Texas Appeals Flashcards Preview

Criminal Law > Texas Appeals > Flashcards

Flashcards in Texas Appeals Deck (32)
Loading flashcards...
1

When is the State entitled to appeal an order of a court in a criminal case?

1. it dismisses an indictment, information, or complaint or any portion of them

2. it arrests or modifies a judgment

3. it grants a new trial

4. it sustains a claim of former jeopardy

5. it grants a motion to suppress evidence, confession, or admission if jeopardy has not attached and the prosecuting attorney certifies to the trial court the appeal is not taken for purpose of delay and the evidence, confession, or admission is of substantial importance to the case

6. it is issued under Chapter 64 (DNA testing)

7. the sentence is illegal

8. a ruling on a question of law if defendant is convicted and appeals

2

When must the State file its notice of appeal?

Not later than the 20th day after the date on which the order, ruling, or sentence to be appealed in entered by the court.

3

Define "prosecuting attorney."

The county attorney, district attorney, or criminal district attorney. It does not include an assistant prosecuting attorney.

4

When is a defendant entitled to a bond pending appeal?

- in any misdemeanor conviction

- if any conviction is reversed by the court of appeals

5

When is a defendant prohibited from making bond pending appeal?

- if the sentence equals or exceeds 10 years

- if the defendant has been convicted for 3g offense

6

When can a defendant sentenced to less than 10 years be denied bond pending appeal?

- good cause exists to believe defendant would not appear when the conviction became final

- good cause exists to believe defendant is likely to commit another offense while on bail

7

If a conviction is reversed by the court of appeals, who determines the amount of bail to be set?

- court of appeals if defendant requests it before a PDR is filed

- court of criminal appeals if defendant requests it after a PDR is filed

8

When is a motion for new trial required as a prerequisite to presenting an error on appeal?

Only when necessary to adduce facts not in the record.

9

When must a defendant be granted a new trial or new trial on punishment?

1. defendant unlawfully tried in absentia or denied counsel

2. court has misdirected the jury on the law or committed some other material error likely to injure defendant's rights

3. when the jury decided the verdict by lot

4. when a juror has been bribed to convict

5. when a material defense witness has been kept from court by force, threats, or fraud, or when evidence tending to establish defendant's innocence has been intentionally destroyed or withheld

6. after retiring to deliberate, the jury receives other evidence; when juror has talked to anyone about the case; or when juror became so intoxicated it influence his vote

7. jury engaged in misconduct the defendant did not receive a fair and impartial trial

10

When must a motion for new trial be filed?

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

11

When may a motion for new trial be amend?

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

12

When must the defendant present the motion for new trial to the trial court?

Within 10 days of filing it unless the trial court permits it to be presented and heard within 75 days from the date when sentence was imposed or suspended.

13

What type of evidence is allowed at a hearing on a motion for new trial?

The trial court may receive evidence by affidavit or otherwise.

14

When must the trial court rule on a motion for new trial?

Within 75 days of imposing or suspending sentence.

15

What happens if the trial court does not rule on the motion for new trial within the 75 days period?

It is deemed denied.

16

What is the affect of granting a new trial?

It restores the case to its position before the trial. If it is a new trial only to punishment, it restores the case to its position after being found guilty.

17

If a new trial is granted only to punishment, may a defendant change who is to assess punishment from the manner previously chosen?

Only upon approval by the State and the trial court.

18

What is a "motion in arrest of judgment?"

A defendant's suggestion the judgment rendered against him was contrary to law.

19

What are the grounds a motion in arrest of judgment may be based?

1. indictment or information is subject to an exception on substantive grounds

2. the verdict is substantially defective in relation to the indictment or information

3. the judgment is invalid for some other reason

20

When must a motion in arrest of judgment be filed?

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

21

When can a defective notice of appeal be amended?

Any time before the appealing party's brief is filed.

22

When must a defendant file his notice of appeal?

Within 30 days after the day sentence is imposed or suspended in open court

OR

Within 90 days after the day sentence is imposed or suspended in open court if a motion for new trial is timely filed

23

Can the time to file a notice of appeal be extended and, if so, when?

If within 15 days after the deadline to file notice of appeal, the party:

1. files notice of appeal in the trial court; AND

2. files a motion for extension in the appellate court

24

Discuss "constitutional error."

If the appellate record reveals constitutional error that is subject to harmless error review, the COA must reverse the judgment of conviction or punishment UNLESS it determines beyond a reasonable doubt the error did not contribute to the conviction or punishment.

25

Discuss "non-constitutional error."

Any other error, defect, irregularity, or variance that doe not affect substantial rights must be disregarded.

26

What are the reasons for granting a PDR?

1. COA decision conflicts with another COA

2. COA decided an important question of state or federal law that has not been, but should be, settled by CCA

3. COA decided an important question of state or federal law in a way that conflicts with decisions of the SCOTUS or CCA

4. COA has declared a statute, rule, regulation, or ordinance unconstitutional, or appears to have misconstrued a statute, rule, regulation, or ordinance

5. the justices of the COA have disagreed on a material question of law necessary to the court's decision

6. COA has so far departed from the accepted and usual course of judicial proceedings as to call for an exercise of the CCA's power of supervision

27

How does the CCA decide to grant PDR?

By a vote of at least four of the judges

28

What is the time limit for filing a PDR?

Within 30 days of the COA judgment or the last timely motion for rehearing is overruled

29

Can the time to file a PDR be extended and, if so, how?

It can be extended by filing a motion to extend no later than 15 days after the last day of filing the PDR

30

Where is the PDR filed?

In the CCA