Texas P&e

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District Courts and Criminal District Courts

Back 1

Have jurisdiction over all felony criminal cases, all misdemeanors involving official misconduct

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County Courts

Back 2

Original jurisdiction over all misdemeanorsand when the fine to be imposed exceeds $500

Generally Class A and B misdemeanors

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Justice Courts

Back 3

Justice of the peace have original jurisdiction in Class C Misdemeanor cases.

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Municipal Courts

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Exclusive jurisdiciton over all cases within the territorial limits of the municipality and;
1) arise under ordinances of the municipality
2) punishable of a fine up to 2000 in cases involving fire safety and public health and safety ordinances, or $500 in all other cases.

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Court of Criminal Appeals.

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final appelate and review jurisdiction in all criminal cases.
The applea of death penalty cases must go directly to the CCA.

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Magistrates

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within their jurisdiction they have the power to;
1) issue arrest and search warrants.
2) set bail or deny for arrested persons
3) conduct preliminary hearings

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Describe a Writ of Habeus Corpus

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Remedy for when a person is restrained in his liberty.

1) The writ is an order issued by a court or judge

2) directed to anyone having a person in his custody

3) commanding him to produce that person at a time and place named in the writ.

4) and to show why the person is held in custody or restrained.

Writ may be issued by district court, county courts or the CCA

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Cotents of a Writ of Habeus Corpus

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1) must state the petitioner is being unlawfully confined
2) must name those confining him
3) must include a prayer for the writ of habeus corpus
4) copy of the writ or order under which the petitioner is being held must be attached
5) petitioner must be sworn as to the truth of the statements.

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Scope of Writ of Habeus Corpus

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Applicable to al instances where a person is unlawfully restrained.

Typically:
1) challenging the amount of bail as excessive
2) obtaining appellate review of a pretrial ruiling that a pending trial is not bared by double jeopardy
3) attacking a conviction after the time for appeal has expired or has been unsuccessful.

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Proocedure for granting of the Writ of Habeus Corpus

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A writ is to be granted without delay unless the judge determines from the petition and its attachments that no relief is warranted.

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What are the six most heavily tested Warrantless Arrest Exceptions?

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1) Offense committed within Presence or View of Peace Officer
2) Suspicious Circumstances; Assaults
3) Violation of a Protective Order
4) Assault on a Family Member or Household Member
5) Felony Suspect About to Flee
6) Preventing the Consequences of Theft

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Warrantless Arrest Exception: Within the View or Presence of a Peace Officer

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peace officer may arrest a person for any offense committed in the officer's presence or view.

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Warrantless Arrest Exception: Suspicious Circumstance

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peace officers may make a warrantless arrest of persons found in suspicious places and under circumstances suggesting they have committed some felony, breach of the peace or other crime. And those the officer has probable cause to beleive have or will commit an assault.

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Warantless Arrest Exception: Assault on a Family or Household Member

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May arrest persons whom the officer has probable cause to believe have committed an assault on a family or household member.

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Warrantless Arrest Exception: Felony Suspect About to Flee

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When an officer receives statisfactory evidence from a credible source that a felony suspect is about to flee the officer may arrest without a warrant.

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Warrantless Arrest Exception: Preventing the Consequences of Theft

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Any person has a right to prevent the consequences of theft by seizing stolen property and the person suspected of stealing it, before a magistrate or peace officer.

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Requisites of an Arrest Warrant:

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1)Must be issued in the name of the State of Texas.
2) Must specifiy the peron to be arrested if known. If unknown, then some reasonably definitive description of the person is needed.
3) Must state the offenses with which the person is accused and must be signed by a neutral magistrate.

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Warrants must be supported by a Magistrates finding of ______?

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Probable Cause to believe that the person to be arrested committed the offenses and the supporting complaint must contain sworn statements before the magistrate.

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Time and Mode of Arrest

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An arrest may be made 24 hours a day, 365 days a year. An officer may use all reasonable means to arrest but not greater force than necessary is allowed.

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Forcible Entry

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With a valid arrest warrant, an officer may break down the door only after being refused admittance and after giving notice of his authority and purpose.

Under the No Knock Rule an officer doesnt have to announce themselves if doing so would frustrate the arrest or permit for the destruction of evidence.

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Presentation before a magistrate after warrantless/warranted arrest

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Must be without undue delay and no longer than 48 hours.

Without unneccessary delay and not more than 48 hours

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What must a Magistrate inform an arrestee of?

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1) accusations against him
2) his right to remain silent and that any statement he makes his may be used against him
3) his right to counsel
4) his right to have counsel present during any interview with officers or state attorneys
5) his right to terminate such interviews at any time
6) right to have an examining trial

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Right to an Examining Trial

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Before indictment, all felony defendants have a right to an examining trial by a magistrate to determine if probable cause exists to beleive the defendant is guilty.

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Purpose of the Examining Trial

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for magistrate to determine if probable cause exists as to the defendants guilt

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Warnings to the Accused at an Examining Trial

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Magistrate must advise the accused of his right to make a statement regarding the charges but also that any statement he makes may be used as evidence against him.

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Rights of the Accused at an Examining Trial

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1) to be represented by counsel
2) to subpoena witnesses
3) to be present during witness testimony
4) to confront and cross examine witnesses
5) To make a statement:
a) such statements must be made prior to examining any other witnesses
b) statement must be reduced to writing and signed by accused
c) magistrate must certify the statement.

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If Probable Cause is not established at an Examining Trial

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The magistrate must immediately release the defendant.

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Right to Bail

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Defendant has the right to bail that is not excessive.

Bail is a security given by the accused that he will appear and answer before the court the accusation brought against him.

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Considerations in Fixing Bail Amount

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Determined by Judge or Magistrate:
1) bail must be sufficiently high to give reasonable assurance that the defendant will return
2) bail cannot be used as an insturment of oppression
3) nature and circumstances of the offense committed
4) ability of the defendant to make bail
5) future safety of the victim and community

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Which judges may issue search warrants?

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1)judge of a municipal court or county court who is a licensed attorney.
2) statutory county judge
3) district court judge
4) judge on CCA
5) judge on SCOT

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What must be filed in order to obtain a serach warrant?

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A sworn affidavit setting forth substantial facts establishing probable cause.

If D challenges a search warrant, the state is limited to the factgs alleged in the challenged warrant.

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Requirements for an Evdentiary Search Warrant

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Sufficient facts to establish probable cause that:
1) a specific offense has been committed
2) the specifically described property or items that are to be searhed or seized constitue evidence of that crime
3) the property or items are located at or on the person, place or thing to be searched.

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Executing a valid warrant.

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-Time: must be within 3 days of issuance
-Inventory: before property is removed an officer must take a written inventory of that proeprty and a signed copy must be lieft witht he owner or person in possession. If no one is there, the officer must leave a copy behind.
- Officer must return the warrant and inventory to the Magistrate and disclose the manner in which it was served.

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Remedy for victim of unlawful search?

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the person may move the court to exclude all evidence and return the property.

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Composition of a Grand Jury

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A grand jury is composed of citizens charged with the duty to inquire into violations of the criminal law.

Contents: 12 jurors and 2 alternates. Each of whom must be 18 and qualified to register to vote.

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Two ways of selecting Grand Jurys

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1) District Court may appoint between 3-5 people as jury commissioners who will then select between 15-40 people to be summoned as grand jurors.

2) District Court may direct that 20 to 125 prospective grand jurors be summoned. The judge will try and question the grand jurors himself.

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Challenging a Grand Jury

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Before the Grand Jury has been impanneled, any person may challenge the array or one juror in particular.

A challenge to the array must be made in writing and only for:
1) those summoned as Grand Jurors are not in fact the people selected by the jury commissioners or Dist. Court.
2) Grand Jurors summoned by court order, the court officer who summoned them acted corruptly.

Challenge to an individual Juror may be made orally and for:
1) that he is not a qualified juror
2) that he is the prosecutor upon making an accusation against the person making the challenge.

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Grand Jury Qualifications

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Person must be;
1) Citizen of Texas and of the county in which the person is to serve and be able to vote in that county.
2) Sound mind and good moral character
3) Able to read and write
4) No convictions for theft or felony
5) Never been indicted for theft or felony

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Excuses from Grand Jury Service

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1) 70+ year old
2) responsible for the care of a minor child
3) student at a public or private secondary school
4) person enrolled and attending higher education
5) any other person with a reasonable excuse.

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Who may be present at Grand Jury Proceedings

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1) grand jurors
2) Attorney for the State
3) Witnesses while being examined
4) Baliffs
5) Stenographer

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Whom may address the Grand Jury?

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Only the attorney for the state, witnesses and if the attorney for the state allows, the defendant or his counsel.

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Duties of a Grand Jury

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The Grand Jury must inquire into all offenses capable of incidictment of which any memeber has knowledge.

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What happens when a witness refuses to testify before a Grand Jury?

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The court may compell the witness to answer the questions by imposing a $500 fine or committing the party to jail until he is willing to testify.

- NOTE: A news reporter can be cited for contempt if he refuses to name his source.

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Rights of the Accused durring a Grand Jury Proceeding

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The grand jury in questioning the accused must state;
1) the offense with which he is suspected
2) the county where the offense is said to have been committed
3) as near as possible, the time of the offense.

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Prior to any questioning, what must the Grand Jury warn the accused of?

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A written copy of the following warnings must be given:
1) his testimony is under oath
2) he is subject to prejury for lying
3) he has the right to refuse to answer any question that would incriminate him
4) he has the right to have a lawyer present
5) any testimony can and will be used against him at trial.

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Define Indictment

Back 46

the written statement of a grand jury accusing a person named therein of some act or omission which is, by law, declared to be an offense.

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Except of capital murder cases, a defendant may waive his right to be accused by indictment where he:

Back 47

1) is represented by counsel
2) personally waives by written instrument or in open court
3) waiver is made intellegently, knowingly and voluntarily.

Front 48

Define an Information

Back 48

A written statement filed on behalf of the State by the district or county attorney, charging the defendant with an offense which may be prosecuted by law.

An information is used in lieu of indictment when the defendant waives his right to accusation by indictment.

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How many grand jurors does it take to get an indictment

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9

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Form and Content of Indictment

Back 50

1) must say "In the name and by the authority of the State of Texas"
2) must appear that it was presented in the district court where the jury is in session
3) must contain the name of the acused or provide a reasonable means of ID
4) Must show that the offense was committed within jurisdiction of the court
5) Must conclude "Agaisnt the peace and dignity of the State"
6) Must use the proper statutory language and have one of the culpable mental states
7) must be signed by the jury forman

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A motion to set aside an indictment as defective must be made before trial and must be based on

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1) 9 grand jurors did not consent
2) Barred by statute of limitations
3) that it contains matter which is a legal defense to the crime or bar to prosecution
4) the court lacks jurisdiction

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Requirements for Motion to Set Aside Indictment as Defective

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1) All motions and special pleas must be in writing
2) The defendant is allowed 10 days after arrest to file motions and special pleadings
3) When defedant is entitled to a copy of the indictment the 10 days begins on service.

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Waiver of Defects and States Appeal

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Defects in the indictment are waived if not challenged before trial.

The state may appeal a courts decsion to throw out an indictment.

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What pleas may a defedant enter at arraingment?

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1) special exception or motion to set aside an indictment for form or substance
2) a special plea
3) guilty
4) not guilty
5) No lo Contendre
6) application for probation
7) election to have jury assess punishment on conviction.

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Four Admonishments before a Court may accept a Guilty Plea or No Lo Contedere

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1) range of punishment
2) the prosecutions sentencing recommendation isnt bining on the court
3) a guilty or no contest plea may lead to deportation for non citizens
4) The fact that the defedant may be required to register as a sex offender.

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Plea Agreements in Felony Cases

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Must be reduced to writing.
Must be signed by the prosecutor, the defendant, the defense counsel.
Must be presented to the court for approval.

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Withdraw of Guilty Plea

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Defendant may withdraw a plea of Guilty at any time before the judge takes the plea under advisement.

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The pretrial hearing ma determine anyone of the follwing issues

Back 58

1) Arraingment of the D
2) Appointment of Counsel
3) Pleadings of the D
4) Special Pleas of the D
5) Exceptions to the form or substanance of an indictment
6) Motions for continuance
7) Motion for change of venue
8) Discovery

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Procedural matters regarding Pretrial Hearings:

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When a criminal case is set for a pretrail hearing, any such preliminary matters not raised or filed 7 days before the hearing will not be allowed unless the proponent is given permission by the court after showing good cause for not filing.

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Motion for Continuance, Absent Witness

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Motion must state:
1) name of witness and his residence
2) diligence that has been used to secure the witness
3) the facts expected to be proved by the witness
4) the witness is not absent beacause of the D
5) Motion isnt made for delay
6) No reasonable expectation that attendence of the witness can be achieved during the courts current term

- All motions must be sworn

Front 61

Appealing a deinal of motion for continuance, absent witness

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If the motion is denied and the D is convicted, and it appears that the testimony of the absent witness is material then a new trial should be granted and continued until the absent witness is able to testify.

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Change of Venue for Trial

Back 62

Venue in any felony case or misdemeanor, punishable by confinement, can be changed on motion from any party or the court.

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Defendants Motion for Change of Venue

Back 63

A change of venue may be granted when based on a written motion and supported by D own affidavit and two other credible persons who are residents of the county where the prosecution is taking place on one of the following grounds:

1) within the county there is great prejudice against the D so that he cannot obtain a fair and impartial trial or;

2) That there is a dangerous combination instituted agaisnt him by powerful persons and he cannot recieve a fair trial.

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Timely Objections to Venue?

Back 64

Statute: Must be raised 7 days before trial.
Case Law: failure doesnt waive the right.
Bench trial: D may challenge venue anytime before verdict.

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Impompetence to Stand Trial

Back 65

-Defense, Prosecution or Court may suggest someone is imcompetent.
- The party asserting incompetence has burden of prof
- A D will be found incompetent to stand trial it is proved by POE that:
1) D lacks sufficient present ability to consult with defense counsel with a reasonable degree of understanding

2) D lacks a rational as well as a fact based understanding of the proceedings

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Insanity

Back 66

A D planning to assert Insanity Defense must file notice with the court at the pretrial hearing or not less than 20 days before trial.

Definition:
Mental Illness that substantially impairs a persons thought, perception of reality, emotional states or grossly impairs behavior.

Front 67

Does the Defendant have a right to the prosecutions witness list?

Back 67

No, but the court may order the prosecutio to provide the D with one on the D's motion.

Front 68

Defendants Motion for Change of Venue

Back 68

A change of venue may be granted when based on a written motion and supported by D own affidavit and two other credible persons who are residents of the county where the prosecution is taking place on one of the following grounds:

1) within the county there is great prejudice against the D so that he cannot obtain a fair and impartial trial or;

2) That there is a dangerous combination instituted agaisnt him by powerful persons and he cannot recieve a fair trial.

Front 69

Timely Objections to Venue?

Back 69

Statute: Must be raised 7 days before trial.
Case Law: failure doesnt waive the right.
Bench trial: D may challenge venue anytime before verdict.

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Impompetence to Stand Trial

Back 70

-Defense, Prosecution or Court may suggest someone is imcompetent.
- The party asserting incompetence has burden of prof
- A D will be found incompetent to stand trial it is proved by POE that:
1) D lacks sufficient present ability to consult with defense counsel with a reasonable degree of understanding

2) D lacks a rational as well as a fact based understanding of the proceedings

Front 71

Insanity

Back 71

A D planning to assert Insanity Defense must file notice with the court at the pretrial hearing or not less than 20 days before trial.

Definition:
Mental Illness that substantially impairs a persons thought, perception of reality, emotional states or grossly impairs behavior.

Front 72

Does the Defendant have a right to the prosecutions witness list?

Back 72

No, but the court may order the prosecutio to provide the D with one on the D's motion.