Texas Federal/State Comparison: George Milner,III., Milner & Finn, Dallas, Texas


by: George R. Milner, III
Milner & Finn
Dallas, Texas


Most attorneys will begin their careers practicing in either state or federal court, but rarely both.

You might begin as a state prosecutor or public defender, and then become aprivate defense attorney. Alternatively, you might have begun as a federal prosecutor, public defender or clerking for a district judge. You become immersed in one system to the virtual exclusion of the other. As your practice changes, you start practicing in the other court system and wonder whether the differences are significant. “Hey, it’s the same country with the same federal constitution. How different could they be?â€? The answer is, plenty. And, the differences are not trivial. This article will analyze and compare federal criminal practice with Texas state criminal practice. It is an overview, and is not intended to be an in-depth analysis. It is designed to be a primer for attorneys who are well versed in one system and are beginning a practice in the other. There are many distinctions between practice in federal and state court. But, the trial procedures are relatively similar. Generally, practice in the federal courts tend to be more formal, whereas practice in state court may be less formal. This will obviously vary depending upon the particular judge, whether it be state or federal court. The federal constitutional principals are obviously identical.

State representation frequently begins with the arrest of your client. The client then hires an attorney to represent him or her in the anticipated criminal case. A federal criminal action could begin the same way. However, it is much more common that the client, known literally as a target, is aware of an on-going criminal investigation. The client should, and frequently does, hire an attorney during this investigative process. If the client has the slightest level of intelligence, he will immediately retain counsel upon learning of the existence of the investigation. Generally speaking, in the state system, the government arrests first, and then prepares a case for trial. In the federal system, the government prepares its case first and then arrests. Representation of a client in a federal criminal case is well beyond the scope of this article. This article is intended to only address the pragmatic distinctions between state and federal practice.


A. Arrest

1. Texas Law

Texas law imposes no constitutional requirement to affect an arrest. Hulit v. State, 982 S.W 2d 431 (Tex. Crim. App. 1998). Tex. C. Crim P., Art. 14 provides for various situations where a peace office may or shall make a warrantless arrest. Article 14 further provides authority for a private citizen to affect a warrantless arrest.

An individual arrested in Texas is brought before a magistrate who will arraign the accused and set bail. Tex. C. Crim. P., Art. 14.06. This is almost always done in an ex parte manner with information coming almost exclusively from the police. Bail will usually be set at some amount which may be posted in cash or by a bonding company. The bail is posted with the sheriff of the county where the client has been arrested. Or, if the client is arrested pursuant to an out of county warrant, bail may be posted with the sheriff of the county where the warrant has been issued.

2. Federal Law

A federal arrest may, likewise, be made with or without a warrant. However, there is no statutory provision for a warrantless arrest. An arrest must simply be supported by probable cause. Draper v. United States, 385 U.S. 307 (1959). Most federal arrests are, however, made pursuant to a warrant. Warrantless arrests will be substantially more common in state court prosecutions.

The bail process in federal court is done pursuant to the Bail Reform Act of 1984. The accused is brought before a federal magistrate for an initial appearance. Both the government and citizen may present evidence relevant to bail. However, the court will review a pre-trial services report prepared by the probation department. This report is confidential as a matter of law. 18 U.S.C. § 3153 (c)(1). It is essentially a short background and social history report regarding your client.

Once the judge has considered the pre-trial services report, any evidence presented, and argument of counsel, the magistrate will release the defendant, set bail or detain the defendant. 18 U.S.C. § 3142 (a). Unlike state court, there is a preference for personal recognizance bonds. It is generally the case that your client will be released on his own recognizance or not at all. Again, unlike state court, denial of bail is quite common.

The Eighth Amendment notwithstanding, there is a good chance your client will begin serving his sentence while awaiting his or her trial. See 18 U.S.C. § 3142 (d). Should the magistrate detain your client, you may appeal this to the district court. The procedure is to file a motion to Revoke Detention Order. United States v. Ruben Rueben, 974 F. 2d 580, 585 ( 5th Cir. 1992) Cert. Denied, 507 U.S. 940 (1993). The district court’s review of the magistrate’s order is conducted de novo.

Counsel is well advised to prepare the client for the pre-trial services interview with the officer. The client should dress appropriately and be familiar with the process. The client must fully understand that while he or she may refuse to answer particular questions, the client may not provide false information. Counsel must use sound judgment in determining what information to provide the officer. If the offense is a financial crime, you may not wish to disclose personal financial information to the officer. Although the pre-trial services report is confidential, a copy will be given to the prosecutor. It is reasonable to assume he or she will read it and take notes. Alternatively, if you provide very limited information, the magistrate may not be able to determine your client is not a flight risk. Counsel must use sound judgment.

B. Indictment

1. Texas Law

An indictment is a written statement of a grand jury accusing a person of a crime. Tex. C. Crim. P., Art. 21.01.

Although there are some procedural requirements, the offense charged must be set forth in plain and intelligible words. See Tex. C. Crim. P., Art. 21.02.

Everything necessary to be proved should be stated in the indictment. Tex. C. Crim. P., Art. 21.03.

However, the state is not required to plead evidentiary matters, and generally need only plead the elements constituting the offense. Generally, if the indictment tracks the relevant statute, it will be sufficient. However, the indictment must be sufficiently certain such that it will enable the accused to plead the judgment in bar of any subsequent prosecution of the same offense. Tex. C. Crim. P., Art. 21.04.

Texas law provides that a grand jury shall be comprised of twelve grand jurors and

two alternates. Tex. C. Crim. P., Art. 19.18. A quorum is comprised of nine grand jurors. Tex. C. Crim. P., Art. 19.40.

Grand jury proceedings shall be secret. Tex. C. Crim. P., Art. 20.02.

Although the concept of the grand jury might be similar under Texas law as compared with federal law, there is vast difference in function. A grand jury in Texas is principally used to screen criminal accusations. Cases are presented and the grand jurors deliberate and vote whether to indict. It is only required that nine jurors vote affirmatively in order to return an indictment. Tex.C. Crim. P., Art. 20.19.

Generally speaking, the state grand jury does not pro-actively investigate criminal matters, although it has such authority. Cases are presented to the grand jury by the relevant district attorney, and the grand jury votes whether to return an indictment. Further, Texas law does not proscribe communication with the grand jury by defense counsel. This is commonly done by delivering written information through, and with the consent of, the prosecutor

2. Federal Law

A federal indictment may be similar to a state indictment, but it’s usually not. It must contain the essential facts constituting the offense charged. Fed. R. Crim. P. 7 ( c ).

The indictment must also state the specific statute, rule, regulation or other provision of law which the defendant is accused of violating. Id. It is quite common for a prosecutor to write an indictment which describes the alleged criminal conduct in a lengthy narrative form. And, as might be expected, it is common for the prosecutor to tell the story in a light most favorable to the government. The court may, upon defendant’s motion, strike surplusage contained in the indictment. Fed. R. Crim. P. 7 (d).

And, it is important to carefully examine the indictment because, unlike state court, the indictment goes into the jury room during deliberations.

A federal grand jury is comprised of 16 to 23 members. Fed. R. Crim. P. 6 (a).

An indictment required only the concurrence of at least twelve members of the grand jury. Fed. R. Crim. P. 6 (f).

The federal grand jury is not a screening mechanism for criminal prosecutions. On the contrary, the federal grand jury is a weapon of the prosecutor. A federal grand jury possesses extremely broad investigative power. A federal grand jury may investigate merely upon suspicion that the law is being violated, or even just because it wants assurance that it is not. United States v. R. Enterprises, Inc., 498 U.S. 292, 297 (1991).

Although the grand jury was at one time designed to protect the individual from the government, those days have clearly passed. The grand jury has the power to subpoena documents and witnesses. Federal prosecutors tend to thoroughly investigate their cases through sworn grand jury testimony and documents obtained pursuant to subpoena. And, contrary to Texas state law, the direct submission of any written materials or documents by the defense to a federal grand jury is, itself, a federal criminal offense. See 18 U.S.C. § 1504.

C. Speedy Trial

1. Texas Law

There is no valid statutory act requiring a right to a speedy trial. Meshel v. State, 739 S.W. 2d 246 (Tex. Crim. App. 1987). Texas law simply applies the Sixth Amendment standard as according to Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). There is no bright line rule and no inflexible test. However, the court must consider the length of delay, the reason for delay, assertion of the right to a speedy trial by the defendant, and any prejudice to the defendant due to the delay.

2. Federal Law

Federal law provides a statutory speedy trial right. See 18 U.S.C. § 3161. This statutory speedy trial right commences upon arrest of the accused for a federal, not state, offense. United States v. Adams, 694 F. 2d 200 (9th Cir 1982).

The indictment must be returned within 30 days of arrest. Trial must commence within 70 days of either indictment or initial appearance, whichever occurred later. No trial may commence prior to 30 days from indictment or initial appearance. The court has authority to dismiss, either with or without prejudice, an indictment based upon violations of this statutory speedy trial right. But, there are a number of enumerated factors which the court must consider before dismissing an indictment with prejudice. These include the seriousness of the offense, the facts and circumstances which lead to dismissal, the impact of re-prosecution on administration of the speedy trial right and on the administration of justice. 18 U.S.C. § 3161 (a)(1).

The statute provides for the exclusion of time which is due to a number of enumerated factors which the court must consider. These include:

1.) a competency examination of the defendant;
2.) times during which the defendant is mentally or physically incompetent;
3.) time during which the defendant is in drug treatment with a prosecution deferral ;
4.) any time during which an inter-lockatory appeal is proceeding;
5.) pending pre-trial motions;
6.) time caused by transferring the case or removal of a defendant from another district;
7.) time during which the court considers any plea agreement;
8.) time during which prosecution is deferred
9.) time during which the defendant or an essential witness is absent;
10.) A “reasonable periodâ€? of delay when the defendant is joined with co-defendants whose speedy trial has not run;
11.) time during which “ the ends of justice …outweighs the best interest of the public and the defendant in a speedy trial â€? because ofÂ

             (a) an unusual or complex case, orÂ
             (b) because of continuity of counsel for the government or defendant. 18 U.S.C. 3161 (h).

It is important to assume in federal court that you may not be able to obtain a continuance of a trial. This is true even if the government does not oppose the defendant’s motion for continuance. The trial court is constrained by the Speedy Trial Act. It is important that you review the statutory provisions thoroughly and address them in your motion for continuance. You should provide supporting material to justify your factual and legal arguments for a continuance. And, at the same time, you must be prepared to try the case on the scheduled trial date.

D. Joinder

1. Texas Law

Texas law provides that a defendant may be prosecuted in a single criminal transaction

for all offenses rising out of the same criminal episode. Tex. C. Crim. P., Art. 3.02.

2. Federal Law

Federal law provides for broader joinder of offenses. An indictment or information may charge a defendant with two or more offenses, whether felonies or misdemeanors or both, if the offenses are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan. Fed. R. Crim. P. 8.

Rule 8 is broadly construed in favor of initial joinder. United States v. Davis, 752 F. 2d 963 (5th Cir. 1985).

Essentially, joinder is proper if the offenses occurred over a relatively short time period and share some evidentiary matters. United States v. Lueben, 812 F. 2d 179 (9th Cir. 1987).

E. Severance

1. Texas Law

Texas law provides a broad right of severance. Generally speaking, a defendant has an absolute right to a severance of offenses which have been consolidated or joined for trial. Tex. Penal C. §.304.

However, there is a potential catch. Texas law generally provides that if a defendant is convicted of more than one criminal offense in one trial proceeding, the sentences generally must run concurrently, as opposed to consecutively. Tex. Penal C.§ 3.03 (a).

But, if a defendant elects to sever offenses which have been joined for trial, the court in its discretion may order the sentences to run concurrently or consecutively. Tex. Penal C. § 3.04 (b). Counsel must give grave consideration before asking for a severance. There are other limitations upon the broad right of severance under Texas law. Generally, sex offenses may not be severed. The specific offenses are listed in Tex. Penal C. § 3.03 (a). If the relevant offenses are enumerated in § 3.03 (b), the court, before ordering aseverance, must determine that either the state or the defendant would be unfairly prejudiced by a joinder of the offenses. Tex. Penal C. § 3.04 (c).

2. Federal Law

Federal law provides a limited right to a severance. If joinder of offenses or defendants appears to prejudice the government or a defendant, the court may sever the defendants’ trials, order separate trials as to separate counts, or provide any other relief that justice requires. Fed. R. Crim. P. 14. Pursuant to Fed. R. Crim. P. 12 (b) (5), a motion to sever must be made prior to trial. Personal observation suggests federal judges do not enjoy trials. Likewise, federal judges appear to enjoy multiple trials substantially less. Accordingly, unless you can make a firm showing of overwhelming prejudice, you should expect to have all criminal offenses and defendants tried together in one proceeding.

F. Discovery

1. Texas Law

Discovery in Texas state courts is generally covered by Chapter 39 of the Code of Criminal Procedure. A state court defendant’s right to discovery is, in most situations, provided by Tex. C. Crim. P., Art. 39.14. The defendant in state court, generally has right to examine physical evidence. The defendant has no right to discover witness statements, until after the witness has testified. See Tex. C. Crim. P., Art. 39.14 (a); Tex. R. Evid. 615 (a).

Texas law also provides both the state and defendant a right to notice of expert witnesses. See Tex. C. Crim. P. Art.39.14 (b).The court upon motion of either party, may order a party or parties to disclose the name and address of each witness the party may use to present evidence pursuant to Texas Rules of Evidence 702, 703, and 705. Texas law also provides a defendant reasonable notice upon request, not a motion, to the state’s intention to offer evidence of extraneous wrongs, crimes or bad acts, either at the guilty/not guilty phase or the punishment phase. See Tex. R. Evid. 404 (b) and Tex. C. Crim. P., Art. 37.07.

2. Federal Law

Discovery in federal court is pursuant to Fed. R. Crim. P., 16. However, it is important to completely familiarize yourself with the relevant judge’s pre-trial order. Frequently, a judge will enter a pre-trial order which addresses discovery issues. Filing a motion for discovery might advise the court you have not read the court’s order. If there is no discovery order issued by the court, the right to discovery is triggered by defense motion. However, counsel should be aware this will trigger reciprocal discovery requirements. Generally, the defense is entitled to the defendant’s written or oral statements, the defendant’s prior record, any documents and objects which the government either possesses or controls, if they are material to preparing the defense, or the government intends to use them in its case in chief at trial, or the item was obtained or belongs to the defendant; the reports of examinations and tests; expert witnesses. Fed. R. Crim. P., 16. The defense is not entitled to witness statements, except as provided by 18 U. S. C. § 3500. And, the defense is not entitled to grand jury transcripts, except as provided by Fed. R. Crim. P. 6, 12 (h), 16 (a)(1), and 26.2.

G. Plea Negotiation

1. Texas Law

Plea negotiations in Texas courts are incredibly different than in federal court. At the outset, plea negotiation in state court is almost universally conducted post indictment. Additionally, plea negotiations in Texas courts are quite similar to contractual negotiations. The state and defense may, and typically do, negotiate the precise sentence which the defendant will receive based upon his plea of guilty or no contest. The court is not bound by the agreement. Tex. C. Crim. P., Art. 26.13. However, the defendant has the right to withdraw his plea if the court advises that it will not follow the agreement between the parties. Tex. C. Crim. P., Art. 26.13. This fact alone makes state plea bargaining vastly different than federal plea bargaining. And, in the vast majority of the cases, the trial court will follow an agreement between the state and the defendant.

2. Federal Law

On the other hand, plea negotiations are frequently done prior to indictment in federal representations. If a satisfactory plea agreement is going to be reached in federal court, it generally must be consummated prior to indictment. An indictment reduces the number of sentencing options. At the outset, counsel may negotiate a “charge bargain.â€? This means defense counsel negotiates an agreement with the government to only charge the defendant with a specific criminal offense. Generally, this is done in order to charge the defendant with a criminal offense which has a lower statutory maximum punishment than other offenses which could be charged by the government. However, charge bargaining is not as readily available as it once was. Former Attorney General John Ashcroft directed prosecutors to charge defendants with the most severe, readily provable offense. Charge bargaining, accordingly, may be limited depending upon the particular prosecutor’s adherence to this directive. This directive was originally set forth in the Ashcroft Sentencing Memorandum, and this was reaffirmed in the Comey Sentencing Memorandum issued in 2005.
Contrary to Texas law, there is rarely an agreement to a specific sentence in federal court. Federal sentences are determined by giving extreme deference to the now “advisoryâ€? United States Sentencing Guidelines. See United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).

Essentially, the defendant will plead guilty to one or more criminal offenses. The court will advise the defendant that sentencing will be determined by consideration of the “advisoryâ€? United States Sentencing Guidelines. The court must also consider all matters relevant to sentencing pursuant to 18 U.S.C. § 3553 (a). The defendant will be advised that except for the statutory maximum, no one can determine what the specific sentence will be. The defendant will be advised that if the sentence is substantially higher than the defendant expected, he will not be able to withdraw his plea. Your client will then meet with a probation officer for a pre-sentence interview. The probation officer will do a thorough background report on the client. The probation officer will also communicate with the prosecutor and relevant enforcement agents. The probation officer will then prepare a pre-sentence report which will advise the court of the relevant sentencing guidelines and will provide the court with a specific guideline range of punishment. Both counsel for the government and the defendant will have the right to object to this report. In the end, the judge will make the final decision as to which guideline range is applicable. Although not binding, a sentence in his range will be deemed “reasonable.â€? The court may then consider other matters, if applicable. Then, the court will sentence the defendant. It is important to understand the probation officer has been well trained to understand every conceivable way to increase, not decrease, the guideline range. The client should be made to understand this. You must go to the interview with your client. The client should dress appropriately. If there are matters outside the guidelines which may affect sentencing, you must start laying the groundwork for these at the pre-sentence interview. If your client has a substance abuse issue, he or she may qualify for the Comprehensive Residential Drug Abuse Program. See 18 U.S.C. § 3621
(e). You should provide information to the probation officer which demonstrates a genuine substance abuse problem. Ultimately, your client may shave a year off his sentence for successful completion of the program.

H. Pre-trial Motions

1. Texas Law

The filing and urging of pre-trial motions in state court is reasonably similar to the process in federal court. Whether you are in state or federal court, it is imperative that you be familiar with the particular court’s scheduling, orders, and/or procedures. Many courts, both in state and federal court, have standing pre-trial orders. Many state courts will have an informal process, and will not require that pre-trial motions be filed and/or scheduled by any particular day. Some state courts will schedule a pre-trial hearing. If there is a pre-trial hearing date, and the court has not ordered that motions be filed by a particular day, then all pre-trial motions should be filed at least seven days prior to that date. Tex. C. Crim. P., Art. 28.10 § 2.

Although the practice should be discouraged, it is acceptable to file boiler plate motions in many state cases. A state court motion should be tailored to the case. And, although not required, it may be helpful to file a brief in support of your motion.

2. Federal Law

The substantial difference in federal court is that the process will be somewhat more formal. You will almost always be given a scheduling order imposing a deadline or the filing of pre-trial motions. It is common to never afford the defendant a live hearing on the motions. And, unlike state court, boiler plate motions should not be used. The practice in federal court is more time consuming. All pre-trial motions should be tailored specifically to the relevant facts and legal issues raised by the particular case.

Additionally, counsel should carefully review the local rules of the district. Many pre-trial motions require submission of a brief or memorandum of law in support of a motion. Counsel should understand the pre-trial motion and supporting brief may be the only argument you will make to the court. Never assume that you will be permitted a live hearing or oral argument. If factual support is necessary, you should attach supporting documents and/or affidavits.

Additionally, most federal districts require the moving party to consult with the attorney for the opposing side. This means all pre-trial motions must be discussed with the opposing attorney. You are generally required to ask whether the opposing attorney agrees to the granting of the motion. You will then attach a “Certificate of Conferenceâ€? to your pre-trial motion. The Certificate of Conference will verify that you have discussed the motion with the opposing attorney, and state whether the opposing attorney agrees to or opposes the motion.

There is another fundamental distinction between state court and federal court. Unlike state court, motions filed in federal court will be thoroughly read. If they are not completely read by the judge, they certainly will be read carefully by the clerks. You should proof read the motion and supporting memoranda or brief.

I. Change of Venue

1. Texas Law

If the judge determines either party cannot receive a fair and impartial trial in the county,

the judge may sua sponte order venue transferred to any county within the district. Tex. C. Crim.

P., Art. 31.01. The court must provide notice to the parties and conduct a hearing on the issue. Id.

The state may move for a change of venue for existing influences favoring the accused, general

lawlessness in the county, or potential risk to the lives of the defendant or a witness. Tex. C.

Crim. P., Art. 31.02. The defendant may move to change venue by filing a written motion along

with the defendant’s affidavit and the affidavits of at least two credible persons who are residents

of the county where the prosecution is instituted. Tex. C. Crim. P., Art. 31.03. The affidavits

must show either there is so great a prejudice against the defendant in the county that he or she

cannot get a fair trial, or there is a dangerous combination against the defendant instigated by

influential persons such that he cannot expect a fair trial. Id.

Texas law also permits a forum non conveniens change of venue. This may be done upon

motion of the defendant for convenience of parties and witnesses. But, such a motion is

discretionary and requires the consent of the state. Tex. C. Crim. P., Art. 31.03 (b).

2. Federal Law

Federal law is more restrictive. A transfer of venue based upon prejudice must be made

upon the defendant’s motion. Fed. C. Crim. P. 21 (a). It cannot be ordered sua sponte or on

motion by the government. Id. Federal law also permits a forum non conveniens change of

venue. See Fed. R. Crim. P. 21 (b). The state and federal standards are essentially the same,

except the federal rule does not require consent of the government. See Id.


Arguably, Texas provides greater protection from unreasonable search and seizure

than the Fourth Amendment. See Heitman v. State, 815 S.W.2d 681(Tex. Crim. App. 1991). In

any given case, counsel should thoroughly research whether evidence was obtained in violation

of either the Texas or U.S. Constitutions. However, there are some general distinctions between

Texas law and U.S. law in the area of search and seizure. Additionally, there is significant and

pervasive distinction between state and federal court in this area. State law generally permits the

defendant to argue the exclusionary rule to the jury. If a fact is raised, the defendant can request

the jury be instructed to not consider evidence if the state fails to prove beyond a reasonable

doubt the evidence was lawfully obtained.

Federal law, on the other hand, does not permit this. Application of the exclusionary rule

is purely a question of law for the court. The jury in a federal trial will not be instructed to

disregard any evidence admitted based upon a Fourth Amendment violation.

A. Good Faith

If a search warrant is found to be defective, Texas does not permit a good faith exception

to the exclusionary rule. See Tex. C. Crim. P., Art. 38.23 (b). A search warrant affidavit must

provide probable cause. Gordon v. State, 801 S.W.2d 899 (Tex. Crim. App. 1990). On the other

hand, federal law permits a good faith exception to the exclusionary rule. See United States v.

Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984).

B. Inevitable Discovery

In federal court, there is an inevitable discovery doctrine permitting an exception to the

exclusionary rule. See Nix v. Williams 467 U.S. 431, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984).

However, Texas law does not permit inevitable discovery as an exception to the exclusionary

rule. See Garcia v. State, 829 S. W. 2d 796 (Tex. Crim App. 1992).; State v. Daugherty, 931

S.W. 2d 268 (Tex. Crim App. 1996) (Reh’g. Denied).

C. Illegal Conduct by Private Citizen

The exclusionary rule in Texas courts applies to the conduct of government agents and

private citizens. See Tex. C. Crim P., Art. 38.23 State v. Johnson, 939 S. W. 2d 586 (Tex. Crim

App. 1996). The exclusionary rule in federal court does not apply to the conduct of private


D. Consent

The burden on the government is different when consent to search is at issue. In Texas

courts, the state must prove consent by clear and convincing evidence. State v. Ibarra, 953

S.W.2d 242 (Tex. Crim App. 1997). However, in federal courts, the government must only prove

consent by a preponderance of the evidence. United States v. Matlock, 415 U.S. 164, 94 S. Ct.

988, 39 L. Ed. 2d 242 (1974).


1. Texas Law

Texas law provides that the admissibility of confessions is controlled by the Fifth

Amendment and Tex. C. Crim P., Art. 38.22. Generally speaking, in order to admit a statement

resulting from custodial interrogation, the state must prove the statement was voluntarily made,

the defendant was advised of his or her rights pursuant to Art. 38.22, and the statement was

either written or electronically recorded. See Tex. C. Crim. P., Art. 38.22. Counsel should

thoroughly review 38.22 as there are other potential requirements and exceptions which might


The defendant may initially challenge the voluntariness of any statement outside the

jury’s presence by objecting or requesting such a hearing. See Jackson v. Denno, 378 U.S. 368,

84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964). The defendant must initially produce some evidence

which controverts the presumption of proper police conduct, thus shifting the burden to the state.

The state then bears the burden of proving the confession was voluntarily given. Munoz v. State,

851 S.W.2d 238 (Tex. Crim. App. 1993); (overruled on other grounds). Dunn v. State, 721

S.W.2d 325 (Tex. Crim. App. 1986). The judge must determine the confession to be voluntary

before it may be admitted before the jury. Implicit in these cases is the conclusion the judge must

determine that a rational trier of fact could find beyond a reasonable doubt that the confession

was voluntary.

A significant distinction is that once you lose the Jackson v. Denno hearing (and you

will), Texas law affords the defendant the right to challenge the confession in front of the jury.

Tex. C. Crim. P., Art. 38.22 § 6. The defendant may present evidence regarding the voluntariness

of the confession. And, the jury will be instructed that unless it believes beyond a reasonable

doubt that the confession was voluntarily given, the jury may not consider it for any purpose

whatsoever. Id. Moreover, the exclusionary instruction directs the jury to not consider any

evidence which was derived from the statement by the accused.

2. Federal Law

On the other hand, there is no such requirement for a confession to be admitted in federal

court. The issue to be determined by the court is whether the statement was freely and

voluntarily made, and whether the agents complied with Miranda. Generally speaking, if the

agents complied with Miranda and did not beat the defendant senseless, a court will usually find

the statement to have been made freely and voluntarily. And, unlike state court, the government

must prove voluntariness only by a preponderance of the evidence. Colorado v. Connelly, 479

U.S. 157, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986). But, as is true in state court, the defendant is

entitled to a hearing outside the jury’s presence to determine whether the confession was

voluntary. See Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964).


1. Texas Law

Jeopardy attaches in a jury trial when the jury is sworn. State v. Proctor, 841 S.W. 2d 1 (Tex. Crim. App. 1991). In a trial without a jury, jeopardy attaches when the accused pleads to the charging instrument. State v. Torres, 805 S.W. 2d 418 (Tex. Crim. App. 1991). This holding is not based upon the Fifth Amendment, but is required by Tex. Const., Art. I § 14.
2. Federal Law

The rule is the same in a jury trial. Jeopardy attaches when the jury is impaneled and sworn. Donum v. United States, 372 U.S. 734, 83 S. Ct. 1033, 10 L. Ed. 2d 100 (1963). However, the rule is different in a bench trial. Jeopardy attaches in a trial to the court when the court begins to hear evidence. Serfass v. United States, 420 U.S. 377, 95 S. Ct. 1055, 1062, 43 L. Ed. 2d 265 (1975). The Supreme Court later, in dicta, interpreted this to mean jeopardy attaches when the first witness is sworn. See Crist v. Bretz, 437 U.S. 28, 37, 98 S. Ct. 2156, 2162 n 15, 57 L. Ed. 2d 24 (1978).

A. Alibi

1. Texas Law

Texas law does not regard alibi as a defense. This is simply a factual scenario which is

inconsistent with the state’s case. An alibi is simply offered to rebut the state’s case. There is no

requirement that the defendant provide notice to the state of his or her intention to assert an alibi.

2. Federal Law

However, the defendant in federal court may have to provide notice to the government of

the defendant’s intention to assert alibi as a defense. See Fed. R. Crim. P. 12.1. The government

must request said notice in writing. The request must state the time, date, and place of the alleged

offense. Fed. R. Crim. P. 12.1 (a)(1). Upon such request, the defendant must, within 10 days of

the request or any time designated by the court, serve written notice on the government of any

intended alibi defense. The defendant’s notice must state each specific place where the defendant

claims to have been and the name, address, and telephone number of each alibi witness on whom

the defendant will rely. Fed. R. Crim P. 12.1 (a)(2). The defendant may then request information

pertaining to witnesses who establish the defendant’s presence at the scene of the alleged offense

and government rebuttal witnesses. If either party fails to comply, the court may exclude

testimony of undisclosed witnesses.

B. Insanity

1. Texas Law

Insanity is an affirmative defense under Texas law. Tex. C. Crim. P., Art. 46C.051.

The defendant must provide notice at least twenty days prior to trial, unless the trial Court

schedules a pre-trial hearing more than twenty days prior to trial. Tex. C. Crim. P., Art. 46C.051.

Should the court schedule a pre-trial hearing more than twenty days in advance of trial, the

defendant must provide notice at the pre-trial hearing. If the defendant fails to provide the

required notice, the court will not admit evidence on the insanity defense unless the court finds

good cause exists for the failure to give notice. Tex. C. Crim. P., Art. 46C.052.

2. Federal Law

A defendant in federal court must provide written notice to the government of his

intention to assert an insanity defense. This notice must be provided at the time pre-trial

motions are filed, or at any time designated by the court. Fed. R. Crim P. 12.2 (a). The

government may then compel, pursuant to Rule 12.2 (c), the defendant to submit to a

competency examination under 18 U.S.C. § 4241 (statute pertaining to determination of

mental competency to stand trial).

C. Duress

1. Texas Law

Texas law provides that duress is an affirmative defense which the defendant must prove

by a preponderance of the evidence. Charles v. State, 636 S.W. 2d 5, 6 (Tex. App. Dallas 1992)

(pet. ref’d).

2. Federal Law

The federal law is substantially different. The initial burden of production rests upon the

defendant. The defendant must make a prima facie showing of duress. However, once that is

done the burden shifts to the government to affirmatively disprove duress beyond a reasonable

doubt. United States v. Falcon, 766 F.2d 1469, 1477 (10th Cir. 1985).


A. Jury Selection

1. Texas Law

Each side is permitted ten peremptory challenges in a non-capital felony trial in

Texas. Tex. C. Crim P., Art. 35.15 (b). Both parties are entitled to three peremptory

challenges in a misdemeanor case tried in a county court. Tex. C. Crim. P., Art. 35.15

(c). The parties are entitled to five peremptory challenges in a misdemeanor case tried

in a district court. Id. Additionally, Tex. Const., Art. I § 10 provides the right of counsel

to question the venire in order to intelligently exercise peremptory challenges. Ex parte

McKay, 819 S.W.2d 478 (Tex. Crim App. 1990). The ability to properly question the

jurors will be the fundamental distinction between the state and federal court. Counsel

for both the state and defendant are generally permitted to adequately question the


2. Federal Law

Federal law provides the defendant with ten peremptory challenges, and the

government is entitled to six. Fed. R. Crim. P. 24. However, if there are multiple

defendants, the defense will still only be entitled to ten peremptory challenges which

must be shared among the defendants. The court has the authority to grant additional

peremptory challenges. The court may empanel up to six alternates, and each side will

be entitled to one additional peremptory challenge in the alternate zone. The court is

not required to permit individual questioning by the attorneys. United States v. Segal,

534 F.2d 578 (5th Cir.1976).

Many federal judges will not permit attorney voir dire. And, those federal judges who

permit it generally impose severe time limitations. The trial court has almost limitless discretion

in the conducting of voir dire. Mu’Min v. Virginia 500 U.S. 415, 111 S. Ct. 1899, 114 L. Ed. 2d

493 (1991). You will generally provide the court with a list of requested voir dire questions. The

judge will then determine which questions will be asked. The court may ask questions which

were not submitted by either party. Typically, the judges will tend to ask questions which elicit

yes or no answers, as opposed to questions designed to elicit opinions. In short, the information

upon which you base your challenges will be very limited in federal court, as opposed to state


B. Witness Statements

1. Texas Law

Tex. R. Ev. 615 controls the production of witness statements in criminal cases,

except for situations which raise Brady issues. The rule generally allows a party which did

not call a witness to compel the production of any statement given by the witness which

relates to the subject matter about which the witness testified. The party requesting

production of the statement has the right to a recess of the proceedings in order to

examine the statement for use in the trial. Tex. R. Ev. 615 (d). If either party fails to produce

such a statement, the court shall strike the testimony of the witness. And, if the

state elects not to comply, the court shall declare a mistrial if required in the interest of

justice. Tex. R. Ev. 615 (e).

2. Federal Law

The federal rule is virtually identical to the Texas state rule regarding production

of witness statements after the witness has testified. See Fed. R.Crim P. 26.2. The production of

government agent and witness statements is also controlled by the Jencks Act. See 18 U.S.C. §

3500. This rule essentially provides that any recorded statement or report made by a witness is

not subject to compelled disclosure until the witness has testified on direct examination at trial.

See 18 U.S.C. § 3500. However, the defense is entitled to production after the witness testifies at

a pre-trial proceeding or detention hearing. See Fed. R. Crim. P. 26.2 and 46 (j).

C. Accomplice Testimony

1. Texas Law

Texas law places restrictions upon the sufficiency of accomplice testimony. A

conviction is not sufficient if based upon accomplice testimony, unless it is corroborated by

other evidence tending to connect the defendant with the offense. Tex. C. Crim. P., Art.

38.14. The corroborating evidence will, itself, be insufficient if it merely shows the

commission of the crime. Id

2. Federal Law

Federal law affords no such protection to the accused. A conviction can be based

upon uncorroborated testimony of an accomplice. The jury will be given a specific charge to

consider such testimony with caution, and only consider it if you believe it beyond a

reasonable doubt. Accordingly, if the jury believes the uncorroborated accomplice

testimony beyond a reasonable doubt, the evidence is sufficient to sustain a conviction.

D. Cross Examination

1. Texas Law

Both state and federal law permit and afford the right to confront and cross-examine all witnesses against the accused. U.S. Const., Amen. VI; Tex. Const., Art. I § 10. The difference is within the scope permitted the examiner during cross-examination. Texas law provides that the “witness may be cross-examined on any matter relevant to any issue in the case, including credibility.â€? Tex. R. Evid. 611 (b).
2. Federal Law

The primary difference is the limitation of the scope of cross-examination. The scope of cross-examination should be limited to the subject matter of the direct examination and issues relevant to credibility of the witness. Fed. R. Evid. 611 (b). However, the court has discretion to permit cross-examination into matter beyond the scope of direct examination. Id. Another difference in federal court is the authority of the court to control the presentation and mode of cross-examination. The applicable rule permitting this, Rule 611 (a), is identical in the Texas and Federal rules. The difference is the frequency which a federal judge will use such authority.
E. Impeachment With Prior Conviction

1. Texas Law

Texas law permits either party to impeach a witness with proof the witness has been convicted of a felony or crime of moral turpitude if the judge determines the probative value outweighs its prejudicial effect. Tex. R. Evid. 609 (a). However, there is a time limit. If more than ten years has elapsed since the latter of the conviction date or date of release from confinement from that conviction, evidence of the conviction is inadmissible. Tex. R. Evid. 609 (b). A time-barred conviction may, however, be admissible if the judge “determines, in the interest of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.â€? Id. If the conviction is on appeal, it is inadmissible. Tex. R. Evid. 609 (e). If the conviction in question was the object of a pardon or similar procedure based on innocence, the conviction is not admissible. Tex. R. Evid. 609 (c) (3). If there is a pardon based upon rehabilitation or if probation was satisfactorily completed, and there is no subsequent conviction for a felony or crime involving moral turpitude, the conviction is inadmissible. Tex. R. Evid. 609 (c) (1) and (2). Additionally, upon timely written request specifying the witnesses, the proponent must give the adverse party sufficient advance written notice of intent to use evidence of the conviction. Tex. R. Evid. 609 (f). This, of course, would require a party to identify its witnesses well in advance of trial. But, failure to comply with the request for notice of intent renders evidence of the conviction inadmissible. Id.

2. Federal Law
The federal rule is significantly different. The federal rule does not permit impeachment with a conviction for a crime involving moral turpitude. See Fed. R. Evid. 609 (a). But, evidence that any witness has been convicted of any crime in which it can readily be determined had as an element of the crime an act of dishonesty or false statement is admissible. Fed. R. Evid. 609 (a) (2). The general rule that felony convictions are admissible is subject to application of Rule 403. Fed. R. Evid. 609 (a) (1). However, if the government offers evidence of a conviction against the accused, the court must determine whether the probative value of the evidence outweighs the prejudicial effect to the accused. Id. The general ten-year rule is the same as the Texas rule. See Fed. R. Evid. 609 (b). However, if a party wished to offer evidence of a conviction more than ten years old, the proponent must give the adverse party sufficient advance written notice of its intent to use such evidence. Id. Unlike the state rule, the opponent does not have to request this notice. The effect of a pardon is the same in federal court. See Fed. R. Evid. 609 (c). But, the effect of an appeal of the conviction is exactly the opposite in federal court. A conviction is admissible even during the pendency of an appeal. Fed. R. Evid. 609 (e). But, evidence of the pendency of the appeal is, likewise, admissible. Id.
F. Hearsay

Upon the law of hearsay, there are several subtle, and some not so subtle, distinctions. Where a party offers a statement against interest in a Texas court, the availability of the declarant is immaterial. Tex. R. Evid. 803 (24). Whereas, the declarant must be unavailable to admit such a statement in federal court. Fed. R. Evid. 804 (b) (3). If the statement tends to incriminate the declarant, Texas requires the statement to be corroborated. Tex. R. Evid. 803 (24). However, this corroboration is only required in federal court if the statement is offered to exculpate the accused. Fed. R. Evid. 804 (b) (3). Accordingly, the federal counterpart only places the corroboration requirement upon the defense.
There is a significant difference with regard to “unavailabilityâ€? where it is shown that a party caused the witness to be unavailable. Texas law provides that where unavailability of the declarant “is due to the procurement or wrong-doing of the proponent of the declarant’s statementâ€?; the declarant is not deemed “unavailable.â€? See Tex. R. Evid. 804 (a). The federal rule is, by contrast, substantially more broad. “A statement offered against a party that has engaged or acquiesced in wrong-doing that was intended to, and did, procure the unavailability of the declarant as a witness.â€? Fed. R. Evid. 804 (b) (6). The federal rule creates a separate exception to the hearsay rule for all such statements.
Finally, there is a general exception created by the federal rules. If a hearsay statement does not fit within the enumerated exceptions, it will not be excluded on hearsay grounds if it possesses equivalent circumstantial guarantees of trustworthiness and “the court determines that (a) the statement is offered as evidence of a material fact; (b) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (c) the general purpose of these rules and the interests of justice will best be served by admission of the statement into evidence.â€? Fed. R. Evid. 807. The proponent of such a statement must provide notice of intent to offer the statement sufficiently in advance of trial. Id. The notice must contain the name and address of the declarant. Id. This is a broad exception to the hearsay rule. Texas law provides no such residual exception to the hearsay rule.
G. Jury Charge

There are fundamental differences between state and federal court as it relates to

the jury charge. Texas law requires that a written charge distinctly setting forth the law

applicable to the case and not expressing any opinion as to the weight of evidence be

given to the jury. See Tex. C. Crim. P., Art. 36.14. Both the state and defendant have the

right to object to portions of the charge, and to request special charges be included in the

charge. Tex. C. Crim. P., Art. 36.15. The procedure for submitting requested charges is

somewhat similar in a federal trial. However, you will generally submit you’re requested

jury instructions to the court prior to trial in accordance with a scheduling order. And, the

court will prepare a written charge to be submitted to the jury. However, a federal judge

can and will give instructions regarding specific factual issues raised by the evidence.

(See infra.) Additionally, and fundamentally different than Texas law, the court may

express opinions pertaining to the believability of witnesses and the weight to be given

certain evidence. Federal judges tend to follow the pattern charges for the relevant circuit.

But, do not limit your jury charge requests to the pattern charges for your circuit.

H. Commenting on Fact by Court

1. Texas Law

The court in its charge to the jury may express no opinion as to the weight of evidence. Tex. C. Crim. P., Art. 36.14. The court may not sum up testimony, discuss the facts, or use any argument calculated to arouse the sympathy or excite the passions of the jury. Id. Unless there is a specific statute to the contrary, the jury is the exclusive judge of the facts. Tex. C. Crim. P., Art. 36.13.
2. Federal Law
A court at its discretion in submitting its charge to the jury, may express its opinion upon the facts so long as all matters of fact are ultimately submitted to determination by the jury. Lovejoy v. United States, 128 U.S. 171, 9 S. Ct. 57, 32 L. Ed. 389 (1888). Generally, it is the judge’s province when necessary to express his or her opinion of the evidence, provided he or she makes it known to the jury that they are free to exercise their independent judgment of the facts. And, a court may go too far in expressing its opinion of the facts. See Quercia v. United States, 53 S. Ct. 698 (1933). However, the trial court in Quercia literally instructed the jury, in reference to the defendant’s testimony, “I think that every single word that man said, except when he agreed with the government’s testimony, was a lie.â€? Id. This case was actually affirmed at the circuit court. See Quercia v. United States, 62 F. 2d 746 (1st Cir. 1933). Accordingly, it may be difficult for a federal judge to go too far.
I. Final Argument
1. Texas Law

Texas law permits more liberal allocation of the prosecutor’s final argument. The prosecutor is not required to open the final argument, but may simply reserve his or her entire argument for rebuttal. The court controls the order of argument, but the state enjoys the right to make the concluding argument to the jury. Tex. C. Crim. P., Art. 36.07. The universal practice is to permit the state to open final argument. Then, the defense will argue, and be followed by the state’s rebuttal. It is also extremely common for a state prosecutor to reserve the more significant points for rebuttal so that defense counsel may not respond to such arguments.
2. Federal Law
Closing argument is more restrictive in federal court, both by rule and by custom. The order of arguments is controlled by the Federal Rules of Criminal Procedure. The government argues first, then the defense argues, and the government rebuts. Fed. R. Crim. P. 29.1. The rule does not address the situation wherein the government waives its right to open the closing arguments. However, it is the Advisory Committee’s view that such a waiver is improper. The “fair and effective administration of justice is best served if the defendant knows the argument s actually made by the prosecution in behalf of conviction before the defendant is faced with the decision whether to reply and what to reply. Fed. R. Crim. P. 29.1 advisory committee’s note (1975). The Committee is of the view that the prosecutor, when he waives his initial closing argument, also waives his rebuttal.â€? Id. (citing House Report No. 94-247.) The custom in federal court is to follow the committee’s opinions. Moreover, it appears to be the universal practice of federal prosecutors to make meaningful use of their initial closing argument and to use rebuttal for just that.
J. Motion for Judgment of Acquittal/Directed Verdict
1. Texas Law

Texas law provides the defendant an opportunity to move the court to direct the

jury to return a verdict of not guilty. This is called a motion for a directed or instructed

verdict. This motion is made outside the presence of the jury after the state has rested its

case in chief. The issue before the court is whether the state has produced some credible

evidence proving each and every element of the offense. The court will not make

determinations as to the weight to be attributed to any particular evidence. And, the

evidence is viewed in a light most favorable to the state. However, if the record is devoid

of any evidence proving an element, the defense is entitled to a directed verdict. The

court will then prepare a charge which instructs the jury to return a verdict of not guilty.

2. Federal Law

The Federal procedure is different. And, it is very important that the appropriate

motion is made, and re-urged at the appropriate times. The federal motion is called

Motion for Judgment of Acquittal. See Fed. R. Crim. P. 29. The defendant in federal

court must move for a judgment for acquittal at the close of the government’s case. If the

motion is denied, the motion should be re-urged at the close of all the evidence. If there

is a guilty verdict, the defendant must renew the motion for judgment of acquittal within

seven days after the guilty verdict. See Fed. R. Crim. P. 29 (c) This motion is not

required. However, it will substantially change the standard of review on appeal if the

defendant fails to move for judgment of acquittal at each appropriate time.


Texas law provides that a person acquitted of an offense is entitled to an

expunction. See Tex. C. Crim. P., Art. 55. An expunction permits a defendant to

essentially erase all public and law enforcement records arising from the arrest for the

offense. It also enables the defendant to lawfully deny that he was ever arrested for or charged

with the expunged offense.

On the contrary, there is no procedural right to an expunction in the federal

system. Federal district courts do, however, have jurisdiction to expunge records

maintained by the judiciary, but not the executive branch. United State v. Janik, 10 F. 3rd

470, 472 (7th Cir. 1993). This means, unlike Texas law, the law enforcement agency and

the Department of Justice may maintain records relating to the accusation. On the other

hand, though, a citizen in federal court may obtain a judicial expunction even when the

person was convicted of the offense. See United States v. Flowers, 389 F. 3rd 737 (7th Cir.

2004). The test is whether “the dangers of unwarranted adverse consequences to the

individual outweigh the public interest in maintenance of the records, then expunction is

appropriate.� Id. At 739 (quoting Janik, 10 F. 3rd at 472).


Sentencing in federal court is vastly different from sentencing in Texas state

courts. Entire volumes have been written analyzing the federal sentencing guidelines. The

sentencing system in Texas state court is fairly simple. There is a range of punishment

applicable to each given offense. The defendant in state court, unlike federal court, has a

right to elect that the jury assess punishment in the event of a conviction. No such right to

jury sentencing exists in the federal system.


Although there are many differences, the two systems are not fundamentally

different. A trial in federal court is reasonably similar to a trial in state court. The order of

the proceedings is the same, and the manner of presenting one’s case is the same. That

being said, however, it is important to know the procedural and legal differences. And,

this article should serve as a good primer for the practitioner who is venturing into new


Good Luck and God Bless You.

Judge David Finn

Phone Numbers

Office: (214) 538-6629

Office Location

4015 Main Street, Suite 100
Dallas, TX 75226
Phone: (214) 538-6629
HTML Sitemap