Criminal Procedure And Evidence: Trial On Punishment And Sentencing

Front 1

Defendants have a right to have the trial jury (that determined guilt) also assess the punishment. In federal court, judge does this.

State cannot have jury assess punishment if D. fails to elect jury sentencing.

Jury sentencing must be invoked by D. when?

Back 1

Timely election

Front 2

In capital murder cases, a jury is required if the State seeks

Back 2

the death penalty.

Front 3

A D. who waived jury trial on guilt-innocence

Back 3

may elect jury sentencing.

Front 4

An election for jury sentencing must be filed

Back 4

before voir dire of jury panel begins

Front 5

At a punishment hearing before jury, the general rules of evidence apply. All matters may be proved that the trial court deemes relevant to punishment, including:

Back 5

- D's prior criminal record
- D's general character
- D's reputation (and opinion testimony)
- circumstances of the offense for which D has been found guilty
- a juvenile court "conviction" ("adjudication of delinquency") based on felony conduct; and
- evidence of an extraneous crime or bad act by D, whether or not D has been convicted of that (proved beyond reasonable doubt)

Front 6

D can request 2 kinds of notice of intent to offer certain evidence at punishment:

1) Rule 404(b) extraneous offense notice (at guilt-innocence); and
2) Art. 37.07 Sec 3(g) notice of extraneous offenses (punishment)

Notice must specify with regard to each crime or bad act:

Back 6

1) Date on which it occurred;

2) County in which it occurred; and

3) Name of the victim

Front 7

A D. may change an election regarding assessment of punishment after the finding of guilt. BUT...

Back 7

the prosecutor must consent.

Front 8

Jury can told about its ability to consider good conduct time and "existence" of parole time. BUT, you are not to consider either:

Back 8

1) Extent to which good time may be awarded to this D; or

2) How parole law may be applied in this case

Front 9

Judicial confession at punishment does not automatically waive ...

Back 9

any errors committed during guilt stage of the trial. (rejection of DeGarmo Doctrine)

Front 10

Legislature has authorized a mistrial on punishment only when..

Back 10

jury can't reach a unanimous verdict on punishment

Front 11

Sometimes after imprisonment assessed, its execution is suspended and D. is placed on "community supervision" (probation)

D. is eligible if punishment assessed does nto exceed 10 years imprisonment.

Community supervision can be revoked...

Back 11

1) Violation of condition of community supervision must be shown, but only by proof of a preponderance of the evidence,

2) No jury trial is held

3) D is required to serve prison sentence previously assessed (or as reduced by trial judge).

If D. successfully completes community supervision, trial court has discretion to completely dismiss charges

Front 12

To hvae jury consider recommendation of community supervision, D. must have filed pretrial application.

List 2-3 requirements for felony probation application.

Back 12

- In writing;
- Sworn to; and
- States that D. has not been convicted of a felony

Front 13

Neither judge nor jury can give a D. community supervision in certain situations, primarily if conviction is for murder or sex offense with child under 14.

Jury but not judge can give community supervision if:
- Conviction is for a Section 3g offense; or
- Deadly weapon finding is made

Back 13

Section 3g offenses: murder, capital murder, indecency with child, first degree felony injury to a child, aggravated kidnapping, aggravated sexual assault, sexual assault, aggravated robbery, certain drug offenses

Front 14

What is "shock" community supervision?

Back 14

Sentence of imprisonment is imposed and D. begins to serve it. Later, during first 100 days of the term of imprisonment, D. is brought back to court.

Sentenc eis then suspended and D. is placed on community supervision.

Front 15

Deferred adjudication is a procedure under which the trial court places the D. on community supervision without actually finding the D. guilty, because it "defers" a finding of guilt.

When is a D. eligible for deferred adjudication?

Back 15

1) Charge is an offense other than DWI, FWI, BWI;
2) Intoxcated assault; or
3) Intoxication manslaugher; and

D. enters a plea of guilty or nolo contendere.

Front 16

Trial court procedure for deferring adjudication:

1) Receive D's plea of guilty or nolo contendere;

2) Hear evidence;

3) Find that the evidence substantiates D's guilt; and

4) Inform D of the consequences of violating community supervision- D could get any sentence in the statutory range

Back 16

If D. proved to have violated conditions of community supervision, trial court can "proceed to adjudication" and find D guilty

If D successfully completes community supervision, the charges are automatically dismissed

Front 17

*** multiple exams***

Compare deferred adjudication and probation.

Back 17

D must be found guilty before probation can be imposed; deferred adjudication involves no such finding.

D. can get regular probation after a plea of not guilty; deferred adjudication requires a plea of guilty or nolo contendere

If deferred adjudication probation is "revoked," D can be given ANY sentence in statutory range; if regular probation is revoked, D gets sentence previously assessed.

Front 18

Pronouncing the assessed sentence ("formal sentencing") is done by the trial judge.

Before pronouncing the judge is to ask the D...

Back 18

whether he has anything to say as to why sentence should not be imposed.

Only reasons why an assessed sentence is not to be prounounced are:
1) D has received pardon
2) D. has become incompetent
3) D. is not person convicted of crime

Front 19

Victim (or relative of deceased) has a right to make a statement to the court and D. Permitted only after ...

Back 19

Sentence has been pronounced.

Victim may not direct questions to the D. during the statement.

Court reporter may not transcribe the statement.