TCOLE BPOC Study Aid

56A.251

LEA shall request sex assault forensic medical exam if SA reported within 120 hours or victim is a minor*. May request under other circumstances. That's the main point those first three paragraphs are making.

https://statutes.capitol.texas.gov/Docs/CR/htm/CR.56A.htm

*But what is a minor here? Follow the scavenger hunt.

TCOLE Rules:

Training cycle, 4 years (or 48 months, depending on where you look), 80 hours of CE. Training unit, 2 years (or 24 months), 40 hours of CE.

Defense vs Affirmative Defense:

The key to understanding and differentiating these is to NOT go beyond the text in the code, and not to bring in laymen's terms. First, you have the offense alleged and under prosecution, and the defendant accused of that offense. The offense is defined by some statute. Reading the statute, you find that the statute allows that a certain specific circumstance constitutes a defense to prosecution, or an affirmative defense to prosecution, with respect to that particular offense.

Per PC 2.03: If the circumstance described is a defense to prosecution, and "the issue of the existence of [the] defense is submitted to the jury" (meaning the defense counsel proposes to the court that this circumstance exists and should exonerate his client), "then the court" (the judge) "shall charge" (explain to the jury) "that a reasonable doubt on the issue requires that the defendant be acquitted."

Note the key words there: If it is a defense, then a reasonable doubt requires that the defendant be acquitted. Meaning, I don't have to prove that the circumstance constituting the defense happened. I just have to leave some reasonable doubt in the jury's mind that that circumstance may have existed.

Per PC 2.04: If the circumstance described is an affirmative defense to prosecution, and "the issue of the existence of [the] affirmative defense is submitted to the jury, then the court shall charge that the defendant must prove the affirmative defense by a preponderance of the evidence."

Note the key words here: If it is an affirmative defense, then the defendant must prove the affirmative defense by a preponderance of the evidence.

Examples (NOTE, these examples discuss two fictional universes, one in which self-defense is a defense to criminal homicide, and one in which self-defense is only an affirmative defense to criminal homicide):

Let us say that in our fictional state, "self-defense" is a defense to criminal homicide, according to the statute. Cain shoots Abel. The state charges Abel with murder. Cain's defense counsel intends to get Cain acquitted by claiming that the shooting was self-defense. Cain's defense counsel will present some evidence to the jury that one could reasonably believe this was a self-defense situation. By law (PC 2.03), the court must tell the jury that, at the end of the trial, if the jury still has some reasonable doubt about this being a murder, because it is still reasonable to believe that it might have been self-defense, then by the law (PC 2.03) they must acquit Cain. So, Cain's defense counsel does not have to prove it was self-defense, doesn’t even have to present a preponderance of evidence. He just has to leave some reasonable doubt in the jury's mind ("Well, it's still reasonable to think that it might have been self-defense, and therefore reasonable to doubt that it was murder."), to secure the acquittal for his client.

Let us say, now, in our fictional state, that "self-defense" is an affirmative defense to criminal homicide according to statute. Same situation with Cain and Abel, Cain accused of murder by the state. Cain's defense counsel still wants to get him acquitted by reason of "self-defense." In this universe, the judge will instruct the jury that Cain's defense counsel must show that a preponderance of the evidence (more than half) supports his claim that it was self-defense. At the end of the trial, if the jury assesses that more than half of the evidence supports a claim of self-defense, then the jury can acquit. If, at the end of the trial, the jury assesses that less than half of the evidence supports self-defense, they can find Cain guilty of murder.

You can see that a defense is easier for the defendant's team. The defendant may have only one little bit of evidence supporting the defense, but if it's enough to leave a reasonable doubt in the jury's mind--"Well, it's still reasonable to believe that it might have been self-defense, so I still have a reasonable doubt about it being murder."--then the jury must acquit.

Affirmative defense is a weaker defense, more difficult for the defendant's team, because now the defendant's team must collect a preponderance of evidence proving that the circumstance of the affirmative defense--In or fictional universe, "Does more than half of the evidence indicate that this was a self-defense shooting?"--in order to get an acquittal.

REAL WORLD, TEXAS:

In Texas Penal Code, a number of offenses given in statute are given with specific defenses and affirmative defenses to them.

E.g., it is a defense to a charge of arson that prior to starting the fire, the actor obtained a permit for that fire. The defense must only show enough evidence of a permit to leave the jury with a reasonable doubt about it being arson. (Usually, that evidence will be the permit, which is pretty "cut and dry," but maybe the permit mostly burned up in the fire, but the defense is able to present a cell-phone photo of it, along with some forensic analysis of the phone that supports that the photo wasn't doctored, just enough to give the jury a reasonable belief that the permit may have existed. Under the law, that might be enough. If that reasonable doubt remains, the jury must acquit.)

E.g., it is an affirmative defense to "Interference with Child Custody" that the actor's retention of the child beyond his custody period was due only to circumstances beyond the actor's control, and that he made reasonable attempts to provide notice to the other parent. The defense must satisfy the jury that more than half the evidence supports that his car really did break down through no fault of his own, and that he really did try to call but was out of cell-phone range, and called as soon as he got signal again.

These listed, specific defenses and affirmative defenses usually exist to keep overzealous cops and prosecutors from ruining the lives of people who were trying in good faith to comply with the law.

Also in statute, PC Chapter 8, there are listed several General Defenses to Criminal Responsibility (meaning these defenses and affirmative defenses could potentially be applied to any charge, if the circumstances apply). Also in this list are some things that people commonly believe to be defenses which are not (E.g., "Well, I didn't know that was a law!" is no defense to anything.). The general affirmative defenses are Insanity and Duress (and Mistake of Law if the defendant had an official statement or written interpretation of the law, from an appropriate government agent, supporting his mistaken understanding of the law). These the defense must prove to the jury by a preponderance of evidence. The general defenses are Mistake of Fact and Entrapment. The defense need only leave a reasonable doubt in the mind of the jury that the crime may have resulted from entrapment or from a mistaken understanding of the situation. Mistake of Law (outside the one limited circumstance mentioned above) and Intoxication are not defenses at all.

General defenses mnemonic: DIME

Duress (AD)

Insanity (AD)

Mistake of Fact (D)

Entrapment (D)

Who CANNOT consent to search?

If you are an adult living with your parents, and you have your own room, your parents CANNOT consent to search of your room.

If you are renting a hotel room, properly paid for, hotel staff CANNOT consent to a search of your room.

If you are a tenant in your apartment in good standing, the landlord CANNOT consent to a search of your apartment.

Commonly Confused Penal Code Articles

This is no substitute for reading the PC, with the help of the PC gouge page on this site. This just points out certain articles to which you should pay particular attention.

Public Lewdness (it takes two to tango) vs Indecent Exposure (solo act)

Credit Card Abuse (theft of the original card, even if for future use) vs Unlawful Possession of Credit Card Info (not the original card, but the info from the card, such as number or chip data)

Prostitution (offering sex for money, agreeing to receive money) vs Soliciting Prostitution (offering money for sex, agreeing to give money) vs Promotion of Prostitution (pimping) vs Compelling Prostitution (pimping by threats, coercion)

Theft (simple taking) vs Robbery (theft plus bodily injury or the like) vs Burglary (entering where you're not allowed to go + certain crimes, maybe theft, maybe not!)

Intoxication Assault and Intoxication Manslaughter: only involve certain vehicles and amusement park rides

Smoking Tobacco: smoking in certain prohibited places!

Gambling: gambling except in those circumstances which are allowed!

How to read and think about CCPs:

Don't think of them as telling you exactly what to do or what not to do, nor how to do your job. Rather, they tell you your legal obligations, and you figure out how to meet those obligations. E.g. 1:

2.33. DUTY TO REQUEST AND RENDER AID

This is not telling you when you will and won't render aid. What it's saying is that you are under legal obligation to render aid unless certain circumstances exist. If rendering aid would put you at risk, or if you are already wounded, then you are not obligated under the CCP to render aid. The decision is still up to you, but you will have to justify your decision later according to this guidance. In terms of turning CCP guidance into actual decisions in the moment, your department may make some of those decisions for you ("In situation X, you shall do Y, which meets the spirit and letter of CCP article Z," which will be published in your department policies), and the rest of these decisions you will make in the moment, based on your knowledge of the CCPs.

Where does this example come from? Probably some officer made a decision not to help a wounded person, and the agency later was sued, so now this passage has been added to clarify when the officer has a duty to do so, and when he is legally protected if he chooses not to render aid (in this case, because the tactical situation met one of those two circumstances).

E.g. 2:

2.1397 Duties of Law Enforcement Agency Filing Case

Yes, this is telling you that an agency must submit a written statement, but the statement is not the point. The point is a legal duty on the LEA to declare that they have turned over all relevant "discovery" material to the prosecutor, and legal coverage for the prosecutor, when he tells the defense that he has turned over all "discovery" material, that he has turned over everything the LEA gave him. This statute makes the LEA culpable (and protects the prosecutor) if it is discovered later that the LEA found exonerating evidence and didn't share it with the prosecutor because they didn't want a "scumbag defendant" to be exonerated. It protects the prosecutor from going down for a corrupt police practice in which he was not involved.

Standard Values Ladder for property crimes:

False Identification as a Police Officer vs Impersonating a Public Servant

Merely having (to include displaying) a Law Enforcement emblem (like a badge) is False Identification, Misdemeanor B. If you use that emblem, or any other pretense of any public office which you do not hold, to make someone submit to the authority of the pretend office, then you have Impersonated, which is Felony 3.

Interestingly, examples provided in lecture indicate that using a fake badge merely to pull someone over is only False Identification, and does not rise to Impersonating until you do something more, like try to arrest the person or order them to do something. This may be because the courts generally (and strangely) regard a traffic stop as a "voluntary encounter" until such time as it is not (i.e., until the officer makes it clear that the subject of the stop is detained, arrested, or under orders to take some other action by the authority of the officer).

Burglary vs Robbery vs Theft

Theft is taking stuff that doesn't belong to you from a place. Robbery is taking stuff that doesn't belong to you from a person. Burglary technically doesn't have anything to do with taking stuff that doesn't belong to you. Burglary is all about being in a place you're not allowed to be, with intent to commit a crime (specifically a theft, an assault, or any felony). If you break into a place that's not open to the public (or hide in a store until after closing time) with intent to commit theft, or sexual assault, or criminal mischief, then you have burgled. Even reaching through a window or into the open bed of a pickup truck, or sticking a tool through an open window, is burglary if your intent is to lift something out or break something or assault someone or commit any of a host of other crimes.

Perjury vs Aggravated Perjury

There are such things as sworn statements other than the ones you make on the stand. People make sworn statements all the time that aren't "made during or in connection with an official proceeding" or which are not material to such a proceeding, mean they won't really have any affect on its outcome. Any of these, if false, counts a perjury. People also make unsworn statements under Civil Practice and Remedies Code Chapter 132 which, if false, count as perjury.

A false statement rises to Aggravated Perjury if it would have counted as perjury, but it is made during or in connection with an official proceeding (such as a trial) and is material to that proceeding, i.e. could affect its outcome.

Hindering Apprehension vs Facilitating Escape vs Implements for Escape

"Escape" always involves an escape from custody. For it to be an escape from custody, the person must already be in custody. So, any activity which helps a perp escape flee after committing a crime so that he never gets caught, that can only be Hindering Apprehension or Prosecution.

Between Permitting/Facilitating Escape and Implements for Escape, note that Permitting/Facilitating only covers employees of the prison for most kinds of prisoners. Anyone else helping is "providing implements," most likely.

How many makes trouble?

Criminal Street Gang: 3

Criminal Combination: 3

Riot: 7

Agg Promotion of Prostitution: 2

Agg Online Promotion of Prostitution: 5

Search Warrant Timelines

You have a certain number of WHOLE DAYS to execute, not including the day of issuance and the day of execution. That number of WHOLE DAYS is...

• DNA evidence: 15 days

• Computer data evidence: 10 days

• All others: 3 days

U. S. Constitutional Amendments

4th: 4 key items, including protection against Unreasonable search and seizure, which gives us the requirement for "reasonable force" when seizing (arresting)

5th: 5 key items, including the guarantee of "due process"

6th: 6 key items, all of which outline the components of due process, but the 6th amendment does not actually use the phrase "due process"

8th: protection against excess fines, excess bail, cruel and unusual punishments

9th: rights of the people

10th: powers reserved to the states or people, commonly (if poorly) called "states' rights"

Shall Arrest (for violations of certain court orders)

Let's put the pieces together:

CCP 14.03(b): A peace officer shall arrest, without a warrant, a person the officer has probable cause to believe has committed an offense under PC 25.07, if the offense is committed in the officer's presence.

I.e.: if the guy doing something in your presence that you have PC to believe violates a protective order.

CCP 14.03(a)(3): may arrest without a warrant if the officer has probable cause to believe a violation of PC 25.07 occurred not in the officer's presence.

E.g.: if someone credibly alleges that the guy did this before you got there.

So, let's go look at PC 25.07

PC 25.07: In layman's summary, a person commits an offense if, in violation of various kinds of protective or court orders, the person knowingly or intentionally:

• Commits family violence or certain (mostly assaultive) offenses in a way which violates the order

• Communicates with the protected in various ways

• Goes to or near a place prohibited under the protective order if that place is one of the following to the protected: home, work, childcare place, school

• Possesses a firearm

• Messes with the protected's pet

• Messes with his tracking bracelet

So, you are under the "shall arrest" directive if you have to have PC to believe that the guy is doing one of these six things in front of you, in violation of the order. This is a very specific list. And, you have to have probable cause to believe he is doing one of these six things intentionally or knowingly.

Scenario A: You walk into a local restaurant and notice, because you have incredible SA, that the gal (protected) and guy (subject/offender) are both dining at the restaurant, apparently unaware of one another. Has the guy met the elements of a violation under PC 25.07? If not, then you are not in "shall arrest" territory.

Scenario B: The gal (protected) and guy (subject/offender) encounter one another in a grocery store which is not listed in the order. You are called, and both parties are still there when you arrive, but the guy is refusing to speak to or address the gal. She is pursuing him and shouting at him. Has the guy met the elements of a violation under PC 25.07? Is he, in your presence, intentionally or knowingly communicating with her? Has he intentionally or knowingly gone to her residence or workplace? No? If not, then you have not met the conditions for "shall arrest." How about "may arrest?" Does the order compel the subject to maintain a distance from the person of the protected? If so, do you have PC that he knowingly and intentionally put himself in or remained in proximity? Is that a violation of the protective order? Is it one of the specific violations of a protective order which constitute a criminal offense under 25.07, which in turn puts you in "shall arrest" territory? How about "may arrest" territory? What if she alleges that, before you got there, he communicated with her in some way. Does the protective order prohibit the communication she alleged? If so, does that put you in "may arrest" territory?