TX CrimPro - Finegan Peters

Warrant requirements differ when mere evidence is the sole target of the search warrant. Warrants seeking mere evidence only are called

"evidentiary warrants"

The act of charging more than one offense in a single charging instrument is called

"joinder," which should not be confused with joinder of offenses at trial.

venue [homicide]

if a person receives an injury in one county and dies in another by reason of such injury, in the county where the injury was received or where the death occurred, or in the county where the dead body is found

The best way to challenge a bail condition is through a

habeas petition

As soon as the judge is made aware of competency concerns, she must conduct an informal investigation looking for evidence of incompetency. Once the judge determines there is evidence of mental incompetence, the judge must

halt proceedings and order a mental competency evaluation of the D. Evaluations are done by qualified psychologists or psychiatrists who work for the county or in the jail, but they may be performed by an expert of the D's choosing. The evaluation is often competed before the next court setting. The evaluation will either conclude that the D is incompetent or meets the competency standard.

3) Arrest -

has PC a crime occurred and the arrestee is the person who committed the crime. Requires actual restraint or submission to lawful authority

In the absence of a reasonable safety concern or need to maintain the status quo, however, officers' use of force to secure a suspect

has been held to constitute an arrest.

LAW - Ability to Make Bail: to show that he is unable to make bail, a D generally must show that

his funds and his family's funds have been exhausted. Unless he has shown that his funds and those of his family have been exhausted, a D must usually show that he made an unsuccessful effort to furnish bail before bail can be determined to be excessive. If both the D and his family indicate a financial inability to procure a surety bond, the court will not require him "to do a useless thing."

The D's motion to change venue must include

his own sworn affidavit and two or more affidavits from credible residents of the county explaining why he cannot receive a fair trial there. These affidavits must address the prejudice the D faces if his trial takes place in the current venue and articulate evidence that demonstrates there is "a dangerous combination against him instigated by influential persons" which presents him from receiving a fair trial.

After the D has been evaluated for mental competence, the court is statutorily required to

hold a competency hearing (which resembles a mini-trial), unless neither attorney requests a hearing, the attorneys do not opposing a judicial finding of incompetence, or the judge does not believe a hearing is necessary. The D has a right to counsel before any evaluation or proceeding where competency will be determined and the right to a jury trial on the issue of competency, if requested.

When presented with a plea bargain, the court has the right to accept or reject it; however, it may not

hold the defendant to his plea of guilty while rejecting the benefit the defendant was to receive. If the court does not approve the entire agreement, the defendant must be allowed to withdraw his plea of guilty.

10 YEARS FROM THE VICTIM'S 18TH BIRTHDAY -

human labor trafficking of children, injury to children, compelling prostitution of children, and bigamy where the spouse was a minor at the time of marriage

8th Amendment does NOT guarantee citizens the right to bail, but it does state that

if bail is granted, it shall not be excessive.

The State carries the BOP. As a result, it has a common law duty to disclose all Ws it intends to call ...

if the D requests a witness list. The D, on the other hand, has NO obligation to disclose lay witnesses to the State. Therefore, most defense attorneys do not subpoena their own witnesses. How might this affect D's choice to subpoena W? -D might not want to "show their hand" to the P. -The danger of not subpoenaing a W is that they might not show up. Hard to argue for a continuance if you didn't subpoena them. -If you have any doubt they won't show, good idea to subpoena.

Article 38.23 Jury Instruction Even if judge determines that evidence is admissible, the D can request a jury instruction that

if the jury finds that the evidence was illegally seized they can exclude it in their deliberations. However, there MUST be a factual dispute EX: police officer says gave Miranda, D says no. If you can make a showing these facts are contested. Problem - it's really hard for the jurors to assess that. Hard to unring that bell.

"On or about" - P do this in the charging instrument so

if they are off slightly there is no variance. That way notice to the D is still good. Avoids date variances.

Errors in Charging Document Form Errors -

include items like the caption of the indictment and the number and term of the court.

Thermal imaging -

started the Court's foray into technology; case of using thermal imaging of a house to search for heat lamps used to grow pot EX: Court held this WAS a search.

TXC states: An indictment is a

written instrument presented to a court by a grand jury charging a person with the commission of an offense.

To calculate time for SOL,

you must determine the date when all elements for the crime were completed and the date when the indictment or information was received or filed in court. You then consider the time between those two dates to determine whether the SOL has run. EX: If the crime is misdemeanor offense, and the time between the date when the crime was complete and the date when the information was filed in court is less than two years, the SOL has NOT run, and the offense may be prosecuted.

"The charging instrument must convey sufficient notice to allow the accused to prepare a defense." With respect to informations, Article 21.21 sets out what facts must be included in an information (2)

"[t]hat the offense [must] be set forth in plain and intelligible words[.]" Additionally, an information must include everything that is necessary to be proved.

The affidavit must establish

"a sufficient nexus between criminal activity, the things to be seized, and the place to be searched." In the above case, there was a nexus between the gambling biz records and the business, but not between the business record and the D's home.

1985 TXC was amended to define indictment as

"a written instrument presented to a court by a grand jury charging a person with the commission of an offense."

There are reasons why the judge may reject the plea bargain. It may offend the judge's sensibilities, resulting in the judge ...

"busting the plea."

The Code permits the D to appeal

"matters which have been raised by written motion filed prior to trial" even after he has pled no contest or guilty to the crime. The TX Rules of Appellate Procedure authorize an appeal of matters following a plea of guilt or no contest for motions filed and ruled on before trial. Both of these legal provisions cover not only a D's right to appeal following a plea, but also a trial where the legality of the search and seizure was contested. Typically, when a D ends his case by pleading guilty, he is asked to waive any right to appeal. Even a valid right to appeal a MTS can be waived. However, if the D follows the proper appellate procedure and does not waive his right to appeal the MTS ruling, he may appeal an unfavorable ruling on his MTS

Mere Evidence

"property or items, except the personal writings by the accused, constituting evidence of an offense or constituting evidence tending to show that a particular person committed an offense." Does *not* fit into any of the categories of seizable items listed in 18.02(a). In Sloggan v. State, a child porn case, police seized magazines, ads, pamphlets, books that were sexual in nature. They were considered "mere evidence" but were not listed in the other provisions of article 18.02, but they linked the D to the charged crime. In sum, mere evidence connects the D to a crime, but the items in and of themselves are not contraband, they are not things the D used to commit crime, nor are they things the D obtained from the commission of the crime.

Most GJs do what the prosecutor asks most of the time. If the prosecutor asks the GJ to indict, it is usually because there is evidence and PC to believe the D committed the crime. If the prosecutor does not want the GJ to indict, the GJ may follow the prosecutor's request to no bill the case. Occasionally, there are

"runaway grand juries" who investigate matters not on the agenda and refuse to follow the prosecutor's suggestions, but this is rare.

Unlike other jx, TX requires that a felony plea of guilty must be supported by some evidence. The Code requires the State to offer evidence into the record of the D's guilt; this evidence is accepted by the court as the basis for its judgment. The corroborating evidence the State must produce is called

"substantiative evidence."

A criminal case may originate with a complaint. The Code states that in misdemeanor cases,

"the attorney shall prepare an information based upon such complaint" and that in felony cases, the attorney shall "file the complaint with a magistrate of the county." Another provisions of the Code states that a complaint "charges the commission of an offense."

Section 1.07 defines the elements of the offense as

"the forbidden conduct, the required culpability, the required result, and the negation of any exception to the offense."

TXL also ensured the State had ample opportunity repair indictment defects and that the D received the requisite notice of indictment changes, as well as an opportunity to respond TXL's purpose was to change the focus of the court from "whether a defect is fundamental" (pre-1985 court focus) to

"whether the D brought the defect to the court's attention."

Class B Misdemeanor

(1) A fine not to exceed $2,000; (2) confinement in jail for a term not to exceed 180 days; or (3) both such fine and confinement.

Class A Misdemeanor

(1) a fine not to exceed $4,000; (2) confinement in jail for a term not to exceed one year; or (3) both such fine and confinement.

Other than capital murder, a D may be held without bail for some time before becoming bailable, under 11a of the TXC. A judge is allowed to "no bond" a D who is: (4)

(1) a habitual felon (one who has previously been convicted of two felonies) - AKA third strike (2) a person charged with a felony who commits a felony while on bond (3) a prior felon who commits an aggravated felony offense or who uses a weapon in the course of committing the subsequent felony; or (4) a sexual or violent offense committed by someone who is "under the supervision of a criminal justice agency of the State" (AKA on probation)

TXC requires that the indictment allege that (2)

(1) a person (2) committed an offense. Without both the charging instrument is not an indictment and does not vest the court with jx.

Waiving GJ Indictments In Texas, no person shall be held to answer for a felony unless under indictment of a grand jury. Thus, every felony must be presented to a grand jury for indictment unless the D waives this right The D may waive a GJ indictment in any noncapital felony case. For a waiver of an indictment to be valid, it must: (3)

(1) be in writing or made orally in open court (2) be knowing, intelligent and voluntary by the accused (no coercion) (3) while the accused is represented by counsel CANNOT waive in capital offense. A pro se D may not waive indictment If the waiver meets the above criteria, the prosecutor may proceed on a felony information instead of an indictment.

Grand Jury Qualifications A person may be selected or serve as a grand juror only if the person (10):

(1) is at least 18 years of age; (2) is a citizen of the United States; (3) is a resident of this state, and of the county in which the person is to serve; (4) is qualified under the Constitution and laws to vote in the county in which the grand jury is sitting, regardless of whether the person is registered to vote; (5) is of sound mind and good moral character; (6) is able to read and write; (7) has not been convicted of misdemeanor theft or any felony or under indictment thereof (8) is not closely related to others serving in the same GJ (9) has not served as grand juror for one year before the current GJ service beings; and (10) is not a complainant (victim) in any matter to be heard by the grand jury Petite and GJ qualifications are virtually the same. However, the last three criteria listed are GJ specific. There is a similar qualification that exempts petit jurors from service for a period following trial jury service. If you can demonstrate hardship as being over 70, or a full time student, can get exemption

RULE 615: PRODUCING A WITNESS'S STATEMENT IN CRIMINAL CASES (a) Motion to Produce. After a witness other than the defendant testifies on direct examination, the court, on motion of a party who did not call the witness, must order an attorney for the state or the defendant and the defendant's attorney to produce, for the examination and use of the moving party, any statement of the witness that:

(1) is in their possession; (2) relates to the subject matter of the witness's testimony; and (3) has not previously been produced.

While the judge has an obligation to ensure qualified attorneys are appointed in a fair and neutral way, the appointed attorney likewise has legal obligations. TCCP 26.04(j): An attorney appointed under this article shall: (3)

(1) make every reasonable effort to contact the defendant not later than the end of the first working day after the date on which the attorney is appointed and to interview the defendant as soon as practicable after the attorney is appointed; (2) represent the defendant until charges are dismissed, the defendant is acquitted, appeals are exhausted, or the attorney is permitted or ordered by the court to withdraw as counsel for the defendant after a finding of good cause is entered on the record; (3) with respect to a defendant not represented by other counsel, before withdrawing as counsel for the defendant after a trial or the entry of a plea of guilty: (A) advise the defendant of the defendant's right to file a motion for new trial and a notice of appeal; (B) if the defendant wishes to pursue either or both remedies described by Paragraph (A), assist the defendant in requesting the prompt appointment of replacement counsel; and (C) if replacement counsel is not appointed promptly and the defendant wishes to pursue an appeal, file a timely notice of appeal

The sworn affidavit must set forth facts sufficient to establish probable cause: (3)

(1) that a specific offense has been committed, (2) that the specifically described property or items that are to be searched for or seized constitute evidence of that offense or evidence that a particular person committed that offense, and (3) that the property or items constituting evidence to be searched for or seized are located at or on the particular person, place, or thing to be searched.

In Texas, every prisoner "shall be bailable unless for capital offenses when the proof is evident." The State has the BOP to show that it is evident that (3)

(1) the D committed capital murder, (2) the jury will convict, and (3) it will sentence him to death.

In filing an interlocutory appeal, the State is required to certify to the trial court (2)

(1) the appeal is not taken for purposes of delay; and (2) the evidence is of substantial importance to the case

When a person is arrested following a traffic stop, cops may search containers located in the vehicle and maybe even the entire vehicle itself. USSCt - warrantless car SITLA is only constitutional when (2)

(1) the arrestee is within reaching distance of the vehicle during the search; or (2) the cops have reason to believe that the vehicle contains evidence relevant to the crime of arrest

In considering whether an appellant has demonstrated an objectively reasonable expectation of privacy, we examine the totality of the circumstances surrounding the search, including whether: (6)

(1) the defendant had a property or possessory interest in the place invaded; (2) he was legitimately in the place invaded; (3) he had complete dominion or control and the right to exclude others; (4) prior to the intrusion, he took normal precautions customarily taken by those seeking privacy; (5) he put the place to some private use; and (6) his claim of privacy is consistent with historical notions of privacy. This list of factors is not exhaustive, nor is any one factor dispositive of an assertion of privacy.

While the judge is not required by law to provide an exhaustive list of rights lost or consequences to come, before the D pleads guilty in a felony case, the judge must admonish the D. Judges often have a "script" they follow in admonishing Ds who plead guilty in their court. However, the Code requires judges to only give six admonishments in felony cases:

(1) the range of the punishment attached to the offense; (2) the fact that the recommendation of the prosecuting attorney as to punishment is not binding on the court; however, if the court rejects the agreement, the defendant shall be permitted to withdraw the defendant's plea of guilty or nolo contendere; (3) the trial court must give its permission to the defendant before the defendant may prosecute an appeal following the plea if the negotiated plea is not exceeded, except in matters raised through a written pretrial motion; (4) the fact that if the defendant is not a citizen of the United States of America, a plea of guilty or nolo contendere for the offense charged may result in deportation, the exclusion from admission to this country, or the denial of naturalization under federal law; (5) the judge must inform the D about sex offender registration if the D is convicted or placed on deferred adjudication for a sexual crime, and (6) the fact that if the defendant is placed on community supervision, that they may be entitled to have their conviction set aside or withdraw their guilty plea upon their successful completion of the terms and conditions of community supervision.

In deciding whether appellant's confession, which was given following an illegal arrest, was sufficiently attenuated as to permit the use of the confession at trial, we are to consider the following factors:

(1) whether Miranda warnings were given; (2) the temporal proximity of the arrest and the confession; (3) the presence of intervening circumstances; [**7] and (4) the purpose and flagrancy of the official misconduct. No single factor is decisive. We examine each factor in turn and then consider the effect of the factors as a whole.

LAW: Rule of Appellate Procedure 25.2(b) does not authorize an appeal in a case such as this (for lack of voluntariness or inadequate admonishments). The rule reads: (b) Form and sufficiency of notice. (1) Notice must be given in writing and filed with the trial court clerk. (2) Notice is sufficient if it shows the party's desire to appeal from the judgment or other appealable order, and, if the State is the appellant, the notice complies with Code of Criminal Procedure article 44.01. (3) But if the appeal is from a judgment rendered on the defendant's *plea of guilty or nolo contendere and the punishment assessed did not exceed the punishment recommended by the prosecutor and agreed to by the defendant, the notice must*:

(A) specify that the appeal is for a jurisdictional defect; (B) specify that the substance of the appeal was raised by written motion and ruled on before trial; or (C) state that the trial court granted permission to appeal.

Personal Bond -

(AKA "personal recognizance") D is released just on promise to show up. No money offered up. If you don't show, then they will issue summons/warrant.

4) Officers are required to create a written inventory of the property seized, sign the inventory, and provide a copy to the owner.

(This is the third requirement of a search warrant above) Officer returns inventory to magistrate.

TEST FOR INSANITY under TX Penal Code 8.01:

(a) It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong. (b) the term "mental disease or defect" does NOT include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.

Tex. R. Civ. P. 18b(2) sets out the law concerning recusal and includes instances in which a judge must step down from hearing a case for reasons other than the disqualifying grounds listed in the constitution. Rule 18b(2) states, in relevant part, that "A judge shall recuse himself in any proceeding in which:

(a) his impartiality might reasonably be questioned; [or] --Bias alone is not disqualifying; only if cannot be set aside. --Similar to juror; if can be impartial then it's okay. (b) he has a personal bias or prejudice concerning the subject matter or a party, or personal knowledge of disputed evidentiary facts concerning the proceeding. --EX: judge is the neighbor of V, or son goes to school with D. --NOT an easy standard to meet to show that a judge should recuse themselves. Judge will often make critical remarks...that's not enough A judge's impartiality might reasonably be questioned only if it appears that he or she harbors an aversion, hostility or disposition of a kind that a fair-minded person could not set aside when judging the dispute. Rule 18b(2)(b) is more specific: It covers how the judge feels and what the judge knows A Texas court has held, for instance, that a trial judge's feeling of personal bias was evidenced by ex-parte communications with the prosecutor that had the "trial court providing guidance to the prosecutor on the presentation of his case A clear instance of "personal knowledge of disputed evidentiary facts" requiring recusal arose in one unpublished case where, in a suppression hearing, the trial judge interrupted and announced that he himself had observed the conduct that led to the defendant's initial detention.

Subpoenas are a serious matter in criminal practice. Because the State carries the BOP, the P must carefully consider the testimony and evidence he needs to prove every element of the charged offense. If an attorney fails to subpoena critical evidence of Ws, that mistake may result in

(at best) a continuance or (at worst) an acquittal. Issuance of Subpoenas A subpoena may issue (be sent out) to secure a W's testimony for a hearing, trial, GJ, or in any other proceeding in which the person's testimony may be required. Anyone over the age of 18 can receive a subpoena. If the W is a child, the subpoena should be directed to the person with custody.

Critical Stage: Pretrial Hearings 28.01 governs in TX Not required in every case, but judge can order. What matters can be addressed in pretrial hearings?

(look at above list) If arraignment hasn't already happened, it can happen in pretrial hearing If counsel hasn't already been appointed, it can happen in pretrial hearing Pleadings are heard: guilty, not guilty, nolo contendere Application for probation (if D is seeking, must file here) *Elect jury or judge for sentencing phase* --Texas is unique state: if you're going to be sentenced by a judge or a jury (most jx it is only the judge, but in TX you can elect jury) --Once you are past the pretrial stage, you can only change your mind to switch to judge/jury sentencing if the P agrees. Special pleadings such as double jeopardy Challenges to the indictment (otherwise you waive) Continuance motions Motions to suppress Change of venue *Entrapment as a defense* - must be raised pretrial. If judge finds in D's favor, the case will be dismissed prior to trial. Many other logistical matters.

615(f) "Statement" Defined. As used in this rule, a witness's "statement'' means:

*(1) a written statement* that the witness makes and signs, or otherwise adopts or approves; *(2) a substantially verbatim, contemporaneously recorded recital of the witness's oral statement* that is contained in any recording or any transcription of a recording; or (3) the *witness's statement to a grand jury*, however taken or recorded, or a transcription of such a statement. [*Comment:* there was a controversy once the MMA was codified as to whether this would apply to GJ statements. The general way the courts have interpreted it is NO. GJ statements are still secret, EXCEPT: once a witness testifies at trial, if they previously testified before the GJ that GJ testimony is subject to production under 615. This rule is how you get access to GJ testimony.]

CI Privilege EXCEPTIONS

*1) If the informer's identity has been voluntarily divulged* (EX: happened to be listed in one of the documents produced), they have waived the privilege. *2) If the disclosure is necessary to determine guilt or innocence* -Can't just be a fishing expedition; there has to be some evidence that provides a plausible showing that the CI could give testimony relating to guilt/innocence. If so, that's an exception on CI identity. --EX: CI participates in the offense; is present at the time of the offense; or is a material W to the commission of the offense, then the disclosing the name of the CI is necessary to determine guilt/innocence, and thus no privilege. *3) If the CI's info is relevant to the legality of the means by which the evidence is obtained* EX: If the argument is that the evidence was illegally seized by the police because they entered the house without a warrant and the informant was there and could testify as to whether the police entered without a warrant; in this case, the CI's identity will be relevant to determining whether there was an illegal search, and is thus an exception.

INEFFECTIVE ASSISTANCE OF COUNSEL Really really hard for a D to succeed on an IAC Two prongs have to be satisfied:

*1) Was the counsel deficient?* -Counsel's performance is deficient if falls below an Objective Reasonableness under the TOTC -Presumption of lawyer competence; that must be overcome. -Strategic decisions are generally held to be reasonable ---EX: whether to put D or a particular W on the stand. -As long as there's some justification, it will be okay. - -Unless completely off the wall, lawyer's strategic decisions at trial won't be second guessed. -Not a hindsight determination. Reviewing court has to put yourself in the shoes of the attorney at the time. Ex ante analysis. (Not post hoc). *2) Did that deficiency prejudice the result?* -Have to show that the deficiency was the *but for cause of the unfair result* -Incredibly difficult standard to meet. Have to show that adequate lawyer performance would have meant that the jury would have had reasonable doubt and acquitted. -Reasonable probability, that absent the errors, the factfinder would have had a reasonable doubt regarding guilt. -If the error had no effect on the judgment, it is not prejudicial -Burden on D to prove *Examples of prejudice:* -Not allowed assistance of counsel -Counsel doesn't test the P's case at all. -If the attorney is asked to represent D in impossible circumstances ----EX: attorney is appointed the night before trial in capital murder case. No way he can be competent. Ineffective assistance of counsel review often starts with the 2nd prong: look at the record and say, even assuming deficient counsel, would the outcome be different?

The Defense Attorney's Role Requirements: (3)

*1) communicate plea offers to clients* -Unethical for D not to. -Ultimately D's choice whether to accept *2) advise clients of consequences of plea* --EX: immigration consequences, punishment range --EX: some clients might prefer to take 20 days in jail to long term probation that might lead to bigger sentence upon violation. --Advise client that they can go to jury with open plea --Possibility of parole - inform client of potential parole, and time when they would be eligible. But let them know that eligibility and attainment are very different. *3) incorrect advice that induces a D to plea guilty may render the plea involuntary* -If D counsel gives incorrect advice, it might render involuntary thru IAC claim, but it is really hard to do. Must show that wouldn't have taken plea but for deficient counsel.

The D has three options when it comes to pleading guilty:

*1) plea bargain* (AKA negotiated plea) - negotiate a plea with the State for a set punishment and plead guilty in exchange for that offer -By far the most common *2) open plea* - plead and go to the judge without an agreed punishment, allowing the judge to asses the punishment; or *3) unilateral trial* - plead and go to the jury for punishment, letting the jury determine punishment.

Plain View Doctrine Not really an exception because it's not really a search. So no warrant required anyway. Three requirements:

*1) police must have a lawful vantage point;* -Was the cop lawfully there? (consent, exigency, etc.) *2) incriminating character of the object must be immediately apparent* -"Immediately apparent" - A practical, non-technical probability that it is in fact contraband or evidence of a crime. -when the see the evidence they have PC to believe that it is evidence of a crime. -If they have to engage in further investigation to determine it is contraband, it's not plain view EX: having to turn over something to get to serial number; NOT immediately apparent EX: holding up negatives to the light to see porn, NOT plain view. EX: if they have to shuffle through documents, NOT plain view *3) officer must have right of access to the object* -Must have PC to believe an item in plain view is contraband BEFORE seizing it. -If so, the police have a right to further investigate as long as they don't engage in an additional unjustified search or longer presence on the premises than is justified.

Serving a Subpoena (3 ways)

*1) read to the witness* *2) delivered to W* *3) email to witness* -Ask for a receipt requested. -Send to last known email address of W. -Return must be in a manner that shows actual receipt. -Concern that someone else might have gotten it. Must show that the intended recipient received it. *4) mail to W.* -Certified mail, return receipt request to last known address. -Can't do the mailing if you're subpoena within 7 days. Regardless of method, there's a *return*. An acknowledgement of receipt. Differs by type. -If there's no response - no return. It is incumbent on the subpoenaing party to get the subpoena to the W in some other form.

Immunity agreements specifically aimed a GJ Ws or Ds take two forms:

*1) transactional immunity* - broader. -Protects the W or D from prosecution for the crime that is being investigated. -W is immune from prosecution for the entire criminal transaction she testifies about. *2) use/testimonial immunity* - narrower -Prosecutor can use evidence or testimony from others to prosecute the W for her criminal participation; just cannot use the W's own statements before the GJ again her (or info directly derived therefrom) Under Kastigar (1972), only use immunity is required in order to compel testimony.

Major differences between arrest warrant, capias, and summons:

*Arrest warrant* is issued by a law enforcement agency and signed by a magistrate. It gives an officer the authority to seize the D. The D is subsequently brought before a magistrate and then taken to jail. A capias is issued by a court with jx over a D. It authorizes an officer to bring the D to court. A summons is issued by a magistrate to a suspect directing him to appear. If the suspect does not appear, an arrest warrant will issue. A search warrant can also provide for the seizure of a person. If the magistrate has PC to believe "a person has committed some offense under the laws of this state, the search warrant may, in addition, order the arrest of such persons." Thus, a combination arrest and search warrant is valid, but both the search and arrest must be supported by PC.

After a D is arrested, she may be required to post a bail bond to get out of jail while her case is pending. The words bail and bond are often used interchangeably, but they mean different things.

*Bond* - a promise to return to court at a specific time and date set by the judge (my word is my bond) *Bail* - sum of money paid by the D or his surety (typically a bail bondsman).

NOTICE THE DIFFERENCE HERE BETWEEN CAR SITLA AND PROTECTIVE SWEEP OF A CAR

*Car SITLA*: don't need any suspicion, just the PC to arrest, but the individual has to be within the reach of the interior of the car, OR reasonable belief that the evidence of the crime for which the person is stopped is in the car. *Terry Frisk of a Car*: as long as the police have a RS that the S is armed and that there could be weapons in the car the police can conduct a sweep of the car lawfully. Even if the S not within the lunging space of that car.

TRE 404(b) (b) Crimes, Wrongs, or Other Acts. (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character. [general ban on character evidence] (2) Permitted Uses; Notice in Criminal Case. This evidence may be admissible for another purpose, such as ....

*MIMIC*: proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On timely request by a defendant in a criminal case, the prosecutor must provide reasonable notice before trial that the prosecution intends to introduce such evidence—other than that arising in the same transaction—in its case-in-chief.

In addition to all these USC rules, there are also Texas-specific rules. Negotiated Plea vs. Open Plea

*Negotiated Plea* - just a recommendation to judge. *Open Plea* - plea without negotiating with P. D pleads guilty, then allows judge or jury to assess punishment. --Unique aspect to TX - jury can assess punishment.

Appealing a Plea - Differences between Negotiated and Open Pleas

*Negotiated Pleas* - If D pleads guilty pursuant to a bargain and judge sentenced at or below the bargain, D can only appeal if he is raising 1) an issue preserved in a pretrial motion 2) or if he can get the TCt judge to grant permission *Open Pleas* - If D pleads guilty without a bargain (an open plea)? 1) can appeal the voluntariness of the plea 2) can appeal any error raised pre-trial Must be related to evidence that was raised pretrial. Jx defects can be raised in either case. EX: county court and it is a felony case. Can always raise on appeal

Pham v. State, 463 S.W.3d 660, 663 (Tex. App.—Amarillo 2015) FACTS: D went to church, was painting wall with the V, but then stabbed, cut the throat of the V and posed the V's body. Then the D called 911. D told the police he was stabbed by the V in the leg and acted in self-defense. Once the police found the body, they didn't believe the D. D claims insanity at trial; that V was a cannibal trying to kill him.

*Who has the burden of proving insanity in TX and what is the standard?* -D must prove insanity by a POE. *Based on the POE, what does the D have to prove to show that he would be found not guilty by reason of insanity?* -Must prove that he was insane at the time of the crime - that because of D's mental disease/defect, D didn't know what he was doing was legally wrong. At the time of the killing, D didn't know the killing was illegal. ----EX: W testimony that D was insane prior to crime; history of acting strangely. Can't be based on taking drugs that caused D to lose his mind. ----Here, D's wife, mother, brother all testified that he had stopped taking his medication; had been acting weird and told his D attorney that he thought the V was a cannibal-demon that was going to attack him and his family. *What evidence did the State present to show the D wasn't insane?* --State expert pointed out that he was probably mentally ill. But denied that D didn't know right from wrong. That self-defense excuse and calling 911 showed that he knew what he did was wrong. *On appeal, the D is challenging the legal sufficiency of the evidence. What's the standard for challenging the sufficiency of the evidence?* ---Really hard standard to meet. Very deferential to the trial court. -Appellate court will only overturn the trial court's decision on the basis of a lack of legally sufficient evidence if there isn't any evidence in the record to support the finding. ---HERE: there is some evidence - an expert testifying that D knew the difference between right/wrong. ---A LOT of deference is given to trial/jury findings on insanity because they are there hearing evidence. Conviction upheld.

To challenge bail:

*Writ of habeas corpus*: bail is used as an instrument of oppression - punish instead of ensure appearance. Filing habeas writ to challenge bail is a strategy used by D counsel to get a little early discovery. State has to show evidence in hearing.

Other conditions authorized by law (crime specific):

1) Conditions designed to protect children from speaking, seeing, or residing with a D who abused them 2) Prostitution cases, both for the buyer and seller of sex, HIV and AIDS testing as condition of release 3) In stalking, domestic assault, harassment cases, a magistrate will likely impose a condition that the D have no contact with the V. 4) In sexual assault cases, a judge may require the D to provide a DNA sample to local law enforcement officials to compare with DNA samples taken from other TX rape victims. There are many others.

If the State has alleged the murder of "Dangerous Dan" but has proved, instead, the murder of "Little Nell," then the State has proved a different murder than it has alleged, and an acquittal is required. -The key to this conclusion is that

*each victim is an allowable unit of prosecution for the offense of murder*. -If there are multiple murder victims, the State may obtain multiple murder convictions. -So, the murder of one individual is a different offense from the murder of a different individual. But some types of facts—such as the method by which a murder is committed—do not relate at all to the allowable unit of prosecution. The State could allege "poisoning, garroting, shooting, stabbing, or drowning," of a single individual, and those different acts would simply be alternate methods of committing a single offense. With only one victim, there can be only one murder, regardless of how that murder is committed

BASIC TEXAS TEST FOR INSANITY DEFENSE

*whether the D was able to appreciate the wrongfulness of his conduct due to severe mental disease or defect.*

Capital felony

- life in prison or death

Unique limitations on evidentiary search warrants

-CANNOT search for personal writings of the D. Specifically excluded from the 18.02(1) -Another limitation: only judges that have a law license can issue 18.02(10) evidentiary warrants -harder to get a "second bite at the apple" with these warrants. ---If you at first don't find what you are looking for, harder to get it the second time. Have to go to a District Court judge the second time.

When might a plea be involuntary?

-Coerced -Not knowing and voluntarily made -Incompetent -Doesn't know what he's pleading to

Whether society is willing to recognize a privacy expectation in the place searched as objectively reasonable. Is society willing to recognize an expectation of privacy in your belongings when you are staying at a family member's home overnight?

-Courts have answered yes and no.

Harris County: misdemeanor cases - judges weren't looking into particular facts of case and the D, just looking at the schedule. Not considering resources of D, etc.

-Led to disparate impact on black Ds: 29% of those held were black even though 13% of TX population -Civil rights suit was filed in Federal District Court, found Harris County practices were unconstitutional. 5th Cir. agreed. That decision along with the 2020 election have let to a 180 degree change. -Now, most misdemeanor Ds are released on PR bonds. -There's been a lot of pushback against this by police. - -Fear that it would lead to higher crime rates. Study was done on the impact of new bail practices on Harris County. Found that the release of misdemeanor Ds without requiring cash bail did NOT lead to an increase in rearrests. -There is another civil rights suit pending regarding felony level cases.

Preliminary Initial Appearance

-Warnings are giving -Bond is set. -Set according to a schedule. -Initial PC determination made by magistrate Two types of charging: -Misdemeanor - information - DA filling out charging document Felony - grand jury indictment -Unique procedure in TX: examining trial - pre-indictment - can establish PC through a hearing before D is indicted Arraignment

When a defendant enters into a plea bargain, he waives a number of fundamental constitutional rights, including

-a trial by jury, -the right to confront one's accusers, -the right to present witnesses in one's defense, -the right to remain silent, and -the right to be convicted only by proof beyond a reasonable doubt. These are essential rights; if D waives these rights he must get the benefit of the bargain and renders the plea involuntary. When the P breaches promises, the D is pleading guilty based on a false promise. That renders the plea involuntary.

Discoverable Evidence The Code sets out a test to determine what is discoverable and lists items that are always discoverable. Article 39.14 The test to determine whether info or an item is discoverable: Upon request, the State shall produce and permit the inspection and copying of:

1) *Any information, writing, or tangible thing* 2) That constitutes *material* evidence 3) That is *not otherwise privileged*, and 4) That is *in the possession, custody, or control of the State*. Any info or item that meets all of the above is discoverable; any info or item that does NOT meet all is NOT discoverable unless the State has an independent Brady obligation to produce it.

D can plea bargain for:

1) *reduced charge* - plead guilty, save expense of trial, etc. 2) *recommended fixed term of punishment* - P recommending that D serve no more than 5 years --P has no ability to force court's hand; but often judges will give a lot of weight to P's recommended sentence. --It's a way for a D to have a better chance. 3) *open plea* - pleading guilty with no recommended sentence to either: throw themselves on the mercy of the judge OR the jury.

The grand jury has several options after the prosecutor's presentment: (5)

1) *request more time* to investigate the matter; 2) "*true bill*" the indictment, which means that the GJ finds PC to believe the D committed a crime on the crime the prosecutor brought them or a different crime 3) "*no bill*" the indictment, which means that the GJ did not find PC to believe the D committed a crime 4) *indict the D on a different criminal charge* than the one requested by the prosecutor; OR 5) *take no action*, which means the grand jurors decided not to return a true bill or a no bill following their investigation

What is discoverable by the defendant? Two sources:

1) 39.14 - long rule. Codification of the MMA in the Code. 2) Brady Evidence (Constitutional)

Bail Reform in Texas Big deal in Harris County. Two competing issues with bail reform:

1) Concern that dangerous violent offenders are being released too quickly; on too little bail. Committing other offenses while out on bail. -Want Ds in prison longer -Abbott has prioritized this form of bail reform TXL. 2) We don't want to penalize those facing minor offenses just because they can't afford bail. -Minor offenses. Whether they are released depends on if they can afford bail. -Examples where D are incarcerated for months because they can't afford $100. Punishing people because they are poor.

How does court get substantiating evidence for a plea?

1) D can stipulate to it in writing (or oral). That's the typical way that it happens. 2) Also can put on Ws as a prosecutor. But this is rare, because if you're going thru all that, might as well go to trial. 3) Orally - D sworn in, judge asks D to testify on the record to the facts. Will essentially read the allegations from the indictment and will testify that the facts are true. It is a very low hurdle for the State to overcome. Must have proof of ALL essential elements. If there's something left out, that could lead to an involuntary plea.

Motions to Suppress Evidence Think of a MTS as a special objection to inadmissible evidence. D attorneys have 3 options when it comes to requesting that incriminating evidence be suppressed by the court. Can try all three

1) D counsel could make a plea to the prosecutor to exclude the evidence from consideration. ---Most prosecutors recognize that unlawfully obtained evidence must be excluded and are willing to dismiss the case, if required, on this basis or proceed to trial without the objectionable evidence. 2) the D attorney could file a MTS at a pretrial hearing or request a suppression hearing before or during trial. In this instance it is up to the judge to decide 3) D counsel may ask the jury to ignore the unlawfully obtained evidence and not consider it during deliberation ---The jury has no authority to suppression evidence, but may choose not to consider it If a D requests a MTS through a pretrial hearing, the suppression issues can be considered through motion, affidavit, oral testimony, or in another manner subject to the discretion of the court.

Requirements for Brady

1) Evidence must be in the Possession, Custody or Control of the State. ---Just like 39.14, this means any agent of the state. Not just the prosecutor. (2) FAVORABLE and (3) MATERIAL

REMEDIES AVAILABLE FOR A TRIAL COURT VIOLATION OF A DISCO ORDER?

1) Excluding the evidence 2) Providing a recess to allow D counsel to view evidence and formulate a response.

In analyzing whether a charging instrument provides adequate notice, courts must engage in a two-step analysis.

1) First, a court must identify the elements of an offense. The elements, defined by the Legislature, include: the forbidden conduct, the required culpability, if any, any required result, and the negation of any exception to the offense. Tex. Penal Code Ann. § 1.07(a)(22). 2) when the Legislature has defined an element of the offense that describes an act or omission, a court must ask whether the definitions provide alternative manners or means in which the act or omission can be committed. If this second inquiry is answered in the affirmative, a charging instrument will supply adequate notice only if, in addition to setting out the elements of an offense, it also alleges the specific manner and means of commission that the State intends to rely on at trial.

A variance in pleading and proof can occur in two different ways.

1) First, a variance can involve the statutory language that defines the offense. This can happen when a statute specifies alternate methods by which an offense could be committed, the charging instrument pleads one of those alternate methods, but the State proves, instead, an unpled method. EX: the retaliation statute makes it a crime to threaten a "witness" or "informant." The first type of variance occurs if the State pleads only "witness" in the charging instrument and proves only the unpled element of "informant" at trial. 2) Second, a variance can involve a non-statutory allegation that is descriptive of the offense in some way. EX: the charging instrument pleads "Mary" as the victim, but the State proves "John" at trial. Or the charging instrument pleads the offense was committed with a knife, but the State proves at trial that a baseball bat was used.

To summarize, variances can be classified into three categories, depending upon the type of allegation that the State has pled in its charging instrument but failed to prove at trial.

1) First, a variance involving statutory language that defines the offense always renders the evidence legally insufficient to support the conviction (i.e. such variances are always material). 2) Second, a variance involving a non-statutory allegation that describes an "allowable unit of prosecution" element of the offense may or may not render the evidence legally insufficient, depending upon whether the variance is material (i.e. such variances are sometimes material). 3) Finally, other types of variances involving immaterial non-statutory allegations do not render the evidence legally insufficient. The variance in the Johnson case falls within the third category.

The Code gives judges additional authority over negotiated pleas for community supervision (probation or deferred adjudication).

1) First, the Code states that "the judge may, after receiving a plea of guilty, no contest, place the D on community supervision." -Thus, a negotiated plea in exchange for community supervision is not certain - like all other negotiated pleas - until the TCt assents to it. 2) Second, the Code gives the judge authority to set conditions of community supervision after assessing the risks and news of the D. The judge may impose any reasonable condition that is designed to protect or restore the community or itim, or punish, rehab, or reform the D. -In this way, TCt possesses authority to modify, set, reject, or expand the negotiated conditions of the probation or deferred adjudication. It is common practice for the judge to ask the parties about the details of the crime, ask the D questions about her personal life during the plea, and to take this info into consideration when fashioning conditions that are meant to punish, deter, and rehab the D while restoring the V and community.

Judicial involvement in plea negotiations runs afoul of due process and fundamental fairness in several ways.

1) First, the trial court's role as neutral arbiter between competing parties is compromised as the court seeks to convince the defendant to accept its proffered plea. 2) Second, rejection of the court's offer by a defendant creates the possibility of prejudice against the defendant on the court's part whether or not such prejudice is conscious or intentional. 3) Third, the trial court's power over the defendant gives it an uneven advantage in the negotiations and brings home to the defendant the possibly unhappy consequences of rejecting the court's offer. 4) Finally, during the course of negotiations between the court and the defendant, the defendant may very well make explicit or implicit admissions or confessions that would not normally be admissible before the court during formal trial

Under the USC - requirements for plea

1) must be voluntary 2) D must be competent. --Competency Presumed unless something in the record shows incompetence.

In what cases is D entitled to appointed counsel?

1) For a jailable offense. --In Texas, jailable offenses are felonies and class A & B misdemeanors. --Class C misdemeanors do NOT have jail time. --Thus any proceedings that can lead to prison time. 2) Indigency --Determined by income of D, debts, and close family, etc. Any current sources of funds. Very similar to bail. -- ---But potential income not considered. --If a D can make bail, that is not outcome determinative if D can get appointed counsel, but the same factors are considered. Once a court makes an initial determination of indigency, that presumption continues throughout the proceedings unless some facts show otherwise (like the D wins the lottery or something.). Thus, D will get appointed counsel throughout the proceedings.

Pleas -

1) Guilty - most D plead guilty -State has a lot of bargaining power. EX: if you plead guilty, you get easier treatment. Better deal if you plead rather than if you go to trial. Not supposed to happen, but it does. 2) Not guilty 3) No contest/nolo contendere - same impact as guilty plea except for later civil trials

When the GJ's question is asked to the witness and the witness interposes his privilege, the grand jury has two choices.

1) If the desired testimony is of marginal value, the grand jury can pursue other avenues of inquiry; 2) if the testimony is thought sufficiently important, the grand jury can seek a judicial determination as to the bona fides of the witness' Fifth Amendment claim, in which case the witness must satisfy the presiding judge that the claim of privilege is not a subterfuge. If in fact there is reasonable ground to apprehend danger to the witness from his being compelled to answer, the prosecutor must then determine whether the answer is of such overriding importance as to justify a grant of immunity to the witness.

Exigency exception Emergency circumstances to bypass warrant requirement Justifications:

1) Inability to get warrant in urgent cases 20 Possibility S will get away or evidence will be destroyed 3) Dangers to officers/public Weigh these against privacy rights

Like arrest warrants, capias warrants must meet certain requirements. This info must appear on face of capias:

1) It must run in the name of "The State of Texas" 2) Must name the person, or if name unknown, describe the person 3) Must specify the offense and state that it violates penal laws of TX 4) Must name the court and return time 5) Must be dated and sworn to by the person issuing the capias

The requirements for all habeas petitions (not just bail) are set out in the Code. (5)

1) Must name the person illegally restrained against his liberty and the person restraining him --Sheriff, warden, etc. 2) Contain a copy of the legal document retraining him, or it should state the copy is unavailable; 3) If the D's illegally restrained without a legal document, the writ must state that he is illegally confined or restrained against his liberty; 4) The writ must include a prayer for relief; and 5) It must be made on oath that all allegations in the writ are true.

Applying for a Subpoena a district attorneys' offices and courts usually have subpoena forms in electronically generated or handwritten forms. The attorney must include certain info on the subpoena before it issues from the court:

1) Name of W 2) Address of W if known 3) Vocation of W, if known, and 4) Justification: Assertion that the testimony the W will give is material. If you are requesting the subpoenaed person to bring something to court, you should also include a notation describing the thing the W should bring to court. By requesting that the person bring an object or document to court, you are filing a subpoena duces tecum. The process for both types of subpoenas is the same; one merely asks Ws to come to court, the other asks Ws to come to court with a listed object

39.14 - Materials Discoverable by the Defendant

1) Offense Reports 2) Any Documents, Statements, Recordings of the D or any Ws (including officers) 3) Any tangible evidence material to any matter involved in the action Books, accounts, letters, photos, objects, other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action and is in the custody/protection/control of the State or any person under contract of the State. Basically any offense report, statements, tangible evidence, *regardless of whether it is favorable to the D or not.* All subject to disco under 39.14

Executing the Warrant Once a magistrate finds PC, it is up to the officers to execute the warrant. Must comply with several Code guidelines in execution:

1) Officers are required to execute warrants without delay* after they are signed by the magistrate. 2) Officers must knock and announce their presence and give residents opportunity to open the door. 3) officers must show the warrant to the owner of the premises at the time of the search. 4) Officers are required to create a written inventory of the property seized, sign the inventory, and provide a copy to the owner. (This is the third requirement of a search warrant above) If officers fail to execute warrant in a timely fashion, the warrant becomes invalid. The other procedures above generally do not render the search warrant void unless a D can establish prejudice.

CARS - USSCt has allowed police to search cars under this doctrine as well. If police stop an individual in a car with RS they have or are about to commit a crime (Terry stop), and then have RS that they might have a weapon (Terry frisk), they can:

1) Order driver and passengers to step out of the car 2) They can pat down both passenger and driver for weapons (again, as long as they have RS they are armed and dangerous 3) Can conduct a protective sweep of the interior of the car, IF they have RS of a weapon in the vehicle. Not trunk, and probably not locked glove compartment

Examining trials are rare in TX. In fiscal year 2016-17, TX justices of the peace, acting as magistrates, conducting 1,092 examining trials statewide. There are several reasons why they are rare. (5)

1) PC determinations may be made by several individuals, eliminating the need for an examining trial. -The magistrate may find PC following arrest, a prosecutor may assess PC at the time she accepts charges or drafts an arrest warrant, and the trial judge overseeing the D's case may assess PC at the D's first appearance in court. -Thus PC may have already been determined on multiple occasions by the time a D requests and receives an examining trial. 2) Bail is usually set at the time of arrest or when the magistrate arraigns the D. -This too lessens the need for the examining trial. 3) Courts at all levels are busier than ever. Judges avoid unnecessary or duplicative proceedings 4) Prosecutors do not like examining trials for the informal discovery they provide 5) D attorneys do not want their clients testifying, which could be used against them by the P or as impeachment While none of these reasons diminish the D's right to have an examining trial, they explain why the procedure is unpopular.

The policy reasons for secrecy are compelling.

1) Protects people who turn out to be innocent 2) Protects Ws from fear of reprisals (could be informants or other insiders) 3) It ensures the utmost freedom to the grand jury in its deliberations. 4) It prevents other persons subject to indictment, or their friends, from importuning the grand jurors; no undue influence should be permitted to sway its counsels or govern its action. 5) grand jurors should be free from the apprehension that someone may disclose subsequently their opinions and votes. 6) prevents subornation of perjury or tampering with the witnesses who may testify before the grand jury and later appear at the trial of those indicted. 7) encourages free and untrammeled disclosures by persons who have information with respect to the commission of crimes. Witnesses can give evidence without fear of reprisal from an accused or any other person. 8) It also saves persons who have been cleared by the grand jury from the expense of standing trial where there was no probability of guilt. 9) Additionally, the requirement saves the public the trouble, expense, and disgrace of having matters disclosed that no longer have any merit. 10) Finally, grand jury secrecy also prevents the escape of those whose indictment is contemplated.

Admonishment Rule 26.13 - statutorily required admonishments (6)

1) Range of punishment 2) Any recommendation from DA is NOT binding on the judge 3) D by pleading guilty waives right to appeal matters not raised in pretrial motions if the judge fellows recommended sentence unless judge permits it --The judge warns the D that they will have very limited rights to appeal if they plead guilty. 4) If defendant is not a citizen, he could be deported, etc. 5) Sex offender registration (6) the fact that if the defendant is placed on community supervision, that they may be entitled to have their conviction set aside or withdraw their guilty plea upon their successful completion of the terms and conditions of community supervision.

Items to Be Seized TX Code restricts what officers may search for and seize pursuant to a search warrant. In 9 Code subsections of 18.02(a), the follow items are permitted to be seized:

1) Stolen property, 2) contraband, 3) fruits of a crime, 4) instrumentalities used to commit a crime, 5) people, 6) prohibited weapons, 7) gambling items, 8) obscene materials, 9) drugs and paraphernalia, 10) stored electronic consumer data, and 11) cell phones or other wireless communications devices.

Texas has unique warrants. 18.02 lists out 10 different types of "normal" warrants It is important to label warrant correctly. "Normal" search warrants

1) Stolen property, 2) contraband, 3) fruits of a crime, 4) instrumentalities used to commit a crime, 5) people, 6) prohibited weapons, 7) gambling items, 8) obscene materials, 9) drugs and paraphernalia, 10) stored electronic consumer data, and 11) cell phones or other wireless communications devices. Common factor: all either illegal themselves or directly incriminating in that they were used in or fruits of crime. [Except people, stored consumer data, and cellphone/wireless communication devices]

Three different types of bail:

1) Surety Bond 2) Cash Bond 3) PR - personal recognizance

There are two statutorily articulated reasons given to challenge the grand jury array.

1) The first is that they were chosen by some method not articulated in the Code (not properly selected), and 2) the second is that the supervising judge improperly summoned them (acted corruptly).

Factors to consider in Attenuation

1) Timing - the closer in time, more likely not attenuated 2) Any easily identifiable intervening circumstances EX: S goes home, then comes back voluntarily to confess 3) How flagrant the police misconduct it is. The more flagrant, the stronger the poison. EX: illegal entry of a home, several S are arrested at the scene. 1 suspect confesses at the scene (likely inadmissible as FOPT) 1 suspect voluntarily confesses three weeks later (likely admissible because of attenuation) Simply reading Miranda rights after an illegal arrest is NOT enough on its own to attenuate the illegal conduct. BUT! Miranda warnings plus the other above factors COULD lead to attenuation.

TXCCA listed a few exceptions to the general rule that it is the prosecutor alone who has the power to dismiss a case: (4)

1) When a D has been denied a speedy trial 2) When there is a defect in the charging instrument (through a motion to quash) 3) When a D is detained and no charging instrument is properly presented. 4) Judge finds no PC Power in these instances is authorized by common law or statute and does not give rise to a TCt's general right to dismiss in contravention of the general rule that it is prosecutors who hold the power to dismiss.

Trying to prove venue was unfair What does he need to file to contest venue? (3)

1) Written motion, 2) his own affidavit that he can't get a fair trial 3) affidavits from 2 credible people who live in the county. Must allege that: Either that the area is prejudiced, or there are influential people that are after him. State can submit their own controverting affidavits that dispute the allegations that he wouldn't receive a fair trial.

Evidence substantiating a guilty plea can take several possible forms. Tex. Code Crim. Proc. art. 1.15 itself states that

1) a defendant may consent to the presentation of evidence either by oral testimony or in written form, or 2) to an oral or written stipulation of what the evidence would be, without necessarily admitting to its veracity or accuracy. 3) Additionally, courts have recognized that a defendant may enter a sworn written confession, or 4) may testify under oath in open court, admitting his or her culpability or at least acknowledging generally that the allegations against him or her are in fact true and correct. A deficiency in one form of proof may be compensated for by other competent evidence in the record. Evidence adduced at a sentencing hearing may also suffice to substantiate a guilty plea. Thus, substantiation can occur through a written judicial confession, an oral judicial confession, or through stipulation of evidence. Failure to comply with these requirements may result in a reversal of the plea.

Art V., s.12(b) *defines an "indictment"* as a "written instrument presented to a court by a grand jury charging a person with the commission of an offense." Therefore, to comprise an indictment within the definition of the TXC, an instrument must charge: (2)

1) a person 2) with the commission of an offense.

In felony cases, plea process involves three components:

1) the waiver of rights 2) the judge's admonishments 3) introduction of substantiating evidence.

Inadmissibility of Pleas and Negotiations Sometimes a D considers pleading guilty or is in the middle of a plea when he changes his mind. Can the P use the D's plea or statements during negotiations as evidence of guilt? NOPE TX Rules of Evidence 410 (identical to federal rule) states that the following pleas and statements CANNOT be used in legal proceedings as evidence of guilt:

1) a plea of guilty that is later withdrawn 2) in civil or criminal cases, a plea of nolo contendere that was later withdrawn 3) in civil cases, a nolo contendere plea 4) a statement made during plea negotiations in federal court or in any other state court where the plea was later withdrawn, or 5) a statement made to the P in the course of plea negotiations that did not lead to a plea or that led to a plea that was later withdrawn. The reason that these withdrawn pleas and statements are inadmissible is simple: pleas are an important part of the criminal justice system and Ds should not fear their participation in plea negotiations will later be used against them at trial.

A plea bargain consists of three parts:

1) a plea of guilty, 2) the consideration for it, and 3) the approval by the court of the agreement.

Officers seeking to obtain an evidentiary warrant must establish: (3)

1) a specific crime has been committed 2) the specific property described in the warrant constitutes evidence the crime was committed; and 3) the specific property officers want to seize is located on the person, place or thing to be searched.

Abandonments - Three situations where altering/amending the charging instrument constitutes an abandonment:

1) abandonment of one or more of the alternative means in which an offense may be committed 2) abandonment of an allegation in the charging instrument if the effect of such abandonment is to reduce the prosecution to a less included offense 3) abandonment of surplusage Such alterations are abandonments and therefore do NOT invoke the requirements of amendment. In these instances, the prosecutor is free to abandon the language in a charging instrument by physically altering the charging instrument without the need for notice or approval from the judge or defendant.

Emergency, Exigency, Hot Pursuit Exigency - constitutional doctrine that allows for exception to warrant requirements Allows officers to enter to a location to protect life, prevent violence, prevent destruction of evidence. What does it allow for? (3)

1) aid to individuals 2) protection of police officers 3) preventing destruction of evidence Just need a reasonable belief. Not PC

If the court grants the continuance and the W cannot attend the rescheduled hearing or trial, in addition to proving everything above, the P must establish the following things in her subsequent request for a continuance: (4)

1) all the above 2) expected testimony the facts that the P expects the W to testify about (the court must find this material) 3) assertion W will actually appear: the prosecutor will be able to procure the W at the next hearing or trial, AND 4) Necessity of the testimony that the testimony of this W is NOT available through any other source.

If the matter is continued and the D seeks a subsequent motion for continuance, in addition to all the above, the D must establish that: (3)

1) all the above 2) necessity of the testimony - the testimony of this W is not available through any other source; and -Does NOT require the W to reveal the facts the W will testify to. -Idea: D doesn't have to reveal case to P, even when seeking continuance. -This requirement means that can't get the info into evidence in any other way. 3) assertion W will appear: the D believes that it will be able to procure the W at the next hearing or trial.

The pretrial hearing shall address the following matters: (11)

1) arraignment, if necessary 2) appointment of counsel, if necessary 3) pleadings of defendant: -Guilty, not guilty, no contest -Application for probation -Trial election (whether the trial will be before the judge or the jury and which of these two will assess punishment), and -Any other motion or pleadings to be filed. 4) special pleas -Double jeopardy 5) challenges to the form or substance of the indictment 6) motions for continuance, if known 7) motions to suppress evidence 8) motions for change of venue 9) motions for discovery 10) entrapment as a defense, AND 11) motions for the appointment of an interpreter This list is NOT exhaustive. Any number of motions or other administrative issues that need to be addressed before the trial date could or should be raised at the pretrial hearing. For example, Ds are required to give the State notice of the intent to raise insanity as a defense during the pretrial hearing.

The TXCCA stated in State v. Drummond that the term "complaint" is used in three different contexts:

1) as a prerequisite to an information 2) to obtain an arrest warrant, issue a summons, or authorize further detention of a S after a warrantless arrest; and 3) the sole charging instrument in municipal and justice courts

Oprean v. State, 201 S.W.3d 724, 725 (Tex. Crim. App. 2006) FACTS: The D is complaining on appeal that the P violated a disco order that provided that she turn over all video and tape recordings that contained the D's voice 10 days prior to trial. The D discovered the fact that the P was planning to use the video just minutes beforehand, despite court order that all videos be turned over to D 10 days prior to trial. D asks for a recess to review the tape, and the trial judge refused. When the state violates a disco order, and the trial court still allows the evidence in, the standard on review is abuse of discretion. Remember: abuse of discretion standard is a two prong test:

1) bad faith of P? 2) ability of D to reasonably anticipate this evidence would be introduced? COURT: 1) prosecutor DID act in bad faith - disco order was clear that she had to turn this over. Plus, P had told D counsel that wasn't planning on introducing anything at punishment phase other than judgment and sentences. This video evidence was NOT newly discovered; P had just kept D in the dark. Clear bad faith. 2) Could D reasonably anticipate this evidence would be introduced? -NO. D had specifically been told otherwise; that P was only introducing judgment and sentences at punishment phase. HELD: Meets both prongs of abuse of discretion test for discovery; thus the trial court abused its discretion by allowing into evidence. CONCURRENCE: The trial court could have allowed this evidence to come in if he had simply allowed the D counsel to have a recess to review the tape. That would have led to a finding of no abuse of discretion

Judge Not Bound by Prosecutor's Recommendation The judge always has the option to disapprove the negotiated plea. This may happen when?

1) before the parties begin the plea process, 2) at the bench while the D is being admonished, or 3) midway through the plea.

3rd degree felony

2 years to 10 years imprisonment with a possible $10,000 fine

Four forms of arrest that are statutorily authorized:

1) by officer with a warrant 2) by officer without a warrant 3) by magistrate without a warrant 4) by citizen without a warrant Arrest does not necessarily mean a person is handcuffed and placed in a patrol car after being told by the officer that the person is under arrest for committing a specific crime, though this is often how arrest is depicted on TV. Courts have a wider view. EX: one court stated that "submission to an officer's show of authority will also constitute an arrest"

Before you can inventory a car, you have to legally impound a car. Two bases for a lawful impoundment:

1) community caretaking functions: -To deal with a car accident; maintain flow of traffic; 2) violation of parking ordinances; threatening public safety *Other circumstances of lawful impoundment:* -Where the owner or driver requests or consents -Abandoned vehicle, a hazard or defective -Driver arrested for DUI and there is no other person able to drive/safeguard the car. -Authorized under statute -Driver arrested, no alternative

Three Levels of interactions Between Police and Citizens

1) consensual encounters 2) investigative detentions (terry stops) 3) arrest

2015 - TXL added a Code provision that specifically prohibits police from searching a phone or other wireless device without a warrant. Exceptions: (4)

1) consent, 2) phone was reported stolen by owner, 3) officer reasonably believes it is in the hands of a fugitive who committed a felony, or 4) there "exists an immediate life-threatening situation" that involves hostages or the threat of death or serious bodily injury. Exceptions are narrow; most of the time need a warrant

Most of the statutes on venue appear in Ch13 of the Texas Code of Criminal Procedure. Two classes of venue provisions:

1) crime-specific statutes that address venue (EX: forgery case, the D may be prosecuted in the counties where she forged the document, chased it, or deposited it); and 2) fact-specific statutes that address venue given a specific fact pattern. EX: in a murder case, venue is appropriate when the V is injured in one county but dies in another

Results of the Examining Trial: 3

1) defendant could be discharged (if judge finds no PC) 2) if they do find PC, the D can be sent to trial, awaiting formal charges from GJ indictment 3) if PC is found, judge might set bail. All the normal bail rules apply

Ineffective Assistance of Counsel D argues that counsel misinformed them about plea. Wouldn't have taken plea otherwise USSCt: D can assert IAC when it comes to pleas: Has to prove: (2)

1) deficient performance by counsel 2) reasonable probability that but for that performance, the D wouldn't have plead guilty. Difficult standard to meet. Prospect of a better deal not enough.

To challenge a search under the privacy theory, the D must have a legally protected expectation of privacy. Two questions:

1) did the D have a subjective expectation of privacy in the searched place? 2) is the D's expectation one society deems objectively reasonable under the circumstances?

When is a D entitled to counsel? At any "critical stage." Courts in TX have held that the following are critical stages:

1) examining trial 2) line up 3) any other time the power of the state to prosecute has been invoked such as pretrial hearings, trial itself, etc.

Motion to Quash/Setting Aside the Indictment Defense counsel may challenge the substance of the indictment (e.g. because it fails to allege a crime) or the form of the GJ's indictment based upon the way it indicted the D. A D can challenge the form of the indictment, specifically related to the GJ itself on the following grounds: (3)

1) fewer than 9 GJ (a quorum) voted on the indictment 2) an unauthorized person was in the room when the GJ deliberated 3) the GJ was illegally impaneled REMEMBER - just because indictment is set aside, it does NOT mean the D is free and can't face charges again. Double jeopardy does NOT apply In these instances, the D must file a written motion to set aside the indictment; he carries the burden to prove one of the above violations occurred. Any issues of fact related to the motion, in this instance, must be determined by the judge not the petite jury.

Depositions as a Method of Discovery The State or the D may request a W's deposition. Parties who wish to depose a W must take the following steps:

1) file an affidavit with the clerk that includes "facts necessary to constitute a good reason for taking the W's deposition 2) file an application to take the deposition; and 3) provide notice of the affidavit and the application to the opposing party Requesting a deposition through a standard discovery order will not suffice After the party has taken the three steps the trial court conducts hearing to determine whether there is good reason to take a deposition. The court must base its decision to grant or deny the application upon the facts known at the time of the hearing.

However, for a W's testimony to be admitted without her presence at a subsequent hearing or trial, the attorney proffering that evidence has a substantial burden to overcome. The witness must be unavailable - out of the state or deceased - for examining trial testimony to be admitted at trial. Furthermore, after discussing the D's constitutional right to confront witnesses, the TXCCA stated In seeking to reproduce testimony of an unavailable witness given at a prior examining trial, the state has the burden of establishing clearly and satisfactorily that the testimony was (4)

1) given under oath, 2) that it was competent, 3) that the accused on trial is the same accused who was present, as an accused, at the examining trial and 4) that the accused had adequate opportunity through counsel to cross-examine the deceased witness. Supplementing this constitutional test are the statutory standards of Article 39.01: That the deposition be duly taken before an examining trial and reduced to writing and certified according to law; that is, when a statement of facts taken by a court reporter is authenticated by State and defense counsel and approved by the presiding magistrate, and delivered to the clerk of the trial court In practice, it would be difficult for most attorneys to meet all the above requirements, which means that the examining trial testimony of an unavailable witness would likely not be admissible at a subsequent trial or hearing.

Exceptions to the Exclusionary Rule/FOPT

1) good faith exception 2) independent source doctrine 3) attenuation

2nd degree felony -

2-20 years and $10,000

The prosecutor has ____ days from the time the court makes its ruling to file the interlocutory appeal.

20

Who May Be Present During Proceedings? The actual proceedings - the prosecutor's presentation, the questioning of witnesses, the deliberations - are addressed in detail by the Code. The GJ have a room secured by a bailiff where they hear testimony and deliberate. The only people permitted to be in the room when they are hearing evidence are: (7)

1) grand jurors 2) bailiffs 3) the attorneys representing the State of TX 4) witnesses 5) interpreters (if necessary) 6) a court reporter 7) someone operating video teleconferencing equipment in the event the witness is testifying remotely Prosecutors can sometimes need experts, which is usually fine. D attorney, Suspect is typically NOT there. Aside from these individuals, no one else is permitted to be in the room.

TX has bifurcated trial:

1) guilt or 2) sentencing Most states only allows judges to do sentencing, but D's can elect whether to have judge or jury do sentencing Ds may fear that juries will punish more severely. Or may think jury is more sympathetic. In Harris County, it was far more common for Ds to elect for jury sentencing because there were a lot of former prosecutors as judges and thinking is that they will be harsher

At examining trial, D must be warned that (3)

1) he has a right to make a statement about the charges made against him 2) he cannot be compelled to make a statement, but 3) if he does make a statement, it may be used as evidence against him

Attorneys sometimes seek recusals for other reasons. TXCCA: A Texas judge may be removed from presiding over a case for one of three reasons:

1) he is constitutionally disqualified under TXC (above) 2) he is subject to a statutory strike under Tex. Gov't Code Ann. § 74.053; or, 3) he is subject to statutory disqualification or recusal under Texas Supreme Court rules. Generally, a motion to recuse seeks to prevent a judge from hearing a case because of a nonconstitutional reason, while grounds for disqualification are limited to those identified in the Texas Constitution.

Sua sponte dismissal by court can occur in limited circumstances.

1) if D's speedy trial rights were denied 2) defect in the charging instrument, or 3) if the D is in custody and the P hasn't presented a charging instrument before 180 days after incarceration The D can move to dismiss the case, and the court doesn't find PC, the court will dismiss.

Texas specific exceptions where cops can search phone without a warrant (3)

1) if the phone is reported stolen by the owner 2) if the officer reasonably believes the phone is in the hands of a fugitive that has committed a felony (in other words, a felon with a warrant for arrest). -Limited: if they search the phone then they have to seek a post-arrest search warrant legitimizing the earlier search. -If the M refuses to issue the warrant after-the-fact, the evidence is inadmissible. 3) exigent circumstances -Hostage situation, threat of death/serious bodily injury Aside: have to establish *consent to search in Texas by clear and convincing evidence.* But there are examples where just telling police the pass code is considered consent.

Prosecutor can move for venue change - (3)

1) if there improper influences (D is really popular) or 2) the "lawless conditions" - the town can't give a fair trial 3) If the state can show that the life of anyone, Ws, etc.would be in danger, they can move. Standard - if judge finds that the concern is well founded they can change venue. Very broad discretion to Trial judge

When a D pleads guilty, he is waiving his right to jury trial. Constitutional right, so there are requirements: (4)

1) in person, in writing or in open court on the record 2) court AND State has to consent and approve of waiver 3) D cannot waive jury trial in capital offense when facing death penalty 4) felony case - must be represented by counsel to waive jury trial right

Car is subject to less stringent warrant requirements for searches and seizures for 2 reasons:

1) inherent mobility of car creates exigent circumstances that make strict enforcement of warrant requirement impossible 2) lesser expectation of privacy in car. However, cars are "effects" and within the scope of 4th amendment, so impoundment must be reasonable under 4th amendment.

Cars are subject to less stringent warrant requirements for searches and seizures for 2 reasons:

1) inherent mobility of car creates exigent circumstances that make strict enforcement of warrant requirement impossible --Can easily be driven away/ hidden 2) lesser expectation of privacy in car. --Can peer in through windows Most other warrantless search exceptions are applicable to car searches as well.

Purpose of bail is to secure D's attendance at trial, and M may impose any reasonable condition related to the safety of a V of the alleged offense or the community. Conditions must not impinge unreasonably on constitutional rights; they cannot be a punishment before conviction. A condition of pretrial bail is judged by three criteria:

1) it must be reasonable 2) it must be to secure the D's presence at trial, and 3) it must be related to the safety of the alleged V or the community. Review standard: abuse of discretion. D bears BOP to show TCt abused discretion

Challenging the arrest, search, or seizure before a jury is risky.

1) jurors are not knowledgeable about the law on evidence suppression. 2) in order to challenge the lawfulness of a search, the D must raise a fact issue. This means that the D must admit testimony or evidence, which may require the D to testify. Unlike a suppression hearing, where the D's testimony is limited to the issues surrounding the lawfulness of the search, the D's testimony at trial is not limited and neither is cross-examination by the prosecutor. Still, juries in TX are called upon to set aside unlawfully obtained evidence, and sometimes they don't.

If the judge follows the recommendation of the P in a negotiated plea, the D's right to appeal is limited to (2)

1) matters the judge permits to be appealed or 2) matters raised through written, pretrial motions.

If form or substance errors exist, the D may challenge the charging instrument through: (3)

1) motion to quash, 2) motion to set aside, 3) motion to dismiss the indictment or information. These are interchangeable, and most file a motion to quash. If the motion is granted, the prosecutor is forced to dismiss the case. The prosecutor may then recharge the D, either by seeking a re-indictment or by amending the charging instrument. In most cases, substance and form errors can be corrected through a new indictment or information. In rare cases, no amount of amending or abandoning the charging language will help. This may occur when the facts initially seem to support a criminal charge but, upon further investigation, do not, or when what is charged is not actually criminal conduct.

What is discoverable by the state? You do not have a lot of discovery available to you from the D. No reciprocal discovery really in Texas, very limited What is required by the D to turn over to the State: (2)

1) names of any expert witness the D plans to call 2) if D intends to raise insanity or entrapment defense, must notify P Other than that, there's no requirement that the D turn over any evidence to the State. Rationale: the D doesn't necessarily have to have any evidence. The BOP is entirely on the State to prove their case BRD.

In addition to providing a test, Art 39.14 lists things the State may be required to produce or permit to be copied: (6)

1) offense reports 2) the D's written or recorded statements 3) the written or recorded statements of Ws 4) the written or recorded statements of any law enforcement officer 5) any designated documents, papers, books, accounts, letters or photos 6) tangible things

In Terry, the Court adopted a two-part examination to determine the reasonableness of an investigative detention:

1) officer must have specific, articulable facts that, when combined with rational inferences therefrom, lead him to reasonably conclude that 2) a particular person actually is, has been, or soon will be, engaged in criminal activity." -objective standard, thus there need be only an objective basis for the stop; the subjective intent of the officer is irrelevant. -A 911 police dispatcher is ordinarily regarded as such a cooperating officer for purposes of making [**6] this determination." -[A]lthough the information provided need not lead to the conclusion that an identifiable penal-code offense has occurred, the information must still be sufficiently detailed and reliable to support the reasonable suspicion that criminal activity is about to occur." -[A]ctions in a series may each seem innocent enough in isolation. If, however, when examined in the context of the totality of the circumstances, they reasonably suggest recent or imminent criminal conduct, an investigative detention is justified." -The relevant inquiry is not whether particular conduct is innocent or criminal, but the degree of suspicion that attaches to particular non-criminal acts." -*At a minimum, however, "[t]he facts must show that an unusual activity occurred" and that "the unusual activity is related to a crime*." Martinez, 348 S.W.3d at 925. -The reasonable suspicion determination is made by considering the totality of the circumstances." Arguellez, 409 S.W.3d at 663 (quoting Garcia, 43 S.W.3d at 530)

Inventory typically occurs in two situations:

1) person is arrested, brought to station and inventory items on person 2) car is impounded, police will inventory contents of car. Same with suitcase, etc. *Purpose*: police want to make sure there's nothing in the car, etc. that could be dangerous. Weapons, explosives. Also protecting themselves against claims they stole items.

Non-Discoverable Evidence There are two categories of non-discoverable evidence:

1) privileged evidence 2) work product

In TX, there are quite a few statutory requirements for a plea: (3)

1) proper admonishments made 2) proper waivers made 3) in some cases, the State must put on substantiating evidence of guilt

*Indictment serves two functions:*

1) provides notice of the offense in order to allow a D to prepare a defense 2) indictment serves a jurisdictional function. --The filing of an indictment is essential to vest the trial court with jx over a felony offense. --Jx vests only upon the filing of a valid indictment in the appropriate court

Recall the pleading D has three options:

1) pursue a negotiated plea 2) pursue an open plea 3) pursue a jury trial on punishment only

When the judge "busts the plea", the parties are left with the options of

1) renegotiating the plea, 2) seeking an open plea, or 3) setting the case for trial.

The D has several statutory-given rights at an examining trial: (7)

1) right to counsel 2) right to be present 3) right to cross-examine 4) to confront Ws 5) to subpoena Ws 6) to compel subpoenaed Ws to appear in court 7) D has the right to testify, to make an unsworn statement, to remain silent or assert 5th Amd privilege against self-incrimination

Finding of Dangerousness If the judge or jury finds the D not guilty by reason of insanity, it is deemed a legal acquittal, but it is not treated the same as an acquittal. After a jury returns a regular not guilty verdict, the D is free and clear of the charge. Once a person is acquitted by reason of insanity, however, the judge must immediately determine whether the acquitted is dangerous. The acquittee will be deemed dangerous if (3)

1) she caused serious bodily injury to another, 2) placed a person in imminent harm of serious bodily injury, or 3) threatened someone with a deadly weapon that would have caused serious bodily injury. If the judge finds the acquittee dangerous, the TCt retains post-acquittal jx over the acquittee. If the judge determines she is NOT dangerous, but is mentally ill or intellectually disabled, the acquittee may still face civil commitment, placement in a facility, or placement with a caretaker. If the judge determines the insanity acquittee is not dangerous and is no longer mentally ill or disabled, the acquittee is set free.

DWI checkpoints - deemed a suspicionless search with the goal of detaining people and detecting crime. Since it's a suspicionless search, there has to be a mandatory procedure that cabins police discretion. Courts weigh public interest vs. private right to privacy, three factors

1) state's interest in prevtening accidents by drunk drivers 2) effectiveness of the roadblock in preventing accidents 3) level of intrusion on driver's privacy In TX, they are unconstitutional unless party of an authorized statewide procedure overseen by a politically accountable governing body with constitutional policies in place. *To date, no DWI roadblock has met these criteria. Thus NOT PERMITTED IN TEXAS!* *Holt v. State* (1994) - until TXL authorizes a statewide procedure, there can't be DWI checkpoints Technically, DWI checkpoints could be constitutional in TX, but so far none have been. Instead in TX, the police just swarm an area with a lot of DWIs. Just wait for traffic violations and pull people over.

Types of Subpoenas A subpoena is a judicial order to appear in court at a specified date and time. There are two types of subpoenas:

1) subpoenas issued to people 2) subpoenas requesting things or evidence that people need to bring to court, called a *duces tecum* ("bring with you"). Used all the time in depositions if you want W to bring documents.

The Code deems a person incompetent if he does NOT have: (2)

1) sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, OR 2) a rational as well as a factual understanding of the proceedings against him

4th amendment does not bar police for warrantless searches to provide emergency aid. A specific type of exigent circumstances exception. Emergency aid exception requires that officers need to act immediately to protect or preserve life or to prevent serious injury. -As with all warrantless searches of a residence, BOP is on the state to justify the search. To justify the search under the emergency doctrine, state must show: (2)

1) that the officers had PC to search the residence, and 2) that obtaining a warrant was impracticable because the officers reasonably believed there was an immediate need to act in order to protect or preserve life or prevent serious bodily injury Does not have to be actual emergency, but rather that the officers objectively reasonably believed there was

The TX Code states that the P "shall disclose to the D any FEMI document, item, or info in the possession, custody, or control of the state that tens to negate the guilt of the D or would tend to reduce the punishment for the offense alleged." There are a few key differences between the Brady rule and the Code's rule.

1) the Code mandates disclosure even without a request. -This means that D need not request disclosure for Brady evidence before he is entitled to receive it -The duty is on the P to disclose, not on the D to request 2) the Code requires the P to disclose impeachment evidence whereas the Brady court did not -Another expansion of Brady and Art. 39.14 can be found in Rule 3.09(d) of the TX Disciplinary Rules of Professional Conduct. This rule requires Ps to: make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal -Rule 3.09(d) thus requires Ps to turn over ALL favorable or mitigating evidence, not just admissible evidence, regardless of whether it is material. -Recall that Brady required the govt produce only material exculpatory evidence. TX removes the materiality component entirely.

Waiving the Right to a Jury Trial Requirements for a legal waiver:

1) the D is not charged with capital murder and facing death sentence 2) the D appears in person in open court 3) the D waives his right to jury trial in writing; and 4) the court and the P consent to the waiver. 5) D must be represented by an attorney at the time of waiver. Assuming the D waived his right to trial legally, he can plead guilty.

Observe a few things about TRE 404(b)

1) the D must make a timely request for notice of extraneous offenses the State plans on using at trial 2) the State's notice must be reasonable. Reasonable refers to the timing of the notice; notice must be given within a reasonable time before trial begins. -Notice may be unreasonable if delivered on the day of or the day before trial. 3) Rule 404(b) does NOT require notice to be written. However, the TXCCA stated that "the State's open file policy does NOT comply with Rule 404(b)'s above-discussed requirement that the State provide notice in advance of trial of its intent to introduce such extraneous evidence in its case in chief. The best practice is to put the notice in writing, detail the extraneous offenses the State intends to offer at trial, and verify that the D counsel received the notice.

CHAPTER 9: DISCOVERY When criminal cases have not been dismissed by the prosecution or when Ds do not want to plead guilty, the parties begin to prepare for trial. While the D team continually discovers more and more about the evidence the State has against the D, it is often when the case begins to head toward trial that the discovery process accelerates, and the defense may demand more info and evidence from the State. One of the most significant differences between civil litigation and criminal litigation lies in the process of discovery. Civil cases rarely go to trial. Thus, the battle in civil litigation is not trial, but discovery. In criminal law, plea negotiations and trial may be combative, not discovery There are several reasons why discovery in criminal practice is not designed to be a battleground.

1) the P carries the BOP, which means that all evidence needed to convict the D is in the State's possession Thus, discovery is generally one-sided. 2) the primary role of the P is to seek justice, not convictions. The Code states that Ps "shall not suppress facts or secrete Ws capable of establishing the innocent of the accused." -This requires Ps to be particularly open about favorable, mitigating, impeaching, or exculpatory evidence, referred to as Brady evidence. 3) with two limited exceptions, if the D requests info or evidence in the State's possession, the State must produce it ASAP. -Simply put, the P has a clear duty to turn over discoverable items requested by the defense and Brady evidence. -The laws in TX, therefore, are designed to make discovery straightforward.

If the judge orders the CI's identity disclosed because he has knowledge related to the guilt or the innocence of the D, several consequences may follow. (3)

1) the State can disclose the identity to the D team. 2) if the State chooses not to disclose the CI's identity, the judge may order disclosure if the CI's testimony is relevant to the issue of guilt/innocence or if the judge finds the informant not credible. 3) the judge could order the State to dismiss the charges supported by the CI's testimony.

Note that the list refers to items already in the State's possession, custody or control. This hints at two discovery truths:

1) the State is not generally required to create evidence that does not already exist 2) the State is not generally required to provide discovery for info and items that are not within its exclusive possession or control In other words, if D counsel can obtain evidence without going thru the State (e.g. the D's own medical records), the State has no duty to provide the item.

Process: How does this work?

1) the State will assert this privilege 2) the D must make a plausible showing that the CI will be able to provide necessary evidence 3) Trial judge then holds an in camera ex parte hearing (D NOT present) on whether the CI can provide relevant evidence necessary to establish guilty/innocence/legality of obtaining evidence. 4) If the court determines after this in camera ex parte hearing that the CI's name and identity is relevant then the court will order the P to turn over the CI's info 5) if the P still refuses to reveal the CI's name and identity, then court must dismiss the charge against the D.

Criminal episode: one of two things:

1) the act is pursuant to the same transaction, or the pursuant to two or more transactions the common scheme or plan 2) if its the same/similar offense repeated over and over. EX: serial killer who murders 4 different people. - -Same/similar crime committed by same D, can be joined in a single indictment. Pretty easy to get joinder because the language is so broad One thing that does limit prosecutors is the same indictment (will be the same trial)

In a Franks hearing, the D must prove by a preponderance (3)

1) the affiant made at least one false statement in the search warrant A; 2) the false statement was made intentionally, knowingly, or with reckless disregard for the truth; and 3) the false statement was material. In other words, but for the false statement, the warrant would lack PC. This is a heavy burden. It is rare that Ds succeed. In many cases where a Franks hearing is held, the trial court finds no material misrepresentations, but accidents or unintentional mistakes.

There are several requisites of an arrest warrant. An arrest warrant is comprised of two documents, both of which have independent legal requirements:

1) the complaint that contains probable cause for the arrest and 2) the warrant itself

Special venue statutes expand the number of counties in which an offense may be prosecuted. These special venue statutes have been enacted for various reasons, such as:

1) the difficulty of proving precisely where the offense was committed; 2) the location where evidence of the crime is found; 3) the effect that a crime may have upon several different counties; or 4) the effect that the actor may have upon various counties.

Police officers engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute. They do so acting out of concern for the safety of the general public. These community caretaking functions include, among others,

1) the duty to reduce the opportunities for the commission of some crimes through preventive patrol and other measures, 2) aid individuals who are in danger of physical harm, 3) assist those who cannot care for themselves, and 4) resolve conflict. And while not all of these community caretaking functions will justify a warrantless entry and search of a private residence, the U.S. Supreme Court has recognized that, the need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency. The Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid -- the emergency doctrine

The exceptions to the CI privilege rule permit disclosure if

1) the informant's ID has already been voluntarily disclosed, 2) the informer is called as a witness, or 3) when "the informer can give testimony necessary to a fair determination of guilt or innocence."

Complaint - must contain a sworn statement under oath before a magistrate that another has committed some offense against the laws of the State and contain: (4)

1) the known name of the accused or, if the name is unknown, give a reasonably detailed description 2) the criminal offense the accused committed and that the affiant believes the accused committed this offense 3) as definitely as possible state the time and place where the crime was committed; and 4) it must be signed by the affiant

Defense Continuance Motions Based on Witness Unavailability Requirements are different for D. D must establish the following in first motion for continuance: (6)

1) the name and place where the W resides, if known 2) due diligence - what the D has done to locate and secure the W (issuing a subpoena is NOT enough), and 3) justification that the W's testimony is material to the defense 4) not procured - that the D has not encouraged or caused the W to be absent 5) that the motion is not made for delay; and 6) that there is no reasonable expectation that the W can appear on a different day of the current proceeding More requirements so the D won't drag their feet. That it's not the fault of the D that they need this delay.

Prosecution Continuance Motions Based on Witness Unavailability Can ask for continuance for all kinds of reasons. Common reason: W can't make it (has a wedding, vacation, etc.) The prosecutor must demonstrate the following things the first time she seeks a continuance: (3)

1) the name and place where the W resides, if known 2) due diligence: what the P has done to locate and secure the W (issuing a subpoena is NOT enough), and 3) that the W's testimony is material to the State

Before questioning, the GJ must first inform the D about: (3)

1) the offense he is suspected of committing 2) the county where the crime happened, and 3) when the crime was committed D must be informed of all this for the testimony to be used against D later.

Most of the privileges under the TRE work in favor of the D (husband-wife; physician-patient; clergy). TRE 508, titled "Informer's Identity Privilege" gives the govt a privilege to refuse to disclose a person's identity if:

1) the person has furnished info to a law enforcement officer or legislator who is investigating a possible violation of law; and 2) the info relates to or assists in the investigation

Several restrictions apply to amendments: (6)

1) the prosecutor must seek the trial court's approval to make the amendment and must amend with the court's supervision 2) the prosecutor must notify the defendant 3) the amendment must be done before the date the trial begins 4) if the D requests time to respond to the amendment, the court shall grant the D not less than ten days, unless the D requests a shorter period of time 5) a prosecutor may amend after trial begins but ONLY if the D does not object 6) an indictment or information may not be amended over the D's objection if the amendment charges the D with an additional or different offense or if the D's substantial rights are prejudiced.

Defense counsel must be aware of the following things when advising a D about plea bargaining:

1) the punishment range for each level and type of offense 2) whether the type of punishment the D desires (EX: deferred adjudication or probation) is available given the charged crime 3) whether the judge or jury can award the desired punishment

The State's Duty to Keep the Victim Informed Crime Vs have several rights, one of which is, upon request, to be informed by the P about the process of the case. The Code grants victims:

1) the right to be informed by the State about plea negotiations and 2) the right to provide pertinent info related to sentencing To this end, the P shall assist Vs in completing V impact statements and ensure that the judge has the statement before sentencing or before a plea agreement is accepted. While these rights permit the V to be informed about pleas and participate in them, if desired, the Code states that "A victim, guardian of a V, or close relative of a deceased V does NOT have standing to participate as a party in a criminal proceeding or to contest the disposition of any charge."

Capias warrants differ from arrest warrants in at least two ways:

1) they are issued by a judge or a court clerk, NOT a law enforcement agency 2) purpose is not to authorize the arrest of a person for committing a crime but to authorize an arrest as a consequence of an issue that has arisen while a case is pending. The capias directs a law enforcement officer to arrest the person immediately and bring her before the court.

NOTICE this holding gives a number of bites at the apple to the State:

1) they had an order to turn over this evidence 2) then it had to be disobeyed 3) then there had to be bad faith 4) then the D has to be surprised by the testimony. If any of these steps are not satisfied, the trial court does not abuse its discretion in allowing the State's expert to testify on rebuttal.

Brady Evidence A person unfamiliar with criminal law practice might assume that the State possesses only incriminating evidence against the D. This is false. The State may find favorable, exculpatory, or mitigating evidence, or evidence that impeaches the State's W. The State or its agents might discover this kind of evidence at various stages. For example, the investigating detective may have originally suspected someone else. The P may discovery a lie from a W about what happened on the night of the crime. A P's investigator may interview a W who suggests the D was acting in self-defense. All of these hypos have two things in common:

1) they involve govt actors or agents, 2) who discovery favorable, exculpatory, mitigating or impeaching evidence (FEMI). This category of evidence is called Brady evidence.

The Threefold Purpose of Examining Trials Only Ds charged with felonies may request an examining trial. The examining trial's purpose is threefold:

1) to determine whether PC exists 2) to set bail 3) to permit informal discovery through evidence, W testimony, and/or the accused' voluntary testimony The primary purpose of the examining trial is to determine whether there is PC to believe the D committed the charged offense.

Texas courts have permitted the veil of grand jury secrecy to be pierced in only a few instances. Evidence of what transpired before a grand jury is admissible only when, in the judgment of the court, it becomes material to the administration of justice that disclosure be allowed. Such as:

1) to impeach witness or prove perjury 2) to refresh memory of witness 3) to show circumstances in which grand jury secrets became known 4) to determine whether jury was made up of required number of persons 5) to determine whether unauthorized person was present when the jurors were deliberating or voting 6) to prove elements of malicious prosecution In each instance in which disclosure may be obtained, it may only be obtained by judicial order.

RECUSAL The TX Code of CrimPro and the TXC include a limited number of scenarios that mandate judicial recusal or removal from presiding over a case. Under both, a judge cannot preside over a COA in the following instances:

1) when the judge is the injured party 2) when he previously acted as a prosecutor or D counsel in the present case, OR 3) when he is closely related to either party (3rd degree to V or D)

There are two ways to receive a continuance:

1) when the parties agree in open court to continue the matter for good cause 2) when the parties cannot agree and the moving party establishes sufficient cause. -In this second instance, the party who seeks a continuance must file a written motion with the court demonstrating the reason why the continuance is needed. -In either instance - agreed or not - the continuance will be granted only for as long as necessary. -All motions for continuance must be sworn to by someone who has personal knowledge about the facts that support the request for continuance. -Denial of continuance is considered under abuse of discretion standard - most leeway for TCt.

Two things the court looks at to determine whether the trial court abused its discretion in allowing in the State's expert in violation of the discovery order:

1) whether the P acted in bad faith 2) whether the D counsel could have reasonably anticipated the W testifying.

Courts examine the TOTC using following factors objectively to determine whether the D freely consented to a search: (8)

1) whether the actions of the officers could be classified as flagrant misconduct 2) whether the police threatened to obtain a search warrant if the suspect did not acquiesce or police officers claimed a right to search 3) whether police first gave the suspect Miranda warnings 4) whether person was in police custody at the time of consent, the length of detention was long, officers arrested the person to obtain consent, or the person was arrested at gunpoint 5) whether the S knew that he could refuse to allow a search or consent was given in response to a police request. There is NO duty to warn of a right to consent; but it's a factor 6) whether the person's age, education, intelligence, and physical condition at the time consent was a factor 7) whether consent was given following repetitive questioning; and 8) whether the D was physically punished for failing to consent

The GJ must warn the D of his rights before he testifies, both in writing and orally (the warnings are the same): (6)

1) your testimony is under oath 2) material questions answered falsely may lead to aggravated perjury charges 3) you have the right to remain silent when answering incriminating questions 4) you have the right to be advised by your lawyer, who will wait outside chambers, about answering incriminating questions 5) anything you say can be used against you now and in future proceedings; and 6) you have the right to retain or be appointed counsel to advise you how to answer questions that might incriminate you.

Statutory Requirements for Class A or B Misdemeanor Information (8)

1. Begins with "in the name and by the authority of the State of TX" 2. Must be presented by a proper officer 3. It must be presented to a court with jx to hear the case. 4. Must state the name of the accused, if known, and if not known, give a definite description of him 5. The date of the crime must precede the date of presentment and otherwise comply with the statute of limitations 6. the elements of the offense must be written plainly and intelligibly 7. It must conclude with "Against the peace and dignity of the State" 8. It must include a signature of the district or county attorney

Both D and P need to provide notice of any experts you intend to call at trial no later than

20 days prior to trial (the REQUEST made 30 days prior)

When must a D notify the state of his insanity defense?

20 days prior to trial minimum At that point the State can appoint their own experts to examine the D. The court can also appoint expert to examine D, regarding evidence supporting insanity claim. Experts must file report within 30 days.

Statutory Requirements for Felony Indictment (8)

1. Begins with "in the name and by the authority of the State of TX" 2. Must be presented in a district court that sits in the same county as the grand jury who issued the indictment 3. Must state the name of the accused, if known, and if not known, give a definite description of him 4. The place where the crime was committed must be within the court's geographical jx 5. The crime must have occurred before the presentment of the indictment, and the timing of the charge must otherwise comply with the statute of limitations 6. the offense must be written in plain English 7. It must conclude with "Against the peace and dignity of the State" 8. It must be signed by the grand jury foreman

In addition to the elements of the offense, the law requires the charging instrument to include specific info. Statutory Requirements for Class C Misdemeanor Complaint (8)

1. Must be in writing 2. Begins with "in the name and by the authority of the State of TX" 3. Must state the name of the accused, if known, and if not known, give some reasonably definite description of him 4. It must show that the accused has committed some offense against the laws of the State, either directly or that the affiant has good reason to believe, and does believe, that the accused has committed such offense. 5. It must state the date the offense occurred as definitely as possible 6. It must be signed by the affiant by writing his name or affixing his mark 7. It must be filed in the jx where the crime was committed (city for municipal courts; county for justice courts) 8. It must conclude with "Against the peace and dignity of the State" or, if a city ordinance was violated, it must end with the words, "Contrary to the said ordinance."

Individual challenges: The Code also anticipates challenges to the grand jurors individually. Grand jurors can be challenged if the juror: (10) *To challenge, File a Motion to Quash.*

1. That the juror is insane; 2. medically unfit; or legally blind or unable to hear testimony/presentations 3. That the juror is a witness in or a target of an investigation of a grand jury; 4. That the juror served on a petit jury in a former trial of the same alleged conduct or offense that the grand jury is investigating; 5. That the juror has a bias or prejudice in favor of or against the person accused or suspected of committing an offense that the grand jury is investigating; 6. That from hearsay, or other outside info already concluded the guilt or innocence of the suspect 7. is a close relative (within 3rd degree) of the suspect or victim 8. That the juror has a bias or prejudice against any phase of the law upon which the state is entitled to rely for an indictment; 9. That the juror is not a qualified juror (those mentioned above); and 10. That the juror is the prosecutor upon an accusation against the person making the challenge. D is supposed to challenge before empaneled, but can still do so at the first opportunity after identifying the flaw. But it's hard to do, because of lax evidence rules, etc.

Rules for Setting Bail Most Ds are bailable. The Code contains a number of rules that judges must consider in setting bail, which appear verbatim in the 17.15 TX Code of CrimPro as follows: (5)

1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with. 2. The power to require bail is not to be so used as to make it an instrument of oppression. 3. The nature of the offense and the circumstances under which it was committed are to be considered. 4. The ability to make bail is to be regarded, and proof may be taken upon this point. 5. The future safety of a victim of the alleged offense and the community shall be considered.

Article 31.03(a) of the Texas Code of Criminal Procedure provides that a change of venue may be granted if the defendant establishes that: (2)

1. [T]here exists in the county where the prosecution is commenced so great a prejudice against him that he cannot obtain a fair and impartial trial; OR 2. [T]here is a dangerous combination against him instigated by influential persons, by reason of which he cannot expect a fair trial. [While it says "and" it's actually interpreted in the disjunctive "or"]

An arrest warrant must

1. begin with the words "in the name of the State of Texas" 2. Specifically state the name of the arrestee if known, and if not known, give a reasonably definite description Specifically describe person to be seized. ---Can't just be "unknown white woman" 3. State the crime the person is accused of committing; and --Offense and where it occurred with reasonable particularity 4. Be signed by the magistrate, with the magistrate's office being made clear in the body of the warrant or through his signature. If the police accidentally execute an unsigned warrant, the warrant itself is defective, but it would fall under the good faith exception if the police thought it was valid.

If the amendment does occur (not charging a new offense or the D agrees) then the D gets a _____ to prepare for the new info.

10 day continuance

The Code requires that the Court give the parties ___ days' notice of the pretrial hearing and it also requires pleadings to be filed __ days before the hearing.

10; 7

Court of Appeals -

14 TX ACts that possess regional jx. They mandatorily review all Class A and B misdemeanor appeals and non-death penalty felony appeals Have one appeal as a right

Within ___ days, the expert must file a written report detailing how she conducted the evaluation, and listing her observations, opinions, and conclusions as to whether the D was sane or insane at the time of the crime. These two experts cost the D nothing; the county pays their fees. The D may hire experts of his choosing. The judge must provide this expert an opportunity to evaluate the D.

30

39.14 Disco Removal of evidence -

39.14 does NOT authorize removal of evidence by D counsel. D counsel can inspect tangible evidence, they are NOT permitted to remove it. Can inspect and have an expert inspect under the supervision of the State.

Depena v. State, 148 S.W.3d 461, 463 (Tex. App.—Corpus Christi 2004) FACTS: D complained that State violated a discovery order by not turning over the name of an expert W the State called on rebuttal. STATE: didn't have to name rebuttal Ws. As a general matter, this is true. The State doesn't have to name lay Ws they're planning on calling on rebuttal because the rebuttal is after the D's case-in-chief. The State doesn't necessarily know in advance what the D is going to argue, the Ws the D will call because the D hasn't had to turn over any disco to the State. So it's no uncommon for the State to be somewhat surprised by what the D does in its case-in-chief, so the State's rebuttal Ws will depend entirely on what evidence the D produce. Thus, the State can't know in advance what lay Ws the State will call in rebuttal. So, generally speaking the State does NOT need to inform the D of the lay Ws that will testify in rebuttal. But the court here holds, in terms of EXPERT WITNESSES:

39.14 requires that the State inform the D of all experts it intends to call, and doesn't create an express exception for rebuttal expert Ws. Thus, interpreting 39.14 strictly, the court held that the State needs to inform the D of expert rebuttal Ws. Exception: when the D raises a completely unexpected defense in his case-in-chief; and the State, surprised by this, needs to call an expert in rebuttal. In that instance, because the State would not have been able to anticipate what expert they would need to call, the Court may allow for that expert to testify, even though their name was not revealed in advance. So, if the D case's theory is unforeseen, case law will allow the State to call an expert rebuttal witness that wasn't previously disclosed. HERE, however, the defense theory was NOT unforeseen. The D disclosed their expert, the State was well aware of what their defense would be. STATE: there was no time to disclose their expert to the D because they didn't know the expert existed until the D testified himself. COURT: Not impressed with the lack of time to disclose argument. The State is under a continuing obligation to disclose. As soon as the D testified and the State was aware they were going to call this expert W, they needed to reveal that to D counsel. HERE, the trial court still allowed the undisclosed State expert to testify. Appellate review standard: abuse of discretion. Two things the court looks at to determine whether the trial court abused its discretion in allowing in the State's expert in violation of the discovery order: 1) whether the P acted in bad faith 2) whether the D counsel could have reasonably anticipated the W testifying. First prong: the P's bad faith The court held that the State did intend to deceive. They knew they were calling the expert, they didn't disclose it until he was on the stand. Second prong: the D's ability to have reasonably anticipated the expert's testimony. -The State's expert testified that the D did NOT test positive for the drug, and was able to urinate. This was important because it destroyed the defense of involuntary intoxication (the D argued that he threw the V off a balcony because he was drugged). -The D could have anticipated this testimony because the D specifically mentioned this expert (doctor) at trial; the D claimed that he had gone to the doctor to get bloodwork. HOLDING: Despite the P's bad faith in not notifying the D of its intention to call the expert, because the D could anticipate the testimony of this expert, the trial judge did NOT abuse his discretion in allowing the State's expert to testify.

When doesn't an individual have a REP?

3P doctrine; open fields; aerial searches; trash searches; dog sniffs; tracking?

When an examining trial concludes, the presiding judge will determine whether the D should face charges or be released. The judge must make a PC finding within ___ hours of the examining trial's conclusion, or her inaction will result in a finding of no PC and the D will be released

48

Executing the Warrant 18.07 - search warrant, once issued, you have ___ days in which to execute it, including date of issuance and execution.

5 Some warrants have longer windows; typically for evidence that takes longer to access: DNA evidence, digital evidence.

1st Degree Felony

5-99 years in jail and possible fine not to exceed $10,000

The P shall depose elderly or disabled persons within ____ days from the time the deposition application is filed unless time must be extended due to the W's poor health or unavailability.

60

Motion to change venue must be flied ___ days before the pretrial hearing.

7 If the moving party fails to file the motion 7 days before the pretrial hearing, she may not subsequently raise a change of venue expect by permission of the trial court upon a showing of good cause

When to File a Discovery Motion When a criminal case is headed to trial, the parties will request a trial date from the judge. Prior to the trial date, the court may schedule a motions or pretrial hearing. Discovery is one of the many topics that are addressed during this hearing. If the court sets a pretrial hearing, a discovery order must be filed at least ____ days before the pretrial hearing date.

7 A discovery motion filed after that time will not be considered by the judge unless the court grants permission for good cause shown.

When must pleadings and motions be filed so they can be addressed at pretrial hearing?

7 days prior to pretrial hearing. Gives the other side opportunity to respond

Among the 12 primary grand jurors, a foreperson is selected; if the foreperson is not present when the GJ is meeting, another foreperson must be appointed. There must be at least ___ grand jurors present to make a quorum; a quorum is needed to discharge any duty or exercise any right given to the grand jury. This includes making a PC determination on a case.

9 If a GJ indicts a D with fewer than 9 grand jurors present, the D can attack the validity of the indictment by filing a motion to set aside the indictment. Vote of 9/12 works. Just need 9.

Grand jurors serve a term that lasts approximately

90 days. GJs are Technically a unit of the DCt. These grand jurors meet each week, usually two days per week. The workdays may be short or full, depending on the number of cases scheduled to be heard. Few people are able to serve this long or frequently due to work or personal obligations The demographics of GJs are different from general public. Tend to be retirees.

CHAPTER 8: PLEA NEGOTIATIONS

97% cases are resolved by guilty pleas. Not just in TX, but throughout the US. Courts are already overwhelmed with the small % that go to trial. P is NOT required to cut a deal. Could take every case to trial. But with limited resources, they don't want to. It comes down to negotiation between the State and the D. Considerations of K law, but also negotiation law.

The Code makes clear a felony complaint charges an offense, yet the TXCCA has stated it does NOT amount to a charging instrument for a felony offense in a felony court The Court described it as, the initial step of an action instituted to secure an accused's conviction and punishment In felony cases, it is filed with a magistrate who issues an arrest warrant. In sum, a felony complaint filed with a court is a legal document used to initiate the criminal process against an accused or, if it is filed with a magistrate, it may be used to secure an arrest warrant, but it is not the felony charging instrument. Before a felony case is indicted, which may take up to 90 days, the charging instrument used in court is an information.

A D can waive her right, guaranteed by the TXC, to a grand jury indictment, and plead guilty to the crime before the grand jury hears her case. When this happens, she proceeds to the plea on the felony information. Recall that the State presents the information, not the grand jury.

Grand jurors are supposed to represent the community and act fairly and honestly in carrying out their duties. What if they are not representative of the community, were chosen in violation of the law, or are biased?

A D may want to challenge the grand jury's composition or challenge a specific grand juror for these or other reasons. So there's two different mechanisms. One statutory, and individual challenge

But what happens when bail is set and the D asks that it be lowered?

A D who cannot make bail may seek to have it reduced by filing a written writ of habeas corpus When a lawyer files a habeas petition, the lawyer is asking for a court to order the release of the prisoner from custody. The writ, if granted, commands the person who has custody of the prisoner to produce the prisoner at the time and place named in the writ and show why he is being held in custody or under restraint. In the case of bail, the remedy sought by a habeas is to produce the detainee and show why he is being held in custody on a bail he cannot afford.

Generally, though, recusal is not required when based solely on judicial rulings, remarks, or actions

A judge's remarks during trial that are critical, disapproving, or hostile to counsel, the parties, or their cases, usually will not support a bias or partiality challenge, although they may do so if they reveal an opinion based on extrajudicial information, and they will require recusal if they reveal "such a high degree of favoritism or antagonism as to make fair judgment impossible." On the other hand, "expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women" may display, do not establish bias or partiality. Thus, a trial judge's ordinary efforts at courtroom administration do not render him subject to recusal. Must be based on something more: personal knowledge outside the proceedings or EXTREME hostility.

Capias

A writ similar to an arrest warrant; a judicial writ commanding a peace officer to take a person into custody to answer specific charges Could just call arrest warrant, but TX calls it capias. *When TX already has jx over D*. D already released on bond. Isn't authorizing to arrest because of a committed offense, but just to bring back in after state has jx over them. Not brought back in under arrest warrant, already has jx. Has all the same requirements of an arrest warrant.

You want to suppress D's statement and request a hearing on the matter. D has expressed concern about testifying at the hearing. Will D waive his right to remain silent at trial by testifying at the pretrial hearing? If he does testify at the pre-trial hearing, may P ask whether D is guilty during cross-examination? Explain.

A: Does NOT waive right to remain silent at actual trial. NO. A D's does not waive his right to remain silent by testifying about matters related to the suppression of evidence in a pretrial hearing. The cross at the hearing must be limited to the subject of the suppression, and the P may not ask about the D's guilt. However, any statement the D makes may be used to impeachment him if he testifies inconsistently at trial.

When Can the Defendants Obtain Grand Juror Information? Typically, a court reporter transcribes testimony during questioning. The testimony is thus preserved and may be used in future proceedings. A W's statement before the GJ is only discoverable to D counsel ...

AFTER that W has testified on direct examination.

Recall from the GJ chapter that GJ testimony, which is transcribed, is discoverable only

AFTER the D demonstrates a particularized need for it. Motions for Inspection

Lopez v. State, (ACt Amarillo 2006) FACTS: Cop stopped D because car had blue turn signals in violation of law. Asked D for TDL and insurance, D had neither. No outstanding warrants; also no TDL listed under D's name. Cop asked passenger if he could take custody of vehicle. Passenger gave false name and was arrested for failure to identify himself. Failing to identify yourself to a police officer that has lawfully detained you is against the law D and child in back seat were asked to exit car and car STILA was conducted. Observed "tiny bit" of plastic baggie in crease around gas cap located near driver's side. Cop thought he had PC and pulled release level for gas cap; observed baggie with white powder. D submitted MTS based on lack of PC to search locked gas compartment. ISSUE: Did cop have PC to open locked gas cap without search warrant?

ANALYSIS: Probable Cause: PC is determined at the time of the stop. Scope of search is defined by the object of the search and the places in which there is PC to believe it may be found. -This includes any containers within the vehicle without a warrant. -Foundation for warrantless search of a car is PC, which exists when facts and circumstances within the officer's knowledge or about which he has reasonably trustworthy info are sufficient to warrant a person of reasonable caution to believe that the offense was or is being committed. TOTC *"Immediately apparent" issue:* A practical, non-technical probability that it is in fact contraband or evidence of a crime. -Context matters for plain view. Here, a baggie hanging out of the gas tank HERE: based on cop's testimony that D was stopped in a high crime area for drugs and his experience a car's gas cap area is place of concealing them, he had PC *Plain View*: officer also had PC under plain view 1) police must have a lawful vantage point 2) incriminating character of the object must be immediately apparent HERE: Cop was lawfully in a position from which to view baggie; in the process of issuing a citation. "Immediately apparent" does NOT require actual knowledge of incriminating evidence Certain objects not inherently suspicious can become so under the circumstances, like plastic baggies for drugs Thus, cop had PC to believe the plastic baggie was evidence of a crime Denial of MTS affirmed.

Standard of Review for bail decision by TCt:

Abuse of discretion TCt has a lot of discretion to set bail. In the best position to evaluate. But critics argue that TCt judges are not trained to evaluate the factors involved.

Inventory or Administrative Searches

Administrative, suspicionless search.

Requirements for evidentiary warrant affidavits (3)

Affidavit has to be more particular. 1) Has to establish *PC that a specific offense* has been committed 2) *PC that the specifically described property (LP, receipt, etc.) constitutes evidence of the offense* -This is the *unique* one compared to other warrants -Have to show how it connects 3) *PC that the items are located at that particular place*

Nowhere is power of P more evident than in pleas.

All the power to charge, all the power to recommend pleas in negotiations. Mandatory guidelines have been ruled unconstitutional. But Back when it was allowed, that meant the whatever the P charged, the judge would have no leeway to go outside the mandatory sentencing guidelines.

Automobile Exception to Warrant Requirement

Allows for the warrantless search of a vehicle when police have PC to believe it contains evidence of a crime or contraband. Different than homes. Permits search of a car when officers have PC to believe it contains contraband.

Experts and Investigators for Indigents Defendants

An appointed attorney may need an investigator, mental health expert, or other expert based on the circumstances of the case. Investigators are skilled in tracking down Ws, scouring police records, and piecing together evidence. An expert may be particularly useful in cases involving forensic analysis or scientific/medical testimony.

Investigatory detention (terry stop) vs. arrest

An investigative detention occurs when an officer lacks probable cause to arrest but nonetheless possesses a reasonable suspicion: that is, the officer is able to point to specific, articulable facts that, taken together with rational inferences from those facts, reasonably warrants the detention. The articulable facts used by the officer must create some reasonable suspicion that some activity out of the ordinary is occurring, or has occurred, some suggestion to connect the detainee with the unusual activity, and some indication the unusual activity is related to criminal activity. *An arrest, on the other hand,* is a greater restraint upon a person's freedom to leave or move than is a temporary detention which also restrains a person's freedom. "If the degree of incapacitation appears more than necessary to simply safeguard the officers and assure the suspect's presence during a period of investigation, this suggests the detention is an arrest." Whether a person is under arrest or subject to a temporary investigative detention is a matter of degree and depends on the length of the detention, the amount of force employed, and whether the officer actually conducts an investigation.

Constitutional requirements relating to the right to counsel

Any case that can result in jail time. *Felonies* - always entitled to appointed counsel *Misdemeanor* - if a D is tried for a misdemeanor, and doesn't actually get sentenced to jail time, the fact that he potentially faced jail time but didn't get sentenced to any jail time deprives him of that right. Can't later claim that he should have had counsel because he potentially could have faced jail time. As long as he hasn't been sentenced to jail in a misdemeanor case, his rights haven't been violated.

Who can be subpoenaed?

Anyone over 18 Child - subpoena the guardian/custodian of child.

Work Product Immunity

Applies to any documents created in anticipation of litigation. It is not "evidence"; it refers to things the state creates in anticipation of litigation: P's thoughts, interview notes, strategy, etc. are protected under the work product privilege/immunity

Arraignment vs. examining trial

Arraignment - fixes identity of D, assign counsel, plea Examining Trial - assesses PC

When does arraignment happen?

Arraignment is supposed to happen after the D has been served the indictment and two full days have passed; however, if the D is on bail or waives this requirement, he can be arraigned sooner. D counsel can also waive arraignment entirely.

not all variances lead to reversal. It has to be material. What makes something a material variance?

As long as it doesn't prejudice the D's substantial rights, it is not material. So, to be material, it has to prejudice the D's rights. EX: D is charged with murder of one person, but is then accused at trial of murder of another. These are different crimes, they are different units of prosecution so this is a material variation.

Competency hearing

At competency hearing, D is entitled to attorney The rules of evidence apply Can seek a jury determination of competence (super unusual) It would be a different jury than would try the full case

Examining Trial Procedure Upon arrest, the magistrate must inform the D that he has the right to an examining trial. Only Ds charged with felony offenses have a right to an examining trial.

At the examining trial, Ws are called to testify. If a W is unavailable, a magistrate may postpone the examining trial at the request of either party If the D wants to testify, he may do so voluntarily (he may not be compelled to testify), but the magistrate must provide warnings to the accused before the Ws testify D has the right to be at examining trial, can testify; can make unsworn statement. But must be warned. If D makes statement, must be reduced to writing and signed. Can be used against him later. Rules of Evidence DO apply at examining trial (unlike GJ)

Martinez v. State, 304 S.W.3d 642, 646 (Tex. App. 2010) What distinguishes an investigative detention from an arrest?

At the point he stops them in the car, he has RS, which is a terry stop/investigative detention. After pulled over and detained: -He gave a confession without Miranda warnings -Only get that warning if you are arrested/in custody. -If they were only detained, then confession admissible -Victim was brought to scene and identified suspect and goods stolen -Court holds this is NOT an address under the TOTC. Particularly the safety of the officer. Just detained to keep himself safe.

In practice, most courts schedule a discovery or motions conference, not a formal pretrial hearing.

At this setting, D counsel asks and the P agrees to disclose evidence pursuant to the written discovery motion. The discovery motion may be created by D counsel or it may be a standard discovery motion ordered created by the judge.

What if a vehicle is not mobile?

Automobile exception does NOT apply.

Extraneous offense evidence admitted during the punishment phase of the trial must be proven

BRD.

Independent Source Doctrine

Based on the common law; TX is the same as federal TXCCA: at its core, the independent source doctrine provides that evidence derived from or obtained from a lawful source, separate and apart from any illegal conduct by law enforcement, is not subject to exclusion EX: officers illegally enter a warehouse, find drugs, then leave and prepare a search warrant for the warehouse. If the search warrant has no info from that illegal search but is instead gets PC based on a reliable CI, ER does not apply and subsequent search of warehouse under warrant is valid. If the police acquired evidence by legal means, the fact that they acquired the same evidence illegally does not prohibit the evidence's admission at trial.

State v. Elrod, 395 S.W.3d 869, 874 (Tex. App.—Austin 2013) FACTS: Cops called over because a child wasn't breathing. D babysitter, a regular overnight guest, who had a room that she slept in often. She contended that the dog bit her and she accidentally dropped the child. Kid seemed fine at first, but then stopped breathing. Cops got a search warrant for her computer. D files MTS. Who has the burden of proof?

Because they had a warrant, it's on the D. (If it was warrantless, it would be on prosecution to establish exception). What were D arguments that the warrants were invalid? No PC to support the warrant. STATE: D has no standing to complain about search COURT: Looks at whether D had an objectively REP. Overnight guest has a REP. She had a room in the house and regularly spent the night there. STATE: There was PC to support the search warrant. NOTE: This would NOT be an issue in federal law: as long as officers had good faith believe that the warrant was valid, they can rely on it in good faith. NOT IN TEXAS! A warrant without PC is invalid regardless of the good faith of the officer. All evidence seized pursuant to it will be seized. Here, this is an evidentiary search warrant. It has to set out exactly what they are looking for and where, and also how it relates to the crime because it is mere evidence, not contraband, fruit, or instrumentalities. *What were the STATE's assertions of fact that they argue support PC?* There was a lot of speculation and opinion, belief there would be evidence of assault, but there was nothing really backing it up. Essentially just a statement that the officer didn't believe the D. NOT enough to support PC. *What was the basis for the seizure of the laptop?* State asserts that it was used to research how to conceal evidence. -But this was just speculation. -Because there was no PC for the initial warrant, all subsequent evidence is FOPT.

Crime Specific Conditions of Bail

Bond has discretion to set bail conditions, but is not unlimited. Can be crime specific. -Can't be arbitrary. -Protecting community -Ensuring D appearance at trial -Crime specific to preserve evidence, etc. There are many statutorily-defined conditions of release, some of which relate to specific crimes. EX: DWI - judge may place an ignition interlock device which requires D to provide a breath sample before the car will start. May impose random drug/alcohol testing. -If D tests positive, risks revocation of bond. -However, shoplifting D shouldn't get same ignition device; that's unreasonable. It wouldn't meet three criteria for bail conditions

Affidavit to go off bond What if the bondsman doesn't want to be the bondsman for a particular D?

Bondsman can cancel suretyship because they think D will flee and they will be stuck with bill. Must file affidavit to go off bond. When they do so, they must give D a chance to get another surety lined up.

Appealing Rulings on Motions to Suppress Evidence

Both the prosecutor and D may appeal and unfavorable motion to suppress ruling. If the D's MTS is granted, it could undermine the State's case. If the MTS is denied, the D may decide to plead guilty rather than face a harsher punishment after trial.

Change of Venue Who can move for?

By judge (sua sponte) By state By Defendant - most common

If you are currently representing a criminal D, and the D does not wish to let you go as their attorney, the judge

CANNOT remove you from representation over the objection of the D. So even if you're not abiding by all the rules, if the D wants you to stay, you get to stay through that case.

Federalism and criminal procedure

Federal constitution provides floor of rights; but states can provide more rights States also flush out details criminal procedure.

Can be held in contempt if refuses to testify after given immunity. Or if the court finds that the invocation of the PASI is not valid.

Can be quite lengthy. Even years long. No strict limit on the amount of time a court can hold someone in contempt. PASI is an individual right - can't claim on behalf of someone else (your friend, spouse, etc.) because it would incriminate them. Also, it must relate to criminal liability, NOT civil liability

"Plain smell" searches -

Certain contraband has certain smells; smell alone doesn't create PC. But it is RS EX: pot has a unique smell. However, when cops smell pot they must have PC to search or justify under a warrant exception. -Smell of pot gives RS for investigatory detention (terry stop)

18.02(10) - "Evidentiary warrant" or "mere evidence" warrant Has additional requirements

Circumstantial evidence - tends to prove the crime, but it doesn't fit into other categories EX: an LP bought by the D just before he committed the crime. Tends to tie D to crime, but nothing in and of itself that is incriminating. Because there's nothing on its own that is incriminating, there are extra requirements to cabin police discretion

Knock and announce rule

Code does require police to knock and announce their authority; -It can be waived if M determines it is dangerous to KAA; or that evidence might be destroyed. *If police violate KAA, it does NOT result in suppression of evidence.* -Right without a remedy

Attenuation

Common law exception to ER; TX has the same exception as federal. Technically NOT obtained illegally Refers to an intervening event that occurs between the officer's unlawful conduct and the evidence obtained following that conduct, thus "attenuating the taint" of the unlawful conduct. Attenuation is often raised when a voluntary confession follows an unlawful arrest. Saying "yes, the police engaged in illegal conduct, but the evidence is so far removed from the illegal conduct, it is not the product of the illegal conduct it is not subject to ER" Something has broken the chain that connects the police illegal conduct and the evidence. No longer would serve the deterrent purpose of the ER to exclude evidence.

MENTAL COMPETENCE

Competency is about the D's ability at the time of trial to understanding the nature of the proceedings against him and be able to assist his attorney. All Ds have the right to be competent throughout the criminal justice process.

Powers of GJ:

Conducts investigations Subpoenas Ws, summons If W disregards, can issue an "attachment" (officer will seize and bring them before the GJ) Investigates matter the DA brings and other matters Can issue no bill GJ can indict a completely different person: --EX: Planned Parenthood/Project Veritas case.

CHAPTER 3: WARRANTLESS SEARCHES Texas is basically identical to federal provisions. Yay! Not really statutory; all constitutional/common law. There are TONS of exceptions. Here are the most common:

Consent SITLA Terry Frisks and Protective Sweeps Plain View (Touch, Smell) (Not really a search, more of a doctrine that often works with exceptions) Inventory Checkpoints Automobile Exigency Community Caretaking

Brady Evidence

Constitutional Mandated to be turned over to the D counsel because it is *favorable* evidence that is the *Possession, Custody or Control of the State* In order for a D counsel to be able to adequately prepare his defense, he needs particularly to know any evidence that might serve to exonerate the D or mitigate any punishment or impeach the State's Ws.

Who has the burden of proof with standing?

D bears the burden of proving standing.

Post Trial

D can file motion for new trial (unlikely) Can have one appeal as of right to one of the 14 courts. Harris County: 1st or 14th Death Penalty cases where the death penalty has been imposed goes directly to TXCCA. TXCCA hears appeals on discretionary basis except death penalty where they have to hear If D loses, can file habeas

Teal v. State, 2007 FACTS: Indictment alleged that D intentionally hindered the arrest of the fugitive by lying to police that a fugitive was not at his home. When jury was empaneled the D objected to the indictment and argued that the DCt did not have jx because the indictment alleged only a misdemeanor, not a felony. TCt overruled and D was convicted and sentenced to two years in prison. HERE - D charges that a mes rea element - knowledge that the fugitive was a felony fugitive - was missing.

Court has previously held that if the mens rea element is missing the instrument can still be valid HOLDING: the indictment was sufficient to vest the DCt with SMJ and give the D notice that the State intended to prosecute him for a felony. Though it was missing one of the two elements that raise hindering apprehension from a misdemeanor to a felony, but it was sufficient still to vest jx as it charged an offense and one could fairly conclude from the face of the instrument that the State intended to charge a felony. Finally, if the D was confused, he should have objected prior to trial instead of after the jury was empaneled. Thus, under the 1985 amendment to the TXC, the D's objection was untimely and waived objections to the indictment

How much notice needs to be given of a pretrial hearing?

Court must give 10 days notice

Johnson v. State (2012) ISSUE: Whether a variance between the allegations in the charging instrument and the proof at trial renders the evidence legally insufficient to support the conviction. FACTS: D indicted for aggravated assault. Charging Instrument (Indictment): The count at issue charged the D with intentionally or knowingly cause serious bodily injury to the V by hitting her with his hand or twisting her arm. D is thus expecting proof of this at trial, but at trial the V testified that the D threw her against the wall and that hitting the wall caused her to fall and break her arm. D argued that the variance between the pleading and the proof rendered the evidence legally insufficient to support his conviction. ISSUE: Is the way a murder takes place a material variance?

Court: No, because the end result is the same. Murder is a result crime. There's nothing in the essential elements that you have to establish that murder happened in a particular way. If all you're alleging murder, and the V died from foot on the throat vs. elbow, that's not a material variance. HERE: the fact that the variance between the indictment (hit/twist arm) vs. throwing against the wall is NOT a material variance, because this goes to causation. As long as they show that the D caused the injury, that is fine. How is not material. Remember, if there is a material variance, and a directed verdict, it is essentially an acquittal because DJ has already attached. HOLDING: Because the variance in this case involves a non-statutory allegation that does not affect the "allowable unit of prosecution" the variance cannot render the evidence legally insufficient to support a conviction.

Freeman v. State, 340 S.W.3d 717, 720 (Tex. Crim. App. 2011) FACTS: D was caught poaching animals and killed the game warden, and then shot more officers. It became a big story in the small town. D asked for a change of venue due to pretrial publicity. After D submitted motion to transfer venue, P collected 372 controverting affidavits, which D argues was an attempt to further inflame local prejudice against him. Also, venire pool was 1200 potential jurors, which D argued was also evidence of local prejudice.

Courts have consistently found that going through a large number of potential jurors to get a jury is NOT dispositive for determining that a venue change is necessary. Bottom line: the trial judge has a ton of discretion We review a trial court's ruling on a motion for change of venue for abuse of discretion. If the trial court's decision falls within the zone of reasonable disagreement, it will be upheld. The two primary means for discerning whether publicity is pervasive are a hearing on the motion to change venue and the voir dire process. In this case, the trial court used both. In the past, this Court has found that trial courts acted within their discretion in not granting a motion for a change of venue even where a large portion of the venire had seen publicity about the case. We have also found no abuse of discretion even when many of the venire members stated that they had formed an opinion that they could not set aside.

Discovery Violations When a party fails to comply with a disco request, he risks consequences for noncompliance.

Courts have fashioned common-law consequences for violations, depending on the willfulness of the party and the circumstances of the violation.

Is society willing to recognize a REP in a stolen vehicle exclusively possessed by the D?

Courts: NO.

It is reasonable to expect privacy in personal belongings you take through an airport and on a commercial flight?

Courts: No, because it is objectively unreasonable to have a privacy right in a carry-on bag that you know or should know will be screened at the airport

Saldana v. State, 150 S.W.3d 486, 487 (Tex. App.—Austin 2004) D had plead guilty, received his admonishments, competent, substantiating evidence (confession). The only thing left was the sentencing to determine the punishment. Judge ordered a presentence investigation report. (PSI). Whether the D is eligible for probation, criminal history, etc. In the sentencing, Judge considers this PSI along with D's testimony, and the testimony of his mom. D testified and his mom testified. Here, he was technically pleading guilty, but it sounds like he is not. D tries to withdraw his plea at the time he is giving testimony; he is contradicting himself. He is testifying in a way that maintains his innocence.

D can withdraw a plea up until the point the judge enters it. But here, the judge has already entered the plea, this hearing was just to determine the ultimate punishment. After the court takes a case under advisement, can the D withdraw a plea? --D can try, but it is up to the judge's discretion. Judge can hold the D to the plea because it has already been entered. --Here, the D did not have a right to withdraw plea because the judge had already taken the case under advisement. --If jury sentencing - up to the point where the jury going to deliberate. If a bench sentence - Defendants could withdraw their guilty pleas as a matter of right without assigning any reason until the judgment had been pronounced or the case had been taken under advisement. Thus, defendant did not have an absolute right to withdraw his guilty plea because his request came too late or was untimely because the case had been taken under advisement. Moreover, and most importantly, defendant did not assert the claim or brief the contention that he was denied the right to timely withdraw his guilty plea because the case had not been taken under advisement.

If found not dangerous, could still face civil commitment proceedings if the court finds so ill that a danger to himself if not committed.

D could spend the rest of life in civil commitment for the rest of their life if finds that they pose a danger to themselves or others. This is a separate process; the court's criminal jx ends when the max potential criminal sentence of prison expires.

A discovery order requires the parties to comply with discovery by the date listed on the order, usually 10-20 days before trial. D counsel must confirm there is a date specified on the order. If an order has no date,

D counsel is barred from complaining that the P released the evidence in an untimely fashion.

D attorneys have several roles in the plea process. First, is that of communicator.

D counsel is ethically obligated to communicate plea offers to the D and communicate the D's acceptance or rejection of the offers back to the State. When D attorneys fail to communicate offers to their clients, it may have terrible consequences. EX: Atkins v. State - trial prosecutor offered Atkins 12 years in prison, even though he was facing a statutory minimum of 25 years for a habitual felony DWI. His attorney never communicated the offer. Atkins discovered the 12-year offer on the day of trial and communicated to the court he would have accepted it then and wanted to accept it now; however, the State refused to reoffer the 12-year sentence. On appeal, the Beaumont ACt rendered D counsel's performance ineffective, reversed and reinstated the 12-year offer. Unethical as the practice is, some D attorneys regularly fail to communicate offers to clients. The reason: there is a financial incentive not to do so. An attorney may fear that by communicating the offer to an accepting D, he will lose the chance to receive money the D owes him (and will pay over time) or, in the case of appointed attorneys, lose money he would receive by making a future appearance in court.

While the felony plea D may withdraw the plea if the judge varies from the negotiated plea, the misdemeanor plea

D has no right to withdraw if the judge varies the plea.

MTS Burden of Proof

D has the BOP in motion to suppress initially. If there is a warrant, the D must defeat the presumption that the officers acted reasonably. If there is no warrant the BOP shifts to the State to establish by a preponderance that the search or seizure was lawful.

Cash Bond - paid by the

D in full without employing a surety. If the D appears in court when required, his cash bond is fully refundable. Thus, if the D appears as required every time in court, he gets the full amount back at the end of the case.

However, pleas are less than ideal for the D:

D must waive constitutional right to be presumed innocent, right to trial, right to confront Ws, right to force the State to establishing guilty BRD

Ex Parte Allen-Pieroni, 524 S.W.3d 252 (2016) ISSUE: D appeals TCt's denial of habeas petition to amend bond conditions requiring that she be subject to electronic monitoring and to home confinement as a violation of her constitutional rights. FACTS: D arrested for possession of a weapon in a prohibited place, evading arrest for carrying a weapon in her purse at Johnson County courthouse. Tried to flee; given psych exam that showed she did not represent a threat to herself or others. TCt set bail at $6500, and imposed conditions of ankle monitor and house arrest. D asserts in habeas petition that these conditions were unreasonable and violated her statutory and constitutional rights.

D presented several Ws from aspects of her life: family, church, employment, friends, neighbors who testified she is not a flight risk or threat. D also presented evidence that the court had not imposed such conditions on violent offenders; and has only done so less than 5 times in 17 years. Employee of company who attached ankle monitor testified they were usually reserved for violent or sexual offenders. State didn't present any Ws or exhibits. TCt denied relief, noting she was in custody dispute with her ex and father for 3 kids, and that she allegedly threatened ex with gun. ANALYSIS: D has no criminal record, has longtime ties to the community, is employed. Other than evading arrest briefly, nothing in record shows she is a flight risk. Offense does not involve violence or threat of violence. Courts have discretion to impose conditions, but they must be reasonable. HELD: TCt abused discretion. Reverse the home confinement condition and change to curfew of 8pm to 8am, but maintain the electronic monitoring Rational for having bail is to assure D's appearance at trial, NOT to be a punishment. An appellate court can specify the bail conditions when it reverses a TCt; doesn't have to remand for new determination.

Cash Bond -

D puts up all the money. No surety. As long as you show up for all court appearances you get your money back.

Motion to suppress -

D raises to keep evidence of the crime out on the basis that the evidence was unlawfully obtained. Whoever loses may appeal In the above case, officers detained the D by stopping his car, learned he was intoxicated, arrested him for DWI, and gathered evidence (observations, testimony, breath or BAC, video) to prove he was DWI. Defense counsel asked the judge to suppress all of this evidence based upon an alleged unlawful detention, without which none of this evidence would have been discovered. Many criminal cases begin this way: a detention. If a detention is unlawful, everything that flows form that detention is deemed unlawfully seized.

What happens if you don't have all the components of the document, doesn't comply with the Code?

D would file a motion to quash. If quashed, the D is free to leave, but the D can be recharged because DJ has NOT attached.

The D's ability or inability to make bail does NOT alone control the amount of bail the judge may set. Court will consider

D's assets, income, property, along with that of his family, and consider other factors.

Once an indictment is presented, the court's jx is invoked and no longer contingent on whether the indictment contains defects of form or substance. Thus

D's must object to defects PRIOR to the date the trial on the merits begins

CHAPTER 6 GRAND JURY AND EXAMINING TRIALS The way the cases get to GJ is through the

DA. A prosecutor will present testimonial or physical evidence to GJ to establish PC that a crime occurred. GJ just there to determine PC that the crime has been committed The TXC guarantees Ds the right to indictment by a grand jury for all felony offenses. Ds may waive this right, yet most do not. Ds also have the right to an examining trial, however, this right is rarely exercised and often waived.

What if the vehicle is the person's home?

Depends if it is immobile or mobile. If can be driven around it is subject to automobile exception. If it's stationary, connected to utilities, etc. the automobile exception does not apply Automobile exception has NO relation to exigency. As long as they have PC they can search without a warrant. CAN search containers in car if they have PC to believe evidence could be in container (doesn't matter if driver owns container or not)

The Code references only the State's work product. It is almost unheard of for the State to request the D's work product. In an unusual case in which the State sought to discover a recorded statement from the D and the D successfully claimed that the recording was work product, the TXCCA made the following observation about why the work product exception almost exclusively applies to the State:

Discovery in Texas criminal cases has been a "one-way proposition," with the focus on requests by defendants for discovery and the State resisting those requests. Criminal defendants do not have a general right to discover evidence in the State's possession, but they have been granted limited discovery by Article 39.14. No similar provision grants the right to discover evidence to the State.

Challenging the Amount of Bail

Done thorough habeas petition: bail is too high, so it is being used as an instrument of oppression, not just to ensure trial appearance.

Right to counsel in Habeas cases? -

Ds are NOT entitled to counsel Habeas petition is a Collateral attack on the constitutionality of their incarceration, NOT entitled to counsel. Even though there's no right to counsel in habeas cases, prisoners have been held to be constitutionally afforded the right of access to the courts, which means the assistance of "jailhouse" lawyers or prison law libraries. So courts have not required that counsel be appointed for prisoners filing writs of habeas corpus, but they do say that they need to have access to materials that allow for them to make those claims themselves.

Attorneys cannot claim work product to shield otherwise discoverable evidence from the opposing party.

EX: If a P uncovers Brady evidence during his assessment of a DWI trial, this cannot be deemed work product, even if it was discovered in preparation of trial or was discussed by State agents. Under the work product privilege, the state can refuse to turn over certain things to the D.

TX Rules of CrimPro do give a lengthy list of victim's rights.

EX: bail amounts take into account safety of victim. A lot of rules incorporate V's voice: impact statements. If the V requires to be informed of the case, they can get that info: Info about the D's right to bail, etc. The DA is required to provide info to the V, when requested, about general procedures in the criminal justice system, including plea procedures. But this does NOT mean that they have to give the details of the particular negotiations, just the procedures. They can give the V details of the particular negotiation, but are not required to.

Inventory searches are conducted as a matter of standardized policy or routine Purpose is NOT to uncover evidence of a crime, though sometimes they may

EX: car is impounded or person booked into jail, personal belongings are inventoried and are temporarily stored in a secure location. Protects the property and the entity storing the property Airports, borders, closely regulated industries. These searches occur as a matter of policy or security

A prosecutor may allege different manner and means to prove a single count.

EX: in an aggravated assault indictment, a prosecutor may allege a single count of aggravated assault but use two manner and means paragraphs to allege serious bodily injury and use of a deadly weapon.

Evidence has to be FAVORABLE Favorable can be either (3)

EXCULPATORY, IMPEACHMENT, OR MITIGATING Does NOT apply to inculpatory evidence - evidence that tends to prove the D is guilty does NOT fall within Brady. (However, it would be turned over under 39.14). There is no constitutional requirement to turn over inculpatory.

Mitigating Evidence

Evidence that mitigates the CHARGES OR PUNISHMENTS

EXAMINING TRIALS

Examining trials are a type of preliminary hearing. Quirk of TX law. Purpose: judicial determination to establish PC in felony cases. This is separate and apart from the GJ indictment. Allows for some discovery for the D. Evidence is put on, W testify, cross-examining occurs. Typically, it is the state putting on Ws, and D cross examining. Bail is also set if hasn't been always. Sometimes held to preserve testimony. Former testimony exception applies because there's cross examination if W (declarant) is later unavailable at trial. If a P is worried about a witness not being at trial. ONLY felony Ds have a right to examining trial, and only those D who have NOT YET BEEN INDICTED. Once GJ has indicted D, the examining trial is not needed.

2) Officers must knock and announce their presence and give residents opportunity to open the door.

Exception when threat of physical violence, their presence is already known, evidence will be destroyed, or announcement is futile. ***even a violation of this rule does NOT result in suppression of evidence. No but-for causation between the officers' unlawful entry and the seizure of the evidence permissibly seized through a legally valid search warrant.

Class C Misdemeanor

Fine not to exceed $500

There are other instances where a bond may be revoked.

For instance, when a D commits a new criminal offense while on bail,

Benavides v. State, TXCCA 1980 FACTS: cops found husband and wife in garage, both shot. Wife was dead, and H had stomach wound. Handgun found and spent cartridges were found at the scene. H's car was locked and legally parked two blocks away. Impounded the car, and searched and inventoried contents. No warrant and no PC to impound the car or to believe that the car was going to contain evidence of the crime. Suicide note discovered in vehicle during inventory procedure. Suicide note was an Important part of P's case in chief. STATE: the note was properly obtained pursuant to an inventory search pursuant to Opperman, where SCt upheld the practice of police securing and inventorying an automobile's contents pursuant to a standard procedure. What is necessary for a lawful inventory?

For suspicionless searches like impoundments, there must be a procedure in place for inventories, etc. for that officers are not just conducting an arbitrary search. HERE: No valuables in plain view. Only reason given for impoundment was "safekeeping" HELD: No authority to impound car. The mere arrest of a D does not authorize seizure of car when the arrest two blocks away and the car is legally parked, not impeding traffic or a danger to public safety. STATE: There's a statute that prohibits car from being parked there for more than 24 hours. Also, D was seriously wounded and couldn't drive. HELD: rejected. No statutory violation had yet happened; no pre-violation seizure admissible. Also, if D couldn't drive, he could've asked someone else. -No legitimate reason to impound car. No connection between arrest and the vehicle. Evidence is not admissible because the impoundment was an unlawful search.

Pro se Ds are treated differently for discovery purposes.

For them, discovery is allowed only following a court order. Further, pro se Ds are not permitted to receive electronic copies of evidence.

What can the D do if there are lies in the Affidavit? EX: police officer lied to get warrant

Franks hearing - a way to establish whether false info is included If a D makes a "substantial preliminary showing" - 1) preponderance of the evidence that the police deliberately/recklessly included in the A of the Warrant false info, then a Franks hearing will be held to see if the warrant would have been issued without that false info. -Have to show by a preponderance that they deliberately lied, or were reckless. Negligence is not enough. 2) no PC without the false info -If you can take out that info and there's still PC, then the evidence is allowed If you take out the info and there's NO PC, the evidence is suppressed.

Constitutional requirement that judges determine that plea was

Freely and voluntarily given Part of that is giving the admonishments so the D knows the consequences.

Automobile SITLA Law has changed over time on this. Originally, the USSCT had a bright line rule that if you were arrested, your passenger area could be searched, regardless of where the S was at the time of the search. Kind of absurd: the S could be in handcuffs in the back of the police car and they can still do a car Because in TX, almost every traffic violation, no matter how minor, is arrestable, all they had to do was arrest you after you changed lanes without signaling, etc. and they could search your car. Big gaping hole in warrant requirement. Arizona v. Gant - tried to rein in a little.

Gant decision: If the purpose is to protect an officer from accessing something to harm the officer, then a SITLA is allowable if the S can still reach within the car. Still within lunging distance of the car; OR If it's reasonable to believe evidence that relates the arrest is in the car. EX: If you're stopping someone for a traffic offense, it is highly unlikely the police can search the car for evidence of that

*Can hotel owner give consent to search?*

Generally no, because you have REP in your room. But here, the D had abandoned the room, so no more REP and hotel owner can give consent.

Why is Texas ER broader?

Goes back to Prohibition in the 1920s. Widespread problem of vigilante-type private citizens acting in concert with the police conducting illegal searches for whiskey. Private citizens would violate the law to seize evidence and then hand it over to police on a "silver platter." To avoid implicitly encouraging vigilante action, the TXL applied the TX statutory ER to private action. One instance where TX gives more rights than federal law. However, not every law violation qualifies EX: TX appellate courts have held that violations of lawyer disciplinary rules, statutory business name regulations, and education code provisions were not the type of law violations the ER encompassed. TXCCA explained the purpose of the ER is to protect a S's liberty interests against the overzealousness of others in obtaining evidence to use against them. Thus, unless someone's privacy or property interests are illegally infringed upon in the obtainment of evidence, the core rationale for providing this prophylactic measure is not met and its use is unwarranted.

Immunity Granted in Exchange for Witness Testimony (can relate to trial testimony as well as GJ) W assert 5th amendment PASI. How can court get them to testify?

Grant immunity!

D who is unable to make bond may face difficult consequences including:

Greater likelihood the D will plead guilty, even if he is not; negative financial consequences due to lost income or employment; increased familial poverty and/or failure to pay child support; increased risk of eviction or repossession of property; and most importantly, increased difficulty in preparing his defense while he is incarcerated.

Long v. State, 132 S.W.3d 443, 444 (Tex. Crim. App. 2004) Procedural Posture - Defendant was convicted of gambling offenses from a gambling train! FACTS: An undercover officer visited, on several occasions, a rural gambling establishment located in a silver train car. Defendant lived nearby in a red caboose. The officer drafted a lengthy affidavit and a warrant describing the gambling business silver train car in great detail, but made no mention of the red caboose home in the affidavit. The affidavit accurately described the car as being the only silver passenger car in the area in front of a black mailbox. The officers who executed warrant not only searched the described car, but the red caboose.

HELD: 4th amd violation The car to be searched, according to the affidavit, was not red, was not a caboose, and was not a home. The officers clearly had a right to search every nook and cranny of the business establishment, which was the silver passenger-train car with an "open" sign above the door. Defendant's home, however, was not within that business area. A private home and a public business were not "fungible" items for purposes of the Fourth Amendment. Moreover, in setting out probable cause, the officer did not mention anything about defendant's home, a red caboose, or any gambling paraphernalia or records that might be kept in her home. RULES At the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. *Government intrusion into one's home is presumptively unreasonable* under the Fourth Amendment unless the officers have a warrant to enter that home. A warrant to enter a nearby business establishment which is open to the public is not an "Open Sesame" for the home. In sum, the affiant set out a great deal of information about the types of gambling machines and devices used in the public premises of "Train's" and his use of those public premises. No reasonable person reading this long, logical, and carefully drafted affidavit would conclude that appellant had a home nearby or that the affiant had probable cause to believe that she used her home as part of the business enterprise conducted at "Train's." The Fourth Amendment Warrant Clause limits its authorization to the specific areas and things for which there is probable cause to search, thereby ensuring that: the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit. Thus, the scope of a lawful search is "defined by the object of the search and the places in which there is probable cause to believe that it may be found. Just as probable cause to believe that a stolen lawnmower may be found in a garage will not support a warrant to search an upstairs bedroom, probable cause to believe that undocumented aliens are being transported in a van will not justify a warrantless search of a suitcase."

Rowe v. State, 853 S.W.2d 581 (1993) FACTS: TCt denied request for personal bond, it interpreted D's motion as also requesting a reduction in bond, and lowered in bonds in each case. D argues that D cannot make any bond. State responded to the contrary and showed that D has pending criminal charges in OK and that D resided in TX only two weeks prior to charged offense.

HELD: ACt erred in concluding the D's request to testify before the grand jury somehow removed him from the protections of 17.151. It is a mandatory provision. LAW: 17.151 provides that if the State is not ready for trial within 90 days after detention for felony, the accused must be released on personal bond (PR bond) or by reducing the amount of bail required to something he can afford. There is nothing in the statute indicating that the provisions do not apply if the delay was based upon the D's request to testify before a grand jury. 17.151 has no provisions excluding certain periods of time for special circumstances. HELD: The TCt's action in reducing the bonds did not comply with the dictates of 17.151. The record does not support the decision to reduce each bond by $1000 rather than release D on personal bond. The record reveals D couldn't make any bond. The D cannot afford the bond with the reduction; that is not acceptable. Grant D's petition for discretionary review and remand to TCt to release on personal bond. The reason for delay does not matter; this is a mandatory statute and the D must be released. DA's intention doesn't matter. The provision is mandatory: if the the State is not ready to go within 90 days of arrest, the D must be released on a PR bond or bail reduced to an amount the D can afford. *Does this mean that all Ds are tried within 90 days?* No. P can announce "ready" within 90 days and then get a continuance.

Milner v. State, 263 S.W.3d 146 (2006) ISSUE: D argues that the evidence was legally insufficient to deny his request to reduce bail (from $500k) and that the TCt abused its discretion in denying D's request. FACTS: Charged with 1st degree murder of his wife and attempted murder of mother-in-law in front of his children. Two enhancements: habitual offender. D files habeas petition to get bail reduced.

HELD: Bail amount is fine. 17.15 TX Code of CrimPro: 1st degree murder: 5-99 years + up to $10k fine 2nd degree murder (attempted): 2-20 years, up to $10k fine $500k bail has been found not excessive in other murder cases. HERE: Given the serious nature of the crime the TCt did not abuse discretion. -Before arrest, D led police on high speed chase, indicating flight risk. -Other than being near his kids, D doesn't have reason to remain. Owns no property in the area, has no checking or savings account, and is not employed. -Thus the TCt may have concluded that a reasonably high bail is necessary to have assurances the D will appear at trial. Nothing in record indicates bail was set to force D to remain incarcerated during trial. Indigency alone does not control in determining the amount of bail. If the ability to make a bond in a specified amount controlled, the role of the TCt in setting bond would be completely eliminated and the accused would be in the position to determine what his bond should be. HERE: D testified that he owned no real estate or personal property such as boats, cars, etc. No bank accounts or other financial instruments. The D didn't contact anyone regarding the $500k bond. D's mom contacted a bondsman who informed her that 10% or $50k was necessary. The D's family does not have the resources to pay the bond in cash, but the TCt may have determined that the D's family could obtain a bond in light of her $90k retirement account. However, no attempt to get a bond based on the family's resources was made. Thus, the TCt could have determined that the evidence supports maintaining the present bail amount. LAW: Future Safety of Victim and Community, Other Factors 17.15 of Code requires consideration of victim's safety and other factors such as D's work record, family ties, length of residency, past criminal record, conformity with conditions of previous bond, outstanding bonds, and aggravating factors in the offense. HERE: His mother-in-law was one of the victims, who could be at risk. D's own mom didn't really want D to live with her and the children. Gravity of the charges and D's previous record (burglary, aggravated assault, terroristic threat, unlawfully carrying a weapon, pot possession, wife had obtained a protective order against him, evading arrest) D had complied with previous bail requirements. However, the TOTC evidence do not favor bail reduction HOLDING: Bail amount is fine.

Bitterman v. State, 180 S.W.3d 139, 140 (Tex. Crim. App. 2005) Plea deal - plead guilty in exchange for 5 years, and state would stay silent at probation hearing to allow defendant to "make a pitch" for probation, but that the State would remain silent as to probation. At sentencing, defendant had witnesses testify in support of his request for deferred adjudication, and the State cross-examined them questioning whether defendant deserved deferred adjudication (instead of remaining silent as promised).

HELD: Due to the *flagrant violation of his plea agreement by the State, which rendered his plea involuntary*, the court of appeals should have reviewed this issue for abuse of discretion by the trial judge in denying defendant's motion for a new trial. LAW: It is well established that it is a defendant's right to have the State honor a plea bargain entered into by the defendant in exchange for a guilty plea, after the judge has accepted the plea bargain in open court. Plea bargains play an extremely important role in the criminal judicial process, and numerous cases in federal and Texas state law emphasize the importance of implementing safeguards to protect the due process rights of defendants who enter into such plea bargains. D asked for a remedy of: New trial, or Specific performance (of plea deal) - Kind of like contract law - There are strict federal and state guidelines and requirements regarding the defendant's ability to enter into a plea agreement in order to protect the constitutional rights of the defendant, and among these is the requirement that if a defendant's plea is made based on a promise given by the State, the State must keep up its part of the agreement or the plea will be rendered involuntary. When the prosecution breaches its promise with respect to an executed plea agreement, the defendant pleads guilty on a false premise, and hence his conviction cannot stand. When a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled. Additionally, a plea agreement is binding upon all parties once the trial judge has accepted it, and that if the prosecution does not perform its responsibilities under the agreement, the plea bargain is considered involuntary.

Long v. State, 170 Tex. Crim. 262, 262, 340 S.W.2d 58, 59 (1960) FACTS: the commissioner was asking individual prospective jurors whether the would vote to indict before they were selected. Basically trying to get a commitment from the grand jurors ahead of time.

HELD: Improper. Reflects the old "key man" system of selecting GJ. Abolished in 2015 The district court judge would pick a commissioner (typically influential persons in that jx) who would then pick GJ members. Problem: commissioner might pick those who would go the way they want. This court and the Supreme Court of the United States from time to time have been called upon to quash grand jury indictments because of discriminatory practices on the part of jury commissioners in the selection of grand jurors. These cases usually arose when the discrimination was racial. The rule announced, however, is by no means limited to racial discrimination, but includes all fact situations where discrimination is practiced against the accused for any reason. Here, the instant facts are deemed sufficient to support the conclusion that the GJ commission selected prospective grand jurors with the view that those selected would return an indictment against this appellant. We have concluded that the learned trial court fell into error in failing to sustain appellant's motion to quash the indictment. The judgment is reversed and the prosecution dismissed.

State v. Barbernell, 257 S.W.3d 248, 249 (Tex. Crim. App. 2008) FACTS: Defendant was charged with with misdemeanor of DWI by information. D claimed that the information failed to provide him with adequate notice of the manner and means (the definition of "intoxicated" that the State intended to prove) in which he committed the offense. Which definition of "intoxication" are you going with? (see below). D needs to know to be able to defend. STATE: argued that definition of "intoxicated" is not an element of DWI offense.

HELD: On appeal, the court held that the definitions of "intoxicated" in Tex. Penal Code Ann. § 49.01(2) were evidentiary and therefore did not need to be alleged in a charging instrument. Therefore, the trial court erred by granting defendant's motion to quash the information due to the State's failure to allege the definition of intoxication that it intended to prove at trial. The Texas and United States Constitutions grant a criminal defendant the right to fair notice of the specific charged offense. *What needs to be included in the charging document*: Must indicate the essential elements of the offense in plain English D argued that how he got drunk was an essentially element. *Court rejects.* The way the State proves intoxication is just an evidentiary issue, NOT an element of the DWI crime As long as they prove that (1) being drunk, and (2) operating vehicle, they don't have to prove HOW he got drunk, that's just evidentiary issue. Motion to quash is NOT about contesting evidence, it is contesting the validity of the charging instrument. One of the things that the must always be included is the culpable mental state. The definitions of "intoxicated" are purely evidentiary matters; therefore, they do not need to be alleged in a charging instrument to provide a defendant with sufficient notice. As a result, the holding in Carter v. State, 810 S.W.2d 197 (Tex. Crim. App. 1991), holding that the State must allege the definition of "intoxicated" that it intends to rely on at trial in the charging instrument to provide adequate notice is overruled. A charging instrument that pleads the offense of DWI provides adequate notice when it sets out the elements of the offense as provided in Tex. Penal Code Ann. § 49.04.

Cooper v. State, 45 S.W.3d 77, 77 (Tex. Crim. App. 2001) ISSUE: Whether a plea-bargaining D may appeal the voluntariness of the plea. FACTS: D was charged with forgery (felony) and pleaded no contest in exchange for one year confinement with 351 credit, no fine, and restitution of $37k. Defendant was admonished, and agreed in writing, that he could not appeal without permission of the trial court except as to matters raised by written motion filed prior to trial. He filed a written waiver of his right to appeal. D was specifically told he was waiving right to appeal. 12 days later, pro se, he filed a handwritten notice of appeal. Defendant's issues on appeal were whether his plea was knowing and voluntary (which had nothing to do with his pretrial motions), and whether the trial court failed to adequately admonish him about the waiver of his right to appeal.

HELD: Such an appeal was forbidden by the TXL in 1977, and that our rules do not, and may not, allow such an appeal D is not raising anything he mentioned in pretrial motions; just arguing on appeal that his plea wasn't voluntary and knowing and that admonishments weren't adequate. These aren't grounds for appeal under the above rule, thus the appeal is barred.

State v. Wood, 828 S.W.2d 471, 472 (Tex. App.—El Paso 1992) FACTS: D was indicted for the murder of 6 women. State issued two evidentiary search warrants of the D's Nissan pickup that listed clothing, cigarette butts, fingerprints, ligatures, and knife as the objects of the search. -When executed, the police found NONE of those object, but instead a bunch of other stuff, and took three plastic baggies full of vacuumed samples from the Nissan that contained "fiber evidence" that purportedly linked the D to the murders. -D files motion to suppress. Did not challenge the validity of the warrant, but rather the legality and reasonableness of the search under the 4th amend, and Art 1, s.9 of the TXC. -Specially alleged that the search exceeded the scope of the warrant as the fibers were not listed in the warrant. -TCt sustained D's motion. -The state filed an interlocutory appeal, pursuant to Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (1992), alleging that the trial court abused its discretion and made erroneous findings in granting defendant's motion to suppress certain evidence sought to be offered in defendant's capital murder trial. - State argues it did not need to present evidence other than the warrants because the BOP is on the D to show the items seized exceeded the warran't scope. -Defendant alleged that the suppressed evidence was not listed in either of two evidentiary search warrants and was the result of a search violative of U.S. Const. amend. IV.

HELD: The court affirmed the ruling of the lower court because the state failed to meet its burden of proof in opposing the motion to suppress. -As the suppressed evidence was not listed in the warrants, it was essentially obtained without a warrant. -The court further held that once the defendant met his initial burden of proving that the evidence was not listed in the search warrants, the burden to produce a warrant to support the seized evidence shifted to the state. -By not presenting any evidence supporting the seizure of the evidence, state failed to meet its burden of proof, and the trial court correctly suppressed the evidence. -When D files a motion to suppress on 4th amendment grounds, the burden is on the D to rebut the presumption of proper police conduct. -If D does, the burden shifts to the State. If the state produces evidence of a warrant that covers the evidence it prevails. -D presented evidence of the warrants and that the search exceeded the scope. D's motion to suppress sustained. -State even conceded that other evidence should be suppressed. (That seems dumb). Only wanted fiber evidence. Argued for the first time on appeal that the vacuum bags could have had cigarette butts and ligatures.

Moss v. State, 878 S.W.2d 632, 635 (Tex. App.—San Antonio 1994) FACTS: Marihuana was seized without a warrant after aerial surveillance from a helicopter disclosed marihuana plants in appellant's secluded garden. -When appellant asked if they had a search warrant, the officers said they did not, but that it didn't matter, we'll get one anyway in a couple of hours. Appellant was then told he was under arrest. -When asked if he consented to having the officers enter his property, he said he did so, but "under duress." They were holding guns on him and his kids were upset and crying while the helicopter was still going and blowing things around. Helicopter was hovering lower for 30-40 minutes. -After his suppression motion was denied, appellant pled nolo contendere and was convicted of possession of a usable quantity of marihuana. Issue: Was his consent valid?

HELD: The state failed to meet its burden of proof that appellant's consent to the search was voluntary. While appellant had no reasonable expectation of privacy from aerial surveillance, the prolonged, low circling of the helicopter over appellant's home and the resulting noise, wind, and turbulence while officers' weapons were trained on appellant, keeping him from his small children, violated the Fourth Amendment. The exigent circumstances justifying the officers' initial intrusion ended when appellant was taken into custody at his front gate. -At that point, a warrant should have been secured before a full search and seizure of the evidence. The fact that both the garden and shed were within the curtilage of the home could not justify the warrantless intrusion under the "open fields doctrine."

State v. Smith, 555 S.W.3d 760, 762 (Tex. App. 2018) FACTS - DWI arrest. After call that suspect banged on door. ISSUE: whether the officer was in possession of specific, articulable facts that were sufficient to provide a basis for a finding of reasonable suspicion to stop appellant's vehicle.

HELD: pull over was illegal because didn't have RS. The call just said someone banged on the door and took off after being asked to leave. There was nothing to indicate that he was committing a crime. RS is not a high bar, but there is a standard that must be satisfied. There was no reasonable suspicion here. RS is needed because it is at least some check on police discretion; helps to restrict arbitrary police action.

Moore v. State, 295 S.W.3d 329, 330 (Tex. Crim. App. 2009) FACTS: Defendant pled guilty to manufacturing methamphetamine in exchange for a 28-year sentence and dismissal of two other charges. During the taking of the plea, the trial court added conditions to the State's plea agreement, including a requirement that defendant appear for a sentencing date. The court admonished the D about the consequences about failure to appear at the sentencing. When defendant failed to appear for sentencing, he violated the additional condition. The trial court converted the plea bargain into an open plea and sentenced defendant to a 40-year term of imprisonment. ISSUE: Did the TCt err by treating D's plea as an open plea without giving him the opportunity to withdraw his plea? ACt: YES. TXCCA issues for review: 1) the court of appeals did not address preservation of the error complained of; 2) whether the court of appeals is required to conduct a harm analysis of the error alleged by the appellant.

HELD: while the trial court erred when it rejected the plea agreement during the sentencing hearing and failed to permit defendant to withdraw his guilty plea, defendant failed to preserve the issue for appellate review under Tex. R. App. P. 33.1 by failing to raise the error either at the plea hearing or the sentencing hearing.

Ex parte Shorthouse, 640 S.W.2d 924, 925 (Tex. Crim. App. 1982) Applicants were charged with contempt pursuant to Tex. Code Crim. Proc. Ann. art. 20.15, for refusing to testify before a grand jury, even though the state granted them testimonial/use immunity in an organized crime investigation. Applicants attacked the contempt order by arguing that testimonial/use immunity is not sufficient under the TXC; that only transactional immunity is enough and that the TXC provides broader protection than the USC.

HELD:: NOPE! the privilege against self-incrimination embodied in Article I, § 10 of our State Constitution is NOT to be given a broader construction than that of the Fifth Amendment, United States Constitution. We therefore hold that immunity from use and derivative use of testimony compelled as set forth in V.T.C.A., Penal Code, § 71.04, is co-extensive with the scope of self-incrimination as provided in Article I, § 10 of the State Constitution and is sufficient to compel testimony over a claim of the privilege Use immunity doesn't grant full protection. Can still be prosecuted for the offense, just can't use testimony or evidence derived from testimony against them. USSCt - Kastigar (1972) - you don't have to provide full transactional immunity in order to compel testimony. Can compel testimony, just on use/testimonial immunity.

Heiselbetz v. State, 906 S.W.2d 500, 503 (Tex. Crim. App. 1995) ISSUE/FACTS: D claims the TCt erred in denying motion for continuance; arguing D had inadequate time to prepare for trial. D counsel is a solo practitioner and had only 43 days to prepare before beginning of voir dire; the State included over 87 Ws, 14 of which were added just 2 weeks before trial; the State listed over 100 potential exhibits, 95 of which were actually introduced; and counsel could not adequately review medical records which contained potentially mitigating evidence. Affidavit of Investigator working with D attached to continuance motion indicated he had not had time to report back to counsel on interviews with State's Ws.

HOLDING: Absent a showing of prejudice, cannot hold that the trial court abused discretion. Overruled. MUST show that denial of continuance caused harm/prejudice to D case to get reversal. Not only must show a lack of time, but that there was mitigating/exculpatory evidence that wasn't discovered in time. That is the type of harm required. EX: must show that W would have provided testimony that might have changed the outcome of the case. Where denial of continuance results in representation by unprepared counsel, this can be a basis for abuse of discretion. However, granting/denial of continuance is within TCt's discretion. To find an abuse of discretion in denying continuance, there must be a showing that the D was prejudiced by his counsel's inadequate preparation time. HERE, D counsel does not argue, much less establish, any specific prejudice from continuance denial. In Hernandez, appointed counsel had even less time, but Court held that without showing of how D's defense was prejudiced there won't be a finding of an abuse of discretion.

Court of Criminal Appeals -

Highest appellate criminal court with discretionary, statewide jx has final review over all Class A and B misdemeanor and non-capital felon cases; original jx over death penalty appeals Discretionary review; except for death penalty case (goes directly from trial court to TXCCA)

Rebuttal and Punishment Witnesses Because the State carries the BOP the State presents its evidence first. The D presents second. The state may then rebut. In De Pena, the State argued it did not need to disclose the expert called during rebuttal. The court disagreed because the provision regarding expert Ws does not except rebuttal Ws. HOWEVER!

However, the *expert disclosure rule does NOT apply to a non-expert rebuttal witness.*

The same factors go into both the right to appointed counsel and level the bail will be set. Whatever bail is set at and right to appointed counsel involve the same facts.

However, they cannot automatically determine they are indigent because they can't make bail. Indigent Ds who cannot afford to hire an attorney, qualify to have one appointed to represent them.

Collateral consequences & admonishments

If a judge fails to inform about other consequences (loss of voting rights, fire arm rights) that does NOT render a plea involuntary. D would have to show harm. That's next to impossible to demonstrate.

Witness Statements Rule 615 (TRE) vs. 39.14 of the Code No similar rule under the FRE Codification of what was formerly known as the "Gaskin Rule"

Idea is that once a W testifies at trial, the proponent of the witness needs to provide any prior statements the W made about the subject matter of their testimony to the opposing side. Prior to 39.14's passage in 2014, this was the main way that D's got prior witness statements. Under the new requirements of 39.14, all material W statements need to be turned over at the request of the D. This does NOT render TRE 615 obsolete because 615 also applies to the State. The State doesn't get disco under 39.14, but 615 provides the State with this right. If the State wants a D witness's prior statement, they would need to make a request after that D witness testifies on the stand. TRE 615 also applies if the D hasn't made a timely request under 39.14; they can still get the prior witness statements under the TRE 615. Key requirements of TRE 615 (red below)

Where is a subpoena valid?

If a jailable offense, ANYWHERE in TX If a nonjailable offense, just in the county If out of state, under 24.28 of TX Code - acknowledge of the Uniform Act to get Witnesses. -Additional requirements to subpoena out of state: -Need action from TX judge AND action from judge where W resides -File a motion with court here, and court there. -Travel and lodging is reimbursed by State of TX.

Consequently, Rule 615(a) has been amended to account for the changed pre-trial discovery regime introduced by the Michael Morton Act.

If a party's adversary has already produced a witness's statement - whether through formal discovery under art. 39.14 or through more informal means - Rule 615(a) no longer gives a party the right to obtain, after the witness testifies on direct examination, a court order for production of the witness's statement. But if a party's adversary has not already produced a witness's statement, the party may still use Rule 615(a) to request and obtain a court order requiring production of the witness's statement after the witness finishes testifying on direct examination. Based on this order, it appears that Rule 615 applies primarily to State W statements that D counsel requested to see before trial.

3) officers must show the warrant to the owner of the premises at the time of the search.

If owner is not there, show warrant to person in possession. If no one is there, officers must leave a copy of the warrant behind to notify owner and residents of the search.

Fruit of the Poisonous Tree

If police violate a constitutional right, the evidence they seize but for the unlawful conduct is tainted and inadmissible. Fruit includes not just tangible evidence but arrests, oral statements, witnesses. EX: officer arrests suspect without PC. Any evidence or confessions officers obtained as a result of that arrest is inadmissible Purpose of this exclusionary rule doctrine is to deter police misconduct ER applies not only to the evidence directly, but also any evidence that leads to.

Extraneous Offense Evidence

If the D would like to discover whether the State plans on admitting evidence of extraneous crimes, wrongs or bad acts against him at trial, he must request notice of such evidence before trial. The premise for this rule, like much of discovery, is to avoid surprise at trial. Like the FRE, the TRE limit the use of evidence of crimes, wrongs, or bad acts during trial.

If a W is worried that they may incriminate themselves, they can assert PASI. If the judge were to compel, then any information would be inadmissible as a violation of the constitution.

If the judge grants immunity, then can compel.

When it comes to typos in descriptions of the placed to be searched, courts follow these rules:

If the warrant is sufficient to enable the executing officer to locate and identify the premises intended to be searched, and the deficiencies in the description do not give rise to a reasonable probability that mistaken execution will take place at an unintended site, the warrant is still valid. The State must call witnesses to testify in a suppression hearing about the mistake; when the State fails to explain the error is merely a typo, the warrant may be deemed invalid

Good Faith Exception in TX

If the warrant on its face does not have PC, it does NOT get excused under good faith exception -Different from federal rule. -In Texas, the good faith exception does NOT exclude a lack of PC (unlike the federal rule) -Good faith exception DOES excuse typos.

Burden of Proof

If there is a warrant, and the D is filing a motion to suppress evidence seized pursuant to that warrant. BOP starts with D; there's a presumption of police proper conduct

Don't confuse competency of a D to stand trial with competency of a W to give testimony.

If you are insane, you CANNOT be a witness in TEXAS (under federal rules you can) But the bar for Ws is pretty low for competency; whereas the bar for competency for Ds is a little higher.

There are county-specific rules relating to the appointment of counsel.

In Harris County, there is a public defenders office, but there are also appointed attorneys as well because the public defenders cannot handle all of the criminal cases. Harris County publishes a list of minimum attorney qualifications to be appointed counsel. It is complicated. You have to apply to be eligible. Have to be licensed to practice for at least a year. Point system, must have 10 points in order to be appointed. 2 points must have come from trying at least two cases as the first chair counsel. 2 points for each year you are a practicing attorney (up to 5 points max) 2 points for successfully completing a criminal law training program 1 point for each criminal case tried to a verdict 1 point for each year serving as legal assistant for attorney who devoted at least 80% of practice to criminal law. Etc. - a lot of other ways to accumulate experience to get points to become appointed counsel. Also a LOT of requirements such as passing a test, having a physical location, etc.

There is one exception to the inadmissibility of the plea negotiation statements mentioned in the last two enumerated provisions above:

In a civil or criminal case, the court may admit a statement when another statement made during the same plea of plea discussions has been introduced and in fairness the statements ought to be considered together. This exception applies when the D "open the door" to statements made during plea negotiations with the State The D brings in some of the statements the D made, the State is permitted, in the interest of fairness, to offer other statements the D left out during her testimony All of this is only admissible against a D; a D can offer up their own pleas of guilt, but if they do that, they run the risk of the prosecutor introducing other statements in the negotiation to provide context.

While it is true that use immunity prohibits the State from using a D's incriminating statement against him, doesn't having knowledge about the incriminating info give the State an advantage?

In the above case the TXCCA seems to imply that Ds in a use immunity position retain the same 5th Amendment rights as a D who never gave an incriminating statement to begin with. However, with use immunity, the State knows more than it would had the D remained silent. The State can use this knowledge to find admissible incriminating evidence against the accused it would not have had otherwise.

Normally, TX criminal trials are bifurcated, meaning the trial has two parts.

In the first portion, the factfinder must determine guilty or innocence. If the defendant is found guilty, the factfinder assesses punishments in the second portions.

The Factfinder's Role in Determining Insanity

Insanity is an affirmative defense to criminal responsibility, like duress, self-defense, or entrapment. The D must prove the D by a POE. The defense may be considered by a judge or jury ONLY when it is supported by competent evidence. The factfinder renders a verdict of guilty, not guilty, or not guilty by reason of insanity when this defense is raised.

Plea Bargaining is a necessary part of the criminal justice system.

It consists of the P making concessions regarding specific punishment, lesser charges, the reduction of counts and the like, in exchange for a D's agreement to enter a plea of guilty or nolo contendere. This bargaining flows from the mutuality of advantage to the D and the P, as each have their own reasons for wanting to avoid trial. Besides the obvious advantages of reducing the court's docket load and the lesser punishment, the plea bargain also has the benefit of certainty compared to the risk of trial: the State knows it will get a punishment and the D knows what punishment to expect

The admission of a plea in violation of this rule has serious consequences:

It is reversible error for the trial court to allow the introduction of evidence o fa prior plea of guilty when the D has timely changed his plea to one of not guilty.

Personal Bond - D promises he will appear in court.

It is the judge's discretion to grant a personal bond. Is more likely when the D has not committed a serious crime and has a good reputation within and established ties to the community.

Who Drafts the Indictment?

It is the prosecutor who drafts the indictment and presents it to the grand jury. Typically the P has the indictment ready to go before deliberation/vote of GJ. Indicates how confident the P is the GJ will indict. Indictments are delivered to the GJ foreperson, who signs them officially; the prosecutor must include any witness names who testified before the GJ on the indictment.

What is a judge "taking under advisement"?

It means the judge will consider the evidence and argument and subsequently issue a ruling. It is well-settled law that after a court has admonished the defendant, received the guilty plea and received the evidence, passing the case for a presentence investigation is "taking the case under advisement."

404(b) is almost identical to the federal rule. Extrinsic Offense Evidence, AKA "Prior Bad Acts or Convictions" are generally inadmissible in a criminal case to prove propensity; improper character evidence. Can't try to show jury that it should convict D because he's a bad guy. But there are exceptions under 404(b). Pretty big exceptions.

It's known colloquially as the "prosecutor's rule" because it allows prior bad acts for purposes other than propensity What does it allow? it allows prior bad acts to be introduced for purposes other than propensity MIMIC

The TCCP permits judges to monitor and exercise authority over the attorneys they appoint.

Judges in TX are required to create countywide procedures for the appointment of counsel in indigent cases. These procedures are supposed to ensure that criminal Ds meet with counsel before judicial proceedings begin, attorneys perform their jobs well, and appointments be allocated among qualified attorneys in a manner that is fair, neutral, and nondiscriminatory.

jurisdiction vs. venue?

Jurisdiction = correct court Venue = right location.

Parameters of a Search Under the USC What is a search?

Katz: 1) subjected expectation of privacy; 2) society is prepared to find objectively reasonable.

Venue

Location where the trial can be held General rule: in the county where the offense occurred; where any element of the offense occurred.

Monge v. State, 315 S.W.3d 35, 38 (Tex. Crim. App. 2010) FACTS: D was suspected over murder after his phone was found at murder scene. Police in plain clothes went to D's workplace and invited him to come to police station to answer questions about phone. D agreed to accompany them. He rode with police, was not handcuffed, rode in the front of unmarked vehicle. He was questioned, agreed to give DNA sample, gave permission for his car to be searched, and failed a polygraph. Meanwhile, another man, Ochoa, who was listed on the phone, had come down to the police station and confessed to murdering the V with D. D was arrested and confronted with Ochoa's confession and then confessed himself. No arrest warrant. Under federal rules this would have been legit. Had PC, at police station Under TX. No exception: Not a suspicious place, no escape, nothing illegal in view, etc. Thus, illegal arrest D filed a motion to suppress, contending that he was unlawfully arrested and that his subsequent confession was tainted and therefore inadmissible. State: argues attenuation - he felt need to confess only after his co-conspirator confessed broke the chain between illegal arrest and S's confession.

Looked at four factors: 1) Miranda warning - YES, goes in favor of state 2) timing - under 2 hours, so favor's D 3) intervening circumstances - co-conspirator confession - favor's state 4) police misconduct - most important factor. Not flagrant. Had PC, and officer thought he was arresting legally Police had not mistreated him. Gave him food, blanket, etc. Favors state HELD: attenuation exception applies, so evidence is admissible. LAW and ANALYSIS Here, the State does not challenge the illegality of appellant's warrantless arrest, which did not fit within any of the recognized exceptions to the warrant requirement. Instead, the State contends the nexus between the unlawful arrest and appellant's confession was so attenuated as to dissipate the taint of the prior illegality. See Wong Sun, 371 U.S. at 487-88.

Bail may be set by more than one person during more than one point in time while the case is pending.

Magistrate should set bail at the time the D makes the appearance immediately following his arrest. Though the Code does not require it, bail may be set or adjusted at the D's initial appearance in the court where she faces charges. The judge could set bail at the D's examining trial. Finally, the judge can set bail following indictment. Bail may be further reconsidered, revoked or adjusted as needed while the case is pending.

Judicially-Imposed Conditions What conditions may a judge impose on a D who is released on bail?

Magistrates and judges are authorized by law to condition a D's release on bail. This means that if the D wishes to remain free on bail, she must abide by the judicially-imposed conditions attached to bail. Conditions may be put in place to protect others or to protect the D from her own dangerous, foolish, or criminal actions while on bond. Defense attorneys may welcome conditions, though they would be hard pressed to admit this to their clients. That is because D usually dislike conditions due to their expense, inconvenience, and burden. Nevertheless they are designed to keep D out of legal and personal trouble while on bail.

The policy reasons for Franks hearing:

Magistrates depend on the truth of the affiant and the sources of info contained within the A. If an officer is lying, withholding info, or stretching the truth, the affiant's credibility is damaged and the PC statment is unreliable.

Investigation/Stop

Many of the cases involve DWI or murder because in order for the case to get in casebook it has to go to trial. The vast majority plead out. So who goes to trial? Someone who has nothing to lose (murder - looking at long sentence anyway); and people who think they might get off (DWI)

Material Evidence

Materiality - reasonable probability that the result of the trial would have been different had the exculpatory material evidence been turned over to D counsel Pretty hard burden to meet, especially if there's a lot of evidence tending to prove guilt; a few favorable things are not likely to meet this materiality requirement. Challenging to convince the appellate court that this evidence that was not turned over demonstrates a REASONABLE PROBABILITY OF A DIFFERENT RESULT. Also, material evidence Must be ADMISSIBLE. If the evidence inadmissible, it can't be material because it wouldn't change the outcome of the case.

Key Differences Between Competency and Insanity

Mental competency refers to the D's ability to understand the legal proceedings against him and communicate with his lawyer Insanity refers to a serious mental disease or defect that causes an inability to distinguish between right and wrong. Mental competency is assessed at the time of the criminal proceedings (e.g. arraignment, court appearances, trial), whereas insanity is assessed at the time the crime was committed. Insanity is an affirmative defense; mental competency is not. A finding of insanity results in acquittal of the charge(s), but a finding of mental incompetency results in a stay of the proceedings. *Similarities between mental competency and insanity*: -Both require proof by a POE -BOP on D -D in both circumstances must be released when the time spent in custody or on supervision exceeds the maximum hypothetical sentence; and -Both require evaluation by a qualified mental health expert.

Miranda Warnings - Attenuation Factor

Miranda warnings are an important and necessary factor in determining whether the confession is obtained by exploitation of an illegal arrest. However, the fact that a Miranda warning has been given is not sufficient to break the causal connection between an illegal arrest and the confession.

PLEAS WAIVING RIGHT TO TRIAL BY JURY

Must be in writing and in open court on the record Need consent and approval of State (P) and the court *What else is necessary in felony cases?* D must be represented by counsel to plead guilty and waive right to jury trial *Cannot waive if capital case and D is facing death penalty*

Does a D have a right to bail proceeding after conviction, pending appeal? Any right to release until conviction is finalized?

NO, if sentenced to more than 10 years for serious crimes like murder, aggravated kidnapping, etc.

If a D is able to make bail, does that preclude D from getting appointed counsel?

NO. that has been rejected by the TXCCA.

Does the right to appointed counsel only encompass the appointment of an attorney?

NO. Includes Experts and investigators: indigent Ds can get funds from the court to pay reasonable fees for experts/investigators. Court has to approve the expenses. Discretion of the judge; will only be overturned if a abuse of discretion. The right to appointed counsel would be pretty meaningless without the right to some resources to mount an effective defense like hiring psychiatrist to determine competency or insanity. Or for an investigator to investigate possible witnesses that might provide alibi, etc.

Does judge have to track language of the statute exactly?

NO. Only "Substantial compliance" If the judge asks the required 6 admonishments, there's a presumption of voluntariness Harm analysis ---State can still uphold the deal if no harm. ---EX: failure to warn about immigration consequences are not harmful to US citizen Admonishment error is a statutory error; so not reversible unless there harm shown. Particularly difficult to do when pleading guilty.

Inevitable discovery -

NOT RECOGNIZED IN TEXAS. if police can show they definitely would have discovered evidence anyway. EX: search party out in the field were just about to discover body, when they illegally coerce D to give up body's location. TXCCA: It is unfavored because it assumes a causal relationship between the illegality and the evidence. It assumes that the evidence was actually "obtained" illegally. The doctrine then asks whether the evidence would have been "obtained" eventually in any even by lawful means. But the fact that evidence could have been "obtained" lawfully anyway does not negate the fact that it was in fact obtained illegally. Once the illegality and its causal connection to the evidence have been established the evidence must be excluded Evidence is still obtained illegally, so not allowed.

If a judge is disqualified form serving for any reason, the case's venue is

NOT changed. Rather, the recused judge must notify the presiding judge of the disqualification, and the case is then transferred to another judge.

Merely refusing to open the door to police is

NOT enough to give reason to believe destruction of evidence.

In Federal rules, you need state action to trigger constitutional protections, but ...

NOT in TEXAS! Yeehaw

Failure to turn over evidence that D also has access to will

NOT lead to reversal. EX: if the D already has access to medical records at issue in the case (D's insanity). If he has access to that, and the State fails to turn over their copy, that will NOT be a Brady violation. It's only if the ability of the D to receive that info is hampered by the fact that the state has possession/custody/control of the evidence, do we have a Brady issue: failure to turn over will be a constitutional violation and could leave to reversal.

BUT: Texas Disciplinary Rules of Conduct - requires Ps to turn over all favorable evidence REGARDLESS of materiality. Regardless of whether it is admissible or not.

NOTE: this is not a constitutional rule of criminal procedure. This is simply an ethical obligation. It could lead to prosecutorial sanctions, but unlikely to lead to a reversal on appeal.

Challenges to the Charging Document The D can challenge the charging document

NOTE: to understand the next case - it is a felony offense to harbor a fugitive the D knows has a warrant for a felony offense. In contrast a person who harbors a fugitive without knowing he has a felony warrant is guilty of a misdemeanor.

The Exclusionary Rule In order to deter police misconduct. The federal exclusionary rule applies to evidence unlawfully seized by govt agents. The TEXAS rule, 38.23, is broader:

No evidence obtained by an officer OR OTHER PERSON in violation of any provision of the Constitution or laws of the State of Texas, or of the Constitution or laws of the USA, shall be admitted in evidence against the accused.

Prosecutor's Role After the D is charged with a crime and the case is assigned to a court, the DA's office creates a file for the case. The P assigned to the case reviews in the info in the file, speaks with victims and Ws and determines what punishment to offer the D.

No one but the State may offer a plea bargain. The D can accept, reject or counter the offer. Negotiations between D counsel and the prosecutor are commonplace, especially as the attorneys learn more about the strengths and weaknesses of the case. What might start off as an offer of 8 years may be reduced to four if the P discovers evidentiary weaknesses or the D counsel argues successfully for punishment mitigation. On the other hand, P might decide the first offer was too generous, and decide to increase it before it has been accepted or place a deadline. It is legally permissible for the State to make changes to the offer before the D accepts it. Once the D and the State agree upon the punishment, the D will plead guilty to the offense in exchange for the punishment. At its core, the plea bargain is a contract between the state and the D. As a K, once both parties have entered knowingly and voluntarily into a plea bargain, they are bound to its terms when it is accepted by the judge.

Turning Over Evidence: Plea Bargains

No requirement that P or D has to turn over evidence. D - how can I knowingly/intelligently plea without knowledge of the evidence? USSCT - rejected. Nothing unconstitutional about pleading guilty while also maintaining innocence.

What happens if a defendant is found not guilty by reason of insanity?

Not automatic release. The judge makes a determination of "dangerousness" Typically looks to the crime itself. If it's a crime of violence, caused serious bodily injury or placed someone in dangerous of serious injury, the court will find D dangerous and hold jx over D until either such time the max penalty of prison would have been, or there's a holding he's not dangerous. If finds dangerousness, the D will be evaluated by an expert. Court is supposed to impose the least restrictive environment. Not supposed to be punishment, supposed to be for mental health treatment. TX Criminal Justice system is the largest provider of mental health services in the state. Where a lot of people get treatment, such as it is.

What happens if a violent D is determined incompetent, he's put in a mental hospital for 120 days but never regains competency?

Not going to just release this person onto the streets, so D stays under the jx of the court. But the court only has jx for as long as the potential punishment would have been in the particular case. So if there's a finding that he's a danger to himself or others, he can still be institutionalized, but only for that length of time. EX: if maximum punishment that was allowed is 2 years, he cannot be held for longer than that. If at 2 years, he is still a danger to himself or others, at that point *civil commitment proceedings* would probably go forward; needs to be in the care of the state.

Texas-specific Rules/Duties of Appointed Counsel When must appointed counsel contact the D after appointment?

Not later than the end of the first working day after appointment day. EX: appointed Thursday, must contact by the end of the day on Friday. Must also interview D as soon as possible.

Is a guilty plea, when the D maintains his innocence, involuntary?

Not necessarily. If the D was promised something, induced, or threatened to make the plea, yes, but if the D fears a harsher punishment than the one offered by the State, he may choose the certainty of the negotiated punishment in lieu of the uncertainty of the factfinder's punishment.

Wiring Pleas together

Not unconstitutional for P to offer plea deal contingent on another pleading guilty. EX: P won't deal with your wife unless H pleads guilty

39.14 Disco Duplicates -

State can provide duplicates instead of originals.

Venue Specific Statutory Rules

Offense-specific and when you don't know where it happened.

How does a police officer get an Arrest Warrant?

Officer gives affidavit that establishes PC Magistrate signs off on it.

Community Caretaking Officers are not always investigating crimes or chasing down suspects. Police officers do many things, such as directing traffic, rescuing missing children, etc. What happens when an officer performing in a community caretaking capacity discovers evidence of criminal activity?

Officers need an objectively reasonable belief that one of the factors is presenting itself, such as: -aid individuals who are in danger of physical harm, -assist those who cannot care for themselves, and -resolve conflict. Police can stop people under the community caretaking doctrine: EX: person throwing up out of the backseat window; pulled over to see if he is okay. Pretty vague standard. Officers can often find a reasonable belief for community caretaking or exigent circumstances ("evidence was going to be destroyed") Cannot search for things pursuant to this exception; evidence can only be gathered via plain view.

39.14 Disco Pro Se Defendants -

One of the big concerns of the TXL in passing the MMA was dangers associated with allowing Ds direct access to this evidence. Generally speaking the D does NOT have the right to discovery, only the D's counsel (who is not permitted to reveal specific addresses, names, etc. to D or 3Ps) HOWEVER, in the case of pro se defendants, the D does get to examine documents, but the State does not have to permit duplication. The State is permitted to further redact information that could put Ws or Vs at risk (addresses, phone numbers, etc.).

Why might a D waive indictment?

One reason is to plead guilty before the GJ indicts him. GJ may take up to 90 days to indict a D. If the D wants to plead guilty before that time, she must waive indictment.

Once the D attorney brings forward some evidence that the D is not mentally competent to stand trial, what happens next?

Order an examination by an expert, who will examine D Then, court will hold a hearing

All of the emergency exceptions (emergency, exigency, hot pursuit) still require

PC

CHAPTER 1: ARREST Most criminal cases begin with arrest or search. Arrest procedure is greatly shaped by 4th Amendment, which mandates no arrest warrant shall issue unless supported by

PC In TX and federal system there is a clear preference for the warrant process in which police officers present their facts to a neutral magistrate to decide if there is PC to issue that warrant.

What level of suspicion do you need for lawful arrest?

PC More constitutional protections if under arrest than just detention PC - reasonable officer who believe upon the facts that this person is committing or committed an offense.

Refusal to consent can NOT give

PC to search

Terry frisk

Pat down weapons search. Limited in scope exists for officer safety. Need reasonable suspicion of criminal activity and weapon If they can quickly tell while conducting a frisk that you have a weapon they may remove the weapon and proceed with the investigation Purpose is officer safety, NOT to search and seize contraband; thus when they do not believe the object is a weapon they are not permitted to remove, seize, or further inspect the object unless it is immediately apparent that it is contraband. EX: pat down, feels a baggie, might be drugs. NOT okay under Terry since no officer would mistake a baggie for a weapon and it is not immediately apparent that it is contraband just by feel. Could have been aspirin; don't know until close inspection.

Intake

Police have an officer who is on call all the time to deal with newly arrested suspects Most counties don't have an attorney on call; but Harris County does. Will call DA to ask if can press charges on individual Have to look up the class of crime (DWI, etc.) DWI - class B misdemeanors

Search Warrant Execution: Inventory

Police officer will write on the back of the warrant how it was executed and an inventory of everything they took. This will be delivered to the M If an inventory isn't taken, the police don't write down what they took, the D can only succeed if the D can show prejudice Problem: how can the D show prejudice if he can't show what the police took? Very rare for D to succeed.

TXCCA explained the purpose of the extraneous offense evidence at this stage:

Prior crimes or bad acts are introduced to provide additional information which the jury may use to determine what sentence the defendant should receive. Tex. Code Crim. P. Ann. art. 37.07 requires that such evidence may not be considered in assessing punishment until the fact-finder is satisfied beyond a reasonable doubt that these prior acts are attributable to the defendant. Once this requirement is met, the fact-finder may use the evidence however it chooses in assessing punishment.

How does a prosecutor seek a grand jury indictment?

Prosecutors present felony cases to the grand jury. They do this by giving the grand jurors records and reports associated with the case, discussing the case with the grand jurors, calling witnesses, and answering questions.

The State's File

Ps create a file for each D. A D charged with multiple crimes may have multiple files or just one, depending on the P's organizational preference. The P's file may include the charging instrument, the police report, W and D's statements, work product, and the D's criminal history. Depending on the type of crime and the volume of reports, records, and evidence connected to the case, the file may be housed within a thin, manila envelope or in several large boxes.

When discovery order violations are willful, a more punitive response is required.

Punitive sanctions including holding the offending attorney in contempt of court for violating the discovery order; the judge may order the attorney to serve a short jail sentence or pay a fine after being held in contempt. The most extreme sanction is to suppress the withheld evidence from trial. This remedy is only available for bad-faith or willful discovery order violations.

Purpose and Flagrancy of Official Misconduct & Attenuation

Purpose and flagrancy of official misconduct "is one of the most important factors to be considered." When official misconduct is the most flagrantly abusive, the standard for the state to prove attenuation is elevated to require the "clearest indications of attenuation." Examples of such abusive conduct may include "reliance on factors in making an arrest which were so lacking in indicia of probable cause as to render belief in its existence entirely unreasonable; an arrest effectuated as a pretext for collateral objectives; or an arrest which is unnecessarily intrusive on personal privacy." Similarly, *the taint may not be attenuated if the accused was arrested for no apparent justification and with the sole intent to extract a confession by exploitation*. This contrasts with situations in which probable cause exists and failure to get an arrest warrant is a comparatively less serious misconduct. As in all attenuation cases, there was official misconduct, specifically, failing to obtain a warrant before the arrest.

Remember, a Terry STOP (AKA "investigative detentions") require ...

RS that a crime has or is about to occur.

Laney v. State (TXCCA 2003) FACTS: Cops responded to a call involving disturbance between neighbors at a mobile home park. -D came out of his trailer, explained to cops that he turned off neighbor's electricity in retaliation for neighbor doing that to him. -Cops placed D in the back of their car for their safety pending possible criminal mischief charges. -Cops notice two young boys come out of D's trailer. Asked D if they were his kids, D said no. Kids went back into trailer after seeing cops. Cops asked D if he had ever been arrested and D replied he had been arrested for indecency with a child -Cops testified at suppression hearing that since D was going to jail it was his responsibility to get the children out of the trailer and find out who their parents were. When he came to trailer door, one boy came out, leaving door open. Cop asked about other, and he said that boy was at the back bedroom. Cop entered trailer calling for kid but got no response. He proceed into the trailer with a flashlight and found the boy sitting on the bed. Cop found pictures of what appeared to be child porn. More cops were called and they asked and received D's consent to search trailer. Found more child porn. ISSUE: Whether the community caretaking function exception to the warrant requirement applies to the warrantless entry and search of a private residence.

RULE: As part of the officer's community caretaking functions to protect and preserve life and prevent substantial injury, an officer may enter and search a private residence without a warrant for the limited purpose of serving those functions when it is objectively reasonable. STATE: community caretaking exception to the warrant requirement applies to warrantless entry and search. TCt: given the fact that the D told cops he was convicted of indecency with a child, that the children were not his kids, they were justified in warrantless entry, and the material was in plain view. MTS denied. ANALYSIS: Community caretaking function is narrow exception. Only in the most unusual circumstances will warrantless searches of private, fixed property be justified under this exception US SCT has recognized that the 4th amendment does not bar police from making warrantless entries and searches when they believe a person within is in need of immediate aid. COURT: we agree with TCt that cop's actions in entering the home to ensure the well-being of the young child were reasonable under the circumstances. Cops responsibility was to find out who they were and contact parents. Would have been arguably criminal liable for leaving child behind Exigent circumstances justify the warrantless entry. Affirmed. *Concurrence* - Court doesn't mention that the cops knew the boys were the kids of the D's girlfriend. This fact makes it a much closer case. -Don't know if mother knew of boyfriend's priors. It still was not unreasonable to remove the boys from the home of a convict child sex offender. -However, disagree with the second warrantless entry after the boys were safe and no other emergency existed. No legal justification for the second entry. -The kids were out, there was no indication anyone needed help. They should have gotten a warrant for the second entry.

Murphy v. State (TXCCA 2003) ISSUE: D claims evidence was insufficient to prove venue to be in Dallas. TCt denied motion for directed verdict for lack of venue. FACTS: D was charged with capital murder and sentenced to death after kidnapping a woman that gave him a ride, shooting her and putting her in the trunk. Exact time of death and where he drove made venue unclear. Jury was charged that venue was proper in either (1) county where the offense occurred, (2) [theft] where the property is stolen in one county and removed by the offender to another, in the county where the defendant took the property or in any other county through or into which he may have removed the same, or (3) [homicide] if a person receives an injury in one county and dies in another by reason of such injury, in the county where the injury was received or where the death occurred, or in the county where the dead body is found, or (4) [kidnapping] in the county in which the kidnapping offense was committed, or in any county through, into, or out of which the person kidnapped may have been taken. However, if an offense has been committed within this State and it cannot readily be determined within which county or counties the commission took place, trial may be held in the county in which the defendant resides, in the county in which he was apprehended, or in the county to which he was extradited. D objected to the charge, arguing it should be where the homicide occurred.

RULE: Venue is generally where the crime he occurred. If it cannot readily be determined within which county or counties the commission took place, trial may be held 1) in the county in which the D resides, 2) in the county in which he was apprehended, or 3) in the county to which he was extradited." [if he fled state, and was brought back] HERE: Venue will stand if it is sufficient under any one of the venue provisions. Article 13.19 provides that if an offense is committed within the state but "cannot readily be determined within which county or counties the commission took place," trial can be held in the county in which the defendant resides, the county where he is apprehended, or the county to which he is extradited. This provision was made a part of the trial court's charge. Given the difficulty of determining exactly where the offense occurred, a rational jury could have relied on this provision and concluded venue was proper in Dallas County, the county of appellant's residence. Point of error twelve is overruled.

Variances

Relates to the difference between the pleading and proof. Difference between charge alleged vs. proof at trial and jury instructions Problem: if the pleading says one thing, gives notice to D of one thing, but then offers different proof at trial, that is not fair; violates due process. D doesn't have notice as to what he needs to defend against. EX: can't have the indictment say manslaughter, then instruct the jury for murder.

Barrow v. State, 241 S.W.3d 919, 920 (Tex. App.—Eastland 2007) FACTS: Cop saw a drug deal; followed the car. When the car didn't stop properly, the cop pulled over the D. Saw white specks on driver's arm and steering wheel that looked like cocaine. Asked D to exit vehicle. Suspected that D had something in his mouth; cop asked to open mouth, looked like crack rock inside. Asked to spit out, but swallowed. Put D under arrest. D filed MTS, contending he was unlawfully detained, but he didn't dispute that he failed to stop properly. Never presented with warrant or advised of his rights. Pretext?

Remember the subjective motives of the police doesn't matter. As long as S breaks a traffic law cops can stop, even if for a different subjective motivation. TCt: denied MTS and jury found him guilty of tampering with physical evidence. HELD: Because cop properly stopped D, the subsequent search was proper. Police may conduct SITLA following traffic stop. They may order passengers to exit car then STILA. Observation of rock in mouth was within valid scope of SITLA. There is a point at which a SITLA of a person can go too far. EX: can't pump someone's stomach as part of a SITLA --Also, here you could raise exigency, since swallowing drugs can cause harm to a S. *D counsel requested a jury instruction to disregard illegally seized evidence.* Can only request such an instruction if facts are controverted. --Here, the D is conceding to everything regarding the legality of the stop. D is just arguing that the mouth search was invalid. COURT: This is an issue of law, so the jury never hears about it if it's a purely legal determination. --If, however, there is an actually an argument about the facts; if he had argued that he didn't run the stop sign, then he could have made the request

Disco Motions

Requesting material information, typically what is available under 39.14 File it 7 days prior to any pretrial hearing (the standard requirement for pretrial motions) Judge will respond with an order ordering the State to turn over those materials

Venue refers to _____, whereas jx refers to _____

SMJ: where the criminal case begins; venue: the authority of the court over the type of case. EX: Harris County would be the appropriate venue for a misdemeanor theft that occurred in Houston. However, a DCt in Harris County would never have jx to hear a Class B misdemeanor theft case because the DCts possess authority to hear only felony cases and their LIOs

SCt cases where the GJ indictment was accused of being unconstitutional because the P did not present any exculpatory evidence to the GJ:

SCT: doesn't matter. The P is under no obligation to present exculpatory evidence to the GJ. GJ indictments may not be attacked by a D on the basis that evidence was presented to the GJ that would be inadmissible at trial. Otherwise it would turn GJ proceedings into mini-trials.

Statutes of Limitations

SOL discourage stale claims. They encourage parties to investigate and try cases promptly, while evidence is fresh. Most prosecutors dislike trying older cases because as memories fade and evidence grows old, jurors are more likely to have reasonable doubt. While SOL could be addressed within the charging instruments chapter, the time to raise an issue related to the timing of the charge is at the pretrial hearing.

WARRANTLESS SEARCHES Exceptions must be "carefully crafted" In order for the warrantless search to be upheld in court, the _____ has the BOP that the warrantless search fell within one of the following exceptions.

STATE

Mosaic Theory -

Scholars argue that underpinning Carpenter and Jones - is the idea that the acts of state officials should be evaluated in a TOTC to capture whether a REP was violated. Lower courts have utilized, but hasn't been adopted in Texas or USCt Critics: too nuanced. Difficult for cops to evaluate whether it is a search.

Brimage v. State, (TXCCA 1996) FACTS: Suspicion V was raped and murdered by D. Family attorney and D's uncle (a judge) broke into D's house and found evidence of a struggle. Police Asked this family friend/judge for consent to search and judge said yes. Police searched premises which were in disarray and showed signs of violence. V's body was found in trunk of car in garage. Police returned the next day - without a warrant and continued search. Based in part of search of D's residence, police obtained arrest warrant. D arrested and confessed to crime. MTS hearing: neither cops nor judge characterized the police search as emergency.

STATE: believed that girl needed assistance; Argue that the judge gave consent to search for evidence. COURT: No, this was an improper evidentiary search based on supposed "consent" by Bennet. But Bennet had no authority to consent. No exigency either because Police weren't expecting to find a body at the house, much less an alive injured victim in need of assistance. Search and evidence produced therefrom were illegal. D's conviction is reversed and remanded to trial court.

Tracking - GPS, etc.

Several cases. *US v. Jones* - State putting a GPS device on car. - -State: we're just tracking public movements. -Court: used trespass theory. By placing GPS on car, that was a trespass of owner's property -Same applies to "chalking" tire *Cell phone tracking: US v. Carpenter* -Court: tracking people with their phone's location data violates a REP. The longer it goes on the bigger the violation. Need PC and a warrant

Any person may challenge the GJ as a group or an individual juror before the GJ has been empaneled.

Since most suspects and D will not know who is serving prior to arrest and charge, there is a way to challenge the GJ after it has been empaneled. The D must challenge the GJ at the first opportunity he has through a *motion to quash the indictment.* The Code states that a D may challenge the GJ as illegally empaneled by filing a motion to quash the indictment if he shows he had no earlier opportunity to challenge the array at the time it was empaneled. If the D waits to challenge it when he could have done so earlier, his motion will fail. In sum, he must raise the challenge as soon as possible through a motion to quash.

Search Incident to Lawful Arrest (SITLA)

So long as the arrest is lawful, officer has right to search person without warrant.

Duties of Appointed Counsel

Society often sees appointed counsel as a lesser attorney who is not as capable of zeal as a hired attorney. In some instances, this may be true, but many appointed attorneys in TX are more qualified and skilled than their hired counterparts. In fact, some counties require appointed attorneys or public defenders to have years of experience, a significant number of trials, and pass a difficult exam before they are appointable. There is no comparable standard for hired defense counsel; they may represent a D on a serious charge or a complicated case when they are inexperienced.

Standing - who can complain about an illegal search?

Someone with a possessory interest in the real property searched (owns it or pays rent) Family members who regularly reside there (children, mom, etc.) Overnight guests (hotel room, or your guest bedroom) A social guest, who is not staying overnight, can have standing, but generally not. Especially for a biz purpose Someone who has a possessory interest in the item searched (purse, or pocket)

Why can a D appeal sometimes from a plea?

Sometimes D plea because they lost a motion to dismiss. If they were not allowed to appeal the MTS ruling , then the only chance that D had to win a MTS would be to go to trial, then that would mean much fewer pleas. So D CAN raise issues he raised in pretrial motions (usually MTS) even if he pled guilty Process: files pretrial motion; judge denies. Then pleads guilty. However, D can still appeal those pretrial motions. *WATCH 3/23 VIDEO TOWARDS THE END ON THIS*

The Code DOES have provisions regarding EXPERT witnesses

Specifically provides that BOTH the State and Defendant needs to turn over the name of any experts that they intend to call at trial.

One of the privileges in Texas, is the "Informant's Privilege"

State has the ability to refused to disclose the name of an informant to the D, when they have given info to a police officer or legislature investigating a crime, and the info assists in the investigation. Rationale: want to protect the CI and be able to continue to use the CI

MOTIONS FOR CONTINUANCE

Suppose a W cannot appear on the trial date due to a scheduling conflict. Most court appearances are agreed upon by the court and the attorneys before subpoenas are issued. Scheduling conflicts may not be known until the Ws receive their subpoenas. The attorneys may have an unexpected event arise after the trial date is scheduled. There are many reasons why a trial date may need to be moved after it is set. Either party may ask to postpone the trial by filing a motion for continuance.

Checkpoints

Suspicionless searches - EX: border looking for undocument immigrants, DWI, etc. Compares the gravity of the public concern with the infringement of private rights TX has some limitations on checkpoints

Protective Sweeps

Sweep home to make sure no one hiding to harm them. Extension of the Terry search principle Sweeps permissible when the officer reasonably believes that the area to be swept harbors an individual posing a danger to the persons present at the scene. Should be limited in time and scope focusing on places where people could hide Not limited to homes; also cars. Officers may perform sweep of passenger compartment or any reachable area if they have reason to believe S has a weapon Must have RS passengers are armed or can access weapons

Arrest Whether we can take suspect into custody. Do we need a warrant?

TX law and federal rules differ to some extent. Federal Supreme Court rule - as long as arrest made in public with PC, police don't need warrant TX rules - general rule is that police need a warrant to arrest, unless exception. Principle is different, but in practice often operates the same way.

Cook v. State, 902 S.W.2d 471 (1995) FACTS: Appellant was convicted by jury of theft of over $20k. Judge sentenced to 10 years confinement and restitution. D's name wasn't in the indictment. So D challenges as void. Issue: Whether a charging document which fails to charge "a person" still constitutes an indictment

TXC Art 1, s.10: Rights of accused in criminal prosecutions: In all criminal prosecutions the accused shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof, and no person shall be held to answer for a felony criminal offense, unless on an indictment of a grand jury *Indictment serves two functions:* 1) provides notice of the offense in order to allow a D to prepare a defense 2) indictment serves a jurisdictional function. --The filing of an indictment is essential to vest the trial court with jx over a felony offense. --Jx vests only upon the filing of a valid indictment in the appropriate court Arti V., s.12(b) *defines an "indictment"* as a "written instrument presented to a court by a grand jury charging a person with the commission of an offense." Therefore, to comprise an indictment within the definition of the TXC, an instrument must charge: 1) a person 2) with the commission of an offense. If there's a defect in prong #2, and the D doesn't raise the issue before trial, the objection is waived. But here, the court holds that if #1 is missing it is void because the court lacks jx over the D. When an indictment doesn't name a D it is void. HELD: the definition of an indictment in the TXC establishes the constitutional requisites of an indictment, and if the instrument fails to charge "a person" then it is not an indictment and does not vest the trial court with jurisdiction. Since the indictment is essential for jx, it is NOT subject to waiver. HERE, since the document did not meet the first prong of the constitutional definition it is not a valid indictment and did not vest the trial court with jx. Thus, the appellant's conviction is void. Remand with instructions to dismiss the prosecution in this case.

Federal judges are prohibited to get involved in plea negotiations. Texas judges as well. But the reality is that DAs and lawyers will often seek input to see if judges will approve a plea/recommended sentences.

Technically not supposed to do it, but they do it anyway to save time. Particularly true if abnormal plea.

The Temporal Proximity of the Arrest and Attenuation

Temporal proximity is generally not a strong determining factor. Nevertheless, if there is a short period of time (under three hours) between the illegal arrest and the confession, this factor will weigh in favor of appellant.

That the D was psychotic and suffering from untreated paranoid schizophrenia at the time of the murder did NOT render him legally insane. Why?

Texas appellate courts have consistently held that placing a 911 call to report a crime is evidence the D knew right from wrong. The law does not specify that people with psychotic and mood disorders such as schizophrenia, schizoaffective disorder, bipolar disorder and depression are the only people that can claim incompetence or insanity. People who suffer from brain injuries, depression, PTSD, severe stress, and mental developmental or intellectual disabilities have also claimed insanity.

Joinder

Texas does allow joinder of multiple crimes in a single charging instrument if they are part of the same criminal episode. Advantage for P: jury more likely to convict Permits joinder of 2 or more offenses that arise out of the same criminal episode

However, these experts/investigators must be paid. How does an indigent pay them?

Texas permits indigent Ds funds to hire investigators or experts, so long as the fees are reasonable, and the court approves the expense. An appointed attorney who needs an investigator or expert must file a motion. This motion may be ex parte so the D does not reveal his defensive theories to the P. An indigent D is entitled to meaningful access to justice which means he should have access to the raw materials integral to the building of an effective defense thus ensuring a proper functioning of the adversary process. When a D is denied a defense due to a court's refusal to pay for investigators or experts, it raises due process concerns. In a case where the D requested a psychiatrist to aid in his defense and was denied, the TXCCA stated: In an adversarial system due process requires at least a reasonably level playing field at trial. In the present context that means more than just an examination by a neutral psychiatrist. It also means the appointment of a psychiatrist to provide technical assistance to the accused, to help evaluate the strength of his defense, to offer his own expert diagnosis at trial if it is favorable to that defense, and to identify the weaknesses in the State's case, if any, by testifying himself and/or preparing counsel to cross-examine opposing experts.

Two of these requirements (4) ten days notice and (6) charging a new offense require more explanation through an example. EX: prosecutor notifies the court and defense counsel on Friday, June 28 she wishes to amend the indictment. D counsel requests the full 10 days' notice, which is fair and common. As a result, the judge cannot go forward with trial as planned. To accommodate the D counsel's request, the trial must now be moved to July 8 at the earliest. Now suppose after speaking to Ws and gathering evidence the P realizes the charge itself must change from one felony offense to another. Can the prosecutor change the crime through an amendment to the indictment?

The Code indicates that she can if the D does not object. If the D objects that changing the crime through amendment deprives him the right to a grand jury PC determination, the indictment cannot be amended. In this case, the prosecutor would be required to dismiss the case and seek and new indictment based upon a new charge.

presentence investigations (PSI) and presentence reports.

The Code permits the judge to request a PSI and report for a probation officer when community supervision is a punishment option. The report includes details about the facts of the crime, the amount of restitution owed to the V, the D's social and criminal history, a plan for community supervision if the D is eligible for it, and any other recommendations the probation dept has regarding punishment The purpose of the report is to assist the judge in determining how to sentence the D, or in the case of a negotiated plea, whether it is just or whether the conditions should be added to an offer of probation or deterred adjudication. The judge will consult the PSI report in assessing punishment.

The Defendant's Role in the Plea Bargain Process

The D cannot compel the State to offer him anything in return for a plea of guilt If there is an offer and acceptance of that offer, the D's plea must be freely and voluntarily given. He should not plead guilty due to pressure from others - D counsel, family, employers, or friends. He alone is the one who decides which plea to enter.

Burden of Proof on Searches

The D has the initial burden of producing evidence that rebuts the presumption the police conduct was proper. Where a search warrant is involved, the D must allege there was no warrant or that the warrant was invalid. Only when the D rebuts the presumption, alleges no warrant, or alleges a warrant error does the burden shift to the State to prove the search or seizure was legally permissible The next case discusses the burden shifting involved when the D challenges the search.

The right to counsel for appeals

The D is constitutionally entitled to counsel on the first appeal as of right. For discretionary appeals to the TXCCA, he is NOT entitled to appointed counsel. Would have to hire counsel

What happens when the D enters a guilty plea, elects to have the jury assess punishment, but then wishes to withdraw his plea during the punishment hearing? When is a plea withdrawal timely in this instance?

The D may withdraw his guilty plea at any time before the jury retires to deliberate When this happens the jury is instructed to disregard the D's earlier plea, which causes the trial to revert from a unitary trial to a bifurcated trial. It seems odd to request the same jury to "unhear' the D's guilty plea in open court; nevertheless that is the procedure. Unlike most aspects of criminal procedure, which are based in the Code, the timeliness of the plea withdrawal is a common law rule.

Who must attend a pretrial hearing?

The D must appear at all pretrial hearings. D can testify at pretrial hearing. The testimony is focused in on the matters that are being reviewed by the court, such as motions to suppress, double jeopardy, entrapment, etc. The testimony CANNOT be used against the D in the P's case-in-chief. HOWEVER, If the D takes the stand at trial, any testimony from pretrial hearing can be used for impeachment.

Dog sniffs -

a dog sniffing your bag at an airport or your car when you are stopped. This does NOT constitute a search. At some point it can. EX: police bringing a dog to the door to your home goes too far. Breaches implied license.

Rights of D at Pretrial Hearing

The D not only has a right to be present at the hearing but to testify as well The D's testimony at the hearing cannot be used against her at trial. This is because the testimony is limited to the issues raised at the hearing and cannot be used to violate the D's 5th Amd PASI at trial. However if the D makes inconsistent statements, her pretrial testimony can be used to impeach her at trial. Cross-examination at a hearing is likewise limited to the matters raised by the testimony offered at the hearing. --For example, a motion to suppress hearing is limited to the suppression issues raised by D counsel in the motion and testified to by the D & Ws. This means the prosecutor is prohibited from asking off-topic questions that are otherwise permissible trial questions.

A lawyer filing a habeas is entitled to request a hearing. The judge must notify the State about the bail reduction hearing. At the hearing, the D must produce evidence that bail, as set, is excessive

The D should testify about unsuccessful attempts to make bail, her financial and property holdings, and what about of bail she could pay The D should not fear being asked questions about the offense at this hearing, since questions are limited to the ability to make bail unless the D discusses the offense. The judge may reduce bail if the D's proof establishes the need for bail reduction. Although the D carries the BOP, the court should hear evidence neutrally. However, then a D vaguely asserts, without specificity, that she cannot afford bail, the court will generally deny the D's request. The D must be transparent about her finances, what bail amount she can afford and proffer evidence to support her contention that the current bail amount is too high.

Who has the burden of proving mental competency to stand trial?

The Defendant.

The Secrecy of Grand Jury Proceedings

The GJ proceedings shall be in secret. The Code contains many provisions designed to ensure GJ secrecy. At both federal and state level, GJ are secret. Rules vary by jx.

FRE 615's applicability has been called into question following passage of the Moran Act in 2014. This is because the State's witness statements are discoverable upon request, according to the Act.

The State can no longer wait until after direct examination at trial to present the W statement to D counsel.

The Code dictates what kind of evidence the GJ can consider and how they may conduct their investigations

The TX Evidence Rules do not apply to GJ proceedings. This means hearsay, opinion, illegally seized, etc. and other usually inadmissible evidence, even unlawfully seized evidence, can be considered. GJ can consider anything. Doesn't even have to be relevant. However, you CANNOT force a party to break privilege (attorney-client, etc.)

TXCCA harmonized the attenuation doctrine with TX's ER this way:

The attenuation doctrine is applicable to 38.23's ER rule because evidence sufficiently attenuated from the violation of the law is not considered to be "obtained" therefrom.

Code defines a single criminal episode as:

The commission of two or more offenses, regardless of whether the harm is directed toward or inflicted upon more than one person if the offenses are committed pursuant to the same transaction or constitute a common scheme or plan; or the offenses are the repeated commission of the same or similar offenses.

Stern v. State ex rel. Ansel, (Tex. App.—Houston [14th Dist.] 1994) FACTS: Appellant state employee was a district attorney who publicly released transcripts of grand jury testimony regarding an investigation of the sheriff.

The court held that district attorneys have a clearly defined statutory and common-law duty to keep grand jury testimony secret in the absence of a judicial order. The court held that by publicly disclosing grand testimony transcripts, appellant intentionally failed, refused, or neglected to perform a duty imposed upon him by law and engaged in official misconduct.

The Code contemplates a two-party process when the GJ questions the D.

The first part involves informing the D about why he is there. The second part requires the GJ to warn the D before he testifies. Each part requires several steps

Arraignment

The judge must arraign defendants charged with jailable offenses. The purpose of arraignment is twofold: 1) to determine the identity of the accused 2) determine the plea of the accused.

Key issue: is the state just making a change to the instrument, altering facts/allegation, OR is the amendment charging the D with an additional/different charge?

The latter is not permitted if the D doesn't agree.

The burden of proving that consent was freely given cannot be discharged by showing no more than ...

acquiescence to a claim of lawful authority.

Two other reasons support the legislative decision to forbid appeals of voluntariness in such cases. One is a cost-benefit analysis.

The number of plea-bargain, felony cases in which a plea was entered involuntarily is very small, compared to the large number of meritless appeals that would be authorized. It must be remembered that the rule we are construing applies only to plea-bargained, felony cases. In a former era a defendant was expected to plead guilty (often without a lawyer) and throw himself on the mercy of the court with no assurance of the punishment to follow. The defendant's decision to do so was first manifested in court when the plea was entered. At that time it was crucial that the court give the defendant information about the consequences of a plea of guilty so that the decision to do so could be voluntary and knowing. But the practice of plea bargaining, which was made necessary by the lack of judicial resources, shifted the crucial decision in most cases to a plea-bargain agreement that was struck between attorneys for the State and the defendant in a negotiation that took place off the record. Now in a plea-bargain case the defendant knows, and has accepted before the plea is entered, the most important consequence of the plea of guilty: the upper limit on punishment. Even when the record shows that the trial court erred in admonishing a defendant before his plea is accepted, the plea will not be held involuntary on appeal if the defendant knew the punishment he was facing and the trial court followed the plea agreement. In a real sense, therefore, when the legislature identified cases in which the trial court followed the plea-bargain agreement, it identified cases in which the pleas were voluntary. The number of cases in which the plea is involuntary when the trial court followed the plea agreement is therefore very small, and the number of cases in which the involuntariness would appear in an appellate record is even smaller.

The Presence of Intervening Circumstances and Attenuation

The presence of an intervening circumstance is an important factor. Generally, "[a] confession obtained through custodial interrogation after an illegal arrest should be *excluded unless intervening events break the causal connection between the illegal arrest and the confession so that the confession is sufficiently an act of free will to purge the primary taint*." However, the lack of intervening circumstances is not dispositive if other Brown factors weigh strongly in favor of the state. Confrontation with significant evidence untainted by an illegal arrest may be an intervening circumstance if it breaks the causal connection between the arrest and the confession. However, in a particularly coercive atmosphere, such confrontation will not be sufficient to break the causal connection between an arrest and the confession.

Much is going on behind the scenes during these settings

The prosecutor may be calling Ws to gather more facts, waiting on toxicology reports, or evaluating the case for trail. The D may be weighing the plea offer or building his defense. The D attorney may be investigating her client's case or requesting additional settings to give the D time to pay her legal fees. Either attorney may file motions, invoke rights, or raise concerns during this time. Because everyone is working on multiple cases, and resolving legal matters takes time, the P, D, and judges will typically agree to multiple resets. The attorneys are not the only ones working behind the scenes. Judges employ staff who grant resets and manage their dockets. The court clerk keeps a record of the documents filed at each setting, court coordinators arrange the dockets, and bailiffs ensure secure transport of Ds in custody and maintain order in the court.

The Waco Appeals Court explained the basis for this rule and the analysis appellate courts undertake in determining whether to exclude punishment extraneous offense evidence the P failed to disclose:

The purpose of article 37.07, section 3(g) is to avoid unfair surprise and to enable a defendant to prepare to answer the extraneous offense evidence. This analysis requires examining the record to determine whether the deficient notice resulted from prosecutorial bad faith or prevented the defendant from preparing for trial. In determining the latter, appellate courts look at whether the defendant was surprised by the substance of the testimony and whether that affected his ability to prepare cross-examination or mitigating evidence

The "M'Naghten rule" (TEXAS FOLLOWS) -

The rule creates a presumption of sanity unless the defense proved "at the time of committing the act, as a result of mental disease or defect, as not to know the nature and quality of the act he was doing or, if he did know it, that he did not know what he was doing was wrong."

Search - fed vs. TX

The rules are the same under federal and TX. Same exceptions to search warrant requirements. But what is required in the search warrant is very specific to TX

Particularity Requirement

The second item on the above list requires that the search warrant contain a clear description of the place to be searched and the thing to be seized. *Art 1, Section 9* of the TXC echoes this requirement by saying "no warrant to search any place, or to seize any person or thing shall issue without describing them as near as may be" Must be particular, NOT general. If not for the particularity requirement, we would have "general warrants" which the founders were trying to avoid with the 4th amd. Search warrants are an intrusion into the private sphere of a person; to ensure the safety and privacy of the public, they must be carefully limited. Officers sometimes fail to particularly describe the place to be searched or the items to be seized, or they may search for items or in places not included in the scope of the search warrant.

What's the competency standard that the D has to prove?

The the D lacks sufficient mental ability to consult with attorney with reasonable degree of rational understanding. And that he lacks the rational understanding of the proceeding against him, can't assist his attorney. D must disprove competence by a preponderance of the evidence

Consequences of Disobeying a Subpoena - How is a subpoena enforced? What happens when a W receives a subpoena but fails or refuses to appear?

The word subpoena means "under penalty" in Latin; Ws who fail to appear may face a judicial penalty. The Code permits the parties, through the judge's authority, to force the W to come to court. There are two ways to do this. *1) Writ of Attachment* - A judge can enforce a subpoena by issuing a writ of attachment. -When a W is attached, she is taken into custody and delivered to the court by a law enforcement officer. -The writ of attachment acts like an arrest warrant in that it gives a law enforcement officer the right to seize the person by force and deliver the person to the court to testify. -The party requesting the writ of attachment must file an affidavit that the subpoenaed person who has failed to appear in court is a material witness. -The judge must then conduct a hearing to determine whether issuing the writ is the best interest of justice and whether the requesting party has demonstrated the -W's testimony is material. -Writs of attachment are also warranted in instances where the attorney believes the W is about to leave the county, for Ws who are inmates in a correctional facility, or for subpoenaed GJ Ws who refuse to appear. *2) If a W refuses to obey a subpoena, the judge may fine the W up to $500 for felony cases and up to $100 for misdemeanor cases*. -That fine may be waived if the W testifies or is able to show cause, which means to explain his actions to the court and demonstrate why he should not be fined -The judge has the discretion to waive the fine

If the D does make a timely request of the intent of P to use bad acts evidence, the State must provide reasonable notice. How specific does notice need to be?

There's no set time frame, but courts have held that the day of trial is too late. Needs some notice in advance; doesn't have to be in writing. Not enough for P just to maintain "open file" to satisfy this requirement because the D needs to know the specific acts that the P intends to use against their client.

Discovery Orders Once all items on the list are resolved, the judge will rule on the motion for discovery and sign the attached discovery order.

These two acts turn the motion for discovery into a mandatory and enforceable discovery order. A motion ASKS the judge to do something. A judicial order, on the other hand, ORDERS the parties to do what the judge commands. Compliance means turning over, revealing, making available, or disclosing the listed items on the order to D counsel. Not only must the P disclose the items on the list, but so too must the P ensure all agents of the State comply with the order (e.g. the police must permit D counsel the opportunity to inspect physical evidence being held in the evidence room, the breathalyzer operator must provide records of the machine used, etc.)

How do SOLs interplay with D's constitutional right to a speedy trial?

They are two distinct protections for the D. STATUTE OF LIMITATIONS -The SOL protects the D from being charged too long after an alleged crime has occurred. Don't want it hanging over D's head forever, and evidence degrades, memories fade; hard for D to mount a defense. RIGHT TO A SPEEDY TRIAL Speedy trial right doesn't attach until the charge occurs. -EX: until indictment is filed. -At that point the clock starts ticking for the speedy trial right. -There are statutory requirements in Texas for the P to announce ready, but constitutionally, the court looks to the length of the delay, the reason for the delay, and the prejudice to the D are all considered. -Speedy trial right only applies between the charge and the trial. Does not apply to delays between convictions and sentencing; nor delays between sentencing and appeal. So they are two completely different time frames: SOL starts running as soon as events are complete; speedy trial doesn't start running until D is charged.

Questioning Suspects and Defendants It is another matter altogether when the GJ subpoenas the D or the S to testify. The D does not have a right to appear before the GJ. He also does not have the right to cross examine the Ws who testify against him. However, if the GJ subpoenas him, pursuant to their investigatory authority, he must appear.

This is different from a criminal trial, where the Ds cannot be compelled to testify; a D can be compelled to testify before a GJ. He must be given adequate time to hire a lawyer or apply to have counsel appointed to represent him. He must be given sufficient time to talk to his attorney before questioning begins; counsel may remain outside the GJ room to advise the D but may not be in the room during questioning, unless the prosecutor approves.

Post-Acquittal Commitment

Those found dangerous by a judge are committed to a maximum-security unit for a short evaluation and treatment. A forensic psychologist or psychiatrist will evaluate the acquittee's mental state, assess whether the mental state causes the person to be a danger to self or others, and determine the least restrictive environment for the recommended mental health treatment, if any. All of these findings and recommendations will be included in the mental health professional's report, which is given to the judge. The judge will then hold a hearing to determine whether to exercise supervision over the acquittee and, if so, whether to order inpatient or outpatient treatment. Acquitted may continue to receive treatment or remain in the care of others for years, if not decades. That the mental condition is stabilized is not necessarily enough to terminate supervision. The trial court's jx is terminated when the person's cumulative time in jail, inpatient care, and outpatient treatment equals the maximum hypothetical prison sentence the acquittee could have received for the charged crime.

The examining trial's PC requisite is mandated by the TXL. The initial PC finding, made by a magistrate following arrest, is required by the 4th amendment to the USC.

Together, these two findings (and additional PC findings made by the officer at the scene, the magistrate who signs an arrest or search warrant, and the prosecutor screening the case) serve as checks and balances on the decision to charge the D with a crime and restrain that D's liberty.

Amount can be revisited throughout case depending on circumstances Amount of bail:

Typically dictated by county's bail schedule that lays out different factors depending on offense, how many times, what prior convictions, etc. This is one of the things reform focuses on.

39.14 Disco Partially discoverable evidence -

Typically documents. Part might be material, the other part privileged. State only has to provide the relevant unprivileged part. State does need to the let the D know, and if the D requests to see more, the court would conduct a hearing in order to determine whether the redacted/withheld is not relevant/covered by privilege If it doesn't fall into one of those two categories, the Court might order the State to reveal the remainder of the document.

State can attempt to rehabilitate the D's competence.

Typically just medication EX: D is schizophrenic, the D will take medication while in an institution in an effort to gain competency. USSCt held: the states are empowered to force D to take medication to restore competency. 60 days for a misdemeanor and 120 days for a felony.

Bail Considerations What does a court consider in setting bail? When are these determinations made?

Typically shortly after D is arrested when PC is determined at the 15.17 hearing/preliminary hearing.

Cell Phones Unique because we carry them with us everywhere, and they contain a huge amount of information. Issue: when a S is arrested, they are allowed to be searched (SITLA), cops would like to search cellphone pursuant to arrest, as part of SITLA. Is that okay?

US SCt: Riley v. CA (2014) - HELD: No, police can't search phones as SITLA. Need PC and a warrant/exception. Absent Exigent circumstances can't search phone.

The Right to Waive Counsel (proceed pro se)

USSCt in Foretta: the flipside of the right to counsel is the right to refuse counsel. It is a limited right, often revoked by the court.

The Morton Act, codified within 39.14, is the result of a compromise between the D bar, who wanted discovery with greater access and more ease, and P's offices who wanted to guard sensitive info.

Ultimately, it grants Ps limited rights to shield sensitive info from disclosure, it places a hedge around what the D can see in the State's file, it places the responsibility on D counsel to shield the D from viewing that info, and it asks the judge to referee discovery disagreements.

Privileged Evidence

Under federal law, there are very few privileges; TX actually provides more privileges. EX: Confidential Informant's Privilege

Witness Statements When it comes to accessing a written or recorded witness statement, there is a conflict between the Rules of Evidence and the Morton Act.

Under the Rules of Evidence, some evidence is discoverable only at trial, not before. TRE 615(a) permits opposing counsel discovery of W statements after the W testifies on direct examination but before cross begins. 615 allows opposing counsel the opportunity to better cross examine and impeach a witness whose testimony may have changed over time. 615 applies to either party, not just the defense.

Appealing a Plea Why is it hard to appeal from a guilty plea?

VERY difficult to appeal. The whole idea behind the plea bargain is to end the case once and for all. State doesn't want you to end case for trial, but then appeal. In order for plea bargains to make sense, it needs to wrap it up. D is getting a deal, so has to give up appeal in most cases.

Constitutional Issues with Pleas the biggest issue with pleas?

Voluntariness Issues - Knowing and Intelligent - USSCT requires this. -The D's plea of guilty will not be voluntary unless he knows all of the elements. EX: D thinks he is pleading to recklessness, but is actually pleading to premeditated intent. This is unconstitutional Other considerations: -Benefit of the Bargain -Even if the P agrees to recommend a sentence, the judge does NOT have to go along with it. -If the judge rejects, the D can withdraw his plea. -P should be instruments of justice, so shouldn't be trying to get the harshest sentence possible.

Consent does not have to be verbal.

Waiving officers into your house can be consent

1) Officers are required to execute warrants without delay* after they are signed by the magistrate.

Warrant has 3 day lifespan, not including day of it's issuance or day of execution. Practically, that gives officer 5 days. If they execute afterwards, risk it being unreasonable and suppressed. Strict time line is included because magistrate is required to determine there is PC to believe that it is now probable that contraband will be on the described premises when the warrant is executed. Time is a factor in PC determination that evidence will be in area described. Occasionally magistrates will order officers to execute in a shorter time frame. Sometimes a longer time frame (EX: wire taps, etc.)

Particularity Requirement for a search warrant

Warrant has to be particular Address should be listed; If not known, as long as it is described with "reasonable particularity" so that an objective officer not associated with that investigation could find it. Don't want the wrong place searched, don't want the wrong stuff taken Designed to cabin in the police; limit arbitrary police power

Assembling the Grand Jury

When 16 grand jurors, 12 members and 4 alternates, have been qualified, the judge will impanel the GJ. Once the GJ is impaneled, the judge must instruct the grand jurors about their duties and administer an oath asking them to promise to be diligent, keep the proceedings secret, and act honorably and without malice as they carry out their duties.

Release Due to Delay What happens if a D is arrested without a warrant and a magistrate doesn't make a PC determination? (If the 15.17 hearing doesn't occur on time)

When a D has been arrested without a warrant, the magistrate must determine whether there was PC to arrest the D. That determination *must be made within 24 hours for misdemeanor Ds and 48 hours for felony Ds.* If the M has not made a PC finding in that time, the D must be given no more than a $5k bond in a misdemeanor and no more than a $10k bond in a felony case. If the D is unable to make that bond, the statute requires he be released on a personal bond. This is supposed to incentivize state to get D before magistrate quickly. The State may seek an extension for 72 hours if it can state why the M has not been able to make the PC determination. What happens when, for whatever reason, the State is not ready for trial, and the D sits in jail unable to make bail? Next case.

Filing Notice of Insanity and Appointing Experts

When a D plans on raising the issue of insanity, he must file a notice of intent to raise the insanity defense at the pretrial hearing or *at least 20 days before trial*; this notice must be served on the State. Once filed, the court may on any party's motion or sua sponte appoint one ore more disinterested experts to examine the D and testify as to the D's insanity at any trial or hearing that involves the issue. These experts are psychologists or psychiatrists and must meet certain qualifications to be appointed by the court as an expert on insanity.

EVIDENCE SUPPRESSION

When evidence of a crime or a person - through detention or arrest - is seized, the D may challenge the lawfulness of that seizure. If the seizure is unlawful, evidence obtained through that seizure may be suppressed (kept out) at trial. When a court suppresses evidence the State needs to prove the crime, the prosecutor may be forced to dismiss the case. Ds frequently file motions to suppress evidence.

Judicial Review of Search Warrants TOTC and 4 Corners Rule When a D raises a challenge to the search warrant, the reviewing court looks at the TOTC. This test has its limitations:

Whether the facts in the affidavit are adequate to establish PC depends on the TOTC. And, they establish PC when the TOTC justified a conclusion that the object of the search is probably on the premises. *Yet, one cannot forget that the TOTC to which we allude must appear in the affidavit.* This is so because the four corners of the affidavit comprise the field upon which we work. *Thus, while a reviewing court looks at the TOTC to assess PC, it is limited to the facts alleged in the four corners of the search warrant affidavit.*

What does it mean to take someone into custody? Sometimes what feels like an arrest to a citizen seems like a detention to an officer. Texas courts consider several factors (TOTC) in determining whether someone was arrested or merely detained:

Whether the officer actually conducted an investigation Whether the accused was handcuffed, detained at gunpoint, or transported to another location Whether the number of police officers far outnumbered the citizens at the scene Whether the officers used threatening language Whether the officers prevented the accused' vehicle from leaving the scene Whether the officers used physical force against the accused; and Whether the accused was detained for a long period of time. Yes to all but the first factor in the list may lead to a conclusion the encounter was an arrest, whereas more no answers may lead to a conclusion it was just a detention.

Cell Phone Search Warrants Most people have an expectation of privacy in cellphone data. Both federal and TX courts have recognized the wealth of info stored and the REP owners have in phones. TXCCA rejected the argument that phone is a like a pair of pants or bag of groceries for which a person loses all privacy protection once it is checked into jail property room.

While officers are free to examine outside of a phone, they are not free to examine the data held within the device without a warrant.

Continuances Based on Witness Unavailability

While the above requirements apply to any reason for a continuance, the Code specifically addresses a W who is unavailable on the court date. The requirements as to what must be satisfied in order to get a continuance based on the W's unavailability depend on whether the prosecution or the D is requesting the continuance

Work Product

Work product is NOT discoverable. The Code describes work product as "written communications between the state and an agent, representative, or employee of the state" and the State's investigators' reports or notes. Generally speaking, it is communications, thoughts, and impressions generated by the P or its agents in preparation for trial. Work product also includes communications between parties and experts and the work produced in preparation of litigation by experts. It is NOT evidence that will be admitted at trial, nor is it underlying discoverable factual info about the case.

Competency Question At your initial meeting, you begin to doubt that your client is mentally competent to stand trial. He seems confused about who you are and why he is in jail. Is there a presumption of competency? What must be proven in order to rebut any presumption that exists? Who has the BOP and what is it?

YES. D is presumed competent for trial. The D bears the burden to prove, by a POE that he is not competent at the time to trial. To do so he must show that he lacks sufficient present ability to consult with his attorney with a reasonable degree of rational understanding or lacks a rational and factual understanding of the proceedings against him. Cannot be criminally tried; but might be civilly committed if danger to himself or others

Threats of More serious charges by P if D rejects plea. Constitutional?

YES. USSCt has rejected challenges to this. It's the biggest arrow in P's quiver is the ability to upcharge.

May appointed counsel withdraw?

Yes. Have to inform D of 1) their right to a new trial. 2) their right to an appeal 3) if new counsel isn't appointed promptly you have to help them file a timely notice of appeal So you are able to withdraw, but basically you have to stick it out until new counsel takes your place. If it so happens that an appeal is pending, you have to file that appeal until the judge grants your withdrawal and appoints new counsel.

EX: Suppose you are a P, and you have a case set for trial against the D for unlawfully carrying a weapon. You read the police report in preparation of trial and discover the D, a person with a concealed weapons permit, carried it on the premises of a hospital in violation of the law. In the report, you learn that a concerned patient at the hospital notified two nurses that the D had a gun. The nurses confirmed that D had a gun. The nurses told a police officer working security who arrested the D. The officer seized the gun as evidence and checked it into the evidence room at the police dept. Whom and what should you subpoena for trial?

You would need to subpoena any eyewitnesses and the arresting officer. You would also need to serve a subpoena duces tecum on either the arresting officer or the police dept custodian of evidence, who has maintained the chain of custody of the gun since the arresting officer submitted it to the evidence room. One of these people would need to bring it to court.

Indigency and Bail Indigency is the standard by which we determine if

a D is entitled to appointed counsel.

A Terry FRISK requires RS that a S is armed and dangerous. If police can articulate

a RS that a suspect is armed and dangerous, they can do a Terry frisk Purpose: to find weapons. CANNOT frisk based on RS the S has contraband. ONLY WEAPONS.

The D counsel and expert may not remove tangible evidence from the State's possession, and must have

a State representative present.

D counsel cannot reveal disco info to a 3P unless

a court orders it upon a showing of good cause, OR evidence has already been publicly disclosed.

Prosecutors, on the other hand, must check every charging instrument well in advance of trial to ensure it is error free. Failing to do so could result in

a delay of the trial at best, or a directed verdict or acquittal at worst

If the State fails to prove the prima facie case of the allegations of the essential elements at trial, the D is entitled to

a directed verdict. If the State fails to make a prima facie case at trial, the D can get a directed verdict.

Unlike depositions in civil practice, if the application is granted, the attorney who requests the deposition does not take the deposition. Instead, the trial court appoints one of the following persons to depose the W or V:

a district court judge, a county court judge, a notary public, a district clerk, or a county clerk. The idea is that they are preserving this testimony for trial, but it is not the same type as adversarial process in someone's office as in a civil trial

A no bill does not necessarily connote

a lack of PC. Doesn't mean that the D won't face charges. Prosecutors and GJs sometimes determine that in the interest of justice, even though PC may exist to charge the D with a criminal offense, it is not just to do so.

Charging document -

a legal document used to accuse the D of violating a criminal law Provides notice fo the D's alleged crime Includes: indictments (felonies), information (jailable misdemeanors), complaints (non-jailable misdemeanors).

D attorneys can present evidence in the form of

a packet of information. Risky to do that, because it is showing your hand to the prosecution. Because PC is such a low bar, unlikely to succeed regardless.

Terry frisk allows for

a patdown of the S's outer clothing. Reaching into pockets of the S. If the officer feels something they can reasonably identify as a weapon, they can seize that weapon.

Police-Civilian Encounters Arrest takes place "when

a person has been actually placed under restraint or taken into custody by an officer or person executing a warrant of arrest, or by an officer or person arresting without a warrant." Arrest is a seizure of a person. But not all seizures or encounters with police are arrests.

"A detention is either good or bad at the moment it starts." A detention, as opposed to an arrest, may be justified on less than probable cause if

a person is reasonably suspected of criminal activity based on specific, articulable facts." *As long as cops have RS, they can stop car.*

Prosecutor must prove venue by

a preponderance of the evidence. Venue does not have to be proved BRD, as it is not an element of any crime. The prosecutor can prove venue through direct or circumstantial evidence. It is presumed on appeal that venue was proved in the trial court, unless the record affirmatively shows otherwise, or venue becomes at issue at trial. Most of the time, determining where the crime occurred is easy. However, there are exceptions.

Consent may be ineffective if induced by

a show of force by police or other coercive surroundings at the time the consent is given.

Recusal has been required, however, when

a trial judge revoked a defendant's bond and put him in jail solely because he decided to invoke his right to a jury trial, or when a trial judge arbitrarily, without any evidence before him, refused to consider a portion of the range of punishment. Recusal of the trial judge in a criminal trial was also proper under the reasonable-person standard where the trial judge's remarks evidenced "a degree of anger and hostility toward the government that is in excess of any provocation that we can find in the record," or a personal prejudice against the defendant for successfully appealing his conviction on the basis of the judge's actions during a prior trial.

Terry Frisks A Terry frisk is a search, but it doesn't require

a warrant or even PC. There's nothing in the USC, TXC or the TX Code that authorizes these searches. But the TX Courts courts have interpreted this the same way as the federal courts.

Only statements or admissions made by a D who appears voluntarily during GJ questioning are

admissible at trial. If a D's statement if involuntary (coerced) then it may not be used against him at trial. But if a D is voluntarily providing information at GJ, that can be used against him at trial. Unless P allows it, the D counsel cannot appear at the GJ hearing.

The only proper role of the trial court in the plea-bargain process is

advising the defendant whether it will follow or reject the bargain between the State and the defendant. Tex. Code Crim. Proc. Ann. art. 26.13(a)(2).

Failing to identify yourself to a police officer that has lawfully detained you is

against the law

Before accepting a plea of guilty or no contest, each party shall acknowledge in writing OR on the record in open court the disclosure receipt, and a list of

all evidence that was provided to the D. Unique requirement in TX. Has to list out all the evidence provided before the court accepts a plea of guilty or nolo contendere.

2 YEARS -

all misdemeanors.

Brady only applies to FEMI evidence. Article 39.14 applies to Brady evidence as well as

all other discoverable and non-discoverable evidence.

3 YEARS -

all other felonies

If the trial court rejects the plea-bargain agreement, the defendant is, as a matter of right,

allowed to withdraw his guilty plea, and the State may then withdraw its offer.

Because a plea-bargain agreement is solely between the State and the defendant, only the State and the defendant may

alter the terms of the agreement; the trial court commits error if it unilaterally adds un-negotiated terms to a plea-bargain agreement

Warrant itself -

amounts to PC to believe that the accused committed the crime. Judge must ensure there is PC for arrest. If it is not clear from the face of the complaint that a crime has been committed and the officer has PC to believe the suspect committed the crime, the judge will refuse to sign the warrant, thus denying the officer an opportunity to arrest the suspect. Texas Court of Criminal Appeals (TCCA) comments on magistrate's role in reviewing complaints: Neither federal nor TX law defines precisely what degree of probability suffices to establish PC, but a magistrate's action cannot be a mere ratification of the bare conclusions of others. Should not be a rubber stamp. Typically, an officer or prosecutor drafts the arrest warrant before it is taken to the judge to be signed.

If D counsel wants the jury to not consider the evidence, she must request

an Art. 38.23 jury instruction informing the jury that it has this option. "The jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then ... the jury shall disregard any such evidence." In order to get the instruction, the evidence must raise an issue of fact (not merely law) suggesting that the evidence was obtained unlawfully. Further, the facts must be disputed by the State, and the contested factual issue must be relevant to the alleged unlawfulness of the obtained evidence.

When trial fairness is compromised, the law permits the judge to change the trial venue. The judge has the authority to move the trial to

an adjoining county when she perceives that either party cannot receive a fair trial. The judge may hear evidence on a matter and may even more the trial to a nonadjacent county after giving the parties a hearing and 10 days' notice. The judge may also consider the convenience of the parties and justice concerns either party has

There is NO STILA for

citations. Police do actually have to arrest S to do a SITLA. Can't give a ticket, search, then arrest.

A trial judge should not participate in any plea bargain agreement discussions until

an agreement has been reached between the P and the D. Judge should always avoid the appearance of any judicial coercion or prejudgment of the D since such influence might affect the voluntariness of the D's plea Unfortunately, some judges improperly insert themselves or their opinions into the plea process or into the punishment decision before the time for the judge's punishment assessment is appropriate. This may happen when a judge wants to move a case forward or seeks to convince the D that his punishment opinion is more favorable than the State's or jury's likely will be.

Amendment -

an alteration to the face of the charging instrument which affects the substance of the charging instrument EX: alteration of a cause number; alteration of weapon in aggravated assault; addition of the manner and means of committing an offense; alleged date Amendments are alterations to the indictment that affect what the State must prove at trial - a date, element, charged manner and means, etc.

The question of parole eligibility, however, elicits a straightforward answer because

an applicant's parole eligibility is determined by the law in effect on the date of the offense.

The State may attempt to prevent discovery of privileged info. If this action is challenged by D counsel, the TCt determines whether the evidence is truly privileged through

an in camera hearing. -EX: crime stopper tipster, identity of CI, TRE designations of privilege.

Constitutionally, DCts have jx over a felony when

an indictment charging a person with an offense is signed by the grand jury foreman and presented to the DCt. All that is required to satisfy the TXC is that an indictment charge the commission of an offense, regardless if the indictment fails to allege one element of an offense The offense charged must be one for which the TCt has SMJ.

Appeals by the prosecution involve

an interlocutory appeal (An appeal before the case is final; a provisional appeal taken between the beginning and ending of a legal action) The Code permits the State the right to appeal when the trial court grants a MTS evidence, and jeopardy has not yet attached. The State does not have to go forward with the trial but may immediately appeal the TCt's decision.

Likewise, the use of handcuffs does not automatically convert

an investigative detention into an arrest; and there is no bright line rule that handcuffing a suspect always constitutes an arrest; Ordinarily handcuffing a suspect is more consistent with a full-blown arrest than it is with an investigatory detention; however, an officer may resort to handcuffs without transforming an investigative detention into an arrest when he or she is reasonably concerned for their safety or to maintain the status quo.

Municipal Courts - JX

city courts have jx over Class C misdemeanors. Have jx over city law enforcement agency (HPD)

Continuances After Trial Has Begun More difficult to get. A party must demonstrate to the satisfaction of the judge that

an unexpected occurrence arose after the trial began that no reasonable diligence could have uncovered and that it has taken the party by such surprise that a fair trial is impossible. This continuance would be available in only the most extreme cases, for example where exculpatory evidence was disclosed after trial began or where one of the lawyers has become gravely ill or died during trial.

Reasonable suspicion -

analyzed objectively by considering the TOTC.

Summons -

another way to get a suspect to court. Magistrate's order to appear. Equivalent of subpoena in a civil case. EX: traffic ticket May be issued in any case where a warrant may be issued, and shall be in the same form as the warrant except that it shall summon the defendant to appear before a magistrate at a stated time and place. Shall be served upon a D by delivering a copy to him personally, or by leaving it at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by mailing it to the D's last known address. If a D fails to appear in response to the summons a warrant will be issued. EX: traffic ticket is a summons: requests a suspect to appear in court; if the person fails to appear, an arrest warrant will issue

Aside from expert Ws, the State has no right to discover the D's evidence or W list. Thus, the State cannot

anticipate who it will call as a rebuttal witness until after the D has rested. For this reason, courts typically exclude rebuttal Ws from those that are required to be named in the State's W list. Absent a showing of bad faith by the State, bringing a witness for the sole purpose of rebutting unforeseen testimony is proper. EX: Until Appellant testified to facts that were diametrically opposed to the State's understanding of the events, it was not reasonable for the State to anticipate needing the nurse's testimony. It would be impractical for the State to anticipate all scenarios that a defendant might claim and for the State to designate possible rebuttal witnesses for each of them As P, the safer and better practice is to inform the D, upon request, about any Ws you expect to call, regardless of when you expect to call them. In rebuttal, that isn't always possible.

venue Conspiracy -

any county in which the agreement was made, or where any county where a conspirator commits an act in furtherance of the conspiracy

The general venue rule is venue is appropriate in a county where

any element of the crime was committed. EX: D kidnapped his ex from Uvalde County, drove her through Zavala County, and hid her in his home in Maverick County before police arrested him. The crime of kidnapping requires the State to prove the D intentionally or knowingly abducted another person. Since his abduction began when he kidnapped her and continued until his arrest, his trial could take place in any of the 3 counties where one element of the kidnapping occurred. There is also a specific kidnapping venue statute that says a D can be prosecuted in the count where the kidnapping began on in the county or counties where the victim was taken during the kidnapping. Many of the crime-specific statutes apply in the same way that the general venue rule applies: venue is appropriate where any element of the crime took place.

Defense Discovery Obligations Ds are entitled to discovery more with greater ease under the Morton Act, which has been a concern to some groups. Concerned victim rights and law enforcement groups lobbied and receive provisions that place safekeeping burdens on the D team and permit Ps to redact sensitive info before disclosing it to the D team. The D team includes the D counsel, investigator, experts, or any other agent working for the D. None of these people have authority to disclose

any evidence to 3Ps unless the evidence has already been made public, the D team shows good cause, and the court orders the disclosure after a hearing and giving notice. The court must balance the security and privacy interest of the V or the Ws with the desire for 3P disclosure. The D team may permit the D, W, or prospective W an opportunity to view info and evidence, but it must redact the address, phone number, DOB, and identifying numbers (SSN) and bank account info. This requirement protects the Ws or the V from abuse of this info. Further, the D team cannot provide a copy of any documents to the D or the W unless it is a statement the viewing person made. Ps may redact or withhold non discoverable info.

At examining trials, The accused must also offer his testimony before

any other W testifies

venue Computer Crimes -

any place of business where the computer's owner is located. Anywhere the computer system or network is located. Any county where the D has control of the proceeds of the crime. Any county to which or through which (1) the county of the principal place of business of the owner or lessee of a computer, computer network, or computer system involved in the offense; (2) any county in which a defendant had control or possession of: (A) any proceeds of the offense; or (B) any books, records, documents, property, negotiable instruments, computer programs, or other material used in furtherance of the offense; (3) any county from which, to which, or through which access to a computer, computer network, computer program, or computer system was made in violation of Chapter 33, whether by wires, electromagnetic waves, microwaves, or any other means of communication; or (4) any county in which an individual who is a victim of the offense resides.

There is nothing in the language of the predecessor statute that suggests that the voluntariness of a plea was exempt from the limitation on appeal. Indeed,

any such exception to the operation of the proviso would have completely frustrated the legislative purpose to eliminate meritless appeals. The only limitation on the ability of an appellant to allege that the plea was involuntary is the limit of the human imagination, which is exactly the evil that the legislation sought to eliminate.

BOP on State to prove consent to a search by

clear and convincing evidence

3P doctrine -

anything you hold out to the public. If S tells friend something, S doesn't have REP in that info. Friend is a 3P. No search took place by the govt. Expanded to include info revealed to 3P that you might not even realize. Phone company knows all the numbers you have dialed. Bank records, no REP. Revealed to bank, they have access to that info. This doctrine is continually under attack these days. So much of what we do now involves 3P servers. Facebook chats, texts, etc. Location info on phones.

D does NOT have a right to

appear before the GJ. D doesn't even have a right to know that he is the subject of GJ investigation Can ask to appear, but no obligation of P to allow it

If the D has a valid excuse for not appearing (sickness, emergency, etc.) he must

appear before the judge and explain.

The bargain is the consideration exchanged to the defendant for the plea of guilty. In order for the contract to be binding, the trial judge must

approve and accept both aspects of it.

Open fields -

areas that law outside the curtilage (immediate vicinity of one's home) are also areas with no REP. Need not be "open" or a "field"; could be a thickly wooded area. EX: no REP in a big garden of marijuana 25 feet from house visible from the street There was a period in time in TX where there wasn't an open fields doctrine. Abandoned this view Today, open fields doctrine is alive and well in TX. But still, it is possible to find more protection in TX.

Motions to quash should be used to attack errors within the indictment, not to

argue the merits.

Aerial searches -

as long as the plane is in navigable airspace (not below legal level), then this did not constitute a search. You don't have a REP in what can be seen from an airplane. But today, what about drones? SCt has not yet addressed issue of drones. But one would think it would qualify as a search and would require a warrant

Parole attainment is indeed highly speculative, due to various factors

associated with circumstances surrounding an individual prisoner's parole application, such as the prisoner's behavior in prison, the composition and attitude of the parole board, the identity and attitude of the governor, the population of the prison system, and regulations governing good time.

Probable cause for a search warrant exists if, under the totality of the circumstances presented to the magistrate, there is

at least a "fair probability" or "substantial chance" that contraband or evidence of a crime will be found at the specified location.

The essential elements of the crime are the elements of the offense as defined in the hypothetically correct jury charge for the case. The hypothetically correct jury charge is one that

at least accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's BOP or unnecessarily restrict the State's theories of liability and adequately describes the particular offense for which the D was tried. The law is "authorized by the indictment" is "the statutory elements of the offense as modified by the charging instrument"; but the hypothetically correct jury charge does not necessarily have to track exactly all of the charging instrument's allegations.

Once a person is deemed incompetent to stand trial, the State may

attempt to restore the person's competency; the State may commit the D to the State mental hospital or similar facility for 60 days in misdemeanor cases or 120 days in felony cases. Alternatively, the State may choose to dismiss the case. Competency restoration is often accomplished through therapy and medication, and in many cases, an indigent D remains incarcerated in the local jail until a bed at one of the State hospitals becomes available. Ds may remain on bond or receive a bond while they are awaiting restoration. In many cases, one restoration period and the treatment the D receives during that period is enough to restore competency. The D will return to court, and if deemed competent, the proceedings against the D will resume. However, mental health professionals may need more time. It is permissible for the TCt to order subsequent competency commitments.

However, some Ds intentionally or knowingly fail to appear and may be charged with additional crime of

bail jumping. A warrant will issue for the new crime, the bond for the first crime will be forfeited, and the judge has the authority to require a cash bond for any subsequent bail.

A secondary purpose of examining trials is to determine

bail. The presiding magistrate or judge will set or adjust bail if the offense is bailable.

When the State and the D attorney negotiate a plea bargain and the D accepts it, the parties will

begin filling out plea papers. These papers are examined by the judge before she takes the plea. Most of the time, the judge approves the negotiated plea, asks the D to enter his plea in open court, and sentences the D according to the agreement between the State and the D.

The grand jury's historic functions survive to this day. Its responsibilities continue to include

both the determination whether there is probable cause to believe a crime has been committed and the protection of citizens against unfounded criminal prosecutions.

Experience has shown us that most cases of involuntary pleas result from

circumstances that existed outside the record, such as misunderstandings, erroneous information, impaired judgment, ineffective assistance of counsel, and plea-bargains that were not followed or turn out to be impossible of performance. The legislature reasonably determined to eliminate a small number of meritorious appeals to prevent a much larger number of meritless appeals.

The four corners rule prohibits either party from

bringing forth extraneous info for the judge to consider when it is not contained within the search warrant affidavit. EX: an officer may testify that he knew a fact that would establish PC, but due to an oversight, forgot to include it in the search warrant affidavit. If this fact does not appear in the four corners of the affidavit, the judge cannot consider it. The four corners rule also requires that PC be set out clearly within the affidavit. The rule prohibits magistrates from basing a PC on the affiant's conclusory statements. -And while it allows magistrates to draw reasonable inferences from the info contained within the affidavit, it forbids PC to be based upon too many inferences -Officers and prosecutors must ensure that magistrates are not having to read between the lines to determine PC. Must be laid out plainly.

TXC creates a right to bail in all cases, except in

capital cases where proof is evident. TXC DOES provide a right to bail.

Consent Many legal rights, including 4th amendment rights, can be waived when the accused gives officers his consent. Consent waives the right to have a search warrant issue upon PC, and it may waive the ability to ...

challenge the search at trial or on appeal. Officers frequently obtain consent from suspects to search a car, house, or personal belongings.

Parties can and sometimes do agree to

change the trial venue

Where there is a crime, it is "against the peace and dignity of the State." It is the State's duty, through the prosecutor, to

charge and prosecute crimes, and the State's responsibility to dismiss them.

You can have indictments for misdemeanors. GJ is not just a prosecutorial arm of the state, but are a separate arm. If the GJ determines that another offense, other than a felony, occurred, they can

charge that offense. Thus, you can get a misdemeanor indictment from a GJ

Charging Document Class A & B misdemeanors -

charged with an "information" - filled out by a prosecutor. Needs to be supported by an affidavit. Often the same document. - the facts that give rise to the charge. No information shall be presented until an affidavit made by a credible person charging someone with an offense. Need a valid affidavit before creating an information Person creating affidavit does NOT have to have personal knowledge Often a police officer swearing under oath with penalty of perjury.

Complaint -

charging instrument used in Class C (non-jailable) misdemeanor offenses.

Information -

charging instrument used in jailable misdemeanor cases and unindicted felony cases.

Indictments -

charging instruments most often used in felony cases

The Code permits the State to request a change of venue where (2)

circumstances exist that favor the accused or where someone's safety or life may be in danger if the trial is not moved. However, it is usually the D that requests.

The burden of proof is upon the State to show by ______ that the consent was freely and voluntarily given.

clear and convincing evidence ***DIFFERENCE WITH FEDERAL RULES*** Under federal rules, have to show the voluntariness of consent by a preponderance; TX rules requires clear and convincing evidence. The consent must be positive and unequivocal, and police must not have employed duress or coercion, actual or implied, in obtaining permission to search.

For consent to be deemed voluntary, it must not be

coerced by threat, force, or duress.

If immunity is sought by the prosecutor and granted by the presiding judge, the witness can then be

compelled to answer, on pain of contempt, even though the testimony would implicate the witness in criminal activity Immunity is the Government's ultimate tool for securing testimony that otherwise would be protected; unless immunity is conferred, however, testimony may be suppressed, along with its fruits, if it is compelled over an appropriate claim of privilege. On the other hand, when granted immunity, a witness once again owes the obligation imposed upon all citizens -- the duty to give testimony -- since immunity substitutes for the privilege.

Preservation of error is a systemic requirement of every appeal. Tex. R. App. P. 33.1 controls the issue of preservation of error for most trial errors. The general rule provides that

complaints must be made in the trial court by a timely request, objection, or motion. Rationale of Rule 33.1 is that, if objections are raised before trial court in a timely manner, those issues may be addressed, and possible corrected, at trial.

To protect against motions to quash, most agencies in TX have

computer databases with charges that include all statutory requirements. The P uses the database as a starting point, adding language to include the manner and means to fashion the charging instrument. Most charging instruments meet the statutory requirements However, no person, govt agency, or computer produces error-free charging instrument every time.

If D is convicted on all counts, then the sentences run

concurrently if they come out of the same trial.

If a D violates a bond condition, the judge must

conduct a hearing, listen to evidence, and if she finds by a POE that the D violated the condition, she may revoke the D's bond, immediately return the D to jail and set a new bail with new or additional conditions.

The grand jury occupies a similarly high place of importance in the Texas system of justice as it does in the federal system as stated by the Supreme Court of the United States. Indeed, each of the pronouncements by the United States Supreme Court are as true of the Texas grand juries as they are of federal grand juries. The integrity and independence of our grand jury system must be protected from unwarranted intrusion by the prosecutor. Under Texas law, the grand jury has the authority to

conduct their own investigations, to subpoena evidence and witnesses, to fail to return indictments sought by the district attorney, and to indict on matters as to which the district attorney has presented no evidence and sought no indictment. They summon witnesses and the like and determine for themselves whether there are sufficient facts to justify an indictment. The grand jury is an independent body.

If the D is charged separately, and has 5 separate trials, then the D would be able to be sentenced

consecutively (doesn't have to be, but can be). EX: 10, 20, 30 years for different crimes, can add up to 60. Choice P has to make; how much time do they want to spend on this one D. Efficiency and greater likelihood of conviction: one trial preferred.

Others with common authority over property can

consent. EX: suspect's spouse However, Child's consent for search/seizure, is insufficient. 3P may consent if the person has actual authority over the property searched.

Nearly all criminal cases start the same way. Initially, law enforcement officers interview people to discover whether a crime occurred. They ascertain whether enough evidence exists to prove each element of the crime. Once they have enough evidence, in some counties, officers may

contact the local county or district attorney's office to seek a formal charge, whereas in other counties, officers may initiate charges though a compliant filed with the magistrate.

Motion to quash is NOT about contesting evidence, it is

contesting the validity of the charging instrument.

Not only does the DCt who empanels the GJ play a role in its members' selection, but it also

continues to supervise the GJ it assembles and the grand jurors' investigations. the grand jury is very connected to the court which impaneled it. The court exercises supervisory power over the grand jury whether by impaneling, re-assembling, qualifying, quashing subpoenas, or aiding investigation. The grand jury "is more frequently characterized as 'an arm of the court by which it is appointed.'" rather than as an autonomous entity.

Even if the State discovers the W the night before the W's testimony, the State has a

continuing burden of disclosure after the trial judge grants the defendant's request for witnesses. Under this continuing burden, the State should notify opposing counsel immediately that an additional witness had surfaced who conceivably could be called to testify.

Plea bargains are an integral part of the criminal justice system. At its core, a plea bargain is a

contract between the State and the defendant. As a contract, once both parties have entered knowingly and voluntarily into a plea bargain, they are bound by the terms of that agreement once it is accepted by the judge. Plea agreements may contain a wide variety of stipulations and conditions that allow the State to tailor conditions in order to reach agreement with the defendant.

The State has the right to challenge the D's evidence used to support his motion. The state may submit

controverting affidavits from people with knowledge and credibility who dispute the D's allegations that he cannot receive a fair trial. Once the State offers controverting affidavits, the burden shifts back to the D to establish he cannot receive a fair trial. The court then must determine whether the affidavits are credible and rule on the motion.

The Gideon court concluded that the SARTC was applicable to the states via the 14th amendment. Thus, states and judges must ensure that when a D is arrested for committing a jailable offense, and she cannot afford to hire an attorney, ...

counsel must be appointed. The TxCCP provides that when an indigent D requests appointed counsel, the court shall appoint an attorney ASAP A court cannot force a lawyer on a D who wants to represent himself. Most judges will discourage Ds from going pro se since they rarely do well.

Subjective expectation of privacy -

courts typically find there is a lesser expectation of privacy when the place searched does not belong to the D, or the D was not in exclusive possession of the place. D's have a greater expectation of privacy in his own home or car than he does in someone else's home or car. But courts carefully examine each case's circumstances individual and sometimes find reasonable subjective expectations of privacy in another's place. Though this factor looks at the individual's expectation of privacy, it is examined from a reasonableness perspective by a trial judge or appellate court.

Any time the D spends in jail or in the State hospital awaiting competency restoration is

credited to her sentence; she cannot remain in custody regaining mental competency past the maximum sentence she could have received had she been convicted of the charged crime. In rare cases, a D never regains competency. In this instance, prosecutors may be forced to dismiss the D's case; if the P refuses to dismiss the case, the judge will continue to preside over the stayed charge and maintain jx over the D indefinitely.

The Right to Counsel Ds have a federal and state constitutional right to assistance of counsel at

critical stages of the criminal process Whether a particular stage is critical turns on an assessment of the usefulness of counsel to the accused at that time.

If a deposition is going to be used against a D in a criminal trial, and that W doesn't testify, the D counsel has to have had the prior opportunity and motive to

cross examine the W during the deposition. Otherwise it violates the Confrontation Clause. At some point, the D counsel has to have had the ability to confront the W in order for the deposition to get into evidence.

There's nothing that stops a P from getting a prosecutor an GJ indictment, which would

cut off examining trial.

A trial court may conditionally agree to follow a plea-bargain agreement, but only by

delaying the unconditional acceptance or rejection of the agreement until after the condition of acceptance has been fulfilled.

Only GJs can be in the room when the grand jurors

deliberates or votes.

Once a judge accepts the plea, he is bound by the terms of the agreement, and the D has the right to

demand specific performance.

If the D desires to discover GJ testimony or evidence before direct, he must

demonstrate a particularized need for it. Absent such a showing, he is not entitled to discover it. Furthermore, only on a showing of good cause can the court disclose the identifying info about a grand juror to a party in the proceeding It is very difficult to meet the "particularized need" or "good cause" requirements For example, where it was alleged that the prosecutor withheld evidence favorable to the accused from the GJ, or where a W gave conflicting testimony to the GJ and petit jury and the prosecutor refused to allow the D access to the prior inconsistent statement, TX appellate courts ruled that TCts did not abuse discretion in finding that the Ds failed to establish a particularized need.

In a hearing on a motion to suppress evidence, a defendant bears the initial burden of proof to

demonstrate that the search and seizure occurred without a warrant.

Brady was never meant to be a substitute for the discovery process or discovery orders and methods. Brady implicates constitutional due process and fair trial rights whereas Art. 39.14

describes what is discoverable and delineates the discovery process. The D cannot rely on the State's affirmative duty to comply with Brady alone in order to discovery all of the evidence in the State's possession.

EX: Vandalism scenario. Suppose witness to the vandalism saw two people run from the scene but could only offer a detailed description of the goateed suspect. Now imagine the conversation between the officer and the passerby concerning the where abouts of the goateed suspect. What if the passerby does not fit the description of the known suspect but appears to be concealing something from the officer's view? Imagine that just as the officer is aware the person is trying to hide something, he hears sounds consistent with a spray paint can, and aerosol "shh" and the internal metal rattling. At this point, based upon the officer's personal knowledge of the sound of spray paint cans, the fact the car was vandalized with spray paint, the fact that there are other suspects the witness could not describe, and the fact the crime occurred moments earlier nearby, the officer would be justified in

detaining the passerby for further investigation. He now possesses articulable facts to warrant a detention based on reasonable suspicion, but he does not yet have PC to arrest.

In TX, the D can plead guilty and still have a jury

determine punishment. Might be a case where the jury will be very sympathetic.

The Judge's Duties to the Crime Victim While D counsel is required to zealously represent the D, the P has an obligation to ensure that justice is done. The judge, as neutral overseer of the plea process, must ensure all parties, including the crime victims, are legally protected in the plea process. The judge is obligated to

determine whether the V impact statement was returned to the P and if so ask to see copy of it during he plea. The judge must also inquire as to whether the State has notified the V or the V's family about the terms of the plea.

The State has a continuing duty to

disclose requested evidence. In the context of extraneous offense evidence, the State has an obligation to correct any response to a discovery motion once it realizes the response was false, regardless of who made the error.

Witnesses and Experts The common law, not the Code, requires the State to

disclose the names of the Ws it intends to call. The Code speaks about the P's duty to list Ws who testified before the GJ on the D's indictment, but the Code is silent about the D's right to the State's trial witnesses. Nevertheless, discovery motions and orders routinely require the State to disclose trial Ws to D counsel. Appellate courts have consistently upheld this duty. In practice, Ps file a subpoena list in the clerk's file and direct the D attorney to examine it. The TXCCA deemed this practice sufficient.

The law _____ require the D to turn over any lay W lists.

does NOT

Storing your possessions on the person of another usually ...

does NOT give you standing to challenge the search or that other person -Don't have standing to complain about a search of someone else

Although intemperate remarks may well violate a rule of judicial conduct, such a violation ...

does not necessarily mean that the judge should be recused.

In search warrants where police seek to find contraband, stolen goods, weapons, or other non-mere evidence items, the general rule is

evidence not described in the warrant, but lawfully seized pursuant to the warrant, is admissible. EX: a search warrant may list a specific gun to be seized, but if officers find other guns at the place to be searched, they may lawfully seize them as well.

When a statutory term or element is defined by statute, the charging instrument

does not need to allege the definition of the term or element. Typically the definitions of terms and elements are regarded as evidentiary matters. The definitions of "intoxicated" describe two types of DWI offenses, a "loss of faculties" offense and a "per se offense." 1) Loss of faculties offense - may be established by proving the D operated a motor vehicle while not having the normal use of his mental or physical faculties, because of the introduction into his body of 1) alcohol, 2) a controlled substance, 3) a drug, or 4) a combination of those substances. Observed you don't have normal use of faculty 2) Per se offense - may be established by proving the D drove or operated a motor vehicle in a public place while having an alcohol concentration higher than the legal limit in his blood, breath, or urine. Gone thru a test

As part of the admonishments, the judge isn't bound to the plea deal, but on the flip side, if the judge

doesn't approve the deal, then the D must be given the chance to withdraw.

GJ investigation does NOT implicate

double jeopardy D can be indicted again for the same facts.

The Brady Court held that "suppression by the P of evidence favorable to an accused upon request violates

due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the P."

Plain touch -

during Terry frisk, only supposed to look for weapons; but if they can immediately identify as contraband, can seize. But must be immediately apparent. If they have to manipulate with fingers, that is an illegal search. Police officers get very good and testifying that they know what things feel like: bag of cocaine, etc.

PC must support every

element of the charged offense. Charges lacking PC must be declined.

Once a W is brought before the GJ pursuant to an investigation, if the jurors are uncertain as to who committed the crime or how it was committed, the W must be informed of the subject matter of the investigation and questioned. The GJ has the right to compel testimony for all questions except those that would

elicit self-incriminating answers.

There is a constitutional preference for searches to be conducted with warrants. Presumptive/y unreasonable to

engage in a search without a warrant, but there are a lot of exceptions that basically make it reasonable again even without the warrant. However, without a warrant, the BOP shifts to the state to prove the exception.

SUBPOENAS Once the judge and attorneys agree on a date for trial, Ws are subpoenaed to appear. Subpoenas serve the purpose of

ensuring that Ws will appear and the trial will take place on the chosen date.

Recall the rule that when a D accused of a felony offense waives her right to trial, she must be r

epresented by counsel. Moore was charged with a felony drug offense, His D counsel should have been by his side during the plea. Who should have objected to the Judge's inappropriate intrusion into the plea process? Ds do not know about the preservation of error rules.

The Disciplinary Board held recently that a P violated this ethics rule when he withheld conflicting statements that the V was unable to identify her attacker's face because it was the P's duty to disclose impeachment evidence; and the TCT's role to determine whether the info is admissible. The Board told Ps to

err on the side of disclosure if there is any question; and places all the burden and risk of violating Brady and 3.09(d) upon the P.

TXCCA: Although the United States Constitution does not require substantiation of a guilty plea in state court, Tex. Code Crim. Proc. Ann. art. 1.15 does provide this additional procedural safeguard. Under the article, a court may not enter a conviction in a felony case based on a guilty plea unless

evidence is presented establishing guilt in addition to and independent of the plea. The evidence does not have to establish the defendant's guilt beyond a reasonable doubt but must embrace every element of the offense charged.

Aside from ______ or ________, the State has no right to obtain info or evidence from the D.

expert W discovery and the duty to notify the State that the D will raise insanity or entrapment as a defense This is because the State bears the BOP, not the D. Therefore, assume discovery means a request by D counsel to inspect what the State has, not the other way around.

While other jxs have created reciprocal discovery, TX has not followed suit. There is one exception: parties are required to disclose any

experts they intend to call if opposing counsel files a motion to disclose experts and serves them with the motion. The filing party is entitled to the name and address of the expert; disclosure must be made not later than the 20th day before trial. This exception only applies to expert Ws, not lay Ws.

Denying Bail In limited instances, a D is nonbailable or may be held without bail for a period of time. The first type of nonbailable defendant is one who

faces a charge of capital murder where the State seeks the death penalty.

Petite juries serve as

factfinders in misdemeanor and felony trials.

The judge may remove appointed counsel from the case for

failing to meet with his client as required. Judges may remove an attorney from the appointment list altogether who repeatedly abuse the above provisions However, judges must be careful not to remove an attorney over the objection of the D for anything other than a statutory violation.

Waiving or Losing the Right to an Examining Trial The accused may also waive her right to an examining trial. She can do this by

failing to request one or by making an untimely request. Unless the D or her attorney requests an examining trial before the GJ returns an indictment, she waives the right to have one The return of a true bill by the GJ satisfies the principal purpose and justification for the examining trial: that there is PC to believe the accused committed the crime charged.

District courts have jx over

felonies

If the prosecutor desires to dismiss a case, she must

file a motion to dismiss and present it to the trial court.

If the D wishes to move the trial, he must

file a written motion to change venue

Contesting a Continuance Motion When one person is missing form the list of Ws, a question may arise whether this W's testimony is merely desirable or material. If it is the former, opposing counsel may contest the continuance. If opposing counsel wants to contest the continuance, she may ...

file a written, sworn affidavit by a party with personal knowledge who denies the material fact that forms the basis of the motion.

Depositions Though depositions are commonplace in civil practice, in criminal practice, they are rare. The Code does provide a procedure for them, however. VERY RARE. A D can request depositions of Ws, but rarely happens. Under 39.02, if the D wants to request a deposition, they have to

file an affidavit to request that deposition, which is some work for D counsel. That affidavit must explain the facts and reasons why the deposition is necessary. This would reveal defense strategy, which the D often doesn't want to do. 39.02 also provides that the judge MAY grant depositions, not that they shall. Judges are reluctant to grant.

Courts in TX possess SMJ over the type of case and PJ over the D, which begins with the

filing of the charging instrument

7 YEAR LIMITATIONS PERIOD -

financial crimes, medicaid fraud, exploitation of children, elderly persons, or disabled person, and bigamy

The bail bond is a

financially secured promise to return to court until the case is resolved. If the D returns to court and abides by the court's bond condition, the bail is returned to the person who paid it once the case is resolved.

Border checkpoints -

form of administrative searches conducted pursuant to statutory authorizations. Much lower standard of suspicion to do search *Generally upheld*

The process for pleading guilty or no contest in a misdemeanor case is much less

formal than the process for entering felony pleas.

When a search is conducted pursuant to a valid consent ...Consent must be

freely and voluntarily given to be considered effective.

D counsel CAN show the D or prospective W evidence, they just can't

give them a copy. If it's necessary to prepare their defense, the D counsel can show certain evidence to D or Ws, but if it is a W statement, any identifying info other than the name of the W has to be redacted (EX: DOB, address, etc.)

As long as the police reasonably believe the person who gave consent has the ability to consent, that's

good enough to support consent. EX: house guest lets in police, who thought she lived there. However, the more an individual makes something private inside a shared space, the less likely the consent of a housemate/family member will be valid.

If the State fails to produce controverting evidence or consents to the change of venue, the judge must

grant the D's motion.

While using bail as a "seed of preventive detention" is "abhorrent to the American system of justice," the 60 day unbailable period gives the judge time to

have a hearing and determine the best course of action for releasing what may be a dangerous, repeat, or violent offender.

Finally, bail may be denied due to violating a condition of bond. The TXC states that a D accused of a *felony or a family violence crime* who is released on bail and violates a condition may

have bail revoked or forfeited pending trial "if a judge or magistrate determines by a preponderance at a subsequent hearing that the person violated a condition of release related to the safety of a V or the alleged offense or to the safety of the community." Standard of Review in denying bail: abuse of discretion.

Texas venue statutes are a species of codified "substantial contacts" jurisdiction; thus, for venue to lie, the defendant, his conduct, his victim, or the fruits of his crime must

have some relationship to the prosecuting county. The Legislature has specified the types of contacts that satisfy this "substantial contacts" threshold for various offenses. While some of the special venue statutes expressly apply to identifiable penal code offenses, other special venue provisions apply by virtue of the particular facts of the case rather than the specifically charged offense. There is no special venue statute expressly applicable to the prosecution of a capital murder. Nor is there any statute providing that in capital murder cases, venue occurs only where the homicide takes place. Any number of the special venue provisions may apply to a given capital murder case, depending upon its facts.

Challenging the Grand Jury Anyone can challenge the composition. But the tricky part:

have to challenge BEFORE the GJ is empaneled. No one sits around monitoring this. So it's hard to imagine that you can do this.

The Fourth Amendment to the United States Constitution and Article I, Section 9 of the Texas Constitution protect individuals against unreasonable searches and seizures. The rights secured by the Fourth Amendment and Article I, Section 9 are personal. A defendant seeking to suppress evidence on the ground that it was obtained in violation of the Fourth Amendment or Article I, Section 9 must show that ...

he personally had a reasonable expectation of privacy that the government violated. The defendant bears the burden of demonstrating standing to challenge the legality of the search by showing that he had a subjective expectation of privacy in the place invaded that society is prepared to recognize as reasonable.

If the W persists in refusing to answer the question(s) after the judge has ordered him to do os, the W can be

held in contempt of court and fined or jailed until he testifies.

A W who evades the summons can be

held in contempt of court by the judge. The W may also be attached, which is a type of arrest, and brought to the court or grand jury involuntarily.

D attorneys who represent foreign nationals must know

immigration law well enough to explain the collateral consequences a plea of guilty or nolo contendere has on the person's status to become a citizen or remain in the US. Attorneys who do not properly advise a client on these consequences render IAC and violate the client's right to counsel under the 6th amendment.

The GJ may want to hear from a W or co-D in the course of investigating or determining PC. If summoned, this person is required to appear before the GJ If the person believes that the GJ's questions elicit self-incriminating answers, the W may have grounds to refuse to testify. The prosecutor has an option of offering the W

immunity in exchange for testimony. If offered and accepted the person cannot be prosecuted for the testimony she offers unless she commits perjury by giving false testimony. If she fails to appear before the GJ, she will be held in contempt and could face a fine or jail time until she willingly appears

The Code gives the district court jurisdiction, power and authority over one not otherwise subject to the power of the court When a witness, brought in any manner before a grand jury, refuses to testify, such fact shall be made known to the attorney representing the State or to the court; and the court may compel the witness to answer the question, if it appear to be a proper one, by

imposing a fine not exceeding five hundred dollars, and by committing the party to jail until he is willing to testify. The court thus aids the investigation of the grand jury under the authority of Art. 20.15. However, the court also exerts some "control" or supervision over the grand jury under Art. 20.15. The court decides if the question propounded before the grand jury is proper, and, thus, decides whether or not to aid the investigation of the grand jury by then compelling an answer. Without the action of the court the grand jury is powerless to enforce its investigative duty to gain testimony from a witness and decide on the presentment of an indictment. In this sense, the court acts independently and in a supervisory role (deciding whether to compel an answer) as well as jointly with the grand jury A grand jury is clothed with great independence in many areas, but it remains an appendage of the court, powerless to perform its investigative function without the court's aid, because powerless itself to compel the testimony of witnesses. It is the court's process which summons the witness to attend and give testimony, and it is the court which must compel a witness to testify if, after appearing, he refuses to do so.

This forfeited money is used by counties to

improve roads and fund govt projects and may amount to millions in larger counties.

If D counsel wishes to contest the privilege, he may ask the judge to have an

in camera inspection that requires law enforcement agents to describe the extent of the informant's knowledge of he underlying charges to the judge privately without the parties present. Any testimony or evidence the trial court discovers during this inspection is confidential.

When crimes occur on or near county or city lines, venue is appropriate

in either locale. When an offense is committed within 400 yards of a county border, then venue is proper in either county

In TX, Ws are sworn to secrecy; but

in federal rules this is not the case. Question as to whether TX rule is constitutional. First amendment issue since this is their own testimony.

Stand by counsel -

in pro se representation; the court appoints "stand-by counsel" to work alongside the D. advises D on procedure and evidence. Not allowed to talk to jury or give impression that he's representing D. If at any point in the process the D changes his/her mind, or the court decides that there must be a lawyer, the stand by counsel can take over. D has no right to decline stand by counsel. If D gets disruptive, judge can force lawyer on D.

venue [kidnapping]

in the county in which the kidnapping offense was committed, or in any county through, into, or out of which the person kidnapped may have been taken.

Just like all disco (other than Brady), the D needs to request such lay W lists. Would do so

in their 39.14 motion, asking for the name of any Ws the State believes they will call to testify at trial.

Notice that the jury charge in the above case contained a rule that applies in cases where the location of the crime cannot be determined, based upon the facts: "If it cannot readily be determined within which county or counties the commission took place, trial may be held in the county

in which the D resides, in the county in which he was apprehended, or in the county to which he was extradited." *This ONLY applies when the place where the crime occurred is unknown.*

The court can consider ______ in deciding whether the accused should be given appointed counsel, but it shall not make the decision solely on the D's ability to post bail.

income, assets, property, dependents, and other factors

The duty of the P to disclose Brady evidence continues

indefinitely. If at any time before, during or after trial, the State discovers Brady evidence, it must promptly disclose its existence to the D or the court.

D can't represent himself and then appeal based on

ineffective assistance of counsel.

Our conclusion that the predecessor to Rule 25.2 limits every appeal on every ground in a plea-bargain, felony case is bolstered by the action of the next legislature in enacting article 26.13(a)(3) of the Code of Criminal Procedure. That act required a court to admonish a defendant who was pleading guilty in a felony case of "the fact that if the punishment assessed does not exceed the punishment recommended by the prosecutor and agreed to by the defendant and his attorney, the trial court must give its permission to the defendant before he may prosecute an appeal on any matter in the case except for those matters raised by written motions filed prior to trial." The evident purpose of this act was to

inform the defendant of the restrictions on appeal so that the defendant could take them into account before making a knowing and voluntary decision to plead guilty.

Finally, a third purpose of examining trials is to provide both sides with

informal discovery. The D's testimony at his examining trial can be used against him. A W who testifies at the examining trial and who testifies again at trial can be impeached with sworn testimony given at the the examining trial if the proper impeachment predicate is laid.

When the issue of competence arises after the D's trial begins, the court may

inquire into competence at any time before sentencing.

Prosecutors routinely deliver combination 404(b) and 37.07(g) notices to D counsel, expressing their intent to

introduce evidence of extraneous offense evidence at both phases of trial. The best practice is to deliver written notice and retain proof it was received by the D.

Grand juries

investigate and make PC determinations in felony cases. They must determine whether there is objective PC to support the charged crime.

During an investigative detention, an officer may employ the force necessary to effect the reasonable goals of the detention:

investigation, maintenance of the status quo, and officer safety. An officer may conduct a limited pat-down search of the outer clothing for weapons during an investigative detention if the officer fears for his safety or that of others. Police officers are not required to use the "least intrusive means" to verify or dispel their suspicions; however, if the force utilized exceeds that reasonably necessary to effect the goal of the stop, this force may transform an investigative detention into a full-blown arrest.

The presentment of an indictment or information to a court

invests the court with jurisdiction of the cause.

An information is sufficient if

it charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment[.]

So depositions are rare, because

it is (1) extra work on D counsel, (2) reveals D's trial strategy, (3) rarely granted, you don't see these requests very often. Also, even if the D is granted a deposition, it is not automatic that it would be admissible at trial, so benefit is not clear.

Grand Jury Evidence One of the roles of the GJ is that of investigator. GJ can investigate virtually anything they want, so long as

it is an offense for which a person can be indicted. They are not limited to determine PC for the cases the prosecutor brings them.

Merely having a lot of media attention is not enough. Have to show

it is pervasive, prejudicial, and inflammatory against the D. Also have to show that people actually saw that coverage. It is exceedingly rare for a court to reverse a change of venue. Only happened twice in the last 60 years. One of them was Jack Ruby.

The same is not true for evidentiary warrants. Officers may seize mere evidence when

it is reasonably related to the investigated offense and they can ONLY seize what is listed in the warrant.

The TXC protects against unreasonable searches and seizures and places limits on warrantless searches. TXCCA: "4th amendment analysis of warrantless searches rests heavily on a simple notion:

it remains a cardinal principle that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the 4th amendment, subject only to a few specifically established and well-delineated exceptions.

Scope must be analyzed in every search, whether

it was executed with or without a warrant. In the warrantless search context, scope may arise in virtually any exception. EX: In Weaver, police were looking for a fugitive that was known to hang out at a welding shop. When they asked to look around the shop, the owner consented. They did not find the fugitive. Then they asked to search the shop's van, and the owner refused. The cops used a dog sniff that indicated drugs, searched the van and found meth. TXCCA: dog sniff and van search exceeded the scope of the consent. The owner said "no" regarding the van search, which cannot mean that he cops still have consent. The cops violated the 4th amendment

The court has the discretion to deny a request to proceed pro se if

its too close in time to the trial date, the D is obstructing the trial, or if the court determines that the D is not capable of proceeding pro se. This last one is tricky because it is very rare for a D to be capable in the way an attorney would be to represent himself. But that is not the standard. The court doesn't expect a pro se D to meet the standard of an attorney. There are all kinds of complicating matters that happen when a D proceeds pro se. Judges typically have to step in far more frequently to ensure that inadmissible evidence isn't introduced, that proper questioning takes place or how to introduce evidence, the judge has to ensure that D has access to info such as the jurors in the case for voir dire. In more violent cases, jurors are reluctant to allow Ds to have access to that info. Logistical nightmare. What happens in most cases is that stand by counsel is appointed and takes over. Stand by counsel is supposed to assist in procedural matters up until the point they take over. But if at some point the court determines that the trial can't proceed as a fair trial pro se, then stand by counsel is directed to take over.

The article that governs appointed counsel does not apply to retained counsel, so

judges do not have the legal authority to remove a hired attorney who fails to meet the Code's expectations. NONE of these rules apply to retained counsel. None of the requirements regarding how quickly to contact Ds, or any of the substantive knowledge requirements, CLE requirements, etc. are imposed on retained counsel. As long as you're a licensed attorney in TX you can represent them.

Recently, a federal court in Houston struck down Harris County's bail schedule as unconstitutional because

judges relied almost exclusively on it to set bail, while failing to consider each D's ability to make bail. According to court, this violated indigent D's due process and equal protection rights. While ability to make bail is only one factor of the five that TX should consider, Harris County appeared not to consider it at all in setting bail. The result: indigent Ds were sitting in jail on minor cases while Ds with money were living freely in the community.

Charging Documents Class C Misdemeanor -

just needs the complaint - the basis for the arrest warrant. Serves as the charging document in municipal and JP courts

County Courts Jx -

jx over Class A and B misdemeanors (more serious) and mandatory appellate review of Class C misdemeanors

Justice courts - JX

jx over Class C misdemeanors. Have jx when a county or state law arrests. JPs who are not lawyers CANNOT issue mere evidence warrants However, JPs can hear criminal cases

District Courts JX -

jx over all felony cases and any lesser-included offenses (LIOs) of felonies, even if the LIO is a misdemeanor; any misdemeanors associated with the felony.

Pleas must be...

knowing and voluntary 1) knowing - know all the elements and what they mean 2) voluntary - can't be coerced -----However, Courts have consistently upheld that threat of additional punishment (or punishment to family members who are also charged) as NOT coercion.

If a D is seeking to proceed pro se, the first assessment that must occur by the court is that the waiver of counsel is done

knowingly and intelligently. To determine whether a D is knowingly and intelligently waiving the SARTC, will look at age, intelligence, experience, mental health.

Once the judge complies substantially with the admonishments, she creates a prima facie case/presumption that the D entered the plea

knowingly and voluntarily.

Finally, the Code prohibits a court from setting aside the conviction for failure to substantially comply with the

last two admonishments (sex offender and community service), and the appellate courts have found immigration admonishment errors harmless when the record demonstrates that the D was a citizen.

What crime to charge typically begins with

law enforcement officers who make an arrest or suspect a person has committed a specific crime. The prosecutor may assist the officer or decide unilaterally what specific crime to charge.

Discovery - Witness Lists The Code does not say anything about

lay Ws, on either side. Common law principles applied by the courts in TX do require that the State turn over their lay W lists; Ws they intend to call at trial.

With respect to the first type of variance between pleading and proof, the court has held that the failure to prove the statutory language pled renders the evidence

legally insufficient to support the conviction.

A standard discovery order applies to all criminal cases and usually

lists items that the D has a right to discovery pursuant to the code or common laws of TX. The parties negotiate the list, line by line, and seek the judge's opinion on items they cannot agree on.

Typos in the Warrant Wrong date, address, etc. When this happens the D counsel will raise a legal challenge seeking to invalidate the warrant. Typically, courts

look behind the warrant to examine the error and why it happened. Technical discrepancies in dates or times do not automatically invalidate a search warrant.

A D who is able to pay a cash bond gets it all back once the case is resolved, whereas a D who uses a surety to post bail

loses the fee he paid the bondsman.

State Jail Felony

lower level felony; not incarcerated in prison, but in jail.

While the felony plea must be made in open court by the D in person with counsel, the misdemeanor plea must be

made in open court by the D OR his counsel

Crime Specific Venue Rules -

made very broad; wherever the crime may have touched

An arrest warrant is a

magistrate's written order that allows a cop or other specifically named person to seize the body of person accused of a criminal offense.

Brady Evidence continued The D does NOT have to ______ in order for it to be turned over.

make a request from the P D doesn't have to request The obligation is on the P to turn over all favorable material evidence in their possession, custody, or control. Constitutionally, the good faith of the prosecutor is NOT RELEVANT here. Even if the P really didn't think it was favorable, had no bad faith intent to withhold evidence to gain an advantage, if they fail to turn over favorable material evidence, that is a constitutional violation. Even if acting in good faith. "The State" here includes any govt official connected to the investigation: law enforcement officers, investigators, state lawyers, agents, etc. Expansive. Does NOT apply to inculpatory evidence, ONLY exculpatory.

The State does NOT automatically have to let the D know of the possibility that they would use these prior bad acts. The rule requires the D to

make a timely request.

At the request of a losing party in a MTS, the trial judge is required to

make specific findings of fact and conclusions of law on the suppression issue. But each party goes about it differently.

Waco Court of Appeals recently held that merely filing a motion for discovery was NOT a request for evidence pursuant to Art. 39.14 (discovery). Had the D sought a ruling on the motion - transforming it from a motion to an order - it would have been a judicially-mandated request for the State to produce evidence. However, because it was merely a motion, the State didn't have a duty to produce and the TCt didn't abuse its discretion by admitting them into evidence over D's objection. In order for D counsel to discovery evidence, he must either request the evidence directly from the State or

make sure his motion for discovery is signed by the Judge, thus requiring the State to produce the evidence.

Bottom line: variance is about

making sure that the D has sufficient notice to be able to prepare a defense for trial. It is one thing to have an indictment that fails to include required info, whether the omission is fatal or not. It is another to plead information that the prosecutor cannot prove at trial. EX: Prosecutor may plead facts or select a manner and means that does not match the testimony or evidence admitted at trial. If the prosecutor is unable to prove all elements of the crime, as pled, it may be a fatal variance.

Judges, on the other hand,

manage dockets, acts as fact-finders and evidence gatekeepers, determine the applicable law, assess punishments, and pronounces judgments.

A judge is not required to withdraw a plea when there is evidence consistent with innocence, though

many judges do.

This responsibility to disclose Ws also extends to rebuttal Ws. Art 39.14 doesn't exempt rebuttal Ws. The reason the legislature did not make an exception for rebuttal witnesses is readily apparent -

many times the expert's testimony is not relevant unless and until the defendant has raised a defense which requires expert testimony to rebut. The most obvious example of this is in the insanity defense. The State has no burden to establish the defendant's sanity at the time of the commission of the alleged offense. Therefore, only after the insanity defense has been raised by the defense may the State rebut it. Nevertheless, the State may not hide behind the law and not disclose the expert witnesses who are prepared to testify in rebuttal. For these reasons, we hold that article 39.14(b)'s duty to disclose expert witnesses includes rebuttal witnesses

Errors in Charging Document Substance Error -

matters of substance include essential elements of the offense, the time and place where the offense took place, and prior convictions when a repeat offense is charged.

A pleading D may enter a guilty or nolo contendere (no contest) plea to the charges. Both of these pleadings have the same legal effect in criminal court. The sole distinction being that a plea of nolo contendere ...

may not be used against the D in any civil suit arising from the criminal act.

If the trial court accepts a plea-bargain agreement, the State

may not withdraw its offer.

The judge is also required to ensure that each pleading D is

mentally competent and is entering the plea voluntarily; however, these two requirement are not considered admonishments. The judge is required to ensure that the plea is voluntary. If Bitterman, the plea was rendered involuntary when the State failed to comply with the promise that induced the plea.

Unless otherwise stated above, for attempted crimes, conspiracy to commit crimes, criminal solicitation, or aggravated crimes, the limitations period

mirrors the offense the person was trying to commit.

Misdemeanor Pleas Judge has to allow withdrawal of the plea in felony cases if she won't abide by the deal, but the judge does NOT have to do so in

misdemeanor cases.

D must be represented by counsel in felony cases, but NOT

misdemeanor.

TX divides crime into two categories:

misdemeanors and felonies

Appointed attorneys are actually often more experienced than hired counsel. The only problem is that they might be

more overwhelmed.

Felonies -

more than a year in prison

Surety Bond -

most common. Involves private individuals (in TX). Pay bondsman 10% and they will put up the rest. If you show, the bailbondsman gets their money back If you don't show, they are out that money, so they have an incentive to make sure you show up

This decision may be seen as even more reasonable when it is remembered that meritorious claims of involuntary pleas may be raised by other procedures:

motion for new trial and habeas corpus. These procedures are not only adequate to resolve claims of involuntary pleas, but they are superior to appeal in that the claim may be supported by information from sources broader than the appellate record.

Expectations of Privacy and Standing At the core of search and seizure law lies privacy and trespass concerns. Two theories of 4th amendment violations: trespass and privacy concerns (REP, Katz) When the expectation of privacy is reasonable and the person contesting the search or seizure has standing, she may establish a violation of her expectation of privacy and challenge the seizure through a ...

motion to suppress the evidence.

TXC defines violent crimes as (4)

murder, aggravated assault with a deadly weapon, aggravated kidnapping, and aggravated robbery

SOL IN TEXAS: NO LIMITATION -

murder, manslaughter, aggravated sexual assault, sexual offenses against children, hit and run fatalities, and human sex trafficking of children and minors.

D counsel's other roles in the plea bargaining process are to

negotiate the best possible punishment for her client, know the legal consequences of the plea, and advise the D about all available options.

Trash & Abandoned Property -

no REP because it is objectively unreasonable for a person to claim a legitimate expectation of privacy in objects she no longer wanted and entrusted others to carry away. Police can go through your trash to link you to crimes.

Trash searches -

no REP in trash. Considered abandoned property. Police can search your trash.

When, however, a search warrant authorizes the seizure of mere evidence and another item listed in article 18.02(a), the warrant is

no longer considered an evidentiary search warrant but becomes a regular search warrant, and the limits do not apply The type of judge who can sign an evidentiary warrant is more restricted, as is the process for obtaining a subsequent evidentiary warrant.

The Code provides that the prosecutor may dismiss a case with the trial court's permission at any time by filing documents explaining the reason for the dismissal. The name for this dismissal motion is

nolle prosequi ("we shall no longer prosecute"). In practice attorneys may refer to it as a "nolle" (rhymes with Molly) or as a motion to dismiss.

The D is under no reciprocal duty to disclose _____ to the State

nonexpert (lay) Ws

Evidence that is sufficiently attenuated from the unlawful arrest is

not considered to have been obtained therefrom. The prosecution carries the burden of proving attenuation.

Forfeiture and Revocation of Bail Jumping Bail -

not showing up is a crime. Can be charged for an additional crime if doesn't have a good reason Bail is aimed at ensuring the D's presence in court when ordered to appear. A D's case may last weeks or months. Attorneys may reset the case to investigate the facts before a plea bargain, or any number of reasons. Judges may revoke bail when a D fails to appear.

An otherwise voluntary consent is _______ by the fact an officer asserts that he could seek or would obtain a search warrant if consent is refused.

not vitiated A threat to seek a warrant cannot always be said to be without probative effect.

The fact that a person is under arrest does ...

not, in and of itself, prevent a free and voluntary consent from being given. Custody is merely one of the factors to be considered.

Article 37.07(g) requires that, upon request the State provide

notice of extraneous offense that will be used during the punishment phase of trial.

Perhaps the most significant aspect of the charging instrument is to provide the D with

notice of her charged criminal act. Next case looks at how much notice is due. How specific does the charging document need to be to give due process notice

Courts have used an _______ standard in determining whether a warrantless search is justified under the emergency doctrine.

objective standard of reasonableness This objective standard looks at the police officer's conduct and takes into account the facts and circumstances known to the police at the time of the search. Furthermore, courts look to ensure that the warrantless search is strictly circumscribed by the exigencies which justify its initiation. If the emergency doctrine applies, the police may seize any evidence that is in plain view during the course of their legitimate emergency activities. The fact that the protection of the public might, in the abstract, have been accomplished by less intrusive means does not, by itself, render the search unreasonable.

Regardless of who gives consent to search, it is evaluated ...

objectively under the TOTC

Moreover, some defendants may fail to exercise their discovery rights under art. 39.14 and so may wish to

obtain a witness statement under Rule 615 as a fallback.

While a warning that an individual does not have to consent to a search and has the right to refuse is not required or essential, the showing of a warning is ...

of evidentiary value in determining whether a valid consent was given. Likewise, the lack of any warning, though not required, is also probative on the issue of consent.

Only the State may

offer or withdraw a plea bargain.

Rule 404(b) requires notice of extraneous offense evidence if the evidence is offered in the State's case-in-chief. Notice is NOT required if it is

offered in rebuttal.

1) Consensual encounters -

officers do not need to suspect person of crime to initiate conversation, nor is the person obligated to participate in the conversation. EX: Cop asks passerby "have you seen white male with shaved head in mid-40s wearing all black pass by?" Reasonable person would feel free to disregard the police and go about her business. EX: asking cop for directions when road is closed. EX: cop asks woman if she wants escort to car at night *As long as citizen feels free to leave; no suspicion involved.*

At examining trials, all Ws must testify in the presence of the D, and they may be questioned

on both direct or cross by both the prosecutor and defense attorney. As in a jury trial, the D retains his right to confront the Ws against him. Likewise, the same rules of evidence apply as at trial

[*Comment:* there was a controversy once the MMA was codified as to whether this would apply to GJ statements. The general way the courts have interpreted it is NO. GJ statements are still secret, EXCEPT:

once a witness testifies at trial, if they previously testified before the GJ that GJ testimony is subject to production under 615. This rule is how you get access to GJ testimony.]

When an attorney gives incorrect advice about parole eligibility that induces a D to plead guilty and the client is harmed, the plea is

rendered involuntary.

Remember that when officers are executing an evidentiary search warrant, they are limited to seizing ...

only the items listed. Because the officers seized mere evidence that was not listed on the evidentiary warrant, those items were deemed seized pursuant to a warrantless search, and thus per se unreasonable unless a warrant exception applies, which it didn't.

The Code permits judges to admonish the D either

orally or in writing.

If the D refuses to sign the written admonishments, the judge shall

orally state the admonishments.

Because an officer's safety may be threatened by a passenger's access to weapons in an automobile, an officer may, as a matter of course,

order a passenger lawfully stopped to exit the vehicle;

An "______" has a legitimate expectation of privacy in his host's home.

overnight guest However, the legitimate privacy expectation of an overnight guest does not extend to a casual visitor or guest who is merely present with the consent of the homeowner.

General rule in TX and fed law is that warrantless arrest is

per se unreasonable unless it fits into exception.

Pretrial publicity - it is not enough for a D to illustrate his case garnered significant pretrial media attention. To justify a change of venue based on upon media attention, a D must show that the publicity was (3)

pervasive, prejudicial, and inflammatory. In making her decision, the judge may consider the extent and type of publicity the case received, the evidence presented at the motion hearing, and the testimony of people reporting for jury service.

There are two kinds of juries in TX:

petite juries and grand juries

Once an attorney fills out the subpoena with the above info, he must give it to the court clerk, who

places it in the clerk's file for all parties to see.

Substantiating Evidence Very TX-specific rule. Evidence is needed to substantiate a ...

plea of guilty. This is NOT a requirement under federal rules (which permit plea without any evidence) It is absolute requirement in felony cases.

TXC: An information is a written instrument

presented to a court by an attorney for the State charging a person with the commission of an offense.

Depositions as a Method of Preserving Testimony While some depositions may be taken as part of discovery, others may be taken to

preserve testimony that will not be available at trial due to the witness's health or age. These depositions have an altogether different procure and are usually performed by the State.

Not all cases can be tried in the county where the crime occurred due to

pretrial publicity or bias within the community. Most often the bias is directed a Ds, but it may be directed at the elected district attorney, a witness, or the victim. Extreme community favor towards a party may also make a fair trial impossible.

If you're charging an individual with crime that can be enhanced by

prior convictions EX: S arrested for class B misdemeanor for DWI, could be raised to class A; if 3rd, could be raised to felony

What does NOT need to be turned over by the State is

privileged information: attorney/client; work product, etc.

10 YEAR LIMITATION PERIOD -

probate theft, public servant theft, forgery, elder abuse, rape, arson, human trafficking of adults, and forced prostitution

If the judge overrules the motion at the pretrial hearing, the moving party may ...

renew the motion during VD.

The subpoena is then delivered to the W by a

process server working in the court, an investigator working with the prosecutor, or another person authorized to serve subpoenas. Many counties are now serving subpoenas through electronic means. The server will note whether the subpoena was emailed, mailed, or hand delivered to the W, or whether he was unable to serve the W.

The process of pleading guilty is complicated. It involves more than the defendant announcing he is guilty in open court and the judge assessing punishment. The judge must admonish or warn the D before taking the plea, ensuring the D is aware of the plea's legal consequences and his waived trial rights The admonishments' purpose is to

protect the due process rights of Ds who enter into the plea bargains. Pleading Ds not only waive the right to a jury trial but also waive other fundamental, constitutional rights as well (e.g. the right to make the State prove its BRD and the right to confront Ws). Moreover, some Ds will face consequences of the plea that may affect them for years or even a lifetime.

A Terry frisk extends to locations as well in the form of a ...

protective sweep. If an officer has RS to believe that there are others in the S's location that could cause harm to the officers they can do a protective sweep. CANNOT search everywhere; scope is limited to where persons could be hiding, and need RS that they could be there. Limited in time.

The grand jury has always occupied a high place as an instrument of justice in our system of criminal law -- so much so that it is enshrined in the Constitution. The grand jury is an English institution brought to this country by the early colonists and incorporated in the Constitution by the Founders. There is every reason to believe that our constitutional grand jury was intended to operate substantially like its English progenitor. The basic purpose of the English grand jury was to

provide a fair method for instituting criminal proceedings against persons believed to have committed crimes. Grand jurors were selected from the body of the people and their work was not hampered by rigid procedural or evidentiary rules. In fact, grand jurors could act on their own knowledge and were free to make their presentments or indictments on such information as they deemed satisfactory. Despite its broad power to institute criminal proceedings the grand jury grew in popular favor with the years. It acquired an independence in England free from control by the Crown or judges. Historically, the grand jury has been regarded as a primary security to the innocent against hasty, malicious and oppressive persecution; it serves the invaluable function in our society of standing between the accuser and the accused to determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal ill will.

One thing that will constitutionally lead to reversal on appeal, will be the judge's failure to recuse after

punishing a D for exercising a constitutional right. EX: D invokes PASI and judge punishes. Grounds for reversal if judge does not recuse.

Bail is granted in the overwhelming majority of cases. The USSCt has stated that "in our society, liberty is the norm, and detention prior to trial or without trail is the carefully limited exception" This is true in TX as well The purpose of bail is not to keep a D in custody pending the case's resolution. If it were, it would be a

punishment enacted against a person who is still presumed innocent. In most cases, the D will be eligible for release from jail on some form of bail or bond.

Once the charging instrument is filed, the State has an obligation to

pursue the case, and the court maintains jx over the D until the case is resolved.

If a charing instrument fails to include all components, the D can file a motion to

quash the charging instrument.

If a D wants to challenge the entire array, he must file a motion to

quash the indictment. A D who fails to assert the challenge through a motion to quash waives the right to challenge the grand jury array. Discrimination challenges to the GJ array have rarely been successful. In one instance where the challenge was successful, the appellant established the underrepresentation of his race over a significant period of time by the use of gross population statistics, thereby evidencing a prima facie case of discriminatory purpose that the State failed to offer evidence to rebut.

The attorney representing the State may

question witnesses, advise GJ how to interrogate Ws, and appear in the room with the grand jurors at any time except when they are deliberating or voting.

Counts In federal courts, it is common to see one charging instrument with many counts or offenses charged. In TX courts, this

rarely occurs. The Penal Code authorizes a prosecutor to include more than one count in a charging instrument if the charge arise out of the same criminal episode.

Scope of Search Sometimes officers exceed the scope of the warrant Warrant scope - search is unreasonable and violates 4th amd if it exceeds the scope of the warrant. While the scope of the search warrant is governed by its terms, the search may be as extensive as

reasonably required to locate items described in the warrant. If the scope of the search is challenged because of the location where the items were found, the officer must show that he was properly in the place where the item was found, either on the basis of the search warrant or an exception. EX: cop has search warrant for illegal cable TV box. Searches near TV, then searches closet and finds a box with child porn. Since the cable box could have fit in the box, the search was permissible.

PC to search exists when

reasonably trustworthy facts and circumstances within the knowledge of the officer on the scene would lead a man of reasonable prudence to believe that the instrumentality of crime or evidence pertaining to a crime will be found It is good practice for officers to use a written consent form when a S verbally authorizes a search. Before given consent, officers should read Miranda, inform him he has the right to refuse consent. Some agencies require, others do not

If the judge admonishes the D in writing, the judge must

receive a copy of the admonishments signed by the D and D counsel, acknowledging that the D understands them and the consequences of his plea.

615(d) Recess to Examine a Statement. If the court orders production of a witness's statement, the court, on request, must

recess the proceedings to allow the moving party time to examine the statement and prepare for its use. [comment: the judge has to give either side time to review the statement in order to properly cross examine the W. This is generally used by P to get prior D witness statements. However, if the D didn't make a timely discovery request under 39.14, then the D can use this as a fallback; and also to get access to GJ testimony of Ws.]

Recording If a S is testifying before a GJ, it MUST be

recorded Beforehand the S must be informed about the charges. Any other Ws do not have to be recorded. There might be strategic reasons why the P does not want to record Ws. Might have to turn over the D counsel. If that W testifies at trial, then the W's testimony (if recorded) MUST be turned over to the D. However, if W changes their testimony, the P might want to have it recorded so they can impeach for prior inconsistent statements.

The D's statement shall be

recorded, either by a stenographer or by audio recording.

If you are violating the rules associated with being appointed counsel (contacting Ds quickly enough, etc.), the judge can

remove you from the rolls of potential appointed counsel.

Attorneys must carefully and accurately advise clients and explain the law in the process of their representation. If an attorney passes on erroneous info the the D, the resulting plea, if based upon that info, is

rendered involuntary.

While the felony plea must be supported by substantiating evidence of guilt, the misdemeanor plea

requires no such evidence.

*Pretrial Hearings* Assume in a hypo that the D is indigent, has been arraigned and appointed counsel, and his felony case is currently pending before a DCt. The D wants to plead not guilty and requests a jury trial. Before the trial date, the judge sets his case for a pretrial hearing. This hearing is designed to

resolve evidentiary, administrative, and procedural matters before the case proceeds to trial. The issues addressed at this hearing concern motions and pleadings.

Although an indigent defendant does not have the right to counsel of his own choosing, once counsel is appointed, the trial judge is obliged to

respect the attorney-client relationship created through the appointment. The attorney-client relationship between appointed counsel and an indigent defendant is no less inviolate than if counsel is retained. There must be some principled reason, apparent from the record, to justify a trial judge's sua sponte replacement of appointed counsel under these circumstances.

Failure to give the D that 10 day continuance is

reversible error automatically. If the state's amendment is making it easier, (like abandoning allegations) then the 10 day continuance is not

If a W refuses to testify before the GJ or answer a specific question the W or S deems incriminating, the judge must

review the question(s) asked and determine whether to compel the witness to testify.

TXCCA: The attorney work-product doctrine, while not a true evidentiary privilege, belongs to and protects the attorney. Its purpose is to

rewards an attorney's creative efforts by giving his work product a qualified privilege from being shared with others. It is premised on the notion that an attorney should not be compelled to disclose the fruits of his labor to his adversary.

Rule 404(b) does not require notice of

same-transaction extraneous evidence.

Exceptions to the arrest warrants are statutory, but NOT for

search warrants.

One of the reasons Ps are required to disclose FEMI evidence stems from their duty to

seek justice. Under the Code, Ps shall not suppress facts or secrete Ws capable of establishing the innocence of the accused.

The GJ in the Long case was selected through the "key man" system, which was abolished in 2015. It permitted a commissioner to

select grand jurors. This system was subject to abuse and was highly controversial. The single method of GJ selection - the same method used to pick petit jurors - avoids this problem.

Jurisdiction A court must have jx over the case and the person to

send a D to jail, place her on probation, set bail and bail conditions, or otherwise control the outcome of the case or the D's behavior while the case is pending.

Who May Grand Jurors Consult? Grand jurors are rarely law trained. Because they are almost always laypersons, they may have legal questions or need to consult a law-trained person when it comes to PC determinations. After all, they are making a PC determination without any formal legal training that experienced law enforcement agents, prosecutors, magistrates, and judges make daily. Therefore, the Code permits GJs to

send for the State's attorney when they need advice, or go as a group to the judge or make a written request for the judge's advice. IF the grand jury goes to the judge, it must preserve secrecy about the case it is inquiring about when it discusses its concerns with the judge. GJ can ask P or judge for help

Bail is excessive if

set in an amount greater than is reasonably necessary to satisfy the govt's legitimate interests. The govt is interested in seeing the D appear in court to answer the charge against him. Thus, bail should be just high enough to secure the D's appearance in court.

CHAPTER 7: PRETRIAL MATTERS After a D has been charged with a crime and arrested, he will begin appearing in court until his case is resolved through dismissal, guilty plea, or trial. The D may make several appearances while the case is pending. His case is set on a court's docket, and it may reappear periodically until final resolution. Judges and attorneys refer to these appearances as

settings or resets.

TXC defines sexual crimes as (3)

sexual assault, aggravated sexual assault, and indecency with a child. In each of these cases and violent crimes, the safety of the community takes precedence over the D's right to be free. RARELY USED. Because within, must hold a hearing within 7 days, and within 60 days must essentially prove a case in 60 days. In order to hold the D without bail in the above instances, the judge must hold a hearing within 7 days of the D's arrest. The judge can only hold the D without bond for 60 days before she must set bail.

20 YEARS FROM THE VICTIM'S 18TH BIRTHDAY -

sexual performance of a child, kidnapping of a child, and burglary where the intent was to commit a crime against a child.

The display of weapons is a coercive factor that ...

sharply reduces the likelihood of freely given consent. "This is certainly true when the person from whom the consent is being sought has just been arrested at gunpoint, but it is likewise the case when the person merely answers the door to find officers with guns drawn."

Determining whether venue should be changed depends on what the public has heard about the case and whether it created bias, and whether the court can nevertheless assemble a fair and impartial jury. A judge won't know how pervasive bias is until

she hears from jurors during VD. For this reason, the judge is authorized to wait until VD concludes before ruling on the motion to change venue.

When the trial judge grants a motion for discovery, and the prosecution fails to disclose the evidence ordered disclosed by the trial judge, that evidence

should not be admitted into evidence by the State during the trial. Among the factors to be considered by an appellate court are any showing by the defendant of 1) bad faith on the part of the prosecution in failing to disclose, and 2) whether the defendant could have reasonably anticipated that the witness would testify despite the State's nondisclosure. Unless the defendant makes the necessary showing, the trial court's decision to allow the testimony will not be disturbed on appeal.

If state seizes evidence when the warrant has expired, the state would need to

show a warrant exception or that evidence will be suppressed.

What is essential about variances with respect to non-statutory allegations is that the variance should not be

so great that the proof at trial "shows an entirely different offense" than what was alleged in the charging instrument. EX: in a murder prosecution, the victim's name need not be proved with exactness, but the State must prove that the victim alleged in the indictment is the same person as the victim proved at trial.

Subpoenas for jailable offense are valid ...

statewide. This means that a W who is served with a subpoena outside the county where the trial is held is required to appear in court. The process for this type of service is the same described above. Creating, filing, and supervising the issuance of subpoenas can be time consuming. Trials are frequently reset; every time a case is rescheduled, new subpoenas must be drafted and sent out. With each new issuance of a set of subpoenas, Ws may grow weary or apathetic about coming to court. While Ws may be placed on call, attorneys must be able to locate Ws once trial beings. Until an attorney knows all Ws are present or available to testify, the success of trial is uncertain.

If, after a conditional acceptance of a plea bargain, the trial court rejects the plea-bargain agreement, the court must

still allow the defendant the opportunity to withdraw his guilty plea.

Questioning Witnesses The GJ foreman and the prosecutor have the authority to

subpoena or summon a witness anywhere in the State to appear and give testimony or produce documents or records. The summons does not have to reveal what or who is being investigated.

A judge need only _____ comply with the required admonishments.

substantially

In misdemeanor cases, DA does NOT have to provide ____to show the facts for a guilty plea to be valid.

substantiating evidence [Substantiating evidence is not a particularly high bar, but still, doesn't even have to do that in misdemeanors].

in most cases a charging instrument that tracks the statutory text of an offense is

sufficient to provide a defendant with adequate notice.

TXSC explains the PC element: "to establish PC, evidence must show that at the moment of the arrest the facts and circumstances within the officer's knowledge and of which he had reasonably trustworthy info were

sufficient to warrant a prudent man in believing that the arrested person had committed or was committing an offense." PC must point like a beacon toward the specific person being arrested. Arrest is a seizure subject to 4th amendment

Ds often hire bondsmen to post their bail. This type of bond is called a

surety bond A surety is someone other than the D who promises to pay the bail on the D's behalf and is liable for the amount of bail if the D fails to appear in court. EX: Andrews is charged with a felony and his bail is set at $5k. He doesn't have that so he goes to a bailbondsmen who charges him 10% or $500. The bailbondsmen puts up the $5k for Andrew and keeps the $500 as profit. If Andrew shows up, the surety is repaid. If not, not.

Probable Cause Affidavit No search warrant may issue unless a

sworn affidavit is first presented to the magistrate setting forth sufficient facts to show that probable cause exists for its issuance.

Many counties create bail schedules, which are

tables that suggest specific amounts of bail that largely depend on the current crime the D committed and criminal history.

Preservation Depositions - most common type of depositions in criminal trials

taken in order to preserve testimony when the State (usually, but can be D) believes a W won't be available for trial. Want to preserve testimony. 39.025 - the court shall order the attorney representing the State to take the deposition of an elderly (over 65) or disabled person at a certain time.

Exculpatory -

tends to prove the D is innocent; that the criminal act didn't occur. Or that the act occurred but the D was not the one who did it. EXs: -Alibi witness -W who IDs someone else, -Not illegal: EX: D acted in self-defense -D is guilty of a different crime (LIO, mens rea was reckless, not intentional, etc.) -Criminal act occurred, but D wasn't legally responsible (D was legally insane) -Impeachment Evidence of State's Witnesses -Prior inconsistent statements -Prior inconsistent IDs

Once the defendant demonstrates that a warrantless search occurred, the burden shifts to the State to prove

that a warrant existed or that an exception, under either the Fourth Amendment or TXC, justified the warrantless search given the totality of the circumstances. If *clear and convincing proof* satisfying the State's burden is NOT offered before the trial court, then the illegally obtained evidence may not be admitted at trial

When we actually consider the issue of whether voluntariness of a guilty plea may be raised on appeal from a plea-bargained, felony conviction, we find that the answer must be

that it may not. The first two reasons have been set out above: The legislature forbade it in 1977, and to do so would completely frustrate the statute. Our rule-making authority does not extend to enlarging the right of appeal in this fashion.

Judicial Review of Warrants When the ACt is reviewing whether the warrant is valid or not, they don't look to extrinsic evidence, only ..

the 4 corners of the warrant/affidavit itself.

A D may still raise the claim that his plea was not voluntary; however,

the BOP shifts to the D to demonstrate that he did not fully understand the consequences of his plea such that he suffered harm.

Again, the decision to go to trial or enter a plea is solely the D's, but

the D attorney should counsel the D about the wisdom of entering a plea given the facts and controlling law.

Only allows for amendment after trial has begun if

the D doesn't object. Typically the lawyer would always object to preserve issue.

In a misdemeanor case, if a judge varies from the recommended punishment in a misdemeanor case,

the D has no right to withdraw the plea.

If the D properly files a change of venue, and the P doesn't respond with a controverting affidavit, then...

the D is automatically entitled to a change of venue.

In Teal, failing to object and preserve error at the appropriate time resulted in

the D's inability to raise the alleged error on appeal. Thus D counsel must object to the charging instrument BEFORE the trial starts.

Before each docket begins, each appearing person's name is called aloud by the judge, the bailiff, or another employee of the court. If there is no response,

the D's name is called at the door of the courthouse or courtroom and if the D does not appear within a reasonable time, the bond is forfeited.

The Discovery Process Attorneys who practice criminal law discover evidence and info through the P's "open file" and through discovery motions. These two methods, along with D counsel's own investigation, reveal what evidence will be admitted against the D. When we speak of "discovery" in TX, we almost always mean

the D's right to discovery the evidence and the info the State possesses.

Other Ps restrict access to their files. HOWEVER, the TXL put an end to that practice in 2014 with the passage of the Michael Morton Act. Morton was falsely accused, convicted, and served 25 years in prison for a murder he didn't commit because ....

the P failed to reveal exculpatory evidence. The Act ensures that D counsel has greater access to evidence in the State's possession.

A D charged with family violence can also be held without bond for 48 hours while

the State gets a magistrate's order for emergency protection (MOEP). This gives the prosecutor time to meet with and gather info from the V, incorporate that info into a legal document signed by the magistrate in an effort to protect the V from future threats or violence, and serve it on the D.

Judge may NOT dismiss case based upon a pretrial belief that

the State will not be able to prove the crime BRD.

Only the attorney for the State and the grand jurors can question Ws, no other attorney or member of the public (except a testifying W) can address the GJ about a case it is considering. However, D counsel may appear before he grand jury if

the State's attorney permits it. This is NOT a common practice If D counsel is present to support or advise his client, he usually waits outside the GJ room. Other states permit defense counsel to be in the GJ room while the D is being questioned.

Though cases are assigned to the judge's court, they do not belong to the judge but to

the State.

Dismissals The charging instrument is an instrument of the state, so they are empowered to dismiss. The power to dismiss a case almost always rests with

the State. In Marmolejo, the State appealed after a JP negotiated a plea with the D in one case in exchange for dismissal in another. The Court stated, in the absence of specific authority, the TCt cannot dismiss a prosecution except on the motion of the prosecuting attorney. There is no constitutional, statutory, or common law authority of which this Court is aware permitting a TCt to dismiss a prosecution on its own motion pursuant to a plea bargain negotiated by D counsel and the court.

Any plea of guilty as part of a plea bargain agreement is tentative until

the TCt approves or rejects the agreement. The judge is not a party to the contract and is not bound by it.

While the felony plea must be accompanied by admonishments from the judge that substantially comply with the six listed in the Code, the misdemeanor plea only requires

the admonishment to warn family violence Ds of their loss of the right to possess or transfer a firearm.

If one GJ no bills a case,

the case may be presented to another GJ or represented to the same GJ following more investigation. In the end, it is the GJ who must decide whether to indict. The idea of a GJ is that it will be a shield between prosecution (State) and D. The GJ can prevent malicious prosecution, etc.

What happens at the arraignment?

the charges are read and the accused pleads guilty or not guilty The indictment is to be read at the time of arraignment. At this time the judge will ask the D whether he pleads guilty or not guilty to the charge. If the D does not enter a plea, the judge shall enter a plea of not guilty for him.

When reviewing a decision by a judge or magistrate to issue a search warrant, we apply a deferential standard of review because of

the constitutional preference for law enforcement officials to obtain warrants rather than conduct warrantless searches.

If an offense has been committed within this State and it cannot readily be determined within which county or counties the commission took place, trial may be held in

the county in which the defendant resides, in the county in which he was apprehended, or in the county to which he was extradited.

If venue is not specifically stated, then the proper county for prosecution is

the county in which the offense was committed. No venue statute specific to capital murder State need prove venue only by a preponderance.

Prosecutors work for the State of Texas, even though they are paid by

the county.

Misjoinder -

the court can either quash the charging instrument, and force you to retry it. Or they can force you to elect which charge you want to take to the jury. The general attitude of courts is that if the D does not object to joinder pretrial, they *waive* it.

When a motion to quash is granted,

the court loses its jx, and the D is no longer under the court's jx. However, the P may recharge the D as long as he acts within the SOL

Amendments and Abandonments The way it works is that the charging instrument is marked up. Prior to 1985, the rules allowed for charging instruments to be amended regarding form, but NOT substance. Prosecutors could amend charging instruments to correct missing things, but not change substantive things. EX: if they wanted to charge D with LIO, they would have to reindict. Rule 28.10 now allows amendments as to form and substance up to...

the day of trial.

_____ pays the cost of bail conditions, such as the ignition device, ankle monitor, etc.

the defendant

The main thrust of Rule 25.2's predecessor was to eliminate appeals where

the defendant had entered a plea of guilty or nolo contendere before the court as a result of a plea bargain and the punishment assessed did not exceed that agreed upon. The legislature wanted to curtail or eliminate the ability of plea-bargaining defendants to delay the execution of their sentences by taking meritless appeals.

Depositions can be oral or written, or they can take the form of written interrogatories. A witness who fails to appear at the designated time and place for the deposition can be held in contempt. The D has the right to attend the deposition, but the State may take steps to ensure that

the deposed person remains safe during questioning. If he D cannot attend the deposition, her attorney may request a continuance; a D who does not appear waives her right to attend.

When the affidavit is attached to the warrant, these documents should be considered together as defining the place to be searched, but

the description in the affidavit controls over the language in the warrant itself.

Regardless of the type of bond or the amount of bail, the bond lasts for

the duration of the cases unless the judge states otherwise.

POLICY: Plea bargaining represents a compromise where a small amount of meritorious claims where the pleas were involuntary, too bad, the needs of

the efficiency of the plea bargaining system is so important. The D knows and accepts the plea as a result the admonishments. We presume that the D gets the benefit of the bargain if the judge sticks to the plea bargain and that it is therefore voluntary. As long as the judge admonishes the D and the judge is going along with the recommended sentences, there is a presumption that the plea is voluntary.

Challenging a Search Warrant Warrant errors may not be discovered until D counsel has examined it closely. Perhaps warrant was executed six days after signed by magistrate, or the affidavit does not contain enough info to establish PC. If the warrant is deemed invalid or the search unlawful,

the evidence seized pursuant to that warrant may be suppressed.

Some Ps have a "open file policy" where

the file was available to D attorneys to freely peruse.

The facts submitted for the magistrate's probable cause determination are those contained within

the four corners of the affidavit and are to be read in a common-sense and realistic manner. A magistrate may draw reasonable inferences from the facts stated in the affidavit. When in doubt about the propriety of the magistrate's conclusion, we defer to all reasonable inferences the magistrate could have made

There is a growing movement to increase the number of personal bonds granted, not just in TX but across the nation. Some nonprofit advocacy groups argue that

the inability to pay bail disproportionately affects the poor, jails are unnecessarily overcrowded with pretrial detainees, most detainees would better serve themselves, their families, and their communities living and working in the community while their cases are pending, and few countries outside the US employee the use of bondsmen. Some communities in the US - Washington DC is one - have almost entirely done away with bail and bondsmen. These communities have had success with pretrial monitoring and personal bond; however, they are in the minority of jx in the US to eliminate bail.

In Perkins, the D was charged with murder. The State entered into plea negotiations, offering 25 years, before talking to Ws. The judge took the plea and agreed to sentence the D at a later date. Between the date of the plea and the date of sentencing, the P discovered the D was more culpable than previously believed. The State communicated this to the judge at the sentencing hearing, and the judge withdrew the D's plea over the D's objections. The TXCCA held

the judge cannot force a D to withdraw his plea over objection. The D was entitled to specific performance because the judge head already accepted the plea of 25 years.

Discovery Motions Motions for discovery provide another avenue for the D to learn about the State's evidence. Before the Morton Act, apart from Brady obligations, the State was not required to turn over anything to the D until

the judge granted the D's motion for discovery. The law now requires the State to permit D counsel to examine items within the State's possession "as soon as practicable after receiving a timely request from the D." The law does not specify that the request is in writing, but the general practice is to use written discovery motions.

A liberal practice has prevailed in Texas concerning the withdrawal of a guilty plea. A defendant may withdraw his guilty plea as a matter of right without assigning any reason until

the judgment has been pronounced or the case has been taken under advisement. When the judge has taken the plea and considered punishment evidence before sentencing the D. When, however, a defendant decides to withdraw his guilty plea after the trial court takes the case under advisement or pronounces judgment, the withdrawal of such plea is within the sound discretion of the trial court.

The process of creating a charging document differs depending on

the level of crime committed.

The abuse of discretion standard is

the most deferential to the trial court and its role as a fact-finding, credibility judger, and docket manager. Because the act of granting or denying continuances involves credibility determinations and docket management, appellate courts give TCts wide latitude and will not overturn the trial judge's decision absent an abuse of discretion.

Key takeaway on SOLs:

the most serious offenses have no SOL. General rule for theft: 5 years For all other felony offenses besides the serious ones and theft: 3 years For misdemeanor offenses - two years. SOL limits the time that the P can charge the D after which events occurred. Runs from the last date of the offense and runs until the charge is filed.

Good faith exception -

the only one based in statutory law. 38.23. Statutes states that it is an exception to the ER that the evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on PC. (Different from federal good faith exception, where if the warrant does not have PC, the officer may still rely on good faith exception unless it is obviously defective.) *TX exception - if the warrant doesn't have PC, good faith exception doesn't apply and warrant is invalid.*

Denying Continuance Motions The judge may grant or deny any continuance motion. If the judge denies it, her decision will be *reversed on appeal for abuse of discretion only if*

the party seeking the continuance factually establishes that she was harmed by not having more preparation time and the judge erred by denying the motion. The burden is onerous on the party and deferential to the judge; it will almost never result in a reversal.

A defendant may attack the validity of the indictment based upon the presence of an unauthorized person ONLY if

the person was in the room while the GJ was deliberating

Work Product EX: D in a DWI case caused a car accident, performed field sobriety tests at the scene and again at the police station, and provided a breath sample. According to the Code, the D can discover

the police report, accident report, W statements, scene and station videos, and breath test results. Though collected by govt actors, they are not work product. They are evidence. Imagine this DWI D wants a trial. At the moment her attorney informs the prosecutor about the possibility of trial, the P will begin to evaluate the case. The P will read the reports more closely, call the Ws and interview them, and he will watch the videos. The P may write a written report or otherwise document his opinion about the likelihood of success at trial. The P's personal observations, even if put in writing are work product. The questions he wants to ask Ws at trial and his closing argument are also work product. Thus, they are NOT discoverable to D counsel.

Grand Jury Selection GJs are chosen from

the pool of those who report for petit jury duty. This pool is created through random selection of individuals who are registered to vote and/or have TDL. The county should be able to get a fair cross section of the community by selecting jurors who are voters and/or drivers. Those selected are summoned to appear for jury duty Typically, district judges share responsibility in gathering members of a GJ; in counties with multiple district courts, there are just a handful of GJs at any one time. The GJ will be associated with the court's judicial number (e.g. the "grand jury for the 180th District Court"). When it is a judge's turn to put together a GJ, she will summon a group of potential jurors and ask whether any of them would be willing to serve as GJs and determine whether they are qualified to do so.

Examining Trials Not every jx regularly schedules them. Whether examining trials ever take place in the courthouse depends largely on

the practice and desire of local judges and members of the bar. Some counties routinely schedule them, whereas others rarely do. Nevertheless, the examining trial is a unique criminal procedure to TX

The role of the grand jury as an important instrument of effective law enforcement necessarily includes an investigatory function with respect to determining whether a crime has been committed and who committed it. To this end it must call witnesses, in the manner best suited to perform its task. A grand jury investigation is not fully carried out until every available clue has been run down and all witnesses examined in every proper way to find if a crime has been committed. It is only after the grand jury examines the evidence that a determination of whether

the proceeding will result in an indictment can be made. Without thorough and effective investigation, the grand jury would be unable either to ferret out crimes deserving of prosecution, or to screen out charges not warranting prosecution.

But art. 39.14 does not entirely eliminate the need for in-trial discovery of witness statements. Art. 39.14 does not extend equivalent discovery rights to

the prosecution, and so prosecutors will still need to use Rule 615 to obtain witness statements of defense witnesses.

Judges have discretion in bail decisions, but this discretion should be carefully employed. Judges must balance

the protection of the community, the victim, and the witnesses with the D's interest to remain free pending the resolution of his case. Judges must also balance the D's financial ability to make bail with an amount that is high enough to guarantee his presence in court.

37.07(g) of the Code DOES require that the P provide a similar notice that these types of prior acts may be used in

the punishment phase of trial (if requested by D counsel)

In evaluating whether police conduct during an investigatory detention is reasonable, common sense and ordinary human experience govern over rigid criteria. Whether a detention is an actual arrest or an investigative detention depends on

the reasonableness of the intrusion under all the facts. Reasonableness is measured by balancing the nature of the intrusion into an individual's Fourth Amendment interests against the public interest of legitimate government interest at stake; and must be judged from the perspective of a reasonable officer at the scene, rather than with the advantage of hindsight. Allowances must be made for the fact that officers must often make quick decisions under tense, uncertain, and rapidly changing circumstances. Id. Additional factors to consider in determining the reasonableness of the detention include the nature of the crime under investigation, the degree of suspicion, the location of the stop, the time of day, the number of suspects present, and the reaction of each suspect. The officer's opinion, while not determinative, is another factor to be considered. Also very important is whether the officers actually conducted an investigation after seizing the suspect.

Ds who plead guilty or no contest have a limited right to appeal following their plea. TXCCA: A defendant in any criminal action has a right to appeal. Tex. Code Crim. Proc. Ann. art. 44.02. However, a defendant in a non-capital felony case may waive any rights secured to him by law, including .

the right of appeal. Tex. Code Crim. Proc. Ann. art. 1.14.

The Code states that a capias may be issued anytime between ...

the setting of bail and before trial. Some examples: -When a new or subsequent charging instrument is filed -When a D forfeits her bond -When a judgment and a sentence are rendered in the D's absence, or -When a D has unpaid fines or court costs

The grand jury's operation generally is unrestrained by

the technical procedural and evidentiary rules governing the conduct of criminal trials.

Insanity Unlike competency, which relates to the time of the trial, insanity relates to

the time of the crime. Claims that you can't have the requisite mens rea because you were insane.

Texas has long held that a valid waiver of appeal prevents a defendant from appealing without

the trial court's consent.

The Judge's Role The State offers the plea bargain. The D attorney communicates the offer and advises her client about whether to accept it. The D chooses which plea to enter (not guilty, guilty, no contest). But the Code devotes the most attention to

the trial court's role in this process.

In balancing these interests, judges consider

the type of crime, facts of the alleged offense, D's criminal history, D's income, property, and financial obligations, D's work record, family ties, residency, ability to conform to previous bond conditions, and any outstanding cases and/or bonds the D has.

Regardless of the number of counts or the various manner and means paragraphs, trial courts must ensure through the jury's verdict form that:

the verdict is unanimous and there are no more convictions than counts.

However, in an open plea, the validity of a pretrial waiver of appeal is in question because

the waiver cannot be knowing and intelligent when potential errors cannot be anticipated and the consequences of the waiver are unknown. Though Ds are admonished orally and in writing that by pleading guilty they are waiving their right to appeal, some Ds attempt to appeal anyway.

Most courts notify a D in writing about the waiver of appeal following a plea;

the waiver may even be an additional, stand-alone form. In a plea-bargained case, this waiver prohibits the D from appealing.

If a D wins a Franks hearing,

the warrant is rendered legally invalid, and the fruits of the search suppressed.

5 YEARS LIMITATIONS PERIOD -

theft, robbery, kidnapping, burglary, child abandonment or endangerment, and insurance fraud

Ds are presumed competent to stand trial unless

they are proved incompetent by a POE. The D has the BOP. While the D is the one who must prove he is incompetent to stand trial, any number of person may develop and raise competency concerns about a particular D. D counsel may question competency after the initial interview, the P may question it after reading the offense report, or the judge may develop concerns during arraignment. Mentally ill persons who regularly cycle in and out of jail are often identified as incompetent by jailers following arrest. Any and all of these people may bring issues of mental competency to the TCT's attention. A suggestion of incompetency is the threshold requirement for an informal inquiry and may consist solely of a representation from any credible source that the D may be incompetent.

Combination Search/Arrest Warrants - 18.03 As long as you've satisfied the requirements of both,

they can be included together in the same document Remember that search warrant has time limit (5 days), but arrest warrants do not

TXL also amended provisions of the Code to ensure that indictment defects could be objected to and repaired pretrial but unless these defects were raised before trial ...

they could not invalidate an otherwise valid conviction.

Judge can change venue to an adjoining town if

they determine that a fair trial cannot be had. Must hear evidence, but there's no real standards on this. Can just make the determination.

A variance could involve a non-statutory allegation that has nothing to do with the allowable unit of prosecution and, therefore, cannot be a basis for saying that the proved offense is different from the one that was pleaded. "Stabbing with a knife" and "bludgeoning with a baseball bat" are two possible ways of murdering Dangerous Dan, but

they do not constitute separate offenses. These methods of committing murder do describe an element of the offense: the element of causation. But murder is a result-of-conduct crime. What caused the victim's death is not the focus or gravamen of the offense; the focus or gravamen of the offense is that the victim was killed. Variances such as this can never be material because such a variance can never show an "entirely different offense" than what was alleged.

Limited to the scope of the exigency. When police enter a home for an exigency, as soon as they determine the exigency is over,

they don't get to continue to look.

Executing the search warrant: Must show the warrant If not there ....

they should leave a copy

There are two ways a prosecutor can alter the charging instrument language once the document is complete:

through amendment or abandonment. Both are physical alterations the prosecutor makes to the face of the charging instrument.

TX courts have held that indictments charging a person with numerous counts of sexually assaulting more than one child, committing aggravated robbery and rape iwthin minutes of each other, and sexually assaulting children within a 4-year gap between count dates all met the single criminal episode standard. Neither statutory nor case law imposes a

time limit on a "criminal episode" when repeated commissions of the same or similar offense are alleged.

CHAPTER 5: BAIL There's a lot of stuff in the news regarding bail reform. As prison population skyrockets, the system has had to reevaluate. Disparate impact on poor/minorities. Two sides to bail reform in TX, arguing for it form completely perspectives. Purpose of bail:

to ensure D shows up for trial. Don't want to punish prior to trial (innocent until proven guilty), so can't just incarcerate. But want to prevent people from flight. That is the main purpose; give them a financial incentive to return and appear for trial.

In contrast to our treatment of statutory allegations, for non-statutory allegations we

tolerate some variation in pleading and proof. We tolerate "little mistakes" that do not prejudice the defendant's substantial rights but we will not tolerate a variance that really amounts to a failure to prove the offense alleged.

Furthermore, approaching a vehicle with a service weapon drawn does not

transform an investigative detention to an arrest.

Other aspects of 39.14 Disco Requires a timely request -

typically done 7 days prior to any pretrial hearing, the D files a disco motion

When the D pleads guilty to a jury, there is no reason for the first part of the bifurcated trial; therefore it is a ...

unitary trial. Unitary trials may look - to the untrained eye - like a bifurcated trial because in order to assess punishment, the jury must know the details of the crime. Jury trials on punishment following a guilty plea are uncommon. They typically happen when the State and the D are unable to agree on a negotiated plea, and the D believes jury punishment may be more favorable than judge punishment.

Felony Indictment -

uses grand jury indictment for felony cases. Grand jury typically sits in the jx where the crime occurred. They are filed where the grand jury sits Signed and dated by the GJ foreman

Discovery in TX is vastly different depending what side you are on. Used to be much less favorable for a criminal D prior to 2014. In 2014 the Michael Morton Act (MMA) was passed by the TXL which

vastly expanded the ability of the a D to receive evidence in a case from the state. Prior to that, the evidence available to the D was just what was available through a discovery motion. Thus, it was up to the court to decide what discovery to order at the request of the D. AFTER the MMA was passed and codified in 39.14 in the Code, the Code still requires a request to be made by a D, typically thru a discovery motion, although there is NO REQUIREMENT in the Code that a disco motion be filed to receive all the evidence that is required to be turned over under the MMA (39.14). But to formalize the request, and because motions for disco have been a tradition of TX practice for so long, D attorneys typically do still file disco motions.

Searches Generally What is a search?

violates a REP, trespass upon property. Issues: Does D have standing? For a legit search need: PC and Warrant or Exception

A valid waiver of the right to appeal is one that was made (3)

voluntarily, knowingly, and intelligently.

Tangible evidence -

weapons, drugs, seized physical evidence - are often kept in a police evidence room until trial. This helps maintain the chain of custody, which is important to establish when these items are admitted at trial. A simple request for the evidence, which is all that is required through the Morton Act, is not enough to gain access to physical evidence. If the D counsel wants to access, see, or inspect physical evidence, she *must file a motion for inspection.* Once her motion is signed by the Judge, the motion becomes an order for inspection and directs the State agent holding the evidence to permit D counsel the opportunity to inspect it by a date certain Inspection means more than just visual observation. EX: murder weapon. The D attorney can hold and examine it, permit an expert to examine it, or seek additional steps to have it tested forensically.

If he does not want to be under oath at examining trial, he may

write out his testimony and sign it; his testimony need not be sworn

The charging instrument document is one of the first documents created in any criminal case. It is how the D learns

what crime she is alleged to have committed and how she committed it.

D attorneys should carefully advise clients about parole time tables. However, there is a difference between

when a D becomes eligible for parole (parole eligibility) and when he actually will be paroled (parole attainment).

2) Investigative Detentions (Terry Stops) -

when the citizen yields to a display of authority under circumstances in which a reasonable person would believe that she was not free to leave. -Objective test. -Should only be brief, long enough to investigate what has raised officer's *reasonable suspicion that a crime is occurring or has occurred.* -"Investigative detention" implies that the obstructive act is for the purpose of actually investigating. So if no investigation is happening, detention cannot be considered investigatory and rises to the level of an arrest. -When an officer concludes an investigation (EX: issues traffic ticket), continued detention without further reasonable suspicion for a criminal act exceeds the scope of the first detention, making it unlawful. What turns a consensual encounter into an investigative detention? Smith case.

When an offense is committed outside the state or partially within the state, venue is appropriate

where the D is found or where at least one element of the crime occurred.

Franks Hearing Normally, the D is not allowed to attack the accuracy of the statements contained within the affidavit or search warrant. Just as the state is prohibited from shoring up missing facts in a search warrant affidavit that are not contained within the 4 corners of the affidavit, a D may not call witnesses to rebut the facts alleged in an A. There is a limited exception to the 4 corners rule when it comes to facial attacks by the D:

where the affiant made material, knowing misrepresentations in the A. When the D makes such an allegation, he is entitled to a Franks hearing, named after the well-known federal case, Franks v. Delaware (US 1978)

The party requesting a change of venue cannot dictate

where the case is moved if venue is granted.

venue [theft]

where the property is stolen or any county through which the stolen property is taken

The courts may not consider whether the D has posted or is capable of posting bail in determining

whether the D should be appointed counsel, except to the extent that it reflects the D's financial circumstances in general.

In determining whether the State acted in bad faith in failing to provide the name of the witness, we consider

whether the State intended to deceive, whether the State's notice left adequate time to prepare, and whether the State freely provided the defense with information.

The test to determine if a charging instrument alleges "an offense" is

whether the allegations in it are clear enough that one can identify the offense alleged. If they are, then the indictment is sufficient to confer SMJ. Put another way: can the court and D identify what penal code provision is alleged and is that penal code provision one that vests jx in the trial court. Courts must look to indictment as a whole, not to its specific formal requisites.

If the P withholds info from otherwise discoverable item, the D may request a judicial hearing to determine

whether the info is indeed non-discoverable. The judge will perform an in-camera inspection to determine whether the info is discoverable.

The standard for determining whether the evidence is legally sufficient to support a conviction is

whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime BRD.

When the court complies with the required 10 days notice, any matters not raised at the pretrial hearing or filed within 7 days prior to the hearing

will not be permitted to be raised or filed unless the court excused the party's lateness for good cause shown In this way, the court maintains some discretion over late filings or issues raised after the pretrial hearing.

General SITLA (non automobile) Cops can search

wingspan, lunging distance, pockets, etc. without any additional suspicion. Purpose: safety of the officer. Not based on finding evidence, but if they do find evidence, it is admissible. Search has to be contemporaneous or immediately thereafter.

The judge cannot sua sponte force a D to

withdraw his plea

If a court intervenes to change the plea, or add new condition, the D must be given the opportunity to

withdraw his plea.

A judge must warn the D she is not bound by the P's recommendations. If the judge departs from the negotiated plea, the judge must give the D an opportunity to

withdraw the plea. This is the rule in a felony case.

Search of a mouth, like all searches requires an exception. Here, SITLA SITLA encompasses area

within arm's reach or immediate control

"Immediately apparent" means

without necessity of any further search.

TXCCA: The Michael Morton Act, codified at Texas Code of Criminal Procedure art. 39.14, affords defendants substantial pre-trial discovery, requiring the state, upon request from the defendant, to produce and permit the defendant to inspect and copy various items, including

witness statements. In many instances, therefore, art. 39.14 eliminates the need, after the witness testifies on direct examination, for a defendant to request, and the court to order, production of a witness's statement.

upon request by the defense, the State must disclose the

witnesses who will be used at any stage of the trial. In the context of expert witnesses, this common law duty has been codified by statute, and has been extended to criminal defendants

The D or his counsel may present evidence for the GJ to consider. Likewise, this evidence does not have to comport with the rules of evidence. Even though it is prohibited in federal practice, in TEXAS, D attorneys may

write a letter to the GJ or submit a packet of info that offers the D's perspective about the case. Some D attorneys like this practice because it may lead to a no bill. Others find it risky because it leaves a record of the D or, if the D testifies, a record of his testimony, which may be used to impeach him later.

No matter what plea arrangement you enter into, you will always sign off on a document called "*admonishments and stipulations*," which sets out the offense you're charged with, the punishment range, and the list of rights you've agreed to waive. On most felony pleas, you'll initial each section, sign the document, and place your thumb print on each page so that the State can always prove you carefully read everything. Aside the from the judgment itself, the admonishments are the most important document you'll sign, as it will create a presumption that

your plea was voluntary. Appellate courts have for decades rallied behind the admonishments and stipulations as the Great Protector of the judgment. Courts have held that if the trial court properly admonished the defendant, there is a "prima facie" showing that the plea was both knowing and voluntarily made.