Texas Criminal Procedure

Front 1

1. Under Texas law, did the police officers have the authority to break down D’s door in order to gain admittance to his home (PO got a warrant, when went to execute, D refused to open door).

Back 1

Art. 15.25 allows PO to break down door of any house if he is refused admittance after giving notice of his authority and purpose. If the police officers knocked and announced their purpose at D’s house, they may break down the door.

Front 2

2. Identify two items which are required to be present in a Texas search warrant

Back 2

2. Identify two items which are required to be present in a Texas search warrant

Front 3

3. Based on the facts set out above, explain two of the grounds you should urge in support of your motion to suppress. (D was arrested based on an anonymous tip that he was selling cocaine out of his home; during the search no drugs found but sawed off shotgun found in his car parked in his next door neighbor’s driveway)

Back 3

a. (1) Police had no PC to support the SW b/c an anonymous, unsupported tip from a CI who lacked any basis of knowledge and no info on reliability and which contains no verifiable facts is insufficient to support PC.

b. (2) D’s car was not listed in the warrant as a place to be searched and D was not near the car when arrested nor was the car on his property at the time the SW was executed.

Front 4

4. What is the appropriate motion to file and what arguments could you make regarding the books? (D was driving a car described in an Amber alert, D matched description of suspected kidnapper, PO stops the car, takes D into custody, in post arrest search, PO finds children’s school books in the trunk; the kidnapped child’s name is written in the books)

Back 4

a. Motion to suppress unlawfully seized evidence b/c the PO had no search warrant to search the trunk. D should prevail b/c there is no exception to the warrant requirement her. The SIA exception allows a search of the D’s person, his immediate grabbing space, which includes the passenger compartment but not the trunk. Search not under the automobile exception b/c no PC to believe anything incriminating in the trunk.

Front 5

5. What three facts must an affidavit in support of a “mere evidence” search warrant set forth to establish PC? (D arrested following execution of SW at biz; search of safe turned up illegal controlled substances, $95k in cash, a switchblade knife. All items seized D charged with possession with intent to deliver and possession of a prohibited weapon)

Back 5

a. Art. 18.02(1) A mere evidence SW must include (1) specify that a crime occurred (2) the items sought are evidence in that offense and (3) the items will be found in the particular place to be searched.

Front 6

6. What motion should you file to contest the validity of the search? What must the motion allege and what remedy should you seek?

Back 6

a. (1) Motion to suppress unlawfully seized evidence
b. (2) Allege the affidavit did not contain the specific items so no PC for the SW to issue. If SW did not specifically list the money & knife which fall under the “mere evidence” category, they cannot be seized under the Plain View doctrine b/c not in plain view or immediately incriminating.
c. (3) Remedy is the suppression of the knife & money.

Front 7

7. What procedural step should you take to challenge the issuance of the SW, what must you show in order to support your position and what relief should you request? (In SW affidavit, PO makes a statement which he knows to be false in every respect. A SW is issued based on the statement to search D’s apartment. 7 days after the SW is issued, it is executed and PO finds a pipe used for smoking crack cocaine.)

Back 7

a. (1) Ask for a Frank’s hearing.
b. (2) Must allege a false statement in the SW. D has the burden to show by substantial evidence that a false statement was knowingly or recklessly included in the affidavit.
c. (2) Demand that the false portion of the affidavit be stricken and not considered in determining PC. If PC is then lacking, move to suppress the pipe.

Front 8

8. Is there any basis on which to challenge the execution of the SW? What procedural step, if any, can you take to challenge the execution of the SW?

Back 8

a. (1) The SW is void and has no effect b/c it was not timely executed. PO has 3 days, exclusive of the day of issuance and the day of execution, to execute a SW. 7 days is clearly outside this timeframe.
b. (2) Make a motion to suppress.

Front 9

Name five things you can search for with a standard search warrant. Art. 18.02

Back 9

a. (1) stolen property
b. (2) property designed for commission of an offense
c. (3) arms & munitions for revolting against the authorities
d. (4) weapons
e. (5) gambling stuff
f. (7) drugs and controlled substances
g. (9) implements or instruments used in the commission of the crime

Front 10

True or False

A combination search warrant/arrest warrant is invalid. ____
A police officer may get the help of a citizen to effect a search. _____
The police officer is not required to inventory what was seized under the warrant. _____

Back 10

F, T, F (If the government fails to provide an inventory, the evidence will not be suppressed under 38.22 b/c it was not obtained in violation of any law, unless the defendant can show that he was prejudiced in not getting an inventory. Art. 18.06)

Front 11

A search warrant is issued but it later turns out there was no probable cause for the search. Is the evidence seized admissible?

Back 11

No, although a federal officer may in good faith rely on a search warrant that turns out to lack probable cause, in Texas, the good faith exception only applies to technical defects in a search warrant not to a defect in probable cause. This is because Art. 38.22 prohibits the use of evidence that was seized in violation of the laws/constitution of the United States & Texas.

Front 12

What must be detailed in the affidavit supporting a search warrant?

Back 12

Must provide a substantial basis to support determination of PC--facts & circumstances known at the time the warrant is issued such that the reasonable person would believe the evidence will be found where the SW specifies and the reasonable person can find the location described. Art. 18.04

Front 13

D is at the location where a search warrant is being executed. May the police search D?

Back 13

No, mere presence of D at the scene of a search warrant execution is not sufficient. Must establish individualized probable cause to search D. Police may, for officer safety, Terry frisk D if they have reasonable suspicion he might be armed. If the frisk turns up no weapons (or contraband that they plainly feel and immediately recognize to be contraband), they must let D go

Front 14

What are the exceptions under which the police may search without a warrant?

Back 14

Search incident to lawful arrest – need PC for the arrest, not the search
Automobile exception—need PC that vehicle contains contraband
Inventory Search—no level of suspicion
Plain View/Plain Smell/Plain Touch—plain view, immediately incriminating, officer is lawfully there
Community Caretaking—rzbly believe person in need of help
Not checkpoints b/c not legislatively authorized
Exigency – Prevent escape or destruction of evidence, protect safety of officers—need probable cause; allows warrantless search of even a home

Front 15

Driver & F, brothers, both of legal driving age, are joyriding in their parents’ car. Driver is pulled over for reckless driving and arrested. May the police impound the car after Driver’s arrest?

Back 15

No, impoundment is only proper if there is no one else on the scene who can take the car. Here, F is Driver’s brother and a licensed driver. He is lawfully entitled to drive the vehicle so the police should release the vehicle to F.

Front 16

Driver is joyriding in his parents’ car. Driver is pulled over for reckless driving and arrested. May the police impound the car after Driver’s arrest? May they search the vehicle after impoundment, if so to what extent?

Back 16

(1) Impoundment is proper if there is no one else on the scene who can lawfully take the car. Here, Driver is the only occupant so impoundment is proper.
(2) The police may conduct an inventory search in conformance with an established departmental policy that governs such searches. The question is unsettled as to whether they can open any closed container found during the inventory.

Front 17

What is required for a lawful community caretaking search?

Back 17

The circumstances must be such that a reasonable person given ToC would believe that the person is in need of help. Focus is on protecting the individual so no warrant is required. Factors: nature/level of distress, location of person, access to non-police help and risk to self & others if not helped.

Front 18

How does Art. 38.23 affect Texas criminal jurisprudence w.r.t. unlawful police acts and the seizure of evidence.

Back 18

It nullifies the inevitable discovery exception to the fruit of the poisonous tree doctrine b/c evidence obtained under that exception is only obtained in violation of Texas law and thus is excluded per Art. 38.23.

It creates a poisonous tree for acts such as trespass outside the curtilage which would be lawful under federal jurisprudence such that any evidence seized after the trespass is excluded.

Evidence seized pursuant to search warrants relied on in good faith but unsupported by probable cause is also suppressed under Art. 38.23.

Front 19

1. Under Texas law, when must D be taken before a magistrate? What are the duties of the magistrate at such an appearance?

Back 19

a. Art. 15.17 Under CCP D must be taken before a magistrate within a reasonable time which is generally within 48 hours. The magistrate must advise D of the charges against him, advise D of his right, make a PC finding, set bail and appoint counsel if D cannot afford one.
b. Failure to bring D before a magistrate within 48 hours does not invoke the exclusionary rule unless there is a causal connection between the delay and the obtainment of the evidence.

Front 20

2. Was D’s arrest valid (D is arrested at his workplace without a warrant on the basis of a child’s statement that D touched her)?

Back 20

a. No, in Texas warrantless arrests are not permitted unless they fall within a statutorily defined exception. There is no defined exception that applies unless that alleged offense constitutes family violence.

Front 21

3. Is the warrantless arrest of D proper? (D arrested after 911 call from neighbor; D arrested for aggravated assault of his wife but does not commit the offense in the presence of the officers)

Back 21

a. Yes, in Texas warrantless arrests are not permitted unless they fall within a statutorily defined exception. Here, the family violence exception applies to allow arrest if police believe there is PC that D has committed family violence or has committed bodily injury and will do it again to his wife.

Front 22

4. What motion should you file regarding this statement? What basis should such motion allege? At what stage of the proceedings should you file the motion? (At post arrest interrogation, D asks for a lawyer but Detective ignores his request and obtains a written inculpatory statement)

Back 22

a. A motion to suppress statement obtained in violation of the Edwards rule—that once D invokes his right to an attorney, all questioning by Detective was required to cease until his attorney was present. This motion should be filed pre-trial.

Front 23

5. Under the circumstances set out above, can the police arrest D without a warrant? (Snitch claims D helped him commit a burglary. Police go to D’s house to question him about the burglary but D denied any knowledge of the felony offense)

Back 23

a. No, an arrest must be supported by PC and no facts indicate the reliability of Snitch. In Texas, police can only arrest without a warrant if the situation fits within one of the exceptions such as suspicious places, plain view, immediate escape, family violence, shopkeeper’s rule or traffic offense.

Front 24

6. Under the circumstances, was the warrantless arrest of D proper? (Child reported missing; witness described car and perp. At 3:30 am D is found in a neighboring county driving a car that matches the description and D looks like the description of the perp. Officer pulls D over. D appears nervous. Officer takes D into custody and searches the car including the trunk).

Back 24

a. Yes, these circumstances appear to fit within the suspicious places exception. D is found in the car described in the Amber alert at 3:30am and D’s appearance matches the perp’s description. The case does not fit within the traffic arrests exception b/c no facts indicate D committed a traffic violation.

Front 25

7. Was officer’s arrest of D valid? (perp robs pharmacy of cold medicine, Clerk stops D and accuses her of shoplifting, Clerk releases D. Ten blocks away and just minutes later, D ran in front of and was hit by car driven by Officer who heard the bulletin describing the perp and that she is carrying a designer purse. Officer arrests D b/c she matches the description)

Back 25

a. Yes, Art. 14.04 D is fleeing so she fits within the “about to escape” exception to the warrant requirement-an informant with credible report that D is about to flee a felony. D’s situation also fits within the shopkeeper’s exception that allows detention following theft by any person which includes Officer if he has reasonable grounds to believe a crime has occurred. Art. 18.16

Front 26

What are the level of detention and the requisite level of suspicion required for the three types of interaction D may have with police?

Back 26

1. Consensual encounter – no level of suspicion
2. Investigative detention (brief stop & seizure) – Reasonable suspicion criminal activity is afoot
3. Arrest – probable cause that criminal activity is occurring or has occurred.

Front 27

Defendant wants to challenge the sufficiency of the arrest warrant. What evidence is required to support an arrest warrant and what must that evidence establish? What are the bounds for D’s challenge?

Back 27

(a) An AW can issue only on the affidavits/testimony admitted into evidence on the record when warrant issued and that specifically state the factual circumstances that form the basis of PC--facts & circumstances within the PO’s knowledge or of which he as reasonable trustworthy information at the time the warrant is sought.
(b) The defendant is limited to the “four corners” of the evidence in challenging the AW.

Front 28

D is accused of a misdemeanor. The information has issued and the police must now arrest D. What is required to issue a capias?

Back 28

A capias warrant may issue only after a PC finding by a neutral magistrate. The district clerk cannot issue the capias without a probable cause determination.

Front 29

What are the requisites of an arrest warrant? Is a warrant that describes an unknown defendant as a “hispanic male wearing a white t-shirt” sufficient?

Back 29

(a)(1) Specify name of person to be seized or some reasonable definite description of him.
(2) Person is accused of some offense
(3) Signed by a magistrate or other Texas judge and his office noted in the warrant
(b) No, The warrant must describe with particularity the person—vague or overbroad descriptions create unconstitutional general warrants. Must give enough detail to reasonably identify the person.

Front 30

List five exceptions that allow the police to arrest without a warrant.
In view arrests

Back 30

Suspicious places arrests, including Family violence circumstances
a. Suspect violated a protective order
b. Ssuspect engaged in domestic violence
c. Suspect interfered with a 911 call or other emergency procedure
d. Suspect committed bodily injury & will do it again to the same person
e. If the suspect said he committed a felony
Offender about to escape
Shopkeepers privilege (Theft in view of a citizen)
Traffic offense arrests

Front 31

Houston city police officer is Montgomery county where he observes Defendant commit a traffic violation. May Officer arrest Defendant without a warrant?

Back 31

A PO may arrest without a warrant outside his jurisdiction if he observes a felony or an offense against the peace. This does not include traffic offenses. A PO may only arrest for a traffic offense if he is in the county in which his city is located or the offense started within his jurisdiction.

Front 32

The police discover evidence inculpating D after they unlawfully arrest him. What arguments can the Prosecution make to avoid exclusion, assuming the facts support them?

Back 32

Texas subscribes to only two exceptions to the FPT doctrine:
Independent source – if the police can demonstrate they found the same evidence through lawful means, exclusion avoided.
Attenuation – if the police can show a gap in time and events between the unlawful arrest and the finding of the evidence such that the finding of the evidence is sufficiently disconnected from the unlawful arrest, exclusion may be avoided.
Texas does not subscribe to the inevitable discovery rule b/c that rule violates Art. 38.23 which prohibits the use of evidence obtained in violation of any constitution or law of the State or United States.

Front 33

Police officer stops Driver for a suspected broken turn signal. Driver has a passenger K. He detains them for 30 minutes while verifying the broken light, checking Driver’s license & registration, and writing a citation. While the officer is handing Driver back his license, K who has had his hands in his coat pockets the whole time, pulls his left hand out of his pocket and marijuana fall onto the console in view of the officer. Officer arrests K. Does K have an argument for suppression?

Back 33

A traffic stop is a lawful detention but it must last no longer than necessary to effect the purpose of the detention. Police must diligently pursue a means of investigation likely to confirm or dispel their initial suspicions quickly. Thirty minutes seems like a long time for a broken signal light citation. Since K has a reasonable expectation of privacy in not being detained longer than necessary to confirm the violation and write the citation, he has standing to challenge the stop as an unlawful detention that was longer than necessary.

Front 34

1. What motion should you file regarding this statement? What basis should such a motion allege? At what stage of the proceeding should you file the motion? (At his post-arrest interrogation, D asks to speak with a lawyer. PO ignores his request, continues the custodial interrogation, and eventually obtains a written inculpatory statement from D)

Back 34

a. (1) Motion to suppress the inculpatory statement.
b. (2) B/c D was being custodially interrogated, Miranda applied giving D the right to invoke his right to counsel. When he did so, the PO was required to cease the interrogation immediately. The inculpatory statement D made after invoking his right to counsel should be suppressed b/c the police officer did not cease interrogation immediately.
c. (3) File the motion pre-trial. If denied, renew the objection again at trial when D’s statement is offered into evidence.

Front 35

2. Identify 3 predicates which must be satisfied in order for D’s oral statement to be admissible in a criminal proceeding. Art. 38.22 §

Back 35

a. Generally, oral confessions are disfavored in Texas. Admissible if.
i. (1) Assuming confession recorded, all voices must be identified,
ii. (2) Statutory rights given on recording and D waives statutory rights on the recording.
iii. (3) the device must be capable of accuracy
iv. (4) Recording provided to defense attorney 20 days before trial
b. Other options for admissibility
i. Found to be true by other evidence
ii. Not the product of custodial interrogation
iii. Res gestae statement (no interrogation has occurred)
iv. Made to out of state officers or federal officials

Front 36

3. What warnings must a written statement show on its face to be admissible? Art. 38.22

Back 36

a. The right to remain silent
b. Anything D says can and will be used against him
c. Right to an attorney
d. If cannot afford an attorney, one will be appointed for D.
e. Right to terminate the interview at any time.

Front 37

4. In addition to the warnings, what else must the face of the statement further show?

Back 37

a. That D read and understood the warnings.
b. That D knowingly, voluntarily and intelligently waived his rights.

Front 38

5. On what grounds if any can you seek to exclude D’s post arrest statement from evidence? (D was arrested at a shopping mall based on an anonymous tip; D was warned only of his right to remain silent)

Back 38

a. D was in custody but was not given his full statutory rights warnings, only his right to remain silent. D invoked his right to remain silent but PO continued to seek information from D instead of honoring D’s invocation of his right. Oral confessions in Texas are heavily disfavored and this statement met none of the exceptions. Promises were also made in exchange for the confession making it involuntary

Front 39

6. What procedural step, if any, can you take to have the jury at D’s trial consider whether D’s post-arrest statement was voluntarily made? What evidence must you present, if any, to get the Court to allow the jury to consider the voluntariness issue?

Back 39

a. Ask for the issue of voluntariness of the statement to be put to the jury if there is a disputed fact. Here, there is a dispute about what the police officer said in the car.
b. D can present evidence about the issue of voluntariness of confession but D will have to testify about what deputy said to create the issue.
c. Trial judge instructs the jury to determine voluntariness and not consider the statement unless it believes BRD that the statement was voluntary.

Front 40

D is told by the interrogation officer prior to confessing that his statements may be used for and against him. What is the effect of this declaration?

Back 40

This declaration makes D’s confession per se inadmissible because it is the use of unlawful trickery to induce D to confess.

Front 41

D orally confesses while in custody that he killed Victim with a pearl handled gun that he discarded in a trashcan outside the Exxon station at the corner of Jones Road and 290. The police get a call from that station manager saying he found a pearl handled gun in one of his trashcans along with the employee badge of the victim. The badge contains D’s fingerprints.

Back 41

Yes, although oral confessions are disfavored in Texas, they are admissible if the oral statement is found to be true by other evidence. The badge with the D’s fingerprints on it is other evidence by which D’s statement can be found to be true. D’s fingerprints would not be on the Victim’s badge found in the same trashcan with the gun used to kill Victim if D’s confession is not true?

Front 42

Under what circumstances is a confession involuntary?

Back 42

Coerced by physical abuse or threat of physical abuse or through psychological trickery.


When it is the result of a direct, clear unequivocal promise by a person in authority to the D in exchange for his confession. If the statement is equivocal (I might be able to, perhaps, etc.), it is not necessarily involuntary

Front 43

When are oral confessions admissible?

Back 43

a. If the oral statement is found to be true by other evidence
b. If the oral statement is not the product of custodial interrogation (D was not in custody (restraint that is the functional equivalent of arrest) or while in custody but not being interrogated (interrogation or the functional equivalent).
c. Res gestae statements (no interrogation has occurred).
d. Recorded statements (video or audio) if the device is adequate, warnings are given on the recording, and waived on the recording, the key voices are identified, the recording is provided to the defense lawyer in advance of trial.
e. Oral statements made to out of state officers or to federal officials

Front 44

1. Is Travis County the proper venue for this case? (Child tells teacher that D had touched her; Teacher calls Austin PD (in Travis County). Police question Child who says she cannot remember where the offense occurred. Police go to D’s workplace and arrest D without a warrant).

Back 44

a. Yes, ordinarily venue is proper where the crime occurs. In case where can’t tell, where crime occurred, venue is proper where D resides, where D is apprehended. Appears D resides in and was apprehended in Travis County.
b. 13.01 if committed outside Texas, county in which offender is found or in any county in which an element of the offense occurs
c. 13.04 if committed within 400 yards of the boundary of two or more counties, in any of those counties
d. 13.05 Homicide outside state – county where injury inflicted, county where offender located when he inflicted the injury, in county where victim died or body was found
e. 13.07 – county where injury occurred and county where death occurred or body was found
f. 13.12 Kidnap – county where offense was committed or county through or into which the victim may have been taken
g. 13.19 – if can’t tell where offense occurred, county in which D resides, county in which he is apprehended, county into which he is extradited.

Front 45

2. Under the circumstances, what is the proper venue (Child kidnapped in Bexar county, D stopped in Comal County, child found in Comal County unharmed)

Back 45

a. Ordinarily, venue is proper where offense occurred so here that would be Bexar county where the child was abducted.
b. In Kidnap case, venue is proper in any county through or into which the victim was taken. Here that would be both Bexar county and Comal county.

Front 46

3. What procedural step, if any, should you take to protect D’s right to a fair trial? What documents must you file in support of your position? What must the evidence show in order for you to prevail?

Back 46

a. (1) Art. 31.03, 31.04 Motion for a Change of Venue
b. (2) Must support motion with D’s own affidavit and the supporting affidavits of two credible residents of the county saying D cannot get a fair trial.
c. (3) Must demonstrate D would suffer great prejudice if D is prosecuted in the county.

Front 47

By what burden must the prosecutor establish that venue is proper?

Back 47

By a preponderance of the evidence

Front 48

Which parties can move for a change of venue?

Back 48

a. The prosecution
b. The defendant
c. The judge

Front 49

What are D’s options if he believes he can’t get a fair trial in the county? What is the standard of review on appeal?

Back 49

D must bring a written motion, his own affidavit and the affidavits of 2 credible witnesses that reside in the county that state D cannot get a fair trial in the county. The State may oppose the motion by bringing the affidavits of other residents of the county refuting D’s witnesses or stating that D can get a fair trial in the county. Judge then decides which side he believes.

Standard of review is abuse of discretion.

Front 50

1. Explain fully what an examining trial is, what its purpose is, and whether D is entitled to an examining trial under the circumstances (no GJ yet).

Back 50

a. An ET is a pre-indictment adversarial proceeding in a felony case that inquires into the PC of the State to justify detention of the accused pending formal prosecution.
b. The accused in this case is not entitled to an ET b/c his case has gone to the GJ which indicted D. Once a GJ returns an indictment, D is no longer entitled to an ET b/c the PC determination has been made.

Front 51

2. Are there circumstances in which D’s attorney can appear and present evidence before a grand jury in behalf of D?

Back 51

a. Art. 20.04 If the attorney for the State approves, D’s attorney may address the GJ.
b. Art. 20.011 ordinarily the Accused’s attorney is not allowed in the GJ room when D is testifying.
c. D has no right to participate in the GJ proceedings or even be informed of the proceeding. GJ can invite the D to appear but D’s attorney must stay outside.

Front 52

3. IN THE NAME AND BY THE AUTHORITY OF THE STATE OF TEXAS
THE GRAND JURORS OF DALLAS COUNTY, TEXAS, duly elected, tried, empaneled, sworn, and charged to inquire of offenses committed in Dallas County, Texas, in the State of Texas, upon their oaths do present in and to the 283rd district Court of said County that John Defendant, in the County of Dallas and State aforesaid, on or about the 10th day of December 2000, did then and there cause the death of an individual, William Victim, by shooting him with a deadly weapon, to with: a firearm.
AGAINST THE PEACE AND DIGNITY OF THE STATE
----(unsigned)--------------------------------------
David Jones

Back 52

a. Why is this indictment defective? What procedure is available to D to challenge the indictment? At what stage of the proceedings must D assert such a challenge?

i. No crime alleged because fails to allege a culpable mental state
ii. Not signed by the GJ
iii. Motion to Quash the indictment
iv. Make motion before trial, else waive both procedural and substantive errors.

Front 53

4. What is an “information”? Name one way in which an information differs from an indictment.

Back 53

a. An information is the charging instrument for misdemeanor. It contains the same information as an indictment.
b. An information is not returned by a GJ but prepared by the prosecutor based on a complaint.
c. The PC determination is not made by GJ or examining trial.

Front 54

5. Can prosecutor compel D to testify before the GJ? What rights does D hae regarding an appearance?

Back 54

a. Yes, prosecutor can compel D to appear by subpoena and testify.
b. D has right to counsel, and appointed counsel if he cannot afford counsel, but counsel cannot be in the room while D is testifying. D has his constitutional right to remain silent and can invoke that right if answers to questions will incriminate himself. Has the right to be apprised of the target offenses.

Front 55

6. IN THE NAME AND BY THE AUTHORITY OF THE STATE OF TEXAS
THE GRAND JURORS OF HARRIS COUNTY, TEXAS, duly elected, tried, empaneled, sworn, and charged to inquire of offenses committed in the County of Harris in the State of Texas, upon their oaths do present in and to the 100th district Court of said County that George Defendant, in the County of Haris and State aforesaid, on or about the 10th day of January 2002, did then and there cause the death of an individual, Sally Victim, by shooting her to death with a deadly weapon.
----(signed)--------------------------------------
Terry Jones, Foreman, GJ

Back 55

a. Is this indictment defective? Why or why not?
i. Yes, b/c no crime has been alleged b/c it fails to state a culpable mental state for the killing.
ii. It does not contain the phrase “against the peace and dignity of the State” as required by CCP.

Front 56

7. What rights and obligations does a D have in regard to an appearance before the GJ.

Back 56

a. D has no right to appear or even be apprised of the proceeding.
b. Prosecutor can subpoena D and compel him to testify before the GJ.
c. Art. 20.17(b) D has a right to an attorney, or to be appointed an attorney if he cannot afford one but attorney must remain outside GJ room while D is testifying.
d. D may invoke his 5th amendment right against self-incrimination but he cannot remain silent if answers will incriminate other persons, even relatives.
e. Art. 20.17(a) Right to know the target crimes
f. Art. 20.17(b) Right to be apprised of his Art. 20.17(c) rights

Front 57

8. What rights and obligations does a Snitch who has been given immunity have in regard to an appearance before the GJ?

Back 57

a. Snitch is obligated to testify b/c of his immunity agreement since he no answer he gives can incriminate himself.
b. If he refuses to testify, he can be held in contempt and jailed until he cooperates.
c. He has a right to have an attorney present but outside the GJ room.
d. He can invoke his 5th amendment right against self-incrimination for questions that fall outside his immunity agreement.

Front 58

9. IN THE NAME AND BY THE AUTHORITY OF THE STATE OF TEXAS
THE GRAND JURORS OF LUBBOCK COUNTY, TEXAS, duly elected, tried, empaneled, sworn, and charged to inquire of offenses committed in the Lubbock County, in the State of Texas, upon their oaths do present in and to the 364th district Court of said County that John Defendant, in the County of Lubbock and State aforesaid, on or about the 1st day of October 2003, did then and there enter a building owned, occupied and used as a habitation by Sam Victim, without the effective consent of Sam Victim.
AGAINST THE PEACE AND DIGNITY OF THE STATE
----(signed)--------------------------------------
David Foreman, Foreman, GJ

Back 58

a. Is this indictment sufficient to charge the offense of burglary of a habitation?
i. No, fails to include a culpable mental state; specifically it fails to allege that D entered with the intent to commit a felony therein.

Front 59

10. What requirements must be met in order for a person to waive indictment? What, if any, exception is ther to a person’s right to make such a waiver?

Back 59

a. 1.141 – the person must be represented by counsel, must be in open court or in writing, must voluntarily waive his right to be accused by indictment. He will then be charged by information.
b. No right to waive indictment if D is accused of a capital felony.

Front 60

11. What courts have jurisdiction to hold an examining trial? If D desires to make a voluntary statement at the examining trial, when must he do so?

Back 60

a. Any magistrate as defined in Art. 2.09 can hold an examining trial.
b. Art. 16.04 D can make a voluntary statement at the ET but he must do so before the examination of any witness. Art. 16.03 D must be warned that he is not required to make a statement and any statement he makes can be used against him.

Front 61

12. Under what conditions, if any, can you introduce Deputy’s examining trial testimony into evidence at D’s jury trial?

Back 61

a. If the testimony meets the former testimony exception to the hearsay rule. The deputy must be unavailable to testify at trial, which is the case here b/c in FL the deputy is beyond subpoeana power, and the D must have had a full & fair opportunity to cross-examine the deputy at the examining trial while deputy was under oath.

Front 62

13. When and on what grounds should you challenge the composition of the GJ?

Back 62

a. Art. 19.27 Before the GJ is impaneled, any person may challenge the array of jurors to object to the qualification and the legality of the GJ.
b. Art. 19.30 Those summoned are not in fact those selected by the method provided in Art. 19.01(b) or by the jury commissioners or the officer summoning the jurors acted corruptly in summoning one or more of them.

Front 63

14. If D is subpoenaed to appear before the GJ, what warnings must he receive, if any? Art. 20.17(c)

Back 63

a. Receive notice of the specific charge(s)
b. Right to have an attorney and to have an attorney appointed if can’t afford one but attorney cannot be in GJ room while D testifies.
c. Right not to answer any question the answer to which D thinks will incriminate him.
d. Statements are under oath and D will be subjected to perjury charges if he makes a false statement.
e. Statements made can be used against him.

Front 64

15. Can you wait until trial to challenge an error in the indictment concerning D’s name, and are there different consequences if you raise the issue before trial or if you wait until trial to raise it?

Back 64

a. Art. 26.08 Ordinarily defects in the indictment, procedural or substantive, must be raised pre-trial else they are waived. A defect in D’s name cannot be waived. This defect can be challenged at any time, even on appeal. D’s name must more than misspelled to be a defect.
b. If D waits he might get a reversal but highly unlikely since D has acceded to Court’s jurisdiction by appearing. Normally if don’t object pretrial most errors in the indictment, procedural and substantive, are waived.

Front 65

55 year old postmenopausal woman on tamoxifen therapy What is she at increased risk of acquiring?

Back 65

Endometrial carcinoma

Tamoxifen is an antagonist of the estrogen receptor in breast tissue. It has been the standard endocrine (anti-estrogen) therapy for hormone-positive early breast cancer in post-menopausal women

Front 66

May the defendant object to the evidence on which a grand jury indictment was based?

Back 66

As long as the grand jury is unbiased and was properly empaneled, D does not get to go behind the indictment to see what evidence is presented. The prosecutor is not required to present exculpatory evidence and the D has no right to put on his own evidence.

Front 67

When may a defendant seek an examining trial?

Back 67

Arrested for a felony
No grand jury indictment has been returned.

Front 68

Requisites of Indictment.

Back 68

a. Run "In the name and by authority of The State of Texas".
b. State the district court with jurisdiction in county where GJ meeting.
c. State that it is an act of the GJ of that county
d. Contain name of the accused, or state that his name is unknown and give a reasonably accurate description of him.
e. State place where the offense was committed is within the county in which the indictment is presented.
f. The date of the offense must pre-date the date of the indictment
g. It must state an offense.
h. Concludes, "Against the peace and dignity of the State".
i. Signed officially by the foreman of the grand jury.

Front 69

Requisites of Information

Back 69

a. Run "In the name and by authority of the State of Texas";
b. State the district court with jurisdiction in county where GJ meeting.
c. Presented by the proper officer;
d. Contain the name of the accused, or state that his name is unknown and give a reasonably accurate description of him;
e. The offense charged occurred in the county where the information is filed;
f. The date of the offense must pre-date the date of the information
g. It must state an offense
h. Conclude, "Against the peace and dignity of the State"; and
i. Signed by the district or county attorney, officially.

Front 70

When can offenses be joined into one trial? What is the effect of joinder on sentencing?

Back 70

Can join multiple offenses that occur during the same event or transaction.
Can join offenses that did not occur in the same event but which look the same (similar MO).

If charges are joined, the sentences for any convictions run concurrently.
If charges are tried separately, the sentences for any convictions run consecutively (are stacked).

Front 71

When must D object to defects in the indictment? What is the State’s remedy? What if the State fails to execute the remedy fully?

Back 71

D must objects to both procedural and substantive defects in the indictment before trial else the defects are waived.
The government’s remedy is to amend the indictment and then proceed. If the amendment is to add a new statutory offense or would otherwise prejudice D’s preparation of a defense, must go back to the GJ for a new indictment..
If the government fails to actually amend the indictment, there will be a variance between indictment and proof at trial such that the State has not proved its case.

Front 72

What is the difference between a complete and incomplete indictment?

Back 72

A complete indictment alleges all elements of an offense such that the State is bound to prove each of those elements and only those elements at trial. The Jury instruction cannot vary from the indictment irrespective of what the statute authorizes. Otherwise, D has no notice of what he needs to defend.

An incomplete indictment does not allege every element of the offense thus the D is deemed to be on notice of any theory of the offense that is consistent with the indictment and the penal code provision. The Jury instruction must be consistent with the indictment and the penal code provision.

Front 73

At the examining trial, the judge cuts the witnesses testimony because he has heard enough. Can the judge do this?

Back 73

The judge just has to hear enough evidence to determine if there is probable cause. This means he can cut the testimony short to move the case along.

Front 74

1. What procedure must you follow before you will be allowed to take Victim’s pre-trial deposition and would your answer be any different if you wished to depose the security guards who witnessed the events?

Back 74

a. Depositions are generally not preferred in criminal case. Party seeking depo must file affidavits explaining good cause why the depo is needed. It is wholly within the judge’s discretion to grant or deny.

Front 75

2. IS the state required to disclose the unsigned, exculpatory statement of a W to D? Why or why not? Would it matter whether D had made a request for exculpatory evidence?

Back 75

a. Yes, State is obligated to turn over to D evidence favorable to the accused. Favorable evidence is exculpatory or impeachment evidence that is material to an issue in the case. It does not matter whether D makes a request for exculpatory information or not. The Brady rule is an obligation of the State.

Front 76

3. The State requests a list of all D’s witnesses, including experts, you intend to call at trial. How should the court rule on the State’s request?

Back 76

a. Art. 39.14 The court should deny the request as to all W’s except the experts. D has no obligation to provide a list of W’s to the State but must notify the State of testifying experts 30 days before trial. State, however, does have an obligation to provide D a witness list upon request of D.

Front 77

4. In preparation for trial, you file a written motion for discovery. Is D entitled to under the Texas CCP to the following: a) the names of the State’s W’s, b) statement of the State’s W’s, c) the autopsy report, including toxicological results, d) D’s confession, e) GJ transcription

Back 77

a. (a) Art 39.14(b) The judge has discretion on whether to order discovery of W list or not; if so, must be provided 20 days before trial
b. (b) Yes, but only after W’s testify at trial (Gaskin Rule)
c. (c) Yes, D is entitled to expert reports
d. (d), Yes, Art. 39.14(a) D is entitled to D’s own confession
e. (e) Art. 20.02(d) Judge has authority to order disclosure of the GJ transcript if D can show a need.

Front 78

5. You move for the production of a testifying W’s statements after W testifies. How should the court rule on your motion? What sanctions may court impose if State refuses to comply?

Back 78

a. The Court should grant your motion b/c the Gaskin rule requires the State to turn over any statements made a testifying W after W testifies.
b. Failure to produce the statements is grounds for a mistrial or striking W’s testimony.

Front 79

6. You file a pre-trial motion requesting that the State reveal the name of any informant from whom it has acquired information. Although prosecutor acknowledges an informant was used, she refuses to divulge identity. You file a motion to compel. How should the court rule?

Back 79

a. Tex. R. Evid. 508 –Ordinarily the State may claim that the identity of the CI is privileged. The court may order disclosure of the CI if the D can show that there is a rzbl probability that the CI can give testimony necessary to a fair determination of a material issue. If State refuses, court may dismiss the charges to which the testimony would relate.

Front 80

7. What action, if any, should you take in response to Prosecutor’s refusal to give you a copy of D’s statements? How should the court rule?

Back 80

a. You should make a motion to compel.
b. The Court should grant the motion b/c D is entitled to copies of any written statement D makes.

Front 81

8. What procedures are available to you in an effort to effect a reduction in D’s bail and what arguments would you make in support of these procedures?

Back 81

a. File a writ of habeas corpus and argue that the bail amount is set improperly and is being used as an instrument of oppression to keep D in jail rather than to secure D’s presence at trial.
b. Motion for a reduction of bail to an amount designed to secure D’s presence at trial.

Front 82

9. Who decides what plea will be entered? If D changes his mind and agrees to enter a guilty plea, list three admonishments that the Court must give before accepting a felony plea of guilty?

Back 82

a. D decides what plea to enter
b. Art. 26.13 Court must admonish D as to the (1) range of punishment (2) that Court is not bound by any recommendation of the prosecution (3) D’s appellate rights are limited if punishment given by judge does not exceed prosecutor’s recommendation and (4) can be deported

Front 83

10. List three factors the Court must consider in fixing the amount of D’s bail.

Back 83

a. (1) seriousness of offense (nature of the offense)
b. (2) not used as an instrument of oppression; amount only so high as is necessary to ensure D’s appearance at trial
c. (3) Safety of victim and of the community

Front 84

11. When can the court refuse D bail?

Back 84

a. When D is accused of a felony and has two prior felony convictions
b. D is accused of a felony while out on bail for another felony
c. D is accused of a felony involving a deadly weapon and has a prior felony conviction
d. D is accused of a violent sexual offense while under court supervision
e. D is charged with a capital felony where proof is evident that D will get the death penalty

Front 85

12. D is accused of sexual contact with Child. His bail is originally set at $100k. You file a writ of HC and after hearing the court reduces bail to $25k but imposes a bond condition that D not directly communicate with Child or go near residence of Child. You argue that Court has no authority to impose such a condition b/c it would require D to move out of the home he shares with Child and mother. Is this a proper condition of bond under Texas law?

Back 85

a. Yes, the court has discretion to impose conditions that relate to the offense with which D is charged. Court can validly limit D’s contact with Child out of concern for the future safety of the alleged sexual assault victim, a valid consideration for setting bond.

Front 86

13. Can the Court consider whether D has posted or is capable of posting bail in determining whether D is indigent? What, if any, exception is there to this rule?

Back 86

a. Generally, Court is not supposed to consider that D made bail in determining indigency. Exception if D ‘s ability to make bail demonstrates he has sufficient financial resources to pay for a lawyer, then court can consider.

Front 87

14. Who makes the decision as to whether trial will be by jury or to the bench? Must the choice be the same for the guilt/innocence phase and the punishment phase of the trial?

Back 87

a. D makes the choice.
b. He must make his election pretrial.
c. D’s election does not have to be the same for both guilt/innocence and punishment phases.

Front 88

15. What valid basis, if any, is there for challenging a bond condition that D not go near any residence or school where children under the age of 12 are present when D is accused of possession with intent to deliver cocaine.

Back 88

a. Art 17.40 D can challenge on the basis that the condition is overbroad b/c bail conditions must relate to the crime D is charged with. The condition would be valid if D were charged with an offense against a child under the age of 12. This condition is not concerned with the future safety of V or of the community b/c D is not charged with a crime against a specific victim or that shows he a danger to the community.

Front 89

16. What procedural step should you take to have jury assess punishment and when should you take that step? If D is convicted by the jury, can D then change his mind and have the Court decide punishment?

Back 89

a. D makes an election for jury sentencing in pre-trial motion.
b. D may change his election after conviction only if the prosecution consents.

Front 90

17. Does the Court have to make guilty plea admonitions in writing and have D sign them or can D plead guilty even if she cannot sign the written admonitions?

Back 90

a. Art. 26.13 Admonitions can be oral. If done in writing, D must sign that he understands and appreciates the consequences. If D refuses to make the required signature, the court shall make the admonitions orally.

Front 91

If the defendant has been convicted, can he get bail while pending an appeal?

Back 91

a. If the defendant’s sentence is more than 10 years or is convicted of a major crime, then there is no bail pending appeal. The defendant is taken into custody pending the appeal.
b. If the defendant committed a low level offense, then there is bail pending appeal.

Front 92

What are the limits of the judge’s discretion w.r.t. bail?

Back 92

The judge has great discretion in setting the bail amount and may deviate from the schedule. Ap Ct reviews bail amount under abuse of discretion standard and may lower the bail if it believes the judge abused his discretion.
The judge has no discretion to say he will privilege one type of bond over another.

Front 93

After incarceration when must the felony defendant be indicted? What are the consequences of not indicting the defendant in time (of the State not being ready for trial)?

Back 93

Within 90 days of incarceration, the defendant must be indicted or else his bail is reduced by statute to either zero or some other amount that he is able to pay or he is released ROR.

Front 94

What does inspection of evidence by the D really mean?

Back 94

It is more than a visual inspection. He must be allowed to test substances or measure them and do to the evidence what the prosecution can as long as it is not destroyed.

Front 95

May the defendant discovery items referred to by witnesses during trial even if such items are not otherwise required to be turned over to D?

Back 95

Yes, The use before the jury rule allows D the right to copy a document referred to by W at trial whether or not W produced the document. All that matters is that the document was used before the jury in some way.

Front 96

What are the issues regarding a defendant’s agreed plea deal and its acceptance by the judge?

Back 96

The prosecutor’s recommendation is not binding on the court. Judge may reject and D or prosecution may walk away before the plea is entered by the court. If the judge does not accept, the prosecutor must let D withdraw is plea.
Once the court enters the plea, the judge cannot revoke the acceptance by withdrawing the plea or changing its terms.

Front 97

What must the State offer during the entry of the plea in court to ensure the plea is properly supported?

Back 97

The State must introduce some evidence for each element of a felony offense (n/a to misdemeanors) when D enters his guilty plea. It is not enough for D to plead guilty. The evidence can be by stipulation or testimony by D in open court. Note that if the Ap Ct finds the evidence insufficient, case will be reversed and no second trial b/c government failed to prove its case (double jeopardy).

Front 98

May a Defendant withdraw his plea of guilty in a misdemeanor case if the judge does not accept his plea deal?

Back 98

No, though Art. 26.13 by its text does not limit its application to felonies, the TCCA does. The D does not get the benefit of his bargain with the prosecution.

Front 99

When may a D appeal his guilty plea?

Back 99

He can appeal based on pre-trial rulings of motions essential to the outcome of the case (e.g., motion to suppress) and jurisdictional defects whether an agreed plea or an open plea.

He can appeal if the sentence is outside the range recommended by the prosecutor.

He can appeal if the court gives him a certificate of appeal.

He cannot appeal based on voluntariness grounds b/c D is admonished of all the rights he is waiving while the court takes his plea.

Front 100

1. Describe the procedure you should employ to contest the Prosecutor’s action in striking all 8 blacks from the venire by using peremptory strikes, at what stage of the proceedings must you employ it, and what remedy should you ask the judge to grant?

Back 100

a. (1) Use a Batson hearing—(1) D must make a prima facia showing of an inference of racial discrimination (2) the burden then shifts to State to give race neutral reasons for the strikes (3) judge then determines whom to believe
b. (2) The challenge should be made pre-trial
c. (3) Remedy – ask judge to reseat the jurors or bring in a new array.
A. Can a prosecutor challenge the same behavior in D? Yes, Batson applies to the exercise of peremptory strikes by both D and prosecution.

Front 101

2. If juror #8 has formed an opinion that D is guilty, what must you show to establish a challenge for cause?

Back 101

a. Must show juror has a bias or prejudice against D and that such prejudice will prejudice the D such that the verdict will be influenced if the juror is seated.

Front 102

3. How many challenges for cause is D entitled to? How many Peremptories? Does the number of Peremptories differ depending on whether case tried in county or district court?

Back 102

a. D gets unlimited challenges for cause.
b. In capital felony case, D gets 15 peremptories; in non-capital felony case, D gets 10; in a misdemeanor case, D gets 3.
i. If tried in District Court, D gets 5 peremptories.

Front 103

4. What action if any can you take to change the seating order of the venire, and at what stage of the proceeding should you take this action?

Back 103

a. Move for a jury shuffle
b. This motion must be made after seating of the venire but before voir dire begins.
c. Only one jury shuffle allowed at motion of either side.

Front 104

5. List 5 challenges for cause which may be made by either the State or the Defense.

Back 104

a. Convicted or under charge for misdemeanor theft or a felony
b. Can’t follow the law
c. Related to any party within 3rd degree of consanguinity
d. Not qualified as a voter
e. Can’t read or write English
f. Bias or prejudice for or against D
g. Insane
h. Served on the GJ

Front 105

6. How many jurors are necessary to find D guilty? How many to find D not guilty? How many jurors must agree on punishment? What are the consequences if fewer than the required number of jurors as to each of these outcomes?

Back 105

a. Unanimous to find D guilty; if not unanimous, then mistrial
b. Unanimous to find D not guilt; if not unanimous, then mistrial
c. Unanimous to sentence D; if not unanimous, then mistrial as to sentencing and judge reseats a new jury to assess punishment, unless death penalty, in which case D gets life in prison.

Front 106

7. What three matters must the court determine regarding a prospective juror’s legal qualifications to serve?

Back 106

a. Art. 35.12
i. Are you a registered voter in this county?
ii. Have you ever been convicted of theft or any felony?
iii. Are you under indictment or legal accusation for theft or any felony?

Front 107

8. How many peremptory challenges does D have in a single-D felony trial? How many does the State have? How many challenges for cause does each side have? How many jurors are seated?

Back 107

a. D’s Peremptories – 10
b. State’s Peremptories – 10
c. Challenges for cause – both sides have unlimited challenges for cause
d. 12 jurors are seated in a felony case.

Front 108

A juror on the venire keeps staring at you. Can you exercise either (a) a challenge for cause or (b) a peremptory challenge to exclude the prospective juror on the basis of the juror’s stare alone?

Back 108

a. Cannot use a challenge for cause unless can establish that the juror meets one of the statutory challenges for cause.
b. Can use a peremptory challenge for the stare alone; this is a race/gender neutral basis for the strike and so is permissible.

Front 109

10. Prosecutor strikes every black panel member. D is white. Can you challenge prosecutor’s action? If so, what should you do, how should prosecutor respond, how should the court rule?

Back 109

First, D does not have to be the same race as the jurors whose strikes he is challenging.
a. S Ct has said D does not need to be of the same race as the jurors who have been struck from the panel.
b. D must make a prima facia case for an inference of racial motivation for the strikes.
c. The prosecution must come forward with race neutral reasons for the strikes.
d. The court must then decide whom it believes, probably in this case, the defense since all blacks were struck.

Front 110

Waiver of the Right to a Jury Trial

Back 110

a. The right belongs to prosecution and defendant.
b. The prosecution must also waive its right to a trial by jury and it must be in writing.
c. If the defendant orally waives his right, substantial compliance with the waiver requirement is likely to be found and the case is unlikely to be reversed.

Front 111

How many jurors in district court? In county court or lower level courts? For misdemeanor cases?

Back 111

a. District court – 12
b. County court – 6
c. Misdemeanors – 6

Front 112

Who is competent to serve as a juror?

Back 112

a. over age 18 (voter requirement)
b. Citizen (voter requirement)
c. Sound mind and good moral character
d. Able to read and write
e. No conviction on your record for either theft or a felony
f. No current indictment for either theft or a felony

Front 113

Who may be excused from jury service?

Back 113

a. No longer live in the county
b. Older than 70 years old
c. Enrolled in an institution of higher education.
d. Have a child under 10
e. Government employees
f. Active duty military personnel

Front 114

Who is automatically disqualified from jury service?

Back 114

a. Witness in the case
b. Related to D by at least the 3rd degree of sanguinity
c. Bias or prejudice against one of the parties
d. Previously served as a juror in the same case

Front 115

May the judge limit the amount of time for voir dire questioning?

Back 115

Yes, the time is within his discretion. However, he may not stop questioning that is relevant to material issues in the case; individual questioning on such issues should be allowed.

Front 116

What is necessary for D to preserve an appellate issue on a strike for cause that the court denied?

Back 116

(1) be clear on record what the challenge for cause is
(2) show that D had to use a peremptory challenge to get rid of the juror or that D had none left
(3) D had no peremptory challenges left
(4) D asked for additional peremptory challenges and was denied and
(5) the juror should not have been seated.

If D challenges the granting of a strike for cause for the State, difficult to win if the State has a peremptory remaining b/c the State can say it would have used that to strike the juror.

Front 117

What is the typical order of the trial process?

Back 117

Indictment/information read to D
D pleads not guilty
After jury selection, opening statements. If prosecution opts out, D must wait until prosecution has rested.
May utilize “The Rule” to exclude W’s other than D from the courtroom.
D does not have to sit in after the indictment is read.
Evidence is presented.
Judge reads charge to jury, explains burden (BRD) and provides copy to jurors
Closing argument; prosecutor may go first & last and may waive this right
Deliberations
Verdict – guilty or not guilty, unanimous; may poll each juror
Sentencing – unanimous if by jury

Front 118

How must the court’s charge be structured?

Back 118

The elements in the jury charge must match the elements listed in the indictment if the indictment does not track the governing statute b/c the indictment is what gives D notice. In any case, the jury instruction cannot be broader than what is authorized by the statute. If it is, there is a constitutional problem b/c may convict D of something that is not a crime. Remedy is reversal.

Front 119

What two things must the judge instruct on if there is evidence in the record to support them?

Back 119

Defense – if there is evidence in the record to support a defense, the judge is required to give the instruction even if the evidence is weak. The defense my be supported by evidence other than D’s testimony.

LIO—upon motion of D, if there is evidence in the record to support an LIO, the judge must give an instruction on the LIO.

Front 120

How is the jury charge structured? Do the prosecution and defense get to review it?

Back 120

Abstract statement of the law followed by a paragraph that applies the facts of the case to the statement of the law so that the jurors understand what they must find to reach a verdict.

Technical defects in the jury charge are not grounds for reversal but if the charge states that certain elements have been established, that is reversible b/c the jury is the determiner of whether each element is established BRD.

Yes, both must be given time to review the charge before it is given to the jury so that they can object or suggest changes. If don’t specifically object, objections are waived unless D can establish plain error.

Front 121

May the judge comment on a witness’ credibility?

Back 121

The judge cannot comment on a particular witness’ testimony. The jury is to decide the credibility of all witnesses. It is permissible to instruct the jury that they are the sole judge of credibility of any witness. If an instruction suggests to the jury what weight it should give to particular testimony, that is impermissible. The judge is never allowed to comment on the weight of testimony or any evidence.

Front 122

1. May a D change his election for jury sentencing, over the objection of the prosecution, after he has been convicted by the same jury?

Back 122

a. No, he may not. D can only change his election after conviction with the consent of the prosecution.

Front 123

2. What are two ways in which deferred adjudication differs from probation.

Back 123

a. With Deferred Adjudication, if D successfully completes his period of community supervision he will have no conviction on his record. Whereas, with straight probation, after successful completion, D still has a conviction.
b. D must file a sworn motion that he has not been convicted of a felony in Texas or any other State before probation is a sentencing option. D is not required to file such a motion for deferred adjudication to be a sentencing option.
c. DFA is not a sentencing option for a jury b/c it is only available to D’s who have not been adjudicated guilty. Probation is a sentencing option for a jury.

Front 124

3. Who, as between judge & jury, sets punishment in Texas criminal case and does Texas’ procedure differ from federal procedure in the setting of punishment?

Back 124

1) Who sets punishment depends on D’s election b/c in Texas D can elect jury sentencing via pre-trial election. If D does not make such an election, then the judge sentences D.
b. (2) In the federal courts, only the judge can sentence.

Front 125

4. The jury finds D guilty. Can the court or the jury now consider a sentence of deferred adjudication as punishment for this offense?

Back 125

a. No, deferred adjudication is not a sentencing option available to a jury. It is only available to D’s who have not been actually adjudicated guilty after entry of a guilty plea.

Front 126

5. What procedure does D use to elect jury sentencing? Must the choice be the same as to both guilt and punishment phases of the trial?

Back 126

a. D elects trial by jury and jury sentencing in a pre-trial election. To waive jury trial, though, D must have the consent of the prosecution. To waive jury sentencing, D does not need the consent of the prosecution. If D changes his mind after conviction and wants the judge to sentence him, D must get the consent of the prosecution.
b. D does not have to select a jury for both phases.

Front 127

6. What procedures must the court follow when allow a Victim to make a victim impact statement?

Back 127

a. A victim is entitled to make an oral statement after D has been sentenced. That statement is not transcribed and it is not evidence. The statement should not affect the sentencing proceedings.

Front 128

7. If D has served time in the penitentiary, may D file an application for probation under Texas law?

Back 128

a. No, if D has been previously convicted of a felony in Texas or any other State, D may not file an application for probation b/c the application requires D to swear that he has not been so convicted.

Front 129

8. List three statutory conditions of deferred adjudication

Back 129

a. Judge makes finding that best interests of society and D served by giving D DFA.
b. D enters plea of guilty or nolo contendere.
c. Judge defers entering an adjudication of guilt and puts D on community supervision.
i. DFA not available as a sentencing option to a jury b/c D has been adjudicated guilty at that point.
d. If D violates the terms of CS, he is subject to the maximum sentence. .
e. If D serves his CS period successfully, he has no conviction b/c the charges are dismissed.

Front 130

9. Under what circumstances if any is the State required to give notice of its intent to introduce D’s prior conviction into evidence at sentencing? How should the court rule on your objection? (you objected that the State did not give you notice of the prior conviction)

Back 130

a. Art. 37.07 § 3(g) says the State must give notice of its intent to introduce D’s prior conviction at sentencing only if the D makes a timely request for the notice.
b. The judge should overrule your objection b/c D did not request notice.

Front 131

10. The jury is deadlocked on sentencing. You move for a mistrial and request a new trial on D’s guilt and on sentencing. The Court states the jury’s guilty verdict will not be disturbed. The court grants the mistrial as to the punishment phase and states that it will impanel a new jury to decide punishment. Is the Court’s ruling correct? Does DJ bar the retrial of the punishment phase of D’s trial?

Back 131

a. Yes, a mistrial declared at the sentencing phase does not equate to a mistrial of the guilt/innocence phase so only the sentencing phase is repeated.
b. DJ does not bar retrial of punishment phase b/c DJ only bars a second prosecution for the same offense. In any case, even a mistrial of the whole case does not create a DJ issue unless prosecution has goaded D into requesting a mistrial.

Front 132

What kind of evidence may be presented at sentencing?

Back 132

Art. 37.07(3) Any evidence the court deems relevant, including prior offenses, prior convictions and dismissals, and defendant’s character, can be considered at sentencing. If the evidence “nudges” the jury in either direction, the evidence can be relevant for sentencing.

Front 133

What are the limits of the presentation of victim impact evidence at sentencing?

Back 133

VIE evidence is allowed and is permissible in video form but at a certain point, the court must determine when the prejudicial nature of a VIE outweighs its probative value; There is more leeway in what kinds of evidence are allowed at sentencing than at trial; Criteria
a. How probative
b. How prejudicial
c. Time needed to develop the evidence
d. The need for the evidence

Front 134

What kind of punishments can D face if convicted?

Back 134

Incarceration
Fines
Community Service
Drug treatment
Other treatment programs

If D has been previously convicted, his prior convictions may enhance his sentence.

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What must the prosecution prove to revoke probation or deferred adjudication probation? Why does the prosecution not oppose deferred adjudication?

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Prosecution must prove by PPD (not BRD) that D violated any condition of his probation. Prosecution should show that D is on probation, and can demonstrate this by actual documentation or the judge may take judicial notice of the fact that D is on probation, and what condition was violated.

The lower standard of proof PPD at revocation hearings allows D to be more easily incarcerated once he violates the terms and he may be incarcerated up the maximum amount of his sentence (he gets no credit for the amount of time he successfully served on probation).