"the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system." Barker, 407 U.S. at 532-33, 92 S.Ct. at 2193-94.
John Hubert you are the Tamperer of governmental documentation records. I hope you do "spend the rest of the summer in the library."
Texas Fair Defense Act
Saturday, March 15, 2008
This is an issue of considerable public importance
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NUMBER 13-07-165-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE: JUAN ANGEL GUERRA, DISTRICT AND COUNTY
ATTORNEY FOR WILLACY COUNTY, STATE OF TEXAS
On Petition for Writ of Mandamus
O P I N I O N
Before Justices Yañez, Benavides, and Vela
Opinion by Justice Yañez
This is an original application for writ of mandamus by which the District Attorney of Willacy County, as relator, seeks to have an order entered by respondent trial judge set aside. Relator, Juan Angel Guerra, alleges respondent, Judge Migdalia Lopez of the 197th District Court of Cameron County, exceeded her authority as a magistrate by entering an order appointing Gustavo Garza as attorney pro tem. The parties have filed motions for contempt and sanctions. We conditionally grant the writ and deny the motions for contempt and sanctions.
I. Background
On January 11, 2007, the 197th Judicial District Grand Jury for Willacy County, July Term, asked to meet with respondent, Judge Lopez. (1) In that private meeting, the grand jury expressed concerns that relator had abused his office in several respects and requested that an attorney pro tem be appointed to assist in the grand jury's investigation of those concerns. In response to that request, respondent issued an order on January 17, appointing Gustavo Garza as attorney pro tem. Respondent had previously appointed Garza as attorney pro tem on August 2, 2006, after respondent approved relator's request to be recused in the investigation of State of Texas v. Eliseo Barnhart and State of Texas v. Andrea Espinosa, two cases pending in the Willacy County District Attorney's Office. The January 17 order, which was drafted by Garza after reviewing the reporter's record of the meeting between the grand jury and respondent, provides as follows:
On January 11, 2007, in Willacy County, Texas, the Grand Jury for the 197th District Court, whose term was extended met in open court with District Judge Migdalia Lopez. On the record the Willacy County Grand Jury addressed various concerns regarding the District Attorney, Juan Angel Guerra and his conduct as District Attorney.
I.
The Grand Jury expressed concern that the District Attorney, Juan A. Guerra was abusing his office and abusing his power.
II.
The Grand Jury was concerned with the request by the District Attorney to investigate and indict several Willacy County elected officials.
III.
The District Attorney requested the Grand Jury to subpoena the District Judge.
IV.
District Attorney, Juan A. Guerra requested indictments from this Grand Jury without presenting any evidence.
V.
The District Attorney ordered the Grand Jury to create a five member committee and the District Attorney named two of the committee members. This Grand Jury committee was to investigate and recommend indictment for neglect of office against the District Clerk, County Clerk, County Sheriff and other bail bond board members. This matter was a civil matter.
VI.
The District Attorney demanded $10,000.00 from a bail bond company. The Grand Jury suspected that a person was indicted for a sex offense in retaliation for nonpayment of the $10,000.00 demanded.
VII.
The District Attorney requested the Grand Jury to 'true bill' a case that the Grand Jury was in favor of a 'no bill' by stating that the suspect was going to be arrested anyway.
VIII.
The Grand Jury expressed concern that the District Attorney, Juan Angel Guerra uses the grand jury process to intimidate individuals or get even.
IX.
The Grand Jury was aware of voter fraud committed by the District Attorney, Juan Angel Guerra during the election of March 2004.
Because of these concerns, the Grand Jury requested the 197th District Court meet with the Grand Jury and requested that a special prosecutor be appointed to assist and guide the Grand Jury in investigating the aforementioned areas of concern and any other wrong doing involving the Willacy County District Attorney, Juan Angel Guerra.
Order
Pursuant to the request by the Willacy County Grand Jury, on this the 11th day of January, 2007, IT IS THE ORDER OF THE COURT that Gustavo Garza is appointed attorney Pro Tem otherwise known as Special Prosecutor to investigate and prosecute these matters referenced above and any other criminal activity connected or arising out of these allegations; the Attorney Pro Tem will be able to obtain assistance of co-counsel. Considering the fact that the Court has appointed Gustavo Ch. Garza as attorney pro tem on August 2, 2006, this Court by this Order is extending the assignment of August 2, 2006, and the Oath of Office filed with the County Clerk shall continue in full force and effect until the completion of these matters.
On February 10, Daniel Cavazos, Jr., a special investigator with the Raymondville Police Department, alleged in an affidavit that he had probable cause to believe that relator had committed certain criminal acts. In his affidavit, Cavazos requested a search warrant to investigate those acts. Garza then presented the affidavit to Judge Janet L. Leal of the 103rd District Court of Cameron County, whereupon Judge Leal issued the warrant, authorizing the search and seizure of various items within the Willacy County District Attorney's Office. (2)
On February 11, Cavazos drafted an "affidavit for warrant of arrest" under Garza's supervision, which led to the issuance of three arrest warrants against relator. The warrants accused relator of two counts of theft by public servant and one count of attempted theft by public servant. (3) Later that day, police officers with the Raymondville Police Department, acting under Garza's direction, executed a search of the district attorney's office and seized a number of items. Relator was also arrested in the process for interfering with the search. On February 23, the complaints against relator--three felony counts of theft by public servant and the later added charge of interfering with public duties--were dismissed by Raymondville Municipal Judge Hector Huerta.
On March 14, relator filed with this Court a "Petition for Writ of Injunction (Temporary Restraining Order)" (4) and "Motion for Stay of Execution of Order" of the 197th District Court. This Court granted relator's stay motion on March 15, (5) ordering the trial court's order of January 17 stayed and setting the matter for oral argument on April 4.
On March 21, the aforementioned grand jury met and issued a subpoena directed to Garza; the subpoena requested the draft indictments against relator that Garza had previously prepared. Garza provided the grand jury with those indictments and the grand jury issued the indictments that same day. As a result, relator was once again arrested. (6)
On March 22, relator filed a motion for contempt, contending that respondent and Garza had violated this Court's stay order. Respondent and Garza individually filed a motion to dismiss relator's motion for contempt, and subject thereto, a response and counter-motion for sanctions. Accordingly, this Court issued an order setting the motion for an evidentiary hearing. Respondent and Garza were ordered to appear before this Court on April 4 to respond to relator's motion and show cause why they should not be held in contempt of court and punished for their alleged failure to comply with this Court's March 15 order. (7)
On March 31, while a decision on relator's petition was pending before this Court, relator's motion to recuse respondent in the pending criminal matters against relator was granted by Judge J. Manuel Bañales, the presiding judge of the Fifth Administrative Judicial Region. In connection with that recusal, Judge Bañales appointed himself to preside over this matter. (8) Two days prior to this, relator filed an amended petition asking that this Court (1) command respondent (who, pursuant to Judge Bañales's order is no longer the presiding judge) to vacate her January 17 order, and (2) remove Garza as attorney pro tem.
II. The Issues
In his petition, relator asserts the following six issues: (9) (1) this Court has jurisdiction to grant relator's writ of mandamus; (2) the trial court abused its discretion by not initially seeking to have relator temporarily removed from office through the procedures prescribed in chapter 87 of the Texas Local Government Code; (3) the trial court abused its discretion by appointing an attorney pro tem without relator's consent; (4) the trial court abused its discretion by failing to provide relator with notice and a hearing prior to the appointment; (5) the trial court abused its discretion by taking an act that caused the district attorney's office to cease all operations; and (6) the trial court abused its discretion by appointing an individual who was not a "competent attorney" because of, inter alia, bias and conflicts of interest.
In response, respondent contends that (1) relator has adequate remedies at law, (2) she acted within her legal capacity in appointing an attorney pro tem, and (3) she has taken no action which has caused the district attorney's office to cease all operations.
III. Mootness and Abatement
Before discussing the merits of relator's issues on appeal, we must comment on whether this case has become moot or should be abated.
A case is determined to be "moot" if the issues presented in the case are no longer "live" or if the parties lack a legally cognizable interest in the outcome. (10) An entire appeal does not become moot, however, simply because one issue in the case becomes moot. (11) If a case becomes moot on appeal, the appellate court must set aside all previous orders and judgments; both the appeal and the underlying cause must be dismissed. (12)
The January 17 order appointed Garza to "investigate" matters concerning relator, which gave way to Garza's involvement with the July Term grand jury. While relator's appeal was pending, the grand jury's term expired; as a result, this portion of the order has been rendered moot. The order, however, also appointed Garza to "prosecute" certain matters--matters for which relator has been indicted. This issue is still alive. Accordingly, relator's original proceeding is not moot.
As to the matter of abatement, this Court has considered whether, in light of respondent's recusal and the subsequent appointment of Judge Bañales, this proceeding should be abated pursuant to rule of appellate procedure 7.2(b). (13) Rule 7.2(b) states:
If the case is an original proceeding under Rule 52, the court must abate the proceeding to allow the successor to reconsider the original party's decision. In all other cases, the suit will not abate, and the successor will be bound by the appellate court's judgment or order as if the successor were the original party. (14)
A "successor" in the context of rule 7.2, however, is an individual who succeeds a public officer who has ceased to hold office. (15) In the instant case, respondent has not ceased to hold office; she has simply been recused from this proceeding. Additionally, we have found no case law applying rule 7.2(b) in response to a recusal that occurred pending an original proceeding or appeal. Because we are not persuaded that the rule is applicable to this proceeding, we decline to abate.
IV. Issue One: Jurisdiction
Mandamus issues only to correct a clear abuse of discretion or a violation of a duty imposed by law when there is no other adequate remedy. (16) If the trial court's order is one within its discretionary powers, the relator must show that it is a "clear abuse of discretion." (17) A trial court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error. (18) With respect to resolution of factual issues or matters committed to the trial court's discretion, for example, the reviewing court may not substitute its judgment for that of the trial court. (19) The relator must establish that the trial court could reasonably have reached only one decision. (20) Even if the reviewing court would have decided the issue differently, it cannot disturb the trial court's decision unless it is shown to be arbitrary and unreasonable. (21)
On the other hand, review of a trial court's determination of the legal principles controlling its ruling is much less deferential. (22) A trial court has no "discretion" in determining what the law is or applying the law to the facts. (23) Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion, and may result in appellate reversal by extraordinary writ. (24) Even when a trial court is confronted with an issue of first impression in Texas, the court still has no "discretion" in determining what the law is or applying the law to the facts. (25) "Consequently, the trial court's erroneous legal conclusion, even in an unsettled area of law, is an abuse of discretion." (26)
A writ will not issue to correct a trial court's abuse of discretion if relator fails to demonstrate that he has no adequate remedy by appeal. (27) Mandamus is intended to be an extraordinary remedy, available only in limited circumstances. (28) The writ will issue only in situations involving manifest and urgent necessity and not for grievances that may be addressed by other remedies. (29) "The requirement that persons seeking mandamus relief establish the lack of an adequate appellate remedy is a 'fundamental tenet' of mandamus practice." (30) An appellate remedy is not inadequate merely because it may involve more expense or delay than obtaining mandamus relief. (31)
In her response to relator's petition, respondent contends that relator has adequate remedies "afforded to him through the criminal justice system" for the purpose of responding "to the appointment and any other issues that relate to that appointment." Respondent explains that "[s]ince the filing of these original proceedings, Relator has been indicted by a Willacy County Grand Jury. Therefore, Relator can avail himself of the criminal justice system as any accused can and address his concerns in that forum." We agree with respondent's contention to a limited extent.
What makes this case particularly tricky is that relator comes before us wearing two different hats: the hat of a district attorney and the hat of a criminal defendant. Each hat affords relator the ability to air certain grievances--grievances that, at times, can only be properly raised under the auspices of one of the hats. The challenge before this Court is to identify which hat relator is wearing when he raises a specific argument. If we come across an argument that can only be raised under the hat of a criminal defendant, then it is incumbent upon this Court to dismiss that argument because all appropriate remedies can be obtained through the criminal justice system at this time.
It is equally incumbent upon this Court, however, to address and provide appropriate relief when relator raises grievances while wearing the hat of a district attorney. At the time relator filed his original petition with this Court, there were no outstanding indictments against him. Relator was solely before us in his capacity as District Attorney of Willacy County--an elected official whose office is "constitutionally created and therefore constitutionally protected." (32) Relator has raised some complaints on appeal that are not characteristic of the typical criminal defendant; rather, these complaints are those of an elected official who contends that his statutorily provided powers have been unlawfully usurped by respondent's appointment of an attorney pro tem. (33)
Guided by this framework, we find that relator does not have an adequate remedy by appeal. (34) Accordingly, we must now assess relator's remaining issues to determine whether respondent's January 17 order constitutes a clear abuse of discretion, thus entitling relator to mandamus relief.
V. Issue Two: Chapter 87 of the Texas Local Government Code
1. Removal Proceedings under Chapter 87
According to the Texas Constitution, "The Legislature shall provide by law for the trial and removal from office of all officers of this State, the modes for which have not been provided in this Constitution." (35) County officers are subject to this constitutional provision. (36) Accordingly, the Legislature has enacted the rules governing the trial and removal of a district attorney. (37) These rules are promulgated in chapter 87 of the Texas Local Government Code.
Under chapter 87, a district judge may remove a county officer (e.g., a district attorney) from office for incompetency, official misconduct, or intoxication. (38) A removal proceeding begins by filing a written petition in a district court of (1) the county in which the officer resides, or (2) the county where the alleged cause of removal occurred, if that county is in the officer's judicial district. (39) This petition may be filed by any resident of this state who has lived for at least six months in the county in which the petition is to be filed and who is not currently under indictment in the county. (40) The petition must (1) be addressed to the district judge of the court in which it is filed, (2) set forth the grounds alleged for the removal of the officer in plain and intelligible language, and (3) cite the time and place of the occurrence of each act alleged as a ground for removal with as much certainty as the nature of the case permits. (41)
After a petition for removal is filed, the person filing the petition must apply to the district judge in writing for an order requiring that the officer be served with citation and the petition. (42) If the judge refuses to issue the order for citation, the petition will be dismissed, and no appeal or writ of error can be taken from the judge's decision. (43) If the judge grants the order for citation, the clerk will then issue the citation with a certified copy of the petition. (44) The citation will order the officer to appear and answer the petition. (45) After the issuance of the order requiring citation of the officer, the district judge may temporarily suspend the officer and may appoint another person to perform his duties. (46)
An officer may be removed only following a trial by jury. (47) In a proceeding to remove the district attorney from office, the county attorney from an adjoining county, as selected by the commissioners court of the county in which the proceeding is pending, shall represent the State. (48)
2. Relator's Claim
Relator asserts that when the grand jury initially notified respondent of its desire to criminally investigate relator, respondent had the option to direct the grand jurors to file a petition in a manner prescribed by chapter 87, instead of immediately appointing an attorney pro tem. If a grand juror had filed the appropriate petition, respondent could have granted the order for citation, thus allowing respondent to temporarily suspend relator and appoint an attorney pro tem in his place for the purpose of assuming all of relator's official duties. Relator contends that had respondent acted in this fashion, the Willacy County District Attorney's Office would not currently be enmeshed in the ongoing power struggle between relator and Garza. Furthermore, relator argues that respondent clearly abused her discretion in appointing an attorney pro tem without first suspending or removing relator from office under chapter 87, because the law allegedly requires that relator be removed or suspended from office prior to being indicted.
3. Discussion
We begin by recognizing that nothing on the face of the January 17 order indicates that respondent is attempting to formally remove relator from office. Though the order may pave the way for relator's future removal, (49) the order itself simply appoints Garza as attorney pro tem for the purpose of investigating and prosecuting relator for alleged criminal activity. (50)
With regard to relator's claim that he must be removed from office prior to indictment, we find that chapter 87 clearly shows otherwise. Section 87.031 of the local government code states: "The conviction of a county officer by a petit jury for any felony or for a misdemeanor involving official misconduct operates as an immediate removal from office of that officer." (51) This section reveals that conviction can precede, or occur simultaneously with, (52) removal. It thus stands to reason that an indictment, which is a preliminary necessity for pursuing a conviction, can and logically, would also precede removal. Furthermore, the Texas Supreme Court has held that a county "officer may be prosecuted criminally . . . either before or after the removal proceedings." (53)
The code of criminal procedure clearly reflects the idea that a grand jury needs, and under the law, has the right to rely on, an "attorney representing the State" (54) (e.g., a district attorney) who will assist the grand jury in fulfilling its duties. (55) A grand jury that must seek the advice and assistance of a district attorney who is the subject of the jury's investigation is a recipe for disaster, because the rules place the district attorney in the best position for obstructing the investigation. (56) The code of criminal procedure "clearly envisions that both [the district attorney and grand jury] will work together to resolve particular matters at issue," (57) and this vision can only be safeguarded, in the sort of situation discussed herein, through the appointment of an attorney pro tem. We believe the law affords a grand jury the automatic right to have a district attorney it can work with appropriately, but this right ceases to become automatic if grand jurors are required to file a petition under chapter 87 for the purpose of acquiring an attorney pro tem's assistance.
If a grand juror were to file a petition, the district attorney would not automatically be placed on temporary suspension with an attorney pro tem appointed in his place. The grand juror's petition would first have to be approved by a district judge, and if the judge refuses to issue citation pursuant to the petition, the grand juror would have no remedy by appeal. (58) This would seemingly run afoul of a great deal of case law, because "Texas courts have long described the grand jury as a separate tribunal, independent of the control of judges and prosecutors." (59)
Requiring a grand juror to file a petition would also place an evidentiary burden upon a grand jury--the likes of which have never been recognized in this state. If a grand juror is required to file a petition under chapter 87, the juror would have to "set forth the grounds alleged for the removal of the officer in plain and intelligible language," as well as "cite the time and place of the occurrence of each act alleged as a ground for removal." (60) Placing this evidentiary burden on a grand jury that simply wishes to acquire competent legal assistance is utterly nonsensical, especially because no such burden is ever placed on a grand jury when it decides to initiate an inquiry. (61)
Accordingly, we find that respondent did not commit a clear abuse of discretion by failing to temporarily suspend relator under chapter 87 prior to appointing an attorney pro tem.
VI. Issue Three: Appointment of Attorney Pro Tem Without Relator's Consent
1. Relator's Grand Jury Concerns
In his petition, relator initiates discussion of this issue by asserting that respondent committed acts that violate various articles under chapter 20 of the code of criminal procedure. These acts include (1) being present in the grand jury room while the grand jury is conducting proceedings, (62) (2) addressing the grand jury about a matter before the grand jury, (63) (3) communicating with the grand jury in a manner that is not statutorily prescribed, (64) and (4) failing to preserve the secrecy of the grand jury proceedings. (65) Relator also asserts that respondent erred by allowing the grand jury to initiate a criminal investigation against him during the extended portion of its term. (66)
We believe that relator has the capacity to assert these grievances under both hats, because this alleged judicial behavior--even when taken outside the context of this case--should give both criminal defendants and district attorneys everywhere cause for concern. Nevertheless, we also believe that these grievances, even if supported by fact and law, do not relate to the single question relator has presented for our consideration: Did respondent commit a clear abuse of discretion by issuing the January 17 order? As a result, no matter what hat relator wears, his grand jury concerns are not properly before us, and any relief sought on this basis is denied.
In denying these claims, however, we note that we have not left relator without recourse. As a criminal defendant, relator may seek relief through the criminal justice system, where he could file motions to quash and set aside his indictments. As a district attorney, relator may seek to remedy his grievances by directing them to either the Texas State Commission on Judicial Conduct or the Texas Commission for Lawyer Discipline.
2. Distinction Between Attorney Pro Tem and Special Prosecutor
In returning our focus to the January 17 order, we take time to note the order's language: "IT IS THE ORDER OF THE COURT that Gustavo Garza is appointed attorney Pro Tem otherwise known as Special Prosecutor . . . ." Though the order treats the terms "attorney pro tem" and "special prosecutor" as if they were interchangeable, the terms are far from synonymous. A "district attorney pro tem" is appointed by the district court, and after taking the oath of office, assumes the duties of the elected district attorney and, in effect, replaces the latter in performing germane functions of office for purposes contemplated by the appointment. (67) On the other hand, a "special prosecutor" is permitted by the elected district attorney to participate in a particular case to the extent allowed by the prosecuting attorney, without being required to take the constitutional oath of office. (68) Though respondent's order used the terms interchangeably, it is clear that she sought to appoint an attorney pro tem under article 2.07, and the parties do not contend otherwise. (69)
3. Relator's Claim
Relator correctly asserts that a judge may only appoint an attorney pro tem when one of four circumstances exist: (1) there is no attorney for the State; (2) the district attorney is absent from the county or district; (3) the district attorney is unable to perform the duties of his office; or (4) the district attorney is disqualified to act in any case or proceeding. (70) Though the January 17 order does not tell us which circumstance the judge relied on, the factual nature of this case and the arguments of the parties direct our attention to the issue of disqualification from a case or proceeding.
Relator contends that under article 2.07, a district attorney can only be disqualified when the attorney requests to be disqualified and a court approves that request. Relator seemingly relies on subsection (b-1) of article 2.07, which states, "An attorney for the state who is not disqualified to act may request the court to permit him to recuse himself in a case for good cause and upon approval by the court is disqualified." (71) If relator's interpretation of subsection (b-1) is correct, the initial language of the subsection--"[a]n attorney for the state who is not disqualified to act"--is rendered meaningless. This language clearly envisions the possibility that a district attorney may be disqualified prior to any request for recusal. With that said, we must now determine the circumstances by which such a "possibility" is created.
4. Existing Limitations on Disqualification
In Eidson v. Edwards, the court of criminal appeals held, "[i]f there is a conflict of interests on the part of the district attorney or his assistants . . . the responsibility of recusal lies with them, not with the trial court judge." (72) Though Eidson is of questionable precedential value, (73) its "holding" was later adopted by the court of criminal appeals in a majority opinion. (74) To date, there are only two recognized exceptions to this holding. The first is derived from the court of criminal appeals' plurality opinion in Hill v. Pirtle; (75) the second comes from article 2.01 of the code of criminal procedure. (76) According to Hill, "A trial court . . . may disqualify a district attorney or his staff on the basis of a conflict of interest that . . . rises to the level of a due process violation." (77) Under the code of criminal procedure, a district attorney is disqualified from representing the State "in cases where he has been, before his election, employed adversely." (78)
The nature of the due process concerns raised in Hill are inapplicable to the instant case, as is the limitation imposed by article 2.01. Nevertheless, it would be inappropriate to limit ourselves to these exceptions as we are confronted with a case of first impression in the State of Texas. We have found no Texas case law factually similar to the case at hand, nor have we found any case law that addresses the legal question now before us: Can a judge appoint an attorney pro tem to assist a grand jury in investigating a district attorney's conduct when the district attorney has not sought recusal?
5. Eidson's Inapplicability
Though we previously quoted the Eidson "holding," it is worth taking a broader look at the its contextual language at this time. The Eidson opinion reads,
There may be instances when a prosecutor must recuse himself from the prosecution of an individual. If there is a conflict of interests on the part of the district attorney or his assistants, however, the responsibility of recusal lies with them, not with the trial court judge. We do not wish to imply that a defendant would be left without recourse if the prosecution's failure to recuse itself violated his due process rights. If, for example, a prosecutor who had previously represented a defendant later personally prosecuted the defendant in the same matter, the defendant's conviction would violate the Fourteenth Amendment of the United States Constitution and Article I, Section 19 of the Texas Constitution. (79)
This language demonstrates the inapplicability of Eidson to the case at hand. First, the Eidson plurality was focused on instances whereby a prosecutor must decide whether to recuse himself from the prosecution of an individual; it was not focused on the circumstances in which a prosecutor must decide whether to recuse himself from the prosecution of himself. Second, the Eidson plurality identified federal and state constitutional protections--safeguards that are not as readily available in this case. The plurality further argued that, "even more importantly," a district attorney's "violation of the rules will subject his cases to reversal on appeal when his unprofessional conduct results in a denial of due process to a defendant." (80)
The safeguards espoused by the Eidson plurality provide no protection at all in the instant case. The remedy of seeking a reversal on appeal is wholly inapplicable to circumstances in which a grand jury's investigation may be thwarted or obstructed by the very individual it is investigating.
For these reasons, we conclude that Eidson is inapplicable to the case at hand and, accordingly, does not control our disposition of the instant case. Absent controlling Texas case law, we now look to case law in other states for guidance.
6. Outside Treatment
In Northcutt v. Howard, (81) a Kentucky appeals court dealt with a case similar to the one before us. In Northcutt, a judge instructed a grand jury to investigate the commonwealth attorney and other elected officials and promptly appointed an attorney pro tem to assist this investigation. (82) The commonwealth attorney contested this act, requiring the judge to seek a declaration of his rights before the appeals court regarding the appointment. In the course of assessing the propriety of the judge's action, the appeals court stated:
There can be no doubt that if the commonwealth attorney was under indictment he would be disqualified from prosecuting the case against himself, and the circuit court in such case has the right to appoint a commonwealth attorney pro tem to conduct the trial of a felony charge against the commonwealth attorney. This being true, it follows as a matter of course that when the grand jury is actually investigating such a charge against the commonwealth attorney, he is thereby automatically disqualified from assisting the grand jury in such investigation. (83)
In Commonwealth v. McHale, (84) the Pennsylvania Supreme Court upheld a trial judge's appointment of a "special district attorney." In McHale, the regular district attorney had refused to sign and send indictments to a grand jury because he claimed the indictments contained factual errors. These indictments addressed an allegation of electoral fraud--fraud that, if true, would have increased the district attorney's vote in an earlier election. (85) The trial judge provided the district attorney an opportunity to sign the indictments or to present alternative indictments, but the district attorney failed to do so. The judge then appointed an attorney to assist the grand jury. On appeal to the supreme court, it was argued that the indictments should be quashed because they were not signed by the district attorney. The court rejected this argument, stating:
The appointment . . . was eminently proper, as the district attorney was a candidate at the general election at which the alleged frauds were committed, and which frauds, it is stated, increased his vote. It would therefore have been a breach of professional and official propriety for him to have acted as district attorney in these cases. But it is said the appointment was illegal because the Constitution adopted since the act of 1866 was passed, makes the district attorney a constitutional officer, and as such he cannot be stripped of his powers by the legislature. There is little force in this suggestion. While the legislature may not abolish the office, it can control the officer. They can regulate the performance of his duties, and punish him for misconduct, as in the case of other officers. And where he neglects or refuses to act, or where, from the circumstances of a given case, it is improper and indelicate for him to act, it is competent for the legislature to afford a remedy. (86)
In Lattimore v. Vernor, (87) a county attorney sought a writ of prohibition after a district judge appointed an attorney pro tem to assist a grand jury that was investigating whether the county attorney had committed any criminal acts. (88) The Oklahoma Supreme Court held:
A county attorney is disqualified to appear before a grand jury when said grand jury is investigating the conduct of said county attorney, and the district court has authority, under section 5745, C.O.S. 1921, to declare the disqualification of the county attorney, in so far as he is disqualified, and to appoint a special or substituted county attorney to conduct such inquiry, in so far as the county attorney is disqualified, subject to a superintending control by the Supreme Court. (89)
An Oklahoma state statute authorized a district court to appoint an attorney pro tem when the county attorney was "disqualified to act." (90) The supreme court noted, however, that even if the statute did not have the "disqualified to act" language, the district court could have utilized its "inherent power" to make the appointment. (91)
In addition to the Oklahoma Supreme Court, the assertion that a court has the inherent power to appoint an attorney pro tem when the county elected attorney is under grand jury investigation has been embraced by the Arkansas Supreme Court, (92) Ohio Supreme Court, (93) Colorado Supreme Court, (94) Indiana Supreme Court, (95) and a California court of appeals. (96)
7. This Court's Holding
In an opinion authored over 140 years ago, the Texas Supreme Court held:
It is a part of the duty of the district attorney to prepare judgments under the direction of the grand jury; but the powers and duties of the grand jury do not cease because there may happen to be no district attorney. In case of a vacancy in the office of district attorney, or in case of the district attorney's temporary disability to act, or in any particular case where there might exist special reasons why he should not act, any other competent person might act in the preparation of indictments, by the authorization of the court. (97)
We are currently confronted with a case in which there undoubtedly exist special reasons why relator should not act and why he is disqualified to act. Accordingly, respondent was authorized to appoint a competent person to act in relator's place, and we find that this authorization is explicitly derived from article 2.07 of the code of criminal procedure. (98)
A judge has the authority, as well as an obligation, to appoint an attorney pro tem to assist a grand jury that intends to criminally investigate the district attorney. (99) In such a situation, the district attorney is deemed "disqualified to act" for purposes of article 2.07(a) of the code of criminal procedure, and disqualification need not solely arise from the attorney's own motion to recuse under subsection (b-1). (100)
While we find that respondent's appointment of an attorney pro tem was explicitly authorized by article 2.07, we further find that such appointment was implicitly authorized by a court's inherent power. In Johnson v. State, (101) the Texas Court of Criminal Appeals held:
In addition to specific power to act conferred by constitutional provision, statute, or common law, all courts have inherent authority to take certain actions. In Eichelberger v. Eichelberger, 582 S.W.2d 395 (Tex. 1979), our sister court noted that in addition to express grants of power, a court has inherent judicial power, which it may call upon to aid in the exercise of its jurisdiction, in the administration of justice, or in the preservation of its independence and integrity. Courts may also have implied authority to act, arising from specific grants of power.
In sum, a court may take a particular action only if that action is authorized by constitutional provision, statute, or common law, or the power to take the action arises from an inherent or implied power. (102)
Through the appointment of an attorney pro tem, respondent denied relator the opportunity to participate in the grand jury's investigation into his conduct. In doing so, the appointment served to preserve the integrity of the court and aid in the administration of justice. We thus hold that respondent did not commit a clear abuse of discretion by disqualifying relator without his consent.
8. The Limitations of this Court's Holding
We must make a few essential observations concerning this Court's holding. We begin by observing that, from the record before us, it appears that the grand jurors collectively approached respondent with a desire to investigate relator. The record does not reflect that respondent disqualified relator upon receiving notice that only one or a few grand jury members wanted to investigate relator. We also observe that the grand jury apparently investigated relator on its own initiative; the record does not reflect that respondent directed or prompted the commencement of the investigation. If the record regarding these circumstances reflected otherwise, we cannot say that our opinion would remain the same.
Lastly, we held that respondent had the authority to disqualify relator because the grand jury wished to investigate relator for possible criminal conduct (e.g., "voter fraud"). When a grand jury wishes to investigate the district attorney for possible criminal wrongdoing, we have found that a judge is legally authorized to appoint an attorney pro tem to assist with the investigation because doing so is necessary to ensure that the grand jury is able to properly perform its duties. An appointment cannot be similarly justified, however, when the appointment is made to assist a grand jury in investigating a district attorney for non-criminal matters because the grand jury would be acting outside of its legally prescribed duties. It is evident under the law of Texas that a grand jury has no authority to investigate civil matters or to make any investigation into circumstances where no criminal offense is suspected or alleged. (103) Accordingly, a judge should be inclined to restrain, rather than assist, a grand jury that is investigating a matter outside the scope of its authority.
In the instant case, respondent wrongfully assisted the grand jury in commencing an investigation into several non-criminal matters by appointing an attorney pro tem to aid in investigating said matters. These matters related to whether relator requested the grand jury to (1) investigate civil matters, (2) subpoena the District Judge, (3) investigate and indict several Willacy County elected officials, (4) present indictments without being shown supporting evidence, and (5) "true bill" a case even though the grand jury was in favor of a "no bill." These concerns fail to suggest any intelligible indicia of any criminal offense that may have been committed. While we find all this to be problematic, we do not believe that the January 17 order should be deemed voidable as a result. The order did, nonetheless, evidence the jury's desire to acquire the assistance of an attorney pro tem to investigate relator for possible criminal wrongdoing--theft, attempted theft, tampering with records, perjury, abuse of office, and voter fraud-a fact that is essential to this Court's holding.
VII. Issue Four: Right to Notice and a Hearing
Relator asserts that even if respondent had the power to disqualify him and to appoint an attorney pro tem, he should have been afforded notice and a hearing prior to the appointment. While this is not explicitly required by article 2.07, relator contends the law implicitly requires that notice and a hearing be afforded when a district attorney has not elected to voluntarily disqualify himself. Relator states that "[a] finding of disqualification would require that the Court conduct a hearing, allow for the presentation of evidence of disqualification, and allow the duly elected District Attorney the opportunity to present evidence and authorities showing that disqualification was not proper." Relator does not cite any law to support his assertion, and our own efforts to find law on point has again led us to look toward case law from other states.
1. Outside Treatment
Only a handful of courts have addressed the very contention relator asserts herein. Among these courts, we find the treatment provided by the West Virginia Supreme Court to be of great guidance.
a. West Virginia
In State ex rel. Matko v. Ziegler, (104) the West Virginia Supreme Court addressed a case that is nearly factually identical to the one now before us. The facts in Matko are as follows:
On November 12, 1970, after the grand jury had returned several indictments, the foreman of the grand jury informed the special judge that some members of the grand jury desired to investigate other matters, and one grand juror, in the presence of the [elected prosecutor], stated that the matters in question related to bribery concerning [the prosecutor]. . . . [T]he court advised the jury that it could investigate the matters and in the presence of the grand jury informed [the prosecutor] that he would appoint a special prosecuting attorney to conduct the investigation as the court was of the opinion that [the prosecutor] and his assistants were disqualified from acting in the matters. The court then excused the grand jury until November 18.
. . . .
The grand jury reconvened on November 18, and on November 23, returned [an] indictment against [the prosecutor]. Before the adjournment of the grand jury, [the prosecutor] . . . filed his petition in which he prayed that the grand jury be discharged and dismissed; . . . that the special prosecuting attorney be discharged and the order appointing him rescinded; . . . [and] that, if the grand jury were not discharged, . . . that [the prosecutor] be permitted to appear before the grand jury and give such testimony as he might desire. . . . [T]he grand jurors informed the court that they were unwilling to hear any testimony by [the prosecutor], and . . . the court refused to grant [the prosecutor's] prayer . . . . (105)
The supreme court first ruled that the judge had authority to make the appointment under West Virginia Code § 7-7-8, which provided that "if in any case the prosecuting attorney and his assistant be unable to act, or if in the opinion of the court it would be improper for him or his assistant to act, the court shall appoint some competent practicing attorney to act in such case." (106) The court then went on to reject the prosecutor's claim that he should have been afforded notice and a hearing, stating:
The statute clearly contemplates summary action by the trial court, in which a proceeding is pending, and makes no provision for notice to the prosecuting attorney or for a hearing concerning his disqualification to act in the particular circumstances. Any provision for notice and hearing would result in delay and operate to defeat the purpose of the statute. Furthermore, notice and hearing are generally unnecessary for, as here, there is no dispute in the material facts and the court and the prosecuting attorney were entirely and equally familiar with the situation which disqualified the petitioner from acting as the prosecuting attorney in connection with the proceedings relating to his indictment and prosecution. (107)
The West Virginia Supreme Court revisited Matko eight years later in State ex rel. Preissler v. Dostert. (108) In Preissler, a judge removed the elected prosecutor from a case and appointed an attorney to act in his place. (109) The judge never received a formal request to remove the prosecutor; (110) rather, the judge predicated removal upon his belief that the prosecutor had made statements about the case that (1) violated the code of professional responsibility and (2) evidenced an intent not to prosecute. (111) The supreme court, recognizing that the judge had disqualified the prosecutor without any formal request to do so, held that the judge "was not empowered to enter the order on his own motion." (112) The court then proceeded to address the question of whether a judge had the power "to discharge summarily a publicly elected prosecutor from the performance of his duty." In addressing this question, the court compared Preissler and Matko, noting the factual distinctions that led to each elected prosecutor's disqualification:
We note, however, that Matko involved a proceeding in the circuit court wherein the elected prosecuting attorney had been indicted by the grand jury upon a felony charge. The disqualification of the prosecutor to act resulted from his status as a criminal defendant, obvious on the face of the indictment. There was no need for a hearing since his status inherently rendered his prosecution of the case improper. Here, however, the determination of impropriety to act is not based on the status of the prosecutor but rather on the issue of the prosecutor's refusal to prosecute. Not only does the question require presentation of facts in order to enable the judge to reach an opinion on the matter, but it also requires a charge that the prosecutor is avoiding or sidestepping the duties imposed on him by the Constitution and by his office. In such a situation the circuit court judge cannot summarily override the Constitutional mandate that the prosecuting attorney perform the duties of his office without first conducting a full and proper hearing. Consequently, we would limit the holding in Matko, on this issue, to the facts in that case, and we would hold that where recusal of a prosecuting attorney from the prosecution of the criminal case under W. Va. Code § 7-7-8 is sought on the basis of his failure to perform his official duties, the circuit court judge cannot summarily recuse the prosecutor but must afford the opportunity to have a hearing on the matter. . . . (113)
Preissler thus established that, as a general rule, an elected prosecutor is entitled to notice and a hearing prior to a judicial determination that he is disqualified to act in a case or proceeding; meanwhile, Matko's holding--bound by the unique factual situation from which it was derived--was left as an exception to this rule. Preissler went on to hold that, before a prosecutor may be disqualified from acting in a particular case, "the reasons for his disqualification must appear on the record, and where there is any factual question as to the propriety of the prosecutor acting in the matter, he must be afforded notice and an opportunity to be heard." (114)
b. Other Courts
In State ex rel. Ilvedson v. District Court, (115) the North Dakota Supreme Court confronted a case that was factually similar to Preissler. In Ilvedson, a group of individuals presented the elected prosecutor with a petition, requesting that he take action against the county commissioners to recover a debt owed to the county. (116) When the prosecutor failed to take an action that satisfied the petition's endorsers, they requested the assistance of the district judge. (117) In response, the judge disqualified the prosecutor from undertaking any further action against the commissioners, and assigned the responsibility for all future action to an appointed attorney. (118) The judge derived his appointment authority from a statute that allowed a judge to appoint an attorney when the prosecutor failed or neglected to prosecute a case that the judge believed should be prosecuted. (119) Though the statute did not explicitly afford the prosecutor a right to notice and a hearing prior to a finding of disqualification, the prosecutor argued he was entitled to as much. The supreme court agreed with the prosecutor, stating:
Assuming, without deciding, that the legislature may provide for a partial or limited removal of the state's attorney--removal in so far as the institution and prosecution of one particular action is concerned--clearly it may not authorize such removal except after notice and hearing. Hence, if the legislature intended to confer upon the district judge power to determine whether the state's attorney has refused or neglected to perform his duty, and to order that the state's attorney be deprived of all power and duty as such in connection with the institution and prosecution of a certain action, all without notice to the state's attorney, or opportunity to be heard on the question whether he has refused or neglected to perform his duty, then the statute is manifestly unconstitutional. But, it will not be presumed that the legislature had any such intention, unless it has clearly expressed such intention in the law itself. The presumption is that the legislature intended that the removal proceeding which it prescribed should be in accordance with the principle of due process of law. (120)
In Lattimore v. Vernor (121) and State ex rel. Thomas v. Henderson, (122) the Oklahoma Supreme Court and the Ohio Supreme Court, respectively, held that an elected prosecutor was entitled to notice and a hearing prior to being involuntarily disqualified and having an attorney pro tem subsequently appointed in his place. Both courts so held in response to a trial judge who had appointed an attorney to assist a grand jury in criminally investigating the prosecutor. In both cases, the judge, on his own initiative, empaneled the grand jury and directed the jury to investigate the prosecutor.
c. Contrasting Matko
Of the five cases just discussed, only Matko held that the elected prosecutor was not entitled to notice and a hearing prior to his disqualification. While Matko may appear to be inconsistent with the other cases' holdings, there are two critical facts in Matko that make its holding distinguishable, thus obviating any conflict with the other cases.
Matko, like Lattimore and Vernor, involved a prosecutor who was disqualified as a result of being the subject of a grand jury investigation. Preissler and Ilvedson each involved a prosecutor who was disqualified for allegedly failing to perform the duties of his office (i.e., refusing to prosecute a case). (123) The difference between these two grounds for disqualification, as we previously noted from Preissler, is that the question of whether a prosecutor should be disqualified for refusing to prosecute requires not only the "presentation of facts in order to enable the judge to reach an opinion on the matter, but it also requires a charge that the prosecutor is avoiding or sidestepping the duties imposed on him by the Constitution and by his office." (124) The question of whether a prosecutor should be disqualified when he is the subject of a grand jury investigation, on the other hand, does not necessitate the "presentation of facts . . . to enable the judge to reach an opinion," nor does it require a finding that the prosecutor is "sidestepping the duties imposed on him."
The reasoning behind this position--as viewed through the law of our state--is that even if the judge believed that the prosecutor had not committed wrongdoing, the judge's opinion would have no practical relevance because it does not provide a legally authorized basis for prohibiting the grand jury from investigating the prosecutor. (125) Additionally, the presentation of facts relating to whether the prosecutor actually committed wrongdoing is unnecessary because no evidentiary bar needs to be satisfied in order for a grand jury investigation to commence. (126) Lastly, as noted in Preissler, there is "no need for a hearing since [the prosecutor's status as a criminal defendant] inherently renders his prosecution of the case improper." (127)
The second key factual distinction in Matko, which is not present in any of the other cases, is that in Matko:
[I]t was members of the grand jury who approached the criminal court judge to request permission to investigate the elected prosecutor. Thus in Matko, the criminal court judge in no way initiated the proceedings, nor did he aid, abet, or encourage any activities against the prosecutor that were not forced upon him by the entreaties of third parties. (128)
In Preissler and Ilvedson, the judge was not forced by the entreaties of third parties to disqualify the prosecutor. Furthermore, in Lattimore and Thomas, the judge was responsible for initiating the grand jury investigation against the prosecutor, thus singlehandedly creating the need and the basis for the prosecutor's disqualification. This is problematic because, as articulated in Preissler, "[t]o permit a judge to invoke the jurisdiction of his court sua sponte would place him in a position of a complainant deciding the merits of his own complaint in violation of the ancient homily of the law that no man may be a judge in his own case." (129)
2. Right to Notice and a Hearing Under Article 2.07
We hold that article 2.07 implicitly affords a district attorney the right to notice and a hearing before he is deemed disqualified to act in any case or proceeding. We further hold, however, that this right ceases to exist in situations like the one now before us, where: (1) a grand jury, on its own initiative, sought to investigate the district attorney for possible criminal wrongdoing; (2) the judge, upon being confronted with the grand jury's desire to investigate the district attorney, disqualified the district attorney from participating in the grand jury's investigation; and (3) the judge subsequently appointed an attorney pro tem to assist the grand jury with its investigation. While our holdings are undeniably influenced by the out-of-state case law discussed herein, they are primarily predicated upon our observations of the law in this state.
While there are various means by which a district attorney may be lawfully restricted from performing, in whole or in part, the duties of his office, these means typically afford him with notice and a hearing. For instance, under our state constitution, a district judge cannot remove the district attorney for incompetency, official misconduct, or other causes defined by law, without the attorney being found guilty of the charges against him at the conclusion of a jury hearing. (130) Additionally, in cases where a criminal defendant files a pretrial motion to disqualify the district attorney from prosecuting a case against him, the motion may not be granted without the defendant proving at a hearing that there is a conflict of interest that rises to the level of a due process violation. (131) Even in instances in which the district attorney wishes to voluntarily recuse himself, article 2.07 demands that the district attorney seek approval from the judge by showing good cause for his recusal--a requirement that necessitates some basic level of communication and interaction between the judge and district attorney prior to disqualification. (132) In light of all this, our conclusion that article 2.07 implicitly requires notice and a hearing is consistent with Texas law. (133)
This Court's decision to not extend the right to notice and a hearing to the instant case also finds support in the law of this state. The Texas Supreme Court has recognized that an elected county official is not always entitled to notice and a hearing prior to being restricted in the performance of his duties. In Griner v. Thomas, Thomas, a district judge, signed an order temporarily suspending Griner, a county judge, from office. (134) The temporary suspension was made pending the hearing of a petition for the removal of Griner from office. On appeal, Griner complained that if Thomas had the power to temporarily suspend him, he could not have done so without first affording him notice and a hearing, which were not provided. (135) The supreme court rejected this complaint, stating:
[I]t is argued that . . . notice and a hearing should be required before a suspension is made. It is conceded that the statute does not, in terms, require notice, but it is insisted that it is essential to that due process of law without which no one may be deprived of his property, and that the requirement of it should therefore be read into the law. But such a requirement would be inconsistent with the terms of the statute, which prescribes the only notice to be given, that of the final hearing, and authorizes the suspension at any time after the order therefor has been made. To hold that notice and a hearing were necessary before suspension would render the power futile. To the contention that suspension without notice is a deprivation of property without due process, the answer is that such property right in an office as the holder has is qualified by all pre-existing valid laws which provide for its suspension or termination, and, hence, the application of remedies so provided for does not unduly deprive him of any property. (136)
The petition for removal in Griner does not appear to operate any differently than the modern-day petition that is filed in accordance with chapter 87 of the local government code. Chapter 87 states that pending a county officer's trial, a "district judge may temporarily suspend the officer and may appoint another person to perform the duties of the office." (137) While a judge may suspend an officer, he may not do so until (1) "[a]fter the issuance of the order requiring citation of the officer," (138) and (2) after "the person appointed to serve executes a bond, with at least two good sufficient sureties, in an amount fixed by the judge and conditioned as required by the judge." (139) It is conceivable that both of these requirements can be fulfilled prior to the officer acquiring notice through his receipt of the citation and petition; therefore, chapter 87 does not appear to guarantee that the officer will receive notice prior to his suspension. Lastly, chapter 87 clearly does not guarantee the right to a hearing prior to suspension, for it contains no statute prescribing such a requirement.
One final notable aspect of Griner is the supreme court's response to "the contention that suspension without notice is a deprivation of property without due process." The supreme court's answer--"that such property right in an office as the holder has is qualified by all pre-existing valid laws which provide for its suspension or termination"--reflects the idea that an individual who accepts public office takes it cum onere, (140) that is, the individual "assumes the burdens and the obligations of the office as well as its benefits, subjects himself to all constitutional and legislative provisions relating to the office, and undertakes to perform all the duties imposed on its occupant." (141)
There is nothing incredibly novel about this Court's decision that relator was not entitled to notice and a hearing prior to his disqualification. In light of Griner, we are clearly not the first court to find that a county officer can be lawfully impeded in the performance of his official duties without first receiving notice and a hearing. This finding, moreover, is a present reality with temporary suspensions under chapter 87. Lastly, we note that in holding that relator was not entitled to notice and a hearing, we have not acted in opposition to the holdings of any out-of-state cases discussed herein--a point that was fully developed earlier in this opinion by our discussion distinguishing Matko.
In the instant case, the grand jury notified respondent of its desire to investigate relator for possible criminal wrongdoing. Relator contends that, had he been afforded a hearing, he would have provided respondent with testimony and evidence to show that the grand jury's concerns were without merit. Even if we assume relator's contention is correct, it does not change the fact that respondent was nonetheless required to disqualify relator, given that: (1) relator's status as the subject of the investigation rendered his involvement in the investigation inherently improper; (2) respondent was not authorized to prohibit the investigation, even if she felt it was of questionable necessity; (142) (3) the grand jury was entitled, as expressed earlier in this opinion, to be assisted by an attorney that it could work with appropriately; and (4) respondent had an obligation to disqualify relator and appoint an attorney pro tem to secure the integrity of the grand jury system and the proper administration of justice. Only the grand jury could have terminated the commencement of its investigation, and whether or not relator is afforded the opportunity to address the grand jury is a matter that is decided by the jurors, (143) not by him. (144) Furthermore, any public benefit that could have derived from relator being afforded a hearing is negligible in this case, because any such benefit is trumped by the need to recognize the longstanding reasons for maintaining the secrecy of the grand jury's proceedings. (145)
3. Conclusion
This Court holds that a district attorney is entitled to notice and a hearing prior to his disqualification under article 2.07, but also holds that the nature of relator's disqualification presents an exception to this general rule. We have interpreted article 2.07 in a manner we believe the law requires; accordingly, we further believe that relator has no proper basis for complaining that his right to his office has been unduly impeded by either respondent or this Court. Relator, after all, accepted the office of district attorney cum onere. His hold on the office is subject to the laws of this state which allow for his termination, suspension, and disqualification; the application of such laws evolves through the statutory interpretations provided by the courts of appeals of this state. Based on the interpretation of article 2.07 we espouse today, we find that respondent did not commit a clear abuse of discretion by failing to provide relator notice and a hearing.
VIII. Issue Five: Causing District Attorney's Office to Cease all Operations
In his final issue, relator asserts that respondent's January 11 order constitutes a clear abuse of discretion because it has effectively placed the Willacy County District Attorney's Office in a state of disarray. To support this contention, relator primarily asserts that, as a result of the order, Garza was able to acquire the warrant that was ultimately utilized to seize computers and files within the district attorney's office, items which are essential to the office's continued operation. Relator requests that this Court quash the search warrant that was issued by Judge Leal, and order the return of the items seized. (146) Relator, however, has not equipped this Court with the pleadings, evidentiary record, and briefing needed to entertain such a request. We thus deny the relief requested.
With regard to respondent, we do not believe the legality of her order should be predicated upon the impact the order may directly or indirectly have on the district attorney's office. The Texas Supreme Court's opinion in Poe v. State (147) largely reflects the basis for our belief. In Poe, a county sheriff was suspended by a district judge, pending a hearing on a petition for the sheriff's removal from office. (148) The sheriff was found guilty at the hearing and subsequently removed from office. (149) The sheriff then contested his removal on appeal. In addressing the judge's authority to suspend, the court commented:
The suspension of an officer may be inconvenient and may even prove to be a great wrong to him. While the suspension is by the terms of the law only a temporary deprivation of the office, it in every case may be what it in effect was in this, a permanent deprivation of the office. . . .
. . . The public interests as well as those of the office holder are to be regarded. The law does not compel the district judges to suspend the officer, but entrusts them with the discretion to do it, as it in the like manner trusts their discretion in many other matters equally important. The safety of the public and every citizen is found in the judicious exercise of that discretion. (150)
In our case, the law, through article 2.07, afforded respondent the discretion to disqualify relator. While respondent's decision to disqualify has arguably inconvenienced the district attorney's office, we presume that her decision was made with the public and relator's best interests in mind. The law entrusts respondent with the safety of the public and every citizen, and despite the concerns expressed by relator, we cannot say that respondent has faltered in upholding this responsibility. Accordingly, we overrule this issue on appeal.
IX. Issue Six: Failure to Appoint a Competent and Qualified Attorney
Relator contends the trial court abused its discretion in appointing an individual who was not "competent" because he was not independent, unbiased, without conflicts of interest, was a witness on at least one of the concerns raised by the grand jury, and because his appointment would violate the incompatibility doctrine. Relator asserts that the standards for disqualification apply to attorneys pro tem, and further asserts that Garza was "disqualified" from acting as an attorney pro tem because, inter alia:
1) Judge Gustavo Garza is Relator's long time political opponent who has run against Relator on four separate occasions for the post of Willacy County District Attorney, and as late as the last election for district attorney in 2004;
2) There is a tremendous amount of animosity between Relator and Judge Gustavo Garza such that it has resulted in a physical altercation between the two on at least one occasion . . .
3) Judge Gustavo Garza is the court appointed contract attorney who has been hired to represent most of the indigent defendants who have criminal cases pending in said court . . .
4) Judge Gustavo Garza is a sitting Justice of the Peace and, therefore, is disqualified from serving as an attorney pro tem (acting district attorney) due to the constitutional prohibition that no person may serve in both the judicial and executive offices at the same time, under the doctrine of incompatibility of public offices . . .
5) Judge Gustavo Garza is a witness to one of the 'concerns' raised by the Grand Jury of the 197th District Court . . .[that is,] 'voter fraud committed by the District Attorney, Juan Angel Guerra during the election of March 2004,' in that Judge Gustavo Garza was a candidate for district attorney opposing Relator during that same election.
Relator's arguments focus on (1) Garza's "competence" under article 2.07 of the code of criminal procedure, and (2) the general standards for disqualification of an attorney. We apply, in general, an abuse of discretion standard to the trial court's appointment of an attorney pro tem. (151)
1. "Competent Attorney"
Article 2.07(a) states that a "judge . . . may appoint any competent attorney to perform the duties of the office during the absence or disqualification of the attorney for the state." (152) When the appointment of an attorney pro tem is necessary under article 2.07, the decision of whom to appoint lies within the discretion of the trial court." (153) The only limitation imposed by the statute is that the court appoint a "competent attorney" to serve. (154) The statute, however, does not define that term.
The Waco Court of Appeals is the only court that has attempted to bring meaning to the term "competent" within article 2.07(a). (155) In Shea v. State, the Waco court addressed Shea's claim that the trial court had failed to appoint a "competent attorney" because the attorney pro tem was serving a federal probation for misprision of a felony. (156) The court used Webster's Dictionary to define the term "competent" as meaning "legally qualified or adequate." (157) The court then overruled appellant's claim, finding that Shea had presented no evidence that the attorney pro tem's license had been suspended or that he was not otherwise a "member in good standing" with the State Bar. (158)
While we take no issue with the treatment given to the term "competent" in Shea, we do question whether the term actually holds any significant consequence. If, for example, we were to assume that the term "competent" was not in article 2.07, it is conceivable that Shea's claim could still be asserted through the term "attorney." For instance, a state could hardly claim to satisfy an accused's sixth amendment right "to have the assistance of counsel for his defense" (159) if the state provided the accused with an attorney that could not legally practice in the court in which the accused was to be tried. The state could not justify this action on the basis that the sixth amendment does not explicitly afford the right to "competent counsel." With that said, the meaning of the term "attorney" in article 2.07 should not be construed any less significantly.
This Court does not believe the term "competent attorney" in article 2.07 holds any more meaningful significance than it does in section 6.30(c) of the Texas Tax Code (160) or rule 8 of the Texas Rules Governing Bar Admission. (161) The placement of the term "competent" in article 2.07, at most, serves to advise the court that it should appoint an attorney that has some knowledge of the law with which he will be dealing. Relator's factual allegations under this issue do not attack Garza's legal qualifications as an attorney or his adequacy as an attorney in general, and accordingly, we conclude that Garza is "competent" to serve as an attorney pro tem under article 2.07.
2. Disqualification
Relator's remaining arguments under this issue urge that Garza is disqualified to serve as attorney pro tem. It is clear that attorneys pro tem are subject to disqualification in the same manner as district attorneys. (162) A prosecutor is appointed solely to pursue the public interest, and a private attorney appointed to prosecute should be as disinterested as a public prosecutor. (163) We will address relator's arguments seriatim.
a. Practicing Criminal Defense Counsel
Relator asserts that Garza should not be attorney pro tem because he is currently acting as criminal defense counsel in Willacy County. This matter was somewhat addressed in an opinion from the Texas Attorney General's Office. (164) The opinion addressed whether article 2.08 of the code of criminal procedure disqualified a county attorney pro tem from acting as criminal defense counsel in an adjoining county. Article 2.08 prohibits district and county attorneys from appearing "of counsel adversely to the State in any case, in any court." (165) The stricture prevents the district and county attorney from representing a party adverse to the State in any court in the State; representing a criminal defendant constitutes being "of counsel adversely to the State." (166)
Confronted with the question of whether article 2.08 also applies to an attorney appointed as a county or district attorney pro tem, the attorney general's office stated:
By its plain terms, article 2.08 disqualifies district and county attorneys, i.e., constitutional district and county attorneys, from acting as counsel adversely to the state in any court. Attorneys appointed pro tem to perform the duties of a county or district attorney are not included. Although the Legislature could have written article 2.08 to also apply to an attorney appointed pro tem, it did not do so. We may "add words into a statutory provision only when necessary to give effect to clear legislative intent." Moreover, we may consider the consequences of a particular construction and will presume a feasible result was intended. If an attorney who accepts even one pro tem appointment for a single case cannot engage in criminal defense in any court in the state, then article 2.08 would effectively exclude the most qualified private attorneys--those with an ongoing defense practice--from accepting any pro tem appointments. Consequently, we conclude that article 2.08 applies to county attorneys under the constitution, but not to attorneys appointed to perform the duties of the office pro tem. (167)
This reasoning admittedly addresses a different circumstance from the one before us. The opinion dealt with an individual who did not act as an attorney pro tem and a criminal defense counsel in the same county. This is a distinction from the case before us--a distinction that is made more significant by the fact that our attorney pro tem is investigating a district attorney, and as a result, can potentially take control of sensitive information that pertains to cases he is working on as a criminal defense counsel. Despite the distinction, however, we believe the attorney general's reasoning can be adequately applied to the instant case.
Article 2.07 states that a judge can appoint "any competent attorney." (168) The statute contains no wording from which one can derive the interpretation that a judge cannot appoint a criminal defense counsel who is practicing in the same county. Although the Legislature could have written appointment restrictions into article 2.07(a), it did not do so. Furthermore, while this Court may question, in light of the concerns expressed in the preceding paragraph, whether it was a good idea to appoint Garza for the purpose of investigating relator, we cannot say that respondent committed a clear abuse of discretion. (169)
b. Justice of the Peace
Relator contends that Garza is legally incompetent to act as attorney pro tem because he is a justice of the peace, and he may not hold two offices that are incompatible. Under the common law, one person cannot simultaneously hold two incompatible offices, and the general rule is that the acceptance and qualification for a second office incompatible with the first office is an implied resignation of the first office. (170) In determining incompatibility, the crucial question is whether the occupancy of both offices by the same person is detrimental to the public interest or whether the performance of the duties of one interferes with the performance of those of the other. (171)
Assuming that an attorney pro tem assumes an "office," we fail to see how Garza's appointment as attorney pro tem conflicts with his position as justice of the peace. We first note that Garza is an attorney pro tem serving Willacy County, while he is a justice of the peace in Cameron County. Second, relator has not demonstrated how Garza's fulfillment of these two positions will be detrimental to the public interest or how the performance of his duties as justice of the peace will interfere in any way with his duties as attorney pro tem. Accordingly, this Court fails to see any error on the part of respondent on this basis.
c. Animosity, Bias, and Conflicting Interests
Relator also argues that Garza was disqualified as an attorney pro tem because Garza was "not independent, unbiased, without conflicts of interest," and he was a witness to one of the concerns raised by the grand jury. According to relator, Garza has been relator's "long time political opponent who has run against relator on four separate occasions for the post of Willacy County District Attorney, and as late as the last election for district attorney in 2004." (172) Relator further asserts that "there is a tremendous amount of animosity between relator and Judge Gustavo Garza such that it has resulted in a physical altercation between the two on at least one occasion." Relator also points out that Garza was a candidate for district attorney in the same election in which, as attorney pro tem, he was investigating relator for "voter fraud." Relator argues that Garza's service as attorney pro tem raises questions about the integrity of the criminal process and creates an appearance of impropriety. (173)
The absence of an impartial and disinterested prosecutor has been held to violate a criminal defendant's due process right to a fundamentally fair trial. (174) Put another way, the due process rights of a criminal defendant are violated when a prosecuting attorney who has a conflict of interest relevant to the defendant's case prosecutes the defendant. It is clear; however, that the trial court may not disqualify a district attorney or his staff on the basis of a conflict of interest that does not rise to the level of a due-process violation. (175)
The question whether there is a conflict of interest is dependent upon the circumstances of the individual case. Because there is no bright-line rule for determining whether a conflict rises to the level of a due-process violation, each case must be analyzed on the facts peculiar to it. As the United States Supreme Court has explained:
Due process "is not a technical conception with a fixed content unrelated to time, place and circumstances." Rather, the phrase expresses the requirement of "fundamental fairness," a requirement whose meaning can be as opaque as its importance is lofty. Applying the Due Process Clause is therefore an uncertain enterprise [that] must discover what "fundamental fairness" consists of in a particular situation by first considering any relevant precedents and then by assessing the several interests that are at stake. (176)
The burden is on the party seeking disqualification of the prosecutor to present evidence establishing the existence of disqualifying bias or prejudice. (177) Mere allegations of wrongdoing will not suffice. (178)
The issue of what constitutes an "impartial" prosecutor requires explanation. A prosecutor is not "partial" simply because he zealously seeks a conviction. Rather, "partiality" in this context is similar to a conflict of interest in the sense that the prosecutor has a personal interest or stake in the outcome of the criminal prosecution. Thus, "partiality" refers not to personal zeal but to a situation where the personal interests of the prosecutor generate a structural conflict of interest. (179) That is to say, a prosecutor's personal interest or partiality may present "an actual conflict of interest if its potential for misconduct is deemed intolerable." (180)
In this regard, we would note that courts have observed that "the zeal of the prosecutor who covets higher office or who has a personal political axe to grind may well exceed the zeal of" a prosecutor who has more limited ambitions. (181) Nevertheless, a prosecutor's political ambitions alone are not enough to support a finding that a prosecutor is not sufficiently disinterested. (182) Furthermore, Texas case law clearly shows that a mere potential or perceived conflict of interest is not sufficient to warrant disqualification. (183) We do not lightly disrupt the orderly prosecution of those who have committed crimes against the State and her citizens.
A prosecutor's "primary duty" is "not to convict, but to see that justice is done." (184) In this regard, any interest that is inconsistent with the prosecutor's duty to see that justice is done is a conflict that could potentially violate a defendant's right to fundamental fairness. For example, if a prosecutor has a financial stake in the outcome of a prosecution, the conflict between that interest and the duties of the public office clearly presents constitutional concerns. (185) Additionally, a prosecutor's potential access to or use of confidential information obtained through prior representation of the defendant could undermine the fairness of the prosecution. (186) Moreover, a conflict arising from a prosecutor's non-economic, personal interest in the case can violate a defendant's right to due process. (187) For example, certain violations of the election code can give rise to causes of action for monetary damages to the opposing candidate in a race. (188)
In this context, relator's complaints that it was improper to appoint Garza to investigate voter fraud in an election which he lost are of significant concern. Garza knew, when he drafted the order appointing himself as attorney pro tem, that one of the allegations against relator involved election fraud, specifically "voter fraud committed by the District Attorney, Juan Angel Guerra during the election of March 2004." Garza was relator's opponent in that election. Accordingly, there is a potential conflict between Garza's direct personal interest in the results of the criminal investigation of these charges and Garza's duty to see that justice is done. A prosecutor should not be subject to influences that undermine confidence that the prosecution can be conducted in a disinterested fashion. We cannot have confidence in a proceeding in which an interested prosecutor plays the critical role of preparing and presenting the case for the defendant's guilt. We believe, under these circumstances, relator has been or will be prejudiced by this conflict, and such conflict rises to the level of a due process violation.
d. Prosecutor Serving as a Witness
Relator contends that Garza's status as a candidate in the election in which relator is accused of voter fraud "makes [relator] a witness." In determining whether counsel should be disqualified because counsel is a potential witness, Texas courts use rule 3.08 of the Texas disciplinary rules of professional conduct as a guideline. (189) The rule does not present the disqualification standard, but does provide considerations relevant to the determination. (190)
Counsel may be disqualified under the disciplinary rules when the opposing party can demonstrate actual prejudice resulting from opposing counsel's service in the dual role of advocate-witness. (191) Allegations of one or more violations of the disciplinary rules or evidence showing only a possible future violation are not sufficient. (192) Moreover, the party seeking disqualification cannot invite the necessary actual prejudice by unnecessarily calling the opposing counsel as a witness. (193)
Although mere allegations of a possible future violation of a disciplinary rule are not sufficient for the purposes of disqualification; the issue of disqualification can be determined early in the trial process despite the fact that "some speculation is involved." (194) Considering the issue of disqualification early in the trial process can avoid actual prejudice resulting from the opponent's service in dual roles and prevent a situation in which the opponent would experience substantial hardship if counsel were disqualified. (195) In such instances, however, the speculation cannot be unsupported or dubious. (196)
We agree that Garza could be a material fact witness, if not the actual complainant, regarding the allegations under investigation. In the instant case, we perceive a very real probability that Garza would be called upon to testify regarding the alleged election fraud. Garza could be a material fact witness, and would be in fact the injured party if the allegations of election fraud were substantiated. If Garza were to testify, the confusion that would most likely result from Garza's multiple roles as prosecutor, witness, and interested party would substantially affect the jury's verdict. (197)
e. Conclusion
For the above reasons described in subsections "IX.c" and "IX.d" herein, under the facts of this case, we hold that respondent abused her discretion in appointing Garza as attorney pro tem. (198)
Accordingly, we will conditionally issue mandamus relief with respect to relator's fourth issue.
X. Contempt and Sanctions
1. Motion for Contempt
Contempt of court is broadly defined as disobedience to or disrespect of a court by acting in opposition to its authority. (199) Within this definition, there are two types of contempt: direct contempt and constructive contempt. (200) Direct contempt is that type of disobedience or disrespect which occurs within the presence of the court, while constructive contempt occurs outside the court's presence. The contempt alleged in this case, violation of a written court order, outside the presence of the court, is constructive contempt. A finding of contempt for disobedience to a court order requires proof beyond a reasonable doubt of: (1) a reasonably specific order; (2) a violation of the order; and (3) the willful intent to violate the order. (201)
Relator filed an unverified motion for contempt with this Court, (202) alleging that respondent and Garza had violated this Court's March 15 stay order--which stayed the January 17 order appointing Garza as attorney pro tem--by meeting with the grand jury on March 21 for the purpose of handing down indictments against relator. This Court was mindful of the seriousness of charging a sitting judge with contempt. A judge's "refusal to obey the direct order of a superior court threatens the very integrity and continued validity of the State judicial system." (203) Accordingly, we scheduled a show cause hearing to ascertain the validity of relator's allegation. (204)
Prior to the show cause hearing, respondent and Garza filed motions to dismiss relator's motion for contempt. Respondent's motion asserts that she "did not direct the Grand Jury of Willacy County to meet on March 21, 2007 and issue true bills against Relator." Garza, in his motion, similarly asserts that he "did not directly or indirectly recommend, request or direct the [grand jury] to meet on March 21, 2007 and/or to issue indictments against [relator]." Their assertions were later supported at the show cause hearing through their own testimony, as well as the testimony of the grand jury foreperson. (205) No contradictory testimony or evidence was presented. Therefore, because the evidence before us does not show beyond a reasonable doubt that respondent and Garza violated the stay order by meeting with the grand jury on March 21, 2007, we do not find respondent or Garza in contempt of this Court. (206)
2. Motions for Sanctions
Respondent and Garza have each requested that this Court sanction relator for the filing of his motion for contempt. Rule 52.11 of the Texas Rules of Appellate Procedure states:
On motion of any party or on its own initiative, the court may--after notice and a reasonable opportunity to respond--impose just sanctions on a party or attorney who is not acting in good faith as indicated by any of the following:
(a) filing a petition that is clearly groundless;
(b) bringing the petition solely for delay of an underlying proceeding;
(c) grossly misstating or omitting an obviously important and material fact in the petition or response; or
(d) filing an appendix or record that is clearly misleading because of the omission of obviously important and material evidence or documents. (207)
In the instant case, respondent and Garza seemingly assert that relator should be sanctioned for "grossly misstating" that they were with the grand jury on March 21--"an obviously important and material fact."
Though the evidence at the show cause hearing failed to support relator's allegation, it also failed to show that relator had not acted in good faith. A lack of good faith would be more evident if the evidence indicated that relator knew that his allegation was false and failed to take appropriate measures to apprise the Court of that fact. However, relator's counsel asserted at the hearing that he and relator did not learn that the allegation was called into question until respondent and Garza filed responses to the motion for contempt a day before the show cause hearing was scheduled to commence. Therefore, after carefully considering respondent and Garza's motions for sanctions, we find that both motions should be denied.
3. Costs
The Court incurred extraordinary costs of $2,210.90 and $1,016.20 in developing the evidentiary record necessary to resolve the foregoing motion for contempt and motions for sanctions. Given our disposition of the motion for contempt and motions for sanctions, the Court hereby assesses these costs against relator and Garza equally. We order these parties to pay such costs directly to this Court within thirty days of the date of this opinion. The Clerk of the Court is directed to forward the bills underlying these costs to the parties upon request.
XI. Conclusion
Issues one through five are overruled. We conditionally grant mandamus relief to vacate the improper past appointment of Garza as attorney pro tem due to Garza's conflict of interest in serving as attorney pro tem and the probability that Garza would have been a witness against relator had he been prosecuted for "voter fraud." The writ will issue only if the trial court fails to act in accordance with this opinion. Any pending motions filed in this cause and not specifically addressed herein are dismissed as moot.
In so ruling, we do not address any related issues regarding the future development of this case, or what actions will be appropriate in light of Garza's removal as attorney pro tem. Such matters shall be presented to Judge Bañales for his consideration and ruling as an initial prerequisite for our further review, if any is indeed necessary.
LINDA REYNA YAÑEZ,
Justice
Dissenting opinion by
Justice Gina M. Benavides
Opinion delivered and filed this the
21st day of September, 2007.
1. The July Term grand jury was a "holdover" grand jury. See Tex. Code Crim. Proc. Ann. art. 19.07 (Vernon 2005).
2. The warrant permitted the search and seizure of "all the computers, hard drives, flash drives, floppy discs, and any other computer device that will store information electronically." It further allowed for the seizure of "all financial records, all receipt books and any and all record books of seized property and records of expenditures of forfeited funds, including files, tapes, videos, recordings kept and contained within the Willacy County District Attorney's Office."
3. See Tex. Penal Code Ann.
§ 31.03 (Vernon Supp. 2006).
4. Despite the petition's title, relator's petition does not argue or pray for a writ of injunction. Instead, relator prays for the same general relief that he later sets out in his amended petition, which is outlined below and construed by this Court as a writ of mandamus. See In re Estate of Head, 165 S.W.3d 897, 902 (Tex. App.-Texarkana 2005, no pet.) (holding that courts "are to construe a party's pleadings liberally rather than limit the function of those pleadings according to the mere titles they are given").
5. See Tex. R. App. P. 52.10.
6. Relator was indicted for the following offenses: first degree felony theft, attempted theft, tampering with governmental records, perjury, and abuse of official capacity. See Tex. Penal Code Ann.
§§ 15.01(a), 31.03(e)(7), 31.03(e)(4), 37.02, 37.10, 39.02 (Vernon 2003 & Supp. 2006).
7. We notified respondent and Garza that they had the right to representation by counsel at this hearing if they so desired. We ordered the relator, respondent, and Garza to file any affidavits necessary to support any facts upon which they planned to rely at the hearing to prove, deny, or excuse the alleged contempt. We further ordered that any other party to this proceeding should also file any affidavits necessary to show any relevant facts by this same date. The proceedings were recorded by a certified court reporter.
8.
If any of the issues raised in this original proceeding have been presented to Judge Bañales for him to act upon as a threshold matter, the appellate record is entirely silent in that regard. The record does show, however, that Judge Bañales declined to void the January 17 order upon recusing respondent. We believe that his refusal to do so was appropriate. See Rio Grande Valley Gas Co. v. City of Pharr, 962 S.W.2d 631, 637-38 (Tex. App.-Corpus Christi 1997, pet. dism'd w.o.j.).
9. For purposes of organization, relator's issues have been reordered and will be referred to numerically as herein sequenced.
10. Camarena v. Texas Employment Comm'n, 754 S.W.2d 149, 151 (Tex. 1988).
11. See id.
12. Freeman v. Burrows, 141 Tex. 318, 171 S.W.2d 863, 863 (1943).
13. Tex. R. Civ. P. 7.2(b).
14. Id.
15. See id. 7.2(a).
16. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding).
17. Urbish v. 127th Judicial Dist. Court, 708 S.W.2d 429, 431 (Tex. 1986) (orig. proceeding).
18. Walker, 827 S.W.2d at 839.
19. Id.
20. Id.
21. Id.
22. Id.
23. Id.
24. Id.
25. Huie v. DeShazo, 922 S.W.2d 920, 928 (Tex. 1996) (orig. proceeding).
26. Id.
27. See Walker, 827 S.W.2d at 840.
28. Id.
29. Id.
30. Id.
31. See CSR Ltd. v. Link, 925 S.W.2d 591, 596 (Tex. 1996); Walker, 827 S.W.2d at 842.
32. State ex rel. Eidson v. Edwards, 793 S.W.2d 1, 4 (Tex. Crim. App. 1990).
33. See Tex. Code Crim. Proc. Ann.
art. 2.01 (Vernon 2005) ("Each district attorney shall represent the State in all criminal cases in the district courts in his district . . . ."); id. 20.03 ("The attorney representing the State, is entitled to go before the grand jury and inform them of offenses liable to indictment . . . ."); id. 20.04 ("The attorney representing the State may examine the witnesses before the grand jury and shall advise as to the proper mode of interrogating them."); id. 20.20 ("The attorney representing the State shall prepare all indictments . . . .").
34. See Terrell v. Greene, 88 Tex. 539, 31 S.W. 631, 635 (1895) ("In the case of public officers the general rule is, that where a person holds an uncontested title to an office, mandamus may be issued to put him in possession; or where he has an undisputed right to exercise the functions of an office, and having actual and undisputed possession, he is illegally ousted or suspended from the performance of its duties, he may be restored to his rights as such officer by a writ of mandamus."); see also State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 926 (Tex. Crim. App. 1994) (mandamus remedy was available to district attorney to vacate district judge's order prohibiting two assistant attorneys general from serving as assistant district attorneys; no other legal mechanism short of mandamus would have allowed district attorney to challenge trial court's order and district attorney had clear legal right to have district judge vacate the order); State ex rel. Eidson, 793 S.W.2d 1, 5 (Tex. Crim. App. 1990) (mandamus relief was available to challenge order removing district attorney from case). The intermediate appellate courts have likewise exercised mandamus jurisdiction over such situations. See In re State ex rel. Rodriguez, 166 S.W.3d 894, 897 (Tex. App.-El Paso 2005, orig. proceeding) ("[I]t has long been the law in Texas that mandamus relief is available to restore the rights of office to an official who has been illegally ousted or suspended from the performance of his duties . . . mandamus relief has been available to prosecutors who have been prohibited from representing the State in criminal cases."); see also In re Reed, 137 S.W.3d 676, 677 (Tex. App.-San Antonio 2004, orig. proceeding) (conditionally granting mandamus relief where district attorney sought to vacate an order recusing the district attorney's office from prosecuting a case); see also State ex rel. Hilbig v. McDonald, 877 S.W.2d 469, 469-70 (Tex. App.-San Antonio 1994, orig. proceeding) (conditionally granting mandamus relief where district attorney sought to vacate an order recusing the entire district attorney's office). Cf. In re Goodman, 210 S.W.3d 805, 807 (Tex. App.-Texarkana 2006, orig. proceeding) (conditionally granting mandamus relief requiring disqualification of a county attorney).
35. Tex. Const. art. XV, § 7.
36. Meyer v. Tunks, 360 S.W.2d 518, 520 (Tex. 1962).
37. See id.
38. Tex. Loc. Gov't Code Ann. §§ 87.012-.013 (Vernon 1999).
39. Id. at § 87.015(a).
40. Id. at § 87.015(b).
41. Id. at § 87.015(c).
42. Id. at § 87.016(a).
43. Id. at § 87.016(c).
44. Id.
45. Id. at § 87.016(d).
46. Id. at § 87.017(a).
47. Id. at § 87.018(a).
48. Id. at § 87.018(f).
49. E.g., relator may be removed from office as a result of being convicted of a charge emanating from the indictments drafted by Garza. See Tex. Loc. Gov't Code Ann. § 87.031 (Vernon 1999).
50. One could arguably assert that, under a strained interpretation of the court of criminal appeals' opinion in Eidson v. Edwards, 793 S.W.2d 1 (Tex. Crim. App. 1990), the order's removal of respondent from a criminal investigation, albeit one directed at himself, is analogous to a removal from office. Id. at 4-5. We note, however, that Eidson was a plurality opinion. While four justices endorsed the proposition that removal of a district attorney from a particular case is tantamount to removing the district attorney from his elected office, five justices explicitly rejected this proposition in their concurring and dissenting opinions. Accordingly, the aforementioned proposition is of limited or no precedential value, although we may look to plurality opinions for their persuasive value. Compare Cooper v. State, 67 S.W.3d 221, 224 (Tex. Crim. App. 2002) (holding a plurality opinion has limited or no precedential value); Vernon v. State, 841 S.W.2d 407, 410 (Tex. Crim. App. 1992) (noting that a plurality opinion does not have "significant precedential value"); with State v. Hardy, 963 S.W.2d 516, 519 (Tex. Crim. App. 1997) ("we may look to 'plurality' opinions for their persuasive value").
51. Tex. Loc. Gov't Code Ann. § 87.031(a) (Vernon 1999).
52. Id. at § 87.031(b) ("The court rendering judgment in such a case shall include an order removing the officer in the judgment.").
53. Meyer, 360 S.W.2d at 520 (emphasis added).
54. "'The attorney representing the State' means the Attorney General, district attorney, criminal district attorney, or county attorney." Tex. Code Crim. Proc. Ann.
art. 20.03 (Vernon 2005).
55. The Legislature has enacted several provisions in the code of criminal procedure dealing with the office of district attorney and its interactions with the grand jury process. Under some of these provisions, a district attorney (1) "is entitled to go before the grand jury and inform them of offenses liable to indictment at any time except when they are discussing the propriety of finding an indictment or voting upon the same," (2) "may examine the witnesses before the grand jury and . . . advise as to the proper mode of interrogating them," and (3) "shall prepare all indictments which have been found, with as little delay as possible, and deliver them to the foreman." Tex. Code Crim. Proc. Ann.
arts. 20.03, 20.04, 20.20 (Vernon 2005). Additional provisions permit the district attorney to participate further at the grand jury's discretion. Under these provisions, (1) a "grand jury may send for the attorney representing the state and ask his advice upon any matter of law or upon any question arising respecting the proper discharge of their duties," (2) the district attorney may issue a summons or attachment for any witness in the county; and (3) the district attorney may cause a subpoena or attachment to be issued on a witness who may provide material testimony. Id. at arts. 20.05, 20.10, 20.11.
56. See infra note 62. The Colorado Supreme Court, in addressing the notion of a district attorney assisting a grand jury that is charged with the duty of investigating his office, has stated:
The district attorney is the legal adviser of the grand jury; it is his duty to appear before and advise them from the evidence what charges to make; what testimony is material, relevant and sufficient, and what is not; and if, prior to his presentment, no one can be substituted in his place and stead to manage an investigation in which, from the charge of the court, he is directly or indirectly implicated, it would be within his power to thwart the administration of justice by preventing the preliminary steps being taken necessary to the finding of an indictment.
People ex. rel. Lindsley v. Dist. Court, 66 P. 896, 898 (Colo. 1901). In light of the statutory provisions outlined in the previous footnote, we believe the concerns raised by the Colorado Supreme Court in Lindsley are of equal import in this state.
57. State ex rel. Holmes v. Salinas, 784 S.W.2d 421, 426 (Tex. Crim. App. 1990).
58. Tex. Loc. Gov't Code Ann. § 87.016 (Vernon 1999).
59. Whittington v. State, 680 S.W.2d 505, 512 (Tex. App.-Tyler 1984, pet. ref'd).
60. Tex. Loc. Gov't Code Ann. § 87.015 (Vernon 1999).
61. Article 20.09 of the code of criminal procedure states that a "grand jury shall inquire into all offenses liable to indictment of which any member may have knowledge, or of which they shall be informed by the attorney representing the State, or any other credible person." Tex. Code Crim. Proc. Ann.
art. 20.09 (Vernon 2005) (emphasis added). Nothing in this article suggests that a grand jury is precluded from inquiring into a district attorney's criminal conduct, nor does it suggest that an evidentiary bar must be satisfied in order for an inquiry to commence.
62. See Tex. Code Crim. Proc. Ann.
art. 20.011 (Vernon 2005).
63. Id. at
§ 20.04.
64. Id. at
§ 20.06.
65. Id. at
§ 20.02.
66. See generally id. at
§ 19.07 (stating that a district judge may extend a grand jury's term for up to ninety days to allow the grand jury to complete an ongoing investigation that was initiated during its original term); Flournoy, et al. v. State, 187 S.W.3d 621, 624 (Tex. App.-Houston [14th Dist.] 2006, no pet.).
67. State v. Rosenbaum, 852 S.W.2d 525, 529 (Tex. Crim. App. 1993) (Clinton, J., concurring).
68. Id.
69. This Court's ability to decipher an order's intent should not minimize the importance of a trial court carefully wording the order appointing an attorney pro tem and the constitutional oath, so as to distinguish between an "attorney pro tem" and a "special prosecutor." See Stephens v. State, 978 S.W.2d 728, 731 (Tex. App.-Austin 1998, pet. ref'd).
70. See Tex. Code Crim. Proc. Ann.
art. 2.07(a) (Vernon 2005).
71. Id. at art. 2.07(b-1).
72. Eidson, 793 S.W.2d at 6. This holding has been followed by numerous courts of appeals. See, e.g., Gonzalez v. State, 115 S.W.3d 278, 286 (Tex. App.-Corpus Christi 2003, pet. ref'd); Fluellen v. State, 104 S.W.3d 152, 161 (Tex. App.-Texarkana 2003, no pet.).
73. See In re Goodman, 210 S.W.3d 805, 815 (Tex. App.-Texarkana 2006, orig. proceeding); State ex rel. Hilbig v. McDonald, 877 S.W.2d 469, 470 (Tex. App.-San Antonio 1994, no pet.).
74. See Johnson v. State, 169 S.W.3d 223, 229 (Tex. Crim. App. 2005) ("A prosecutor's refusal to recuse himself from a case cannot be corrected because the trial court has no authority to force a recusal.").
75. Hill, 887 S.W.2d at 927.
76. Tex. Code Crim. Proc. Ann.
art. 2.01 (Vernon 2005).
77. Hill, 887 S.W.2d at 927.
78. Tex. Code Crim. Proc. Ann.
art. 2.01 (Vernon 2005).
79. Eidson, 793 S.W.2d at 6 (citations omitted).
80. Id.
81. See generally Northcutt v. Howard, 130 S.W.2d 70 (Ky. 1939).
82. Id. at 71.
83. Id. at 71-72 (emphasis added).
84. See generally Commonwealth v. McHale, 97 Pa. 397 (1881).
85. Id. at 406.
86. Id. (emphasis added).
87. Lattimore v. Vernor, 288 P. 463 (Okla. 1930).
88. Id. at 463.
89. Id. at 464.
90. Id. Section 5745 of the Oklahoma statutes provided that: "The district court, whenever there shall be no county attorney for the county, or when the county attorney shall be absent from the court, or unable to attend to his duties, or disqualified to act, may appoint, by an order to be entered in the minutes of the court, some suitable person to perform for the time being the duties required by law to be performed by the county attorney, and the person so appointed shall thereupon be vested with all the powers of such county attorney for that purpose." See Okla. Comp. Stat. § 5745 (1921), as discussed in Lattimore.
91. Id.
92. Weems v. Anderson, 516 S.W.2d 895, 898 (Ark. 1974). In Weems, the supreme court stated:
Since prosecuting attorneys and other State officials may be indicted and tried for alleged criminal activities whether there is an impeachment or not, there must be some way within the framework of our State's legal system for the prosecuting attorney to be indicted and tried even when the alleged crime occurs within the same judicial district in which he is elected the prosecuting attorney. . . .
. . . .
The absence of specific statutory authority for the appointment of a special prosecuting attorney under the circumstances of this case does not mean that the court is without authority to do what justice, reason and common sense dictate must be done. In other jurisdictions where there was the same lack of statutory authority for the appointment of a special prosecuting attorney under circumstances such as those here presented, the courts have held that there is an inherent power in the courts to make such an appointment. We hold that the Arkansas Circuit Courts also have such inherent power.
Id.
93. State ex rel. Thomas v. Henderson, 175 N.E. 865, 866-67 (Ohio 1931) (recognizing the inherent power of a court--despite "[t]here being no definite specific statutory provision for a finding of the temporary disqualification of the prosecuting attorney,"--to appoint an attorney to assist a grand jury "by reason of the prosecutor himself being under investigation," thus making "it impossible that either he or any assistant under his direction should act").
94. Lindsley, 66 P. at 898-99. The Colorado Supreme Court stated:
If, from any source which he deems sufficiently reliable to prompt him to act, the judge obtains information implicating the district attorney in any alleged offense which he has called to the attention of the grand jury, and acting on such information, directs that body to investigate the district attorney with respect to such offense, such action ipso facto disqualifies the district attorney from acting in such matters; and the judge so doing, charged as he is with the responsibility of not knowingly permitting the channels of justice to become obstructed, has the undoubted authority, and it would be his bounden duty, to appoint an attorney to act in the place and stead of the district attorney with respect to such matters. The district court has the inherent power to protect itself, and direct investigations in a manner which will render them thorough and impartial. Reason dictates and simple justice demands that no official or individual can take part in an investigation before a grand jury the result of which may affect him, either directly or indirectly.
Id. (citations omitted).
95. State ex rel. Spencer v. Criminal Court of Marion County, 15 N.E.2d 1020, 1022 (Ind. 1938) (discussing a court's inherent power and noting that "[i]t cannot be doubted that, where it is established that the prosecuting attorney is an interested party . . . the court may appoint an attorney to represent the interests of the state").
96. Sloane v. Hammond, 254 P. 648, 655 (Cal. Ct. App. 1927). The California court of appeals stated:
The law is well settled, upon just considerations of public policy, as we have seen, that courts possess the inherent power to name special counsel to act in the place of disqualified public prosecutors. . . . Several of the cases to which we have pointed above are to the effect that the inherent power of the courts to appoint exists irrespective or independent of statute. . . . It cannot be questioned that it is the duty of the legislature to enact laws under which district attorneys shall be elected or appointed, and to make it the general duty of the law-making body to provide for an adequate prosecution of those cases in which district attorneys themselves are charged with crime, or in which those regular prosecutors are disqualified for some other reason.
Id.
97. State v. Gonzales, 26 Tex. 197, 199, 1862 Tex. LEXIS 6, *3-*4 (1862) (emphasis added).
98. Tex. Code Crim. Proc. Ann.
art. 2.07 (Vernon 2005).
99. We observe that while a judge--when faced with a situation resembling respondent's--may be obligated to appoint an attorney pro tem to assist the grand jury's investigation, the judge is in no way a slave to that investigation. As noted by the court of criminal appeals in Ex Parte Edone:
the court also exerts some "control" or supervision over the grand jury under [article 20.15 of the code of criminal procedure]. The court decides if the question propounded before the grand jury is proper, and, thus, decides whether or not to aid the investigation of the grand jury by then compelling an answer. Without the action of the court the grand jury is powerless to enforce its investigative duty to gain testimony from a witness and decide on the presentment of an indictment. In this sense, the court acts independently and in a supervisory role (deciding whether to compel an answer) . . . .
Ex Parte Edone, 740 S.W.2d 446, 448 (Tex. Crim. App. 1987).
100. Tex. Code Crim. Proc. Ann.
art. 2.07(a), (b-1) (Vernon 2005).
101. State v. Johnson, 821 S.W.2d 609, 612 (Tex. Crim. App. 1991).
102. Id. at 612 (footnotes omitted) (emphasis added).
103. See Tex. Code Crim. Proc. Ann.
art. 20.09 (Vernon 2005); Op. Tex. Att'y Gen. No. M-1171 at *4 (1972).
104. State ex rel. Matko v. Ziegler, 179 S.E.2d 735 (W. Va. 1971), overruled on other grounds by Smoot v. Dingess, 236 S.E.2d 468, 472 (W. Va. 1977).
105. Id. at 737-38.
106. Id. at 742 (emphasis added).
107. Id.
108. State ex rel. Preissler v. Dostert, 260 S.E.2d 279, 286-87 (W. Va. 1979).
109. Id. at 281.
110. Id. at 285.
111. Id. at 285 n.8.
112. Id. at 285.
113. Id. at 286-87.
114. Id. at 287.
115. State ex rel. Ilvedson v. District Court, 291 N.W. 620 (N.D. 1940).
116. Id. at 622.
117. Id.
118. Id.
119. Id. at 623-24.
120. Id. at 627 (citations omitted).
121. Lattimore, 288 P. at 464-65.
122. State ex rel. Thomas, 175 N.E. at 867.
123. State ex rel. Preissler, 260 S.E.2d at 287; State ex rel. Ilvedson, 291 N.W. at 622.
124. Preissler, 260 S.E.2d at 287.
125. See Holmes, 784 S.W.2d at 426 ("There is no provision requiring or even allowing a magistrate to restrict the process by which a legally constituted grand jury considers cases . . . .").
126. Supra note 68.
127. Preissler, 260 S.E.2d at 286.
128. State ex rel. Brown v. Merrifield, 389 S.E.2d 484, 486 (W. Va. 1990) (first emphasis in original, second emphasis added).
129. Preissler, 260 S.E.2d at 285.
130. See Tex. Const. art. V, § 24.
131. Hill, 887 S.W.2d at 927.
132. Tex. Code Crim. Proc. Ann.
art. 2.07(b-1) (Vernon 2005).
133. We note that affording a right to notice and a hearing benefits not only the district attorney, but the public as well:
[T]he prosecuting attorney is elected by the people of the county to represent them in prosecutions against criminal offenders. Consequently, the public has a right to know why the attorney they have selected to represent them and whose salary they pay with their taxes, is unfit to prosecute a given case. . . . The court must provide every safeguard to insure the public that the business of the State is being properly conducted. A hearing on the record provides the public with an accurate record of the actions of their elected officials, upon which they may evaluate his performance.
Preissler, 260 S.E.2d at 287.
134. Griner v. Thomas, 101 Tex. 36, 104 S.W. 1058, 1058 (1907).
135. Id. at 1060.
136. Id.
137. Tex. Loc. Gov't Code Ann. § 87.017(a) (Vernon 1999).
138. Id.
139. Id. at § 87.017(b).
140. The idea that an office is accepted cum onere was also reflected in Trigg v. State, 49 Tex. 645, 669 (1878). Trigg, an elected county attorney, appealed to the supreme court after he was removed from office upon being found guilty of habitual drunkenness and official misconduct. In discussing the constitutionality of Trigg's removal, the supreme court commented:
The office being elective, the qualified voters of the county have, by his election, declared in favor of his fitness for the office in those respects; but the people of the whole State have declared, by this provision of the Constitution, that he is disqualified from holding the office, notwithstanding his election, if he is found, by the means thus provided, to be guilty of habitual drunkeness. His right to the franchise is thus made subject to that limitation; and the term of his office is thus subjected to a shorter period than the two years for which he was elected. He received the office subject to its being terminated, and his place being filled by another person, in the mode pointed out by the Constitution.
Id. While implicit in Trigg and Griner, the supreme court did explicitly express this idea in Sparks v. State, 42 Tex. Crim. 374, 60 S.W. 246, 247 (1900) ("The sheriff, when he undertook the duties of the office, assumed them voluntarily and cum onere.").
141. Preissler, 260 S.E.2d at 286.
142. See Holmes, 784 S.W.2d at 426 ("There is no provision requiring or even allowing a magistrate to restrict the process by which a legally constituted grand jury considers cases . . . .").
143. See Tex. Code Crim. Proc. Ann.
art. 20.10 (Vernon 2005) (stating that the grand jury foreman may issue a summons for any witness in the county, requiring the witness to appear).
144. See Rogers v. State, 774 S.W.2d 247, 262 (Tex. Crim. App. 1989), overruled on other grounds by Peek v. State, 106 S.W.3d 72, 79 (Tex. Crim. App. 2003) (stating that "the law does not entitle the subject of a criminal investigation to appear personally or by legal counsel before the grand jury conducting such investigation").
145. In United States v. Proctor & Gamble Co., 356 U.S. 677 (1958), the United States Supreme Court listed the following reasons for grand jury secrecy:
(1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.
Id. at 681 n.6.
146. We acknowledge that there is debate among the parties as to whether relator is actually being denied the return of the items seized. Garza asserts that attempts have been made to returns items to relator, but that he has refused to accept the items.
147. Poe v. State, 72 Tex. 625, 10 S.W. 737 (1889).
148. Id. at 738.
149. Id. at 738-39.
150. Id. at 740.
151. Shea v. State, 167 S.W.3d 98, 101-02 (Tex. App.-Waco 2005, pet. ref'd); cf. Loshe v. State, 160 Tex. Crim. 561, 566, 272 S.W.2d 517, 520 (1954) (op. on reh'g) (applying abuse of discretion standard to review appearance of "volunteer" special prosecutor).
152. Tex. Code Crim. Proc. Ann.
art. 2.07(a) (Vernon 2005) (emphasis added).
153. See Shea v. State, 167 S.W.3d 98, 101 (Tex. App.-Waco 2005, pet. ref'd).
154. Tex. Code Crim. Proc. Ann.
art. 2.07(a) (Vernon 2005).
155. See Shea, 167 S.W.3d at 101.
156. Id.
157. Id.
158. Id. at 102.
159. U.S. Const. amend. VI.
160. Tex. Tax Code Ann.
§ 6.30(c) (Vernon 2001) ("The governing body of a taxing unit may contract with any competent attorney to represent the unit to enforce the collection of delinquent taxes.") (emphasis added).
161. Tex. R. Govern. Bar Adm'n XIII(b)(2)(D) (2006) (West 2007) ("[A] foreign nation attorney who has not completed the law study under these Rules is eligible for an exemption from the law study requirement . . . if the attorney demonstrates to the Board that the law of such foreign nation is sufficiently comparable to the law of Texas that, in the judgment of the Board, it enables the foreign attorney to become a competent attorney in Texas without additional formal legal education . . . .") (emphasis added).
162. See, e.g., Scarborough, 54 S.W.3d at 424-25
163. See Young v. U.S. ex rel. Vuitton Et Fils S.A., 481 U.S. 787, 804 (1987); Crowe v. Smith, 151 F.3d 217, 227 (5th Cir. 1998); Pirtle, 887 S.W.2d at 944 (dissenting opinion by Baird, J.).
164. Op. Tex. Att'y Gen. No. GA-0241 (2004).
165. Tex. Code Crim. Proc. Ann.
art. 2.08 (Vernon 2005) ("District and county attorneys shall not be of counsel adversely to the State in any case, in any court, nor shall they, after they cease to be such officers, be of counsel adversely to the State in any case in which they have been of counsel for the State.").
166. Ex parte Ramsey, 642 S.W.2d 483, 484 (Tex. Crim. App. 1982).
167. Op. Tex. Att'y Gen. No. GA-0241 at *10-11 (2004) (citations omitted).
168. Tex. Code Crim. Proc. Ann.
art. 2.07(a) (Vernon 2005) (emphasis added).
169. "The relator must establish that the trial court could reasonably have reached only one decision. Even if the reviewing court would have decided the issue differently, it cannot disturb the trial court's decision unless it is shown to be arbitrary and unreasonable." Walker, 827 S.W.2d at 839 (citations omitted).
170. Hill, 887 S.W.2d at 930.
171. Id.
172. We would note that the 1992 election for Willacy County Attorney, wherein Garza and Guerra were opponents, resulted in an election contest which was appealed to this Court. See Guerra v. Garza, 865 S.W.2d 573 (Tex. App.-Corpus Christi 1993, writ dism'd w.o.j.). In that case, Guerra, the Democratic Party nominee, sued Garza, a write-in candidate, contesting the canvass results of the general election which declared Garza the winner. See id. at 574. Guerra alleged that Garza and his workers conspired to obtain votes and defraud the voters of Willacy County by committing multiple violations of the Texas Election Code. See id. After a bench trial, the trial court denied Guerra's contest and declared Garza the winner. Id. This Court reversed the judgment and remanded the case to the trial court with instructions to open the ballot boxes and recount the ballots in a manner consistent with our opinion. See id. at 579.
173. Garza himself acknowledged the potential for an appearance of impropriety in his service as an attorney pro tem in the instant case. Accordingly, Garza associated an assistant attorney pro tem to prosecute the trial of any case against relator and planned not to participate in the trial himself.
174. Ganger v. Peyton, 379 F.2d 709, 714 (4th Cir. 1967) (conviction violated fundamental fairness assured by due process clause when part-time commonwealth attorney suffered impermissible conflict of interest by prosecuting defendant for criminal assault while simultaneously representing defendant's wife in divorce action).
175. Pirtle, 887 S.W.2d at 927; Eidson, 793 S.W.2d at 6; Goodman, 210 S.W.3d at 808; Fluellen v. State, 104 S.W.3d 152, 161 (Tex. App.-Texarkana 2003, no pet.).
176. Lassiter v. Dept. of Soc. Servs., 452 U.S. 18, 24-25 (1981) (quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961)).
177. See Hill, 887 S.W.2d at 927; Reed, 503 S.W.2d at 776; Canady v. State, 100 S.W.3d 28, 32 (Tex. App.-Waco 2002, no pet.).
178. See Spears v. Fourth Court of Appeals, 797 S.W.2d at 656; State ex rel. Hilbig v. McDonald, 877 S.W.2d 469, 472 (Tex. App.-San Antonio 1994, no pet.).
179. See Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 807-08 and n. 18 (1987); Polo Fashions v. Stock Buyers Intern., 760 F.2d 698, 705 (6th Cir. 1985); New Jersey v. Imperiale, 773 F. Supp. 747, 750 (D.N.J. 1991).
180. Young, 481 U.S. at 807 n.18.
181. Dick v. Scroggy, 882 F.2d 192, 196 (6th Cir. 1989).
182. Id., Wright v. United States, 732 F.2d 1048, 1055 (2d Cir. 1984); Azzone v. United States, 341 F.2d 417, 419 (8th Cir. 1965).
183. See Hanley v. State, 921 S.W.2d 904, 909-10 (Tex. App.-Waco 1996, pet. ref'd) (holding that the defendant could not disqualify the district attorney on the grounds that the prosecutor had a "prejudice" and "predisposition" against him without proving that his allegations rose to the level of a due process violation); Offermann v. State, 742 S.W.2d 875, 876 (Tex. App.-San Antonio, 1987, no writ) (holding that defendant could not disqualify the district attorney on the grounds that the prosecutor harbored a "personal grudge" against him because defendant failed to establish any harm as a result of the alleged "grudge").
184. Tex. Code Crim. Proc. Ann. art. 2.01 (Vernon 2005).
185.
See, e.g., Ganger v. Peyton, 379 F.2d 709, 712-13 (4th Cir. 1967).
186.
See, e.g., Goodman, 210 S.W.3d at 810.
187. See Commonwealth v. Balenger, 704 A.2d 1385, 1386 (Pa. Super. 1997) (granting a new trial where the prosecutor was involved in a romantic relationship with the defendant's wife), appeal denied 727 A.2d 126 (Pa. 1998).
188. See, e.g., Osterberg v. Peca, 12 S.W.3d 31, 36 (Tex. 2000); Ragsdale v. Progressive Voters League, 790 S.W.2d 77, 84 (Tex. App.-Dallas) ("The enforcement of this remedy is the essence of the statute and promotes compliance with the provisions of the Code, especially those that proscribe certain acts as being unlawful."), aff'd in part and rev'd in part on other grounds, 801 S.W.2d 880 (Tex. 1990).
189. Tex. Disciplinary R. Prof'l Conduct 3.08; Gonzalez v. State, 117 S.W.3d 831, 838 (Tex. Crim. App. 2003); House v. State, 947 S.W.2d 251, 252-53 (Tex. Crim. App. 1997). Rule 3.08 of the Texas Disciplinary Rules of Professional Conduct provides, in part:
(a) A lawyer shall not accept or continue employment as an advocate before a tribunal in a contemplated or pending adjudicatory proceeding if the lawyer knows or believes that the lawyer is or may be a witness necessary to establish an essential fact on behalf of the lawyer's client, unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony;
(3) the testimony relates to the nature and value of legal services rendered in the case;
(4) the lawyer is a party to the action and is appearing pro se; or
(5) the lawyer has promptly notified opposing counsel that the lawyer expects to testify in the matter and disqualification of the lawyer would work substantial hardship on the client.
(b) A lawyer shall not continue as an advocate in a pending adjudicatory proceeding if the lawyer believes that the lawyer will be compelled to furnish testimony that will be substantially adverse to the lawyer's client, unless the client consents after full disclosure.
190. Gonzalez, 117 S.W.3d at 838.
191. Id.; House , 947 S.W.2d at 252; Brown v. State, 921 S.W.2d 227 (Tex. Crim. App. 1996).
192. Gonzalez, 117 S.W.3d at 838.
193. See id.
194. See id. at 844.
195.
See id.
196.
Id.
197. See Tex. Disciplinary R. Prof'l Conduct 3.08, reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. A (Vernon 2005) (Tex. State Bar R. art. X, § 9); see Powers v. State, 165 S.W.3d 357, 358 (Tex. Crim. App. 2005) ("an ethics rule may be relied upon to show that an alleged violation infringed the complaining party's right to a fair trial or otherwise affecting substantial rights;" however, "a complaining party's right is not grounded in the disciplinary rule itself.").
198. The dissenting opinion contends that the competence or disqualification of Garza is a moot issue. The general rule is that a case becomes moot, and thus unreviewable, when it appears that one seeks to obtain relief on some alleged controversy when in reality none exists, or on some matter which, when granted, cannot have any practical legal effect on a then-existing controversy. See Tex. Dep't of Public Safety v. LaFleur, 32 S.W.3d 911, 913-14 (Tex. App.-Texarkana 2000, no pet.). We do not agree that this issue is moot.
We conclude that the "capable of repetition yet evading review" exception to the mootness doctrine applies because the challenged act, that is, the appointment of an attorney pro tem, is of such short duration that relator cannot obtain review before the issue becomes moot, and there is a reasonable expectation that the same action will occur again if the issue is not considered. See Blum v. Lanier, 997 S.W.2d 259, 264 (Tex. 1999).
We further conclude that the "public interest" exception to the mootness doctrine also applies. This is an issue of considerable public importance and the issue is capable of repetition between either the same parties or other members of the public. See Ngo v. Ngo, 133 S.W.3d 688, 692 (Tex. App.-Corpus Christi 2003, no pet.). The Texas Supreme Court has not yet recognized the public interest exception to the mootness doctrine and the intermediate appellate courts are not in unanimity regarding its availability, but this Court has specifically recognized this exception, as have several of our sister courts. Ngo, 133 S.W.3d at 692; see FDIC v. Nueces County, 886 S.W.2d 766, 767 (Tex. 1994) ("This Court has not previously decided the viability of the public interest exception, and we find it unnecessary to reach that issue here."); Houston Chronicle Pub. Co. v. Thomas, 196 S.W.3d 396, 399-400 (Tex. App.-Houston [1st Dist.] 2006, no pet.) (noting split among courts regarding availability of the public interest exception); State ex rel. Cockerham v. Cockerham, 218 S.W.3d 298, 302 (Tex. App.-Texarkana 2007, no pet.) (recognizing public interest exception to the mootness doctrine); In re Guardianship of Keller, 171 S.W.3d 498, 501 (Tex. App.-Waco 2005), rev'd on other grounds, Zipp v. Wuemling, 218 S.W.3d 71 (Tex. 2007) (same); Securtec, Inc. v. County of Gregg, 106 S.W.3d 803, 810-11 (Tex. App.-Texarkana 2003, pet. denied) (same); Univ. Interscholastic League v. Buchanan, 848 S.W.2d 298, 304 (Tex. App.-Austin 1993, no pet.) (same).
Finally, we would note that, on September 11, 2007, relator filed a "motion for contempt and/or motion for mandamus and/or equitable relief or in the alternative, motion for stay," supported by affidavit, in which he contends that respondent and Garza have been meeting privately with a new grand jury in relator's absence and he "is concerned that without this Court of Appeals' intervention, with this new grand jury, under the direction of [respondent] and the illegal participation of . . . Garza, Relator will once again find himself being investigated, indicted and arrested." Accordingly, based on the record as a whole and this recent motion, we conclude that the issues herein are vital and continuing in nature.
199. Ex parte Chambers, 898 S.W.2d 257, 259 (Tex. 1995).
200. Id.
201. Id.
202. Motions for contempt are typically verified; however, an unverified motion is acceptable unless a relevant statute provides otherwise. See, e.g., Ex parte Winfree, 263 S.W.2d 154, 156-58 (Tex. 1953) (verification not jurisdictional); see also Ex parte Hall, 611 S.W.2d 459, 460 (Tex. Civ. App.-Dallas 1980, orig. proceeding) (instituting contempt proceeding on unsworn complaint does not violate due process).
203. In re Reed, 901 S.W.2d 604, 608 (Tex. App.-San Antonio 1995, orig. proceeding).
204. The court of appeals has the authority to conduct its own evidentiary hearing on a contempt allegation or it may refer the matter of taking testimony and hearing evidence to a district court. In re Reed, 901 S.W.2d at 610 (citing Ex parte Werblud, 536 S.W.2d 542, 544-45 (Tex. 1976)). The supreme court prefers the latter course of action. Id. In this case, however, because the alleged contemnor is a sitting judge, there is no obviously appropriate district court to whom the case could have been referred. See id.
205. The grand jury foreperson testified that the grand jury decided, on its own initiative, to meet at the Willacy County Sheriff's Office in the evening of March 21, 2007. On this day, the foreperson contacted the official court reporter for the 197th Judicial District Court and arranged for the reporter to meet the grand jury at the sheriff's office. According to the foreperson, only the court reporter and the twelve grand jurors were present while proceedings were being conducted by the grand jury; these proceedings were under the sole direction of the foreperson and the assistant foreperson.
206. Because due process forbids the assessment of punishment for acts not brought to the alleged contemnor's attention before the hearing, this Court's contempt inquiry is limited to the sole allegation raised in relator's motion for contempt. Ex parte Swate, 922 S.W.2d 122, 124 (Tex. 1996); Ex parte Parr, 505 S.W.2d 242, 245-46 (Tex. 1974).
207. Tex. R. App. P. 52.11.
Labels: Citizens against corrupt judges, deny the pro se defendant, Marshall dissents in Srickland v Washington, pro se defendant, retained, texas justice anders voucher, your word means nothing judgement
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Sunday, February 24, 2008
$45 Dollar Dollar Bills is worth Lying, fabricating and ruining someone? Damn right it's personal........
Texas Rules of Evidence
to be effective January 1, 2007
ARTICLE I. GENERAL PROVISIONS
RULE 101. TITLE AND SCOPE
(a) Title. These rules shall be known and cited as the Texas Rules of Evidence.
(b) Scope. Except as otherwise provided by statute, these rules govern civil and criminal proceedings (including examining trials before magistrates) in all courts of Texas, except small claims courts.
(c) Hierarchical Governance in Criminal Proceedings. Hierarchical governance shall be in the following order: the Constitution of the United States, those federal statutes that control states under the supremacy clause, the Constitution of Texas, the Code of Criminal Procedure and the Penal Code, civil statutes, these rules, and the common law. Where possible, inconsistency is to be removed by reasonable construction.
(d) Special Rules of Applicability in Criminal Proceedings.
(1) Rules not applicable in certain proceedings. These rules, except with respect to privileges, do not apply in the following situations:
(A) the determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under Rule 104;
(B) proceedings before grand juries;
(C) proceedings in an application for habeas corpus in extradition, rendition, or interstate detainer;
(D) a hearing under Code of Criminal Procedure article 46.02, by the court out of the presence of a jury, to determine whether there is sufficient evidence of incompetency to require a jury determination of the question of incompetency;
(E) proceedings regarding bail except hearings to deny, revoke or increase bail;
(F) a hearing on justification for pretrial detention not involving bail;
(G) proceedings for the issuance of a search or arrest warrant; or
(H) proceedings in a direct contempt determination.
(2) Applicability of privileges. These rules with respect to privileges apply at all stages of all actions, cases, and proceedings.
(3) Military justice hearings. Evidence in hearings under the Texas Code of Military Justice, Tex. Gov't Code º432.001-432.195, shall be governed by that Code.
Notes and Comments
Comment to 1997 change: "Criminal proceedings" rather than "criminal cases" is used since that was the terminology used in the prior Rules of Criminal Evidence. In subpart (b), the reference to "trials before magistrates" comes from prior Criminal Rule 1101(a). In the prior Criminal Rules, both Rule 101 and Rule 1101 dealt with the same thing -- the applicability of the rules. Thus, Rules 101(c) and (d) have been written to incorporate the provisions of former Criminal Rule 1101 and that rule is omitted.
RULE 102. PURPOSE AND CONSTRUCTION
These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.
RULE 103. RULINGS ON EVIDENCE
(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context. When the court hears objections to offered evidence out of the presence of the jury and rules that such evidence be admitted, such objections shall be deemed to apply to such evidence when it is admitted before the jury without the necessity of repeating those objections.
(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer, or was apparent from the context within which questions were asked.
(b) Record of Offer and Ruling. The offering party shall, as soon as practicable, but before the court's charge is read to the jury, be allowed to make, in the absence of the jury, its offer of proof. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. The court may, or at the request of a party shall, direct the making of an offer in question and answer form.
(c) Hearing of Jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.
(d) Fundamental Error in Criminal Cases. In a criminal case, nothing in these rules precludes taking notice of fundamental errors affecting substantial rights although they were not brought to the attention of the court.
Notes and Comments
Comment to 1997 change. The exception to the requirement of an offer of proof for matters that were apparent from the context within which questions were asked, found in paragraph (a)(2), is now applicable to civil as well as criminal cases.
RULE 104. PRELIMINARY QUESTIONS
(a) Questions of Admissibility Generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination the court is not bound by the rules of evidence except those with respect to privileges.
(b) Relevancy Conditioned on Fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
(c) Hearing of Jury. In a criminal case, a hearing on the admissibility of a confession shall be conducted out of the hearing of the jury. All other civil or criminal hearings on preliminary matters shall be conducted out of the hearing of the jury when the interests of justice so require or in a criminal case when an accused is a witness and so requests.
(d) Testimony by Accused Out of the Hearing of the Jury. The accused in a criminal case does not, by testifying upon a preliminary matter out of the hearing of the jury, become subject to cross-examination as to other issues in the case.
(e) Weight and Credibility. This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.
RULE 105. LIMITED ADMISSIBILITY
(a) Limiting Instruction. When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly; but, in the absence of such request the court's action in admitting such evidence without limitation shall not be a ground for complaint on appeal.
(b) Offering Evidence for Limited Purpose. When evidence referred to in paragraph (a) is excluded, such exclusion shall not be a ground for complaint on appeal unless the proponent expressly offers the evidence for its limited, admissible purpose or limits its offer to the party against whom it is admissible.
RULE 106. REMAINDER OF OR RELATED WRITINGS OR RECORDED STATEMENTS
When a writing or recorded statement or part thereof is introduced by a party, an adverse party may at that time introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it. "Writing or recorded statement" includes depositions.
RULE 107. RULE OF OPTIONAL COMPLETENESS
When part of an act, declaration, conversation, writing or recorded statement is given in evidence by one party, the whole on the same subject may be inquired into by the other, and any other act, declaration, writing or recorded statement which is necessary to make it fully understood or to explain the same may also be given in evidence, as when a letter is read, all letters on the same subject between the same parties may be given. "Writing or recorded statement" includes depositions.
Notes and Comments
Comment to 1997 change: This rule is the former Criminal Rule 107 except that the example regarding "when a letter is read" has been relocated in the rule so as to more accurately indicate the provision it explains. While this rule appeared only in the prior criminal rules, it is made applicable to civil cases because it accurately reflects the common law rule of optional completeness in civil cases.
ARTICLE II. JUDICIAL NOTICE
RULE 201. JUDICIAL NOTICE OF ADJUDICATIVE FACTS
(a) Scope of Rule. This rule governs only judicial notice of adjudicative facts.
(b) Kinds of Facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
(c) When Discretionary. A court may take judicial notice, whether requested or not.
(d) When Mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information.
(e) Opportunity to Be Heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.
(f) Time of Taking Notice. Judicial notice may be taken at any stage of the proceeding.
(g) Instructing Jury. In civil cases, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In criminal cases, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.
RULE 202. DETERMINATION OF LAW OF OTHER STATES
A court upon its own motion may, or upon the motion of a party shall, take judicial notice of the constitutions, public statutes, rules, regulations, ordinances, court decisions, and common law of every other state, territory, or jurisdiction of the United States. A party requesting that judicial notice be taken of such matter shall furnish the court sufficient information to enable it properly to comply with the request, and shall give all parties such notice, if any, as the court may deem necessary, to enable all parties fairly to prepare to meet the request. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken. Judicial notice of such matters may be taken at any stage of the proceeding. The court's determination shall be subject to review as a ruling on a question of law.
RULE 203. DETERMINATION OF THE LAWS OF FOREIGN COUNTRIES
A party who intends to raise an issue concerning the law of a foreign country shall give notice in the pleadings or other reasonable written notice, and at least 30 days prior to the date of trial such party shall furnish all parties copies of any written materials or sources that the party intends to use as proof of the foreign law. If the materials or sources were originally written in a language other than English, the party intending to rely upon them shall furnish all parties both a copy of the foreign language text and an English translation. The court, in determining the law of a foreign nation, may consider any material or source, whether or not submitted by a party or admissible under the rules of evidence, including but not limited to affidavits, testimony, briefs, and treatises. If the court considers sources other than those submitted by a party, it shall give all parties notice and a reasonable opportunity to comment on the sources and to submit further materials for review by the court. The court, and not a jury, shall determine the laws of foreign countries. The court's determination shall be subject to review as a ruling on a question of law.
RULE 204. DETERMINATION OF TEXAS CITY AND COUNTY ORDINANCES, THE CONTENTS OF THE TEXAS REGISTER, AND THE RULES OF AGENCIES PUBLISHED IN THE ADMINISTRATIVE CODE
A court upon its own motion may, or upon the motion of a party shall, take judicial notice of the ordinances of municipalities and counties of Texas, of the contents of the Texas Register, and of the codified rules of the agencies published in the Administrative Code. Any party requesting that judicial notice be taken of such matter shall furnish the court sufficient information to enable it properly to comply with the request, and shall give all parties such notice, if any, as the court may deem necessary, to enable all parties fairly to prepare to meet the request. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken. The court's determination shall be subject to review as a ruling on a question of law.
ARTICLE III. PRESUMPTIONS
[No rules adopted at this time.]
ARTICLE IV. RELEVANCY AND ITS LIMITS
RULE 401. DEFINITION OF "RELEVANT EVIDENCE"
"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
RULE 402. RELEVANT EVIDENCE GENERALLY ADMISSIBLE; IRRELEVANT EVIDENCE INADMISSIBLE
All relevant evidence is admissible, except as otherwise provided by Constitution, by statute, by these rules, or by other rules prescribed pursuant to statutory authority. Evidence which is not relevant is inadmissible.
RULE 403. EXCLUSION OF RELEVANT EVIDENCE ON SPECIAL GROUNDS
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.
RULE 404. CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT; EXCEPTIONS; OTHER CRIMES
(a) Character Evidence Generally. Evidence of a person's character or character trait is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
(1) Character of accused. Evidence of a pertinent character trait offered:
(A) by an accused in a criminal case, or by the prosecution to rebut the same, or
(B) by a party accused in a civil case of conduct involving moral turpitude, or by the accusing party to rebut the same;
(2) Character of victim. In a criminal case and subject to Rule 412, evidence of a pertinent character trait of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of peaceable character of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor; or in a civil case, evidence of character for violence of the alleged victim of assaultive conduct offered on the issue of self-defense by a party accused of the assaultive conduct, or evidence of peaceable character to rebut the same;
(3) Character of witness. Evidence of the character of a witness, as provided in rules 607, 608 and 609.
(b) Other Crimes, Wrongs or Acts. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State's case-in-chief such evidence other than that arising in the same transaction.
RULE 405. METHODS OF PROVING CHARACTER
(a) Reputation or Opinion. In all cases in which evidence of a person's character or character trait is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. In a criminal case, to be qualified to testify at the guilt stage of trial concerning the character or character trait of an accused, a witness must have been familiar with the reputation, or with the underlying facts or information upon which the opinion is based, prior to the day of the offense. In all cases where testimony is admitted under this rule, on cross-examination inquiry is allowable into relevant specific instances of conduct.
(b) Specific Instances of Conduct. In cases in which a person's character or character trait is an essential element of a charge, claim or defense, proof may also be made of specific instances of that person's conduct.
RULE 406. HABIT; ROUTINE PRACTICE
Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
RULE 407. SUBSEQUENT REMEDIAL MEASURES; NOTIFICATION OF DEFECT
(a) Subsequent Remedial Measures. When, after an injury or harm allegedgly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent remedial measures is not admissible to prove negligence, culpable conduct, a defect in product, a defect in product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent remedial measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.
(b) Notification of Defect. A written notification by a manufacturer of any defect in a product produced by such manufacturer to purchasers thereof is admissible against the manufacturer on the issue of existence of the defect to the extent that it is relevant.
RULE 408. COMPROMISE AND OFFERS TO COMPROMISE
Evidence of (1) furnishing or offering or promising to furnish or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice or interest of a witness or a party, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
RULE 409. PAYMENT OF MEDICAL AND SIMILAR EXPENSES
Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.
RULE 410. INADMISSIBILITY OF PLEAS, PLEA DISCUSSIONS AND RELATED STATEMENTS
Except as otherwise provided in this rule, evidence of the following is not admissible against the defendant who made the plea or was a participant in the plea discussions:
(1) a plea of guilty that was later withdrawn;
(2) in civil cases, a plea of nolo contendere, and in criminal cases, a plea of nolo contendere that was later withdrawn;
(3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding, in a civil case, either a plea of guilty that was later withdrawn or a plea of nolo contendere, or in a criminal case, either a plea of guilty that was later withdrawn or a plea of nolo contendere that was later withdrawn; or
(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority that does not result in a plea of guilty or a plea of nolo contendere or that results in a plea, later withdrawn, of guilty or nolo contendere.
However, such a statement is admissible in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it.
RULE 411. LIABILITY INSURANCE
Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another issue, such as proof of agency, ownership, or control, if disputed, or bias or prejudice of a witness.
RULE 412. EVIDENCE OF PREVIOUS SEXUAL CONDUCT IN CRIMINAL CASES
(a) Reputation or Opinion Evidence. In a prosecution for sexual assault or aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault, reputation or opinion evidence of the past sexual behavior of an alleged victim of such crime is not admissible.
(b) Evidence of Specific Instances. In a prosecution for sexual assault or aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault, evidence of specific instances of an alleged victim's past sexual behavior is also not admissible, unless:
(1) such evidence is admitted in accordance with paragraphs (c) and (d) of this rule;
(2) it is evidence:
(A) that is necessary to rebut or explain scientific or medical evidence offered by the State;
(B) of past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior which is the basis of the offense charged;
(C) that relates to the motive or bias of the alleged victim;
(D) is admissible under Rule 609; or
(E) that is constitutionally required to be admitted; and
(3) its probative value outweighs the danger of unfair prejudice.
(c) Procedure for Offering Evidence. If the defendant proposes to introduce any documentary evidence or to ask any question, either by direct examination or cross-examination of any witness, concerning specific instances of the alleged victim's past sexual behavior, the defendant must inform the court out of the hearing of the jury prior to introducing any such evidence or asking any such question. After this notice, the court shall conduct an in camera hearing, recorded by the court reporter, to determine whether the proposed evidence is admissible under paragraph (b) of this rule. The court shall determine what evidence is admissible and shall accordingly limit the questioning. The defendant shall not go outside these limits or refer to any evidence ruled inadmissible in camera without prior approval of the court without the presence of the jury.
(d) Record Sealed. The court shall seal the record of the in camera hearing required in paragraph (c) of this rule for delivery to the appellate court in the event of an appeal.
ARTICLE V. PRIVILEGES
RULE 501. PRIVILEGES RECOGNIZED ONLY AS PROVIDED
Except as otherwise provided by Constitution, by statute, by these rules, or by other rules prescribed pursuant to statutory authority, no person has a privilege to:
(1) refuse to be a witness;
(2) refuse to disclose any matter;
(3) refuse to produce any object or writing; or
(4) prevent another from being a witness or disclosing any matter or producing any object or writing.
RULE 502. REQUIRED REPORTS PRIVILEGED BY STATUTE
A person, corporation, association, or other organization or entity, either public or private, making a return or report required by law to be made has a privilege to refuse to disclose and to prevent any other person from disclosing the return or report, if the law requiring it to be made so provides. A public officer or agency to whom a return or report is required by law to be made has a privilege to refuse to disclose the return or report if the law requiring it to be made so provides. No privilege exists under this rule in actions involving perjury, false statements, fraud in the return or report, or other failure to comply with the law in question.
RULE 503. LAWYER-CLIENT PRIVILEGE
(a) Definitions. As used in this rule:
(1) A "client" is a person, public officer, or corporation, association, or other organization or entity either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from that lawyer.
(2) A "representative of the client" is (i) a person having authority to obtain professional legal services, or to act on advice thereby rendered, on behalf of the client or (ii) any other person who, for the purpose of effectuating legal representation for the client, makes or receives a confidential communication while acting in the scope of employment for the client.
(3) A "lawyer" is a person authorized, or reasonably believed by the client to be authorized, to engage in the practice of law in any state or nation.
(4) A "representative of the lawyer" is:
(A) one employed by the lawyer to assist the lawyer in the rendition of professional legal services; or
(B) an accountant who is reasonably necessary for the lawyer's rendition of professional legal services.
(5) A communication is "confidential" if not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.
(b) Rules of Privilege.
(1) General rule of privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client:
(A) between the client or a representative of the client and the client's lawyer or a representative of the lawyer;
(B) between the lawyer and the lawyer's representative;
(C) by the client or a representative of the client, or the client's lawyer or a representative of the lawyer, to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein;
(D) between representatives of the client or between the client and a representative of the client; or
(E) among lawyers and their representatives representing the same client.
(2) Special rule of privilege in criminal cases. In criminal cases, a client has a privilege to prevent the lawyer or lawyer's representative from disclosing any other fact which came to the knowledge of the lawyer or the lawyer's representative by reason of the attorney-client relationship.
(c) Who May Claim the Privilege. The privilege may be claimed by the client, the client's guardian or conservator, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization, whether or not in existence. The person who was the lawyer or the lawyer's representative at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the client.
(d) Exceptions. There is no privilege under this rule:
(1) Furtherance of crime or fraud. If the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud;
(2) Claimants through same deceased client. As to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transactions;
(3) Breach of duty by a lawyer or client. As to a communication relevant to an issue of breach of duty by a lawyer to the client or by a client to the lawyer;
(4) Document attested by a lawyer. As to a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness; or
(5) Joint clients. As to a communication relevant to a matter of common interest between or among two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between or among any of the clients.
RULE 504. HUSBAND-WIFE PRIVILEGES
(a) Confidential Communication Privilege.
(1) Definition. A communication is confidential if it is made privately by any person to the person's spouse and it is not intended for disclosure to any other person.
(2) Rule of privilege. A person, whether or not a party, or the guardian or representative of an incompetent or deceased person, has a privilege during marriage and afterwards to refuse to disclose and to prevent another from disclosing a confidential communication made to the person's spouse while they were married.
(3) Who may claim the privilege. The confidential communication privilege may be claimed by the person or the person's guardian or representative, or by the spouse on the person's behalf. The authority of the spouse to do so is presumed.
(4) Exceptions. There is no confidential communication privilege:
(A) Furtherance of crime or fraud. If the communication was made, in whole or in part, to enable or aid anyone to commit or plan to commit a crime or fraud.
(B) Proceeding between spouses in civil cases. In (A) a proceeding brought by or on behalf of one spouse against the other spouse, or (B) a proceeding between a surviving spouse and a person who claims through the deceased spouse, regardless of whether the claim is by testate or intestate succession or by inter vivos transaction.
(C) Crime against spouse or minor child. In a proceeding in which the party is accused of conduct which, if proved, is a crime against the person of the spouse, any minor child, or any member of the household of either spouse, or, in a criminal proceeding, when the offense charged is under Section 25.01 Penal Code (Bigamy).
(D) Commitment or similar proceeding. In a proceeding to commit either spouse or otherwise to place that person or that person's property, or both, under the control of another because of an alleged mental or physical condition.
(E) Proceeding to establish competence. In a proceeding brought by or on behalf of either spouse to establish competence.
(b) Privilege not to Testify in Criminal Case.
(1) Rule of privilege. In a criminal case, the spouse of the accused has a privilege not to be called as a witness for the state. This rule does not prohibit the spouse from testifying voluntarily for the state, even over objection by the accused. A spouse who testifies on behalf of an accused is subject to cross-examination as provided in rule 611(b).
(2) Failure to call as witness. Failure by an accused to call the accused's spouse as a witness, where other evidence indicates that the spouse could testify to relevant matters, is a proper subject of comment by counsel.
(3) Who may claim the privilege. The privilege not to testify may be claimed by the person or the person's guardian or representative but not by that person's spouse.
(4) Exceptions. The privilege of a person's spouse not to be called as a witness for the state does not apply:
(A) Certain criminal proceedings. In any proceeding in which the person is charged with a crime against the person's spouse, a member of the household of either spouse, or any minor, or in an offense charged under Section 25.01, Penal Code (Bigamy).
(B) Matters occurring prior to marriage. As to matters occurring prior to the marriage.
Notes and Comments
Comment to 1997 change: The rule eliminates the spousal testimonial privilege for prosecutions in which the testifying spouse is the alleged victim of a crime by the accused. This is intended to be consistent with Code of Criminal Procedure article 38.10, effective September 1, 1995.
RULE 505. COMMUNICATIONS TO MEMBERS OF THE CLERGY
(a) Definitions. As used in this rule:
(1) A "member of the clergy" is a minister, priest, rabbi, accredited Christian Science Practitioner, or other similar functionary of a religious organization or an individual reasonably believed so to be by the person consulting with such individual.
(2) A communication is "confidential" if made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.
(b) General Rule of Privilege. A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a member of the clergy in the member's professional character as spiritual adviser.
(c) Who May Claim the Privilege. The privilege may be claimed by the person, by the person's guardian or conservator, or by the personal representative of the person if the person is deceased. The member of the clergy to whom the communication was made is presumed to have authority to claim the privilege but only on behalf of the communicant.
RULE 506. POLITICAL VOTE
Every person has a privilege to refuse to disclose the tenor of the person's vote at a political election conducted by secret ballot unless the vote was cast illegally.
RULE 507. TRADE SECRETS
A person has a privilege, which may be claimed by the person or the person's agent or employee, to refuse to disclose and to prevent other persons from disclosing a trade secret owned by the person, if the allowance of the privilege will not tend to conceal fraud or otherwise work injustice. When disclosure is directed, the judge shall take such protective measure as the interests of the holder of the privilege and of the parties and the furtherance of justice may require.
RULE 508. IDENTITY OF INFORMER
(a) Rule of Privilege. The United States or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of a law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation.
(b) Who May Claim. The privilege may be claimed by an appropriate representative of the public entity to which the information was furnished, except the privilege shall not be allowed in criminal cases if the state objects.
(c) Exceptions.
(1) Voluntary disclosure; informer a witness. No privilege exists under this rule if the identity of the informer or the informer's interest in the subject matter of the communication has been disclosed to those who would have cause to resent the communication by a holder of the privilege or by the informer's own action, or if the informer appears as a witness for the public entity.
(2) Testimony on merits. If it appears from the evidence in the case or from other showing by a party that an informer may be able to give testimony necessary to a fair determination of a material issue on the merits in a civil case to which the public entity is a party, or on guilt or innocence in a criminal case, and the public entity invokes the privilege, the court shall give the public entity an opportunity to show in camera facts relevant to determining whether the informer can, in fact, supply that testimony. The showing will ordinarily be in the form of affidavits, but the court may direct that testimony be taken if it finds that the matter cannot be resolved satisfactorily upon affidavit. If the court finds that there is a reasonable probability that the informer can give the testimony, and the public entity elects not to disclose the informer's identity, the court in a civil case may make any order that justice requires, and in a criminal case shall, on motion of the defendant, and may, on the court's own motion, dismiss the charges as to which the testimony would relate. Evidence submitted to the court shall be sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without consent of the public entity. All counsel and parties shall be permitted to be present at every stage of proceedings under this subdivision except a showing in camera, at which no counsel or party shall be permitted to be present.
(3) Legality of obtaining evidence. If information from an informer is relied upon to establish the legality of the means by which evidence was obtained and the court is not satisfied that the information was received from an informer reasonably believed to be reliable or credible, it may require the identity of the informer to be disclosed. The court shall, on request of the public entity, direct that the disclosure be made in camera. All counsel and parties concerned with the issue of legality shall be permitted to be present at every stage of proceedings under this subdivision except a disclosure in camera, at which no counsel or party shall be permitted to be present. If disclosure of the identity of the informer is made in camera, the record thereof shall be sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without consent of the public entity.
RULE 509. PHYSICIAN-PATIENT PRIVILEGE
(a) Definitions. As used in this rule:
(1) A "patient" means any person who consults or is seen by a physician to receive medical care.
(2) A "physician" means a person licensed to practice medicine in any state or nation, or reasonably believed by the patient so to be.
(3) A communication is "confidential" if not intended to be disclosed to third persons other than those present to further the interest of the patient in the consultation, examination, or interview, or those reasonably necessary for the transmission of the communication, or those who are participating in the diagnosis and treatment under the direction of the physician, including members of the patient's family.
(b) Limited Privilege in Criminal Proceedings. There is no physician-patient privilege in criminal proceedings. However, a communication to any person involved in the treatment or examination of alcohol or drug abuse by a person being treated voluntarily or being examined for admission to treatment for alcohol or drug abuse is not admissible in a criminal proceeding.
(c) General Rule of Privilege in Civil Proceedings. In a civil proceeding:
(1) Confidential communications between a physician and a patient, relative to or in connection with any professional services rendered by a physician to the patient are privileged and may not be disclosed.
(2) Records of the identity, diagnosis, evaluation, or treatment of a patient by a physician that are created or maintained by a physician are confidential and privileged and may not be disclosed.
(3) The provisions of this rule apply even if the patient received the services of a physician prior to the enactment of the Medical Liability and Insurance Improvement Act, Tex. Rev. Civ. Stat. art. 4590i.
(d) Who May Claim the Privilege in a Civil Proceeding. In a civil proceeding:
(1) The privilege of confidentiality may be claimed by the patient or by a representative of the patient acting on the patient's behalf.
(2) The physician may claim the privilege of confidentiality, but only on behalf of the patient. The authority to do so is presumed in the absence of evidence to the contrary.
(e) Exceptions in a Civil Proceeding. Exceptions to confidentiality or privilege in administrative proceedings or in civil proceedings in court exist:
(1) when the proceedings are brought by the patient against a physician, including but not limited to malpractice proceedings, and in any license revocation proceeding in which the patient is a complaining witness and in which disclosure is relevant to the claims or defense of a physician;
(2) when the patient or someone authorized to act on the patient's behalf submits a written consent to the release of any privileged information, as provided in paragraph (f);
(3) when the purpose of the proceedings is to substantiate and collect on a claim for medical services rendered to the patient;
(4) as to a communication or record relevant to an issue of the physical, mental or emotional condition of a patient in any proceeding in which any party relies upon the condition as a part of the party's claim or defense;
(5) in any disciplinary investigation or proceeding of a physician conducted under or pursuant to the Medical Practice Act, Tex. Rev. Civ. Stat. art. 4495b, or of a registered nurse under or pursuant to Tex. Rev. Civ. Stat. arts. 4525, 4527a, 4527b, and 4527c, provided that the board shall protect the identity of any patient whose medical records are examined, except for those patients covered under subparagraph (e)(1) or those patients who have submitted written consent to the release of their medical records as provided by paragraph (f);
(6) in an involuntary civil commitment proceeding, proceeding for court-ordered treatment, or probable cause hearing under
(A) the Texas Mental Health Code, Tex. Health & Safety Code º571.001-571.026;
(B) the Persons with Mental Retardation Act, Tex. Health & Safety Code º591.001-591.025;
(7) in any proceeding regarding the abuse or neglect, or the cause of any abuse or neglect, of the resident of an "institution" as defined in Tex. Health & Safety Code º242.002.
(f) Consent.
(1) Consent for the release of privileged information must be in writing and signed by the patient, or a parent or legal guardian if the patient is a minor, or a legal guardian if the patient has been adjudicated incompetent to manage personal affairs, or an attorney ad litem appointed for the patient, as authorized by the Texas Mental Health Code, Tex. Health & Safety Code º 571.001-571.026; the Persons with Mental Retardation Act; Tex. Health & Safety Code º591.001-591.025; Chapter V, Texas Probate Code; and Tex. Fam. Code º107.011; or a personal representative if the patient is deceased, provided that the written consent specifies the following:
(A) the information or medical records to be covered by the release;
(B) the reasons or purposes for the release; and
(C) the person to whom the information is to be released.
(2) The patient, or other person authorized to consent, has the right to withdraw consent to the release of any information. Withdrawal of consent does not affect any information disclosed prior to the written notice of the withdrawal.
(3) Any person who received information made privileged by this rule may disclose the information to others only to the extent consistent with the authorized purposes for which consent to release the information was obtained.
Notes and Comments
Comment to 1997 change: Prior Criminal Rules of Evidence 509 and 510 are now in subparagraph (b) of this Rule. Former paragraph (d)(6) of the Civil Evidence Rules, regarding disclosures in a suit affecting the parent-child relationship, is omitted.
RULE 510. CONFIDENTIALITY OF MENTAL HEALTH INFORMATION IN CIVIL CASES
(a) Definitions. As used in this rule:
(1) "Professional" means any person:
(A) authorized to practice medicine in any state or nation;
(B) licensed or certified by the State of Texas in the diagnosis, evaluation or treatment of any mental or emotional disorder;
(C) involved in the treatment or examination of drug abusers; or
(D) reasonably believed by the patient to be included in any of the preceding categories.
(2) "Patient" means any person who:
(A) consults, or is interviewed by, a professional for purposes of diagnosis, evaluation, or treatment of any mental or emotional condition or disorder, including alcoholism and drug addiction; or
(B) is being treated voluntarily or being examined for admission to voluntary treatment for drug abuse.
(3) A representative of the patient is:
(A) any person bearing the written consent of the patient;
(B) a parent if the patient is a minor;
(C) a guardian if the patient has been adjudicated incompetent to manage the patient's personal affairs; or
(D) the patient's personal representative if the patient is deceased.
(4) A communication is "confidential" if not intended to be disclosed to third persons other than those present to further the interest of the patient in the diagnosis, examination, evaluation, or treatment, or those reasonably necessary for the transmission of the communication, or those who are participating in the diagnosis, examination, evaluation, or treatment under the direction of the professional, including members of the patient's family.
(b) General Rule of Privilege.
(1) Communication between a patient and a professional is confidential and shall not be disclosed in civil cases.
(2) Records of the identity, diagnosis, evaluation, or treatment of a patient which are created or maintained by a professional are confidential and shall not be disclosed in civil cases.
(3) Any person who received information from confidential communications or records as defined herein, other than a representative of the patient acting on the patient's behalf, shall not disclose in civil cases the information except to the extent that disclosure is consistent with the authorized purposes for which the information was first obtained.
(4) The provisions of this rule apply even if the patient received the services of a professional prior to the enactment of Tex. Rev. Civ. Stat. art. 5561h (Vernon Supp. 1984)(now codified as Tex. Health & Safety Code º611.001-611.008).
(c) Who May Claim the Privilege.
(1) The privilege of confidentiality may be claimed by the patient or by a representative of the patient acting on the patient's behalf.
(2) The professional may claim the privilege of confidentiality but only on behalf of the patient. The authority to do so is presumed in the absence of evidence to the contrary.
(d) Exceptions. Exceptions to the privilege in court or administrative proceedings exist:
(1) when the proceedings are brought by the patient against a professional, including but not limited to malpractice proceedings, and in any license revocation proceedings in which the patient is a complaining witness and in which disclosure is relevant to the claim or defense of a professional;
(2) when the patient waives the right in writing to the privilege of confidentiality of any information, or when a representative of the patient acting on the patient's behalf submits a written waiver to the confidentiality privilege;
(3) when the purpose of the proceeding is to substantiate and collect on a claim for mental or emotional health services rendered to the patient;
(4) when the judge finds that the patient after having been previously informed that communications would not be privileged, has made communications to a professional in the course of a court-ordered examination relating to the patient's mental or emotional condition or disorder, providing that such communications shall not be privileged only with respect to issues involving the patient's mental or emotional health. On granting of the order, the court, in determining the extent to which any disclosure of all or any part of any communication is necessary, shall impose appropriate safeguards against unauthorized disclosure;
(5) as to a communication or record relevant to an issue of the physical, mental or emotional condition of a patient in any proceeding in which any party relies upon the condition as a part of the party's claim or defense;
(6) in any proceeding regarding the abuse or neglect, or the cause of any abuse or neglect, of the resident of an institution as defined in Tex. Health and Safety Code º242.002.
Notes and Comments
This rule only governs disclosures of patient-professional communications in judicial or administrative proceedings. Whether a professional may or must disclose such communications in other circumstances is governed by Tex. Health & Safety Code º611.001-611.008. Former paragraph (d)(6) of the Civil Evidence Rules, regarding disclosures in a suit affecting the parent-child relationship, is omitted.
RULE 511. WAIVER OF PRIVILEGE BY VOLUNTARY DISCLOSURE
A person upon whom these rules confer a privilege against disclosure waives the privilege if:
(1) the person or a predecessor of the person while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the privileged matter unless such disclosure itself is privileged; or
(2) the person or a representative of the person calls a person to whom privileged communications have been made to testify as to the person's character or character trait insofar as such communications are relevant to such character or character trait.
RULE 512. PRIVILEGED MATTER DISCLOSED UNDER COMPULSION OR WITHOUT OPPORTUNITY TO CLAIM PRIVILEGE
A claim of privilege is not defeated by a disclosure which was (1) compelled erroneously or (2) made without opportunity to claim the privilege.
RULE 513. COMMENT UPON OR INFERENCE FROM CLAIM OF PRIVILEGE; INSTRUCTION
(a) Comment or Inference Not Permitted. Except as permitted in Rule 504(b)(2), the claim of a privilege, whether in the present proceeding or upon a prior occasion, is not a proper subject of comment by judge or counsel, and no inference may be drawn therefrom.
(b) Claiming Privilege Without Knowledge of Jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the jury.
(c) Claim of Privilege Against Self-Incrimination in Civil Cases. Paragraphs (a) and (b) shall not apply with respect to a party's claim, in the present civil proceeding, of the privilege against self-incrimination.
(d) Jury Instruction. Except as provided in Rule 504(b)(2) and in paragraph (c) of this Rule, upon request any party against whom the jury might draw an adverse inference from a claim of privilege is entitled to an instruction that no inference may be drawn therefrom.
Notes and Comments
Comment to 1997 change. Subdivision (d) regarding a party's entitlement to a jury instruction about a claim of privilege is made applicable to civil cases.
ARTICLE VI. WITNESSES
RULE 601. COMPETENCY AND INCOMPETENCY OF WITNESSES
(a) General Rule. Every person is competent to be a witness except as otherwise provided in these rules. The following witnesses shall be incompetent to testify in any proceeding subject to these rules:
(1) Insane persons. Insane persons who, in the opinion of the court, are in an insane condition of mind at the time when they are offered as a witness, or who, in the opinion of the court, were in that condition when the events happened of which they are called to testify.
(2) Children. Children or other persons who, after being examined by the court, appear not to possess sufficient intellect to relate transactions with respect to which they are interrogated.
(b) "Dead Man Rule" in Civil Actions. In civil actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any oral statement by the testator, intestate or ward, unless that testimony to the oral statement is corroborated or unless the witness is called at the trial to testify thereto by the opposite party; and, the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent based in whole or in part on such oral statement. Except for the foregoing, a witness is not precluded from giving evidence of or concerning any transaction with, any conversations with, any admissions of, or statement by, a deceased or insane party or person merely because the witness is a party to the action or a person interested in the event thereof. The trial court shall, in a proper case, where this rule prohibits an interested party or witness from testifying, instruct the jury that such person is not permitted by the law to give evidence relating to any oral statement by the deceased or ward unless the oral statement is corroborated or unless the party or witness is called at the trial by the opposite party.
RULE 602. LACK OF PERSONAL KNOWLEDGE
A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses.
RULE 603. OATH OR AFFIRMATION
Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so.
RULE 604. INTERPRETERS
An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation to make a true translation.
RULE 605. COMPETENCY OF JUDGE AS A WITNESS
The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.
RULE 606. COMPETENCY OF JUROR AS A WITNESS
(a) At the Trial. A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting as a juror. If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.
(b) Inquiry Into Validity of Verdict or Indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the jury's deliberations, or on any juror's mind or emotions or mental processes, as influencing any juror's assent to or dissent from the verdict or indictment. Nor may a juror's affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes. However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve.
RULE 607. WHO MAY IMPEACH
The credibility of a witness may be attacked by any party, including the party calling the witness.
RULE 608. EVIDENCE OF CHARACTER AND CONDUCT OF A WITNESS
(a) Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations:
(1) the evidence may refer only to character for truthfulness or untruthfulness; and
(2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
(b) Specific Instances of Conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence.
RULE 609. IMPEACHMENT BY EVIDENCE OF CONVICTION OF CRIME
(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record but only if the crime was a felony or involved moral turpitude, regardless of punishment, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party.
(b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.
(c) Effect of Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible under this rule if:
(1) based on the finding of the rehabilitation of the person convicted, the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure, and that person has not been convicted of a subsequent crime which was classified as a felony or involved moral turpitude, regardless of punishment;
(2) probation has been satisfactorily completed for the crime for which the person was convicted, and that person has not been convicted of a subsequent crime which was classified as a felony or involved moral turpitude, regardless of punishment; or
(3) based on a finding of innocence, the conviction has been the subject of a pardon, annulment, or other equivalent procedure.
(d) Juvenile Adjudications. Evidence of juvenile adjudications is not admissible, except for proceedings conducted pursuant to Title III, Family Code, in which the witness is a party, under this rule unless required to be admitted by the Constitution of the United States or Texas.
(e) Pendency of Appeal. Pendency of an appeal renders evidence of a conviction inadmissible.
(f) Notice. Evidence of a conviction is not admissible if after timely written request by the adverse party specifying the witness or witnesses, the proponent fails to give to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.
RULE 610. RELIGIOUS BELIEFS OR OPINIONS
Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced.
Notes and Comments
Comment to 1997 change: This is prior Rule of Criminal Evidence 615.
RULE 611. MODE AND ORDER OF INTERROGATION AND PRESENTATION
(a) Control by Court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.
(b) Scope of Cross-Examination. A witness may be cross-examined on any matter relevant to any issue in the case, including credibility.
(c) Leading Questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the testimony of the witness. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.
Notes and Comments
RULE 612. WRITING USED TO REFRESH MEMORY
If a witness uses a writing to refresh memory for the purpose of testifying either
(1) while testifying;
(2) before testifying, in civil cases, if the court in its discretion determines it is necessary in the interests of justice; or
(3) before testifying, in criminal cases;
an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portion not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.
RULE 613. PRIOR STATEMENTS OF WITNESSES: IMPEACHMENT AND SUPPORT
(a) Examining Witness Concerning Prior Inconsistent Statement. In examining a witness concerning a prior inconsistent statement made by the witness, whether oral or written, and before further cross-examination concerning, or extrinsic evidence of such statement may be allowed, the witness must be told the contents of such statement and the time and place and the person to whom it was made, and must be afforded an opportunity to explain or deny such statement. If written, the writing need not be shown to the witness at that time, but on request the same shall be shown to opposing counsel. If the witness unequivocally admits having made such statement, extrinsic evidence of same shall not be admitted. This provision does not apply to admissions of a party-opponent as defined in Rule 801(e)(2).
(b) Examining Witness Concerning Bias or Interest. In impeaching a witness by proof of circumstances or statements showing bias or interest on the part of such witness, and before further cross-examination concerning, or extrinsic evidence of, such bias or interest may be allowed, the circumstances supporting such claim or the details of such statement, including the contents and where, when and to whom made, must be made known to the witness, and the witness must be given an opportunity to explain or to deny such circumstances or statement. If written, the writing need not be shown to the witness at that time, but on request the same shall be shown to opposing counsel. If the witness unequivocally admits such bias or interest, extrinsic evidence of same shall not be admitted. A party shall be permitted to present evidence rebutting any evidence impeaching one of said party's witnesses on grounds of bias or interest.
(c) Prior Consistent Statements of Witnesses. A prior statement of a witness which is consistent with the testimony of the witness is inadmissible except as provided in Rule 801(e)(1)(B).
RULE 614. EXCLUSION OF WITNESSES
At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of:
(1) a party who is a natural person or in civil cases the spouse of such natural person;
(2) an officer or employee of a party in a civil case or a defendant in a criminal case that is not a natural person designated as its representative by its attorney;
(3) a person whose presence is shown by a party to be essential to the presentation of the party's cause; or
(4) the victim in a criminal case, unless the victim is to testify and the court determines that the victim's testimony would be materially affected if the victim hears other testimony at the trial.
RULE 615. PRODUCTION OF STATEMENTS OF WITNESSES IN CRIMINAL CASES
(a) Motion for Production. After a witness other than the defendant has testified on direct examination, the court, on motion of a party who did not call the witness, shall order the attorney for the state or the defendant and defendant's attorney, as the case may be, to produce, for the examination and use of the moving party, any statement of the witness that is in their possession and that relates to the subject matter concerning which the witness has testified.
(b) Production of Entire Statement. If the entire contents of the statement relate to the subject matter concerning which the witness has testified, the court shall order that the statement be delivered to the moving party.
(c) Production of Excised Statement. If the other party claims that the statement contains matter that does not relate to the subject matter concerning which the witness has testified, the court shall order that it be delivered to the court in camera. Upon inspection, the court shall excise the portions of the statement that do not relate to the subject matter concerning which the witness has testified, and shall order that the statement, with such material excised, be delivered to the moving party. Any portion withheld over objection shall be preserved and made available to the appellate court in the event of appeal.
(d) Recess for Examination of Statement. Upon delivery of the statement to the moving party, the court, upon application of that party, shall recess proceedings in the trial for a reasonable examination of such statement and for preparation for its use in the trial.
(e) Sanction for Failure to Produce Statement. If the other party elects not to comply with an order to deliver a statement to the moving party, the court shall order that the testimony of the witness be stricken from the record and that the trial proceed, or, if it is the attorney for the state who elects not to comply, shall declare a mistrial if required by the interest of justice.
(f) Definition. As used in this rule, a "statement" of a witness means:
(1) a written statement made by the witness that is signed or otherwise adopted or approved by the witness;
(2) a substantially verbatim recital of an oral statement made by the witness that is recorded contemporaneously with the making of the oral statement and that is contained in a stenographic, mechanical, electrical, or other recording or a transcription thereof; or
(3) a statement, however taken or recorded, or a transcription thereof, made by the witness to a grand jury.
Notes and Comments
Comment to 1997 change: This is prior Texas Rule of Criminal Evidence 614.
ARTICLE VII. OPINIONS AND EXPERT TESTIMONY
RULE 701. OPINION TESTIMONY BY LAY WITNESSES
If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.
RULE 702. TESTIMONY BY EXPERTS
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
RULE 703. BASES OF OPINION TESTIMONY BY EXPERTS
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by, reviewed by, or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
Notes and Comments
Comment to 1997 change: The former Civil Rule referred to facts or data "perceived by or reviewed by" the expert. The former Criminal rule referred to facts or data "perceived by or made known to" the expert. The terminology is now conformed , but no change in meaning is intended.
RULE 704. OPINION ON ULTIMATE ISSUE
Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
RULE 705. DISCLOSURE OF FACTS OR DATA UNDERLYING EXPERT OPINION
(a) Disclosure of Facts or Data. The expert may testify in terms of opinion or inference and give the expert's reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event disclose on direct examination, or be required to disclose on cross-examination, the underlying facts or data.
(b) Voir dire. Prior to the expert giving the expert's opinion or disclosing the underlying facts or data, a party against whom the opinion is offered upon request in a criminal case shall, or in a civil case may, be permitted to conduct a voir dire examination directed to the underlying facts or data upon which the opinion is based. This examination shall be conducted out of the hearing of the jury.
(c) Admissibility of opinion. If the court determines that the underlying facts or data do not provide a sufficient basis for the expert's opinion under Rule 702 or 703, the opinion is inadmissible.
(d) Balancing test; limiting instructions. When the underlying facts or data would be inadmissible in evidence, the court shall exclude the underlying facts or data if the danger that they will be used for a purpose other than as explanation or support for the expert's opinion outweighs their value as explanation or support or are unfairly prejudicial. If otherwise inadmissible facts or data are disclosed before the jury, a limiting instruction by the court shall be given upon request.
Notes and Comments
Comment to 1997 change: Paragraphs (b), (c), and (d) are based on the former Criminal Rule and are made applicable to civil cases. This rule does not preclude a party in any case from conducting a voir dire examination into the qualifications of an expert.
RULE 706. AUDIT IN CIVIL CASES
Despite any other evidence rule to the contrary, verified reports of auditors prepared pursuant to Rule of Civil Procedure 172, whether in the form of summaries, opinions, or otherwise, shall be admitted in evidence when offered by any party whether or not the facts or data in the reports are otherwise admissible and whether or not the reports embrace the ultimate issues to be decided by the trier of fact. Where exceptions to the reports have been filed, a party may contradict the reports by evidence supporting the exceptions.
ARTICLE VIII. HEARSAY
RULE 801. DEFINITIONS
The following definitions apply under this article:
(a) Statement. A "statement" is (1) an oral or written verbal expression or (2) nonverbal conduct of a person, if it is intended by the person as a substitute for verbal expression.
(b) Declarant. A "declarant" is a person who makes a statement
(c) Matter Asserted. "Matter asserted" includes any matter explicitly asserted, and any matter implied by a statement, if the probative value of the statement as offered flows from declarant's belief as to the matter.
(d) Hearsay. "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
(e) Statements Which Are Not Hearsay. A statement is not hearsay if:
(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is:
(A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding except a grand jury proceeding in a criminal case, or in a deposition;
(B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive;
(C) one of identification of a person made after perceiving the person; or
(D) taken and offered in a criminal case in accordance with Code of Criminal Procedure article 38.071.
(2) Admission by party-opponent. The statement is offered against a party and is:
(A) the party's own statement in either an individual or representative capacity;
(B) a statement of which the party has manifested an adoption or belief in its truth;
(C) a statement by a person authorized by the party to make a statement concerning the subject;
(D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship; or
(E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.
(3) Depositions. In a civil case, it is a deposition taken in the same proceeding, as same proceeding is defined in Rule of Civil Procedure 207. Unavailability of deponent is not a requirement for admissibility.
RULE 802. HEARSAY RULE
Hearsay is not admissible except as provided by statute or these rules or by other rules prescribed pursuant to statutory authority. Inadmissible hearsay admitted without objection shall not be denied probative value merely because it is hearsay.
RULE 803. HEARSAY EXCEPTIONS; AVAILABILITY OF DECLARANT IMMATERIAL
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(1) Present Sense Impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.
(2) Excited Utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
(3) Then Existing Mental, Emotional, or Physical Condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.
(4) Statements for Purposes of Medical Diagnosis or Treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
(5) Recorded Recollection. A memorandum or record concerning a matter about which a witness once had personal knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly, unless the circumstances of preparation cast doubt on the document's trustworthiness. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.
(6) Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by affidavit that complies with Rule 902(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. "Business" as used in this paragraph includes any and every kind of regular organized activity whether conducted for profit or not.
(7) Absence of Entry in Records Kept in Accordance With the Provisions of Paragraph (6). Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.
(8) Public Records and Reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies setting forth:
(A) the activities of the office or agency;
(B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding in criminal cases matters observed by police officers and other law enforcement personnel; or
(C) in civil cases as to any party and in criminal cases as against the state, factual findings resulting from an investigation made pursuant to authority granted by law;
unless the sources of information or other circumstances indicate lack of trustworthiness.
(9) Records of Vital Statistics. Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.
(10) Absence of Public Record or Entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with Rule 902, or testimony, that diligent search failed to disclose the record, report statement, or data compilation, or entry.
(11) Records of Religious Organizations. Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization.
(12) Marriage, Baptismal, and Similar Certificates. Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a member of the clergy, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter.
(13) Family Records. Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.
(14) Records of Documents Affecting an Interest in Property. The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office.
(15) Statements in Documents Affecting an Interest in Property. A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.
(16) Statements in Ancient Documents. Statements in a document in existence twenty years or more the authenticity of which is established.
(17) Market Reports, Commercial Publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.
(18) Learned Treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.
(19) Reputation Concerning Personal or Family History. Reputation among members of a person's family by blood, adoption, or marriage, or among a person's associates, or in the community, concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history.
(20) Reputation Concerning Boundaries or General History. Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or state or nation in which located.
(21) Reputation as to Character. Reputation of a person's character among associates or in the community.
(22) Judgment of Previous Conviction. In civil cases, evidence of a judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), judging a person guilty of a felony, to prove any fact essential to sustain the judgment of conviction. In criminal cases, evidence of a judgment, entered after a trial or upon a plea of guilty or nolo contendere, adjudging a person guilty of a criminal offense, to prove any fact essential to sustain the judgment of conviction, but not including, when offered by the state for purposes other than impeachment, judgments against persons other than the accused. In all cases, the pendency of an appeal renders such evidence inadmissible.
(23) Judgment as to Personal, Family, or General History, or Boundaries. Judgments as proof of matters of personal, family or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation.
(24) Statement Against Interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in declarant's position would not have made the statement unless believing it to be true. In criminal cases, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
RULE 804. HEARSAY EXCEPTIONS; DECLARANT UNAVAILABLE
(a) Definition of Unavailability. "Unavailability as a witness" includes situations in which the declarant:
(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement;
(2) persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so;
(3) testifies to a lack of memory of the subject matter of the declarant's statement;
(4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or
(5) is absent from the hearing and the proponent of the declarant's statement has been unable to procure the declarant's attendance or testimony by process or other reasonable means.
A declarant is not unavailable as a witness if the declarant's exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrong-doing of the proponent of the declarant's statement for the purpose of preventing the witness from attending or testifying.
(b) Hearsay Exceptions. The following are not excluded if the declarant is unavailable as a witness:
(1) Former testimony. In civil cases, testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in the course of another proceeding, if the party against whom the testimony is now offered, or a person with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. In criminal cases, testimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. In criminal cases the use of depositions is controlled by Chapter 39 of the Code of Criminal Procedure.
(2) Dying declarations. A statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.
(3) Statement of personal or family history.
(A) A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history even though declarant had no means of acquiring personal knowledge of the matter stated; or
(B) A statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared.
RULE 805. HEARSAY WITHIN HEARSAY
Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.
RULE 806. ATTACKING AND SUPPORTING CREDIBILITY OF DECLARANT
When a hearsay statement, or a statement defined in Rule 801(e)(2) (C), (D), or (E), or in civil cases a statement defined in Rule 801(e)(3), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, offered to impeach the declarant, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.
ARTICLE IX. AUTHENTICATION AND IDENTIFICATION
RULE 901. REQUIREMENT OF AUTHENTICATION OR IDENTIFICATION
(a) General Provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.
(2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.
(3) Comparison by trier or expert witness. Comparison by the trier of fact or by expert witness with specimens which have been found by the court to be genuine.
(4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.
(5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at anytime under circumstances connecting it with the alleged speaker.
(6) Telephone conversations. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if:
(A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called; or
(B) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone.
(7) Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.
(8) Ancient documents or data compilation. Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence twenty years or more at the time it is offered.
(9) Process or system. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.
(10) Methods provided by statute or rule. Any method of authentication or identification provided by statute or by other rule prescribed pursuant to statutory authority.
RULE 902. SELF-AUTHENTICATION
Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:
(1) Domestic Public Documents Under Seal. A document bearing a seal purporting to be that of the United States, or of any State, district, Commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution.
(2) Domestic Public Documents Not Under Seal. A document purporting to bear the signature in the official capacity of an officer or employee of any entity included in paragraph (1) hereof, having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine.
(3) Foreign Public Documents. A document purporting to be executed or attested in an official capacity by a person, authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature and official position (A) of the executing or attesting person, or (B) of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation. A final certification may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the court may, for good cause shown, order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without final certification. The final certification shall be dispensed with whenever both the United States and the foreign country in which the official record is located are parties to a treaty or convention that abolishes or displaces such requirement, in which case the record and the attestation shall be certified by the means provided in the treaty or convention.
(4) Certified Copies of Public Records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2) or (3) of this rule or complying with any statute or other rule prescribed pursuant to statutory authority.
(5) Official Publications. Books, pamphlets, or other publications purporting to be issued by public authority.
(6) Newspapers and Periodicals. Printed materials purporting to be newspapers or periodicals.
(7) Trade Inscriptions and the Like. Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin.
(8) Acknowledged Documents. Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments.
(9) Commercial Paper and Related Documents. Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law.
(10) Business Records Accompanied by Affidavit.
(a) Records or photocopies; admissibility; affidavit; filing. Any record or set of records or photographically reproduced copies of such records, which would be admissible under Rule 803(6) or (7) shall be admissible in evidence in any court in this state upon the affidavit of the person who would otherwise provide the prerequisites of Rule 803(6) or (7), that such records attached to such affidavit were in fact so kept as required by Rule 803(6) or (7), provided further, that such record or records along with such affidavit are filed with the clerk of the court for inclusion with the papers in the cause in which the record or records are sought to be used as evidence at least fourteen days prior to the day upon which trial of said cause commences, and provided the other parties to said cause are given prompt notice by the party filing same of the filing of such record or records and affidavit, which notice shall identify the name and employer, if any, of the person making the affidavit and such records shall be made available to the counsel for other parties to the action or litigation for inspection and copying. The expense for copying shall be borne by the party, parties or persons who desire copies and not by the party or parties who file the records and serve notice of said filing, in compliance with this rule. Notice shall be deemed to have been promptly given if it is served in the manner contemplated by Rule of Civil Procedure 21a fourteen days prior to commencement of trial in said cause.
(b) Form of affidavit. A form for the affidavit of such person as shall make such affidavit as is permitted in paragraph (a) above shall be sufficient if it follows this form though this form shall not be exclusive, and an affidavit which substantially complies with the provisions of this rule shall suffice, to-wit:
No ______________
John Doe (Name of Plaintiff)
º
IN THE __________
º
v.
º
COURT IN AND FOR
º
º
John Roe (Name of Defendant)
º
_________ COUNTY, TEXAS
AFFIDAVIT
Before me, the undersigned authority, personally appeared _________, who, being by me duly sworn, deposed as follows:
My name is _________, I am of sound mind, capable of making this affidavit, and personally acquainted with the facts herein stated:
I am the custodian of the records of _________. Attached hereto are _____ pages of records from ______. These said ____ pages of records are kept by ________ in the regular course of business, and it was the regular course of business of __________ for an employee or representative of ________, with knowledge of the act, event, condition, opinion, or diagnosis, recorded to make the record or to transmit information thereof to be included in such record; and the record was made at or near the time or reasonably soon thereafter. The records attached hereto are the original or exact duplicates of the original.
______________________________________
Affiant
SWORN TO AND SUBSCRIBED before me on the _________ day of _________, 19 ____.
______________________________________
Notary Public, State of Texas
Notary's printed name:
______________________________________
My commission expires:
_______________
(11) Presumptions Under Statutes or Other Rules. Any signature, document, or other matter declared by statute or by other rules prescribed pursuant to statutory authority to be presumptively or prima facie genuine or authentic.
RULE 903. SUBSCRIBING WITNESS' TESTIMONY UNNECESSARY
The testimony of a subscribing witness is not necessary to authenticate a writing unless required by the laws of the jurisdiction whose laws govern the validity of the writing.
ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS
RULE 1001. DEFINITIONS
For purposes of this article the following definitions are applicable:
(a) Writings and Recordings. "Writings" and "recordings" consist of letters, words, or numbers or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.
(b) Photographs. "Photographs" include still photographs, X-ray films, video tapes, and motion pictures.
(c) Original. An "original" of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An "original" of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original."
(d) Duplicate. A "duplicate" is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduce the original.
RULE 1002. REQUIREMENT OF ORIGINALS
To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required except as otherwise provided in these rules or by law.
RULE 1003. ADMISSIBILITY OF DUPLICATES
A duplicate is admissible to the same extent as an original unless (1) a question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.
RULE 1004. ADMISSIBILITY OF OTHER EVIDENCE OF CONTENTS
The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if:
(a) Originals Lost or Destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith;
(b) Original Not Obtainable. No original can be obtained by any available judicial process or procedure;
(c) Original Outside the State. No original is located in Texas;
(d) Original in Possession of Opponent. At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the content would be a subject of proof at the hearing, and that party does not produce the original at the hearing; or
(e) Collateral Matters. The writing, recording or photograph is not closely related to a controlling issue.
RULE 1005. PUBLIC RECORDS
The contents of an official record or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with Rule 902 or testified to be correct by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given.
RULE 1006. SUMMARIES
The contents of voluminous writings, recordings, or photographs, otherwise admissible, which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The court may order that they be produced in court.
RULE 1007. TESTIMONY OR WRITTEN ADMISSION OF PARTY
Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the party against whom offered or by that party's written admission, without accounting for the nonproduction of the original.
RULE 1008. FUNCTIONS OF COURT AND JURY
When the admissibility of other evidence of contents of writings, recordings, or photographs under these rules depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled is ordinarily for the court to determine in accordance with the provisions of Rule 104. However, when an issue is raised (a) whether the asserted writing ever existed, or (b) whether another writing, recording, or photograph produced at the trial is the original, or (c) whether other evidence of contents correctly reflects the contents, the issue is for the trier of fact to determine as in the case of other issues of fact.
RULE 1009. TRANSLATION OF FOREIGN
LANGUAGE DOCUMENTS
(a) Translations. A translation of foreign language documents shall be admissible upon the affidavit of a qualified translator setting forth the qualifications of the translator and certifying that the translation is fair and accurate. Such affidavit, along with the translation and the underlying foreign language documents, shall be served upon all parties at least 45 days prior to the date of trial.
(b) Objections. Any party may object to the accuracy of another party's translation by pointing out the specific inaccuracies of the translation and by stating with specificity what the objecting party contends is a fair and accurate translation. Such objection shall be served upon all parties at least 15 days prior to the date of trial.
(c) Effect of Failure to Object or Offer Conflicting Translation. If no conflicting translation or objection is timely served, the court shall admit a translation submitted under paragraph (a) without need of proof, provided however that the underlying foreign language documents are otherwise admissible under the Texas Rules of Evidence. Failure to serve a conflicting translation under paragraph (a) or failure to timely and properly object to the accuracy of a translation under paragraph (b) shall preclude a party from attacking or offering evidence contradicting the accuracy of such translation at trial.
(d) Effect of Objections or Conflicting Translations. In the event of conflicting translations under paragraph (a) or if objections to another party's translation are served under paragraph (b), the court shall determine whether there is a genuine issue as to the accuracy of a material part of the translation to be resolved by the trier of fact.
(e) Expert Testimony of Translator. Except as provided in paragraph (c), this Rule does not preclude the admission of a translation of foreign language documents at trial either by live testimony or by deposition testimony of a qualified expert translator.
(f) Varying of Time Limits. The court, upon motion of any party and for good cause shown, may enlarge or shorten the time limits set forth in this Rule.
(g) Court Appointment. The court, if necessary, may appoint a qualified translator, the reasonable value of whose services shall be taxed as court costs.
Notes and Comments
Comment to 1997 change. This is a new rule.
Labels: appointed counsel, Judicial Process, Marshall dissents in Srickland v Washington, MUST BE THE MONEY, pro se defendant, Texas Fair Defense Act
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Tuesday, February 12, 2008
the State knowingly used perjured testimony and that it failed to disclose evidence showing t
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Revised - February 3, 2003
Revised - February 3, 2003
Revised - February 3, 2003
Revised - February 3, 2003
Revised - February 3, 2003
Revised - February 3, 2003
SUPPRESSION OF EXCULPATORY
EVIDENCE IN CRIMINAL CASES
Presented at:
The Criminal Defense Lawyers Project’s
EVIDENCE FOR THE 21ST CENTURY
SEMINAR
Presented by:
Gary A. Udashen
Sorrels & Udashen
2301 Cedar Springs Road
Suite 400
Dallas, Texas 75201
214-468-8100
214-468-8104 fax
SUPPRESSION OF EXCULPATORY
EVIDENCE IN CRIMINAL CASES
By: Gary A. Udashen*
The failure of prosecutors to reveal exculpatory evidence to defendants and their attorneys has resulted in many unjust convictions. A small number of these cases are eventually reversed on appeal but such an outcome is dependent on the defense discovering the existence of the suppressed evidence and the willingness of courts to reverse convictions and reopen trials. Knowledge of and sensitivity to this issue by judges, prosecutors and defense lawyers is essential to the fair and just operation of our criminal justice system.
Review of Law
The seminal case concerning exculpatory evidence is Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Brady was charged with murder and tried separately from his codefendant. At Brady’s trial, he admitted participation in the crime but contended that his codefendant had done the actual killing. Prior to trial, Brady’s counsel requested access to the statements made by the codefendant. He was shown some statements but the prosecution withheld a statement where the codefendant admitted the killing. After Brady’s direct appeal, he gained access to this exculpatory statement and brought a post conviction challenge to his conviction alleging a violation of due process based on the prosecutor withholding this favorable evidence. In Brady, the Supreme Court stated the following:
“We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”
In United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), the Court further explored the question of suppression of exculpatory evidence and stated that “when the prosecutor receives a specific and relevant request (for exculpatory evidence) the failure to make any response is seldom, if ever, excusable.” The Agurs court also noted that, “if the evidence is so clearly supportive of a claim of innocence that it gives the prosecution notice of a duty to produce, that duty should equally arise even if no request is made.” Specifically, the Court in Agurs distinguished three situations in which a Brady claim might arise: first, where previously undisclosed evidence revealed that the prosecution introduced trial testimony that it knew or should have known was perjured, 427 U.S. at 103-104, 96 S.Ct. at 2397-2398. In this situation, the Court said that “a conviction obtained by the knowing use of perjured testimony is fundamentally unfair and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.”1 Agurs, 427 U.S. at 103 (see also, United States v. San Filippo, 564 F.2d 176, 178 (5th Cir. 1977) (“due process is violated when the prosecutor although not soliciting false evidence from a government witness, allows it to stand uncorrected when it appears”); second, where the Government failed to accede to a defense request for disclosure of some specific kind of exculpatory evidence, id. at 104-107, 96 S.Ct. at 2398-2399; and third, where the Government failed to volunteer exculpatory evidence never requested, or requested only in a general way. The Court found a duty on the part of the Government even in this last situation, though only when suppression of the evidence would be “of sufficient significance to result in the denial of the defendant’s right to a fair trial.” Id. at 108, 96 S.Ct. at 2400.
United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), clarified the standard of review when exculpatory evidence is suppressed. First, the Bagley court rejected a distinction between cases when there was a specific request for exculpatory evidence and no request. Bagley set out a three part test for obtaining relief based on suppression of exculpatory evidence. (1) The prosecution withheld or suppressed evidence. (2) The evidence was favorable to the defense. (3) The evidence was material to either guilt or punishment. See also, Ex parte Kimes, 872 S.W.2d 700, 702-03 (Tex. Crim. App. 1993). Under Bagley the materiality test is met and a new trial required if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. This reasonable probability is defined as “a probability sufficient to undermine confidence in the outcome”. 473 U.S. at 682, 105 S.Ct. at 3383; see also, Ex parte Adams, 768 S.W.2d 281 (Tex. Crim. App. 1989) (Texas has adopted the Bagley test for materiality determinations when exculpatory evidence is suppressed). The Bagley court also held that the prosecution has a duty to disclose evidence that could be used to impeach the prosecution’s witnesses. In Bagley, the prosecution had not disclosed incentives which had been offered witnesses contingent on the government’s satisfaction with their testimony.
In Bagley, the Court expressed concern with “any adverse effect that the prosecutor’s failure to respond (with exculpatory evidence) might have had on the preparation of the defendant’s case.” 473 U.S. at 683, 105 S.Ct. at 3384. See also, Derden v. McNeel, 938 F.2d 605, 617 (5th Cir. 1991) (a reviewing court may consider any adverse effects the prosecutor’s failure to release information might have had on the defendant’s preparation and presentation of the case).
In Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), the Court discussed the showing necessary to obtain a new trial when the prosecution withholds exculpatory evidence. Under Kyles, this showing does not require a demonstration that the disclosure of this evidence would have resulted in an acquittal. Rather, as the Court stated, the question is “not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence, he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” 514 U.S. at 434, 115 S.Ct. at 1566. The Kyles court restated the materiality test as a determination as to whether there is a “reasonable probability” that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” The Court emphasized that this was not a sufficiency of the evidence test and did not require a showing that disclosure of the suppressed evidence would have resulted in the defendant’s acquittal.
The Court in Kyles found reversible error in the prosecutions suppression of the following evidence in a Louisiana murder case: 1) contemporaneous eyewitness statement taken by the police following the murder that were favorable to Kyles; 2) various inconsistent statements by a police informant who had implicated Kyles and 3) a computer printout of license numbers of car parked at the crime scene on the night of the murder, which did not list Kyles’ car.
Knowledge of government agents, such as police officers, of exculpatory evidence is imputed to the prosecution. Williams v. Whitley, 940 F.2d 132 (5th Cir. 1991); U. S. v. Auten, 632 F.2d 478 (5th Cir. 1980). Therefore, if a police officer has exculpatory evidence, this is the same as a prosecutor having it, and it must be turned over to the defense. See Kyles, 115 S.Ct. at 1566, (“the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.”); United States v. Brooks, 966 F.2d 1500 (D.C. Cir. 1992) (discussing duty of prosecutor to search files of other agencies); O’Rarden v. State, 777 S.W.2d 455 (Tex. App. - Dallas 1989, pet. ref’d) (prosecution team includes investigators); Carey v. Duckworth, 738 F.2d 875 (7th Cir. 1984) (prosecution cannot evade Brady requirements by keeping itself ignorant of information). See also, Jones v. Chicago, 856 F.2d 985 (7th Cir. 1988) (criticizing police for withholding information from prosecutor in order to circumvent Brady rule). In United States v. Henthorn, 931 F.2d 29 (9th Cir. 1991), the court held that when the government is confronted with a request by a defendant for the personnel files of testifying officers the government has a duty to examine those files and must disclose information favorable to the defense that meets the materiality standard. The court held that if the government is uncertain about its materiality the evidence should be submitted to the court.
Additionally, the duty to disclose exculpatory evidence is ongoing and the State must disclose it whenever it is discovered. Flores v. State, 940 S.W.2d 189, 191 (Tex. App. - San Antonio, 1996, no pet.).
In Strickler v. Greene, 527 U.S. 263 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999), the Supreme Court reiterated the standard of review for determining Brady claims. However, Strickler demonstrated the heavy burden the Courts place on defendants to demonstrate prejudice when the prosecution withholds exculpatory evidence. In Strickler, the court found that the prosecution withheld exculpatory evidence but concluded that the defendant did not show prejudice because there was strong evidence in the record that the defendant in that capital murder case would have been convicted and sentenced to death even if the prosecution had revealed the suppressed exculpatory evidence. Specifically in Strickler the prosecutor failed to disclose exculpatory materials in the police files, consisting of notes taken by a detective during interviews with an eyewitness and letters written to the detective by the eyewitness, that cast serious doubt on significant portions of her testimony. However, there was additional strong physical evidence and witness testimony that the court found to provide sufficient support for the conclusion that the defendant would have been convicted and sentenced to death even if the witness had been severely impeached or her testimony excluded entirely.
Texas courts have reversed a few cases based on the suppression of exculpatory evidence by the prosecution. The Texas courts essentially follow the same reasoning as the Supreme Court in analyzing these cases.
In Thomas v. State, 841 S.W.2d 399 (Tex. Crim. App. 1992), the defense filed a motion requesting exculpatory evidence. The prosecutor responded in the usual way and said the state had no exculpatory evidence. At the trial, the State’s witnesses testified that they saw the defendant drag the deceased behind an apartment building and shoot him. The State suppressed the following exculpatory evidence: A different witness named Walker was interviewed by the police several days after the shooting and the prosecutor personally interviewed Walker about one month after the shooting. The prosecutor and the prosecutor’s investigator also interviewed Walker in the courtroom the first day of trial. After that interview, Walker disappeared and was not available to testify at trial. In all of his interviews, Walker told the State officials that he arrived at the apartment and went upstairs to watch a movie. When he arrived, he saw the defendant in front of the apartments. While Walker was upstairs, he heard arguing and gunshots in the back of the apartments. He ran downstairs and saw the defendant in the front of the apartments. He said that the defendant could not have gotten from the back of the apartments when the shooting occurred to the front that fast because Walker ran down the stairs in a few seconds, and therefore the defendant did not do the shooting.
After trial, the defense learned of this evidence and Walker’s testimony was presented at a motion for new trial. Both the trial court and Court of Appeals refused to order a new trial. However, the Court of Criminal Appeals reversed and held that there was a reasonable probability that the result of the proceeding would have been different with Walker’s testimony.
The Texas Court of Criminal Appeals recently reversed a capital murder conviction based on the suppression of exculpatory evidence. In Ex parte Richardson, 70 S.W.3d 865 (Tex. Crim. App. 2002), the prosecution failed to disclose the existence of a diary kept by a police officer with the Lubbock Police Department that contained substantial information that could have been used to impeach the State’s star witness. This diary was written while the officer was guarding the witness during a period of protective custody. The officer who maintained the diary testified at the post-conviction writ hearing that she kept the diary to protect herself and other officers from false accusations by the witness. The diary contained information about false accusations and statements made by the witness about the officers. At the writ hearing, the officer who wrote the diary as well as five other officers testified the witness was not a truthful person. None of this information had been revealed to the defense. Based on this evidence, the Court of Criminal Appeals found that the three part test for obtaining relief under Brady was met. The Court specifically found that the State failed to disclose the existence of this exculpatory evidence, that the withheld evidence was favorable to the accused and that the evidence was material, that is, that there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different.
Recently, the Supreme Court issued an opinion that is a set back for attempts to encourage prosecutors to be open about exculpatory evidence. In United States v. Ruiz, 122 S.Ct. 2450 (2002), the Supreme Court recently held that the Constitution does not require the government to disclose material impeachment evidence prior to entering into a plea agreement.
The Court of Criminal Appeals has also held that the Brady rule did not apply when the accused was already aware of the information. Hayes v. State, 85 S.W.3d 809 (Tex. Crim. App. 2002); Harvard v. State, 800 S.W.2d 195, 204 (Tex. Crim. App. 1989).
If the defendant discovers previously withheld evidence during trial, or close to trial, it is necessary to request a continuance in order to preserve error for appeal. Lindley v. State, 635 S.W.2d 541, 544 (Tex. Crim. App. 1982); Williams v. State, 995 S.W.2d 754, 762 (Tex. App. - San Antonio 1999, no pet.); Gutierrez v. State, 85 S.W.2d 446 (Tex. App. - Austin 2002).
SPECIFIC CASES
Reversals of convictions for suppression of exculpatory evidence arise in a variety of circumstances. A sampling of such cases follows:
Supreme Court Cases
Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972): Government failed to disclose impeachment evidence of a promise of immunity in exchange for testimony.
Kyles v. Whitley, supra: State suppressed the following evidence in murder case: contemporaneous eyewitness statements taken by the police which would have undermined the state’s eyewitness testimony, various inconsistent statements made to the police by an informant and a list of cars at the crime scene.
Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967): Habeas granted where prosecution knowingly misrepresented paint-stained shorts as blood-stained, and failed to disclose the true nature of the stains.
Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959): “When reliability of a given witness may well be determinative of guilt or innocence,” nondisclosure of immunity deal with witness violates Due Process.
Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987): Defendant entitled to any exculpatory evidence in child welfare agencies files.
Texas Cases
Ball v. State, 631 S.W.2d 809 (Tex. App. - Eastland 1982, pet ref’d): Error not to disclose picture of defendant with black eye at time of arrest when self defense claimed.
Collins v. State, 642 S.W.2d 80 (Tex. App. - Fort Worth 1982): State did not tell defense material witnesses name or location.
Cook v. State, 940 S.W.2d 623 (Tex. Crim. App. 1996): Withheld evidence that the defendant knew victim and had been to her apartment and failed to disclose material inconsistent statements of a key witness to the Grand Jury.
Crutcher v. State, 481 S.W.2d 113 (Tex. Crim. App. 1972): Witnesses inconsistent statements.
Ex parte Adams, 768 S.W.2d 281 (Tex. Crim. App. 1989): Crime victims prior inconsistent statement.
Ex parte Brandley, 781 S.W.2d 886 (Tex. Crim. App. 1989): Inconsistent statement by witnesses.
Ex parte Lewis, 587 S.W.2d 697 (Tex. Crim. App. 1979): Existence of doctors letter stating defendant was insane.
Ex parte Turner, 545 S.W.2d 470 (Tex. Crim. App. 1977): Fact that police officer aided in obtaining release of main witness.
Flores v. State, 940 S.W.2d 189, 191 (Tex. App. - San Antonio 1996, no pet.): Witness statement that was material in corroborating defendant’s argument that victim shot herself.
Granger v. State, 653 S.W.2d 868 (Tex. App. 13 Dist. 1983), aff’d, 683 S.W.2d 387 (Tex. 1984), cert. denied, 472 U.S. 1012 (1985): Failure to disclose existence of a deal that changed witness’s sentence from death to lie.
Ham v. State, 760 S.W.2d 55 (Tex. App. - Amarillo 1988, no pet.): Prosecution withheld doctors report which supported defense position and refuted prosecution.
Jones v. State, 850 S.W.2d 223 (Tex. App. - Fort Worth 1993): Prosecution failed to disclose in a timely manner exculpatory information in a victim impact statement which negated the evidence of defendant’s intent to shoot the victim.
O’Rarden v. State, 777 S.W.2d 455 (Tex. App. - Dallas 1989, pet. ref’d): Failure to provide defense copy of Dept. of Human Resources report which indicated no sexual abuse occurred.
Thomas v. State, 841 S.W.2d 399 (Tex. Crim. App. 1992): Witness statement to police that defendant was not in a physical position to have been able to commit the offense.
Federal Cases
Ballinger v. Kirby, 3 F.3d 1371 (10th Cir. 1993): Exculpatory photograph.
Banks v. Reynolds, 54 F.3d 1508 (10th Cir. 1995): Fact that another person had been arrested for the same crime.
Boone v. Paderick, 541 F.2d 447 (4th Cir. 1976): Prosecutor did not disclose deal with accomplice/witness for leniency.
Bowen v. Maynard, 799 F.2d 593 (8th Cir. 1986): Evidence that former police officer was initial suspect in the murder for which defendant was convicted.
Brown v. Borg, 951 F.2d 1011 (9th Cir. 1991): Knowledge by prosecutor that her theory of the case was wrong.
Carter v. Rafferty, 826 F.2d 1299 (3rd Cir. 1987): Reports of polygraph test given to important prosecution witness, but see Wood v. Bartholomew, 516 U.S. 1, 116 S.Ct. 7, 133 L.Ed.2d 1 (1995) (because polygraphs are inadmissable even for impeachment they are not subject to Brady).
Chaney v. Brown, 730 F.2d 1334 (10th Cir. 1984): Conviction affirmed but death sentence reversed where withheld evidence contradicted prosecution’s theory of the murder and placed defendant 110 miles from the scene.
Derden v. McNeel, 932 F.2d 605 (5th Cir. 1991): Radio log that would have impeached State’s witnesses.
DuBose v. Lefevre, 619 F.2d 973 (2nd Cir. 1980): State’s encouragement to witness to believe that favorable testimony would result in leniency toward the witness.
Guerra v. Johnson, 90 F.3d 1075 (5th Cir. 1996): Information showing police intimidation of witness and failure to disclose evidence regarding who was seen carrying the murder weapon shortly after the shooting.
Hudson v. Whitley, 979 F.2d 1058 (5th Cir. 1992): Evidence that the State’s only eyewitness had initially identified someone else, and that person had been arrested.
Hughes v. Bowers, 711 F.Supp. 1574 (N. D. Ga. 1989), aff’d, 896 F.2d 558 (11th Cir. 1990): Evidence that the State’s eyewitness to the murder stood to benefit from the life insurance policy of the victim if the defendant was convicted.
Jackson v. Wainwright, 390 F.2d 288 (5th Cir. 1968): Racial misidentification case, where prosecutor failed to reveal prior identification problem.
Jacobs v. Singletary, 952 F.2d 1282 (11th Cir. 1992): Failure to disclose statements of witness to polygraph examiner which contradicted trial testimony.
Jean v. Rice, 945 F.2d 82 (4th Cir. 1991): State under duty to disclose information concerning hypnosis session that enabled witness to identify the defendant.
Jones v. Jago, 575 F.2d 1164 (6th Cir. 1978): State withheld, despite defense request, a statement from coindictee who, prior to trial, had been declared material witness for prosecution, and against whom all charges were then dropped.
Lindsey v. King, 769 F.2d 1034 (5th Cir. 1985). Suppression of initial statement of eyewitness to police in which he said he could not identify the murderer because he never saw the murderer’s face.
McDowell v. Dixon, 858 F.2d 945 (4th Cir. 1988): Witness’s initial statement that attacker was white when the defendant was black.
Miller v. Angliker, 848 F.2d 1312 (2nd Cir. 1988): Evidence which showed that another person committed the crimes with which defendant was charged.
Norris v. Slayton, 540 F.2d 1241 (4th Cir. 1976): Failure to furnish to rape defendant’s counsel copy of lab report showing no hair or fiber evidence in defendant’s undershorts or in victim’s bed.
Orndorff v. Lockhart, 707 F.Supp. 1062 (E.D. Ark. 1988), aff’d in part, vacated in part, 906 F.2d 1230 (8th Cir. 1990): Failure to disclose that witness’s memory was hypnotically refreshed during pretrial investigation.
Ouimette v. Moran, 942 F.2d 1 (lst Cir. 1991): Information about extensive criminal record of State’s witness and the existence of a deal with state’s witness.
Reutter v. Solem, 888 F.2d 578 (8th Cir. 1989): Withholding of fact that key witness had applied for commutation and been scheduled to appear before parole board a few days after his testimony.
Sellers v. Estelle, 651 F.2d 1074 (5th Cir. 1981): Police reports containing admissions by other persons of involvement in the offense.
Simms v. Cupp, 354 F.Supp. 698 (D. Ore. 1972): Suppression of original description by witness which differed from her trial testimony.
Spicer v. Roxbury Correctional Institution, 194 F.3d 547 (4th Cir. 1999): Inconsistent statement by government witness as to whether he was really an eyewitness to the crime.
Troedel v. Wainwright, 667 F.Supp. 1456 (S.D. Fla. 1986): State failed to disclose instances of codefendant’s propensity for violence when this supported defense theory.
United States v. Beasley, 576 F.2d 626 (5th Cir. 1978): Failure of government to timely produce statement of prosecution witness when the statement at issue differed from witness’ trial testimony.
United States v. Boyd, 55 F.3d 239 (7th Cir. 1995): Prosecutor failed to reveal to defense drug use by prisoner witnesses during trial and “continuous stream of unlawful” favors prosecution gave those witnesses.
United States v. Brumel-Alvarez, 976 F.2d 1235 (9th Cir. 1992): Memorandum by government agent containing information about credibility of informant.
United States v. Butler, 567 F.2d 885 (9th Cir. 1978): Government failed to disclose that the witness had been promised a dismissal of the charges against him.
United States v. Cadet, 727 F.2d 1453 (9th Cir. 1984): Names and addresses of eyewitnesses to offense that State does not intend to call to testify.
United States v. Cuffie, 80 F.3d 514 (D.C. Cir. 1996): Evidence that prosecution witness had previously lied under oath in proceeding involving same conspiracy.
United States ex. rel. Smith v. Fairman, 769 F.2d 386 (7th Cir. 1985): Police ballistics report showing gun defendant allegedly used to fire at police was inoperable.
United States v. Fisher, 106 F.3d 622 (5th Cir. 1991): Government report reflecting on credibility of key government witness.
United States v. Foster, 874 F.2d 491 (8th Cir. 1988): Failure by prosecutor to correct false testimony.
United States v. Gerard, 491 F.2d 1300 (9th Cir. 1974): Defendants deprived of evidence of promise of leniency by prosecutor, and failure to disclose that witness was in other trouble, thereby giving him even greater incentive to lie.
United States v. Herberman, 583 F.2d 222 (5th Cir. 1978): Testimony presented to grand jury that contradicted testimony of government witnesses.
United States v. Minsky, 963 F.2d 870 (6th Cir. 1992): Withholding from defense fact that witness lied to Grand Jury.
United States v. Pope, 529 F.2d 112 (9th Cir. 1976): Prosecution failed to disclose plea bargain with witness in exchange for testimony and argued to the jury that the witness had no reason to lie.
United States v. Sheehan, 442 F.Supp. 1003 (D. Mass. 1977): Only eyewitness to see the robber’s faces unmasked during a bank robbery was not called to testify because he hesitated in his identification of the defendant.
United States v. Spagnoulo, 960 F.2d 990 (11th Cir. 1992): Government failed to turn over a psychiatric report which indicated that the defendant may have been able to assert an insanity defense.
United States v. Sutton, 542 F.2d 1239 (4th Cir. 1976): Prosecutor withheld evidence that witness was coerced into testifying against defendant.
United States v. Udechukwu, 11 F.3d 1101 (lst Cir. 1993): Evidence to support defendant’s theory that she had been coerced into being a drug courier.
United States v. Weintraub, 871 F.2d 1257 (5th Cir. 1989): Government withheld statement from a presentence report from witness indicating that the defendant was responsible for much smaller amount of drugs than claimed.
Walter v. Lockhart, 763 F.2d 942 (8th Cir. 1985): For over twenty years, the State withheld a transcript of a conversation supporting the defendant’s claim that the officer shot at him first.
Timing of Disclosure
The ability to effectively utilize exculpatory evidence is largely dependent on the defendant’s obtaining timely disclosure. In United States v. Hart, 760 F.Supp. 653 (E.D. Mich. 1991), the Court held that it was the court’s responsibility to fix the timing for disclosure of exculpatory evidence. Other courts have issued opinions stating that disclosure must be made in time for effective use at trial. United States v. Higgs, 713 F.2d 39, 44 (3rd Cir. 1983); United States v. Starusko, 729 F.2d 256, 261 (3rd Cir. 1984).
Requesting Exculpatory Evidence
The prosecution has a duty to reveal exculpatory evidence even without a specific request from the defense and regardless of the good faith or bad faith of the prosecution. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Thomas v. State, 841 S.W.2d 399 (Tex. Crim. App. 1992). However, in order to increase the chances of obtaining exculpatory evidence prior to trial defense counsel should file a motion making specific requests for exculpatory evidence. The more specific the request the more likely it is that the prosecution will reveal the existence of the exculpatory evidence. An example of a specific motion for a DWI case follows:
NO. ____________________
THE STATE OF TEXAS § IN THE COUNTY CRIMINAL
§
V. § COURT NUMBER _________
§
__________________________________ § _________ COUNTY, TEXAS
MOTION FOR DISCOVERY OF EXCULPATORY EVIDENCE
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES the Defendant in the above-styled case and moves for discovery of exculpatory evidence and requests that the State be ordered to provide all exculpatory evidence and, in support thereof, would show the following:
I.
Defendant is charged in this case with the offense of Driving While Intoxicated. Exculpatory evidence in this case includes, but is not limited to, the following:
1. Any evidence that the Defendant was not intoxicated or that could raise a reasonable doubt as to his intoxication.
2. Any evidence that the Defendant had not lost the normal use of his mental faculties.
3. Any evidence that the Defendant had not lost the normal use of his physical faculties.
4. Any evidence that the Defendant did not have an alcohol concentration of 0.08.
5. Any evidence that the Defendant was driving in a safe and prudent manner.
6. Any evidence that the Defendant was able to understand and follow instructions.
7. Any evidence that the Defendant performed satisfactorily on field sobriety tests.
8. Any evidence that the Defendant was able to adequately perform physical tasks.
9. Any statements by any witnesses that Defendant did not appear intoxicated or raising a doubt as to whether the Defendant appeared intoxicated.
10. Any evidence that the Defendant had not drunk excessive alcohol at or near the time of her arrest.
11. Any evidence that the Defendant had not taken any drugs or controlled substances at or near the time of her arrest.
12. Any indication that the police were unable to find physical evidence indicating or supporting intoxication.
13. Any evidence of defects or problems with the intoxilyzer machine.
14. Any evidence of prior false reports or disciplinary problems with the police officers involved.
15. Any evidence of a quota system by the police regarding Driving While Intoxicated arrests.
16. Any evidence of bias or motive by the police in arresting the Defendant for Driving While Intoxicated.
17. Any evidence that could be used to impeach the State's witnesses.
18. Any other evidence that is in any way exculpatory to the Defendant.
II.
This Motion is based upon the Defendant's right to be informed of exculpatory evidence under the U.S. Const., Amends. V and XIV, and Tex. Const., Art. 1, Sect. 19, and Brady v. Maryland, 373 U.S.83, 83 S. Ct. 1194, 10 L.Ed.2d 215 (1963); United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L.Ed.2d 342 (1976); United States v. Bagley, 473 U.S. 667, 105 S. Ct. 3375, 87 L.Ed.2d 481 (1985); Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).
III.
Defendant requests that the prosecuting attorney be ordered to review his file for this evidence and to instruct all State agents, including police officers, to review their records and make a diligent effort to locate exculpatory evidence. Defendant also requests that she receive the information sufficiently prior to trial to be able to prepare to use it in the trial.
WHEREFORE, PREMISES CONSIDERED, Defendant respectfully prays that this Motion be granted and the prosecutor be instructed to look for and disclose to the Defendant exculpatory evidence, as defined in this Motion.
Respectfully submitted,
ATTORNEY FOR DEFENDANT
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing Motion was mailed to the _____ County District Attorney, on this ________ day of __________________, 20___.
____________________________________
ATTORNEY FOR DEFENDANT
O R D E R
ON THIS the ________ day of ________________________, 20______, came on to be heard the foregoing Motion for Discovery of Exculpatory Evidence, and said Motion is hereby GRANTED/DENIED.
____________________________________
J U D G E
0Gary Udashen is a partner in Sorrels & Udashen in Dallas. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization and the National Board of Trial Advocacy. He is a 1980 graduate of SMU School of Law and formerly served as Feature Articles Editor for the Voice for the Defense, the periodical of the Texas Criminal Defense Lawyers Association. Mr. Udashen has spoken at criminal law seminars sponsored by the State Bar of Texas, the Texas Criminal Defense Lawyer’s Association, the Dallas County Criminal Defense Lawyer’s Association and the Dallas Bar Association. Mr. Udashen’s practice is limited to criminal trials and appeals.
1In Ramirez v. State, 2002 WL 1723751 (Tex. App. - Austin), the Court reversed a case based on the prosecution’s failure to correct false testimony from a State’s witness that she was not looking for money based on being a victim of the crime alleged even though she had hired a lawyer to pursue a lawsuit. The Court in Ramirez summarized the law as follows:
“In Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), the Court acknowledged that since Mooney, it has been clear that deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with ‘the rudimentary demands of justice.’ See Pyle v. Kansas, 317 U.S. 213, 216, 63 S.Ct. 177, 87 L.Ed. 214 (1942). And in Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), the Court concluded that the same result obtains when the prosecution, ‘although not soliciting false evidence, allows it to go uncorrected when it appears.’ Id. at 269, 79 S.Ct. 763. When the reliability of a given witness may well be determinative of the guilt or innocence of an accused, nondisclosure of evidence affecting credibility falls within the general rule discussed. Giglio, 405 U.S. at 154, 92 S.Ct. 763. This line of cases has sometimes been referred to as the Mooney-Pyle-Napue line of decisions. See 42 George E. Dix & Robert O. Dawson Texas Practice: Criminal Practice and Procedure §22.51 (2d ed.2002) (hereinafter Dix); see also generally Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967); Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967); Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957); Ex parte Castellano, 863 S.W.2d 476 (Tex. Crim. App. 1993); Ex parte Adams, 768 S.W.2d 281 (Tex. Crim. App. 1989); Davis v. State, 831 S.W.2d 426 (Tex. App. - Austin 1992, no pet.).
Although Brady relied upon Mooney, see Kyles v. Whitley, 514 U.S. 419, 432, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), and there have been suggestions that the Mooney line of cases were incorporated in the later Brady rule, the two lines of decision are distinctive. See United States v. Agurs, 427 U.S. 97, 104, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). It has been stated: Although Brady v. Maryland and its progeny suggest the due process to disclose may have superseded and replaced the prohibition against the use of perjured testimony, this is not the case. The prohibition against the use of perjured testimony remains available to defendants as an alternative to Brady arguments. Mooney contentions are sometimes more attractive to defendants because the criterion for determining the materiality of improperly used perjured testimony is more lenient than that for determining the materiality of improperly suppressed exculpatory evidence under Brady. The difference between the two due process rules is not entirely clear. Some situations will present viable arguments that both were violated. If a defendant is able to establish both that the State knowingly used perjured testimony and that it failed to disclose evidence showing the falsity of the testimony, the defendant is entitled to relief if he or she can show the testimony used is material under the perjured testimony line of decisions and its more relaxed materiality standard. Dix §22.5 (citations omitted)
While appellant relies upon both due process rules, we conclude it is necessary to examine only the Mooney-Pyle-Napue line of decisions to reach the proper disposition of appellant’s contention. We review the record to determine if the State ‘used’ the testimony, whether the testimony was ‘false,’ whether the testimony was ‘knowingly used,’ and if these questions are affirmatively answered, whether there is a reasonable likelihood that the false testimony could have affected the judgment of the jury.”
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Labels: Acquittal, appointed counsel, CriminaL Law, deny the pro se defendant, Ex OParte Axel, Marshall dissents in Srickland v Washington, Texas Fair Defense Act, texas justice anders voucher
posted by dannoynted1 @ 3:57 AM 0 Comments Links to this post
Monday, January 21, 2008
Congress shall have power to enforce this article by appropriate legislation.
Congress shall have power to enforce this article by appropriate legislation.
posted by dannoynted1 @ 11:58 PM 0 Comments Links to this post
Wednesday, January 09, 2008
Appellant was never incarcerated following her technical arrest. Therefore, there was no oppressive pretrial incarceration. Miracle???
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NUMBER 13-99-796-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI
___________________________________________________________________
SYLVIA MARTINEZ , Appellant,
v.
THE STATE OF TEXAS , Appellee.
___________________________________________________________________
On appeal from the 197th District Court
of Cameron County, Texas.
____________________________________________________________________
O P I N I O N
Before Justices Dorsey, Castillo, and Cantu(1)
Opinion by Justice Cantu
Appellant, Sylvia Martinez, was indicted on March 26, 1997 for the offense of theft (welfare fraud). The State alleged that pursuant to a scheme and continuous course of conduct, occurring between May 9, 1996 and September 28, 1996, appellant had obtained medicaid and food stamp benefits and aid to families with dependent children benefits through deception, i.e. by failing to disclose that she was employed during the time she received the benefits.
Appellant was not arrested until August 30, 1999, almost thirty months after the return of the indictment. On September 13, 1999, she filed a motion to dismiss based on a violation of her right to a speedy trial. The trial court denied the motion and appellant, thereafter, entered a guilty plea. Adjudication was deferred and appellant was placed on community supervision for a period of three years. In a single contention, appellant now appeals the trial court's denial of her motion to dismiss. We affirm.
During 1996, appellant, claiming to be unemployed, filled out an application and applied for benefits from the Texas Department of Human Services (hereinafter Department). As a result of the application being approved, appellant received assistance for a number of months. Thereafter, while receiving benefits, appellant obtained temporary employment with Wolverton Realty assisting with the agency's bookkeeping. Subsequently, appellant was interviewed by an investigator for the Department about her employment with Wolverton and a statement was obtained from appellant. No further action was taken by the State until March 26, 1997, when an indictment was returned by a Cameron County Grand Jury. A post indictment bond was set at $5,000.00 on April 4, 1997 and a capias and precept were issued on April 7, 1997. No further action appears of record(2) until August 18, 1999 when a notice of arraignment was mailed to appellant at 1150 E. Adams, Brownsville, Texas 78520 c/o the Community Development Corporation of Beeville. The notice advised appellant to appear for arraignment on September 2, 1999. On August 27, 1999 appellant appeared at a designated place where she executed a pretrial bond, requested a court appointed attorney and advised the court that she had already consulted with an attorney. At that time she provided an address of 591 N. Milam, San Benito, Texas 78586. The request for court-appointed attorney was approved by the trial court on August 30, 1999, the same day appellant was technically arrested and served with a copy of the indictment. Appellant was not, however, processed through jail.(3)
On September 2, 1999, appellant, with counsel, appeared for arraignment and entered her plea of "not guilty", obtained an announcement setting for October 1, 1999 and a trial on the merits setting for October 4, 1999. On September 13, 1999 appellant filed her motion to dismiss, which was heard on October 5, 1999.
Appellant provided the only testimony presented to the trial court. According to appellant, she was first made aware of the indictment when she received notice of a pending arraignment by mail delivered to her place of employment the latter part of August of 1999. She claimed that she was very embarrassed because up to this point she was totally unaware of any pending charges against her.
Appellant stated that she had been living in the Port Isabel and Laguna Heights area since March of 1997, but that she had recently moved to San Benito. She claimed a life-long permanent mailing address of Box 5205, Port Isabel, Texas 78578, which she insisted was the same address as 1637 North Shore Drive. She also claimed addresses at 618 Michigan Street and 1100 Highway 100 in Laguna Heights for a portion of the period immediately prior to moving to San Benito. During this period appellant was pursuing child support assistance through the Attorney General's Office and was receiving child support payments through the District Clerk's Office. She also had her minor child enrolled with the Cameron County Indigent Health Care program. Appellant vehemently denied ever trying to evade law enforcement in anyway.
Appellant remembered applying with the Department in 1996 for benefits but denied having word for word recollection of the event. She recalled receiving benefits for a short time but claimed her memory had faded because she tended to put those things behind her.
During cross-examination appellant demonstrated clear recollection of why she had made application for assistance in the first place and admitted that examining the application would help refresh her memory. She had no problem recalling her employment with Wolverton Realty and receiving payment by checks, but insisted that she was temporary help and not a full-time employee.
Although appellant could not recall the name of the investigator with the Department, she clearly remembered the incident involving the investigation.
The State did not offer any testimony at the hearing. However, the trial court commented after denying the motion:
The Court:....When this court took office, when I became judge of the 197th, none of these cases had been arraigned at all. The court had not set any of them down for any type of hearing. So it's not like we have a case in which the person was arraigned and then failed to appear and nothing was done to procure the appearance of the person.
When I first came on board, after I had been here for a while, then I reviewed to see what cases this court was behind on. All of these cases then came to light. On none of them had the court set them down for arraignment at all. I do not know why the court did not set them down. I just know that once I set them down for arraignment, then the people received notice, and they all came in. So based on that, apparently it was the court's problem or the court's mistake in not setting these down at all, and it had nothing to do with the prosecution. But I do not know why the prior judge, the prior court did not set them.
Appellant expressly invoked her right to a speedy trial under both the State and Federal Constitutions as well as under Article 1.05 of the Texas Code of Criminal Procedure. The right to a speedy trial is guaranteed by the Sixth Amendment as applied to the states by the Fourteenth Amendment. Barker v. Wingo, 407 U.S.514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972);Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970); Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed. 2d 607 (1969); Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). In addition, Article I, sec. 10 of the Texas Constitution guarantees the accused in all criminal prosecutions the right to a speedy public trial. See also, Article 1.05, Tex. Code Crim. Proc.. Although the Texas and Federal rights to a speedy trial are separate and distinct, interpretation and application of the Sixth Amendment right to a speedy trial by the Federal courts has served as a useful guide to the interpretation of the Texas constitutional right to a speedy trial by Texas courts. See Chapman v. Evans, 744 S.W.2d 133 (Tex.Crim.App. 1988);Pierce v. State, 921 S.W.2d 291, 293 (Tex.App.-Corpus Christi 1996, no pet.).
In determining whether an accused was denied her right to a speedy trial, we apply the balancing test set out by the United States Supreme Court in Barker v. Wingo, 407 U.S. at 530-33. The factors we consider are: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of the right; and (4) the prejudice to the defendant resulting from the delay. See id. No single factor is a "necessary or sufficient condition to the finding" of a speedy trial violation, and these factors "must be considered together with such other circumstances as may be relevant." Id. This balancing test requires that we conduct a bifurcated assessment of the trial court's decision. We review the factual components for abuse of discretion and the legal components of the court's decision de novo. See State v. Munoz, 991 S.W.2d 818, 821 (Tex.Crim.App.1999)
LENGTH OF DELAY
The defendant has the burden of first demonstrating that sufficient delay has occurred to require application of the Barker balancing test. See Johnson v. State, 975 S.W.2d 644,649 (Tex.App.-El Paso 1998, pet ref'd.). The length of delay for purposes of speedy trial analysis is generally measured from the time a defendant is arrested or formally charged until the time of trial. United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); Harris v. State, 827 S.W.2d 949, 956 (Tex.Crim.App.1992), cert. denied, 506 U.S. 942, 113 S.Ct. 381, 121 L.Ed.2d 292 (1992). There is no per se length of delay that automatically constitutes a violation of the right to a speedy trial. Hull v. State, 699 S.W.2d 220, 221 (Tex.Crim.App. 1985) The length of delay must be examined on a case by case basis, Chapman, 744 S.W.2d at 136 and constitutes our first inquiry. See Barker, 407 U.S. at 530, 92 S.Ct. 2182. A finding of a "presumptively prejudicial" delay is a necessary precursor to our inquiry into the remaining Barker factors. Doggett v. United States, 505 U.S. 647, 652, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992) (citing Barker, 407 U.S.at 530-31, 92 S.Ct. 2182); "Presumptive prejudice" does not "necessarily indicate a statistical probability of prejudice; it simply marks the point at which courts deem the delay unreasonable enough to trigger the Barker inquiry." State v Munoz, 991 S.W.2d at 821-22 (citing Doggett, 505 U.S. at 652 fn.1, 112 S.Ct. at 2691,fn.1, 120 L.Ed.2d at 528 fn.1 (1992). Texas courts have generally found a delay beyond eight months to be presumptively prejudicial, thus triggering further analysis of speedy trial claims. See Harris v. State, supra at 956; Knox v. State, 934 S.W.2d 678, 681 (Tex.Crim.App.1996)
Almost thirty months passed between the return of the indictment and appellant's technical arrest. We believe this is a sufficient length of time to require a speedy trial inquiry.
REASON FOR THE DELAY
Once the defendant has demonstrated "presumptive prejudice" the initial burden of justifying a lengthy delay is upon the State. See Turner v. State, 545 S.W.2d 133, 137-38 (Tex.Crim.App. 1976); Emery v. State, 881 S.W.2d 702, 708 (Tex.Crim.App. 1994).
Both the trial court and prosecution are under a positive duty to prevent unreasonable delay. See Chapman v. Evans, supra. at 137.
Intentional prosecutorial delay should weigh heavily against the State in the analysis. More "neutral" reasons for delay such as negligence or overcrowded court dockets are also weighed against the State, although not to the same extent. See Barker, 407 U.S. at 531d, 92 S.Ct. at 2182. Neutral reasons such as negligence or overcrowded courts shall be weighed less heavily against the State, "but nevertheless shall be considered, because the ultimate responsibility for such circumstances must rest with the government rather than the defendant." Id. In examining the delay, different weight should be assigned to different reasons. Emery, 881 S.W.2d at 708. A record that is silent or containing insufficient reasons to excuse the delay gives rise to a presumption that no valid reason for delay exists. Lott v. State, 951 S.W.2d at 493.
Here the reason for the delay is unknown because the State proffered no explanation for the delay. Moreover, the State made no effort to explain why the arrest warrant issued on April 7, 1997 was not executed until August 30, 1999. Nor is there any indication that Cameron County took any steps to contact appellant even as she participated in county sponsored programs. These circumstances weigh against the State and in favor of the appellant.
At the end of the evidentiary hearing, the trial court attempted to justify the delay by shifting the blame to the predecessor court's administration. Presumably the outgoing court's personnel negligently failed to set the judicial process in motion for a number of cases after indictments were returned. We treat the trial court's explanation as a neutral reason weighed against the State because ultimately responsibility, for even neutral reasons, rests with the State. We conclude that the delay should be attributed to the State alone.
ASSERTION OF THE RIGHT
The third factor under Barker is the defendant's assertion of the right to a speedy trial. Appellant's assertion of her speedy trial right is entitled to strong evidentiary weight in determining whether she was deprived of the right. See Barker, 407 U.S. at 531-32, 92 S.Ct. at 2182. Conversely, a failure to assert the right in a timely and persistent manner indicates that she did not really want a speedy trial. See Emery, 881 S.W.2d at 709. In such a case, this factor must be weighed against the defendant. See Sinclair v. State, 894 S.W.2d 437, 440 (Tex.App.-Austin, 1995, no pet.). The record is clear that the only pretrial action taken by appellant was her appearance for arraignment, the obtaining of a trial date and the filing of her motion seeking dismissal of the case for denial of a speedy trial. Clearly appellant never sought a speedy trial, as her actions demonstrate only the desire to obtain a dismissal. The State argues, and we agree, that this failure to request a speedy trial tends to attenuate the strength of appellant's claim. See Phillips v. State, 650 S.W.2d 396, 401 (Tex.Crim.App.1983). However, a defendant has no duty to bring himself to trial. See Barker, 407 U.S. at 527. The primary responsibility rests with the courts and prosecutors to assure that cases are brought to trial. Id. at 529. Because appellant was unaware that she had been indicted for over 29 months, she can hardly be blamed for not earlier asserting her right to be afforded a speedy trial. Cf. Pierce v. State, 921 S.W.2d at 295. ( A defendant cannot be penalized for invoking his speedy trial right only after arrest.); State v. Perkins, 911 S.W.2d 548, 553 (Tex.App.-Fort Worth 1995, no pet.) (A defendant has no burden to demand a speedy trial at his arrest or before he learned about his arraignment date.).(4) An accused cannot be faulted for failing to assert a right he did not know he was entitled to. See Phillips, 650 S.W.2d at 400. We assess appellant's assertion of the right to a speedy trial in light of her total conduct. See Burgett v. State, 865 S.W.2d 594, 598 (Tex.App.-Fort Worth 1993, pet. ref'd).
In the instant case appellant filed her motion seeking dismissal barely eleven days after obtaining counsel and being arraigned. Considering that the State waited almost thirty months to arrest the appellant, her assertion of her right to a speedy trial can hardly be criticized as untimely. The third Barker factor weighs heavily in favor of the appellant.
PREJUDICE TO THE APPELLANT
The final Barker factor to consider is prejudice to the accused. The prejudice factor must be assessed in the light of the interests of defendants which the speedy trial right was designed to protect: (1) to prevent oppressive pretrial incarceration; (2) to minimize anxiety and concern of the accused; and (3) to limit the possibility that the defense will be impaired. SeeHarris v. State, 827 S.W.2d at 957. Of these subfactors, "the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system." Barker, 407 U.S. at 532-33, 92 S.Ct. at 2193-94.
A defendant has the burden to make some showing of "prejudice" although a showing of "'actual prejudice'' is not required.See State v. Munoz, 991 S.W.2d at 826 (citing Harris v. State, 489 S.W.2d at 308. When the defendant makes a "prima facie showing of prejudice," the State carries "'the obligation of proving that the accused suffered no serious prejudice beyond that which ensued from the ordinary and inevitable delay.'" Id. (citing Ex parte McKenzie, 491 S.W.2d 122, 123 (Tex.Crim.App. 1973)
Appellant was never incarcerated following her technical arrest. Therefore, there was no oppressive pretrial incarceration. She offered no evidence that she had suffered either anxiety or concern other than a feeling of embarrassment upon receiving notice of her pending arraignment at her place of employment.
Appellant testified that her memory concerning the events of the offense had faded to the point that she did not have any recollection of what information she had included in her application for benefits and, therefore, she could not tell whether her application had been altered. Moreover, she claimed to have no recollection of the names of either the Department investigator that interviewed her and took her statement or the state employee that took her application for benefits.
Under cross-examination appellant admitted remembering making application for benefits and receiving them for a short period. She recalled being unemployed at the time of the application and subsequently accepting temporary work at Wolverton Realty while receiving benefits. She further remembered doing bookkeeping for the agency and being paid with agency checks, although insisting that she was never actually an employee subjected to employee deductions. She agreed that the cancelled checks would assist her in establishing dates and amounts earned. Appellant further acknowledged that examination of the application would assist her in recalling details not otherwise remembered. She had no problem remembering the purpose of the interview with the Department's investigator, but insisted she could not recall his name. She claimed no recollection of the statement she gave, but again acknowledged that an examination of the instrument would prove helpful. Additionally, appellant disclosed that the whereabouts of the owner of the Wolverton Realty, Judy Wolverton, was not a problem because Wolverton had been her landlord the past three years.
Appellant offered no evidence that the availability of any potential witnesses was compromised as a result of the delay. In fact, she failed to mention the existence of any defensive witnesses.
It is clear from the testimony presented to the court that appellant's contemplated defense merely denied the existence of an employer-employee relationship. Our examination of her entire testimony does not support the conclusion that her lack of memory prejudiced her defense to any degree. The record does not disclose that appellant's attorney conducted any meaningful pretrial discovery prior to the hearing in an effort to ameliorate any harm from memory loss. However, at the oral arguments on submission of the case on appeal, counsel admitted that he had full access to the State's file under an open file policy. An examination of the stipulated evidence subequently admitted at the guilty plea clearly demonstrates that much of the memory loss was not inevitable and that discoverable documentary evidence was available to assist appellant in reconstructing any of the claimed concerns she expressed at the hearing. Cf. Harlan v. State, 975 S.W. 2d 387, 391 (Tex.App.-Tyler 1998, pet ref'd.)
CONCLUSION
Balancing the factors set forth in Barker v. Wingo, the weight tilts substantially against appellant's assertion of a violation of her constitutional right to a speedy trial. A dismissal by the trial court was not warranted. Appellant's sole issue before this court is overruled. We affirm the judgment of the trial court.
ANTONIO G. CANTU
Justice
Do not publish. Tex. R. App. P. 47.3.
Opinion delivered and filed this the
12th day of April, 2001.
1. Senior Justice Antonio G. Cantu assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. §74.003 (Vernon 1998).
2. 2 During the hearing on appellant's motion to dismiss, counsel requested that the trial court take judicial notice of the court's entire file. We draw some of the facts from the same documents brought to the court's attention.
3. 3 Appellant testified that she had not spent any time in jail as a result of the arrest.
4. 4 Although it can be argued that appellant should have made her demand for a speedy trial at the arraignment, she cannot be faulted for failing to do so inasmuch as she was not afforded court- appointed counsel until the very date of arraignment.
Labels: Acquittal, appointed counsel, Citizens against corrupt judges, Grant the States Petition but always deny the pro se defendant, Marshall dissents in Srickland v Washington, Texas Fair Defense Act
posted by dannoynted1 @ 12:04 AM 0 Comments Links to this post
Sunday, December 16, 2007
All those TYC "clients" fund "machine" and by golly they will be tried as adults or denied 6th amendment, but Delay will get paid with out Delay!
Chisme is not verdad, but it would be prudent to tell all of you Medicaid coverage is bankrolled by the government to the tune of $600 dollars per recipient /per month.
Now you do the math.
Right John?
Malicious Prosecutor.....your damn right it is personal!
http://stxv.blogspot.com/
Labels: Acquittal, appointed counsel, Citizens against corrupt judges, Civil Law, CriminaL Law, Ex OParte Axel, Marshall dissents in Srickland v Washington
posted by dannoynted1 @ 3:17 AM 1 Comments Links to this post
Sunday, November 25, 2007
The Mootness of this Act is the Joke of the ABA~Texas Justice~ $$$$$$$
Breach of confidence
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Tort law
Part of the common law series
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The tort of breach of confidence, is a common law tort that protects private information that is conveyed in confidence. A claim for breach of confidence typically requires the information to be of a confidential nature, which was communicated in confidence, and was disclosed to the detriment of the claimant.
Establishing breach of confidentiality depends on proving the existence and breach of a duty of confidentiality. Courts in the US look at the nature of the relationship between the parties. Most commonly, breach of confidentiality applies to the patient-physician relationship but it can also apply to relationships involving banks, hospitals, insurance companies.
Labels: appointed counsel, Ex OParte Axel, indigent, Judicial Process, Marshall dissents in Srickland v Washington, texas justice anders voucher
posted by dannoynted1 @ 1:13 AM 0 Comments Links to this post
"Evidence willfully withheld from disclosure under a discovery order should be excluded from evidence." (5) When reviewing a trial judge's decision to admit or exclude evidence, No wonder we are embarrassed,exclude evidence legally then the opine is evidence of the the truth of the matter asserted was exculpatory.
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