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54 Cards in this Set

  • Front
  • Back
What happens right after arrest?
D presented to the magistrate who issued the warrant or before a mag in the jur in which he was arrested.
Which trial courts have jurisdiction over which crimes?
District courts: felonies, misd inv official misconduct, misd. transferred from county court b/c judge not licensed attorney
County courts: misd where penalty exceeds $500 and exc. jur not given to district court
Muni court: exc. jur. over viol. over city ordinance w/ <= $500 fine; conc. jur over state law punishable by fine
Justice courts: crim cases punishable only by fine
What happens when decisions of the justice and muni courts are appealed?
Tried in county court de novo
What happens to apeals in all other situations?
1. Appellate court
2. Texas Court of Criminal Appeals
3. Death penalty = straight to TCoCA
What can a search warrant be issued for?
1. property acquired by theft or other crime
2. obscene materials
3. drugs illegally possessed or made
4. contraband and gambling devices
5. property used in commission of a crime
6. persons
7. an abused child
8. property constituting evidence of an offense
9. contraband subject to seizure
What is required for a search warrant?
* Showing of probable cause
* Must be included w/in 4 corners of an affidavit
What are the requirements of a search warrant?
1. person place or thing to be searched
2. identify what is to be seized
3. signed and dated by magistrate
What must be shown for an evidentiary search warrant?
1. probable cause to believe offense has been committed
2. items to be searched for constitute evidence and are located at a specific place
How soon must a search warrant be executed?
* 3 days of issuance
* Unless DNA evidence, then 15 days
What must an officer do when taking property pursuant to a warrant?
1. prepare a written inventory
2. sign it
3. present copy to owner or possessor of property
4. execute a return on the warrant and deliver it with the inventory to the magistrate
When can wiretap be obtained?
To secure evidence of:
1. murder for renumeration
2. child pr0n
3. felony drug offenses

Must show probable cause of offense committed or about to be committed
What notice to the target of a wiretap?
1. Notice served w/in 90 days
2. Tells whether or not communications intercepted
3. Evidence not usable at trial unless notice received w/in 10 days of trial
What contraband is subject to seizure and forfeiture?
Real or personal property that is:
1. used or intended to be used in the commission of major criminal offenses or viol of Ctrl Sub. Act
2. proceeds of any of above offenses
3. acquired with proceeds

May be seized during warranted or warrantless search.
When can property not be forfeited?
1. If person did not know of felony AND interest acquired:
i. if real property, before lis pendens notice filed
ii. in case of other property, if acquired before or during offense
What showing for an arrest warrant?
Probable cause to believe person committed an offense
What requirement for a warrant?
1. name of person to be arrested or reasonably definite description
2. state accused offense
3. signed by magistrate
What is a writ of capias?
* Directs a peace offier to arrest person and bring them to court
* Used when D forfeits bail or formal charges filed but D not arrested
* "capias pro fine" if issued for unpaid fines
When can an officer break down the door of a house to make an arrest?
* First gives notice of authority and purpose
* and is refused admittance
When are arrests allowed for traffic offenses?
* Officers discretion, except:
1. speeding
2. violation of open container
When is a warrantless arrest proper?
1. Offense committed in view of officer
2. Probable cause to believe viol. of protective order
3. PC to believe felony and escape imminent
4. Stolen property recoved and suspect stole it
5. PC to believe assault and danger of further BI
6. Suspicious place under suspicious circumstances
7. Assault on family member
8. Interfered w/ some else's emergency phone call
9. Suspect gives stmt that gives PC of felony
How soon must suspect be presented before mag?
Without unnecessary delay (48 hours max)
What happens at presentation to mag?
Mag informs suspect of:
1. charges against him
2. right to remain silent
3. right to counsel
4. right to be appointed counsel
5. right to examining trial
How soon must counsel be appointed?
* end of first working day after request received (large counties)
* three days in other counties
What is a writ of habeas corpus?
Directs a person holding a suspect to:
1. produce the suspect and
2. show why the person is being held
What is a writ of habeas corpus used for?
1. challenge amt or denial of bail
2. obtain appellate review of ruling of no double jeopardy
3. attach conviction after appeal failed or expired
What are the requirements for the petition for a writ of habeas corpus?
1. state that person is unlawfully confined and identify confiners
2. be attached to writ order by which person detained
3. contain a prayer for the writ
4. be sworn to that allegations are true
When can D be denied bail?
1. capital murder where state est. likelihood of conviction and death
2. if D charged while on bail for prev. felony
3. D charged w/ felony and has 2 prior felonies
4. noncapital felony inv. deadly weapon and prior felony conv
5. vio. or sex felony while on parole
6. sex crime against child and viol. a bail cond re: safety of victim or community
7. viol. a bail cond re: safety of victim or community
How long can D be detained w/o bail?
60 days
What are specifically authorized conditions of release on bail?
1. not to go near child victim
2. remain at home
3. abide by a home curfew
4. have breathalyzer on car or
5. not communicate or go near victim
What is the purpose of an examining trial?
To determine whether there is probable cause to believe D guilty
* even if no probable cause, prosecution may continue
What is the statute of limiations on sexual assault of a child?
10 years from 18th birthday
* 20 years for sexual performance
What is the statute of limitations for murder and manslaughter?
There is none
Where is venue proper?
Generally in county where the offense was committed
How many jurors must vote to indict in a grand jury?
9 of 12
When is grand jury indictment required?
For all felonies.
* Except for capital murder, D may waive right if rep'd by counsel, in writing, voluntary
What are some specific defects in charging instruments?
Failure to:
1) include "magic words" required by the Code
2) allege venue
3) allege facts constituting all elements of the offense
4) identify victim
5) allege facts showing recklessness or negligence if D charged with either
Does a charging instrument also charge lesser included offenses?
Yes
What are the functions of arraignment?
1. D's identity is fixed
2. counsel appointed if necessary
3. D's plea is heard

Arraignment can be waived by D
When does jeopardy attach?
* Jury trial: jury is sworn
* Bench trial: parties have announced ready and D has entered a plea
What are the exceptions to double jeopardy?
1. first pros ended in a mistrial for "manifest necessity"
2. mistrial req. by defense (unless induced by pros)
3. D seeks relief for error of law and wins
Is a TX prosecution barred by a prior federal prosecution?
NO
Is the Speedy Trial Act constitutional?
No, so should be ignored
When is a continuance granted?
1. unexpected occurence at trial that took movant by such surprise that no fair trial can be had
2. upon showing of good cause if parties agree
What is the standard for competency in a criminal case?
D incompetent to stand trial if lacks:
1. ability to consult w/ lawyer
2. understanding, rational and factual, of proceedings against him
When must Ds be tried separately?
1. one D has prior conviction admissible against him or
2. joint trial would be prejudicial to one or more Ds
What happens if D found incompetent?
Automatically committed to mental health facility for 120 days.
* If found competent after that, trial continues
* If not, D committed for longer period
What pre-trial discovery rights for D?
1. right to witness list
2. right to inspect pros evidence except that subject to work product exception
3. right to know informant's identity if material witness
How many peremptory challenges are available?
* Captial murder (death): 15 or 8 per D
* Captial muder (no death) and felonies: 10 or 6 per D
* Misdemeanors:
* District: 5, 3 per D
* County: 3, 3 per D
* J and Muni: 3 total
(pros same as D(s))
What is the Batson rule?
* peremptory challenges may not be based on race.
* burden of proof on D
What types of questions are permitted on cross of a character witness?
* "Have you heard?"
* "Did you know?"
Can the state introduce character evidence?
No, not in its case in chief
* Unless D puts it in issue
* Or in sentencing
What is the difference between spousal and marital privilege?
Spousal privilege: either spouse cannot be compelled to testify against other spouse, unless waived
Marital privilege: either spouse can prevent other from testifying, even if not still married
When can leading questions be used?
On direct, or if witness is hostile, an adverse party or identified w/ adverse party.
Is jury sentencing automatic?
No, D must invoke jury sentencing