• Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off

Card Range To Study



Play button


Play button




Click to flip

Use LEFT and RIGHT arrow keys to navigate between flashcards;

Use UP and DOWN arrow keys to flip the card;

H to show hint;

A reads text to speech;

322 Cards in this Set

  • Front
  • Back

What is the jurisdiction of District Courts?

  • For felonies
  • misdemeanors that are lesser included offenses of charged felonies
  • misdemeanors involving official misconduct
  • transferred county prosecutions for misdemeanors punishable by jail time

What is the jurisdiction of county courts?

Misdemeanors over where penalties exceed a $500 fine, and where jurisdiction is not given to justice courts

Also appellate jdx from justice and municipal courts.

what is the jurisdiction of justice courts?

offenses punishable only by a fine of less than $500

what is the jurisdiction of municipal courts?

  • municipal jdx over city ordinance violations and
  • punishable only by fine
  • concurrent jdx with justice courts for offenses created by state law; and punishable by only fine

D is charged with aggravated assault and criminal trespass which is punishable in jail for up to one year, and a fine not to exceed $4000. What courts have jdx?

Only district court has jdx over aggravated assault because it's a felony

A county jdx has jurisdiction to conduct a trial for misdemeanor of criminal trespass, because it's beyond the jurisdiction of the justice and municipal courts.

what are all the steps of a felony prosecution?

  1. arrest
  2. presentment before magistrate
  3. examining trial
  4. consideration by grand jury
  5. presentment of indictment
  6. arraignment
  7. pretrial hearing
  8. trial: guilty/innocent
  9. trial: penalty
  10. pronouncement of sentence
  11. motion for new trial
  12. motion for arrest of judgment
  13. notice of appeal
  14. appeal to court of appeals
  15. review by court of criminal appeals
  16. habeas corpus

what is a writ of habeas corpus? to whom is the writ directed? what remedy does a writ seek? by whom may it be granted?

a writ of habeas corpus is a court order commanding someone with a person in custody to produce that person before the court and show why that person is being held.

a writ is directed to someone having another person in restraint. It should name the office of the person to whom it is directed.

the writ seeks to have custody of the person restrained produced.

the writ may be granted by Court of Criminal Appeals, the District Courts, the County Courts or a judge of any of those courts.


new section

Must a D charged with felony be taken before a magistrate?

Yes, the police officers must present him before the magistrate without unnecessary delay, but in any case within 48 hours of arrest.

What are the duties of the magistrate at such appearance?

inform suspect of :

  1. charges against him
  2. his right to remain silent and retain counsel
  3. right to appointed counsel
  4. right to examining trial
  5. with regards to police questioning: he has the right to remain silent, statements can be used against him; right to attorney while questioning; terminate interview with police;
  6. Set bail

Also, magistrate must determine whether there is probable cause.

What if D is arrested without a warrant. 48 hours after arrest no magistrate has seen him to determine probable cause. What are his rights?

He has the right to be released on bond, and to have bond set so that this can happen. Bond must not be more than $10K and personal bond if necessary to assure release.

what are the rules regarding bond and release on bond?

Release on bail required if no probable cause determination by magistrate for

  • for felonies: after 48 hours of arrest without warrant
  • for misdemeanors: after 24 hours of arrest without warrant

magistrate can delay release for no more than 72 hours

When can bail be denied?

bail may be denied if:

  • capital murder charge
  • D has two prior felony convictions
  • D is charged with felony while on bail for previous felony
  • D is charged with noncapital felony involving use of deadly weapon
  • D is charged with violent sexual felony while on community supervision or parole
  • D is charged with a sex crime committed against child and violated bail condition
  • D violated conditions on baile related to safety of victim or community

How can prosecutor go about getting bail denied?

must file motion for denial of bail in DISTRICT COURT (only). Any order bail must be issued within 7 days of suspect's apprehension

If bail is denied, how can D challenge this?

Immediately appeal to the Court of Criminal Appeals.

what can defense counsel do for D if things just drag on and on?

Denial of bail for noncapital felony can last only 60 days from the date of detention. At that point, the order denying bail is automatically vacated and D is entitled to have bail set. So D should make a motion to have bail set.

If prosecution does not seek to have bail denied, and magistrate sets bail at $500K, how can D seek reduction of bail?

  1. File application for writ of habeas corpus in District Court
  2. At hearing, introduce evidence showing that
  3. bail set was excessive
  4. he cannot meet bail set and
  5. amount of bail he can meet
  6. District judge may order bail reduced

IF not, D can before trial appeal to the Court of Appeals.

What are the three rules that a trial court should follow when fixing amount of bail, or determining whether bail set is excessive?


  • Likelihood of D appearing for trial
  • Ability of defendant to make bail
  • Seriousness of crime charged
  • Future Safety of victim and community
  • Required bail is not instrument of oppression

would it be better if bail is set as personal bond?

Yes, Under a personal bond an amount is set and D must pay if he fails to appear.

Bail bond requires that D pays the amount or get surety.

Can a magistrate impose conditions on release,e even after D is released on bond?

Yes, a magistrate may impose any reasonable condition on bail related to teh safety of the community or victim of the offense. IF condition is not reasonably related to the safety of the victim or community, it is not valid condition.

when MUST a D be released either on personal bond or reduced bond?

When the state is not ready for trial within:

  • felony cases: 90 days of arrest
  • Class A: 30 days
  • Class B: 15 days
  • Class C: 5 days

What is a examining trial and what it's purpose?

The examining trial is a pretrial hearing before a magistrate. Its purpose is to require the state to produce evidence showing probable cause to believe the defendant is guilty of a crime.

Any magistrate can hold an examining trial.

Who has the right the right to an examining trial, and what rights does the D have at it?

All felony defendants, but no misdemeanor Ds.

The D has the rights to:

  • Be present
  • be represented by counsel
  • have rules of evidence applied
  • cross-examine state witnesses, and
  • subpoena and present defense witnesses

Under what conditions, is D permitted to make unsworn statement at examining trial?

D cna make unsworn voluntary statement, but this must be done before any witnesses testify

When is a D entitled to examining trial?

IF D is charged with felony; and an indictment has not been yet returned.

Right to examining trial ends when indictment comes in.

What are the possible results of examining trial?

Magistrate may

  • discharge D for lack of probable cause
  • Admitted to bail or
  • arrest him and send him to jail

Even if no probable cause is established and D is released, the prosecution can still prosecute him. D is only free until he is indicted.

What must the prosecution do to charge a D with felony? what instrument must be used?

State must seek an indictment. To get this, a grand jury must vote to return a true bill. This requires a grand jury to find that probable cause exists to believe D is guilty. The foreperson will then sign the indictment and it will be filed with district court.

Can a D waive right to grand jury indictment?


Waiver of indictment is permitted in all prosecutions except for capital murder.

What are the three requirements of valid waiver of grand jury?

  • D must be represented by lawyer
  • waiver must be in writing or in open court
  • waiver must be voluntary

What happens if D waives the right to indictment?

H is charged by filing of an information (issued by state).

what is information, and how is it different than indictment?

An information is a pleading filed by the state charging the person named with a criminal offense--for misdemeanors (and when D waives right to grand jury in felony case). It differs from indictment in that it need only to be approved and signed by the prosecutor. An indictment must be approved by a grand jury and signed by the foreperson.

Also, an information must be supported by a valid and sworn complaint.

what is the charging instrument for Class C misdemeanors, what about traffic tickets?

For misdemeanors the state files a complaint, which itself is a charging instrument.

A traffic ticket itself may serve as charging instrument for traffic tickets.

Who selects the people who will serve on a grand jury?

prospective grand jurors are selected by one of the following:

  • grand jury commission appointed by district judge or
  • in the same manner as trial jurors are selected for civil cases

prospective grand jurors are summonded to the DC which tests their qualifications then impanels 12.

When can D's counsel challenge the composition of grand jury?

on the grounds that Code of Criminal Procedure requires grand jury commissioners select grand jurors who represent a broad section of the population considering race, sex or age. Thus D's counsel may challenge the array.

D's counsel may raise it later by a motion to set aside the indictment only if she can show that she did not have opportunity to challenge the array.

can grand jury compel a D to appear and give testimony regarding possible indictment?

Yes, the grand jury may compel D to appear by issuing a subpoena. But it cannot compel D to ansser questions if D invokes his privilege against self incrimination

If D appears voluntarily, what must occur before he is questioned?

  • He will be a suspect witness. thus before questioning he must be warned of
  • the offense
  • the county where offense was committed and
  • time of occurrence

proceeding must be recorded

If D is subpoenaed to appear, what warning must he receive if any?

As a subpoenaed suspect witness, he must be given the following warnings:

  • testimony will be under oath
  • false answer subjects him to perjury
  • he can refuse to answer incriminating questions
  • he has right to counsel
  • he has right to have lawyer present OUTSIDE the room and
  • testimony can be used against him in subsequent proceeding.

what other rights does D have if subpoenaed to appear?

he must get a written copy of warnings and

have reasonable time to obtain counsel

Does D have the right to cross-examine victim as witnesses during grand jury proceeding?

No. D has no rights to participate. He may appear as a witness. And with the grand jury's permission, he may be allowed to address the grand jury. BUt he may not cross-examine V. only prosecutor and grand jurors may examine W.

Are there circumstances under which defense counsel can appear and present evidence before grand jury on behalf of client?

Yes, a lawyer representing a suspect witness may address the grand jury if

!. the grand jury permits this; and

2. the prosecutor consents


can prosecutor give legal advice to grand jurors regarding elements of crime?

Yes. Grand jury may send for prosecutor and ask for advice regarding any matter of law.

how many jurors may serve on a grand jury, and how many must concur for person to be indicted?

a grand jury consists of 12 people, at least 9 must concur for a person to be indicted.

who drafts the indictment?

the prosecutor

can D have indictment set aside if unathorized person was present while grand jury was hearing evidence?

No. only authorized persons should be present, but dismissal is not required

an unathorized person was present while grand jury was deliberating or voting. Can D set aside indictment?

Yes, once the grand jury begins deliberating, the onlypersons who may be present are grand jurors. Violation of this requires dismissal of the indictment

can an indictment be challenged based on evidentiary insufficiency? e.g., the grand jury did not have enough facts to establish probable cause


what are the period of limitations for criminal prosecutions to be brought?

There are no limitations for

  • murder or manslaughter
  • leaving scene of accident
  • sexual assault
  • child abuse


misdemeanors: 2 years

felonies: 3 years

theft, burglary, robbery, kidnapping: 5 years

when is the period of limitations tolled?

while D is out of state and

while charging instrument charging the same offsens is pending against the accused and is later dismissed.

What are some general aspects of the indictment?

  • An indictment or information only alleges facts.
  • it does not identify the charged crime by name
  • it does not specify the statute creating the crime

what must the charge offense include?

  • facts constituting all elements of the crime
  • stautotury language is usually sufficient
  • any victim must be named

What are the required elements of an indictment?

  • must begin with " in the name and by authority of State of Texas"
  • name accused
  • set forth charge (all elements of offense)
  • specify enough details to give accused notice
  • allege the crime was committed on a date that is both within the statute of limitations and before presentment of indictment
  • allege commission of crime in a county within the court's jdx
  • conclude: against he peace and dignity of the state
  • be signed by (foreperson: indictment) (prosecutor: information)

What is the significance of the indictment for trial?

Determines those offenses for which the accused can be convicted. generally jury can convict D only of an offense charged in indictment. BUT sometimes, jury may convict of lesser included offense.

What is the issue with variance?

differences between indictment and proof, which leads to acquittal. see appeals

is a variance between date of pleading and the proof grounds for direct verdict?

No, because dates are not binding on the state at trial

What is a lesser offense?

  • it is proved by some, but not all of the same facts to prove the more serious offense; or
  • requires only less serious injury to the same person or property; or
  • requires less culpable mens rea ;
  • or it consists of attempt to commit the more serious offense

When is the only time that a jury should be instructed on an uncharged offense?

If the other offense is a lesser included offense of the crime charged and

the evidence before the jury is such that the jury could find that D is not guilty of the charged offense, and D is guilty of lesser offense

When should defense counsel request jury to to give option to charge for lesser offense?

it should be done after the evidence has closed and parties rested.

the judge will have to determine whether instruction for lesser offense is actually a lesser offense, and whether jury can find him guilty of that offense.

what effect does the conviction on lesser offense has on the originally charged offense?

D is acquitted of the offense.

How can D challenge that the name on the indictment is not the true name?

D must raise this issue at the arraignment.

D must specify his true name and

Judge will correct it.

Can D wait until trial to demand acquittal based on variance of the name?

No. Raising the matter at the arraignment is the only remedy available.

When must defect in charging instruments be raised?

Before trial, before the day of the trial.

except for fundamental defects: defects that prevent instrument from being an indictment or information can be raised at any time. e.g., person not specified as accused. cannot tell what crime was committed.

How can the state respond to motion to quash indictment?

By taking appeal; or obtaining new indictment; or amending the indictment.

what procedure is available for D to challenge indictment and at what stage of proceeding must he assert such challenge?

D can challenge the indictment by appropriate motion either

  • an exception to the form of the indictment or
  • exception to the substance of indictment or
  • file motion to quash . it must be filed the day before the trial begins.

what if D fails to timely assert challenge of indictment?

A defect of form or substance in an indictment must be raised in the trial court before trial. If it is not, it is waived.

if D makes challenge but motion is overruled, can the appeals court reverse conviction for new trial?

The conviction should be reversed only if D shows harm from defect in the indictment.

When are amendments to indictment allowed?

Any amendment is permitted at any time before the trial, if D does not object.

When amendments are sought before the day of trial?

general rule: any amendment is permitted whether it is of form or substance.

what are the limits on amendments?

  • limits: an amendment is not permitted over the D's objection if amendment
  • would amendment charges the D with a different or additional offense; or
  • prejudice by amendment

does D require notice of proposed amendment?

Yes. HE is entitled to notice. . The court must authorized the amendment, the prosecution cannot make amendment unilaterally.

what happens if indictment amendment is authorized?

D must be given a period of no less than 10 days to respond to the amended indictment for trial.

what if amendment is sought the day of the trial?

It will not be permitted, if objected.

can amendments be made after trial begins?

Nope, if objected. objection is sufficient to bar amendment.

how should prosecution go about amending indictment?

  1. state should file a motion to leave amend
  2. D must be given adequate notice of proposed amendment
  3. trial judge holds a hearing and decides whether to order amendment
  4. if authorized, the amendment must be made on the actual indictment.

if prosecution requires amendment 3 days before trial, and amendment is authorized, will the D be forced to start the trial in 3 days?

no, D is entitled to at least 10 days to prepare for trial on the indictment amendment. He is entitled to continuance. He must request this though.

what if proposed amendment seeks to change crime from attempted assault, to attempted murder?

The amendment should be overruled because the amendment would cause the indictment to allege an additional offense.

What is the arraignment?

is the D's first formal trial appearance. It is held before the court with jdx to hear the case. It has the following functions:

  • accused enters plea
  • fixes the D's identity and
  • judge appoints counsel

what please are available to criminal defendant?


not guilty

nolo contendere

who decides what plea will be entered?

the defendant

What are the decisions exclusively left for the defendant ?

what plea to enter

whether to have jury trial

whether to take the stand at trial

what if D wants to introduce evidence of insanity at the time of the crime, what must D do?

notice of D's intent to introduce such evidence must be filed within 10 days before trial

what difference does it make if D please nolo contendere rather than guilty?

There is no difference in the criminal prosecution. IF civil litigation were to arise out of the same incident, a guilty plea could be used as evidence against D. A plea of nolo contendere could not be used in civil liability claims.

IF D decides not to contest guilty charge. what are the admonitions that the trial judge must give him before accepting a felony plea of guilty or nolo contendere?

  • range of penalties for punishment for offense
  • recommendations by state are not binding
  • that there is a limited right to appeal
  • plea may result in deportation or denial of naturalization and
  • inquire as to the existence of plea bargain

can D get the admonishment orally?


Judge may also admonish the dude by written statement.

when can a D withdraw a plea of guilty?

  • before the court- D may withdraw the lea as a matter of right at any time before the court takes the plea under advisement or pronounces judgment

what if plea of guilty is based on plea bargain that is rejected?

D can withdraw the plea of guilty

IF D is allowed to withdraw his plea of guilty, can the state introduce evidence at trial that he first pleaded guilty?

No. because evidence rule 410 makes inadmissible withdrawn pleas of guilty or nolo contendere.

is a trial judge required to order a pretrial hearing and conference?

No. he may but not required to do so.

what if pretrial hearing is set, what must be done and when does it have to be done?

7 days before the hearing and conference the parties must :

  • enter any special plea
  • make challenges to indictment
  • make motions for continuance
  • make motions for change of venue
  • make motions to supress evidence
  • make requests for discovery and
  • raise claims of entrapment

What effect does the scheduling of a pre-trial hearing and conference has on challenging indictments?

No the motion to quash indictment must be filed within 7 days before pretrial hearing, not just before the day of the trial. If it is not filed then, it cannot be raised later except by permission of the court on the basis of good cause.

does the D have the right to be present at pretrial hearing?


what is a motino in limine?

This is pretrial motion that asks either

  • a pretrial ruling ont he merits of some question of evidence or procedure that will arise during trial (basically asks the court to tell other party not to use certain evidence) OR
  • pretrial ruling that opposing counsel must alert the judge before raising some matter of evidence or procedure before the jury (basically asking the judge to tell opposing counsel to ask the judge for permission before doing something)

IF D makes motion in limini asking the D not to reference certain evidence. The trial court grants the order. During examination of juror, prosecutor brings up the evidence subject to the motion of limine. what if anything does the D counsel must do to preserve error?

Must object to the reference as if the motion in limine had not been granted.

What if motion in limine is overruled and not accepted. What if anything does the D counsel need to do to preserve error in admitting the evidence?

object to any reference during jury selection and to evidence itself when it is offered at trial.

Trial judge's rulin on motion of limine preserves nothing for appellate review.

What is a motion to suppress?

May be used to raise pretrial any argument that evidence is inadmissible. Most often is used to raise contention that evidence has been illegal obtained.

How can D object to admissibility of evidence?

  • make a pretrial motion to supress; or wait and object to the evidence during trial

BUT generally, a pretrial motion is preferred method of raising a contention that evidence was illegally obtained.

what if judge denies motion to supress, what else must the D counsel do t preserve question for consideration on appeal?

Nothing. A pretrial ruling on a motion to supress, preserves the issue for appeal. BUt pretrial ruling on motion in limine does not preserve matter for appeal.

D counsel moves to suppress evidence obtained during illegal search. Trial judge schedules prehearing conference. D informes that he will testify at the hearing. What issues may prosecutor inquire into cross examination and does D waive his right to remain silent at the remainder of the trial?

Prosecutor may only inquire as to matters related to the hearing issues--the validity of the search. Cross-examination cannot extend to guilt of the charged crime.

D does not waive his right to remain silent at the rest of the trial. He may thus decline to testify at trial and his right to do so remain fully effective.

A d can testify at pretrial hearing only on issues related to that hearing, without giving up his rights later.

When do witness lists need be produced?

Trial judge is obligated to order the state to provide the defense with list of witnesses the state intends to call.

when do expert witness list need to be produced?

Trial judge has discretion to order either side to provide other with list of expert witnesses it may call at trial (at least 20 days before trial date)

When can a side depose a witness before trial?

The trial judge must issue order authorizing deposition;

the party requesting order must show good cause for dep.

can the trial judge order the state to permit the D to inspect property and things?

yes. Inspection must be ordered if the thing is

  • tangigle
  • constitutes a material evidence
  • is in the possession of the state and
  • is not work product of the state

inspection does not require the state to give up possession of the time.

can defense counsel before trial request access to written confession made by D to the police?

Yes, because it is material evidence in possession of the state

Can D get samples of physical evidence such as drugs, blood, etc.. before trial?

yes, because it is material evidence in possession of the state

Can g Access memo from DA to other DA?

No, this is state's work product.

can D exmine a state crime lab technician repor?

yes, it is material evidence in possession of the state.

can D examine police reports of the investigating officers?

yes, it is material evidence in possession of the state.

can D get names of witnesses who appeared before the grand jury and testified?

yes. The prosecutor should have endorsed this information to the indictment.

can D get testimony of witness who testified before grand jury?

Only if D shows particularized need for this.

what if D receives list of witnesses that prosecution will use, but some witnesses during trial are presented who were not on the list. Must the trial allow the witnesses to testify?

yes, because whether to exclude testimony of an unlisted wintess is discretionary with the trial judge. .

A trial judge has discretion to exclude or admit the testimony of a witness let off an ordered witness list. Judge may consider whether omission was intentional; and whether D received actual notice that W would testify.

state files motion requesting list of all Ws D counsel will call and their anticipated testimony. D fails to comply. Can state compel such information?

Trial court does have authority to order the defense to provide the state with the list of expert witnesses. It should enter an order compelling the D to do it.

But it has no authority to compel the D to provide a summary of the anticipated testimony.

Additionally, non expert witness list- the court has no authority to compel the D to provide the state with any information at all.

can D take deposition of Defense's witness prior to trial?

Counsel must obtain order. to get this counsel must file motion supported by an affidavit stating good cause for taking deposition. Notice must be given to the state. At the hearing held, counsel must be prepared to show good cause. This should include a showing that the W's testimony will be necessary for trial, and the the W is likely to become unavailable before trial

can D request the state to reveal the name of any informant from whom it acquired information about case?

the court should not grant motion to compel identity of informant because this information is privileged. Disclosure may be required only if

  • informant obtained information that D claims was illegal
  • if D can show that informant can provide testimony to a fair determination of guilt-innocence

when is a D's due process rights under the BRady violated?

If prosecution fails to disclose favorable information that is in its possession and

this information is material--if it had been disclosed, there is a good probability that the outcome of case would be different

What if police interview witnesses who may exculpate D. Must he state disclose this information.

Yes, this is exculpatory brady evidence that must be disclosed to the D.

Does the D have to request the Brady evidence?

No, the state must disclose it sua sponte.

What if state doesn't know about it?

it doesn't matter. state should have disclosed it.

summary of Brady (exculpatory) evidence

  • state has due process duty to disclose
  • evidence that impeaches prosecution witness is material
  • evidence must be disclosed if it is in possession of trial prosecutor, another prosector, or plice
  • conviction is invalid for nondiclosure only if nondisclosed information is material

what is the competency to stand trial rule?

Under federal due process and texas statute, criminal proceedings cannot continue if D is incompetent to stand tria

when is a D incompetent to stand trial?

IF D lacks ability to consult with counsel with reasonable degree of rational understanding; or

she lacks rational and factual understanding of proceedings

what if condition improves after trial?

D can be determined competent; and prosecution may proceed.

D's counsel thinks D is incompetent to stand trial. what should he do?

D's competency to stand trial should be raised. This can be done by

D or state by motion suggest that D is incompetent

OR trial court my on its own motion

what happens if issue is raised?

trial judge must make a preliminary inquiry. if this shows significant evidence of incompetency, the judge must hold a full hearing. If a party requests a jury, the determination must be made by jury.

what is the legal presumption regarding incompetency?

That D is competent. to rebut this, the defense must show by preponderance of evidence that D lacks ability to consult with counsel and lacks an understanding of the proceedings.

what are 3 ways in which incompetency to stand trial differs from insanity defense under Texas law?

relevant time: insanity determination is made at the time of the crime; incompetency is made at the time of the trial.

standard applied: insanity requires determination that D did not know conduct was wrongful; incompetency requires D to show that he could not consult with counsel or understand proceeding.

result: insanity results in verdict of not guilty; incompetency leads to bar of proceeding temporarily.

Where does venue lie?

in the county where crime was committed

when can a D seek change of venue?

when prejudice in the county would prevent a fair trial; or dangerous combination of influential persons against D would prevent fair trial.

when can state seek change of venue?

if there is a combination or influences in favor of D that would prevent a fair trial; or lawless conditions would prevent fair trial; or life of D would be jeopardized by local trial.

when can court sua sponte order change of venue?

on its own motion because trial fair and impartial to defendant and state alike cannot be held

D committed assault in Duval county. What is the proper venue?

Generally venue lies in the county where the conduct constituting the crime was committed.

What procedural steps must a D counsel take to protect D's right to fair trial if venue is hostile?

The D counsel must begin the procedure of change of venue. to obtain this, D must file

  • a written motion for change of venue and
  • affidavits that a fair trial cannot be held in the county by the defendant and 2 credible residents of the count

at the hearing, the D must present evidene showing sufficient prejudice to D in county that prevents fair trial.

when must D file motion for change of venue?

a motion for change of venue must be filed 7 days before pretrial hearing. Failure to do so will prevent a later motion unless court gives permission for good cause.

how can a judge be disqualified from a case?

Judge is disqualified if

  • judge was the victim of the crime
  • judge was counseled for either side;
  • judge is related within 3 degrees of consanguinity

It applies only where the judge has participated in the very case now before her as a judge.

regarding the presence of the accused, what are the rules in a felony case?

in a felony case or prosecution for a misdemeanor punishable by jail time the D must be present at the beginning of the trial

  • jury trial: through swearing of the jury
  • bench: through D's plea to the indictment
  • and D must be present at the end of the trial for formal sentencing

But if D is voluntarily absent in the middle, the trial nevertheless may proceed in the D's absence.

what are the rules regarding the presence of D in a misdemeanor?

the D can be absent because she may appear by counsel if the prosecutor consents

what if D escapes from trial after the first W is sworn in?

Since D's absence is after selection of jury and voluntary, the trial may proceed. BUT it cannot proceed further than assessment of punishment. The formal sentencing cannot occur until D is recaptured and brought into court.

What happens if D is not returned back to Texas until 20 years later?

He will be returned to the trial court, where the trial judge will formally sentence him to punishment assessed by the jury.

What is the rule regarding several crimes?

One Indictment, One Offense Rule

A defendant has the right to be tried separately for each indictment. An indictment may allege only one offense. If indictment charges more than that, it can be quashed.

A defendant may be tried on only one indictment per trial. If a defendant is scheduled for trial on several indictments, the defendant is entitled to have the trials severed.

What is the exception to the One Indictment, one Offense rule?

The criminal Episode exception. The state may join in one indictment all offenses arising out of one criminal episode, and D will be tried for all of these in one trial unless there is a severance of charges.

If D several offenses are charged in one charging document, each must be a separate count.

If D is charged with different indictments with offenses arising out of one criminal episode, the state may have them consolidated.

what are crimes that are part of the same criminal episode?

  • part of the same transaction
  • part of a common scheme or
  • the same similar offenses (even if at different times)

the state is not required to seek trial together of offenses arising out of one criminal episode.

does the right have the absolute right to have charges from same criminal episode severed?

YES, D still has the right to have the offenses severed.

What are the drawbacks of invoking the severance for charges arising out of the same criminal episode?

IF D is convicted in one trial of several charges arising out of one criminal episode and sentenced, the prison terms must run concurrently (at the same time). E.g., gets 3, 20 years prison terms. He will serve 20 years.

If D invokes right to severance, and is convicted at separate trials for charges arising out of the same criminal episode, the trial judge has discretion to make prison terms consecutively.

Can a D have indictment quashed because it joins two different offenses?

Yes, unless the offenses are part of the same criminal episode.

Is D entitled to have his trials on the two offenses severed?

Yes, He has an absolute right to have separate trial on the two offenses, even if they are part of the same criminal episode.

What is the rule regarding several defendants charged in one indictment?

Several defendants may be charged in one indictment and tried together if they are all charged with the same offense.

when can several Ds be joined for trial?

  • If they are charged with the same offense;
  • or
  • they are charged with different offenses arising out of the same transaction.

when is severance mandatory for several defendants?

Trial court must order severance if

  • one D has prior conviction admissible against him;
  • a joint trial would be prejudicial to one or more defendants

what procedural steps must a D take to sever a case where two defendants are joined?

D counsel can move for severance from the other D's trial. Trial Judge will have to grant the motion for severance if the other D has a prior felony conviction that is admissible at the joint trial that would be prejudicial to the other D.

what are the requirements of a motion for continuance?

Motion for continuance must:

  • be in writing; and
  • be supported by showing of good cause; and
  • be sworn

if the motion is made after trial has begun, it must also include:

  • based on occurrence that happened after trial began, and that
  • occurrence could not have been anticipated and
  • surprise must be such as to prevent fair trial

If D counsel discovers that D witness is unavailable and decides to file motion for continuance, what must the motion allege:

A D's motion for continuance to obtain a missing witness must allege

  • name and residence of the missing witness
  • efforts made by D to find the witness
  • material facts defense expect to prove by witness

is the granting of the D's first motion for continuance a matter of right?

It is not a matter of right. All motions for continuance are addressed to the discretion of the trial judge.

What if D counsel realizes that his expert is crappy and files continuance to find another expert?

motion for continuance will probably be denied. The testimony could have been anticipated and therefore is not basis for trial delay.

When does an indigent have the right to appointed attorney?

Under the 6th amendment an indigent defendant sometimes has the 6th amendment right to an appointment attorney.

A D charged with felony always has such right.

A D charged with misdemeanor need not to be provided an attorney if no jail is imposed upon conviction.

A D has the right to represent herself.

If indigent D refuses to accept a lawyer, what must judge do to preserve D's rights?

D is asserting his right to represent himself. The judge must make sufficient inquiries to D, on the record, to assure that he is competent to engage in self-representation.

Does the judge require D to accept appointment unless D knows procedure and evidence law?

No, because competency to engage in self-rep requires only that he understands the disadvantages and risks of that course.

When must the appointed attorney contact D?

An appointed attorney must make every reasonable effort to contact the D no later than the first working day after the date of the appointment. An attorney is to interview the D as soon as practicable.

Can a judge replace appointed attorney if he fails to timely contact D?

Yes, court has discretion to replace attorney who fails to timely contact or interview the D.

Can a judge consider whether D has posted or is capable of posting bail in determining whether D is indigent?

The general rule is that a judge may not consider whether d has posted or capable of posting bail. The exception is that it may be considered as it reflects the D's financial circumstances as measured by proper considerations such as income, property owned, dependents, etc...

what is the standard for determining ineffective assistance of counsel?

A D's sixt amendment right to effective representation is violated if

  • lawyer's actions were beyond the bounds of professional competence,and were not simply tactical decisions; and
  • there is a reasonable probability that had counsel been effective, the results of the proceeding would have been different

When is representation not effective?

If counsel fails to conduct an adequate investigation or

fails to convey the client an offer of plea bargain

What pleading should be filed to obtain assistance of expert if D is indigent?

An Ake motion holding that due process entitles an indigent D to appointment of an expert.

To get expert, the motion must show that the area of the expert's expertise is likely to be a significant issue in the case.

The motion can be made ex parte.

who pays the for expert for the indigent D?

The state must pay for an expert to assist appointed defense counsel if he expert's area is likely to be a significant issue in the trial of the case.

when can D dismiss a case?

The state may dismiss some or all charges brought if

  • it must file a written statement of the statement; and
  • the trial judge must consent

no further prosecution occur if a dismissal occurs after jeopardy attaches.

after jury is seated and sworn, may a state dismiss the information on the ground that a critical W for the state is unavailable and later refile the information?

No. If the state dismisses the charges after jeopardy attaches, double jeopardy bars reprosecution of the D. Here jeopardy attached.

What is the rule regarding the right to a jury trial?

A criminal defendant must be tried to a jury unless the defendant waives the right to jury trial.

What must be the size of a jury?

District court (felony): 12

county, municipal, justice court (misd): 6

what is the usual verdict?

The usual verdict is "general" (guilty/not guilty), except:

  • if special pea is submitted to the jury (e.g., true or not true) and
  • jury find D not guilty for reason of insanity

how can the judge and jury communicate?

all communications must be in writing, and responses must be in writing and in open court

  • What standard of proof must the state satisfy in order to obtain a guilty verdict?
  • how many jurors must concur?
  • what is the consequence if fewer than the requisite number vote guilty?
  • the state must prove guilty beyond a reasonable doubt.
  • the verdict must be unanimous, so all jurors must concur
  • if the jurors cannot agree on the required unanimous verdict, the judge must declare a mistrial

  • What procedure is employed to express the choice whether to try the case to a jury or the judge?
  • who makes that decision?
  • at what stage of the case must the decision be made?
  • must the choice be the same for both guilty and punishment phases of trial?

  • Whether to have a case tried by jury or not is a decision that must be made personally by defendant
  • if D wants to have the case tried by judge or jury, the D must waive jury trial. This must be doe before trial.
  • the choice need not to be the same as to both phases. Whetehr or not the D waives jury trial on guilt, he can elect jury assessment of punishment or let judge assess punishment.

What is required to waive jury trial on guilt phase of trial?

  • it can be waived except for capital prosecutions murder where the state seeks death penalty
  • it requires consent and approval of : prosecutor and trial court

When if ever can the jury have the court reporter read from the reporter's notes the substance of testimony during trial?

The jury may apply to the court for such a reading of testimony if the jury disagrees as to what the testimony was. The judge may have the court reporter read only those notes relating to specific testimony in dispute.

If jury is deadlocked and D moves for mistrial, but state opposes: must the state join in the defense motion for the judge to rule mistrial?

The state does not need to join in the defense motion. The judge can, without agreement of the parties, declare a mistrial and discharge the jury if it cannot agree and the judge determines that the jury has been deliberating long enough.

What is the rule if jury cannot agree on verdict?

  • it may be discharged if both parties agree; or
  • judge finds that the jury has been kept together long enough to render it altogether improbable that it could agree

what are the jury selection steps?

  1. swearing in panel
  2. qualification of the panel members by judge
  3. possible jury shuffle
  4. voir dire of the jury panel members (questions by counsels)
  5. challenges for cause
  6. peremptory challenges
  7. empaneling the actual jury

what are the three questions that the judge asks the prospective jurors to test the qualifications?

  • are you qualified voter in this county and state?
  • have you ever been convicted of theft, or any felony
  • are you under indictment or accusation of theft or any felony?

what action, if any, can counsel take to change the seating order of the venire members?

Counsel may demand a jury shuffle. Which will result in the random reseating of the venire members. She must do this before voir dire of the venire begins.

Only one shuffle can be made, if one party makes it first, the other party may not shuffle the jury again.

what is a challenge for cause? how many challenges is each side allotted?

  • a challenge for cause is a challenge to a prospective juror on the basis of one of the grounds specified in the Code of Criminal procedure.
  • there is no limit on the number each side may make, but each one made must be justified under the statutory grounds.

What are the challenges for cause that may be made by either party?

  1. convicted for theft or a felony
  2. under formal charge for theft or felony
  3. insane
  4. not qualified voter in state or county
  5. is a witness in the case
  6. served on a jury in prior trial of the case
  7. served in indicting grand jury
  8. cannot read and write
  9. bias or prejudice against accused
  10. bias or prejudice against law
  11. formed an opinion as to D's guilty or innocence
  12. related to the acussed
  13. blind

what if after trial, D finds out that one of the jurors had been convicted of theft. Can D set aside conviction as invlid?

probably not. an absolutely disqualified juror sat, but D failed to raise this before the verdict. Therefore, he must show that the juror's service on the case caused him a significant harm.

What are absolute disqualifications?

Juror is disqualified even if no challenge is raised if

  • prior conviction of theft or felony
  • under formal charge for theft or felony; or
  • insane

If a juror is absolutely disqualified and sat on the jury, the conviction must be set aside if the D either

  • raised this before the verdict was entered; or
  • shows significant harm as result of Juror's service.

what if during voir dire, one prospective juror says that no person should ever get probation for that crime?

LAw requires that a juror be able to consider the full range of punishment provided by the law for the offense. The challenge for cause should be on the ground that juror is biased against the law of the applicable case.

During voir dire, state asks the prospective jurors a hypothetical and asks whether they would be able to convict a person for that. is this permissible?

No. Defense counsel should object and court should sustain objection because the objection to is based on an improper commitment by the prosecutor. The question fails to specify each element of the offense, and that those elements must be proven beyond a reasonable doubt and is therefore not permissible.

can counsel dismiss a juror because juror is stating at counsel?

No. It is insufficient to establish bias for a challenge for cause. But counsel can exercise a peremptory challenge because no basis for this needs to be shown.

What are peremptory challenges, and how many do you get?

  • Each side in a criminal case gets a limited number of peremptory challenges, challenges that can be exercised with no explanation or justification. Neither side may exercise peremptory challenges on basis of race and gender.
  • capital murder: 15
  • felony: 10
  • misdemeanors in county, municipal, or justice: 3
  • misdemeanors in district: 5

what procedure must be used to challenge the other side's peremptory challenges based on race or gender?

  • Counsel should make a Batson challenge on the ground that the state has exercised its peremptory challenges on Racial grounds. She should move to dismiss the array of prospective jurors.

the motion should be made

  • after each side submitted its list of jurors it challenges, and
  • before the trial court empanels the jury

How can the prosecutor respond to a Batson challenge, and how should the trial court respond?

  • the court should rule that proof that the state has used its challenges to remove all african ammerican persons make a prima facie case of racial motivation. The burden then shifts to the state to explain challenges on non racial grounds. But D has the ultimate burden to prove racial motiviation.

If D succeeds, the court must do either :

  • dismiss the jury array and start jury selection over or
  • reinstate those jurors struck for racial reasons

What is the order of proceeding in a case in a Texas felony trial?

  • judge calls for and parties give announcements of ready
  • prosecutor reads the indictment
  • defense counsel enters a plea for the defendant
  • prosecutor makes the state's opening statement
  • prosecution presents case in chief
  • defense counsel makes opening statement
  • defense presents defense evidence
  • rebuttal evidence is presented
  • the judge reads the jury instructions
  • counsel makes final arguments to jury

can D request to make D's opening statement immediately after the state's opening statement?


can the judge require the D counsel to make opening statement immediately after state's opening statement?

No. The D has the right to request to make the opening statement after the state's opening statement, but the D cannot be required to do this.

can prosecution call the D as witness if D testified during pretrial?

No. D has privilege to avoid being called as a state witness.

If D counsel thinks that state failed to show D's guilt beyond a reasonable doubt after its presentation of the case in chief, what procedural step should counsel take before beginning presentation of the defense case?

counsel should make a motion for a directed verdict of not guilty. This asks the judge to hold that no reasonable jury could find, on the basis of the state's case in chief, that all elements of the crime have been proved beyond a reasonable doubt.

the motion should not be made within the hearing of the jury because it's an issue for the judge.

what is the rule regarding motion for directed verdict of not guilty?

it's a motion for acquittal without going to the jury. it can be made

  • at the end of the state's case in chief, and
  • at the close of evidence

What if state seeks to introduce confession by third party who testified against D, but that D counsel knows will take the fifth. What ojections should D counsel make?

Counsel should object that since the defense cannot cross-examine the third party, introducing the confession would violate D's 6th amendment right to confront witness.

what is the hearsay exception for statements against penal interests?

a statement is admissible if it is shown to have been made against the D's penal interest.

it is against penal interest if:

  • statement is shown to have been incriminating against declarant
  • a reasonable person would not have made it unless she believed it to be true and
  • there are corroborating circumstances that clearly indicate the statement was made

it is admissible regardless of whether the out of court declarant is unavailable.

What is the predicate that must be established by testimony of custodian to make records of regularly conducted activity admissible over a hearsay exception?

  • The records were kept in the regular course of business
  • it was the regular course for a person with knowledge of the matter to make such records or transfer information for inclusion in the records
  • entries in the records were made at or near the time of the events
  • and the witness is the custodian of the records

what can be done to ensure records are admissible at trial withou the presence of any witness or custodian?

The business record can alternatively be authenticated if party

  • obtains an affidavit of the custodian of the records containing all elements identified in the rule
  • files the affidavit with the records attached with the court at least 14 days before trial starts and
  • gives the other party notice of the filing 14 days before the trial

What is the rule regarding character evidence?

State cannot introduce evidence of the D's bad character to prove D's guilt.

State may only introduce D's bad character if

  • accussed put his character at issue, by exercising his right to introduce evidence of good character and
  • at the punishment stage of the trial

what kind of testimony may be given by character witnesses?

  • The witness's personal opinion as to the person's character or
  • what witness believes is the person's reputation

it cannot be proved by specific conduct

in cross-examination of character witness

inquiry into specific instances of conduct is permissible in the following way:

  • "have you heard" questions= reputation
  • "did you know" questions= opinion

how is foundation of reputation and opinion character established?

opinion: W is personally familiar with person

reputation: W participated in discussions or conversations regarding the reputation of D

Character W testifies about opinion of D for conduct after offense. Admissible?

No, the opinion as to character must be based on facts known by the W prior to the day of the offense. same for reputation testimony. must be based on reputation or opinion prior to the day of offense.

What is the extraneous offense evidence rule?

Extraneous offense is a crime of which the accused cannot be convicted in this trial.

Evidence of extraneous offense is inadmissible. Such evidence shows only that the accused is a bad person.

what is the exception to the extraneous offense evidence rule?

If evidence showing extraneous evidence is relevant to some issue other than the character of the D, it is admissible unless the judge is convinced that it is unfairly prejudicial to D and substantially outweighs the probative value of the evidence.

When is extraneous evidence admissible?



Intent or knowledge

Mistake or accident

Identity (when D put identity as an issue

Common scheme or plan

When is extraneous evidence admissible to prove identity?

  • when the D puts his identity into issue, triggering the state's ability to use evidence that he committed similar extraneous offenses, by
  • either introducing evidence that he was not the perpetrator, such as an alibi or
  • impeaching all the state's eye witnesses.

what is a 404b request, and what obligation has the state to provide the request?

State must provide reasonable notice in advance of trial of its intent to introduce such evidence (extraneous offense evidence) during the state's case in chief. But no such notice is required concerning crimes, wrongs, or other acts arising out of the same transaction as the charged offense.

Upon timely request by D, state must give evidence rule 404(b) notice of :

  • intent to introduce evidence of other crimes, wrongs
  • not arising out of the same transaction as the charged crime
  • to be introduced in the state's case in chief
  • the notice must be given in advance of trial

What is the rule regarding writing or recorded statements as evidence?

If one party introduces all or part of a writing or recorded statement, the other party is entitled to introduce

  • any other part of that writing or recorded statement or
  • any other writing or recorded statement which should by fairness be considered by the jury at the same time

the other party is entitled to introduce this immediately

What is the rule regarding optional completeness?

if one party introduces part of an act, conversation, or statement, the other party is entitled to prove the rest of the subject

it can make otherwise inadmissible other acts or wrongs evidence admissible to show the rest of the subject...

is there a physician-patient privilege in criminal cases?

No. the physician-patient privilege does not apply in a criminal investigation. Unless:

it was made by a person being treated voluntarily or being examined for alcohol or drug abuse and it was made to a person involved in the treatment or examination

What is the privilege of defendant's spouse?

Spouse of a criminal defendant has privilege not to be called as a witness to testify against the D or not to testify against the D.

Exceptions (the D's spouse may be called if either):

  • the prosection is for an offense committed against
  • any minor child
  • a household member of either spouse or
  • the spouse or

the spouse is called by the state to testify about only matters that occurred prior to the spouse's marriage.

the spouse has to invoke the privilege. the privilege belongs to spouse, she can waive it.

other aspects about privilege of defendant's spouse?

  • it must be invoked by spouse
  • it can be waived, and voluntarily testify against
  • applies only if W is married to D at the time of trial

what is the privilege of marital communications?

  • any person including the criminal D has a privilege to refuse to disclose and to prevent others from disclosing confidential communication made by the person to his spouse during marriage

what is a confidential communication?

made privately and

not intended for disclosure to any other person

what are the exceptions to the marital communications privilege?

  • the communication was made to commit a crime or fraud or
  • the prosecution is for a crime committed against the person of any minor child, a household member, or spouse.

are statements made in plea bargaining discussions admissible?

No. it is inadmissible.

How can parties get a subpoena for W?

Both sides have the right to compel the appearance of a W by using subpoena. This is done by submitting application to court clerk.

what is an attachment?

Is a writ commanding a peace officer to take the W into custody and bring him before the court.

It is issued if W has bee already subpoenaed, and the W failed to appear.

what must counsel do to ensure W appears before court?

Before trial, counsel should get a subpoena issued directing W to appear on the day of the trial.

The apply, the D must state

  • name of W
  • location and vocation of W
  • that the W's testimony is material

during trial, counsel can get an attachment directing officer to bring her into court if W was already subpoenaed, and did not appear.

what inquiry should the court do to determine competency of a W?

Sufficient intellect to relate transactions regarding which he will be asked. This should be on the record to preserve error for appeal.

is a summoned W obligated to honor subpoena and appear even if he lives in El Paso, and the trial is in Amarillo?

Yes, in a criminal case a subpoena is good statewide.

can a judge be a witness?


what are methods of impeachment of a W?

  • prior convictions
  • contradiction
  • showing character for untruthfulness
  • showing bias or interest

when can a party impeach a W for bad conduct?

only if the cross examing party establishes

  • conduct resulted in final criminal conviction
  • conviction is not stale (not more than 10 years since conviction)
  • conviction was for misdeameanor that involved moral turpitude or a felony
  • prejudicial risk of the inquiry is substantially outweighed by its probative value

what is the rule for impeachment by contradiction?

  • a party can impeach a W for the other side by introducing extrinsic evidence that contradicts what the W said, unless the W's assertion is on a collateral matter
  • a matter is collateral matter if the impeaching party would not be able to prove it as part of its own case.

how to impeach a W for prior inconsistent statements?

  • tell the W the contents of prior inconsistent statements
  • tell the W the time and place of the statement and person to whom it was made and
  • afford the W an opportunity to explain or deny

extrinsic evidence to prove that prior inconsistent statement was made is only admissible if the W denies making that statement.

what is moral turpitude?

theft, perjury, forgery, making false report. DOES NOT INCLUDE dwi, assault, carrying weapon

can a W be impeached for prior felony conviction if he is still on probation?

Yes. But not after he successfully completes probation.

What is the rule regarding erroneous impression created by W?

If a W makes a statement that is incorrect, prosecution may introduce otherwise inadmissible cross-examination if necessary to correct an erroneous impression.

can the judge comment on the evidence and the merits of the case?

in making trial rulings, the judge must not

  • comment on the weight of the evidence or c
  • convey to the jury the judge's opinion of the merits

what is "The Rule" for excluding W from the courtroom?

is the rule excluding W from the courtroom during taking of testimony from other witnesses.

If a party requests the rule, the trial judge must invoke it.

If rule is invoked, all W are excluded so that they cannot hear the testimony of another W.

what happens if W violates the rule?

court may hold W in contempt or exclude testimony of that W.

what procedural steps may defense counsel take to stop Ws from conferring about the case and from remaining in the courtroom during trial?

D counsel may invoke the Rule. This requires the judge to exclude all Ws during the testimony of another W. The judge should also admonish the Ws as to

  • persons whom the court determines the W may talk and
  • those whom the judge determines they can't talk to

what are the exceptions to the Rule?

When the rule is invoked, it does not permit exclusion of

  • Defendant
  • officer of D corporation
  • any person whose presence is shown to be essential to the presentation of either party's case or
  • the victim

What is the rule regarding expert W and scientific evidence?

Generally, an expert W may testify to an opinion without first disclosing the facts or data on which that opinion is based.

in criminal cases, a party against whom expert testimony is offered has the right, upon request to voir dire the expert on the factts and data upon which the testimony will be based before the W testifies

what are factors that the court considers to determine the admissibility of scientific evidence?

  1. acceptance of underlying scientific theory and technique as valid in the scientific community
  2. whether scientific literature support or rejects the theory
  3. potential error rate of the technique
  4. qualifications of the expert offered to testify
  5. availability of other experts to test and evaluate
  6. the clarity with which the theory can be explained
  7. experience and skill of person who applied this technique in this case

during trial, is the D entitled to a writing if W for the other side used it?

D is entitled to have writing produced, opportunity to inspect it, and cross examine on that writing. IF the writing is being used to

refresh the memory of W before testimony, or to refresh her memory during testimony.

when is the party entitled to the written record or document to get the document?

after the W has finished direct examination.

what is the use before the jury rule?

a party is entitled to an item such as photography if it was used by opposing counsel in front of jury in such a way that contents became an issue.

does the work product doctrine apply during trial?

no. only pretrial.

can the D counsel request production of testimony for use during D's cross?

Yes. Work product does not apply to witness statemented demanded at trial.

what sanctions may the court impose if prosecutor refuses to produce the statement?

the court shall order that direct testimony of the W be struck from the record;

it may also dismiss the prosecution if determines that the interests of the justice requires it

when are photographs admissible?

if W would be permitted to give verbal description of what the photo shows.

what does authentication of photo requires?

that a sponsoring W testifies that W saw the matter shown in the photo and the photo accurately depicts what he saw.

how can D counsel challenge evidence that is allegedly obtained under violation of constitution or text law?

D can get the jury if he can raise a contested question of fact before the jury concerning the legality of the manner in which evidence was obtained.

how can an error in the jury charge be preserved?

by objection or

request for special charge containing correct law.

when is an oral objection to jury charge be made?

  • it is dictated to the court recorder
  • in the presence of the judge and the prosecutor and
  • this is done before the final charge is read to the jury

if these requirements are met, counsel is no longer required to make them in writing.

generally objections and requests for charges must be in writing. Unless see above.

what are the abstract portions of a jury charge?

abstract law (1)

Terms (2)

Specific allegations (3)

application is 4

if there is an error in the charge regarding the law, may D counsel withhold objection to this and raise it for the first time on appeal as error?

Yes. Error in the jury charge is fundamental and can be raised on appeal for the first time, but only if the resulted in eggregious harm to the D. that is denied the D a fair trial.

what is the rule regarding errors in jury charges?

Error in jury charge is subject to teh special harmless error criteria. Under which a conviction may be reversed for fundamental error despite lack of trial objection:

  • preserved error requires reversal if it results in some harm.
  • unpreserved error reqruires reversal but only if results in egregious harm and thus presents a fair trial.

must the court define reasonable doubt for the jury?


is the D entitled to a jury instruction on the D's failure to testify?

YEs, the instruction should tell the jury that D has a right to not testify, and his failure should not be taken as circumstance against him. no adverse inference against the D from this.

what must be plead in the charging document?

  1. elements of the crime
  2. exceptions, must be negated

What must be plead in jury charge?

  1. elements of crime
  2. exceptions
  3. Defenses if evidence supporting evidence is produced at trial
  4. Affirmative defense, if evidence supporting evidence is produced

what is the burden of proof for regular defenses?

Burden is on the state. It must be proved beyond a reasonable doubt.

what is the burden of proof for affirmative defenses?

Is on the defendant. It must be proved by preponderance of the evidence.

who has the burden on elements of the crime and exceptions/

the state. beyond a reasonable doubt.

in making final arguments, lawyers are limited to four subjects:

  1. summation of evidence
  2. making reasonable deductions from evidence
  3. answering arguments of opposing counsel and
  4. making please for law enforcement

counsel is not permitted to

  • comment on D's invocation of self-incrimination rights
  • express personal opinions
  • argue that the community demands punishment
  • strike at D over the shoulder of defense counsel-trash talking

how is the order of argument and number of arguments regulated in Texas?

  • order of arguments is regulated by the judge. In felony cases, the arguments may never be restricted to a number of addresses less tan 2 on each side
  • but the state must have the right to argue last
  • state first
  • D goes second
  • State goes last.

what can't the prosecution prove or comment on?

  • the D's failure to testify at trial
  • D's silence after arrest and Miranda warnings
  • D's silence after arrest
  • BUT state may comment on silence before arrest.

what type of evidence requires corroboration?

  • accomplice testimony
  • d's out of court confession- corpus delicti
  • sexual assault's victim testimony
  • some testimony by undercover informer
  • jailhouse snitch testimony

what is the accomplice W rule?

Accomplice W is a witness who could be convcted of the crime charged.

A D cannot be convicted on the testimony of an ccomplice unless corroborating evidence that tends to connect the D to the crime

what is the corpus delicti rule?

A D cannot be convicted of an out of court confession unless there is corroborating evidence of the corpus delicti--tending to show that a crime was in fact committed.

what is the sexual assault victim rule

A D cannot be convicted on testimony of a sexual assault victim without corroborating evidence connecting the D to the offense. Unless

  • V told someone other than D about offense within 1 year of its commission
  • V was under 18 at time of crime
  • V was imapired unable to satisfy her need for food shelter, or protection
  • V was 65 years or older

What is the jailhouse snitch rule?

A conviction cannot rest on the testimony of a person to whom the D made a confession while that person was confined in jail with the D.

when must jury sentencing be invoked?

timely election before voir dire of jury panel begins

jury sentencing is required in:

capital murder cases where death sentence is pursued

what rules of evidence apply at the time of the punishment phase?

All apply except:

  • D's prior criminal record
  • D's general reputation
  • D's character on opinion testimony
  • circumstances of offense for which D was found guilty
  • a juvinile court conviction based on felony conduct and
  • evidence of extraneous crimes whether or not D was convicted

Is the court required to folow a plea agreement?

No. the court is not required to follow the plea agreement. If the court refuses to impose the sentence recommended by prosecutor, the court must allow D to withdraw his guilty plea.

When is the judge not required to direct a probation officer to prepare a presentence report in a felony case?

  • if punishment will be assessed by jury
  • the only punishment is imprisonment
  • the judge is informed that a plea bargain exists under which the D agrees to imprisonment and the judge follows the agreement OR
  • the D is convicted of capital murder

Can D counsel request notice of extraneous offenses at the punishment phase?

Yes. The state must provide notice of intent to introduce evidence of prior crimes and must specify

  • date
  • county
  • name of victim

Can D request that jury assess punishment when D enters guilty plea?

Yes, TCCP allows a D to plead guilty but still elect a jury to assess punishment.

May D change election after he is found guilty?

Yes. A D may change election regarding assessment of punishment after finding of guilty. But the prosecutor must consent.

D is worried that jury will consider that he can get out on parole before time of completion. What can D do to inform jury about its ability to consider good time and parole?

IF D is sentenced to jail, the time served may be reduced by good time, and he may be released on parole.

IF D is sentenced to jail, the D will be eligible for parole when actual time served plus good time equals one-fourth of the sentence imposed.

Jury may consider the existence of parole law and good conduct time, but you are not to consider.

  • the extent to which good time may be awarded to this D or
  • how parole law may be applied in this case.

What if the state brings up the fact that D may serve his sentence in a fraction of the time the jury gives him, so the jury should take that into account?

this is an improper argument. it asks the jury to consider how parole law will be applied in this case.

Can state try to argue during the punishment stage that D did not testify?

No. the privilege against self-incrimination applies at the punishment stage as well.

Can state introduce character evidence of the D at the punishment stage?

Yes, because at the penalty stage the D's character is automatically at issue.

If D testifies and confesses at the punishment stage, can he still challenge verdict and and sentence on appeal?

Yes. He is free to appeal. a judicial confession at punishment does not automatically waive any errors committed during the guilt stage of the trial.

Can there be a mistrial at punishment, but not guilt stage?

Yes. the legislature has now authorized a mistrial on punishment only where the jury cannot reach a unanimous verdict on punishment. The judge can declare mistrial on punishment only.

What must the jury consider to determine whether D will get death sentence?

The jury will be given special issues:

  • is there a probability that the D will commit criminal acts of violence constituting a continuing threat?
  • did the D actually personally cause the death; or intend to kill the victim; or anticipate that human life would be taken?
  • are there sufficient circumstances to warranty life imprisonment rather than death?

If answer to 1 and 2 is yes, and No to 3. The judge must impose death penalty.

When is a D eligible for community supervision?

IF punishment assessed is less than 10 years imprisonment.

when and how community supervision revoked?

  • if there is a violation of community supervision shown by preponderance of evidence
  • no jury trial is held
  • D is required to serve prison sentence previously assessed

IF D successfully completes it, then court may dismiss charges.

Can D have jury consider whether to recommend that D is placed on community supervision, if so, what must he do to have the jury do this?

YEs, the jury can be asked to consider recommending community supervision if after it assesses punishment, the D is eligible, that is the sentence is less than 10 years.

To have jury consider such recommendation, D must file pretrial application for probation.

What are the requirements of a proper application for felony probation?

  • in writing
  • sworn and
  • states that D has not been convicted of no prior felony in any jdx

When can't the judge or jury give community supervision?

  • murder;
  • sex offense with child under 14

when is the jury the only one allowed to recommend community supervision?

Jury but not judge can give community supervision if conviction is

  • for a 3g offense or
  • deadly weapon finding is made

what are the 3g offenses?

  • murder
  • capital murder
  • indecency with child
  • first degree felony injury to child
  • aggravated kidnapping
  • aggravated sexual assault
  • aggravated robbery
  • certain drug offenses
what is shock parole?

It's a procedure under which a sentence of imprisonment is imposed and the D begins to serve it. Later, during the first 100 days of term of imprisonment, the D is brought back to the court. The sentence is then suspended and the D is placed on community supervision.

when can D get shock parole?

  • eligible for community supervision
  • never been in jail before
  • not murder or aggravated kidnapping or 3g offenses

What is deferred adjudication?

Procedure under which a trial court places D on community supervision without a finding of guilt or conviction of crime. It defers finding of guilt.

when is a D eligible for deferred adjudication?

the charge is an offense other than

  • intoxicated assault
  • intoxicated manslaughter or
  • D enters plea of guilty or nolo contendere

what is the procedure for deferring adjudication?

  • trial court must receive guilty or nolo contendere plea
  • hear evidence
  • find that evidence substantiates D's guilt and
  • inform D of consequences of violating community supervision-thatD could get any sentence in the statutory range

What are the differences between parole and deferred adjudication?

  • D must be found guilty before probation can be imposed; deferred requires no such finding.
  • D can get regular probation after plea of not guilty; deferred requires plea of guilty or nolo contendere
  • If deferred adjudication is revoked, D can be given a sentence in statutory range; if regular probation is revoked D gets sentence previously assessed.

When can D able to prevent sentence from being pronounced?

Likely nothing. The only reasons why an assessed sentence is not pronounced are:

  • D is pardoned
  • D has become incompetent
  • D is not the person who committed the crime

what procedures are followed to allow the victim to make an open court statement after conviction?

V has right to make statement to the court and the D. it must be permitted only after sentence has been pronounced. The victim may not direct questions to D. The court reporter may not transcribe the message.

If case is resolved in plea bargain, V must be notified about the terms of the plea bargain

When must a motion for new trial be filed?

Within 30 days of pronouncement of sentence; and presented to the court within 10 days of filing. The court may permit presentation within 75 days from sentencing.

What are grounds for granting a new trial?

  • continuing trial when D required to be present and was not
  • verdict was decided by lot
  • D's right to counsel was violated
  • a juror was bribed or engaged in corrupt conduct
  • the jurors received evidence after retiring to deliberate
  • a juror conversed about the case with someone not on the jury
  • new evidence has been discovered

must be ruled within 75 days of sentencing

what procedural steps must a D counsel take to bring new evidence to attention of trial court?

D should move for new trial on basis of newly discovered evidence. A new trial should be granted only if the new evidence is material, which means that

  • it was unknown to D before trial
  • failure to discover the evidence earlier was not due to D's lack of diligence
  • the evidence is competent and not merely collateral or impeaching and the
  • evidence is so persuasive that it would probably cause a different result in a new trial.

D must bring motion within 30 days of sentencing and present it to the court within 10 days of filing.

Can D obtain the jurors personal contact info?

The personal information of the jurors is confidential and may not be disclosed. Teh D as a party may apply to the court for disclosure. Disclosure is to be ordered only on a showing of good cause. Good cause requires a firm foundation for believing that misconduct occurred.

when can a motion in arrest of judgment be made?

On teh grounds that

  • indictment has defect of substance
  • the verdict varies from the indictment or
  • judgment is invalid

When can a D appeal conviction?

A D can only appeal after conviction and sentencing.

What about appeals for capital murder and sentenced to death.

D has mandatory appeal directly to Court of Criminal Appeals

What if D is convicted in district court?

D has appeal as of right to Court of Appeals , and may seek review from Court of Criminal appeals.

What if D is convicted in justice court or municipal court?

Appeal is to county court for trial de novo.

Appeal to court of appeals only if

  • fine imposed exceeds $100 or
  • sole issue is constitutionality of statute or ordinance

D wants to appeal conviction. State wants to keep him off the streets. What is the procedure?

  • state should seek to have trial court deny bail pending appeal on a finding that D will not appear or commit additional crimes.
  • but denial of bail pending appeal is not automatic, unless punishment assessed is more than 10 yearrs

Rule regarding bail pending appeal

A convicted D is not eligible for bail pending appeal if the punishment assessed is 10 years of imprisonment or more

Bail may be denied to D eligible for bail pending appeal if the court finds that D

  • will not appear if conviction is affirmed or
  • is likely to commit an additional offense

When is an appeal perfected?

by filing notice of appeal which must be

  • in writing
  • filed with the trial court and
  • generally filed within 30 days of formal sentencing

if motion for new trial is filed, notice of appeal must be filed within 90 days of formal sentencing.

notice of appeal is required in all cases except those in which the death penalty was imposed.

When can a D who pleads guilty pursuant to plea bargain and receives sentence based on that bargain appeal conviction?

As a general rule, the fact that D pleaded guilty does not prevent the D from appealing resulting conviction. However, if D pleaded guilty as a result of plea bargain, it may only appeal if :

  • trial court grants permission to appeal or
  • the matter was raised by written motion and ruled on before the trial court

If D escapes while appeal is pending. Can he have the appeal reinstated after state files for dismissal of appeal?

likely not. appeal can be reinstated only if D returns to custody voluntarily and within 10 days of escape.

what if court of appeals affirms conviction, what options are available to D now?

D can file Petition for Discretionary Review (PDR) by the Court of Criminal Appeals. But he has no right to review. Whether to grant review is discretionary with the high court.

The PDR should be filed with the Court of Appeals which will send the PDR to the CCA.

who can file PDR?



or Court of Criminal Appeals on its own motion.

When can the state file for appeal?

  • pretrial: if the trial court dismisses the indictment; grants a defense motion to suppress before jeopardy attaches; sustains a D's claim for double jeopardy
  • post trial: if trial court grants motion for new trial, grants a defense motion to arrest judgment; or imposes an illegal sentence.

what are the requirements for interlocutory appeals on a motion to suppress?

  • show that jeopardy has not attached when order was entered
  • appeal must be taken within 20 days of the order and
  • the state must certify that the evidence is substantial importance to the case and the appeal is not taken for purposes of delay

what happens if state takes an appeal from a pretrial order favoring the D?

D in custody is entitled to release on reasonable bail.

If order is one that ends the prosecution (dismiss indictment) D is entitled to personal bond.

what must D counsel do to preserve error for appellate consideration any error in excluding evidence?

  • offer of proof showing the substance of the evidence by
  • counsel's oral summary of the excluded evidence or
  • question and answer form
  • and getting a ruling on the excluding of the evidence

what must D counsel do to preserve error in admitting evidence?

  • make a timely objection
  • state specifically the ground to be relied upon appeal and
  • secure a trial judge ruling

how to preserve error in improper argument or comment by another lawyer?

  • immediately object
  • seekd instruction to disregard and
  • move for mistrial
  • and get ruling on each of these

what standard should appellate court use to determine whether evidence is sufficient?

Legal sufficiency. Evidence is legally sufficient to support conviction if the evidence in light most favorable to the state, any rational trier fo fact could have found all the elements of the crime proved beyond a reasonable doubt.

when does a varience occur?

a variance between a pleading a proof occurs if both

  • the state proves the D guilty of the offense,
  • but the state's proof shows guilt in a way that differs from the unnecessarily included detail in the pleading.

variance requires acquittal only if the varience between the allegation and the proof was material, that is whether under the circumstances of the case rendered the indictment insufficient to enable D to prepare a defense.

what is the harmless error rule?

a conviction can be affirmed on appeal despite error if the error is harmless.

nonconstitutional erro is harmless if it does not affect the appellant's substantial right or the outcome of the case

a constitutional error is harmless only if the appellate court is convinced beyond a reasonable doubt that the error did not contribute to either the conviction or the punishment.

when is a habeas corpuse appropriate?

after taken appeal and appeal is rejected. Relief will only be granted upon proof of

  • an error rendering the conviction void
  • a jurisdictional error
  • violation of constitutional right or
  • actual innocence whcih requires new evidence avaialble by clear and convincing evidence that no reasonable jury hearing the evidence would convict