Select Page

Texas Criminal Procedure
South Texas College of Law Houston
Crump, Susan Waite

Texas Criminal Procedure Outline—Fall 2013—Susan Crump

I. General Overview

Houston Police Department

Who is the chief of the Houston Police Department?

· Charles McCullen

o HPD Chief is selected by being nominated by mayor, then approved

How does a case go through the system generally?

· Houston Police Department

Who investigates criminal cases?

· Houston Police Department –they have authority to investigate all state crimes

o They are a city department but have authority to investigate all state crimes.

· Harris County police investigates all state crimes within their county, although they usually investigate crimes outside the city.

o HPD investigate Houston crimes

Sheriffs

· Current Sheriff is Adrian Garcia

· Sheriffs and their deputies also have statewide warrantless arrest powers for any criminal offense (except certain traffic offenses) committed within their presence or view.

· They also may make arrests with a warrant anywhere in the state

· Responsibilities of the Harris County Sheriff’s Office include:

 Furnishing bailiffs in all state courts and warrant officers for criminal courts;

 Patrol officers in unincorporated areas;

 Detective and investigation services;

 Return of prisoners from other jurisdictions; and

 Collection of bond forfeitures.

· In order to better protect and serve the residents of Harris County, the sheriff’s office has divided the unincorporated area of the county into five patrol districts.

· The Harris County Sheriff’s Office is divided into ten bureaus:

o Each bureau is a major function of the department.

o Each bureau is commanded by a major.

o Each bureau is further divided into divisions/sections.

· The jurisdiction of the Harris County Sheriff’s Office often overlaps with several other law enforcement agencies, among them the Texas Department of Public Safety (Highway Patrol), the eight Harris County Constable Precincts, and several municipal police agencies including the city of Houston Police Department.

Constables

· HC Constable Precincts overlap jurisdiction with the sheriff’s office

· They are divided into precincts

· Constables can do anything a police officer or sheriff officer can do

· They are peace officers

· They serve subpoenas

· They go out and do retainers

· In Texas, constables and their deputies are fully empowered peace officers with countywide jurisdiction and thus, may legally exercise their authority in any precinct within their county.

o However, some constables’ offices limit themselves to providing law enforcement services only to their respective precinct, except in the case of serving civil and criminal process.

o Constables and their deputies may serve civil process in any precinct in their county and any contiguous county and can serve arrest warrants anywhere in the state.

o The duties of a Texas constable generally include:

§ Providing bailiffs for the justice of the peace court(s) within his precinct

§ Serving process issued there and from any other court.

§ Moreover, some constables’ offices limit themselves to only these activities but others provide patrol, investigative, and security services as well.

· Constables may make a warrantless arrest for any offense committed in their presence or view anywhere in Texas, except for offenses under Texas Transportation Code, Title 7, Subtitle C, which covers most moving traffic violations.

o However, they may enforce all state and local laws while in their county, including traffic offenses. Constables may serve arrest warrants anywhere in Texas.

Department of Public Safety (DPS)

· They are the people who have statewide jurisdiction to investigate felonies and misdemeanors.

· They concentrate on driving offenses

· Example:

o If you’ve been driving drunk, you’ll be arrested by DPS on a state highway.

· Within the DPS are the elite—the Texas Rangers

o Rangers are responsible for state-level criminal investigation, among other duties.

o Texas Rangers consists of over 140 rangers.

· The DPS is responsible for statewide law enforcement and vehicle regulation.

· The Texas Highway Patrol Division is the unit of the department most frequently seen by citizens.

o Uniformed troopers of the highway patrol are responsible for enforcing traffic and criminal law, usually in unincorporated areas, and serve as the Texas state police.

A. Duties of Prosecutors

District Attorney’s Office:

· County wide office

· DA has it’s own investigators

· Each court has an investigator/they don’t do a lot of the investigation

o They talk to witness/bring witnesses in for trial

Article 2.01

2.01—Duties of District Attorney

· Each DA will represent the State in all criminal cases in the district courts of his district and in appeals EXCEPT in cases where before his election, he’s been employed adversely.

· DA will represent the State when any criminal proceeding is before an examining court in his district or before a judge on habeas corpus, and he’s notified of the same, and is at the time within his district, UNLESS prevented by other official duties.

· Primary duty of DA (and special prosecutors) is to seek justice not to convict.

· DA will not suppress facts or secrete witnesses capable of establishing the innocence of the accused.

Article 2.02—Duties of County Attorneys

· The County Attorney shall attend the terms of contract in his county below the grade of district court, and

· Shall represent the State in all criminal cases under examination or prosecution in said county; and

· In the absence of the DA he shall represent the State alone, and

· When requested shall aid the DA in the prosecution of any case in behalf of the State in the district court.

· He shall represent the State in cases he has prosecuted which are appealed.

Who is the District Attorney?

· Mike Anderson’s wife, Devon Anderson, b/c he died.

o Belinda Hill, first assistant, was running the office b/c he has cancer.

Prosecuting Authority:

· There are a number of prosecuting authority in the state of Texas

o Each county has a DA office

· DA’s offices are responsible for filing, prosecuting, and appealing all felonies and class A and B misdemeanors.

o They do that in district and county courts

o In Misdemeanor, DA prepares affidavits, also known as complaints.

§ DA prepares the information

· Harris County—county courts hear the felonies and district courts hear the misdemeanors

· They also represent the State of Texas when the Attorney General is not called in

· They represent the State before the SC in indirect and direct appeal

What’s the DA’s main job?

· Seek justice

o 2.01 Code of Criminal Procedure

· DA’s primary duty is not to convict but to see that justice is done.

o So they don’t prosecute innocent people

Example:

· Assistant DA, believes the D is guilty, but doesn’t have enough admissible evidence to prove it

· What should they do?

· Try to plea bargain, but if the criminal doesn’t agree w/ plea bargain, then dismiss

Example:

What if you know a witness is lying/not trustworthy but will alibi the defendant, but D doesn’t know him?

· Give it to the defense

· Brady Law

o Must turn over potential exculpating evidence to the defense

o Can’t suppress evidence

Attorney General’s Office: (Greg Abbott)

· Elected in state wide election

· Attorney General’s Office gives advisory opinions on state law

o It’s not binding but it is influential, especially in criminal cases

· They represent the State in front of the U.S. Supreme Court when constitutionality is challenged.

Other offices have investigators as well:

· Texas Alcohol Beverage Commission (ABC Commission)

· Department of Park and Wildlife

· Independent School District

· Universities

Federal level office that conduct investigation:

· FBI

· Customs

· Post Office

Defense Counsel:

· When is a Defendant entitled to be represented by a defense attorney? When can they ask for an attorney to be present or to get an attorney if they do not have one?

o At the point of custody.

o At what stage of the proceeding?

§ At any critical stage of the proceeding

· When there is an adversary proceeding going on.

· Example:

o Arraignment (D has already been arrested/appeared in court and judge is about to arraign him—takes his name/identifies the D and asks how the D pleas)

· This is a critical stage

§ At all preliminary hearings

· Whether it be a bail hearing, a hearing to determine admissibility of evidence, discovery hearing

§ Entitled counsel at a line up

· Attorney makes sure there is a fair selection during line up

§ During Police Questioning

· Police questioning usually happens at the station house, but not always, can happen at the scene.

· If so, Miranda warnings have to be given and if the suspect says he wants a lawyer, police has to stop questioning. That’s when defense lawyers come in.

Two pre-requisites for a suspect’s right to an attorney:

· 1. Is the suspect in custody?

o Is he free to leave?

· 2. Is he being questioned?

Judges in Harris County are elected.

· Judges appoint their supporters (lawyers) to indignant cases

· So judges may have 3 defense attorneys, who they appoint cases to, a month and take in all the indigent cases in that month or maybe they are attorneys for the year/week, whatever they judges system is.

· Judges don’t want cases to go to trial b/c it takes up a lot of the resources of court. Judges want people to plead their cases.

o Pressure to be attorney of the week/month, etc.

· There is a public defender’s office, their ultimate goal is to provide indigent defense in juvenile court, misdemeanor court, and felony court

o Public defender’s have a huge case load b/c no one wants to pay for indigent defense

B. Jurisdiction of Texas Criminal Courts

Jurisdiction of Texas courts:

· Jurisdiction means that the court has power/authority to hear a case

· There are several types of courts in the State

4.01 What Courts have Criminal Jurisdiction

The following courts have jurisdiction in criminal actions:

1. The Court of Criminal Appeals;

2. Courts of appeals;

3. The district courts;

4. The criminal district courts;

5. The magistrates appointed by the judges of the district courts of Bexar County, Dallas County, Tarrant County, or Travis County that give preference to criminal cases and the magistrates appointed by the judges of the criminal district courts of Dallas County or Tarrant County;

6. The county courts;

7. All county courts at law with criminal jurisdiction;

8. County criminal courts;

9. Justice courts;

10. Municipal courts; and

11. The magistrates appointed by the judges of the district courts of Lubbock County.

Article 4.03: Courts of Appeals

· Court of Appeals will have appellate jurisdiction coextensive with the limits of their respective districts in all criminal cases except those in which the death penalty has been assessed.

· This article doesn’t apply to cases which have been appealed from:

o Inferior court to county court,

o The county criminal co

b) An offense designated a felony in this code without specification as to category is a state jail felony.

Young Prosecutors go sit through in-take

· In take is for the police officers—they would take 95% of their cases

· When public comes in—only 5% of the cases would be taken.

D. Punishments

Texas Penal Code:

SUBCHAPTER B. ORDINARY MISDEMEANOR PUNISHMENTS

12.21. CLASS A MISDEMEANOR.

An individual adjudged guilty of a Class A misdemeanor shall be punished by:

(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.

Sec. 12.22. CLASS B MISDEMEANOR.

An individual adjudged guilty of a Class B misdemeanor shall be punished by:

(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.

Sec. 12.23. CLASS C MISDEMEANOR.

An individual adjudged guilty of a Class C misdemeanor shall be punished by a fine not to exceed $500.

SUBCHAPTER C. ORDINARY FELONY PUNISHMENTS

Sec. 12.31. CAPITAL FELONY.

(a) An individual adjudged guilty of a capital felony in a case in which the state seeks the death penalty shall be punished by imprisonment in the Texas Department of Criminal Justice for life without parole or by death. An individual adjudged guilty of a capital felony in a case in which the state does not seek the death penalty shall be punished by imprisonment in the Texas Department of Criminal Justice for:

(1) life, if the individual’s case was transferred to the court under Section 54.02, Family Code; or

(2) life without parole.

(b) In a capital felony trial in which the state seeks the death penalty, prospective jurors shall be informed that a sentence of life imprisonment without parole or death is mandatory on conviction of a capital felony. In a capital felony trial in which the state does not seek the death penalty, prospective jurors shall be informed that the state is not seeking the death penalty and that:

(1) a sentence of life imprisonment is mandatory on conviction of the capital felony, if the case was transferred to the court under Section 54.02, Family Code; or

(2) a sentence of life imprisonment without parole is mandatory on conviction of the capital felony.

Sec. 12.32. FIRST DEGREE FELONY PUNISHMENT.

(a) An individual adjudged guilty of a felony of the first degree shall be punished by imprisonment in the Texas Department of Criminal Justice for life or for any term of not more than 99 years or less than 5 years.

(b) In addition to imprisonment, an individual adjudged guilty of a felony of the first degree may be punished by a fine not to exceed $10,000.

Sec. 12.33. SECOND DEGREE FELONY PUNISHMENT.

(a) An individual adjudged guilty of a felony of the second degree shall be punished by imprisonment in the Texas Department of Criminal Justice for any term of not more than 20 years or less than 2 years.

(b) In addition to imprisonment, an individual adjudged guilty of a felony of the second degree may be punished by a fine not to exceed $10,000.

Sec. 12.34. THIRD DEGREE FELONY PUNISHMENT.

(a) An individual adjudged guilty of a felony of the third degree shall be punished by imprisonment in the Texas Department of Criminal Justice for any term of not more than 10 years or less than 2 years.

(b) In addition to imprisonment, an individual adjudged guilty of a felony of the third degree may be punished by a fine not to exceed $10,000.

Sec. 12.35. STATE JAIL FELONY PUNISHMENT.

(a) Except as provided by Subsection (c), an individual adjudged guilty of a state jail felony shall be punished by confinement in a state jail for any term of not more than two years or less than 180 days.

(b) In addition to confinement, an individual adjudged guilty of a state jail felony may be punished by a fine not to exceed $10,000.

(c) An individual adjudged guilty of a state jail felony shall be punished for a third degree felony if it is shown on the trial of the offense that:

(1) a deadly weapon as defined by Section 1.07 was used or exhibited during the commission of the offense or during immediate flight following the commission of the offense, and that the individual used or exhibited the deadly weapon or was a party to the offense and knew that a deadly weapon would be used or exhibited; or

(2) the individual has previously been finally convicted of any felony:

(A) under Section 20A.03 or 21.02 or listed in Section 3g(a)(1), Article 42.12, Code of Criminal Procedure; or

(B) for which the judgment contains an affirmative finding under Section 3g(a)(2), Article 42.12, Code of Criminal Procedure.