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90 Cards in this Set

  • Front
  • Back
What is an arrest?
Seizure of the person and taking into custody to answer a criminal charge.
What are the three statutory requirements to arrest with a warrant?
Name or description of person to arrest

Name offense

Signature of magistrate
What is the four corners rule with respect to warrants?
Magistrate in issuing the warrant can't consider anything outside the sworn affidavit.
What may be issued in lieu of an arrest warrant?
A summons.
When may an arresting officer break down a door?
If making a felony arrest and notice is refused.
What are the nine exceptions to the warrant requirement (all of which require probable cause)?
a) Offense committed in officer’s presence;
b) Assault committed and further injury likely;
c) Violation of protective order (arrest mandatory if in officer’s presence);
d) Family violence offense;
e) Prevented or interfered with an emergency call;
f) Felony, breach of peace or public intoxication and found in a suspicious place;
g) Felony and chance of escape without time for warrant;
h) Probable cause by his voluntary statement;
i) Possession of stolen property discovered by officer.
Who may issue a warrant in Texas?
Any magistrate, defined as any judge or the mayor or recorder of an incorporated city or town.
What is a combination warrant?
Allows arrest of a person AND search of a place.
What are the categories of items subject to arrest through a warrant?
Contraband

Fruits of a crime

Instruments of crime

Evidence

Persons
Who can issue a 'subsequent evidentiary warrant'?
District, Appellate, and Supreme court judges as well as the court of criminal appeals.
How long after signature must a search warrant be executed?
Three days not including the day of issuance or the day of execution?
How long after signature of a warrant for a DNA specimen must it be executed?
Fifteen days.
What are the extra requirements in Texas to the standard MIRANDA warning?
Right to terminate the interview at any time

Showing that accused knowingly, intelligently, and voluntarily waived rights
What courts have original jurisdiction over 'fine-only' offenses (Class C)?
Municipal courts and justice of the peace courts.
What courts have jurisdiction of misdemeanors punishable by jail time and appeals from JP and municipal courts (Class A and B)?
County courts
What courts have exclusive original jurisdiction over felonies and misdemeanors involving official misconduct?
District courts.
Who has exclusive original jurisdiction over traffic tickets?
Municipal courts
What is the highest appellate court in Criminal cases?
Court of Criminal Appeals
What court has automatic jurisdiction over death penalty cases?
Court of Criminal Appeals
Where is venue proper for a criminal trial?
The county in which any part of the criminal offense occurred.
What is the proper venue if part of the criminal offence occurs outside of Texas?
County in which offender is found, OR

County where some element of the crime occurred.
Who has the burden of proof regarding venue?
The state by a PREPONDERANCE OF THE EVIDENCE
What must be attached to a defendant's motion to change venue?
Two affidavits from credible persons stating that a defendant can't get a fair trial in the venue where the case is pending.
What is the statute of limitations for presenting a felony indictment in Texas?
Three years of the commission of the offense
What is the statute of limitations for presenting a misdemeanor indictment in Texas?
Two years of the commission of the offense
What is the statute of limitations on murder, manslaughter, sexual assault, or child abuse?
No limit
What are the five factors Texas courts consider in determining the amount of bail?
• High enough to assure presence
• Not used to punish
• Nature and circumstance of the crime
• Ability to make bail
• Safety of the victim and community
When may bail be denied for up to 60 days?
If there is substantial evidence of a felonious guilt, AND:

• Two prior felony convictions;
• Felony committed while on bail;
• Felony involved use of a deadly weapon; OR
• Felony is a violent or sex offense while on parole/probation
When may bail be denied until trial?
• Clear and convincing evidence that defendant is guilty of murder and will receive death penalty

OR

• Family offender has had bail revoked for violation of bond condition regarding safety of victim or safety of community.
What is the petition the defendant should file if he believes the bail terms are too onerous?
Writ of Habeas Corpus
What are the qualifications of grand jurors?
• Citizen of the county and registered to vote
• Sound mind and good character
• Able to read and write
• No prior conviction of felony or misdemeanor theft
• Not related to defendant
• Not served on the grand jury in past year
• Not a complainant in any matter to be heard by the grand-jury
How many grand jurors must agree to indict a defendant?
Nine
When may an indictment be set aside due to the presence of an unauthorized person?
If the unauthorized person was present for the deliberations or voting.
What is the formal charging document for a felony?
Indictment
What is the formal charging document for a Class A or B misdemeanor?
Information
What is the formal charging document for a Class C misdemeanor?
Complaint
What is the default plea entered if the defendant remains silent?
Not guilty.
What is the test for effectiveness of counsel?
• Acts and omissions outside of professional competence, AND
• Reasonable probability that result would have been different
What is required of a court when the defendant waives the right to an attorney?
• Judge must warn of the dangers of self-representation, AND
• Waiver must be clearly knowing, and voluntary
What is the plea of 'former jeopardy'?
• Former acquittal;
• Former conviction;
• Improper termination of first trial; AND
• Collateral estoppel
Why would a defense attorney file a writ of Habeas Corpus rather than enter an appeal of 'Former Jeopardy'?
Delay going to trial - if the writ is denied, they can appeal the writ rather than proceed to trial.
What are the statutory admonishments that must be delivered to a defendant who pleads guilty?
• Range of punishment
• Whether plea bargain will be followed
• Court permission will be required to appeal plea
• Possible deportation or denial of citizenship
• Requirement to register as sex offender
How can a failure to give an admonishment to a 'guilty pleading' defendant not be fatal?
Harmless error if the failure did not affect the defendant's decision to plead.
What are the required determinations of the court if a defendant pleads guilty?
• Determine whether defendant is mentally competent
• Defendant has waived a jury trial
• That there is evidence substantiating guilt in the record
When must a defendant file pleadings in relation to a pre-trial hearing?
Seven days before the hearing.
What does a defendant file if it wants to raise a defect in the indictment/information?
A written motion to quash, before trial, alleging the specific defect.
What must the defendant establish to be entitled to discovery against the state?
• Good Cause
• Materiality
• Evidence in possession of the state
What is the STATE allowed to discover from the defendant?
• Expert witnesses to be called at trial

• 20 days notice of intent to raise insanity defense
What is the Gaskin Rule?
The party not calling a witness has the right to see any statement made by the witness relating to the case after the witness has testified on direct examination.
What is the Brady Rule?
Prosecution has a due process duty to disclose material and favorable evidence to the accused.
When is an opposing party entitled to see documents used to refresh a testifying witness's recollection?
Whenever such a document is used.
If a motion to quash is granted for an indictment on a notice defect, what is the result?
State may amend the charging document (but can't charge a new or different offense, or prejudice the defendant).

Then defendant has 10 days to respond.
What does a defendant file if it wants a new judge?
Motion to Disqualify the Judge:
• Judge is injured party
• Related
• Counsel for the state or the accused
• Bias or partiality
What must a Motion for Continuance because of absence of a witness show?
diligence in obtaining attendance,

materiality of the witness’s testimony,

no motive to delay,

absence not procured by the defendant, and

attendance can’t be obtained before trial.
What is a Motion for Community Supervision OR Motion for Jury Sentencing and when must either be made?
Allows JURY to set the sentence, but motion must be made before trial.
What is filed to prevent physical evidence from being admissible or a confession should not be allowed due to unlawful obtainment?
Motion to Suppress
What is an alternative available to a defendant whose motion to suppress is denied by the judge?
The issue of admissibility may be submitted to the jury.
What is the test for whether a defendant will succeed on a Incompetency Motion?
Sufficient present ability to consult with his attorney AND

Rational and factual understanding of the proceedings against him
What is the difference between incompetence and insanity?
Insanity is determined at the time of the criminal act - finding leads to an acquittal.

Incompetency is determined at the time of the trail - finding leads to institutionalization.
How many jurors in a felony trial?
Twelve
How many jurors in a misdemeanor trial?
Six
What are the three questions asked by the judge to determine whether a jury has been 'Stacked'?
• Whether they are qualified voters;
• Whether they have been convicted of a felony or theft;
• Whether they have been accused of a felony or theft
What is the difference between voir dire in a normal case from voir dire in a capital case?
The jurors for a capital case are questioned individually outside of the presence of the others.
How many peremptory challenges for each side in a Capital Case?
Fifteen
How many peremptory challenges for each side in a Non-Capital Case?
Ten
How many peremptory challenges for each side in a Misdemeanor Case in district court?
Five
How many peremptory challenges for each side in a Misdemeanor Case in any court NOT the District Court?
Three
What is a TEXAS judge prohibited from doing in the jury charge?
Commenting on the testimony or weight of the evidence.
What is the effect of failing to object to a jury charge AT TRIAL?
If objected to, the case may be reversed on appeal for evidence that defendant suffered SOME harm.

If not objected to at trial, conviction will be reversed only if it caused EGRIGOUS harm.
What are the three potential verdicts in Texas?
Guilty, Not Guilty, Not Guilty by Reason of Insanity
What happens if a jury member dies or becomes disabled AFTER the jury charge is read?
Mistrial is declared and the jury is discharged.
What happens if there is a 'hung jury'?
Judge may declare a mistrial and discharge the jury.
When may a Motion for a New Trial be granted?
If material favorable evidence to the accused is discovered after trial, OR

Another occurrence denied the defendant a fair trial.
What is the effect of a Jury verdict that is incomplete on sentencing?
The judge should declare a mistrial on the issue of sentencing only, and impanel another jury.
What may a jury consider with respect to sentencing?
Anything the court deems relevant: including prior criminal record, reputation or opinion testimony, circumstances of the crime, extraneous offenses or bad acts (but only if proven beyond a reasonable doubt).
What are the two types of 'Community Supervision' (probation)?
Suspended Sentence: Sentence is pronounced but is suspended on condition (available if term < TEN years; no prior felonies; not a serious crime).

Deferred Adjudication: No sentence, but defendant pleads and proceedings are suspended on condition of compliance with conditions.
How long does the STATE have to appeal the trial judge's dismissal of indictment?
Twenty days after the order or ruling was entered.
How long does the DEFENDANT have to appeal an order of the trial judge?
Sixty Days
What is the effect of a reversal of a court order due to error made in the GUILT-INNOCENCE phase?
New trial.
What is the effect of a reversal of a court order due to error made in the PUNISHMENT phase?
New trial on punishment only
How is Habeas Corpus used post-conviction?
To argue the conviction was illegally obtained.
When must a petition for writ of habeas corpus be filed in Death Penalty Cases?
180 days after counsel is appointed, OR

Within 45 days of the state's brief of appeal, whichever is later.
What is the recent outcry rule?
Uncorroborated testimony of the victim of a sexual offense is admissible if the victim told someone about it within ONE year of the alleged offense.
Who may claim the privilege of marital communications?
Either spouse.
Who may claim the general 'spousal privilege'?
Only the spouse being called as a witness.
What is the Texas 'Accomplice Witness Rule'?
The state cannot get a conviction solely on the uncorroborated testimony of an accomplice but must have some other evidence connecting the defendant to the crime.
What is the time frame for filing a discovery request after notice of a pre-trial hearing?
When a criminal case is set for a pretrial hearing, if the defendant has been given at least 10 days notice of the hearing, any preliminary matters not raised or filed by the defendant seven days before the hearing will not thereafter be allowed to be raised or filed, except by permission of the court.
What must the judge include in the jury charge?
The judge is required to give a written charge to the jury setting forth the law applicable to the case, including instruction on each element of the offense and any statutory definition that affects the meaning of any element of the offense.
What is an 'Application Paragraph' in a jury charge?
The trial court is required to apply the abstract statements of law to the facts of the case in the jury charge.
When should a motion for new trial be filed?
No later than 30 days after the date the trial court sentenced the defendant.