Texas Criminal Procedure P&E Part 2 of 3

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  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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.
  9. 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.
  10. 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.
  11. 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.
  12. 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.
  13. 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.
  14. 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
  15. 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.
  16. 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.
  17. 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.
  18. 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.
  19. 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.
  20. 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.
  21. 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.
  22. 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.
  23. 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.
  24. 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.
  25. 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.
  26. 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.
  27. 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.
  28. 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.
  29. 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
  30. 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.
  31. 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.
  32. 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.
  33. 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.
  34. 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.
  35. 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.
  36. 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.
  37. 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.
  38. 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.
  39. 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.
  40. 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.
  41. 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.
  42. 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.
  43. 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.
  44. 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.
  45. 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.
  46. 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.
  47. 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.
  48. 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.
  49. 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.
  50. Where is venue proper?
    As a general rule, venue is proepr in the county in which the crime was committed.
  51. 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.
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Texas Criminal Procedure P&E Part 2 of 3
Texas Criminal Procedure P&E Part 2 of 3
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