Texas Crim-Pro & Evidence

Front 1

an arrest is a __ under the 4th Amendment.

Back 1

SEIZURE

Front 2

When is a person arrested?

Back 2

• Person arrested when actually placed under RESTRAINT or taken into CUSTODY by officer or other person

Front 3

Who can "sign" an arrest warrant?

Back 3

• Any Magistrate may issue an arrest warrant

-can’t sign until probable cause (PC) is given by officer filing sworn affidavit.

Front 4

Application requirements for an arrest warrant?

Back 4

• Application made by officer by filing sworn affidavit with Magistrate
• Affidavit must establish probable cause to believe that named or described individual committed particular offense at particular time and place (who, when, where)
• “Four Corners” review on appeal ( magistrate can only look to the four corners of the affidavit in deciding to issue the arrest warrant)

Front 5

What are three requirements of an arrest warrant?

Back 5

• specify NAME of person ordered to be arrested (if name unknown, "reasonably definite description" [FNU/LNU not sufficient])

• statement of PARTICULAR OFFENSE the person is accused committing

• SIGNATURE of issuing magistrate and office

Front 6

Gerstein hearing?

Back 6

if ∆ arrested w/out a warrant, fed-con-law req’s ∆ be taken promptly before mag for a probable cause hearing (more than 48hrs is presumptively unreasonable)

Front 7

Combination search and arrest warrant?

Back 7

search warrant may order person's arrest if affidavit establishes PC that person has committed a crime.


Advantage? -Officer can arrest suspect whether or not search has been carried out, and regardless of the outcome of that search.

Front 8

Must arresting officer physically posses the arrest warrant when the arrest is made?

Back 8

Arresting officer need NOT actually possess arrest warrant, but an arrest warrant must actually EXIST.

cf, cop must have search warrant in possession.

Front 9

How Arrest Warrant Is Executed?

Back 9

officer or person executing arrest warrant SHALL "w/out unreasonable delay" take person or have him taken before the mag named in warrant..

Front 10

a warrantless arrest must fall under one of the __ exceptions.

Back 10

statutory

Front 11

What must all arrests (w/ or w/out warrant) be based on?

Back 11

PROBABLE CAUSE

-PC is whether it was likely ∆ committed offense

Front 12

if an Offense is committed in presence or within view of officer, must officer get an arrest warrant before arresting ∆?

Back 12

NO arrest warrant req'd if any arrestable offense is committed in presence or "IN VIEW" of officer.

note: in view includes all senses, but it must relate to a specific person.
ex: smell weed coming from a particular person = in view

Front 13

Issues regarding “In View” exception to warrantless arrests:

(i) What if outside Officer’s jurisdiction?

(ii) Is observed conduct a crime?

(iii) Must it be immediately apparent?

Back 13

(i) if it’s a crime other than a traffic violation

(ii) must be a crime

(iii) must be immediately apparent they are committing a crime; it can’t grow…

Front 14

"Suspicious Place" exception to warrantless arrest.

-Person found in suspicious place where probable cause exists that person has committed: (1of4)

Back 14

- a felony,
- disorderly conduct,
- related breach of the peace offense, or
- public intoxication

Front 15

∆ violates a protective order, is a warrant req'd to arrest him?

Back 15

a violation of a protective order is a statutory exception.

*Officer MUST arrest if the protective order is violated in the officer’s presence

Front 16

Family Assault exception to arrest warrant?

Back 16

(i) Person commits assault resulting in bodily injury to a member of family or household

note: this exception differs from the "assault" exception, which is:
-Person has committed assault resulting in bodily injury AND officer has probable cause to believe it’s going to happen again

Front 17

Certain officers can arrest outside their jurisdiction for any offense:

ex: Sheriffs, Constables, Marshals, and members of DPS

Back 17

but city cops cannot arrest outside their jurisdiction.

ex: HPD cannot arrest in Angleton, but a Harris Cnty Sheriff could arrest in Brazoria Cnty

Front 18

Warrantless Entry Into Home :

-Officer may not enter residence to make warrantless arrest unless:

Back 18

• CONSENT of resident
-(appearance of authority is enough, e.g., person says they live there and has a key but doesn’t actually live there)

•EXIGENT circumstances (emergency)
-chasing in hot pursuit would be an emergency

Front 19

If officer is in pursuit of suspect, does officer have to stop at the door if suspect runs into house?

Back 19

NO. b/c no time to procure warrant

hot pursuit = exigent circumstance / emergency

Front 20

What is a Capias? explain fully.

Back 20

a Capias is a WRIT issued by a judge that DIRECTS any peace officer to ARREST person accused of offense and BRING him before the court IMMEDIATELY (or on date specified in writ)

Front 21

Contents of Search Warrant:

•Runs in the name of “The State of Texas”

•Identifies:
-item to be seized or
-describe person, place or thing to be searched

•Commands Peace Officer to search forthwith

•Dated and signed by Magistrate

Back 21

Contents of Search Warrant:

•Runs in the name of “The State of Texas”

•Identifies:
-item to be seized or
-describe person, place or thing to be searched

•Commands Peace Officer to search forthwith

•Dated and signed by Magistrate

Front 22

Application/Grounds for Search Warrant:

•Affidavit must be __ and set forth __ facts establishing probable cause.

PC = object of search is probably there (more likely than not)

Back 22

sworn; substantial

Front 23

Do the rules of evidence apply at an examining trial?

Back 23

Yes.

∆ also has a rights at examing trial to:
-be present,
-counsel
-cross Ws
-subpoena and present Ws
-make UNSWORN statements or take stand

Front 24

Intersection: Examining Trial & Grand Jury

•If judge finds NO probable cause, ∆ may still be __.

•Once Grand Jury returns indictment, right to examining trial is __.

Back 24

• indicted
• extinguished

Front 25

What is the purpose of a grand jury?

Back 25

decide whether probable cause exists.

•TX const requires grand jury for all FELONY charges.

Front 26

Grand jury may inquire into all __ offenses.

Info can come to grand jury from prosecutor or any __ source.

Back 26

indictable
credible

Front 27

Hypo: Your client has been charged with sexual assault of a child.
You have evidence that during the applicable time frame, your client was out of the country on an 18-month oil company contract.

Q1: How might you bring this material to the attention of the Grand Jury?

Q2: What are the advantages / disadvantages of waiting until trial?

Back 27

A1: file a “grand jury packet”

A2: •advantage to wait till trial,
- no risk of double jeopardy

•advantage to do pre-trial,
- avoid indictment,
- avoid adverse publicity

Front 28

In Texas accused has right NOT to be prosecuted for felony except on Grand Jury indictment.

•Can waive indictment by grand jury if __ defendant.
-in order to waive, ∆ must be represented by counsel & in open Court or in writing.

•If indictment waived, prosecution proceeds on “information”

Back 28

Non-capital

•∆ charged w/ capital offense canNOT waive indictment by grand jury.

Front 29

Can waive indictment by grand jury if __ defendant.
in order to waive an indictment:

(i) ∆ must be represented by __;
(ii) waiver must be in __ or in open court or in writing;
(iii) waiver must be __.

Back 29

counsel;
writing;
voluntary.

*remember NO waiver for ∆ charged w/ capital offense

Front 30

Requisites of Indictment:

•Begin with the phrase?

•End w/ the phrase?

Back 30

•“In the name and by authority of the State of Texas”

•“Against the peace and dignity of the State”

Front 31

Requisites of Indictment:

(i) Contain name of accused [or reasonably accurate description]
(ii) Show that offense is in jurisdiction of Court
(iii) state time of offense before presentment (within statute of limitations)
(iv) Set forth offense in plain words
-must show culpable mental state
(v) signed Grand Jury foreman

Back 31

v

Front 32

Requisites of Indictment:

Back 32

(i) Contain name of accused [or reasonably accurate description]
(ii) Show that offense is in jurisdiction of Court
(iii) state time of offense before presentment (within statute of limitations)
(iv) Set forth offense in plain words
(v) signed Grand Jury foreman

Front 33

Indictment differs from Information:

"Indictment" is written statement of grand jury accusing named person of a felony offense and must be signed by grand jury foreman, while an information is signed by prosecutor and must be supported by a sworn complaint presented to court.

Back 33

Indictment differs from Information:

"Indictment" is written statement of grand jury accusing named person of a felony offense and must be signed by grand jury foreman, while an information is signed by prosecutor and must be supported by a sworn complaint presented to court.

Front 34

What motion do you file to challenge the indictment?

Back 34

pre trial motion to QUASH

-aka file an exception

Front 35

How are persons selected to serve on a Grand Jury?

(two ways)

Back 35

(1) Key man system:
-District Judge selects COMMISSIONERS who in turn select Grand Jurors from the community at large.

(2) Petit jury system:
-Grand Jurors selected in the same manner summoned for CIVIL trials

Front 36

What motion do you file to challenge the make up of the grand jury (not representative of community)?

Back 36

Motion to SET ASIDE indictment.

-b/c if selected by commissioners it should represent, to best extent possible, a broad cross-section of the population as to race, sex, and age.

Front 37

What is purpose of an examining trial?

Back 37

purpose of examining trial is for the state to prove PROBABLE CAUSE to believe that ∆ committed an offense and therefore should be held to BAIL pending trial.

•if ∆ has already been indicted, he has NO right to an examining trial b/c it has been extinguished.

Front 38

How do you seek a reduction in bail?

Back 38

file a pretrial writ of habeas corpus in district court, claiming that bail was excessive and thus ∆'s custody is invalid.
MUST also say ∆ cannot meet the bail amount set and state an amount he could meet

Front 39

a Search warrant becomes stale in __ days.

Back 39

5

*search warrant must be executed w/in 3 days of issuance (excluding day of issuance and day of execution [5 days])

Front 40

the general rule is that NO written statement (confession) made as a result of custodial interrogation is admissible.

Q: when are written confessions admissible?

Back 40

written confessions are admissible if the following is shown on the face of the statement:
(i) accused was given proper Miranda-type warnings;
(ii) prior to and during the statement, accused knowingly, intelligently, and voluntarily WAIVED his rights;
(iii) confession is HANDWRITTEN by accused or SIGNED by him.

Front 41

Texas Miranda Warnings?

(Required WARNINGS)

Back 41

•right to remain SILENT and not make any statement at all and that any statement accused makes may be used against him at trial,
•any statement he makes may be used against him in court,
•right to have a lawyer present to advise him prior to and during any questing,
•if unable to employ a lawyer, right to have a lawyer appointed to advise him prior to and during any questioning,
•right to TERMINATE interview at any time.

Front 42

What are the five conditions that must be satisfied before an ORAL statement of accused, made as a result of custodial interrogation is admissible during criminal trial?

Back 42

(i) ELECTRONIC RECORDING made;

(ii) prior to stament but during recording accused is given MIRANDA-type warnings and knowingly, voluntarily waives those rights,

(iii) all voices on recording are IDENTIFIED,

(iv) defense lawyer is given accurate and complete copy 20 days prior to the hearing,

(v)Recording is ACCURATE and unaltered, operator was competent and machine was in good working order.

Front 43

NOT oral confessions:

•statements by ∆:
-in open court,
-before grand jury,
-or at examining trial

Back 43

additionally, excited utterances of arrest or offense are NOT oral confessions.

Front 44

What motion do you file if believe ∆ statement was involuntary?

Back 44

file a written, pretrial motion to SUPPRESS

-alleging ∆'s statement was involuntary b/c ...

Front 45

at a hearing on a motion to suppress what are the limits of prosecutor's examination of ∆?

Back 45

When ∆ files a written, pretrial motion to suppress challenging the voluntariness of ∆'s statement:
-Judge conducts hearing outside presence of jury (pre-trial or during).

-Jackson v. Denno hearing (codified):
•if ∆ is testifying about voluntariness of statements, ∆ is NOT subject to cross on other issues, including truthfulness of statement. Pros can only cross on voluntariness.
•by testifying on a preliminary matter, ∆ does not waive right to invoke right against self incrimination at other stages--can invoke 5th Amend at other stages

Front 46

Assuming at the hearing on the voluntariness of ∆'s statement (Jackson v. Denno Hearing) the trial judge rules that the statement was voluntary and denies the motion to suppress.

Q: does ∆ get a second bite at the apple to raise the issue of voluntariness?

Back 46

Yes, JURY CHARGE:

-even if trial court finds statement was voluntarily made, issue on voluntariness can be submitted to the jury.

*jury is instructed that: "unless it believes beyond a reasonable doubt that statement was voluntary, jury may NOT consider it for any purpose.

Front 47

Appointed counsel is entitled to minimum of __ days for preparation for trial?

Back 47

10

Front 48

Appointed counsel must make a reasonable effort to contact ∆ not later than the end of the __ working day after appointment date.

Back 48

first

*failure to do so and court my replace you

Front 49

What is an Ake motion?

Back 49

a confidential ex part request by appointed counsel or on behalf of an INDIGENT defendant alleging ∆ needs an expert and why it is relevant.

Front 50

Hypo: You decide that you need the assistance of a forensic criminalist to help you evaluate the physical evidence in the case. However, neither you nor Defendant can afford to hire an expert. (See, Ake v. OK)

Q1: What pleading should you file to obtain the assistance of such an expert?

Q2: What should you allege?

Q3: Must you disclose to prosecutor?

Back 50

A1: file an Ake motion

A2: requesting expert or investigator for ... that it reasonably necessary for the indigent ∆'s case.

A3: No, b/c it’s a sealed ex parte to the judge.

Front 51

How does ∆ attack his conviction regarding whether he had effective assistance of counsel?

Back 51

∆ will attack his conviction on the ground that his defense counsel violated his 6th Amend right to effective assistance of counsel.
To prevail ∆ must show both:
(i) DEFICIENT PERFORMANCE atty's actions fell bellow standard of care in industry and that it wasn't part of defense strategy, &
(ii)PREJUDICIAL IMPACT there is reasonable probability that but for atty's deficient performance the outcome would have been different

Front 52

1) What is bail?

2) who sets bail?

Back 52

•bail is security given by the accused that he will appear and answer the charge if real eased from jail.

•Judge

Front 53

what is a bail bond?

Back 53

written undertaking in which a surety agrees to be responsible for bail amount.

Front 54

How is bail amount determined?

Back 54

by looking to the bond amount "SCHEDULE"

note: magistrate must also consider five factors

Front 55

Assessing bail amount:

-statute requires magistrate to consider five factors in setting bail amount.

What are the five factors magistrate must consider?

Back 55

Statutory considerations in setting bail:

•Sufficiently high to give reasonable assurance accused will appear
•Not so high as to make it an instrument of oppression
•Nature of offense and circumstance under which it was committed
•Accused’s ability to make bail
•Future safety of alleged victim and community

Front 56

What is a personal bond?

Back 56

∆ is released without surety or other security.

if ∆ fails to appear = must pay full set amount.

-mag may impose reasonable conditions on the bail related to circumstances.

Front 57

NO bond is required if ∆?

Back 57

if ∆ has not been convicted of felony or a fine only misd NO bond is required.

Front 58

Texas Constitution allows denial of pretrial bail in five circumstances.

When can bail be denied?

Back 58

•Capital offense and State produces proof making it evident defendant will be convicted and sentenced to death

•Two prior felony convictions

•Currently charged felony committed while on bail for a another felony

•Deadly weapon used after being convicted of prior felony

•Violent or sexual offense while on probation or parole for a felony

Front 59

Hypo: ∆ has two prior felony convictions.
What are the procedures to deny him bail?

Back 59

pros applies for denial of bail, judge holds hearing, and state offers proof.

*order denying bail must be issued w/in 7 days of incarceration.
*order denying bail last 60 days, then automatically lapses.

Front 60

Order denying bail must be issued within __ days of incarceration.

Back 60

7

*order denying bail must be issued w/in 7 days of incarceration.
*order denying bail last 60 days, then automatically lapses.

Front 61

hypo: The court reduces Defendant’s bail from $750,000 for possession of a controlled substance to $10,000. Defendant’s grandfather informs you that although Defendant himself does not have the means to post bond, his grandfather will post it on Defendant’s behalf. The court tells you that if Defendant posts bail, the court will no longer allow Defendant to have the services of appointed counsel.
Q: Can the Court consider Defendant has posted or is capable of posting bail in determining whether Defendant is indigent?

Back 61

NO, unless there are some changed circumstances. Payment of bail by a third party may or may not change whether ∆ is indigent.

Front 62

Hypo: Bail was set, but ∆ couldn't afford to post bail. He has been sitting in jail for months and state is still not ready for trial.
Q: can ∆ be released on personal bond and if so when?

Back 62

if ∆ has been detained for 90 days on a FELONY charge and has yet to be tried he must be released on personal bond so long as ∆ is not:
-serving sentence for another offense,
-Incompetent,
-Detained for violations of conditions of previous release relating to victim or community safety

Front 63

in order for a jury to convict ∆ of a lesser included offense than the offense charged in the indictment.

Only if: (i) the offense is a lesser included offense AND (ii)

Back 63

there is evidence before the jury that the ∆ is not guilty of the charged offense but is guilty of the less serious offense.

Front 64

generally an indictment may only charge one crime, however, several crimes may be charged in one indictment if the crimes are part of the sam __ __.

Back 64

CRIMINAL EPISODE

note: violations of the same statute are considered part of the same criminal episode.

Front 65

how to challenge preemptory challenges of the opponent based on race, gender, age?

Back 65

BATSON challenge

*must be made before final juror is impaneled.
•opponent can rebut on gender neutral grounds.
•question is ultimately up to judge

Front 66

What are the three questions of whether qualified to be a juror?

Back 66

• qualified to vote in this county and state

•convicted of any theft or felony

•under indictment or investigation for any theft or felony

Front 67

List 5 challenges for cause:

Back 67

•witness in the case
•served on the grand jury in this case
•cannot read or write
•bias or prejudice in favor or against the ∆
•made a pre-conclusion in the case that will influence verdict

Front 68

how many challenges for cause does each side have?

Back 68

UNLIMITED

Front 69

an arrest based solely on anonymous tip lacks PC and is illegal unless:

Back 69

CORROBORATED by other RELIABLE info

Front 70

an arrest w/out PC doesn't require reversal of conviction, but any evidence seized pursuant to an illegal arrest is generally _____.

Back 70

excluded

Front 71

at an INITIAL APPEARANCE, magistrate shall:

Back 71

•inform ∆ of CHARGES;

•inform ∆ of right to COUNSEL or appointed if indigent;

•Miranda and right to terminate;

•set BAIL if authorized

Front 72

after a suspect is arrested (w/ or w/out warrant), suspect must be taken to appear before a magistrate "_________________," but not later than 48 hrs after arrest.

Back 72

"without unreasonable delay"

*initial appearance (PC hearing)

Front 73

Is evidence seized under "defective" warrant admissible?

Back 73

Yes. TX has a statutory good-faith exception.

Seizure is valid if:
-officer objectively relied in good-faith belief that warrant was valid
and the warrant was:
• issued by magistrate &
• be based on PC

*no PC = no good-faith

Front 74

What type of searches/seizures almost always require a search warrant?

Back 74

•houses

•electronic surveylance

Front 75

what is the test to determine if person has standing to challenge legality of a search is?

Back 75

did ∆ have a legitimate or reasonable 'expectation of privacy' in the place searched or property seized.

Front 76

circumstances of "diminished" expectation of privacy are:

Back 76

-prisons
-public schools
-administrative searches
-probationer's home

Front 77

if an involuntary statement of accused is erroneously admitted at trial, the analysis on appeal is the _______ test; if pros can prove beyond a read doubt the error did not affect verdict.

Back 77

harmless error

Front 78

whether a statement was voluntary is determined by the ____________ surrounding the statement

Back 78

totality of circumstances

Front 79

Miranda does NOT apply (no custodial interrogation):

Back 79

•routine traffic stop, "why were you speeding?"

•routine investigatory detention, "what happened here?"

•subject voluntary appears at station, is free to leave but submits to questioning.

•routine booking questions following arrest, "how much did you have to drink?"

Front 80

when is silence admissible or inadmissible to impeach ∆?

Back 80

•PRE-arrest silence is admissible to impeach.

•POST-arrest silence of ∆ is NOT admissible to impeach a testifying ∆.

Front 81

only reasonable conditions of release on bail are permitted. Examples of reasonable bail conditions are:

Back 81

•submit to home curfew.

•NO communicate w/ victim, or go near vic's home/work.

•can't go near specific locations.

•electronic monitoring

Front 82

Who may be present during grand jury proceedings?

Back 82

•pros and staff.
•Ws being examined.
•grand jurors.
•ct reporter.
•interpreter if needed

Front 83

When can a ∆ waive indictment by grand jury?

Back 83

•if rep'd by counsel,
•waiver in open court or written instrument,
•is voluntary,
•State not seeking death penalty.

*if waived, pros files "bill of information"

Front 84

How can ∆ get transcript of grand jury proceeding?

Back 84

• only available BEFORE trial

•if "particularized need" is shown

*b/c grand jury proceedings are 'secret'

Front 85

may grand jury requests prosecutor to appear and give legal advice concerning an investigation?

Back 85

Yes.
•Pros is entitled to appear and give legal advice if requested.

*Pros NOT allowed in during deliberation and vote.

Front 86

When is pros not allowed into grand jury proceeding?

Back 86

Pros is prohibited from communicating w/ grand jury during:
•DELIBERATIONS &
•VOTE

Front 87

∆ wishes to object to a defect or error in the form or substance of indictment. What and how can ∆ do?

Back 87

pre-trial motion to quash.

-failure to challenge defect before trial, forever WAIVES it.

Front 88

∆ thinks there was insufficient evidence to support his indictment. ?

Back 88

indictment may NOT be challenged based on insufficient evidence.

Front 89

Pre-Trial Discovery:

What is the general rule?

Back 89

criminal ∆s have no general right to discover evidence in possession of state prior to trial.

Front 90

Pre-Trial Discovery:

•on good cause ∆ may discover what pre-trial?

Back 90

•written confession/statement by ∆.
•photographs, video
•docs, papers, letters, books.
•"inspect" tangible objects

Front 91

for ∆ to discover items which are discoverable, the request must show:

Back 91

∆ Disco Requests:
•info must be MATERIAL;
•in state's POSSESSION;
•be in GOOD CAUSE
•material sought must be listed in statute (or be analogous)

Front 92

Pre-Trial Discovery:

•generally ∆ cannot discover what pre-trial?

Back 92

•police report (offense report)
•autopsy
•original tape recordings.
•fingerprints of accused.
•blood, urine, breath tests from vehicle into.
•list of prosecution Ws.
•expert W reports (but results should be disclosed prior trial)

Front 93

∆ seeks to challenge the charging instrument.
(i) procedure?

(ii) requirements?

(iii) if successful, what is state's options?

Back 93

(i) file motion to quash (or set aside).

(ii) must:
• specify defect,
• in writing,
• before trial

(iii) if challenge successful, pros has three options:
• proceed under new indictment;
•move to amend;
•appeal from dismissal

Front 94

Discovery motions must be filed __ days before a scheduled hearing.

Defendant has not less than __ days before that date to file.

Back 94

7

10

Front 95

What is the remedy if Prosecutor refused (violated) a permissible PRE-TRIAL discovery request?

Back 95

standard of review:
ABUSE OF DISCRETION

•did state act in bad faith

•if no bad faith probably harmless error.

Front 96

when is a crime considered part of the same "criminal episode"?

Back 96

where the crimes consist of violating the same criminal statute.