Texas Criminal Procedure P&E Part 3 of 3

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elongstreet
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276553
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Texas Criminal Procedure P&E Part 3 of 3
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2014-06-10 12:16:53
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Texas Crim Pro Set
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Texas Crim Pro P&E Set 3 of 3
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  1. 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.
  2. May a Def withdraw his guilty plea if he is in front of the judge to plead guilty?
    Yes.

    A plea of guilty to judge can be withdrawn as a matter of right before the ct takes plea under advisement.
  3. Is a guilty plea admissible at Def's trial as evidence of his guilt?
    No.

    Under Tx. R. Evid. 410, a plea of guilty that is later withdrawn cannot be used against Def who entered the plea.
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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.
  9. 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.
  10. Must the ct include a definition of reasonable doubt in the jury charge?
    No.

    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.
  11. 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.
  12. 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.
  13. 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?
    Yes.

    In the instructions, ct is not to convey to jury court's view as to the weight of evidence.
  14. 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?
    No.

    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.
  15. 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.
  16. 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.
  17. IF jury assesses punishment, can it place Def on deferred adjudication?
    No.

    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.
  18. 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.
  19. 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.
  20. 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.
  21. 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.
  22. 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.
  23. 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.
  24. 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.
  25. 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.
  26. 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?
  27. 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.
  28. 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.
  29. 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.
  30. 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.
  31. 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.
  32. 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.
  33. 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.
  34. 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.
  35. 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
  36. 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.
  37. 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.
  38. 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.
  39. 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.
  40. Is it permissible to charge five offenses in the same indictment, or was a separate indictment required for each of the five offenses?
    Yes.

    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.
  41. 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.
  42. 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
  43. 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.
  44. 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?
    Yes.

    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.
  45. 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
  46. 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.

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