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 Motion for court reporter
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 28.01(6)) Defendant shall be discharged if Goal of keeping evidence, testimony, motion is granted etc. out of trial Defendant may be again prosecuted May include constitutional basis for for same offense within the statute argument (Terry, etc.) of limitations State may appeal if granted by court Allege: improper charge, complaint (CCP 44.01) contains errors, ofc. improperly Allege: improper traffic stop, enforcing a law, vagueness, etc. improper search, testimony is Problem w/charging instrument hearsay, etc. alleged on trial date? See 45.019(f) Defense motions Motion to appoint interpreter (CCP Motion for new trial (CCP 44.02; 28.01(10)) 45.037) Should be presented 7 days before Δ must make motion within five hearing, or waived (28.01 §2) days after rendition of judgment and BUT sentence th CCP 38.30(a) bases it on when judge Judge may, not later than 10 day becomes aware witness or Δ doesn’t after date judgment entered, grant Δ understand English AND a new trial Gov’t Code 57.002(a) says Court shall But, court shall grant motion if appoint upon motion of party or request by witness properly made w/in 10 days after date of judgment in case of bond forfeiture upon FTA (CCP 45.044(c)) For courts of record, see Tex. Gov’t Code 30.00014; 10 days to file
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 Court reporter (in muni. courts of Municipal courts are not on the record) –see Tex. Gov’t Code list, so this needs to be filed 30.00010 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 adjudicate guilt Motions in limine
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 (with/without prejudice) within the statute of limitations Possible reasons 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 one side, other may defense expert witness be entitled to this not later than Trial judge may refuse to permit 20 days prior to trial (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. crim. acts Evidence of crimes/wrongs/acts To attack credibility of witness, used to show proof of motive, evidence of conviction shall be opportunity, intent, preparation, admitted IF certain guidelines plan, knowledge, identity, or met (TRE 609) absence of mistake in case in BUT, not admissible at trial chief (TRE 404(b)) unless sufficient advance written Information used by jury in notice given to adverse party assessing punishment (CCP (TRE 609(f)) 37.07) Most juvenile adjudications not admissible (TRE 609(d))
State’s motions Notice to consolidate cases Motion to adjudicate guilt (TRCP 174(a)) State’s request for judge to find Request to try all matters defendant guilty after violating a involving common question term of deferred disposition of law or facts May require a hearing depending Court may order joint on violation, wording of plea hearing or trial, or make agreement other orders to avoid unnecessary costs or delay TRCP 174(b) covers separation of cases to avoid prejudice Other motions
Motion to consider complaint timely Motion to compel deposition of a witness Someone moves for a mistrial Others?
Bonus motion you never want to lose: Defense motion for a directed verdict (CCP 45.032) If State fails to prove prima facie case of offense(s) alleged in complaint(s), Δ entitled to directed verdict of “not guilty” If motion is made: Move to reopen Request judge to take judicial notice of facts Argue circumstantial evidence sufficient for jury to decide
Thank you!
Contact info: Katie Leininger 2555 Cullen Parkway Pearland, Texas 77581 281‐997‐5918 [email protected] CAUSE NUMBER: 13-99999-SL
STATE OF TEXAS § IN THE MUNICIPAL COURT
VS. § OF RECORD
JOHN DOE § CITY OF PEARLAND, TEXAS
STATE’S MOTION TO QUASH
To the Honorable Judge of Said Court:
The State of Texas moves the court to quash the above styled and numbered cause. In support thereof, the State would respectfully show unto the Court the following:
I.
A complaint was filed in the above styled and numbered cause alleging John Doe did intentionally or knowingly cause physical contact with another, to wit, Jane Doe, in violation of Texas Penal Code section 22.01. The complaining witness in this case, John Doe, has made it known to the State that she does not wish to pursue charges against Jane Doe. Furthermore, the defendant has completed an agreed family violence intervention class. Therefore, the State would like not to proceed with prosecution of this offense at this time. II.
Wherefore, premises considered, the State prays that this Honorable Court grant said motion and that this cause be quashed.
Respectfully submitted,
______Prosecutor
Certificate of Service
I hereby certify that a true and correct copy of State’s Motion to Quash was delivered to counsel for the Defendant on January 24, 2014.
______Prosecutor
CAUSE NUMBER: 13-99999-SL
STATE OF TEXAS § IN THE MUNICIPAL COURT
VS. § OF RECORD
JOHN DOE § CITY OF PEARLAND, TEXAS
ORDER ON STATE’S MOTION TO QUASH
On the ______day of ______, 20__, the Court considered the State’s Motion to
Quash. The Court having considered said motion is of the opinion that the State’s Motion to Quash should be:
______DENIED.
______GRANTED. This cause is hereby quashed.
Signed this the ______day of ______, 20__.
______Judge Presiding
CAUSE NUMBER: 12-99999-TR
STATE OF TEXAS § IN THE MUNICIPAL
VS. § COURT OF RECORD
JOHN DOE § CITY OF PEARLAND, TEXAS
STATE’S MOTION FOR CONTINUANCE
To the Honorable Judge of Said Court:
The State of Texas moves the court to continue this cause from its current trial setting. In support thereof, the State would respectfully show unto the Court the following:
I.
Officer Barney Fife, of 2555 Cullen Parkway, Pearland, Texas, 77584, will be unavailable as a witness for the State on the trial date, Thursday, July 18, 2013. Ofc. Fife is a necessary witness through whom the State can prove elements of the underlying case and the facts he would testify about cannot be procured from any other source. II.
This motion is not sought for delay, but so that justice may be served. The State has used due diligence and will proceed with prosecution at such time as the Court directs. Further, this Motion has not been agreed to by the Defense.
III.
Wherefore, Premises Considered, the State prays that this Honorable Court grant said motion and that this cause be continued to another date after July 18, 2013.
Respectfully submitted,
______Prosecutor
Certificate of Service
I hereby certify that a true and correct copy of State’s Motion for Continuance was delivered to the Counsel for the Defendant, on July 16, 2013.
______Prosecutor
CAUSE NUMBER: 12-99999-TR
STATE OF TEXAS § IN THE MUNICIPAL
VS. § COURT OF RECORD
JOHN DOE § CITY OF PEARLAND, TEXAS
ORDER ON STATE’S MOTION FOR CONTINUANCE
On the ______day of ______, 20__, the Court considered the State’s Motion for
Continuance. The Court having considered said motion is of the opinion that the State’s Motion for
Continuance should be:
______DENIED.
______GRANTED. This cause is hereby continued until ______, 20__ at ______.
Signed this the ______day of ______, 20__.
______Judge Presiding
NO. 12-99999-SL
STATE OF TEXAS * IN THE MUNICIPAL * vs. * COURT OF RECORD * ARTHUR FONZARELLI * CITY OF PEARLAND, TEXAS
STATE’S RESPONSE TO DEFENDANT’S MOTION TO SUPPRESS
COMES NOW the State of Texas, by and through its attorney of record, and requests the Court deny Defendant’s Motion to Suppress in the above styled and numbered cause. In support of this request, the State would show the following: I. On Tuesday, November 20, 2012, at approximately 2115 hours, Pearland Police Officers Barney Fife and Andy Taylor were dispatched to the 100 block of Main Street, Pearland, Brazoria County, Texas in reference to suspicious activity. An anonymous caller had reported teenagers smoking marijuana in the garage of a two story house with a “for sale” sign in front of it. Officer Fife arrived on scene first. As he approached the location, Officer Fife could smell the odor of burnt marijuana coming from the garage of 123 Main Street, a house matching the caller’s description. He observed a white male, later identified as Richie Cunningham, standing outside the garage. Cunningham appeared to be physically ill: he was leaning against the side of the garage and he had urine on his pants. The officer then looked inside the doorway of the garage, where he observed another white male, later identified as Arthur Fonzarelli, standing in the garage from which the odor of marijuana appeared to originate. Officer Fife gave verbal commands for Fonzarelli to exit the garage. Another white male inside the garage, later identified as Potsie Webber, also stood up when Officer Fife spoke to Fonzarelli. The officer gave both individuals verbal commands to put their hands up and walk toward him. Fonzarelli told the officer he had the remains of a marijuana cigarette where he was standing. Officer Fife instructed Fonzarelli to pick it up, and he complied. Fonzarelli and Webber then exited the garage. A fourth individual, Fonzarelli’s mother, Angela Fonzarelli, then exited the house to see what was happening. Officer Taylor arrived on scene at this point and took over the investigation. Officer Fife advised Officer Taylor that Arthur Fonzarelli admitted to smoking marijuana in the garage. Officer Taylor then asked Arthur Fonzarelli if there was more marijuana in the garage because he could smell marijuana coming from inside the garage. Fonzarelli stated there was no more marijuana. Angela Fonzarelli consented to Officer Taylor’s request to look around inside the garage. Upon entry Officer Taylor observed in plain view an open blue bag containing a multi-color pipe, a homemade pipe, and a green bottle containing a green, leafy substance known to him by his training and experience to be marijuana. Officer Taylor also located a green grinder containing a green, leafy substance next to the blue bag, which he knew from his training and experience was marijuana. Officer Taylor left the items where they were, exited the garage, and again asked Arthur Fonzarelli whether there was any more marijuana, to which he stated there was no more located in the garage. Officer Taylor then retrieved the items and asked Arthur Fonzarelli to whom they belonged. Fonzarelli admitted the marijuana and pipes belonged to him. Officer Taylor then placed him into custody for possession of marijuana and drug paraphernalia. II.
Defendant claims all evidence, materials and statements obtained should be suppressed. He asserts the police officers unlawfully trespassed upon said premises and intruded upon the privacy of the Defendant without lawful authority, probable cause, or a valid search warrant, and he asserts the trespass and intrusion resulted from a lack of consent. However, the facts of the case reinforce there is no legal reason to suppress the evidence, materials and statements obtained from the premises.
To validate a warrantless search, such as the one in the instant case, the State must prove 1.) probable cause to enter or search a particular location, and 2.) some exigency that requires immediate entry to a particular place without a warrant must exist. Gutierrez v. State, 221 S.W.3d 680 (Tex. Crim. App. 2007). In Guiterrez, as Gutierrez spoke to two officers on his front porch about his possession of a stolen laptop, the officers noted the smell of marijuana on Gutierrez. Id. There as here, the on-scene officer had probable cause to believe a crime had been or was being committed based on the smell of marijuana, as well as independent sources providing facts indicating illegal activities, and an exigency requiring immediate entry to a particular place without a warrant. The courts have defined three categories of exigent circumstances that justify a warrantless intrusion by police officers: 1) providing aid or assistance to persons whom law enforcement reasonably believes are in need of assistance; 2) protecting police officers from persons whom they reasonably believe to be present, armed, and dangerous; and 3) preventing the destruction of evidence or contraband. McNairy v. State, 835 S.W.2d 101, 107 (Tex.Crim.App. 1991). Here, Officer Fife did not know how many people were present, but the first person he observed on scene, Richie Cunningham, appeared to be sick. It was reasonable and justifiable for Officer Fife to approach Cunningham to determine if he needed assistance. As Officer Fife proceeded to investigate the scene, he observed another person, Arthur Fonzarelli, in the garage. The officer was within his duties to engage the Fonz in conversation and instruct him to exit the garage in order to determine whether he, or Potsie Webber, needed assistance or were involved in the use of marijuana earlier reported to Pearland dispatch. Additionally, if the officer had not entered the garage area where Cunningham, Fonzarelli, and Webber were located, any of the individuals could have attempted to destroy the evidence or contraband that was subsequently retrieved by Officer Taylor.
Even if the officers did not meet both prongs of the test enunciated in Gutierrez, the actual search and confiscation of contraband occurred after Officer Taylor obtained permission to search from Angela Fonzarelli, defendant’s mother. Although warrantless searches are per se unreasonable, there are several important, well-delineated exceptions. Reasor v. State, 12 S.W.3d 813 (Tex. Crim. App. 2000). In fact, the Reasor court specifically noted “a search made after voluntary consent is not unreasonable.” Id. Officer Taylor sought and obtained consent from Angela Fonzarelli to search the garage. Neither officer entered the garage to search before consent was given. Arthur Fonzarelli volunteered information to Officer Fife about the marijuana cigarette located near Fonzarelli in the garage, and Officer Taylor followed up on that information, combined with his own observations, by searching the garage after obtaining consent. Once consent was given, the subsequent search of the premises and collection of evidence located in plain view of the officers was valid and reasonable.
III. The evidence and statements in this case should not be suppressed. Officer Fife met both prongs of the test enunciated in Gutierrez for a warrantless search, Officer Taylor was given valid consent by Angela Fonzarelli to search the garage, and it was not until the consensual search Officer Taylor found marijuana and various drug paraphernalia in plain view. For the above-listed reasons, the State would ask the Defendant’s Motion to Suppress be denied.
Respectfully submitted,
______Prosecutor
INDEX OF CASES
Gutierrez v. State, 221 S.W.3d 680 (Tex. Crim. App. 2007). McNairy v. State, 835 S.W.2d 101, 107 (Tex.Crim.App. 1991). Reasor v. State, 12 S.W.3d 813 (Tex. Crim. App. 2000).
Certificate of Service
I hereby certify that a true and correct copy of State’s Response to Defendant’s Motion to Suppress was delivered to Counsel for the Defendant, on April 19, 2013.
______Prosecutor
No. 12-99999-SL
STATE OF TEXAS * IN THE MUNICIPAL * VS. * COURT OF RECORD * ARTHUR FONZARELLI * CITY OF PEARLAND, TEXAS
ORDER ON DEFENDANT’S MOTION TO SUPPRESS
On the ______day of ______, 20__, the Court considered the Defendant’s Motion to
Suppress. The Court having considered said motion is of the opinion that the Defendant’s Motion to
Suppress should be:
______DENIED.
______GRANTED.
Signed this the ______day of ______, 20__.
______Judge Presiding
CAUSE NUMBER: 13-99998-TR and 13-99999-TR
STATE OF TEXAS § IN THE MUNICIPAL COURT
VS. § OF RECORD
LUCY RICARDO § CITY OF PEARLAND, TEXAS
STATE’S RESPONSE TO DEFENDANT’S MOTION TO QUASH
To the Honorable Judge of Said Court:
The State of Texas moves the Court to deny Defendant’s Motion to Quash the above styled and numbered causes. In support thereof, the State would respectfully show unto the Court the following:
I. A complaint was filed in Cause No. 13-99998-TR alleging Defendant Lucy Ricardo operated a vehicle upon the 13900 block of State Highway 288, within the territorial limits of the City of Pearland, Texas, and the vehicle had a tandem axle weight over 34,000 pounds. A complaint was filed in Cause No. 13-99999-TR alleging Ricardo operated a vehicle upon 13900 block of State Highway 288, within the territorial limits of the City of Pearland, Texas, and the vehicle had a gross weight greater than that stated in the application for registration of the vehicle. Defendant filed a motion in each case, but because Defendant’s argument is the same in each motion, the State responds below as to both cases. II. Defendant’s Motion to Quash is based upon a misunderstanding of Texas Transportation Code 621.303. Defendant asserts this section prohibits a municipality from creating certain types of laws applying to state highways within the territorial limits of said municipality. This is true, insofar as city ordinances may not create restrictions applying to state highways that are more onerous than those found in the Texas Transportation Code. However, 621.303 does not prohibit peace officers in municipalities from enforcing laws contained in the Texas Transportation Code. In the instant cases, Officer Jack Tripper of the Pearland Police Department was working commercial motor vehicle enforcement on State Highway 288 on July 29, 2013. He initiated a traffic stop on Defendant Lucy Ricardo. On the traffic stop, Officer Tripper inspected the commercial motor vehicle driven by Defendant. In the course of his investigation, the officer discovered multiple violations in addition to the two listed above. Defendant was only cited for two of seven violations found by the officer. The charge alleged in 13-99998-TR is based on Texas Transportation Code 621.101, which governs the maximum weight of vehicles or combination of vehicles being operated on or over public highways within the state of Texas. The charge alleged in 13-99999-TR is based on Texas Transportation Code 502.412, which prohibits operation of a motor vehicle registered under that chapter that has a weight greater than that stated in the person’s application for registration. Both charges are therefore based on state law, not a city ordinance. Officer Tripper, as a certified peace officer, is charged with enforcing state laws while acting in the course and scope of his duties. Code Crim. Proc. 2.12, 2.13. His citations issued to defendant were therefore properly issued and charges were properly filed in the Pearland Municipal Court, which has jurisdiction over Class C Misdemeanor offenses occurring within the territorial limits of the City of Pearland, Texas. Tex. Gov’t Code 30.00005.
Therefore, Defendant’s argument regarding the court’s lack of jurisdiction over the subject matter of these cases has no merit, and the motion should properly be denied. III. Wherefore, premises considered, the State prays that this Honorable Court deny Defendant’s motion.
Respectfully submitted,
______Prosecutor
Certificate of Service
I hereby certify that a true and correct copy of State’s Response to Defendant’s Motion to Quash was delivered to counsel for the Defendant on October 22, 2013.
______Prosecutor
CAUSE NUMBER: 13-99998-TR and 13-99999-TR
STATE OF TEXAS § IN THE MUNICIPAL COURT
VS. § OF RECORD
LUCY RICARDO § CITY OF PEARLAND, TEXAS
ORDER ON STATE’S RESPONSE TO DEFENDANT’S MOTION TO QUASH
On the ______day of ______, 20__, the Court considered the State’s Motion to
Quash. The Court having considered said motion is of the opinion that the State’s Response to Defendant’s
Motion to Quash should be:
______DENIED.
______GRANTED. This cause is hereby quashed.
Signed this the ______day of ______, 20__.
______Judge Presiding
CAUSE NUMBER: 09-99999-TR
STATE OF TEXAS § IN THE MUNICIPAL
VS. § COURT OF RECORD
SYDNEY BRISTOW § CITY OF PEARLAND, TEXAS
STATE’S MOTION TO CONSIDER THE COMPLAINT TIMELY
To the Honorable Judge of Said Court:
The State of Texas moves the court to consider the complaint timely in the above styled and numbered cause. In support thereof, the State would respectfully show unto the Court the following:
I.
The citation serving as the basis for this cause was given to Defendant on September 26, 2009, by Officer Michael Vaughn of the Pearland Police Department. Defendant failed to appear at her scheduled arraignment date on October 27, 2009. The original complaint in this case is signed and dated October 30, 2009. A warrant was filed after Defendant’s non-appearance at her arraignment. Defendant’s case remained pending until December 22, 2011, when Arvin Sloane submitted a letter of representation to the Pearland Municipal Court. On January 5, the case was set for a pretrial docket on February 6, 2012.
At the pretrial setting of this case on February 6, 2012, Defense made the argument that, because a new complaint had been filed in the above styled and numbered cause on January 5, 2012, the complaint was untimely and the case should be dismissed. Upon discussion among Defense Counsel Arvin Sloane, Prosecutor Marshall Flinkman, Deputy Court Clerk Will Tippin, and Judge Francie Calfo, it was determined that the general practice in Pearland Municipal Court when a case is reset after a lengthy period of warrant status is for a new copy of the complaint to be printed out as a matter of course. Defense argues the new complaint, filed on January 5, 2012, supersedes the old complaint and renders the charges untimely. Under Texas law, this argument is incorrect.
II.
Texas statutes are clear on this point. Section 12.05(b) states “the time during the pendency of an indictment, information, or complaint shall not be computed in the period of limitation.” Code Crim. Proc. § 12.05. Subsection (c) of the same section goes on to define “during the pendency” as “beginning with the day the…complaint is filed in a court of competent jurisdiction.” Id. In this case the complaint was filed on October 30, 2009. Because the day on which the offense was committed and the day on which the charging instrument is presented are not to be included in the computation of time, the time from offense to filing of the case was a mere thirty-three days after the citation was issued to defendant. Code Crim. Proc. § 12.04. Thirty-three days is well within the two year statute of limitations for the Class C Misdemeanor offense of No/Expired Motor Vehicle Inspection. Tex. Penal Code § 12.41; Code Crim. Proc. § 12.02; Tex. Trans. Code § 548.602. All the time after the charge was filed was the pendency of the complaint, during which Defendant did not appear in court until February 5, 2012.
The new complaint is different from the old complaint only in the date on which it was signed and sworn. Defense cannot claim a lack of notice or understanding as to the charge, because the charge has not changed since the ticket was issued in 2009. The length of intervening time was due entirely to Defendant’s choice not to show up for her scheduled arraignment date, which was clearly stated on her citation. It would be inappropriate for her charges to be dismissed because she failed to appear for longer than the two year statute of limitations. By that logic, any offender could avoid any charge by simply not showing up for court until after the statute of limitations had run. No state law or case law indicates these circumstances warrant a dismissal.
III.
Wherefore, Premises Considered, the State prays that this Honorable Court grant said motion and that this cause proceed to pretrial or trial as the court recommends.
Respectfully submitted,
______Prosecutor
Certificate of Service
I hereby certify that a true and correct copy of State’s Motion to Consider the Complaint Timely was delivered to the Counsel for the Defendant, on March 7, 2012.
______Prosecutor
CAUSE NUMBER: 09-99999-TR
STATE OF TEXAS § IN THE MUNICIPAL
VS. § COURT OF RECORD
SYDNEY BRISTOW § CITY OF PEARLAND, TEXAS
ORDER ON STATE’S MOTION
On the ______day of ______, 20__, the Court considered the State’s Motion to
Consider the Complaint Timely. The Court having considered said motion is of the opinion that the State’s
Motion for Continuance should be:
______DENIED.
______GRANTED. This cause is hereby reset to ______, 20__ at ______.
Signed this the ______day of ______, 20__.
______Judge Presiding
CAUSE NUMBER: 10-99999-TR
STATE OF TEXAS § IN THE MUNICIPAL COURT
VS. § OF RECORD IN THE
DAN FIELDING § CITY OF PEARLAND, TEXAS
STATE’S MOTION TO VACATE
To the Honorable Judge of Said Court:
The State of Texas moves the court to vacate the judgment previously entered in the above styled and numbered cause. In support thereof, the State would respectfully show unto the Court the following:
I.
A plea agreement was reached in the above styled and numbered cause in which the defendant pled No Contest in exchange for a deferred disposition of his case. However, because the defendant possesses a CDL license, defendant was ineligible to receive a deferred disposition.
II.
Wherefore, Premises Considered, the State prays that this Honorable Court grant said motion and that this judgment be vacated.
Respectfully submitted,
______Prosecutor
Certificate of Service
I hereby certify that a true and correct copy of State’s Motion to Vacate was delivered to Counsel for the Defendant on May 29, 2011.
______Prosecutor
CAUSE NUMBER: 10-99999-TR
STATE OF TEXAS § IN THE MUNICIPAL COURT
VS. § OF RECORD IN THE
DAN FIELDING § CITY OF PEARLAND, TEXAS
ORDER ON STATE’S MOTION TO VACATE
On the ______day of ______, 20__, the Court considered the State’s Motion to
Vacate. The Court having considered said motion is of the opinion that the State’s Motion to Vacate should be:
______DENIED.
______GRANTED. This judgment is hereby vacated.
Signed this the ______day of ______, 20__.
______Judge Presiding