Examining Trials and Grand Jury Hearings

• Author: Robert K. Gill/Mark G. Daniel
• Pages: 361-392

11-1

CHAPTER 11

EXAMINING TRIALS AND

GRAND JURY HEARINGS

I. Examining Trials

§11:01 In General

§11:02 Motion for Examining Trial

II. Grand Juries

A. Grand Jury Impaneling

1. Equal Protection and Fair Cross-Section Violations

§11:10 Statutory Law

§11:11 Violation Occurs When Identifiable Group Is Excluded

§11:12 Defendant’s Standing

§11:13 Elements of Violation

2. Challenging the Array

§11:20 Statutory Law

§11:21 Challenge Must Be When the Array Is Impaneled

3. Quashing the Indictment Based on Improper Selection

§11:30 Statutory Law

§11:31 Time to Challenge

§11:32 Burden of Proof

§11:33 Remedy

4. Improperly Constituted Grand Jury

§11:40 Statutory Law

§11:41 Challenge to a Particular Juror

§11:42 Personal Information About Grand Jurors

§11:42.1 Statutory Law

Texas Criminal Forms 11-2

B. Grand Jury Conduct

1. Improper Questioning of Grand Jury Witness

§11:50 Statutory Law

§11:51 Case Law

§11:52 Analysis of Whether Error Is Harmless

2. Improper Person Present With Grand Jury

§11:60 Statutory Law

§11:61 Improper Person Requires New Trial

3. Improper Return of Indictment

§11:70 Statutory Law

C. Endorsement of Witness Names on Indictment

§11:80 Statutory Law

§11:81 Defendant Can Learn Who Testified

D. Representing the Defendant

§11:90 Statutory Law

E. Transcripts of Grand Jury Testimony

§11:100 Statutory Law

§11:101 Defendant Must Show Particularized Need for Testimony

F. Defendant’s Testimony

§11:110 Suppressing Testimony

§11:111 Motion in Limine Evidence of Defendant’s Grand Jury Testimony

III. DNA Collection After Indictment

§11:120 Statutory Law

§11:121 Motion for DNA Collection

IV. Forms

Form 11-1 Motion for Examining Trial (Requesting Discharge of Defendant)

Form 11-2 Motion for Examining Trial (Requesting Reasonable Bond)

Form 11-3.1 Motion for Examining Trial (Defendant Transferred From Juvenile Court)

Form 11-3.2 Motion to Exclude Examining Trial Testimony of Defendant

Form 11-3.3 Motion to Suppress Examining Trial Testimony of Witness

Form 11-4 Challenge to the Array

Form 11-5 Motion to Quash Indictment Based on Improper Grand Jury Selection

Form 11-6 Brief in Support of Motion to Quash Indictment Based on Improper Grand

Jury Selection

Form 11-7.1 Motion to Challenge a Particular Grand Juror

Form 11-7.2 Motion for Disclosure of Personal Information About Grand Jurors

Form 11-8 Motion to Quash Indictment Due to Improper Grand Jury Conduct

Form 11-9 Motion to Quash Indictment Due to Improper Person Present

Form 11-10 Motion to Quash Indictment Due to Insufficient Number of Votes

Form 11-11 Motion to Require Endorsement of Names of Grand Jury Witnesses on Indictment

Form 11-12 Request for Defense Attorney to Appear at Grand Jury

Form 11-13 Letter for Grand Jurors in Lieu of Appearance by Attorney

Form 11-14 Motion for Production of Grand Jury Transcript

Form 11-15 Brief in Support of Motion for Production of Grand Jury Transcript

Form 11-16 Motion to Suppress Grand Jury Testimony of Defendant

Form 11-17 Motion in Limine (Evidence of Defendant’s Statement)

Form 11-18 State’s Motion for DNA Collection After Indictment

11-3 examining Trials and grand Jury hearings §11:10

I. EXAMINING TRIALS

§11:01 In General

An examining trial is a hearing before a mag-

istrate for the purpose of determining: (1) whether

the state has probable cause to hold the defendant

under the felony accusation, and the amount of bail

which the defendant shall be required to post; or

(2) whether the defendant shall be discharged. Tex.

Code Crim. Pro. Arts. 16.01 and 16.17. Taylor v.

State, 671 S.W.2d 535 (Tex.App.—Houston [1st

Dist.] 1983, no pet.).

PRACTICE TIP:

In most situations, the filing of a motion for

examining trial will result in expedited indict-

ment of the defendant because the return of

an indictment terminates the defendant’s right

to an examining trial. White v. State, 576

S.W.2d 843 (Tex.Cr.App. 1979); De Leon v.

State, 758 S.W.2d 621 (Tex.App.—Houston

[14th Dist.] 1988, no pet.).

The same rules of evidence that govern final

trials govern examining trials. Tex. Code Crim.

Pro. Art. 16.07. However, the Rules of Evidence

are not applicable to hearings on justification for

pre-trial detention not involving bail. Tex.R. Evid.

101(d)(1)(F).

PRACTICE TIP:

Make all objections to the method of conduct-

ing the examining trial (such as lack of confron-

tation, lack of adequate cross-examination) at

the examining trial itself or they are waived.

Wilkins v. State, 818 S.W.2d 844 (Tex.

App.—Houston [1st Dist.] 1991, pet. ref’d).

For further case law on examining trials, see

Texas Criminal Lawyers Handbook §§11:10-11:30.

§11:02 Motion for Examining Trial

An examining trial can be requested for one of

three reasons:

• To obtain discharge of the defendant due to

insufficient probable cause to sustain the charged

offense. Tex. Code Crim. Pro. Art. 16.01.

• To obtain reasonable bond for the defendant

from a judge or magistrate. Tex. Code Crim.

Pro. Art. 16.01.

• To aid in the discovery process for a defen-

dant transferred from a juvenile to adult

court under Tex.Fam.Code §54.02.

FORM: See the following at the end of this chapter:

• Form 11-1 Motion for Examining Trial

(Requesting Discharge of Defendant).

• Form 11-2 Motion for Examining Trial

(Requesting Reasonable Bond).

• Form 11-3.1 Motion for Examining Trial

(Defendant Transferred From Juvenile Court).

• Form 11-3.2 Motion to Exclude Examining

Trial Testimony of Defendant.

• Form 11-3.3 Motion to Suppress Examining

Trial Testimony of Witness.

[§§11:03-11:09 Reserved]

II. GRAND JURIES

A. GrAnd Jury iMpAnelinG

1. Equal Protection and Fair Cross-

Section Violations

§11:10 Statutory Law

Tex. Code Crim. Pro. Art. 19.06. Shall Select

Grand Jurors

The jury commissioners shall select not

less than 15 nor more than 40 persons

from the citizens of the county to be sum-

moned as grand jurors for the next term of

court, or the term of court for which said

commissioners were selected to serve, as

directed in the order of the court selecting

the commissioners. The commissioners

shall, to the extent possible, select grand

jurors who the commissioners determine

represent a broad cross-section of the

population of the county, considering the

factors of race, sex, and age. A commis-

sioner is not qualified to be selected for or

to serve as a grand juror during the term of

court for which the commissioner is serving

as a commissioner.