Discharge Order Early Termination

CRIMINAL LAW:
MISDEMEANOR DRUG OFFENSE

Texas Drug Crimes Criminal Law Handbook (State)
Texas Young Lawyers Association
2014 Edition
Disclaimer: This publication is intended to provide lawyers with current and accurate information about handling
and resolving criminal law controversies. However, it is not a substitute for independent research or verification
of authority. It is merely intended as an aid to lawyers. No warranty express or implied is made.
TYLA Executive Committee

Kristy Blanchard, President
Cameron J. Cox, Chair
Victor Villarreal, Vice President
Priscilla D. Camacho, Secretary
C. Barrett Thomas, Treasurer
Rebekah Steely Brooker, President-elect
Dustin M. Howell, Chair-elect
C.E. Rhodes, Immediate Past President
Member Services and Outreach Committee

Chairs
Bill Gardner
Sam Houston
Sally Pretorius
Vice Chairs
Alex Bell
D. Lance Currie
Laura W. Docker
Andrew Dornburg
Soraya Yanar Hanshew
Alex B. Roberts
John W. Shaw
L. Brook Stuntebeck
Brandy Wingate Voss
Copyright 2014
TEXAS YOUNG LAWYERS ASSOCIATION
Curriculum materials created by the Texas Young Lawyers Association. All rights reserved. No part of these materials may
be reproduced in any form or for any other purpose without the written consent of the Texas Young Lawyers Association.
Table of Contents
I. Introduction ....................................................................................................................................................1
II. Strategy............................................................................................................................................................3
III. After you are retained or appointed..................................................................................................................3
IV. Criminal Discovery..........................................................................................................................................3
a. Conducting discovery with the prosecution ............................................................................................3
V. Plea Bargaining in Misdemeanor Cases ............................................................................................................4
a. Alternative dispositions ..........................................................................................................................5
b. Probation ................................................................................................................................................5
c. Client communication ............................................................................................................................5
d. Collateral Consequences..........................................................................................................................6
VI. Drug Penalty Groups ......................................................................................................................................6
VII. Possession of Marihuana ..................................................................................................................................6
VIII. Statute of Limitations for Misdemeanor Offenses ............................................................................................7
IX. Defendant’s Pleadings and Motions ................................................................................................................7
a. Pretrial motions ......................................................................................................................................7
X. Trial Considerations ........................................................................................................................................9
a. Voir Dire and Challenges for cause..........................................................................................................9
i. Preserving error on challenges for cause........................................................................................9
ii. Voir dire tips ................................................................................................................................9
b. Trial objections......................................................................................................................................10
i. Specific objections ....................................................................................................................10
ii. Statutory Rules ..........................................................................................................................10
c. Suppression hearing tips and law ..........................................................................................................13
i. Ground for suppressing evidence ..............................................................................................13
ii. Consensual Encounters..............................................................................................................13
iii. Investigative Detentions ............................................................................................................14
iv. Community Caretaking ............................................................................................................15
v. Specific Instances of Reasonable Suspicion ................................................................................15
vi. Searches without a warrant ........................................................................................................20
1. Persons ............................................................................................................................20
2. Cars ................................................................................................................................20
3. Residences........................................................................................................................21
XI. Client Information Form ..............................................................................................................................23
XII. Letter of Representation ................................................................................................................................24
XIII. Notice of Appearance and Discovery Request ................................................................................................25
XIV. Motion to Suppress........................................................................................................................................27
XV. Notice of Appeal ............................................................................................................................................29
XVI. Motion to Withdraw ....................................................................................................................................30
XVII. Representation Agreement ............................................................................................................................32
XVIII. Health and Safety Code – Penalty Groups ....................................................................................................33
XIX. Federal Rules of Evidence ..............................................................................................................................38
XX. Common Objections and Responses..............................................................................................................40
Texas Drug Crimes Criminal Law Handbook (State)
Drug crimes are covered by both federal and state laws in Texas. Federal offenses are regulated by The Comprehensive
Drug Abuse Prevention and Control Act of 1970, known as the Controlled Substances Act. This guide focuses on Texas
state practice.
The Controlled Substances Act covers nearly all of the drug offenses in Texas and is codified in the Texas Health and
Safety Code, Chapters 481 through 486. Since Texas is an international border state, drug traffic offenses are a major
concern and your clients’ affiliation with groups known to traffic drugs may have a major impact on sentencing.
Drug offenses are among the most serious charges in criminal law. They carry with them severe penalties and can have
other consequences in areas of one’s life, such as family life and employment. The legal penalties for drug crimes will depend
on the nature of the drug offense.
Drug offenses are considered more severe if they take place in certain areas, such as near a school or daycare center or
other places where children would normally frequent. Drug offenses also frequently coincide with other criminal offenses,
such as DWI, Assault, or other offenses for which a person is arrested and drugs are subsequently found on their person
or in their vehicle.
Introduction
A criminal defense lawyer’s involvement is contingent upon a client’s request for assistance. In cases where a person asks
for help prior to the return of an indictment or the filing of an information, a lawyer could be involved in conversations
with the prosecutor before he or she makes the decision to file charges.
Being involved before formal charging carries significant advantages. Defending against a case that has been filed is fairly
easy: you already know that the worst that can happen is the client will be found guilty. When a client engages defense
counsel early in the criminal investigation, there are opportunities to make strategic decisions which successfully end the
investigation or prevent charges from being filed.
Misdemeanor drug cases will be almost exclusively possession of marihuana or possession of certain prescription narcotics
without said prescription. Depending on where the client was arrested, a drug-free zone may also come into play. A
determination that the drugs were in a drug-free zone will increase the severity of the offense by one degree.
A drug offense conviction will have many collateral consequences. A conviction for possession of marihuana or almost
any other illegal drug will result in the loss of driving privileges for one year. Also, a drug conviction will result in not
being eligible for various federal loans and grants such as student loans. There are also immigration consequences for
non-citizens.
Because of these consequences, it is important for attorneys representing individuals accused of drug offenses to be aware
of the most common weaknesses in the typical prosecution’s case. These include:
• Unconstitutional stops by authorities

• Improper search warrants
• Illegal searches and seizures
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Strategy
Often the best course is to challenge the drug charge by having a motion to suppress evidence hearing. The motion to
suppress is a method to challenge various parts of the State’s case. Occasionally, even though the motion to suppress was
not successful in having the charge dismissed, the prosecutor may realize that the officer was not truthful or that the case
has some other weakness, and will therefore reduce or dismiss the charges. If the motion to suppress is successful, the
prosecutor will normally dismiss the charges. If the motion to suppress is not successful, you can still go to trial, or you
can still negotiate a plea bargain. However, make sure you speak with the prosecutor handling your case about whether
any plea bargain offered will still be available after a motion to suppress is litigated.
After you are retained or appointed
If you are appointed to represent a defendant, the local rules for your county should provide time guidelines for visiting
your client in jail.
1. At the first meeting, obtain information about their addresses and telephone numbers, as well as additional
people to use for contacts. The intake sheet enclosed in this toolkit is an ideal place to start. Allow time for
them to give you an overview of their arrest and the circumstances leading up to the arrest.
2. Ask if they are aware of any additional charges that might be filed in either the same or other counties.
3. Review your client‘s criminal history information (don‘t just rely on self-reports by the client, use resources
such as PublicData.com). The prosecutor’s file will also usually have your client’s criminal history. Even if you
are not allowed to view it, the prosecutor will often be forthcoming with any information concerning your
client’s criminal history.
4. Determine if there are co-defendants.
5. Provide the client with information about how you want them to contact you. Try to provide more than one
method of communication (e.g., telephone AND e-mail).
6. Always return phone calls, preferably within 24 hours.
Criminal Discovery
1. When the file is opened in the prosecution office, there should be someone responsible for review and to request
needed reports, statements, recordings, etc.
2. The prosecution has the benefit of using grand jury subpoenas to obtain records such as medical records, school
records, therapy or mental health information, and a variety of other helpful information. The defense must
rely on the subpoena duces tecum to request documents.
3. Do not forget to request 911 calls, other recorded calls, or any in-car videos that may be available. They are
frequently erased or deleted if there has not been a request to preserve them.
4. Visiting the scene of a traffic stop or the residence searched may be useful for a suppression motion, or you can
use tools like Google’s Streetview to get a better idea of the area.
5. Consider retaining an expert to reanalyze the drug evidence or reweigh it if you believe there may have been an
error at the state-run laboratory.
Conducting discovery with the prosecution

1. Article 39.14 of the Code of Criminal Procedure governs discovery in a criminal case. The Michael Morton
Act (SB1611) was signed into law on May 16, 2013 and will take effect and apply to all offenses committed on
or after January 1, 2014.
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2. After receiving a timely request from the Defendant, the State, as soon as is practicable, shall produce and
permit the inspection and the electronic duplication, copying, and photographing of offense reports, documents,
papers, written or recorded statements of the defendant or a witness, including witness statements of law
enforcement officers, books, accounts, letters, photographs or objects or other tangible things that constitute
or contain evidence material to any matter involved in the action and are in the possession, custody, or control
of the State or any person under contract with the State.
3. Discovery items may not be disclosed to third parties unless a court orders the disclosure, the items have already
been publicly disclosed, or the attorney for the Defendant allows the Defendant, witness or prospective witness
to review but not duplicate items. Certain identifying information must be redacted prior to disclosure.
4. Before accepting a plea of guilty or nolo contendere, or before trial, each party shall acknowledge in writing or
on the record in open court the disclosure, receipt and list of all documents, items and information provided
to the Defendant.
The prosecution has a duty to turn over exculpatory evidence under a case that should be familiar to you. Brady v. Maryland,
373 U.S. 1194 (1963). This United States Supreme Court case requires the prosecution to disclose any evidence which
may be exculpatory in nature or which would mitigate or reduce the punishment. However, this should be covered by
the new discovery statute, which requires disclosure of all evidence, exculpatory or not.
Experts who will be used at trial are discoverable by both the prosecution and defense. The party desiring discovery must
file a motion and the court may order disclosure of experts‘ names and addresses not later than the 20th day before the
trial begins. C.C.P. article 39.14(b)
Document your file. This should include all visits to the prosecutor’s office, when and what discovery has been provided,
and any plea offers. Frequently issues arise later which may require one or both parties to address how discovery was
conducted, particularly in cases where a trial was held.
Interview witnesses provided by your client. Interview family members/coworkers/friends for potential character evidence
at punishment. Visit the crime scene, if possible. Consider having another expert review the forensic evidence. Do not be
afraid to request that the prosecution look into a specific claim made by your client or a defense witness in advance of
trial. However, make sure you get approval of discussion of that claim from your client before taking it to the prosecution.
It is one of the trial attorney‘s duties to make an independent investigation of the client‘s case. Ex Parte Ewing, 570
S.W.2d 941 (Tex. Crim. App. 1978).
You also have a duty to be on the lookout for any mental health issues that may affect your client’s case. The Texas Court
of Criminal Appeals has held that counsel has a duty to investigate the possibility that the client was insane at the time
of the offense given the likelihood of mental illness noted in reports from jail medical personnel. Ex Parte Imoudu, 284
S.W.3d 866 (Tex. Crim. App. 2009).
Plea Bargaining in Misdemeanor Cases
Classes of Misdemeanors
Class C Misdemeanors – Fine up to $500

Class B Misdemeanors – Up to 180 days in jail and a $1,000 fine
Class A Misdemeanors – Up to one year in jail and a $2,000 fine
Class C Misdemeanors are usually handled in municipal courts and usually involve only fines.
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1. Community supervision (regular probation) county jail sentence that is imposed, but then suspended for a
designated period of time as long as the defendant abides by conditions of supervision set out by the Court.
2. The maximum term of community supervision is two years for a misdemeanor.
3. The court can extend the period of supervision in a misdemeanor for a period not to exceed three years.
4. Deferred adjudication is a form of community supervision where the defendant has entered a plea of guilty or
nolo contendere and the judge has found sufficient evidence to find the defendant guilty, but the guilty finding
is deferred for a period of time. The maximum term of deferred adjudication community supervision is two
years for misdemeanors.
5. Deferred adjudication is not available as an alternative for all offenses. C.C.P. 42.12 5(d).
6. You must read and learn Article 42.12 of the Code of Criminal Procedure regarding community supervision.
Alternative dispositions to a misdemeanor case
Lesser included offenses: A plea may be negotiated to a lesser included offense of a charged offense without filing a new
charging instrument. Article 37.09 C.C.P.
Pre-trial Diversion or Deferred Prosecution: This usually is offered by the prosecutor’s office as an alternative to traditional
deferred probation, which is supervised by the probation department. The prosecutor’s office will “supervise” the client’s
progress towards completing classes, therapy, treatment, or other conditions they deem appropriate in return for not
pursuing a criminal case. These arrangements vary widely by county and you should ask a local defense attorney or a
prosecutor about availability and eligibility for any such program.
Dismissal: The attorney representing the State may, with permission of the court, dismiss a criminal action at any time
upon filing a written statement with the district clerk setting out his reasons for such dismissal. No case may be dismissed
without the consent of the presiding judge.
Probation
Most first-time drug defendants are eligible for either regular probation or deferred adjudication probation. The Code
of Criminal Procedure art. 42.12 governs probation and refers to the program as “community supervision.” The terms
and conditions are set by the trial court, with recommendations made by the prosecution as to special terms, length of
probation, as well as fines. Common conditions include regular reporting, abstaining from the use of drugs or alcohol,
drug testing, payment of court costs fines and fees, and community service.
Any county over 200,000 people must have a drug court program. If your client has a drug or substance abuse problem
that has led to their current predicament, drug court may be a good option for them. It is more intensive than regular
probation, but offers significantly more resources to help the individual overcome their abuse problems. In addition, if
the program is completed successfully, the defendant may be eligible for a non-disclosure order preventing all but law
enforcement from learning about the commission of the offense. Make sure you inquire with a local defense attorney
about the availability of a drug court in your county.
Client Communication
You must communicate any plea offer made to your client. Failure to do so will result in a finding of ineffective assistance
to the client. Randle v. State, 847 S.W.2d 576 (Tex. Crim. App. 1993). The duty also includes an obligation to inform
the State of an acceptance of a plea offer in a timely fashion, i.e. before the offer expires. Id.
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Make sure you advise your client regarding collateral consequences of guilt, especially immigration issues. As far as im-
migration issues go, if you learn that your client is not a United States citizen, before you do anything that might resolve
the case, consult with a immigration attorney and make sure that you have informed the client about ALL the potential
consequences to his immigration status that go along with a guilty plea/conviction. Not doing so can be grounds for a
finding of ineffective assistance of counsel.
Collateral Consequences
A final misdemeanor conviction has consequences other than just the fine and probationary period.
- A final conviction for possession of marihuana will result in the suspension of your driver’s license.
- If you are not a citizen of the United States, a final conviction other than a Class C traffic ticket
could affect your immigration status.
- A drug conviction may affect your standing with a licensing or regulatory board as well as your ability to
work in that field.
- A final conviction may also adversely affect your employment prospects in the future.
This is not meant to be a complete list of all of the consequences of a conviction but only a small sample of the collateral
consequences.
Drug Penalty Groups
The Controlled Substances Act separates drugs into different penalty groups. A full list is attached as a separate document,
but you should frequently check to see if it has been updated.
Penalty Group 1 consists of many prescription narcotics like morphine as well as other illicit drugs like heroin, opium,
and cocaine.
Penalty Group 1-A consists of lyser¬gic acid diethy¬lamide (LSD), includ¬ing its salts, iso-mers, and salts of isomers.
Penalty Group 2 consists of hallucinogenic drugs like ecstasy (MDMA) and mescaline.
Penalty Group 3 consists of barbiturates and other prescription drugs, such as anabolic steroids.
Penalty Group 4 consists of mainly prescription drugs that include smaller quantities of drugs listed in other groups,
such as codeine mixed with acetaminophen.
Possession of Marihuana
Marihuana offenses have a separate set of statutes under the Texas Health and Safety Code. One important difference is
that there is no such crime as possession of marihuana with the intent to distribute. The only trafficking crime related to
marihuana is actual delivery of marihuana.
< 2 oz. 2 oz. to < 4 oz.
Class B Misdemeanor Class A Misdemeanor
Up to 180 days County Jail Up to 1 year County Jail and/or

and/or fine of $2,000 fine of $4,000
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Statute of Limitations for Misdemeanor Offenses
All misdemeanors must be presented or filed within two years. Tex. Code Crim. Proc. art. 12.02
Defendant’s Pleadings and Motions
The pleadings and motions in criminal cases are governed by Texas Code of Criminal Procedure. art. 27.02.
Specific motions and pleadings that may be filed:

(1) A motion to set aside, or an exception to an indictment or information for some matter of form or substance;
(2) A special plea as provided in article 27.05 of the code;
(3) A plea of guilty;
(4) A plea of not guilty;
(5) A plea of nolo contendere, the legal effect of which shall be the same as that of a plea of guilty, except that such
plea may not be used against the defendant as an admission in any civil suit based upon or growing out of the
act upon which the criminal prosecution is based;
(6) An application for probation, if any;
(7) An election, if any, to have the jury assess the punishment if he is found guilty; and
(8) Any other motions or pleadings that are by law permitted to be filed.
These pleadings must be filed pre-trial and usually within a certain amount of time before the pre-trial hearing or
conference. Some trial courts require suppression motions to be filed and heard before trial begins, but others will carry
the motions with the trial. Speak with a local defense attorney about this before you determine the best course of action.
If the suppression issue turns on a fact determination, it may be submitted to the jury.
Pretrial Motions
1. Time to File – Article 28.01 states that pretrial pleadings must be filed seven days before the scheduled hearing.
Local rules will sometimes expand that time.
7 “Must File” Motions –

Motion to quash, if the indictment or information is defective
Punishment election, if defendant wants the jury to assess punishment
Application for probation, if defendant is eligible
Requests for notice, e.g. 404(b), 609(f ), and 37.07
Motion to Suppress Evidence/Statements
Notice of insanity defense (only if insanity is an issue)
Brady motions
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Trial Considerations
Know what your defense will be at trial:

1. There is nothing to link my client to the narcotics (NO affirmative link to the drugs)
2. The police made a mistake/abused their authority and illegally searched my client.
3. The laboratory that tested the narcotics made a mistake.
4. The narcotics are not illegal (exceedingly rare).
Voir Dire and Challenges for Cause
Make sure you get your client a fair trial. Many people have biases or prejudices against criminal defendants based upon
their appearance, the nature of the charge, or merely the fact that they are in court at all. None of these people is legally
qualified to serve if they cannot put these beliefs aside. Other examples of “challenges for cause” include:
• If a panel member would hold defendant’s invocation of his 5th Amendment right to remain silent against him.
• If a panel member would be unable to consider the full range of punishment. Prospective jurors must be
willing to consider the full range of punishment applicable to the offense in order to be qualified. Banda v.
State, 890 S.W.2d 42 (Tex. Crim.App. 1994).
• Can’t convict on the testimony of one witness. If a potential juror cannot convict based upon one witness
whom they believed beyond a reasonable doubt, and whose testimony proved every element of the indictment
beyond a reasonable doubt, then the potential juror can be validly challenged for cause. Castillo v. State, 913
S.W.2d 529, 533-34 (Tex.Crim.App. 1995).
• Bias or prejudice in favor of or against defendant. It is not unusual for a potential juror to state that a police
officer would never lie under oath. If such a statement is made, the potential juror has evidenced bias against
defendant. Hernandez v. State, 563 S.W.2d 947, 950 (Tex.Crim.App.1978).
Preserving Error on Challenges for Cause
To preserve error with respect to a trial court’s denial of a challenge for cause, an appellant must, under Allen v. State, [cite]:
1. Assert a clear and specific challenge for cause.

2. Use a peremptory strike on the complained-of venire member.
3. Exhaust his peremptory strikes.
4. Request additional peremptory strikes.
5. Identify an objectionable juror.
6. Claim that he would have struck the objectionable juror with a peremptory strike if he had one to use
Failure to carry out each of these steps could result in waiver of this important challenge on appeal.
Voir dire tips
Practical Considerations
Good trial lawyers use voir dire to indoctrinate potential jurors as to their views of the law and the evidence in the case.
You can also use the process to begin establishing positive feelings toward your case and the client. Because voir dire is
the only time during trial that attorneys can speak directly to jurors, it is extremely important that you get everyone to
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like you! However, it should be noted that a jury is usually able to spot insincerity. The most important thing to remember
when conducting a voir dire is to be yourself and relax. That will do more to get the jury to like you than anything else.
Cover three to five topics
Ask open-ended questions
Use looping. That is, take any answers that the jurors give and loop back to connect it with something another
juror said earlier. This will prompt the jurors to start discussions among themselves. You will learn more from their
conversations than from your questions.
Elicit information
Establish rapport
Educate by having potential jurors teach each other
Trial Objections
Preserving error
In order to preserve error for appeal, a trial lawyer must know the following three steps:
Make a Timely Objection and State Your Precise Grounds –
If overruled, error is preserved.

If sustained, continue to step 2
If the judge does not make an explicit ruling, request one on the record.
Ask to Have the Jury Instructed to Disregard the Question, Comment or Evidence –
If no instruction is given, error is preserved.
If the judge gives an instruction, continue to step 3
Move for a Mistrial –
You must continue demanding some action in your favor until you get a refusal in order to preserve error.
Specific Objections:
Hearsay
Most everything a police officer knows about a case comes from hearsay. The same goes for the information in their
police reports. There is a limited “information acted upon” exception, a non-truth purpose that lets officers relay
information that was provided to them to help explain the actions they took. However, if the State offers the evidence
for that purpose, make sure you ask for a limiting instruction.
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Confrontation
If the State attempts to admit hearsay statements from any person who is not in court testifying, you should make a
confrontation clause objection in addition to your hearsay objection. See U.S. CONST. amend. VI. The right applies
to any testimonial statement by a person, i.e., statements later used (normally by the prosecution) in a criminal case.
Non-testimonial statements are those made in situations that do not presume they will be used later in a criminal case,
such as statements excited utterances, statements for the purpose of medical diagnosis, and others.
Character Evidence (Rule 404, 403)
Guilt/innocence trials resolve whether this particular person did this particular crime on this particular occasion. Unless
the defendant testifies, any character evidence should not be admitted.
Invoking “the Rule” – Rule 614 and Article 36.03 C.C.P.
Witnesses generally are not allowed to remain in the courtroom during the testimony of other witnesses with certain de-
fined exceptions once the Rule (also referred to as the rule against comparative testimony) has been invoked. Either party
may request that the Rule be invoked.
Exempt witnesses
The defendant
Any person whose presence is shown to be essential to presentation of cause
The alleged victim, unless the victim is to testify and the court determines the testimony would be materially affected if
the victim hears other testimony at the trial
Statutory Rules
The testimony of co-defendants and prison “snitches” must be corroborated and the jury should be so instructed. Tex.
Code Crim. Proc. art. 38.075, 38.14
If the defendant has sought drug treatment, statements made during treatment may not be used against him or her. Tex.
Code Crim. Proc. art. 38.101; Same for CIs Art. 38.141.
Defendant’s own statement art. 38.21, 38.22

A statement of an accused may be used in evidence against him if it appears that the statement was freely and voluntarily
made without compulsion or persuasion, under the rules prescribed. If your client made a statement, refer to the Code
of Criminal Procedure sections above to see if it is admissible at trial.
Drug Evidence – Chain of Custody

The State has to establish the chain of custody from seizure to trial before the evidence is admissible. This may be
accomplished by witness testimony or a chain of custody affidavit. CCP art. 38.42
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Suppression Hearing Tips and Law
The legality of the police conduct surrounding the search or seizure of a defendant in a drug case is frequently dispositive
of the entire criminal case. Such issues may include, for example, whether the police lawfully searched a defendant, his
vehicle, his residence, etc. If the officer lawfully seized either his person or the drugs, then there is usually little in the way
of a legal defense. However, if police conduct was questionable, a motion to suppress is the best way to determine before
a trial whether the evidence will be admissible.
A suppression motion is one that asks the trial court to exclude certain evidence from trial because it was illegally obtained by
law enforcement in violation of a defendant’s rights found either in the U.S. or Texas Constitutions, or the evidentiary statutes
found in the Code of Criminal Procedure. If the police violated a defendant’s constitutional or statutory rights, then the ex-
clusionary rule prevents any evidence related to that search or seizure from being admitted at trial. Most courts require that
Motions to Suppress Evidence be filed before trial. During a hearing on the motion, the Defense has the burden of proof to
establish either that the evidence was seized in violation of the Fourth Amendment or that the search or seizure occurred
without a warrant. Once the lack of a warrant is established, the burden of proof shifts to the State to prove that any searches
or seizures were reasonable. Usually, the State will stipulate that a search or seizure was conducted without a warrant.
Ground for Suppressing Evidence
Traditionally, the courts have described three distinct categories of interactions between police officers and citizens:
(1) encounters
(2) investigative detentions, and
(3) arrests.
State v. Woodard, 341 S.W.3d 404, 410–11 (Tex.Crim.App.2011); State v. Castleberry, 332 S.W.3d 460, 466
(Tex.Crim.App.2011).
A fourth category, a community caretaking stop, is carved out as an exception if the officer is primarily motivated to stop
and assist an individual whom a reasonable person would believe is in need of help. See Corbin v. State, 85 S.W.3d 272,
276 (Tex.Crim.App.2002).
Consensual Encounters
A consensual encounter occurs when “an officer approaches a citizen in a public place to ask questions, and the citizen is
willing to listen and voluntarily answers.” Crain v. State, 315 S.W.3d 43, 49 (Tex.Crim.App.2010). A citizen may, at will,
terminate a consensual encounter. Woodard, 341 S.W.3d at 411. Even when the officer does not communicate to the citizen
that the request for information may be ignored, the citizen’s acquiescence to the officer's request does not cause the encounter
to lose its consensual nature. Id. If it was an option to ignore the request or terminate the interaction, then a Fourth Amendment
seizure has not occurred. Id. An officer does not need probable cause or reasonable suspicion to initiate a consensual encounter.
State v. Velasquez, 994 S.W.2d 676, 678 (Tex.Crim.App.1999); see also Florida v. Bostick, 501 U.S. 429, 434 (1991) (“Our
cases make it clear that a seizure does not occur simply because a police officer approaches an individual and asks a few ques-
tions. So long as a reasonable person would feel free to ‘disregard the police and go about his business,’ the encounter is con-
sensual and no reasonable suspicion is required. The encounter will not trigger Fourth Amendment scrutiny unless it loses its
consensual nature.”) (internal citations omitted). “As long as the person to whom questions are put remains free to disregard
the questions and walk away, there has been no intrusion upon that person’s liberty or privacy as would under the Constitution
require some particularized and objective justification.” United States v. Mendenhall, 446 U.S. 544, 554 (1980).
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An officer may, without reasonable suspicion, request identification and information from a citizen. Woodard, 341 S.W.3d
at 411. Even if the officer did not tell the citizen that the request for identification or information may be ignored, the
fact that the citizen complied with the request does not negate the consensual nature of the encounter. Id.
With consent, police officers can detain a citizen, search a citizen’s person, and search a citizen’s car or home. There are
few limits to the scope of consent and the burden falls upon the citizen to revoke consent or limit the scope of consent.
Law enforcement does not have to inform the citizen of their right to revoke or limit consent, and so the withdrawal of
consent rarely, if ever, occurs.
Investigative Detentions
An investigative detention occurs when an individual is encountered by a police officer, yields to the officer’s display of
authority, and is temporarily detained for purposes of an investigation. Johnson v. State, 912 S.W.2d 227, 235
(Tex.Crim.App.1995). A temporary or investigative detention is a seizure. Francis v. State, 922 S.W.2d 176, 178
(Tex.Crim.App.1996); Josey v. State, 981 S.W.2d 831, 838 (Tex.App.-Houston [14th Dist.] 1998, pet. ref ’d). However,
an investigative detention is characterized by a lesser amount of restraint on an individual. See Berkemer v. McCarty, 468
U.S. 420, 437–40 (1984); Francis v. State, 922 S.W.2d 176, 178 (Tex.Crim.App.1996).
The Fourth Amendment authorizes a brief investigatory detention based on reasonable articulable suspicion in order to
determine identity, briefly investigate, and/or maintain the status quo. See Terry v. Ohio, 392 U.S. 1, 21–22 (1968). “
‘[T]he police officer must be able to point to specific and articulable facts which, taken together with rational inferences
from those facts, reasonably warrant that intrusion.’ ” Davis v. State, 947 S.W.2d 240, 242 (Tex.Crim.App.1997) (quoting
Terry, 392 U.S. at 21-22)). Because an investigative detention is a seizure, reasonable suspicion must be shown by the
officer to justify the seizure. York v. State, 342 S.W.3d 528, 535 (Tex.Crim.App.2011); State v. Larue, 28 S.W.3d 549,
553 n. 8 (Tex.Crim.App.2000). Police officers may stop and detain a person if they have a reasonable suspicion that a
traffic violation is in progress or has been committed. Garcia v. State, 827 S.W.2d 937, 944 (Tex.Crim.App.1992).
Whether or not an officer has reasonable suspicion to detain an individual for further investigation is determined from
the facts and circumstances known to the officer at the time of the detention. See Crain v. State, 315 S.W.3d 43, 48
(Tex.Crim.App.2010). The standard disregards the subjective intent or motive of the officer, and limits the inquiry to
the objective justification for the detention. State v. Elias, 339 S.W.3d 667, 674 (Tex.Crim.App.2011).
The articulable facts must show unusual activity, some evidence that connects the detainee to the unusual activity, and
some indication that the unusual activity is related to a crime. Martinez v. State, 348 S.W.3d 919, 923 (Tex.Crim.App.
2011). Articulable facts must amount to more than a mere inarticulate hunch, suspicion, or good faith suspicion that a
crime was in progress. Crain, 315 S.W.3d at 52. Whether the officer’s suspicion to believe that an individual is violating
the law is reasonable is evaluated based on “an objective standard that disregards any subjective intent of the officer
making the stop and looks solely to whether an objective basis for the stop exists.” Ford, 158 S.W.3d at 492.
In determining whether information possessed by police rises to the level of reasonable suspicion, the quality of the infor-
mation possessed is weighed against the quantity of information possessed. See Rojas v. State, 797 S.W.2d 41, 43
(Tex.Crim.App.1990) (balancing quality of information against quantity of information in the probable cause context);
see also Blevins, 74 S.W.3d at 130. That is, a weakness in the quality of the information possessed may be overcome by the
requisite quantity of corroborating facts demonstrating the reliability of the information. See Smith v. State, 58 S.W.3d 784,
790 (Tex.App.—Houston [14th Dist.] 2001, pet. ref’d) (balancing quality of information against quantity of information
in the investigative stop context). Conversely, when the reliability of the information is increased, less corroboration is nec-
essary. See Martinez, 348 S.W.3d at 923; State v. Sailo, 910 S.W.2d 184, 188 (Tex.App. —Fort Worth 1995, pet. ref’d).
14
Courts do not separately evaluate and accept or reject the individual objective facts relied on to establish reasonable
suspicion because doing so does not adequately consider the totality of the circumstances; indeed, piecemeal evaluation
and rejection of individual factors is prohibited by the Supreme Court. See United States v. Arvizu, 534 U.S. 266, 274
(2002); United States v. Sokolow, 490 U.S. 1, 9–10 (1989). In Woods v. State, the Court of Criminal Appeals rejected the
“as consistent with innocent activity as with criminal activity” test for determining reasonable suspicion. Woods v. State,
956 S.W.2d 33, 38 (Tex.Crim.App.1997).
Community Caretaking
The United States Supreme Court expressly recognized that police officers do much more than enforce the law, conduct
investigations, and gather evidence to be used in criminal proceedings. Part of their job is to investigate accidents—where
there is often no claim of criminal liability—to direct traffic and to perform other duties that can be best described as
“community caretaking functions.” Cady v. Dombrowski, 415 U.S. 433 (1973); Wright v. State, 7 S.W.3d 148
(Tex.Crim.App. 1999). As part of their duty to “serve and protect,” police officers may stop and assist individuals whom
a reasonable person—given the totality of the circumstances—would believe is in need of help.
A community-caretaking stop does not require the officer to have reasonable suspicion or probable cause to believe that
an offense has been committed. See Corbin v. State, 85 S.W.3d 272, 276 (Tex.Crim.App.2002).
In determining whether a police officer acted reasonably in stopping an individual to determine if he needs assistance,
the following factors are relevant: (1) the nature and level of the distress exhibited by the individual; (2) the location of
the individual; (3) whether or not the individual was alone and/or had access to assistance independent of that offered
by the officer; and (4) to what extent the individual—if not assisted— presented a danger to himself or others. Id.
An individual does not have to break the law to give rise to a “reasonable suspicion.”
In Derichweiler v. State, 348 S.W.3d 906 (2011) the Court of Criminal Appeals recently clarified—and simultaneously
broadened—the ability of law enforcement to justify an investigative detention. “It is enough to satisfy the lesser standard
of reasonable suspicion that the information is sufficiently detailed and reliable—i.e., it supports more than an inarticulate
hunch or intuition—to suggest that something of an apparently criminal nature is brewing.”
Probable cause means a “fair probability that contraband or evidence of a crime will be found, and the level of suspicion
for an investigative detention is less demanding than probable cause; the standard is ‘some minimal level of objective
justification.’” Foster v. State, 326 S.W.3d 609 (Tex.Crim.App.,2010) (reasonable suspicion when truck lurched and revved
motor even though not in violation of the law) (quoting Sokolow, 490 U.S. at 7).
Specific Instances Demonstrating Reasonable Articulable Suspicion to Support Investigative Detention
The Fourth Amendment is satisfied if the officer’s action is supported by a particularized and objective basis for suspecting
the person stopped of criminality. If such a particularized and objective basis exists, then the investigatory detention is reasonable
as a matter of law, regardless of the officer’s subjective motivation. Whren v. United States, 517 U.S. 806, 812–13 (1996).
The following behaviors have been held to support an objective basis for reasonable suspicion:
Any traffic violation: See Lemmons v. State, 133 S.W.3d 751, 756 (Tex. App.—Fort Worth 2004, pet. ref ’d);
Speeding (without proof of exact speed): Dillard v. State, 550 S.W.2d 45, 53 (Tex. Crim. App.1977) (op. on reh’g);
Icke v. State, 36 S.W.3d 913, 915–16 (Tex. App.—Houston [1st Dist.] 2001, pet. ref ’d).
15
Reliable, corroborated, recent, and specific informant’s tip: Factors: 1) the credibility and reliability of the informant,
2) the specificity of the information contained in the tip or report, 3) the extent to which the information in the tip or
report can be verified by officers in the field, and 4) whether the tip or report concerns active or recent activity, or has
instead gone stale. United States v. Gonzalez, 190 F.3d 668, 672 (5th Cir.1999) (citing Alabama v. White, 496 U.S. 325,
328–32, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990)); United States v. Perkins, 352 F.3d 198, 199 (5th Cir. 2003) (citing
same). Peralta v. State, No. 08-09-00006-CR, 2010 WL 4851388 (Tex. App.—El Paso Nov. 30, 2010), Pipkin v. State,
114 S.W.3d 649 (Tex. App.—Fort Worth 2003) (cellular phone user identified herself and described vehicle where she
observed driver smoking crack).
Odor of marihuana: Razo v. State, 577 S.W.2d 709, 711 (Tex.Crim.App.1979); Taylor v. State, 20 S.W.3d 51, 55–56
(Tex. App.—Texarkana 2000, pet. ref ’d); Small v. State, 977 S.W.2d 771, 774 (Tex. App.—Fort Worth 1998, no pet.);
see Isam v. State, 582 S.W.2d 441, 444 (Tex. Crim. App.1979).
Other factors supporting detention
Suspicious Actions in a High Crime Area: See United States v. Arvizu, 534 U.S. 266, 277 (2002) (holding that under
totality of circumstances, reasonable suspicion existed, and considering border patrol agent’s knowledge that road traveled
by defendant was commonly used by drug smugglers to avoid border patrol); Illinois v. Wardlow, 528 U.S. 119, 124
(2000) (noting that, while presence in a high-crime area alone is not enough to support reasonable suspicion, fact that
incident occurs in a high crime area is relevant factor to be considered in reviewing totality of circumstances); Valencia v.
State, 820 S.W.2d 397, 400 (Tex. App.—Houston [14th Dist] 1991, pet. ref'd) (considering fact that defendant was
“apprehended in a residential neighborhood that was known for its very high crime and its high narcotics trafficking”);
Ortega v. State, No. 14–97–01084–CR, 1999 WL 717636, at *2 (Tex. App.—Houston [14th Dist.] Sept. 16, 1999, pet.
ref ’d) (not designated for publication) (holding officer’s knowledge that hotel where defendant was apprehended was “a
notorious location for illegal narcotics activity”).
Darkness: Law enforcement has greater latitude during nighttime hours—the time when crime is especially likely to
occur. See Amorella v. State, 554 S.W.2d 700, 701 (Tex. Crim. App.1977) (using the late hour as a factor in determining
whether law enforcement officer had reasonable suspicion); see also Arroyo v. State, No. 01-10-00136-CR, 2011 WL
286136 (Tex. App.—Houston [1 Dist] Jan. 27, 2011) (Sunday at 4:50 a.m. deemed “a time at which more individuals
drive intoxicated”).
Nervousness: Nervousness is a factor to consider in determining reasonable suspicion. Balentine v. State, 71 S.W.3d 763,
769 (Tex. Crim. App. 2002); Illinois v. Wardlow, 528 U.S. 119, 124, (2000); Haas v. State, 172 S.W.3d 42, 54 (Tex.
App.—Waco 2005, pet. ref ’d). “Extreme nervousness has traditionally been a fact that law enforcement has used in its
list of elements leading up to either reasonable suspicion or probable cause.” Veal v. State, 28 S.W.3d 832, 837 (Tex.
App.—Beaumont 2000, pet. ref ’d) (citing U.S. v. Sokolow, 490 U.S. 1, 3 (1989)). But nervousness alone does not support
a reasonable suspicion determination. Davis v. State, 947 S.W.2d 240, 248 (Tex. Crim. App. 1997) (“It is not indicative
of guilt for a person to be nervous when confronted by police officers asking questions.”). Nervousness alone is not
sufficient to establish reasonable suspicion and is of minimal probative value. Sieffert v. State, 290 S.W.3d 478, 485 (Tex.
App.—Amarillo 2009, no pet.) (citing Deschenes v. State, 253 S.W.3d 374, 383 n. 10 (Tex. App.—Amarillo 2008, pet.
ref ’d) (and collected cases cited therein)). See also McQuarters v. State, 58 S.W.3d 250, 257–58 (Tex. App.—Fort Worth
2001, pet. ref ’d) (“nervousness is a weak indicator of hidden narcotics”). Nervous behavior is a pertinent factor in
determining reasonable suspicion, but nervousness alone is not sufficient to provide reasonable suspicion. Green v. State,
256 S.W.3d 456, 462 (Tex. App.—Waco 2008, no pet.).
16
Evasive behavior: Nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. Illinois v. Wardlow,
528 U.S. 119, 124 (2000).
Prior criminal history: United States v. Jones, 234 F.3d 234, 242 (5th Cir.2000) (noting that prior arrest alone does not
amount to reasonable suspicion), but, in certain cases, they can be a factor to consider in determining reasonable suspicion
when combined with other factors and especially when those arrests are drug related; Parker v. State, 297 S.W.3d 803,
811 (Tex.App.-Eastland 2009, pet. ref ’d) (considering lengthy criminal history, including numerous drug offenses, as
part of totality of circumstances in reasonable suspicion determination); Coleman v. State, 188 S.W.3d 708, 718–19
(Tex.App.-Tyler 2005, pet. ref ’d), cert. denied, 549 U.S. 999 (2006) (one of the three factors identified by officer that
gave rise to reasonable suspicion was the defendant’s prior arrests for drug offenses); Powell v. State, 5 S.W.3d 369, 378
(Tex.App.-Texarkana 1999, pet. ref ’d) (same), cert. denied, 529 U.S. 1116 (2000) (prior drug offenses and nervousness
were factors considered in determining whether post-citation detention was reasonable).; see also Morris v. State,
No. 07–06–00141–CR, 2006 WL 3193724, at *3 (Tex.App.-Amarillo Nov. 6, 2006, no pet.) (mem. op., not designated
for publication) (same).
Furtive gestures: Furtive movements during a police stop may be a factor giving rise to reasonable suspicion. LeBlanc v.
State, 138 S.W.3d 603, 608 n. 5 (Tex.App.-Houston [1st Dist.] 2004, no pet.). Evidence of nervousness, furtive gestures,
sudden movements, or flight alone may be innocent, but if these actions are combined with other factors, they can give
rise to reasonable suspicion. Illinois v. Wardlow, 528 U.S. 119, 124 (2000); Worthey v. State, 805 S.W.2d 435, 438–39
(Tex.Crim.App.1991); Valencia v. State, 820 S.W.2d 397, 400 (Tex.App.-Houston [14th Dist.] 1991, pet ref ’d); Lippert
v. State, 664 S.W.2d 712, 721 (Tex.Crim.App.1984). Further, a temporary detention is an appropriate method to ensure
officer safety under circumstances in which an officer reasonably feels threatened. See Rhodes v. State, 945 S.W.2d 115,
117-18 (Tex.Crim.App.1997). Zone v. State, 84 S.W.3d 733, 738-39 (Tex.App.-Houston [1st Dist.] 2002), aff ’d, 118
S.W.3d 776 (Tex .Crim.App.2003) (defendant being handed something and quickly walking away after police arrived
constituted furtive movement giving rise to reasonable suspicion).
Flight: See, e.g., Washington v. State, 660 S.W.2d 533, 535 (Tex.Crim.App.1983) (“Flight from a law enforcement officer
‘can provide in appropriate circumstances the key ingredient justifying the decision of a law enforcement officer to take
action.’ ”) (quoting United States v. Vasquez, 534 F.2d 1142, 1145 (5th Cir.1976)); Reyes v. State, 899 S.W.2d 319, 324
(Tex.App.-Houston [14th Dist.] 1995, pet. ref'd) (characterizing flight as “the straw that broke the camel’s back” in jus-
tifying officer’s decision to detain appellant); see also Illinois v. Wardlow, 528 U.S. 119, 124 (2000) (recognizing “nervous,
evasive behavior” as “a pertinent factor in determining reasonable suspicion” and characterizing “headlong flight” as “the
consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such”);
No reasonable suspicion based upon:
Uncorroborated Anonymous Tip: An uncorroborated anonymous tip, standing alone, does not establish reasonable
suspicion to believe that a person is engaged or about to be engaged in criminal activity. See Florida v. J.L., 529 U.S. 266,
272 (2000) (“The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its
tendency to identify a determinate person.”). Law enforcement “generally cannot rely alone on a police broadcast of an
anonymous phone call to establish reasonable suspicion.” Hall v. State, 74 S.W.3d 521, 525 (Tex.App.-Amarillo 2002,
no pet.) (quoting Garcia v. State, 3 S.W.3d 227, 234–35 (Tex.App.-Houston [14th Dist.] 1999), aff ’d, 43 S.W.3d 527
(Tex.Crim.App.2001)); see also Davis v. State, 989 S.W.2d 859 (Tex.App.-Austin 1999) (phone call accurately describing
defendant’s vehicle with the additional claim that it was being driven “recklessly” did not provide sufficient suspicion to
stop vehicle when police saw no unusual driving of the vehicle); Garcia v. State, 3 S.W.3d 227 (Tex.App.-Houston
[14thDist.] 1999) (anonymous tip was not sufficiently corroborated in this marihuana in home case and subsequent
17
consent was tainted by the illegal detention); Hall v. State, 74 S.W.3d 521 (Tex.App.-Amarillo
2002) (anonymous tip of DWI driver coupled with no poor driving observed by law enforce-
ment did not justify stop of automobile); Johnson v. State, 146 S.W.3d 719 (Tex.App.-Texarkana
2004) (anonymous tip did not justify detention); Swaffar v State, 258 S.W.3d 254 (Tex.App.-
Fort Worth 2008) (anonymous tip of couple fighting in parking lot with man possibly intox-
icated coupled with officer observation of no poor driving was not sufficient to justify stop);
State v. Sanders, No. 04 - 11-00392-CR (Tex.App.-San Antonio, 2011) (officer lacked RS to
justify investigatory stop of vehicle, despite officer’s observation of D’s vehicle crossing high-
way’s center stripe coupled with anonymous caller’s tip reporting dangerous driving by a vehicle
matching D’s vehicle);
Avoiding a consensual encounter: Avoiding police is not unlawful. See Gurrola v. State, 877
S.W.2d 300, 302–03 (Tex.Crim.App.1994); Cook v. State, 1 S.W.3d 718 (Tex.App.-El Paso
1999) (hand movements indicative of a drug transaction in a high drug transaction area cou-
pled with defendant walking away from approaching officer did not give rise to a reasonable
Reyes v. State, 899 S.W.2d 319, 325 (Tex.App.-Houston [14th Dist.] 1995, pet. ref ’d) (holding
that flight from authority supports reasonable suspicion for investigative detention); cf Barrett
v. State, 718 S.W.2d 888, 890 (Tex. App.-Beaumont 1986, pet. ref ’d) (court held that defen-
dant’s stopping of his vehicle 100 feet behind the stop line for a red light and behind a police
car in the adjacent lane, created reasonable suspicion that defendant intended to avoid the
police or needed assistance, justifying a brief investigatory detention).
Hunch, suspicion, “spider sense”: An officer’s suspicion that “something [is] out of the or-
dinary” is nothing more than an inarticulate hunch or suspicion—insufficient for a temporary
detention. Sieffer v. State, 290 S.W.3d 478 (Tex.App.-Amarillo, 2009) (citing) Talbert v. State,
489 S.W.2d 309, 311 (Tex.Crim.App.1973). See, e.g., Davis, 947 S.W.2d at 245–46 (no rea-
sonable suspicion to detain when officers concluded out-of-state driver was not intoxicated
but they also believed the driver was not on a business trip as represented); White v. State, 574
S.W.2d 546, 547 (Tex.Crim.App.1978) (reasonable suspicion did not exist where vehicle ob-
served driving aimlessly in mall parking lot even though there had been a rash of purse snatch-
ings in the parking lot); State v. Losoya, 128 S.W.3d 413, 415 (Tex.App.-Austin 2004, pet. ref’d)
(no reasonable suspicion when officers, acting on an anonymous tip of a “black male” involved
in narcotics activity, observed a “black male” make a “hasty” departure from high crime area
after observing the police)
Refusal to consent: Refusal to consent to a search, by itself, is insufficient to show reasonable

suspicion. See Wade v. State, PD-1710-12, 2013 Tex. Crim. App. LEXIS 1314, 2013 WL
4820299 (Tex. Crim. App. Sept. 11, 2013); Davis v. State, 947 S.W.2d 240, 241 (Tex. Crim.
App. 1997); Sieffert v. State, 290 S.W.3d 478, 484 (Tex. App.-Amarillo 2009, no pet.); Green
v. State, 256 S.W.3d 456, 462 (Tex. App.-Waco 2008, no pet.).
Flight: Flight alone is insufficient to justify an investigatory detention, and flight from a show
of authority is only a factor in support of a finding of reasonable suspicion that an individual
is involved in criminal activity. Reyes v. State, 899 S.W.2d 319, 325 (Tex. App.-Houston [14th
Dist.] 1995, pet. ref ’d); Salazar v. State, 893 S.W.2d 138, 141 (Tex. App.-Houston [1st Dist.]
1995, pet. ref ’d, untimely filed); Castillo v. State, 2011 WL 4830168 (Tex. App.-San Antonio
Oct 12, 2011, no pet.).
18
Mere conclusions of traffic violation: See Ford v. State, 158 S.W.3d 488 (Tex. Crim. App. 2005) (officer’s testimony
that Defendant was “following too close” to another vehicle is not specific enough and thus conclusory).
Nodding off: State v Griffey, 241 S.W.3d 700 (Tex. App.-Austin 2007) (detention based upon report of falling asleep in
drive-through lane at fast food joint, but being awake by the time the cops got there, not reasonable suspicion).
Scope of Investigative Detention: Must be Reasonably Related to Reasonable Suspicion
An investigative detention is reasonable, and thus constitutional, if (1) the officer’s action was justified at the detention’s
inception, and (2) the detention was reasonably related in scope to the circumstances that justified the interference in
the first place. Terry v. Ohio, 392 U.S. at 19–20. For the officer’s initial action to be justified under the first Terry prong,
courts consider whether there existed specific, articulable facts that, taken together with rational inferences from those
facts, reasonably warranted that intrusion. Id. at 21. Specifically, the officer must have a reasonable suspicion that some
activity out of the ordinary is occurring or has occurred, some suggestion to connect the detainee with the unusual activity,
and some indication that the unusual activity is related to a crime. See Davis v. State, 947 S.W.2d at 244.
Initial Detention: Temporary and Limited
Under the second Terry prong, an investigative detention must be temporary and last no longer than necessary to effectuate
the purpose of the stop. See Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim. App. 2004). The scope of the seizure must also
be restricted to that necessary to fulfill the seizure’s purpose. Florida v. Royer, 460 U.S. 491, 500 (1983). Once the reason
for a routine traffic stop is resolved, the stop may not then be used as a fishing expedition for unrelated criminal activity.
Davis, 947 S.W.2d at 243 (quoting Ohio v. Robinette, 519 U.S. 33, 41 (1996) (Ginsburg, J., concurring)). During a routine
traffic stop, an officer may check for outstanding warrants and demand identification, a valid driver’s license, and proof
of insurance from the driver. Kothe 152 S.W.3d at 63; Caraway, 255 S.W.3d at 307.
Prolonged Detention: Must Develop New Reasonable Suspicion
If, during that investigation, an officer develops reasonable suspicion that another violation has occurred, the scope of
the initial investigation expands to the new offense. Goudeau v. State, 209 S.W.3d 713, 719 (Tex. App.-Houston [14th
Dist.] 2006, no pet.). The officer must be able to point to specific articulable facts, which, based on his experience and
personal knowledge coupled with logical inferences drawn from these facts, warrant the additional intrusion. Davis, 947
S.W.2d at 244. An officer is entitled to rely on all the information obtained during his contact with a motorist in developing
the articulable facts justifying continued detention. Razo v. State, 577 S.W.2d 709, 711 (Tex. Crim. App. 1979); Powell v.
State, 5 S.W.3d 369, 377 (Tex. App.-Texarkana 1999, pet. refused).
Arrest
An arrest imposes a greater degree of restriction on an individual’s freedom of movement than an investigatory detention.
State v. Sheppard, 271 S.W.3d 281, 290 (Tex. Crim. App. 2008). An arrest involves an almost total restraint on an indi-
vidual’s freedom of movement. See Dowhitt, 931 S.W.2d at 255. Accordingly, an arrest must be justified by probable
cause as opposed to reasonable suspicion. Amores, 816 S.W.2d at 411.
Probable Cause Needed for Arrest
Probable cause to arrest exists when, at that moment, the facts and circumstances within the knowledge of the arresting officer
and of which he has reasonably trustworthy information that would warrant a reasonable and prudent man in believing that
19
a particular person has committed or is committing a crime. Jones v. State, 493 S.W.2d 933, 935 (Tex. Crim. App. 1973);
Gerstein v. Pugh, 420 U.S. 103, 113 (1975). This includes misdemeanor offenses. Atwater v. City of Lago Vista, 532 U.S. 318
(2001) (whether the misdemeanor offense must be committed in the officer’s presence has not been decided, see n. 11).
The Tex. Code Crim. Proc. Art 14: Requires an officer to have a warrant to arrest a suspect unless an exception applies.
Exceptions:
1. He witnesses a felony or offense against the public peace whether or not the witness is a peace officer. Tex. Code
Crim. App. article 14.01(a).
2. Witness is a peace officer and he witnesses any offense. (Art. 14.01(b)) In addition, a peace officer may make a
warrantless arrest where:
3. The suspect is in a suspicious place: “persons found in suspicious places and under circumstances which
reasonably show that such person have been guilty of some felony, breach of peace, intoxication offense, or are
about to commit some offense against the laws.” Article 14.03(a)(1).
4. There is probable cause to believe:
a person has committed assault with bodily injury and there is danger that he will cause further bodily injury.
a person has violated a protective order.
a person has committed an act of family violence.
a person has interfered with another’s ability to make an emergency call.
6. An admissible statement to an officer gives him probable cause to believe a person has committed a felony,
7. There is satisfactory proof that the person committed a felony and the offender is about to escape. An officer
may only make a warrantless arrest at the suspect’s home where there is consent, or exigent
SEARCHES WITHOUT A WARRANT
Just as a person may consent to a conversation with a police officer, a person may similarly consent—or fail to adequately
object—to a request to search their pockets, belongings, handbags, car, home, cellphone, computer, or office. Absent
consent, the police still have the power in certain circumstances to search a person’s clothing, car, and home.
1. Searching a person
Frisk for Weapons (before arrest): When a reasonable person in the officer’s circumstances would have believed there
was a danger to the officer’s safety or the safety of others (objective standard). Terry v. Ohio, 392 U.S. 1 (1968).
Plain Feel (during frisk): If in the course of a lawful frisk of a defendant’s clothing a police officer feels an object
whose contour or mass make it immediately apparent that it is contraband, it may be seized. Minnesota v. Dick-
erson, 508 U.S. 366 (1993); Griffin v. State, 215 S.W. 3d 403 (Tex. Crim. App. 2006).
Search Incident to Arrest (after arrest): Once a person is arrested the police may perform a thorough search of
the person before they are booked into jail. Arizona v. Gant, 129 S.Ct. 1710 (2009).
2. Searching a car
a. Search Incident to Arrest: In Gant, the Supreme Court narrowed the search incident to arrest exception as
it pertains to vehicle searches. A search incident to arrest is permissible in two contexts:
b. A search for weapons based on concerns about officer safety. An officer may search the car for weapons if the
defendant is within reaching distance of the passenger compartment.
A search for evidence of the offense that the defendant was arrested for. Where an officer has probable cause to
20
believe that a driver is committing or has committed a crime, and also has probable cause to believe that the car
contains contraband or evidence of that crime, he may search the entire car, and any container inside that could
reasonably hold the evidence or contraband. US v. Ross, 456 U.S. 798 (1982); Carroll v. US, 267 U.S. 132 (1925).
However, where the defendant was arrested for a traffic offense, there is no reasonable basis to believe that the car
contains evidence of that offense. Gant, 129 S.Ct. 1710.
Inventory Search: to protect defendant’s interest in property, to protect police from unmeritorious claims, and to
protect against dangerous objects that might be inside the car. The burden is on the state to show that (1) standardized
inventory procedures are in place, and (2) that those procedures were followed. Benavides v. State, 600 S.W.2d 809
(Tex. Crim. App 1980); State v. Stauder, 264 S.W.3d 360 (Tex. App.-Eastland 2008, pet. ref ’d).
3. Searching a residence
Circumstances present urgency that would prevent officers from getting a warrant; officers have probable cause to
believe that items relating to the crime will be found or that the suspect will be found; and the search is limited in
scope by the nature of the emergency.
Example: The odor of marihuana standing alone isn’t enough to give officers the right to enter a residence and
search without a warrant. Steelman v. State, 93 S.W.3d 102 (Tex. Crim. App. 2002); Moulden v. State, 576 S.W.2d
817 (Tex.Crim.App. 1978).
Emergency Exception: Where an officer reasonably believes someone inside is seriously injured or is in immediate
danger of being seriously injured. The reason for entry must be divorced from detection, investigation, or acquisition
of evidence. Gonzalez v. State, 148 S.W.3d 702 (Tex. App.-Austin 2004, pet. ref ’d); Laney v. State, 117 S.W.3d 854
(Tex. Crim. App. 2003).
Search incident to arrest: Police may search area of house where Defendant could reasonably reach to retrieve a
weapon or dispose of drugs. Chimel v. California, 395 U.S. 752 (1969).
Protective sweep: Police may conduct a protective sweep of the house to make sure no one is hiding. This is a very
cursory, visual sweep. Maryland v. Buie, 494 U.S. 325 (1990).
21
Client Information Form
Today’s Date: Place of meeting:
Full Name: Social Security Number:
(Last) (First) (Middle)

Aliases/Nicknames: Date of Birth:
Present Age:
Mailing Address: Present Address: _________________ Co. Jail
E-mail:
Home Phone: ( ) Cell Phone: ( )
Employer: Work Phone: ( )
Job:
Income (specify if yearly/monthly/weekly, gross Supervisor:

(pre-tax), net (after-tax)):
Marital status: Household Size:

Single/never married Client
Married Spouse/Significant Other
Separated Minor Children: #_____
Divorced Other Dependents: #_____
Widowed Total household size:
Bond: Race/ethnicity: Sex:

Held without bond Black Male
Secured bond set at: $ Hispanic Female
Personal bond set at: $ White Principal language:
Has posted bond. Native American English
Has not posted bond (being held). Asian Spanish
Bondsman: Other
Phone: ( )
Arrest date: Arresting agency:
City Police Department
Offense (specify if felony/misdemeanor): City Sheriff's Office
Federal (specify):
State (specify):
Court: NEXT STEP

___________ County Court at Law 1. CALENDAR NEXT COURT DATE
___________ District Court #_______ 2. SET UP FILE
Other: 3. HAVE REP AGREEMENT SIGNED
Previous Offenses:
Next court date, time, and purpose:
23
THE LAW OFFICE OF JOHN DOE
101 Main St., Suite 101
Anywhere, TX 06010
Telephone: (555) 555-5555
Facsimile: (222) 222-2222
[email protected]
Court Coordinator, County Court at Law #2

Anywhere County, Texas
Re: The State of Texas v. Jane Doe, Cause Number 00-00101
To Whom It May Concern:
Please accept this letter as confirmation that my office represents Jane Doe in the above-referenced matter.
I request that all future correspondence regarding Jane Doe be forwarded to my office at the above-listed address.
We hereby enter a plea of Not Guilty and request that the case be reset to a pre-trial setting.
Thank you very much for your attention to this matter. If there are any questions or concerns, or if I can be of service
to the Court, please do not hesitate to contact my office.
Respectfully Submitted,
John Doe
24
CAUSE NO. 00-000000
THE STATE OF TEXAS § IN THE COUNTY COURT

§
VS. § AT LAW #2 OF
§
JANE SMITH § ANYWHERE COUNTY, TEXAS
NOTICE OF APPEARANCE OF COUNSEL AND FORMAL REQUEST FOR COMPLIANCE

WITH ARTICLE 39.14 OF THE TEXAS CODE OF CRIMINAL PROCEDURE
Now comes, John Doe, attorney at law and enters this his appearance as the attorney of record for Jane Smith,
Defendant, herein, representing her in the above entitled case, and requesting that he be notified of any and all settings
and notifications in the above entitled and numbered cause.
In addition to this attorney’s appearance, this document shall also serve as a formal request upon the prosecuting
attorney to comply with 39.14 of the Texas Code of Criminal Procedure to produce and permit the inspection and/or
the electronic duplication, copying, and photographing, by and on behalf of the defendant the following:
a. Any offense reports of any law enforcement officer or officers or investigators involved in the investigation,
arrest, and detainment of the defendant herein;
b. Any documents, papers, written or recorded statements of the defendant;
c. Any documents, papers, written or recorded statements of any witness which the prosecuting attorney may
call as a witness herein;
d. Any photographs, audio or video recordings of the defendant, witnesses, victims, or alleged crime scenes;
e. Any books, accounts, ledgers, photographs, or other tangible objects involved in the investigation and/or
prosecution of this offense;
f. Any tangible property of any type seized during any arrest, search, detainment of the defendant herein;
g. Any evidence which is exculpatory, impeachment or mitigating document, item or information in the
possession, custody, or control of the State, any law enforcement agency, or any State agency that tends to
negate the guilt of the defendant or would tend to reduce the punishment for the offense charged;
h. The names, current addresses, current telephone numbers, of any witness which may be called by the
prosecution in this cause pursuant to Rules 702, 703, and 705 of the Texas Rules of Evidence;
i. The criminal history of each and every witness the prosecution may call as a witness in this cause;
but not including the work product of counsel for the State in the case and their investigators employed by the prosecuting
attorney for the State, nor their notes, nor written communications between the State and an agent, representative, or
employee of the State that constitute or contain evidence material to any matter involved in this cause. However, it does
extend to all items requested herein and are in the possession, custody, or control of the State or any person under contract
with the State. The State may provide electronic duplicates of any documents or other information.
This request extends to any time before, during, or after trial that the State, its agents, servants, and employees
discover any additional document, item, or information required to be disclosed pursuant to Article 39.14 of the Texas
Code of Criminal Procedure under Subsection (h) requiring the prosecuting attorney for the State to promptly disclose
the existence of the document, item, or information to the defendant, his attorney of record, and the court.
25
Additionally, the defendant, by and through his attorney of record hereby requests that the State electronically record
or otherwise document any document, item, or other information provided pursuant hereto, setting forth each document,
item, or other information and the date and time same was provided to defendant’s attorney of record.
This request is made pursuant to the requirements of Article 39.14 of the Texas Rules of Criminal Procedure and the
attorney for defendant requests that the prosecuting attorney for the State comply with these requests within 14 days of
this request, or that the prosecuting attorney for the State file a formal motion to extend the time from the aforementioned
14 days, for the furnishing of same and request a formal hearing for the reasons for noncompliance and/or extending the
time for compliance.
Respectfully submitted,
By:__________________________
John Doe
ATTORNEY FOR DEFENDANT
Texas Bar No. 00000001
Anywhere, TX 06010
Tel. 555-555-5555
CERTIFICATE OF SERVICE
I, John Doe, Attorney for Defendant herein, do hereby certify that a true and correct copy of this Notice of Appearance
of Counsel and Formal Request for Compliance with Article 39.14 of the Texas Code of Criminal Procedure was delivered
to the County Court at Law #2 of Anywhere County, Texas, and the District Attorney of Anywhere County, Texas, on
January 4, 2013, as provided by the Texas Rules of Criminal Procedure.
_______________________________________
JOHN DOE
Attorney for Jane Smith
26
CAUSE NUMBER 00-000000

§
VS. § AT LAW #2
§
JANE DOE
§ ANYWHERE COUNTY, TEXAS
MOTION TO SUPPRESS
TO THE HONORABLE JUDGE OF SAID COURT:

Now comes Jane Doe, Defendant, and respectfully moves this Honorable Court to suppress all evidence resulting
from the illegal search of the automobile involved in the incident of May 31, 2012 and any containers residing in said
automobile as follows:
1. All physical evidence including, but not limited to, any illegal narcotics seized on or about May 31, 2012 from
the automobile and any containers residing in said automobile by law enforcement officers of the Anywhere County
Sheriff ’s Office.
2. All testimony of any law enforcement officers, their agents, and all other persons working in connection with
such officers and agents, as to the finding of any physical evidence at the scene of the illegal search challenged herein.
3. The results of any and all scientific tests or procedures conducted on any item of physical evidence seized under
the illegal warrantless search challenged herein.
4. All statements, either written or oral of the Defendant, any alleged co-conspirators, co-defendants, or accomplices
obtained as a result of the illegal warrantless search challenged herein.
5. Any physical evidence or the testimony of any person discovered by law enforcement officers as a result of infor-
mation gained through the illegal search of the Defendant challenged herein.
In support of the motion, the Defendant would show this Honorable Court that the evidence seized was the result
of a warrantless search without probably cause in violation of the Fourth, Fifth, Sixth, and Fourteenth Amendments to
the United States Constitution, Article I, Sections 9, 10 and 19 of the Constitution of the State of Texas and under
Article 38.23 of the Texas Code of Criminal Procedure. Said search was not the result of a valid consent by the Defendant.
Further, the scope of said search exceeded that authorized by law for a warrantless search.
WHEREFORE, PREMISES CONSIDERED, Defendant prays that this Honorable Court suppress such matters
at trial of this cause, and for such other and further relief in connection therewith that is proper.
_______________________________________
John Doe
Attorney for Defendant
I hereby certify that a true and correct copy of the foregoing Motion was hand delivered to the Anywhere County
District Attorney’s Office, Anywhere, Texas, on October 31, 2013.
_______________________________________
John Doe
27

§
VS. § AT LAW #2
§
JANE DOE
ORDER
On this ____________ day of __________________, 2013, came to be heard the foregoing Motion and it appears
to the Court that the same should be GRANTED/DENIED.
_______________________________________
Judge Presiding
28

§
VS. § AT LAW #2
§
JANE DOE
NOTICE OF APPEAL
TO THE HONORABLE JUDGE OF SAID COURT:

Now comes Jane Doe, Defendant, and respectfully gives notice of his/her desire to appeal the verdict, judgment and
sentence in this case, including any pre-trial matters ruled upon by the trial court.
_______________________________________
John Doe
I hereby certify that a true and correct copy of the foregoing Motion was hand delivered to the Anywhere County
District Attorney’s Office, Anywhere, Texas, on October 31, 2013
_______________________________________
John Doe
29
CAUSE NO. 00-000000

§
VS. § AT LAW #2 OF
§
MOTION TO WITHDRAW AS COUNSEL
John Doe, Attorney for the Defendant, moves that he be allowed to withdraw as counsel and shows the Court as follows:
I.
The Defendant is charged with Possession of Marihuana in the above style in the County Court at Law #2. Mr. John
Doe was appointed as counsel for the Defendant on the current charge on January 1, 2013.
II.
Mr. Doe was appointed as counsel for defendant on another pending charge on September 28, 2012. He was sub-
sequently appointed to represent defendantn on the Possession of Marihuana when he was so charged. The interests and
claims of both defendant and Mr. Spoon in this incident make it impossible for Mr. Doe to adequately represent both
Defendants in the same cause number.
PRAYER
WHEREFORE, PREMISES CONSIDERED, the Defendant respectfully prays the Court grant this Motion to
Withdraw as Counsel.
By:__________________________________
John Doe
Texas Bar No. 00000001
Anywhere, TX 06010
Tel. 555-555-5555
I certify that on January 4, 2013, a true and correct copy of this Motion to Withdraw as Counsel was served by per-
sonal delivery on the Assistant District Attorney handling this case.
_______________________________________
John Doe
30
CAUSE NO. 00-000000

§
VS. § AT LAW #2 OF
§
ORDER ON MOTION TO WITHDRAW AS COUNSEL
On this day, came to be heard Attorney’s Motion to Withdraw as Counsel and the Court, after due consideration of
the same, is of the opinion that the said motion is GRANTED/DENIED.
Signed on the _______________Day of __________________________, 2013.
_______________________________________
JUDGE PRESIDING
31
Representation Agreement
The Court has appointed __________________________________________________________(“Attorney”)

to represent ______________________________________________________________________(“Client”).
Client hereby agrees that Attorney will provide the following legal services to Client:
1. Attorney’s Fees. There is no charge for Attorney services. Because Client is indigent, all expenses will be paid for
by the Court. However, this in no way excludes the Client from the responsibility of paying court costs, restitution,
fees, or fines.
2. Client Cooperation. Client promises to cooperate with Attorney on this case. This means keeping scheduled
appointments, giving Attorney any documents, papers or other requested information, and letting Attorney know
how to contact Client at all times. Client also agrees not to talk with an opposing party or lawyer without first
consulting Attorney and to notify Attorney immediately if anyone tries to contact Client directly.
3. Withdrawal. Having agreed to the above cooperation, Attorney reserves the right to withdraw from the case if
Attorney determines on the basis of discovered facts or changed circumstances that in the Attorney’s professional
judgment warrant the withdrawal.
4. Scope of Representation. Attorney has been appointed to represent you with respect to the above-captioned case
only. Unless otherwise agreed to in writing, Attorney will not represent you in any other cases or with other matters.
This includes, but is not limited to, “collateral proceedings” such as license revocation hearings, civil lawsuits
connected with this or any other case, or deportation proceedings. Attorney would be glad to refer you to another
attorney to help you with those matters.
5. Privilege. Anything Client says to Attorney during the course of representation will be kept confidential. However,
there are a number of important exceptions to this rule which Client must be aware of. For example, if you tell me you
are going to commit a crime, that fact is not confidential and must be reported to the police in certain circumstances.
And, if other people are present during an attorney-client discussion, that conversation is not privileged and may be
testified to. Do not discuss your case with anyone, including friends and family. People you talk to can be subpoenaed
(forced) to testify against you. Criminal defendants and inmates at the jail may be looking to make a deal with the
prosecutor in exchange for testimony about what you have said. Do not contact anyone involved in this case, such as
the victim, witnesses, or police officers. Victims and witnesses may perceive your contact as intimidation.
6. No Promises as to Results. Attorney has made, and will make, no promises as to the outcome of the case. Attorney
cannot promise an acquittal, probation, or any other outcome. In large part, the ultimate result of the case depends
on what Client does now and how Client behaves in jail or pretrial release officer, whether Client is arrested for
any new offenses, and whether Client stays clean and sober.
THIS AGREEMENT is effective from the date(s) indicated by the signature of the respective parties.
_______________________________________ _______________________________________
Attorney Defendant/Client Signature
_______________________________________ _______________________________________
Date Printed Name
_______________________________________
Date
32
Health and safety code
Sec. 481.115. OFFENSE: POSSESSION OF SUBSTANCE IN PENALTY GROUP 1. (a) Except as authorized by
this chapter, a person commits an offense if the person knowingly or intentionally possesses a controlled substance listed
in Penalty Group 1, unless the person obtained the substance directly from or under a valid prescription or order of a
practitioner acting in the course of professional practice.
(b) An offense under Subsection (a) is a state jail felony if the amount of the controlled substance possessed is, by aggregate
weight, including adulterants or dilutants, less than one gram.
(c) An offense under Subsection (a) is a felony of the third degree if the amount of the controlled substance possessed is,
by aggregate weight, including adulterants or dilutants, one gram or more but less than four grams.
(d) An offense under Subsection (a) is a felony of the second degree if the amount of the controlled substance possessed
is, by aggregate weight, including adulterants or dilutants, four grams or more but less than 200 grams.
(e) An offense under Subsection (a) is a felony of the first degree if the amount of the controlled substance possessed is,
by aggregate weight, including adulterants or dilutants, 200 grams or more but less than 400 grams.
(f ) An offense under Subsection (a) is punishable by imprisonment in the Texas Department of Criminal Justice for life
or for a term of not more than 99 years or less than 10 years, and a fine not to exceed $100,000, if the amount of the
controlled substance possessed is, by aggregate weight, including adulterants or dilutants, 400 grams or more.
Sec. 481.1151. OFFENSE: POSSESSION OF SUBSTANCE IN PENALTY GROUP 1-A. (a) Except as provided
by this chapter, a person commits an offense if the person knowingly possesses a controlled substance listed in Penalty
Group 1-A.
(b) An offense under this section is:
(1) a state jail felony if the number of abuse units of the controlled substance is fewer than 20;
(2) a felony of the third degree if the number of abuse units of the controlled substance is 20 or more but fewer than 80;
(3) a felony of the second degree if the number of abuse units of the controlled substance is 80 or more but fewer than
4,000;
(4) a felony of the first degree if the number of abuse units of the controlled substance is 4,000 or more but fewer than
8,000; and
(5) punishable by imprisonment in the Texas Department of Criminal Justice for life or for a term of not more than 99
years or less than 15 years and a fine not to exceed $250,000, if the number of abuse units of the controlled substance is
8,000 or more.
practitioner acting in the course of professional practice.
(b) An offense under Subsection (a) is a state jail felony if the amount of the controlled substance possessed is, by aggregate
weight, including adulterants or dilutants, less than one gram.
by aggregate weight, including adulterants or dilutants, one gram or more but less than four grams.
(d) An offense under Subsection (a) is a felony of the second degree if the amount of the controlled substance possessed
is, by aggregate weight, including adulterants or dilutants, four grams or more but less than 400 grams.
(e) An offense under Subsection (a) is punishable by imprisonment in the Texas Department of Criminal Justice for life
or for a term of not more than 99 years or less than five years, and a fine not to exceed $50,000, if the amount of the
33
Sec. 481.1161. OFFENSE: POSSESSION OF SUBSTANCE IN PENALTY GROUP 2-A. (a) Except as authorized
by this chapter, a person commits an offense if the person knowingly possesses a controlled substance listed in Penalty
Group 2-A, unless the person obtained the substance directly from or under a valid prescription or order of a practitioner
acting in the course of professional practice.
(b) An offense under this section is:
(1) a Class B misdemeanor if the amount of the controlled substance possessed is, by aggregate weight, including adul-
terants or dilutants, two ounces or less;
(2) a Class A misdemeanor if the amount of the controlled substance possessed is, by aggregate weight, including adul-
terants or dilutants, four ounces or less but more than two ounces;
(3) a state jail felony if the amount of the controlled substance possessed is, by aggregate weight, including adulterants
or dilutants, five pounds or less but more than four ounces;
(4) a felony of the third degree if the amount of the controlled substance possessed is, by aggregate weight, including
adulterants or dilutants, 50 pounds or less but more than 5 pounds;
(5) a felony of the second degree if the amount of the controlled substance possessed is, by aggregate weight, including
adulterants or dilutants, 2,000 pounds or less but more than 50 pounds; and
years or less than 5 years, and a fine not to exceed $50,000, if the amount of the controlled substance possessed is, by ag-
gregate weight, including adulterants or dilutants, more than 2,000 pounds.
in Penalty Group 3, unless the person obtains the substance directly from or under a valid prescription or order of a prac-
titioner acting in the course of professional practice.
(b) An offense under Subsection (a) is a Class A misdemeanor if the amount of the controlled substance possessed is, by
aggregate weight, including adulterants or dilutants, less than 28 grams.
(d) An offense under Subsection (a) is a felony of the second degree, if the amount of the controlled substance possessed
is, by aggregate weight, including adulterants or dilutants, 200 grams or more but less than 400 grams.
practitioner acting in the course of practice.
(b) An offense under Subsection (a) is a Class B misdemeanor if the amount of the controlled substance possessed is, by
aggregate weight, including adulterants or dilutants, less than 28 grams.
(d) An offense under Subsection (a) is a felony of the second degree, if the amount of the controlled substance possessed
is, by aggregate weight, including adulterants or dilutants, 200 grams or more but less than 400 grams.
34
Sec. 481.120. OFFENSE: DELIVERY OF MARIHUANA. (a) Except as authorized by this chapter, a person commits
an offense if the person knowingly or intentionally delivers marihuana.
(b) An offense under Subsection (a) is:
(1) a Class B misdemeanor if the amount of marihuana delivered is one-fourth ounce or less and the person committing
the offense does not receive remuneration for the marihuana;
(2) a Class A misdemeanor if the amount of marihuana delivered is one-fourth ounce or less and the person committing
the offense receives remuneration for the marihuana;
(3) a state jail felony if the amount of marihuana delivered is five pounds or less but more than one-fourth ounce;
(4) a felony of the second degree if the amount of marihuana delivered is 50 pounds or less but more than five pounds;
(5) a felony of the first degree if the amount of marihuana delivered is 2,000 pounds or less but more than 50 pounds;
and
years or less than 10 years, and a fine not to exceed $100,000, if the amount of marihuana delivered is more than 2,000
pounds.
Sec. 481.121. OFFENSE: POSSESSION OF MARIHUANA. (a) Except as authorized by this chapter, a person com-
mits an offense if the person knowingly or intentionally possesses a usable quantity of marihuana.
(b) An offense under Subsection (a) is:
(1) a Class B misdemeanor if the amount of marihuana possessed is two ounces or less;
(2) a Class A misdemeanor if the amount of marihuana possessed is four ounces or less but more than two ounces;
(3) a state jail felony if the amount of marihuana possessed is five pounds or less but more than four ounces;
(4) a felony of the third degree if the amount of marihuana possessed is 50 pounds or less but more than 5 pounds;
(5) a felony of the second degree if the amount of marihuana possessed is 2,000 pounds or less but more than 50 pounds;
and
years or less than 5 years, and a fine not to exceed $50,000, if the amount of marihuana possessed is more than 2,000
pounds.
Sec. 481.125. OFFENSE: POSSESSION OR DELIVERY OF DRUG PARAPHERNALIA. (a) A person commits
an offense if the person knowingly or intentionally uses or possesses with intent to use drug paraphernalia to plant, prop-
agate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack,
store, contain, or conceal a controlled substance in violation of this chapter or to inject, ingest, inhale, or otherwise in-
troduce into the human body a controlled substance in violation of this chapter.
(b) A person commits an offense if the person knowingly or intentionally delivers, possesses with intent to deliver, or
manufactures with intent to deliver drug paraphernalia knowing that the person who receives or who is intended to
receive the drug paraphernalia intends that it be used to plant, propagate, cultivate, grow, harvest, manufacture, com-
pound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, or conceal a controlled substance
in violation of this chapter or to inject, ingest, inhale, or otherwise introduce into the human body a controlled substance
in violation of this chapter.
(c) A person commits an offense if the person commits an offense under Subsection (b), is 18 years of age or older, and
the person who receives or who is intended to receive the drug paraphernalia is younger than 18 years of age and at least
three years younger than the actor.
(d) An offense under Subsection (a) is a Class C misdemeanor.
(e) An offense under Subsection (b) is a Class A misdemeanor, unless it is shown on the trial of a defendant that the de-
fendant has previously been convicted under Subsection (b) or (c), in which event the offense is punishable by confinement
in jail for a term of not more than one year or less than 90 days.
(f ) An offense under Subsection (c) is a state jail felony.
35
Sec. 481.133. OFFENSE: FALSIFICATION OF DRUG TEST RESULTS. (a) A person commits an offense if the
person knowingly or intentionally uses or possesses with intent to use any substance or device designed to falsify drug
test results.
(b) A person commits an offense if the person knowingly or intentionally delivers, possesses with intent to deliver, or
manufactures with intent to deliver a substance or device designed to falsify drug test results.
(c) In this section, "drug test" means a lawfully administered test designed to detect the presence of a controlled substance
or marihuana.
(d) An offense under Subsection (a) is a Class B misdemeanor.
(e) An offense under Subsection (b) is a Class A misdemeanor.
Sec. 481.134. DRUG-FREE ZONES. (a) In this section:

(1) “Minor” means a person who is younger than 18 years of age.
(2) “Institution of higher education” means any public or private technical institute, junior college, senior college or
university, medical or dental unit, or other agency of higher education as defined by Section 61.003, Education Code.
(3) “Playground” means any outdoor facility that is not on the premises of a school and that:
(A) is intended for recreation;
(B) is open to the public; and
(C) contains three or more play stations intended for the recreation of children, such as slides, swing sets, and teeter-
boards.
(4) "Premises” means real property and all buildings and appurtenances pertaining to the real property.
(5) “School” means a private or public elementary or secondary school or a day-care center, as defined by Section 42.002,
Human Resources Code.
(6) “Video arcade facility” means any facility that:
(A) is open to the public, including persons who are 17 years of age or younger;
(B) is intended primarily for the use of pinball or video machines; and
(C) contains at least three pinball or video machines.
(7) “Youth center” means any recreational facility or gymnasium that:
(A) is intended primarily for use by persons who are 17 years of age or younger; and
(B) regularly provides athletic, civic, or cultural activities.
(b) An offense otherwise punishable as a state jail felony under Section 481.112, 481.113, 481.114, or 481.120 is pun-
ishable as a felony of the third degree, and an offense otherwise punishable as a felony of the second degree under any of
those sections is punishable as a felony of the first degree, if it is shown at the punishment phase of the trial of the offense
that the offense was committed:
(1) in, on, or within 1,000 feet of premises owned, rented, or leased by an institution of higher learning, the premises
of a public or private youth center, or a playground; or
(2) in, on, or within 300 feet of the premises of a public swimming pool or video arcade facility.
(c) The minimum term of confinement or imprisonment for an offense otherwise punishable under Section 481.112(c),
(d), (e), or (f ), 481.113(c), (d), or (e), 481.114(c), (d), or (e), 481.115(c)-(f ), 481.116(c), (d), or (e), 481.1161(b)(4),
(5), or (6), 481.117(c), (d), or (e), 481.118(c), (d), or (e), 481.120(b)(4), (5), or (6), or 481.121(b)(4), (5), or (6) is in-
creased by five years and the maximum fine for the offense is doubled if it is shown on the trial of the offense that the of-
fense was committed:
(1) in, on, or within 1,000 feet of the premises of a school, the premises of a public or private youth center, or a play-
ground; or
(2) on a school bus.
(d) An offense otherwise punishable under Section 481.112(b), 481.113(b), 481.114(b), 481.115(b), 481.116(b),
481.1161(b)(3), 481.120(b)(3), or 481.121(b)(3) is a felony of the third degree if it is shown on the trial of the offense
that the offense was committed:
36
(1) in, on, or within 1,000 feet of any real property that is owned, rented, or leased to a school or school board, the
premises of a public or private youth center, or a playground; or
(e) An offense otherwise punishable under Section 481.117(b), 481.119(a), 481.120(b)(2), or 481.121(b)(2) is a state
jail felony if it is shown on the trial of the offense that the offense was committed:
(f ) An offense otherwise punishable under Section 481.118(b), 481.119(b), 481.120(b)(1), or 481.121(b)(1) is a Class
A misdemeanor if it is shown on the trial of the offense that the offense was committed:
(g) Subsection (f ) does not apply to an offense if:
(1) the offense was committed inside a private residence; and
(2) no minor was present in the private residence at the time the offense was committed.
(h) Punishment that is increased for a conviction for an offense listed under this section may not run concurrently with
punishment for a conviction under any other criminal statute.
Sec. 483.041. POSSESSION OF DANGEROUS DRUG. (a) A person commits an offense if the person possesses a
dangerous drug unless the person obtains the drug from a pharmacist acting in the manner described by Section
483.042(a)(1) or a practitioner acting in the manner described by Section 483.042(a)(2).
(b) Except as permitted by this chapter, a person commits an offense if the person possesses a dangerous drug for the
purpose of selling the drug.
(c) Subsection (a) does not apply to the possession of a dangerous drug in the usual course of business or practice or in
the performance of official duties by the following persons or an agent or employee of the person:
(1) a pharmacy licensed by the board;
(2) a practitioner;
(3) a person who obtains a dangerous drug for lawful research, teaching, or testing, but not for resale;
(4) a hospital that obtains a dangerous drug for lawful administration by a practitioner;
(5) an officer or employee of the federal, state, or local government;
(6) a manufacturer or wholesaler licensed by the Department of State Health Services under Chapter 431 (Texas Food,
Drug, and Cosmetic Act);
(7) a carrier or warehouseman;
(8) a home and community support services agency licensed under and acting in accordance with Chapter 142;
(9) a licensed midwife who obtains oxygen for administration to a mother or newborn or who obtains a dangerous drug
for the administration of prophylaxis to a newborn for the prevention of ophthalmia neonatorum in accordance with
Section 203.353, Occupations Code;
(10) a salvage broker or salvage operator licensed under Chapter 432; or
(11) a certified laser hair removal professional under Subchapter M, Chapter 401, who possesses and uses a laser or
pulsed light device approved by and registered with the department and in compliance with department rules for the
sole purpose of cosmetic nonablative hair removal.
(d) An offense under this section is a Class A misdemeanor.
37
FEDERAL RULES OF EVIDENCE 1
General Provisions
103(a)(2) – allows an Offer of Proof to be made after a court ruling on evidence
104(b) – under the rule of Conditional Relevance, the court may admit evidence that is not yet relevant with the un-
derstanding that later evidence will make it relevant (a common mock trial problem)
105 – when the court has Limited Admissibility of certain evidence to be used for a specific purpose, either party may
request a limiting instruction to the jury
106 – if one party enters Part of a Document of Recorded Statement, the other party has the option of entering any
other part of that document of statement that fairly ought to be considered
Judicial Notice
201 – a party may ask the court to take Judicial Notice of facts that are generally known or capable of objective determination
Relevance
[REMEMBER: Relevance is all about tying your evidence to a specific element of the charge.]
401 – Relevant Evidence Defined as evidence that has a tendency to make a material fact more or less probable than it
would be without the evidence
402 – Relevant Evidence Inadmissible
*403 – evidence is Substantially More Prejudicial than Probative or a Needless Presentation of Cumulative Evidence
404 – Propensity Evidence is not admissible to prove action and conformity therewith (with limited exceptions – See
Rule 404(b)) [REMEMBER: This is a rule about the defendant. For the rules about other witnesses, see the Witness
Rules in the 600s.]
Witnesses
602 – the witness Lacks Personal Knowledge necessary to testify to a particular fact (also “Speculation”)
608 – Opinion and Reputation Character Evidence of a witness (other than the accused) may go only to truthfulness;
Specific Instances of Conduct of a witness may not be proved by extrinsic evidence (“Bolstering”), but may be
used to establish untruthfulness in cross-examination
611(b) – unless allowed by the court, the Scope of Cross-Examination is limited to (1) the subject matter of direct exam-
ination; or (2) impeachment (same for redirect, with respect to cross)
611(c) – Leading Questions not allowed on direct examination, except as necessary to develop testimony
612 – writings used to Refresh Recollection (why you refresh a witness’ memory thusly)
613 – Impeachment by Prior Inconsistent Statement (why you impeach with a deposition thusly)
615 – (“The Rule”) all witnesses in a case may be excluded from the courtroom while not testifying, except (1) a party
or party’s representative; (2) a party whose presence is essential to putting on a case (usually an expert); or (3) a person
authorized by statute to be present
Expert Witnesses
701 – a Lay Opinion or inference must be (1) rationally based on the witness’ perception; (2) helpful to a clear understanding
of the witness’ testimony; and (3) not scientific, technical, or specialized
702 – (Daubert factors) to qualify an Expert Witness to testify to a scientific, technical, or specialized opinion, a party
must show that (1) the testimony is based on sufficient facts or data; (2) the testimony is the product of reliable methods;
and (3) the witness applied those methods reliably in this case
1 The Texas and Federal Rules are similar in most respects. Know and understand the differences before using this guide
38
703 + 705 – an expert does not need to testify to the Underlying Facts or Data relied on in order to testify to a conclu-
sion, but the facts and data may be testified to, even if otherwise inadmissible, (1) if the court finds the testi-
mony more probative than prejudicial; or (2) on cross-examination
704 – an expert may testify to an Opinion on the Ultimate Issue, except in a criminal case an expert may not testify to
the defendant’s mental state if that mental state is an element of the offense
Hearsay
801(c) – Hearsay Defined as an out-of-court statement offered to prove the truth of the matter asserted
801(d)(2) – Admission by Party Opponent is not hearsay
802 – Hearsay is (generally) Inadmissible [REMEMBER: Hearsay is all about RELIABILITY. If it’s reliable, it should
be admitted.]
803(1) – (Hearsay exception) Present Sense Impression is admissible if the declarant’s statement describes an event or
condition while or immediately after the declarant perceives the event or condition
803(2) – (Hearsay exception) Excited Utterance is admissible if the statement relates to a startling event or condition AND
the declarant makes the statement while under the stress of the event or condition
803(3) – (Hearsay exception) Then Existing Mental, Emotional, or Physical Condition is admissible if the statement
was made about the declarant’s state of mind, emotion, sensation, or physical condition when the statement was made
803(5) – Recorded Recollection is admissible if (1) made or adopted by witness while events still fresh; (2) witness had
knowledge of contents at time made or adopted; (3) witness no longer has recollection of events; may only be offered
into evidence by adverse party
803(6) – (Hearsay exception) Records of Regularly Conducted Activity (also “Business Records”) are admissible if
(1) made at or near the time of the event described; (2) by a person with knowledge of the contents; (3) made in
regular course of business; and (4) kept in regular course of business
803(8) – Public Records and Reports are admissible if (1) sets forth activities of office or agency; (2) matters observed pur-
suant to a duty imposed by law, excluding police observations; or (3) factual findings in a civil case
803(9) – Records of Vital Statistics are admissible if made to a public office as required by law
804 – (Hearsay exception IF declarant unavailable) Statement Against Interest is admissible if at the time of the statement
it was so contrary to the declarant’s pecuniary or proprietary interests that a reasonable person in the declarant’s position
would not have made the statement unless it were true
805 – Hearsay Within Hearsay requires a hearsay exception for each level of hearsay to be admissible
*807 – (Hearsay exception) Residual Exception allows the court to accept hearsay evidence that, though not covered by
a hearsay exception, (1) proves a material fact; (2) is the most probative evidence available that proves that fact; and
(3) it serves the interest of justice to admit the evidence
Authenticity
901 – evidence is not admissible unless there is evidence that it is Authentic (which is why you ask “What is it?” and “Is
it in the same condition?”) [REMEMBER: You will need to lay a basic foundation for your evidence despite the
fact that it may be stipulated as authentic.]
Contents of Writings, Recordings, and Photographs

1001(4) Duplicate Defined + 1003 Admissibility of Duplicate + 402 (‘Would it be helpful?’) = Admissible Use of
Demonstrative
*These are usually weak and should only be used as a last resort, except that a 403 Cumulative objection is usually a good
one to make.
39
Objector Respondant
PRELIMINARY MATTERS We object to the exclusion of [a witness], because this

witness is [a party or party representative or a
We ask to invoke the rule. person whose presence is essential to our case’s
presentation (like an expert)] and is allowed to be
present in the courtroom under Rule 615.
RELEVANCE
Objection, Relevance. Under Rule 402, this evidence This evidence goes to [a specific element of the
is not admissible because it does not have a tendency offense charged].
to make [the fact] more or less probable.
Objection, Relevance. Under Rule 403, this evidence This evidence goes to [a specific element of the offense
is not admissible because its prejudicial effect charged] and is therefore highly probative.
substantially outweighs its probative value.
Objection, Cumulative. Under Rule 403, this [This evidence] is being offered to aid the jury in its
evidence is not admissible because it is cumulative. understanding of the evidence by pointing out
The jury already has [the evidence], and this will [parallels, distinctions, etc.] that the jury would
place undue emphasis on this evidence. not necessarily be able to infer for itself from of the
the face evidence.
Objection, Relevance. Under Rule 403, this evidence This evidence goes to [a specific element of the
is not admissible because it will cause the jury offense charged], and the jury is competent to
to confuse the issues. The defendant has been understand not only how this evidence shows
charged with [the offense charged], and this [the element], but also that the defendant is on
evidence will prejudice the jury by [explain how trial for [the offense charged].
the evidence will confuse the jury].
CHARACTER EVIDENCE
(For Criminal Defendant) Under Rule 404(a)(1), this evidence is admissible to

Objection, Improper Character Evidence. Under rebut the evidence offered by the defense of the
Rule 404, this evidence is inadmissible because defendant’s good character.
it is propensity evidence offered to show the
defendant’s action and conformity therewith. OR
Under Rule 404(b), this evidence is admissible as

proof of the defendant’s [motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence
of mistake of accident]. [Briefly explain how the
evidence shows the item stated.]
40
Objector Respondant
(For a Witness other than Criminal Defendant) This evidence does go to the witness’ character for
Objection, Improper Character Evidence. Under truthfulness, because [briefly explain, hopefully
Rule 404, this evidence is inadmissible because showing that there is evidence that the witness lied,
it is propensity evidence offered to show the committed fraud, or something of the like].
defendant’s action and conformity therewith.
Under Rule 608(b), opposing counsel may not prove Rule 608(b) allows questioning about
this using extrinsic evidence. specific instances of conduct (that go to the
witness’ truthfulness) during cross-examination.
(For any admissible Character Evidence) [The trait] goes to [an element of the claim/defense]
Objection, Improper Character Evidence. Under by [explain briefly if necessary].
Rule 405, proof of specific instances of conduct is only
admissible if the character trait proved is an essential
element of the claim/defense. [The trait] is not an
element of [the claim/defense].
Objection, Bolstering. We have not called (For Criminal Defendant) The defendant’s character
this witness’ character into question. has been called into question by the charges and
indictment against him. We are allowed to rebut
these charges with evidence of good character
under Rule 608(a).
(For a Witness other than Criminal Defendant)

Opposing counsel has called this witness’ character
into question by [explain how]. We are allowed
to rebut this evidence with evidence of good
character under Rule 608(a).
IMPROPER OPINION/OTHER WITNESS ISSUES
Objection, Speculation. This testimony is inadmissible This witness has already testified that [facts
under Rule 602 because this witness lacks the showing that the witness would have personal
personal knowledge to testify to [these facts]. knowledge of the facts testified to].
(If the foundation for personal knowledge argued

by opposing counsel is lacking,) Opposing counsel
has laid [no/insufficient] foundation to show personal
knowledge of this witness.
41
Objector Respondant
Objection, Improper Lay Opinion. This witness has This opinion is not based on [scientific, technical,
not been accepted as an expert. Because this opinion or specialized] knowledge, because [briefly explain].
is based on [scientific, technical, or specialized] Rule 701 allows a lay witness to testify to an opinion
knowledge, it is inadmissible under Rule 701. that is rationally based on the witness’ perception
and helpful to the jury in understanding the
witness’ testimony, and this opinion fits those criteria.
Objection, this witness has not been Properly Qualified The witness has testified that [explain how you
as an Expert Witness. Rule 702 requires that a have shown the specific element objected to].
witness show that [(1) his testimony is based on
sufficient facts or data, (2) his testimony is the
product of reliable principles or methods, or
(3) he applied the principles or methods reliably
to the facts of the case] before giving an expert
opinion. Opposing counsel has not shown this.
In that case, we'd like to take this witness on voir dire. (Respond to the renewed objection by reviewing briefly
(After you are granted permission to voir dire, go how you have shown all three elements of Rule 702.)
directly into questioning. After you have concluded
your questioning, renew your objection.)
(If you’re desperate), Objection, Improper Expert The expert’s testimony will aid the jury in
Testimony. Rule 702 allows expert testimony only if understanding why [explain how the testimony
[scientific, technical, or specialized] knowledge will ties to an element of the offense charged].
assist the jury to either understand the evidence
or determine a fact issue. This expert’s testimony
does neither because it does not go to any of the
elements in the case. (Really a relevance objection.)
Objection, Hearsay. Under Rule 703, the underlying facts and data
of an expert’s opinion are admissible if their
probative value outweighs their prejudicial effect.
This expert witness’ explanation of the facts and
data underlying his opinion will aid the jury in
understanding the opinion.
Although this witness may be able to give an expert (If you’re desperate), the jury is competent to
opinion, the underlying facts and data of that understand the opinion without confusing its
opinion are not admissible, because they are more probative value with any prejudice.
prejudicial than probative under Rule 703 and
will [explain prejudicial effect on jury].
42
Objector Respondant
Objection, Improper Opinion. Under Rule 704, this This testimony goes to the defendant’s mental state
testimony is inadmissible because it goes to the generally, but it does not go to whether or not the defen-
defendant’s mental state or condition, which is dant had the mental state, namely [the mental state required
an element of the offense charged. This is an issue for the offense charged], at the time of the offense. It does
for the jury alone to determine. not make a legal conclusion,but merely aids the jury in
understanding the events surrounding the offense charged.
Objection, Calls for a Legal Conclusion. This witness The witness is not testifying to a legal conclusion,
has invaded the province of the jury by testifying but to a fact. What conclusion is to be drawn
that [an element of the offense] has been met. from that testimony is up to the jury.
Objection, Improper Impeachment. Under Opposing counsel will be afforded the opportunity
Rule 613(b), extrinsic evidence, like the sworn to address this on re-direct.
statement used by opposing counsel, is inadmissible
unless counsel allows the witness the
opportunity to explain the inconsistency.
FORM OF QUESTION
Objection, Leading. This question is foundational. Rule 611(c) allows

leading questions on direct examination when
necessary to develop the witness’ testimony.
OR
The question does not suggest an answer.
Objection, Compound Question. It is necessary to ask the question in this way

so that it is not misleading.
Objection, Vague. The question refers to the witness’ prior testimony.
Objection, (to a witness’ answer) Non-responsive. The answer was responsive to the question asked.
The witness was qualifying his answer.
Objection, Outside the Scope of Direct Examination Rule 611(b) allows cross-examination on any
(or Cross-examination if objecting to Re-direct). issue affecting the credibility of the witness.
Objection, Assumes Facts Not in Evidence. We have shown that [explain foundation].
43
Objector Respondant
WRITINGS AND RECORDINGS
Objection. Under Rule 106, this entire Rule 106 does not require that the entire [document
[document or recording] must be admitted, or recording] be entered, but only those parts
because admitting only part of it does not which ought in fairness to be considered
fairly represent its contents. contemporaneously with it. The portions of the
[document or recording] that opposing counsel
seeks to introduce do not enhance or diminish
its contents, and will serve only to waste the jury’s
time. [Briefly explain if necessary.]
Objection, this is Not the Best Evidence of Rule 1003 permits exceptions to the best evidence
[the fact]. Under Rule 1003, the [document or rule. In this case, the [document or recording]
recording] itself is the most reliable verification [has been lost or destroyed, is not obtainable
evidence of the contents of the [document of by judicial process, is in possession of opposing
recording], so opposing counsel should offer it counsel, or is not closely related to the
instead of [the alternative evidence offered]. controlling issue] and therefore [the alternative
evidence offered] is admissible instead.
OR
Because this [document or recording] is offered

against [our party], we are not required to
produce the original under Rule 1007.
HEARSAY
Objection, Hearsay. If so), opposing counsel has not laid

proper foundation.
The state of mind of [the listener] is irrelevant If so), opposing counsel has not laid
and does not go to any element of the offense proper foundation.
charged against the defendant.
Opposing counsel has not laid proper foundation If so), opposing counsel has not laid
to show that [the party opponent] has adopted proper foundation.
this statement in any way.
This statement is not being offered to prove
the truth of the matter asserted. It doesn’t matter
to us whether [the fact asserted] is actually true, but,
rather, we are offering the statement for the effect
on the listener, to show why he subsequently
responded the way he did. (You can be more specific
about the reaction you intend to elicit if it is persuasive.)
44
Objector Respondant
(If you’re desperate), the state of mind of (usually) If so), opposing counsel has not laid
the lead investigator of this offense is relevant proper foundation.
because it aids the jury in understanding why the
defendant was charged and why we are here today.
OR
This is an admission by a party opponent

under Rule 801(d)(2)(A).
OR
This is an adoptive admission under If so), opposing counsel has not laid
Rule 801(d)(2)(B). proper foundation.
We have shown that [explain how the party We have shown that this was administered by
opponent has manifested an adoption or belief a personal authorized to administer
in the truth of the statement]. [the religious rite] and that it was made at
or near [the event in question], which are the
only two elements required under Rule 803(12).
(If needed), this rule applies to [the evidence]
because it is evidence of a religious rite similar
to a sacrament, which is the word used by the rule.
OR
This is an exception to hearsay. Under Rule 803(21),

this is a statement that speaks to the defendant’s
reputation as to character [among his
associates or in the community].
OR OR
This is an exception to hearsay. Under Rule 803(1), (If you really have nothing), under the Rule 807
this is a present sense impression. residual exception to hearsay, this statement has a
circumstantial guarantee of trustworthiness because
The statement was made by [the declarant] it is offered to prove a material fact, namely [the
[while or immediately after the declarant fact], the statement is more probative in proving
[perceived the event]. fact] than any other evidence available, and
the general interests of justice will best be served
OR by admission of the statement. Additionally, we
have given opposing counsel advance notice
of our intent to introduce this statement
45
Objector Respondant

this is a recorded recollection.
We have shown that this is a record concerning

a matter about which [the witness] once had
knowledge, but now has insufficient recollection
to testify accurately and that the statement was
made at a time when the matter was fresh in
[the witness’] mind. (If allowed, the record may
not be admitted, but it may be read into the record.)
OR

this is a record of regularly conducted activity.
We have shown that the document was made at or

near [the event in question], made by a person
with knowledge of the facts therein, made in the
regular course of business, and kept in the
regular course of business. (If needed), this is a
qualified witness and need not be the records
custodian under Rule 803(6).
OR

this is a record of a religious organization.
We have shown that this is a regularly kept record

of a religious organization, which is the only
element required under Rule 803(11).
OR

this is a marriage, baptismal, or similar certificate.
46
Prepared as a Public Service by the
Texas Young Lawyers Association
and Distributed by the State Bar of Texas
For Additional Copies Please Contact:

Public Information Department
State Bar of Texas
P.O. Box 12487
Austin, Texas 78711-2487
(800) 204-2222, Ext. 1800
tyla.org
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CRIMINAL LAW:

MISDEMEANOR DRUG OFFENSE

TYLA Executive Committee

Member Services and Outreach Committee

• Unconstitutional stops by authorities

After you are retained or appointed

Conducting discovery with the prosecution

Plea Bargaining in Misdemeanor Cases

Class C Misdemeanors – Fine up to $500

Alternative dispositions to a misdemeanor case

Drug Penalty Groups

< 2 oz. 2 oz. to < 4 oz.

Class B Misdemeanor Class A Misdemeanor

Up to 180 days County Jail Up to 1 year County Jail and/or

Defendant’s Pleadings and Motions

Specific motions and pleadings that may be filed:

7 “Must File” Motions –

Know what your defense will be at trial:

Voir Dire and Challenges for Cause

Preserving Error on Challenges for Cause

1. Assert a clear and specific challenge for cause.

Voir dire tips

Cover three to five topics

Ask open-ended questions

Educate by having potential jurors teach each other

Make a Timely Objection and State Your Precise Grounds –

If overruled, error is preserved.

Character Evidence (Rule 404, 403)

Invoking “the Rule” – Rule 614 and Article 36.03 C.C.P.

Any person whose presence is shown to be essential to presentation of cause

Defendant’s own statement art. 38.21, 38.22

Drug Evidence – Chain of Custody

Ground for Suppressing Evidence

Specific Instances Demonstrating Reasonable Articulable Suspicion to Support Investigative Detention

Other factors supporting detention

No reasonable suspicion based upon:

Refusal to consent: Refusal to consent to a search, by itself, is insufficient to show reasonable

Scope of Investigative Detention: Must be Reasonably Related to Reasonable Suspicion

Initial Detention: Temporary and Limited

Prolonged Detention: Must Develop New Reasonable Suspicion

Probable Cause Needed for Arrest

SEARCHES WITHOUT A WARRANT

(Last) (First) (Middle)

Mailing Address: Present Address: _________________ Co. Jail

Home Phone: ( ) Cell Phone: ( )

Employer: Work Phone: ( )

Income (specify if yearly/monthly/weekly, gross Supervisor:

Marital status: Household Size:

Bond: Race/ethnicity: Sex:

Court: NEXT STEP

Court Coordinator, County Court at Law #2

Re: The State of Texas v. Jane Doe, Cause Number 00-00101

To Whom It May Concern:

THE STATE OF TEXAS § IN THE COUNTY COURT

NOTICE OF APPEARANCE OF COUNSEL AND FORMAL REQUEST FOR COMPLIANCE

THE STATE OF TEXAS § IN THE COUNTY COURT

TO THE HONORABLE JUDGE OF SAID COURT:

THE STATE OF TEXAS § IN THE COUNTY COURT

THE STATE OF TEXAS § IN THE COUNTY COURT

TO THE HONORABLE JUDGE OF SAID COURT:

Signed on the _Day of ____________, 2013.