johns crimpro.txt

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  1. District Court Jurisdiction
    1) Felonies; 2) misdemeanors involving official misconduct; 3) transferred county court prosecutions for misdemeanors punishable by jail time.
  2. Justice Court Jurisdiction
    Offense punishable only by fine
  3. Municipal Court Jurisdiction
    Exclusive: over offenses created by city ordinance and punishable only by fine; Conccurent: offenses created by state law and punishable only by fine
  4. County Court Jurisdiction
    Misdemeanors over which exclusive jurisdiction is not given to justice courts
  5. Steps in 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; 9) penalty assessement; 10) pronouncement of sentence; 11) motion for new trial; 12) motion to arrest judgment; 13) notice of appeals; 14) appeal to COA; 15) appeal to CCA; 16) Habeas
  6. Habeas Corpus
    Court order commanding someone with a person in custody to produce them and show why in custody
  7. Post-Arrest Presentment Time Constraint
    Must be presented before magistrate "without unnecessary delay"; within 48 hours.
  8. Duties of Magistrate at Presentment
    1) Tell Charges; 2) Tell rights to a) retain counsel; b) an examining trial; 3) Warn that, w/r/t poliec questioning; a) right to remain silent; b) any statement makes can be used against; c) right to have attorney present during questioning; d) request an appointed attorney; e) can terminate an interview with cop at any time; 4) set bail; 5) determine whether probable cause exists.
  9. Bail
    Required if no probable cause determination; 1) felonies after 48 hours of arrest w/o warrant; 2) misdemeanors 24 hours after arrest; Magistrate can delay release for not more than a total of 72 hours.
  10. Denying Bail (when/how can you)
    1) Capital Murder Prosecution; 2) Certain others: a) D is charged with noncapital felony; and b) substantial evidence of D's guilt; and c) one of the following: i) two prior felony CONVICTIONS; ii) present offense committed out on bail on felony; or iii) one prior felony conviction and present offense involved use of deadly weapon; iv) prsent offense was a violent or sexual offense committed while on felony probation or parole. Any denial must issue w/i 7 days of apprehension. Denial of bail is immediately appealable to the C.C.A.
  11. Bail Denial for Non-Capital Offense
    Only valid for 60 days, unless defense moves for a continuance of trial proceedings.
  12. Challenging Bail
    1) File application for writ of habeas corpus in district court; 2) at heading introduce evidence that a) bail was excessive; b) cannot meet bail set; and c) amount of bail he can meet; 3) judge can order bail reduced or the decision is appealable to CoA
  13. Setting Bail
    1) Likelihood of D appearing for trial; 2) Ability of D to make Bail; 3) Seriousness of the Crime Charged; 4) Future Safety of Victim and Community; 5) Required Bail is not to be an isntrument of Oppression. Magistrate may impose any reasonable condition on bail related to safety of victim or community.
  14. Time Limits of Bond
    Jailed D must be released on bond if the State is not ready for triail within a) Felony: 90 days; b) Class A: 30 days; c) Class B 15 days; d) Class C: 5 days.
  15. Examining Trial
    Before a Magistrate. Purpose is to require state to produce evidence showing probable cause to believe D is guilty; D has rights to 1) present; 2) represented by counsel; 3) have rules of evidence applied; 4) cross-examine state witnesses; and 5) subpoena and present defense witnesses. If you win, all it means is you go free for the time being.
  16. Examining Trial (when entitled)
    1) Charged with a felony; 2) Indictment has not yet been returned.
  17. Charging Instrument
    1) State must seek an indictment; Acquired by getting a grand jury to find that probable cause exists. Foreperson signs indicment, filed in district court. Indictment may be waived in all prosuections except capital murder.
  18. Requirements for Waiving Indictment
    1) D must be represented by counsel; 2) Waiver must written instrument or in open court; 3) The Waiver must be Voluntary
  19. An "information"
    Pleading filed by State charging person named with criminal offense. Need only be signed and approved by prosecutor. Must be supported by a valid and sworn complaint. (These are for misdemeanors). For class C, all you need is the complaint.
  20. Grand Jury Selection
    Grand Jurors are selected either by 1) grand jury commissioners (appointed by district judge; OR 2) same manner as trial jurors in civl cases.
  21. Commissioner Requirements in Picking
    Select grand jurors who represent a broad cross section of the population considering race, sex, and age. If not, defense should "challenge the array" If you know the information during the selection, you should object then or have to prove you didn't have the opportunity to do so.
  22. Grand Jury Proceedings
    1) Can compell suspect to appear by issuing subpoena, but can't compel answers if right against self-incrimination is invoked; 2) If Suspect appears voluntarily, must be instructed a) the offense of which he is suspected; b) the county in which it was committed; c) the time of its occurrence; 4) questions asks and his testimony may be recorded. If SUBPOENAED, warnings: a) testimony under oath; b) false answer to question subjects him to prosecution for perjury; c) can refuse to answer incriminating questions; d) right to have counsel appointed; e) right to have a lawyer present outside the room; 6) testimony can be used against him. Also, must be given a) written copy of warning; and b) reasonable opportunity BEFORE APPEARING to obtain and consult w/ counsel. On prosecutor and grand jurors may cross-examine witnesses though. Defense can address the grand jury if 1) grand jury permits this and 2) prosecutor consents
  23. Challenges to Indicments Based on GJ Proceeding
    1) Only authorized people should be present. If unauthorized people are present DURING DELIBERATIONS, indictment can be set aside. Indictment may NOT be set challenged for evidentiary insufficiency
  24. Statute of Limbs for Prosecution
    1) SoL "tolled" while D is out of state or while instrument chargnig the same offense is pending against accussed and later dismissed; 2) No Limitations for a) murder/manslaughter; b) offense involving leaving the scene; c) sexual assault, where DNA indicates perp is not a person who identity is easily ascertained; d) sexual assault, abuse, or indency w/ child. PERIODS: Misd: 2 years, Fel: 3 years, Theft/burglary, robbery, kidnapping: 5 years.
  25. Charging Instruments, Generally.
    1) Alleges only facts, doesn't name crime; 2) Provides accussed with trial prep notice. FActs constituting all elements must be alleged (statutory language = sufficient) and VICTIM must be named.
  26. Formal Requirements of Indictment or Information
    1) Commence: "In the name and authority of the State of Texas"; 2) Name the accussed (or describe); 3) Set forth all elements of the ofense; 4) Specifical enough details to give notice; 5) Alleged crime was committed on date that is within period of limitations and before presentment of indictment; 6) Allege commission of the crime in a county w/i court's juri; 7) Conclude: "against the peace and dignity of the state"; 8) Be signed
  27. Significance of Indictment for Trial
    1) Determines those offenses for which accussed can be convicted (but can be convicted of "lesser included offense") 2) May give rise to variance b/t indictment and proof (Date alleged is not binding)
  28. Uncharged and Lesser Included Offenses
    Lesser Included if 1) proved by some, but not all the same facts required to prove more serious one; 2) requires only a less erious injury to the same person, property or itnerest as the moer serious; or c) requires only a less culpable mental state; or d) it consists of an attempt to commit the more serious offense.
  29. Named Of Accussed
    If D thinks it's not his true name: 1) raise this at arrainment; 2) specify his true name; 3) judge is then to correct indictment
  30. Raising Indictment Defects
    Must be raised before trial except for FUNDAMENTAL DEFECTs (no person specified as accessed or cannot tell what crime is charged). Must be filed the day before trial begins. If indictment quashed, state may 1) take appeal, 2) obtain new indictment, or 3) amend the indictment. Motion can object to form or substance.
  31. Curing Defects by Amendment
    1) Amendment permitted at any time if D doesn't object; if objection: 1) if before day of trial, amendment permitted unless it causes indictment to alleged different or additional offense, or 2) prejudice the subs tantial rights to defendant. D's procedural rights: 1) notice of amendment; 2) trial court must authorize amendment; 3) D gets 10 days to prepare for trial, even if delay in trial is required. NO AMENDMENTS PERMITTED DAY OF TRIAL.
  32. Arrainment
    Takes place in thr trial court; 1) accussed enters a plea; 2) fixes the accussed identity; 3) judge appoints counsel
  33. Criminal Defendants' Mandatory Decisions
    1) What plea to enter; 2) Whether to have a trial by jury; 3) Whether to take the stand as a witness at trial
  34. Difference b/t Guilty and Nolo Contendre
    You can use guilty plea as evidence in a civil trial
  35. Judges Duties to Defendant Pleaing Guilty or Nolo Contendre
    1) inform D of range of punishment; 2) inform D that recommendations by the sate are not binding; 3) inofmr D of limited right, after guilty plea, to appeal; 4) inform D that plea may result in deportation, exclusion from US, or denial of naturalization; 5) inquire as to whether there is a plea bargain. If entered into because of plea agreement that judge goes away from, D can withdraw.
  36. Pre-Trial Hearing and Conference
    Optional. If it happens, parties must do certain things 7 days before hearing: a) enter any special plea; b) make challenges to the indictment; c) make motions for continuances; d) make motions for change of venue; e) make motions to suppress evidence; f) make requests for discovery; and g) raise claims of entrapment. (Can avoid these rules for good cause). D has the right to be there
  37. Motion in Limine
    Either ruling on merits fo some question of evidence or prcoedure that will arise before trial or ruling that opposing counsel must alert judge before raising some matter of evidence before jury
  38. Motion to Suppress Evidence
    Motion to say evidence to be offered a trial is inadmissible. Usually that it was obtained illegal. (Preferred for this and perserves error for appeal).
  39. Discovery Under Texas Law
    Trial judge has discretion to order State to provide defense with a list of witnesses State intends to call and discretion to order either both sides to provide list of expert witnesses it may calls at least 20 days before the trial date.
  40. Depositions
    Either side may be permitted to depose a witness. Requires Trial Judge to usse an order authorizing; to obtain, party must show "good reason" for depo. (Witness's testimony will be necessary for trial and that the witness is likely to become unavailable before trial)
  41. Inspection/"Real Discovery"
    Inspection MUST be ordered if the thing: a) is a tangible thing; b) constitutes or contains material evidence; c) is in the possession of the State; and d) is not work product of the state. otherwise, trial judge's discretion. Inspection CANNOT require the state to give up possession of the item and must be sufficient to give the accused the information necessary to prepare for the trial.
  42. Informant Disclosure
    Identity of informer is generally privileged and can be withheld by the State. May be rqeuired in two situations: 1) if informant provided info by which State obtained evidence a a way D claims was illegal (court has discretion if necsesary to establish informant's reliability); 2) upon a showering the informant can provide testimony necessary to a fair determination of guilt-innocence, court must order disclosure
  43. Federal Constitutional Duty to Disclose Exculpatory Evidence
    Due Procses violated if both: 1) prosecution failes to disclose exculpatory evidence in its possesion and 2) the information is material, meaning there a reasonably probability the outcome of the case would be different.
  44. Competency to Stand Trial
    D is incompetent to stand trial if a) lacks ability to consult w/ counsel with reasonable degree of understaind; OR b) lacks rational and factual understanding of the proceedings. If condition improves, D can be determined competent and away we go. (Anyone, including trial court, can make motion on competency). Legally presumed competent, rebut by Preponderance of Evidence.
  45. Venue
    Generally, county where the crime was committed
  46. Venue (When D can Change)
    1) prejudice in county would prevent fair trial; or 2) dangerous combination of influential persons against the D would prevent fair trial.
  47. Venue (When State can change)
    1) combinations or infeluences in favor of D would prevent fair trial; 2) Lawless conditions would prevent fair trial; OR 3) life of D or a witness would be jeopardized by a local trial.
  48. Change of Venue Procedure
    Either party of Trial Court can make motion. Motion must be written and have affidavits that a fair trial cannot be in the county by D and two credible residents of the county.
  49. Disqualification of the Judge
    1) judge was victim of the crime; 2) judge was counsel for either side; 3) judge is related within three degrees to either D or the victim; 4) bias
  50. Presence of the Accused
    Felony Case: D must be present at the beginning of trial. a) in jur case, through sewaring of the jury, in nonjury, through D's plea to the indict. AND must be rpesent for formal sentencing. Can continue if voluntarily absent in the middle. MISDEMEANOR; D can be absnet if prosecutor consents
  51. Joinder/Severance of Charges
    1) Indictment may allege only ONe offense; D may be tried on only one indictment per trial. If scheduled for trial on several indictments, D is entitled to have the trials SEVERED HOWEVER, "criminal episode" exception.
  52. "Criminal Episode Exception" to Severance Rule
    1) State may join in one indictment all offenses airsing out of one criminal episode; 2) Each must be in separate counts; 3) If D has several indictments from one episode, State is permitted to consolidate. EPISODE = "a) part of the same transaction; b) part of a common scheme or plan; OR c) the same or similar offenses." State is not required to seek trial together and D has the right to sever the charges for separate trials. IF SEVERED = prison terms run after one another instead of concurrently.
  53. Joinder and Severance of Ds
    Ds may be charged in one indictment if all charged with the same offense OR charged with different offenses arising out of the same transaction. MANDATORY SEVERANCE: D who moves for severance and shows co-d has prior conviction admissible against them, MUST be granted; DISCRETIONARy, trial court can grant if joint trial would be jeopardized to D who has moved to sever.
  54. Continuances and Postponements
    1) Motion for continuance must a) be in writing, b) be supporting by a showing of good cause; and c) be sworn. IF AFTER TRIAL HAS BEGUN: a) based on an occurrence that happened after trial began, b) occurence could not have been anticipated; and c) surprise must be such as to prevent a fair trial.
  55. Continuance (Requirements)
    Must allege: 1) name and residence of missing witness; 2) effort made by defense to find and get witness to court; 3) material facts defense experts to prove by witness. Always in discretion though.
  56. Rights to Counsel, Self-Representation, Expert Assistance
    1) Sometimes a right to be appinted attorney (if charged w/ felony or jail time); 2) Also, right to rep yourself.
  57. What to do if D rejects right to Appointed Attorney
    Judge must make sufficient inquires of D, on the record, to assure competence to engage in self-rep. (Understand the disadvantages and risks of doing so).
  58. Appointed Attorney's Duties
    1) Make a timely effort to contact. No later than first working day after date of appointment. Then court is authorized to replace.
  59. Right to Effective Representation
    Right to effective rep violated if: 1) lawyer's actions were beyond bounds of professional competence, and were not simply tactical decisions; and 20 reasonable probability that had counsel been effective, results of the proceeding would have been different
  60. Automatic Ineffective Assitance
    a) fails to conduct adequate investigation; b) fails to convey to the client an offer of a plea bargain offer
  61. Effective Representation (Expert Appointment)
    Can get one if one an "Ake' motion, you show expert's expertise is likely to be a significant issue in the case. State must pay for expert.
  62. Dismissal By State
    To dismiss charges, State must a) file a written statement of the reasons and b) trial judge must consent. No further prosecution may occur after jeopardy attaches.
  63. Basic Structure of the Jury Trial
    1) Must be tried to jury (unless waived -- can't waive for capital and requires consent and approval of presocution and judge); 2) Jury Size: District = 12, County, Muni, and Justice = 6; 3) General verdict unless special plea is submitted to the jury and jur finds 'not guilty by reason of insanity') 4) Jury must communicate w/ judge in writing and judges response must be in writing and read to the jury in open court.
  64. Jury Trial Verdict
    1) Must prove guilty beyond reasonable doubt; 2) Must be unanimous; 3) if not, mistrial (can happen via agreement or court findis jury been kept together long enough to render it altogether improbable that it could agree)
  65. Jury Selection: Generally
    1) swearing in the panel; 2) qualification of the panel members by the judge; 3) possible jury shuffle; 4) voir dire of the jury panel members; 5) challenges for cause; 6) peremptory challengesl 7) empaneling actual jury.
  66. How to Be Qualified as Juror
    Judge asks: 1) are you a qualified voter in this county and state? 2) Ever been convicted of theft or any felony? 3) under indictment or accusation of theft or any felony?
  67. Challenges for Cause
    No limits. Possible challenges = 1) Prior conviction for theft or felony; 2) under formal charge for the same; 3) insane; 4) not qualified to be a voter; 5) is a witness in the case; 6) served on a jury in prior trial of the case; 7) served on indicting grand jury; 8) cannot read and write; 9) Biased or Prejudced for or against the accussed; 10) Bias or Prejudidce against any law applicable to the case on which the defense or the state is entitled to rely. If disqualified juror sits and objection not raised before VERDICT, must show that jruror's service on the case aused "significant harm" (Absolute dis q's = prior conviction, under charge, or insane, everything else must be made at jury selection)
  68. How to prevail on cause for Bias/Prejudice
    Must show jruror cannot put aside opinion and decide the case on the basis of law and evidence.
  69. Peremptory Challenges
    1) Capital Murder: 15; 2) Other felony: 10; 3) Misdemeanors in county, etc. = 3; 4) Misdemeanors in District = 5.
  70. Batson Challenge Procedure
    If you use all the challenges on a certain class, raises prima facie case of racial motivation. State then has to explain. If Batson is successful, judge can a) dismiss the array and start jury selection over; or b) reinstate those jurors struck for Batson reasons.
  71. Trial Procedure (Felony)
    1) Judge calls for and parties give annnouncements of ready; 2) prosecutor reads the indcitment; 3) defense counsel enters a plea; 4) prosecutor makes State's opening sattement; 5) proseuction present's State's case in chief; 6) defense counsel makes defenses opening statement; 7) defense present defense evidence; 8) rebuttal evidence is presented; 9) judge reaeds the charge to the jury; 10) counsel makes final argument to the jury. EXCEPTION: Defense can make opening statement immediately after state's opening statement.
  72. Calling Witnesses
    Both sides are entitled to have subpoena and entitled to have an attachment issued for a witness if properly subpoenaed and fails to appear.
  73. Exclusionary Rule
    Evidence may not be admitted against accussed if obtained by officer or other person in violation of 1) constitution; 2) laws of Us; 3) constitution of texas; or 4) laws of texas. UNLESS officer obtained it acting in objective good faith reliance on warrant issued by magistrate based on probable case. (Sometimes whether something was illegally obtained is a question for the jury...must prove legal obtainment beyond reasonable doubt).
  74. Jury Charge
    Judge can't comment or summarize the evidence; Reqs; 1) read the charge to the jury in court; 2) done before the lawyer make final arguments; 3) jury is also given writen copy. Charge should not define reasonable doubt. Also entitled to instruction on D's decision not to testify. PERSERVING ERROR: objection or request for special charge containing correct law.
  75. Jury Charge Oral Objection
    Fine if: dictated to the court report, in the presence of the judge and the prosecutor and done before the final charge is read to the jury.
  76. Jury Charge No Objection
    Unobjected error in charge charge is "fundamental" and can be raised on appeal for the first time if it resulted in EGREGIOUS HARM that prevented a fair trial.
  77. Arguments of Counsel (Final Argument)
    Limited to 1) summation of evidence; 2) making reasonable deductions; 3) answering arguments of opposing counsel; and 4) making pleas for law enforcement. NOT PERMITTED 1) comment on D's invocation of self-incrim rights; 2) express personal opinions; 3) argue what community demands; or d) strike at D over the shoulder of D counsel. In felony case, each side gets 2, D always gets right to argue last.
  78. Evidence which requires corroboration
    1) accomplice testimony; 2) D's out of court confession; 3) sexual assault victim's testimony; 4) some tsetimony by an undercover informer; 5) "Jailhouse Snitch"
  79. Sexual Assault Victim Rule
    Need evidence that 1) victim told someone other than D about the offense within one year of its commission; 2) the victim was under 18 years of age at the time of the crime; 3) victim was impaired, i.e., unable to satify her need for food, shelter, care etc. or 4) victim was 65 or older.
  80. Trial on Punishment or Sentencing
    1) Ds have right to have jury assess sentencing; State can't. 2) Jury sentencing must be invoked by D by a timely election; 3) Jury required for death penalty; 4) can waive jury for guilt-innocence and elect for sentencing, but should elect before voir dire of jury panel.
  81. Evidence allowed at Jury sentencing
    Rules of evidence apply, but allow a) D's prior criminal record; b) D's general reputation; c) D's charater d) cirucmstances of the offense found guilty of; e) juvi conviction based on felony conduct; f) evidence of extraneous crimes or bad act by D
  82. Parole Law and Good Conduct Time
    May consider "existence" of parole law, but not to consider a) extent to which good time may be awarded to this D or how parole law may be applied in this case.
  83. Death Sentence
    Jury given two or three "special issues": 1) is there a probability that D will commit criminal acts of violence constituting a continuing threat? 2) did D a) actually personally cause the death of the victim; OR B) intent to kill the victim OR c) anticipate that a human life would be taken? 3) Are there sufficient mitigating cirucmstance to warrant life imprisonment rather than death? If jury says yes on question 1 and 2 and No on 3, judge must impose death.
  84. Community Supervision
    1) D is eligible if punishment assessed does not exceed 10 years; 2) can be revoked if a) violation of a condition of community supervsion must be shown, but only by proof of PPE; b) no jury trial is held; c) D is quired to serve the sentence previousl assessed (or as reduced); 4) If completed, trial court has discretion to dismiss the charges
  85. Requirements to apply for felony probation
    1) writing, 2) sworn; 3) state that D has not been convicted of a felony.
  86. When is Community Supervision Unavailable?
    1) conviction for murder or sex offense w/ child under 14. Judge can't give it if deadly weapon finding is made and it's one of the bad offenses that isn't murder or sex offense
  87. "Shock" Community supervision
    Putting someone in jail for a bit before putting them on supervision.
  88. Deferred Adjudication
    Eligibile if charge is offense other than 1) DWI, intoxicated assault, or intoxicated mansalughter and D enters a plea of guilty or no contest.
  89. Deferred Adjudication Procedure
    1) receive Plea; 2) hear evidence; 3) find evidence substantiate's guilty; 4) inform D of consequences of violating community supervision (any sentence in the statutory range). If you complete the supervision, charges dismissed.
  90. Formal Sentencing
    D can say something before it happens. But the only reasons accussed sentence isn't going to be pronounced are 1) pardon; 2) D has become incompetent; 3) D is not the person convicted.
  91. Motion for New Trial
    1) Filed within 30 days of pronouncement of sentence and 2) presented to the court within 10 days of filing (but allowed to permit presentation w/i 25 days of sentencing)
  92. Motion for New Trial (grounds for granting)
    1) continuing trial when D had to be there and wasn't 2) verdict was decided by lot; 3) D's right to counsel was violated; 4) juror was bribed or engaged in corrupt conduct; 5) jrurors received evidence after retiring to deliberate; 6) jurors conversed about the case w/ someone not on the jury; or 7) new evidence has been discovered. Must be ruled on within 75 days of sentencing.
  93. New Evidence Ground
    Must be 1) unknown to D before trial; 2) failure to discover evidence was not due to D's lack of diligence; 3) evidence is competent and not merely collateral or impeaching; 4) evidence is so persuasive that it would probably cause a different result. Counsel must file motion w/i 30 days of sentencing and then present it the court within 10 days of filing.
  94. Motion of Arrest of Judgment
    1) indictment has defect of substance; 2) verdict varies from indictment; or 3) judgment is invalid
  95. Weird Appeals stuff
    If justice or muni, appeal to county court for de novo trial and can only appeal to CoA if fine exceeds 100 or sole issue is constitution
  96. Post-Conviction Bail
    D is not eligibile for bail pending appeal is punishment >10 years. CAn also be denied if court finds D will not appear if the conviction is affirmed or is likely to commit an additional offense.
  97. Appeals, Generally
    Notice of appeal must be in writing, filed with trial court, and filed within 30 days (unless a motion for new trial filed, then 90 days)
  98. Appeal of Guilty PLea
    D who pleads guilty PURSUANT TO PLEA BARAGIN and gets a sentence in that can only appeal if 1) trial judge grant permissions OR 2) appeal is basedon matter raised by pretrial written motion and ruled on
  99. Pre-trial State Appeals
    Can do it if trial court: 1) dismisses the indictment; 2) grants a defense motion to suppress evidence before jeopardy attaches; or 3) sustains a defendant's claim of double jeopardy
  100. Post-Trial State Appeals
    If 1) grants a defense motion for a new trial; 2) grants a defense motion to arrest judgment; or 3) imposes an "illegal" sentence.
  101. State Appeals, Generally
    State is entitled to stay the trial court pending resolution of appeal if state can show 1) jeopardy has not yet attached; 2) appeal taken within 20 days of the order; and 3) certify evidence is of substantial importance and appeal is not taken for purposes of delay.
  102. Preserving Error in Excluding Evidence
    1) make an ofer of proof showering substance of evidence, can be done by either 1) counsel's oral summary; or 2) "question and answer" form AND get a ruling on the evidence.
  103. Preserving Error in Admitting Evidence
    1) make a timely objection; 2) state the ground to be relied upon; and 3) secure a ruling.
  104. Preserving Error in Improper Argument or Improper Question
    1) immediately object; 2) seek instruction to disregard; 3) move for a mistrial.
  105. Variance b/t Pleading and Proof
    If both: 1) state proves D guilt of offense charged; 2) BUT the state's proof shows guilt in a way that differs from an unnecessarily inlucded detail in the pleading. REQUIRES ACQUITTAL ONLY if th variance b/t allegation and proof
  106. Harmless Error
    Constitutional Error is Harmless only if appellate court convinced beyond a reasonable doubt that error not contribute to either the conviction OR punishment
  107. Habeas Proof Requirements
    1) Error endering the conviction void; 2) jurisdictional Error; 3) Violation of a Constitutional Right; 4) ACtual innocence (a) new evidence showing innocence that is now available and (b) CCE that not reasonable jury hearing this new evidence would convict.
  108. Subsequent Habeas Action
    Can't do it unless a) subsequent action is based on a ground not available when first action brought; or 2) D establishes a) D's fed con rights were violated; AND b) "but for" that violation no rational jruror could have found D guilty.
  109. Double Jeopardy, Basics
    Once D placed in jeopardy for an offense, D can never again be tried for "sam e offense"
  110. Double Jeopardy, Exceptions
    1) Frst proceeding ended in a mistrial declared for "manifest necessity"; 2) first proceeding ended in mistrial declared on motion of D; 3) first trial ended in conviction revesed on appeal ebcasue of procedural error; 4) first trial ended in conviction revesed on appeal because verdict was against the weight of the evidence; 5) section prosuection is by a different sovereign jurisdiction.
  111. Attachment of jeopardy under Fed Con Law
    1) Jury Trial: When jury is sworn; 2) Bench Trial: When first witness is sworn
  112. Attachment of jeopardy under Texas Law
    1) Jury Trial: When jury is sworn-in; 2) Bench trial: when both a) parties have announced ready; and b) D pleads to the indictment
  113. Successive Prosecutions
    For different offenses are barred only if one offense is a lesser included offense of the other.
  114. Blockburger Test (lesser included ofense)
    1) If each offense contains at least one element not contained in the other, then neither is a lesser included offense
  115. "Collateral Estoppel" Rule (Successive Prosecution)
    Acquittal of one offense bars second prosectuion for different offense if D shows: a) precise factual basis for acquittal in first proceeded; and b) that fact also controls in the second prosecution.
  116. Convictions on Several Offenses
    Convictions for related are barred only if legislature did not intend to authorize civictions for all; if one is lesser included, prseumed that legislature did not intend conviction for both.
  117. Who are Separate Sovereigns
    Different states or state and fed, not state and city/county.
  118. How to Raise Double Jeopardy Challenge in TX
    File pre-trial app for writ of habeas: 1) judge decides, before trial, and immediately appealable OR B) file a special plea of former jeopardy: 1) jury decides contested issues of fact, raised during trial, and if convicted, then appeal.
  119. Privilege Against Self-Incrimination
    Authorities Can't Compel a person to engage in self-incriminating "testmonial behavior," but if the person is granted immunity, privilege no longer applies. (Distinguish between testimonial and nontestimonial conduct)
  120. Search, Defintion
    Any Official ACtion that intrudces upon a person's Reasonable Expectation of Privacy
  121. Definitional NON-SEARCHES
    1) aerial surveillance of fenced yard; 2) exam of trash left in yard; 3) determining numbers dialed from residential home; 4) having a beeper to follow a car on public streets; 5) having a dog sniff luggage
  122. Definitional Searches
    1) rigorous squeezing of luggage in bus overhead rack; 2) thermal imaging
  123. "Plain View" Doctrine
    Officers are not searching if they a) reach a location without violating the Fourt Amendment, and b) simpl look at something in open view.
  124. "Open Fields" Doctrine
    Officers who go upon unoccupied or undeveloped area of land not part of the "curtilage" of the dwelling aren't searching.
  125. Search Reasonableness Requirements
    Must be 1) pursuant to a valid search warrant and b) be based on probable cause
  126. Iterms subject to seizure
    1) contraband; 2) fruits of the crime; 3) instruments of the crime; 4) evidence that a crime was committed or that a person commited it.
  127. 4th Amendment Warrant Search Law
    1) Must be issued on info constituting probable cause; affidavit must set out facts from which issuing magistrate can make independent judgmenet about whether probable cause exists. Must describe 1) place to be searched; and 2) items to be seized.
  128. "No Knock" Entry
    General Rule: Officers must known and announce and give occupants opportunity to admit unless "reasnoable suspicion" that occupents would 1) resist the officers or 2) remove or destroy items for which warrant issued.
  129. Warrant Affidavit and Informants
    Warrant affidavit based on informant needs to indicate 1) informer was in general sense reliable; and 2) informant had a reliable source for this specific information.
  130. Challengeing Warrant Based on inaccurate facts
    D must show 1) affiant missstated certain facts; 2) affiant did this intentionally or at least w/ reckless disregard; and 3) misstated fact was material
  131. Texas Search Warrant Law
    Must contain: 1) statement that it runs in the name of the "state of texas"; 2) specifi ation of person, place or thing to be searched; 3) specification of the items to be seized; 4) an endorsement of the date and how it was issued; and 5) the signature of the issuing magistrate. NOTE: search warrant must be executed within 3 days, exclusive of the day it was issued and the day of the execution.
  132. Evidentiary v. General Search Warrants
    Evidentiary: warrant issues for an item that is seizable only because it is evidence that a crime was committed or a particular person commited it. JoP cannot issue these. Can't issue for writing of the accused.
  133. Consent Searches: Effectiveness of Consent
    1) Voluntary; 2) from either a) persno with general right of access or b) someone reasonably believed by oficers to have such access.
  134. Consent Search, Joint Occupants
    Generally, only need one, unless joint occupant against whom search is directed is objecting.
  135. Searches of Autos
    Moving Vehicles and parking in public places cannot be searched w/o warrant unless probable cause.
  136. Search Incident to Arrest
    Permits 1) search of the pessenger compartment (including glove box), but not the trunk AND cannot be made after D is secured.
  137. Exigent Circumstances Search
    1) reasonable to believe delaying search to get a warrant would result in removal or destruction; 2) probable cause to believe seizable items will be found.
  138. Arrest Made Inside Premises
    1) Officers automatically can look in immediately adjoining places where persons might be concealed; 2) can sweep if officers have reasonable suspicion that dangerous persons are present.
  139. TX arrest law
    Warrantless Arrest law allowed if 1) offense committed in officer's presence or view; 2) probable cause to believe suspet committed felony and reason to believe "about to escape"; 3) suspect is found in "suspicious place" and has committed a felony or breach of peace; 4) suspect violated protective order; 5) subjkect injury another and danger of further injury; 6) subject found with stolen property; 7) suspect injury member of family or household; 8) probable cause to beleive suspect committed a felony based on admission statement to officer.
  140. When does Officer Have Authority to Break Down Door in TX
    1) Arrest is for Felony; 2) Officer gives notice of officer's authority and purpose; 3) Officer is refused admittance
  141. Nonarrest Terry STops
    Investigation may be made on "reasonable suspicion": some objective basis for officer's suspicion that suspect has committed, is committing, or is about to commit a crime. (anonymous tip = insufficient)
  142. Limits on Field Stops
    a) cannot be too length; b) suspect cannot be extensively moved; c) no automatic right to search. If probable cause develops, becomes valid arrest. "Weapons search" allowed if initially limited to patdown, to determine whether suspect has a weapon, and can only be made if officer has reasonable fear of safety.
  143. Suspect Seizure if:
    1) officer physically retrains; 2) officer makes a shower of authority and the suspect submits
  144. Lineup Law
    6th amendment right to lawyer present if it is conducted have judicial proceeding have begun; Due process right to have procedure to not have it be extremely suggestive, even when no riht to counsel. If you violate the rule, can't be used in evidence, but identifier can still do it in court.
  145. When Are Oral Statement Admissible?
    1) Statement was judicial (made in open court or before grand jury); 2) Statement was res gestate of either a) the offense or the arrest (res gestae = impulsive and spontatenous reaction to excitement); 3) statementw as electronically recorded; 4) statement was corroborated (contained at least one assertion of fact/circumstances, which was incriminating, and found to be true by reliable info develoepd after the statement was given.
  146. When is an Electronically Recorded Statement Admissible?
    If prosecution shows: 1) record is accurate and has not been altered; 2) recording reflects thta accused was warned of his rights; 3) during recording accused knowingly and voluntarily waived thsoe rights; 4) al material voices are identified; 5) defense counsel was provided with copies of all recordings made of D under the statute (20 days notice). NEED NOT BE TOLD STATEMENT WAS RECORDED.
  147. TX Procedure for Litigating Confession Issues
    Counsel should file motion to suppress statement on ground it wasn't voluntary. TC holds a hearing. Also makes finding of fact.
  148. Exclusionary Rule Standing
    1) D's objection based on HER underlying rights; 2) means search must have intruded about D's privacy. 3) Only a passenger in car !have standing, but passenger is SEIZED and can challenge that.
  149. Attenuation of Taint
    If you're too far from "fruit of the poisonous tree," it's fine again.
  150. Inevitable Discovery
    evidence would inevitably have been obtained legally (NOT IN TX)
  151. Confession Law, Generally
    May be inadmissible if 1) involuntary; 2) product of delay in bringing arrested D bf magistrate; 3) Miranda Violation; 4) Sixth Amendment right to counsel violation; 5) product of an unlawful arrested 6) TX confession statute
  152. When is a Confession Involuntary?
    1) result of coercion or threat; 2) totaly of circumstances indicate that officers "overcome D's will"
  153. TX Involuntary Confession Rules
    Promise = involuntary confession if: 1) given be someone in authority; 2) definite; 3) likely to cause an innocent suspect to make a false confession. Confession given during propery delay is inadmissible if D shows casual connection.
  154. Miranda
    Requires: 1) Counsel present during questioning; 2) Warning: a) right to remain silent b) anything said may be used against; c) suspect has right to have attorney present; d) suspect has right to appointed attorney. 3) interrogation can begin in absence of attorney only if counsel right waived. These only apply if you're "in custody." You can call baskies on waiving right to counsel if you do so unambiguously.
  155. Sixth Amendment Rgiht to counsel
    1) Right to counsel at questioning by undercover officer; 2) right to counsel even if not in custody; 3) Police violate the right to counsel if they interfere with counsel contacting a client undergoing questioning.
  156. Texas "confession" Statute
    Applies to statement in custody and resulting from offical interrogation. Impeachment Exception. Determining voluntariness = judge determination, but sometimes D can put it to the jury. Must be signed by D unless in accused's own handwriting.
  157. Standing in a Search of Residence
    1) Authorized presence != enough; 2) Presence in a short and commercial stay is not enough. OVernight is.

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