Texas Criminal Procedure

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  1. Does def have right to be personally present at trial?  May trial proceed in def's absence if it is second day of trial?
    Def has a right to be personally present and, in fact, can be compelled to be present.  But in a felony trial, trial can continue without def it def was present through selection of jury and after voluntarily absents himself from trial.

    On second day of trial, jury selection over and def voluntarily declining to come to court - trial may proceed in absence.
  2. Does a spouse have any right to refuse to testify against def?  Does Def have any right to prohibit prosecutor from calling a spouse as a witness?
    Spouse of a criminal Def has privilege not to testify for the state.

    But, Def has no right to prohibit prosecutor from calling spouse.

    B/c privilege belongs to spouse and cannot be invoked by Def.
  3. Can defense ask to question an expert witness of prosecution on his qualifications and the basis of opinion outside presence of jury and court denies requests, is court's ruling correct?
    No, ruling not correct.

    In criminal case, party against whom expert testimony is offered has a right on request to conduct a voir dire of the witness on underlying facts and data.

    Different from civil, in which whether to permit is discretionary.
  4. If a juror has a massive heart attack during trial and prosecutor requests a mistrial on the ground that no less than 12 jurors can return a verdict in a trial of a felony, must the court grant a mistrial?
    Court doesn't have to grant a mistrial.

    If in a felony case a juror becomes disabled during/after trial beings but before instructions are read to jury, remainder of jurors can reach a valid verdict.

    All of jurors, however, must sign the verdict. 36.29(a).
  5. Can Def exercise a challenge to exclude a retired firefighter from an arson trial from the jury?  If so, what kind of challenge and how many such challenges are you entitled?
    Cannot exercise a challenge for cause to this person because he maintains he can be fair and decide an evidence.

    Can exercise a preemptory challenge.

    B/c do not need to have any reason or justification for such a challenge.

    B/c non capital district court felony prosecution entitled to 10 challenges.
  6. What procedural step can you take to have court exclude the receptionist's testimony from evidence when Def told her he did something bad?  On what basis can you take this step?
    Could wait until prosecutor offers the testimony furing trial and then object, or could before trial file a motion in limine asking the court to address the admissibility of the testimony and hold it admissible.

    There is however, no basis on which to take either of steps???

    Out of court admissions by a criminal Def are admissible

    Not hearsay because constitutes an admission by party opponent

    At time Def made admissions, Def not in custody and not being interrogated, neither Miranda nor Art. 38.22 provides any basis for excluding testimony by receptionist.
  7. What procedural step can Def take to have court exclude officer's testimony about Def's confession from evidence?
    Can file a pretrial motion to suppress the testimony concerning the confession.

    Can do this on the basis that under Art. 38.22 of Tex Crim Pro, evidence that Def orally confessed during custodial interrogation is inadmissible unless one of the exceptions applies.
  8. What procedural step, can you take to ensure that prosecutor will disclose before trial whether he intends to introduce in the state's case at trial evidence of a previous incident?
    To ensure prosecutor will disclose before trial that he intends to introduce evidence of this event on guilt-innocence as proof of a prior "bad act" under 404(b), should make a timely request for such notice.

    To assure prosecutor will disclose he intends to introduce such evidence at punishment, should also request pretrial notice of state's intention to introduce at punishment evidence of extraneous crimes or bad acts under s3 of Art 37.07 of Tx. Crim. Pro.

    If make requests timely state must prove defense with such notice prior to trial.
  9. What procedural steps can defense take to obtain jury sentencing and to allow a jury to recommend community supervision?  When should you take these steps?
    To obtain a jury sentencing, defense should file a written election for jury sentencing.

    Should be filed ebfore jury voir dire begins.

    To allow jury to recommend community supervision, should file a sworn motion for community supervision stating that Def has never been convicted of felony in TX or elsewhere.

    Should be filed before trial.
  10. Must prosecutor produce a copy of officer's police report to defense as part of discovery before trial?

    As soon as practicable, after reviewing a timely request from Def, the state must provide any written or recorded statement of any law enforcement officer, including officer's police report.
  11. What procedural step, if any, can defense take to challenge an indictment defense believes is missing some elements?  When should step be taken?
    Can challenge indictment by filing an exception or what is often called a motion to quash.

    Since ground would be filure to charge an offense, exception would be one to the substance of the indictment.

    Should file a motion to quash before day on which trial on merits commences.
  12. If Def believes that a nolo contendere plea does not have the same legal effect as a guilty plea, is Def's belief correct?
    Yes, but only to a minor degree.

    In criminal prosecution itself, nolo contendre plea has same legal effect as a guilty plea.

    But if civil litigation were to arise out of the same incident as gave rise to criminal charges, a plea of guilty could be used against Def.

    Plea of nolo contendre xxxx not be xxxxx
  13. Will Def be allowed to withdraw guilty plea if the court rejects the plea agreement?

    If trial court decides not to follow plea agreement, Def must be allowed to withdraw his plea and enter a not guilty plea if he wishes.
  14. What is an indictment?  Discuss two ways in which an indictment and an information differ.
    Indictment - written statement of a grand jury accusing a named person of a criminal offense.

    Ways differs from information:

    1.  Indictment must be approved by grand jury and signed by foreman, while an information need only be authorized and signed by prosecutor.

    2.  Information must be supported by a sworn complaint filed with the court, while an indictment does not require such support.
  15. What is bail?  What is bail bond?  In what major way does a personal bond differ from a bail bond?
    Bail - a security given by a Def to assure that he will appear in court to answer the accusations against him.

    Bail bond - a written undertaking by Def and one or more sureties they will pay amount of bail if Def does not make required appearances.

    Personal bond differs from bail bond in that a bail bond requires either an adequate surety or a cash deposit in the amount of bond.

    A personal bond requires neither.  Def's promise to pay amount if Def fails to make appearances.
  16. What would defense counsel need to establish to prove Def is incompetent to stand trial, and what burden of proof would counsel need to meet?
    To prove Def incompetent to stand trial, would have to prove:

    -Def lacks sufficient presentability to consult w/ his lawyer w/ a reasonable degree of taional understanding, or

    -Def lacks a rational as well as factual understanding of the proceedings

    -Prove one of above by preponderance of evidence.
  17. If officers did not arrest Def until two year and one month since the crime, is the prosecution barred b/c the state waited too long to filed this felony charge against Def?
    No, prosecution not barred.

    Period of limitation for arson is 10 years, so an indictment can be filed at anytime until 10 years from commission of offense.

    In any case, general rule for felonies is three years and no felony has a period of limitations of less than 3 years.

    Apart from the special 10 year rule for arson, state would have 3 years to file any felony charge.
  18. What procedural step can defense take to bring information that prosecutors bribed jurors to convict Def to the court and attack the conviction?  How long does defense have to take this procedural step?
    Bring this to the attention of the court by making a motion for new trial.


    - A juror has been bribed or is otherwise guilty of correct copnduct.

    Must file for new trial within 30 days of sentencing and then present it to the court within 10 days of filing.

    The court can permit attorney to present it within 75 days of sentencing.
  19. What standard of proof was the state required to meet to obtain a verdict of gulity?  How many jurors had to concur in the verdict?  What would have been the consequences if fewer than minimum number of jurors voted for a verdict of guilty?
    State must prove guilty beyond a reasonable doubt.

    All members of the jury had to concur in the verdict of guilty.

    Texas law requires this although federal law does not.

    If all jurors cannot agree on guilty verdict and they cannot unanimously agree on a verdict of not guilty, then the court judge must grant a mistrial.

    In that event, Def can be retried.
  20. If prosecutor makes statements in closing argument making references to how honest a witness is and how Def is guilty because remainder silent after arrest, on what grounds can defense object to?
    First, defense can object that prosecutor is not arguing the evidence but rather is improperly asserting his personal opinion as to witness's credibility.

    Second, can object that prosecutor is improperly commenting on Def's exercise of 5th right to avoid compelled self-incrimination by asking jurors to give effect to Def's silence.
  21. If defense wants a jury charge to include circumstances under which Def can be convicted or acquitted, and the court denies the request stating it does not want to confuse the jury, is this ruling correct?

    A jury charge should contain both abstract portions and an application portion.

    Application portion should incorporate the specific allegations of the indictment and instruct the jury on what specifically it must find to convict the Def.

    Def request was for an application portion and should have been granted.
  22. If prosecutors try to put a witness on the stand to show a specific instance that is similar to what Def is on trial for to show Def is likely to commit the current crime, what objection should defense make to this testimony and how should the court rule?
    Defense should object that this testimony shows an extraneous offense and this is inadmissible to prove guilt by showing Def is a bad person and therefore committed the charged offense.

    Could be admitted if it was relevant to guilty in some other way other than by proof of Def's bad character, but prosecutor has not argued any relevance (other relevance).  Therefore, objection should be sustained.
  23. Should the court allow a defense counsel cross-examination of a possible co-Def as a previous burglary conviction?
    No.  A witness may be impeached  by a conviction for which the witness received a probated sentenced in the probation has not expired.  Of course, the conviction must be for a felony or a misdemeanor involving moral turpitude.
  24. Can defense ask the prosecutor to produce grand jury testimony?
    Court should grant motion for production.

    Under Tex. R. Evid. 615, a party is entitled to the statement of an opponent's witness after that witness has finished direct examination.

    "Statement" includes a transcript of testimony by the witness to a grand jury.
  25. Is it true that the defense must make opening statement right after the prosecutor of waived it?
    No.  Defense counsel is entitled, by statute, to make the defense opening statement immediately after the state's opening statement.

    This right has been extended to permit the defense opening statement to be made after the state rests its case-in-chief.
  26. If a prospective juror states a Def is already guilty b/c he was indicted, do those statements provide you w/ any basis to challenge this juror?  If so, what is your legal basis of your challenge and what kind of challenge should you make?
    Can challenge jurors on the basis that the juror as bias against Def and has bias against a part of the law on which Def is entitled to rely.

    Law provides that the fact that a Def has been indicted gives rise to no inference of guilt.

    This juror is biased against this law.
  27. List three prerequisites for Def to be eligible for a sentence of probation.
    Prerequisites include:

    1.  The punishment assessed must not exceed 10 years imprisonment.

    2.  (to get probation from the jury) Def must have filed a pretrial sworn motion for probation, and

    3.  (and to get probation from the jury) Def must show he has not previously been convicted of a felony.
  28. List three admonitions that the court must give Def before accepting Def's felony plea of guilty.
    Admonitions should include:

    1.  The range of penalties for the offense.

    2.  That any recommendation by the state as to the penality is not binding on the court, and

    3.  That Def has a limited ability to appeal if convicted pursuant to t a guilty plea.
  29. A decision on a search warrant for an apartment states, "the apartment is located in a white building in a residential neighbor road on a street on the west-side of Houston, Texas."  Is this description legally sufficient?  Assuming it is not sufficient, what procedural step can attorney take to challenge the warrant, and what relief should attorney request?
    Description not sufficient.

    Description must be sufficient to enable officers to identify both the building in which the apartment is located and the specific apartment to be searched within the building.  To challenge the warrant, atty should file a motion to suppress the evidence found by the execution of the warrant.

    Atty should ask court to hold the search warrant and the search of the apartment unreasonable and to bar the prosecution from introducing item into evidence.
  30. If prosecutor filed a motion requesting that defense disclose the names and addresses of all lay and expert witnesses who will testify at trial, does Tex. Crim. Pro. provide any basis for prosecutor's request?
    Yes, in part.  Trial judge does have the authority to order a Def to disclose to the prosecution the names and addresses of expert witnesses the defense may use at trial.

    There is no basis in Tex. Crim. Pro. for the trial judge to order a Def to disclose any information regarding lay witnesses to the prosecution.
  31. If prosecutors have a report that states someone else is responsible for the crime, are the prosecutors required to disclose the contents of the report?  Does it depend on whether discovery motion requested disclosure of any reports in prosecutor's possession?
    The information in report is exculpatory b/c it indicates Def's innocence.

    Under Brady, prosecutor is required to disclose the info.

    This duty to disclose does not depend on a request by the Def, so the answer does not depend on whether my discovery motion requested disclosure of reports in prosecution's possession.
  32. When should an atty file a motion for discovery?  What consequences is there if you do not file your motion for discovery on time?
    When a pretrial hearing has been set, motion for discovery must be filed 7 days before the hearing.

    If not filed by the deadline, it cannot be filed unless the court, for good cause shown, permits it to be filed.
  33. Who selects the people who will serve on the grand jury?
    Two ways:

    1.  A district judge may appoint jury commissioners, who selects pers to serve.

    2.  The district judge may direct grand jurors to be selected in the same manner as jurors are selected in civil cases.

    After this, person selected are examined and 12 are impaneled by the judge as the grand jury.
  34. What courts have jurisdiction over a felony?  What courts have jurisdiction over a misdemeanor?
    The only court without jurisdiction to conduct a felony trial is a district court.

    A misdemeanor trial falls under the jurisdiction of a county court.
  35. What is a writ of habeas corpus?  To whom is it directed?  By whom may it be granted?
    A court order directing someone to produce an individual before the court and to show why that individual is being held.

    It is directed to a person having the individual is custody or under restraint.

    Writ may be granted by the court of criminal appeals, a district court, a county court, or a judge of any of these courts.
  36. Does an officer have authority to break down Def's door in order to enter the habitation when the officer knocked and announced and Def refused to open door?
    Yes.  An officer can break down the door of a habitation to make an arrest if the arrest is for a felony, the officer gives notice of the officer's authority and purpose, and the officer is then refused admittance.
  37. If prosecutor agrees to recommend a specific prison sentence as part of the plea agreement w/ Def, is the court required to impose that sentence?
    No.  Court is not obligated to follow the plea agreement reached by prosecutor's and def.

    However, if ct. refuses to impose the sentence recommended by prosecutor and agreed to by Def, the ct. must allow Def. to withdraw his guilty plea.
  38. If Def. has a jury trial and is tried alone, how many peremptory challenges to prospective jurors may Def and prosecutors each make?  If Def and co-Def are tried together, how many peremptory challenged may Def, co-Def, and prosecutor each make?
    In felony cases where state does not seek the death penalty, the prosecutor and Def each may make 10 peremptory challenges.

    If Def. and co-Def are tried together, they are each entitled to 6 peremptory challenges and prosecutor is entitled to 12 (6 for each Def).
  39. What are the three challenges for cause that may be made by the state or the Def to prospective jurors?
    1.  Juror is not a qualified voter.

    2.  Juror has been convicted or is presently under indictment for misdemeanor theft or felony.

    3.  Biased or prejudicial.
  40. Co-Def testifies to Def's involvement in the crime.  Can def be convicted on the basis of this evidence?
    No.  Co Def is an accomplice.  Def can be convicted on co-Def's testimony only if there is sufficient corroboration evidence linking Def to crime.

    Have to link Def to the crime.
  41. What evidentiary predicate must the custodian of records provide in order for a receipt showing purchase of items used in the crime, to be admitted into evidence?
    Evidence predicate must show that the receipt was kept in the regular course of business, that it was the regular course of business for a person w/ knowledge to make that record, and that the receipt was made at or near the time of the event and that the witness is the custodian of records.
  42. If prosecutor calls a witness to testify who talks about what someone else says who is not a witness, and Def objects, how should the ct. rule?
    Ct. should sustain objection.

    Because person is not testifying in person under oath, his comments are hearsay because they are out-of-court statements being offered for the truth of the matter asserted.

    Because person is not a Def in the case, his statements are not admissible under the hearsay exception for party opponents.

    Because person's statements have not been corroborated they are not admissible as statements against interest.
  43. Describe two situations in which a judge is not required to direct a probation officer to prepare a pre-sentence report in a felony case?
    Judge is not required to direct a pre-sentence report if:

    1.  Punishment is assessed by a jury

    2.  Only available punishment is imprisonment

    3.  Judge is informed that a plea bargain exists under which Def agrees to imprisonment, and judge intends to follow the agreement, or

    4.  Def's convicted of capital murder.
  44. Before punishment is assessed, victim testifies about the impact the crime has had on him.  Def objects, but the ct. overrules Def's objection.  Def sentenced to 10 years.  Was ct's ruling on Def's objection correct?
    No.  Although ct. must permit victim to present a statement about how the crime has affected him, the statement can be given only after punishment has been assessed.

    Here, the victim's statement was made before punishment was assessed, and it is therefore improper.
  45. Name three of the rights about which the magistrate should advise Def.
    Magistrate should advise Def of the accusations against her, her right to counsel, her right to remain silent, her right to have an atty present during questioning, her right terminate the interview at anytime, and right to an examining trial.
  46. W/in what time period should you contact Def?  What may the ct. do if you fail to meet this deadline?
    As Def's appointed lawyer, atty must make every reasonable effort to contact her no later than the end of the 1st working day after the date of being appointed.

    If atty fails to meet that deadline, the ct. can replace the atty.
  47. What facts in Def's prior criminal record would allow a district judge to deny Def's bail?
    Judge can deny bail if Def:

    1.  has two prior felony convictions

    2.  admitted the present offense while on bail for another felony, or

    3.  had a prior felony conviction and committed the present offense w/ a deadly weapon.
  48. At an early stage of the prosecution of Def, is Def entitled to a proceeding in which the truth of the accusation made against her will be considered?  If there is such a proceeding, what is it and what determination will be made?
    If Def has been charged with a felony and has not yet been indicted, Def is entitled to an examining trial.

    At an examining trial, the magistrate will determine whether there is enough evidence to demonstrate probable cause to believe Def is guilty of the crime.
  49. What are the requisites for a search warrant to be suffient under Tex. Crim. Pro?
    A search warrant must contain:

    1.  a statement that it runs in the name of state of Tex.

    2.  a specification of the person, place, or thing to be searched

    3.  a specification of the items to be seized

    4.  an endorsement of the date and how it was issued.

    5.  The signature of the issuing magistrate.
  50. How many jurors serve on a grand jury, how many must concur for a person to be indicted, and who drafts the indictment?
    A grand jury consists of 12 jurors and 2 alternate jurors.

    9 grand jurors must concur for there to be a true bill and for Def to be indicted.

    The atty who represents the state then drafts the indictment.
  51. What is a capias?
    A capias is a writ issued by a judge that directs a peace officer to arrest a person accused of an offense and to bring the arrested person before the ct. immediately or on a day specified in the writ.
  52. When must you file a motion for change of venue?  What consequence is there if you do not file your motion by that date?
    A motion for change of venue must be filed a 7 days before the pretrial hearing.  Failure to do so will prevent any alter motion to change venue unless the court gives permission for good cause shown.
  53. Does TX Crim Pro allow a jury to assess punishment when a Def enters a guilty plea?
    Yes.  Tex. Crim Pro specifies that is a Def pleads guilty, a jury may be impaneled to assess punishment if Def elects jury sentencing.
  54. What procedural step can you take to try to get access to evidence?  If there is such a procedural step, what must you show to get access to the evidence?
    Def's atty can move to inspect the evidence.

    Must demonstrate that it is a tangible item, contains material evidence, is in the possession of the state, and is not work-product of the state.
  55. Does the district court have jurisdiction over a lesser included offense that is a misdemeanor?
    Yes.  Under Tx. Crim Pro, a district court has jurisdiction over felonies as well as any lesser included offense, even if that offense is a misdemeanor.
  56. If a Def is eligible for probation, what procedural steps should defense take to allow a jury to recommend it, and when should defense take this step?
    No.  To be eligible for probation, a Def must file a sworn application for probation stating in writing that the Def has never been convicted of a felon.  The application for probation must be filed pretrial
  57. What action can counsel take to change the seating of the prospective jurors?
    Either Def or state may request a jury shuffle in which the jury is randomly reseated.  There can be only one shuffle per case.  Unfortunately for Def, a jury shuffle must be requested before voir dire of the panel begins.
  58. If the prosecutor gives a hypo during voir dire that mirrors the current case and defense objects, how should the ct. rule?
    Ct. should sustain objection.

    Prosecutor has asked an improper commitment question.

    Question does not specify that each element of the offense must be proven beyond a reasonable doubt.

    Jurors cannot be asked to commit to a hypo scenario w/o this information.
  59. What objects or requests should you make w/ regard to the admission of a co-Def's statement?
    Def's atty should object that admitting co-Def's statement violates the confrontation clause b/c Def will not have an opportunity to cross-examine co-Def in ct.

    Def can request that co-Def's statement be redacted to eliminate any reference to Def before it is read to jury.
  60. If prosecutor makes a deal w/ co-Def in exchange for testimony, co-Def will not be charged and defense questions co-Def on the deal on cross and prosecutor objects, how should ct. rule?
    Ct. should overrule prosecutor's objection.

    If there is such an agreement, it shows a motive for co-Def to falsify her testimony, thus showing bias or interest.

    Inquiry into any such agreement is a proper subject for cross-examination.
  61. If prosecutor asks a witness their opinion on whether Def committed the crime, on what grounds can you object to prosecutor's question?
    Object that the witness has no factual basis for opining on whether Def committed the crime.  Witness has offered no testimony about Def's involvement or her mental state.

    As a fact witness, witness should be permitted to testify only about facts witin his knowledge, not his opinions.
  62. Defense asks a witness on cross whether witness lied during a specific incident and prosecutor objects.  How should ct. rule?
    Ct. should sustain objection.

    A party can contradict a witness's testimony with extrinsic evidence, but only if the matter is one the party would be able to prove as a party of party's own case.

    Whether witness lied about an affair is a collateral matter, and cannot be the subject of cross-examination.
  63. What can the jury do to find aout what a witness actually testified to?
    If jurors disagree about a witness's statement, jury may request of the judge that the ct reporter read the relevant testimony from her notes jury may not request that other portions of the witness's testimony be read.

    If there is no ct reporter or if her notes cannot be read, the jury can request that the witness again be brought to the stand to repeat the relevant portion of his testimony.
  64. What is the standard of review for the legal sufficiency of the evidence?
    Standard for legal sufficiency is viewing the evidence in the light most favorable to the state, could a rational jury have found all elements of the crime proved beyond a reasonable doubt.

    This standard is very deferential to the prosecution, so Def is unlikely to be successful.
  65. Within what amount of time must Def be brought before a magistrate?
    Pursuant to Tx Crim Pro, Def must be brought before a magistrate w/o unnecessary delay, but in any case no later than 48 hours after arrest.
  66. What procedural step can you take to challenge denial of bail?
    Def can challenge the denial of bail by immediately appealing the order denying bail to the court of criminal appeals.
  67. Magistrate denies appointment of counsel to Def b/c she was able to afford to post bail.  Is magistrate's ruling correct?

    Magistrate's ruling was not correct.  In determining whether a Def is indigent, the ct cannot consider whether the Def has posted bail.  Thus, it was error for the magistrate to deny Def's request for counsel on the ground that she was able to afford bail.
  68. Does Def have the right to testify to the grand jury?  Does Def have the right to have counsel present present at grand jury proceedings?
    Def has no right to testify before the grand jury, nor does she have the right to have her counsel present at the grand jury proceedings.

    An accused person, and upon approval of the prosecutor's, the accused lawyer may be permitted to address the grand jury, but neither has the right to do so Def may address the grand jury and have counsel present if permission is granted.
  69. Prosecutor goes to grand jury room during grand jury's deliberations and presents a closing argument.  After hearing argument, grand jurors unanimously agree to indict Def's.  Did prosecutor follow proper procedure?
    No, prosecutor did not follow the proper procedure.  A prosecutor is permitted to be present in the grand jury room while the grand jury is conducting proceedings.  However, code specifies that when the grand jury is deliberating, only the grand jurors may be present in the room.  Thus, while prosecutor could have made a closing argument to the grand jury, he was not permitted to do so after the grand jurors began deliberations.
  70. Is prosecutor obligated to give defense the grand juror's names and addresses as part of discovery?
    No, prosecutor is not obligated to give defense counsel the grand jurors' names and addresses.  Grand jurors personal information is confidential.  While the code allows for the disclosure of personal information for a showing of good cause, this has not been demonstrated here.
  71. What procedural step can you take to challenge the indictment?  If so, when should you take it?
    Can file a motion to quash the indictment on the grounds that it is lacking a culpable mental state and fails to mentioned a deadly weapon, which are elements of offense motion must:

    1.  be in writing

    2.  to be filed before the day on which trial on the merits begins, and

    3.  specify the particular aspects of the charging instrument that Def regards as defective
  72. List 3 admonitions that the ct must give Def before accepting Def's plea of guilty.
    Ct must inform Def of the range of penalties attached to offense.

    That any recommendation by prosecution as to the penalty will not be binding on the ct and that there is a limited right to appeal following a guilty plea.

    Ct must also inform Def that if she is not a citizen, a guilty plea may result in deportation, the exclusion from admission to this country, or the denial of naturalization under federal law.

    Ct. must also inquire as to the existence of a plea bargain between the state and defense and request from prosecutor the victim impact statement.
  73. Def files a motion to exclude bloody knife that officer found during a warrantless search.  What argument should prosecutor make in response?
    Prosecutor should argue that Def lacks standing to challenge the search of Def's car.

    A prosecutor may challenge a search only if her own rights were violated by the search, which generally requires a reasonable expectation of privacy in the time place searched.
  74. What procedural steps can you take to try to prevent prosecutor from introducing testimony of Def's oral confession by officer at trial?  On what basis can you take it?
    Can move to suppress Def's confession to officer and exclude it from evidence.

    Oral confessions are strongly disfavored.

    Makes exceptions for judicial confessions, res gestae statements, statements that were electronically recorded, and statements that were corroborated.
  75. What procedural step can you take to have the jury decide Def's punishment?  By when should you take it?
    Def can elect to have a jruy assess punishment to elect jury sentencing.  Def must do so in writing before the commencement of the voir dire examination of the jury panel.
  76. A potential juror mentions he has a prior misdemeanor conviction for theft.  If this potential juror qualified to serve on the jury?
    No, the potential juror is not qualified to serve on jury.  Code specifies that a juror is absolutely disqualified from serving if she has been convicted of theft or any felony.
  77. Prosecutor uses peremptory challenges to strike all women.  What objection can you make to prosecutor's use of peremptory challenges?  How may prosecutor defend hsi use of his challenges?
    Can object that prosecutor's use of his peremptory challenges was improper for striking prospective jurors based solely on gender.

    To defend strikes, prosecutor must point to gender neutral reason for each woman he struck.
  78. Can Def be convicted on the basis of co-Def's testimony alone?
    No.  Pursuant to the accomplice witness rule, Def cannot be convicted on testimony of an accomplice unless there is corroborating evidence that tends to connect Def to crime.

    Since co-Def could (and in fact was) convicted of crime, her testimony cannot be the sole basis for Def's conviction.
  79. What foundation must prosecutor establish for jail informant (snitch) to be admissible?
    Statement that Def made to witness should be admissible as an admission by a party opponent.  Admissions by a party opponenent are not hearsay.  Prosecutor must establish that Def is a party opponent and that Def made the statement to witness.
  80. What objection should you make to the admission of a county crime lab report written by one person but testified to by a different person?
    Should object that admission of report violated confrontation clause.  Forensic analyst who conducted the testing must testify and be subject to cross-examination.
  81. What objection should you make to testimony from another witness that Def stabbed her too?  What response can prosecutor make to your objection?
    Object - witness testimony is evidence of an extraneous offense that serves only to show a propensity and is therefore not admissible.

    Prosecutor can respond that while witness's testimony does relate to an extraneous offense, it is admissible b/c it shows a common scheme and probative value substantially outweighs the risk of unfair prejudice.
  82. What procedural steps could you have taken to have avoided being surprised by that witness's testimony about other crimes, wrongs, or bad acts not arising in the crime transaction as the charged crime?
    Could have made a request that the state provide reasonable notice in advance of trial of its intent to introduce in its case in chief evidence of other crimes, wrongs, or bad acts not arising in the crime transaction as the charged crime.
  83. Prosecutor has a vacation to go to.  Requests that ct allow jury to hear all of the evidence on both guilt and punishment before it deliberates and returns any verdict.  Ct. denies request.  Is the ruling correct
    Ct's ruling is correct.  Guilty and punishment phases are bifurcated into separate proceedings.  Evidence related to punishment cannot be brought before jury until Def has been found guilty at guilt/innocence phase.

    Prosecutor's request to introduce punishment evidence earlier in trial would potentially prejudice jury by allowing them to hear evidence unrelated to whether Def is guilty of charges.
  84. Jury returns verdict of guilty.  Jury cannot agree on punishment.  Defense moves for mistrial and request a retrial of Def as to guilt and punishment.  Ct. grants motion and request.  Is ct's ruling correct?
    No ct's ruling is incorrect.

    When the jury is able to reach a guilty verdict but unable to reach a verdict on punishment, ct. may grant a mistrial only w/ respect to punishment.  Guilty verdict should remain in tact and Def should be retried only w/ respect to punishment.
  85. Is an officer required by law to obtain one warrant authorizing a search and a separate warrant authorizing arrest?
    No. A search warrant may also authorize an arrest and thus constitute an arrest warrant as well as a search warrant.
  86. Is evidence of a criminal record admissible against Def in sentencing phase?

    At sentencing, all evidence the ct judge deems relevant to punishment is admissible.

    Explicitly invludes other (extraneous) offenses even if Def has not been charged w/ or convicted.

    State must prove beyond a reasonable doubt that Def committed these offenses.

    If Def has quested notice, state must give pretrial notice of intent of introduce such evidence.
  87. If Def is found guilty and did not previously request for jury to asses punishment, can atty immediately file a written motion for jury right after guilt/innocence phase?  Is the request timely?
    No - not timely.

    Must be filed before voir dire of prospective juror begins.

    By failing to do this, Def elected sentencing by judge.

    Can change election after jury finds Def guilty, but only if prosecutor consents.
  88. Can the court consider whether Def is capable of posting bail in determining whether Def is indigent and is still entitled to appointed counsel?

    As a general rule, the court cannot consider whether Def has posted or is capable of posting bail.

    This can be considered, however, insofar as it reflects Def's financial circumstances.
  89. What are the three rules that a court should follow when fixing the amount of bail?
    Ct should consider:

    1.  Bail should be set sufficiently high to give reasonable assurance Def will appear.

    2.  Def's ability to make bail (and thus his resources)

    3.  The future safety of any victim of the crime and of the community must be considered.
  90. If ct denies request to reduce Def's bail, what procedural step, if any, can you take to seek a reduction in bail, and what argument, if any, can you make for such a reduction?
    Can file an app for habeas in district court.

    Can argue Def being improperly detained b/c bail was set at an excessive amount.

    At hearing on habeas, introduce evidence that Def cannot meet the bail set and what amount he can meet.

    Argue high amount not necessary to assure appearance or to protect community and a lower amount Def could meet would suffice.

    If district ct defnies relief, can immediately appeal to the ct of appeals.
  91. In order for a search warrant to be issued authorizing search of home/apartment for evidence, what facts must officer allege and in what document must he do this?
    Officer must execute a written and sworn affidavit.  Must allege facts from which a magistrate can find there is probable cause to believe:

    1.  a specific offense has been committed

    2.  evidence tends to prove that the offense was committed or who committed it, and

    3.  evidence is located in the premises to be searched.
  92. Where is venue proper?
    As a general rule, venue is proepr in the county in which the crime was committed.
  93. What procedural step, if any, cna you take to obtain more time before trial in order to find a material witness?  By what date must you take each step, if any?  What must you show the court?
    Move for a continuance to locate a missing witness.

    Motion must be sworn.

    Must show ct the name and residence of witness, material facts plan to show by witness, diligence used to try to get witness, and motion not being made for delay.

    If pretrial hearing has been set, must file motion 7 days before date of that hearing.
  94. What procedural step, if any, can be taken to try to keep evidence from being introduce, and what argument can you make in support of your position?
    File a motion to suppress.

    Can argue stop was unreasonable and in violation of 4th amendment.

    Fruit of poisoness tree and thus inadmissible.
  95. May a Def withdraw his guilty plea if he is in front of the judge to plead guilty?

    A plea of guilty to judge can be withdrawn as a matter of right before the ct takes plea under advisement.
  96. Is a guilty plea admissible at Def's trial as evidence of his guilt?

    Under Tx. R. Evid. 410, a plea of guilty that is later withdrawn cannot be used against Def who entered the plea.
  97. What procedural steps can atty take to protect Def from prejudice he will suffer from introduction of co-Def's prior conviction if Def and co-Def are scheduled to be tried together?
    Move for a severance.

    Trial judge must grant motion b/c severance is mandatory if moving Def shows that co-Def has a prior conviction admissible against co-Def at trial.

    Might be able to get pretrial determination of whether co-Def's conviction is actually admissible by filing a pretrial motion in limine asking the trial court to hold it inadmissible.

    If the ct rules conviction admissible during pretrial, atty must still object at trial to preserve any issue for appeal.
  98. What procedural steps can atty take to ensure a witness appears at trial to testify as a witness?
    Obtain a subpeona by applying to the clerk of the ct.

    Subpoena will order witness to appear.

    If witness does not appear, atty can then get an attachment which will authorize a peace officer to locate witness, and bring her before the ct.

    If atty fails to properly subpeona, atty cannot get an attachment if witness fails to appear.

    Cannot get attachment until (and if) witness actually fails to show as required.
  99. If ct starts pretrial hearing without the Def, Def's atty objects, and ct  overrules, did the court correctly rule on objection and does Def have a right to be present at pretrial proceeding?
    No, ct did not corrently rule on objection.  Art 28.01 of Tx Crim Pro explicitly states Def must be present at any pretrial proceeding.
  100. Can you properly make a challenge to a prospective juror that states "no person convicted of ________ should ever get probation", and if so, what kind of challenge should you make and on what ground?
    Yes. Challenge juror for cause.

    Law provides that probation is a possible penalty upon conviction of the charged offense.

    Each juror must be able and willing to at least consider it.

    This juror is biased or prejudiced against part of the law on which Def is entitled to rely.

    Could use peremptory challenge but should be unnecessary b/c challenge for cause should be sustained.
  101. What procedural step can you take to stop witnesses from conferring about the case and from remaining in court room during trial?
    Invoice the rule of exclusion of witness from ct room.

    No exception to the rule applies

    Ordered to leave ct room and order not to talk w/ anyone about case, except w/ permission of judge.

    State might possibly argue atty need either or both be in ct room to assist them.

    Might trigger exception to rule for witnesses who are shown to be essential to the presentation of party's case.
  102. What objections or requests should atty make w/ regard to the admission of co-Def's confession into evidence?
    Objection would be hearsay and that admission of this hearsay would violate 6th amendment right to confront witness against Def.

    Not able to cross-examine.
  103. Must the ct include a definition of reasonable doubt in the jury charge?

    Need not include definition of reasonable doubt in jury charge.

    Should not xxxx

    Any effort to define reasonable doubt will be of no help and will tend to confuse the jury.
  104. Is an atty's mention of a Def's right not to testify that he did not testify improper?  If so, what procedural step must defense counsel take to preserve error?
    Yes, argument improper.

    5th right not to testify and to not have jury draw an adverse inference from failure to testify.

    Argument invites jury to draw improper influence from improper influence.

    To preserve error, defense counsel must:

    1.  object and get a ruling

    2.  request an instruction to jury to disregard argument and get a ruling, and

    3.  move for mistrial on ground that instruction cannot be effective and get a ruling on that motion.
  105. What procedural step can defense take to obtain a separate trial for Def on each count of the indictment?  Could taking this procedural step ultimately affect Def's scenario?
    Defense can move for severance of charges for separate trials.

    If defense does not do this, and Def is convicted of all or several offenses, and is sentenced to imprisonment, prison terms must run concurrently.

    But if he gets separate trials, is convicted, and is sentenced to imprisonment, judge has discretion to "stack" the sentences - make them consecutive.
  106. If Def asks for a jury instruction that tells jury does not have to listen to an expert witness and consider it w/ great skepticism b/c expert paid and ct. decides not to give it to jury, is ct's ruling correct?

    In the instructions, ct is not to convey to jury court's view as to the weight of evidence.
  107. If jury convicts Def and assesses a punishment of 5 years incarceration, but recommends ct to suspend imposition of sentence and place Def on probation, may ct inquire jury recommendation of probation?  Impose sentence of 5 years incarceration only?

    If jury recommends suspension of a sentence and placement of Def on community supervision and Def is eligible for it, judge must suspend sentence na dplace Def on community supervision.

    Punishment assessed (5 years) does not exceed 10 years.

    Def eligible for community supervision and the ct may not ignore jury's recommendation.
  108. If decide not to file a motion for new trial, what procedural step must defense take to perfect Def's appeal, and how long does defense have to take this step?
    To perfect Def's appeal, must file a written notice of appeal in trial court.

    Since no motion for new trial is being filed, must be done within 30 days of formal sentencing.
  109. Within what amount of time should a magistrate decide whether proable cause exists to believe that a person committed a felony offense?  What is the consequence if a magistrate fails to make a probable cause determination within this amount of time?
    Magistrate should decide whether probable cause exists within 48 hours of the arrest.

    If this is not done, Def has the right to be actually released on bail and to have bail set so def can make it.

    May require personal bond.

    Bail must be no more than $10,000.
  110. IF jury assesses punishment, can it place Def on deferred adjudication?

    Only a judge can place Def on deferred adjudication.

    To be eligible for deferred adjudication, Def must plead guilty or nolo contendre rather than proceeding to trial and being found guilty.
  111. If Def chooses to have the jury asses punishment, what procedural step must you take to accomplish this and by what deadline must you take that step?
    Def must file a sworn motion for community supervision before trial has begun.

    To have jury assess punishment, Def must elect this in writing before the commencement of voir dire.
  112. Def wants to be placed on probation b/c he needs to work to support his family.  Should Def have the judge assess punishment?
    No.  For most offenses, judges can place Def's on community supervision.

    However, for certain enumerated and particularly serious offenses - including aggravated robbery - judges may not impose community supervision.

    Only a jury can impose probation for aggravated robbery.
  113. Prosecutor wishes to introduce evidence of a stolen credit card that was found in Def's pockets after arrest.  Def files a motion to suppress arguing Def did not consent to the search of his property and there was no search warrant.  How should ct. rule?
    Ct should deny motion.

    Under the inventory exception to the warrant requirement, police may inventory all of the items on a person so long as the police follow an existing department police and are not engaged in general rummaging.

    B/c stolen credit card was found pursuant to a routine inventory search, it's admissible.

    If a credit card was discovered immediately following Def's arrest, it would also be admissible under the search incident to arrest doctrine.
  114. Is prosecutor wishes to amend the indictment to charge Def with a different crime and objects, how should the ct rule on prosecutor's motion?
    Ct should deny motion.

    Because the charge of credit card abuse is a completely different and additional crime, prosecutor must go back to the grand jury to have it indict Def for that crime.

    An indictment cannot be amended by the cy to add an additional charge.
  115. Minister is testifying that Def is a law abiding citizen.  Prosecutor cross-examines asking minister "isn't it a fact that Def has privately obtained spiritual advice from you regarding urge to spray paint?" (offense is vandalism).  On what basis can defense object?  What should prosecutor argue in response?
    Defense should object on ground that the answer to the question would reveal a confidential communication by Def to a member of the clergy in minister's professional character as spiritual advisor.

    Prosecutor should respond that under Rule 511, protection of the privilege is waived if person w/ privilege calls spiritual advisor as a character witness and communications are relevant to the aspects of character as to which advisor testifies.

    Urges to spray are relevant to Def's character regarding defacing property of others.
  116. Witness called as identity witness.  Defense cross examines on fact that she had a conviction for DWI 8 years ago.  Prosecutor objects.  How should ct rule on prosecutor's objections?
    Objection should be sustained.

    A witness can be impeached by a prior conviction for a misdemeanor only if that misdemeanor was a crime involving moral turpitude.

    Driving while license suspended does not involve moral turpitude.
  117. What procedural step can defense take to challenge prosecutors strikes of all men?  How may prosecutor rebut this challenge?  What must defense show to succeed in her challenge?
    Make a Batson challenge.

    Make a challenge to array after both sides submit their lists of challenges to the judge and before judge empanels the final jury.

    Since prosecutor's striking of all males makes a prima facie case of gender motivation, prosecutor may rebut by explaining each challenge on a gender-neutral grounds.

    Defense has burden of persuading judge peremptory challenges were actually made on gender grounds.
  118. Can an expert's testimony of handwriting by comparison alone be sufficient to establish the hand writing of a person?
    Proof by comparison of handwriting, either by expert or jury w/o expert testimony, is not sufficient to establish that the handwriting is that of a witness of person, if that witness or person denies under oath that this is his signature.

    If witness or person does not so deny that the signature is his, comparison is sufficient.
  119. What 3 questions must the ct ask in testing the qualifications of a prospective juror?
    1.  Are you a qualified voter in this county and state?

    2.  ave you ever been convicted of theft or any felony?

    3.  Are you under indictment or accusation theft or any felony?
  120. What procedural step can prosecutor take to seek relief from a problem that Def to famous to have trial there?  If there is some step that prosecutor can take, what must prosecutor show in order to obtain this relief?
    Move for a change of venue.

    At hearing that will be held on the motion, prosecutor must show that b/c of influences in the original county in favor of Def, a trial fair and impartial to the state cannot be held.
  121. What procedural step can defense take to try to stop a witness from testifying about Def's identity, and what argument can defense make to support her position?
    Motion to suppress testimony.

    Defense can argue that due process prohibits admission of testimony of an eyewitness who, before trial, identified Def at a show-up procedure so suggestive that it creates a high likelihood that witness will erroneously identify Def as the perpetrator.

    Comments if this is perpetrator can be suggestive.
  122. What procedural step can defense take to try to keep pictures found on a cellphone from being introduced into evidence, and what arguments can defense make in support of her position?
    Motion to suppress, arguing obtained in violation of law, and thus are inadmissible.

    If arrest invalid, pictures inadmissible as fruit of poisoness tree.

    Going beyond what is permissible as a search incident to even a valid arrest.
  123. If prosecutor makes a comment during closing explaining that the presumption of innocence is only for the innocent adn it disappears once some evidence of Def's guilt is offered, on what grounds can defense object to these remains?
    Object that prosecutor's argument mistakes law applicable to case.

    Presumption of innocence and the burden of proof beyond a reasonable doubt must be applied by jury in considering whether evidence introduced shows accused's guilt beyond a reasonable doubt.
  124. What legal ground does Def have to attack his convictions that defense failed to investigate important claims?  What legal standard must be met to prevail?
    6th Amendment right to adequate defense representation.

    Must establish:

    1.  counsel's failure to investigate was below the standard of professional competence and not simply a tactical decision, and

    2.  there is a reasonable probability that if counsel had performed adequately - that is, investigated his claims - the outcome of the proceeding would have been different.
  125. Does the Crim Pro Code confine the jury to reaching a verdict only on the state jail felony charged in the indictment, or does it provide for some other alternative?
    Provides for a jury to convict of a less serious offense than offense charged in indidtment.

    Jury should be given this alternative only if both:

    1.  offense is a lesser-included offense of charged offense, which means it requires proof of same but not all facts required for charged offense, and

    2.  there is evidence before the jury that Def is not guilty of chanrged offense but is guilty of less serious one.
  126. An arrest warrant was issued by a magistrate.  Was officer authorized to arrest Def in Fort Bend County on the basis of an arrest warrant that was issued in Ham's County?
    Yes.  Under the Tx Code of Crim Pro, a valid arrest warrant issued by a magistrate extends to every part of (1) the state and (2) any peace officer is authorized to execute the warrant.
  127. If arrest outside of school, was officer's arrest valid?
    Arrest valid, first, only if officer had probable cause.  Required that he have facts on which a reasonable person would conclude that there was a fair probability that Def was the perpetrator.

    Lack of an arrest warrant, as required by Crim Code, must be justified.

    Only exception in this circumstance is that person found in suspicious place.

    School has prior offenses and likely future offenses.
  128. Can Def waive his right to indictment?  If so, what requirements must be met and what charging doc will be used instead of an indictment?
    Yes, Def can waive indictment in all cases except prosecutions for capital murder.

    If Def waives it, Def will be charged by an information signed and filed by the prosecutor.

    Waiver of indictment has three requirements:

    1.  Def must be represented by counsel

    2.  Waiver must be by written instrument or in open ct.

    3.  waiver must be voluntary
  129. Does Def have the right to address the grand jury?
    Def has no right to address grand jury.

    Grand jury may permit him to appear.

    Prosecutor must consent to defense's adressing the grand jury, but prosecutor's consent is not necessary for def, as suspected party, to himself address the body.
  130. Was the grand jury required to charge co-Def and Def individually in two separate indictments or can they be charged in same indictment?
    No.  More than one Def may be charged in a single indictment if they are both charged w/ same offense.
  131. What procedural step should defense take to prohibit prosecutor from mentioning a fact unfavorable to Def?  If prosecutor mentions this fact at trial, what should defense do to perserve the issue for appeal?
    Motion in limine, asking ct order prosecutor not to mention the fact to jury b/c it suggests prior bad acts relevant only to Def's character.

    Inadmissible under Tx. R. Evid. 404(b).

    Motion should ask ct order prosecutor to alert ct and Def if and when prosecutor intends to mention it, so defense can object before jury hears about it.

    If ct. grants and orders prosecutor not to mention, defense should, if prosecutor mentioned it, object and get a ruling.

    Motion in limine does not perserve anything for appeal.
  132. What is the proper amount of time defense can file pleadings?
    In cases in which Def is entitled to be served w/ indictment, Def must have 10 days from that service within which to file written pleadings.
  133. Is it permissible to charge five offenses in the same indictment, or was a separate indictment required for each of the five offenses?

    Generally, an indictment may charge only one crime.

    However, several crimes may all be charged in one indictment if they are part of the same "criminal episode."

    Crimes consisting of violating the same criminal statute are part of the same criminal episode.
  134. Did the grand jruros violate the law when they asked Prosecutor for his legal advice during proceedings?
    No.  Under Tx. Code of Crim Pro, the grand jury may send for the atty representing the state and ask for his advise on any matter of law.
  135. What are three rules for fixing amount of bail?
    Bail is to be sufficiently high to ensure that Def appears for ct. settings and for trial.  Bail must not be set so high as to be an instrument of oppression.

    In determining bail, judge must consider:

    1. Nature of the charged offense

    2.  Def's ability to make bail

    3.  Future safety of the victim and community
  136. Prosecutor tells you that an examining trial does not have to go by the rules of evidence.  Is this statement correct?
    No.  Pursuant to Tx Code of Crim Pro, the same rules of evidence that govern a criminal trial also apply at an examining trial.
  137. Def was sent to Harris County and taken before a magistrate 36 hours after his arrest.  Was Def taken before the magistrate in a timely manner?

    An arrestee must be brought before a magistrate without unnecessary delay, but not later than 48 hours.

    Arresting officer may take him before a magistrate in the county where he was arrested, or, if it is more expeditious, before a magistrate in another county.
  138. What are three requirements for an arrest warrant?
    An arrest warrant must be:

    1.  issued in the name of the state of Texas

    2.  must specifically state the name of the person to be arrested (or a reasonably definite description of the person if his name is unknown)

    3.  must name the offense the person is accused of

    4.  must be signed by a magistrate and name his office
  139. Bond w/o warranties or other security but concerned Def cannot be controlled by parents and be out pass curfew.  What kind of bond is magistrate considering?  What conditions of bond can magistrate impose to ease concerns about releasing Def on bond?
    Magistrate is considering "personal" bond, which on forfeiture requires Def to pay the amount but does not require a surety or cash deposit.

    Magistrate may impose any reasonable condition on bail that is related to safety of victim of the crime or community.

    Thus, magistrate could condition the bond on Def being in Def's home after nightfall, since this would reduce danger to community from future offenses of the sort charged against him in this case.
Card Set:
Texas Criminal Procedure
2014-06-01 14:25:24
Texas Criminal Procedure

Texas Bar Exam - Criminal Procedure and Evidence Flash Cards
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