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113 Cards in this Set
- Front
- Back
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What happens after a court grants a writ of habeas corpus?
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The court will issue the writ without delay, and the writ will be served upon the party confining the defendant, who must make a sworn return stating whether the petitioner is in custody and, if so, explaining the reasons why.
The petitioner is then brought before the judge, and, if the judge finds no legal basis for the petitioner's detention, the judge must order the petitioner to be discharged. |
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Which Texas court(s) have original jurisdiction in criminal felony cases?
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In Texas, both the civil district courts and criminal district courts have original jurisdiction in criminal cases of the grade of felony.
Note: Generally, when two or more courts have concurrent jurisdiction of any criminal offense, the court in which an indictment or a complaint is first filed will try the case. |
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For what types of criminal cases to county courts have jurisdiction over?
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county courts have original jurisdiction of all misdemeanors of which exclusive original jurisdiction is not given to the justice courts, and when the fine to be imposed exceeds $500.
These are genearlly Class A and Class B misdemeanors. |
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What are the time requirements for filing a motion to transfer a case to juvenile court for lack of jurisdiction in a court set to prosecute the matter?
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If the defendant enters a plea of guilty or no contest, the motion must be filed and presented to the presiding judge before the plea.
If the defendant's guilt or punishment is tried or determined by a jury, the motion must be filed and presented to the presiding judge before jury selection begins. If the defendant's guilt is to be tried by the court, the motion must be filed and presented to the presiding judge before the first witness is sworn. |
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When may a party, during trial, move to reopen the case for further presentation of evidence?
Must such motion be granted? |
Under Texas law, either side may move to reopen the case for further presentation of evidence before the conclusion of closing argument.
The decision as to whether to reopen the case is within the court's discretion. |
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Can a criminal defendant waive his 5th Amendment right against self-incrimination?
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Yes.
He need not testify, but if so chooses, a criminal defendant waives his right against self-incrimination, and must answer all questions properly asked of him. |
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Do the TRE apply in grand jury proceedings? If so, to what extent?
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Only those portions of the TRE regarding privilege.
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In a criminal jury trial involving multiple defendants, must the jury return verdicts as to each defendant concurrently?
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No.
If there are two or more criminal defendants, it is not necessary for the jury to return verdicts against all of them when it cannot agree on all. The jury may return a verdict on each defendant for whom it can agree. In a jury trial, the jury must find the defendant guilty, not guilty, or not guilty by reason of insanity. In criminal cases, the verdict must be unanimous. |
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List 3 admonishments that must be given to a Δ before it can accept his plea of guilty?
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a) Range of punishment,
b) Court not bound by prosecutor’s recommended sentencing, c) May limit availability of appeal options, and d) If not a U.S. Citizen, may result in deportation |
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What are 3 ways that incompetency differs from insanity?
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a) Timing – insanity measured at time of offense, incompetency measure at time of trial.
b) Standard – insanity goes to whether Δ knew his actions were wrong, whereas incompetence deals w/ Δ’s ability to comprehend the proceedings. c) Outcome – insanity results in acquittal, incompetency merely suspends the trial until Δ regains competency. |
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What must be shown to establish Δ’s incompetence to stand trial?
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Must show either:
i) Lacks sufficient present ability to consult w. defense with reasonable degree of rational understanding, OR ii) Lacks a rational as well as Factual understanding of proceedings against him |
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What pleading can an appointed defense counsel file in order to obtain assistance in hiring experts for defense where client cannot afford to do so?
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a) Motion requesting court authorize reimbursement for reasonable & necessary expenses (Ake motion) since client has due process rught to assistance of an expert.
b) Must make a threshold showing to court as to the need for the expert |
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Is a prosecutor entitled to a list of ALL of the Δ’s witnesses expected to testify at trial?
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1. No.
2. Only entitled to Δ’s expert witnesses under the code. 3. No reciprocal discover in Texas criminal cases. |
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Name 3 rules should court follow when affixing bail?
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1. Sufficiently high to give reasonable assurance defendant will appear as required;
2. Power to set bail should not be used as instrument of oppression; and 3. Nature & Circumstances of offense should be considered. |
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What document must officer use to get a search warrant, and what facts must be contained therein?
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1. Affidavit establishing probable cause exists for issuance of search warrant
2. Must show specific offense committed, items to be seized constitute evidence that accused committed the offense, and that evidence will be found in place it is alleged to be (specificity). |
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When may an accused withdraw a plea of guilty?
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1. Under the code, plea of guilty may be withdrawn at any time BEFORE the judge takes the plea under advisement.
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What procedural steps can a party do to ensure a witness appears to testify at trial?
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1. Ask the clerk to issue a subpoena summoning her to testify at trial
2. If witness is duly served and fails to appear, can ask clerk to issue a writ of attachment, commanding a peace officer locate the witness and bring her before the court to show cause for failure to appear |
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12. Must a Defendant be allowed to be present during a pre-trial hearing?
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1. Yes.
2. Under the Code, defendant’s presence is required during any pre-trial proceeding, and court must allow such presence. |
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Is defense counsel entitled to a copy of a police report written by a testifying officer?
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1. Yes.
2. Under criminal discovery rule police reports are protected work product exempt from discovery, 3. HOWEVER – there is no exception to statutory requirement that a prior statement of a testifying witness (the officer) be turned over to the opponent after the witness concludes cross examination. |
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Must the court include a definition of “reasonable doubt” in the jury charge?
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No. Court rulings have held this type of definition to be redundant, confusing, and logically flawed.
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What must defense to do preserve error in prosecutor’s statement regarding failure of defendant to testify in his own behalf?
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1. Must object until you receive an adverse ruling from court, such as:
a. Object - and get a ruling, b. Request jury instruction to disregard - and get a ruling, c. Move to strike - and get a ruling, and finally d. Move for Mistrial - and get a ruling |
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May a defendant request jury sentencing after the jury has returned a verdict?
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1. Generally No.
2. Request for jury sentencing must be filed before voir dire of jurors begins 3. UNLESS – prosecutor gives consent to change the election at such point. |
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Is evidence of an alleged, un-convicted crime, admissible against a defendant during the sentencing phase of the trial?
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1. Yes.
2. Under the code, all evidence may be offered that court deems relevant to sentencing; 3. Including evidence of extraneous crime if shown beyond reasonable doubt by evidence to have been committed by , regardless whether he has been charged or convicted of such crime. |
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Did appointed lawyer make a timely effort to contact defendant, and was the Court authorized to replace lawyer based on his effort to contact the defendant?
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1. No. The lawyer did not make a timely effort to contact defendant. An attorney appointed to represent a criminal defendant must make every reasonable effort to contact defendant immediately after being appointed.
2. If the attorney fails to comply with this statutory requirement, the Court is authorized to replace the attorney. |
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What legal basis is there, if any, for the Court to reduce Defendant’s bail in these circumstances?
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1. Court should reduce bail because the state is not ready for trial.
2. In a felony case, if the state is not ready for trial of the criminal action for which defendant is being held 90 days after detention; defendant must either be released on personal bond, or by reducing the amount of bail. |
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If defendant is subpoenaed to appear before the grand jury, what warnings must she receive, if any?
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1. Testimony is under oath;
2. Testimony is subject to perjury; 3. Right to refuse to give self-incriminating answer; 4. Testimony may be used against you in any subsequent proceeding 5. Right to counsel advice prior to grand jury testimony; |
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What procedure must you follow before you will be allowed to take a witnesses’ oral pretrial deposition?
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1. File an application for deposition with the clerk of the court where case is pending to obtain an order allowing the deposition, must
a. Be supported by affidavit, setting out a “good cause” b. Notice must be given to the state, and 2. Court will hold a hearing to make its determination. a. Argue at hearing that there is good reason to take deposition because no other way to get access to the information. |
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Can court or jury sentence Defendant to community supervision if she is convicted of aggravated robbery?
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1. Court – code limits judge’s ability to grant community supervision for a number of offenses listed in section 3g.
a. Aggravated robbery is one of these offenses, thus judge could not grant community supervision in such a case. 2. Jury – Jury can sentence Defendant to community supervision if it so desires, even if D committed a section 3g offense. |
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What steps should you take to challenge the issuance of the search warrant, what must you show in support of your position, and what relief should you request.
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1. File motion to suppress the illegally seized evidence as fruit of the poisonous tree because it was obtained pursuant to an invalid search warrant.
2. Must show that: a. Officer misrepresented the facts in his affidavit, b. Officer intentionally made false statements under oath, c. False statements are material, and d. Without which there is no PC to support warrant issuance |
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What must you do before trial to ensure that the hospital’s records are admissible into evidence at trial w/o the presence of any witness from the hospital?
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1. Prepare a Business Records Affidavit, which shows:
a. Records created near the time of the event, b. By person with knowledge or from information transmitted to from person w. firsthand knowledge, c. Records made in the regular course of business, and d. It’s regular practice of the hospital to make such records. |
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If defense requests to argue last, and prosecutor objects, how should court rule?
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1. Court should sustain prosecutor’s objection, and rule that he can argue last.
2. The order of argument is regulated by the trial court, BUT under the code, the state has the right to make the concluding address to the jury. |
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Does it violate Double Jeopardy for grand jury to indict Defendant for a charge of resisting arrest, after being convicted for aggravated robbery?
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1. No. The indictment does not violate double jeopardy if one crime requires proof of an additional fact or element that the other does not.
2. Robbery requires proof on different facts than the charge of resisting arrest, therefore, under the Blockkburger test it is not the same offense, and double jeopardy does not attain. |
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Must an officer obtain one warrant for an arrest, and a separate warrant authorizing a search of the suspect’s residence?
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1. No.
2. Under the Code, both a search warrant and arrest warrant may be contained in the same document. |
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Which courts have jurisdiction to hear a felony, and which courts have jurisdiction to hear a misdemeanor case with a substantial fine?
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1. Felony – only the district courts have jurisdiction to hear felony cases
2. Misdemeanor – county courts, in addition to district courts may hear misdemeanor cases that include a substantial fine. |
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Who selects the people who will serve on the grand jury?
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May be selected in 1 of 2 ways:
1. By jury commissioners appointed by district court judges, or 2. In the same manner as jurors for civil trials are selected. |
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Does the code of criminal procedure provide any basis for prosecutor’s request of all lay and expert witness who will testify for defense at trial?
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a. Experts – yes, such request is authorized by statute in the CCP.
b. Lay Witnesses no, there is no statute which authorizes a list of defense’s lay witness |
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List 3 admonitions court must give a defendant before accepting a felony plea of guilty.
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1. The range of punishment attached to the offense,
2. Recommendation of prosecutor is not binding on the court, and 3. Defendant has limited ability to appeal if convicted pursuant to a plea |
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List 3 prerequisites for a person accused of a felony to be eligible for probation.
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1. Punishment assessed must not exceed 10 years,
2. If he wants jury to grant probation, he must file a pre-trial sworn application for probation, and 3. Application for probation must show that he has not been convicted of a felony in Texas or any other jurisdiction. |
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Court proposes to submit only legal definitions and statutes to jury. You object, and request in writing that court include a paragraph instructing jury regarding the circumstances under which defendant can be convicted or acquitted. Court denies your request. Is the court ruling correct?
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a. No.
b. Generally, charge consists of 2 parts: 1. Abstract, which instructs jury about the law, and 2. Application, which instructs jury how to apply law to the facts. c. Defense is entitled to an instruction that tells jury what the must specifically find in order to convict defendant. |
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Several days after defendant is sentenced, you learn that a party bribed 4 of the jurors to convict the defendant. What procedural step can you take to bring this information to the attention of the trial court and to attack the defendant’s conviction? How long do you have to take this procedural step?
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1. File motion for new trial on ground of juror misconduct.
2. Motion must be filed no later than 30 days after date when sentence is rendered. 3. Motion must be presented to trial court w.in 10 days of filing. |
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What valid basis, if any, is there for challenging a condition of D’s release?
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1. To secure D’s attendance at trial, judge may impose any reasonable condition related to safety of victim or community.
2. Condition of release must reasonably related to the committed offense. |
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Under what conditions is permitted to make an unsworn statement at the examining trial?
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1. If he does so before any witnesses testify.
2. Otherwise, he will have to testify as a witness, taking an oath, and being subject to cross examination. |
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You learn that grand jury has been hand picked by [biased party] to include only [arresting officer’s] close family members. When and on what grounds should you challenge the composition of the grand jury?
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1. File a motion to challenge the grand jury array before grand jury has been empaneled.
2. Argue that code requires the jury commissioner, to extent possible, to select jurors representing a broad cross-section of the population of the county, and that grand jurors have not been selected in accordance w/ the code in this case. |
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If you believe that cannot get a fair trial in the county where trial is set, what procedural step must you take? What documents must you file to support your position? What evidence must you show?
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1. File motion to change venue.
2. Motion must include D’s affidavit, along w. affidavit of at least 2 credible witnesses residing in the county where prosecution is pending. 3. Must show that there is: i. Great prejudice against the D (b/c of publicity, etc), and ii. Dangerous combination against him instituted by influential persons to prevent him from obtaining a fair trial. |
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If court refuses to exclude ’s statement or confession, what procedural step can you take to have the jury at ’s trial consider whether ’s post-arrest statement was voluntarily made? What evidence must you present, if any, to get the Court to allow the jury to consider the voluntariness issue?
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1. Ask judge to instruct jury to consider D’s statement only if prosecution has proven that the statement was voluntary.
2. Ask for instruction on law pertaining to such statements. 3. During trial, argue that statement was not voluntary, explain statutory requirements and present evidence in support of your argument |
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If court refuses to exclude from evidence products of a purported illegal search, can a jury at D’s trial consider whether the evidence was obtain in violation of the law? What procedural step, if any, should you take to have jury consider this issue?
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1. Yes. Jury can consider whether evidence was obtained in violation of the 4th Amendment.
2. Introduce evidence at trial that raises a question of fact regarding manner in which evidence was obtained. 3. Ask for jury charge to consider evidence only if they find that prosecution has proven beyond a reasonable doubt that evidence was not obtained in violation of fed. or state law. |
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Can prosecutor secure a valid conviction of the based solely on the testimony of an accomplice witness?
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1. No.
2. Testimony of an accomplice witness can support a conviction ONLY IF it is corroborated by some evidence connecting D to the crime. |
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On what grounds, if any, can defense counsel object to comments made during prosecution’s closing argument, claiming that defense counsel is using tricks, and accusing him of trying to blind the jury with trickery, etc.?
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1. Objection – improper jury argument
2. He is striking at defendant over shoulder of defense counsel” – impermissible type of closing argument b/c improperly accusing defense counsel of misconduct |
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Under what circumstances, if any, is the State require to give notice of its intent to introduce ’s prior convictions into evidence at sentencing. How should court rule on objection?
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1. Under Code, only required to give notice upon timely request of D.
2. If does not request notice, prosecutor does not have to give it. 3. Court should overrule objection unless proper request was made by D. |
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If the jury is deadlocked on the punishment issue, can the court declare a mistrial ONLY as to the punishment phase of trial and empanel a new jury for the punishment phase only? Does double jeopardy bar the retrial of the such punishment phase?
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a. Under the Code, court can declare a mistrial on the punishment issue.
b. Double jeopardy does not bar retrial b/c mistrial was declared for a “manifest necessity” – the inability of jury to reach unanimous verdit on punishment. |
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Can a waive his right to indictment? If so, what requirements must be met, and what charging document will be used instead?
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a. Yes.
b. Must meet following requirements: i. Represented by counsel, ii. Make waiver in open court by written instrument, and iii. Waiver must be voluntarily made. c. In such case, will be charged via an information prepared by prosecutor. |
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If court sets deadline for filing any pleadings for 5 days after date on which is served w/ a copy of the indictment, is the judge’s timeline proper?
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a. No.
b. Under the Code, in cases where the defendant is entitled to be served with a copy of the indictment, the defendant is entitled to ten entire days, exclusive of all fractions of a day after his arrest, and during the term of court, to file written pleadings. |
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If a prosecutor believes that, regardless of the evidence, it will be virtually impossible to convict a defendant in his hometown, what procedural step can prosecutor take, and what must prosecutor show in order to obtain such relief?
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a. Prosecutor should file a Motion to Change Venue.
b. Under the Code, the motion: i. Must be in writing, ii. Must show that by reason of existing combinations or influences in favor of the accused, or on account of the lawless condition of affairs in the county, iii. A fair and impartial trial cannot be safely and speedily had. |
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What three questions must the court ask in testing the qualifications of a prospective juror?
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a. Is juror qualified to vote in county and state, except for failure to register?
b. Ever been convicted of theft or any felony? c. Under indictment or legal accusation for theft or any felony? |
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What is the purpose of an examining trial?
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a. Hearing before a magistrate for the purpose of determining 2 things:
i. Whether state has PC to hold the under the accusations charged, and the amount of bail which should be required to post. ii. Whether the defendant shall be discharged. b. In Texas, examining trial occurs before an indictment is rendered. |
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What facts must be shown to rebut the legal presumption that is competent to stand trial?
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c. Must establish that does not have either:
i. Sufficient present ability to consult with defense w/ a reasonable degree of rational understanding, OR ii. A rational & factual understanding of the proceeding against him. |
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4. List 3 ways in which incompetency differs from insanity under Texas law.
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a. Timing: insanity is measured at time offense occurred, while incompetence is measured at the time of trial.
b. Standard: insanity concerns whether knew his conduct was wrong, whereas incompetence concerns whether can understand the proceeding against him. c. Outcome: finding of insanity results in acquittal, while finding of incompetence results in abatement of proceeding until regains competence (if ever). |
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What are 2 ways in which deferred adjudication differs from probation?
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a. Deferred adjudication (DA) does not result in a finding of guilt, but judgment is deferred, whereas a finding of guilt must be had before probation can be imposed.
b. Revocation of DA subjects to sentencing of full range of punishment, whereas revocation of probation cannot receive term longer than that imposed by original sentence. |
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What procedural steps should you take to challenge an omission of proof (that offense occurred in Harris County), and at what stage of the proceeding should they be performed?
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a. Move for directed verdict at end of prosecution’s case, arguing that prosecutor has failed to prove an element of the offense charged (that offense occurred in Harris County as offense charges).
b. If court overrules, I should raise issue again at close of all evidence. |
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What procedure, if any, is available to you to obtain juror contact information?
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a. G/R – personal info. of jurors is confidential, and may not be disclosed.
b. However, where jury misconduct is suspected: i. File motion for disclosure of jurors information ii. Must establish good cause for court to permit disclosure. |
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What are grounds for ineffective assistance of counsel claim, and what must show to prevail?
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c. Grounds – counsel failed to act as reasonably prudent counsel would have acted in defending the .
d. Must Show: i. Counsel’s performance was deficient to extent that was essentially denied counsel guaranteed by 6th Amendment, and ii. Reasonable probability that but for counsel’s errors, the result would have been different. |
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What are the statute of limitations for felonies?
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a. Dangerous felonies, arson, etc. 10 years.
b. No felony has period under 3 years. |
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What must party show to establish incompetence to stand trial, and by what standard?
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c. By preponderance of evidence that either:
i. Doesn’t have sufficient present ability to consult with me with a reasonable degree of rational understanding, OR ii. Doesn’t have a rational and a factual understanding of the proceedings against him. |
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4. Two ways indictment & information differ.
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a. An indictment is rendered by the grand jury and signed by the foreman, while the information is presented in behalf of the State; and
b. An information must be supported by a sworn complaint (affidavit) that must be filed with the court. |
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If pleads guilty but the Court does not agree with the plea agreement prosecutor made with , will be allowed to withdraw his guilty plea if the court rejects the plea agreement?
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a. Yes, if the court rejects the plea agreement, Lenny must be allowed to withdraw his plea of guilty and enter a plea of “not guilty,” if he so desires.
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Does a nolo contendere plea does have the same legal effect as a guilty plea.
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a. Plea of nolo contendere (no contest) has the same legal effect as a plea of guilty in the criminal proceeding, except that a plea of nolo contendere may not be used against the defendant as an admission in any civil suit based upon the same act upon which the criminal prosecution is based.
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What procedural steps can you take to obtain jury sentencing and to allow a jury to recommend community supervision?
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a. Jury Sentencing – file a written election for jury sentencing before jury voir dire begins.
b. Community supervision - file a sworn motion for community supervision before the trial begins. Under the Code, the motion for community supervision must state that the defendant has not previously been convicted of a felony in Texas or in any other state. |
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What must a party do ensure that the prosecutor will disclose pretrial whether he intends to introduce at trial evidence of an extraneous “bad act” of the ?
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c. File a timely request for a state’s notice of intent. Notice of intent is reasonable only if it includes the date, the county where the alleged bad act occurred, and the name of the victim of the bad act.
d. Under Texas Rules of Evidence 404(b). |
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What is required for an ORAL confession to be used against a at trial?
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e. An oral confession, under the Code, must be electronically recorded, and the miranda warnings must be contained in that recording.
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Must court in a criminal case grant a mistrial if a juror becomes dead or disabled?
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a. No.
b. If a juror becomes disabled at any time before the charge of the court is read to the jury, the remainder of the jury shall have the power to render the verdict; c. However, when the verdict is rendered by less than the whole number, it shall be signed by every member of the jury concurring in it. |
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What are 3 requirements of a valid arrest warrant?
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a. Specify name of person whose arrest is ordered, or if unknown, some reasonable description of him,
b. State that person is accused of some offense against the laws of the State, and c. Signed by magistrate, and his office be named in the warrant. |
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Do Texas Rules of Evid. apply at an examining trial?
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a. Yes, same rules of evid. apply as to the trial itself.
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What are 3 rules for fixing the amount of bail?
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a. Be sufficiently high to give reasonable assurance that undertaking will be complied with,
b. Should not be used as an instrument of oppression, and c. Nature and circumstances of offence are to be considered. |
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May co-defendants be charged in the same indictment, or must they be charged separately?
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a. If they are charged with same offenses, may be charged in the same indictment.
b. If charged with differing charges, must be indicted individually. |
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May a prosecutor amend an indictment over defense’s objection?
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a. No, if charge is added or different.
b. If amendment charges a different or additional offense, must go back to grand jury and seek a new indictment on the differing or additional charge. |
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Can jury place a defendant on deferred adjudication?
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a. No.
b. Only judge can give deferred adjudication c. Eligibility Requirements – Deferred Adjudication i. Plead guilty or nolo contendre, ii. Judge hears evidence in lieu of a trial, and iii. May defer further proceedings w/o adjudication and place on community supervision. |
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If defendants are tried together, how many peremptory challenges does each party receive?
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a. In felony case (district court):
i. Each gets 6, and ii. State entitled to 6 per defendant. |
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What are 3 challenges for cause that may be made to prospective juror?
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a. Juror is not qualified voter in state and county,
b. Juror convicted of felony, or misdemeanor theft, c. Juror is insane, and d. Juror is biased, or prejudiced against in some manner. |
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Can a defendant be convicted on basis of testimony or evidence offered by a co-defendant?
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a. Generally, No.
b. Under Accomplice-Witness Rule: i. Conviction cannot be had upon testimony of accomplice, UNLESS ii. Corroborated by other evidence connecting to offense committed. |
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What evidentiary predicate must be established for a business record to be admitted into evidence?
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a. Record made in regular course of business,
b. Record kept in the regular course of business, c. Record made at the time of transaction, or reasonable time thereafter, d. Record made by person w/ knowledge of transaction. |
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What is rule regarding co-conspirator statements as admission by party opponent?
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a. The declarant must be a co-conspirator named in the case in order to qualify as an admission by party opponent.
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What are two situations where a judge is not required to direct a probation officer to prepare a presentence report in a felony case:
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a. Punishment is to be assessed by a jury, and
b. Where only available punishment is imprisonment. |
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When may a victim impact statement be made?
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a. Must be made AFTER punishment has been assessed, not before.
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Does a nolo contendere plea have the same legal effect as a guilty plea?
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a. Yes.
b. A plea of nolo contendere (no contest) has the same legal effect as a plea of guilty in the criminal proceeding, c. EXCEPT - a plea of nolo contendere may not be used against the defendant as an admission in any civil suit based upon the same act upon which the criminal prosecution is based. |
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If a juror in a criminal trial is rendered “dead or disabled,” does the court have to grant a mistrial?
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a. No – doesn’t have to grant mistrial.
b. If a juror becomes disabled at any time before the charge of the court is read to the jury, the remainder of the jury shall have the power to render the verdict; c. HOWEVER - when the verdict is rendered by less than the whole number, it shall be signed by every member of the jury concurring in it. |
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What warnings must a defendant’s written statement contain on its face in order to be admissible at trial?
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1. Right to remain silent
2. Statements made may be used as evidence against him, 3. Right to have a lawyer present to represent him, 4. Appointed a lawyer if can’t afford one 5. Right to terminate interview at any time |
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What acknowledgement must be on the face of a ’s statement to be admissible at trial?
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1. That , prior to and during making of the statement,
2. Knowingly, Intelligently, and voluntarily 3. Waived his rights set forth in the warnings given to him. |
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List 3 things that must be contained in a first motion for continuance in order to procure availability of a witness?
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1. Name & Address of witness,
2. Dilligence used to procure attendance of witness, and 3. Material facts expected to be proven by the witness |
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Is a prosecutor entitled to a list of ALL of the ’s witnesses expected to testify at trial?
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1. No.
2. Only entitled to ’s expert witnesses under the code. 3. No reciprocal discover in Texas criminal cases. |
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What pleading can an appointed defense counsel file in order to obtain assistance in hiring experts for defense where client cannot afford to do so?
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a) Motion requesting court authorize reimbursement for reasonable & necessary expenses (Ake motion) since client has due process rught to assistance of an expert.
b) Must make a threshold showing to court as to the need for the expert |
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What must be shown to establish ’s incompetence to stand trial?
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a) Must show either:
i) Lacks sufficient present ability to consult w. defense with reasonable degree of rational understanding, OR ii) Lacks a rational as well as Factual understanding of proceedings against him. |
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What are 3 ways that incompetency differs from insanity?
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a) Timing – insanity measured at time of offense, incompetency measure at time of trial.
b) Standard – insanity goes to whether knew his actions were wrong, whereas incompetence deals w/ ’s ability to comprehend the proceedings. c) Outcome – insanity results in acquittal, incompetency merely suspends the trial until regains competency. |
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List 3 admonishments that must be given to a before it can accept his plea of guilty?
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d) Range of punishment,
e) Court not bound by prosecutor’s recommended sentencing, f) May limit availability of appeal options, and g) If not a U.S. Citizen, may result in deportation |
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How can a party challenge the denial of bail, and what are two procedural requisites for such?
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a. By filing a petition for a writ of habeas corpus.
b. Two procedural requisites are: (1) that the petition must state that the person is illegally restrained in his liberty, and by whom; and (2) Petition for the writ must contain a prayer and be under oath. |
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What are the requirements of a valid indictment?
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9 Requirements: (NPP NP DOCS)
1. Name & Authority - “In the name & by the authority of the State of Texas;” 2. Presented in Dist. Ct. of GJ - Presented in the Dist. Ct. where GJ indicted; 3. Proper County - acted upon by a grand jury in the proper county; 4. Name of Accused - name of person indicted; 5. Place - place of offense; 6. Date - date of offense; 7. Offense Charged - clear and plain language, incl. elements & victim; 8. Conclusion - “Against the peace and dignity of the State;” and 9. Signed - signed by foreperson of grand jury. |
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What procedural step can you take to challenge a defective indictment, and by when must it be taken?
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a. By filing a motion to quash.
b. Must be filed before the trial on the merits commences. c. If the challenge is not timely raised, any defects are deemed waived and cannot be raised on appeal. |
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If you file a motion for discovery of all notes that a Police Officer has made about D’s case, how should Court rule on your motion?
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Court should deny my motion for discovery since the notes constitute work product and are not discoverable by the defense.
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How should the Court rule on Prosecutor’s motion to discover all witnesses Defense intends to present at trial?
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1. Deny the motion to discover all witnesses that D intends to present at trial. Under the Code, the court has no authority to compel the defendant to provide the state with the names and addresses of all the witnesses.
2. However, the trial court may order any of the parties to disclose to the others the names and addresses of expert witnesses the disclosing party may call at trial. |
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What must be present for a sufficient search warrant?
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1. Sworn affidavit by officer seeking the warrant,
2. Probable Cause - sufficient facts to establish probable cause that a specific offense has been committed, and 3. Place - specifically described property or items to be searched for evidence of an offense, and 4. Evidence - the property or items constituting evidence are located at the place to be searched |
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What argument, if any, can Prosecutor make in response to motion to suppress evidence illegally seized?
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1. No REP - State was justified in seizing the items because defendant has no constitutionally protected reasonable expectation of privacy in the place searched, or
2. Time of Essence – time of essence b/c evidence could have been destroyed before warrant could be procured 3. Hot Pursuit, or another exception to warrant requirement. |
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If D enters a guilty plea and receives the sentence provided for in his plea agreement, will he be barred from appealing a denial of your motion to suppress evidence?
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1. No. Although, he cannot appeal the actual sentence imposed,
2. Under Texas practice, a defendant may plead guilty pursuant to a plea bargain and appeal all written pretrial motions on the grounds stated in the motions |
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Where a Judge is a potential victim of defendant’s crime, what procedural step, if any, can you take to ensure that D has a fair and impartial judge presiding over his trial? What legal basis, if any, is there for taking a procedural step in these circumstances?
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a. Motion to disqualify the judge on the grounds that he “may be interested” in the outcome of the case. This would be a constitutional challenge and the disqualification is mandatory.
b. Under the Code, the judge may also be disqualified if he is the injured party. c. Alternatively, I could file a motion for recusal of the judge on the grounds that his impartiality might reasonably be questioned because he has a personal prejudice concerning the subject matter, or personal knowledge. |
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What procedural step can you take to seek a postponement of the trial in order to procure a witness’ testimony? What are two of the requisites you must satisfy as part of this procedural step? Explain fully?
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a. I can file a written first motion for continuance based on good cause.
b. Requisites of this motion are that the motion must: i. State the name of the witness and his residence, if known, or that his residence is not known, ii. The diligence which has been used to procure his attendance, and iii. That the motion is not filed for delay. |
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After a jury is impaneled, what are the first two steps in the order of proceeding in trial? If these two steps are skipped, can the error be fixed later in the trial?
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a. Pursuant to the order of proceeding of trial under the Code, first two steps are:
(1) Reading of the indictment, and (2) Entry of the plea by the defendant. b. If these two steps are skipped, the error can be fixed later in the trial. c. Upon the error being discovered, the indictment can be read, and the defendant should enter his plea; d. The parties may stipulate to the evidence that has already been presented at trial. |
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By what deadline, if any, should Prosecutor make D’s confession, statements, or tape recording available to you, given his intent to introduce D’s oral statement at trial?
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a. Prosecutor is required to provide D counsel with the recorded confession no later than 20 days before trial.
b. Oral confessions during custodial interrogations are not admissible unless an electronic recording was made, defendant was given Miranda rights, the recording was accurate, and all voices on the recording are identified. |
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Prosecutor informs you that his next witness will testify that D assaulted him two years ago. What objections, if any, should you make to the admissibility of this testimony?
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a. Objection – Improper Character Evidence
b. Under TRE - specific act is not admissible to prove D’s character, or to show that he acted in conformity with that character. c. MIMICK - Under the rule, however, evidence of other crimes may be admissible for purposes other than showing character, such as proof of motive, opportunity, plan, intent, preparation, and plan. |
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If D filed no pleading concerning the assessment of D’s punishment. Will the judge or the jury assess punishment in this case?
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The judge will assess the punishment.
Under the Code, if D wished to have his punishment assessed by the jury, he should have filed this election before the trial began. |
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What items is D allowed to get from state in discovery upon a showing of good cause?
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Allowed - Showing of Good Cause:
1. Documents; 2. Papers; 3. Written Statements (confession) by defendant; 4. Books; 5. Letters; 6. Photographs & Video Recordings, etc.; 7. Tangible objects |
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What items is D generally NOT allowed to get during discovery?
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Generally Not Discoverable by Defendant:
1. Police reports (offense reports); 2. Expert Witness Reports (but results should be disclosed before trial); 3. Grand Jury Testimony prior to trial (unless Δ makes particular showing of need); 4. Autopsy Reports; 5. Original tape recordings; 6. Fingerprints of accused; 7. Blood, urine, and breath tests (cases under motor vehicle act); and 8. List of Prosecution Witnesses |
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What items must State make available to D under the "Brady Rule?"
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2 Obligations of Prosecutor:
1. Must disclose all material evidence in his possession that is favorable to Δ; and 2. Preserve & make available to Δ all favorable material evidence that Δ cannot otherwise obtain which is material to his defense. |
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Under the Brady Rule, what are the Mandatory Disclosures required by Prosecutor?
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2 Distinct Pre-Trial Obligations to Disclose:
1. Must disclose all material evidence in his possession that is favorable to Δ; and 2. Preserve & make available to Δ all favorable material evidence that Δ cannot otherwise obtain which is material to his defense. These Are Constitutional Obligations: 1. Due Process Clause – 5th Amendment 2. Due Course of Law – Art. I, § 1, Texas Constitution |
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What is required by the Court before it can accept a guilty plea by the defendant?
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Prior to accepting guilty plea, Court must determine on the record:
1. Δ is competent; 2. Plea is voluntary; 3. Δ is waiving certain known rights; 4. Recommendations of Prosecutor are not binding on the court; 5. Δ’s right to appeal may be restricted; 6. Whether court intends to follow plea agreement of prosecutor; 7. Punishment range to offense; 8. Possibility of deportation if Δ is not a US citizen; 9. Whether prosecutor has given notice of plea bargain to victim or close relative if victim is deceased. |
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How are peremptory challenges in criminal trials allocated in Texas?
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Peremptory Challenges – Criminal Trials
a. Capital Trials: 15 per side; b. Non-capital Felony: 10 per side; and c. Misdemeanor Trials: 3 per side |
