Appellant's court-appointed counsel filed a brief in which he has concluded that the appeal presents no legally non-frivolous question. (1) Appellant's brief meets the requirements of Anders. (2) Counsel has informed the Court that he notified appellant of the following: (1) after reviewing the record, he found no meritorious issues for appeal; (2) he is requesting to withdraw as counsel; and (3) appellant has the right to review the appellate record and to file a pro se brief. (3) Counsel has forwarded appellant a copy of the Anders brief and a copy of his motion to withdraw as attorney of record. More than thirty days have passed, and appellant has not filed any pro se brief. Is appellant "legally trained"?
......the COA prove it?
Did the appellant get to read the reporter's record? No typos?
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NUMBER 13-07-00620-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
PATRICK EARL BOURGEOIS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 252nd District Court of Jefferson County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Benavides
Memorandum Opinion by Justice Garza
Appellant, Patrick Earl Bourgeois, was charged by indictment with burglary of a building other than a habitation, a state jail felony. See Tex. Penal Code Ann. § 30.02(a), (c)(1) (Vernon 2003). Pursuant to a plea agreement with the State, appellant pleaded guilty to the offense. In accordance with the plea agreement, the trial court deferred any finding of guilt, placed appellant on probation for four years, and assessed a $1,000 fine. On September 7, 2007, the trial court: (1) revoked appellant's probation in response to the State's motion to revoke probation and appellant's admission that he violated a condition of his probation; and (2) found appellant guilty of burglary of a building other than a habitation. (1) The trial court subsequently sentenced appellant to two years' confinement in the state jail and assessed $500.00 in restitution. See id. § 12.35(a) (Vernon Supp. 2007) (stating that "an individual adjudged guilty of a state jail felony shall be punished by confinement in a state jail for any term of not more than two years or less than 180 days . . . ."). Appellant now appeals the judgment of the trial court.
I. Anders Brief
Pursuant to Anders v. California, 386 U.S. 738, 744 (1967), Bourgeois's court-appointed appellate counsel has filed a brief with this Court, stating that his review of the record yields "no reversible error committed by the trial court and no arguable issues." Although counsel's brief does not advance any arguable grounds of error, it does present a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced on appeal. See Stafford v. State, 813 S.W.2d 503, 510 n.3 (Tex. Crim. App. 1991).
In compliance with High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. 1978), appellant's counsel has carefully discussed why, under controlling authority, there are no errors in the trial court's judgment. Counsel noted that appellant was properly admonished at the time of the plea and counsel has not indicated that appellant entered into the plea involuntarily. Counsel has informed this Court that he has: (1) examined the record and found no arguable grounds to advance on appeal, (2) served a copy of the brief on appellant, and (3) informed appellant of his right to review the record and to file a pro se brief. See Anders, 386 U.S. at 744; Stafford, 813 S.W.2d at 510 n.3. On October 29, 2007, appellant's counsel filed a motion for extension of time to allow appellant time to file a pro se brief with this Court if he so desired. We granted the motion and set the deadline for November 25, 2007. Subsequently, appellant filed a pro se motion for extension of time to file his pro se brief. Specifically, appellant requested the deadline be moved to December 25, 2007. We granted appellant's motion for extension. The deadline has passed and appellant has not filed a pro se brief.
II. Independent Review
Upon receiving an Anders brief, we must conduct a full examination of all the proceedings to determine whether the case is wholly frivolous. Penson v. Ohio, 488 U.S. 75, 80 (1988). We have reviewed the entire record and counsel's brief and have found nothing that would arguably support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 826-28 (Tex. Crim. App. 2005) ("Due to the nature of Anders briefs, by indicating in the opinion that it considered the issues raised in the briefs and reviewed the record for reversible error but found none, the court of appeals met the requirement of Texas Rule of Appellate Procedure 47.1."); Stafford, 813 S.W.2d at 509. Accordingly, we affirm the judgment of the trial court.
III. Motion to Withdraw
In accordance with Anders, appellant's attorney has asked this Court for permission to withdraw as counsel for appellant. See Anders, 386 U.S. at 744. We grant his motion to withdraw. We further order counsel to notify appellant of the disposition of this appeal and the availability of discretionary review. See Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (per curiam).
DORI CONTRERAS GARZA,
Justice
Do not publish.
Tex. R. App. P. 47.2(b).
Memorandum Opinion delivered and
filed this the 22nd day of May, 2008.
1. Appellant entered a plea of "True" to violating his probation by "failing to provide verification of attending and successfully completing the SAFPF [Substance Abuse Felony Punishment Facility] program."
Showing posts with label Hurt. Show all posts
Showing posts with label Hurt. Show all posts
Monday, May 26, 2008
Sunday, May 11, 2008
An Anders brief must provide references to both legal precedent and pages in the record to demonstrate why there are no arguable grounds to be advan..
Do tell me how a Pro Se defendant is able to review the record without access to read the transcript? If his "court appointed attorney", "the trial court" or the "appellate court" does nor provide a "true and correct copy" of the record.?
Appellant's court-appointed counsel filed a brief in which he has concluded that the appeal presents no legally non-frivolous question. (1) Appellant's brief meets the requirements of Anders. (2) Counsel has informed the Court that he notified appellant of the following: (1) after reviewing the record, he found no meritorious issues for appeal; (2) he is requesting to withdraw as counsel; and (3) appellant has the right to review the appellate record and to file a pro se brief. (3) Counsel has forwarded appellant a copy of the Anders brief and a copy of his motion to withdraw as attorney of record. More than thirty days have passed, and appellant has not filed any pro se brief. Is appellant "legally trained"?
Appellant's court-appointed counsel filed a brief in which he has concluded that the appeal presents no legally non-frivolous question. (1) Appellant's brief meets the requirements of Anders. (2) Counsel has informed the Court that he notified appellant of the following: (1) after reviewing the record, he found no meritorious issues for appeal; (2) he is requesting to withdraw as counsel; and (3) appellant has the right to review the appellate record and to file a pro se brief. (3) Counsel has forwarded appellant a copy of the Anders brief and a copy of his motion to withdraw as attorney of record. More than thirty days have passed, and appellant has not filed any pro se brief. Is appellant "legally trained"?
Tuesday, March 25, 2008
provide Applicant's trial counsel with a second opportunity to respond to Applicant's claim of ineffective assistance of counsel. The trial court may
Appellant's court-appointed counsel filed a brief in which he has concluded that the appeal presents no legally non-frivolous question. (1) Appellant's brief meets the requirements of Anders. (2) Counsel has informed the Court that he notified appellant of the following: (1) after reviewing the record, he found no meritorious issues for appeal; (2) he is requesting to withdraw as counsel; and (3) appellant has the right to review the appellate record and to file a pro se brief. (3) Counsel has forwarded appellant a copy of the Anders brief and a copy of his motion to withdraw as attorney of record. More than thirty days have passed, and appellant has not filed any pro se brief. Is appellant "legally trained"?
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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-62,073-02
EX PARTE STEPHEN EDWARD TATRO, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 00-07-10358 IN THE 155TH DISTRICT COURT
FROM WALLER COUNTY
Per curiam.
O R D E R
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of murder and sentenced to fifty years' imprisonment. The First Court of Appeals affirmed his conviction. Tatro v. State, No. 01-01-00523-CR (Tex. App.-Houston [1st Dist.], delivered April 17, 2003, pet. ref'd).
On March 29, 2006, we remanded this application and directed the trial court to determine whether trial counsel rendered ineffective assistance for not challenging the State's hearsay objections and whether Applicant was entitled to a lesser-included offense instruction. On remand, after appointing counsel and holding an evidentiary hearing, the trial court concluded, among other things, that trial counsel rendered ineffective assistance and that the State engaged in prosecutorial misconduct. The trial court recommended that Applicant be granted relief.
We believe, however, that the record is not sufficient and that the trial court should make further findings of fact. Specifically, the trial court shall determine: (1) what facts were in Lino Garza's statement and why these facts were material, see Brady v. Maryland, 373 U.S. 83 (1963); (2) what other witness statements were not disclosed, what facts were in these statements, and why these facts were material; (3) whether the destruction of ballistics evidence was motivated by bad faith, see Arizona v. Youngblood, 488 U.S. 51 (1988); (4) what facts were not presented as a result of the State's objections to testimony from Glenn White, Patricia Barrett, Richard Tatro, Richard Casper, Ken Young, and Al Barrett, and how these facts would have affected the result of the proceeding; (5) how the testimony of a document examiner would have affected the result of the proceeding; (6) what specific evidence in the record showed that Applicant was entitled to instructions on self-defense, defense of property, and criminally negligent homicide; (7) how Ray Pederson's unimpeached testimony and the State's "double misconduct" prejudiced Applicant; (8) how counsel's requests for witness statements was deficient; (9) whether Applicant was indigent when he requested the appointment of experts and whether he was prejudiced, given that he requested $600 and received $500; and (10) whether the explanations in counsel's affidavit are credible.
The trial court may provide Applicant's trial counsel with a second opportunity to respond to Applicant's claim of ineffective assistance of counsel. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection. Id.
Applicant appears to be represented by counsel. If not and the trial court elects to hold a second evidentiary hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent him at the hearing. Tex. Code Crim. Proc. art. 26.04.
The trial court shall then make further findings of fact as to whether the performance of Applicant's trial counsel was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. The trial court shall also make further findings of fact as to whether the State engaged in prosecutorial misconduct. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's claims for habeas corpus relief.
This application will be held in abeyance until the trial court has resolved the fact issues. The issues shall be resolved within 90 days of this order. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. A supplemental transcript containing all affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or deposition, along with the trial court's supplemental findings of fact and conclusions of law, shall be returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.
Filed: March 5, 2008.
Do not publish.
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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-62,073-02
EX PARTE STEPHEN EDWARD TATRO, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 00-07-10358 IN THE 155TH DISTRICT COURT
FROM WALLER COUNTY
Per curiam.
O R D E R
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of murder and sentenced to fifty years' imprisonment. The First Court of Appeals affirmed his conviction. Tatro v. State, No. 01-01-00523-CR (Tex. App.-Houston [1st Dist.], delivered April 17, 2003, pet. ref'd).
On March 29, 2006, we remanded this application and directed the trial court to determine whether trial counsel rendered ineffective assistance for not challenging the State's hearsay objections and whether Applicant was entitled to a lesser-included offense instruction. On remand, after appointing counsel and holding an evidentiary hearing, the trial court concluded, among other things, that trial counsel rendered ineffective assistance and that the State engaged in prosecutorial misconduct. The trial court recommended that Applicant be granted relief.
We believe, however, that the record is not sufficient and that the trial court should make further findings of fact. Specifically, the trial court shall determine: (1) what facts were in Lino Garza's statement and why these facts were material, see Brady v. Maryland, 373 U.S. 83 (1963); (2) what other witness statements were not disclosed, what facts were in these statements, and why these facts were material; (3) whether the destruction of ballistics evidence was motivated by bad faith, see Arizona v. Youngblood, 488 U.S. 51 (1988); (4) what facts were not presented as a result of the State's objections to testimony from Glenn White, Patricia Barrett, Richard Tatro, Richard Casper, Ken Young, and Al Barrett, and how these facts would have affected the result of the proceeding; (5) how the testimony of a document examiner would have affected the result of the proceeding; (6) what specific evidence in the record showed that Applicant was entitled to instructions on self-defense, defense of property, and criminally negligent homicide; (7) how Ray Pederson's unimpeached testimony and the State's "double misconduct" prejudiced Applicant; (8) how counsel's requests for witness statements was deficient; (9) whether Applicant was indigent when he requested the appointment of experts and whether he was prejudiced, given that he requested $600 and received $500; and (10) whether the explanations in counsel's affidavit are credible.
The trial court may provide Applicant's trial counsel with a second opportunity to respond to Applicant's claim of ineffective assistance of counsel. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection. Id.
Applicant appears to be represented by counsel. If not and the trial court elects to hold a second evidentiary hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent him at the hearing. Tex. Code Crim. Proc. art. 26.04.
The trial court shall then make further findings of fact as to whether the performance of Applicant's trial counsel was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. The trial court shall also make further findings of fact as to whether the State engaged in prosecutorial misconduct. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's claims for habeas corpus relief.
This application will be held in abeyance until the trial court has resolved the fact issues. The issues shall be resolved within 90 days of this order. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. A supplemental transcript containing all affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or deposition, along with the trial court's supplemental findings of fact and conclusions of law, shall be returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.
Filed: March 5, 2008.
Do not publish.
Friday, January 25, 2008
Who is paying? Appointed Counsel works for those who pay in dollar ~dollar bill~ Where my money at?:
Appellant's court-appointed counsel filed a brief in which he has concluded that the appeal presents no legally non-frivolous question. (1) Appellant's brief meets the requirements of Anders. (2) Counsel has informed the Court that he notified appellant of the following: (1) after reviewing the record, he found no meritorious issues for appeal; (2) he is requesting to withdraw as counsel; and (3) appellant has the right to review the appellate record and to file a pro se brief. (3) Counsel has forwarded appellant a copy of the Anders brief and a copy of his motion to withdraw as attorney of record. More than thirty days have passed, and appellant has not filed any pro se brief. Is appellant "legally trained"?
Baker's Texas Penal Code Handbook includes the full text of the Texas Penal Code as amended through the 79th Session of the Texas Legislature, and contains over 16,000 case notes from reported Texas court decisions, constituting a one-volume annotated Texas Penal Code. For more information visit the Baker's Texas Penal Code Handbook information page. The 2006 Edition of Baker's Texas Penal Code Handbook contains 162 case notes under Chapter 36. Use our order form to place your order today.
No amendments to this provision were enacted at the 79th Regular Session of the Texas Legisature (2005).
2004 Texas Penal Code
TITLE 8. OFFENSES AGAINST PUBLIC ADMINISTRATION
CHAPTER 36. BRIBERY AND CORRUPT INFLUENCE
FastLaws™ Home
Penal Code Table of Contents
Chapter 36 Table of Contents
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Sec. 36.08. Gift to Public Servant by Person Subject to his Jurisdiction.
(a) A public servant in an agency performing regulatory functions or conducting inspections or investigations commits an offense if he solicits, accepts, or agrees to accept any benefit from a person the public servant knows to be subject to regulation, inspection, or investigation by the public servant or his agency.
(b) A public servant in an agency having custody of prisoners commits an offense if he solicits, accepts, or agrees to accept any benefit from a person the public servant knows to be in his custody or the custody of his agency.
(c) A public servant in an agency carrying on civil or criminal litigation on behalf of government commits an offense if he solicits, accepts, or agrees to accept any benefit from a person against whom the public servant knows litigation is pending or contemplated by the public servant or his agency.
(d) A public servant who exercises discretion in connection with contracts, purchases, payments, claims, or other pecuniary transactions of government commits an offense if he solicits, accepts, or agrees to accept any benefit from a person the public servant knows is interested in or likely to become interested in any contract, purchase, payment, claim, or transaction involving the exercise of his discretion.
(e) A public servant who has judicial or administrative authority, who is employed by or in a tribunal having judicial or administrative authority, or who participates in the enforcement of the tribunal's decision, commits an offense if he solicits, accepts, or agrees to accept any benefit from a person the public servant knows is interested in or likely to become interested in any matter before the public servant or tribunal.
(f) A member of the legislature, the governor, the lieutenant governor, or a person employed by a member of the legislature, the governor, the lieutenant governor, or an agency of the legislature commits an offense if he solicits, accepts, or agrees to accept any benefit from any person.
(g) A public servant who is a hearing examiner employed by an agency performing regulatory functions and who conducts hearings in contested cases commits an offense if the public servant solicits, accepts, or agrees to accept any benefit from any person who is appearing before the agency in a contested case, who is doing business with the agency, or who the public servant knows is interested in any matter before the public servant. The exception provided by Sec. 36.10(b) does not apply to a benefit under this subsection.
(h) An offense under this section is a Class A misdemeanor.
(i) A public servant who receives an unsolicited benefit that the public servant is prohibited from accepting under this section may donate the benefit to a governmental entity that has the authority to accept the gift or may donate the benefit to a recognized tax-exempt charitable organization formed for educational, religious, or scientific purposes.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1975, 64th Leg., p. 915, ch. 342, Sec. 11, eff. Sept. 1, 1975; Acts 1983, 68th Leg., p. 3238, ch. 558, Sec. 5, eff. Sept. 1, 1983; Acts 1991, 72nd Leg., ch. 304, Sec. 4.04, eff. Jan. 1, 1992; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Baker's Texas Penal Code Handbook includes the full text of the Texas Penal Code as amended through the 79th Session of the Texas Legislature, and contains over 16,000 case notes from reported Texas court decisions, constituting a one-volume annotated Texas Penal Code. For more information visit the Baker's Texas Penal Code Handbook information page. The 2006 Edition of Baker's Texas Penal Code Handbook contains 162 case notes under Chapter 36. Use our order form to place your order today.
No amendments to this provision were enacted at the 79th Regular Session of the Texas Legisature (2005).
2004 Texas Penal Code
TITLE 8. OFFENSES AGAINST PUBLIC ADMINISTRATION
CHAPTER 36. BRIBERY AND CORRUPT INFLUENCE
FastLaws™ Home
Penal Code Table of Contents
Chapter 36 Table of Contents
prior provision
next provision
Sec. 36.08. Gift to Public Servant by Person Subject to his Jurisdiction.
(a) A public servant in an agency performing regulatory functions or conducting inspections or investigations commits an offense if he solicits, accepts, or agrees to accept any benefit from a person the public servant knows to be subject to regulation, inspection, or investigation by the public servant or his agency.
(b) A public servant in an agency having custody of prisoners commits an offense if he solicits, accepts, or agrees to accept any benefit from a person the public servant knows to be in his custody or the custody of his agency.
(c) A public servant in an agency carrying on civil or criminal litigation on behalf of government commits an offense if he solicits, accepts, or agrees to accept any benefit from a person against whom the public servant knows litigation is pending or contemplated by the public servant or his agency.
(d) A public servant who exercises discretion in connection with contracts, purchases, payments, claims, or other pecuniary transactions of government commits an offense if he solicits, accepts, or agrees to accept any benefit from a person the public servant knows is interested in or likely to become interested in any contract, purchase, payment, claim, or transaction involving the exercise of his discretion.
(e) A public servant who has judicial or administrative authority, who is employed by or in a tribunal having judicial or administrative authority, or who participates in the enforcement of the tribunal's decision, commits an offense if he solicits, accepts, or agrees to accept any benefit from a person the public servant knows is interested in or likely to become interested in any matter before the public servant or tribunal.
(f) A member of the legislature, the governor, the lieutenant governor, or a person employed by a member of the legislature, the governor, the lieutenant governor, or an agency of the legislature commits an offense if he solicits, accepts, or agrees to accept any benefit from any person.
(g) A public servant who is a hearing examiner employed by an agency performing regulatory functions and who conducts hearings in contested cases commits an offense if the public servant solicits, accepts, or agrees to accept any benefit from any person who is appearing before the agency in a contested case, who is doing business with the agency, or who the public servant knows is interested in any matter before the public servant. The exception provided by Sec. 36.10(b) does not apply to a benefit under this subsection.
(h) An offense under this section is a Class A misdemeanor.
(i) A public servant who receives an unsolicited benefit that the public servant is prohibited from accepting under this section may donate the benefit to a governmental entity that has the authority to accept the gift or may donate the benefit to a recognized tax-exempt charitable organization formed for educational, religious, or scientific purposes.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1975, 64th Leg., p. 915, ch. 342, Sec. 11, eff. Sept. 1, 1975; Acts 1983, 68th Leg., p. 3238, ch. 558, Sec. 5, eff. Sept. 1, 1983; Acts 1991, 72nd Leg., ch. 304, Sec. 4.04, eff. Jan. 1, 1992; Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Wednesday, November 21, 2007
Ander's brief is the lazy lawyers way of saying ...."I get paid for doing nothing"
Appellant's court-appointed counsel filed a brief in which he has concluded that the appeal presents no legally non-frivolous question. (1) Appellant's brief meets the requirements of Anders. (2) Counsel has informed the Court that he notified appellant of the following: (1) after reviewing the record, he found no meritorious issues for appeal; (2) he is requesting to withdraw as counsel; and (3) appellant has the right to review the appellate record and to file a pro se brief. (3) Counsel has forwarded appellant a copy of the Anders brief and a copy of his motion to withdraw as attorney of record. More than thirty days have passed, and appellant has not filed any pro se brief. Is appellant "legally trained"?
Frequently Asked Questions
IN THE 291st CRIMINAL DISTRICT COURT
DALLAS COUNTY, TEXAS
THE STATE OF TEXAS
v.
DAMONS LOUISE
CRIMINAL NUMBER: F0283772
F0202033
DEFENDANT LEWIS’S MOTION AND INCORPORATED
MEMORANDUM FOR PRODUCTION AND INSPECTION OF BRADY MATERIAL AND/OR INFORMATION WHICH MAY LEAD TO EVIDENCE
Defendant DAMONS LOUISE (“Defendant ”) hereby moves this Court, pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and its progeny, to order the government to inquire about and make the following disclosures.
A. SPECIFIC BRADY REQUESTS
The Defendant respectfully requests that the Court order the government to inquire about and to disclose all materials, information, photographs, videos, recordings, records, notes, reports, electronic mail, communication and statements (herein referred to as “information”) known to the Government/State or which may become known, or which through due diligence may be learned from the investigating officers or the witnesses or persons having knowledge of this case, which is exculpatory in nature or favorable to Defendant or may lead to exculpatory or favorable material regarding either guilt or punishment. This includes, but is not limited to the following:
1. Information tending to indicate that Defendant is not guilty of the offenses alleged in the Indictments.
2. Information showing Defendant’s reputation for honesty, integrity, and/or trustworthiness.
3. Information showing the reputation for honesty, integrity, and/or trustworthiness, and/or any criminal record of any witness called by the State, including any complaining witness.
4. Names of any individuals who made an arguably favorable statement about the Defendant, or who indicated to law enforcement that Defendant is not guilty of the crimes alleged in the Indictments, or that the Defendant might not have had the intent to deprive the owner of property or funds or that any appropriation of property or funds was done with the owner’s effective consent or that the value of the property or funds alleged to have been stolen or illegally converted is less then the amounts alleged in the Indictments.
5. Information which arguably could be helpful or useful to the defense in detracting from the probative force of the government’s evidence, including impeachment evidence, or which arguably could lead to such information, including information that the Defendant might not have had the intent to deprive the owner of property or funds or that any appropriation of property or funds was done with the owner’s effective consent or that the value of the property or funds alleged to have been stolen or illegally converted is less then the amounts alleged in the Indictments. This request includes, but is not limited to, the following information, regarding any potential witness, informant or any government agent who has been involved in the investigation of this case:
(a) requests or statements by government agents or employees to any individual or corporation regarding the payment of defendants’ legal fees or expenses;
(b) prior convictions, arrests, misconduct, wrongs or bad acts;
(c) prior or subsequent inconsistent statements;
(d) instructions not to discuss the case with defense counsel;
(e) the mental, emotional, and physical history of Defendant, or any witness,
(f) the use of any lie detector or polygraph tests on any witness and the results;
(g) the use of narcotics or other controlled substances or alcohol;
(h) defect or deficiency of character for truthfulness, including but not limited to the complainant and officers involved in the investigation/arrest of Defendant;
(i) partiality, prejudice, bias, motive, interest or corruption;
(j) any defect or deficiency of capacity in any prospective witness to observe, remember or recount events;
(k) the existence and identification of each occasion on which each witness who was or is an informer, accomplice, or expert, has testified before any court, grand jury, or other tribunal or body;
(l) any benefit to individuals whatsoever in exchange for their cooperation, assistance or testimony, and any incentives paid, promised or discussed with the witness and the witness’s prior history of cooperation with law enforcement;
(m) a threat to prosecute if cooperation was not forthcoming;
(n)a promise or suggestion of leniency, compensation, assurance not to prosecute, or representations with respect to any uncharged misconduct;
(o) the immigration status of any potential government witness or informant who is not a United States citizen;
(p) any probation, parole, deferred adjudication, or deferred government or custodial status;
(q) any pending or potential criminal, civil or administrative investigations, legal disputes or transactions over which the government has real, apparent or perceived influence which could be brought against the witness or friends or relatives of the witness;
B. ARGUMENT
1. Disclosure of Materials.
The settled principles in Brady v. Maryland, 373 U.S. 83 (1963), United States v. Agurs, 427 U.S. 97 (1976), and Kyles v. Whitley, 514 U.S. 419 (1995), instruct that the government may not suppress evidence favorable to a defendant either as direct or impeaching evidence. All documents and information which are exculpatory must be provided to the defense.
Courts have noted that the test is not whether the government attorneys believe the material to be favorable to the defense. Rather, it is whether the material “could fairly be construed as favorable to the defendant and material to the issue of guilt or punishment. . . .” United States v. Partin, 320 F. Supp. 285 ( E.D. La. 1970). Doubts as to whether certain items of evidence or types of information could be construed in the defense’s favor should be resolved in favor of their production to the defense. United States v. Perkins, 383 F. Supp. 922, 930 (N.D. Ohio 1974). Since material containing leads to possible exculpatory evidence must also be produced under Brady, the evidence itself need not be admissible at trial.
All information relating to the credibility of a witness clearly must be provided to the Defendant. United States v. Bagley, 473 U.S. 667 (1985). Under Rule 608(b) of the Fed. R. Evid., the court has discretion to permit a defendant to cross-examine a witness as to specific instances of misconduct -- so called bad acts. The purpose of such testimony is specifically to attack the witness’ character; therefore, the government should be ordered to disclose to the defense any behavior of government witnesses that might arguably constitute such bad acts.
Similarly, the government has an obligation to disclose any and all consideration which is held out to a witness, or which the witness objectively hopes for or anticipates, because such consideration directly gives rise to an inference of interest. United States v. Mayer, 556 F.2d 245 (5 th Cir. 1977). A defendant is also entitled to be advised of any matter which might cause a witness to color his testimony in favor of the government out of fear or interest in self-preservation. Thus, the government must disclose both the stick and the carrot. United States v. Sutton, 542 F.2d 1239 (4 th Cir. 1976). If the government possesses any information which might reveal that anyone became a witness in this case because of any pressure applied to him by any other federal law enforcement or regulatory body, the government should be required to disclose this information.
The evidence of any such representations, which have been made by the government or which the government will make at any future time, is discoverable pursuant to the Due Process Clause of the Fifth and Fourteenth Amendments to the Constitution; and the withholding of any such evidence constitutes a denial to a defendant herein of his constitutionally protected rights to due process and fundamental fairness in the criminal proceedings brought against him. Giglio v. United States, 405 U.S. 150 (1972); Brady, 373 U.S. at 85. Such evidence is not only exculpatory in the sense that it is legitimate grounds for impeachment of any witnesses the government may call to testify against the defendant, Williams v. Dutton 400 F.2d 797 (5 th Cir. 1968), cert. denied, 343 U.S. 1105 (1969), but also is discoverable by a defendant in order to show such witnesses’ bias or prejudice in testifying at trial. Davis v. Alaska, 415 U.S. 308 (1974).
2. Prompt Disclosure.
Moreover, the production of the requested material should be required promptly and not postponed for the following reasons:
If it is to be any use to him at all, common sense dictates that evidence in the Government’s possession favorable to the defendant should be made available to him far enough in advance of trial to allow him sufficient time for its evaluation, preparation, and presentation at trial. Otherwise, the trial might well have to be interrupted for an inordinate length of time until the defendant has had an opportunity to explore all the ramifications of the Government’s disclosure, track down distant witnesses, examine documents or the like. Such probable delay could sensibly be avoided by pre-trial disclosure in those cases where disclosure is called for.
United States v. Partin , 320 F. Supp. 275 ( E.D. La. 1970).
3. Request for Thorough Search.
The prosecutor in this case must search not only for his own files for Brady material, but also the files of other employees of the District Attorney’s Office, including any victim/witness contact personnel, whether paid or volunteers , and any other municipal, county, state or federal agencies involved in this matter, including the U.S. and Texas Securities and Exchange Commission, Texas Attorney General’s Office, Dallas Police Department, the Dallas County Sheriff’s Office, and the United States Department of Justice. See, e.g., Kyles v. Whitney, 514 U.S. 419, 437, 115 S. Ct. 1555, 1567 (1995) (“[T]he individual prosecutor has a duty to learn of any favorable evidence known to the other acting on the government’s behalf in the case, including the police.”); United States v. Wood, 57 F.3d 733, 737 (9 th Cir. 1995) (holding that exculpatory material in the possession of the Food and Drug Administration (“FDA”) files was within the constructive knowledge and possession of the prosecutors because the FDA was involved in the investigation and the FDA was the agency charged with administering the statute at issue); United States v. McVeigh, 954 F. Supp. 1441, 1450 (D. Colo. 1997) (holding that, in their search for Brady material, prosecutors must “inform themselves about everything that is known in all of the archives and all of the data banks of all of the agencies collecting information which could assist in the construction of alternative scenarios to that which they intend to prove at trial”).
C. PRAYER
For these reasons, Defendant Loses requests that the government be required to produce all items enumerated in this Motion.
Dated: May 2, 2006 Respectfully submitted,
David Finn, P.C.
By:
David Finn
MILNER & FINN
2828 North Harwood, Suite 1950
Dallas, Texas 75201
Texas Bar No. 07026900
(214) 651.1121 (telephone)
Counsel for Defendant
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the above and foregoing document has been served, via hand-delivery, upon all counsel of record, as identified below, on May 2, 2006:
Mr. Jeff Bray
Assistant District Attorney Workroom
Dallas County District Attorney’s Office
Dallas, Texas
David Finn
ORDER GRANTING DEFENDANT’S MOTION FOR PRODUCTION AND INSPECTION OF BRADY MATERIAL AND/OR INFORMATION WHICH MAY LEAD TO EVIDENCE
CAME ON for consideration Defendant Loses’s Motion for Production and Inspection of Brady Material and/or Information Which May Lead to Evidence and, upon consideration, the Court is of the opinion that said Motion should be granted.
SO ORDERED this ________ day of _________________, 2003.
__________________________________________
JUDGE SUSAN HAWK
Frequently Asked Questions
IN THE 291st CRIMINAL DISTRICT COURT
DALLAS COUNTY, TEXAS
THE STATE OF TEXAS
v.
DAMONS LOUISE
CRIMINAL NUMBER: F0283772
F0202033
DEFENDANT LEWIS’S MOTION AND INCORPORATED
MEMORANDUM FOR PRODUCTION AND INSPECTION OF BRADY MATERIAL AND/OR INFORMATION WHICH MAY LEAD TO EVIDENCE
Defendant DAMONS LOUISE (“Defendant ”) hereby moves this Court, pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and its progeny, to order the government to inquire about and make the following disclosures.
A. SPECIFIC BRADY REQUESTS
The Defendant respectfully requests that the Court order the government to inquire about and to disclose all materials, information, photographs, videos, recordings, records, notes, reports, electronic mail, communication and statements (herein referred to as “information”) known to the Government/State or which may become known, or which through due diligence may be learned from the investigating officers or the witnesses or persons having knowledge of this case, which is exculpatory in nature or favorable to Defendant or may lead to exculpatory or favorable material regarding either guilt or punishment. This includes, but is not limited to the following:
1. Information tending to indicate that Defendant is not guilty of the offenses alleged in the Indictments.
2. Information showing Defendant’s reputation for honesty, integrity, and/or trustworthiness.
3. Information showing the reputation for honesty, integrity, and/or trustworthiness, and/or any criminal record of any witness called by the State, including any complaining witness.
4. Names of any individuals who made an arguably favorable statement about the Defendant, or who indicated to law enforcement that Defendant is not guilty of the crimes alleged in the Indictments, or that the Defendant might not have had the intent to deprive the owner of property or funds or that any appropriation of property or funds was done with the owner’s effective consent or that the value of the property or funds alleged to have been stolen or illegally converted is less then the amounts alleged in the Indictments.
5. Information which arguably could be helpful or useful to the defense in detracting from the probative force of the government’s evidence, including impeachment evidence, or which arguably could lead to such information, including information that the Defendant might not have had the intent to deprive the owner of property or funds or that any appropriation of property or funds was done with the owner’s effective consent or that the value of the property or funds alleged to have been stolen or illegally converted is less then the amounts alleged in the Indictments. This request includes, but is not limited to, the following information, regarding any potential witness, informant or any government agent who has been involved in the investigation of this case:
(a) requests or statements by government agents or employees to any individual or corporation regarding the payment of defendants’ legal fees or expenses;
(b) prior convictions, arrests, misconduct, wrongs or bad acts;
(c) prior or subsequent inconsistent statements;
(d) instructions not to discuss the case with defense counsel;
(e) the mental, emotional, and physical history of Defendant, or any witness,
(f) the use of any lie detector or polygraph tests on any witness and the results;
(g) the use of narcotics or other controlled substances or alcohol;
(h) defect or deficiency of character for truthfulness, including but not limited to the complainant and officers involved in the investigation/arrest of Defendant;
(i) partiality, prejudice, bias, motive, interest or corruption;
(j) any defect or deficiency of capacity in any prospective witness to observe, remember or recount events;
(k) the existence and identification of each occasion on which each witness who was or is an informer, accomplice, or expert, has testified before any court, grand jury, or other tribunal or body;
(l) any benefit to individuals whatsoever in exchange for their cooperation, assistance or testimony, and any incentives paid, promised or discussed with the witness and the witness’s prior history of cooperation with law enforcement;
(m) a threat to prosecute if cooperation was not forthcoming;
(n)a promise or suggestion of leniency, compensation, assurance not to prosecute, or representations with respect to any uncharged misconduct;
(o) the immigration status of any potential government witness or informant who is not a United States citizen;
(p) any probation, parole, deferred adjudication, or deferred government or custodial status;
(q) any pending or potential criminal, civil or administrative investigations, legal disputes or transactions over which the government has real, apparent or perceived influence which could be brought against the witness or friends or relatives of the witness;
B. ARGUMENT
1. Disclosure of Materials.
The settled principles in Brady v. Maryland, 373 U.S. 83 (1963), United States v. Agurs, 427 U.S. 97 (1976), and Kyles v. Whitley, 514 U.S. 419 (1995), instruct that the government may not suppress evidence favorable to a defendant either as direct or impeaching evidence. All documents and information which are exculpatory must be provided to the defense.
Courts have noted that the test is not whether the government attorneys believe the material to be favorable to the defense. Rather, it is whether the material “could fairly be construed as favorable to the defendant and material to the issue of guilt or punishment. . . .” United States v. Partin, 320 F. Supp. 285 ( E.D. La. 1970). Doubts as to whether certain items of evidence or types of information could be construed in the defense’s favor should be resolved in favor of their production to the defense. United States v. Perkins, 383 F. Supp. 922, 930 (N.D. Ohio 1974). Since material containing leads to possible exculpatory evidence must also be produced under Brady, the evidence itself need not be admissible at trial.
All information relating to the credibility of a witness clearly must be provided to the Defendant. United States v. Bagley, 473 U.S. 667 (1985). Under Rule 608(b) of the Fed. R. Evid., the court has discretion to permit a defendant to cross-examine a witness as to specific instances of misconduct -- so called bad acts. The purpose of such testimony is specifically to attack the witness’ character; therefore, the government should be ordered to disclose to the defense any behavior of government witnesses that might arguably constitute such bad acts.
Similarly, the government has an obligation to disclose any and all consideration which is held out to a witness, or which the witness objectively hopes for or anticipates, because such consideration directly gives rise to an inference of interest. United States v. Mayer, 556 F.2d 245 (5 th Cir. 1977). A defendant is also entitled to be advised of any matter which might cause a witness to color his testimony in favor of the government out of fear or interest in self-preservation. Thus, the government must disclose both the stick and the carrot. United States v. Sutton, 542 F.2d 1239 (4 th Cir. 1976). If the government possesses any information which might reveal that anyone became a witness in this case because of any pressure applied to him by any other federal law enforcement or regulatory body, the government should be required to disclose this information.
The evidence of any such representations, which have been made by the government or which the government will make at any future time, is discoverable pursuant to the Due Process Clause of the Fifth and Fourteenth Amendments to the Constitution; and the withholding of any such evidence constitutes a denial to a defendant herein of his constitutionally protected rights to due process and fundamental fairness in the criminal proceedings brought against him. Giglio v. United States, 405 U.S. 150 (1972); Brady, 373 U.S. at 85. Such evidence is not only exculpatory in the sense that it is legitimate grounds for impeachment of any witnesses the government may call to testify against the defendant, Williams v. Dutton 400 F.2d 797 (5 th Cir. 1968), cert. denied, 343 U.S. 1105 (1969), but also is discoverable by a defendant in order to show such witnesses’ bias or prejudice in testifying at trial. Davis v. Alaska, 415 U.S. 308 (1974).
2. Prompt Disclosure.
Moreover, the production of the requested material should be required promptly and not postponed for the following reasons:
If it is to be any use to him at all, common sense dictates that evidence in the Government’s possession favorable to the defendant should be made available to him far enough in advance of trial to allow him sufficient time for its evaluation, preparation, and presentation at trial. Otherwise, the trial might well have to be interrupted for an inordinate length of time until the defendant has had an opportunity to explore all the ramifications of the Government’s disclosure, track down distant witnesses, examine documents or the like. Such probable delay could sensibly be avoided by pre-trial disclosure in those cases where disclosure is called for.
United States v. Partin , 320 F. Supp. 275 ( E.D. La. 1970).
3. Request for Thorough Search.
The prosecutor in this case must search not only for his own files for Brady material, but also the files of other employees of the District Attorney’s Office, including any victim/witness contact personnel, whether paid or volunteers , and any other municipal, county, state or federal agencies involved in this matter, including the U.S. and Texas Securities and Exchange Commission, Texas Attorney General’s Office, Dallas Police Department, the Dallas County Sheriff’s Office, and the United States Department of Justice. See, e.g., Kyles v. Whitney, 514 U.S. 419, 437, 115 S. Ct. 1555, 1567 (1995) (“[T]he individual prosecutor has a duty to learn of any favorable evidence known to the other acting on the government’s behalf in the case, including the police.”); United States v. Wood, 57 F.3d 733, 737 (9 th Cir. 1995) (holding that exculpatory material in the possession of the Food and Drug Administration (“FDA”) files was within the constructive knowledge and possession of the prosecutors because the FDA was involved in the investigation and the FDA was the agency charged with administering the statute at issue); United States v. McVeigh, 954 F. Supp. 1441, 1450 (D. Colo. 1997) (holding that, in their search for Brady material, prosecutors must “inform themselves about everything that is known in all of the archives and all of the data banks of all of the agencies collecting information which could assist in the construction of alternative scenarios to that which they intend to prove at trial”).
C. PRAYER
For these reasons, Defendant Loses requests that the government be required to produce all items enumerated in this Motion.
Dated: May 2, 2006 Respectfully submitted,
David Finn, P.C.
By:
David Finn
MILNER & FINN
2828 North Harwood, Suite 1950
Dallas, Texas 75201
Texas Bar No. 07026900
(214) 651.1121 (telephone)
Counsel for Defendant
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the above and foregoing document has been served, via hand-delivery, upon all counsel of record, as identified below, on May 2, 2006:
Mr. Jeff Bray
Assistant District Attorney Workroom
Dallas County District Attorney’s Office
Dallas, Texas
David Finn
ORDER GRANTING DEFENDANT’S MOTION FOR PRODUCTION AND INSPECTION OF BRADY MATERIAL AND/OR INFORMATION WHICH MAY LEAD TO EVIDENCE
CAME ON for consideration Defendant Loses’s Motion for Production and Inspection of Brady Material and/or Information Which May Lead to Evidence and, upon consideration, the Court is of the opinion that said Motion should be granted.
SO ORDERED this ________ day of _________________, 2003.
__________________________________________
JUDGE SUSAN HAWK
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