Select Page

Texas Criminal Procedure
South Texas College of Law Houston
Burnett, Catherine Greene

I.      ARRESTS:
a.      Arrest topics:
                                                              i.      Key Concepts Overview
                                                             ii.      Some Basic Federal Principles
                                                           iii.      Warrant Application
                                                          iv.      Warrant Requirements
                                                            v.      Alternatives to Arrest Warrants
                                                          vi.      Execution
                                                         vii.      Warrantless Arrests
                                                       viii.      Traffic & Misdemeanor Offenses
                                                          ix.      Capias
I.                  Key Concepts Overview:
a.      We care about the legality of arrest b/c: unconstitutional to arrest without PC b/c requires due process as required under the 5th amendment to constitution: may result in suppression of evidence that flows from that arrest. Can still prosecute that D. can suppress confessions and the physical evidence the D has at the time of arrest.
b.      If it is declared illegal, the ramifications for criminal prosecution are: Exclusionary rule – the judge decides if the evidence was illegally obtained and whether it violated the constitution –D also files a pre-trial motion to suppress the evidence
                                            i.      TX: more protective than federal system b/c:
1.      TX: before arrest, MIRANDA not needed, during ARREST MIRANDA needed, AND AFTER arrest MIRANDA needed during custody + interrogation;
2.      FEDERAL: before arrest, MIRANDA not needed, during Arrest MIRANDA NOT needed, and after arrest MIRANDA needed during custody + interrogation
c.      The vehicle for challenging it are: motion to suppress evidence as a fruit of an illegal arrest, etc…
d.      Arrest occurs when there’s custody, a seizure for 4th amendment purposes, and a reasonable person doesn’t free to leave, can’t voluntarily leave; The functional equivalent of custody is based on totality of the circumstances to help analyze when one is in custody but NOT actually in hand cuffs, so still arrested for Miranda purposes. Examples: put in back of car without handles, surrounded;
e.      Consensual encounter is NOT an arrest b/c it’s a voluntarily encounter with police officer and can leave, and is not in custody. 
f.       What level of justification is required? Arrest requires PC, while a brief investigative detention only requires RS.
II.               Federal considerations:
a.      Arrest = Seizure (for 4th amendment purposes)
                                            i.      Custody =
1.      Submission to claim of lawful authority, OR
2.      Actual restraint
b.      Brief investigative detention = Seizure
c.      Consensual Encounter = NOT seizure
d.      No warrant needed for arrest in public place if have a chapter 14 exception – if suspect acting weird or odd in view of officer
III.           TEXAS ARREST WARRANT LAW:
a.     Arrest Warrant Overview:
                                            i.      Written order from Magistrate to Peace Officer commanding officer to take individual into custody [Art 15.01]                                            ii.      Person arrested when actually placed under restraint or taken into custody by officer or other person [Art 15.22]                                          iii.      Any magistrate may issue an arrest warrant
b.     Requirements of Warrant Application:
                                            i.      Application made by officer by filing sworn affidavit with Magistrate
                                           ii.      Affidavit MUST establish PC to believe that named or described individual committed a particular offense at a particular time and place à want to know the source of police officer’s knowledge: what he personally observed/experienced, magistrates look at 2 things to determine if PC exists from confidential informants:
1.      Basis of knowledge and
2.      Reliability of narrator (the hearsay STMTS that form officer’s belief and his PC)
                                         iii.      “Four Corners” review on appeal à so see if there’s PC for the arrest warrant; magistrate can only look at this affidavit to determine whether there is PC, and reviewing courts can only at this as well; Magistrate can’t ask extra questions that aren’t on record and then issue a warrant – neutral detached magistrate – want it to be complete and no supplements by off.
1.      Exception: Defense alleges there was a lie, a deliberate falsehood, or reckless disregard by police; then take out those perjured stmts, and see if the rest gives PC.
                                        iv.      Art 15.04 – 15.05
c.      Example: Supporting Affidavit
                                            i.      Miller v. State: Why was this affidavit insufficient to establish PC?
                                           ii.      PRACTICE TIP: Notice how D raised the issue and the burden of proof
d.     Warrant Requirements: Name, offense, sign and off o/ mag.
                                            i.      NAME of person to be arrested if known: if don’t know name, put FNU or LNU;
1.      Otherwise reasonably definite description:
a.      Now a DNA descriptor can be used by bar code for rape cases – so if have semen, have DNA markers, and can use that if don’t know who suspect is if they’re not in DNA database.
                                           ii.      STMT of particular offense person is suspected of committing
                                         iii.      Signature and office of issuing Magistrate
                                        iv.      Art 15.02
e.     Timing of Arrest Warrants: unlike search warrants, don’t have to be done immediately – fortwith; à always need PC for arrest or seizure; a brief investigative detention is a Terry STOP and needs RS as required by 4th amendment.
                                            i.      May occur AFTER charges have been filed
                                           ii.      CAUTION: Crane v. State:
1.      Mi

committed it in presence or view of Magistrate, who then orders arrest [Art 14.02] –ex. DWI
                                         iii.      Example: “In View”
1.      Romo v. State: concept: officer jurisdiction; Question: What other “exceptions” to officer authority might apply?
a.      See also, Art. 14.03(d):
                                                                                                                    i.      Felony
                                                                                                                   ii.      Chapter 42 (Offenses against Public Order)
                                                                                                                 iii.      Chapter 49 (Intoxication offenses)
2.      Willis v. State: Citizens arrest – Concept: Undercover drug transaction; Question: How close does officer need to be to qualify for “in view?” – cts take a liberal interpretation of in view; officer can be around the corner, see arrest, and that’s in view.
c.      Statutory exceptions: Suspicious Place:
                                            i.      Person found in suspicious place where PC exists that:
1.      Person has committed a felony, disorderly conduct, related breach of the peace, or public intoxication [Art. 14.03 (a)(1)] 2.      Person is about to commit offense [Art. 42.03(a)(1)]:
a.      Ex. It’s late, someone’s in front of Target with a crow bar dressed in black – PC: is it “likely” that person will commit an offense?
3.      Example: Suspicious Place:
a.      Johnson v. State: Concept: person returning to recent scene of crime; – usually has to be a place that a known crime occurred; unless it’s like a crack house; here, it’s an apartment where murder took place and handyman came back returning with keys and returned to scene of crime; Question: is there, should there be a temporal consideration? YES. Must be a short time, and officer still has to have PC that person committed a felony. Question: are place [or some places] in and of themselves “suspicious”? Question: what converts a “normal” place to a “suspicious” one? Place becomes suspicious b/c of articulable facts tied to this case.
Dyar: represents most extreme departure – DWI suspect in a car accident, police think he’s drunk driving, when they get there car is empty and smashed up – the police go to hospital where D taken and court treats hospital as a suspicious place for purposes of the police being able to arrest him b/c it was not an offense in