SURVIVING PRE- TRIAL HEARINGS

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1 SURVIVING PRE- TRIAL HEARINGS Sherry M. Statman Austin Municipal Court Most Judges would rather be chased by hungry zombies Goals 1 IDENTIFY LEGAL AUTHORITY 2 DISTINGUISH PRE-TRIAL MATTERS FROM PRE-TRIAL HEARINGS 3 DISCUSS TYPES OF MOTIONS TYPICALLY HEARD 4 PROVIDE TOOLS FOR SIMPLIFYING HEARINGS

2 Value of Pre-trial Hearings Make dispositive rulings before a trial date Narrow the issues for trial Give parties deadlines to raise certain issues and take some pressure off the judge Legal Authority Art authorizes the court to set any criminal case for a pre-trial hearing* Can be by motion of the party or the court s own motion Order should direct the defendant, his attorney and the prosecutor to appear. Defendant s presence is mandatory at all pre-trial proceedings Defendant can t waive his presence per Warren v. State, 804 SW 2d 597 (Tex. App. Houston (1 st District) PRE-TRIAL MATTERS ARRAIGNMENT ENTERING PLEAS APPEARANCE DOCKETS (OFTEN USED INTERCHANGEABLY WITH THE TERM PRE-TRIAL)

3 PRE-TRIAL MOTIONS Continuance Motions to Dismiss Exception to substance or form of information Motion to Suppress Discovery Motion for Appointment of Interpreter Motion to Recuse or Disqualify Speedy Trial Entrapment And. Motion for Change of Venue State V. Bernie Tiede Tillery v. State 24 Tex. Ct. App. 251; S.W. 842, 1887 James Tillery was charged with the shooting of Dr. J. N. Allison. This stemmed from an argument whereby Dr. Allison said the Tillery was not worthy to be looked upon as a gentleman and Tillery pulled Allison s beard. Tillery later shot Allison in broad daylight on the main street of Longview. An indictment was filed in Gregg County in November of 1884 but had to be moved to Harrison County. Why you may ask?

4 VENUE Because the City Marshal killed the County Attorney in a drunken brawl outside a saloon during the trial Who wants a pre-trial? Generally, there are three categories of defendants who want a pre-trial hearing: 1. Defendants and Defense Attorneys who genuinely need information or have a valid legal issue 2. Folks who are clueless about procedure and want to talk to a prosecutor about resolving the case 3. Those who feel they have a sworn duty to harass the system Most Common Motions 1. Continuances 2. Motions to Suppress 3. Discovery of Tangible Items 4. Motions to Quash 5. Motions of Dismiss 6. Incoherent Sovereign Citizen filings

5 Notice of pre-trial Art Sec. 1: Defendant shall have at least 10 days notice in which to raise or file the matters listed Art Sec. 2: Any matters not raised or filed seven days before the hearing are WAIVED and can t be raised except by leave of court for good cause shown. Local rules can establish a limit on the number of pretrial hearings that a Defendant can request. Notice Art Sec. 3, Notice can be by: Announcement in open court to parties Personal service to parties Mail by the clerk sent at least 6 days prior to parties State is not required to show the letter was received, just that it was timely mailed. Hearing procedure Defense Counsel has the right to open and conclude argument in all motions submitted by the defense (Art ) Witnesses can be subpoenaed (Art ) Burden of proof is on the movant

6 Procedure Can motions be written or oral? Art pleadings may be oral or in writing as the court may direct BUT Art : - All motions to set aside, special pleas and exceptions shall be in writing. - You can establish local rules to require pleadings in writing Continuances Art Sec. (5) Tendered by either state or defense Usually in writing Most can be ruled on in writing Wide Discretion Local rules generally govern timelines Discovery Art Sec. 1 (8) & Generally refers to a motion requesting the State to produce Defendant s written statements, photographs, tangible objects and other evidence material to the defense that is in the care, custody or control of the state. Can be dispositive if not produced.

7 S.B aka Michael Morton Act Takes effect January 1, 2014 and radically changes most discovery Motion is no longer required merely a timely request directly to the State Good cause is no longer required State SHALL produce offense reports, written or recorded statements and other non-privileged materials. Effect of Morton Act State must disclose exculpatory or Brady materials Duty to disclose is on-going through and after the trial Before a plea or trial, the parties are required to sign a statement regarding what was requested and what was produced. A public sanction is required for a substantiated grievance for failure to disclose on the part of a prosecutor. Production If the state withholds or redacts documents, the prosecutor must disclose that a portion is being withheld/redacted Motion to Compel requires a hearing to determine if the withholding or redacting is justified This can be dispositive, too Typical sanction is that the state cannot use the evidence it failed to produce

8 Discovery of Tangible Items Art (a) and (b), Brady v. Maryland and the Michael Morton Act. Generally, everything that is not attorney work product or investigator work product State is not required to generate reports, etc. not already in existence. Production and inspection time and manner up to the state unless ordered by court Care, Custody or Control? Actual requests in a motion involving an expired registration citation: 1. Investigation, maintenance and repair reports pertaining to this case or other photo enforcement cases that allegedly occurred within one month before and one month after the alleged violation in this case. 2. A copy of the City s uniform guidelines for screening and issuing violations for the processing and storage of confidential information, As effective on the date of the alleged violation. Motion to Suppress Was the reason for the stop/probable cause for a search valid? U.S. Constitution, 4 th Amendment Art Texas Constitution, Art. I. Section 10 Hearing is most likely evidentiary and will require witnesses Also one of the few matters in our courts that are appealable by the State

9 Example Motion to Suppress One summer night, Austin Police department gets an anonymous call that was happening in the parking lot of a certain grocery store. No particular vehicle or person was described. Drinking, what drinking? The anonymous tip was not detailed (Alabama v. White, 496 U.S. 325, 1990) Merely possessing and ice chest does not equal a reason to suspect criminal activity. The reason for the stop was no longer an offense. Motion to Quash This is the complaint that the complaint is defective. The true an sole use of a complaint is to inform the defendant of the charges against him. Governed by Art which lists the requisites of a complaint.

10 Time limit for Motion to Quash Art (f): A defendant must raise this objection before the date of the trial. If it is not raised, the defense forfeits the right to object. + Art Sec. 2: pre-trial matters must be raised at least 7 days before trial = A Motion to Quash must be filed at least 7 days before a hearing or IT IS WAIVED. Motion to Dismiss Dismissal must be based on statutory or constitutional grounds, which are generally: Double jeopardy Prior conviction or acquittal Statute of limitations has expired Court does not have jurisdiction No such violation exists Sovereign Motions

11 Your laws don t apply to me. Oath? The prosecutor must have an officer s oath on file. If there isn t one, the case must be dismissed. Art. 16, Sec 1 of the Texas Constitution of 1876 requires elected and appointed officers to sign an anti-bribery oath. Assistant City Attorneys are not elected, appointed or confirmed. No indictment/information Class C misdemeanors are fine only offenses as opposed to offenses punishable by imprisonment in the penitentiary. Therefore, indictment by a Grand Jury is not required. Texas Constitution, Bill of Rights, Section 10. Art establishes that a complaint is the charging instrument to be used in Justice and Municipal Court.

12 A County or District Attorney must prosecute Art establishes that municipal court prosecutions shall be conducted by the City Attorney of the municipality in which the court is located or the County Attorney of the county in which the municipality is located if the county so desires. Apparently, the County Attorney is just not that in to you You must appoint me a lawyer! Art (c): lawyer must appointed when punishment may result in confinement and in any other criminal proceeding if the court concludes that the interests of justice require representation. No automatic right to counsel Not engaged in transportation No. C-1-CR ,29 in Travis County: Appellant posited the notion that the laws governing traffic did not apply to him because he was traveling vaiticly upon the public right of way Defendant was not driving or operating a vehicle, motor vehicle, commercial motor vehicle or any other commercial use machine upon the highway.

13 Chaos in the streets Appellants views concerning this field of the law are, to say the least, unusual. It is patent nonsense to assert that the speed limits and licensing requirements for motor vehicles apply only to commercial travelers. If that were the case, we would have chaos in our streets. Everyone would be able to drive at whatever speed he chose and to stop or not stop at red lights the death toll would be substantial. Appellant is incorrect. The rules of the road apply to all travelers in pickup trucks who are driving down Enfield Road in Austin, Texas on a morning in August. -J. David Phillips, Presiding Judge I was not magistrated! I was also not arrested, but don t let that get in the way of a good rant. Duties under Art attach after someone is taken into custody, i.e. ARRESTED. Officers have the right under Terry v. Ohio, 392 U.S. 1 (1968) to temporarily detain someone during a traffic stop. Effectively, traffic stops are not arrests. Affidavits or Statements Sovereigns will often submit affidavits and statements which are often long rants on how they were done wrong by the evil (insert one: officer, prosecutor, court). It seems to be a procedural confusion as to when and where pre-filed testimony is accepted. A motion has to ask for relief or something to be a motion.

14 Summary Review and revise your local rules ifnecessary: Time limits? Page limits? Font size? Rule on continuances in writing if possible. Enforce timelines and don t get ambushed by armfuls of paper. You have wide latitude to give someone a second bite at the apple on waived issues IF there s good cause. Review your motions before the hearing: divide the wheat from the chaff.