biological material that if subjected to scientific testing would establish the perpetrator’s identity or exclude someone from those who could have committed the crime;

and

(2) the authorities know this.
TBE Criminal Procedure and Evidence #121

Generally, the identity of an informer __ be ordered disclosed because ... . BUT ...
CANNOT ... because informer identity is privileged. BUT

(1) court may require disclose if necessary to establish INFORMANT’s RELIABILITY;

AND

(2) court MUST require disclosure if informant can provide testimony necessary to a fair determination of guilt or innocence (e.g. informer witnessed the commission of the offense).
TBE Criminal Procedure and Evidence #122

Per Brady v. Maryland, ...
... prosecution has a duty to disclose EXCULPTATORY EVIDENCE and

(1) exculpatory evidence includes any evidence that impeaches any prosecution witnesses;

(2) evidence must be disclosed if in the possession of (a) the trial prosecutor; (b) any other prosecutor; and (c) the police;

and

(3) a conviction is invalid for failing to disclose only if the undisclosed evidence is EXCULPATORY AND MATERIAL.
TBE Criminal Procedure and Evidence #123

If a defendant is determined incompetent, then ...
... criminal proceedings cannot continue (are barred) while defendant is incompetent.
TBE Criminal Procedure and Evidence #124

A defendant is incompetent to stand trial if ...
EITHER

(1) D lacks ability to consult with counsel with a reasonable degree of understanding;

OR

(2) D lacks rational and factual understanding of the charges.
TBE Criminal Procedure and Evidence #125

If a the condition of a defendant previously found competent improves, then ...
... D may be determined to be competent and prosecution can continue with proceedings.
TBE Criminal Procedure and Evidence #126

Competency to stand trial may be raised by ...
(1) by motion of either defense or state suggesting D incompetent;

(2) sua sponte motion of court suggesting D is incompetent.
TBE Criminal Procedure and Evidence #127

Court must suggest D is incompetent sua sponte if ...
... the evidence suggesting incompetency comes to the attention of the court.
TBE Criminal Procedure and Evidence #128

Once competency to stand trial has been raised ...
(1st) trial judge must make a preliminary inquiry;

(2nd) if inquiry uncovers significant evidence of incompetency, judge most hold full hearing;

(3rd) if either party or judge requests, determination of competency must be made by jury, else by judge.
TBE Criminal Procedure and Evidence #129

In a dispute of competency to stand trial the presumption ...
(1) is that D is competent;

and

(2) may be rebutted by a PROPONDERANCE OF THE EVIDENCE.
TBE Criminal Procedure and Evidence #130

Generally, venue lies in the county where ...
... crime was committed.
TBE Criminal Procedure and Evidence #131

A D may seek a change of venue because ...
(1) prejudice in county would prevent fair trial;

OR

(2) a dangerous combination of influential persons against D prevents fair trial.
TBE Criminal Procedure and Evidence #132

The State may seek a change of venue because ...
(1) combinations or influences favoring D prevent fair trial;

(2) dangerous conditions prevent fair trial;

and

(3) life of D or witness would be jeopardized by local trial.
TBE Criminal Procedure and Evidence #133

The court may change venue sua sponte because ...
... a trial fair and impartial to defendant and state alike cannot be held.
TBE Criminal Procedure and Evidence #134

For D to obtain a change of venue, it must ...
(1) file a written motion for the change of venue;

(2) file affidavits that a fair trial cannot be held in the county from the defendant and TWO CREDIBLE COUNTY RESIDENTS;

and

(3) present credible evidence at hearing showing sufficient evidence in local county that prevents a fair trial.
TBE Criminal Procedure and Evidence #135

A judge will be disqualified from a criminal proceeding if ...
(1) judge was the victim of the offense;

(2) judge was counsel for either side in the very case now before her;

(3) judge is related within 3 degrees (either by blood or marriage) to either D or victim;

and

(4) bias.
TBE Criminal Procedure and Evidence #136

The Texas rules on presence of the accused in cases of felonies or misdemeanors punishable by jail time provide ...
(1) the defendant MUST BE present from the beginning of trial through the swearing of the jury;

(2) D may be voluntarily present between swearing of the jury and formal sentencing;

and

(3) D MUST BE present at end of trial for formal sentencing.
TBE Criminal Procedure and Evidence #137

The Texas rules on presence of the accused in cases of misdemeanors punishable by fine only provide ...
... D may be absent if she “appears by counsel” with PROSECUTOR’s CONSENT.
TBE Criminal Procedure and Evidence #138

If D is absent for formal sentencing in a case punishable by jail time, then ...
... the trial judge will formally sentence D to the punishment assessed by the jury once D is returned to the trial court.
TBE Criminal Procedure and Evidence #139

An indictment may allege __ offense ...
ONE offense and one offense only; any more than that and it should be quashed.
TBE Criminal Procedure and Evidence #140

A defendant may be tried on __ indictment per trial.
ONE.
TBE Criminal Procedure and Evidence #141

If a defendant is scheduled to be tried on several indictments, D may ...
... have the trials severed.
TBE Criminal Procedure and Evidence #142

The state may join in one indictment all offenses arising out of ...
... one “criminal episode.”
TBE Criminal Procedure and Evidence #143

If D is charged in different indictments with offenses arising out of one criminal episode, then the state may...
... consolidate those indictments for trial together, but is not required to do so.
TBE Criminal Procedure and Evidence #144

Crimes are part of a single criminal episode if they are ...
(1) part of same transaction;

(2) part of a common scheme or plan;

or

(3) same or similar plans (regardless of different victims).
TBE Criminal Procedure and Evidence #145

If state consolidates multiple charges for single trial, then D may ...
... exercise his absolute right to have the trial severed for separate trial on each charge.
TBE Criminal Procedure and Evidence #146

If D exercises his absolute right to sever charges for separate trial, then ...
... judge may elect to have any sentences for the trial to run consecutively.
TBE Criminal Procedure and Evidence #147

If D is tried on multiple charges in the same trial, all sentences imposed must run ...
... concurrently.
TBE Criminal Procedure and Evidence #148

Several Ds may be charged in one indictment and tried together if ...
... they are all charged with the same offense.
TBE Criminal Procedure and Evidence #149

Several Ds charged in different indictments may be joined for trial if ...
(1) they are charged with the same offense;

OR

(2) they are charged with different offenses arising out of the same transaction.
TBE Criminal Procedure and Evidence #150

A D’s motion to sever her trial from co-defendant’s trial MUST be granted if ...
... D shows co-defendant has a previous conviction admissible against that co-defendant at trial.
TBE Criminal Procedure and Evidence #151

Generally, a judge has __ to grant motions for severance and should do so when ...
DISCRETION ... a joint trial would be prejudicial to a defendant who has moved for severance.
TBE Criminal Procedure and Evidence #152

Generally, a motion for continuance must ...
(1) be written;

(2) be supported by a showing of GOOD CAUSE;

and

(3) be sworn to
TBE Criminal Procedure and Evidence #153

A motion for continuance made after trial begins must ...
(1) be based on an occurrence happening AFTER TRIAL BEGAN

(2) that could not have been ANTICIPATED

(3) so as to prevent a fair trial.
TBE Criminal Procedure and Evidence #154

D’s motion for continuance to obtain a missing witness must contain ...
(1) W’s name and residence;

(2) the efforts made to secure W’s presence;

and

(3) the material facts D will prove by the witness.
TBE Criminal Procedure and Evidence #155

An indigent D charged with a felony __ has a right to an appointed attorney.
ALWAYS
TBE Criminal Procedure and Evidence #156

An indigent D has no right to an appointed attorney if ...
... D is charged with a misdemeanor and no jail time will be imposed upon conviction.
TBE Criminal Procedure and Evidence #157

If a judge determines D indigent, appoints D an attorney, and D refuses, then the judge ...
... must make sufficient inquiries of D on the record to ensure D is competent merely the understand the risks and disadvantages of representing himself.
TBE Criminal Procedure and Evidence #158

Generally, when determining whether a D is indigent and may have an attorney appointed, the judge __ consider whether D has posted or is capable of posting bail, BUT ...
CANNOT, but ... the judge may consider this information insofar as it reflects the defendant’s financial circumstances measured by income, property owned, dependants, etc.
TBE Criminal Procedure and Evidence #159

D’s 6th amendment rights to effective representation is violated if ...
(1) the lawyer’s actions were beyond the bounds of professional competence and not simply tactical decisions;

and

(2) there is reasonable probability that had counsel been effective, the outcome of the proceeding would have been different.
TBE Criminal Procedure and Evidence #160

Representation is not effective if counsel ...
(1) fails to conduct adequate investigation;

OR

(2) fails to convey to client an offer of plea bargain.
TBE Criminal Procedure and Evidence #161

Per Ake v. Oklahoma,...
(1) an indigent defendant is entitled to have the state pay for an expert witness to assist in the case if the witnesses’ expertise is a likely significant issue in the trial;

and

(2) D can move for assistance in obtaining such a witness ex parte so as not to reveal defense strategy to the state.
TBE Criminal Procedure and Evidence #162

The state may dismiss __ or __ charges brought if ...
ANY OR ALL if :

(1) state files a written statement of the reasons for dismissing;

and

(2) judge consents to dismissal.
TBE Criminal Procedure and Evidence #163

If dismissal occurs after jeopardy has attached ...
... no further prosecution may occur.
TBE Criminal Procedure and Evidence #164

A criminal D must be tried to a jury unless ...
... D waives right to a jury trial.
TBE Criminal Procedure and Evidence #165

In district court, the jury has __ jurors; in municipal and justice courts, the jury has __ jurors.
... 12 ... 6.
TBE Criminal Procedure and Evidence #166

A jury verdict is usually __ except ...
GENERAL (e.g. “not guilty”) except

(1) when a special plea is submitted to the jury, which will be returned as True or Not True;

and

(2) when a jury finds D “not guilty by reason of insanity.”
TBE Criminal Procedure and Evidence #167

Once deliberations start, communications between judge and jury must ...
(1) be in writing;

and

(2) judge’s responses must also be read to the jury in open court.
TBE Criminal Procedure and Evidence #168

The state must prove guilt ...
... beyond a reasonable doubt.
TBE Criminal Procedure and Evidence #169

In Texas, a criminal verdict returned by a jury must be ...
... unanimous.
TBE Criminal Procedure and Evidence #170

If jurors cannot agree on a unanimous verdict, the judge must ...
... declare a mistrial.
TBE Criminal Procedure and Evidence #171

Only the __ may decide whether to try a criminal case to a judge or to a jury.
DEFENDANT
TBE Criminal Procedure and Evidence #172

To have her case tried to a judge, the defendant must ...
... WAIVE her right to a jury trial BEFORE TRIAL.
TBE Criminal Procedure and Evidence #173

A defendant may waive __ the right to jury trial on guilt or the right to jury trial on punishment __ __.
A defendant may waive EITHER the right to jury trial on guilt or the right to jury trial on punishment OR BOTH.
TBE Criminal Procedure and Evidence #174

A jury trial on guilt can be waived for any prosecution except ...
... capital murder where the state seeks the death penalty.
TBE Criminal Procedure and Evidence #175

Waiver of jury trial on guilt requires ...
... consent and approval of BOTH prosecutor and judge.
TBE Criminal Procedure and Evidence #176

The jury may apply to the court for a reading of the reporter’s notes only if ...
... the jury disagrees as to what the testimony was.
TBE Criminal Procedure and Evidence #177

If the jury is entitled to a reading of the court reporter’s notes, the judge ...
... may have the reporter read only the notes relating to disputed testimony.
TBE Criminal Procedure and Evidence #178

When the jury cannot agree, it may be charged and a mistrial declared if ...
(1) both parties agree;

OR

(2) the court finds the jury has been kept together long enough to render it altogether improbable that it could agree.
TBE Criminal Procedure and Evidence #179

The steps of jury selection are ...
(1) swearing in the panel;

(2) qualification of the panel members by the judge;

(3) possible jury shuffle;

(4) voir dire of the jury panel members;

(5) challenges for cause;

(6) peremptory challenges;

and

(7) empaneling the trial jury.
TBE Criminal Procedure and Evidence #180

When the judge tests the jurors for qualification, the judge ...
... asks and determines:

(1) are you a qualified voter in this county and state;

(2) have you ever been convicted of any felony or theft;

and

(3) are you under indictment or accusation of theft or any felony.
TBE Criminal Procedure and Evidence #181

The defendant or the state may obtain a jury shuffle ...
... by demanding that members of the sworn panel be reseated randomly BEFORE voir dire begins.
TBE Criminal Procedure and Evidence #182

D or state may make __ challenges for cause in a jury selection.
UNLIMITED
TBE Criminal Procedure and Evidence #183

Challenges for cause must be made ...
... during jury selection, except ABSOLUTE DISQUALIFICATIONS.
TBE Criminal Procedure and Evidence #184

The only challenges for cause permitted under the Texas Code of Criminal Procedure are ...
(1) prior CONVICTION for theft or a felony;

(2) under formal charge for theft or a felony;

(3) insanity;

(4) not qualified to be a voter;

(5) juror is witness in the case;

(6) juror served on a previous jury in prior trial of the case;

(7) juror served on the indicting grand jury for the case;

(8) juror cannot read and write;

(9) juror is BIASED or PREJUDICED for or against the accused;

and

(10) juror is biased or prejudiced against any law applicable to the case on which the defense or the state is entitled to rely.
TBE Criminal Procedure and Evidence #185

The absolute disqualifications for a juror are ...
(1) prior CONVICTION for theft or a felony;

(2) under formal charge for theft or a felony;

(3) insanity.
TBE Criminal Procedure and Evidence #186

When an absolutely disqualified juror sat on the jury, the conviction must be set aside if the defendant ...
EITHER

(1) raised this before the verdict was entered;

OR

(2) shows “significant harm” as a result of the juror’s service.
TBE Criminal Procedure and Evidence #187

A juror is biased against the law applicable to the case if ...
... the juror is unable to consider the full range of punishment provided by the law for the offense.
TBE Criminal Procedure and Evidence #188

A juror must be discharged for cause if she states she has an opinion that __ __ __ BUT ...
INFLUENCE HER VERDICT but any juror who states he can render a verdict on the law and evidence despite his opinion need not be discharged if the court is satisfied the juror can be impartial.
TBE Criminal Procedure and Evidence #189

Each side has __ peremptory challenges in capital murder death penalty cases.
15
TBE Criminal Procedure and Evidence #190

Each side has __ peremptory challenges in felony cases that are not capital murder death penalty cases.
10
TBE Criminal Procedure and Evidence #191

Each side has __ peremptory challenges in criminal cases in county, municipal, or justice courts.
3
TBE Criminal Procedure and Evidence #192

Each side has __ peremptory challenges in misdemeanors tried in district court.
5
TBE Criminal Procedure and Evidence #193

According to Batson v. Kentucky, ...
... neither side in a criminal case may exercise peremptory challenges on the basis of race or gender.
TBE Criminal Procedure and Evidence #194

A Batson v. Kentucy motion should be made ...
... after each side submitted its list of challenged jurors and before the trial court empanels the jury.
TBE Criminal Procedure and Evidence #195

If one side of a criminal case has made all peremptory challenges on jurors with the same race or gender, then ...
... this probably satisfies a prima facie case of racial or gender motivation and the side making the challenges has the burden to explain each of its challenges on race or gender neutral grounds.
TBE Criminal Procedure and Evidence #196

A defendant may raise a Batson challenge regardless of ...
... his or her own race or gender.
TBE Criminal Procedure and Evidence #197

After the seating of the jury, the order of proceeding in a Texas felony trial is ...
(1) judge calls for and parties give announcements of ready;

(2) prosecutor reads the indictment;

(3) defense counsel enters a plea for the defendant;

(4) prosecutor makes State’s opening statement;

(5) prosecution presents State’s case in chief;

(6) defense makes opening statement;

(7) defense presents defense evidence;

(8) rebuttal evidence is presented;

(9) the court reads the charge to the jury;

(10) counsel make final arguments to the jury.

N.B.! If defense chooses, it may make its opening statement immediately after the State’s opening statement, but it can never be required to do so.
TBE Criminal Procedure and Evidence #198

A prosecutor __ call the defendant as a witness because ...
CANNOT because the D has a privilege to avoid being called as a state witness.
TBE Criminal Procedure and Evidence #199

If D believes the state has not carried its burden in proving him guilty beyond a reasonable doubt, then he should ...
... move for a directed verdict of not guilty asking the judge to hold that no reasonable jury could find, on the basis of the state’s case in chief, that all elements of the crime have been proved beyond a reasonable doubt. This motion should be made at the end of the state’s case in chief and again at the close of all the evidence.
TBE Criminal Procedure and Evidence #200

If a motion presents and issue for the judge rather than a jury, then ...
... it should not be made within the hearing of the jury.
TBE Criminal Procedure and Evidence #201

The state __ move for a directed verdict because ...
The state cannot move for a directed verdict because granting a directed verdict for the state denies the defendant his right to a jury trial.
TBE Criminal Procedure and Evidence #202

A D’s motion for directed verdict should be made ...
(1) at the close of the state’s case in chief

and

(2) at the close of all the evidence.
TBE Criminal Procedure and Evidence #203

In criminal cases, the statement against penal interest hearsay exception provides ...
... that hearsay may be admissible when:

(1) the statement is shown to have been incriminating regarding the declarant;

(2) a reasonable person would not have made the statement unless she believed it true;

and

(3) corroborating circumstances clearly indicate the trustworthiness of the statement

(4) regardless of whether the declarant is available.
TBE Criminal Procedure and Evidence #204

The predicate that must be laid by the testimony of a custodian to make records of regularly conducted activity admissible over a hearsay objection includes testimony by the custodian that:
(1) the records were kept in the regular course of business;

(2) it was the regular course of business for a person with knowledge of the matter to make such records or transfer information for inclusion in the records;

(3) entries in the records were made at or near the time of the events;

and

(4) the witness is the custodian of the records.
TBE Criminal Procedure and Evidence #205

If a prosecutor lacks extrinsic evidence regarding the admissibility of business records, the prosecutor must ...
(1) obtain an affidavit of the custodian of the records containing all the elements identified in the last answer;

(2) file the affidavit with the records attached at the court at least 14 days before trial starts;

(3) give the defense notice of the filing at least 14 days before trial.
TBE Criminal Procedure and Evidence #206

At the guilt stage of a criminal trial, a character witness is qualified to testify as to the defendant’s character on reputation only if ...
... the witness was substantially familiar with the defendant’s reputation prior to the day of the offense.
TBE Criminal Procedure and Evidence #207

At the guilt stage of a criminal trial, a character witness is qualified to testify as to the defendant’s character on personal opinion only if ...
... the witness was substantially familiar with the facts on which that opinion is based before the day of the offense.
TBE Criminal Procedure and Evidence #208

Generally, the state cannot introduce evidence that the defendant has a “bad character” to prove __ __ __ except ...
THE DEFENDANT’S GUILT except:

(1) when D puts his own character in issue by exercising his right to introduce evidence of good character

and

(2) at the penalty stage of the trial.
TBE Criminal Procedure and Evidence #209

Character witnesses may give two kinds of testimony ...
(1) personal opinion as to the person’s character;

or

(2) the person’s reputation for a character trait.
TBE Criminal Procedure and Evidence #210

Character cannot be proved by __ __ __, but such evidence can be use in __ __ __ __.
Character cannot be proved by SPECIFIC INSTANCES OF CONDUCT, but such evidence can be used in CROSS-EXAMINING A CHARACTER WITNESS.
TBE Criminal Procedure and Evidence #211

The proper foundation for opinion character testimony is ...
... personal familiarity with the person before the offense.
TBE Criminal Procedure and Evidence #212

The proper foundation for reputation character testimony is ...
... the witness participated in discussions with others of the person’s reputation or overheard others discussing it.
TBE Criminal Procedure and Evidence #213

“Have you heard ...” questions are proper form for ...
... cross-examining a reputation character witness.
TBE Criminal Procedure and Evidence #214

“Did you know ...” questions are proper form for ...
... cross-examining a personal opinion character witness.
TBE Criminal Procedure and Evidence #215

Upon a timely request by D, the State must give D Evidence Rule 404(b) notice, which requires ...
(1) notice given in advance of trial of

(2) the state’s intent to introduce evidence of other crimes, wrongs , or “bad” acts

(3) to be introduced in State’s case in chief

(4) that did not arise in same transaction as the charged crime.
TBE Criminal Procedure and Evidence #216

An extraneous offense is ...
... a crime of which the accused cannot be convicted in his trial (neither a charged crime nor a lesser included offense).
TBE Criminal Procedure and Evidence #217

Evidence of D’s extraneous offences is __ because ...
INADMISSIBLE because using it allows the prosecution to attempt to prove guilt by proving merely that the defendant is a bad person or has a bad character and thus must have committed the charged crime.
TBE Criminal Procedure and Evidence #218

If evidence of D’s extraneous offense is relevant to an issue other than __ __, then ...
D’S CHARACTER, then it is admissible UNLESS the judge determines the probative value of the evidence is outweighed by the danger of unfair prejudice.
TBE Criminal Procedure and Evidence #219

Permissible uses of extraneous offense evidence for other than character are ...
[M] to show D’s MOTIVE to commit the charged crime;

[I] to show D’s INTENT or knowledge;

[M] to rebut D’s claim of MISTAKE or accident;

[I] to show IDENTITY after D has put that into issue;

[C] to show COMMON scheme or plan.
TBE Criminal Procedure and Evidence #220

A defendant puts his identity into issue by ...
EITHER

(1) introducing evidence that he was not the perpetrator (e.g. alibi testimony);

OR

(2) impeaching all of the state’s eyewitnesses.
TBE Criminal Procedure and Evidence #221

If a defendant puts his identity into issue, then ...
... the state may use evidence that he committed similar extraneous offenses to show his identity.
TBE Criminal Procedure and Evidence #222

Per Rule 106 regarding writings, ...
Any party is entitled immediately to introduce a part of or any other writing or recorded statement which should in fairness be considered by the jury at the same time as a writing or recorded statement that has been introduced into evidence.
TBE Criminal Procedure and Evidence #223

Per Rule 107 of optional completeness, ...
... when on party introduces part of an act, conversation, or statement, the other party is entitled to prove “the rest of the SUBJECT”.
TBE Criminal Procedure and Evidence #224

The physician-patient privilege __ __ apply in criminal litigation.
DOES NOT
TBE Criminal Procedure and Evidence #225

The client of an attorney has a privilege to have kept confidential ...
... private communication to her attorney or her attorney’s representative (e.g. paralegal).
TBE Criminal Procedure and Evidence #226

The defense __ __ obligation of disclosure to the state in a criminal trial.
HAS NO
TBE Criminal Procedure and Evidence #227

The spouse of a criminal defendant has a privilege ...
... not to be called as a state witness to testify against D or to not testify against D if the spouse is married to the defendant at the time of trial.
TBE Criminal Procedure and Evidence #228

The spouse of a criminal defendant does not have a privilege if ...
(1) the defense subpoenas the spouse to testify for the defense;

(2) the prosecution is for an offense committed against (a) any minor child; (b) a household member of either spouse; or (c) the spouse him or herself;

OR

(3) the state calls the spouse to testify about matters occurring before the spouse married the defendant.
TBE Criminal Procedure and Evidence #229

If a spouse of a criminal defendant volunteers to testify against that defendant, then ...
... the defense has no basis for objection because the privilege is held by the defendant spouse, who may waive it if she wishes.
TBE Criminal Procedure and Evidence #230

__ has a privilege to refuse to disclose confidential marital communications and prevent others from disclosing those communication.
ANYONE
TBE Criminal Procedure and Evidence #231

The confidential marital communication privilege applies to ...
(1) communications

(2) made by the person claiming the privilege or by the spouse of the person claiming the privilege

(3) that were made confidentially

(4) and without intent to disclose to any other person.
TBE Criminal Procedure and Evidence #232

The confidential marital communication privilege does not apply if
(1) the communication was made to commit a crime or fraud;

or

(2) the prosecution is for a crime committed against the person of (a) any minor child, (b) a household member of either spouse, or (c) the spouse him or herself.
TBE Criminal Procedure and Evidence #233

A defendant’s statements made to prosecutor during __ __ are inadmissible.
PLEA DISCUSSIONS
TBE Criminal Procedure and Evidence #234

Both sides of a criminal litigation may have subpoenas issued for the witnesses they want upon ...
... application to the clerk.
TBE Criminal Procedure and Evidence #235

Either side of a criminal litigation is entitled to have an attachment issued for a witness only if ...
... the witness has been properly subpoenaed and has failed to appear.
TBE Criminal Procedure and Evidence #236

Generally, a side of a criminal litigation __ bolster the testimony of its witness, which includes ...
CANNOT

(1) proving out of court statements by the witness consistent with the witnesses’ testimony;

or

(2) introducing evidence that the witness is a truthful person (e.g. character testimony).
TBE Criminal Procedure and Evidence #237

A side in a criminal litigation may bolster the testimony of its witness with prior consistent statements only if...
... the other side has made an express or implied charge of:

(1) recent fabrication by the witness

(2) improper influence on the witness

(3) improper motive on the part of the witness.
TBE Criminal Procedure and Evidence #238

A side in a criminal litigation may bolster the testimony of its witness with testimony of a witnesses’ truthful character only if ...
... the witness’s character has been attacked by evidence of untruthfulness.
TBE Criminal Procedure and Evidence #239

If a side in a criminal litigation calls a someone whom the other side questions as being not competent to testify (e.g. a child), then ...
... the judge should send the jury out of the court room, examine the child him or herself, and determine whether the witness has sufficient intellect to relate transactions regarding which he will be asked to testify and therefore if the child may testify.
TBE Criminal Procedure and Evidence #240

A subpoena issued for a criminal case is good for __ __ state.
THE WHOLE
TBE Criminal Procedure and Evidence #241

An attachment is ...
... an order directed to a peace office to find the attached witness and bring him or her before the court; it may only be issued if (a) the witness was previously properly subpoenaed and (b) has failed to appear.
TBE Criminal Procedure and Evidence #242

A judge currently presiding over a case __ __ a competent witness for that case.
IS NOT
TBE Criminal Procedure and Evidence #243

The four methods of impeachment are ...
(1) contradicting the witness;

(2) showing the witness has prior convictions;

(3) showing the witness has character for untruthfulness;

and

(4) showing the witness’ bias or interest.
TBE Criminal Procedure and Evidence #244

When impeaching a witness with character evidences counsel may ... but not ...
... may use opinion or reputation evidence but may not inquire into specific instances of conduct, except convictions.
TBE Criminal Procedure and Evidence #245

Counsel may impeach a witness by showing bad or criminal conduct only ...
... establishing

(1) the conduct resulted in a criminal conviction that is final---appeals and all;

(2) the conviction is not stale---i.e. more than 10 years since conviction;

(3) the conviction is for either any felony or a misdemeanor involving moral turpitude;

and

(4) the probative value of showing the conviction substantially outweighs the risk of unfair prejudice to the witness.
TBE Criminal Procedure and Evidence #246

A party can impeach any witness by introducing extrinsic evidence contradicting the witness’ testimony unless ...
... the witness’s assertion is on a collateral matter.
TBE Criminal Procedure and Evidence #247

When impeaching a witness, a matter is collateral if ... but ...
... if the impeaching party would not be able to prove it as part of its own case BUT other matters can be explored on cross-examination in order to correct a misleading impression left by the witness.
TBE Criminal Procedure and Evidence #248

When impeaching a witness with a prior inconsistent statement, counsel must ...
(1) tell the witness the contents of the prior inconsistent statement;

(2) tell the witness the time and the place of that statement and the person to whom it was made;

(3) afford the witness an opportunity to explain or deny the statement.
TBE Criminal Procedure and Evidence #249

When impeaching a witness with a prior inconsistent statement, if a witness unequivocally admits having made the statement, ...
... the extrinsic evidence of that statement may not be admitted.
TBE Criminal Procedure and Evidence #250

Convictions for misdemeanors involving moral turpitude eligible for impeaching witnesses include ... but not...
INCLUDE theft, perjury, forgery, making false report to police, aggravated assault on a female, and prostitution;

BUT NOT DWI, drunkenness, assault, possession of marijuana, liquor law violations, unlawfully carrying a weapon.
TBE Criminal Procedure and Evidence #251

Otherwise improper cross-examination is permitted only if ...
... necessary to correct a misleading impression created by a witness’s unresponsive answer.
TBE Criminal Procedure and Evidence #252

When making trial rulings, a judge is strictly prohibited from commenting on __ __ __ or conveying to the jury the judge’s __ __ __ __.
When making trial rulings, a judge is strictly prohibited from commenting on THE WEIGHT OF EVIDENCE or conveying to the jury the judge’s OPINION OF THE MERITS.
TBE Criminal Procedure and Evidence #253

If a judge comments on weight of evidence or opines on a case’s merits, counsel should ...
(1) object that judge has commented on the evidence or opined;

(2) ask the judge to remove the jury from the courtroom while she argues the matter;

(3) seek an instruction to the jury to disregard the comment;

(4) move for a mistrial for a tainted jury.
TBE Criminal Procedure and Evidence #254

A party can contradict a witness’s testimony with extrinsic evidence only if ...
... the matter is on the party would be able to prove as part of the party’s own case.
TBE Criminal Procedure and Evidence #255

Per “THE RULE”, upon request of either party in a criminal case ...
... witnesses must be excluded from the courtroom except during their own testimony.
TBE Criminal Procedure and Evidence #256

THE RULE of excluding witnesses from the court room may not exclude ...
(1) the defendant;

(2) any officer or employee of a corporate defendant;

(3) any person whose presence is shown to be essential to the presentation of a party’s case (e.g., an expert necessary for assisting in cross-examination);

(4) the victim, the victim’s guardian, or a close relative of a deceased victim unless the trial court finds that the testimony would be “materially affected” by hearing other testimony.
TBE Criminal Procedure and Evidence #257

THE RULE __ be used to exclude the defendant’s spouse in a criminal trial.
CAN
TBE Criminal Procedure and Evidence #258

If THE RULE is invoked, the judge must ...
... at beginning of trial admonish each witness as to

(1) the persons with whom the court determines the witness may talk to about the case before trial ends;

(2) the persons the court determines the witness may not talk to.
TBE Criminal Procedure and Evidence #259

Generally, an expert witness may testify to an opinion without first disclosing the __ or __ upon which that opinion is based.
FACTS or DATA
TBE Criminal Procedure and Evidence #260

In criminal cases, a party against whom expert testimony is offered has an __ right upon request to ...
ABSOLUTE ... voir dire the expert on the facts or data upon which the testimony will be based BEFORE the witness testifies to the opinion (this right is not absolute in civil cases).
TBE Criminal Procedure and Evidence #261

Per Texas Rule of Evidence 702, the factors a court should consider when determining the admissibility of scientific evidence are ...
(1) the extent to which the underlying scientific theory and technique are accepted as valid by the scientific community;

(2) whether scientific literature supports or rejects the theory and technique;

(3) the potential error rate of the technique;

(4) the qualifications of the expert offered to testify;

(5) the availability of other experts to test and evaluate the technique;

(6) the clarity with which the theory and technique can be explained in court;

and

(7) the experience and skill of the person who applied the technique in this case.
TBE Criminal Procedure and Evidence #262

During a criminal trial, a party is entitled to the disclosure of a writing if a witness for opposition use it to ...
... refresh her memory BEFORE or DURING testimony.
TBE Criminal Procedure and Evidence #263

During a criminal trial, a party is entitled to the prior written or recorded statement of a witness for opposition ...
... after that witness has finished direct examination (this rule applies to grand jury witness testimony, but does not apply to the defendant).
TBE Criminal Procedure and Evidence #264

Per the “Use Before Jury Rule,’’ ...
... a party is entitled to an item if it is used by opposing counsel in front of the jury in such a way that its contents become in issue.
TBE Criminal Procedure and Evidence #265

The Work Product Protection doctrine __ __ apply during trial as it did pretrial.
DOES NOT
TBE Criminal Procedure and Evidence #266

During a criminal trial, if a party does not disclose writings used before the jury or for refreshing witness’ memory as ordered by the court, then the court ...
... SHALL order that the witness’ testimony stricken from the record.
TBE Criminal Procedure and Evidence #267

During a criminal trial, if the State refuses to produce evidence as ordered by the judge, then ...
... the court may dismiss the prosecution if the court determines the interests of justice require this.
TBE Criminal Procedure and Evidence #268

Generally, a photograph is admissible if a witness would be permitted to ...
... give a verbal description of what the photo depicts.
TBE Criminal Procedure and Evidence #269

To authenticate a photograph for use at trial, counsel must ...
... call a “sponsoring” witness to testify that:

(1) the witness saw the matter depicted in the photo;

and

(2) the photo accurately depicts what the witness saw.
TBE Criminal Procedure and Evidence #270

Per Rule 403, a photograph may be inadmissible if ...
... its probative value is substantially outweighed by the risk of unfair prejudice it poses.
TBE Criminal Procedure and Evidence #271

In Texas only, evidence may not be admitted against the accused at trial if it was obtained by an __ or other __ in violation of ...
OFFICER or OTHER PERSON ...

(1) the U.S. Constitution;

(2) U.S. Law;

(3) the Texas Constitution;

OR

(4) Texas Law.
TBE Criminal Procedure and Evidence #272

In Texas only, evidence illegally obtained by an officer is inadmissible unless ...
(1) the officer was acting in objective good faith reliance upon a warrant;

and

(2) the warrant was issue by a disinterest magistrate based on probable cause.
TBE Criminal Procedure and Evidence #273

If counsel wishes to challenge the legality of how evidence was obtained at trial, counsel must ...
... raise a contested question of fact before the jury concerning the legality of the manner in which the evidence was obtained---i.e., by presenting evidence of its illegal obtainment.
TBE Criminal Procedure and Evidence #274

If counsel raises a contested question of fact before the jury concerning the legality of how evidence was obtained, then ...
... the judge will instruct the jury to disregard the evidence if it has a reasonable doubt as to whether it was legally obtained.
TBE Criminal Procedure and Evidence #275

In Texas, the __ __ is responsible for creating the jury charge.
TRIAL JUDGE
TBE Criminal Procedure and Evidence #276

In the jury charge, the judge may neither __ nor __ __ evidence.
SUMMARIZE nor COMMENT UPON evidence.
TBE Criminal Procedure and Evidence #277

The procedure for creating and submitting a jury charge is ...
... initiated BEFORE lawyers make their final arguments:

(1st) trial judge develops a proposed jury charge and submits to both sides of litigation;

(2d) trial judge directs that any special charges and objections to the proposed charge be heard and they are heard;

(3d) the trial judge reads the final charge to the jury in court;

and

(4th) the trial judge gives a written copy of the charge to the jury.
TBE Criminal Procedure and Evidence #278

Objectsions and requests for charges must ... but ...
... BE WIN WRITING, but the writing may be a dictation to the court reporter in the presence of the judge and prosecutor BEFORE the final charge is read to the jury.
TBE Criminal Procedure and Evidence #279

Per the Almanza rule, error in the jury charge is subject to __ __ __, under which a conviction may be reversed for “fundamental” error despite lack of __ at trial and requires ...
SPECIAL HARMLESS ERROR may be reversed despite lack of OBJECTION at trial and requires:

(1) reversal of preserved errors resulting in “some harm”;

and

(2) reversal of unpreserved errors resulting in “egregious harm” preventing a “fair trial.”
TBE Criminal Procedure and Evidence #280

Error in the jury charge may be preserved by ...
...EITHER

(1) objection;

OR

(2) request for special charge.
TBE Criminal Procedure and Evidence #281

A defendant’s failure to object to the indictment’s failure to allege all elements of the crime will ...
... not waive the right to have the jury charge to require the state to prove all elements of the charged crime.
TBE Criminal Procedure and Evidence #282

Reasonable doubt should __ be defined in a jury charge because ...
NEVER ... because its meaning is too vague to provide juries with specific instruction.
TBE Criminal Procedure and Evidence #283

The defendant __ include a jury instruction on his failure to testify ...
MAY ... stating that defendant has a right to not testify and his failure to testify should not be taken as a circumstance against him and the jury should draw no adverse inference against him from not doing so.
TBE Criminal Procedure and Evidence #284

Elements of the crime __ be pleaded in the charging instrument.
MUST
TBE Criminal Procedure and Evidence #285

Elements of the crime __ be included in the jury instruction.
MUST
TBE Criminal Procedure and Evidence #286

The burden of proof for the elements of a crime is on the __ and that proof must be shown ...
STATE ... beyond a reasonable doubt.
TBE Criminal Procedure and Evidence #287

Exceptions to the application of a crime __ be pleaded and __ in the charging instrument.
MUST be pleaded and NEGATED.
TBE Criminal Procedure and Evidence #288

Exceptions to the application of a crime __ be included in the jury instruction.
MUST
TBE Criminal Procedure and Evidence #289

The burden of proof for negating exceptions to the application of a crime is on the __ and that proof must be shown ...
STATE ... beyond a reasonable doubt.
TBE Criminal Procedure and Evidence #290

Defenses to a crime __ be pleaded in the charging instrument.
NEED NOT
TBE Criminal Procedure and Evidence #291

Defenses to a crime __ be included in the jury instruction ...
MUST ... IF evidence supporting the defense has been produced in trial.
TBE Criminal Procedure and Evidence #292

The burden of proof for negating defenses to a crime is on the __ and that proof must be shown ...
STATE ... beyond a reasonable doubt.
TBE Criminal Procedure and Evidence #293

Affirmative defenses to a crime __ be included in the charging instrument.
NEED NOT
TBE Criminal Procedure and Evidence #294

Affirmative defenses to a crime __ be included in the jury instruction ...
MUST ... IF evidence supporting the defense has been produced in trial.
TBE Criminal Procedure and Evidence #295

The burden of proof for showing affirmative defenses to a crime is on the __ and that proof must be shown ...
DEFENDANT ... by a preponderance of the evidence.
TBE Criminal Procedure and Evidence #296

__ but not __ or __ must be negated in the charging instrument.
EXCEPTIONS but not defenses or affirmative defenses
TBE Criminal Procedure and Evidence #297

The defenses generally set out in the penal code are ...
(1) mistake of fact;

(2) entrapment;

(3) necessity;

(4) self-defense;

(5) defense of others;

and

(6) defense of property.
TBE Criminal Procedure and Evidence #298

The affirmative defenses generally set out in the penal code are ...
(1) insanity;

(2) mistake of law;

and

(3) duress
TBE Criminal Procedure and Evidence #299

When making final arguments, counsel is limited to ...
(1) summation of the evidence;

(2) making reasonable deductions from the evidence;

(3) answering arguments of opposing counsel;

and

(4) making pleas for enforcing the law.
TBE Criminal Procedure and Evidence #300

When making final arguments, counsel is especially prohibited from ...
(1) commenting on D’s invocation of rights against self-incrimination;

(2) expressing counsel’s own personal opinions;

(3) arguing what the community demands in the case;

(4) striking at D over D’s counsel’s shoulder (implying D is guilty because of D’s lawyer’s conduct).
TBE Criminal Procedure and Evidence #301

The order of final arguments is regulated by the __ and the __ has the right to argue last.
JUDGE and the STATE has the right to argue last.
TBE Criminal Procedure and Evidence #302

In a felony case, the arguments may never be restricted to a number of addresses less than __ on each side.
TWO
TBE Criminal Procedure and Evidence #303

The prosecution cannot prove or comment on ... but can on ...
(1) the defendant’s failure to testify at trial;

(2) the defendant’s silence after arrest and Miranda warnings (U.S. & Tex.);

or

(3) the defendant’s silence after mere arrest (Tex. only).

BUT CAN ON silence before arrest.
TBE Criminal Procedure and Evidence #304

The four kinds of evidence requiring corroboration are ...
(1) accomplice testimony per the accomplice witness rule;

(2) the defendant’s out of court confession per the corpus delicti rule;

(3) sexual assault victim’s testimony;

and

(4) some testimony by an undercover informer.
TBE Criminal Procedure and Evidence #305

Per the accomplice witness rule, (1) an accomplice witness is ... and (2) ...
(1) an accomplice witness is a witness who could be convicted of the crime charged;

and

(2) 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.
TBE Criminal Procedure and Evidence #306

Per the corpus delicti rule, ...
... a defendant cannot be convicted on an out of court confession unless there is corroborating evidence of the corpus delicti---the body of the crime---that tends to show that a crime was in fact committed regardless of whether such evidence actually connects the defendant to the crime.
TBE Criminal Procedure and Evidence #307

A defendant cannot be convicted on the testimony of a sexual assault victim without corroborating evidence connecting the defendant to the offense unless ...
(1) the victim told someone other than D about the offense within 1 year of its commission;

(2) the victim was under 18 at the time of the crime;

(3) the victim was impaired---unable to satisfy needs for food, shelter, care, and protection;

or

(4) the victim was 65 or older.
TBE Criminal Procedure and Evidence #308

In a prosecution for a drug offense, conviction cannot rest on ...
... the uncorroborated testimony of a person not a law enforcement officer, who acted covertly for or under color of law enforcement.
TBE Criminal Procedure and Evidence #309

Texas criminal defendants have a right to have the trial jury that determined their guilt also ...
... assess their punishment (unlike federal courts, where sentencing is done by judge always).
TBE Criminal Procedure and Evidence #310

The defendant must invoke jury sentencing by either ...
(1) a timely election for jury sentencing;

or

(2) a timely motion for probation
TBE Criminal Procedure and Evidence #311

The State __ have the jury assess punishment if the defendant fails to elect jury sentencing.
CANNOT
TBE Criminal Procedure and Evidence #312

In capital murder cases, the __ and not the __ must assess punishment.
JURY and not the JUDGE
TBE Criminal Procedure and Evidence #313

A defendant who waived jury trial on guilt __ elect jury sentencing.
MAY
TBE Criminal Procedure and Evidence #314

A timely election of jury sentencing must be filed ...
Before voir dire of jury panel begins.
TBE Criminal Procedure and Evidence #315

The general rules of evidence __ apply to punishment hearings before the jury.
DO
TBE Criminal Procedure and Evidence #316

At the punishment hearing, the parties may prove ... including ...
... ALL MATTERS THE TRIAL COURT DEEMS RELEVANT TO SENTENCING including:

(1) D’s prior criminal record;

(2) D’s general reputation;

(3) D’s character and opinion testimony;

(4) any circumstances of the offense for which D has been found guilty;

(5) a juvenile court CONVICTION or ADJUDICATION of DELINQUENCY based on felony conduct;

and

(6) evidence of D’s extraneous offenses or bad acts regardless of convictions.
TBE Criminal Procedure and Evidence #317

Criminal defense may request two types of notice for evidence to be presented: ...
(1) that the State will use Rule 404b evidence of extraneous offense at the trial on guilt;

and

(2) that the State will use Art. 37.07(g) notice of extraneous offenses at trial on punishment.
TBE Criminal Procedure and Evidence #318

A defendant __ change an election regarding assessment of punishment ...
MAY ... after a finding of guilt and with prosecutor’s consent.
TBE Criminal Procedure and Evidence #319

A juror in a trial on punishment may consider the existence of parole law and time credit for good conduct, but may not consider ...
(1) the extent to which good time may be awarded this defendant;

and

(2) how parole law may be applied in this case.
TBE Criminal Procedure and Evidence #320

At a punishment hearing, evidence of the defendant’s likelihood of obtaining parole or good conduct time credit is __.
INADMISSIBLE
TBE Criminal Procedure and Evidence #321

The defendant’s privilege against self-incrimination __ apply at the trial for punishment.
DOES
TBE Criminal Procedure and Evidence #322

At a punishment hearing, evidence of D’s character is __ because ...
ADMISSIBLE because it is automatically at issue.
TBE Criminal Procedure and Evidence #323

The burden of proof at a punishment hearing is on ...
... no one.
TBE Criminal Procedure and Evidence #324

At a punishment trial, the defendant’s confession __ automatically waive any errors committed during the guilt stage of the trial.
DOES NOT
TBE Criminal Procedure and Evidence #325

A trial judge __ declare a mistrial on punishment only.
MAY
TBE Criminal Procedure and Evidence #326

When determining whether a defendant should have the death penalty imposed in a capital murder case, the punishment jury ...
... will be given two or three special issues:

(1) is there a probability that the defendant will commit criminal acts of violence constituting a continuing threat? ;

(2) if the jury has been instructed on accomplice liability issues, did the defendant (a) actually cause the death of the victim, (b) actually intend the death of the victim, or (c) anticipate a human life would be taken?;

and

(3) are there sufficient mitigating circumstances to warrant life imprisonment rather than death.

If the jury unanimously answers Yes to (1) (and (2) , if asked) and No to (3), then the judge must impose the death penalty; otherwise, life imprisonment will be imposed.
TBE Criminal Procedure and Evidence #327

In Texas, probation is called ...
... community supervision.
TBE Criminal Procedure and Evidence #328

A defendant is eligible for community supervision if the punishment assessed does not exceed ...
... 10 years.
TBE Criminal Procedure and Evidence #329

Community supervision may be revoked ...
(1) for violation of a condition of community supervision shown by preponderance of the evidence to a judge without a jury;

and

(2) D must serve the previously assessed prison sentence (or as REDUCED by the judge).
TBE Criminal Procedure and Evidence #330

If a defendant successfully completes community supervision, then ...
... the trial judge has discretion to dismiss the charges.
TBE Criminal Procedure and Evidence #331

The defendant __ have the jury recommend community supervision.
MAY
TBE Criminal Procedure and Evidence #332

To have the jury recommend community supervision, the defendant must ...
... BEFORE TRIAL file an application for probabtion

(1) in writing

(2) that is sworn to

and

(3) states that D has not been convicted of a felony in any state.
TBE Criminal Procedure and Evidence #333

If a jury found defendant used a deadly weapon in committing a felony, the defendant may obtain community supervision only if ...
... the jury recommends it.
TBE Criminal Procedure and Evidence #334

A judge cannot give community supervision to a defendant if ...
...EITHER

(1) D’s conviction is for a “3g” offense;

OR

(2) a deadly weapon finding is made
TBE Criminal Procedure and Evidence #335

A jury cannot recommend community supervision if D’s conviction is for ...
... Either

(1) murder

or

(2) sex offense of child younger than 14.
TBE Criminal Procedure and Evidence #336

“Shock” community supervision is ...
... a punishment where a sentence of imprisonment is imposed, the defendant begins to serve it, and D is brought back to court within the first 180 days of that term for suspending the prison sentence and placing the D on community supervision.
TBE Criminal Procedure and Evidence #337

Deferred adjudication is ...
... a procedure under which the trial court places D on community supervision without actually finding D guilty because it defers a finding of guilt.
TBE Criminal Procedure and Evidence #338

A D is eligible for deferred adjudication only if ...
(1) the charge is NOT FOR (a) DWI, FWI, or BWI; (b) intoxicated assault; or (c) intoxication manslaughter;

and

(2) D pleads either guilty or nolo contendere.
TBE Criminal Procedure and Evidence #339

The procedure of deferred adjudication requires ...
... the trial court to

(1) receive D’s plea of guilty or nolo contendere;

(2) hear evidence;

(3) find that evidence substantiates (but not proves) D’s guilt;

and

(4) inform D of the consequences of violating community supervision (any sentence within the statutory range).
TBE Criminal Procedure and Evidence #340

If D violates community supervision after a deferred adjudication, then ...
... the trial court can proceed to adjudication and find D guilty.
TBE Criminal Procedure and Evidence #341

If D successfully completes community supervision after a deferred adjudication, then ...
... the charges are dismissed without D having ever been found guilty.
TBE Criminal Procedure and Evidence #342

Pronouncing an assessed sentence is also called “__ __” and is done by ...
FORMAL SENTENCING ... trial judge.
TBE Criminal Procedure and Evidence #343

Before pronouncing the sentence, the judge is to ask D ...
... whether D has anything to say as to why the sentence should not be pronounced.
TBE Criminal Procedure and Evidence #344

The only reasons why a sentence is not to be pronounced are ...
(1) D has been pardoned;

(2) D has become incompetent to continue proceedings;

or

(3) D is not actually the person convicted.
TBE Criminal Procedure and Evidence #345

A victim (or relative of deceased victim) __ make a statement to the court and the defendant ... but ...
MAY ... after the sentence has been pronounced BUT the victim may not direct questions to the defendant and the court reporter may not transcribe the statement.
TBE Criminal Procedure and Evidence #346

A motion for new trial must be ...
(1) filed within 30 days of pronouncement of the sentence;

and

(2) presented to the court within 10 days of filing (but court can permit presentation within 75 days from sentencing).
TBE Criminal Procedure and Evidence #347

Grounds for granting a new trial include ...
(1) continuing trial when D was required to be present and was not;

(2) verdict was decided by lot;

(3) D’s right to counsel was violated;

(4) the jurors received evidence after retiring to deliberate;

(5) a juror conversed about the case with someone not on the jury;

and

(6) new evidence has been discovered.
TBE Criminal Procedure and Evidence #348

A motion for new trial must be ruled on within ... else ...
... 75 days of sentencing else the motion is overruled by operation of law.
TBE Criminal Procedure and Evidence #349

A new trial may be granted for newly discovered evidence only if ...
... the new evidence is material, meaning:

(1) it was unknown to D before trial;

(2) D’s failure to discovery it earlier was not from a lack of diligence;

(3) the evidence is competent and not merely impeaching or collateral;

and

(4) the evidence is so persuasive that it would probably cause a different result in a new trial.
TBE Criminal Procedure and Evidence #350

If D counsel suspects jury misconduct and wishes to investigate it as a ground for new trial by interviewing jurors, counsel must ...
... apply to the court for disclosure of confidential personal information of juror contact info; disclosure must be ordered upon a showing of good cause, which requires a firm foundation for believing that misconduct occurred.
TBE Criminal Procedure and Evidence #351

A motion in arrest of judgment can be made on grounds that ...
(1) the indictment has a defect of substance;

(2) the verdict varies from the indictment;

or

(3) the judgment is invalid.
TBE Criminal Procedure and Evidence #352

Generally, a defendant can appeal only after ...
... conviction and sentencing.
TBE Criminal Procedure and Evidence #353

For D convicted of capital murder and sentenced to death in district court, appeal is ...
... mandatory to Court of Criminal Appeals.
TBE Criminal Procedure and Evidence #354

For D convicted in a district or county court, appeal is ...
(1) as of right to Court of Appeals;

(2) may seek review from Court of Criminal Appeals.
TBE Criminal Procedure and Evidence #355

For D convicted in justice or municipal court, appeal is ...
(1) to county court for trial de novo;

or

(2) to court of appeals only if fine exceeds $100 or sole issue is constitutionality of statute or ordinance.
TBE Criminal Procedure and Evidence #356

A convicted defendant is not eligible for bail pending appeal if ...
... the punishment assessed is 10 years imprisonment or more.
TBE Criminal Procedure and Evidence #357

A convicted defendant eligible for bail pending appeal will be denied bail if ...
... the court finds

(1) D will not appear if the conviction is affirmed;

or

(2) D is likely to commit an additional offense while on bail.
TBE Criminal Procedure and Evidence #358

An appeal is perfected by ... which must ...
... filing notice of appeal, which must be:

(1) in writing;

(2) filed with the trial court;

and

(3) generally filed within 30 days of formal sentencing (court cannot extend filing deadline).
TBE Criminal Procedure and Evidence #359

If a motion for new trial is filed, notice of appeal must be filed...
... within 90 days of formal sentencing.
TBE Criminal Procedure and Evidence #360

Notice of appeal is required for appealing all cases except ...
... those in which the death penalty was imposed.
TBE Criminal Procedure and Evidence #361

The trial judge must in all cases include in the record a certification of ...
... the defendant’s right to appeal.
TBE Criminal Procedure and Evidence #362

A defendant pleading guilty pursuant to a plea bargain and receiving a sentence according to that bargain’s terms, can appeal only if ...
(1) the trial judge grants permission;

and

(2) the appeal is based on matters raised by pretrial written motion and ruled on pretrial.
TBE Criminal Procedure and Evidence #363

If D escapes custody pending appeal, prosecutor should ...
... move to dismiss the appeal and the court of appeals should dismiss.
TBE Criminal Procedure and Evidence #364

If D escapes custody pending appeal and the court of appeals dismisses the appeal, the dismissed appeal may be reinstated only if ...
... defendant returns to custody

(1) voluntarily

and

(2) within 10 days of escaping.
TBE Criminal Procedure and Evidence #365

The Court of Criminal Appeals may hear a case under discretionary review ...
(1) on a petition for discretionary review by D;

(2) on a petition for discretionary review by State;

(3) on CCA’s own motion.
TBE Criminal Procedure and Evidence #366

The State may appeal pretrial if trial court ...
(1) dismissed an indictment;

(2) granted a defense motion to suppress evidence before jeopardy attaches;

or

(3) sustains a defendant’s claim of double jeopardy.
TBE Criminal Procedure and Evidence #367

The state may appeal post-trial if trial court ...
(1) granted a defense motion for new trial;

(2) granted a defense motion to arrest judgment;

or

(3) imposed an illegal sentence.
TBE Criminal Procedure and Evidence #368

If trial court grants a defense motion to suppress evidence and state appeals, state must show on appeal that ...
(1) jeopardy had not yet attached when the judge entered his order;

(2) the appeal was taken within 20 days of the order;

and

(3) the State certifies that the evidence is of substantial importance to the case and appeal is not take for dilatory purposes.
TBE Criminal Procedure and Evidence #369

If the state appeals pretrial, then the state is entitled to ...
... stay of the trial court proceedings pending resolution of appeal.
TBE Criminal Procedure and Evidence #370

If the state appeals pretrial from an order favoring defendant, then ...
(1) a D in custody is entitled to release on reduced bail;

and

(2) if the pretrial order ended prosecution (e.g., a dismissal), then D is entitled to personal bond.
TBE Criminal Procedure and Evidence #371

__ has the responsibility of preserving errors.
APPELLANT
TBE Criminal Procedure and Evidence #372

Preserving error __ require raising a matter in a motion for new trial.
DOES NOT
TBE Criminal Procedure and Evidence #373

To preserve error in excluding evidence, counsel must ...
(1) MAKE AN OFFER OF PROOF by either (a) counsel’s own oral summary of the substance of the excluded evidence,

or (2) a question and answer form of the substance of the excluded evidence;

and

(2) obtain a ruling in the record that trial judge rejected the offer of proof and excluded the evidence.
TBE Criminal Procedure and Evidence #374

To preserve an error in admitting evidence, counsel must ...
(1) make a timely objection;

(2) state specifically the ground to be relied upon on appeal;

and

(3) secure from the trial judge a ruling.
TBE Criminal Procedure and Evidence #375

To preserve error in improper questioning, argument, or comment by another lawyer or the judge, counsel must ...
(1) immediately object and get a ruling;

(2) seek a jury instruction to disregard the question or statement and get a ruling;

and

(3) move for a mistrial and get a ruling.
TBE Criminal Procedure and Evidence #376

Evidence is subject to review for __ sufficiency.
LEGAL AND FACTUAL
TBE Criminal Procedure and Evidence #377

Sufficiency of the evidence is measured against a ...
... hypothetical jury charge correct for the case given the indictment’s allegations.
TBE Criminal Procedure and Evidence #378

A variance between pleading and proof occurs if ...
BOTH

(1)the state proves the defendant guilty of the offense charged;

and

(2) the state’s proof shows guilt in a way that varies from an unnecessarily included detail in the charging instrument or pleading.
TBE Criminal Procedure and Evidence #379

Variance requires acquittal only if ...
... the variance between the allegation and the proof was material.
TBE Criminal Procedure and Evidence #380

A variance is material if ...
... if caused the indictment to fail to sufficiently inform the defendant of the charges so as to enable the defendant to prepare a defense.
TBE Criminal Procedure and Evidence #381

If evidence supporting a conviction is legally insufficient, the accused must be ...
... acquitted.
TBE Criminal Procedure and Evidence #382

In determining whether evidence is legally insufficient, the appellate court ...
... vies the evidence in a light most favorable to the state and asks whether a rational jury could have found all elements of the crime proved beyond a reasonable doubt.
TBE Criminal Procedure and Evidence #383

Appellate court review of a jury verdict for legal or factual sufficiency must ...
... respect the jury’s prerogative of evaluating the credibility of witnesses.
TBE Criminal Procedure and Evidence #384

If evidence supporting a conviction is factually insufficient, the accused must be ...
... granted a new trial.
TBE Criminal Procedure and Evidence #385

In determining whether evidence is factually insufficient, the appellate court ...
... views all the evidence NOT in a light most favorable to the State and asks whether the verdict of guilty is so contrary to that evidence as to be clearly wrong and unjust.
TBE Criminal Procedure and Evidence #386

A conviction can be affirmed on appeal despite error so long as the error is ...
HARMLESS.
TBE Criminal Procedure and Evidence #387

A nonconstitutional error is harmless if ...
... it does not affect the appellant’s substantial rights, meaning the outcome of the case.
TBE Criminal Procedure and Evidence #388

A constitutional error is harmless if ...
... the appellate court is convinced beyond a reasonable doubt that the error did not contribute to either

(1) conviction or

(2) punishment.
TBE Criminal Procedure and Evidence #389

Postconviction attacks on conviction are initiated by applications for ...
... the writ of habeas corpus.
TBE Criminal Procedure and Evidence #390

An applicant seeking postconviction habeas corpus relief is entitled to such relief upon proof of ...
(1) an error rendering the conviction void;

(2) a jurisdictional error;

(3) violation of a constitutional right;

or

(4) “actual innocence”, which requires new evidence showing innocence that is now available and by clear and convincing evidence that no reasonable jury hearing this new evidence would convict.
TBE Criminal Procedure and Evidence #391

After D has sought postconviction habeas corpus relief, D can bring another habeas action only if ...
(1) the subsequent action is based on a ground not available when the first action is brought;

OR

(2) the D establishes both (a) D’s federal constitutional rights were violated and (b) but for that violation no rational juror could have found D guilty.
TBE Criminal Procedure and Evidence #392

A convicted D may move for DNA testing of evidence in ...
... the trial court.
TBE Criminal Procedure and Evidence #393

The process for a postconviction habeas attack is ...
(1) counsel files an application for the writ of habeas court in the convicting district court;

(2) counsel seeks a hearing in convicting district court prepared to prove any facts necessary to get relief;

(3) the district judge compiles a record, which may include findings of fact and conclusions of law;

and

(4) the district court record is transmitted to the Court of Criminal Appeals, which determines whether petitioner gets relief.
TBE Criminal Procedure and Evidence #394

To obtain postconviction DNA testing, convicted defendant must show ...
(1) the chain of custody regarding the evidence established it was not altered;

(2) either the evidence was justifiably not tested before or was tested by a now inferior technique;

(3) D’s identity was at issue in the case;

(4) there is a reasonable probability he would not have been convicted if DNA testing had rendered exculpatory results;

and

(5) the motion is not made for unreasonable delay.
TBE Criminal Procedure and Evidence #395

Under Texas law, attachment of jeopardy occurs ...
(1) for a jury trial, when jury is sworn;
and
(2) for a bench trial when both (a) parties have announced ready and (b) D pleads to the indictment.
TBE Criminal Procedure and Evidence #396

A peace officer may not engage in __ profiling.
RACIAL
TBE Criminal Procedure and Evidence #397

Racial profiling is ...
... any action based on an individual's race, ethnicity or national origin rather than the individual's behavior or on information identifying the individual as having engaged in criminal activity.
TBE Criminal Procedure and Evidence #398

Under texas law, a search warrant must contain ...
(1) a statement that it runs in the name of the State of Texas;
(2) a specification of the person, place, or thing to be searched;
(3) a specification of the items to be seized;
(4) an endorsement of the date and hour it was issued;
and
(5) the signature of the issuing magistrate.
TBE Criminal Procedure and Evidence #399

When reviewing whether a warrant was validly issued, a court may consider ...
... only the information within the four corners of the written affidavit.
TBE Criminal Procedure and Evidence #400

The two types of search warrants in Texas law are ...
(1) regular search warrants
and
(2) evidentiary search warrants
TBE Criminal Procedure and Evidence #401

Under Texas law, a regular search warrant is ...
... a search warrant sought for
(1) contraband;
(2) fruits of the crime;
or
(3) instruments of the crime.
TBE Criminal Procedure and Evidence #402

Under Texas law, an evidentiary search warrant is ...
... a warrant issued for an item seizable only becaust it is mere evidence that a crime was committed or a particular person committed it.
TBE Criminal Procedure and Evidence #403

Under Texas law, a regular search warrant is may be issued by ...
... any magistrate.
TBE Criminal Procedure and Evidence #404

Evidentiary warrants may be issued by ...
... ONLY a
(1) district judge, county court judge, CCA judge, Supreme Court justice, or
(2) municipal court of record or county judge who is a licensed attorney.
TBE Criminal Procedure and Evidence #405

No evidentiary warrant may isse for the accused's __.
... personal writings.
TBE Criminal Procedure and Evidence #406

While executing an evidentiary search warrant, officers may seize ... but not ...
(1) the items specified in the warrant;
and
(2) items come upon in plain view for which a regular search warrant could issue,
BUT NOT items of mere evidence not described in the warrant.
TBE Criminal Procedure and Evidence #407

An additional evidentiary warrant may be issued for the same person, place, or thing previously searched under an evidentiary search warrant only by ...
... a district or appellate judge.
TBE Criminal Procedure and Evidence #408

Under Texas law, an arrest must be made pursuant to ___ UNLESS ...
... A VALID ARREST WARRANT, unless
(1) offenses committed in officer's presence or view;
(2) probable cause to believe suspect committed a felony and reason to belive suspect is about to escape;
(3) suspect is found in a 'suspicious place' and has committed a felony or breach of peace;
(4) suspect committed violation of protective order;
(5) suspet injured another and poses danger of further injury to a victim;
(6) suspect is found with stolen property;
(7) suspect injured a member of family or household;
(8) probable cause to believe suspect committed a felony based on admissible statement to officer.
TBE Criminal Procedure and Evidence #409

A valid arrest warrant must include ...
(1) the name of the person to be arrested or a physical description;
(2) the name of the offense the person is accused of committing;
(3) the signature of the issuing magistrate;
and
(4) the judicial office of the issuing magistrate.
TBE Criminal Procedure and Evidence #410

Under Texas law, an officer may break down a door to arrest someone inside only if ...
(1) the officer has probable cause to believe the person committed a felony;
(2) the officer gives notice of the officer's authority and purpose;
and
(3) the officer is refused admittance.
TBE Criminal Procedure and Evidence #411

Under Texas law, a promise will render confession involuntary and inadmissible if ...
(1) it was given by someone in authority;
(2) it was definite;
(3) it was likely to cause an innocent suspect to make a false confession.
TBE Criminal Procedure and Evidence #412

Under Texas law, a confession given during an improper delay in bringing D before a magistrate only if ...
... D shows the delay caused him to make the confession (which is rarely shown).
TBE Criminal Procedure and Evidence #413

Texas' Confession Statute, Art. 38.22, applies to ...
... statements
(1) made in custody;
and
(2) resulting from official interrogation.
TBE Criminal Procedure and Evidence #414

Per the Texas Confession Statute, a statement inadmissible for proving guilt may still be admitted for ...
... impeaching a testifying D ONLY IF the statement is voluntary.
TBE Criminal Procedure and Evidence #415

The procedure for determining the voluntariness of a confession is ...
(1) first by a judge out of hearing of the jury;
(2) if resolved for state, D may have issue submitted to the jury.
TBE Criminal Procedure and Evidence #416

Per the Texas Confession Statute, a written statement must ...
(1) contain all formal warnings for written statemetns;
(2) show that the warnings were given by a magistrate or the person to whom the statement was given;
(3) show that the person voluntarily waived the rights before making these statements;
and
(4) either (a) be signed by D or (b) be in D handwriting.
TBE Criminal Procedure and Evidence #417

Per the Texas Confession Statute, the formal warnings a written statement must contain are ...
(1) that the person has a right to remain silent and make no statement;
(2) any statement made may be used against the person;
(3) the person has a right to an attorney presnt before and during question;
(4) the person has a right to have an attorney present if unable to employ one;
(5) the person has a right to terminate the interview at any time.
TBE Criminal Procedure and Evidence #418

Per the Texas Confession Statute, oral statements made during custodial interrogation are inadmissible because they are oral and thus ...
UNRELIABLE.
TBE Criminal Procedure and Evidence #419

Per the Texas Confession Statute, oral statements are admissible if ...
they are
(1) made in open court or before a grand jury
(2) the statement was res geste (spontaneous and impulsive) of the offense or arrest;
(3) the statement was electronically recorded;
or
(4) the statement was corroborated by at least on incriminating assertion of fact found to be true by reliable information developed after statement was given.
TBE Criminal Procedure and Evidence #420

Per the Texas Confession Statute, an electronically recorded statement is admissible only if ...
(1) the recording is accurate;
(2) the recording reflects that the accused was warned of the rights;
(3) during the recording the accused knowingly and voluntarily waived those rights;
(4) all material voices on the recording are identified;
and
(5) defense counsel was provided with copies of all recordings made of D under the statute within 20 days before trial.
BUT D need not be told statement will be recorded.
TBE Criminal Procedure and Evidence #421

Per the Texas Confession Statute, a statement obtained in another state or by federal officer is admissible if ...
... it was obtained in compliance with the relevant sovereign's rules.
TBE Criminal Procedure and Evidence #422

Per the Texas Confession Statute, the procedure for challenging confession issues is ...
(1) counsel files a pretrial motion to suppress the statement on the challenged ground;
(2) if such motion raises the issue of voluntariness, the trial court must hold a hearing, take evidence, and determine whether the statement is voluntary and make findings of fact.
TBE Criminal Procedure and Evidence #423

Per the Texas Confession Statute, counsel may have the voluntariness of a challenged confession determined by a jury only if ...
... counsel has introduced evidence before the jury raising an issue of voluntariness of the statement.
TBE Criminal Procedure and Evidence #424

Per the Texas Confession Statute, if the voluntariness of a statement is submitted to the jury, the jury must be told ...
(1) that a statement must be voluntary;
(2) that warnings are required and when those warnings are necessary;
(3) that the State has the burden of proving beyond a resonable doubt that all necessary warnings were given and the statement was voluntary;
(4) and if it ihas a reasonable doubt as to whether required warnings were given or whether the statement was voluntary, it should disregard the statement and not consider it in deciding whether the prosecution has proved the defendant guilty.
TBE Criminal Procedure and Evidence #425

The exceptions to the Texas exclusionary rule are ...
EITHER
(1) that the taint between the illegality and the discovery of the evidence is attenuated;
or
(2) that the officer acted in good faith on a warrant that had actual probable cause.