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Flashcards in Texas Criminal Procedure Deck (156)
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1

T/F - Arrest is a seizure of the person and is the taking into custody into a criminal charge.

True

2

What are the three statutory requirements for an arrest warrant?

They are:

1) Name (or reasonable description such as DNA) of the person to be arrested;

2) Name of the offense; AND

3) The signature of a neutral magistrate.

3

What must an officer do to obtain an arrest warrant?

The officer must file a complaint, which is a sworn affidavit that charges a commission of a crime and contains facts that allow a determination of probable cause.

The basic requirement for any arrest, with or without a warrant is that it be supported by facts.

4

What is the Four Corners Rule?

The rule that the magistrate in issuing the warrant cannot consider anything outside the sworn affidavit for the warrant (the complaint) is called the FOUR CORNERS RULE.

5

What is a summons?

Issued in lieu of an arrest warrant. It is in the same form as a warrant but it directs the person summoned to appear at a particular time and is merely served on the defendant.

6

What is a Capias?

A bench warrant for a person's arrest.

7

What can an officer do in executing an arrest warrant?

In executing an arrest warrant, an officer may use REASONABLE AND NECESSARY force, but can break down a door to make an arrest ONLY if entry is refused after notice.

Texas allows execution of an arrest warrant at ANY TIME, DAY OR NIGHT.

8

When can an officer arrest someone without a warrant?

In Texas, an officer must have an arrest warrant to make an arrest UNLESS the arrest is pursuant to one of nine exceptions, all of which require PROBABLE CAUSE for the arrest.

THE EXCEPTIONS ARE WHEN THE PERSON:

1) Committed the offense in the officer's presence;

2) Committed an offense involving bodily injury and is likely to cause further injury;

3) Violated a protective order (arrest mandatory if in the officer's presence);

4) Committed a 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, which has been interpreted to mean that probable cause has arisen in the presence of the officer;

7) Committed a felony and is about to escape so there is not time to obtain a warrant;

8) Provided probable cause by his VOLUNTARY STATEMENT to the police officer;

9) Possesses stolen property discovered by the officer.

9

What is a citation in lieu of arrest?

An officer has discretion to issue a citation to appear in court (ticket) in lieu of an arrest for the following:

1) Traffic offenses, except speeding tickets and open container violations for which a citation is mandatory;

2) Any Class C (fine-only) misdemeanor except public intoxication; AND

3) Certain Class A and B misdemeanors (theft, minor property damage, possession of less than four ounces of marijuana).

10

Jurisdiction for Warrantless Arrests.

Any peace officer outside his jurisdiction can make a warrantless arrest of any person who, within the officer's view, commits a felony, disorderly conduct offense, breach of the peace, or public intoxication.

Local peace officers can arrest for any offense committed in their view, except only city police may arrest for traffic offenses and only those committed in the county where the city is located.

11

What is required for an arrest at a defendant's residence?

Arrest requires a valid arrest warrant unless the officer acting without a warrant has CONSENT OR there are EXIGENT CIRCUMSTANCES (emergency situations).

12

What does the issuance search warrant require?

1) Requires a sworn affidavit containing facts from which the magistrate can determine PROBABLE CAUSE for issuing the warrant (that is, a reasonable belief that (a) something subject to seizure (b) is on the certain premises (c) at the time the warrant is issued);

2) The Warrant may be issued by any magistrate, defined as any judge or the mayor or recorder of an incorporated city or town.

13

What are the requirements in the terms of a valid warrant? What things to be searched for may it be issued for?

THE WARRANT MUST:

1) Run in the name of the State of Texas;

2) Identify things to be seized;

3) Describe the person, place, or thing to be searched;

4) Command any peace officer to search the person, place or thing named; AND

5) Be dated and signed by the magistrate.

THE WARRANT MAY BE ISSUED FOR:

1) Contraband;

2) Instrument of a crime;

3) Fruits of a crime;

4) Evidence of a crime; OR

5) A person, if located in a third party's house.

14

What is a Combination Warrant?

The magistrate may issue a warrant authorizing both a search and an arrest based on probable cause for both, called a combination warrant.

15

What are Evidentiary (Mere Evidence) Search Warrants?

An evidentiary search warrant is a warrant to search for and seize property or items, except personal writings of the accused, constituting evidence of an offense or tending to show that a particular person committed an offense.

16

How are evidentiary search warrants issued?

Only judges who are licensed attorneys may issue evidentiary search warrants, except any magistrate may issue the warrant if:

1) The only licensed-attorney judges are judges of districts including more than one county; OR

2) The warrant is for a blood sample from a person arrested for a DWI-related offense who refuses to give a breath or blood alcohol sample.

A SUBSEQUENT EVIDENTIARY WARRANT can ONLY be issued by a DISTRICT COURT JUDGE, or a judge of a court of appeals, the Court of Criminal Appeals, OR the Supreme Court.

17

What are the requirements and limitations are evidentiary search warrants?

The affidavit for an evidentiary search warrant must have FACTS establishing:

1) Identity that a specific offense has been committed;

2) Specifically described property to be seized constitutes probable cause of an offense; AND

3) The property can be found in a particular place or on a particular person or thing.

MAY NOT BE ISSUED FOR:

1) Personal writings of the accused; OR

2) Mere evidence in a news media office or radio or television station.

18

How does the Plain View Doctrine affect evidentiary warrants?

Only mere evidence in the warrant may be seized, but the Plain View Doctrine will allow seizure of non-evidence items, such as contraband or instruments of a crime.

19

What is the time frame that a warrant is effective?

1) Must be executed WITHIN 3 DAYS of its issuance, EXCLUDING the day of issuance and the day of execution; OR

2) WITHIN 15 DAYS for a warrant for a DNA specimen.

20

What must an officer do for an inventory?

The officer must produce a copy of the warrant and leave a copy of the inventory and bring the property to magistrate with a copy of the inventory.

21

When may wire tap warrants be issued?

ONLY:

1) On probable cause to believe it will reveal evidence of the felony offense of murder, child pornography, or a felony drug offense;

2) By the DISTRICT JUDGE who has been appointed by the presiding judge of the Court of Criminal Appeals; AND

3) For 30 DAYS with 30-day extensions.

22

What is a pen register?

This is a device for recording phone numbers called.

May be ordered up to 30 DAYS.

23

What is a Tap and Trace Device?

A device for monitoring the origin of phone calls.

May be ordered for up to 30 DAYS.

24

What are the different Criminal Jurisdiction Courts and the crimes they have jurisdiction over?

DISTRICT COURT has jurisdiction over:

1) Felonies; AND

2) Misdemeanors involving official misconduct.

COUNTY COURTS AT LAW have jurisdiction over:

1) Misdemeanors punishable by jail time; AND

2) Appeals from the municipal courts and justice-of-the-peace courts ("justice courts").

MUNICIPAL COURTS & JUSTICE COURTS have jurisdiction over:

1) Exclusive original jurisdiction of city ordinances;

2) Jurisdiction of fine-only offenses.

CONCURRENT JURISDICTION:

1) If a municipal court and justice court have concurrent jurisdiction, the case will be handled in the court in which it was originally filed.

25

When is venue proper?

Venue is proper in ANY COUNTY WHERE ANY ELEMENT of the offense has occurred.

SPECIAL RULES:

1) If part of the offense occurs outside Texas, the offense may be prosecuted in any Texas county in which the offender is found or where some element occurred.

2) If venue cannot be readily determined, venue is proper in any county in which the defendant RESIDES, was apprehended, OR to which he was extradited.

3) The STATE has the BURDEN TO PROVE venue by a PREPONDERANCE OF THE EVIDENCE.

4) If the issue of venue is not raised at trial, proper venue is presumed on appeal UNLESS the record affirmatively shows otherwise.

26

What is the general rules with regard to the statute of limitations to bring an indictment?

FELONY - Indictment must be presented WITHIN 3 YEARS of the commission of the offense.

MISDEMEANOR - Information must be presented WITHIN 2 YEARS of the commission of the offense.

27

What are the exceptions to the general statute of limitations rules?

THERE ARE NO LIMITS FOR:

1) Murder;

2) Manslaughter;

3) Sexual Assault;

4) Continuous sexual abuse of a young child;

5) Indecency with a child; AND

6) Leaving the scene of an accident resulting in the death of a person.

THERE IS A 10 YEAR SOL FOR:

1) Theft from an estate or by a public servant;

2) Forgery ;

3) Arson; AND

4) Injury to an elderly or disabled person punishable as a felony.

THERE IS A 7 YEAR SOL FOR:

1) Misapplication of fiduciary property or property of a financial institution;

2) Securing execution of a document by deception;

3) Felony tax violation;

4) Money laundering;

5) Credit card abuse; AND

6) Identity theft.

THERE IS A 5 YEAR SOL FOR:

1) Theft;

2) Robbery;

3) Burglary;

4) Kidnapping;

5) Injury to a child, elderly, or disabled individual not punishable as a felony of the first degree;

6) Abandoning or endangering a child; OR

7) Insurance fraud.

28

Are there any special SOL rules?

There is a special 20 YEAR limit from the 18th birthday of a child who was the victim of the offense of:

1) Sexual performance of a child; OR

2) Kidnapping or burglary of a habitation committed with the intent to commit a sexual offense against a child.

There is a special 10 YEAR limit from the 18th birthday of a child in the case of injury to a child.

29

Does the SOL of a crime ever toll?

Time during which the accused is absent from the state, or time when a prior indictment or information for the offense was pending, is NOT COUNTED.

30

How is the Criminal Prosecution process initiated?

First appearance before a magistrate must occur NO LATER THAN 48 HOURS FOLLOWING ARREST.

Magistrate must inform the accused of:

1) The charges against him;

2) His right to remain silent;

3) His right to counsel;

4) His right to have an attorney present during any interrogations;

5) His right to terminate a prosecutorial interview; AND

6) His right to an examining trial.