THE EIGHTH ANNUAL JUVENILE LAW CONFERENCE

HOUSTON, TEXAS SEPTEMBER 14-15, 2018

PRESENTED BY:

Steven H. HalpertHarris County Public Defender’s Office

1201 Franklin, 13th FloorHouston, Texas 77002

713-368-0016steven.halpert@pdo.hctx.net

YET ANOTHER PAPER ONPRETRIAL MOTIONS, DISCOVERY MOTIONS

andMOTIONS TO SUPPRESS in JUVENILE PROCEEDINGS

1

Motions Practice in Juvenile

Why do all this extra work?Besides staying out of trouble, what do I gain?

What are “The Goals” for filing all these motions?

My premise for this paper is that you MUST file effective motions in nearly every juvenile case you represent. Note: I did not say ‘should’ or ‘ought to’. I said, and mean, you must file effective motions in almost every juvenile case you represent. Every serious case needs them. Are you deciding that your juvenile Respondent’s case is not serious? That decision can get you in real trouble. There is a small but very effective group of lawyers out there whose practice is built on following up other lawyers to argue how they were ineffective. Don’t be their target.

More importantly, MOTIONS HELP YOU! They can provide a positive benefit to your case and also to the life of the juvenile Respondent you are representing. If I assume that you should put in extra effort, the least I can do is give you good reasons why.

Very briefly, let me address the functional purpose for you to do all this extra work. I will break it down into five (5) general goals, each of which will be addressed in detail throughout the body of this paper.

What can Motions DO for Me and My Client?

Help the Client

Find Out Stuff

Fluster the Other Side

Keep Stuff Out

Control the Flow of Trial

Each and every one of these, standing alone, should be reason enough. Combined, their effects should convince you of the importance of effective motions in representing your juvenile Respondent clients. The remainder of this paper will discuss each of these goals in depth and explain the specific applicable law and specific motions to pursue each of these individual goals.

2

Effective motions can really help the quality of your juvenile Respondent’s life as well as your defense.

Effective motions can provide services your client desperately needs and will otherwise never get. They can be the difference between going home and going to the Texas Juvenile Justice Department (TJJD). Of equal long term importance, effective motions can provide support, counseling, and advocacy the Respondent will never receive until someone steps up and does the right thing. Remember the underlying purpose of the Juvenile Justice system? We are here as a group to protect the best interest of the child. What can we do? Quite a lot, actually.

Have a case where the parent is a large part of the problem? Have a Respondent whose first language is not English?

Have a client whose family can’t or won’t pay for an investigator or experts?

Have a client with a history of mental illness? Or worse, do you have a client that has a mental problem but has never received a diagnosis or treatment?

In every one of these situations the code provides for a solution. You can request and obtain a Guardian Ad Litem. You can request and obtain interpreters. Your client is entitled to effective investigation and expert assistance. In my opinion, every child is indigent and each juvenile case should proceed with that assumption. Seek the family’s aid in obtaining experts and investigators; the family absolutely should shoulder that burden. When they can’t or won’t then YOU must step into the breach and get those necessary services for your client. Most juvenile Respondents have NO assets, no control over their financial affairs, and many are held in custody. How is that NOT indigent by any reasonable standard? Get into court with the proper motions and make the difference. It not only helps your client, it may very well make your case.

Mental illness deserves a special note here. If you suspect that your client has a mental health issue you MUST address the issue. It is an unfortunate fact that a disproportionate percentage of people arrested (adult and juvenile) are suffering from some degree of mental illness. You must get someone qualified to assess the question. Further, if you believe that the Respondent’s mental illness either 1) raises the questions of competence or 2) impacted the commission of the charged offense, you must seek and obtain competent expert assessment and assistance. Resetting it for a ‘21 day’ and/or getting the on-staff expert to say your client is competent/sane IS NOT ENOUGH. If you really have concerns about the client’s mental competence or sanity, you need an independent expert. The client is entitled to one, so why not get it? Remember, even if sanity/competence is not an overwhelming defense, knowing the proper diagnosis and mental history can only help your case. Mental health issues are excellent mitigation evidence to both the State and a jury. The only way you get that information is to file the right motions at the right time. Seek and obtain an expert. Seek and obtain any and all records of mental issues. Get the expert to explain what all the jargon and terminology means to you, the Court, and to any jury. It can and will make a difference.

3

It is impossible to overstate the importance of effective motions in defending juvenile Respondents.

Motions can reveal information you never knew. At the beginning of every ‘criminal’ representation the only information you have is what the police and the DA provides you. You honestly do not know if what you are provided is correct or complete. Most importantly, you do not know what you DO NOT know. In representing any criminal case with a juvenile Respondent (or adult defendant) it is what you do not know that may shift the balance. Make no mistake; the State starts almost every case with the advantage. Talk to the State when the case starts. Observe the assumptions. In 99% of the cases their position is that your client is cooked and you should just decide what kind of plea they should seek. That is where we start. And, to be honest, in many cases the State is correct. But, how do you know if they are right in this case? It is what we do after we step in that must chip away at this advantage. What do they (and you) not know?? What can change those assumptions? The only way to find out is to do the right work.

Scenarios

1) The police catch your client with a really large quantity of pills (Never happens, right?). PC for the stop is running a stop sign on his bicycle.

2) DA believes your client shot someone to rob him and thus they are ignoring your ‘mere presence’ argument.

3) Your client shoots and kills his parent while the parent is sleeping.

How can pieces of paper do anything to help in such desperate straits? Well…

1) What if your motion for an investigator (and follow up) reveals there is NO stop sign at the point where your client was arrested?

2) What if the Medical Examiner’s full report (which you have to fight to get) and NOT the police offense report reveals that the decedent had over a thousand dollars cash on him when they recovered the body?

3-a) What if your motion for experts reveals a continuous pattern of abuse of the client by the deceased parent?

3-b) What if your motion to suppress hearing revealed that the police ignored the black letter of the law in gaining your client’s statement?

Did the ‘paper’ make a difference?? Hell, Yes!

More importantly, without filing the right motions in every case, these kinds of factors will pass you by and you will never see them go.

4

The Substantive Law (Generally)

Juvenile proceedings are a hybrid of civil and criminal procedure. Title 3 (entitled the ‘Juvenile Justice Code’) of the Texas Family Code governs procedure and evidence in juvenile proceedings. Section 51.17 of the Family Code provides that:

(a) Except as provided by Section 56.01(b-1) and except for the burden of proof to be borne by the State in adjudicating a child to be delinquent or in need of supervision under Section 54.03(f) or otherwise when in conflict with a provision of this title, the Texas Rules of Civil Procedure govern proceedings under this title.

(b) Discovery in a proceeding under this title is governed by the Code of Criminal Procedure and by case decisions in criminal cases.

(c) Except as otherwise provided in this title, the Texas Rules of Evidence apply to criminal cases and Articles 33.03 and 37.07 and Chapter 38, Code of Criminal Procedure, apply in a judicial proceeding under this title.

Texas Family Code, Section 51.17(a)-(c) (emphasis added).

What law do you really need to know? The obvious, but not helpful, answer is ‘all of it’. None of us lives up to that standard, ever. So, I offer the following list as a beginning. If you can get these under your belt, you will be ahead of the majority of attorneys on either side of the table.

Texas Family Code, Section 51.095 – Juvenile Statements

Texas Family Code, 51.11 – Guardian Ad Litem

Texas Family Code, Chapter 52 - Arrest and Processing of a JuvenileThere are cases showing why failures can exclude evidence, most importantly:In the Matter of DJC, 312 S.W.3d 704 (2009), In the Matter of CR, 995 S.W.2d 778 (1999), andState v. Simpson, 105 S.W.3d 238 (2003)

Texas Family Code, Section 54.03 – Evidence ExclusionTexas Code of Criminal Procedure, 38.23

Texas Family Code, Chapter 55 - Mental Illness and the Juvenile Respondent

5

Texas Code of Criminal Procedure, Chapter 26 – Investigators and Experts Ake v. Oklahoma, 470 US 68 (1985) and its progeny

Texas Code of Criminal Procedure 39.14 – Expert TestimonyTexas Rules of Evidence, Rule 702, 703, and 705

Texas Rules of Evidence, Rule 404 and Rule 609 – Notice of Extraneous OffensesTexas Code of Criminal Procedure – 37.07(g)

Brady v. Maryland, 373 US 83 (1963) and its progeny - Exculpatory Evidence

SIDE NOTE: Make it a point when reading the various Codes to seek the word “shall”. It will surprise none of you that if something could cut either way, the issue most often falls to the State. The “shall” is your secret weapon. If the Code says “shall”, the Court must take a specific action. For a specific example, look to Rule 705 of the Texas Rules of evidence:

“Prior to the expert giving the expert's opinion or disclosing the underlying facts or data, a party against whom the opinion is offered upon request in a criminal case shall, or in a civil case may, be permitted to conduct a voir dire examination directed to the underlying facts or data upon which the opinion is based. This examination shall be conducted out of the hearing of the jury” (emphasis added).

If the State brings someone they designated as an expert to the stand, you have the right to take the witness on voir dire, outside the presence of the jury, before he is allowed to testify. It is not discretionary. Look for “shall” language wherever you can find it. It will make your work lighter and your arguments at the bench shorter.

One final suggestion is really quite simple: Start a file of law and helpful cases. When you find a helpful case or opinion save it to that folder or file. You will see the same issues and arguments recur. Avoid redoing work. Avoid recreating arguments you have already crafted. Recycling is good for you. Start with what you have already done. Then you simply need to search for newer helpful cases. And remember to research how the various Courts of Appeals may have torpedoed your favorite argument.

6

SPECIFIC MOTIONS TO “HELP THE CLIENT”

1. Motion to Appoint Guardian Ad Litem

So, what do you do when the family is not part of the solution? Or worse, how do you handle the issue of a parent or guardian who IS part of the problem? Get the Court to supply your client an uninvolved party whose sole job is to see to their best interest, a Guardian Ad Litem.

Counsel for a juvenile Respondent may request that the Court appoint the attorney or other suitable person as guardian ad litem of the juvenile under certain circumstances. It is my suggestion that you always request that this be someone other than yourself. Get yourself some help in the case. Provide the client with someone who is looking out for their interests who is NOT involved in the adversarial back and forth of a criminal representation. There is no ‘down side’.

The procedure for this type of request is described in Section 51.11 of the Family Code:

(a) If a child appears before the juvenile court without a parent or guardian, the court shall appoint a guardian ad litem to protect the interests of the child. The juvenile court need not appoint a guardian ad litem if the parent appears with the child.

(b) In any case in which it appears to the juvenile court that the child’s parent or guardian is incapable or unwilling to make decisions in the best interest of the child with respect to proceedings under this title, the court may appoint a guardian ad litem to protect the interests of the child in the proceedings.

(c) An attorney for the child may also be his guardian ad litem. A law enforcement officer, probation officer, or other employee of the juvenile court may not be appointed guardian ad litem.

Texas Family Code, section 51.11.

Obviously, this may lead to some conflict with the parents of the child. They are never going to want to hear that their ideas are not protecting the best interest of the child. They may well become hostile. You will probably have to provide the Court with specific conduct and bad decisions of the family that conflict with the best interests of your client. So be it. Remember the juvenile Respondent, and not his dysfunctional family, is your client. If mommy or daddy cannot or will not face the situation and make good decisions for your client, seek out someone who can.

2. Motion for Interpreter

Language issues continue to plague the legal process at every level. This is no different in the representation of a juvenile Respondent. If ANY PARTY involved in the case has problems with the English language, seek and obtain the services of a translator. This is especially important when there is a disparity between the communication skills of the juvenile and his parents or guardians. As an English only speaker, I can represent a juvenile who speaks and understands English well. But what if the parents speak only Spanish (or Farsi, or Urdu…)? You have to obtain and use an

7

interpreter. NEVER use your juvenile client as an interpreter when speaking with the family. Take the time to get a qualified and disinterested interpreter so that ALL parties truly understand what is going on. This is one of the few motions you can seek that no one is going to argue with.

Authority for the appointment of an interpreter for a juvenile Respondent, a parent or guardian of the juvenile, or a witness who does not understand and speak English is provided by Section 51.17(d) of the Texas Family Code.

Section 51.17(e) provides the authority for the appointment of a sign language interpreter for a deaf juvenile Respondent, parent or guardian, or witness. If representing deaf individuals, please be aware that there are different types of interpreters. Additionally important to realize is that ASL is not exactly English. There is a good deal of interpretation in the translation of testimony to and from sign language. If a trial is imminent, make sure you are confident in your translator and seek video to ensure a full and complete record.

Counsel should request an interpreter for a non-English speaking or deaf juvenile Respondent, parent or guardian, or witness as soon as the issue comes to light. If necessary, file a written motion and proposed order, set the matter for a hearing, and obtain a ruling from the Court. In most instances that will not be necessary, simply informing the Court will get you an interpreter.

3. Motion for Court Appointed Expert Witness

Counsel for the juvenile Respondent can and should request that the Court authorize payment for an expert witness to inspect and perform tests on State’s evidence. We all know that. More importantly, counsel can seek experts for mental health issues and evaluation. In serious felony cases, counsel should also seek appointment of a mitigation specialist. These types of experts not only help your case, they help your juvenile Respondent.

Counsel should file a written motion and proposed order as soon as possible. You will need to

set a hearing with proper notice to the State and obtain a ruling. Having a signed order will facilitate payment to the expert or reimbursement to Respondent’s counsel for the services of these individuals.

8

4. Motion to Determine Fitness to Proceed as Result of Mental Illness or Mental Retardation

If a juvenile Respondent lacks the capacity to understand the proceedings in juvenile court or to assist in his or her own defense as a result of mental illness or mental retardation, either the prosecutor or counsel for the Respondent may file a motion to determine whether the juvenile is unfit to proceed under Subchapter C of the Juvenile Justice Act. A Respondent who is found to be unfit to proceed as a result of mental illness or mental retardation is not subject to adjudication, disposition or discretionary transfer to an adult court.

After a motion to determine fitness is filed, the Court must make a preliminary finding of probable cause to believe that the Respondent is unfit before an evidentiary hearing will be set. This finding is based on the motion and supporting documents, statements by counsel, and the Court’s own observation of the Respondent. If the Court determines that probable cause exists to believe that the Respondent is unfit to proceed, the Court must:

1) stay the proceedings, 2) order that the Respondent be examined by a psychiatrist or psychologist qualified under

Subchapter B, Chapter 46B of the Texas Code of Criminal Procedure, and3) set an evidentiary hearing to decide the issue of fitness to proceed.

The Court will decide the issue of fitness to proceed unless the Respondent or his or her counsel demand a jury no later than ten (10) days prior to the hearing. The burden of proof at the hearing is preponderance of the evidence. If the Court or jury determines that the Respondent is fit to proceed, the stay is dissolved and the proceedings continue as if no question of fitness had been raised. If the Court or jury determines that the Respondent is unfit to proceed, the Court, pursuant to Texas Family Code section 55.33, shall order the Respondent placed at one of the following locations for ninety (90) days:

1. Texas Department of Mental Illness and Mental Retardation if the Respondent meets the criteria for commitment under Subchapter C or D, Title 7, Texas Health and Safety Code;

2. Private psychiatric inpatient facility, on motion of a parent, guardian or guardian ad litem and with written agreement of the facility administrator; or

3. Alternative setting for outpatient treatment if the unfitness to proceed is a result of mental illness and the Court finds that the Respondent would be adequately treated in the alternative setting.

After placement at one of the locations described above, the facility shall submit a written report to court, no later than seventy-five (75) days from the date of the placement order that describes the Respondent’s treatment and states the facility director’s opinion regarding the Respondent’s fitness or unfitness to proceed. Copies of the report shall be provided to the prosecutor and counsel for the Respondent. If the report from the facility director states that the Respondent is fit to proceed, the Court shall find that the Respondent is fit to proceed unless the Respondent’s counsel objects in writing or in open court no later than two (2) days after receiving the facility director’s report. If the objection

9

is made, the Court shall promptly set another evidentiary hearing and decide the issue of fitness to proceed unless the Respondent or his or her counsel demand a jury no later than ten (10) days prior to the hearing.

If, after the evidentiary hearing, the Court or jury determines that the Respondent is fit to proceed, the stay is dissolved and the proceedings continue as if no question of fitness had been raised. If the Court or jury determines that the Respondent is unfit to proceed, the Court, pursuant to Texas Family Code section 55.36, shall initiate commitment proceedings under Texas Family Code sections 55.37 through 55.42.

10

SPECIFIC MOTIONS TO “FIND OUT STUFF”

1. Motion for Court Appointed Investigator and/or Expert Witness

Counsel for the juvenile Respondent may request that the Court authorize payment of an investigator to locate and interview potential trial witnesses or an expert witness to inspect and perform tests on State’s evidence. Remember our discussion earlier; your client IS effectively indigent. Whether you are hired or appointed, most juveniles have no actual resources. If the Respondent’s family can’t or won’t shell out for an investigator, take it to the Court. Your client is entitled to expert assistance and investigative services. Get them. I cannot state this strongly enough. The State has the police (all thousand flavors thereof), assigned investigators, and all the experts they need. They can have blood experts, drug experts, ‘victim witness’ experts, fingerprint experts, you name it. Guess what? So can you. If the State utilizes it, you are entitled to someone to refute that testimony. Even if the State does NOT have an expert, you may be entitled to it. If you can, in good faith, argue that an expert or investigator is needed to deal with an issue that will be ‘a significant factor’1 at the adjudication or punishment phase of any potential trial, you are entitled to that expert.

As always, Counsel should file a written motion and proposed order. You may set a hearing with proper notice to opposing counsel. Often you can even make requests for experts and investigators ex parte. You must obtain a ruling. Getting a signed order before bringing on your expert will facilitate payment to the investigator or expert.

2. Motion for Exculpatory Evidence (aka “Brady” Motion)

Under Brady v. Maryland, 373 U.S. 83, 87 (1963) and United States v. Bagley, 473 U.S. 667, 675-78 (1985), the State must disclose all evidence in its possession and in the possession of its agents, which is both favorable to the Respondent and material either to guilt or to disposition, including impeachment evidence.

A well-constructed Brady motion, while technically a motion to find stuff out, can also be used to effectively fluster the other side and control the action in some cases.

Please note that there are two types of Brady motions. There is the generic Brady motion that is part and parcel of every discovery request and order. The second, and much more fun, is a directed motion that seeks the real dirt in your case. You are entitled to all the facts that are favorable to your case. The State’s ‘open file’ may not, and probably doesn’t, contain all the facts. Whether your individual ADA knows or doesn’t know a specific fact is not controlling. Brady requires the disclosure of all evidence known to any of the agents of the State, and that includes the police. Seek the info that the police have but don’t want to pass along. Seek information about the individual officers and individuals testifying in your case. Write a specific Brady motion requesting info on the specific

1 This phrase ‘a significant factor’ is sort of the magic word when seeking an investigator or expert in your case. If the issue concerns a ‘a significant factor’ in your defense you are entitled to assistance. Is self-defense ‘significant factor’? Get an investigator to find and interview witnesses. Is abuse ‘a significant factor’ in developing your defense? Seek and obtain an expert that can develop and explain the issue.

11

officers2. Ask for priors for all the witnesses the State may call. Ask for the identity of any witnesses that state something different than the State’s theory. Look for the dirt. It’s not always there, but when it is, it is golden.

Further, if you ask for Brady material and the State does not provide it, all sorts of possibilities are created. Possible remedies range from continuance, a suppression of State’s evidence, all the way up to mistrial and/or reversal. Ask for the info in as much detail as possible. It can only help.

Counsel for the juvenile Respondent must file a written Brady motion, set a hearing with proper notice to opposing counsel, and obtain a ruling. A Brady motion may be a separate motion or included in a universal motion for discovery. As a practice tip, include it with your broad discovery and supplement with more specific and targeted requests.

3. Motion to Disclose Experts

The authority for this motion comes from the Texas Code of Criminal Procedure, Article 39.14 (b). If you write the correct motion and get a signed order, the State must disclose the name and address of each person they may use as an expert in your trial at least twenty (20) days before trial. Make sure that your order includes the date, the manner, and the place that such notice is to be provided.

While this motion is often included in a ‘standard’ discovery motion, I would strongly suggest that you make and present a separate motion whose order contains all the specificity you desire.

Please note that this motion has teeth. If you have a signed order on this issue and get into trial, the remedy for the State’s non-compliance is exclusion. If you do not have a signed order or have one that is not specific as to the time and date of disclosure they will walk over you (and your client).

SIDE NOTE: Be prepared for a different approach to this motion by the State. Some prosecutors, for whatever reason, have begun to list many or all of their potential witnesses as “expert” witnesses. This can lead to extra work on your part and circumvents the spirit, if not the actual letter of the law. In these cases, you must decide how to respond. If it is really egregious, bring the issue to the Court. If that does not solve the problem, possible responses come in the form of additional requests for Defense witnesses (obviously needed to balance the overwhelming number of State witnesses) and from Rule 705 (b). If the ADA lists every witness as an expert, take them all on voir dire, outside the presence of the jury, before they are allowed to testify. Be creative and do not allow them to play these sorts of games. They are the State; they already have all the advantages they need.

4. Motions for Discovery

Section 51.17(b) of the Texas Family Code states that discovery in juvenile case is governed by the Texas Code of Criminal Procedure and appellate decisions in criminal cases.

2 If you are not a member of the Harris County Criminal Lawyers Association (HCCLA), consider joining. In addition to a support system and body of useful compatriots, it is an invaluable resource on local police and recurring States’ experts. If you want to know what law enforcement officers have recently been investigated, suspended or indicted, HCCLA has the data.

12

Article 39.14(a) of the Texas Code of Criminal Procedure provides the statutory authority for thediscovery of material, non-privileged evidence in the possession of the State and its agents. It requires that the State allow inspection, copying, or photographing of all non-privileged documents, papers, written statements of the Respondent, books, accounts, letters, objects and other tangible items, which constitute or contain material evidence and in the possession of the State and its agents.

Article 38.22 of the Texas Code of Criminal Procedure provides the statutory authority for the discovery of all statements of the adult defendants. The proper authority for juvenile statements comes from Section 51.095 of the Texas Family Code. Be familiar with this statute (more later), its requirements are more strenuous than those for adult defendants. You must request any and all statements and get a signed order. If the State does not provide them at least twenty (20) days before trial, they may not be used.

Texas Rules of Evidence also allows for the discovery of specific information. Rule 404(b) requires the State provide active written notice of its intent to use evidence of ‘crimes, wrongs, or acts’ allegedly committed by your client. Rule 609(f) allows for discovery of any convictions the State intends to use against witnesses other than the defendant. Rules 803, 804, and 902 allow for prior discovery of records, documents, and reports the State may wish to introduce under the authority of these rules (most often business records and previous testimony). Each of these requires active disclosure by the State; they must provide specifics and produce copies or allow for copying of all these relevant items.

Article 37.07(g) of the Texas Code of Criminal Procedure provides the statutory authority for the discovery of all extraneous crimes and bad acts the State intends to introduce at the “punishment” phase of a trial. This rule acts like Rule 404(b) but instead applies to the procedure following adjudication. Note that this provision, like the others above, is only binding on the State with a ‘timely request’ by you.

Remember you can discover even more information than what might be admissible. If it is relevant to the State or useful to the Defense, ask for it. Even if the State disagrees, ask for it. Here’s an example. Did you know that you are entitled to all known convictions, including juvenile adjudications, for any of the State’s proposed witnesses? You are. When the State argues this one, as they often will, simply point them to Davis v. Alaska, 415 U.S. 308 from 1974! It’s not convenient to the State, but it’s the law. Make them conform.

13

All three Juvenile District Courts in Harris County have approved a discovery order for juvenile cases, which require the prosecutor to provide defense counsel with the following pretrial discovery items no later than ten (10) days before trial (except items 2 and 7):

1. Access to the State’s witness list (by reviewing the Court’s file).

2. Production from the prosecution of any written or recorded statement of the juvenile Respondent no later than twenty (20) days before trial.

3. Inspection of:

A. Any item seized from the juvenile Respondent or a co-Respondent;B. All physical objects to be introduced as part of the State’s case, C. All documents and photographs to be offered at trial;D. All contraband, weapons and implements of criminal activity acquired by the State or its

agents;E. All tangible items of physical evidence collected by the State or its agents concerning

the alleged offense, such as fingerprints, hairs, fibers, fingernail scrapings, body fluids, tire tracks, paint scrapings, etc.;

F. All promises of benefit or leniency afforded to any accomplice or prospective witness in connection with his or her proposed testimony or other cooperation concerning the alleged offense; and

G. All business reports or governmental records to be introduced at trial.

4. Copies from the prosecution of:

A. All search warrants (and related affidavits), autopsy reports and laboratory reports of all examinations of contraband, fluids, hair, fingerprints, blood samples, ballistics, soil, fibers and paints; and

B. All video and tape recordings that contain the juvenile Respondent or his/her voice.

5. Notice from the prosecution of:

A. All extraneous offenses, with date and county of commission, which may be admissible against the juvenile Respondent; and

B. All known previous adjudications of delinquent conduct, which may be admissible in evidence or used to impeach the juvenile Respondent.

6. Production by the prosecution of:

A. Information concerning all known convictions (and adjudications of delinquent conduct), pending charges or suspected criminal offenses concerning any of the State’s proposed witnesses, which may be used for impeachment of such witnesses, subject to Juvenile Justice Code rules regarding confidentiality of juvenile witnesses;

14

B. All exculpatory evidence pursuant to Brady v. Maryland and related cases, and all mitigating evidence.

7. Notice from the prosecution of the names, addresses and phone numbers of all expert witnesses no later than twenty (20) days before trial.

Copies of the Discovery Order used in the Harris County Juvenile District Courts are available from

the clerk of the courts.

This is a great place to start and there is no reason to reinvent the wheel in most cases. File the ‘standard’ Discovery Order as soon as possible if you believe the case is headed for trial. Complete the Discovery Order with the case number, the juvenile Respondent’s name and date of birth, and present the Discovery Order to the prosecutor assigned to the case for their signature.

After it is signed by both attorneys, the Discovery Order must be filed with the clerk of the Court and then presented to the Court for signature and entry. Remember the golden rule of all Defense Practice: CYA. Present a copy of the signed Discovery Order to the clerk upon filing and get a date-stamp on your copy. Request and obtain a certified copy after the Discovery Order is signed by the Court. Record relevant dates in your calendar to ensure the State’s compliance. Finally, you need to provide a copy of the Discovery Order to the prosecutor assigned to the case to comply with service requirements.

Once that is done, filed, and signed, look closely at your case and examine what, if anything, the State provides to you.

When you find that you need more than they provide, or when the State provides nothing, you will need to craft a ‘supplemental’ motion for discovery. If you think of additional items you want the State to provide, craft a ‘supplemental’ motion for discovery. In this process you need to be specific and base your requests in specific facts and law. Do not reinvent the wheel and ask for things already granted. Once you have the ‘standard’ discovery motion in place, the assumption by the State and the Court will probably be that you have gotten all you are entitled to. Show ‘good cause’ and good law and go back to the Court.

You must request a hearing date for any discovery motion that provides at least seven (7) days notice to opposing counsel. Check with the clerk of the Court regarding the procedure to set a hearing, and be sure to request a date and time when the Court routinely hears motions for juvenile cases. Include a notice of hearing in the motion for discovery to prove, if necessary, written notice of the hearing date. You must prepare and file a proposed discovery order before or at the hearing. If the Court grants the motion, the order must specify the time, place and manner for the State’s compliance.

This is also the procedure for your specific Brady motion, Motion to Disclose Experts, and other motions. Get them filed, prove service, and hold the State to compliance.

You will be pleased with the results.

15

SPECIFIC MOTIONS TO “KEEP STUFF OUT”

Motions to Suppress - Generally

A motion to suppress is the proper vehicle to challenge illegally obtained evidence. Franks v. Delaware, 438 U.S. 154 (1978), on remand 398 A.2d 783 (Del.1979). On a motion to suppress, the Respondent has the initial burden to establish that a search or seizure occurred and that no warrant was obtained. The burden then shifts to the State. If the State produces a warrant, the burden shifts to the Respondent to show the warrant invalid, but where no warrant exists, the burden is on the State to prove the legality of the warrantless search. Russell v. State, 717 S.W.2d 7 (Tex.Cr.App.1986), on remand 739 S.W.2d 923 (Tex.App-Dallas 1987), review dismissed 772 S.W.2d 129 (Tex.Cr.App.1989). When deciding a motion to suppress, the Court can determine the merits on the motion itself, on opposing affidavits, or on oral testimony, all at the Court’s discretion.

In the context of juvenile representation, I feel that it is necessary to divide the discussion of motions to suppress into two parts. First, I will provide a general discussion concerning evidence in general. Next, a more specific discussion concerning motions to suppress statements taken from a juvenile will be offered. Experience shows that the police do not know or follow the law concerning juvenile confessions a startling percentage of the time. Considering the absolutely damning effect of a confession at trial, this deserves separate treatment.

Suppression of Evidence - Generally

Step One - Look for Searches and Seizures

The Fourth Amendment of the United States Constitution provides that:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized

Article I, Section 9, of the Texas Constitution provides that:

The people shall be secure in their persons, houses, papers, and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause supported by oath or affirmation

If your case has a search or seizure without a warrant then the State must be able to justify those actions. If they can’t, the result is exclusion.

16

Step Two – The Exclusionary Rule

As mentioned above, Section 51.17(c) of the Texas Family Code provides that Articles 33.03 and 37.07 and Chapter 38 of the Code of Criminal Procedure apply in a judicial proceeding under Title 3 (‘Juvenile Justice Code’). Article 38.23 of the Code of Criminal Procedure (entitled ‘Evidence Not to be Used’) provides that:

(a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case. In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.

Texas Code of Criminal Procedure, Article 38.23(a).

Further, Section 54.03(e) of the Texas Family Code provides, in part, that “Evidence illegally seized or obtained is inadmissible at an adjudication hearing.”

Step Three - File that Motion to Suppress

If you believe your case contains illegally obtained evidence of any kind, the motion to suppress is the vehicle to cure the issue. As a general issue, make it a point to refer to both US Constitution and Texas Constitution provisions, as well as Article 38.23, and Section 54.03. In most cases, the protections under the Texas Constitution, 38.23, and the Texas Family Code are broader and more fully encompassing.

You must file the motion in writing and serve the State with a copy. You must request a hearing and obtain a ruling. In most cases you should attempt to hold this hearing before the potential trial in the case. In many cases a successful motion to suppress will avoid a trial altogether.

SIDE NOTE: Be prepared for a standard approach to your motion by the State. Many prosecutors will oppose any attempt to conduct pretrial motions to suppress unless you agree that such hearings are dispositive of the case. One can easily understand their position. If you lose the motion to suppress to the Court, they feel you should graciously give up and plea the case. Problem is, if you do this you are depriving the client of his right to a trial and ignoring the very real possibility that one or more jurors might actually believe the evidence was illegally seized and follow that most beautiful jury charge:

“Therefore, if you believe or have a reasonable doubt thereof that the evidence in question was obtained in violation of any provision of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, then in such event you will wholly disregard such evidence and not consider it as any evidence whatsoever.”

17

Suppression of Evidence – Juvenile Statements

Let’s get this clear from the start.

JUVENILE STATEMENTS ARE DIFFERENT FROM ADULT STATEMENTS!

THE CODE AND THE LEGAL STANDARDS ARE DIFFERENT!

WHAT IS LEGAL FOR AN ADULT IS NOT LEGAL FOR A JUVENILE!

IF YOU DO NOT KNOW THE DIFFERENCES, YOU ARE HURTING YOUR CLIENT!

Am I overstating? Absolutely not. The problem is compounded by the fact that many police agencies simply do not know or follow the requirements of the Juvenile Justice Code. Many practitioners, State and Defense, assume the rules are the same. You will have to swim upstream on this issue. But the results can be very sweet. When the police don’t follow the rules, exclusion is the answer. It just falls on you to research, learn the law, and hold them to the proper standard of conduct. If you show the Court the law clearly, they will follow it. If they don’t, the error is clear. Preserve that error and the whole trial becomes discovery.

Admissibility Statute

The admissibility of a juvenile statement is not controlled by the Texas Code of Criminal Procedure; it is controlled by the more specific section in the Juvenile Justice Code. The admissibility of a statement of a child is governed by Section 51.095 of the Texas Family Code. You must read and re-read this section of the code.

Rules for written statements when the child is in custody for the statement to be admissible:

Texas Family Code, 51.095:

(a)(1)(A) the statement shows that the child has at some time before the making of the statement received from a magistrate a warning that:

(i) the child may remain silent and not make any statement at all and that any statement that the child makes may be used in evidence against the child;(ii) the child has the right to have an attorney present to advise the child either prior to any questioning or during the questioning;(iii) if the child is unable to employ an attorney, the child has the right to have an attorney appointed to counsel with the child before or during any interviews with peace officers or attorneys representing the state; and (iv) the child has the right to terminate the interview at any time;

18

(B) and:

(i) the statement must be signed in the presence of a magistrate by the child with no law enforcement officer or prosecuting attorney present, except that a magistrate may require a bailiff or a law enforcement officer if a bailiff is not available to be present if the magistrate determines that the presence of the bailiff or law enforcement officer is necessary for the personal safety of the magistrate or other court personnel, provided that the bailiff or law enforcement officer may not carry a weapon in the presence of the child; and(ii) the magistrate must be fully convinced that the child understands the nature and contents of the statement and that the child is signing the same voluntarily, and if a statement is taken, the magistrate must sign a written statement verifying the foregoing requisites have been met;

(C) the child knowingly, intelligently, and voluntarily waives these rights before and during the making of the statement and signs the statement in the presence of a magistrate; and

(D) the magistrate certifies that the magistrate has examined the child independent of any law enforcement officer or prosecuting attorney, except as required to ensure the personal safety of the magistrate or other court personnel, and has determined that the child understands the nature and contents of the statement and has knowingly, intelligently, and voluntarily waived these rights;

Rules for recorded statements when the child is in custody for the statement to be admissible:

Texas Family Code, 51.095 (5)

(A) before making the statement, the child is given the warning described by Subdivision (1)(A) by a magistrate, the warning is a part of the recording, and the child knowingly, intelligently, and voluntarily waives each right stated in the warning;

(B) the recording device is capable of making an accurate recording, the operator of the device is competent to use the device, the recording is accurate, and the recording has not been altered;

(C) each voice on the recording is identified; and

(D) not later than the 20th day before the date of the proceeding, the attorney representing the child is given a complete and accurate copy of each recording of the child made under this subdivision.

The key factor in determining the admissibility of a juvenile’s statement is the voluntariness of the statement. Under Article 38.21 of the Texas Code of Criminal Procedure, “A statement of an accused may be used in evidence against him if it appears that the same was freely and voluntarily made without compulsion or persuasion, under the rules hereafter prescribed.” Further, under Miranda v. Arizona, 384 U.S. 436 (1966), no written statement made by an accused as a result of custodial interrogation is admissible against him in any criminal proceeding unless it is shown on the face of the statement that he

19

was given the magistrate’s or peace officer’s warning. If the warnings are not there, for whatever reason, the statement stays out as a matter of law.

If, prior to giving a statement, the juvenile was brought before a magistrate, that magistrate is a witness to the voluntariness of the statement as well as other aspects of the process. However, many of the magistrates neither seek nor obtain a waiver of the juvenile’s rights. They assume, rightly or wrongly, that the police will properly obtain these waivers. Not surprisingly, this often does NOT happen. Remember, voluntariness will be assessed by the Court based on the totality of the circumstances. Courts realize that juveniles are inherently different. What is not threatening or coercive to an adult may very well be to your juvenile Respondent. Proving up the moment when a juvenile is officially ‘in custody’ is easier than for an adult. The United States Supreme Court and the Texas Court of Criminal Appeals both have held that factors such as age and sophistication must be considered in the determination of voluntariness and detention issues.

So, the requirements of 51.095 seem pretty straightforward. The Court will rule on voluntariness and ‘game over,’ right? Why the emphasis on the law and the suppression of juvenile statements? Here’s the non-secret secret that will allow you to perform miracles. Ready?

Additional Statutes to Enable Suppression

There are OTHER sections of the Family Code that can and will result in the suppression of a juvenile’s statement!

Remember our earlier discussion of Article 38.23 of the Code of Criminal Procedure and Section 54.03(e) of the Texas Family Code? They can be used beautifully to suppress juvenile statements.

How? Let’s see…

Here is where you have to dig in and learn the Code. You have to know it better than the State and the Police. You have to be prepared to correct the incorrect assumptions of the police officer in the case and the ADA who may never have actually read the provisions we are discussing. I direct you now to the provisions of Chapter 52 of the Texas Family Code, most particularly Sections 52.01 (‘Taking into Custody’), Sections 52.02 (‘Release or Delivery to Court’), and 52.025 (‘Designation of Juvenile Processing Office’). Be assured, if you read them and learn them, you will find errors by law enforcement.

Texas Family Code Chapter 52, Section 52.01 (a) outlines the specific requirements for taking a juvenile into custody. It lists with specificity who may take a juvenile into custody and what specific reasons allow such actions. If the wrong person takes your client into custody or does so for a reason not specifically enumerated in 52.01, any statement following these actions is potentially suppressible.

Texas Family Code Chapter 52, Section 52.02 (b) requires that: “A person taking a child into custody shall promptly give notice of the person's action and a statement of the reason for taking the child into custody, to: (1) the child's parent, guardian, or custodian”. The Courts have held that as little as a two hour delay in this notification can invalidate a juvenile confession3 if you can show a causal 3 Pham v. State, 125 SW3d 622 (2003)

20

connection4. So, as so often happens, your juvenile client is arrested and taken into custody by the police. If those officers don’t notify the parent or guardian, then any statement following that arrest is potentially suppressible.

Sections 52.02 and 52.025 discuss the requirements of police officers taking a juvenile Respondent into custody. These sections state, with specificity, where he must be taken, where he may be processed and how he must be handled. The code is very exacting; there are only eight specific actions that can be taken with a juvenile Respondent upon taking him into custody. Additionally, juveniles can only be processed and interrogated at designated juvenile processing offices. A juvenile cannot be processed or interrogated in a room or area that is also used for adult suspects. It must occur only in a designated juvenile processing office. If this room is used by adult suspects, it is not a properly designated juvenile processing office. Many law enforcement officers do not know this. When the police do not comply with these specific ‘black letter’ requirements, any statement following these actions is potentially suppressible.

Finally, Section 52.025 (c) states unequivocally that: “A child may not be left unattended in a juvenile processing office and is entitled to be accompanied by the child's parent, guardian, or other custodian or by the child's attorney” (emphasis added). That’s right, the parents or guardian have the right, by statute, to be present with the Respondent in the juvenile processing office. How often does that happen? The police officers generally ought to know exactly where a juvenile's guardian is, they have to notify them right?? So why don’t they notify the parent that they can be present? BECAUSE THEY DO NOT BELIEVE THAT THE PARENT HAS THE RIGHT TO BE PRESENT. In spite of the black letter law of 52.025 (c), the police will most often simply NOT allow a parent to be present during interrogation. This refusal will potentially make any subsequent statement by the Respondent suppressible.

SIDE NOTE: Be prepared for the oft-attempted parry by the Police Officer and the ADA. They will clamor that “the juvenile never requested to see his parent or guardian.” They will try this each and every time. Guess what? It doesn’t matter if the child requested it or not. “The legislature gave the choice of whether or not to be present to the parent”5. The argument sounds good, but is spurious and you must shut it down. The Code and the cases are clear. The right to be in that interrogation room vests with the parent. If the officers fail or refuse to allow the parent to be present, they are violating the law.

Jumping through the Hoops

Section 51.095, discussed above, specifically addresses admissibility. Violations of 51.095 don’t require much extra work to get to exclusion. Unfortunately, Chapter 52 of the Texas Family Code does not directly include any exclusionary language. You have to get to and through Article 38.23 of the Code of Criminal Procedure and Section 54.03(e) of the Texas Family Code to exclude evidence because of violations of Chapter 52. To do this, you must complete a number of specific steps. Luckily, the case law has clarified the procedure.

Violations of the Texas Family Code can require the suppression of an otherwise admissible statement. With these violations, the primary question is no longer whether the statement was voluntary.

4 ‘Causal connection’ is a big deal. If you can’t or don’t show a causal connection, you lose. Be prepared. This will be discussed in more detail below.5 In the Matter of CR, 995 SW2d 778 at 784 (1999)

21

Now there are two questions: (1) Did the Police violate the provisions of the Family Code? and (2) Is there a ‘causal connection’ between the violation and the evidence obtained?

The burden begins with the defense. The juvenile Respondent must produce evidence concerning violations of the above sections of the Texas Family Code. This evidence can come from the juvenile, the parents, or any witness. Often you can provide it simply from the testimony of the police officer.

Once a Respondent produces evidence of a violation of the Texas Family Code the burden shifts to the State. They must provide evidence to prove compliance with the relevant section(s). As they are often unaware of or in denial of these requirements this evidence is often lacking.

You are not in the clear yet. The final hurdle remains. You MUST prove up a ‘causal connection.’ Upon finding violations of these provisions, an analysis must be conducted to determine whether there is a causal connection between the illegality and the acquisition of evidence. In simple language, you have to show that but for the violations the police would not have obtained the statement. You will need to submit evidence from the parent or guardian and the juvenile client to achieve this.

Samples for the parent:

“If you had been notified, would you have gone to the police station immediately?”

“If you had been notified, would you have obtained representation for your child?”

“If you had been present, would you have allowed your child to confess to Capital Murder?”

Samples for the client:

“Did the officer’s placing you with adult prisoners make you feel more intimidated?”

“If your parent or attorney told you not to give a statement to the police, would you have given this

statement?”

Once you prove up a violation and a causal connection, your job is done. The Court at that point must suppress the illegally obtained evidence. To quote the Court of Criminal Appeals: “Once the illegality and its causal connection have been established, the evidence must be excluded”6.

Statement Suppression - Conclusion

6 State v. Daughtery, 931 SW2d 268 at 270 (1996)22

Make no mistake. Suppression of a client’s statement is not easy nor is it quick. It can, however, be done. You must know the law better than your opponents. You must research what really happened when your client was arrested. You must prepare, write, and argue.

But, when it works, that is the moment when you are a rock star. There is simply no way to overstate the impact of a confession. If you can keep one out, the entire tenor of a case changes.

23

SPECIFIC MOTIONS TO “CONTROL THE FLOW OF TRIAL”

1. Motion for Continuance

A trial setting may be continued upon motion for sufficient cause, supported by affidavit, or by consent of the parties, or by operation of law, pursuant to Texas Rule of Civil Procedure 251. Here is the rule, simply:

1) The motion must be written,2) The motion must state the reasonable grounds for the continuance,3) The motion must state that the continuance is “not sought for delay only, but that justice may be

done”. 4) You must swear to a ‘Verification’ stating that your reasons for seeking the continuance are true and

correct.

Officially, you must request and set a hearing, with at least three (3) days notice to opposing counsel, submit a proposed order, and obtain a ruling.

Did that get your attention? The Texas Rules of Civil Procedure allow the Court to put you to trial if you don’t comply with these rules. Are you used to asking (verbally) for a continuance on the day of trial? Surprise! The Court does not have to grant it and if it does, consider yourself fortunate. The only good side of this is that the same rules DO apply to the State.

2. Motion in Limine

Motions in limine are a topic of great debate amongst Defense Attorneys. To file or not to file, that is the question. What will be the actual effect of this motion? Will your motion in limine inform the State of an issue which might otherwise go unnoticed? If so, let the issue lie and be prepared to try to shut it out if you have law on your side. Do you know if the State IS going to bring up something you just have to try to stop? If so, prepare, present and fight that motion in limine now. Only you can effectively evaluate when the motion will best serve the interests of your client. If you believe it will help in THIS CASE, then you should prepare one.

Personally, I am very leery of motions in limine in general. You must be aware of their limitations. A motion in limine does nothing to preserve error during the trial itself. It is only as binding as the State is conscientious in following it and the State’s witnesses are controlled.

If you need one, you should file a motion in limine pretrial. This will notify the Court of possible evidentiary issues which may arise during trial and which may require a ruling on admissibility outside the presence of the jury. At some point, the Court will hold a conference to discuss and decide the matters raised in a motion in limine. You must remember that a ruling on a motion in limine does not preserve error on appeal. Only timely and specific objections to evidence proffered by the State during trial will preserve error, even evidence which is the subject of a motion in limine.

24

3. Motion to Sever Trials

Juvenile Respondents are generally tried alone. If your client has a co-Respondent who is also seeking a trial, you may request that your client be tried separately. The Juvenile Justice Code does not expressly provide a procedure for requesting separate trials, but Article 36.09 of the Texas Code of Criminal Procedure authorizes separate trials if a joint trial would be prejudicial to any defendant. Factors proving up prejudicial effect include inconsistent defenses (“He did it, Not me”) and prior criminal history of one juvenile which would be admissible, but only against one of the multiple Respondents.

If grounds for prejudice against the client exist, file a written motion setting forth the specific grounds. Provide notice to the State and request a hearing. As is always the case you must obtain a ruling to preserve a point of error on appeal.

4. Motion for Hearing on Double Jeopardy

This is a situation that is few and far between, but when it is present you cannot afford to ignore it. If the juvenile has already been adjudicated or punished for the present offense, he cannot be put to trial again.

Article 1.10 of the Texas Code of Criminal Procedure (entitled “Jeopardy”) provides that:

No person for the same offense shall be twice put in jeopardy of life or liberty; nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction

Texas Code of Criminal Procedure, Article 1.10.

The constitutional guarantee against double jeopardy extends to juveniles in delinquencyproceedings. State v. Marshall, 503 S.W.2d 875, 876 (Tex. App.-Houston [1st Dist.] 1973, no pet.)

In a jury trial, jeopardy attaches when the jury panel is impaneled and sworn to try the case. In a bench trial, jeopardy attaches when the first witness is sworn. A hung jury resulting in a mistrial does not, however, prevent the State from retrying the case. Nor is the State barred from retrying a case if the appellate court reverses the verdict and orders a new trial.

If you suspect there is a jeopardy issue in your case, act swiftly and obtain all the relevant data as soon as possible. Provide the Court and the State with evidence of the previous adjudication or trial. Request in writing the case be dismissed. Obtain a ruling. If you are right, the case is done.

CONCLUSION25

All this space, time, and ink will result in nothing if you are not willing to put these points into practice. I would like to conclude with a couple of general suggestions that really didn’t fit elsewhere. Hopefully they will aid you in your practice and may make the way smoother.

Find a friend. Many attorneys simply don’t want to push paper. They want to hustle up clients, generate business, and generally be important. Please understand, I am in no way disparaging this. Many of those folks have practices that are extremely successful. Would I argue with success? Heck no! But you have to know that being busy does not remove the necessity for getting this stuff done. Hence my suggestion, find a friend. If you don’t want to do the writing then find someone who does. There are attorneys, paralegals and interns out there.

Even if you like, or are comfortable with, creating and crafting motions, you still need to cultivate friends and colleagues who can read, review, and assess your work. A second set of eyes is invaluable. Once your motions are before the Court, it is too late to find out you had a bad “copy and paste” error or cited to the wrong case. Find someone you like who will give you honest and, if necessary, brutal feedback. Better to be drubbed while you can still fix it than at the bench in front of the State and your client.

My final suggestion may sound a bit controversial, but please bear with me.

Steal from the best. I have stated more than once that you need not and should not reinvent the wheel. Find what has been done and what has worked before. Take that and make it yours.

“If I have seen further it is by standing on ye shoulders of Giants (sic)”-Isaac Newton, 1676

Ever wished you had a better (or any) research staff? You do! Think of this: there are lawyers out there that are absolute experts in each of the issues we have discussed in this paper. Name your own favorite local superstar. Each of these lawyers is out there working every day. Whenever they produce a motion, writ, or appeal they are helping you to get better. Find examples and samples and use them to make your work better. Do you know that a particular attorney just successfully suppressed evidence similar to your client’s? Wouldn’t it be at least prudent to see what actually works? I am not advocating plagiarism, simply good research habits. Find what has worked and what has been produced by attorneys you respect. Use that work to make your work better.

Thanks for your kind attention and I hope that this in some way helps.

26