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It has been held “a Defendant in a criminal case does not have a general right to discover evidence in the possession of the state prior to the introduction of the evidence at trial.” Reeves v. State, 632 S.W.2d 662, (Tex.App. Amarillo, 1982); Quinones v. State, 592 S.W.2d 933 (Tex.Crim.App. 1980); cert. den. 449 U.S. 893 (1980).
I am putting the motion here that you would need to file. You'll need to file it, get a hearing, and have the judge rule on it. Now one thing is that unless you're an attorney, you cannot represent your wife in this matter. She actually has to be the one that files it, "pro se", or an attorney licensed in the State of Texas.
Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please select the "accept" button. If you have already clicked "accept", or if you will in the future, please let me know so I can track these for my own reports and customer satisfaction stats. Thank you, and again, good luck to you!
Here's the motion that you would need to get the court to order the production.
THE STATE OF TEXAS ) IN COUNTY CRIMINAL
VS. ) COURT NUMBER ______
__________________________ ) _______ COUNTY, TEXAS MOTION FOR DISCOVERY
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW ______________________, Defendant in the above styled and numbered cause, under the authority of Article 39.14 C.C.P., and makes this Motion for Discovery and in support thereof would show the Court as follows:
All confessions, admissions and statements, in writing, signed by the Defendant, in connection with this offense with which the Defendant is hereby indicted.
All confessions, admissions and statements oral in nature and set down and preserved under Article 38.22 of the Texas Code of Criminal Procedure made by the Defendant in connection with the offense with which the Defendant is hereby indicted.
All oral, written and recorded statements of the Defendant and memoranda of said statements made to any investigating officer or any member of any law enforcement agency or to any third party now in the possession of or within the knowledge of the District Attorney's Office or any agent thereof, including any law enforcement agency.
All oral and written statements made by the Defendant before the Grand Jury in connection with the offense with which the Defendant is herein indicted.
All handwritten and typed notes made by all law enforcement officers prior to, during and after the Defendant was interrogated, or, in the alternative, that all said handwritten and typed notes be accurately preserved and maintained by said law enforcement officers until the trial of this cause in order that same may be available to the court and the jury on the issue of the voluntariness of the Defendant's statements.
All handwritten and typed notes of the police officers who investigated and participated in any manner in this case.
The names of all suspects who were interrogated and/or arrested in conjunction with this offense, including their respective names, addresses, telephone numbers, occupation, physical descriptions and photographs (or mug shots).
Any statements, whether written or oral, by the Defendant, all Co-defendant(s), and Co-Conspirator(s), either indicted or unindicted, which the State of Texas intends to introduce to show the existence of a conspiracy or evidence of acting in concert, the date of such statements or evidence, and the time such statements or evidence took place.
All statements made by any party or witness to this alleged offense in the possession of or within the knowledge of the District Attorney or any of his agents, including any law enforcement agency, whether such statements were written or oral, which might in any manner be material to the innocence of the Defendant or to the punishment, if any, to be set in this case.
A written transcription of the testimony of all of the witnesses who appeared and testified before the Grand Jury regarding the facts of this case, or, in the alternative, that the Court order the prosecutor to immediately order said transcription of all of said testimony in order that it will be available and in the possession of the prosecutor at time of trial. In further support of this request, the Defendant submits the following particularized needs:
a. To cross-examine and impeach said witness
b. To discover prior inconsistent statements
c. To test the credibility of said witness
d. To test recollection of said witness
All objects and tangible property alleged by the State to have been taken or used by the Defendant or any Co-Conspirator during the course of the commission of the offense with which the Defendant is herein indicted, including but not limited to the following:
All weapons alleged by the State to have been used by the Defendant, each Co-Defendant and each Co-Conspirator in the commission of the offense with which Defendant is herein indicted.
All articles of clothing, including shirts, pants, undergarments and shoes allegedly belonging to the Defendant and to the decedent.
All contraband drugs, controlled substances and paraphernalia which were seized as a result of the investigation of this case in order to permit the Defendant to have an opportunity to examine the same and to obtain an expert to examine, test, weigh and inspect said evidence. Detmering v. State
, 481 S.W.2d 863 (Tex.Cr.App. 1972); Terrell v. State
, 521 S.W.2d 618 (Tex.Cr.App. 1975).
All documents, papers, books, accounts, letters, objects and tangible things which are the property of the Defendant and which are in the possession, custody and control of the prosecutor.
All documents, papers, books, accounts, letters, objects and tangible things which are in the possession, custody and control of the prosecutor as a result of the investigation in this case and which are material evidence as to the Defendant's innocence or as to the punishment, if any.
The written waiver alleged by the State to have been signed by the Defendant concerning the Defendant's right to counsel prior to the making of any written and oral statements by the Defendant.
The written consent to search the Defendant's person, residence or automobile alleged by the State to have been signed by the Defendant prior to the search and seizure of said person, residence or automobile.
The search warrant and arrest warrant and affidavits in support thereof used by law enforcement authorities to enter the Defendant's person, residence or automobile.
All stenographic and telephonic recordings and transcriptions thereof of all information and evidence obtained by means of electronic eavesdropping, surveillance or wiretapping by law enforcement officers and all test results run on said recordings in order to permit the Defendant to adequately prepare for trial.
All photographs, drawings and charts made by the agent of the District Attorney's Office or any law enforcement agency that were made with reference to this case, including, but not limited to, all photographs, drawings, and charts of the scene of the crime and of the Defendant's arrest.
All photographs of the decedent, whether taken at the scene of the alleged offense, at the scene where the decedent was discovered or at the time the autopsy was performed.
All photographic negative prints whether or not heretofore developed by the agent of the District Attorney or any law enforcement agency that were made in the investigation of this case.
All photographs of suspects that were shown to all witnesses to the alleged offense concerning the identity of the perpetrator of the offense for which the Defendant has been indicted.
All photographs of the Defendant which were used in conjunction with the investigation of this case, including any photograph which may have been shown by any law enforcement officer to any potential witness in this case.
All fingerprints, palm prints, footprints, and reports conducted with respect to said prints alleged by the State to have been made by the Defendant, each Co-Defendant and each Co-Conspirator in the commission of the offense with which the Defendant is herein indicted.
All reports of scientific tests, experiments and comparisons and all other reports of experts and the name and address of each such person who made such report or performed such test, experiment or comparison, including, but not limited to, reports pertaining to weapons, bullets, shots, waddings, cartridge cases, tool marks, blood, breath, hair, threads, drugs and controlled substances.
All autopsy reports based on an examination of the decedent.
All medical reports which show or tend to show the physical condition of the decedent or complainant at or about the time of the commission of the alleged offense.
The blood type of the decedent or complainant.
All medical and psychiatric reports submitted by any doctor, psychiatrist or psychologist at the request of the State or the Court in conjunction with any and all examinations of the Defendant, the decedent, and all State's witnesses.
All evidence as to the incompetency of the Defendant to stand trial that is in the possession of or within the knowledge of the District Attorney's Office or any of its agents.
All evidence as to the insanity of the Defendant at the time of the alleged commission of the offense charged herein that is in the possession of or within the knowledge of the District Attorney's Office or any of its agents.
All photographs made of all line-ups conducted in this case, including the line-up wherein the Defendant was one of the participants.
The police form used by law enforcement authorities to identify all participants in the line-up wherein the Defendant was a participant, which form includes information as to each participant in the line-up and as to each witness who was present at said line-up.
A copy of the witness line-up identification form given to each witness who attended the line-up wherein the Defendant was a participant in this case.
All photographs of line-ups, police forms to identify line-up participants and witnesses line-up identification forms similar to those called upon under XXXIV, XXXV and XXXVI above, which were used by the State or any of its agencies and which reflect that the Defendant was identified as the perpetrator of any criminal offense other than the offense for which the Defendant is presently on trial in this cause.
The prior criminal record of the following persons:
a. The Defendant
b. Each Co-Defendant
c. Each Co-Conspirator
d. The Decedent or alleged injured party
e. Each Informant
f. All State's witnesses
These records should include all arrests and convictions, whether as a juvenile or as an adult, including, but not limited to:
a. All felony convictions and all misdemeanor convictions involving moral turpitude which have occurred in the last ten years
b. All felony convictions and all misdemeanor convictions involving moral turpitude which have resulted in a suspended sentence which has not been set aside
c. All felony and misdemeanor cases that have resulted in the person being placed on probation, wherein the period of probation has not expired
d. All pending felony and misdemeanor offenses
The Defendant requests that the State be ordered to request the proper law enforcement authorities to obtain a full and complete criminal record of all such witnesses and reveal same to the Defendant, and the State should not be permitted to respond to this motion by advising the Court that the prosecutor does not have any indication in his file of any prior criminal record of such witnesses.
A written specification of all prior misconduct and evidence of extraneous offense(s) which the State intends to use against the Defendant, which specification should include the date, time, place, and nature of such misconduct and/or extraneous offense(s), in order to fully apprise and notify the Defendant of all such evidence and thus permit the Defendant adequate time to challenge its relevancy, materiality, and probative value prior to trial and to prepare a defense as to such State's evidence.
The prosecutor should be required to identify the location of recovery of all of the items provided to the Defendant pursuant to this motion for discovery. Such information is necessary to determine whether or not such evidence is objectionable at the time of trial on the grounds that the evidence has not been properly proved or that the evidence was taken in violation of the Defendant's rights under the laws and Constitution of the State of Texas and the Constitution of the United States.
That the State forthwith make inquiry and disclose all of the following within the possession, custody or control of the State or the existence of which is known, or by the exercise of due diligence could become known, to the State:
a. All records and information showing a prior criminal record in state or federal court of all state's witnesses. Prior criminal records shall mean (a) all convictions for felonies and misdemeanors, including, but not limited to, those misdemeanors involving crimes of moral turpitude; (b) all pleas of guilty or nolo contendere which resulted in dispositions of "deferred adjudication"; (c) all felony, misdemeanor, and juvenile arrests; (d) all juvenile adjudications.
b. All records and information revealing prior misconduct or bad acts attributed to all State's witnesses.
c. All "consideration" or promises of "consideration" given to or on behalf of all State's witnesses or expected or hoped for by said State witnesses. By "consideration," the Defendant refers to absolutely anything, whether bargained for or not, which arguably could be of value or use to a witness or to persons of concern to the witness, including, but not limited to, formal or informal, direct or indirect; leniency, favorable treatment or recommendations or other assistance with respect to any pending or potential criminal action, parole, probation, commutation of sentence, pardon, clemency, civil or administrative dispute; criminal, civil, or tax immunity grants of letters of non-prosecution; relief from forfeitures; payments of money, rewards or fees, witness fees and special witness fees; provision of food, clothing, shelter, or housing arrangements, transportation, legal services, employment or other benefits; placement in a "witness protection program"; informer status of the witness; and anything else which arguably could reveal an interest, motive, or bias in the witness in favor of the State or against the defense or act as an inducement to testify or to color testimony.
d. All documents, records, memoranda and notes reflecting "consideration" as set forth in Paragraph c. above. See definition of "documents" on the attachment to this motion.
e. Any and all threats, express or implied, direct or indirect, or other coercion made or directed against the witness, criminal prosecutions, investigations, or potential prosecutions pending or which could be brought against the witness, any probationary, parole, deferred prosecution or custodial status of the witness, and any civil, tax court, court of claims, administrative, or other pending or potential legal disputes or transactions with plaintiff or over which plaintiff has real, apparent or perceived influence.
f. The existence and identification of each occasion on which the witness has testified before any court, grand jury, or other tribunal or body or otherwise officially narrated in relation to the defendants, the investigation, or the facts of this case.
g. The existence and identification of each occasion on which each witness who was or is an informer, accomplice, co-conspirator, or expert has testified before any court, grand jury, or other tribunal or body.
h. Any and all personnel files for the witness, the existence and identity of all federal, state and local government files for the witness and the existence and identity of all official internal affairs, internal investigation or public integrity investigation files relating or connected with each witness who was or is a law enforcement officer.
i. Any and all other records and/or information which arguably could be helpful or useful to the defense in impeaching or otherwise detracting from the probative force of the State's evidence or which arguably could lead to such records or information.
j. The same records and information requested above with respect to each non-witness declarant whose statements are offered in evidence.
The true name and location of the informer upon whose information was predicated any part of the evidence of the Defendant's guilt or innocence, or the probable cause for the Defendant's arrest, search and/or seizure of evidence in this case, or the extent of the Defendant's participation in the alleged offense, if any, such as would mitigate the extent of punishment imposed in this cause; as grounds therefor the Defendant states upon information and belief the following:
a. The informer in this cause: (1) participated in the commission of the alleged offense; and/or (2) is criminally responsible as a party to the offense with which the Defendant is charged; and/or (3) took a material part in bringing about the offense with which the Defendant is charged; and/or (4) was present at the time of the occurrence of the offense with which the Defendant is charged.
b. The informer is a material and probative witness as to (1) the transactions; and/or (2) whether or not the Defendant knowingly committed the offense; and/or (3) the issue of the existence of this Defendant's defense herein of entrapment as a matter of law and/or fact; and/or (4) the main issue of the guilt or innocence herein of the Defendant; and/or (5) if the Defendant is found guilty, the proper assessment of punishment because of the informer's knowledge of the entire transaction and the extent of the Defendant's participation therein as compared to the involvement of the other Co-Defendants and Co-Conspirators.
c. The informer's identity is necessary to the Defendant's presentation of proof that the officers: (1) did not rely upon credible information supplied by a reliable informer in this search and arrest or (2) were mistaken in identifying this Defendant as the accused.
d. A serious discrepancy in the testimony of a crucial State witness during the trial herein will necessitate the informer's testimony to corroborate or to impeach or to disprove the State's allegations herein of probable cause and of the Defendant's guilt.
e. The identity, address and present location of said informer is not privileged information. The Defendant's request is reasonable and the District Attorney has always been in possession of said information and can readily furnish same to the Defendant but has always failed and refused to do so, notwithstanding previous requests for said information.
f. The Defendant does not actually know the true identity of the address or present location of said informant nor through the exercise of reasonable diligence could the Defendant learn the identity, address and present location of said informer.
g. To deprive the Defendant of the identity of the informer, whose true identity and location the Defendant does not know, will deny Defendant the rights to (1) present witnesses in his favor; (2) present his defense at both the trial and the preliminary probable cause hearing herein; (3) prove his innocence at the trial herein; (4) cross-examine and confront his accusers; (5) effective assistance of counsel; (6) a fair trial; and (7) if the Defendant is found guilty, a proper sentence, all in violation of the Defendant's rights under the Fourth, Fifth and Fourteenth Amendments to the United States Constitution, the Constitution of the State of Texas and Article 1.04 C.C.P.
h. The testimony of the said informant provides the "main bulk" of the evidence to be used to establish probable cause of action. Disclosure of the informer's identity and testimony is significant to the Defendant's ability to prepare and present his defense to the charges alleged herein.
i. This is a continuing motion requesting said disclosure of the informant's identity prior to trial and, if denied at that time then at the earliest time the State or any of its agencies or employees is made aware that this motion is meritorious and should have been granted.
In further support hereof, the Defendant would show this Court that the production of all of the above evidence is the only fair and proper method of showing the good faith of the District Attorney in this case, the truth of all such matters which the District Attorney intends to introduce into evidence against the Defendant, and to insure that the Defendant has adequate time to inspect, examine, and test all of such evidence for its respective validity, authenticity and identity.
In support of this motion, the Defendant would show the Court as follows:
a. The items requested are in the exclusive possession, custody and control of the State of Texas or the United States Government by and through its agents, the police of the prosecuting attorney's office, and the Defendant has no other means of ascertaining the disclosures requested.
b. The items requested are not privileged.
c. The items and information are material to this cause and the issues of guilt or innocence and punishment to be determined in this cause.
d. The Defendant cannot safely go to trial without such information and inspection, nor can the Defendant adequately prepare the defense to the charges against him.
e. That absent such discovery the Defendant's rights under Article 39.14, C.C.P., Article I, §10, of the Constitution of the State of Texas, and the Fourth, Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States of America will be violated to his irreparable injury and thus deprive the Defendant of a fair trial herein.
WHEREFORE, PREMISES CONSIDERED, the Defendant respectfully prays that this Honorable Court will grant this the Defendant's Motion For Discovery in all things, or in the alternative, that this Court will set this matter down for a hearing prior to trial on the merits and that at such hearing this motion will be in all things granted.
ATTORNEY FOR DEFENDANT CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Motion was mailed to __________ County District Attorney's Office, ____________________, __________, Texas on this _____ day of __________, _____.
"Documents" shall mean all written, printed, typed, recorded or graphic matter of every type and description, however and by whomever prepared, produced, disseminated, or made, in any form now or formerly in the possession, custody or control of the State or any of its agencies, including, but not limited to: (a) letters, correspondence, telegrams, telexes, memoranda, records, minutes, contracts, agreements, communications, microfilm, bulletins, circulars, pamphlets, studies, reports, notices, diaries, summaries, books, messages, instructions, work assignments, notes, notebooks, drafts, data sheets, data compilations, computer data compilations and computer runs, worksheets or workpages, public and governmental filings, financial statements, opinions, and other writings; (b) magnetic, photographic, electronic, and sound recordings; (c) financial records; (d) memorandum of telephone or personal conversations or conferences, analyses, agreements, results of investigations, stenographer's notebooks, desk calendars, appointment books, diaries, and time sheets or logs; and (e) computer input data, computer output data or other materials.
Cause No. __________________ )
THE STATE OF TEXAS ) IN ___ DISTRICT
VS. ) COURT OF
________________________ ) _____________ COUNTY, TEXAS ORDER
On this _____ day of __________ _____, came to be heard the foregoing Motion For Discovery, and the same is hereby: GRANTED
and the Court hereby orders the District Attorney to produce and permit the inspection of and the copying and/or photographing of, and examination of, by or on behalf of the Defendant, all the designated items in said Motion; GRANTED
and the Court hereby sets this Motion for a hearing to be held on the _____ day of __________, ____ at _____.m.; GRANTED
in part and the Court hereby orders the District Attorney to produce and permit the inspection of and the copying and/or photographing of, and examination of, by or on behalf of the Defendant, all items in said Motion whose numbers have been circled; DENIED
, to which action of the Court the Defendant duly excepts.