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McClung's Texas Criminal Lawyer's Handbook |
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Table of Contents Chapter 1. Arrests §1:10 What Is an Arrest §1:20 Warrantless Arrests §1:21 Probable Cause Requirement §1:21.1 Establishing Probable Cause §1:21.2 Temporary Detentions Based on Reasonable Suspicion §1:21.3 Exclusionary Rule §1:30 Authority for Warrantless Arrests §1:31 CCP Art. 14.01. Offense Within View §1:31.1 Warrantless Arrests by Peace Officers §1:31.2 Who Is a Peace Officer §1:31.3 Warrantless Arrests by Private Citizens §1:31.4 Acts Constituting a Breach of Peace §1:31.5 Acts Not Constituting Breach of Peace §1:32 CCP Art. 14.02. Within View of Magistrate §1:33 CCP Art. 14.03. Authority of Peace Officers §1:33.1 Suspect’s Commission of Offense §1:33.2 Suspect Found in Suspicious Place §1:33.2.1 Places Found to Be Suspicious §1:33.2.2 Places Found Not to Be Suspicious §1:33.3 Assaults and Threats of Future Violence §1:33.4 Authority of Peace Officers §1:34 CCP Art. 14.04. When Felony Has Been Committed §1:34.1 Credibility of Information §1:34.2 Escape of Suspect §1:34.3 Insufficient Time to Procure Warrant §1:34.4 Satisfactory Proof of Escape §1:35 Preventing Consequences of Theft Under CCP Art. 18.16 §1:36 Rights of Police Officers Making Warrantless Arrests §1:36.1 Fresh (“Hot”) Pursuit §1:40 Pretext Arrests §1:50 Sources of Probable Cause §1:51 Information Gained From Victims §1:52 Information Gained From Ordinary Citizens §1:53 Information Gained From Police Officers §1:54 Information Gained From Informers §1:55 Information Gained From Anonymous Tips §1:60 Suppressing Warrantless Arrest §1:61 Art. 38.23 Jury Charge §1:70 Arrests Under Warrant §1:71 What Is an Arrest Warrant §1:72 What an Arrest Warrant Requires §1:72.1 Probable Cause Requirement §1:72.2 Accusation of Criminal Conduct §1:72.3 Signing by a Magistrate §1:73 Who May Issue Arrest Warrants §1:74 Suppressing Arrest §1:75 Suppressing Arrest Warrant §1:75.1 Objections to Arrest Warrants §1:75.2 Going Behind Affidavit and Warrant §1:75.3 Article 38.23 Jury Charge §1:76 Making Arrest Chapter 2. Search and Seizure: Property §2:10 Constitutional and Statutory Provisions §2:20 Search and Seizure — General Concepts §2:21 Reasonable Expectation of Privacy §2:21.1 In General §2:21.2 Where Reasonable Expectation Exists §2:21.3 Where No Reasonable Expectation Exists §2:22 Exclusionary Rule §2:22.1 Use of Evidence for Impeachment Purposes §2:23 Attenuation Doctrine §2:24 Standing to Object to Search and Seizure §2:24.1 Defendants Who Have Standing §2:24.2 Defendants Who Do Not Have Standing §2:24.3 Abandoned Property §2:25 What Constitutes a “Search” §2:26 What Constitutes a “Seizure” §2:27 Probable Cause for Searches §2:28 Good Faith Exception §2:29 Independent Source Doctrine §2:30 Inevitable Discovery Exception §2:40 Exceptions to Warrant Requirement §2:41 Consents to Search §2:41.1 Third Person Consent §2:41.2 Consents Following an Illegal Arrest §2:41.3 Valid Consents §2:41.4 Invalid Consents §2:42 Plain View Doctrine §2:43 Plain Touch Doctrine §2:44 The Community Caretaking Functions of Police Officers §2:44.1 The Cady Doctrine Community Caretaking Function §2:44.2 Emergency Doctrine (Extigent Circumstances) §2:44.3 The Automobile Impoundment/Inventory Doctrine §2:44.4 Crime Scene Exception §2:45 Prevention of Destruction of Evidence §2:46 Searches of Places Incident to Arrest §2:47 Protective (Cursory) Searches §2:48 Warrantless Entry of Residence Under Hot Pursuit §2:49 Water Safety Checks §2:50 Searches of Particular Places §2:51 Curtilage §2:52 Open Fields §2:53 School Searches §2:54 Administrative Searches §2:55 Border and Border Checkpoint Searches §2:55.1 Border Searches §2:55.2 Border Checkpoint Searches §2:56 Motor Vehicle and Bus Searches §2:56.1 In General §2:56.2 Investigatory Vehicle Stops §2:56.3 Roadblocks and License Checkpoints §2:56.4 Checking Identification Numbers §2:56.5 Searches of Persons During Stop of Automobile §2:56.6 Vehicle Inventory Searches §2:56.7 Containers in Vehicles §2:57 Homes §2:60 Motions to Suppress Evidence §2:61 Form: Motion to Suppress Physical Evidence (Search Without Warrant) §2:62 Article 38.23 Jury Charge §2:70 Searches Conducted With Warrant §2:71 Applicable Statutes §2:72 Who May Issue Search Warrants §2:73 Requirements of Affidavit §2:74 Probable Cause Requirement §2:75 Sources of Information Recited in Affidavit §2:76 Age of Information Recited in Affidavit §2:77 Description of Place to Be Searched §2:78 Description of Owner or Occupant of Premises §2:79 Description of Property to Be Seized §2:80 Misrepresentations in Affidavit §2:81 Misstatements, Errors and Omissions in Affidavits §2:82 Search Warrants for Persons §2:83 Evidentiary Search Warrants §2:84 Anticipatory Search Warrants §2:85 Motions to Suppress Fruits of Search Warrant §2:85.1 Motion to Suppress Physical Evidence (Search With Warrant) §2:86 Subsequent Search Warrants §2:90 Objections to Search Warrants §2:91 Article 38.23 Jury Charge §2:100 Going Behind Affidavit and Warrant §2:110 Searches of Persons Incidental to Search Warrants §2:120 Execution of Search Warrants §2:130 Search Warrant Returns Chapter 3. Search and Seizure: Persons §3:10 What Constitutes “Search” of a Person §3:20 What Constitutes “Seizure” of a Person §3:30 Degrees of Intrusion on Individuals §3:31 Stop and Talk (Mere Encounters) §3:32 Investigative Detentions (Terry Stops) §3:32.1 Degree of Suspicion for Investigative Detention §3:32.2 Scope of Detention §3:32.3 Invalid Investigatory Detentions (Terry Stops) §3:32.4 Searches of Persons During Investigative Detentions (Terry Searches) §3:32.5 Plain Touch Doctrine §3:33 Arrests §3:40 Searches of Persons Incident to Arrest §3:50 Searches of Persons During Stop of Automobile and Bus §3:60 Searches of Persons Incidental to Search Warrants §3:70 Inventory Searches of Persons §3:80 Searches of Persons at Airports, Bus and Train Stations §3:90 Invasive Body Searches §3:100 Article 38.23 Jury Charge Chapter 4. The Right to Counsel §4:10 Constitutional and Statutory Provisions §4:20 Right to Counsel in General §4:30 Fifth Amendment Right to Counsel §4:31 Invocation of Fifth Amendment Right to Counsel §4:31.1 Equivocal Invocation of Fifth Amendment Right §4:31.2 Sufficient Invocation of Right to Counsel §4:31.3 Insufficient Invocation of Right to Counsel §4:31.4 Limited Invocation §4:31.5 Invocation of Right by Suspect’s Attorney §4:31.6 Reinitiation of Communication by the Accused §4:31.7 When Officers Can Reapproach Suspect §4:32 Waiver of Fifth Amendment Right to Counsel §4:32.1 Valid Waivers §4:32.2 Invalid Waivers §4:40 Sixth Amendment Right to Counsel §4:41 Invocation of Sixth Amendment Right to Counsel §4:42 Waiver of Sixth Amendment Right to Counsel §4:42.1 Valid Waivers §4:42.2 Invalid Waivers §4:43 Sixth Amendment Critical Stage Analysis §4:43.1 Photographic Identification §4:43.2 Police Lineup §4:43.3 Handwriting and Voice Exemplars §4:43.4 Dental Impressions §4:43.5 Breath Tests and DWI Videotapes §4:43.6 Confessions §4:43.7 Arrest §4:43.8 Arraignment §4:43.9 Filing of Charges §4:43.10 Examining Trials and Preliminary Hearings §4:43.11 Indigency Hearings §4:43.12 Psychiatric and Competency Examinations §4:43.13 Trial §4:43.14 Revocation of Probation §4:43.15 Contempt Proceedings §4:43.16 Motions for New Trial §4:43.17 Appeals §4:43.18 Discretionary Review §4:43.19 Juvenile Proceedings §4:43.20 Guilty Pleas §4:44 Remedy for Sixth Amendment Violations §4:50 Trial Court Duty to Appoint Counsel §4:51 Statutory Provisions §4:52 Right to Appointment of Counsel in General §4:52.1 Ten-Day Rule §4:53 Establishing Indigence §4:54 Forms for Court-Appointed Counsel §4:60 Conflicts of Interest §4:61 Waiver of Conflicts of Interest §4:62 Situations Where Conflict Is Presented §4:63 Situations Where No Conflict Is Presented §4:64 Duty of Trial Court §4:65 Duty of Counsel §4:66 Replacement or Withdrawal of Counsel §4:67 Disqualification of Counsel §4:70 Right to Self-Representation §4:71 Statutory Provisions §4:72 In General §4:73 Waiver of Right to Counsel §4:74 Duty of the Trial Court §4:74.1 Valid Waivers of Counsel §4:74.2 Invalid Waivers of Counsel §4:74.3 Waiver of Waiver of Right to Counsel §4:75 Failure of Non-Indigent Defendant to Retain Counsel §4:76 Stand-By Counsel §4:80 Right to Counsel at Administrative and Prison Hearings §4:90 Right to Effective Assistance of Counsel §4:91 In General §4:92 Defendant’s Burden §4:93 Duty of Counsel §4:94 Raising Issue of Ineffective Counsel §4:95 Ineffective Counsel §4:95.1 Failure to Conduct Investigation §4:95.2 Failure to Conduct Discovery §4:95.3 Failure to Properly Carry Out Plea Bargaining §4:95.4 Failure to Properly Advise on Guilty Pleas §4:95.5 Failure to Properly Conduct Jury Selection §4:95.6 Failure to Interview and Present Witnesses §4:95.7 Improper Handling of Evidentiary Matters §4:95.8 Improperly Handling Jury Charge §4:95.9 Improper Handling of Punishment Phase §4:95.10 Probation Revocations §4:95.11 Appellate Matters §4:95.12 Attorney-Client Relations Chapter 5. Self-Incrimination §5:10 Constitutional and Statutory Provisions §5:20 Constitutional Protections §5:21 General Points §5:22 Comparison of Federal and State Protections §5:23 Times When the Fifth Can Be Invoked §5:24 When the Fifth Is Applicable §5:25 When the Fifth Is Not Applicable – Falsehoods §5:26 When the Fifth Is Not Applicable – No Incrimination §5:27 When the Fifth Is Not Applicable – Waiver §5:30 Invoking the Privilege §5:31 Privilege Must Be Asserted §5:32 Calling a Witness Who Will Assert the Privilege §5:40 Violation of Self-Incrimination Protection §5:41 General Points §5:42 Penalty Situation Threats §5:43 Lack of Knowing Waiver §5:50 Specific Situations §5:51 Discovery During a Search §5:52 Documents – General Points §5:53 Documents – Voluntarily Prepared §5:54 Fingerprinting §5:55 Physical Characteristics §5:56 Blood and Breath Tests §5:57 Handwriting Samples §5:58 Voice Exemplars §5:59 Post-Conviction Rehabilitation Programs §5:70 Psychiatric and Psychological Examinations §5:71 Statutory Provision §5:72 General Points §5:73 Required Warning and Notice §5:80 Pre- and Post-Arrest Silence §5:90 Immunity Agreements §5:91 Statutory Immunity Provisions §5:92 Purpose & Policy §5:93 Types of Immunity §5:94 Authority for Immunity Agreements §5:95 Procedure §5:96 Double Jurisdictional Immunity §5:100 Hearings on Preliminary Issues Chapter 6. Confessions §6:10 Constitutional and Statutory Provisions §6:20 Custodial Interrogation §6:21 “Custody” for Fifth Amendment Purposes §6:21.1 In General §6:21.2 “Custody” Status Test §6:21.2.1 Subjective Intent §6:21.2.2 Restriction on Movement §6:21.2.3 Probable Cause §6:21.2.4 Location of Questioning §6:21.2.5 Focus of Investigation §6:22 “Custodial Interrogation” Defined §6:23 Agency Relationship §6:24 Examples of Non-Interrogation in Custodial Setting §6:24.1 Statements to Fellow Inmates §6:24.2 Statements to State Caseworkers §6:24.3 Spontaneous Oral Statements §6:24.4 General and Routine Questions §6:24.5 Overheard Statements §6:24.6 Public Safety Exception §6:24.7 Questioning by Civilians §6:25 Non-Custodial Interrogation §6:26 Examples of Non-Custodial Interrogation §6:26.1 Statements to Probation Officers §6:26.2 Traffic Stops §6:26.3 Statements to Caseworkers |