Criminal Procedure

Question 1

Arrest Warrant Requirements

Answer 1

1) In the name of Texas
2) Name or reasonably specific description of the person to be arrested;
3) Name of the offense
4) Signature of the magistrate

Question 2

Complaint

Answer 2

A sworn affidavit filed by an officer seeking an arrest warrant; it charges a commission of the crime and contains facts that allow a determination of probable cause. Based on personal knowledge or a reliable informant (alleging the informant’s veracity, reliability, and basis of knowledge).

Question 3

Standard for Arrest

Answer 3

Probable cause, by warrant or otherwise

Question 4

Four-Corners Rule

Answer 4

Magistrate may only evaluate the complaint for probable cause to issue the warrant.

Question 5

Summons

Answer 5

May be issued instead of an arrest warrant - just tells a person to show up at a particular time.

Question 6

Arrest Without Warrant

Answer 6

Probable cause and one of 9 exceptions:

1) Committed in the presence of an officer;
2) Committed offense involving bodily injury and likely to cause further injury;
3) Violated a protective order (mandatory if in the officer’s presence)
4) Family-violence offense
5) Prevented or interfered with an emergency call;
6) Committed a felony, breach of the peace or public intoxication and is found in a suspicious place (e.g., probable cause has arisen in the presence of the officer)
7) Committed a felony and is about to escape
8) Provided probable cause by a voluntary statement
9) Possesses stolen property discovered by the officer

Question 7

Citation in lieu of arrest

Answer 7

• Traffic offenses (mandatory for speeding tickets and open container violations)
• Class C misdemeanor except for public intoxication
• Certain Class A and B misdemeanors (theft, minor damage to property, possession of 4 ounces or less of marijuana)

Question 8

Arrest at aresidence

Answer 8

Requires a warrant, consent or exigent circumstances.

Question 9

Search Warrant Standard

Answer 9

Requires a sworn affidavit by which the magistrate can determine probable cause that (1) something subject to seizure (2) is on the certain premises (3) at the time the warrant is issued.

Affidavit must show (1) that an offense has been committed; (2) the items searched for are evidence or a particular person committed it; and (3) the items or person are at the time and place specified.

Question 10

Search Warrant Requirements

Answer 10

1) Runs in the name of the State of Texas
2) Identifies the things to be seized
3) Describes the person, place or thing to be searched
4) Commands any peace officer to search, and
5) is dated and signed by the magistrate

Question 11

Purpose of a Search Warrant

Answer 11

May be issued for:

1) contraband
2) instruments of a crime
3) fruits of a crime
4) evidence of a crime or
5) a person if located in someone else’s house

Question 12

Evidentiary Warrants

Answer 12

A warrant to search for and seize property or items constituting evidence of an offense or tending to show that a particular person committed it, other than personal writings of the accused. May not be issued for evidence in a news media office or radio or television station.

Question 13

Issuance of an evidentiary warrant

Answer 13

Only judges who are licensed attorneys may issue, unless the only such judges are judges of districts including more than one county or the warrant is for a blood sample of a person arrested for DWI-related offense who refuses to give a breath or blood sample.

Question 14

Timeframe for warrants

Answer 14

Must be executed within 3 days of issuance, excluding day of issuance and day of execution, or 15 days for a DNA specimen warrant.

Question 15

Wiretap

Answer 15

May be issued only:
1) on probable cause for a felony murder, child pornography, or a felony drug offense, by a particularly appointed district judge and lasts for 30 days.

Question 16

Pen REgister

Answer 16

A device for recording phone numbers called, may be ordered for up to 30 days.

Question 17

Trap and Trace Device

Answer 17

A device for monitoring the origin of phone calls, may be ordered for up to 30 days.

Question 18

Jurisdiction

Answer 18

• District court: felonies and misdemeanors involving official conduct;
• County courts - misdemeanors punishable by jail time and appeals from justice-of-the-peace courts.
• Justice-of-the-peace courts and municipal courts have exclusive jurisdiction of city ordinances violation and have jurisdiction over fine-only offenses.

Question 19

Venue

Answer 19

1) Where any element occurred
2) If any part of the offense occurred outside of Texas, may be the county in which the offender is found
3) If venue cannot be determined, where the defendant resides, was apprehended, or to which he was extradited.

State has burden to prove with a preponderance of the evidence. If not disputed appeals will revert only if the record affirmatively shows no venue.

Question 20

Statute of limitations (general rules)

Answer 20

• Generally three years for felonies

- Generally two years for misdemeanors

Question 21

Statute of Limitations (no limits)

Answer 21

• Murder
• Manslaughter
• Sexual assault (a) of a child, (b) when probable cause suggests at least five victims, or (c) when forensic evidence is available for DNA testing.
• Continuous sexual abuse of a young child
• Indecency with a child
• Leaving the scene of an accident resulting in death

Question 22

Statute of Limitations (10 years)

Answer 22

• Theft from an estate or by a public servant
• Forgery
• Arson
• Injury to an elderly or disabled person punishable as a felony
• Other sexual assaults

Question 23

Statute of limitations (7 years)

Answer 23

• Misapplication of fiduciary property or property of a financial institution
• Securing execution of a document by deception
• felony tax violation
• money laundering
• credit card abuse
• identity theft

Question 24

Statute of limitations (5 years)

Answer 24

• Theft
• robbery
• burglary
• kidnapping
• injury to a child, elderly or disabled individual not punishable as a felony of the first degree
• abandoning or endangering a child
• insurance fraud

Question 25

Special 10-year statute of limitations

Answer 25

From 18th birthday of a child in the case of injury to a child.

Question 26

Special 20-year statute of limitations

Answer 26

From 18th birthday of a child who was the victim of (1) sexual performance of a child or (2) kidnapping or burglary of habitation committed with the intent to commit a sexual offense against a child.

Question 27

First appearance before a magistrate

Answer 27

Must occur without unnecessary delay, but no later than 48 hours after arrest.

Question 28

Magistrate must inform the accused of:

Answer 28

1) charges against him 2) right to remain silent 3) right to counsel 4) right to have his attorney present during any interrogation 5) right to terminate a prosecutorial interview; 6) right to an examining trial 7) any affidavits filed in connection with the arrest

Question 29

Magistrate may:

Answer 29

Probable cause determination must be made by magistrate within 24 hours in a misdemeanor case and within 48 hours in a felony case. Set bail Make a determination of indigence (but cannot be based on ability to make bail)

Question 30

Appointed Counsel

Answer 30

Must make every reasonable effort to contact the defendant on the next working day, interview the defendant as soon as practicable and have at least 10 days to prepare for trial.

Question 31

Purpose of examining trial

Answer 31

Determine whether probable cause exists to hold the accused for trial, if defendant charged with a felony and no indictment yet.

Question 32

Types of bail

Answer 32

Personal bond, cash bond and bail or surety bond.

Question 33

Factors for bail

Answer 33

1) assure appearance at trial, 2) nature and circumstances of the offense 3) ability of defendant to make it 4) future safety of the victim/community May also place any reasonable condition related to the safety of a victim or the community.

Question 34

Bail denial

Answer 34

Clear and convincing evidence defendant will be found guilty of capital murder and will receive death penalty or preponderance of the evidence of a violated condition.

Question 35

Bail denial for 60 days

Answer 35

Substantial evidence of a felony crime and: 1) two prior felony convictions 2) committed while on bail 3) involved the use of a deadly weapon + prior felony conviction OR 4) violent or sexual offense while on probation or parole.

Question 36

Grand jury number of jurors

Answer 36

Minimum of 12 jurors and 4 alternates

Question 37

Grand jury qualifications

Answer 37

1) Citizen of the county able to vote 2) of sound ind and good character 3) able to read and write 4) never been convicted of a felony or misdemeanor theft 5) not be related within the 3rd degree of consanguinity or second degree of affinity to another person selected to be on the grand jury 6) not have served on the grand jury the year before this term and 7) not be a complainant in any matter heard by the grand jury.

Question 38

Grand jury array

Answer 38

Up to 125 people, and may be challenged on the ground they are not the same people commissioners selected, improper method or there was corruption in selection. From these, the district judge selects the grand jurors.

Question 39

Setting aside indictment

Answer 39

May be set aside if less than 9 grand jurors voted to return the indictment, an unauthorized person was present during deliberations or voting, or illegally impaneled and defendant did not have a reasonable opportunity to challenge the array.

Question 40

Rights of accused subpoenaed in grand jury

Answer 40

Must be warned that: 1) Testimony is under oath 2) Giving false answers to material question is perjury 3) right to refuse to answer questions 4) right to have a lawyer outside 5) any testimony may be used against him 6) right to an appointed lawyer if indigent.

Question 41

Charging documents

Answer 41

- Indictment (presented by the grand jury) for a felony - Information (presented by the state) for Class A or B misdemeanor subject to jail time - Complaint otherwise

Question 42

Indictment Requirements

Answer 42

1) In the name and authority of the State of Texas 2) Appears to be presented in the district court where the grand jury is in session 3) Appears to be acted upon by a grand jury in the proper county 4) Name or reasonable description of person indicted 5) Shows proper venue 6) Charges an offense that occurred prior to the date of the indictment 7) Sets forth the charged offense in plain and intelligible language 8) Signed by the foreperson of the grand jury 9) ends with the words "against the peace and dignity of the state"

Question 43

Severance Required

Answer 43

If a prior conviction of one will be admitted against one but not the other, or a joint trial would be prejudicial.

Question 44

Pro Se requirements

Answer 44

Judge warns the defendant of the dangers of self-representation and the defendant knowingly and voluntarily waives his right.

Question 45

Ineffective assistance of counsel

Answer 45

1) Acts or omissions outside the range ordinarily expected of counsel and 2) Reasonable probability the result would have been different

Question 46

Admonishments for guilty plea

Answer 46

1) Range of sentences 2) Defendant may withdraw plea if court advises him that it will not accept his offered plea bargain 3) Defendant may appeal only by permission of court or on a pre-trial motion 4) Immigration consequences 5) May be registered as a sex offender -Judge may inquire whether a victim impact statement has been given to the state.

Question 47

Requirements for guilty plea

Answer 47

1) Defendant is mentally competent 2) Defendant waives a jury trial with the court and state approval and 3) enough evidence to substantiate guilt

Question 48

Plea withdrawal (Felonies)

Answer 48

- Anytime before court accepts it; | - Later at the court's discretion

Question 49

Discovery by defendant

Answer 49

1) Police reports 2) Witness statements 3) Any other material evidence the state has and is not privileged or work-product.

Question 50

Brady Rule

Answer 50

State must disclose exculpatory, impeaching or mitigating evidence. Otherwise conviction may be reversed if there is reasonable probability the result would have been different.

Question 51

Discovery by the State

Answer 51

1) names of testifying experts | 2) intent to raise insanity defense at least 20 days before trial

Question 52

Motion for continuance because of the absence of a witness

Answer 52

1) Diligence 2) Materiality of the testimony 3) No motive to delay 4) absence not procured by defendant 5) witness' testimony cannot be obtained before trial.

Question 53

Good faith exception to a defective warrant

Answer 53

Evidence will be used if the officer reasonably relied on the warrant and it was based on probalbe cause.

Question 54

Motion to change venue by defendant

Answer 54

Requires two affidavits from credible persons

Question 55

Motion to change venue by state

Answer 55

1) Conditions favor the accused 2) Lawlesness 3) Life of the accused or a witness would be jeopardized.

Question 56

Minimum jury

Answer 56

12 in a felony | 6 for a misdemeanor

Question 57

Jury Qualifications

Answer 57

Qualified voters | Have ever been accused or convicted of a felony or theft

Question 58

Number of peremptory challenges

Answer 58

Capital case - 15 Non-capital felony - 10 Misdemeanor in district court - 5 Other misdemeanors - 3

Question 59

Proper closing argument

Answer 59

- Summary of the evidence - Inferences of the evidence - Response to the other side - Plea for enforcing the law

Question 60

Reversion due to jury charge

Answer 60

If objected-to, if defendant suffered harm. If not objected to, whether it caused egregious harm and denied the defendant a fair trial

Question 61

Recent Outcry Rule

Answer 61

Uncorroborated testimony of a victim of sexual offense admissible if the victim told somebody about it within 1 year of the offense, except if: 1) Victim under 18 2) Victim was 65 or older 3) Victim had a disability that prevented him from taking care of himself

Question 62

Testimony of a child

Answer 62

If under 13 and found "unavailable" by a judge, may give testimony by deposition or electronic means, and the defendant may cross-examine. Hearsay of a victim of a sexual crime that is under 13 also admissible

Question 63

Exceptions to spousal privilige

Answer 63

Case involving the spouse, child or a household member

Question 64

Exceptions to marital communications privilege

Answer 64

Spouse is accused of a crime against the other spouse, a child or household member, or for bigamy

Question 65

Requirements for admitting evidence of an extraneous offense

Answer 65

- Notice of intent if timely requested by defendant - Decision that the probative force outweighs prejudice - Finding that jury could find previous offense beyond a reasonable doubt - On request, a limiting instruction Evidence of other acts against a child in cases of sexual offense against the child admissible to show relationship and state of mind.

Question 66

Admissibility of written confession

Answer 66

Written confession must show, on its face, that accused was informed of the following rights: 1) Remain silent and that any statement can be used against him; 2) Have a lawyer present during question 3) Lawyer appointed if he can't afford 4) right to end the interview Defendant must waive rights: 1) voluntarily 2) knowingly and 3) intelligently

Question 67

Admissibility of oral confession

Answer 67

Generally inadmissible 1) Electronically recorded and recording contains the proper warnings and waiver of rights 2) not the product of a custodial interrogation 3) Contains assertions of fact that are found to be true and tend to establish guilt 4) it is the res gestae of the arrest or the offense (speech crime) 5) Made at trial, before a grand jury or at an examining trial 6) Used to impeach 7) Obtained in another state in compliance with that state's law or by a federal officer in compliance with federal law

Question 68

Requirements for death penalty

Answer 68

Jury must unanimously agree: 1) Defendant is a future threat to society and 2) There are not sufficient mitigating circumstances to warrant the lesser sentence of life in prison

Question 69

Suspended Sentence

Answer 69

Available if: 1) prison term is less than 10 years 2) No prior felony conviction and 3) not one of the serious offenses for which community supervision is not available

Question 70

Deferred Adjudication

Answer 70

Not available for DWI, delivery of a controlled substance to a minor, or any drug-related financial transaction.

Question 71

Appeal deadlines

Answer 71

For the state, 20 days from ruling or order. State may file an interlocutory appeal if evidence is of substantial importance. For the defendant, 30 days or 90 if defendant moved for a new trial.

Question 72

Habeas Corpus

Answer 72

A writ of habeas corpus is a remedy for any person who is held under restraint, commanding the party having the defendant in custody to produce the person in custody and show why he is held under restraint. It may be issued by a court of competent jurisdiction (i.e., the district court in felony cases and the county court in misdemeanor cases). For death penalty cases, must be filed within the later of 180 days after counsel is appointed or within 45 days of the state's brief on appeal.

Question 73

Deadline to file pre-trial motions

Answer 73

Must be filed 7 days before pre-trial motion.

Question 74

Exclusion of private citizen evidence

Answer 74

If could not have been done by the government, excluded.

Question 75

Motion for challenging an indictment

Answer 75

Motion to quash 1) in writing 2) filed before trial 3) specifying the alleged defect

Question 76

Power to impanel a grand jury

Answer 76

District court judge

Question 77

Grand jury notice to accused prior to questioning

Answer 77

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 78

Due date for preliminary matters, such as a motion for a continuance

Answer 78

Must be raised 7 days before trial or a preliminary hearing, if any.

Question 79

Challenging bail

Answer 79

Requires a writ of habeas corpus showing that it is impermissibly high and defendant tried to make bail.

Question 80

Attachment

Answer 80

Issued on a witness that fails to appear following a subpoena.

Question 81

When may a defendant be released on recognizance

Answer 81

1) fine-only misdemeanor | 2) no previous convictions for felonies or misdemeanors punishable by jail time

Question 82

Victim impact statement

Answer 82

- after the sentence is pronounced | - A victim, close relative of a deceased victim, or guardian of a victim

Question 83

Standard for a motion for a new trial after the jury verdict

Answer 83

Jury verdict is contrary to the law and the evidence.

Question 84

Impeachment with a crime

Answer 84

Any witness may be impeached by 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.

Question 85

Self-authenticating a business record

Answer 85

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 86

What action must a defendant take to request that the jury recommend probation?

Answer 86

Before the trial begins, the defendant must file a written sworn motion with the judge stating that the defendant has not previously been convicted of a felony in this or any other state. At sentencing (by jury or judge), the sentence must be for 10 years or less.

Question 87

General maximum length for probation for a misdemeanor

Answer 87

2 years

Question 88

Maximum/minimum probation for felonies

Answer 88

Minimum is minimum sentence, max is usually ten years.

Question 89

Application Paragraph

Answer 89

While the judge is required to give the jury a written charge containing all of the applicable law in the abstract, the trial court is also required to apply these abstract statements of law to the facts of the case in an “application paragraph.”

Question 90

Jury Conviction

Answer 90

- Must be unanimous | - If by less than 12 for some reason, it must be signed by every member of the jury.

Question 91

Capias

Answer 91

A capias (bench warrant) is a writ from the court or the clerk ordering an arrest after the filing of a formal charge (indictment or information) when the defendant is not already in custody. Among other things, it specifies the offense the defendant is accused of and names the court to which and the time when it is returnable.

Question 92

Standard for sufficiency of the evidence appeal

Answer 92

In considering a sufficiency of the evidence challenge, the appellate court reviews the evidence in the light most favorable to the verdict and determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. If that standard is met, the verdict is not reversed for insufficiency of evidence.