108 terms

Crim Pro & Evidence - Texas

Trial Court Jurisdictions
District Court = felony or misdemeanors involving official misconduct

Justice Courts = fine punishment only

Municipal Court = fine punishment only, city ordinance or state

County Court = Misdemeanors [up to one year]
Habeas Corpus
Writ directed in name of office

Can be granted by Court of Criminal Appeals, District Courts, County Courts
must be within 48 hours

Must inform D of 1) Charges 2) rights to counsel and examining trial 3) right to remain silent, statements can be used against him, attorney during questioning, appointment of atty, can terminate police questioning at any time 4) set bail 5) may determine if PC exists
Release on bail required if:
1)no probable cause determination by magistrate
2) felonies: 48 hours of arrest w/o warrant
3) misdemeanors: 24 hours of arrest w/o warrant
Magistrate can delay for up to 72
Denying Bail: Who, When, What
if 1) capital murder prosecution
2) certain prosecutions for noncapital felonies

Only District Judges can deny in noncapital prosecution

Must be within 7 days
Noncapital denial of bail if:
1) D is charged with non capital felony; and
2) substantial evidence of guilt; and
3) one of the following:
A) two prior felony convictions
B) committed out on bail of felony
C) both: 1 prior felony + present offense involved use of deadly weapon
D) present offense was a violent or sexual offense while on felony probation or parole

Rule: Bail can be denied if while on bail on a felony charge, D violates condition of bail related to safety of victim or community
Denial of Bail: Challenge
Appeal to Court of Criminal Appeals

Denial of bail lasts only 60 days (unless capital crime or D moves for a continuance)
Bail: Setting and Challenging
1) file writ of habeas corpus in District Court
2) At hearing show evidence that:
A) bail was excessive
B) bail cannot be met
C) bail amount that can be met
3) DC may order bail reduced
4) if not, D can appeal to Court of Appeals
Factors in Determining Bail Amount
Likelihood of D showing for trial
Ability of D to make bail
Seriousness of crime charged
Future safety of victim and community
Required bail is not to be an instrument of oppression
Bail v. Bond
Bail requires a surety or cash deposit
Bond requires neither
Time frames for release if prosecution not ready
Felony: 90 days of arrest
Class A: 30 days of arrest
Class B: 15 days of arrest
Class C: 5 days of arrest
Examining Trial
Prior to grand jury indictment + felony charge = right to ET
Magistrate determines if probable cause exists

D has rights to:
1) be present
2) be represented
3) have rules of E applied
4) Cross examine state witnesses
5) Subpoena and present D witnesses

Ends as soon as indictment is gotten, even mid-trial
Grand Jury must return "true bill" against D if finds PC. Signed by foreperson and filed in District Court.
Waiver of Indictment
Allowed if:
1) D is represented by counsel
2) Written or stated in open court
3) Waiver must be voluntary
Effect of Waiver
Felony = State files an "information
Class A-B = files an information + complaint
Class C = files complaint
Grand Jury Selection
2 methods:
1) Grand Jury commissioners appointed by District Judge or
2) normal trial selection methods

DC tests qualifications and them impanels 12 as a grand jury

Supposed to represent cross section of population
Grand Jury Proceedings
Can compel D to appear but can't compel testimony
Voluntary appearance rights of D
Must be warned:
1) the offense of which he is suspected
2) the county and time of its occurrence

Q&A must be recorded
Subpoena appearance rights of D
Must be warned:
1) testimony under oath
2) false answers = perjury
3) can refuse to answer incriminating q
4) right to counsel appointed
5) right to have lawyer present outside the room
6) testimony can be used against him

7) must be given written copy of warnings
8) had a reasonable opportunity before testifying to obtain and consult w/ counsel
Challenges to Indictment
1) Unauthorized person present when hearing evidence = NO
2) Unauthorized person present while deliberating = YES
3) Evidentiary insufficiency = NO
Limitation of Prosecution
Tolled if:
1) D is out of state
2) while a charging instrument charging the same offense is pending against the accused and later dismissed

No limitation for:
1) Murder and manslaughter
2) offense involving leaving the scene of an accident
3) Sexual Assault, continuous sexual abuse, indecency with child

General limitations:
Misdemeanors = 2 years
Felonies = 3 years
Theft, burglary, robbery, kidnapping = 5 years
Charging instrument
Must "charge the offense" and provide D with "notice"

Charge the offense = facts constituting all elements of offense, some statutory language usually sufficient, must name victims

More detail maybe required to provide notice
Formal Requisites of Indictment/Information
1) commence: "In the name and by authority of State of Texas"
2) name the accused (or describe him)
3) charge all elements of the offense
4) specify enough details to give notice
5) allege crime was committed on a date w/in SoL & before indictment
6) provide venue
7) conclude: "Against the peace and dignity of the State"
8) be signed by foreperson or prosecutor
Significance of Indictment for Trial
Can convict D only of offense charged OR sometimes a lesser included offense

A variance between indictment and proof at trial may require an acquittal.
Uncharged and Lessor Included Offenses
Lessor include offense =
a) proved by some but not all the same facts required or the major crime
b) requires only a less serious injury to same person, property or interest
c) requires less culpable mental state
d) consist of an attempt to commit major crime

Key Rule: Jury should be instructed on lessor offense if jury could find 1) not guilty of the charged offense and 2) is guilty of the lessor
Name of Accused
If wrong, must:
1) raise at arraignment
2) specify true name
3) judge is then to correct
Raising Indictment Defects
General Rule: Must be done before the day of trial
Exception: fundamental defects (no person specified, no crime charged)

If quashed, state may:
1) take an appeal
2) obtain a new indictment
3) amending the indictment
Curing Defects by Amendment
1) Any allowed if D doesn't object
2) When sought before trial any amendment is permitted unless
3) Limits: amendment would cause allege-ment of different or additional offense or prejudice the substantial rights of the D.
Defendant Protections from Amendments
1) must be given notice
2) Trial court must authorize
3) D must have at least 10 days to prepare for trial on new amendments
1) accused enters plea (guilty/not guilty/nolo contendre)
2) time to fix accused identity
3) judge appoints council

Insanity evidence notice must be filed 10 days before trial
Decisions only the D can make
1) plea
2) jury trial or not
3) take the witness stand
Information D must receive before guilty/nolo contendre
1) the range of punishment
2) recommendations by the state aren't binding
3) limited right to appeal
4) may result in deportation
5) court may inquire as to if there was a plea bargan
Pre-trial Hearing and Conference
1) discretionary to the judge
2) the following must be done 7 days before hearing
A) enter any special plea
B) make challenges to indictment
C) motions for continuances
D) motions for change of venue
E) motions to suppress evidence
F) make requests for discovery
G) raise claims of entrapment

If not done w/i 7 days, court may allow if good cause
Motion in Limine
pre-trial motion that asks for either or both:

1) the merits of some question of evidence or procedure that will arise during trial or
2) ruling that opposing counsel must alert the judge before raising some mater of evidence or procedure before the jury.

Must object to preserve error on appeal
Motion to Suppress Evidence
A motion to suppress may be used to raise pre-trial any argument that evidence to be offered at trial is inadmissible.

Preserves error on appeal
Discovery: Witness lists
Trial judge has discretion to order the STATE to provide defense with list.

Trial judge has discretion to order both sides to provide names of Expert Witnesses (at least 20 days before trial)

Judge can exclude or admit testimony of witnesses left off the list. Relevant considerations include if the exclusion was intentional or the D had actual notice.
Discovery: Deposition
Either side may be permitted:
1) trial judge must order
2) party must show "good cause" - unavailable at trial, notice to other party required
Discovery: Inspection
Trial judge has authority to order the STATE to provide the following for inspection if it is:
1) tangible
2) constitutes or contains material evidence
3) is in the possession of the State
4) not the work product of the State
Examples of Work Product
Written Confession = No
Samples of Physical Evidence = No
Memo from ADA to Prosecutor = Yes
State Crime Lab report = Yes
Police reports = Yes
Written Statements by State witnesses = Yes
Names of grand jury witnesses = No
Testimony to grand jury = Yes, unless D shows particularized need
Informant Disclosure
Disclosure required in two situations:
1) if claim of illegally obtained evidence, the court can require disclosure to establish informer's reliability
2) Upon showing that the informant can provide testimony necessary to fair determination of guilt/innocence, the courts must order disclosure.
FED Duty to disclose exculpatory evidence
must disclose under Brady v. Maryland if:
1) the info is exculpatory, in state's possession and not turned over
2) the information is "material" = reasonable probability outcome of case would have been different
Competency to Stand Trial
Incompetent if:
1) lacks ability to consult with counsel with a reasonable degree of rational understanding
2) lacks a rational and factual understanding of the proceedings

if incompetent then trial can't occur until improvement

Preponderance evidence standard for D to prove incompetence.
Venue and Change of Venue
Venue lies in the county where the crime was committed

Trial court may change venue on it's own motion if fair trial to defendant and state alike can not be held
Change of Venue: D
May seek because:
1) prejudice in the county would prevent fair trial; OR
2) dangerous combination of influential persons against the D would prevent fair trial
Change of Venue: D - Procedure
1) a written motion for change of venue
2) affidavits from the D and 2 credible residence of the county
Change of Venue: State
May seek because:
1) combinations or influences in favor of D would prevent fair trial
2) lawless conditions would prevent fair trial
3) life of D or witnesses would be jeopardized by local trial
Disqualifications of Judge
Disqualified if:
1) Victim
2) Counsel of either side
3) related within 3 degrees or
4) bias
Presence of Accused
If felony or misdemeanor punishable by jail time:
1) jury case: through swearing of the jury
2) nonjury case: through D's plea
3) either: at formal sentencing

If voluntarily absent in the middle, may proceed without
Joinder of Offenses
An indictment may allege only one offense, if more = quashed
D may be tried on only one indictment per trial, else entitled to have trials severed
Criminal Episode Exception
State may join in one indictment all offense arising out of one "criminal episode." = same transaction OR common scheme or same or similar offenses

If several offenses alleged, each must be in a separate count.

D may consolidate different indictments arising from same criminal episode BUT one trial = concurrent time, separate could = consecutive
Joinder and Severance of Defendants
Several D may be charged in one indictment & tried together if all charged with the same offense or different offenses arising out of same transaction.

If other D has admissible prior felony, MUST sever
Else judge has discretion to prevent prejudice to one D
Continuances and Postponements
Motion must be:
1) in writing
2) supported by showing of good cause
3) be sworn

Motion made after trial must be in addition to above:
4) based on occurrence that happened after trial
5) be unanticipated
6) surprise that prevents fair trial
Right to Counsel, Self Rep, and Expert Assistance
6th Amendment right to appointed attorney if:
1) felony charge
2) misdemeanor that carries jail time

6th Amendment right to represent self if:
Judge makes inquires of D, on record to assure that D is competent
Right to effective Representation
Violation if:
1) Lawyers actions were "beyond the bounds" of professionalism and not merely tactical questions
2) Reasonable probability that had counsel been effective, outcome would have been different
Dismissal by the State
Trial court may dismiss some or all charges if:
1) written statement of the reasons
2) Judge consent

Double Jeopardy attaches when jury is sworn
Jury Trial on Guilt-Innocence: Basic Structure
Must be tried by jury unless waived; requires approval of prosecutor and court; not waivable on capital murder

District Court size: 12
else: 6

Communication between judge and jury must be in writing and Judges response must be read in open court.

Unanimous verdict required
Jury Selection: Steps
1) swearing in the panel
2) qualification of the panel members by the judge
3) possible jury shuffle
4) voir dire
5) challenges for cause
6) peremptory challenges
7) empaneling the actual jury
Judge asks:
1) are you qualified to vote in this county and state
2) conviction of theft or felony?
3) under indictment or accusation of theft or felony?
Challenges for Cause
Unlimited amount, reasons:
1) prior conviction for theft or felony
2) under formal charge for theft or felony
3) insane
4) not qualified to be a voter
5) witness in the case
6) served on a jury in prior trial of case
7) served on the indicting grand jury
8) cannot read or write
9) bias or prejudice for or against the accused
10) bias or prejudice against any law applicable to the case (including punishments)
Peremptory Challenges
Each side gets:
1) Capital murder death penalty cases: 15
2) Other felony cases: 10
3) Misdemeanors tried in District Court: 5
4) else: 3

Batson = no challenges on race or gender
Trial Procedure
1. Judge calls for parties and give announcements of ready
2. Prosecutor reads the indictment
3. D enters a plea
4. Pro makes opening statement
5. Pro makes case in cheif
6. D makes opening statement (may do it after pro's)
7. D presents evidence
8. rebuttal evidence is presented
9. judge reads charge to jury
10. counsel makes final arguments (pro, D, pro)
Directed verdict of not-guilty
upon motion by D at the end for pro's case or close of all evidence, judge my grant if pro did not prove beyond a reasonable doubt
Hearsay exception: Statements against penal Interest
In crim litigation, a statement against penal interest is admissible only if corroborating circumstances indicate it is trustworthy.
Hearsay exception: Records of Regularly Conducted Activity
Proper predicate necessary for admission:
1) records were kept in regular course of business
2) it was regular course of business for a person with knowledge of the matter to make such records
3) entries in the records were made at or near in time of events
4) witness is custodian of records

Affidavit of custodian allowed if filed 14+ days before trial starts and D is given notice
Character Evidence
State can prove bad character only if:
1) D opens door
2) at punishment stage of trial

Reputation and opinion testimony only, no specific instances
On Cross, specific instances allowed: "Have you heard" or "Did you know"
Extraneous Offense Evidence
Not allowed unless MIMIC:
Intent or knowledge
Lack of Mistake
Identity (when D puts into issue)
Common scheme or plan
Extraneous Offense Evidence: 404(b)
Upon request by D, pro must give notice BEFORE trial of:
1) intent to introduce evidence of other crimes, wrongs, or bad acts
2) not arising in the same transaction as charged crime
3) to be introduced in the State's Case-in-chief
Writings or Recorded Statements
If one party introduces all or part of a writing, the other party may immediately:
1) introduce any other part of the writing or recorded statement
2) introduce any other writing or recorded statement which in fairness should be considered by the jury at the same time
Rule of Optional Completeness
If part of act, conversation or statement is offered, the other party is entitled to prove the rest of the "subject"
Physician-Pt. Privilege
Does not apply to criminal litigation unless
1) made by a person being treated voluntarily for alcohol or drug abuse
2) made to a person involved in treatment
Attorney Client Privilege
Has a privilege to keep confidential a private communication
Privilege of Defendant's Spouse
Spouse of a D has a privilege not to be called as a witness to testify against the D or to not testify against D. Can be waived by spouse

Exceptions: offense committed against
1) minor child
2) household member of either spouse
3) the spouse
4) prior to marriage
Privilege for Marital Communications
D has a privilege to refuse to disclose and prevent others from disclosing confidential communication made by the person to his spouse during the marriage

Exceptions: the communication was made to commit a crime or offense committed against
1) minor child
2) household member of either spouse
3) the spouse
Statement made in Plea Bargaining
Calling Witnesses
Step 1: application to clerk for subpoena
Step 2: attachment issued for witness if properly subpoenaed but fails to appear
Cross and Impeachment
Methods of Impeachment:
1) bad conduct - final crim conviction, not more than 10 years old, felony or moral turpitude misdemeanor, probative value test
2) contradiction - allowed unless collateral matter
3) showing character for untruthfulness
4) showing bias or interest

Other matters can be explored on cross in order to correct a misleading impression left by witness
must 1) tell witness contents of prior inconsistent statement
2) time and place and to whom made
3) afford the witness an opportunity to explain or deny
Moral Turpitude Crimes
Theft, perjury, forgery, making false police report, aggravated assault on a female, prostitution
Limits on Judges
May not 1) comment on weight of evidence or convey to the jury the judge's opinion of the merits.
The Rule
upon invoking, witnesses must be excluded from the court room except for own testimony

If violated witness may be found in contempt or their testimony may be excluded.

D, victim, Expert Witness
Expert Witnesses
EW may testify to an opinion w/o disclosing the facts or data relied on

In crim cases, adverse party has right to voir dire the expert on the facts
Court considerations in determining admissibility of scientific evidence
1) Acceptance of theory or technique by scientific community
2) If scientific lit. supports or rejects theory or technique
3) potential error rate of technique
4) qualifications of the expert
5) availability of other experts to test and evaluate technique
6) the clarity of the theory and technique can be explained to court
7) experience and skill of person who applied technique in this case
Disclosure during trial
A party is entitled to a writing if adverse witness used a writing either before or during testimony. Entitled after direct examination

Party is entitled to an item used by opposing counsel in front of the jury
Admissible if a witness would be permitted to give a verbal description of what the photo was

To Authenticate: witness must testify that 1) was the matter shown in photo and 2) the photo depicts what it looked like
Illegally Obtained Evidence
if obtained as a result of 4,5,6 Amendments, can't be used

Texas: can't be admitted if obtained by an offer or other PERSON in violation of Const. of US, Fed law, Texas Const. or laws of texas

Good Faith exception: admissible if officer was acting in "objective" good faith reliance on a warrant & warrant issued by disinterested magistrate based on probable cause.
Jury Charge
Trial judge develops and submits to both sides.
Judge can not summarize or comment on evidence.

Judge must read the charge to the jury in court, before final arguments, and jury is given written copy

Error is preserved by objection or request for special charge correcting law. Objections must be in writing but can be accomplished by dictation to court reporter.
Effect of error on jury charge
If objected to: must show "some harm"
If not preserved: must show "egregious harm that prevents fair trial"
Affirmative Defenses
Need not be pleaded, burden on defendant, must prove by preponderance
Arguments of Counsel
Limited to 4 subjects on final arguments
1) summation of evidence
2) reasonable deductions
3) answering arguments of opposing counsel
4) making pleas for law enforcement

1) comment on D's invocation of self-incrimination rights
2) express personal opinions
3) argue what community demands
4) strike D over the shoulder of defense counsel
Evidence Sufficiency
Evidence requiring corroboration:
1) accomplice testimony - other who could be convicted of crime charged
2) D's out of court confession
3) sexual assault victim's testimony - unless victim told someone with in 1 year, was under 18, impaired, 65+
4) Jailhouse Snitch testimony
Jury Sentencing
Must be invoked by D by timely election (before vior dire of jury panel begins) for jury sentencing. Required for Capital Murder cases

All kinds of prior information and reputation testimony gets in but D can request notice of this
Death Penalty Considerations
1) Future Danger
2) Mitigating circumstances to warrant life
3) If accessory, did D personally cause death of victim, or intend to kill the victim or anticipate that human life would be taken.
Eligible if punishment doesn't exceed 10 years. No probation if murder or sex offense with child under 14

Can be revoked if: violation can be proved (preponderance test), no jury trial needed, required to serve prison sentence previously assessed

In aggravated cases or "bad cases", only jury may give
Application for felony probation
Must be:
1) prior to trial
2) in writing
3) sworn
4) states that D has not been convicted of a felony
Deferred Adjudication
Probation without guilt finding. D must plead guilty or nolo contendre. Not allowed for DWI, FWI, BWI, intox manslaughter or intox assult
Formal Sentencing
Done by trial judge, judge is to ask D if he has anything to say as to why sentence should not be imposed.

Only reasons, pardon, incompetence, D is not person convicted of the crime
Motion for New Trial - Time
Must be filed within 30 days of pronouncement of sentence, presented to the court w/i 10 days of filing (court can extend to 75 days)

Must be ruled on within 75 days of sentencing or over ruled.
Motion for New Trial - Grounds
1) D's presence was required but not there
2) verdict by lot
3) D's right to counsel was violated
4) juror was bribed or corrupt
5) jury received evidence after retiring
6) juror conversed about the case with someone other than another juror
7) new evidence has been discovered
Motion in Arrest of Judgment
1) indictment has a defect of substance
2) verdict varies from indictment
3) judgment invalid
Appeal - General
1) D can appeal after conviction and sentencing
2) Capital murder + death = automatic appeal to Court of Crim Appeals
3) Convicted in District or County Court - appeal as right to court of appeals, seek review from CCA (PDR)
4) Convicted in justice or municipal court - appeal is to county for de novo trial (fine must exceed 100$ or be constitutional q)
5) Must be filed in writing within 30 days of sentencing
Appeals by State
State may appeal in 6 situations:
Pre-trial if trial court:
1) dismisses the indictment
2) grants D a motion to suppress evidence before jeopardy attaches
3) sustains a D's claim of double jeopardy

Post Trial:
4) grants D a motion for new trial
5) grants D motion to arrest judgement
6) imposes an illegal sentance

If D appeals, State may cross appeal a q of law it lost
Appeal for suppression of evidence
1) 2x jeopardy can't have attached
2) within 20 days of the order
3) certify that evidence is substantial importance in the case, and not for purpose of delay
Preserving Error in excluding evidence
Counsel must make an offer of proof by either:
1) counsel's oral summary of the excluded evidence
2) Q & A form ("informal bill of exception")
AND get a ruling excluding the evidence
Preserving Error in admitting evidence
1) make timely objection
2) state specifically the ground to be relied upon on appeal
3) secure from the trial judge a ruling
Preserving Improper argument, comment, or question
By either another lawyer or Judge, must:
1) immediately object; and
2) seek instruction to disregard; and
3) move for mistrial
AND get ruling on all 3
Resolving Appeals: Evidence Sufficiency and Variance
Evidence is subject to review for legal and factual accuracy. Sufficiency is measured against a hypothetical jury charge correct for the case.

Acquittal only if variance is material

Legal Sufficiency = evidence viewed in light most favorable to state
Factual Sufficiency = "so contrary to the weight of evidence that clearly wrong or unjust"
Post-Conviction Attacks on Convictions
1) Habeas Corpus

D entitled if:
A) error rendering conviction void
B) jurisdictional error
C) violation of constitutional right
D) actual innocence

2) DNA evidence
Actual Innocence and subsequent habeas corpus
Actual Innocence = new evidence showing innocence is not available and (by clear and convincing evidence) no reasonable jury would convict

Subsequent HC allowed only if:
1) federal constitutional rights were violated and
2) but for that violation no rational juror could have found D guilty