Pre-trial and Trial Issues
This section contains a compilation of articles that discuss every issue that can be raised in a DWI trial from initial stop, search and seizure, pretrial motions, discovery, jury selection, expert testimony and qualifications, sentencing, and post-trial issues. Many articles in this section have been gathered from various Texas State Bar criminal seminar materials, and we gratefully acknowledge the staff at the State Bar for allowing us to access these materials for our web site.
To view articles, click on the links below. To read most articles, you must have Adobe® Acrobat® Reader® installed.
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Admissibility of Horizontal Gaze Nystagmus Evidence Source - Prosecution | A 32-page article prepared by the American Prosecutors Research Institute contains an excellent discussion of the basic elements of the HGN test, the scientific research supporting its reliability, foundational hurdles to its admissibility, and discussion of the prosecutors approach to the use of the HGN test in a courtroom setting. The article also contains an excellent bibliography of resource materials for the HGN test.
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Apprendi and State Courts Source - Texas State Bar | This 45-page paper was presented at the Advanced Criminal Law Course in 2005, and contains a detailed discussion of the United States Supreme Court decision, Apprendi v. New Jersey which held that when facts other than prior convictions are used to increase a defendant’s punishment, those facts must be submitted to the jury and proved beyond a reasonable doubt. The paper discusses the cases leading up to this decision, how this decision will affect various Texas offenses, the court's charge, and other related pretrial and trial issues implicated.
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Beyond the Story of a Man Named Brady: The Prosecutorial Duty to Disclose Under the Due Process Clause Source - Texas State Bar | This 17-page paper, presented at the Advanced Criminal Law Course in 2005, contains a detailed discussion of the prosecution's duty to disclose under the due process clause and the Brady decision. It also puts the Brady decision in context by discussing the development and evolution of the prosecutors ethical duty to disclose under the Due Process Clause, discussing pre-Brady decisions, the effect of the Brady decision, and statutory extensions through the discovery process.
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Challenging Eyewitness Identification Evidence Source - Texas State Bar | This 23-page paper, presented at the Advanced Criminal Law Course in 2003, discusses the psychological research on the reliability of eyewitness memory, the factors which affect the accuracy of eyewitness testimony, and the approach to take when challenging eyewitness evidence from a defense perspective in both state and federal court. It also discusses the Texas Rules of Evidence, and the admissibility of expert testimony, as well as the Kelly and Daubert standards for the introduction of such testimony.
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Confessions Source - Texas State Bar | This 23-page paper, presented at the Advanced Criminal Law Course in 2005, discusses recent changes in confession law, dealing with confessions once they are admitted, and concludes with a thorough summary of the basic case law dealing with confessions. It also contains an extensive set of references which can be used by the defense to challenge a confession, or by the prosecution to meet such a challenge.
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Crawford, The Hearsay Rule and the Future Source - Texas State Bar | This 43-page paper, presented at the Advanced Criminal Law Course in 2005, contains a detailed examination of the Supreme Court's decision in Crawford v. Washington (2004), and its effect on the hearsay rule and the Confrontation Clause of the Constitution. There is also a functional analysis of the admissibility of documents in criminal cases under the business records and public records exceptions to the hearsay rule after Crawford, and raises questions for judges and attorneys to consider about the future of the hearsay rule after Crawford.
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Cross-Examination and Impeachment Supplement Source - Texas State Bar | This 51-page paper, presented at the Advanced Criminal Law Course in 2005, supplements and contains the original article, Cross-Examination and Impeachment which was presented at the 2004 Advanced Criminal Law Course. This supplement contains additional material concerning the scope of cross-examination and witness bias and also contains a discussion of how the Supreme Court opinion in Crawford v. Washington (2004) will impact the practice of cross-examination. In addition, it provides a compilation of Texas cases that address Crawford and its application to testimonial hearsay.
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DWI: A Trial Notebook Outline Source - Texas State Bar | This is an 86-page paper, presented at the Advanced Criminal Law Course in 1998 which outlines in detail every aspect of representing a criminal defendant on a DWI charge. It discusses all aspects of the case from arrest to appeal, discussing applicable statutory and case law, and contains extensive pretrial and trial motions and supporting briefs. It also contains a section dealing with driver’s license suspensions, but that section should be used by the reader as background only since many of the provisions relating to license suspensions have been amended since the writing of this article.
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DWI Law Source - Texas State Bar | This 36-page paper, together with an extensive eight page appendix, was presented at the Advanced Criminal Law Course in 2001, and contains a well-balanced, objective review of statutory and case law relating to every aspect of a DWI stop, arrest, and trial. Subjects covered in detail include probable cause for stop and arrest, implied and actual consent for breath and blood specimens, retrograde extrapolation, the taking of blood and urine specimens, sufficiency of evidence at trial, and legislative changes through the year 2001.
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DWI - Prosecution Perspectives Source - Texas State Bar | A 12-page paper, presented at the Advanced Criminal Law Course in 2005, which discusses relevant DWI statutes, proposed changes in DWI law, police investigation techniques, charging instruments, pretrial preparation, voir dire and trial, and the use of experts from a prosecution perspective.
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Ethics and Attorney Misconduct Source - Texas State Bar | This 46-page paper, presented at the Advanced Criminal Law Course in 2005, contains a detailed discussion of Texas State Bar Ethics Rules relating to the creation and existence of the client-lawyer relationship when representing a criminal defendant. Subjects discussed in detail include objectives of representation, client fees, confidentiality, conflicts, the lawyer's role as an advocate, non-client relationships, and contempt under both Texas and federal law.
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Expert Testimony Source - Texas State Bar | This 60-page paper, presented at the Advanced Criminal Law Course in 2004, discusses the evolution of the subject of expert testimony in Texas from Frye v. United States (1923) to the Texas Court of Criminal Appeals decisions in Kelly and Daubert. In addition to a detailed listing of applicable state and federal case law, the article discusses the principles governing the admissibility of expert testimony under Rule 702, opinion testimony under Rule 703, facts and data underlying expert opinions under Rule 705, the indigent’s right to a court-appointed expert, and the State's discovery of defendant’s expert witnesses.
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Extraneous Offenses Source - Texas State Bar | This 13-page paper, supplemented by four pages of 2005 case law updates, was presented at the Advanced Criminal Law Course in 2005. It contains a detailed listing of Penal Code, Code of Criminal Procedure, and Evidence Code provisions that relate to the admissibility of extraneous offenses, as well as an extensive Table of Authorities listing applicable federal and state decisions. It discusses in detail common-law extraneous offense exceptions, Rule 404 (B) evidence (other crimes, wrongs, or acts), use of extraneous offenses for impeachment, extraneous offense evidence in sexual offenses and offenses involving children, and use of extraneous offenses during the punishment phase of trial.
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Eyewitness Identification Source - Texas State Bar | This 20-page paper, presented at the Advanced Criminal Law Course in 2004, is a follow-up to the paper entitled Challenging Eyewitness Identification Evidence presented at the Advanced Criminal Law Course in 2003. It contains many of the same statutory and case law references, with some additional detailed discussion relating to the types of identification procedures used for eyewitness identification.
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Fourth Amendment Issues: Arrest, Search & Seizure State and Federal Law Update Source - Texas State Bar | This 63-page paper was presented at the Advanced Criminal Law Course in 2004. The article contains a detailed discussion of the following issues dealing with initial stop, search, arrest and seizure: expectation of privacy; standing to assert constitutional rights; probable cause for stop, detention, and search; warrant requirements and confidential informants; warrantless searches and arrests; Terry detentions and searches; racial profiling; knock and announce requirement; the Exclusionary Rule; Motions to Suppress; and appellate rules.
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Hearsay and Confrontation Source - Texas State Bar | This 13-page article was presented at the Advanced Criminal Law Course in 2004, and discusses in detail the facts, holding and reasoning of the United States Supreme Court decision in Crawford v. Washington (2004). There is a detailed discussion of the application of the Crawford holding two statements offered by the defendant as well as those offered by the state, the test for whether a statement is "testimonial," and specific discussion of testimonial statements under differing fact scenarios. There is also a discussion of recent hearsay case law.
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Insanity, Incompetency and Mental Retardation Source - Texas State Bar | This 30-page paper was presented at the Advanced Criminal Law Course in 2005. It contains an excellent general discussion of the difference between mental retardation and mental illness and the use of insanity as a defense in Texas criminal cases. It also contains an excellent discussion of the concept of competency to waive Miranda rights and to give a voluntary statement, and competency to stand trial. The first 15 pages of the article deal with the topics of insanity, competency, and mental retardation. The remainder of the article focuses on the application of these concepts in a capital murder case.
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Jury Charges Source - Texas State Bar | This 38-page paper was presented at the Advanced Criminal Law Course in 2005, and discusses the statutes and constitutional provisions that govern jury instruction practice in a criminal trial. This article discusses the basic process of assembling a jury charge, general charging considerations including content and format, appellate standards of review, and specific matters for which jury instruction may be appropriate in non-capital cases. It also references several other excellent treatises which represent comprehensive resources for jury instruction practice issues.
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Jury Instructions Source - Texas State Bar | This 50-page paper was presented at the Advanced Criminal Law Course in 2003. It contains an excellent discussion of every issue that can arise in a criminal trial in relation to the charging of the jury, both in the guilt/innocence phase and punishment phase of the trial. The court's charge is broken down into 12 specific sections and each section is discussed in detail. There is also detailed discussion regarding charging the nature of the conduct of verses result of the conduct (culpable mental state) and the law of parties, application paragraph, multiple counts, lesser included offenses, defenses, 20 different evidentiary instructions, reasonable doubt and presumption of innocence, concluding instructions and verdict forms. The article concludes with a discussion of the preservation of charge error.
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Pleas Source - Texas State Bar | This 10-page paper, presented at the Advanced Criminal Law Course in 2004, although written from a prosecution point of view, contains a balanced discussion of the legal duties of the prosecutor, defense attorney, and the presiding judge in relation to the initiation and conclusion of the plea bargaining process. The article contains practical advice about discovery, offer and counter-offer and each participant's role in the process.
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Petit Jury Selection and Composition Source - Texas State Bar | This 114-page paper, presented at the Advanced Criminal Law Course in 2005, is an exhaustive treatment of any issue that can arise in relation to the selection, voir dire, disqualification, peremptory challenge, and seating of a jury in both state and federal criminal trials. It also discusses the subsequent disqualification of a selected juror, and concludes with an extensive discussion of jury selection in capital cases.
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Pretrial Motions in State Court | July 18, 2005 Source - Texas State Bar | This 48-page paper, including 22 pages of discussion and 26 pages of pretrial motions and orders, was presented at Advanced Criminal Law Course in 2005. Subjects discussed in the paper include time limitations, pretrial hearing procedures, motions to quash, notice of insanity, attachment, jeopardy, motions to suppress evidence and confessions, entrapment, discovery, state's right to appeal, election for the jury to assess punishment and application for probation, and new legislation.
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Punishment Evidence (2005) Source - Texas State Bar | This 10-page article was presented at the Advanced Criminal Law Seminar in 2005. It discusses in detail the various types of evidence that may become admissible during the punishment phase of the criminal trial. Types of evidence discussed are: circumstances of the offense and res gestae facts surrounding the offense; previous criminal history; juvenile history; unadjudicated crimes and bad acts; previous conduct during supervision; character evidence; and expert and lay testimony. Each section contains references to controlling statutes as well as applicable case law.
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Recent Trends in Breath and Blood Testing in Intoxication Cases Source - Texas State Bar | This 17-page article was presented at the Advanced Criminal Law Course in 2005. It begins with a discussion of recent breath testing cases decided by the Texas Court of Criminal Appeals (Stewart and Mechler), followed by recent Court of Appeals decisions involving breath and blood testing issues. There is also a detailed discussion of retrograde extrapolation, and recurring breath test issues such as temperature and the Intoxilizer computer source code. Blood testing issues including HIPAA and implied consent under the Texas Transportation Code are discussed with relevant statutory and case law citations.
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Search and Seizure | State and Federal Law Source - Texas State Bar | This 148-page paper, presented at the Advanced Criminal Law Course in 2005, is a significant expansion of a similar 63-page article entitled "Fourth Amendment Issues: Arrest, Search & Seizure" presented at the Advanced Criminal Law Course in 2004. Its outline follows the previous article, but addresses the following subjects in much more detail and with additional references: initial stop, search, arrest and seizure; expectation of privacy; standing to assert constitutional rights; probable cause for stop, detention, and search; warrant requirements and confidential informants; warrantless searches and arrests; Terry detentions and searches; racial profiling; knock and announce requirement; the Exclusionary Rule; Motions to Suppress; and appellate rules.
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Ten DWI Statutes Everyone Should Know Source - Texas State Bar | This 20-page paper, presented at the Advanced Criminal Law Course in 2003, contains an excellent discussion of what a criminal defendant feels is important in a successful resolution of the case, a discussion of the cost of a DWI conviction to the defendant, both financially and socially, and a brief discussion of the 10 statutes the author feels are most important to remember when handling a DWI case. Driver’s license suspension periods and conditions of probation are discussed, and there is a very useful spreadsheet appendix setting forth occupational license waiting periods and driver’s license suspension periods. The reader is cautioned that the information contained in this article was current through 2003 and should be updated to include changes in those waiting and suspension periods.