Katie Leininger Assistant City Attorney City of Pearland Objectives By the end of the session, participants will be able to: Identify the types of motions most commonly filed in municipal and justice courts. Determine the appropriate response, if any, to these motions. Recognize what motions should be filed by the State and when they should be filed. Getting to know you Put your hands in the air if: Someone filed a motion and you had no idea how to respond. You’ve actually had a hearing on a motion in your municipal court. You work in a court of record. You wear different hats in different municipal courts. Why file pretrial motions? Resolve contested legal issues before trial Provide clear deadlines to both parties for raising certain issues The court’s holding on a motion may lead to disposition of case without trial Legal basis for pretrial hearing: CCP Art. 28.01 Section 1 Any case may be set for pretrial hearing, by motion of either party or upon the court’s motion “Defendant’s presence is required during any pre‐trial proceeding” (but may be affirmatively waived, 866 S.W.2d 210) Covers a variety of matters, from arraignment to appointment of an interpreter Legal basis for pretrial hearing: CCP Art. 28.01 Section 2 Section 3 –notice may be by Assuming ten days notice to Announcement made in open defendant, any matters not raised court in presence of Δ/counsel or filed seven days before Personal service on Δ/counsel hearing may be waived By mail to Δ/counsel Judge has broad discretion re: Note: if envelope is shown to whether Δ gave notice of intent to raise argument (866 S.W.2d have been properly addressed, 243) stamped, and mailed, State does not have to prove it was received Who files motions? Big Traffic firms Solo/criminal law firms Attorneys “helping out a friend” Pro se defendants Sovereign citizens Prosecutors Who files motions? Big Traffic firms Tend to file same motions in every case May or may not be properly filed (or even relevant) motions May be more or less common in your region Who files motions? Solo/criminal law firms Usually file where/when appropriate May be form motions used in higher level offense, asking for things that aren’t relevant or are unavailable in your court May or may not be proper motions, depending on the attorney Who files motions? Attorney “helping out a friend” (or him/herself) Does not practice criminal law on a regular basis Might be using a case management tool like ProDoc May be irrelevant, badly worded, or improper motions Who files motions? Pro se defendants Sometimes this is an attorney representing him or herself who knows what’s going on in court More often, it’s someone who may want or need some level of hand holding through the court process Usually this person is not familiar with the court system, how to style motions, when he or she is allowed to do what, etc. Who files motions? Everyone’s favorite pro se defendant –the sovereign citizen! Motions are rarely based on Texas/Fifth Circuit law Usually cite civil law, appellate cases from other states, UCC, etc. Fun fact: frequently nobody (including the pro se defendant) has any idea what the motions mean, or what they are actually requesting Common types of defense motions Motion for discovery Motion for new trial Motion to continue Motions in limine Motion to quash Motion to disqualify judge Motion to suppress Motion to dismiss PO Motion to appoint Double jeopardy interpreter Defense motions Motion for discovery (CCP 28.01 Motion to continue (CCP 28.01(5); (8); CCP 39.14) CCP Ch. 29) Duty to disclose? Filed by either party, based on grounds previously not known What do they want? or existing (illness, etc.) Who has it? May be presented/considered at Disclosure prohibited? any time before Δ announces Work product? ready for trial, or after trial Note: requirements are now begins under CCP 29.13 different for pro se and those Motion must be sworn by a with defense counsel person having personal knowledge (CCP 29.08) Defense motions Motion to quash (CCP 28.04) Motion to suppress (CCP Defendant shall be discharged if 28.01(6)) motion is granted Goal of keeping evidence, Defendant may be again testimony, etc. out of trial prosecuted for same offense May include constitutional basis within the statute of limitations for argument (Terry, etc.) Allege: improper charge, State may appeal if granted by complaint contains errors, ofc. court (CCP 44.01) improperly enforcing a law, Allege: improper traffic stop, vagueness, etc. improper search, testimony is hearsay, etc. Defense motions Motion to appoint interpreter Motion for new trial (CCP 45.037) (CCP 28.01(10)) Δ must make motion within five Should be presented 7 days before days after rendition of judgment hearing, or waived (28.01 §2) and sentence BUT Judge may, not later than 10th day CCP 38.30(a) bases it on when judge after date judgment entered, becomes aware witness or Δ doesn’t grant Δ a new trial understand English AND But, court shall grant motion if Gov’t Code 57.002(a) says Court shall properly made w/in 10 days after appoint upon motion of party or request by witness date of judgment in case of bond forfeiture upon FTA (CCP 45.044(c)) Defense motions Motions in limine Motion to disqualify judge (CCP Goal of excluding certain topics, Ch. 30) facts, testimony, etc. b/c prejudicial Judge shall not sit in any case where Must be raised before voir dire, He is the party injured, or outside presence of jury Has been of counsel for either side, or Act as temporary evidentiary ruling Where he’s connected to Δ or injured (subject may still be allowed in later) party by consanguinity or affinity w/in 3rd degree If adverse ruling, get facts on the Note: potential conflict of interest not record using an offer of proof sufficient to DQ a prosecutor or her (outside presence of jury) whole office (877 S.W.2d 469) Defense motions Motions regarding protective orders Double jeopardy (CCP 28.13) (Family Code Title 4) Alleges Δ has already been Courts with jurisdiction over POs adjudicated for the offense at include issue District Court Look at what charge(s) listed on Domestic Relations Court the citation vs. on the complaint Juv. Court w/Dist. Court Jdxn. Stat. County Court Look at what charge(s) disposed Cons. County Court vs. pending Any other court w/express jdxn. over Tex. Fam. Code Title 4 cases Municipal courts are not on the list, so this needs to be filed elsewhere State’s response to defense motions Provide discovery Req’s under Brady (373 U.S. 83 (1963)) Req’s under the Michael Morton Act (CCP 39.14) Req’s under TX Disciplinary Rules of Professional Conduct (Rule 3.09(d)) Written response Oral response Responses to pro se motions Provide discovery Written response Oral response at hearing Set for a hearing to let defendant explain his/her motion to a judge (may obviate need for your written or oral response) Many sovereign citizen motions can be disposed without responding to every point raised Other things to remember: The decision as to whether to hold a pretrial hearing or not is at the discretion of the trial court’s judge. Moore v. State, 700 S.W.2d 193 (Tex. Crim. App. 1985), Rules of Evidence do not apply in suppression hearings. Granados v. State, 85 S.W.3d 217 (Tex. Crim. App. 2002). Defense counsel has the right to open and close argument upon all defense pleadings presented to the court. (CCP 28.02) See CCP 28.10 and 28.11 for rules of amending a charge. Types of motions filed by State Motion to quash Notice of intent to offer evidence Motion to dismiss of extraneous crimes State’s witness list Notice of intent to offer evidence State’s motion for notice of of conviction of prev. crim. acts defense expert witness Notice to consolidate cases Motion to vacate judgment Motion to compel fingerprints Motions in limine Motion to adjudicate guilt State’s motions Motion to quash Motion to dismiss (CCP 32.02) May be used if wrong charge Requires judicial consent, and filed, other problems with charge usually a prosecutor request Defendant may be again This may mean you cannot refile prosecuted for same offense Possible reasons within the statute of limitations Witness/victim/officer doesn’t want to proceed with charges Insufficient evidence to prove up allegations “In the interest of justice” catch‐all State’s motions State’s witness list State’s motion for notice of On motion of party, other party defense expert witness entitled to this not later than 20 Trial judge may refuse to permit days prior to trial (CCP 39.14(b)) expert to testify when Δ has not Include names where known, given req’d notice of expert’s title if name unknown identity to State before trial (233 Contact information given for S.W.3d 109) officers (and possibly others) This might come up with may be work info radar/LIDAR, assault, etc. State’s motions Motion to vacate judgment Motions in limine TRCP 329b, this generally applies Can be used to narrow discussion to civil, not criminal, cases at trial or protect a witness from If there is a problem with a character attack judgment, a motion for judgment Must be raised before voir dire nunc pro tunc can correct errors Temporary ruling (subject may (typo in dollar amount of fine, still be allowed in later) etc.) TRCP 316; 329b(f) State’s motions Notice of intent to offer evidence Notice of intent to offer evidence of extraneous crimes of conviction of prev.