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Flashcards in Significant Texas Opinions Deck (36)
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1

Does an outcry statement apply to a video recording of that statement?

Bays v. State TCA 2013
No. Limited to live testimony of outcry witness. Child-complainant's own videotape statement does not meet the requirements of the statute, 38.072.

2

In Texas, does the pre-trial hearing on for admission of the outcry statement constitute an opportunity to cross-examine for 6th Amendment concerns?

Sanchez v. State TCA 2011
No. The hearing under 38.072 is limited to a determination of reliability (time, content, circumstances)

3

What is the purpose of pre-trial hearing for outcry statement and how is it limited?

TCCP 38.072
Court to determine reliability of STATEMENT based on: time, content, and circumstances
Sanchez v. State 2011 - NOT for determining credibility of the OUTCRY WITNESS, that is for the jury

4

How do you determine an outcry witness if child told multiple people?

Robinett v. State, Tex. App.--Amarillo 2012
The proper outcry witness is not to be determined by comparing the statements the child gave to different individuals and then deciding which person received the most detailed statement about the offense.
it is possible to have more than one proper outcry witness, so long as the outcries concerned different events and not simply repetition of the same event told to different individuals

5

Can a prosecutor comment on D's failure to take responsibility if D testifies at guilt/innocence but not punishment?

Randolph v. State 2011
Yes. If D denies offense in G/I it's "fair game"
TEST: whether language used was "manifestly" intended or was of such a character that the jury would necessarily and naturally take it as a comment on D's failure to testify.

6

On appeal, what does court consider as to whether prosecutorial misconduct in the form of improper jury argument warrants a mistrial?

1) severity ;
2) efficacy of curative measure; and
3) the certainty of conviction absent the misconduct
Archie v. State - Tex. Crim. App. 2007

7

What is the standard for "voluntary" statements by accused?

Creager TCA 1997
Among other things...
Not influenced by fear or hope of third party - whether suspects will was overcome

8

Does 38.22 apply to CPS workers?

Wilkerson v. State 2005
No. not if not working in concert with law enforcement - so make law enforcement connection

9

What constitutes "custody" for 38.22?

Dowthitt TCA 1996
1. physically deprived of freedom of action in significant way;
2. when law enforcement tells D he cannot leave;
3. law enforcement create situation that would lead a reasonable person to believe not free to leave;
4. when probable cause to arrest, but law enforcement doesn't tell D he can leave
Same as Miranda

10

How does 38.22 and Miranda differ?

38.22 includes "right to terminate interview at anytime"

11

What's the appellate standard for 38.22?

Bifurcated:
Credibility - abuse of discretion
Historical Facts - de novo

12

Is the jury's job in 38.22 instruction the same as 38.23?

No. 38.23 is just for disputed fact;
38.22 jury applies historical facts to question or voluntariness.

13

Can court make ruling on affidavits in 38.22 hearing?

No. It's not a "paper hearing" like 11.07

14

Does waiver of appeal by stating "no objection" also waive right to jury instruction under 38.23?

No.

15

What is the requirement to trigger a jury instruction under 38.23?

1. Evidence heard by jury raises a fact issue;
2. Fact must be affirmatively contested;
3. Contested facts must be material to lawfulness of obtaining evidence

16

How is 38.23 "good faith" exception different that Federal "good faith" exception?

38.23 REQUIRES probable cause, Federal only requires officer's belief in probable case is in good faith

17

Does "illegally seized" under 38.23 apply to non-law enforcement?

Yes. Others cannot illegal seize items.

18

Does "attenuation of taint" apply to 38.23?

Yes. It applies to "obtaining"

19

Can an officer create a false DNA or fingerprint report to get a confession from the accused?

No, it's tampering with evidence under 37.09 - leads to suppression under 38.23

Neither police nor private individuals have a license to fabricate documents or other evidence and then use them to affect a criminal investigation or other official proceeding

Wilson v. State, 311 S.W.3d 452, 461 (Tex. Crim. App. 2010)

20

Does Texas have an "Inevitable Discovery Rule"?

No. 38.23 excludes illegally OBTAINED evidence - regardless of how it MIGHT have been obtained
Daugherty 1996

21

Can a search warrant be issued based on illegally obtained evidence?

No. Unless warrant would be independently valid, 38.23 dictates exclusion

22

Diminished capacity in Texas

No.
Can use mental illness to negate mens rea BUT NOT say that D was incapable of forming mens rea

23

What should D counsel do if relationship evidence is let in for murder pursuant to 38.36?

Request limiting instruction and jury instruction

24

Can cops stick around for dog sniff after owner withdraws consent?

Weaver CCA 2012 – once D revokes consent to search, police cannot remain on premises to conduct a dog sniff search; Officer can only remain on “portion of premises which is open to the public”

25

Driving on shoulder = reasonable suspicion?

Lothrop CCA 2012 – driving on improved shoulder over railroad tracks not reasonable suspicion without testimony that it was “unsafe”

26

Search warrant for blood without time?

Crider CCA 2012 – warrant must be sufficient to support probable-cause finding that the evidence is still available and in the same location – warrant failed to note TIME of offense, so not adequate

27

Explain standard to challenge Out-of-Court Identification.

Whether (1) impermissible suggestive procedure was so (2) “unnecessarily suggestive and conducive to irreparable mistaken identification that denied due process of law”
Vasquez Houston 1st 2003
Totality of Circumstances – Factors
1. Witness opportunity to view criminal act
2. Witness’ degree of attention
3. Accuracy of suspect’s description
4. Level of certainty at time of confrontation
5. Time between crime and confrontation
Movant – Clear & Convincing

28

Explain "Speedy Trial" analysis:

The right arises once prosecution begins (arrest OR indictment):
Then balance: Barker v. Wingo Factors
1. Length of delay;
2. Reason for delay;
3. Defendant’s assertion of right;
4. Prejudice to Defendant.

29

Explain challenge to "In-Court Identification"?

De novo - whether the suggestiveness of a pretrial photo array may have influenced an in-court identification
(1) whether the out-of-court identification procedure was impermissibly suggestive and, if so,
(2) whether the impermissibly suggestive procedure gave rise to the substantial likelihood of irreparable misidentification.
Totality of the Circumstances
Clear and Convincing
Factors:
(1) witness‘s opportunity to view the criminal at the time of the crime;
(2) the witness‘s degree of attention;
(3) the accuracy of the witness‘s prior description of the criminal;
(4) the witness‘s level of certainty at the time of the confrontation, and;
(5) the length of time between the offense and the confrontation.
Gamboa v. State, 296 S.W.3d 574, 581–82 (Tex. Crim. App. 2009)

30

What does the court consider if party fails to give notice of expert witness?

1. Whether party’s actions failing to timely disclose constituted bad faith;
2. Whether opposing party could have reasonably anticipated undisclosed witness would testify
Johnson Houston 14 ‘07