P and E

Question 1

When must a person be magistered?

Answer 1

Without unnecessary delay, but in any event no later than 48 hours after arrest.

Question 2

Does the accused have the right to address the grand jury? If the accused does address the grand jury do they have a right to counsel?

Answer 2

No. The prosecution may allow the accused to address the grand jury. They do not have a right to counsel when addressing the grand jury.

Question 3

When is the prosecution permitted to be with the grand jury?

Answer 3

They may be with the grand jury any time during the proceedings - which they may make arguments.

They may not be with the grand jury during their deliberations.

Question 4

Is the prosecution obligated to give the defense the grand jurors’ names and addresses as a part of discovery?

Answer 4

No. The prosecution is not obligated to provided grad jurors’ information confidential information.

The TxCCP allows for this information only if good cause is shown.

Question 5

(1) How many peremptory challenges are permitted in a felony case?
(2) Do you need to justify your strikes?

Answer 5

(1) Each side is permitted 10 strikes.

(2) you do not need to justify your strikes unless the other party alleges they were motivated by race or gender.

Question 6

Does a juror need to be registered to vote?

Answer 6

No.

Question 7

What procedural step can be taken to challenge an indictment?

Answer 7

File a motion to quash at least one day before trial.

Question 8

(1) What do we call previous bad acts?

(2) Generally, are they admissible?

Answer 8

(1) Extrinsic evidence

(2) No

Question 9

When must a defendant elect for jury sentencing?

Answer 9

They must do so in writing before the commencement o voir dire.

Question 10

Can a juror serve who has been convicted of theft?

Answer 10

No, nor may they serve if they have been formally charged of theft.

Question 11

What pleading must be filed to object to suit in Texas?

Answer 11

A special exception, it must be filed before or concurrently with the answer.

Question 12

When determine whether a defendant is indecent can the court consider the fact a defendant has posted bail?

Answer 12

No.

Question 13

(1) What are the first two steps in a Texas Criminal Trial?

(2) If these steps are skipped can the error be fixed later in the trial?

Answer 13

(1) (a) the reading of the indictment or information to the jury by the prosecutor.
(b) the entry of the plea by the defendant.

(2) It may be fixed by proceeding with those two steps at the time of discovery.

Question 14

What admonitions must the Court give before a defendant accepts a plea of guilty?

Answer 14

(1) Range of penalties attached to the offense.
(2) Any recommendation by the prosecution as to penalty will not be binding on the court.
(3) The limited right to appeal a guilty plea.
(4) if the defendant is not a not US citizen, that a guilty plea may result in deportation, the exclusion from admission to this country, or denial of naturalization under federal law.

Question 15

What are the requirements for a motion to quash?

Answer 15

(1) must be in writing.
(2) Filed before the day of trial.
(3) Specify the parts of the charging instrument that the defense finds defective.

Question 16

By what deadline must the prosecution make video tapes available to the defense?

Answer 16

20 days before trial.

Question 17

If a defendant fails to elect how they wish punishment is assessed, what will be the default?

Answer 17

The judge will asses punishment if the defendant has not elected the jury asses punishment before the start of trial.

Question 18

What are the Requirements of a writ of Habeous Corpus?

Answer 18

(1) state the defendant was illegally detained.
(2) attach the order confining them.
(3) pray for a writ of habeous Corpus.
(4) swear that all allegations are true.

Question 19

What procedural step, if any, can you take to challenge the denial of bail?

Answer 19

Any challenge to the denial of bail by immediately appealing the order denying bail to the court of criminal appeals.

Question 20

Requirements for Evidentiary warrant?

Answer 20

(1) Probable Cause.
(2) the specific offense that’s been convicted.
(3) that the described property is evidence of the offense.

Question 21

What are the disqualifying reasons a judge may be removed in a Texas criminal case?

Answer 21

(1) was a victim of the crime.
(2) Counsel for either side.
(3) Biased.
(4) Related to the defendant within three degrees.

Question 22

What must a Magister advice a defendant?

Answer 22

(1) advise of the accusations against them.
(2) their right to counsel.
(3) their right to remain silent.
(4) their right to have an attorney present during questioning.
(5) their right to terminate the interview at any time.
(6) Their right to have a examining trial.

Question 23

When must an appointed Lawyer contact their assigned Client?

Answer 23

They must make every reasonable effort to contact them no later than the end of the first working day after the date of being appointed.

If the deadline is not met the court may replace the attorney.

Question 24

For what reasons may a judge deny bail?

Answer 24

(1) two prior felonies.
(2) Committed the present offense while on bail for another felony.
(3) had a prior conviction and committed the present offense with a deadly weapon.

Question 25

What is an examine Trial?

Answer 25

Where the magister will determine whether there is enough evidence to support probable cause.

Must be done before the indictment.

Question 26

What are the requirements for a search warrant?

Answer 26

(1) a statement that runs in the name of Texas.
(2) specification of the person, place, or thing being searched.
(3) specification of the item being seized.
(4) an endorsement of the date and hour issued.

and

(5) signature of the issuing magistrate.

Question 27

How many Jurors serve on a grand Jury?

Answer 27

12 jurors and two alternate jurors.

Question 28

How many grand jurors must concur for a person to be indicted?

Answer 28

9 grand jurors must concur.

Question 29

Who drafts a Grand Jury Indictment?

Answer 29

The attorney representing the state. (Prosecution)

Question 30

What is a Capias?

Answer 30

A writ issued by a Judge that directs a peace officer to arrest the person accused of an offense, and to bring them immediately before the court or on the date specified on the writ.

Question 31

When must a motion to transfer venue be filed?

Answer 31

At least 7 days before the pre-trial hearing.

Failure to do so will prevent any later motion to transfer being granted without showing good cause.

Question 32

Does the Texas Code of Criminal Procedure allow a jury to asses punishment when a defendant enters a guilty plea?

Answer 32

Yes, a jury may be impaneled to asses punishment if the defendant elected Jury sentencing.

Question 33

What procedural step can be taken to asses evidence?

Answer 33

Move to inspect the evidence.

Question 34

What are the requirements for motion to inspect?

Answer 34

(1) the evidence is a tangible item
(2) Contains material evidence.
(3) is in possession of the state.
(4) is not the work product of the state.

Question 35

Does a district court have jurisdiction of lesser included offenses?

Answer 35

yes.

Question 36

What is the period of limitation for Arson?

Answer 36

10 years?

Question 37

What is the general statute of limitations for felonies?

Answer 37

Generally 3 years.

No felony has a period of limitations of less than three years.

Question 38

How may incompetency be proven?

Answer 38

(1) they lack sufficient present ability to consult with his lawyer with a reasonable degree of understanding;

or

(2) he lacks a rational as well as factual understanding of the proceedings.

These would have to be proven by a preponderance of the evidence.

Question 39

What is bail?

Answer 39

A security given by a defendant to assure they will appear in court.

Question 40

What is a bail bond?

Answer 40

Is a written undertaking the defendant and one or more sureties that they will pay the amount of bail if the defendant does not make their required appearances.

Question 41

What is a personal bond?

Answer 41

A promise only to pay if the defendant fails to appear at court.

Question 42

What ways do an indictment and an information differ?

Answer 42

(1) an indictment must be approved by a grand jury and signed by the foreman, while an information need only be authorized and signed by the prosecutor.
(2) an information must be supported by a sworn complaint filed with the court, while an indictment does not require such support.

Question 43

What is the difference of nolo contendere vs a plea of non guilty?

Answer 43

In a criminal case a plea of nolo contendere and a plea of not guilty.

But, if a civil litigation were to arise from the same incident a plea of guilty could be used against them where as a plea of nolo contendere cannot be used against them.

Question 44

What must a defendant take to give the jury the ability to recommend community supervision?

Answer 44

The defense should file a sworn motion for community supervision stating that the defendant has never been convicted of a felony in texas or elsewhere.

This should be filed before trial.

Question 45

In a criminal case must the court grant a vior dire of an expert who will give testimony.

Answer 45

yes, it is not discretionary.

Question 46

How spousal privilege works in a criminal case?

Answer 46

The privilege rest with the spouse as to whether they will testify. The defendant cannot prevent the their spouse from being called by the prosecutor as a witness.

Question 47

Does the defendant have the right to be present at trial?

May trail commence even if they are not present?

Answer 47

A defendant has the right to be personally present, in fact, they can be compelled to be present.

But, in a felony trial, a trial can continue without the defendant if the defendant was present through selection of the jury and after that voluntarily declining to come to court.

Question 48

My the Court ignore the jury’s recommendation of community supervision?

Answer 48

No. If the jury makes the recommendation and the defendant is eligible, the judge must suspend the sentence and place the defendant on community supervision.

Question 49

What procedural step must be taken to perfect an appeal?

Answer 49

One must file a written notice of appeal in the trial court. If no motion for new trial is being filed, this must be done within 30 days of formal sentencing.

Question 50

If the court errs in its ruling on a motion to transfer venue, what effect will it have on appeal with respects to a final judgement?

Answer 50

The judgement must be reversed and the case remanded to the trial court. Venue determinations are incidental to trial rulings are correctable on appeal following a final judgement as a reversible error.

Question 51

When must an amended answer be filed?

Answer 51

It may be submitted without the leave of court so long as it is filed 7 days before trial.

Question 52

Name 5 types of discovery?

Answer 52

• request for disclosure
• request for production
• interrogatories
• request for admissions
• depositions

Question 53

Which form of discovery is not subject to any objection?

Answer 53

No objection or assertion of work product is permitted in response to a request for disclosure.

Question 54

In a civil case are the names of testifying witnesses discoverable by request?

Answer 54

Yes, the court may compel the the discovery of any person who is expected to testify at trial.

Question 55

When is a counterclaim compulsory?

Answer 55

If it arises out of the same occurrence that is subject matter of the principle action.

Failure to assert a compulsory counterclaim means that its subject matter will thereafter be barred in subsequent litigation.

Question 56

In a civil case, what should an attorney file when the opposing party has presented no evidence in support of their claim at the conclusion of trial (but before the jury deliberates)?

Answer 56

They should make a motion for directed verdict which is based on the lack of any controverted fact issues for the jury’s determination.

Question 57

In a civil case, how many jurors are required to reach a verdict after the jury has been impaneled?

Answer 57

A verdict may be rendered by the concurrence of 10 members of the original 12 person jury.

If they lose a juror because they are disabled from sitting on the panel, and there are no alternatives, the case can proceed even without the consent of both parties.

Question 58

In a civil trial, what happens if the jury returns a verdict and has not answered all the questions as instructed and one of the parties motion for a mistrial?

Answer 58

Deny the motion for mistrial. If material questions have not been answered, the court should reject the verdict and, with proper instructions pointing out the defect, retire the jury for additional deliberations.

Question 59

Explain a Judgement notwithstanding the verdict.

Answer 59

It challenges the legal sufficiency of the evidence supporting the jury’s finding of fault.

The motion is proper when “knocking out” one or more jury findings entitles the movant to judgement.