Texas Criminal Procedure and Evidence

Question 1

What are the requisites of an arrest warrant?

Answer 1

An arrest warrant must:

1. Be made in the name of “The State of Texas”;
2. Name the person whose arrest is ordered, or, if his name is not known, describe him;
3. State that the person is accused of some offense against the laws of Texas and must name the offense; and
4. Be signed by the magistrate.

Question 2

Within what time period must a person who has been arrested be brought before a magistrate?

Answer 2

A person who has been arrested must be taken before a magistrate no later than 48 hours after the arrest. This may be accomplished through closed circuit video.

Question 3

If a private citizen’s acquisition of evidence would be illegal if done by a police officer, does the Texas exclusionary rule apply to such evidence?

Answer 3

Yes, the rule applies even when the private citizen is not acting at the behest of the police.

Question 4

May a combination search and arrest warrant be issued?

Answer 4

Yes, a single warrant may order both the arrest of a person and the search and seizure of identified items.

Question 5

In which court is a felony tried?

Answer 5

Criminal district court

Question 6

Where is the default venue for a criminal offense?

Answer 6

Any county in which the offense occurred.

Question 7

What is the general statute of limitation for presenting an indictment for a felony? for a misdemeanor?

Answer 7

Three years from the commission of the felony, or two years from the commission of the misdemeanor.

Question 8

What is a complaint and what crimes may be prosecuted by filing a complaint in a municipal or justice court?

Answer 8

A complaint is a written affidavit brought by any individual alleging a criminal act. A criminal offense punishable by a maximum fine of $500 (i.e., a Class C misdemeanor) is initiated by filing a complaint with a municipal or justice court.

Question 9

What is an information and what crimes may be prosecuted by filing an information in a county court?

Answer 9

An information is a written statement brought by the state and charging the defendant with a criminal act. It must be accompanied by an affidavit. Class A and B misdemeanors are initiated by filing an information in a county court.

Question 10

What is an indictment and what crimes may be prosecuted by filing an indictment in a district court?

Answer 10

An indictment is a written statement of the grand jury alleging a criminal act. it is required for the prosecution of any felony. I may be waived by the defendant for a noncapital felony, in which case the felony may be prosecuted by the filing of an information.

Question 11

How is a defective indictment be challenged?

Answer 11

A defendant must file a motion to quash. The motion must (i) be in writing, (ii) be filed before the trial begins, and (iii) specify the claimed defect.

Question 12

Who has the power to impanel a grand jury?

Answer 12

A district court judge.

Question 13

What are the two bases for challenging the array from which a grand jury is selected?

Answer 13

1. An improper method was used to select the array; or

2. The official who summoned the prospective jurors acted corruptly in doing so.

Question 14

How many individuals serve on a grand jury?

Answer 14

Once at least 16 prospective grand jurors are qualified, the court selects and impanels 12 to serve as grand jurors and four to serve as alternates.

Question 15

Who may be present in a grand jury room while the grand jury is conducting proceedings?

Answer 15

1. Grand jurors;
2. Bailiffs;
3. the prosecutor;
4. Witnesses, while being examined;
5. Interpreters, if necessary; and
6. A stenographer or person operating an electronic recording device

Question 16

Who may question a grand jury witness?

Answer 16

Only the prosecutor or a member of the grand jury.

Question 17

What must the grand jury tell the accused or suspect about the alleged offense before questioning?

Answer 17

The grand jury must advise him of the offense of which he is suspected or accused, the county where the offense is said to have been committed, and the time of commission of the offense.

Question 18

What six warnings must be given to the accused or a suspect who is subpoenaed by the grand jury to testify?

Answer 18

The following warning must be given:

1. The fact that the testimony is under oath;
2. The risk of an aggravated perjury prosecution if he falsely answers a material question;
3. The right to refuse to answer any incriminating questions;
4. The right to have a lawyer present outside the chamber for advice before answering any questions;
5. The fact that any testimony could be used against him in a subsequent proceeding; and
6. The right to an appointed attorney in the case of indigence.

Question 19

When may an accused or a suspect address the grand jury?

Answer 19

An accused or a suspect may address the grand jury with the consent of the prosecutor, but has no explicit right to do so.

Question 20

Can a defendant challenge an indictment based on the nature or sufficiency of the evidence considered by the grand jury?

Answer 20

No.

Question 21

How many grand jurors must agree to indict (“a true bill”)?

Answer 21

at least 9 of the 12 serving on the grand jury.

Question 22

If a grand jury issues a no-bill, how long must the prosecutor wait to seek an indictment of the same person on the same evidence?

Answer 22

There is no time limitation. A prosecutor may seek a “re-indictment” at any time.

Question 23

Who may participate in grand jury deliberation as to whether there is a probable cause to indict?

Answer 23

Only members of the grand jury. While the grand jury may request advice from the prosecutor about any matter of law, and may ask the prosecutor any question about the proper discharge of its duties, the prosecutor may not be present when the grand jury is deliberating.

Question 24

Do the rules of evidence apply to grand jury proceedings?

Answer 24

In general, no. The grand jury may hear hearsay evidence as well as illegally obtained evidence.

Question 25

Who is entitled to an examining trial?

Answer 25

An individual who has been arrested by police for a felony but who is not yet charged by indictment is entitled to an examining trial.

Question 26

What are the rights of the accused at an examining trial?

Answer 26

The rights to:

1. Be represented by counsel;
2. Be present when witnesses are presented;
3. Confront and cross-examine witnesses;
4. Subpoena witnesses;
5. Make an unsworn statement (reduced to writing and signed by the accused) before any witnesses are examine, and/or to give sworn testimony.

Question 27

In what judicial proceeding is an indigent defendant entitled to have an attorney appointed to represent her?

Answer 27

In any adversarial judicial proceeding that may result in punishment by confinement.

Question 28

What two forms can a bail bond take?

Answer 28

1. Surety bond: a written undertaking entered into by the defendant and his sureties to secure his appearance in court.
2. Cash bond: Contains the same undertaking; but the defendant, not a surety, makes a cash deposit with the court in the amount of the bond.

Question 29

What is a personal bond?

Answer 29

A personal bond is a written promise by the defendant to appear in court to answer the criminal accusation(s) that is secured only by the defendant’s promise to pay the bond amount if he fails to appear.

Question 30

When may a court release a defendant on recognizance?

Answer 30

Recognizance may be granted by a magistrate if the defendant (i) is charged with a fine-only misdemeanor and (ii) has no convictions for felonies or misdemeanors punishable by jail time.

Question 31

In determining the amount of bail, what 5 things are the court required to consider?

Answer 31

The court must consider:

1. what amount is suffciently high to give rasonable assurance that the defendant will appear;
2. That the power to require bail cannot be used as an instrument of oppression;
3. The nature of the offense and the circumstances under which it was committed;
4. The defendant’s ability to make bail (proof may be taken on this point); and
5. The future safety of a a victim of the alleged offense and the community.

Question 32

On what bass must the trial of more than one defendant be severed, and when must the issue be raised?

Answer 32

A trial of multiple defendants must be severed if (i) there is an admissible conviction against one defendant, or (ii) a joint trial would be prejudicial to any defendant. The motion to sever must be made before trial, or if there is a pre-trial hearing, by the pre-trial hearing.

Question 33

If–prior to trial–a defendant seeks to keep the prosecutor form introducing at trial illegally obtain evidence, what motion should the defendant file?

Answer 33

A defendant should file a motion to suppress the evidence and/or a nontraditional motion in limine asking the court to rule on the on the admissibility of the evidence at trial.

Question 34

What is the presumption regarding a defendants’ competency, and how is the issue of a defendant’s incompetence raised?

Answer 34

A defendant is presumed competent to stand trial unless proved incompetent by a preponderance of the evidence. Either party or the court may suggest by motion that the defendant is incompetent to stand trial.

Question 35

What must a motion for a continuance due to an absent witness contain?

Answer 35

In addition to the name and address of the witness, the motion must allege (i)diligence in attempting to secure the witness’s attendance, (ii) materiality of the witness’s testimony, (III) that the motion is not made for purpose of delay, (iv) that the absence was not procured by the defendant, and (v) that there is no reasonable expectation that the attendance can be obtained by the time of trial.

Question 36

What information must the prosecutor produce for the defendant’s inspection, electronic duplication, photographing, and copying after receiving the defendant’s timely request?

Answer 36

1) an offense reports;
2) any designated documents, papers, written or recorded statements of the defendant or a witness, including witness statements of law enforcement officer; and
3) any unprivileged designated documents, objects, or other tangible things that constitute or contain material evidence and are in the possession, custody, or control of the State.

Question 37

Can the prosecutor withhold information subject to the right of inspection as long as the prosecutor does not think it will be helpful to the defendant?

Answer 37

No. Unlike the Brady disclosure obligation, there is no requirement that this material be helpful to the defendant.

Question 38

Can a defendant waive the right to a jury trial on the issue of guilt?

Answer 38

Yes, but only if the defendant makes the waiver i) in person, ii) in writing, iii) in open court, and (iv) with the consent and approval of both the court and the prosecutor.

Question 39

When there is only one defendant, how many peremptory challenges does each party get in (a) a capital case in which the state seeks the death penalty, (b) any other felony case, and (c) a misdemeanor case tried in district court.

Answer 39

a) death penalty: 15
b) other felonties: 10
c) misdemeanor in district court: 5

Question 40

When there is more than one defendant, how may peremptory challenges does each defendant get in (a) a capital case in which the State seeks the death penalty, (b) any other felony case, and (c) a misdemeanor case tried in district court?

Answer 40

a) death penalty: 8
b) other felonies: 6
c) Misdemeanor in district court: 3

Question 41

How many peremptory challenges may be exercised agains alternate juroros if (i) one or two alternate jurors are to be chosen, or (ii) three or four alternate jurors are to be chosen?

Answer 41

i) for one or two alternate jurors, the State and the defendant each get one peremptory challenge.
ii) For three or four alternate jurors, the State and the defendant each get two peremptory challenges.

Question 42

When is a judge disqualified from serving as judge?

Answer 42

A judge is disqualifed if the judge (i) is interested, (ii) has been of counsel for the State of the accused in the very case before the judge, or (iii) the accused or the party injured is connected with the judge by consanguinity or affinity within the third degree.

Question 43

What is the “The Rule” regarding witnesses?

Answer 43

The court, at the request of a party or on its own motion, must order witnesses excluded so that they cannot hear the testimony of other witnesses. In addition, the court, at the request of a party, may order the exclusion of a witness who is close relative of deceased victim or guardian of a victim, but only if the court determines that the testimony of the witness would be materially affected if the witness hears other testimony at the trial.

Question 44

What restrictions are there on the charge given by the judge to the jury?

Answer 44

The charge may not (i) express any opinion as to the weight of the evidence, (ii) sum up the testimony, (iii) discuss the facts, or (iv) use any argument calculated to arouse the jury’s sympathy or excite its passions.

Question 45

When a party doubts that a juror voted in favor of a verdict, what action can the party take?

Answer 45

The party can ask the judge to poll the jury, which requires the judge to address each juror separately and ask if the verdict is the juror’s.

Question 46

In a felony case, how may jurors must be impaneled and how many must agree with the verdict?

Answer 46

Generally, 12 jurors must be impaneled and all must agree with the verdict.

Question 47

Does the defendant have the right to have a jury determine her sentence?

Answer 47

The judge generally determines the sentence, but a defendant may elect to have punishment assessed by the jury in non-capital cases by making a motion for jury sentencing before voir dire of the jury panel.

Question 48

When must a new trial motion be filed?

Answer 48

No later than 30 days after the date the trial court imposes or suspends a sentence in open court.

Question 49

What is the standard for granting a new trial motion based on the verdict?

Answer 49

The verdict must be contrary to the law and the evidence.

Question 50

May the court grant a new trial on its own accord?

Answer 50

No, the trial court may only grant a new trial on the defendant’s motion.

Question 51

Can a defendant who has bee acquitted bring an ineffective assistance of counsel claim?

Answer 51

No, because the defendant cannot show that the result would have been different.

Question 52

When may a spouse be called as a witness for the state in a criminal case?

Answer 52

When the case involves: a crime against the defendant’s spouse, a member of the household of either spouse, or any minor; or bigamy.

Question 53

When can a defendant be convicted on the testimony of an accomplice

Answer 53

When the accomplice testimony is corroborated.

Question 54

Is there a physician-patient privilege in Texas criminal cases?

Answer 54

no

Question 55

When may a witness be impeached by a prior crime?

Answer 55

Any witness may be impeached by a evidence that he committed any felony or any crime involving moral turpitude, as long as the probative value of the evidence outweighs its prejudicial effect to a party.

There is no special rule for a criminal defendant.

Question 56

What action must the proponent of a business record take in order to admit such a record as self-authenticating?

Answer 56

At least 14 days before trial, the proponent of a business record must serve a copy of the record and the custodian’s affidavit on the opposing party.

Question 57

Who has the right to make a statement in court about the impact of the offense and when can this statement be made?

Answer 57

A victim, close relative of a deceased victim, or guardian of a victim has the right to appear in person after the sentence has been pronounced to present to the court and to the defendant a statement of the person’s views about the offense, the defendant, and the effect of the offense on the victim.