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103 Cards in this Set
- Front
- Back
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Texas courts
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JP Court- Fine Only
Municipal- Fine Only County Court- Class A and B misdemeanors that have jail time District Court- Felonies (Our Jurisdiction has special dedicated Criminal courts), few official conduct misdemeanors but mostly felonies. |
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arrest?
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Article 1 Section 9- Same as 4th amendment- All Arrests are seizure of the person. A person is seized when they are put in restraints, or taken into custody, basically when a reasonable person would not feel free to leave.
All full arrests must be supported by probable cause (PC) |
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two different kinds of arrest
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1. Full custodial Arrest (Need PC)
2. Investigative Detention (Terry stop) (Need reasonable suspicion (lesser standard)) |
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To arrest in Texas, you need:
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1. PC and warrant
2. PC and statutory exception |
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warrant
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Warrant 15.01: Written order from a magistrate directing peace officer (PO) to go out and bring accused in to be dealt in accordance with the law.
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warrant requirements
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1. “In the name of the State of Texas”
2. Name of the person or description if name unknown 3. Specific Offense 4. Signed by the magistrate |
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arrest warrant
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Arrest Warrant is based on a complaint, a sworn affidavit setting forth PC.
Requisites of the complaint (affidavit): 1. Name of the accused 2. Show accused committed the offense (where PC is) 3. Time and place of commission 4. Signed by the complainant |
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probable cause in warrants
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PC must be within the 4 corners of the affidavit including anything attached to the affidavit but incorporated therein.
Texas exclusionary rule 38.23: illegally obtained evidence cannot be used at trial. |
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probable cause four corners
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Exception: In Texas “good faith” exception only applies to administrative or typographical error
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arrest after charges have been filed
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Arrest after Charges have been filed: effective through a Capias (Capias and warrant have no meaningful difference). Difference: Capias issued after charges have been filed, such as after a grand jury (GJ) has indicted and the Δ is not already in custody.
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arrest w/o warrant--exception
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(1) on view arrest
(2) suspicious places (3) assault arrest (4) family assault (5) violation of protective order (6) voluntary statement (7) felony exigent circumstances (8) traffic & misdemeanor arrest |
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residence rule re: warrantless arrest
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No entry into a residence (general rule)
Unless consent or exigent circumstances. Probably limited to felony exigent circumstances (not clear). |
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warrantless searches re: residences
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Search without warrant is unreasonable. Except:
Terry Searches: based on reasonable suspicion. But there has to be specific reason to think that someone is armed or presently dangerous Requisites of a Search Warrant: 1. Have to state specific person, place or thing (items) to be seized. 2. Commands the officer to search for those things 3. Dated and signed by magistrate |
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search warrant re: affidavit
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Must be supported by an affidavit. Affidavit sets up PC that the offense has been committed, that the property specifically described is evidence of the offense and the property searched for is going to be located at the specific place.
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appropriate subjects for a search warrant
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1. Contraband- evidence that is illegal to possess
2. Fruits and Instrumentality of a crime. a. Fruits of the crime are for example the proceeds of a bank robbery b. Instrumentality of a crime for ex: is the gun used in the robbery 3. Person- warrant to search a person 4. Mere evidence warrant- called “evidentiary search warrants” to search for mere evidence. (Stuff that is not included in the other 3 categories, just other evidence of a particular crime) Special Rules: a. Heightened particularity requirements b. Have to based on PC c. Everything you are searching for has to be specifically described d. Can only be issued by certain judges or magistrates i. Cannot get Evidentiary warrant issued for: 1. Any newspaper, news magazine, TV station or radio station. 2. For personal writings of the suspect (like a diary) |
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to accuse an officer of making a false affidavit
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1. Make a substantial showing that a false statement was knowingly made, or intentional or reckless. If satisfied:
a. Δ gets a Franks hearing: has a chance to present evidence (both sides) and court decides whether in fact the PO misrepresented or lied or was reckless in the statement used to get the warrant. If Δ wins: i. False statement excised from the affidavit and the court will decide if there is enough left to stand and create PC. 1. If there is: search warrant is good and evidence is all in. 2. If not: evidence will not be admissible. |
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execution and return of warrnats
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Execution and return of the warrant: Warrants must be executed within 3 days of issuance, excluding day of issuance and day of execution. Exception:
1. DNA warrants: to get blood specimen, have 15 days |
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How does a search warrant for a residence apply to searching a person?
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Search Warrants to search a premises does not automatically include search of persons on that premises, need additional cause for that.
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knock in announce rule
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Knock and announce rule also applies to search warrants as well. Not included in statute, but included in case law. Evidence won’t be suppressed if they don’t do it though.
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inventory re: effectuating search
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After effecting search, officers must leave an inventory copy of items taken/seized at the premises. Warrant itself is returned to the court. Exclusionary rule applies to search warrants. Illegally obtained evidence is inadmissible.
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"plain view" re: searches
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Plain View: Items in plain view while a search warrant is being executed can be seized, but those items have to be immediately apparent as contraband and be discovered inadvertently. Have to be contraband or fruits or instrumentalities, NOT mere evidence. May not seize mere evidence that is not described in an evidentiary warrant.
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searching w/o an arrest--various categories
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(1) incident to an arrest
(2) search incident to an arrest of a recent occupation (3) protective sweep (4) vehicle inventory (5) community caretaking (6) "check points" |
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searching without a warrant--various categoies
SEE PAGE 4 |
SEE PAGE 4
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self-incriminating statement
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Statements: Texas constitution and 5th amendment both protect self-incrimination. Statements implicating self-incrimination are not protected unless the government compels them. Voluntary statements of self-incrimination are not “protected”. Only applies to communication of thoughts, has to be testimonial, protects someone from testify against themselves. Does not include blood, hair, appearance in a lineup, not performing field tests, not self-incriminating because not communication of thoughts and not testimonial.
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res gestae re: self-incriminating statements
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No self-incrimination. If it is impulsive, spontaneous declaration and it is the res gestae of the offense or the arrest where during arrest it is blurted out, doesn’t trigger 5th amendment or self-incrimination clause
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res gestae re: self-incriminating statements
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1. Protection applies to suspects in custody who are compelled to answer questions by the government. So custodial interrogation (physical arrest, a reasonable person wouldn’t feel free to leave.) A statement would be involuntary if it is the result of a government promise or any kind of government coercion. A promise would have to some kind of positive promise of benefit, if prosecutor or PO offers some benefit and it is made by or sanctioned by one in authority and it is of such character as to influence the suspect to confess i.e. “if you confess, you can avoid the death penalty.” Those statements not considered voluntary. Violates ones right to not incriminate one’s self.
a. If Δ claims statement is not voluntary, than would be entitled to a Jackson v. Deno hearing that challenges the voluntariness of the statement. Δ has to motion to suppress evidence on the grounds that the statement was involuntarily made and the trial court holds a hearing and the burden is on prosecution to p |
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admissibility of written statement
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Written Statements: for person in custody are not admissible unless they show on the face of the statement that:
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Texas Miranda warning
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i. You have the right to remain silent.
ii. Anything you say can and will be used against you in a court of law. iii. You have the right to talk to a lawyer and have him present with you while you are being questioned. iv. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish. v. (Texas edition) You can decide at any time to exercise these rights and not answer any questions or make any statements. vi. Do you understand each of these rights as I have explained them to you? Having these rights in mind, do you wish to talk to us now? |
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waiver of Miranda warnings: when effective
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i. Knowing
ii. Voluntary iii. Intelligent |
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electronically recorded statements: admissibility
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Electronically recorded statements- only type of oral statement that is admissible (almost). Oral statements are not admissible unless:
1. It’s recorded 2. Warnings and Waiver have to be recorded on the recording 3. Recording must be accurate and not altered 4. All material voices have to be identified |
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compliance w/recorded statement standards
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Strict Compliance is required for recorded statements.
- For discovery purposes, state must give Δ a copy of the recording 20 days before proceedings begin, if a request is made. |
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unrecorded oral statements--when admissible ONE exception
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Only one instance where an unrecorded oral statement can be used, assuming it is result from a custodial interrogation when:
- The oral admission contains an incriminating statement that was previously unknown to the PO and after the statement was subsequently corroborated and tends to establish guilt. I.e.: suspect gives away location of stolen property, or the location of the instrument used to commit the offense. Oral statement will be allowed in those circumstances. |
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venue
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Venue: State has to prove proper venue by preponderance of the evidence. Presumption that unless it’s objected to at trial that venue is proper. Has to be disputed in the trial court or the record has to affirmatively show that the venue was improper.
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changing venue
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Change of Venue can be asked for by anyone; by courts own motion, Δ, or the state for different reasons. I.e.: Pretrial publicity is extensive and inflammatory.
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indictments re: multiple offenses
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1. Offenses can be joined in the same indictment if they:
a. Arise out of the same criminal episode 2. Defendants can be joined in the indictment if: a. They are being indicted for the same criminal episode i. Each offence has to be set out in a separate count ii. Only one conviction per count 1. Within that count, there can be separate paragraphs stating different ways the offense was committed, but one conviction per count. |
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misdemeanor charging instrument
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1. Called an information
a. Information is based on a complaint i. Complaint is an affidavit 1. For the purpose of showing notice or provide notice to the Δ. Does not require PC. |
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information requirements
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i. Begins with “In the name of and by the authority of the State of Texas” Ends with “Against the Peace and Dignity of the State”
ii. Presented by the proper officer iii. Name of the accused iv. Not barred by limitations v. Plain language vi. Signed by district or county attorney |
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felony charging process: indictment
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1. Indictments: By the Grand Jury. Unless waived, D can waive indictment and agree to be charged by an Information. Indictment- is a written statement by a grand jury (GJ) charging a person of a crime
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indictments requirements
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a. “By the name and authority of the State of Texas”
b. Show the court c. GJ is sitting in the proper county d. Describe the accused e. Venue f. Not barred by limitations g. Plain language h. “Against the Peace and dignity of the state.” i. Signed by GJ foreman |
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grand jury
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Selected from voter registration, drivers licenses, IDs, or the commissioner method (where the court appoints commissioners, who pick a group of people, who potentially get selected from the group by a judge to be Gjurors
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2 functions of a grand jury
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a. Screening Function- where the case is presented to them; GJ decides if there is PC to indict.
b. Investigative- GJ looks at “whispers of crime” and starts calling in witnesses to see if they can develop PC. Conduct their own investigation. |
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grand juries re: witnesses
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i. Call witnesses
1. Witnesses subpoenaed 2. Must answer all questions asked honestly a. Unless it violates 5th amendment privilege against self-incrimination. Not automatic, can claim it and get a hearing. Judge decides whether they have a 5th amendment privilege. i. If they don’t have privilege: they have to go back and answer. ii. If they do: judge may excuse from testifying or offer immunity to that witness 1. If immunity offered: witness has to take it and go back and answer. a. If they do not answer: they will be held in contempt of court and be put in jail. |
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grand juries re: suspect testimony
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1. Have to be informed of the offense
2. Given written warnings that they are going to be answering under oath and that they will be prosecuted for perjury (if they lie), 5th amendment right explained, right to council, have some time to consult with lawyer if needed |
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"true bill"
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1. Takes 9 members to vote out a “True Bill”
a. Prosecutor drafts the indictment b. Then a Capias is issued for the arrest of the subject, assuming he is not already in jail |
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defects in the charging instrument
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Defects in the Charging Instruments: Motion to set aside the charging instrument, waived if not objected to before trial. Facial defects can be fundamental or non-fundamental.
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defects in the charging instrument re: fundamental and non-fundamental facial defects
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Fundamental defects: are constitutional in nature; prosecutor has to go back to the GJ
2. Non-fundamental defects- Form or Substance Form- error in one or more of the 9 requisites of an indictment b. Substance- can be a missing element or insufficient facts |
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defects in the charging instrument re: amending
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3. Errors can be amended. Amending the charging instrument.
a. If done before day of trial: can be amended upon request i. If state wants to amend, D get 10 days to object or respond 1. If D objects to charging instrument but trial court allows amendment; state may amend but may not add an additional or different crime. ii. If State wants to amend after trial as begun: 1. If D objects: amendment is absolutely prohibited 2. If no objection: amendment is permissible even during trial |
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defendant's appearance before the magistrate
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Defendant’s appearance before magistrate: constitutionally required. Gershtein v. Pew. In warrantless arrests where the Δ is in jail without a warrant, 4th amendment says must have PC determined by a magistrate within 48 hours (federal). Texas does not have an exact proceeding addressing the issue. They meet the requirement by wrapping it into the Preliminary Initial Appearance (PIA aka magistration or 15.17 appearance). All arrested person, whether pursuant to a warrant or nor, goes before a magistrate, there are provision that allow for a face to face video
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magistrate duties
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1. Give notice of the charge
2. Inform Δ that they have right to council and consultation with council (right to council attaches when criminal proceedings are initiated (PIA is the beginning of the proceedings)). Not clear if council is required at that hearing, Texas takes position that it is not required, although under the Fair Defense Act process has already been started to get council by this time. 3. Essentially Miranda warnings 4. Right to have examining trial 5. Can discuss bail |
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bail
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Bail: If a person is in custody, and arrested without a warrant, and coming up to 48 hours without a PC hearing, the person must be released on bail not to exceed $10,000 for a felony and $5,000 for a misdemeanor. If they can’t come up with the money, have to let them go on personal bail. IT’s unconstitutional to hold them without the PC hearing. Normally get the hearing
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three types of bail
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1. Surety
2. Cash (bail bond) 3. Personal Bond |
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fixing the amount of bail: factors
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1. Likely to appear in court (bail is high enough)
2. Ability of Δ to make bail 3. Seriousness of the crime 4. Safety of the community and/or victim 5. Oppressive, cannot be used as a tool of oppression to deny bail 6. Other factors: ties to the community, family ties, work record, etc. |
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bail re: misdemeanor requirements
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In a misdemeanor, fine only case, there is no bond requirement, so person can be released without bond. After they have had their initial preliminary hearing, magistrate has solid identification, and date has been set for arraignment.
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denial of bail
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Bail can be denied in a capital case when the proof is evident that jury would convict and impose the death penalty (usually is). In non-capital felony case, bail can be denied if:
1. There are 2 previous felony convictions 2. If present felony was convicted while on bail for another felony 3. Δ has one previous felony, and current charge includes a deadly weapon State has to file motion seeking no bail within 7 days after the arrest. Bail can only be denied for 60 days; then have to reconsider bail or denial again. |
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challenging amount of bail
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Application of writ of Habeas Corpus. If write denied, Δ gets an accelerated appeal
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defendant's first trial court appearance
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Defendants First Trial Court Appearance (called first trial court appearance): could be next day if in jail, could be weeks or months if not.
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Texas Fair Defense Act
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indigent persons entitled to council in adversarial proceedings. Rules:
1. If formal charges have been or even before formal charges are filed, if a person has requested council; Court must appoint within 3 working days after court has received the request. Exception: a. In a county with a population over 250,000 (like Harris county): must appoint council in 1 working day |
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three kinds of pleas
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1. Guilty- results in conviction
2. No Contest- same as guilty except cannot be used against Δ to prove guilt in a civil trial for the same crime. 3. Not Guilty |
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For a plea to be valid, it must be:
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1. Voluntary
2. Intelligent 3. Knowing |
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For a guilty plea to be valid, it must be:
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1. D must be mentally competent.
2. Must be mentally competent to go to trial as well a. Test for competency is (presumed unless evidence in the record to contrary or obvious): i. D must be able to consult with their lawyer and assist in own defense ii. Have to have rational and factual understanding of the proceedings against D. Whether in guilty plea or for trial. |
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Texas felony guilty plea: requirements
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(1) admonishment
(2) substantiation (3) waiver of trial by guilty |
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Texas felony guilty pleas: admonishment
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a. Can be given orally or in writing
b. Explain range of punishment c. Point is for Δ to understand the consequences of the guilty plea d. Must inform that deal negotiated with DA does not bind the court i. If court does not accept it, Δ can withdraw the plea e. Must be told that there is a possibility of deportation, whether it applies or whether they do not know it applies f. Must be told that there is a limited right to appeal. If judge agrees to deal negotiated between DA and Δ and gives the sentence recommended; Δ may only appeal with the courts permission. (All subject to harmless error analysis and can first be raised upon appeal.) |
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Texas felony guilty pleas: substantiation
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a. State must introduce some evidence to support each element of crime charged. Can be done by:
i. Written or oral stipulation ii. Affidavit iii. Witness statements iv. Live witnesses. b. Judicial Confession- can be written or oral and D asserts that the allegations in the indictment are true and correct. |
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Texas felony guilty pleas: waiver of trial by jury
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applies to felony and misdemeanor cases. Constitutional right to have a jury trial. Guilty plea is a waiver of jury trial whether for felony or misdemeanor. Also (26.14) when the Δ pleads guilty a jury will sentence unless jury is waived. Waiver must be:
a. In person b. In writing c. Or in open court i. Δ must know what they are waiving. Waiving: 1. Right to trial 2. To confront witnesses 3. Waiving 5th amendment right to not incriminate themselves. d. Δ must be represented by counsel |
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misdemeanor guilty pleas
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Doesn’t even require appointment of council, no admonishments required, substantiation of plea is not required. Exception: Waiver of jury trial (in person, or in writing, or in open court); STILL REQUIRED.
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withdrawal of guilty plea
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Court must withdraw it, if in front of judge, when:
1. Evidence of innocence is injected into proceedings. 2. Δ makes a timely request for plea to be withdrawn i. Request is timely any time before the judge takes it under advisement or pronounces judgment. ii. If guilty plea is made in front of a jury. Must have substantiated the evidence. May be withdrawn before jury deliberates. |
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conditional guilty plea
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Guilty plea can be conditioned upon a court of appeals determination on the motion to suppress.
1. Δ files a motion to suppress evidence and the trial court overrules it, causing Δ to plead 2. Δ can make a conditional plea contingent on a court of appeals reviewing the motion to suppress 3. If court of appeals decided motion should have been granted 4. Δ gets to withdraw plea 5. Case goes to trial or gets dismissed if no other evidence |
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arraignment
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Shall have an arraignment in all cases with punishments that consist of jail time. Often waived because there is nothing to do, it’s already been done in other proceedings.
Purpose- is the formal reading of the indictment. Court reads the indictment, makes sure Δ’s name is correct, hears the plea (if not already done), appoints council (if not already done), sets bail (if not already done) |
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arraignment requirements
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SEE P. 10-11
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discovery
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Constitutionally required; Brady material. Could be exculpatory (favorable to Δ), could be evidence of mitigation, or impeachment of evidence but has to meet the standard; must be material (means there is a reasonable probability, that, had it been disclosed the outcome of the proceeding would have been different). Trial Court has discretion whether or not to order discovery. Δ has to show good cause that the material sought is exculpatory material, and that the state has it. Even then Δ only get own written statement and tangible things (documents, objects). Cannot get work product and no witness statements and cannot copy any child porn. When to file: statute allows discovery before trial and during trial. If filed before trial, must be done 7 days before trial. Court has to issue an order before any discovery can take place; courts order has to specify time, place and manner that the representative of the state will open the file and allow Δ to look at they stuff they need. Only reciprocal discovery duty in the rule is expert W. Upon request, the order to disclose expert W, have to disclose not more than 20 days before trial begins. No rule that state has to give W names, but very clear in the court of appeals that the state needs to disclose, upon request, the names of the W that the state plans to call at trial.
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jury selection
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Jury Selection: Names come from registered voters, DLs, IDs, has to be a fair cross section of the community; jurors have to be qualified (18, US citizen, no felony convictions, moral character.) May be exempt (over 65, student, caretaker); could be qualified but may be excused for a great reason, usually cannot be for an economic loss reason. Juror is absolutely disqualified if they have: a theft, or any felony conviction, misdemeanor or felony theft, any indictment for a felony or theft conviction, or if juror insane. Δ has to object before verdict is entered.
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challenge to the array
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• Challenge to the Array: Δ may object as to how a jury array was chosen. As in pre-trial and before jury has been selected for a specific case, when potential jurors are summoned to the large jury room, a Δ may object as to how they were chosen to be potential jurors if Δ feels that there was some sort of bias to select the group of potential jurors. Very hard to prove because can’t really know what’s going on in the room, must show that some bias method was used in selection
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defendant right to have jury shuffled
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• Once the panel gets into the court room and has been seated; Δ has an absolute right to have them shuffled once, can be asked for either party, but there will be only one shuffle between both parties prior to the commencement of voir dire
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jury size
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o 12 for a felony; up to 4 alternates
o 6 for a misdemeanor 2 alternates Challenges for cause are unlimited because a juror is either not qualified, or bias or prejudiced such that it would affect their verdict. If a biased it identified and the juror states that this biased will affect my verdict, court is suppose to stop right there and excuse the person for cause and no rehabilitation is allowed. If juror admits to be biased but that it will not affect their verdict, than rehabilitation is allowed (further questioning). |
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peremptory challenges
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• Pre-emptory Challenges- No reason necessary except Batson (race/gender) challenges.
15 pre-emptory challenges in death penalty 10 in felony 3 in misdemeanor Per Δ; get some extras if extra Δs |
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Batson challenges
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• Batson Challenges can be based on race or gender. Δ has to establish prima facie case that the challenges were based on race. If Δ has ability to show that, burden shifts to state to show that the strikes were made for race neutral reasons, if shown, burden shifts back to Δ to show that the race neutral reason is a pretext for discrimination.
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questioning in voir dire
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• Questioning in Voir Dire-
In capital case- Venire persons can be questioned individually Felony and Misdemeanor cases- questioned as a group |
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juror disability
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o Before jury is sworn- get another from the panel or alternate if selected.
o After sworn but before jury has been charged- alternate if available. If not a verdict may be rendered with less than 12; at courts discretion. o After jury has been charged and no alternate- both parties have to agree to render verdict with less than 12. Otherwise court declares mis-trial |
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defendant present at trial
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Trial: Δ has the right to be present at trial. Must be present at jury selection (if jury trial), or to enter a plea (if before the bench), otherwise Δ can be voluntarily absent. Order of proceedings in 36.01.
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witness subpoenas
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Witness Subpoenas- In county and out of county, no real difference except: in misdemeanor, character Ws are limited to one for out of county Ws. If subpoenaed W does not show up for trial, can seek a writ of attachment. Either side can do that.
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witness subpoena requirements
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1. Have to show they were properly subpoenaed
2. They didn’t show up for trial |
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"the rule"
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Invocation of “The Rule”: Upon request of the party court shall order W (or Victim) to be excluded from the courtroom when they are not testifying.
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motion in limine
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Motion in Limine- To contest or prevent anticipated prejudicial evidence or testimony from being introduced during trial
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discovery during a trial
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Gaskin Rule for W statements, also Texas rule of Evidence 6.15- after the W has testified, the party who did not call the witness may ask to have any statement the W has made relating to the subject matter of which the W has testified; can be
1. Written statement 2. Recorded statement 3. GJ testimony Has to be in that party’s possession and relate to the subject matter. The party who made the request, gets a recess in order to prepare cross examination. Failure to produce it: |
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discovery--failure to produce a witness
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1. Court can direct that the testimony shall be struck or
2. Can declare a mistrial |
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"use before the jury"
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The “use before the jury” rule: any party upon request has the right to examine any document that is used before the jury in such a way that its contents are an issue
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instructions to the jury
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Courts Charge; Instructions to the Jury- Judge delivers the charge prior to the closing arguments. Jury may take a written copy of the instructions back into the jury room; if they want to take other evidence, they have to ask for it. There is usually a charge conference in preparing the charge so the parties can enter their objections and exceptions and so forth. Δ can do that either by presenting a special instruction to be included or by just objecting to something that’s in there. Charge should track the indictment; the indictment should track the penal code (but doesn’t always). Statutory terms should be defined. Common meaning terms don’t have to be defined, not error if defined (as long as they are defined properly). Court of Criminal Appeals has said that reasonable doubt does not have to be specifically defined anymore.
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jury charge--requirements
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Jury charge must include:
1. An abstract statement of the law- just the law 2. Application paragraph- applying the law to the facts Δ is entitled to a jury instruction on any defense that is raised by the evidence |
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lesser-included offenses
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Lesser-included offenses: Proof for lesser-included offenses is contained in the proof of the greater offense; basically proof of the same or fewer facts will prove the lesser-included offense (less serious injury, less culpable mental state or it’s an attempt.)
Instruction should be given if there is any evidence in the record from which a jury could rationally conclude that if a Δ is guilty that they are guilty of only the lesser-included offense. There has to be something in the trial that essentially rejects the greater offense. |
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jury instructions re: objections
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Objections to the charge must be specific, not global.
Appellate standard for jury instruction depends on whether the Δ properly objected or not. • When a Δ properly objects to the charge and can show some harm, which is a much lower standard than harmless error, than the error requires reversal. • If Δ fails to object or if Δ states that they have no objection- Court can still consider but the record has to show egregious harm in order to get a reversal. |
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jury deliberations
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Jury Deliberations: Jury appoints a foreman. If they have a question, foreman prepares a note, give it to the bailiff, bailiff takes it to the court, court has to try to find the parties; if parties cannot be found, judge gives a written response and it get read into and becomes a part of the record.
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jury deliberations re: reexamining witnesses
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- If jury wants to reexamine a W (that doesn’t really happen), but if they want some testimony reread, can have only the relevant portion re-read, has to be a dispute over what the testimony said only then relevant portion is read and maybe cross examination that may be relevant.
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"Allen charge"
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- If jury undecided for a long time, court can give an Allen charge- essentially says “you think you can’t do this but anyone else who will have to do it will be in the same position you are in.” There is a charge approved by the court of appeals that is usually given. Jury verdict has to be unanimous at both guilt and punishment stage.
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jury deliberations re: capital cases
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(life or death are the only two choices)-
- If prosecutor is not seeking death penalty- upon a guilty verdict, judge imposes automatic life sentence, jury has nothing else to do. - If prosecutor is seeking death penalty- Jury will be asked two questions (three is relevant): 1. Is Δ a continued threat to society, likely to commit future violent acts? Has to be decided beyond a reasonable doubt (yes or no) 2. This question only applies if Δ is guilty as a party to the crime because they can’t get the death penalty unless they actually did the killing or they intended that somebody would get killed or they could anticipate the death. (yes or no). If yes to both or yes to 1 if 2 is inapplicable go to third question. 3. Is there any mitigating circumstance such that life without parole rather than death should be imposed, any reason not to impose death? (yes or no) - Jury comes back in with verdict- after verdict has been read aloud, if one side does not like the verdict, they may poll the jury to answer their vote individually. |
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punishment stage
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Punishment stage: Bifurcated System- anything that carries jail time can get a separate punishment stage, where the jury goes through the whole thing again and hear evidence and deliberate and return a verdict regarding punishment. Proof is quite loose, can be character evidence, opinion evidence. Δ has to have requested a notice of states intent.
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punishment stage--if judge assessing punishment
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If judge assessing punishment, judge can ask for a pre-sentence report which is prepared by the probation department which has all the circumstances of the offense which helps the judge decide if community supervision would be appropriate.
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community supervision--two kinds
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1. Regular community supervision (probation)
2. Deferred adjudication |
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regular community supervision--from a jury
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a. From a jury- only kind a jury can give; cannot do deferred adjudication. Four requirements
i. Punishment assessed by jury cannot be for more than 10 years ii. Δ has to have filed written pre-trial motion, swearing that never been convicted of a felony. iii. After the proof is presented; jury has to make a finding of true before being able to recommend community supervision. iv. Δ must be eligible (kind of redundant) 1. Jury can recommend community supervision in misdemeanor case, there is no 10 year rule 2. If jury recommends community supervision, judge must give community supervision. |
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regular community supervision--from a judge
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b. From a judge- three situations where cannot grant community supervision (CS).
i. Punishment assessed greater than 10 years ii. 3G offenses- 42.12 3G offenses; a long list of offenses, all about aggravated offenses (some of them jury can give CS for but judge cannot eg. Sexual assault) iii. If deadly weapon was used in connection with the offense. 1. Δ with prior felony can get CS from judge so long as present offense is not a 3G offense or one involving a deadly weapon. 2. Jury can give CS, if all other elements are met, if Δ used deadly weapon in current offense |
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deferred adjudication
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2. Deferred adjudication- only comes from the judge. Δ pleads guilty, but the plea is not entered, the case is never adjudicated. Upon successful completion charge is dismissed, there is no conviction for future sentencing purposes.
a. Difference between regular and deferred: conviction stays on record for upon completion of regular CS. “conviction” does not stay on record upon successful completion of deferred. |
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jury enhancement
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Enhancement: Penalty assessed at one degree greater. Habitual criminal requires two prior convictions. In order to get enhancement prosecutor has to prove:
1. The prior conviction including that Δ is the same person convicted in the previous case. 2. Sequencing- has to be prior: first one has to be a final conviction (means court of appeals has issued its writ or mandate affirming the case before the second happened which is also final before the third.) Jury instruction will contain an enhancement paragraph. Jury has to find true or not true to the prior convictions in the sequencing. |
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"sentence is pronounced"
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Sentence is pronounced- In a felony, Δ must be present, unless waived in writing. Possible for a victim impact statement by victim, but that does not happen till after punishment is assessed and announced by the court, if victim dead than a close relative can appear and make a statement, may not pose questions to the Δ, that statement does not become part of the record or transcribed
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reversible error in a criminal case
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Reversible error in a criminal case: for constitutional errors. Some constitutional errors are subject to harmless error rule. Appellate court has to find, beyond a reasonable doubt that the error did not contribute to the conviction. More important to know, that all those other errors talked about throughout the course that are subject to harmless error rule, if there is any other error, defect, irregularity, or variance that does not effect the substantial rights of the Δ must be regarded. In other words an error is only harmful if it affects the substantial rights of the Δ.
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