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ScottyMacEsq
ScottyMacEsq, Lawyer
Category: Criminal Law
Satisfied Customers: 11912
Experience:  Licensed Texas General Practice Attorney
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explanation of notice of intent to destroy evidence and waiver

Resolved Question:

explanation of "notice of intent to destroy evidence and waiver of preservation and art. 38.39 rights"
Submitted: 5 years ago.
Category: Criminal Law
Expert:  ScottyMacEsq replied 5 years ago.
Can you tell me what is the context? Is this an ongoing litigation?
Customer: replied 5 years ago.

No, litigation is over, case was settled with deferred adjudication and everything is current. Below is actual context of case records:

 

On 09/22/06 is the entry I am referring to. I do not recall any accusation of having any intent to destroy evidence so I did not know if this was a general term used when a plea is entered and finalized or what?

06/16/2006
Friday

8:00am

* ARRAIGNMENT *
07/14/2006Friday8:00am* ANNOUNCEMENT HEARING *
08/18/2006Friday8:00am* ANNOUNCEMENT HEARING *
08/25/2006Friday8:00am* ANNOUNCEMENT HEARING *
09/22/2006Friday9:00am* PLEA HEARING *
10/20/2006Friday9:00am* FINAL SENTENCING *
11/03/2006Friday10:00am* FINAL SENTENCING *

Events and Orders of the Court

10/24/2006

COURT SETTING INFORMATION SHEET
09/25/2006COURT SETTING INFORMATION SHEET
09/22/2006TRIAL COURT'S CERTIFICATION OF DEFENDANT'S RIGHT OF APPEAL
09/22/2006COURT'S ADMONITION OF STATUTORY AND CONSTITUTIONAL RIGHTS AND DEFENDANT'S ACKNOWLEDGMENT
09/22/2006NOTICE OF INTENT TO DESTROY EVIDENCE AND WAIVER OF PRESERVATION AND ART. 38.39 RIGHTS
09/22/2006WAIVER OF JURY
09/22/2006PLEA BARGAIN AGREEMENT
08/25/2006COURT SETTING INFORMATION SHEET
08/21/2006COURT SETTING INFORMATION SHEET
07/17/2006COURT SETTING INFORMATION SHEET
06/16/2006COURT SETTING INFORMATION SHEET
06/16/2006WAIVER OF ARRAIGNMENT RIGHTS
06/01/2006LETTER FROM COURT REGARDING SETTING
05/16/2006RETURN CAPIAS/PRECEPT
POSTED BOND IN COLLIN CO
02/27/2006ORDER TRANSFERRING CASE(S) FROM THE 362ND DISTRICT COURT TO THE
158TH
02/17/2006CAPIAS AND PRECEPT ISSUED
02/16/2006True Bill of Indictment
$5000

Expert:  ScottyMacEsq replied 5 years ago.
This is not about you destroying evidence, but about the state. The state holds onto evidence that is gathered at crimes. Needless to say, this can constrain space, and rather than building more buildings to house it all in, they would rather destroy the evidence that they no longer require for use in their prosecutions.

What this means is that when evidence is in the hands of the state, they have to give you the opportunity to object before they destroy it. They are not going to destroy evidence, even though trial is over, without either your consent, your lack of objection, or a court order. If you have a theory that you can be exonerated under, such as "a man with one arm did it" then you should object to this. But if you do not object, then you waive your protections under this statute to have the evidence preserved.

Ultimately, you would only object if you believe that the evidence could one day help your case. If you agree that you are guilty, and agree with the sentence, etc..., then you don't realy have to object.

I hope this clears things up a bit. Good luck to you!
Customer: replied 5 years ago.
So then what you are saying is that this specific entry and verbage is used in ALL cases and is NOT targeted at ME specifically, rather, every case that has physical evidence, i.e. documents, etc. that is specifically what Article 38.39 is for. Permission for the STATE to destroy evidence. Is that correct?
Expert:  ScottyMacEsq replied 5 years ago.
Actually, it only applies to evidence containing biological material. It can be found in Texas Code of Criminal Procedure Article 38.43 (it was renumbered, but the courts and lawyers all know what Article 38.39 rights refer to).

It is not targeted at you specifically, though, but does apply to all cases where there is some sort of biological material (this can be blood samples for a DWI, semen samples, heck even a fingernail or piece of hair, so long as it is "biological"). This is a common motion and notice, so don't worry about it.

Here's the statute so you can better understand what rights you have.

Art. 38.43. PRESERVATION OF EVIDENCE CONTAINING BIOLOGICAL MATERIAL. (a) In a criminal case in which a defendant is convicted, the attorney representing the state, a clerk, or any other officer in possession of evidence described by Subsection (b) shall ensure the preservation of the evidence.

(b) This article applies to evidence that:

(1) was in the possession of the state during the prosecution of the case; and

(2) at the time of conviction was known to contain biological material that if subjected to scientific testing would more likely than not:

(A) establish the identity of the person committing the offense; or

(B) exclude a person from the group of persons who could have committed the offense.

(c) Except as provided by Subsection (d), material required to be preserved under this article must be preserved:

(1) until the inmate is executed, dies, or is released on parole, if the defendant was convicted of a capital felony; or

(2) until the defendant dies, completes the defendant's sentence, or is released on parole or mandatory supervision, if the defendant is sentenced to a term of confinement or imprisonment.

(d) The attorney representing the state, clerk, or other officer in possession of evidence described by Subsection (b) may destroy the evidence, but only if the attorney, clerk, or officer by mail notifies the defendant, the last attorney of record for the defendant, and the convicting court of the decision to destroy the evidence and a written objection is not received by the attorney, clerk, or officer from the defendant, attorney of record, or court before the 91st day after the later of the following dates:

(1) the date on which the attorney representing the state, clerk, or other officer receives proof that the defendant received notice of the planned destruction of evidence; or

(2) the date on which notice of the planned destruction of evidence is mailed to the last attorney of record for the defendant.

(e) To the extent of any conflict, this article controls over Article 2.21.

Added by Acts 2001, 77th Leg., ch. 2, Sec. 1, eff. April 5, 2001.

Renumbered from Code of Criminal Procedure, Art/Sec 38.39 by Acts 2005, 79th Leg., Ch. 728, Sec. 23.001(8), eff. September 1, 2005.
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Category: Criminal Law
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Experience: Licensed Texas General Practice Attorney
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