leininger - 01 - ptm.presentation€¦ · arraignment to appointment of an ... style motions, when...

Katie Leininger

Assistant City Attorney

City of Pearland

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.

Objectives

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.

Getting to know you

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

Why file pretrial motions?

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 3 – notice may be by

Announcement made in open court in presence of Δ/counsel

Personal service on Δ/counsel

By mail to Δ/counsel

Note: if envelope is shown to have been properly addressed, stamped, and mailed, State does not have to prove it was received

Section 2

Assuming ten days notice to defendant, any matters not raised or filed seven days before hearing may be waived

Judge has broad discretion re: whether Δ gave notice of intent to raise argument (866 S.W.2d 243)

Legal basis for pretrial hearing: CCP Art. 28.01

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

Who files motions?

Motion for new trial

Motions in limine

Motion to disqualify judge

Motion to dismiss PO

Double jeopardy

Motion for discovery

Motion to continue

Motion to quash

Motion to suppress

Motion to appoint interpreter

Common types of defense motions

Motion to continue (CCP 28.01(5); CCP Ch. 29)

Filed by either party, based on grounds previously not known or existing (illness, etc.)

May be presented/considered at any time before Δ announces ready for trial, or after trial begins under CCP 29.13

Motion must be sworn by a person having personal knowledge (CCP 29.08)

Motion for discovery (CCP 28.01 (8); CCP 39.14)

Duty to disclose? What do they want?

Who has it?

Disclosure prohibited?

Work product?

Note: requirements are now different for pro se and those with defense counsel

Defense motions

Motion to suppress (CCP 28.01(6)) Goal of keeping evidence, testimony, etc. out of trial

May include constitutional basis for argument (Terry, etc.)

State may appeal if granted by court (CCP 44.01)

Allege: improper traffic stop, improper search, testimony is hearsay, etc.

Motion to quash (CCP 28.04) Defendant shall be discharged if motion is granted

Defendant may be again prosecuted for same offense within the statute of limitations

Allege: improper charge, complaint contains errors, ofc. improperly enforcing a law, vagueness, etc.

Defense motions

Motion for new trial (CCP 45.037) Δ must make motion within five days after rendition of judgment and sentence

Judge may, not later than 10th day after date judgment entered, grant Δ a new trial

But, court shall grant motion if properly made w/in 10 days after date of judgment in case of bond forfeiture upon FTA (CCP 45.044(c))

Motion to appoint interpreter (CCP 28.01(10)) Should be presented 7 days before hearing, or waived (28.01 § 2)

BUT CCP 38.30(a) bases it on when judge becomes aware witness or Δ doesn’t understand English AND

Gov’t Code 57.002(a) says Court shallappoint upon motion of party or request by witness

Defense motions

Motion to disqualify judge (CCP Ch. 30)

Judge shall not sit in any case where

He is the party injured, or

Has been of counsel for either side, or

Where he’s connected to Δ or injured party by consanguinity or affinity w/in 3rd degree

Note: potential conflict of interest not sufficient to DQ a prosecutor or her whole office (877 S.W.2d 469)

Motions in limine

Goal of excluding certain topics, facts, testimony, etc. b/c prejudicial

Must be raised before voir dire, outside presence of jury

Act as temporary evidentiary ruling (subject may still be allowed in later)

If adverse ruling, get facts on the record using an offer of proof (outside presence of jury)

Defense motions

Double jeopardy (CCP 28.13) Alleges Δ has already been adjudicated for the offense at issue

Look at what charge(s) listed on the citation vs. on the complaint

Look at what charge(s) disposed vs. pending

Motions regarding protective orders (Family Code Title 4) Courts with jurisdiction over POs include District Court Domestic Relations Court Juv. Court w/Dist. Court Jdxn. Stat. County Court Cons. County Court Any other court w/express jdxn. over Tex.

Fam. Code Title 4 cases

Municipal courts are not on the list, so this needs to be filed elsewhere

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

State’s response to defense 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

Responses to pro se motions

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.

Other things to remember:

Notice of intent to offer evidence of extraneous crimes

Notice of intent to offer evidence of conviction of prev. crim. acts

Notice to consolidate cases

Motion to compel fingerprints

Motion to adjudicate guilt

Motion to quash

Motion to dismiss

State’s witness list

State’s motion for notice of defense expert witness

Motion to vacate judgment

Motions in limine

Types of motions filed by State

Motion to dismiss (CCP 32.02)

Requires judicial consent, and usually a prosecutor request

This may mean you cannot refile

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

Motion to quash

May be used if wrong charge filed, other problems with charge

Defendant may be again prosecuted for same offense within the statute of limitations

State’s motions

State’s motion for notice of defense expert witness

Trial judge may refuse to permit expert to testify when Δ has not given req’d notice of expert’s identity to State before trial (233 S.W.3d 109)

This might come up with radar/LIDAR, assault, etc.

State’s witness list

On motion of party, other party entitled to this not later than 20 days prior to trial (CCP 39.14(b))

Include names where known, title if name unknown

Contact information given for officers (and possibly others) may be work info

State’s motions

Motions in limine

Can be used to narrow discussion at trial or protect a witness from character attack

Must be raised before voir dire

Temporary ruling (subject may still be allowed in later)

Motion to vacate judgment

TRCP 329b, this generally applies to civil, not criminal, cases

If there is a problem with a judgment, a motion for judgment nunc pro tunc can correct errors (typo in dollar amount of fine, etc.) TRCP 316; 329b(f)

State’s motions

Notice of intent to offer evidence of conviction of prev. crim. acts To attack credibility of witness, evidence of conviction shall be admitted if certain guidelines met (TRE 609)

BUT, not admissible at trial unless sufficient advance written notice given to adverse party (TRE 609(f))

Most juvenile adjudications not admissible (TRE 609(d))

Notice of intent to offer evidence of extraneous crimes Evidence of crimes/wrongs/acts used to show proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake in case in chief (TRE 404(b))

Information used by jury in assessing punishment (CCP 37.07)

State’s motions

State’s motions Notice to consolidate cases (TRCP 174(a)) Request to try all matters involving common question of law or facts

Court may order joint hearing or trial, or make other orders to avoid unnecessary costs or delay

TRCP 174(b) covers separation of cases to avoid prejudice

Motion to adjudicate guilt State’s request for judge to find defendant guilty after violating a term of deferred disposition

May require a hearing depending on violation, wording of plea agreement

Motion to consider complaint timely

Motion to compel deposition of a witness

Someone moves for a mistrial

Others?

Other motions

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

Bonus motion you never want to lose:

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.


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 ______.


__________________________ 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.


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.


__________________________ 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.


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


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.


__________________________ 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.


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


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 ______.


__________________________ 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.


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


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.


__________________________ Judge Presiding

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