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19 Cards in this Set

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  • Back
Defendants have a right to have the trial jury (that determined guilt) also assess the punishment. In federal court, judge does this.

State cannot have jury assess punishment if D. fails to elect jury sentencing.

Jury sentencing must be invoked by D. when?
Timely election
In capital murder cases, a jury is required if the State seeks
the death penalty.
A D. who waived jury trial on guilt-innocence
may elect jury sentencing.
An election for jury sentencing must be filed
before voir dire of jury panel begins
At a punishment hearing before jury, the general rules of evidence apply. All matters may be proved that the trial court deemes relevant to punishment, including:
- D's prior criminal record
- D's general character
- D's reputation (and opinion testimony)
- circumstances of the offense for which D has been found guilty
- a juvenile court "conviction" ("adjudication of delinquency") based on felony conduct; and
- evidence of an extraneous crime or bad act by D, whether or not D has been convicted of that (proved beyond reasonable doubt)
D can request 2 kinds of notice of intent to offer certain evidence at punishment:

1) Rule 404(b) extraneous offense notice (at guilt-innocence); and
2) Art. 37.07 Sec 3(g) notice of extraneous offenses (punishment)

Notice must specify with regard to each crime or bad act:
1) Date on which it occurred;

2) County in which it occurred; and

3) Name of the victim
A D. may change an election regarding assessment of punishment after the finding of guilt. BUT...
the prosecutor must consent.
Jury can told about its ability to consider good conduct time and "existence" of parole time. BUT, you are not to consider either:
1) Extent to which good time may be awarded to this D; or

2) How parole law may be applied in this case
Judicial confession at punishment does not automatically waive ...
any errors committed during guilt stage of the trial. (rejection of DeGarmo Doctrine)
Legislature has authorized a mistrial on punishment only when..
jury can't reach a unanimous verdict on punishment
Sometimes after imprisonment assessed, its execution is suspended and D. is placed on "community supervision" (probation)

D. is eligible if punishment assessed does nto exceed 10 years imprisonment.

Community supervision can be revoked...
1) Violation of condition of community supervision must be shown, but only by proof of a preponderance of the evidence,

2) No jury trial is held

3) D is required to serve prison sentence previously assessed (or as reduced by trial judge).

If D. successfully completes community supervision, trial court has discretion to completely dismiss charges
To hvae jury consider recommendation of community supervision, D. must have filed pretrial application.

List 2-3 requirements for felony probation application.
- In writing;
- Sworn to; and
- States that D. has not been convicted of a felony
Neither judge nor jury can give a D. community supervision in certain situations, primarily if conviction is for murder or sex offense with child under 14.

Jury but not judge can give community supervision if:
- Conviction is for a Section 3g offense; or
- Deadly weapon finding is made
Section 3g offenses: murder, capital murder, indecency with child, first degree felony injury to a child, aggravated kidnapping, aggravated sexual assault, sexual assault, aggravated robbery, certain drug offenses
What is "shock" community supervision?
Sentence of imprisonment is imposed and D. begins to serve it. Later, during first 100 days of the term of imprisonment, D. is brought back to court.

Sentenc eis then suspended and D. is placed on community supervision.
Deferred adjudication is a procedure under which the trial court places the D. on community supervision without actually finding the D. guilty, because it "defers" a finding of guilt.

When is a D. eligible for deferred adjudication?
1) Charge is an offense other than DWI, FWI, BWI;
2) Intoxcated assault; or
3) Intoxication manslaugher; and

D. enters a plea of guilty or nolo contendere.
Trial court procedure for deferring adjudication:

1) Receive D's plea of guilty or nolo contendere;

2) Hear evidence;

3) Find that the evidence substantiates D's guilt; and

4) Inform D of the consequences of violating community supervision- D could get any sentence in the statutory range
If D. proved to have violated conditions of community supervision, trial court can "proceed to adjudication" and find D guilty

If D successfully completes community supervision, the charges are automatically dismissed
*** multiple exams***

Compare deferred adjudication and probation.
D must be found guilty before probation can be imposed; deferred adjudication involves no such finding.

D. can get regular probation after a plea of not guilty; deferred adjudication requires a plea of guilty or nolo contendere

If deferred adjudication probation is "revoked," D can be given ANY sentence in statutory range; if regular probation is revoked, D gets sentence previously assessed.
Pronouncing the assessed sentence ("formal sentencing") is done by the trial judge.

Before pronouncing the judge is to ask the D...
whether he has anything to say as to why sentence should not be imposed.

Only reasons why an assessed sentence is not to be prounounced are:
1) D has received pardon
2) D. has become incompetent
3) D. is not person convicted of crime
Victim (or relative of deceased) has a right to make a statement to the court and D. Permitted only after ...
Sentence has been pronounced.

Victim may not direct questions to the D. during the statement.

Court reporter may not transcribe the statement.