TEXAS CRIMINAL PROCEDURE PROFESSOR DRU STEVENSON SOUTH TEXAS COLLEGE OF LAW

Transcription

1 TEXAS CRIMINAL PROCEDURE PROFESSOR DRU STEVENSON SOUTH TEXAS COLLEGE OF LAW CHAPTER 1: ARREST, SEARCH, AND SEIZURE A. Arrest Arrest is a seizure f the persn and is the taking int custdy t answer a criminal charge. 1. Arrest with Warrant An arrest warrant has three statutry requirements. They are: f the persn t be arrested signature T btain an arrest warrant, an fficer must file a, which is a swrn affidavit that charges a cmmissin f a crime and cntains facts that allw a determinatin f prbable cause. The basic requirement fr any arrest, with r withut a warrant is that it be supprted by. The rule that the magistrate in issuing the warrant cannt cnsider anything utside the swrn affidavit fr the warrant (the cmplaint) is called the rule. A may be issued in lieu f the arrest warrant. In the same frm as a warrant but it directs the persn summned t appear at a particular time is merely served n the defendant A is a bench warrant fr a persn's arrest In executing the arrest warrant, the fficer may use frce, but can break dwn a dr t make an arrest nly if entry is refused after ntice. Texas allws executin f an arrest warrant at any time, day r night. 2. Arrest withut Warrant In Texas, an fficer must have an arrest warrant t make an arrest unless the arrest is pursuant t ne f nine exceptins, all f which require. The exceptins are when the persn: Cmmitted the ffense in the fficer s presence;

2 Cmmitted an ffense invlving bdily injury and is likely t cause further injury; Vilated a prtective rder (arrest mandatry if in the fficer s presence); Cmmitted a family-vilence ffense; Prevented r interfered with an emergency call; Cmmitted a felny, breach f the peace, r public intxicatin and is fund in a, which has been interpreted t mean that prbable cause has arisen in the presence f the fficer; Cmmitted a felny and is abut t escape s there is nt time t btain a warrant; Prvided prbable cause by his ; Pssesses stlen prperty discvered by the fficer. 3. Citatin in lieu f Arrest An fficer has discretin t issue a citatin t appear in curt ( ticket ) in lieu f an arrest fr the fllwing: Traffic ffenses, except and vilatins fr which a citatin is mandatry; Any Class C (fine-nly) misdemeanr except public intxicatin; and Certain Class A and B misdemeanrs, e.g., theft, minr damage t prperty, and pssessin f less than fur unces f marijuana. 4. Jurisdictin fr Warrantless Arrest Any peace fficer utside his jurisdictin can make a warrantless arrest f any persn wh, within the fficer s view, cmmits a, disrderly cnduct ffense, breach f the peace, r public intxicatin. Lcal peace fficers can arrest fr any ffense cmmitted in their view, except nly city plice may arrest fr traffic ffenses and nly thse cmmitted in the cunty where the city is lcated. 5. Executing the Arrest Arrest f a defendant at his residence requires a valid arrest warrant unless the fficer acting withut a warrant has r there are circumstances. B. Search and Seizure 1. Regular Search Warrants a. Issuance Requires a swrn affidavit cntaining facts frm which the magistrate can determine fr issuing the warrant, that is, a reasnable belief that (i) smething subject t seizure (ii) is n the certain premises (iii) at the time the warrant is issued Themis Bar Review, LLC TX Criminal Prcedure

3 The warrant may be issued by any magistrate, defined as any judge r the mayr r recrder f an incrprated city r twn. b. Requirements The warrant must: Run in the name f the State f Texas; Identify ; the persn, place, r thing t be searched; Cmmand any peace fficer t search the persn, place r thing named; and Be dated and signed by the magistrate. The warrant may be issued fr: ; Instrument f a crime; f a crime; Evidence f a crime; r A persn, if lcated in a third party's huse. c. Cmbinatin Warrant The magistrate may issue a warrant authrizing bth a search and an arrest based n prbable cause fr bth, called a cmbinatin warrant. 2. Evidentiary (Mere Evidence) Search Warrants An evidentiary search warrant is a warrant t search fr and seize prperty r items, except persnal writings f the accused, cnstituting evidence f an ffense r tending t shw that a particular persn cmmitted an ffense. a. Issuance Only judges wh are licensed attrneys may issue may issue evidentiary search warrants, except any magistrate may issue the warrant if: The nly licensed-attrney judges are judges f districts including mre than ne cunty; r The warrant is fr a bld sample frm a persn arrested fr a DWI-related ffense wh refuses t give a breath r bld alchl sample. A subsequent evidentiary warrant can nly be issued by a judge, r a judge f a curt f appeals, the curt f criminal appeals, r the Supreme Curt. b. Requirements and Limitatins The affidavit fr an evidentiary search warrant must have facts establishing: TX Criminal Prcedure 2018 Themis Bar Review, LLC 3

4 that a specific ffense has been cmmitted; Specifically described prperty t be seized cnstitutes f an ffense; and The prperty can be fund in a particular place r n a particular persn r thing. The evidentiary search warrant may nt issue fr: f the accused; r Mere evidence in a news media ffice r radi r televisin statin. Only the mere evidence in the warrant may be seized but the dctrine will allw seizure f nn-evidence items, such as cntraband r instruments f a crime. 3. Executin f Warrants Time Limit: Within days f its issuance, excluding the day f issuance and the day f executin; r Within days fr a warrant fr a DNA specimen 4. Inventry The fficer must prduce a cpy f the warrant and leave a cpy f the inventry and bring the prperty t the magistrate with a cpy f the inventry. 5. Special Warrants a. Wiretap May be issued nly: On t believe it will reveal evidence f the felny ffense f, child prngraphy, r a felny ffense; By the wh has been appinted by the presiding judge f the Curt f Criminal Appeals; and Fr 30 days with 30-day extensins. b. Pen Register A device fr recrding phne numbers called May be rdered fr up t days c. Trap and Trace Device A device fr mnitring the rigin f phne calls May be rdered fr up t days Themis Bar Review, LLC TX Criminal Prcedure

5 CHAPTER 2: JURISDICTION, VENUE, LIMITATIONS OF ACTIONS, AND PRETRIAL PROCEEDINGS A. Criminal Jurisdictin f the Trial Curts The has jurisdictin f: ; and Misdemeanrs invlving fficial miscnduct; and The has jurisdictin f: Misdemeanrs punishable by jail time; and Appeals frm the curts and justicef-the-peace curts ("justice curts"). The municipal curts and justice curts bth have: Jurisdictin f ffenses The municipal curts have exclusive riginal jurisdictin f city rdinances. Cncurrent Jurisdictin If a municipal curt and justice curt have cncurrent jurisdictin, the case will be handled in the curt in which h it was. B. Venue: The Prper Lcatin fr the Trial 1. General rule Venue is prper in any cunty where any f the ffense has ccurred. 2. Special Rules If part f the ffense ccurs utside Texas, the ffense may be prsecuted in any Texas cunty in which, r where sme element ccurred. If venue cannt be readily determined, venue is prper in any cunty in which the defendant, was apprehended, r t which he was extradited. The has the burden t prve venue by a f the evidence. If the issue f venue is nt raised at trial, prper venue is presumed n appeal unless the recrd affirmatively. C. Statute f Limitatins 1. General rule In the case f a felny, the indictment must be presented within years f the cmmissin f the ffense. TX Criminal Prcedure 2018 Themis Bar Review, LLC 5

6 In the case f a misdemeanr, the infrmatin must be presented within years f the cmmissin f the ffense. 2. Exceptins There are n limits fr: ; Manslaughter; Certain sexual assaults; Cntinuus sexual abuse f yung child; with a child; and Leaving the scene f an accident resulting in. Editr's Nte 1: There is n statute f limitatins fr sexual assault (a) f a child, (b) when prbable cause suggests the defendant cmmitted a similar sexual ffense against at least five victims, r (c) when frensic evidence is available fr DNA testing. In all ther cases, the statute f limitatins fr sexual assault is 10 years. There is a -year limit fr: Theft frm an estate r by a public servant; Frgery; Arsn; and Injury t an elderly r disabled persn punishable as a felny. There is a -year limit fr: Misapplicatin f fiduciary prperty r prperty f a financial institutin; Securing executin f a dcument by deceptin; Felny tax vilatin; Mney laundering; Credit card abuse; and Identity theft. There is a -year limit fr: Theft; Rbbery; Burglary; Kidnapping; Injury t a child, elderly, r disabled individual nt punishable as a felny f the first degree; Abandning r endangering a child; r Insurance fraud Themis Bar Review, LLC TX Criminal Prcedure

7 There is a special -year limit frm the 18th birthday f a child wh was the victim f the ffense f: Sexual perfrmance f a child; r Kidnapping r burglary f a habitatin cmmitted with the intent t cmmit a sexual ffense against a child. There is a special -year limit that cunts frm the 18th birthday f the child in the case f injury t a child. 3. Tlling Time during which the accused is absent frm the state, r time when a prir indictment r infrmatin fr the ffense was pending, is nt cunted. D. Pretrial Prceedings 1. Initiating a Criminal Prsecutin First appearance befre a magistrate Must ccur but n later than hurs fllwing arrest Als knwn as an Article hearing, magistratin, and (incrrectly) arraignment Magistrate must infrm the accused f: The charges against him; His right t remain silent; His right t ; His right t have an attrney present during any ; His right t terminate a prsecutrial interview; and His right t an examining trial Magistrate may: Make a prbable cause determinatin, which must be made Within hurs in a misdemeanr case; and Within hurs in a felny case Set bail; Make a determinatin f indigence and advise hw t get an attrney appinted if defendant cannt affrd t hire ne. Cannt make the determinatin based n. TX Criminal Prcedure 2018 Themis Bar Review, LLC 7

8 Appinted Cunsel is: T make every reasnable effrt t cntact defendant n later than the first after appintment; T interview the defendant as sn as practicable; and Required t have at least days t prepare fr any prceeding. 2. Examining Trial a. Purpse Determinatin by magistrate whether there is t hld the accused fr trial b. When Only if defendant is charged with a felny; and N indictment has been returned c. Prcedure The rules f evidence apply; The defendant has the right t an attrney; The defendant has the right t witnesses; and The defendant has the right t make a statement, swrn r unswrn. d. Result Order cmmitting defendant t, discharging him, r admitting him t bail; r A finding f n prbable cause if n rder within 48 hurs N jepardy, s can be charged again 3. Bail a. Purpse Secure defendant's appearance at trial b. Types 1) Defendant prmises t pay full bail amunt if he des nt appear 2) Defendant lses bail amunt if he des nt appear 3) Bail r surety bnd Third party prmises t pay full bail amunt if defendant des nt appear Themis Bar Review, LLC TX Criminal Prcedure

9 c. Factrs in Setting High enugh t assure appearance at trial Nt used t punish The f the ffense The ability f Defendant t make bail Future safety f the victim and the cmmunity d. Limiting Cnditins The judge may impse any reasnable cnditin related t the f the victim r the cmmunity, e.g., prhibitin t visit alleged victim, limitatins n driving If defendant vilates a cnditin: State must prve by a prepnderance f the evidence Bail is revked and the magistrate can require new bail e. Denial by Judge May be denied abslutely if: There is evidence that defendant will be fund guilty f capital murder and will receive the death penalty; r There is a f evidence that a family vilence defendant has vilated a cnditin f bnd related t the safety f the victim f the ffense r the safety f the cmmunity. May be denied fr days if: There is substantial evidence f guilt f a charged felny ffense and: The defendant has tw prir felny cnvictins; The felny was cmmitted while the defendant was ; The felny invlved the use f a and there was a prir felny cnvictin; OR The felny is a vilent r sexual ffense felny while n prbatin r parle. f. Release A defendant making bail is entitled t immediate release, EXCEPT: A family-vilence defendant may be held fr Up t hurs after making bail if there is prbable cause t believe that vilence will cntinue; r TX Criminal Prcedure 2018 Themis Bar Review, LLC 9

10 Up t hurs by a magistrate s rder if there have been prir arrests fr family vilence r a deadly weapn was invlved. g. Challenge Defendant may challenge bail by petitin fr writ f habeas crpus claiming the bail is. h. Off Bnd A surety can g ff the bnd by filing an stating reasns t be allwed ff the bnd. If curt accepts reasns, it will issue a capias fr the re-arrest f the defendant. CHAPTER 3: PRETRIAL PROCEEDINGS (CONT.) A. Grand Jury 1. In general Minimum f 12 jurrs and 4 alternates Editr's Nte 2: This rule has changed since the recrding f this lecture. The crrect rule fr the minimum number f grand jurrs t be selected is prvided abve and in yur full substantive utline. Prceedings held in secret Purpse is t make a prbable-cause determinatin Defendant usually nt present N exclusinary rules 2. Indictment A defendant: Has the right t be charged by a grand jury indictment if the ffense is a ; May waive right t grand jury indictment EXCEPT in cases f capital murder. 3. Selectin The grand jury may be selected: Frm the ; r By cmmissiners appinted by the curt 4. Qualificatins A grand jurr must: Be a f the cunty and qualified t vte; Themis Bar Review, LLC TX Criminal Prcedure

11 Be f sund mind and gd character; Be able t read and write: Never have been cnvicted f a r f misdemeanr theft; Nt be related within the third degree f cnsanguinity r secnd degree f affinity t a persn selected t be n the grand jury; Nt have served n the grand jury the year befre this grand jury s term; and Nt be a cmplainant in any matter t be heard by the grand jury. 5. Array (venire) All the persns summned t serve, but nt yet impaneled n a grand jury Up t 125 peple May be challenged n the grund that: They are nt the same peple cmmissiners selected; r There was crruptin in the way ne r mre were selected 6. Mtin t Set Aside Indictment Grunds fr setting aside the indictment are: Fewer than grand jurrs vted t return the indictment; An unauthrized persn was present during deliberatins r ; r The grand jury was illegally impaneled and the defendant did nt have a reasnable pprtunity t challenge the array. The indictment cannt be challenged because f the insufficiency r nature f the evidence. 7. Nature f Prceedings: Cases presented by the ; Prceedings are secret and nly the may be present during deliberatins and vting; Grand jury has subpena pwer and witnesses wh refuse t answer questins may be jailed fr cntempt and fined unless they make a valid claim f self- incriminatin; A witness may be cmpelled t answer if granted frm use f their testimny by ; Questins and answers t an accused r suspected persn are recrded; 8. Rights f Accused r Suspected Persn An accused r suspected persn must be advised f: The ffense f which he is suspected; The place f its cmmissin; and The time f its cmmissin. If subpenaed t appear, the accused r suspected persn must be warned that: TX Criminal Prcedure 2018 Themis Bar Review, LLC 11

12 His testimny is under ath; Giving false answers t material questins is ; He has the right t refuse t answer any questins; He has the right t have a lawyer t give advice; Any testimny culd be used against him in a subsequent prceeding; and He has the right t an if he is indigent. 9. Bill f Indictment The presentment t the grand jury becmes a true bill f indictment if at least grand jurrs vte fr it and it is signed by the frepersn, and a if they d nt. B. Frmal Charging Dcument The charging dcument is: An fr a felny; An fr a Class A r B misdemeanr subject t jail time; and A fr a Class C misdemeanr. 1. Indictment a. Requirements: Cmmences In the name by the authrity f the State f Texas ; Appears t be presented in the district curt where the grand jury is in sessin; Appears t be acted upn by a in the prper cunty; Cntains the name f the persn indicted r a reasnable descriptin; Shws the place f the ffense is within f curt in which presented (prper venue); Charges cmmissin f ffense n a date befre date f the indictment (nt barred by time limitatin); Sets frth ffense charged in language; Cncludes with the wrds, Against the peace and dignity f the state ; and Is fficially signed by the frepersn f the grand jury. b. Effect f Omissin Any defect f frm r substance will be waived r frfeited if nt raised at trial, s lng as the charging dcument is clear enugh t shw the ffense the state intends t prsecute Themis Bar Review, LLC TX Criminal Prcedure

13 A jurisdictinal defect, such as in cases in which the indictment r infrmatin des nt charge a crime at all, may be raised at any time. c. Effect f Waiver Defendant is prsecuted with an infrmatin if he waives indictment. 2. Indictment vs. Infrmatin The requirements are similar, EXCEPT an infrmatin is: Signed by the district r cunty attrney; and Filed with the cmplaint. 3. Multiple Offenses r Defendants Mre than ne ffense may be charged in the same indictment r infrmatin if the ffenses arise ut f the same. If the defendant is cnvicted f multiple ffenses in a single trial, the sentences fr are t be served, rather than cnsecutively. Mre than ne defendant can be charged jintly fr the, but severance is required if a prir f ne will be admitted against ne but nt the ther, r a jint trial wuld be. C. Arraignment 1. Requirements The frmal curt prceeding fr every felny, r misdemeanr punishable by jail (unless waived), where: The accused is identified; Cunsel is appinted if necessary; Defendant is advised f the charges against him; and The defendant. The accused enters ne f three pssible pleas: guilty nt guilty nl cntendere If the defendant stands mute, the curt enters a plea. Editr's Nte 3: Prfessr Stevensn misspeaks: a plea f nl cntendere has the effect f a guilty plea, but with sme later evidentiary differences. Any defect in the name f defendant must be raised at arraignment, r the case will prceed as thugh the name is crrect. TX Criminal Prcedure 2018 Themis Bar Review, LLC 13

14 2. Attrney A criminal defendant has the right t have an attrney in any adversarial prceeding that might result in jail fr the defendant. If defendant is indigent, the curt may appint a private attrney r a. A defendant may waive the right t an attrney and represent himself pr se if: The judge warns defendant f the f self-representatin; and Defendant knwingly and vluntarily waives his right. The test fr ineffective assistance f cunsel is tw-prnged: There were acts r missins f prfessinally cmpetent assistance utside the range rdinarily expected f cunsel; and There is a, but fr the unprfessinal errrs, the result wuld have been different. A defendant wh has been prvided an attrney als is entitled t reimbursement fr csts f experts, such as mental health prfessinals, if thse experts are cnsidered reasnable. 3. Special Plea: Duble Jepardy A defendant may plead frmer (r duble), if he can prve: Frmer acquittal f the same ffense; Frmer cnvictin f the same ffense; Imprper terminatin f first trial fr the same ffense; r Cllateral estppel. In lieu f a special plea, the defendant may instead file a petitin fr writ f t get the matter reslved befre trial. D. Guilty Plea 1. Admnishments If the defendant agrees t plead guilty r nl cntendere t a felny, the judge must give the fllwing admnishments rally r in writing: Range f ; Defendant may withdraw his plea if curt advises him that it will nt accept his ffered plea bargain; Defendant may appeal nly by r n a matter raised by pre-trial mtin if the curt accepts his ffered plea bargain; Defendant he may be subject t deprtatin r denial f citizenship, if he is nt an American citizen; Themis Bar Review, LLC TX Criminal Prcedure

15 Defendant will be required t register as a sex ffender, if applicable. The judge als is t inquire whether a has been given t the state. Failure t give an admnishment will be harmless errr if it did nt affect the defendant s decisin t plead. 2. Requirements The judge is required t: Determine whether the defendant is t plead; Have the defendant waive a jury trial with the curt and state apprval (but the defendant may elect t have the jury assess punishment if n plea bargain); and Make sure there is evidence in the recrd (plea is nt enugh). 3. Withdrawal f Plea (Felnies) The defendant may withdraw his plea anytime befre the curt accepts it. The defendant may withdraw his plea after the curt accepts it nly at the curt s. If the defendant claims inncence despite his plea, the judge can still accept the plea if there is sufficient evidence t supprt it. 4. Admissibility f Plea in Other Prceedings Neither a withdrawn plea nr statements made in plea negtiatins are admissible against the defendant in a subsequent prceeding. E. Pretrial Hearing If the defendant chses t g t trial, the judge may, but is nt required t, rder a pretrial hearing. Any issue that may be raised by pretrial mtins must be raised at the pretrial hearing. If defendant can shw, the curt may permit pretrial issues after the pretrial hearing. CHAPTER 4: PRETRIAL MOTIONS AND SUBPOENAS A. Mtin t Quash Indictment r Infrmatin Includes all mtins used by a defendant t attack a defect in the indictment r infrmatin, such as a mtin t set aside judgment TX Criminal Prcedure 2018 Themis Bar Review, LLC 15

16 1. Requirements A mtin t quash must: Be in writing; Be filed befre trial; and Allege the. 2. Jurisdictinal Defect If the charging dcument is quashed because it fails t vest jurisdictin in the trial curt by alleging an ffense, then the state must btain a new charging dcument. If a felny, the state must g back t the. 3. Ntice Defect If the mtin is granted, the state may amend the charging dcument withut getting a new ne, but the defendant has days t respnd t the amended indictment r infrmatin. The amendment cannt charge a ffense r prejudice the substantial rights f the defendant. B. Mtin in Limine Seeks t get a pre-trial ruling n a matter f, r at least, a ruling frm the judge that there must be an ut-f-curt hearing befre the prpnent seeks t intrduce it at trial An attempt t limit the ther party's ability t present smething at the trial Acts like a prtective rder C. Mtin fr Discvery 1. Discvery by Defendant Texas has a statutry plicy, giving defendant the right t request discvery f: Plice reprts, Witness statements, AND Any ther evidence that is material t any matter invlved in the trial that is in the pssessin f the State, EXCEPT Wrk prduct f state prsecutrs and investigatrs and therwise privileged material. The State als must disclse exculpatry, impeaching, r mitigating evidence (the Brady rule). Failure t disclse will result in reversal f a cnvictin if there is a the result wuld have been different had the evidence been disclsed. 2. Discvery by the State The state des nt have the right t discver anything frm the defendant except: Themis Bar Review, LLC TX Criminal Prcedure

17 The names f experts the defense intends t call, and The defendant s intent t raise the insanity defense at least 20 days befre trial, absent gd cause fr failure t give ntice Breach f requirement culd result in any evidence being inadmissible at the trial 3. Discvery at Trial The party nt calling a witness has the right t see and use n crss-examinatin: Any statement relating t the case made by the witness, after the witness has testified n direct examinatin (Gaskin Rule); and Any statement that a testifying witness has used t refresh recllectin. D. Mtin t Depse A party may take a depsitin n a shwing f. The State has the right t take the depsitin f: An elderly persn (65 r lder); r A disabled persn wh is the victim r a witness t a crime. Testimny at an examining trial is, in effect, a depsitin. A depsitin may be used in lieu f live testimny if the persn is: Unavailable; r Prevented frm attending the trial by a party seeking t keep the persn frm testifying. E. Mtin t Disqualify Judge A judge may be disqualified if the judge: Is the injured party; Has been cunsel fr the state r the accused; r Is related t the r the ; r Is s biased the defendant cannt get a. F. Mtin fr Cntinuance A recess r pstpnement f the trial By f the parties; r Fr gd cause A mtin fr cntinuance because f the absence f a witness must shw: Diligence; Materiality f the witness s testimny; N t delay; Absence nt prcured by the defendant; and TX Criminal Prcedure 2018 Themis Bar Review, LLC 17

18 Witness's testimny can t be btained befre trial. G. Mtin fr Jury Sentencing Befre trial, a defendant may elect sentencing by the jury instead f the judge by filing either a mtin fr: ; r An electin fr jury sentencing. Defendant can change electin after a guilty finding, but nly with state cnsent. H. Mtin t Suppress 1. When T have physical evidence r a cnfessin suppressed at trial because: The evidence was, in vilatin f the Texas Exclusinary Rule cncerning arrests; The evidence was btained in vilatin f the rules pertaining t arrest, and search and seizure T have testimny suppressed because the witness was subjected t an unnecessarily suggestive, r t a line-up withut an attrney T suppress the statement, such as a cnfessin, f a defendant that has been unlawfully btained. 2. Defective Warrant If evidence was btained by use f a defective warrant, it will be admitted under the Gd Faith exceptin, if: The fficer reasnably relied n the warrant; and The warrant was based n. 3. Submissin t Jury In Texas, if the judge denies the mtin t suppress, the defendant is entitled t have the issue f admissibility f the evidence r cnfessin submitted t the jury. I. Mtin f Incmpetency Made by defendant The mtin must allege the defendant meets the test fr incmpetency, claiming that the defendant des nt have: Sufficient present ability t cnsult with with a reasnable degree f ratinal understanding; r A ratinal, as well as factual, understanding f the prceedings against him Themis Bar Review, LLC TX Criminal Prcedure

19 If the judge finds enugh evidence t supprt a finding f incmpetency, the issue will g t a hearing unless the parties agree further prceedings are unnecessary. Ultimate Cnsequences f Incmpetency Finding Generally, a stay f prceedings and cnfinement f defendant until defendant restred t cmpetency Depending n the circumstances, n finding the defendant t be incmpetent, the curt als has an ptin t rder a civil cmmitment f the defendant and a dismissal f the charges. Incmpetency is different frm insanity. Incmpetency relates t the mental cnditin f the defendant at the time f the ; Insanity relates t mental cnditin f the defendant at the time f the. A finding f insanity leads t an. A finding f incmpetency generally leads t a stay in a mental facility which may be temprary r indefinite. J. Mtin fr Change f Venue 1. Mtin by Defendant Granted if curt determines defendant cannt get a in present venue Must attach frm credible persns that a fair trial is nt pssible 2. Mtin by the State State must prve: Cnditins favr the accused; There is a lawless cnditin f affairs in the cunty; r The life f r a witness wuld be jepardized by trial in the cunty where the case is pending. 3. Mutual Mtin Granted: Fr the f the parties and witnesses; In the interest f justice; and If agreed t by bth parties. TX Criminal Prcedure 2018 Themis Bar Review, LLC 19

20 4. Results if Mtin Granted If granted n the state's mtin, the trial is mved t a different cunty in the same judicial district r an adjining district. If granted n the defendant s r the curt s mtin, the trial is mved t an district if a fair trial is pssible there. K. Subpenas 1. Obtained By an applicatin t the curt by alleging materiality 2. Types Subpena ad testificandum rders witness t appear and give testimny and Subpena duces tecum rders witness t bring specified dcuments r physical evidence t curt 3. Effect A witness wh refuses t bey a subpena may be: Fined; Subjected t a writ f attachment (an rder t authrities t bring in witness); r Required t pst a bnd r be kept in until trial. Unifrm Act fr States prvides that a judge certifying the need fr a witness can frward it t a judge in the cunty where the witness is t be fund t secure the appearance f that witness. CHAPTER 5: THE TRIAL 1. Right t Jury The criminal defendant has a cnstitutinal right t a jury f persns in a felny trial; and persns in a misdemeanr trial. 2. Selectin f the Jury Ptential jurrs are summned frm the, which is made frm a list f registered vters and licensed drivers. This grup is referred t as the r the venire. 3. The Array The defendant may challenge the array as being stacked against defendant. The judge will qualify the members by questining them under ath as t whether they: Themis Bar Review, LLC TX Criminal Prcedure

21 Are qualified vters; Have ever been accused f a felny r theft; r Have ever been cnvicted f a. The judge will als determine which members are able t claim an exemptin r excuse. 4. Trial Panels The members f the array are split up fr service in a trial curt with a sufficient number sent t a curt t leave the required number fr the jury after challenges. a. Shuffle After the trial panel is seated, either party may have the rder f the jurrs randmly changed (shuffled). It can be shuffled. b. Vir Dire Generally, the state and the defendant will questin the prspective jurrs in the presence f the. In a capital case in which the state seeks the death penalty, the prspective jurrs are questined individually utside the presence f the thers. c. Challenges fr Cause Either party may challenge a prspective jurr fr cause if that persn: Is nt qualified t ; Has been cnvicted f a felny r misdemeanr theft; Is under indictment r legal accusatin f felny r theft; Is insane; Has a disability r is blind and the curt decides is fr service; Was n a grand jury that indicted the defendant; Served n a petit jury in a frmer trial f the same case; Has a bias r in favr f r against the defendant; Has a pre-frmed pinin that he cannt ; Can t read r write. The state can challenge a ptential jurr if that persn: Has cnscientius scruples against the in a capital case; Is related t defendant within the third degree f cnsanguinity r affinity; r Has a bias r prejudice against any part f the law the state will rely n. TX Criminal Prcedure 2018 Themis Bar Review, LLC 21

22 This des nt mean the jurr has a regarding the law The defendant can challenge a ptential jurr if that persn: Is related t the injured persn r prsecutr within the third degree if cnsanguinity r affinity; Has a bias r prejudice against the law applicable t the case. d. Peremptry Challenges Peremptry challenges are strikes f prspective jurrs fr which n reasn has t be given (with ne exceptin). Each side has: Capital case (state seeks death penalty): Nn-capital felny: Misdemeanr in district curt: All ther misdemeanrs: Batsn Challenge: The Supreme Curt has held that a jurr may nt be challenged slely n the basis f r gender. The steps fr making a challenge are: The state r the defendant must make a case f exclusin, in that the ppsing party has used peremptry challenges t eliminate jurrs based n race r gender; If s, a hearing is held fr the party making the challenge t give a explanatin; If the judge finds the explanatin inadequate, either: A new panel is assembled; r The imprperly challenged jurr(s) are seated. B. Defendant s Presence The defendant must be present in all felny prsecutins but if he leaves after he pleads r the jury is selected, he will be deemed t his right t be present. C. Order f Trial The indictment r infrmatin is read; The defendant enters his plea; The pening statement by the state; The state presents its case-in-chief; The defendant s pening statement (but defendant can d it right after the state s); The defense presents its case if it chses t present ne; The state may ffer rebuttal evidence; The state makes a clsing argument; Themis Bar Review, LLC TX Criminal Prcedure

23 The defense makes its clsing argument; The state can make a final rebuttal. D. Clsing Argument There are fur areas f prper argument: Summary f the evidence; frm the evidence; Respnse t the ther side; and Plea fr. Imprper argument includes: Offering a persnal pinin; Attacking ppsing cunsel; r Arguing that the cmmunity expects a certain result. E. C-defendants C-defendants may agree n wh is tried first, but it they can t, the decides. F. The Jury Charge 1. What is included After all the evidence is presented and befre clsing arguments, the judge will give the charge (instructins) t the jury: On the applicable law, the charge; An instructin n hw it shuld be applied, the applicatin part; Withut any cmment n the r the f the evidence. The instructin n applicable law des nt include a definitin f reasnable dubt, unless bth parties agree t it. 2. Jury Charge Cnference The attrneys must be given a reasnable pprtunity t examine the curt s charge, make bjectins, and request charges. 3. Appellate Review A case will be reversed n appeal fr an bjected-t errr in the jury charge r the failure t give a requested charge if the defendant suffered. If the errr in the jury charge was nt bjected t, the cnvictin will be reversed nly if it caused harm and denied the defendant a fair trial. TX Criminal Prcedure 2018 Themis Bar Review, LLC 23

24 G. Jury Deliberatins Jury Rm Deliberatins cannt be recrded. N ne but the jurrs may be present in the jury rm during deliberatins. N ne may with the jurrs withut the curt s permissin. Exhibits The jury n request will be furnished with all exhibits and may have testimny read t them but nly the part. Questins Questins frm the jury must be in. If the judge chses t answer, he must d s in writing and nly if the judge has used reasnable diligence t secure the presence f the defendant and his lawyer. H. Verdict Pssible verdicts Guilty Nt guilty Nt guilty by reasn f insanity (the nly special verdict in Texas) Plling the Jury Either the state r the defendant may ask each jurr if the verdict is theirs. If they all say yes, the verdict is. If nt, the jury retires again t cnsider its verdict. The defendant must be present at reading unless vluntarily absent. The verdict must be unanimus (all 12 in a felny case), but if a jurr: Dies r becmes disabled the jury charge is read, the jurrs left may render a verdict; r Becmes ill r disabled the charge is read, a mistrial is declared and the jury is discharged. If the jurrs cannt agree n a verdict, it is a hung jury and the judge may declare a and discharge the jury. Lesser Included Offense The jury may find the defendant guilty f a lesser included ffense which will be cnsidered an f the higher ffense, s n a retrial the defendant may be cnvicted f n greater ffense than the lesser included Themis Bar Review, LLC TX Criminal Prcedure

25 I. Persnal Infrmatin f Jurrs Persnal infrmatin f jurrs is and may nt be disclsed except n a finding by the curt f. CHAPTER 6: EVIDENCE A. Rules f Evidence Rules unique t criminal cases The Rule Either party may have witnesses excluded s as nt t hear ther witnesses, except: The defendant; and The victim, unless the victim will testify and the testimny wuld be if he r she were present. Burden f Prf The State must prve every element f the crime. Recent Outcry Rule The uncrrbrated testimny f the victim f a sexual ffense is admissible if the victim tld smebdy abut it within ne year f the alleged ffense, except if: The victim was years ld r yunger; The victim was years ld r lder; r The victim had a disability that prevented him frm taking care f himself. Testimny f Child Victim A child victim under, whm the judge has fund t be unavailable because testifying in curt wuld be harmful t the child, may give testimny by: Depsitin; r Electrnic means, such as clsed-circuit TV; and The defendant has the pprtunity t. Als admissible: Prir-recrded statements f a child that are result f inquiry by a individual experienced in child-abuse cases Hearsay statements f a child victim f a sexual crime 12 years ld r yunger Testimny f Inmate Inmate may give testimny by depsitin r electrnic means. TX Criminal Prcedure 2018 Themis Bar Review, LLC 25

26 Privileges Privileges are rights f, the claim f which cannt be cmmented n r frm which any can be drawn. Privilege against Self-Incriminatin The defendant cannt be called as a witness by the State; and His failure t testify may nt be cmmented n by the State. Spusal Privilege A spuse cannt be called as a witness, except: In a case invlving that spuse,, r a husehld member; In a case invlving a matter ccurring befre the marriage; r The spuse testifies vluntarily. Marital Cmmunicatins Privilege Either spuse may claim The privilege against disclsure f private cmmunicatins between husband and wife Cannt be invked in cases in which the spuse is accused f a crime against the ther spuse, a child, r husehld member Attrney-Client Privilege The privilege against disclsure f: Cmmunicatins t an attrney t btain ; and Any fact cming frm the attrney-client relatinship Drug Abuse Treatment Privilege The privilege f disclsure f statements f a persn made in cnnectin with a fr drug abuse Physician-Patient Privilege There is NO physician-patient privilege in Texas criminal cases. Accmplice Witness Rule The State cannt get a cnvictin slely n the f an accmplice but must have sme ther evidence cnnecting the defendant t the crime Themis Bar Review, LLC TX Criminal Prcedure

27 Extraneus Offenses Rules Evidence f past crimes may be admitted against the defendant, but nly fr a limited purpse, such as: T prve a cntested issue f identity r mtive; r T rebut a defensive thery. The requirements fr admitting the evidence f the extraneus ffense are: Ntice by the State f intent t ffer, n timely request by defendant; Decisin by judge that prbative frce utweighs ; Finding by judge that jury culd find beynd a reasnable dubt that the defendant cmmitted the ffence; On request, a limiting jury instructin that the ffense nly be cnsidered n a specific issue; and On request, a jury instructin that the ffense must be fund beynd a reasnable dubt. Special rule in the case f a sexual ffense against a child: Evidence f ther acts against the child are t prve the defendant s state f mind and relatinship with the child. Character Evidence If character has been put int issue by the defendant, the State may rebut by either pinin r reputatin testimny. Expert Testimny May be admitted if sufficiently relevant and reliable t assist the jury in accurately understanding ther evidence fr a fact issue in the case T be reliable: The underlying scientific thery must be valid; The technique the thery must be valid; and The technique applying the thery is prperly applied in this instance. Factrs fr cnsidering validity f a thery: Extent t which it has been tested Its acceptance in the The testifying expert's experience The existence f scientific literature The rate f errr TX Criminal Prcedure 2018 Themis Bar Review, LLC 27

28 Impeachment The credibility f a witness may be impeached by: Opinin r testimny that the witness s character fr truthfulness is bad A prir cnvictin fr a felny r crime f mral turpitude in the last years A prir incnsistent statement r interests f witness Handwriting cmparisns Phtgraphs Frensic evidence Results f tests Credibility cannt be impeached n religius beliefs. In murder prsecutins, the credibility f a witness may be impeached by evidence f: All circumstances surrunding the killings Prir with witness r victim The state f mind f accused at time f killing Defendant s Cnfessin General Admissibility Cnfessin may be suppressed if btained by a vilatin f due prcess, right t cunsel, r the privilege against. Admissibility f Written Cnfessin A written statement may be attacked as invluntary, that it was taken withut the accused being given the prper pre-statement warnings f his rights, r that there was n vluntary waiver f rights when underging custdial interrgatin. Nte 1: Cnfessin statute des nt apply t a statement made t a private citizen. It applies t a statement resulting frm a custdial interrgatin cnducted by law enfrcement. A statement is invluntary: If it is the prduct f cercin r duress frm a persn in psitin f authrity If defendant's did nt allw defendant t exercise free will In Texas, t be admissible, a written cnfessin that is the result f a custdial interrgatin must shw n its face that the accused is infrmed f the fllwing rights: Remain silent and that any statement he makes culd be ; Themis Bar Review, LLC TX Criminal Prcedure

29 Have a lawyer present during questining; Have an appinted lawyer if he can t affrd t hire ne; and the interview at any time. A Defendant must waive thse rights: Knwingly Vluntarily Admissibility f Oral Cnfessins An ral statement f a defendant is generally unless it cmes within ne f the statutry exceptins: It is electrnically recrded and the recrding cntains the. It is nt the prduct f a custdial interrgatin. It cntains assertins f fact that are fund t be true and tend t. It is the res gestae f the arrest r the ffense. It is made at trial, befre a grand jury, r at an examining trial. It is used merely t rather than in the state s case-in-chief. It was btained in anther state in cmpliance with that state s law r by a federal fficer in cmpliance with federal law. CHAPTER 7: SENTENCING AND APPEALS A. Sentencing 1. As Part f Judgment The judgment in a criminal case includes the verdict and the sentence. The defendant must be present when the sentence is annunced. 2. Jury Sentencing If the jury cannt agree n punishment, the judge will: Declare a n punishment nly; and Impanel anther jury t determine sentence. The jury may cnsider anything the curt deems relevant, including: Prir criminal recrd; Reputatin and as t character; TX Criminal Prcedure 2018 Themis Bar Review, LLC 29

30 The circumstances f the ffense; Extraneus ffenses; and Bad acts if they are prven. 3. Judge Sentencing The curt may rder a presentence investigatin reprt (PSI) befre annuncing its decisin in pen curt. 4. Allcutin Befre the sentence is annunced, the defendant has the right t address the curt and give the fllwing reasns why the sentence cannt be prnunced: He has been pardned; He is ; r He is nt the persn cnvicted. 5. Victim Statement After the sentence is prnunced, a victim, a relative f a deceased victim, r a guardian may make a statement t the defendant but may nt ask questins. 6. Capital Murder Optins There are tw sentencing ptins fr capital murder: The death penalty Life in prisn withut The defendant is sentenced t life in prisn withut parle if the state des nt seek the death penalty. Fr a death penalty sentence, the jury must agree: The defendant is a future threat t sciety; and There are nt sufficient circumstances t warrant the lesser sentence f life in prisn. 7. General Sentencing Optins a. Multiple Sentences Judge has discretin t impse multiple sentences: Cncurrently; r Cnsecutively. b. Cmmunity Supervisin (Prbatin) May be impsed in lieu f a prisn term Themis Bar Review, LLC TX Criminal Prcedure

31 Suspended Sentence The sentence is prnunced but suspended n cnditin f cmpliance with cnditins. Available nly if: The prisn term is less than years, There is n prir felny cnvictin; and The cnvictin is nt fr ne f the serius ffenses fr which cmmunity supervisin is nt available. Deferred Adjudicatin The defendant pleads and the judge suspends the withut impsing a sentence n cnditin f cmpliance with cnditins. It is nt available fr: Driving while intxicated; Delivery f a t a minr; r Any drug-related financial transactin. Cnditins The judge may impse any f cmmunity supervisin, the breach f which, if prven by a prepnderance f the evidence results in revcatin f cmmunity supervisin. If vilated, curt may revke prbatin. c. Alternatives t Jail There are a number f alternatives t jail time in a misdemeanr, which may als be impsed as cnditins f cmmunity supervisin: Wrk release; Service f sentence in ff-wrk hurs; with electrnic mnitring; Cmmunity service; r fr any damage r harm dne. 8. Mtin fr New Trial Available nly t defendant when: Material, favrable evidence t the accused has been discvered since the trial; r Jury miscnduct r ther activity denied defendant a Extends time available t file a ntice f appeal TX Criminal Prcedure 2018 Themis Bar Review, LLC 31

32 B. APPEALS 1. State s Right t Appeal May appeal: Certain rulings n, such as the trial judge s dismissal f an indictment, N later than days after the rder r ruling was entered May nt appeal determinatin issues 2. Defendant s Right t Appeal May appeal: Any judgment r rder, EXCEPT: A cnvictin frm a plea-bargained guilty plea UNLESS: By ; r On a matter raised by pre-trial mtin Must appeal in within: days after sentence is entered r suspended; r days if he has mved fr a new trial May waive right t appeal if: Part f a plea bargain; r After the sentence is impsed 3. Effect f Reversal Reversal based n an errr in the: Guilt-inncence phase will result in a ; Punishment stage will result in a new trial n nly. 4. Jurisdictin f the Appellate Curts The highest appellate curt in criminal cases is the Curt f Criminal Appeals. Jurisdictin is autmatic and mandatry in cases. Jurisdictin is in all ther cases, n: The filing f a petitin fr (PDR), including thse frm an intermediate curt f appeal; r The curt's wn mtin. Curt cnsiders whether the issue in case: Is imprtant enugh; r Themis Bar Review, LLC TX Criminal Prcedure

33 Presents a cnflict in intermediate curt decisins. The intermediate curts f appeal have jurisdictin f all criminal appeals except cases: In which the death penalty was impsed; r That were appealed t the cunty curt where the fine was nt ver $ and the cnstitutinality f a statute r rdinance was nt invlved. 5. Bail n Appeal a. Misdemeanr Defendant is entitled t reasnable bail b. Felny N bail if: The sentence is years r mre; Aggravated assault; r Drug ffense c. Denial Bail may be denied if: There is t believe the defendant will nt appear when his cnvictin becmes final; r The defendant is likely t cmmit anther ffense while n bail. C. Habeas Crpus May be used pst-trial as a writ t challenge Attacks legality f the trial curt cnvictin Filed in the trial curt If trial curt determines that there are previusly, it will rder a hearing. If the trial curt rules that n hearing is required, the petitin may be filed in. In death penalty cases, a petitin fr writ f habeas crpus must be filed within days after cunsel is appinted r within days f the state s brief n appeal, whichever is later. [END OF HANDOUT] TX Criminal Prcedure 2018 Themis Bar Review, LLC 33

34 Themis Bar Review, LLC TX Criminal Prcedure