Essay on "Interoffice Memorandum of Law Case"

Essay 5 pages (1373 words) Sources: 3

[EXCERPT] . . . .

10 (Tex. Crim. App. 1981).

TEX. R. APP. P. 33.1(a)(1) (West 2009).

-Defendant contends that the State did not show that the arresting officer had complied with 2.13(b)(3), which would give rise to questions about the reasonableness of his suspicion to stop and detain the defendant for littering.

-Appellant failed to raise the argument at trial, but raised it for the first time on appeal.

Conclusion:

Although the State did not demonstrate that the officer complied with TEX. CODE CRIM. PROC. § 2.13(b)(3), which may have made his stop and detention of defendant unreasonable, the defendant failed to preserve this issue at trial, rendering him unable to question it upon appeal.

3) An amended indictment is insufficient if it not amended in accordance with TEX. CODE CRIM. PROC. § 28.10.

TEX. CODE CRIM. PROC. § 28.10 provides that: "a) After notice to the defendant, a matter of form or substance in an indictment or information may be amended at any time before the date the trial on the merits commences. On the request of the defendant, the court shall allow the defendant not less than 10 days, or a shorter period if requested by the defendant, to respond to the amended indictment or information.

(b) A matter of form or substance in an indictment or information may also be amended after the trial on the merits commences if the defendant does not object.

(c) An indictment or information may not be amended over the defendant's objection as to form or substance if the amended indictment or information charges the defendant with an additional or different offense or if the substantial rights of the defendant are prejudiced."

Reference:

TEX. CODE CRIM. PROC. § 28.10 (West 2009).

Double jeopardy is inapplicable if a conviction is overruled on the basis of an insufficient indictment.

"The defense of former jeopardy is not available where the allegations of the indictment were not sufficient to confer jurisdiction on the court trying the prior cause. In other words, double jeoapardy does not prevent a new trial where the defendant has been convicted based on a defective indictment or where the state has failed to present an information or indictment" (TEX. JUR. 3d § 23).

Reference:

TEX. JUR. 3d § 23 Sufficiency of Indictment (2006).

It is the appellant's responsibility to show error on appeal, and if the record fails to show error, then it should be assumed that the trial court acted correctly.

"It is generally presumed on appeal that the court ruled correctly and that the appellant must show error" (Hall v. State, 829 S.W. 2d 407, 410-411).

"It is appellant's burden to not only preserve the alleged error for review, but to present a record of the alleged error sufficient for us to review it and determine if it was error and if so whether the defendant was harmed" (Montoya v. State, 43 S.W.3d 568, 572).

References:

Hall v. State, 829 S.W. 2d 407, 410-411 (Tex. App.-Waco 1992, no pet.).

Montoya v. State, 43 S.W.3d 568, 572 (Tex. App.- Waco 2001, no pet.).

Variances between indictments and non-material elements of the indictment, including dates of convictions in enhancement paragraphs is not material, as they do not create any surprise or prejudice for a defendant.

References:

Bendon v. State, 770 S.W.2d 946, 947 (Tex. App.-Houston [1st Dist.] 1989, pet. ref'd).

Freda v. State, 704 S.W.2d 41, 42-43 (Tex. Crim. App. 1986).

The indictment contains a hand-written note changing the date in the enhancement paragraph, which seems to be initialed by the trial court judge, but is not dated.

The State said that the motion to amend had been filed and granted in August 2004, while trial was in June 2007.

The absence of a date on the handwritten correction on the indictment does not mean that the amendment occurred when the trial began.

The correction on the indictment was immaterial because it involved a date of a prior conviction for the enhancement statute.

Conclusion:

The amendment to the indictment was not a material one, therefore is probably not reversible error. Furthermore, there is no evidence that the trial court erred. Finally, even… READ MORE

How to Reference "Interoffice Memorandum of Law Case" Essay in a Bibliography

Related Essays:

Liability the Case With Virginia Pollard Case Study

Liability

The case with Virginia Pollard is showing how Teddy's Supplies is facing major legal challenges from the sexual harassment lawsuit. This is in spite of the New Jersey Supreme… read more

Case Study 3 pages (1331 words) Sources: 3 Topic: Law / Legal / Jurisprudence

---

Laws of Corrections Case Study

Laws of Corrections

When someone is detained, there is the assumption that prisoners are not entitled to Fourth Amendment protections (i.e. unreasonable searches and seizures). Evidence of this can be… read more

Case Study 5 pages (1503 words) Sources: 1 Topic: Law / Legal / Jurisprudence

---

Law Case Study

Law Case Study

Claim 1 - Karl vs. Dogwood

Karl has a very good negligence claim against the doctor. Dr. Dogwood had actual knowledge of the dangerous condition and exercised… read more

Case Study 2 pages (521 words) Sources: 0 Topic: Nursing / Doctor / Physician

---

Constitutional Law -- Confusion Term Paper

Constitutional Law Case Study -- Confusion vs Denial

Facts and Constitutional Issues Raised

The State of Confusion statute places a significant burden on all trucking originating outside of Confusion because… read more

Term Paper 3 pages (933 words) Sources: 3 Topic: Law / Legal / Jurisprudence

---

Law Movie Analysis and Research Silkwood Term Paper

Law Movie Analysis and Research

Silkwood like many other movies, e.g. The Insider, Erin Brockovich, Norma Rae, deals with the problems of corporate America, a greedy, corrupt, criminal corporate America… read more

Term Paper 4 pages (1566 words) Sources: 1+ Topic: Law / Legal / Jurisprudence

---

View 100+ more related papers  >>