Flashcards
Criminal Law Tx
Cards in this deck (156)
- 1Writ of Habeaus Corpus1. Court order commanding someone w/ person in custody to produce that person before court & why being held.
2. Directed to someone having another person in restraint.
3. Writ seeks to have the custody of person restrained produced.
4. May be granted by Court of Crim Appeals, District Courts, County Court or judge alone - 2Magistrating the Accused- AKA Initial Appearance1. The officers must present accused before a magistrate w/o unnecessary delay but in any case w/ 48 hours
- 3Duties of MagistrateThe magistrate
1. Tells Sims the charges
2. Tell him of his right to (a) obtain counsel & (b) examining trial
3. Warn accused right to remain silent, any statement can be used against him, right to have atty during questioning, any time he can terminate an interview with police, set bail
4. Determine P/c exists - 4Release on Bail1. Required if no p/c determination by magistrate
(a) felonies= after 48 hours of arrest w/o warrant
(b) misdemeanors= after 24 hours of arrest w/o warrant
2. Magistrate can delay release for no more than 72 hours - 5Denial of BailPossible in two cases
1. Capital murder prosecutions
2. Certain prosecutions for noncapital felonies - 6Denial of BailBail can be denied in a noncapital case only if at a hearing the prosecution shows
1. ∆ is charged w/ non-capital felony; and;
2. Substantial evidence of D's guilt of that crime and
3. one of the following
(a) BOTH two prior felony convictions
(b) a present offense committed out on bail on felony OR
(c) present offense a violent or sexual offense committed while on felony probation or parole
Bail can be denied if while on bail on a felony charge, ∆ violates condition of bail related to the safety of the victim or the community - 7Appeal Denial of BailImmediately appeal the order denying bail to the Court of Criminal Appeals
- 8Limitation on Denial of BailDenial of bail in a noncapital prosecution lasts only 60 days as long as defense does not move for a continuance of the trial proceedings
- 9Seek Reduction of Bail1. File application for writ of habeas corpus in district court
2. At hearing, introduce evidence showing
a) bail amt was excessive;
b) cannot meet bail set; and
c) amount of bail he can meet.
3. The district judge may order bail reduced.
4. In to, Sims can, before trial appeal to Court of Appeals - 10Factors Determining Amount of Bail1. [L] likelihood of ∆ appearing for trial
2. [A] Ability of the ∆ to make bail
3. [S] Seriousness of the crime charged
4. [S] Future Safety of the victim & community
5. [O] Required bail not to be an instrument of an oppression - 11Condition on BailMagistrate may imposes any reasonable conditions related to safety of victim or community
- 12Jailed ∆ Release1. Jailed ∆ must be released (personal or reduced bond) if State not ready for trial
1) felony cases:: 90 days of arrest
2) Class A: misdemeanors: 30 days arrest
3. Class B misdemeanors: 15 days
4. Class C: misdemeanors: 5 days - 13Examining Trial1. Any magistrate can hold so any court
2. Pretrial hearing. Purpose is to require the state to produce evidence of p/c to believe ∆ guilty of crime - 14∆'s Rights at Examining Trial∆ has the right to
1. Present
2. Be represented by counsel
3. Have the rules of evidence applied
4. Cross-examine state W's
5. Subpeona & present ∆ W's - 15∆ entitled to Examining Trial∆ is entitled IF
1. charged w/ felony
2. Indictment has not been returned - 16Waiver of IndictmentPermitted in all prosecutions except capital murder
- 17Requirements to Waive Indictment1. ∆ must be represented by counsel
2. Waiver must be written instrument or in open court; and
3. Waiver must be voluntary - 18If Waived then What does State fileInformation
- 19Information1. A pleading filed by the State charging the person named w/ a criminal offense.
2. Only needs to be approved & signed by the prosecutor.
3. Be supported by a valid & sworn complaint which must be filed - 20Challenge Composition of Grand Jury1. Challenge on ground that must be well represented
2. Raise matter during grand jury by a challenge to array
3. Can raise later by a motion to set aside indictment only by showing did not have opportunity to raise by challenge array - 21COmpel ∆ to Grand Jury1. Grand Jury can compel ∆ to appear by having subpoena
2. Cannot compel to have Sims answer Q is invoke privilege - 22∆ Appears Voluntarily1. Will be suspect W
2. Before questioning warned
(a) an offense which suspected
(b) county in which it committed
(c) time of occurrence
Q's asked & testimony must be recorded - 23∆ is subpoenaedSubpoenaed W get following warnings
1. Testimony under oath
2. False answer to material Q subjects to perjury
3. Refuse to answer incriminating Q
4. Right to have counsel appointed if can't afford a lawyer
5. Right to have a lawyer outside room
6. Testimony can be used against him
Also be given written copy of warnings & reasonable opportunity before appearing to obtain & consult counsel - 24∆'s Rights1. Can't cross-examine W's
2. W/ grand jury's permission may be allowed to address the grand jury
3. NO RIGHT to testify or have counsel present - 25Lawyer for ∆Can address grand jury if
(1) the grand jury permits it AND
(2) prosecutor consents - 26SOL for Crimes(a) misdemeanors= 2 years
(b) felonies= 3
(c) Theft, burglary, robbery, kidnapping= 5 years
SOL is tolled while ∆ out of state & while a charging instrument is pending - 27Formal Requirements of Indictment or Information1. Commence: "In the Name and by Authority of the State of Texas"
2. Name the accused (or describe)
3. Set forth "charge" all elements of the offense
4. Specify enough details to give accused notice
5. Allege the crime was committed on a date that is both (a) w/in period of limitations & (b) before presentment of indictment
6. Allege commission of the crime in a county w/in court's jurisdiction (venue)
7. Conclude "Against the peace & dignity of the state)
8. Be signed (indictment= foreperson information= prosecution) - 28Uncharged & Lesser Included Offenses1. One offense is lesser offense of another (more serious) if:
(a) it is proved by some but not all that required
(b) requires only less serious injury
(c) requires less culpable mental state
(d) consists of an attempt
2. Jury should be instructed on uncharged offense if
(a) another offense is a lesser included offense of crime charged
(b) the evidence is that ∆ is not guilty of charged & guilty of lesser - 29Name of AccusedIf ∆ believes name specified ≠ ∆'s true name
1. ∆ must raise at arraignment
2. ∆ must specify true name
3. Judge is then to correct the indictment - 30Raising Indictment Defects1. GR= Defects in charging instruments must be raised before trial
2. Exception: "FundamentaL Defects": Defects that prevent instrument from being an indictment (a) no person specified or (b) can't tell crime charged
3. Must be filed before trial
4. If trial court "quashes" State may
(a) taking an appeal
(b) obtaining new indictment
(c) Amend the indictment - 31How to Challenge IndictmentMake a motion for
1. Exception to the Form of the Indictment
2. Exception to the Substance of the Indictment
Informally= Motion to Quash
Must be filed before the day on which trial begins. If not can't be waived again - 32Curing Defects by Amendment1. Any amendments permitted any time if ∆ does not object
2. When amend sought before trial
(a) GR= Any amendment is permitted whether form or substane
(b) Not permitted over ∆'s objection & would cause indictment to allege different offense OR additional offense OR prejudice the substantial rights of the ∆
3. Any other time amendment proposed ≠ allowed over objection - 33Amendment Procedure1. ∆ is entitled to advance notice
2. Trial court must authorize an amendment
2. If indictment is amended & ∆ requests must have not less than 10 days to prepare - 34How does Prosecutor Get Indictment Amended1. State should file a motion for leave to amend
2. ∆ must be given adequate notice of the proposed amendment
3. Trial judge holds hearing & decided whether to order amendment
3. IF authorized, amendment must be made on actual indictment - 35ArraignmentTakes place in trial court
1. Accused enters a plea
2. Point for fixing accused's identity
3. If not done then judge appoints counsel - 36Admonitions Trial Judge Must Give Before Accepting Felony Plea of Guilty of Nolo Contendre1. Inform ∆ range of punishment
2. Inform ∆ that recommendations of state ≠ binding
3. Inform ∆ of limited right after guilty plea to appeal
4. Inform ∆ that plea may result in deportation, exclusion from the US
5. Inquire if there is plea bargain - 37Withdrawal of PleaGuilty Plea can be withdrawn anytime before trial court takes matter into advisement
Note: cannot be used as evidence - 38Pre-Trial Matter1. Trial judge may (≠ required) set case
2. If pretrial hearing & conference is set parties must do certain things 7 days before
a) enter any special plea
b) make challenges to the indictment
c) make motions for continuance
d) make motions for change of venue
e) make motions to suppress evidence
f) make requests for discovery
g) raise claims of entrapment - 39∆'s Right at Pretrial∆ has right to be present at ANY pretrial proceeding
- 40Motion In LiminePre-trial motion that asks for either (or both):
1. Pre-trial ruling on merits of some Q of evidence or procedure that will arise
2. A pre-trial ruling that opposing counsel must alert the judge before raising some matter of evidence or procedure - 41Preserving Error for Pretrials Motion1. Pre-trial ruling on motion to suppress does preserve issue for appeal
2. Pre-trial ruling on motion in limine does not preserve issue for appeal - 42Witness Lists1. GR= State MUST provide the ∆ w/ a list of W's that the state intends to call
2. EW list- On the ∆'s request State MUST provide the ∆ w/ list (name & addresses) of EW it may call at least 20 days before jury selection - 43DepositionsEither side may be permitted to depose
1. Trial Judge must issue an order authorizing
2. To obtain party must show good reason - 44Inspection or Real Discovery1. Trial Judge has the authority to order the State to permit ∆ to inspect certain things.
A) Inspection must be ordered if
(i) tangible
(ii) constitutes or contains material evidence
(iii) Is in possession of the State
(iv) is not "work product"
B) Inspection if ordered--> can't give up possession
C) Must be sufficient to give accused time necessary to prepare for trial - 45Unlisted WitnessThe trial judge has the discretion to exclude or admit the testimony of a W left off an ordered W list. Relevant considerations include
1. Whether omission was intentional
2. Whether ∆ received actual notice - 46Trial Court Authority About ∆'s W's1. Authority to compel the ∆ to provide the State w/ list of EW, names & addresses. Enter an order.
2. No authority to compel ∆ w/ summary of the anticipated testimony
2. W/ regard to non-EW the court has no authority to provide State w/ any info - 47Brady EvidenceVoilation Due Process Right To Disclose
1. The prosecution fails to disclose favorable info that is in its possession
2. Information is "material" which means if it had been disclose there is a reasonable probability that outcome would be different - 48Exculpatory Evidence1. Prosecution has a due process duty to disclose
2. Evidence impeaches prosecution W= material
3. Evidence must be disclosed if in possession
a) trial prosecutor
b) another prosecutor
c) the police
4. COnviction is invalid for nondisclosure only if nondisclosure exculpatory evidence is matererial - 49Legal Presumption of ∆'s Competency1. ∆ is competent
2. To rebut ∆ must show by preponderance of evidence that SIms lacks
(a) ability to consult w/ counsel
(b) lacks understanding of proceedings - 503 Differences btw Incompetency & Insanity1.Relevant time: Insanity= time of offense Incompetancy= time at trial
2. Standard Applied: Insanity= did not know conduct was wrong incompetency: could not consult w/ counsel
3. Result: Insanity= not guilty by reason of insanity Incompetency: (temporary) bar to proceeding - 51Venue1. GR= venue lies in county where crime committed
2. ∆ may seek change in venue b/c
a) prejudice in county would prevent fair trial
b) dangerous combo of influential persons against ∆
3. State may seek change of venue b/c
a) combo of influences in favor of ∆ would prevent fair value
b) lawless conditions prevent fair trial
c) life of ∆ or W would be jeopardized local trial
4. Trial Court may change venue b/c trial fair & impartial to ∆ & ≠ held - 52Procedure to Change Venue∆ counsel must file
1. A written motion to for change of venue
2. Affidavits that a fair trial cannot be held in county by
a) ∆ and
b) 2 credible residents
At the hearing must present evidence showing sufficient prejudice to prevent.
Must be filed 7 days before pre-trial hearing. Failure to do so will prevent later motion unless court gives permission for good cause shown. - 53JUdge DQ'dA judge is DQ'd only
1. Judge was victim of crime
2. Judge was lawyer for either side
3. Judge is related 3 degrees by either blood or marriage to either ∆ or
4. Bias - 54Presence of Accused in Felony Case Or Misdemeanor Punishable By Jail Time1. Jury case: through swearing in of jury
2. Nonjury: through ∆'s plea to the indictment
And the ∆ must be present at the end for formal sentencing
BUT if ∆ is voluntarily absent in the middle trial may proceed - 55Presence of Accused in Fine-Only Misdemeanor Case∆ can be absent b/c she may appear by counsel if prosecutor consents
- 56General One Offense Rule= Joinder of Offenses1. An indictment may allege only one offense. If charges more than can be quashed.
2. A ∆ may only be tried only on indictment. If ∆ is scheduled for trial on several the ∆ is entitled to have trials severed. - 57Criminal Episode Exception1. State may join in one indictment all offenses arising out of one "criminal episode" & the ∆ will be tried for all of these in one trial
2. If several charges--> each must be in separate count
3. If ∆ is charged in different indictments w/ offenses all from one episode State can consolidate
4. Same criminal episode IF same transaction, common scheme, same/similar offense
5. State ≠ required to seek trial together
6. ∆ who is scheduled for trial together on multiple charges b/c those charges arose from same criminal trial has an absolute right to have the charges severed
7. ∆ is charged one criminal episode has concurrently BUT if severed may be consecutive - 58Joinder of ∆'s1. Several ∆'s may be charged in one indictment & tried together if same offense
2. Several ∆'s may be joined if a) same offense b) charged w/ different offenses arising out of same transaction
3. MANDATORY SEVERANCE: ∆ moves for severance & shows co-∆ have a prior conviction admissible against that co-∆ at trial
4. PERMISSIVE: Judge has discretion & should grant if joint trial would be prejudicial to ∆ who moved for severance - 59ContinuanceGenerally a motion
1. Must be in writing
2. Be supported by a showing of good cause and
3. Be sworn
Motion made after trial must be
1. Based on occurrence that happened after trial began
2. Occurrence could not have been anticipated
3. Surprise must be such as to prevent fair trial
NOTE: Trial judge has discretion - 60Motion of Continuance to Obtain Missing W'sMust allege
1. Name & residence of missing witness
2. Efforts made by ∆ to find & get W's to court and
3. Material facts ∆ expects to prove by W - 61∆'s 6A Right to Effective Counsel6A's rights violated if
1. Poor performance (beyond bounds professional competence) &
2. Reasonable probability that counsel had been effective results would have been different
Representation not effective if counsel
a) fails to conduct adequate investigation
b) fails to convey to client an offer - 62Dismissal By State1. The State may dismiss some or all charges brought
a) File written statement of reasons
b) Trial judge must consent
2) No further prosecution may occur if a dismissal occurs after jeopardy attaches - 63Waiver of Jury Trial On Guilt1. Jury trial can be waived except in prosecutions for capital murder where State seeks death penalty
2. Waiver of jury trial requires consent & approval of
a) the prosecutor; and
b) the trial court - 64MistrialWhen the jury cannot agree can be discharged & a mistrial declared if
1. Both parties agree OR
2. The Court finds that the jury has been kept long enough to render it altogether impossible - 65Jury Selection1. Swearing in the panel
2. Qualifications of the panel member to be a judge
3. Possible jury "shuffle"
4. Voir Dire of the jury panel members
5. Challenges for cause
6. Preemptory Challenges
7. Empaneling th ejury - 66Legal Qualifications to Serve on Jury1. Are you a qualified voter in this county & state?
2. Have you ever been convicted of theft or any felony?
3. Are you under indictment or accusation of theft or any felony? - 67Challenge for Cause1. Challenge to a member of the jury panel on the basis of one of the grounds specified in Texas Code of Criminal Procedure
2. No limit but must be justified statutory grounds - 68Statutory Challenges for Cause1. Prior conviction for theft or felony
2. Under formal charge of theft or felony
3. Insane
4. Not qualified to be a voter
5. Is a W in the case
6. Served on a jury in prior trial in case
7. Served on indicting grand jury
8. Cannot read & write
9. Bias or prejudice for or against accused
10. Bias or prejudice - 69Preemptory Challenge1. Mechanism to strike jurors w/ no exercise or justification
2. Each side in criminal trial gets limited # of preemptory challenges
3. Can not be asserted on race or gender
BUT
a) capital murder death penalty cases: 15
b) other felony: 10
c) Misdemeanors in county: 3
d) Misdemeanors tried in district: 5 - 70Custodian of RecordsFor document to be admitted need to show
1. Kept in regular course of business w/ knowledge of the matter to make the records
2. Entries made time & near the events
3. W is custodian of records - 71Challenging Attorney Who May Be Using Preemptory Strikes Improperly1. Make a Baston Challenge on grounds that exercised peremptory challenges on __ grounds
2. Move to dismiss array of prospective jurors
3. Motion should be made
(a) after each side submitted list of jurors it challenges
(b) Before trial court empanels the jury - 72Order of Proceeding in Texas Felony Trial1. Judge calls for & parties give announcement of ready
2. Prosecutor reads indictment
3. ∆ counsel enters pea for ∆
4. Prosecutor makes state opening statement
5. Prosecution presents states case in chief
6. ∆ counsel makes ∆ opening statement
7. ∆ presents ∆ evidence
8. Rebuttal Evidence is presented
9. Judge reads the charge to the jury
10. COunsel make final argument to jury
Exception: Upon request can make ∆'s opening statement to jury - 73Trial Motion for Acquittal W/o going to JuryMotion for a Directed Verdict of Not Guilty. Should be made both
1) at the end of the State's case-in-chief
2) at close of evidence
If made b/c evidence of venue is lacking specify this - 74Methods of Impeachment1. Bad conduct (prior convictions)
2. Contradictions
3. Showing Character for untruthfulness
4. Showing Bias or Interest - 75Impeachment w/ Bad ConductW may be impeached by showing prior bad act but only by showing
1. Conduct resulted in final criminal conviction
2. Not more than 10 years
3. Conviction was for misdemeanor that involved moral turpitude or a felony AND
4. Probative value substantially outweighs - 76The Rule1. Upon request of either party W's must be excluded from courtroom except
- 77Grand Jury DeliberatingOnly grand jurors allowed in room
- 78Motion to Quash Indictment1. Be in writing
2. Filed before the day on which trial on the merits begins
3. Specify the particular aspect of the charging instrument ∆ regards as defective - 79Elect Jury Assess PunishmentTo elect jury sentencing
1. Writing
2.Before commencement of the voir dire examination of jury panel - 80Confrontation Clause Problem1. Forensic analyst who conducted testing must testify must testify & be subject to cross-examination
- 81Requirements for Habeas Corpus1. state that ∆ is illegally restrained
2. Attach a copy of the order confirming him
3.Pray for writ of habeas corpus
4. Swear allegations are tru - 82Discovery Statutory RequirementAny written or recorded statement made by W or law enforcement officer must be disclosed to ∆.
- 83Evidentiary WarrantAffidavit must also establish p/c of
(i) specific offense being committed
(ii) described property are evidence - 84If indictment not read & entry of plea not done1. Can be fixed later during trial
2. Upon learning, indictment read to jury & ∆ answer plea - 85Recording of Confession1. Prosecutor must provide 20 days before trail
2. Oral confessions are disfavored but can be admissible if they are accurately recorded, reflect that the accused was warned of his rights & he knowingly & voluntarily waived, all voices recorded were identified - 86Appointed Lawyer1. Make every reasonable effort to contact her no later than end of 1st working day after date of being appointed
2. If fail to meet deadline may be reappointed - 87Search WarrantMust contain
1. Statement that it runs in the name of Texas
2. Specification of person, place, or thing to be searched
3. Specification of items to be seized
4. Endorsement of date & hour issues
5. Signature of Issuing Magistrate - 88Grand Jury Composition1. 12 juror & two alternate
2. 9 must concur for there to be a true bill - 89Capias1. Writ issued by a judge that directs a peace officer to arrest a person accused of an offense & to bring the arrested person before a court immediately or on a day specified
- 90If ∆ pleads guiltyJury may be impaneled to assess punishment if ∆ elects jury sentencing
- 91Move to inspect1.Demonstrate tangible item
2. Contains material evidence
3. Is in possession of the state
4. Not work product - 92Eligibility for Probation∆ must file
1. Sworn application for probation
2. in writing
3. that ∆ never convicted of felony
Application must be filed pretrial - 93Shuffle1. Jury is randomly reseated
2. One shuffle per case
3. Must be requested before voir dire - 94Extraneous Offense Evidence1. GR: Inadmissible b/c can't prove conformity w/ bad character
2. May be admissible if shown MIMIC
[M] Motive
[I] Intent
[M] Mistake
[I] Identity
[C] Common Scheme or Plan - 95Std for Legal SufficiencyViewing evidence in light most favorable to the state, could a rational jury have found all the elements of the crime proved beyond a reasonable
- 96Requirements of the Rule1. Court can exclude W's from the courtroom
2. Court should also admonish each W to - 97Jury Charge1. trial judge develops proposed jury charge & submits it to both side
2. Does not summarize or comment on the evidence
3. judge must read the charge, done before lawyers make final arguments, jury given written copy
4. Error can be preserved by objection or request for special charge containing correct law - 98Oral Objection to Jury Charge1. Dictated to court reporter
2. In presence of judge and the prosecutor and
Done before final charge read to jury - 99Error in Jury ChargeSubject to harmless error criteria under which a conviction may be revered for "fundamental" error despite lack of trial objection
1. Preserved error requires reversal if results in "some harm"
2. Unpreserved error requires reversal but only if it results in "egregious" harm - 100∆ entitled to jury instruction on failure to not testifyInstruction should tell jury that ∆ has a right to not testify and his failure should not be taken as circumstance against him. Should be made clear ≠ adverse inference.
- 101Elements of Crime1. Must be pleaded
2. Jury always instructed
3. BOP on state
4. Beyond Reasonable Doubt - 102Exceptions1. Pleaded b/c negated in charging instrument
2. Jury always instructed
3. BOP on state
4. Beyond Reasonable Doubt - 103Defenses1. Don't need to be pleaded
2. Jury is instructed if evidence supporting is produced
3. BOP on state
4. Beyond Reasonable Doubt - 104Affirmative ∆1. Doesn't need to be pleaded
2. If evidence supporting affirmative ∆ is produced
3. BOP is on ∆
4. Perponderance - 105Permitted Final ArgumentsGR limited to 4 arguments
1. Summation of the evidence
2. Making reasonable deductions from evidence
3. Answering arguments of opposing counsel and
4. Making pleas for law enforcement - 106Not Permitted in Final Arguments1. Comment on ∆'s invocation of self-incrimination rights
2. Express personal opinions
3. Argue what the community demands or
4. Strike at ∆ over the shoulder of ∆ counsel - 107Prosecution CommentingProsecution can't comment on
1. ∆'s failure to testify
2. ∆'s silence after arrest & Miranda warnings
3. (under Tx Law) ∆'s silence after arrest BUT
4. Prosecution can comment on silence before arrest - 108Accomplice Witness Rule (need corroboration)1. Accomplice W= W that could be convicted of the crime charged
2. ∆ cannot be convicted on the testimony of an accomplice unless there is corroborating evidence that tends to connect the ∆ to the crime - 109Corpus Delicti RuleA ∆ cannot be convicted on an out-of-court confession unless there is corroborating evidence of the "corpus delicti" that is evidence tending to show that a crime was in fact committed
- 110Jailhouse SnitchA conviction cannot rest on the testimony of a person to whom the ∆ made a confession while that person was confined in jail. Testimony must be corroborated by testimony tending to connect the ∆ to the offense
- 111Jury Wants to Find Out What Was Testified1. If jury disagrees about W's statement, the jury may request of the judge that the court reporter read about the relevant testimony to them from his or her notes.
2. If court reporter unavailable/not able to read notes--> the jury can request W be brought back to the stand to repeat RELEVANT portion of testimony - 112Election for jury sentencingMay be invoked by timely election. Needs to be filed before voir dire begins.
- 113Sentencing: Assessment of Punishment1. ∆'s have right to have trial jury also assess punishment
2. State can't have jury assess if ∆ fails to elect jury sentencing
3. ∆ who waived jury trial on guilt-innocence may elect jury sentencing here - 114Relevant Matters for Sentencing1. ˙∆'s prior criminal record
2. ∆'s general reputation
3. ∆'s character & opinion testimony
4. Circumstances in which found guilty
5. Juvenile Court Conviction
6. Evidence of extraneous crimes - 115Court Obligation Towards Honoring Plea Agreement1. Court not required to follow plea agreement.
2. If court refuses to impose sentence recommended by prosecutor, the court must allow ∆ to withdraw - 116Not required to Prepare Presentence ReportJudge not required to direct a presentence report if
1. The punishment is assessed by a jury
2. The only available punishment is imprisonment
3. The judge is informed that a plea bargain exists under which ∆ agrees to imprisonment OR
4. ∆ convicted of capital murder - 117∆ can request two types of notice from prosecutor∆ can request two kinds of notice
1. Rule 404 (b) = extraneous offense (at guilt)
2. Art 307.7 §3(g) notice of extraneous offense (at punishment)
The notice must specify w/ regard to each crime or bad act
1) the date at which it occurred
2) The county to which it occurred
3) the name of the victim - 118What if ∆ plead guiltyTx Code of Criminal Procedure allows a ∆ to plead guilty but still elect a jury to assess punishment
- 119What if ∆ wants to change after being found guilty1. A ∆ may change an election regarding assessment of punishment after finding of guilt.
2. BUT prosecutor MUST consent - 120Eligibility for Community Supervision∆ is eligible for community supervision if sentence assessed does not exceed 10 years
- 121Jury Recommendation for Community Supervision1. if ∆ has filed before trial a sworn motion for community supervision jury may reccommend
2. Must make a finding that no prior felony conviction
3. May not recommend IF
(i) ∆ was convicted at the sale of a controlled substance to a minor &
(i) 21 or older at time - 122Revocation of Community Supervision1. May be revoked, after hearing, upon a showing that ∆ violated the terms of the community supervision
- 123Shock Adjudication1. Sentence of imprisonment imposed & ∆ begins to service
2. During 180 days of term of imprisonment the ∆ brought back to court
3. Sentence is suspended & ∆ placed on community supervision - 124Deferred AdjudicationProcedure under where the trial court places the ∆ on community supervision w/o actually finding ∆ guilty b/c "defers" finding of guilt
- 125Eligibility for Deferred Adjudicationa) charge is offense other than
(i) DWI, FWI, BWI
(ii) intoxicated assault
(iii) intoxication manslaughter
b) ∆ enters guilty or nolo contendre plea - 126Procedure for Deferring AdjudicationTrial Court must
a) receive ∆'s plea of guilty or nolo contendre
b) hear evidence
c) find that evidence substantiates ∆'s guilt
d) inform ∆ of the consequences of violating- ∆ could get can any range of punishment - 127Ways Deferred Adjudication Differs From Probation1. ∆ must be found guilty before probation, DA involves no finding
2. ∆ can get regular probation after plea of not guilty, DA requires plea of guilty or nolo contrende
3. If DA is revoked can be given any sentence in statutory range - 128Case resolved by plea bargainVictim must be notified about existence & terms of plea bargain.
- 129Motion for New TrialMust be
1. Filed w/in 30 days of pronouncement of sentence
2. Presented to court w/in 10 days of filing - 130Grounds for New Trial1. Continuing trial where ∆ required to be present & was not
2. Verdict was decided by lot
3. ∆'s right to counsel was violated
4. Juror was bribed or engaged in other corrupt conduct
5. Jurors received evidence after retiring to deliberate
6. Juror conversed about the case w/ someone not on the jury
7. New evidence has been discovered - 131Move for a New Trial on Basis of Newly Discovered EvidenceA new trial should be granted only if new evidence is material which means
a) unknown to ∆ before trial
b) failure to discover the evidence earlier was not due to ∆'s lack of diligence
c) Evidence is competent & not merely collateral or impeaching
d) so persuasive that it probably would have caused a different result
Must file motion w/ 30 days of sentencing & present to court w/in 10 days - 132Complaint1. Sworn statement that alleges p/c to believe someone committed a crime
2. Must be
a) Writing
b) name of offense & date of crime *if knowable*
c) specify name & description - 133Arrest Warrant1. State name of person to be arrested or physical description
2. State name of offense
3. Signature of issuing magistrate
4. State judicial office - 134Due Process- EWB/c due process indignant ∆ entitled to appointment of expert included psychiatrist if likely going to be significant issue
- 135Selection Grand Jurors1. Grand Juror Commissioners
2. Same way as civil jurors--> prospective jurors are summoned, test qualifications, & then impanel - 136Evidence Proven on Science1. Underlying scientific theory= valid
2. Technique is valid
3. Technique properly applied - 137Insanity ∆1. Must file w/ court a notice of 's intention
2. If pre-trial hearing= ∆ must give notice
3. None≠ be filed 20 days before - 138When ∆ served with process10 days from service t
- 139Batson Challenge1. Challenge to the array
2. Striking all one gender = prima facie case of gender motivation
3. Side can rebut by presenting gender-neutral reasons
4. Party challenging has the burden persuading - 140Impeachment of MisdemeanorOnly if moral turpitude
- 141Less Serious Offense1. That offense is a lesser included offense
2. Evidence that ∆ is guilty of lessor - 142Violation of 6A Right to Adequate Counsel1. Counsel's failure to investigate was below the std of professional conduct
2. Reasonable probability that if performed the outcome would be differnt - 143BailSecurity given by ∆ to assure that will appear in court against accusation
- 144Have Jury Recommend Community Supervision1. File sworn motion for community supervision
2. State ∆ has never been convicted of felony - 145Pretrial Motion to Suppress Testimony of Confession1. Evidence that ∆ orally confessed during custodial interrogation ≠ inadmissible unless exception
- 146Juror Becomes Disabled1. If in felony juror becomes disabled but before instructions are read then remainder can reach valid
2. BUT ALL must sign on - 147Right to voir dire of EW1. Yes in criminal case
2. Voir dire on underlying facts & data - 148AppealMust be done 30 days of formal sentencing
- 149Portions of Jury Charge1. Abstract
2. Application = incorporate specific allegations & instruct jury what mind find - 150Affidavit Accompanied w/ Search Warrant1. Specific offense committed
2. Evidence tends to prove offense was committed OR who
3. Evidence located in location - 151Compel Party to Appear as W1. Obtain a subpoena
2. If doesn't work then look for attachment - 152Police Reports1. Work product exempt during pretrial discovery
- 153State not Ready for Trial Consequences1. Felony case
2. Not ready in 90 days
3. ∆ entitled to have bail reduced or personal bail - 154Pretrial Deposition1. File a motion for order providing depo
2. Supported w/ sworn affidavit stating good reason
3. Court has hearing
4. Show good reason= testimony is material & W will be unavailable - 155Search Warrant Affidavit on Falsified Facts1. Officer misstated facts
2.Did this intentionally or reckless disregard
3. Material - 156Reqs for business records1. Records kept in ordinary course of business
2. Person w/ knowledge made them
3. Entries made near time of event
Information
- Description
- Flashcards on Criminal Law Tx , created by Erika Lopez on 14/07/2017.
- Created by
- Erika Lopez · Jul 2017
- Updated
- Jul 24, 2017
- Views
- 0
- Rating