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Terms and Definitions
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A specific determination by the trier of fact (jury or judge) that is entered in the judgment of the court. Examples include a deadly weapon finding (which will delay the offender's parole eligibility) and a hate crime finding (which may increase the offender's range of punishment).
A request to a higher (appellate) court to review a case to determine whether errors were committed in the trial court that require a retrial or acquittal (release).
In a criminal case an arraignment takes place for the purpose of correcting a defendant's name in the information or indictment, if such be necessary, and hearing the defendant's plea. A defendant may waive arraignment.
A person has been arrested when he/she has been actually placed under restraint or taken into custody by an officer or person executing a warrant of arrest, or by an officer or person arresting without a warrant.
A written order from a magistrate, directed to a peace officer or some other person specifically named, commanding him/her to take the body of the person accused of an offense, to be dealt with according to law.
ATTEMPT (CRIMINAL ATTEMPT)
A person commits an offense if, with specific intent to commit an offense, he/she does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.
The primary purpose of bail is to secure the defendant's presence for trial. In setting the amount of bail, the judge considers the nature of the offense and the circumstances, under which it was committed, the future safety of the victim or his/her family and the community, and the defendant's ability to make bail. Bail includes a personal bond, a cash bond, or a surety bond. A person not released on bail remains in jail. The Texas Constitution provides that prisoners have the right to bail before conviction in all cases except:
- (1) capital offenses "when the proof is evident";
- (2) when the person charged with a felony offense:
- (A) has two prior felony convictions, the second conviction being subsequent to the first (both in point of time of commission and conviction);
- (B) committed the offense while on bail and under indictment for a prior felony; or
- (C) used a deadly weapon after being convicted of a prior felony;
- (3) a district judge may, after a substantial showing of guilt, deny bail to a person accused of a violent or sexual offense while on probation or parole for a prior felony; or
- (4) bail may be denied a person accused of a felony who had been released on bail pending trial and whose bail is subsequently revoked or forfeited for a violation of a condition of release related to the safety of a victim of the offense or to the safety of the community.
A defendant may not be released on bail pending the appeal from any felony conviction where the punishment equals or exceeds 10 years confinement or where the defendant has been convicted of an offense listed under section 3g(a)(l), article 42.12 of the Code of Criminal Procedure.
BAIL BOND (SURETY BOND)
A written undertaking entered into by a defendant and his/her sureties for the appearance of the defendant before the proper court to answer the accusation.
An officer of the court who acts under the direction of the judge of the court that the bailiff serves and who attends to the wants of the jury.
Refers to the process when a person is arrested and taken to jail and a record is made of the charges including photographs and fingerprints of the person arrested.
A written undertaking entered into by a defendant guaranteeing the defendant's appearance before the proper court to answer the accusation and secured by the deposit of a cash fund with the court.
CHALLENGE FOR CAUSE
An objection made to a prospective juror, alleging some fact which renders the juror incapable or unfit to serve on the jury. For example, a prospective juror is subject to a challenge for cause if he/she is a witness in the case. A challenge for cause may be made by either the prosecution or the defense. There is no limit to the number of challenges for cause either side may make. The judge decides all challenges for cause.
Formerly called "probation," it is the placement of a defendant by a court under programs and sanctions with conditions imposed by the court for a specified period during which criminal proceedings are deferred without an adjudication of guilt or punishment is probated and the imposition of sentence is suspended in whole or in part.
CONCURRENT SENTENCE CUMULATIVE (CONSECUTIVE OR STACKED) SENTENCE
When the same defendant has been convicted in two or more criminal cases, the judge may order: (1) the sentence in the first case to run at the same time (concurrently) with the other casets); or (2) the sentence in the second and subsequent convictions to begin to run only when the preceding sentence has ceased to operate (this is cumulative). XX
CONSPIRACY (CRIMINAL CONSPIRACY)
A person commits criminal conspiracy if, with intent that a felony be committed: (1) he/she agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense; and (2) he/she or one or more of them perform an overt act in pursuance of the agreement.
CONVICTED OFFENDER DNA DATABASE
A data bank of DNA profiles that is compiled of convicted offenders and is used to identify suspects in crimes where biological evidence is left by the perpetrator. Also known as CODIS (Combined DNA Index System), the DNA database requires adults who are convicted of murder, aggravated assault, burglary of a habitation, or any adult or juvenile registered as a sex offender, to submit a sample. More information is available at www.txdps.state.tx.us.
The person appointed by the court to prepare a verbatim record of a court proceeding by using written symbols in shorthand, machine shorthand, or oral stenography. DEADLY WEAPON FINDING An affirmative finding made by the trier of fact (jury or judge) beyond a reasonable doubt that the defendant used or exhibited a deadly weapon during the commission of or flight from a felony offense or the defendant was a party to the offense and knew that a deadly weapon would be used or exhibited. An inmate serving a sentence for an offense for which the judgment contains an affirmative finding is not eligible for release on parole until the inmate's actual calendar time served, without consideration of good conduct time, equals one-half of the sentence or 30 calendar years, whichever is less.
The accused in a criminal case.
The defendant may request the court in which a criminal case is pending to order the state before or during trial to produce and permit inspection and photocopying of certain evidence which is in the possession of the state. Each party may request disclosure of the identity of the other party's expert witnesses to be used at trial.
A convicted person may submit a motion for DNA testing if the material to be tested was not previously tested because DNA testing was not available, or because new testing techniques will provide more accurate results. after receiving the motion, the court may order DNA testing if:
- (1) the evidence to be tested is still in a condition to be tested;
- (2) the chain of custody of the sample is intact;
- (3) identity was at issue in the case;
- (4) the convicted person establishes by a preponderance of the evidence (more likely than not) a reasonable probability that he would not have been prosecuted or convicted if exculpatory DNA results had been obtained; and
- (5) the request is not made to unreasonably delay execution of the sentence or the administration of justice.
If the convicting court orders DNA testing, the court is required to conduct a hearing to determine whether the results are favorable to the convicted person and would have made it reasonably probable that the person would not have been prosecuted or convicted if the DNA results had been available before or during the trial.
The double jeopardy provisions of the United States and Texas Constitutions protect against:
- (1) a second prosecution for the same offense after acquittal;
- (2) a second prosecution for the same offense after conviction; and
- (3) multiple punishments for the same offense.
However, the same criminal act which violates both federal and state law may be prosecuted in both federal and state courts; the reasoning is that by violating the law of two separate sovereigns, a defendant commits two separate offenses.
Section 481.134 of the Health and Safety Code increases punishment for certain drug offenses:
- (1) in, on, or within 1,000 feet of a school or school property, or an institution of higher learning, a public or private youth center or a playground;
- (2) on a school bus; or
- (3) in, on, or within 300 feet of a public swimming pool or video arcade facility.
The accused in any felony case has the right to request an examining trial before indictment in the county having jurisdiction of the offense; the right terminates on the issuance of an indictment by the grand jury. There is no right to an examining trial in a misdemeanor case. An examining trial is conducted by a magistrate without a jury. The prosecutor has the burden of proving that there is probable cause to believe the accused committed the offense charged. At the conclusion of the examining trial, the magistrate is required to make an order committing the accused to jail, discharging the accused or admitting him/her to bail, as the law and facts of the case may require. Failure of the magistrate to make or enter an order within 48 hours after the examining trial has been completed operates as a finding of no probable cause and the accused must be discharged. The discharge of an adult accused at an examining trial does not bar later indictment by the grand jury.
The court-supervised surrender by one state (or nation) to another of an individual accused or convicted of an offense outside of its own territory, and within the territorial jurisdiction of the other which demands the surrender.
An offense so designated by law or punishable by death or confinement in a penitentiary. A person convicted of a felony offense is:
- (1) disqualified to serve as a petit juror;
- (2) ineligible for public office in this state unless pardoned or otherwise released from the resulting disabilities; and
- (3) not allowed to vote unless properly discharged from parole or community supervision and at least two years have elapsed from the date of discharge.
Three or more persons having a common identifying sign or symbol or an identifiable leadership who continuously or regularly associate in the commission of criminal activities.
Composed of 12 persons, the grand jury inquires into all offenses occurring in the county liable to indictment of which any member may have knowledge, or of which they shall be informed by the prosecutor or any other credible person. The grand jury is organized by the district judge and prospective grand jurors are summoned in the same manner as jury panels for the trial of civil cases in district courts, or after being selected by grand jury commissioners organized under chapter 19 of the Code of Criminal Procedure.
Latin for "you have the body." The writ of habeas corpus is a remedy, before or after conviction, when any person is held in custody. It is an attack by a person in custody upon the legality of that custody, and the traditional function of the writ is to secure release from illegal custody. Pre-trial habeas corpus may be used by a defendant to request a reduction in bail. Post conviction habeas corpus is available only to review jurisdictional defects, or denials of fundamental or constitutional rights; it may not be used to litigate matters which should have been raised on appeal. A prisoner convicted in state court may not obtain habeas corpus relief in the federal courts unless the prisoner has exhausted all of the remedies available in the state courts, or there is no adequate or effective state remedy to protect the prisoner's rights.
HATE CRIME FINDING
An affirmative finding made by the trier of fact (jury or judge) beyond a reasonable doubt that the defendant intentionally selected the victim or the property damaged or affected because of the defendant's bias or prejudice against a group identified by race, color, disability, religion, national origin or ancestry, age, gender, or sexual preference. Except for a first degree felony or a Class A misdemeanor, a hate crime finding increases the defendant's punishment to the punishment prescribed for the next highest category of offense.
A jury that cannot agree upon any verdict. The jury may be discharged and the case tried again if both parties agree to discharge the jury or the judge discharges the jury when it has been kept together for such time as to render it improbable that it can agree on a verdict.
The written statement of a grand jury accusing a named person of an offense.
INCOMPETENCY TO STAND TRIAL
A person is incompetent to stand trial in a criminal case if he/she does not have:
- (1) sufficient present ability to consult with his/her lawyer with a reasonable degree of rational understanding; or
- (2) a rational as well as factual understanding of the proceedings against him/her.
A defendant is presumed competent to stand trial unless proved incompetent by a preponderance of the evidence (greater weight and degree of credible evidence).
A written statement filed and presented in behalf of the state by the prosecutor, charging the defendant with an offense which may by law be so prosecuted.
To be found not guilty by reason of insanity, the defendant in a criminal case must prove by a preponderance of evidence that at the time of the conduct charged, as a result of severe mental disease or defect, the defendant did not know that his/her conduct was wrong.
INSTRUCTED VERDICT OF NOT GUILTY
When the state has finished presenting its evidence at trial, if it has failed to prove each and every element of the offense charged beyond a reasonable doubt, the trial judge may grant the defendant's motion to instruct the jury to find the defendant not guilty of the offense charged.
The written declaration of the court signed by the trial judge and entered of record showing the conviction or acquittal of the defendant.
The authority or the power of a court to try a case.
A person who is 10 years of age or older and under 17 years of age; or 17 or older and under 18 who is alleged or found to have engaged in delinquent conduct or conduct indicating a need for supervision as a result of acts committed before becoming 17.
The trial court may instruct the jury on a lesser uncharged offense where that offense is complete upon commission of some of the elements of the crime charged. The doctrine developed at common law to assist the prosecution in cases where the evidence failed to establish some element of the offense originally charged. For example, murder may be a lesser included offense of capital murder.
Includes: justices of the Texas Supreme Court, judges of the Court of Criminal Appeals, justices of the courts of appeals, district court and criminal district court judges, county judges, county court at law judges, justices of the peace, and municipal court judges of incorporated cities.
A trial judge has the discretion to terminate a trial if, for example, a verdict of conviction would have to be reversed on appeal due to an obvious procedural error in the trial, or the jury is unable to agree on a verdict (hung jury).
A new trial is the rehearing of a criminal case after a finding or verdict of guilt has been set aside upon motion of an accused. An accused is entitled to a new trial where, for example, material evidence favorable to the accused has been discovered since trial. Evidence is material only if there is a reasonable probability that, had the evidence been available to the defense, the result of the proceeding would have been different. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome.
Latin for "I will not contest it." It is a plea in a criminal case having the same legal effect as a plea of guilty, except that it may not be used against the defendant as an admission in any court suit based upon or growing out of the act upon which the criminal prosecution is based.
It is a Class C misdemeanor offense to possess an open alcoholic beverage within the passenger area of a motor vehicle, regardless of whether the vehicle is being operated, is stopped, or is parked.
A "pardon" exempts the recipient from the punishment assessed against him/her by a court. "Commutation" means the change of punishment assessed to a less severe one. The power to grant a pardon or commute a sentence is vested in the governor on the signed recommendation of the Board of Pardons and Paroles.
The discretionary and conditional release of an eligible prisoner sentenced to prison so that the prisoner may serve the remainder of his/her sentence under the supervision and control of the Board of Pardons and Paroles.
PARTY TO AN OFFENSE
A person is criminally responsible for an offense committed by the conduct of another if, for example, acting with intent to promote or assist the commission of the offense, he/she solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.
Includes, for example: sheriffs and their deputies; marshals or police officers of an incorporated city, town or village; rangers and officers commissioned by the Public Safety Commission and the Director of the Department of Public Safety; district attorney and county attorney investigators; and officers commissioned by a school district or a state institution of higher education.
Made to a prospective juror without assigning any reason. However, a juror may not be excluded because of race or gender. In capital cases in which the state seeks the death penalty, each side has 15 peremptory challenges; 10 in non-capital felony cases and capital cases in which the state does not seek the death penalty; and 3 in misdemeanor cases tried in the various county courts.
A written undertaking entered into by a defendant promising to appear before the proper court to answer the accusation, without any security.
The jury for the trial of a criminal case. Prospective jurors are randomly selected from the names of all persons on current voter registration lists from all the precincts in the county and the names of all citizens of the county who hold a valid Texas driver's license or personal identification card issued by the Department of Public Safety. In the district courts, the jury consists of 12 jurors; in the county courts and inferior courts, 6 jurors.
PETITION FOR DISCRETIONARY REVIEW
A petition (formal written request) seeking review by the Court of Criminal Appeals of a decision of a court of appeals.
The defendant in a criminal case may plead not guilty, guilty, or nolo contendere.
The agreed disposition of criminal charges between the prosecutor and defendant under judicial supervision.
PRESENTENCE INVESTIGATION REPORT
A written report prepared by a supervision officer before imposition of sentence by the judge concerning the circumstances of the offense with which the defendant is charged, the amount of restitution necessary to adequately compensate a victim of the offense, the criminal and social history of the defendant, and any other information relating to the defendant or the offense requested by the judge. The report must contain a proposed supervision plan describing programs and sanctions that the community supervision and corrections department would provide the defendant if the judge placed the defendant on community supervision.
PRESUMPTION OF INNOCENCE
All persons are presumed innocent and may not be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact he/she has been arrested, confined, or indicted, or otherwise charged with the offense gives rise to no inference of guilt at trial.
A hearing held at the judge's discretion to dispose of legal issues prior to trial to avoid delays after jurors and witnesses have been summoned.
Probable cause to arrest or search exists where the facts and circumstances within the knowledge of the person making the arrest or search, and of which he/she has reasonably trustworthy information, are sufficient in themselves to warrant a person of reasonable caution in the belief that a particular person has committed or is committing an offense, or the instrumentality of a crime or evidence will be found.
PROSECUTOR (PROSECUTING ATTORNEY; PROSECUTION)
The county attorney, district attorney, or other attorney who regularly represents the state in juvenile or criminal cases in a county's juvenile, county or district courts. The prosecutor in a municipal court is the city attorney.
PROTECTIVE ORDER OR MAGISTRATES ORDER
Issued by an appropriate court or magistrate for the protection of a victim or victims of family violence, the order may, among other things, prohibit certain communication or contact with the victims) by the person arrested for or found to have committed family violence. The local prosecuting attorney may assist the victims) in obtaining the order.
A set of initials or fictitious name chosen by a victim to designate the victim in all public files and records concerning the offense (see chapter 57, Code of Criminal Procedure), including police summary reports, press releases, and records of judicial proceedings.
The illegal initiation of action by law enforcement agencies or officers based on an individual's race, ethnicity, or national origin, rather than on any indication of criminal behavior. The Code of Criminal Procedure, article 2.131, prohibits a peace officer from engaging in racial profiling.
In a criminal trial the prosecution has the burden of proving the defendant guilty and it must do so by proving each and every element of the offense charged beyond a reasonable doubt.
A written order by a magistrate directed to a peace officer commanding him/her to search for certain property or thing and to seize it and bring it before the magistrate, or commanding him/her to search for and photograph a child and to deliver to the magistrate any of the film exposed pursuant to the order. A search warrant may not be issued unless sufficient facts are first presented to satisfy the issuing magistrate that probable cause exists for its issuance. A sworn affidavit setting forth substantial facts establishing probable cause must be filed in every instance in which a search warrant is requested. If the affidavit establishes probable cause that a person has committed an offense, the search warrant may also order his/her arrest. A search warrant must be executed within three days of its issuance. SENTENCE That part of the judgment, or order revoking a suspension of the imposition of a sentence, that orders that the punishment be carried into execution in the manner prescribed by law.
SEX OFFENDER REGISTRATION
Persons who are convicted of or placed on deferred community supervision for sexual offenses must register with their local law enforcement agency. Registered sex offender information is available to the public through the Texas Department of Public Safety. More information and a registry of offenders is available at FIND THE REAL LINK FOR RECORDS.
SOLICITATION (CRIMINAL SOLICITATION
A person commits an offense if, with intent that a capital or first degree felony be committed, he/she requests, commands, or attempts to induce another to engage in specific conduct that, under the circumstances surrounding his/her conduct as the actor believes them to be, would constitute the felony or make the other a party to its commission.
SUBPOENA OR SUBPOENA DUCES TECUM
Issued by the court or a clerk of the court, a subpoena may summon one or more persons to appear/testify before the court on a specified day. If a witness possesses any instrument of writing or other thing desired as evidence, a subpoena duces tecum may specify such evidence and direct that the witness bring the same with him/her and produce it in court.
Passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation.
Venue refers to the location where a trial is held. The trial court may, on its own motion or on the
motion of the defendant or state, order a change of venue and transfer the case to another county if the court determines after a hearing that the defendant or the state cannot receive a fair and impartial trial in the county in which the
case is pending (due to, for example, extensive pre-trial publicity).
A written declaration by the jury of its decision of the issue submitted to it in the case.
VICTIM IMPACT STATEMENT
Prepared by a victim (defined by article 56.01, Code of Criminal Procedure), it is used by law enforcement agencies, prosecutors, and other participants in the criminal justice process to record the impact of an offense on a victim and to notify the victim of relevant stages of the criminal justice process, including parole proceedings.
VICTIM OFFENDER MEDIATION
A program administered by the Victim Services division of the Texas Department of Criminal Justice that involves a structured face-to-face meeting of the victim and the offender.
VOIR DIRE EXAMINATION
Voir dire means "speak the truth." The prosecution and defense are entitled to a fair opportunity to question prospective jurors so that they may intelligently exercise their peremptory challenges.
The general term for a written order issued by the court or clerk and directed to a named person requiring the performance of a specified act.
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