DWI Law - Texas Safe and Sober Program Nets Driver

I like reading Texas DWI appeals. When I see how badly the defendants in Texas and their Texas defense attorneys get screwed both on trial and on appeal, I somehow cannot help but feel that I have been housed in the nicest building in the concentration camp. The below case is an example of one of those cases that gives me that 'cold, nonfuzzy feeling' described above.

In Alcorta v. Not Reported in S.W.3d, 2011 WL 3672091 (Tex.App.-Hous. (14 Dist.)), the prosecutor failed to tell the defense attorney that the cop was working under a "DWI Safe and Sober" grant. Defense counsel did not learn of the same until the cop testified on direct during the trial. Rather than cross-examining the cop, the defense counsel upon learning that such was the case, immediately issued a subpoena for the records keeper (Mitchell) to appear the next day with the grant documents. It was counsel's intention to re-call the arresting officer once the documents were produced, but the prosecutor released the cop from trial.

The records keeper failed to appear under subpoena the next day. Although appellant asserted in his motion for new trial that the trial court denied a request for continuance, according to the appellate court the record did not reflect that appellant ever moved for a continuance. (The appeals court was apparently unwilling to accept the word of defense counsel absent extrinsic proof of the truth of his assertion). The defendant was found guilty thereafter.

Defense Counsel filed a motion for new trial. The trial court admitted into evidence the subpoena directing Mitchell to appear at trial. The subpoena does not reflect what time it was served on July 13, 2010. The trial judge also admitted into evidence documentation relating to the grant program. Trial counsel testified that had he received the documents, he would have laid the predicate for admissibility, recalled Officer Murray and questioned him about the grant program, and questioned Mitchell about how the police department benefits from the grant. Trial counsel explained that he did not cross-examine Officer Murray about the grant program because he did not have the documents.

 The evidentiary hearing on appellant's motion for new trial centered primarily on documentary evidence of the grant program and the subpoena and service thereon in procuring those documents. Appellant's trial counsel testified that although a subpoena was served on Mitchell on the day of trial, the grant program documents were not received until a couple of days following the jury's verdict. According to trial counsel, had he received the documents in time, he would have recalled Officer Murray to question him about the grant. Trial counsel explained that he did not cross-examine Officer Murray about the grant program because he did not have the documents.

*6 The prosecutor testified that Officer Murray had been excused at the end of his trial testimony. The prosecutor stated that Officer Murray would not have been subject to cross-examination of the grant program documents because he had been excused by the trial court with the agreement of both parties. The trial judge clarified that had the officer been subject to recall, she would have considered that as a “heads up” and that she may have allowed the officer to testify again. Neither trial counsel nor the trial judge could remember whether the officer was subject to recall, but they agreed that the record will speak for itself. The trial record reflects that, contrary to the prosecutor's testimony, at the conclusion of his testimony, Officer Murray was excused subject to recall and that the trial court ensured the State had a contact number by which to reach the officer at a later time.

In denying the motion for new trial, the trial judge noted that because appellant's trial counsel did not cross-examine Officer Murray about the grant program, she could not rule on whether the grant documents would have been relevant or admissible without knowing what arguments trial counsel would have made at that time. The trial judge could not remember the off-record discussions at trial relating to the grant program documents. The trial court denied the motion based on the testimony at the evidentiary hearing.

On appeal, the court wrote as follows:

"According to appellant, as raised in both his second and third issues on appeal, the State failed to disclose evidence that Officer Murray was working pursuant to the state-funded DWI grant program at the time of appellant's arrest. Appellant points to the grant program documents, as produced at the hearing on his motion for new trial, as being material and favorable evidence to his defense that was withheld in violation of his due process rights under Brady v. Maryland. See 373 U.S. 83, 87, 83 S.Ct. 1194, 1196–97, 10 L.Ed.2d 215 (1963). We presume for the sake of argument that the grant program documents in question constitute Brady material. The opportunity to request a continuance once Brady material is disclosed at trial adequately protects due process. See Payne v. State, 516 S.W.2d 675, 677 (Tex.Crim.App.1974). When, as in this case, the State's failure to disclose Brady material is discovered during trial, the accused is entitled to a recess to obtain production of the material, even if the defense did not make pre-trial efforts to obtain it. Crawford v. State, 892 S.W.2d 1, 4 (Tex.Crim.App.1994). When an accused fails to request a continuance, he waives any error resulting from the State's failure to disclose evidence. See Lindley v. State, 635 S.W.2d 541, 543–44 (Tex.Crim.App.1982). The record does not reflect that appellant sought a postponement or moved for continuance upon learning of the grant program,^FN1 which would have allowed him time to address the impact of the evidence and develop any necessary response to it. Appellant did not seek this relief and consequently waived any error. See Taylor v. State, 93 S.W.3d 487, 502 (Tex.App.-Texarkana 2002, pet. ref'd); Williams v. State, 995 S.W.2d 754, 762 (Tex.App.-San Antonio 1999, no pet.); see also Lindley, 635 S.W.2d at 544; Zule v. State, 802 S.W.2d 28, 33 (Tex.App.-Corpus Christi 1990, pet. ref'd)."

FN1. Although appellant asserted in his motion for new trial that the trial court denied a request for continuance, the record does not reflect that appellant ever moved for a continuance. Appellant did not address this assertion at the hearing on his motion for new trial.

After the appeals court refused to believe defense counsel's assertion that he requested a continuance (and that it was denied), the court found waiver of the issue on appeal. What is distressing about this part of the appeal is that apparently the neither the prosecutor nor the trial court disagreed with the defense counsel's assertion that he sought a continuance. In fact, there were several off-the-record discussions, as noted by the appellate court. So why was defense counsel's statement that he asked for a continuance completely ignored by the appellate court?

A second ground raised involved playing the video portion of the HGN test.  During the trial the court privately viewed the video and suppressed the results of the HGN, as having been improperly administered. Nevertheless it still allowed the video portion of the tape showing the HGN test to be played in front of the jury to show the defendant was swaying. On this issue the appeals court wrote:

"The trial court excluded the audio portion of the HGN test from evidence because Officer Murray failed to follow proper procedures in administering the test; that ruling is not contested on appeal. See Emerson v. State, 880 S.W.2d 759, 768–69 (Tex.Crim.App.1994). But, appellant's physical behavior during the test is relevant for the purpose of evaluating his physical faculties, and the portion of the video shown during trial without audio was admissible for that purpose. See Miffleton, 777 S.W.2d at 80. Therefore, the trial court did not err in admitting the video-only portion of the HGN test in which appellant allegedly swayed. See id. We overrule appellant's fourth issue."

Concluding, the appellate court affirmed the conviction in this matter.

Editor's note: It is dismaying that an appellate court would not accept as fact that a continuance was requested and denied, when an officer of the court swore as such in his post-trial motions filed with the trial court and in his appellate brief, when such an averrance was not contested by the trial court nor the prosecutor.

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DUI Appeal - North Dakota Blood Test Discovery Mistakes Not Sanctioned

In North Dakota v. Sauer, --- N.W.2d ----, 2011 WL 987169 (N.D.), 2011 ND 47, the defendant filed a detailed discovery request for information, which included any blood testing notes or reports. The State claimed that they had complied with the request, and the matter was set for trial some 4-5 months later. Lisa Hentges, a forensic scientist with the North Dakota Crime Lab, testified about her analysis of Sauer's blood sample. During Sauer's cross-examination, Hentges mentioned she had a case file, which included her notes and a print out of the test results from the blood tests she performed on Sauer's blood sample. Sauer asked the district court for a brief recess so he could review the file because he claimed the State did not provide him with a copy of the file in response to his discovery request. The State admitted it did not provide Sauer with a copy of Hentges' file, but claimed the discovery request was very detailed and it “didn't notice” the request for the testing notes.

The court questioned Sauer's attorney about why he did not move to compel discovery of the testing notes, and Sauer's attorney said he did not know they existed. The court provided Sauer's attorney with the brief break he requested to allow him to view the file. After the break, Sauer's attorney requested a continuance of the trial. The court denied Sauer's request for a continuance and found the case file was not material to preparing a defense and Sauer should have brought a motion to compel if he felt he did not have something he needed. Sauer continued his cross-examination of Hentges. Later, the court ordered the State to provide a copy of the case file to Sauer's attorney after court concluded for the day.

The trial court granted Sauer's request for a brief continuance to allow his attorney to inspect the case file before continuing to cross-examine Hentges. The court also ordered the State to make a copy of the case file available to Sauer's attorney after the first day of trial and he had until the next afternoon to look at the case file. Sauer's attorney failed to pick up the copy of the file. The court granted Sauer's request to make the case file a trial exhibit, but Sauer's attorney indicated he did not want the case file admitted into evidence at the trial.



On appeal, the Supremes found that the trial courts offer of a brief recess was sufficient to remedy the violation. "Sauer has not shown he was significantly prejudiced by the State's discovery violation. We conclude the court did not abuse its discretion by denying Sauer's request for a continuance." Of course, like most defense attorneys in this field, the information in the lab file was not likely decipherable by an untrained attorney in the absence of an expert's review of the same, and one to one-and-a-half days of a 'recess' wouldn't let the defense attorney get up to speed. The Supreme Court opinion fails to note that likely dilemma.



If there is one good morsel to take from the opinion, it is the following unenforced threat by the Court:

"Our opinion in this case places all prosecutors on notice that N . D.R.Crim.P. 16 does not allow them to shift the burden of obtaining materials in the hands of other governmental agencies to the defendant. We further caution that, although a showing of prejudice is generally required before reversing a criminal conviction for a discovery violation, reversal for conduct which is merely potentially prejudicial may be warranted as a sanction for institutional non-compliance and systemic disregard of the law if the conduct is commonplace."

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