Texas Bar Crim Random

Front 1

Incompetency to stand trial (pleading guilty, waiving counsel, or stand trial are same)

Back 1

whether ∆ has the present ability to consult with his lawyer with a reasonable degree of rational understanding; OR

whether the ∆ has a rational as well as factual understanding of the proceedings against him
-person is presumed comp. unless proved incompt. by a PREPONDERANCE of the evidence. burden on movant

Front 2

Procedure to challenge incomptetency

Back 2

either party can raise issue before or during trial.
ct. may appoint experts
D entitled to a jury trial to decide competency (diff. jury than the one that would decide guilt)
unanimous verdict required
CIVIL STANDARD (prep. of evid)

Front 3

restoration of competency

Back 3

following hospitalization, dr finds that d has attained comp. to stand trial, d returned to ct.
-either party may request
-BURDEN NOW SHIFTS TO PROSECUTION TO PROVE BEYOND A REASONABLE DOUBT THAT D IS COMP
unanimous verdict required
still not the same jury that determines guilt

Front 4

insanity defense

Back 4

everyone presumed to be sane
-burden is on proponent to show insane by preponderance
-proponent must file notice of intent to raise insanity ---defense at least 20 DAYS before trial
-if case is tried to a jury, that jury determines wheether d has met his burden
-jury verdict is guilty, not guilty, or not guilty by reason of insanity. (JEOPARDY HAS ATTACHED)
-jury shall not be informed of consequence of verdict of not guilty by reason of insanity
-law provides for post-acquittal institutionalization for one acquitted by reason of insanity

Front 5

rt. to counsel (6th amend)

Back 5

@ guilty plea (unless waived)
& during the plea bargaining process

Front 6

waiver of rights caused by pleading guilty:

Back 6

-priv against self incrim
rt to jury trial
-rt to confront adverse witness
-rt to call witness on his own behalf
-rt to be convicted by proof beyond a reas doubt
---only exception: 6th amend rt. to counsel

Front 7

prior to accepting a guilty plea to a FELONY charge, the ct must on the record determine that:

Back 7

-the d is competent;
-the plea is voluntary-
-d is knowingly waiving rts
-any recommendation by teh pros is not binding onteh ct;
-d rt to apeal may be restricted
-whether the ct intends to follow the plea agreement;
-the punishment range;
-if D is not an american citizen, he may be subject to deportation or denial of citizenship; and
-whether prosecutor has given notice of the plea bargain to victim or close relative of deceased victim

Front 8

Bail bond v. personal bond

Back 8

bail--written undertaking by d and sureties

personal--release of d without sureties or other security

Front 9

amount of bail regulated by ct. factors governing amount set: (5)

Back 9

1. large enough to reasonably assure the presence of d;
2. not excessive or an instrument of oppression or punishment;
3. type of crime charged;
4. d's financial resources; and
5. safety of V and community considered.

Front 10

conditions of release on bail (only reas conditions are permitted, including:)

Back 10

-stay away from child V of the offense or go near specific locations
-electronic monitoring & stay home
-home curfew
-breathalizer in car
-not communicate with V or go near V's residence

Front 11

Denial of bail
D's have a Con right to bail with the five exceptions listed below. this includes the right to be free of excessive bail

Back 11

1. Capital murder (provided sub. proof of guilt)
--- 1 PRIOR
2.& 3. Fel with (DEADLY WEAPON or VIOLENT OR SEXUAL) and has 1 prior Felony

----2 PRIORS
4. Fel w/ 2 priors (felonies)

---NO PRIOR BUT ON BAIL
5. already on bail for Felony & here we ho again

Front 12

reduction of bail

Back 12

D has burden of showing bail amount to be excessive
-if ct refuses to set bail, or the amount is excessive, D may contest by filing a writ of habeas

Front 13

WRIT OF HABEAS CORPUS

Back 13

remedy to be used when person is restrained in his liberty
order issued by ct
directed to one having person in cutody
ordering to produce the person at a set time and place
so cause of custody can be shown

Front 14

grand jury

Back 14

in texas, 12 persons serve. 9 votes needed for indictment

Front 15

only certain persons may be present during a grand jury proceeding

Back 15

-prosecutor and staff
-witness being examined
-grand jurors
-court reporter
-interpreter, if necessary; and
-others, if allowed.

Front 16

indictment v. information

Back 16

indictment- written statement of grand jury accusing a person of an offense

info--written statement filed on behalf of the sate by the prosecution, charging the offense

Front 17

once a d has been indicted...

Back 17

there is no right to an examining trial

Front 18

a d may waive the right to be indicted for a felony offense if he is:

Back 18

a. rep'd by counsel
b. the waiver is in open court or by a written instrument;
c. is voluntary; and
d. the state is not seeking the death penalty

Front 19

grand jury procedure

Back 19

-exclusionary rule doesnt apply
-rules of evidence dont apply
-the state is not obligated to present exculpatory evidence for the grand jurors to consider
-miranda warnings dont apply

Front 20

the term of a texas grand jury

Back 20

90 days and subject to 1 90 day extension

Front 21

if a d appears before a grand jury, he is entitled to the following warnings

Back 21

a. the rt. to not answer Q that may incrim. him;
b. notice of offense;
c. the rt. to have counsel outside of jury room and to consult with counsel before answering any Qs; and
d. the rt to have Qs and answers recorded.

Front 22

a transcript of grand jury testimony is ony avail. to a d prior to trial if

Back 22

a "particularized need" is shown

Front 23

Examining trails

Back 23

prelim proceeding conducted by magistrate to determine whether prob cause exists.
-right to exam trial only exists prior to indictment

Front 24

states atty entitled to appear before grand jury to give legal advice among other acts. when not allowed?

Back 24

deliberations and votes

Front 25

General pleading rules

Back 25

-d must object to any defect in the indictment or information BEFORE the date of trial. otherwise, such objection is waived and may not be raised for the first time on appeal or post conviction proceeding

Front 26

how does defense attorney object to defect in information

Back 26

motion to quash information in a timely manner
-day of trial not timely
-complete failure to allege the name of d in indictment renders invalid
-may be valid w/o signature of foreman
=defects in the form or substance of indictment may be amended by the state
-an indictment may bot be challenged based on insuff evidence

Front 27

**IMPORTANT** Requisites of an indictment

Back 27

1. start with "in the name and by authority of the State of Texas"
2. presented in the district ct of the county where the grand jury indicted;
3. acted upon by a grand jury in the proper county;
4. Name (of D, or reas. descrip) (complete failure renders info invalid)
5. VENUE (place of offense)
6. DATE of offense (not barred by limitations and before date on indictment)
7. offense charged is in clear and plain lang. including essential elements of offense and name of Victim
8. conclude with "against the peace and dignity of the state" and
9. signed by the foreperson (lacking this is ok)

Front 28

Discovery (crim)

Back 28

in texas, a d in a crim case has no gneral right to the discovery of evidence in the possession of the prosecution prior to trial.

Front 29

items subject to pretrial discovery upon request and a showing of good cause by D:

Back 29

a. documents
b. papers
c. written statements confession by D
d. books
e. letters
f. photos, video recordings, etc.
g. tangible objects

Front 30

evidence generally NOT subject to discovery

Back 30

a. police reports
b. reports of expert witnesses (but the results should be disclosed prior to trial)
c. grand jury testimony prior to trial (unless D makes a showing of a PARTICULARIZED NEED)
d. autopsy reports
e. original tape recordings
f. fingerprints of accuesed
g. blood, urine, and breath tests for cases under motor vehicle act
h. list of prosecution's witnesses (even signed statements)

Front 31

prosecution entitled to what discovery from defense?

Back 31

expert witness info

notice of intent to raise insanity defense

Front 32

time for filing motions and pleadings for discovery

Back 32

must be filed at least seven days before any scheduled pre-trial hearing

D has not less than ten days before that date to file motions

Front 33

brady rule

Back 33

imposes two distinct con pre trial obligation to disclose favorable evidence:
-pros. mus disclose all favorable material evidence in his possession; and
- pros must preserve and make available to d any favorable, material physical evidence that an accused --cannot otherwise obtain and that may be material to his defense.

-obligations accrue irrespective of good/bad faith state

Front 34

brady material includes:

Back 34

impeaching evidence favorable to accused
names of alibi witnesses
any evidence that affects the credibility of the prosecution's witness
prior inconsistent statements (whether will be intro into evidence or not)

Front 35

only material evidence is subject to the brady rule. fav evidence is material if:

Back 35

there is a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have ben different.
-did d receive a fair trial w/o the material evidence

Front 36

failure of prosecution to preserve for the defense "potentially useful evidence" does not violate due process or require dismissal of charges

Back 36

unless D can show bad faith on the part of the police