The Warrior’s Discovery Toolbox

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Friday, September 2nd, 2016
The Warrior’s Discovery Toolbox

Getting as much insight as possible into your opponent’s case is the keystone to an effective defense. The more information you and your client have, the better informed you and your client are so that both of you can make an informed decision. An uninformed decision, based on inaccurate or no information, can harm your client.

You and your client have a right to Discovery, and there is nothing wrong for asking for the world, as long as the information requested could reasonably lead to admissible evidence.

I. The Examining Trial

A Motion for an Examining Trial asks for a hearing to determine if there was probable cause for an arrest of an unindicted (felony accusation) defendant. The judge is being asked to find that there was no probable cause for the arrest. If a judge finds no probable cause for the arrest, then the State cannot subsequently obtain an indictment against the defendant, since a Grand Jury is there for the sole purpose of determining if probable cause exists for the accusation.

The examining trial is used “to examine the truth of the accusation made,” pursuant to Article 16.01 of the Texas Code of Criminal Procedure. The examining trial can also be used to “determine the amount or sufficiency of the bail, if a bailable case.” Id.

Unfortunately, although the defendant’s right to an examining trial is “absolute,” this right to a preliminary hearing is not unrestricted and is terminated by the return of an indictment. State ex. Rel. Holmes v. Salinas, 784 S.W.2d 421 (Tex. Crim. App. 1990).

Cross-examining adverse witnesses in advance of trial is a luxury that no good defense attorney should pass up. Unfortunately, the Motion for an Examining Trial rarely works. On several occasions, I have had the opportunity to ask for examining trials. Unfortunately, the Court I made the request to either delayed the hearing, the prosecutor quickly went to the grand jury to obtain an indictment, or a combination of the two.

II. The Administrative Law Review (ALR) Hearing

The ALR Request is unique to Driving While Intoxicated (DWI) cases. For the purposes of this article, I will address the ALR ramifications concerning an adult, rather than a minor, who is arrested for DWI.

The ALR hearing gives us the luxury of cross-examining the officers involved in advance of trial. Such sworn testimony can be used later in the DWI trial to contradict the officers with prior inconsistent statements.

If a person is arrested for any type of DWI offense, the arrested person will be offered a breath test or blood test. Refusal of either test will generally (please refer to Sec. 524.022 and 724.035 of the Texas Transportation Code) result in a 6-month driver license suspension that occurs 40 days after the arrest—unless the arrested person requests an ALR hearing no later than 15 days after the arrested person received the “Notice of Suspension, Temporary Driving Permit” (usually on day of arrest). This notice is also called the DIC-25 and is required to be served by the officer pursuant to Section 524.011 or Section 724.032 of the Texas Transportation Code. Relevant to this article, Section 524.011 and Section 724.032 of the Texas Transportation Code also requires the officer to create a “sworn report of information relevant to the arrest,” known as a DIC-23.

The two issues that may be addressed at the hearing are the following: 1) whether the person had a BAC of 0.08 or more, or if the person is alleged to have refused, whether the person did indeed refuse (or did they try really, really, hard to blow?), and 2) whether there was probable cause for the detention or arrest. Please see Sect. 524.035 and Sect. 724.042.

You have a right to subpoena two officers for the hearing. One subpoena may be issued to compel the presence of the peace officer who was primarily responsible for the defendant’s stop or initial detention, and the other may be issued to compel the presence of the peace officer who was primarily responsible for finding probable cause to arrest the defendant. If the same officer was primarily responsible for both the defendant’s stop and arrest, the attorney may issue only one subpoena. See Texas Administrative Code Rule 159.103.

Always subpoena two officers if you can. And I strongly advise you to read Chapter and 155 and 159 of the Texas Administrative Code because there are deadlines and rules that you must abide by, or otherwise, you may waive your right to a hearing. If the two officers you subpoenaed don’t show up, as is the case in very large jurisdictions, then your client’s DL is not suspended. If the two officers you subpoenaed do show up, then you can cross-examine. And don’t forget the witness fee for these two officers if they do show. Again, read the Texas Administrative Code.

I struck a goldmine in one of my DWIs a few years back at an ALR hearing. My client allegedly hit a parked car in downtown Houston in the middle of the day. A Houston metro police officer was first on scene, and then a Houston police officer arrived a short time later and administered Standardized Field Sobriety Tests (SFSTs). My client was arrested for DWI and then a blood warrant was obtained by the SFST officer, and the blood results came back 0.33.

The SFST officer put in the blood warrant affidavit that the Houston metro officer talked to an independent witness who told the metro officer that he saw my client driving and then wreck. At the ALR hearing, the Houston metro officer admitted he talked to no independent witness. The ALR hearing officer refused to suspend my client’s license based on no probable cause for the arrest (driving element). After the hearing, I called this so-called independent witness, who admitted to me that he didn’t see who was driving the pickup when it crashed, and that he had to drive around the block and back before he saw my client standing next to the truck. There was a driving element that the State was not able to prove.

Then it occurred to me a very important thing. The blood warrant was bad because there was a lie in the supporting affidavit. I filed a Franks v. Delaware motion on the day of trial in order to get the blood kicked out. I even voir-dired the jury on Article 38.23 of the Texas Code of Criminal Procedure. I was going to ask the jury to throw out the blood draw if the judge didn’t do so. The State could see my tactic a mile away, and there was absolutely no explanation for this officer’s lie. Interestingly, the State also brought in the 911 caller to prove that she saw my client driving, even though my investigator took pictures of where she worked, and I believe we proved to the jury she didn’t see who was driving the pickup that crashed.

Then came the decisive moment: when the State finally put the SFST officer on the stand. I was eager to cross-examine him on his lie. But the officer continually kept commenting on the fact that my client kept asking for his attorney. He just wouldn’t shut up. I finally got the judge to grant me a mistrial.

While waiting for our second DWI trial, my client was ar­rested for DWI again in Harris County. I was very disappointed when this happened. I had put up an incredible fight in the first DWI trial. I went back to the prosecutors to negotiate, and interestingly enough, the new prosecutors on the case didn’t want to go through another trial on the first DWI. They told me point blank that they heard that the first trial was a slaughterhouse and they didn’t want to fight that fight again. Even the judge was encouraging us to negotiate. She told us right out that she didn’t want to do another jury trial. My client was offered a “Divert” for his first and second DWI in the newly created misdemeanor Veteran’s Court. His Unlawfully Carrying Weapon charge from the first DWI was dismissed, and he entered the “Divert (pretty much a Pretrial Diversion for DWIs—thank you Harris County)” program.

The lesson learned is to always request the ALR hearing.

III. The Initial Discovery Requests

A. The 39.14 Request

This is one of the initial filings I file in every criminal case. The request tracks the language of Article 39.14 of the Texas Code of Criminal Procedure word for word. The request is mandatory in that the prosecutor’s office must comply. No judge’s signature or order from a judge is needed. Just the request.

The State may provide electronic duplicates of any documents or information requested, and the statute must be complied with “as soon as practicable after receiving a timely request.” Id. The statute does not authorize the removal of documents or items from the State, and any “inspection” of items must be done in the presence of a representative of the State. Id.

Please be aware of two danger zones in the statute. First, if you are to receive any information pursuant to this statute, you are not authorized to disclose the discovery to any third party that is not your investigator, expert, consulting attorney, defendant, or other agent. Please see Article 39.14(e) of the code. Additionally, you cannot provide hard copies of the discovery to the defendant unless it is the defendant’s own written statement. Please see Article 39.14(f) of the code.

Finally, before accepting a plea, each party shall acknowledge in writing or on the open record the items received. Please see Article 39.14(j). A Harris County District Attorney tried to get me to sign for receipt of evidence and, at the same time, sign away any future rights to discovery. I believed that waiving any future rights to discovery, even in a plea setting, violates Article 39.14(k). I refused to sign the receipt.

B. The Brady Request

Even though an Article 39.14 request per se covers Brady material, I believe that separately requesting evidence in the form of a Brady motion that requires a judge’s signature is a good idea. Why? It is possible that appellate courts in the future may limit 39.14 discovery rights, possibly even impinging on Brady material itself. Be safe and make a separate Brady request in every case. Always be sure to get a ruling from the trial court on the request/motion.

C. The Texas Disciplinary Rules Discovery Request

There is a changing tide in Texas concerning prosecutors withholding evidence, and we need to take advantage of this tide.

I have a third common discovery request entitled “Motion for Disclosure of Evidence Pursuant to Rule 3.09(d) & 3.04(a) of the Texas Disciplinary Rules of Professional Conduct.”

The disciplinary rules are treated like statutes. O’Quinn v. State Bar of Texas, 763 S.W.2d 397, 399 (Tex. 1988). In Schultz v. Commission for Lawyer Discipline, No. 55469, Board of Disciplinary Appeals, December 17, 2015, available at www.txboda.org/sites/default/files/Schultz55649%20Opinion.pdf, prosecutor Shultz argued to the commission that he didn’t need to divulge certain evidence to the defense because that evidence was not “material” as required by Brady. A Brady complaint contains as one of its three elements that the information be “material.” Strickler v. Green, 527 U.S. 263, 281–282 (1999); Harm v. State, 183 S.W.3d 403, 406–407 (Tex. Crim. App. 2000)(same); Moore v. Illinois, 408 U.S. 786, 794–795 (1972)(same); Monroe v. Blackburn, 607 F.2d 148, 150–151 (5th Cir. 1979)(same).

The board disagreed and threw out the materiality requirement, ruling that any exculpatory evidence must be turned over regardless of its “materiality.” Id. “The United States Supreme Court has acknowledged that the ethical duty to turn over information to the defense is broader than the Brady requirements.” Id. Schultz was then handed a partially probated suspension for his unethical behavior.

Therefore, my motion asks the judge to order the prosecution to disclose to counsel for defendant all exculpatory evidence or evidence favorable to the defendant that the prosecution may have in its possession without regard to its materiality.

IV. The Follow-Up Discovery Requests

A. Motion for Order in Aid of Discovery

Attorney David Suhler out of Houston turned me on to this fancy little motion while we were defending a Continuous Sexual Assault of a Child Case arising in Cleveland, Texas.

Many times the situation occurs when you initially receive the discovery from the State and find that there is more discoverable evidence referenced in the State’s materials that was not turned over to you. The motion points out the specific evidence needed that was originally requested in the 39.14 request but not provided. The motion makes reference to the original 39.14 request, points to the items requested, and asks for electronic duplication, copying, and/or photographing of the material requested.

The motion ends with language tracking the language of Article 39.14 with an example such as this: “Said photo lineups are in the sole possession, custody, or control of the State. Said photo lineups are not work product of counsel in the case and their investigators and their notes or report. Said photo lineups are not privileged. Said photo lineups constitute or contain evidence material in this case.”

The motion is significant in that it suggests that maybe the prosecution is not living up to their duty to disclose when it is clear from the existing evidence that the State has possession of the items requested.

B. The Business Records Affidavit

I don’t mind hearsay as long as it helps me. And this trick is an excellent little hearsay exception.

A Subpoena Duces Tecum can be issued to an individual prior to trial, and I have found it to be a very useful part of my Discovery Toolkit, particularly when I need documents that I can introduce as evidence.

The Subpoena Duces Tecum that I use subpoenas the individual and orders the individual to report to court instanter (or on date-certain) with the records requested. But I offer the subpoenaed individual an out. It states: “In the alternative, said request may be satisfied by the current Business Records Custodian of the ___________ attaching said documents, evidence, or other tangible things described above to a properly executed Business Records Affidavit, herein attached as Exhibit #1, and delivering said Affidavit to the Law Office of D. Chris Hesse at the address below.”

I have used this approach with great effect. Records of Regularly Conducted Activity is a hearsay exception pursuant to Texas Rules of Evidence Rule 803(6). But who wants to go through the excruciating endeavor of bringing in the Business Records Custodian to prove the documents up at trial? I sure don’t. So I take the extra step of getting a self-proving “Business Records Accompanied by Affidavit” pursuant to Rule 902(10).

Don’t forget that there is a service requirement for said records upon the prosecution at least 14 days in advance of trial. The Business Record Accompanied by Affidavit no longer needs to be filed with the clerk. And the word “affidavit” in Rule 902(10) includes an unsworn declaration made under penalty of perjury. Tex. Civ. Prac. & Rem. Code Sec. 132.001.

The Business Records Affidavit with Attached Records can be a very useful tool in trial. Juries love documentary evidence. The Business Records Affidavit is not limited to private businesses, but can be executed by government entitles. City and county sheriff departments have Business Records Custodians. I have had sheriff departments do Business Records Affidavits for their official policies concerning any number of things. I have had Texas DPS do a Business Records Affidavit for their Sexual Registration Files on a certain individual. When the prosecutor saw that Business Records Affidavit, it quickly encouraged him to dismiss that particular case.

The only pitfall in going the Subpoena Duces Tecum route for your Business Records Affidavit is that you have to file the sub­poena, and the prosecutor could see in the clerk’s file that you are searching for that information. The person subpoenaed could also complain to the prosecutor, and it is possible that the prosecutor could file a Motion to Quash Subpoena.

It may be that you don’t want the prosecution to get wind of your search for a Business Records Affidavit. One alternative is to do an Open Records Request to the entity and ask that gov­ernment entity to do a Business Records Affidavit. This is the softer, gentler approach.

C. The Request for Notice of Experts

You are entitled to Notice of the State’s Experts at least 20 days prior to trial, and it would be ludicrous of you not to request this notice in a DWI case or any felony. The request must be in writing pursuant to Article 39.14(b) of the Texas Code of Criminal Procedure and Rule 702, 703, and 705 of the Texas Rules of Evidence.

You are entitled to know the name and address of any expert the State may use at trial and the facts and data that are the basis of any report produced by the expert. See Tex. Code. Crim. Proc. Art. 39.14(b).

Your knowledge of whom they intend to call as an expert is significant. The State cannot designate the person as an expert at trial if they haven’t given you this notice. This is significant because we all know that pursuant to Texas Rules of Evidence 701, an expert can indeed give his opinion, whereas a layperson cannot give an opinion. The basis of the expert’s opinion has to be known. Your knowledge of who the expert is and what the basis of his opinion is can help you decide if you want to conduct a Daubert hearing. Discover this evidence and decide if this ex­pert is peddling junk science to the highest bidder. We are all too aware of the State’s expert witness who travels the state—and the nation, for that matter—making a living off of ac­tively assisting the prosecution in any way possible with absurd scien­tific concepts that are generally rejected by the scientific com­munity.

D. The Request for Notice of Extraneous Offenses or Bad Acts

While the criminal history of your client is almost always provided by the prosecution, it is still a good idea to file a “Defendant’s Request for Notice of State’s Intention to Use Evidence of Extraneous Offenses at Trial.” It is important to ask for such notice in every case. If the State does not actually give you the notice, you can argue later to the judge not to allow the extraneous crimes or bad acts in because the State gave no notice when specifically requested to do so.

Texas Rules of Evidence Rule 404(b) requires notice be given before the State’s intent to introduce your client’s other “crimes, wrong, or other act” in its case in chief. Rule 609(f) requires notice of the State’s intent to use evidence of any prior conviction of any witness so designated. Article 37.07(g) is the equivalent of a 404(b) for the punishment stage of trial. However, notice under article 37.07 is broader to the extent that it requires that “if the attorney representing the state intends to introduce an extraneous crime or bad act that has not resulted in a final conviction in a court of record or a probated or suspended sentence, notice of that intent is reasonable only if the notice includes the date on which and the county in which the alleged crime or bad act occurred and the name of the alleged victim of the crime or bad act.” You deserve the notice of the possibility of these other crimes, wrongs, or acts possibly coming out, although you should certainly prevent them from coming out if they try to do so at trial.

E. The Brady Complaint

This is the atomic bombshell of discovery motions, and I have no qualm in using it if I have to. The Brady complaint is entitled “Defendant’s Motion to Dismiss for Violation of Production of Exculpatory Evidence.”

A valid Brady complaint contains three elements: (1) regardless of the prosecutor’s good faith or bad faith, the State failed to disclose evidence; (2) the evidence is exculpatory; and (3) the evidence is material to the defense, meaning that there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different (i.e., the defense was prejudiced). Strickler v. Green, 527 U.S. 263, 281–282 (1999); Harm v. State, 183 S.W.3d 403, 406–407 (Tex. Crim. App. 2000)(same); Moore v. Illinois, 408 U.S. 786, 794–795 (1972) (same); Monroe v. Blackburn, 607 F.2d 148, 150–151 (5th Cir. 1979)(same).

I file this motion if I believe that the State does have evidence that will exonerate my client but the State is refusing to turn it over. I have used this motion with great effect at least once in the past. On that occasion, I did not explicitly know that the evidence was actually “exculpatory” pursuant to the second Brady prong above, but I had a very strong hunch it was.

In August 2013, my client was charged with DWI after being found passed out at an intersection in his running pickup in Katy, Texas. My client performed SFSTs, was brought to the station, and voluntarily gave blood. After consulting with my client, I determined that the blood draw was done 8½ hours after the arrest, and the State was still not turning over the blood even up to the eve of trial. Starting around August 2014, I began pushing for the blood evidence from the Fort Bend County mis­de­meanor prosecutor. He was genuinely perplexed why the blood had not come back from the lab. He told the judge and me that he was going to try to prove intoxication at trial by loss of normal use of mental or physical faculties, not BAC of 0.08 or above. I said I wasn’t going to stand for that. I started to suspect foul play.

In October 2014, I filed the Brady violation motion and sought a hearing. The two misdemeanor prosecutors asked to speak to me in their office and took it personally that I was accusing them of withholding exculpatory evidence. They were really bent out of shape. I kindly explained that the duty to dis­close affects not only the prosecutor, but also the police, so it is not necessarily a reflection on them. The prosecutors then asked the judge for a continuance on my hearing request so they could get the blood.

Then, in November 2014, I was informed by the prosecutor that Katy PD found the blood vial in their evidence locker. This is one year and three months after the arrest! The blood was then sent for testing.

Finally, in March 2015 the prosecutor called me advising he was dismissing the case.

F. The Pretrial Motion to Suppress Hearing or Pretrial Daubert Hearing

Much like the ALR hearing request, this discovery tactic works best if the Motion to Suppress Hearing or Daubert hearing is conducted prior to trial. We all know that a judge can force the suppression hearing or Daubert hearing to occur during trial, in which case it is not as useful of discovery tool anymore. Always get a transcript of the prior testimony if you have a pretrial hearing, as testimony always seems to change. If you aren’t able to have a pretrial hearing, though, make sure you still find out what the cops and experts are going to say (before they say it in front of the jury) in a hearing outside the presence of the jury.

V. The Lesson

Gather as much information as possible. The more you dig, the more you will find. Don’t be the all-too-typical attorney who doesn’t do his homework and walks right into trial only relying on what the State has given you. Your oath requires you to be a zealous advocate. Be that Warrior.