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


TEXAS CRIMINAL PROCEDURE, Reamey & Bubany 11th Ed. (Academia Press)

Introductory Material

· Facts about Harris County/City of Houston

o Chief of HPD: McClelland

o Harris County Sheriff: Ron Hickman

§ Generally, will not investigate in Houston City Limits

o Constables: have county wide jurisdiction as well and are divided into precincts

§ Usually serve civil and criminal subpoenas and arrest warrants

§ Jurisdiction is also in contiguous counties

o Harris County DA

§ Prosecuting crimes occurring in the county

§ Have investigators assigned to courts

o Department of Public Safety

§ The elite(?) Texas Rangers

o Judges in Harris County are elected

General Overview

· Duties of Prosecutors (TCCP 2.01-.02)

o Duties of District Attorney

§ Represent the State in all criminal cases in the district courts of his district

· Exception: if he was previously employed adversely

§ Represent the State when any criminal proceeding is before an examining court in his district or before a judge on habeas corpus

§ Primary duty is to seek justice not to convict

o Duties of County Attorney

§ Shall attend the terms of contract in his county below the grade of district court

§ Represent the State in all criminal cases under examination or prosecution in said county

· Represent the State in absence of the DA

§ Aid the DA in the prosecution of any case on behalf of the state in the district court

o Brady Law

§ Must turn over potential exculpating evidence to the defense

§ Can not suppress evidence

· Jurisdiction of Texas Criminal Courts (TCCP 4.01, 4.03-4.08; 4.11; 4.14)

o The following courts have jurisdiction in criminal actions

§ The Court of Criminal Appeals

· Final appellate and review jurisdiction in criminal cases

· Review by Court of Criminal Appeals is not a matter of right but of sound judicial discretion

§ Courts of Appeals

· Has appellate jurisdiction coextensive with the limits of their respective districts in all criminal cases except those in which the death penalty has been assessed

§ The district courts

· Original jurisdiction in criminal cases of felony and all misdemeanors involving official misconduct and of transferred misdemeanor cases

§ The County Courts

· All misdemeanors of which exclusive original jurisdiction is not given to the justice court and when fine is $500+

§ Justice courts

· Original jurisdiction in criminal cases punishable by fine only or punishably by fine and a sanction not consisting of imprisonment

§ Municipal courts

· Classification of Offenses (TPC 12.03-.04)

o Misdemeanors

§ Class A

· 1 year in jail and $4k

§ Class B

· 180 days in jail and $2k

§ Class C

· No jail time, just a fine

· Not entitled to an attorney, but can bring one in

· JP court and Municipal Court

o Felonies

§ Capital Felonies

· Life

§ 1st Degree Felonies

§ 2nd Degree Felonies

§ 3rd Degree Felonies

§ State Jail Felonies

· Punishments (TPC 12.21-.23, 12.31-.35)

Arrest with Warrants

· Introduction

o It is important to note that even an illegal arrest may not invalidate a conviction

§ However, it may determine the admissibility of evidence seized during the arrest and the officer may be subject to civil liability

o The legality of an arrest is usually tested in a suppression hearing held pretrial

o Neither TX or the US constitutions forbid warrantless arrests

o In TX, warrantless arrests are per se unreasonable unless they fall under one of the exceptions

o Officer must also arrest in jurisdiction he belongs to, unless one of the statutory exceptions applies

§ Arrests outside their jurisdiction or outside of the exceptions can result in the arrest being illegal and evidence inadmissible

· When does an Arrest Occur? (TCCP 15.22)

o A defendant may be arrested in two different ways

§ Arrested first then charged with a crime

· When arrest warrant is issued before the charges are filed the arrest warrant is called a warrant

§ Charged with crime first then arrested

· When the arrest warrant is issued after the charges are filed, that arrest warrant is called capias

o Bill of rights (4th amendment) gives

ssion of the offense, as definitely as can be done by the affiant

§ 4) It must be signed by the affiant (officer) by writing his name or affixing his mark

· Arrest Warrant Affidavit Requirement (TCCP 38.23)

o An affidavit that supports arrest warrant is also called the complaint (facts supporting probable cause for the arrest warrant)

o TX has traditionally adhered to the four corners approach to affidavit (complaint) review

§ Meaning that probable cause must be determined by reference to the allegations and facts contained within the 4 corners of the complaint rather than by other facts made known to the reviewing magistrate

o Miller v. State – this case reinforces the 4 corner doctrine

§ Cannot make conclusory statements that police officer has probable cause

§ Public Policy – keeps everybody honest and requires only looking to affidavit

§ Affidavit must have probable cause and burden of justifying arrest is on the state

§ TPC 38.23: Evidence not to be used – no evidence obtained by an officer or other person in violation of any law shall be admitted against the accused at trial (in criminal case)

· Arrest After Changes are filed; the Capias (TCCP 27.01, 23.01-.05)

o When the arrest warrant is issued after the charges are filed, that arrest warrant is called capias

o For filing charges the document has two different names depending on if the crime is a felony or misdemeanor

§ Felony – the indictment becomes the charging document (after previously being an information)

· Must have PC within 24 hours

§ Misdemeanor – the charging document is called the information

o Charging document order: DA uses a complaint –> DA files information à information becomes indictment by grand jury (if a felony)

o Requirements of a Capias