PRE-TRIAL PROCESSES What you should know before you get started INITIAL APPEARANCE In person A plea of guilty or a plea of nolo contendere may be made by the defendant or his counsel in open court By mail A defendant charged with a fine only misdemeanor may mail a plea of guilty or nolo contendere The court must receive the plea and waiver before defendant s scheduled court date Except Children: age 10 and under 17 years of age Minors: younger than 17 ABC code: under 21 y/o Tobacco: under 18 y/o ***must appear in open court with a parent or guardian present. Corporations and Associations: must appear through counsel 1
Pretrial Hearings Arraignment Pleadings of the defendant Special pleas (double jeopardy) Motions ** Chapter 45 C.C.P silent on pretrial matters Article 28.01 CCP governs Time Frame Defense must be given TEN days notice of trials and /or pre-trials in which to file motions Matters not raised within seven days of the pretrial hearing are waived, except by permission of the court for good cause Art. 28.01, Section 2 C.C.P. Rules of Evidence May not apply in all pretrial proceedings Parties should be provided a chance to: Cross-examine Rebut Argue 2
Arraignment/ Initial Appearance The purpose of the arraignment is two-fold: Fix the identity of the accused Take the plea of the accused Article 26.01-26.03 C.C.P. Pleas of the defendant Set for trial (judge or jury) If defendant refuses to answer, always enter the plea of Not Guilty Art. 26.12 C.C.P 3
GUILTY OR NO CONTEST Waiver of jury trial Admonish as to range of punishment If defendant is not a citizen of U.S. inform of possible immigration consequences Make sure defendant is mentally competent Motion for Continuance Motion to Dismiss the Case Motion to Quash the Complaint Motion for Discovery Motion to Suppress Motion in Limine Motions 4
Motion for Continuance Purpose: to postpone or continue the trial to a later setting. May be made by the state or the defendant (or sometimes by the court) May be by agreement or unopposed Written motion Sufficient Cause shown Only for as long as is necessary Motion to Dismiss Purpose: the defendant wants the case to be completely dismissed. Double jeopardy (Defendant has already been prosecuted for the same or a different offense arising out of the same criminal episode and was acquitted or convicted) Double Jeopardy Defendant has already been prosecuted for the same or a different offense arising out of the same criminal episode and was acquitted or convicted. 5
Statute of Limitations The charging instrument shows it was filed more than two years after the date of the commission of the offense. Art. 12.02 and 12.04 C.C.P. Lack of Jurisdiction The offense charged in the complaint must be within the jurisdiction of the municipal court 6
The violation does not exist in statute, code, or ordinance. Constitutional Grounds Right to a speedy trial Denial of due process Motion to Dismiss is not appropriate because Defendant is incompetent Statute or ordinance is void for vagueness Prosecutorial misconduct 7
Motions to Quash (not squash) Purpose: to object to complaint as filed. This motion is proper only when made to the allegations of the complaint on its face (not related to evidence) Art. 45.019 C.C.P. Any objections to a defect, error, or irregularity of form or substance in a complaint must be made before the day trial commences or it is waived. The error can be cured if the complaint is dismissed and refiled with appropriate corrections. C.C.P. 45.019(f) Timeliness Motions for Discovery Papers and physical items On motion by the defendant On showing of good cause At court s discretion Only for items in control of the State Does not include witness statements or other word product of the State. Exculpatory Evidence Witness list Name and address of each person that party may call as witness at trial 8
Motion to Suppress Purpose: used to exclude certain physical evidence Physical evidence in violation of 4 th amendment of the U.S. constitution prohibiting unreasonable search and seizure Statements of the accused if violated Defendants 5 th amendment right against self incrimination Motion in Limine Purpose: a judicial order that certain evidence be brought before the court outside the jury s presence. Types of Plea Bargains Charge Bargain: allows the defendant to plea to a lesser charge Count Bargain: allows the defendant to plea guilty to some, but not all of the charges filed Sentence Bargain: Defendant is told in advance what the sentence will be and pleas guilty 9