Read the summary and the most important questions on (2) TX Criminal Procedure and Evidence

• MBE Set 1

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• What are the 3 items required in an ARREST warrant?

  (i) Name (or reasonably definite physical description) of person to be arrested; (ii) name of the offense; (iii) signature of the magistrate and his office. 

• When is an arrest valid w/o a warrant? 

  Warrantless arrests are impermissible unless probable cause exists and exception applies. Exceptions: (1) Officer had reasonable belief suspect was about to escape, (2) suspect found with stolen property, (3) D committed felony in presence of officer, (4) believed to have committed a felony found in a “suspicious place” (not suspicious place if found arrested around crime area but crime occurred 2 weeks ago.), (5) Domestic Violence, (6) Traffic Arrests

• What are the 5 items required in a SEARCH warrant?

  • (i) statement that it runs in the name of “The State of Texas”; 
  • (ii) a specification of the person, place, or thing to be seized; 
  • (iii) specification of items to be seized; 
  • (iv) an endorsement of the date & hour it was issued; 
  • (v) signature of the issuing magistrate.
  •  NOTE: must be executed w/in 3 days, exclusive of date of issuance and the day of the execution (so really 5 days).
    

• Is a combination warrant proper?

  Yes, a warrant can include both a search warrant and an arrest warrant. This is called a combination search and arrest warrant. However, the warrant must be based upon dependent PC to arrest and PC to search. (need PC for both)

• When is officer permitted to break down the door to arrest someone?

  Knock & Announce: (i) officer has probable cause to believe the person committed the felony; (ii) officer gives notice of the officer’s authority & purpose; & (iii) officer is refused admittance.

• What is the statute of limitations period for certain crimes? 

  • (i) No SOL: murder, manslaughter, leaving scene of accident resulted in death, indecency w/ child, sexual assault w/ child; 
  • (ii) general SOL for felonies: 3 years; 
  • (iv) 10 years: sexual assault, injury to elderly, arson; 

  
  

  • (v) 5 years: theft, burglary, robbery, kidnapping, abandoning/endangering a child, insurance fraud.
    

• Which party has the burden to prove venue is proper or improper and what standard of proof must be satisfied to meet that burden?

  The state has the BOP to prove proper venue. To meet state must prove by a preponderance of the evidence that the county is proper venue. D can challenge venue by showing that there is so great prejudice against him that he cannot receive a fair trial.

• What is needed to establish that D is incompetent to stand trial, and what is the burden of proof needed?

   D has to prove that (i) he lacks sufficient present ability to consult w/ his lawyer w/ a reasonable degree of rational understanding; OR (ii) lacks factual and rational understanding of the proceedings. 
  
  Must be proven by preponderance of the evidence by party who asserts incompetency. If found incompetent, D will be: released on bail for treatment or committed to a mental health facility. Prosecution will proceed once D has regained competency. 

• Within what amount of time should a magistrate decide whether probable cause exists to believe that a person committed a felony offense? What are the consequences if a magistrate fails to make a probable cause determination w/in that time? 

  Magistrate should decide whether probable cause exists w/in 48 hours of the arrest. Arrestees are normally taken before the magistrate of the county where arrested but if more expeditious, transfer to another county is proper. If not, D has the right to be actually released on bail and to have bail set so he can make it. This may require personal bond. Bails must be no more than $10,000. 

• Is a peace officer authorized, on the basis of a warrant issued in another county in TX, to arrest D in another TX county?

  Yes, an arrest warrant issued by a magistrate extends to any part of the state and any peace officer who has possession of the warrant is authorized to execute it.