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what is a complaint?
- A SWORN statement that alleges there is PC to believe someone committed a crime.
- Crim Complaint requirements:
- 1. in writing;
- 2. name of offense;
- 3. date of crim (if know);
- 4. name or description of accused.
what are requirements of a TX arrest warrant?
- 1. written order by magistrate;
- 2. issued in the name of "The State of Texas";
- 3. Name of suspect or reasonable description;
- 4. Nature of offense;
- 5. Signed and dated by magistrate;
- 6. Office of the magistrate stated.
within what amt of time must arrestee be brought before a magistrate?
C must be be brought b/4 magistrate without unnecessary delay - but within 48 hours after arrest
on what grounds can bail be denied?
- 1. capital murder if there is substantial ev of guilt;
- 2. D charged with felony has 2 prior felonies;
- 3. D charged with current felony while out on bail for another felony;
- 4. felony charged with involved a deadly weapon;
- 5. D charged with violent or sexual felony while out on parole or probation.
what procedural step can arrestee take to challenge denial of bail?
immediately appealing order denying bail to the court of crim appeals
if C pays bond amount and gets out, and then ask magistrate for court appointed atty. Can magistrate deny court appointed on the basis that C had $ to pay bail?
- cannot consider if had $ to make bail in determining whether D is indigent
After initial meeting with C, he appears to be crazy. I'm thinking i should raise the defense of inanity at trial.
I don't have $ for an expert psychiatrist. What should i do?
- Due Process entitles an indigent defendant the appointment of an expert, including a psychiatrist, if the experts expertise is likely to be a significant issue in the case.
- NOTE: If I don't want to reveal my strategy to the state, I can make a motion for psychiatrist ex parte.
if I'm planning to use the insanity defense, must I inform the state in advance?
- If there is a pretrial hearing, then inform the state at the pretrial hearing.
- Otherwise, file notice 20 days before the case is set for trial.
- Give a copy of the notice to the prosecutor.
diff b/t personal bond and bail bond?
- PR bond: D promises to bay bond if D fails to comply with the terms of release.
- BAIL BOND: Requires a surely.
who selects the grand jury?
- 1. grand jury commissioners appointed by district judge; OR
- 2. in the same manner as trial jurors are selected for civil cases (prospective jurors are summoned to the district court, which tests their qualifications and impanels 12 as the grand jury)
does C have a right to testify to the grand jury?
right to have counsel present at grand jury proceedings?
- NO right to be there or to have atty present.
- BUT - prosecutor may allow C to be there or for defense atty to be there.
can prosecutor make closing arguments during grand jury's deliberations?
Prosecutor can be there during the grand jury proceedings but NOT during the grand jury deliberations
can def atty ask prosecutor for names and addys of grand jury members as part of discovery after return of indictment?
- grand juror's personal info is confidential
- can only share info for "good cause"
what warnings should I give D if he agrees to testify for grand jury?
- 1. D has a right not to answer q's;
- 2. D must be told what offense he is a suspect on;
- 3. D has a right to have counsel outside the room and consult with counsel before answering any question.
- 4. D has a right to have answers and q's recorded.
who may question D if he agrees to answer questions during grand jury proceedngs?
- only PROSECUTOR
- GRAND JURORS.
can prosecutor forego grand jury proceeding and draft and sign the indictment?
- Prosecutor can use an 'INFORMATION" to charge misdemeanor D or felony D'w who waive the right to an indictment.
- NOTE: if felony and D has not waived grand jury, grand jury is a must.
what words must be at the beginning and at the end of an indictment"
start with: "IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS"
end with "AGAINST THE PEACE AND DIGNITY OF THE STATE"
does mental state and and elements of the offense need to be included in the indictment?
what can you do if they're not?
- File a motion to quash the indictment b/c no state of mind and elements of crime included.
- Motion to quash must be:
- 1. in writing;
- 2. filed BEFORE the day trial starts;
- 3. specify the particular aspects that are defective
can the state amend the indictment to allege an additional crime?
- The state can amend the indictment to fix a defect, it cannot amend it to add a new crime.
- NOTE: if the state wants to add a new crime, they must go back to the grand jury and and ask to indict D for the new crime.
what should D's counsel do if there is a super good W for D but W is out of town on vacation?
- File a motion for a continuance.
- D's counsel should make the request in writing,
- show good cause for the delay, and
- the motion should be sworn.
what are the required admonitions for def when taking a guilty plea?
- 1. the range of penalties attached to the offense;
- 2 that any recommendation by the prosecutor will not be binding on the court;
- 3. there is a limited right to appeal following a guilty plea.
- 4. if Def is not a US zit, plea may result in deportation, or exclusion of admission, or denial of naturalization;
what criteria must evidence derived from a scientific theory meet to be reliable?
(something on which an expert relies)
- 1. the underlying scientific theory is valid;
- 2. the technique in applying the theory valid;
- 3. the technique was properly applied.
if D wants to go to trial, and ask the jury to sentence D with probation, what must I do?
- 1. file a SWORN application for probation.
- 2. it must be done pretrial;
- 3. in writing;
- 4. state that D has NOT been convicted of a felony.
in crim cases, does D have a right to voir dire experts before they testify?
YES - upon request.
when does a person have standing to challenge a warrantless search?
- when he has a reasonable expectation of privacy in the thing/place that was searched.
- A does not have a reasonable expectation of privacy in B's car.
what can def atty do to precent oral testimony of arresting officer?
- Move to suppress oral confession because they are strongly disfavored pursuant to the Tx Code of Cim Pro.
- Exceptions to no oral confessions rule:
- 1. judicial confessions;
- 2. res gestae statements;
- 3. statements that were electronically recorded;
- 4. corroborated statements.
Can D elect to have jury decide punishment?
what's the procedural step to make it happen and when must it be done?
- D must elect jury sentencing in writing BEFORE start of voir dire examination of jury panel
is potential juror qualified to serve in jury if he has a prior misdemeanor conviction for theft?
- PPl absolutely disqualified from serving if:
- 1. theft conviction; OR
- 2. felony conviction.
is it ok for prosecutor to use peremptory challenges to strike all women from jury?
- can't do that
- To defend action, prosector must show GENDER NEUTRAL REASON FOR EACH STRIKE
what is the accomplice witness rule?
A D cannot be convicted on testimony of an accomplice unless there is CORROBORATING evidence that connects D with the crime.
what objection can D's counsel have to the introduction of lab reports by someone other than the tech who conducted the testing?
- Inadmissible because it violates the Confrontation Clause.
- Tech who conducted the testing must be present to testify and be subject to cross examination.
what can D atty do to avoid being surprised by a W's testimony during trial?
Defense can ask the state to provide reasonable notice in advance of trial of its intent to introduce in its case in chief evidence of other crimes not raising from the same T/O as charged crime.
can the jury hear all evidence on BOTH guilt and punishment before it deliberates and returns a verdict?
- Guilt and Punishment phases in CRIM cases are bifurcated into separate proceedings.
- - Ev related to punishment cannot be bought before the jury before they've found D guilty
what happens when the jury agrees on verdict of guilt but NOT as to punishment?
- Court may grant a mistrial only with respect to punishment.
- Guilty verdict remains intact.
- D cannot ask for a mistrial and get new trial as to guilt and punishment
when can officer make a warrantless arrest?
- Rule: need warrant for arrest.
- Exceptions: When X commits - in the officer's view - a felony or misdemeanor against the public peace.
- NOTE: being found in a suspicions place can also authorize a warrantless arrest.
where is venue proper?
where the offense was committed
does X have a right to be present during examining trial?
YES - you have a right to be present
what is an examining trial?
- A pretrial hearing to determine whether there is PC to believe D is guilty of crime.
- D must be allowed to challenge the evidence and consult with counsel
- NOTE: RIGHT TO EXAMINING TRIAL ONLY EXISTS PRIOR TO INDICTMENT!
what warnings must magistrate give D before examination of any witnesses in D's examining trial?
- mag tell D that:
- 1. D has a right to make a statement re the offense;
- 2. D does not have to may a statement;
- 3. if D makes a statement, it may be used agasint him.
is Defendant's testimony given during the examining trial sworn?
- D's statement at the examining trial is transcribed by a court reported but NOT SWORN
what can defense counsel do if officer acted corruptly in selecting grand jury panel?
- Make a channel based on Code's requirement that the panel be diverse (sex, race, age).
- If info before grand j impaneled then challenge array during selection process.
- If info received after impaneled, then file motion to set aside indictment.
prior to trial, can procedural step can defense take to have court dismiss indictment based on lack of info?
- Motion to quash the indictment.
- Very unlikely to succeed - not enough ev is not grounds to dismiss indictment.
if there is a victim, does victim have to know about plea agreement?
- Victim must know if D has entered a plea agreement.
- Before entering a plea agreement, court must ask state:
- 1. whether a victim impact statement has been returned to the state;
- 2. whether the victim has been informed of plea bargain agreement.
what should defense counsel do if state wants to introduce an admissible prior conviction against one co-defendant but not the other?
- Move to sever trial in order to protect D who has no prior conviction.
- Court will grant motion.
can a D charged with a "3g" offense be offered community supervision?
- YES - BUT ONLY BY THE JURY.
- The judge cannot impose community supervision on a 3g offense.
what is the rule for an inventory policy?
- Inventories must be conducted pursuant to a STANDARD ADMIN policy that applies to all officers.
- Inventories CANNOT BE CONDUCTED WITH THE PURPSE OF DISCOVERING EV.
- The purpose of inventories is to protect ppt and prevent false claims of theft.
- NOTE: inventory policy cannot give officer sole discretion as to whether or not to perform it
what is the Brady doctrine?
- The state must provide defense with all favorable evidence that is material.
- Favorabel evidence describes exculpatory evidence or ev that could be used for impeachment.
what does an application for a subpoena need to include?
- 1. name of the W;
- 2. location and vocation of W;
- 3. that W's testimony is material to the case.
can court conduct voir dire without the participation of counsel?
- The trial court has discretion to allow counsel to participate in voir dire, but the Code does not require counsel to be allowed to do it in non-capital cases.
- NOTE: in capital felonies where the state is seeking the death penalty, counsel is entitled to participate in voir dire.
what should counsel do if he learns that there is a juror with a prior felony conviction?
- Object as soon as soon as he finds out - and in no event later than when the verdict is entered.
- Conviction will be reversed for allowing an absolutely disqualified person in jury only if:
- 1. def raises disqualification before verdict
you want client to be acquitted based on ABC defense. What procedural step to give jury that option?
- As long as ev was introduced in support of ABC defense, counsel should move that jury be instructed that defendant can be acquitted on the defense of ABC.
- If judge refuses to include this instruction, counsel should OBJECT to the jury instructions.
when does a motion for a new trial need to be filed?
- 1. FILED within 30 days for sentencing;
- 2. PRESENTED within 10 days of filing.
- NOTE: must be ruled on within 75 days of sentencing (otherwise its overruled by operation of law)
what are grounds for granting a new trial?
- 1. D was not present;
- 2. verdict decided by lot;
- 3. D's right to counsel was violated;
- 4. juror corrupt conduct;
- 5. new ev discovered
can D waive his right to an indictment?
- YES - in all cases but capital murder.
- 1. D must be represented by counsel;
- 2. waiver must be in writing or in open court;
- 3. waiver must be voluntary.
can there be more than 1 charge per indictment?
- Generally, indictment is one per crime.
- BUT can have several crimes in the same 'CRIMINAL EPISODE'
how long does D have to file written pleadings after being served with the indictment?
what argument should D's counsel raise to try to prevent testimony from an eyewitness who identified D before trial?
Make a motion to suppress the testimony because due process prohibits admission of an eye witness because it is too suggestive and creates a high likelyhood that W will erroneously identify D as the perpetrator.
appropriate questions to ask a potential juror to test his qualifications?
- 1. are you registered to vote in this county, state?
- 2. have you been convicted of theft or of a felony?
- 3. are you under indictment for theft or a felony?
what is a Batson Challenge?
An objection to the validity of a peremptory challenge, on grounds that the other party used it to exclude a potential juror based on race, ethnicity, or sex. The result of a Batson challenge may be a new trial.
can testimony from EW after making handwriting comparison that handwriting is D's be enough to establish that?
YES - but only if D does not deny under oath that that is his hand writing.
if the state has something (like a computer) that I (def atty) think I need to analyze b/c it pertains to the charge, and the state doesn't not let me, what can I do?
- File a discovery motion to inspect the computer.
- I must show good cause that the laptop is:
- 1. a tangible thing;
- 2. is or contains material evidence;
- 3. that it is in the possession of the state;
- 4. that it is not the state's work product.
if D takes plea offered by the state but the court refuses to impose it, what can D do?
D can withdraw his guilty plea.
what is an exception to the clergy communications privilege?
- NOT privileged if:
- 1. D calls clergy;
- 2. to testify about D's character; and
- 3. the communications are relevant as to what D is charged with.
is the jury allowed to charge D with a lesser included offense?
- YES -if:
- 1. the lesser included offense includes some but not all the elements as the original charge;
- 2. there is evidence to proof the lesser included offense but not the originally charged offense.
how can D show inneffective assitance of counsel
- 1. counselor's performance was below the standard of professional competence and NOT simply a tactical strategy;
- 2. there is a reasonable probability that if counsel had performed adequately, the outocme would have been diff. (but-for test)
- NOTE: high burden of proof.