Criminal Procedure And Evidence: Post-Trial Procdure In Trial Court, Appeal, Post-Conviction Attack

Front 1

A motion for new trial must be:
1) Filed within 30 days of pronouncement of sentence; and

2) Presented to the court within 10 days of filing (but court can permit presentation within 75 days from sentencing)

What are some grounds for granting a new trial?

Back 1

- continuing trial when D required to be present and was not
- verdict was decided by lot
- D's right to counsel was violated
- juror was bribed or engaged in other corrupt conduct
- jurors received evidence after retiring to deliberate
- juror conversed about the case with someone not on the jury
- new evidence has been discovered

Must be ruled on within 75 days of sentencing (or overruled by operation of law)

Front 2

Motion for new trial on basis of newly discovered evidence should be granted only if new material is "material" which means:

Back 2

1) It was unknown to D before trial;

2) Failure to discover evidence earlier was not due to D's lack of diligence;

3) Evidence is competent and not merely collateral or impeachment; and

4) Evidence is so persuasive that it would probably cause a different result in a new trial.

D. counsel must file motion within 30 days of sentencing and present it to court within 40 days of sentencing.

Front 3

What procedure is available, if any, for D. counsel to obtain juror contact information during investigation for possible misconduct as ground for new trial?

Back 3

Info is confidential, may not be disclosed.

D., as a party to the case, may apply to the court for disclosure. Ordered only on a showing of good cause, which requires a firm foundation for believing that misconduct occurred.

Front 4

A motion in arrest of judgment can be made on the grounds that:

Back 4

1) Indictment has a defect of substance;

2) Verdict varies from the indictment; or

3) Judgment is invalid

Front 5

Generally, D. can appeal only after conviction and sentencing.

D convicted of capital murder and sentenced to death in district court: appeal is mandatory and to Court of Criminal appeals.

D. convicted in district or county court appeal as right to Ct of Appeals; seek review from Court of Criminal Appeals.

What about D. convicted in justice or municipal cour?

Back 5

Appeal is to county court for trial de novo.

Appeal to court of appeals only if:
1) Fine imposed exceeds $100; or
2) Sole issue is constitutionality of statute or ordinance.

Front 6

A convicted D is not eligible for bail pending appeal if the punishment assessed is 10 years or more.

Bail may be denied to a D. eligible for bail pending appeal if trial court finds that either:

Back 6

1) D. will not appear if conviction is affirmed; or

2) Is likely to commit an additional offense while on bail

Front 7

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

1) In writing,
2) Filed with trial court order; and
3) Generally filed within 30 days of formal sentencing

If motion for new trial filed, notice of appeal must be filed within 90 days of formal sentencing.

Notice of appeal...

Back 7

... is required in all cases except those in which the death penalty was imposed

Front 8

A D. who pleads guilty pursuant to a plea bargain and receives a sentence within that bargain can appeal only if:

Back 8

1) Trial judge grants permission; or

2) Appeal is based on matters raised by pretrial written motion and ruled on before trial

Front 9

Motion to dismiss must be denied or a dismissed appeal reinstated only if the D. returns to custody...

Back 9

1) Voluntarily and

2) Within 10 days of the escape

Front 10

If Court of Appeals affirms conviction, what options are open to D?

Back 10

Can file a petition for discretionary review (PDR) by the Court of Criminal Appeals. Whether to grant such review is discretionary with the high court.

PDR should be filed in the Court of Appeals, which will send the PDR and other documents in the case to the Court of Criminal Appeals

No way to seek review from the TX Supreme Court

Front 11

Discretionary review can occur...

Back 11

1) On PDR by the D;

2) On PDR by the State; or

3) On CCA's own motion

Front 12

State may appeal in 6 pre-trial/post-trial situations:

1) Pre-trial: State may appeal if trial court dismisses the indictment; grants a d. motion to suppress evidence before jeopardy attaches; or sustains a D's claim of double jeopardy

What are 3 post-trial situations?

Back 12

State may appeal post-trial if trial court:

1) Grants a D. motion for new trial;
2) Grants a D. motion to arrest judgment; or
3) Imposes an "illegal" sentence

If a convicted D. appeals, State may cross appeal on a question of law decided against the State

Front 13

For the State to take an appeal, State must

1) Show jeopardy had not yet attached when the order was entered;

2) Appeal was taken within 20 days of the order; and

3) State must certify that the evidence is:

Back 13

- Of substantial importance in the case;

- Appeal is not taken for purposes of delay

Front 14

If State takes an appeal from a pretrial order favoring the D:

Back 14

1) D. in custody is entitled to release on reasonable bail

2) If the order is one that ends the prosecution (that is, dismissal) D is entitled to personal bond

Front 15

Appellant has responsibility to preserve error.

1) Preserving error does not require raising a matter in a motion for new trial.

2) What required depends on type of error.

How to preserve error in excluding evidence?

Back 15

Counsel must make an offer of proof showing the substance of the evidence. Can be done either:

1) Counsel's oral summary of the excluded evidence; or

2) "Question and answer" form ("informal bill of exception");

AND get a ruling excluding the evidence

Front 16

To preserve error in improper argument or comment by another lawyer or the jude, or the asking of an improper question, counsel must...

Back 16

1) Immediately object;

2) Seek instruction to disregard; and

3) Move for mistrial

AND get rulings on each of these

Front 17

Evidence is subject to review for legal and factual sufficiency. Sufficiency is measured against a hypothetical jury charge correct for the case.

Variance between pleading and proof occurs if both
1) State proves D. guilty of offense charged;
2) BUT State's proof shows guilt in a way that differs- "varies" from an unnecesarily included detail in the pleading

Variance requires acquittal only...

Back 17

If the variance between the allegation and the proof was "material," that is, whether under the circumstances of the case it rendered the indictment insufficient to enable D to prepare a defense

Front 18

Compare the standard applied and remedy for legal sufficiency and factual insufficiency

Back 18

Legal:
Viewing the evidence in light most favorable to the State, could a rational jury have found all elements of the crime proved beyond a reasonable doubt? Acquittal.

Factual:
Viewing all the evidence not in a light most favorable to the prosecution, is the verdict of guilty so contrary to the weight of that evidence as to be clearly wrong and unjust? New trial.

**Both: Review must respect jury's perogative of evaluating witness credibility.

Front 19

Post-conviction attacks on convictions are brought by applications for the writ of habeas corpus.

An applicant seeking such relief is entitled only upon proof of:

Back 19

1) Error rendering conviction void;

2) Jurisdictional error;

3) Violation of constitutional right;

4) "Actual innocence," which requires
- New evidence showing innocent that is now available; and
- By clear and convincing evidence, no reasonable jury hearing this new evident would convict

Front 20

Once D has sought post-conviction habeas corpus relief, D. canb ring another habeas corpus action only if:

Back 20

1) Subsequent action is based on a ground not available when the first action was brought; or

2) D. establishes both:
- D's federal constitutional rights were violated; and
- "But for" that violation no rational juror could have found D. guilty

A convicted D. may make a motion in the convicting court for DNA evidence testing

Front 21

To attack conviction on other grounds, what must ocunsel do?

Back 21

1) File application for writ of habeas corpus in convicting district court (felony)

2) If factual matters to be established, counsel should seek hearing in that court and at that hearing, be prepared to prove facts necessary to get relief.

3) District judge will compile a record, which may include findings and conclusions

4) Record will be transmitted to Court of Criminal Appeals, which will determine relief