                                                                            WR-81,953-06
                                                             COURT OF CRIMINAL APPEALS
                                                                              AUSTIN, TEXAS
                                                           Transmitted 1/23/2015 4:56:23 PM
                                                             Accepted 1/26/2015 8:15:17 AM
                                                                               ABEL ACOSTA
                            NO. __________________                                     CLERK

In re STATE OF TEXAS                   §   IN THE COURT OF    RECEIVED
                                                       COURT OF CRIMINAL APPEALS
                                       §                      1/26/2015
ex rel MICHAEL MUNK, District          §                 ABEL ACOSTA, CLERK
                                           CRIMINAL APPEALS
                                       §
Attorney, 106th Judicial District      §   IN AUSTIN, TEXAS




                         STATE’S APPLICATION FOR
                           WRIT OF PROHIBITION




                                       MICHAEL MUNK
                                       District Attorney
                                       106th Judicial District
                                       P.O. Box 1124
                                       Lamesa, TX 79331
                                       806-872-2259
                                       806-872-3174 fax
                                       michael.munk@co.dawson.tx.us
                                       SBN 24052943

                                       ATTORNEY FOR STATE




Oral argument waived                                     January 23, 2015
                     LIST OF PARTIES AND COUNSEL



Relator                           Counsel

State                             Michael Munk, District Attorney
                                  106th Judicial District
                                  SBN 24052943
                                  P.O. Box 1124
                                  Lamesa, TX 79331
                                  (806) 872-2259
                                  (806) 872-3174 fax
                                  michael.munk@co.dawson.tx.us


Respondent                        Counsel

Hon. Carter T. Schildknecht,      Unknown at this time
  Judge, 106th District Court
                                           TABLE OF CONTENTS


List of Parties and Counsel.....................................................................................ii

Table of Contents...................................................................................................iii

Index of Authorities...............................................................................................iv

Application..............................................................................................................1

Factual Background................................................................................................2

Argument.................................................................................................................7

Prayer....................................................................................................................11

Certificate of Service............................................................................................12

Certificate of Compliance.....................................................................................13

Appendix...............................................................................................................14
                                      INDEX OF AUTHORITIES

STATUTES

TEX. CODE CRIM. PROC. ART. 39.14..................................................................2, 7-9

TEX. CODE CRIM. PROC. ART. 44.01..........................................................................1


CASES

Brady v. Maryland, 373 U.S. 83 (1963)..................................................................8

Dalbosco v. State, 978 S.W.2d 236 (Tex. App.—Texarkana 1998, pet. ref’d).......8

Dickens v. Court of Appeals, 727 S.W.2d 542 (Tex. Crim. App. 1987)..................7

Harm v. State, 183 S.W.3d 403 (Tex. Crim. App. 2006).........................................9

Hoffman v. State, 514 S.W.2d 248 (Tex. Crim. App. 1974)....................................7

In re State, 162 S.W.3d 672 (Tex. App.—El Paso 2005, no pet.)...........................7

In re State ex rel. Munk, 2014 Tex. App. LEXIS 12212 (Tex. App.—Eastland
       Nov. 10, 2014)..........................................................................................4, 9

In re Stormer, 2007 Tex. Crim. App. Unpub. LEXIS 1154 (Tex. Crim. App.
       June 20, 2007)...............................................................................................7

In re Watkins, 2008 Tex. App. LEXIS 1145 (Tex. App.—Dallas
       Feb. 15, 2008, no pet.).................................................................................. 9

In re Watkins, 367 S.W.3d 932 (Tex. App.—Dallas 2012, no pet.).........................9

In re Watkins, 369 S.W.3d 702 (Tex. App.—Dallas 2012, no pet.).....................7, 9

Kyles v. Whitley, 514 U.S. 419 (1995).....................................................................8

Menefee v. State, 211 S.W.3d 893 (Tex. App.—Texarkana 2006, pet. ref’d).........7
State ex rel. Wade v. Stephens, 724 S.W.2d 141 (Tex. App.—
       Dallas 1987, no pet.)..................................................................................8-9

State ex rel. Hill v. Court of Appeals for the Fifth Dist., 34 S.W.3d 924
       (Tex. Crim. App. 2001).................................................................................9
In re STATE OF TEXAS                                       §      IN THE COURT OF
                                                           §
ex rel MICHAEL MUNK, District                              §      CRIMINAL APPEALS
                                                           §
Attorney, 106th Judicial District                          §      IN AUSTIN, TEXAS

                                    STATE’S APPLICATION FOR
                                      WRIT OF PROHIBITION

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

          NOW COMES the State, by and through its District Attorney for the 106th

Judicial District of Gaines County, and respectfully requests this Honorable Court

to grant this Application and issue a writ of prohibition preventing the 106th

District Court from requiring, absent a showing of good cause, that the State

generate and provide to defendants criminal histories of the State’s non-law-

enforcement witnesses in any future cases. Judge Carter T. Schildknecht of the

106th Judicial District1 has repeatedly ordered the State to produce criminal

histories for all of the State’s non-law enforcement witnesses and provide them to

defendants, without regard to whether such histories exist or are in the State’s

possession. Relator’s right to appeal is limited to those grounds enumerated in

TEX. CODE CRIM. PROC. ART. 44.01, none of which address such orders or would

protect Relator from having to produce the discovery contemplated by




1
    The 106th Judicial District encompasses a large area and is composed of Dawson, Gaines, Garza, and Lynn
    Counties. Garza and Lynn Counties lie within the geographic jurisdiction of the 7th Court of Appeals in Amarillo,
    while Dawson and Gaines Counties lie within the jurisdiction of the 11th Court of Appeals in Eastland.


                                                          1
Respondent’s orders; thus, the State has no adequate remedy at law. Furthermore,

Relator has a clear right to the relief sought.

      The trial court has no authority to order the State to provide discovery that

exceeds the scope of TEX. CODE CRIM. PROC. ART. 39.14, as that article existed prior

to its amendment via the Michael Morton Act or as it exists today.


                             FACTUAL BACKGROUND

      As recently as June 17, 2014, at a hearing regarding State v. Bobby Glenn

Blair, Garza County cause # 13-2673, Respondent stated on the record: “I am

certainly not ordering the State to run any NCIC or TCIC records….If it is not [in

the State’s possession], they do not have to go out and seek it.” Since that time,

however, Respondent has changed her stance, regularly ordering the State to

perform criminal history searches and provide the results to defendants. As a

result, Relator has had to repeatedly petition the Courts of Appeals and the Court of

Criminal Appeals for mandamus relief.

      On August 11, 2014, Relator was ordered to provide criminal histories in the

Lynn County case of State v. Sammy Carl Williams, trial cause # 14-3151. Relator

immediately filed an emergency petition with the 7th Court of Appeals at Amarillo,

since trial was due to begin with jury selection that Friday, August 15, 2014.

Relator was unable to obtain a transcript of the pretrial hearing in time to include it

with Relator’s petition. The 7th Court of Appeals denied Relator’s petition, stating,

                                            2
“we do not see the language in Respondent’s order of which Relator specifically

complains.” In re Munk, 2014 Tex. App. LEXIS 9083 (Tex. App.—Amarillo Aug.

15, 2014).

      On September 2, 2014, in the Garza County case of State v. Oscar Fisher,

cause # 14-2685, a hearing was held regarding pretrial motions filed by the

Defendant. Defendant’s motion requested criminal histories of the State’s non-

law-enforcement witnesses; at the hearing, however, counsel for Defendant orally

withdrew that portion of his motion. Appendix A p5 line 7-9. Respondent replied,

“Well, the Court’s going to order the State to -- to provide criminal histories on

each one of its non-law enforcement witnesses. That is -- that is the custom of this

Court.” Appendix A p5 lines 10-13. On September 15, 2014, Relator petitioned

the Court of Criminal Appeals for writs of mandamus and prohibition in cause

numbers WR-81,953-03 and WR-81,953-04. Relator was denied leave to file his

petitions on November 11, 2014.

      On October 6, 2014, Relator petitioned the 11th Court of Appeals regarding

a similar over-broad discovery order issued in the Gaines County case of State v.

Desirae Mata, cause # 14-4487. On November 10, 2014, in cause 11-14-00268-

CV, the 11th Court of Appeals conditionally granted Relator’s request for a writ of

mandamus to require Respondent to withdraw her order directing Relator to

perform criminal history searches on all of Relator’s non-law-enforcement



                                          3
witnesses and provide the results to the Defendant. In re State ex rel. Munk, 2014

Tex. App. LEXIS 12212 (Tex. App.—Eastland Nov. 10, 2014). Because

Respondent withdrew the order and substituted an order in compliance with the

decision of the 11th Court of Appeals, the mandamus was not issued, and the

emergency stay was dissolved.2

          Since that time, however, Respondent has engaged in a repeated pattern of

issuing orders that violate the opinion of the 11th Court of Appeals and existing

case law:

      On November 12, 2014, at a pretrial hearing in Dawson County for cause

          14-7365, State v. Noverto Jesus Gutierrez (Appendix D), counsel for

          Defendant requested that the State generate and provide criminal histories

          for all of the State’s non-law-enforcement witnesses. Respondent made note

          that the case occurred on January 1, 2014, and was subject to the Michael

          Morton Act. Respondent stated, “I’m not saying anything about anything

          from the opinion from the 11th Court of Appeals in this case.” Appendix C

          p5 lines 21-23. When pressed to articulate why a post-Morton case would

          be different from a pre-Morton case with regard to criminal histories not in

          the State’s possession, Respondent simply stated, “I’m granting the

          defendant’s request for discovery.” Appendix C p6 line 25-p7 line 1. When
2
    Notably, Nicomedes Sosa, a co-defendant of Desirae Mata, filed a motion for discovery requesting criminal
    histories of the State’s non-law-enforcement witnesses many months earlier. Although their cases involved the
    same evidence and witnesses, Sosa’s motion was heard and denied on April 24, 2014. See Appendix B.


                                                          4
          the State asked for clarification as to whether the order required the State to

          search for and provide histories not already in the State’s possession,

          Respondent carefully replied, “I think the record is clear that I have granted

          the defense’s request for discovery.” Appendix C p7 lines 18-19.

          Respondent would clarify her order no further.3


       On December 1, 2014, at a pretrial hearing in Lynn County for Cause # 14-

          3145, State v. Virginia Aleman (Appendix D), Respondent again granted a

          motion for discovery requiring production of criminal histories for all non-

          law-enforcement witnesses, over the objection of the State. Appendix D p10

          lines 6-7. Respondent did not require the Defendant to show that such

          histories existed or that they were in the possession of the State. Again,

          when asked to clarify her order on the record as to whether or not it required

          the production of histories not already in the State’s possession, Respondent

          replied, “I have ruled already.” Appendix D p10 lines 8-11.


       Also on December 1, 2014, at a pretrial hearing in Lynn County for Cause #

          14-3152, State v. Ricardo Liendo Quintero (Appendix E), Respondent

          granted another motion for discovery requiring production of criminal

          histories of non-law-enforcement witnesses, over the objection of the State.
3
    State v. Gutierrez has since been disposed of by way of a guilty plea, without the State having to produce the
    ordered criminal histories. The transcript is included here, however, to illustrate Respondent’s growing disdain for
    the opinion of the 11th Court of Appeals, issued only two days prior.



                                                            5
   Appendix E p7 lines 13-15. Once again, Respondent did not require the

   Defendant to show that such histories existed or that they were in the

   possession of the State. When Relator stated that, unless the order was

   further clarified on the record, the State would only provide histories in the

   actual possession of the State, Respondent replied, “I don’t believe we’re

   going to the 11th Court in this county.” Appendix E p8 lines 19-20. Again,

   when asked to clarify her order on the record as to whether or not it required

   the production of histories not already in the State’s possession, Respondent

   replied, “I have made my ruling.” Appendix E p9 line 8.


 On December 3, 2014, at a pretrial hearing in Dawson County for Cause #

   13-7340, State v. Andrew Ogeda (Appendix F), Respondent again granted a

   motion for discovery requiring production of criminal histories. On this

   occasion, only two histories were requested, as only two persons on the

   State’s witness list were non-law-enforcement witnesses. On this occasion,

   Respondent noted that it was a pre-Morton act case, but stated on the record

   that, “The Court has said that it does not think that is an undue burden on the

   State to provide those. And they are to be provided….” Appendix F p6

   lines 23-25—p7 line 1. This statement is in direct conflict with the 11th

   Court of Appeals’ holding in cause 11-14-00268-CV regarding this specific

   Respondent.


                                       6
                                   ARGUMENT

   TEX. CODE CRIM. PROC. ART. 39.14 is a limiting statute; it grants a trial court

limited authority to order the production of any documents which contain evidence

material to any matter involved in the action. In re State, 162 S.W.3d 672, 676

(Tex. App.— El Paso 2005, no pet.). A criminal defendant’s right to discovery is

limited to exculpatory or mitigating evidence in the State’s possession, custody, or

control. Id, citing Dickens v. Court of Appeals, 727 S.W.2d 542, 551 (Tex. Crim.

App. 1987).

   The State has no duty to seek out exculpatory information independently on the

defendant’s behalf. Menefee v. State, 211 S.W.3d 893, 904 (Tex. App.— Texarkana

2006, pet. ref’d). A court has no discretion to order discovery beyond the scope of

article 39.14 or to circumvent its limits. Hoffman v. State, 514 S.W.2d 248, 252

(Tex. Crim. App. 1974). A trial court does not have the authority to order the State

to create a document that it does not already have. In re Stormer, 2007 Tex. Crim.

App. Unpub. LEXIS 1154 (Tex. Crim. App. June 20, 2007) (not designated for

publication). TEX. CODE CRIM. PROC. ART. 39.14 does not authorize a court to

impose a duty on the State to seek out and obtain information for the benefit of the

defense. In re Watkins, 369 S.W.3d 702, 706 (Tex. App.—Dallas 2012, no pet.).

   In issuing her discovery orders, Respondent is exceeding the permissible

bounds of article 39.14, both prior to and subsequent to its amendment by the



                                          7
Michael Morton Act. Respondent does not require defendants to make any

showing of good cause, any showing that the information sought actually exists, or

that it is in the possession of the State. Respondent also has not required

defendants who ask for criminal histories to make a showing of materiality, as

required by TEX. CODE CRIM. PROC. ART. 39.14(a) (both prior to the effective date

of the Michael Morton Act and as amended), Brady v. Maryland, 373 U.S. 83

(1963), and Kyles v. Whitley, 514 U.S. 419 (1995).

      It is important to note that the information that the various defendants seek to

discover is easily available by other means. Access to the Texas Department of

Public Safety’s public criminal history database is available to any free registrant at

the DPS records website4. Performing a search costs approximately $3.58 as of

January 2, 2015. While there is no “public records” exception to the Brady rule,

documents that are part of public records are not deemed suppressed by the State if

the defense should know of them and fails to obtain the records because of a lack

of diligence in his own investigation. Dalbosco v. State, 978 S.W.2d 236, 238

(Tex. App.—Texarkana 1998, pet. ref’d). The State is not required to furnish

exculpatory or mitigating evidence that is fully accessible from other sources.

Harm v. State, 183 S.W.3d 403, 407 (Tex. Crim. App. 2006).

      A trial court’s criminal discovery orders must fall within the confines of the

limited authorization in Tex. Code Crim. Proc. art. 39.14. State ex rel. Wade v.
4
    https://records.txdps.state.tx.us/DPSWEBSITE/CriminalHistory/


                                                         8
Stephens, 724 S.W.2d 141, 144(Tex. App.—Dallas 1987, no pet.). Article 39.14 is

“intended…to constitute a comprehensive pretrial discovery statute, and that

criminal discovery orders must fall within the confines of that article’s limited

authorization. A corollary of this rule is that trial courts lack inherent authority to

order pretrial discovery any greater than that authorized by article 39.14.” Id.

Respondent’s orders are so broad that they require the State to run and provide

criminal histories not already in its possession to the defense. Such orders have

been held to be illegal. In re Watkins, 367 S.W.3d 932, 933 (Tex. App.—Dallas,

2012, no pet.); In re Watkins, 369 S.W.3d 702 at 706; In re State ex rel. Munk, 2014

Tex. App. LEXIS 12212 (Tex. App.—Eastland Nov. 10, 2014) at *9. A ministerial

duty exists where there is no discretionary decision to be made; that is, the duty to

enter or not enter the order is “‘positively commanded and so plainly prescribed’

under the law ‘as to be free from doubt.’” In re Watkins, 2008 Tex. App. LEXIS

1145 (Tex. App.—Dallas, Feb 15, 2008) at *3 (quoting State ex rel. Hill v. Court of

Appeals for the Fifth Dist., 34 S.W.3d 924 (Tex. Crim. App. 2001)). The trial

court therefore had no discretion to enter its discovery orders and violated its

ministerial duty.

   Defense attorneys continue to present the court with discovery motions that

request criminal histories, some of which are currently pending and have not yet

been ruled on. The State therefore requests a writ of prohibition barring the court



                                            9
from requiring the State to provide criminal histories in the future without a

showing that (1) the information actually exists, (2) that good cause exists for its

disclosure, (3) that the information is material to the case, and (4) the information

is in the State’s actual possession. Respondent has repeatedly demonstrated that

she will continue to issue orders requiring the State to generate and provide

criminal histories, even after the 11th Court of Appeals ruled that she exceeded her

lawful authority. It is clear that, unless the Writ of Prohibition is issued,

Respondent will continue to disregard the instructions of the Court of Appeals.




                                           10
                                     PRAYER


   WHEREFORE PREMISES CONSIDERED, State respectfully requests that

this Honorable Court issue a writ of prohibition ordering the 106th District Court

to refrain from ordering similar unlawful discovery in the future, absent a showing

of good cause, materiality, and actual possession.



                                              Respectfully submitted,




                                              Michael Munk
                                              District Attorney
                                              106th Judicial District
                                              P.O. Box 1124
                                              Lamesa, Texas 79331
                                              (806) 872-2259
                                              (806) 872-3174 fax
                                              michael.munk@co.dawson.tx.us
                                              Bar No. 24052943




                                         11
                         CERTIFICATE OF SERVICE
   I, Michael Munk, District Attorney for the 106th Judicial District, hereby certify

that a true copy of the above and foregoing Application for Writ of Prohibition was

transmitted by email to Judge Carter T. Schildknecht, on this the 23rd day of

January, 2015.




                                              Michael Munk
                                              ATTORNEY FOR STATE




                                         12
                      CERTIFICATE OF COMPLIANCE


      This document complies with the typeface requirements of Tex. R. App. P.

9.4(e). It has been prepared on a computer using a conventional typeface (Times

New Roman) in 14-point size. This document also complies with the word count

provisions of Tex. R. App. P. 9.4(i) because it contains 2,163 words, as counted by

the program used to create the document, excluding any parts exempted by Tex. R.

App. P. 9.4(i)(1).




                                              Michael Munk
                                              ATTORNEY FOR STATE




                                         13
        Appendix A

  Pretrial Hearing Transcript
      September 2, 2014

Garza County Cause # 14-2685,
     State v. Oscar Fisher
 1                         REPORTER'S RECORD

 2                        VOLUME 1 OF 1 VOLUME

 3                  TRIAL COURT CAUSE NO. 14-2685

 4   THE STATE OF TEXAS           ) IN THE DISTRICT COURT
                                  )
 5   vs.                          ) GARZA COUNTY, TEXAS
                                  )
 6   OSCAR CALVIN FISHER          ) 106TH JUDICIAL DISTRICT

 7

 8

 9          _____________________________________________

10                         PRETRIAL HEARING
            _____________________________________________
11

12

13         On the 2nd day of September, 2014, the following

14   proceedings came on to be held in the above-titled and

15   numbered cause before the Honorable Carter T.

16   Schildknecht, Judge Presiding, held in Post, Garza

17   County, Texas.

18         Proceedings reported by computerized stenotype

19   machine.

20

21

22

23

24

25


                           J'Lyn Sauseda, CSR
                              806-872-3740
                          jlynsauseda@yahoo.com
                        PRETRIAL HEARING
                        September 2, 2014      2




 1                         APPEARANCES

 2   Jason Bujnosek
     SBOT NO. 24036285
 3   District Attorney's Office
     Assistant District Attorney
 4   P.O. Box 1124
     Lamesa, Texas 79331
 5   Telephone: 806-872-2259
     Fax: 806-872-3174
 6   Counsel for the State

 7   Justin-Tyler Robert 'Justin' Kiechler
     SBOT NO. 24067706
 8   The Kiechler Law Firm PLLC
     619 Broadway
 9   Lubbock, Texas 79401
     Telephone: 806-712-2889
10   Fax: 806-712-2529
     E-mail: Justin@thelubbocklawyer.com
11   Counsel for the Defense

12

13

14

15

16

17

18

19

20

21

22

23

24

25


                        J'Lyn Sauseda, CSR
                           806-872-3740
                       jlynsauseda@yahoo.com
                          PRETRIAL HEARING
                          September 2, 2014                 3




 1                             VOLUME 1

 2                         PRETRIAL HEARING

 3   September 2, 2014
                                                     PAGE VOL.
 4   Reporter's Certificate ............................ 9  1

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


                          J'Lyn Sauseda, CSR
                             806-872-3740
                         jlynsauseda@yahoo.com
                                     PRETRIAL HEARING
                                     September 2, 2014                          4




            1                   THE COURT:   Court calls Cause Number

            2   14-2685, State of Texas versus Oscar Calvin Fisher.

            3                   MR. BUJNOSEK:    State's ready.

            4                   MR. KIECHLER:    Ready, Your Honor.    May I

09:28:09    5   approach?

            6                   THE COURT:   You may.

            7                   MR. KIECHLER:    Here's some orders for my

            8   pretrial motions.

            9                   THE COURT:   We don't have a trial date set

09:28:17   10   in this case.    I have several orders that have been

           11   presented to the Court.      Have the -- have the motions

           12   for these been presented to the State?

           13                   MR. KIECHLER:    They have, Your Honor.     And

           14   we would be requesting another date for one -- a hearing

09:28:47   15   on one of the matters anyway.      I believe that's the last

           16   order set -- or last order --

           17                   THE COURT:   Actually, I pulled it to the

           18   top.

           19                   MR. KIECHLER:    Oh, okay.

09:29:01   20                   THE COURT:   Other than that one, which is

           21   basically your application for writ of habeas corpus and

           22   exception to the substance of the indictment, is there

           23   anything that you need assistance from the Court on?

           24                   MR. KIECHLER:    I don't believe so.    Jason

09:29:17   25   and I have talked and have worked out most of the


                                     J'Lyn Sauseda, CSR
                                        806-872-3740
                                    jlynsauseda@yahoo.com
                                         PRETRIAL HEARING
                                         September 2, 2014                           5




09:29:20    1   issues.   I think we can resolve everything else.

            2                    MR. BUJNOSEK:     That's correct.    I didn't

            3   see anything out of the ordinary in the motions.          The

            4   only order that we would object to or the request that

09:29:27    5   we would object to is providing of criminal histories

            6   language motion that's attached to --

            7                    MR. KIECHLER:     And defense is in agreement

            8   with their objections.        That's fine at this time, on the

            9   criminal histories.

09:29:47   10                    THE COURT:    Well, the Court's going to

           11   order the State to -- to provide criminal histories on

           12   each one of its non-law enforcement witnesses.          That

           13   is -- that is the custom of this Court.

           14                    Okay.    Well, let's just -- let's just

09:30:25   15   look at these before I go ahead and sign them.          The

           16   motion for discovery of punishment evidence, you say

           17   that's agreed?

           18                    MR. BUJNOSEK:     Yes, Your Honor.

           19                    THE COURT:    The motion for production of

09:30:46   20   evidence favorable to the accused.        Well, that one's

           21   going to be granted.

           22                    MR. BUJNOSEK:     Yes, Your Honor.

           23                    THE COURT:    The motion for discovery.        Is

           24   there any need for assistance on that or have you been

09:31:20   25   provided everything that --


                                      J'Lyn Sauseda, CSR
                                         806-872-3740
                                     jlynsauseda@yahoo.com
                                      PRETRIAL HEARING
                                      September 2, 2014                      6




09:31:21    1                  MR. BUJNOSEK:    The only thing I would

            2   object to, Your Honor, as I stated earlier is in Section

            3   1, Sub A witnesses Sub 4, record of each witness.

            4                  THE COURT:    And the Court does order that

09:31:32    5   so this -- this is granted.

            6                  MR. BUJNOSEK:    Understood, Your Honor.

            7                  THE COURT:    Only as it applies to non-law

            8   enforcement.

            9                  And the motion in limine.

09:31:57   10                  MR. BUJNOSEK:    I didn't see anything

           11   objectionable, Your Honor.

           12                  THE COURT:    Are you-all still trying to

           13   work on anything or are --

           14                  MR. BUJNOSEK:    Trying to get it worked

09:32:20   15   out, yes, ma'am.

           16                  THE COURT:    And so let's look at the

           17   application for the writ of habeas corpus and exception

           18   to the substance of the indictment.       I guess I could set

           19   that for a hearing.    I just -- do you -- do you agree

09:33:02   20   with Mr. Bujnosek that you-all are still trying to see

           21   if you can work something out?

           22                  MR. KIECHLER:    Yes, ma'am.

           23                  THE COURT:    Without taking the Court's

           24   time for this hearing, I'm trying to see if we could

09:33:19   25   wait and not set it until we see if things are falling


                                    J'Lyn Sauseda, CSR
                                       806-872-3740
                                   jlynsauseda@yahoo.com
                                     PRETRIAL HEARING
                                     September 2, 2014                         7




09:33:24    1   through --

            2                   MR. KIECHLER:     Yes, ma'am.

            3                   THE COURT:    -- would that be agreeable?

            4                   MR. KIECHLER:     That's fine with the

09:33:27    5   defense.

            6                   MR. BUJNOSEK:     Absolutely, Your Honor.

            7                   THE COURT:    Okay.   Then at this point I'm

            8   not going to set that.       And if you-all will continue

            9   seeing if you can work something out in this case

09:33:37   10   without taking the need for this hearing.        And if we

           11   need to have it, well, then we'll set it.

           12                   MR. BUJNOSEK:     Okay.   If Mr. Kiechler is

           13   fine with holding that up, then it's fine with me.

           14                   THE COURT:    Okay.

09:33:48   15                   MR. KIECHLER:     -- provide a progress

           16   report here in two weeks.

           17                   THE COURT:    Thank you very much.    The next

           18   time we'll be here would be September 30th and then

           19   October 14th.    Which -- should we skip to October 14th

09:34:01   20   to give you-all more time or September 30th would be

           21   four weeks?

           22                   MR. KIECHLER:     We can do the 30th, Your

           23   Honor.

           24                   THE COURT:    Just reset to the 30th.

09:34:18   25                   MR. KIECHLER:     Yes, ma'am.


                                     J'Lyn Sauseda, CSR
                                        806-872-3740
                                    jlynsauseda@yahoo.com
                     PRETRIAL HEARING
                     September 2, 2014                      8




09:34:24    1   THE COURT:   Okay.   Thank you very much.

            2   MR. BUJNOSEK:   Thank you, Your Honor.

            3   MR. KIECHLER:   Thank you.

            4   (Proceedings concluded.)

            5

            6

            7

            8

            9

           10

           11

           12

           13

           14

           15

           16

           17

           18

           19

           20

           21

           22

           23

           24

           25


                     J'Lyn Sauseda, CSR
                        806-872-3740
                    jlynsauseda@yahoo.com
                        PRETRIAL HEARING
                        September 2, 2014                       9




 1   STATE OF TEXAS

 2   COUNTY OF GARZA

 3

 4       I, J'Lyn Sauseda, Official Court Reporter in and for

 5   the 106th District Court of Garza County, State of

 6   Texas, do hereby certify that the above and foregoing

 7   contains a true and correct transcription of all

 8   portions of evidence and other proceedings requested in

 9   writing by counsel for the parties to be included in

10   this volume of the Reporter's Record in the above-styled

11   and numbered cause, all of which occurred in open court

12   or in chambers and were reported by me.

13       I further certify that this Reporter's Record of the

14   proceedings truly and correctly reflects the exhibits,

15   if any, offered by the respective parties.

16       I further certify that the total cost for the

17   preparation of this Reporter's Record is $ 54.00     and

18   was paid/will be paid by Michael Munk, District

19   Attorney.

20                            /s/ J'Lyn Sauseda

21                            J'Lyn Sauseda, CSR
                              Texas CSR 7890
22                            Official Court Reporter
                              106th District Court
23                            Garza County, Texas
                              400 South 1st, Suite 302
24                            Lamesa, Texas 79331
                              Telephone: 806-872-3740
25                            Expiration: 12/31/15


                        J'Lyn Sauseda, CSR
                           806-872-3740
                       jlynsauseda@yahoo.com
        Appendix B

  Pretrial Hearing Transcript
         April 24, 2014

Gaines County Cause # 12-4242,
    State v. Nicomedes Sosa
                                                                         1

 1                           REPORTER'S RECORD
                      TRIAL COURT CAUSE NO. 12-4242
 2

 3   THE STATE OF TEXAS,               ) (   IN THE DISTRICT COURT
                                       ) (
 4   vs.                               ) (   GAINES COUNTY, TEXAS
                                       ) (
 5   NICOMEDES DANIEL SOSA II          ) (   1 06TH JUDICIAL DISTRICT

 6

 7                     *** *********** * * **** * * ********

 8         Requested Excerpts Re : Defendant's Motion Number 27

 9                     *************** *** ** * *********

10             On the 24th day of April, 2014, the following

11   proceedings came on to be heard in the above-entitled and

12   numbered ca u se before the Honorable Carter Schildknecht , Judge

13   Presiding , held in Seminole, Ga ines County , Texas .

14            Proceedings reported by stenograph machine.

15

16

17

18

19

20

21

22

23

24

25

                Rogers, Harvey & Crutcher       (806) 744-7754
                                                                 2

 1                            APPEARANCES

 2   Mr. Michael Munk
     Courthouse Annex
 3   609 North 1st Street
     Lamesa, Texas 79331
 4   ATTORNEY FOR THE STATE

 5   Mr. David Guinn
     1805 13th Street
 6   Lubbock, Texas 79401
     ATTORNEY FOR THE DEFENDANT
 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

                Rogers, Harv e y & Crutcher   (806) 744 - 7754
                                                                               3

 1                                   PROCEEDINGS

 2                     APRIL 24, 20 14, MORNING SESSION

 3                    THE COURT:     Mr. Sosa, where I called your case

 4   just a little bit ago and you weren't over here yet, t h ey had

 5   to take time to go get you, but we're here for the purpose of

 6   taking up some of your pretrial motions.

 7                      (Requested e x cerpts as follows : )

 8                    THE COURT:     Number 27 is t he Defendant's motion

 9   for discovery of criminal records and other unfavorable

10   evidence of all State's witnesses.

11                    MR . MUNK:    Your Honor, I do have an i ssue with

12   motion n u mber 2 7, par t icula rly that it calls for running

13   criminal histories on all witnesses wi thout a showing that

14   they are currently 1n the State's possession.

15                    This 1s unprecedented .      It's outside the scope

16   of 39.14 and Brady, and a Dallas Court in 2012 was mandamused

17   fo r requiring such a th ing.      I have that court case for Your

18   Honor and for counsel.        And it goes on to also cite other

19   cases with the same holding.        Specifically, Judge, on page 4.

20   Well,   let me show you the cases firs t .

21                    THE COURT:     Have you s hown them to opposing

22   counsel?

23                    MR. GUINN:     Not yet, Judge.

24                    MR. MUNK :    And for the record let me -- thank

25   you , Judge.     I'll get the citation on re c ord.       369 Southwest


                    Rogers, Harvey & Crutcher      (806)   744-7754
                                                                                                  4


 1   3rd 7 02.            Judge, on the last page, second new paragraph, I

 2   quote:         11
                         But if the State had not a lready ob ta ined the

 3   information about the law enforcement witnesses neither Brady

 4   nor Article 39.14 imposes a duty on the State to obtain that

 5   information,           11
                                 citing Kiles v. Whitley 514 US 419, 1 99 5,

 6   11   Applying to discovery of tangible things in the State's

 7   fi le .   11
                    Also, in re: Stormer 2007 Court of Criminal Appea ls in

 8   an unpublished opinion holding,                     11
                                                              39. 14 does not give trial

 9   court authority to order the State to create a document that

10   does not currently exist. .              11
                                                    And so on, Judge .       There's more

11   cases in that citation.

12                               So we agree to t u rn over all 609 notices of the

13   Co-Defendant.                Obviously we run those criminal histories .               But

14   anything that we have not run and is not in our possession I ' m

15   objecting to running those, Your Honor .

16                               MR. GUINN:        And Judge, I would just state that I

17   understand not running law enforcement criminal histories.                              I

18   get that.             I would just ask that non-law enforcement

19   witnesses, if they ' re going to testify, t hat tha t could be

20   impeachment bias, some sort of animus or i l l will towards the

21   Defense or State, but I think it ' s prudent for us to ask them

22   to run those criminal hi.stories, and if nothing is found then

23   no th ing is found and they ' re not getting anything, but on

24   non - law enforcement witnesses I think that -- I think we run a

25   real great risk of at some point maybe having to fight that

                           Rogers, Harvey & Crutcher               ( 806) 744 - 7754
                                                                                   5

 1   out at an appellate level if we don' t have criminal hist ories

 2   on folks.

 3                    MR. MUNK:     I don't think the holding has

 4   anything to do with whether they're law enforcement or not,

 5   Your Honor.     I think the question is whether they're in the

 6   State's fil e or in the State's possession.

 7                    THE COURT:     Well, that first sentence does refer

 8   to law enforcement witnesses.          "But if the State had not

 9   already obtained the information about the law enforcement

10   witnesses" is the way it begins.

11                    MR. MUNK:     Yes, Your Honor .          In this holding I

12   think it was strictly li.mit ed to a request for law enforcement

13   records, but I think the holding is just as applicable to any

14   criminal history not in the State's possession.

15                    THE COURT:     Do you no t have the ability to seek

16   those criminal histories?

17                    MR. GUI NN:    No , ma ' am.   I can use t he Internet

18   search engines, and they might provide some information, but

19   it's hardly re liable in most instances.

20                    THE COURT:     Well, I think before I would gra nt

21   this I would require that you be able to show some cause for

22   that information, something that has given you reason to have

23   some good thoughts that there might be something that exists.

24                    MR. GUINN:     Okay, Judge .

25                    THE COURT:     So as far as the broad way that this

                   Rogers, Harvey & Crutcher         (80 6 }   744 -77 54
                                                                                    6

 1   is written, I think I will deny it as it is wr itt en .             And then

 2   at some point, if you need to, y ou can come bac k more

 3   specifically.

 4                   MR. GUINN:   Okay .   Thank you, Judge.

 5                   MR. MUNK:    Short of that, Your Honor, we have no

 6   objections to that .

 7                   THE COURT:    Then let's go, then, to number 28.

 8                     (Requested excerpts concluded)

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

                 Rogers , Harve y & Crut c he r   (806)   74 4 - 77 54
                                                                                           7


 1   THE STATE OF TEXAS

 2   COUNTY OF   LUBBOCK

 3       I , Donald C. Harve y, Cert if ied Shorthand Reporter in and

 4   f or the State of Texa s, do hereby certify that the above and

 5   foregoing contains a true and correct trans cr iption of all

 6   requeste d excerpts of the proceedings in the styled a nd

 7   numbered cause, all of which occur red in o pen court .

 8       I f urthe r certify that there were no exhibits marked,

 9   identified , offered or a dmitted duri ng the requested excerpted

10   proceedings .

11       WITNESS MY OFF IC IAL HAND this the 23rd day of October ,

12   2014.

13
                              DONALD C . HARVEY,
14                            Firm Regis tration
                              Expiration Date: 12 - 3 1 -14
15                            709 Broadway, Lubbock, Te xas 79401
                              ( 8 0 6 ) 7 4 4 - 7 7 54 ; Fax : ( 8 0 6 ) 7 4 4 - 7 9 6 5
16                            Email : rhc709@gmail . com

17

18

19

20

21

22

23

24

25

                 Roge rs, Harvey & Crutcher          (806) 744-7754
        Appendix C

  Pretrial Hearing Transcript
      November 12, 2014

Dawson County Cause # 14-7365,
   State v. Noverto Gutierrez
 1                        REPORTER'S RECORD

 2                       VOLUME 1 OF 1 VOLUME

 3                  TRIAL COURT CAUSE NO. 14-7365

 4   STATE OF TEXAS              ) IN THE DISTRICT COURT
                                 )
 5   vs.                         ) DAWSON COUNTY, TEXAS
                                 )
 6   NOVERTO JESUS GUTIERREZ     ) 106TH JUDICIAL DISTRICT

 7

 8

 9          _____________________________________________

10                         PRETRIAL HEARING
            _____________________________________________
11

12

13         On the 12th day of November, 2014, the following

14   proceedings came on to be held in the above-titled and

15   numbered cause before the Honorable Carter T.

16   Schildknecht, Judge Presiding, held in Lamesa, Dawson

17   County, Texas.

18         Proceedings reported by computerized stenotype

19   machine.

20

21

22

23

24

25


                          J'Lyn Sauseda, CSR
                             806-872-3740
                         jlynsauseda@yahoo.com
                        PRETRIAL HEARING
                        November 12, 2014      2




 1                         APPEARANCES

 2   Michael S. Munk
     SBOT NO. 24052943
 3   District Attorney
     Jason Bujnosek
 4   SBOT NO. 24036285
     Assistant District Attorney
 5   P.O. Box 1124
     Lamesa, Texas 79331
 6   Telephone: 806-872-2259
     Fax: 806-872-3174
 7   Attorneys for the State

 8
     Brian E. Murray
 9   SBOT NO. 14719600
     Attorney at Law
10   915 Texas Avenue
     P.O. Box 1469
11   Lubbock, Texas 79408
     Telephone: 806-763-8846
12   Fax: 806-744-1278
     Counsel for the Defendant
13

14

15

16

17

18

19

20

21

22

23

24

25


                        J'Lyn Sauseda, CSR
                           806-872-3740
                       jlynsauseda@yahoo.com
                          PRETRIAL HEARING
                          November 12, 2014                 3




 1                             VOLUME 1

 2                         PRETRIAL HEARING

 3   November 12, 2014
                                                     PAGE VOL.
 4   Reporter's Certificate ........................... 12  1

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


                          J'Lyn Sauseda, CSR
                             806-872-3740
                         jlynsauseda@yahoo.com
                                         PRETRIAL HEARING
                                         November 12, 2014                      4




            1                    THE COURT:    Court calls Cause Number

            2   14-1365, the State of Texas versus Noverto Jesus

            3   Gutierrez.

            4                    MR. BUJNOSEK:     State's ready.

10:49:39    5                    MR. MURRAY:     We're ready, but I'll go tell

            6   them to...

            7                    THE COURT:    Okay.   I can't see anyone that

            8   I can get their eye.

            9                    Okay.    In Cause Number 14-7365, State of

10:50:58   10   Texas versus Noverto Jesus Gutierrez.        We're here on

           11   pretrial or plea agreement.

           12                    Is there any assistance that is needed on

           13   any pretrial matters by the defense?

           14                    MR. MURRAY:     Judge, we have been provided

10:51:17   15   discovery.    And we do want the criminal records of all

           16   of the State's witnesses.        And that's asked for in our

           17   motions.     The Court's got copies of my motions, I

           18   believe.

           19                    THE COURT:    I believe they're in here in

10:51:36   20   the file.

           21                    MR. BUJNOSEK:     And, of course, the State

           22   objects to providing criminal histories on any witnesses

           23   that we do not already have in our possession.        That

           24   appears to be item 11 of the defendant's motion for

10:51:53   25   discovery, production and inspection of evidence.         If


                                      J'Lyn Sauseda, CSR
                                         806-872-3740
                                     jlynsauseda@yahoo.com
                                      PRETRIAL HEARING
                                      November 12, 2014                        5




10:51:57    1   they are in our possession, of course, we will provide

            2   those to the defense.

            3                    THE COURT:     And let -- and let the Court

            4   note that the date of this offense was January 1st,

10:52:05    5   2014.

            6                    MR. MURRAY:     That's correct.

            7                    THE COURT:     So the discovery does file

            8   under the Michael Morton Act.

            9                    MR. MURRAY:     Yes, ma'am.

10:52:20   10                    MR. MUNK:     Judge, I'd be happy to take

           11   that up.    I believe the Court is making a distinction

           12   between the recent 11th Court opinion and this case.

           13                    However, there is a valid opinion, and I

           14   think the burden falls on the proponent to show why the

10:52:36   15   Michael Morton Act would render a different opinion in

           16   this case, because the 11th Court did not say that

           17   their opinion did not apply to post-Michael Morton

           18   cases.     It simply said that they weren't rendering an

           19   opinion on post-Michael Morton cases.

10:52:50   20                    THE COURT:     I understand that, but I've

           21   also read 39.14.     And that -- and I'm not saying

           22   anything about anything from the opinion from the 11th

           23   Court of Appeals in this case.

           24                    MR. MUNK:     Maybe I misunderstood the

10:53:02   25   Court's implication.     Is there a ruling as to the


                                      J'Lyn Sauseda, CSR
                                         806-872-3740
                                     jlynsauseda@yahoo.com
                                      PRETRIAL HEARING
                                      November 12, 2014                         6




10:53:05    1   criminal history request?

            2                    MR. MURRAY:     Your Honor, that certainly --

            3   not only is it covered under Michael Morton, but as

            4   Mr. Munk is well aware, that goes to Kyles-Whitley

10:53:19    5   impeachment.     Criminal records of witnesses is

            6   absolutely discoverable for impeachment purposes.           And I

            7   think in this case that's probably going to be fairly

            8   important, fairly material for the defense.

            9                    MR. MUNK:     And Kyles falls under the Brady

10:53:40   10   progeny.   And under the Brady argument, that fails, and

           11   the 11th Court covered that.        The State is not required

           12   to go out and search for exculpatory evidence that it

           13   does not know exists.        That was covered by the 11th

           14   Court opinion.     The only thing they didn't cover is

10:53:58   15   whether the Michael Morton Act would render a different

           16   opinion, and that has nothing to do with Brady.        That

           17   has to do with the new 39.14.

           18                    MR. MURRAY:     And with all due respect,

           19   Judge, Brady and its progeny, including Kyles versus

10:54:13   20   Whitley, is a United States Supreme Court case, not an

           21   11th Court, and we -- and the State, in fact, does have

           22   a duty to make affirmative inquiry into the -- and they

           23   certainly have access to TCIC and NCIC for that purpose,

           24   Your Honor.

10:54:31   25                    THE COURT:    I'm granting the defendant's


                                      J'Lyn Sauseda, CSR
                                         806-872-3740
                                     jlynsauseda@yahoo.com
                                    PRETRIAL HEARING
                                    November 12, 2014                         7




10:54:33    1   request for discovery.

            2                  MR. MURRAY:     Thank you, Your Honor.

            3                  THE COURT:     Was that the only thing that

            4   there was an objection on?

10:54:39    5                  MR. BUJNOSEK:     Yes, Your Honor, at this

            6   time.

            7                  MR. MUNK:     Judge, before we go any

            8   further, I'm going to need clarification to understand

            9   exactly what extent this request is going.      Do we need

10:54:50   10   to access the TCIC/NCIC databases in order to perform

           11   criminal history searches of all our witnesses and

           12   provide those searches to the defense?

           13                  MR. MURRAY:     We would ask him to, Your

           14   Honor.   I mean, they can do -- that's not an

10:55:05   15   unreasonable request, given their access.      We don't have

           16   that access.   We certainly -- if we had the access, I

           17   wouldn't even be asking for it.

           18                  THE COURT:     I think the record is clear

           19   that I have granted the defense's request for discovery.

10:55:21   20                  MR. MUNK:     I haven't been provided a copy

           21   of the written request for discovery.      So I don't know

           22   if that deviates from my previous question.

           23                  THE COURT:     Is there anything else that

           24   needs to be taken up?

10:55:35   25                  MR. MURRAY:     Your Honor, we -- I've made a


                                    J'Lyn Sauseda, CSR
                                       806-872-3740
                                   jlynsauseda@yahoo.com
                                      PRETRIAL HEARING
                                      November 12, 2014                         8




10:55:38    1   404(b) request for notice of intent to offer extraneous.

            2                    THE COURT:    Any objection to that?

            3                    MR. BUJNOSEK:     No objection, Your Honor.

            4   We have not provided it to the defendant as of this

10:55:48    5   date, and it will probably be by the end of next week

            6   before we can provide that, Your Honor.

            7                    MR. MURRAY:     A motion to list witnesses,

            8   Your Honor.

            9                    We actually would like that notice of

10:55:59   10   intent as early as possible.        We'd say with -- at

           11   least -- we need at least two weeks' notice on that,

           12   Your Honor.     I mean, that information --

           13                    THE COURT:    It needs to be provided by a

           14   week from today.

10:56:16   15                    MR. BUJNOSEK:     Okay.   I'll do my best,

           16   Your Honor.

           17                    THE COURT:    And let's see.    What was the

           18   next one?     The list of witnesses?

           19                    MR. MURRAY:     Yes, ma'am.

10:56:25   20                    THE COURT:    Has that been provided?

           21                    MR. BUJNOSEK:     That has not been provided

           22   as of this date.

           23                    THE COURT:    By one week from today,

           24   November 19th.

10:56:32   25                    MR. BUJNOSEK:     Yes, Your Honor.


                                      J'Lyn Sauseda, CSR
                                         806-872-3740
                                     jlynsauseda@yahoo.com
                                      PRETRIAL HEARING
                                      November 12, 2014                          9




10:56:33    1                    MR. MURRAY:     Motion for exculpatory

            2   evidence.     I think we just talked about that with Brady

            3   and Kyles.    We're okay with that.        Y'all have any --

            4                    MR. BUJNOSEK:     Absolutely.    Everything

10:56:42    5   under exculpatory evidence you're entitled to.          And, I

            6   believe we've given you everything in that order --

            7                    MR. MURRAY:     We've got motion for

            8   discovery.    Defense would put on the record if they have

            9   it, Your Honor.     He obviously knows what his criminal

10:56:55   10   record is, and I think that'll be covered under 404(b).

           11                    THE COURT:    I believe it will be too.

           12                    MR. MURRAY:     Motion for disclosure of

           13   experts.

           14                    MR. BUJNOSEK:     At present, I'm not aware

10:57:06   15   of needing any experts in this case --

           16                    THE COURT:    Well, if you --

           17                    MR. BUJNOSEK:     -- notice, Your Honor --

           18                    THE COURT:    By November 19th.

           19                    MR. BUJNOSEK:     Yes, Your Honor.

10:57:12   20                    THE COURT:    Two weeks -- I mean, one week

           21   from today.

           22                    MR. MURRAY:     And then that's just to

           23   y'all.     That's a request for notice of extraneous.

           24                    MR. BUJNOSEK:     Okay.    Other bad acts.

10:57:24   25   Okay.    No objection, Your Honor.


                                      J'Lyn Sauseda, CSR
                                         806-872-3740
                                     jlynsauseda@yahoo.com
                                    PRETRIAL HEARING
                                    November 12, 2014                         10




10:57:26    1                  MR. MURRAY:     And then we've got a motion

            2   in limine, Your Honor, but anything in there I think can

            3   be addressed at trial.      We'll just approach the bench.

            4   We just want the Court aware of the motion in limine.

10:57:37    5                  THE COURT:     All right.     Anything else?

            6                  MR. MUNK:     Judge, I have a request.

            7   The -- I understand the Court's ruling that the motion

            8   for discovery is granted.      However, the motion for

            9   discovery is silent on whether the State needs to access

10:57:48   10   TCIC and NCIC records in order to run criminal history

           11   searches and provide the criminal histories to the

           12   defendant.   And I'm asking for clarification on that

           13   point.

           14                  THE COURT:     I don't think anything needs

10:57:59   15   to be clarified.   This has all been put on the record, I

           16   think it was very clear.      The Court is granting the

           17   defendant's request.

           18                  MR. MUNK:     I cannot comply unless I

           19   understand the ruling, Judge.

10:58:08   20                  THE COURT:     Well, if you'll read the

           21   record, I think it was very plain.         Whatever -- the way

           22   the defendant requested the discovery on that is

           23   granted.

           24                  MR. MUNK:     Well --

10:58:24   25                  THE COURT:     That -- this -- if there's


                                    J'Lyn Sauseda, CSR
                                       806-872-3740
                                   jlynsauseda@yahoo.com
                                      PRETRIAL HEARING
                                      November 12, 2014                   11




10:58:26    1   nothing else that needs to be taken up, we're through

            2   here.

            3                 MR. MURRAY:     Thank you, Your Honor.

            4                 THE COURT:     Did the defense -- I mean, did

10:58:57    5   the State have any pretrial motions that needed to be

            6   taken up?

            7                 MR. BUJNOSEK:     No, Your Honor.

            8                 THE COURT:     Okay.   We are concluded here.

            9   We will proceed to the December 3rd setting for pretrial

10:59:07   10   or plea agreement.

           11                 (Proceedings concluded.)

           12

           13

           14

           15

           16

           17

           18

           19

           20

           21

           22

           23

           24

           25


                                      J'Lyn Sauseda, CSR
                                         806-872-3740
                                     jlynsauseda@yahoo.com
                         PRETRIAL HEARING
                         November 12, 2014                     12




 1   STATE OF TEXAS

 2   COUNTY OF DAWSON

 3

 4       I, J'Lyn Sauseda, Official Court Reporter in and for

 5   the 106th District Court of Dawson County, State of

 6   Texas, do hereby certify that the above and foregoing

 7   contains a true and correct transcription of all

 8   portions of evidence and other proceedings requested in

 9   writing by counsel for the parties to be included in

10   this volume of the Reporter's Record in the above-styled

11   and numbered cause, all of which occurred in open court

12   or in chambers and were reported by me.

13       I further certify that this Reporter's Record of the

14   proceedings truly and correctly reflects the exhibits,

15   if any, offered by the respective parties.

16       I further certify that the total cost for the

17   preparation of this Reporter's Record is $72.00      and was

18   paid/will be paid by Michael S. Munk, District Attorney.

19                             /s/ J'Lyn Sauseda

20                             J'Lyn Sauseda, CSR
                               Texas CSR 7890
21                             Official Court Reporter
                               106th District Court
22                             Dawson County, Texas
                               400 South 1st, Suite 302
23                             Lamesa, Texas 79331
                               Telephone: 806-872-3740
24                             Expiration: 12/31/15

25


                         J'Lyn Sauseda, CSR
                            806-872-3740
                        jlynsauseda@yahoo.com
       Appendix D

 Pretrial Hearing Transcript
      December 1, 2014

Lynn County Cause # 14-3145,
   State v. Virginia Aleman
                                                                1


 1                          REPORTER'S RECORD
                          VOLUME 1 of 1 VOLUMES
 2                    TRIAL COURT CAUSE NO. 14-3145

 3

 4
     THE STATE OF TEXAS          )    IN THE DISTRICT COURT
 5                               )
     VS.                         )    LYNN COUNTY, TEXAS
 6                               )
     VIRGINIA ALEMAN             )    106TH JUDICIAL DISTRICT
 7

 8

 9   ********************************************************

10
                            PRETRIAL HEARING
11

12
     ********************************************************
13

14

15

16         On the 1st day of December, 2014 the following

17   proceedings came on to be heard in the above-styled and

18   numbered cause before the Honorable Carter Schildknecht,

19   Judge presiding, held in Tahoka, Lynn County, Texas:

20         Proceedings reported by Machine Shorthand.

21

22

23

24

25
                                                                2


 1                     A P P E A R A N C E S

 2

 3   MICHAEL MUNK                  MARK S. SNODGRASS
     District Attorney             Attorney at Law
 4   SBOT NO. 24052943             SBOT NO. 00795085
     P.O. Box 1124                 1011 13th Street
 5   Lamesa, Texas 79331           Lubbock, Texas 79401
     Phone: (806) 872-2259         Phone: (806) 762-0267
 6   AND                           ATTORNEY FOR THE DEFENDANT
     JASON BUJNOSEK
 7   Assistant District Attorney
     SBOT NO. 24036285
 8   P.O. Box 1124
     Lamesa, Texas 79331
 9   Phone: (806) 872-2259

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25
                                                             3


 1                      CHRONOLOGICAL INDEX
                             VOLUME 1
 2

 3   December 1, 2014                         Page   Vol._

 4   Appearances                                2     1
     Pretrial Hearings                          4     1
 5   Hearing adjourned                         11     1
     Court Reporter's Certificate              12     1
 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25
                                                                     4


 1                  THE COURT:   Court calls Cause Number

 2   14-3145; State of Texas versus Virginia Aleman.

 3                  MR. SNODGRASS:   Present and ready, your

 4   Honor.

 5                  THE STATE:   State's ready.

 6                  THE COURT:   And we're here, I believe, on

 7   the third setting on the scheduling order, which is for

 8   either take up pretrial matters or a plea agreement.

 9                  MR. SNODGRASS:   That's correct, your Honor.

10                  THE COURT:   And I believe there have been

11   some pretrial motions filed on behalf of the Defendant.

12   See if I can find orders to go with them.

13                  MR. SNODGRASS:   I have the original orders,

14   your Honor.

15                  THE COURT:   Oh, okay.   Let's just take these

16   right as I come to them then.       First, let's take up the

17   Request for Notice of Intent to Offer Extraneous

18   Conduct.

19                  THE STATE:   That's the 404(b) Motion, your

20   Honor.     I have no problem with that, and we will provide

21   it to the Defense, your Honor.

22                  THE COURT:   Okay.   Then that is granted.

23   Mark, did you file -- did you send these motions to the

24   clerk, and are these just my copies that I had?

25                  MR. SNODGRASS:   Yes, ma'am, they were mailed
                                                                     5


 1   to the clerk last Monday when we faxed them.       With the

 2   short week and all, they may or may not have gotten them

 3   yet.

 4                  THE COURT:   Okay.   I just didn't know if

 5   these that I had with my -- what were sent to me in

 6   Lamesa if I needed to give them to the clerk or those

 7   were -- I've already kind of marked on this one.

 8                  MR. SNODGRASS:   No, ma'am.   We did mail them

 9   -- like I said, we mailed them last Monday, the seven

10   days prior, and I don't know -- they may or may not have

11   got here the way the mail's been running in Lubbock

12   anyway.   I don't know about here.

13                  THE COURT:   Well, I tell you what, why don't

14   I -- I already put a check mark on that and I'll give

15   them to you.

16                  THE CLERK:   Okay.

17                  THE COURT:   Okay.   And that's the order --

18   that's the motion with the order that I just gave you.

19      Then let's take up the 37.07, Request for Notice of

20   Intent to Offer Extraneous Conduct, the 37.07(3)(g).

21                  THE STATE:   And certainly, your Honor, he's

22   entitled to that, and we have no objection.

23                  THE COURT:   So that is granted without

24   objection.     And then the -- whoops, wait just a minute.

25   This was over here in these orders.       Let me give that
                                                                     6


 1   back to, Mark.     That was with the orders.     Let me give

 2   this back to you, Mark.     This was in the midst of those

 3   orders that you gave to me.

 4                 MR. SNODGRASS:   Stuck in there.     Okay.

 5   Sorry about that, Judge.

 6                 THE COURT:   Then the Motion for Disclosure

 7   of experts.

 8                 THE STATE:   We have no problem with that,

 9   your Honor.    No objection.

10                 THE COURT:    Okay.   Without objection, then

11   that is granted.     It's to be provided no later than 5:00

12   o'clock in the evening on the fifth business day after

13   the entry of this order or not later than the 20th day

14   before the date that the trial is set to begin,

15   whichever is earliest.     Which sounds like that would be

16   five days from today.

17                 THE STATE:   As I'm sure your Honor is aware,

18   we've got a lot to prepare for in the next five days.

19                 THE COURT:   I understand that.     That's your

20   job.   Right now -- right now we do not have an exact

21   date, although I know it won't be obviously before the

22   first of the year.     Let me in this order, let's give the

23   State a few more days since we don't have --

24                 MR. SNODGRASS:   Your Honor, I would

25   represent to the Court, if it will make it any easier
                                                                      7


 1   for your scheduling purposes, there's some -- obviously

 2   this case is injury to a child is what's the cause it's

 3   indicted.    Based on the discovery I've received,

 4   etcetera, there's allegations of potentially -- I don't

 5   know if they're going to bring an expert on shaken baby

 6   syndrome.    What the -- you know, obviously it's their

 7   case to try, and I'm not going to tell them how to do

 8   it, but there's big contrast in the literature and the

 9   experts, etcetera, and based on whenever they designate

10   their expert - and I'll leave that between the Court and

11   the State - we may need time at that point once we

12   realize what we're dealing with on their end to seek out

13   an expert.    So I'm not asking for the fastest trial

14   setting, I guess is what I'm letting the Court be aware

15   of, because we may need a continuance depending on when

16   they designate their expert as to where we go.

17                 THE COURT:   Okay.     Well, let me do this,

18   instead of no later than 5:00 p.m. on the fifth business

19   day after the entry of the date of this order, let's

20   change that to the -- let's see --

21                 MR. SNODGRASS:       And also wouldn't be

22   opposed to having another - whatever you'd like to call

23   it - status conference, pretrial conference or --

24                 THE COURT:   Right.     And I don't think we'll

25   have anything before the 15th.        So what we probably will
                                                                      8


 1   do on this is wait and go to January the 5th.

 2                  MR. SNODGRASS:   That's fine, your Honor.

 3                  THE COURT:   And so let me say -- I'm trying

 4   to count days.     I'm going to change this language no

 5   later than 5:00 p.m. on the -- I want to get it to where

 6   it needs to be provided before our January the 5th

 7   setting.   So no later than 5:00 p.m., I'm just going to

 8   change it, on the 4th day of January.

 9                  MR. SNODGRASS:   That's fine, your Honor.

10                  THE COURT:   Okay.   Then we will take up the

11   Motion for Disclosure of Impeaching Information Under

12   Kyles versus Whitley.

13                  THE STATE:   And, your Honor, in as much as

14   this motion and the following motion, Motion to List

15   Witnesses and Request for Criminal Histories, in as far

16   as they require the State to run criminal histories on

17   our witnesses and provide them to the Defense, I believe

18   that exceeds the scope of 39.14.       I believe the Court's

19   discussed and is aware of our objections on that ground,

20   and we would object to it on that basis.

21                  THE COURT:   Response, Mr. Snodgrass?

22                  MR. SNODGRASS:   Your Honor, I understand

23   that there've been some recent litigation.       I've seen

24   the opinion.     I am still of the opinion that the U.S.

25   Constitution trumps procedural rules in Texas.         I think
                                                                      9


 1   Brady and Kyles and Giglio and that whole line of cases

 2   out of the Supreme Court puts a duty on the State.

 3   Willful ignorance doesn't allow them to avoid it.       It is

 4   permissible under the rules that -- you know, the same

 5   Rules of Procedure they say don't apply says we can use

 6   it in the Rules of Evidence.     I think the Constitution

 7   under the Fifth and Sixth Amendment would require it as

 8   due process and effective representation of counsel.        If

 9   the Court were to deny it, I would request a hearing

10   that we bring every State's witness in here and have a

11   pretrial hearing to determine whether or not they have a

12   criminal history, because it's permissible under 609(f).

13   So I'll leave it with the Court.     But I think it should

14   be granted.

15                 THE COURT:   Any response?

16                 THE STATE:   Your Honor, the Defense is

17   essentially asking us to become their investigator.

18   Just because it's more difficult for them to uncover

19   witnesses' criminal history, whereas it's supposedly

20   simpler for us to look it up in the data base is of no

21   importance.    He's asking us to become his investigator,

22   look up criminal histories and provide them to him.

23   Texas has never, and still under the new 39.14, does not

24   require the State to do the Defendant's legwork for

25   them.
                                                                   10


 1               THE COURT:    Well, this Court is of the

 2   opinion that the State should provide that -- any

 3   impeaching information, and certainly the criminal

 4   histories would be included in that, to the Defense in

 5   order to satisfy the requirements that are set forth and

 6   the reason for those.    So the Court is granting both of

 7   these motions.

 8               THE STATE:    And just for clarification

 9   purposes, your Honor, does that include criminal

10   histories that are not in the State's possession?

11               THE COURT:    I have ruled already.    Anything

12   else?

13               MR. SNODGRASS:    No, not in this matter at

14   this time, your Honor.

15               THE COURT:    Right.   And any pretrial motions

16   or matters that need to be brought up on behalf of the

17   State?

18               THE STATE:    Not at this time, your Honor.

19               THE COURT:    Okay.    Then let's reset this.

20   We'll skip the December 15th and go to the January 5th,

21   and that will get those -- any experts -- the list of

22   experts' information to the Defense at least the evening

23   -- by 5:00 o'clock prior to that setting.

24               THE STATE:    Yes, your Honor.

25               THE COURT:    Okay.    Thank you very much.
                                                                    11


 1                 MR. SNODGRASS:      May Ms. Aleman be excused,

 2   your Honor.

 3                 THE COURT:   Yes.

 4                 (Hearing adjourned.)

 5

 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25
                                                               12


 1   THE STATE OF TEXAS   )

 2   COUNTY OF LYNN       )

 3      I, Jamie Jackson, Deputy Official Court Reporter in

 4   and for the 106th District Court of Lynn County, State

 5   of Texas, do hereby certify that the above and foregoing

 6   contains a true and correct transcription of all

 7   portions of evidence and other proceedings requested by

 8   the State, to be included in this volume of the

 9   Reporter's Record, in the above-styled and numbered

10   cause, all of which occurred in open court or in

11   chambers and were reported by me.

12      I further certify that this Reporter's Record of the

13   proceedings truly and correctly reflects the exhibits,

14   if any, admitted by the respective parties.

15      I further certify that the total cost for the

16   preparation of this Reporter's Record is $ 60.00   and

17   will be paid by Lynn County.

18          WITNESS MY OFFICIAL HAND this the   11th    day of

19    December , 2014.

20

21          _/S/ Jamie Jackson___________
            JAMIE JACKSON, Texas CSR #2583
22          Expiration Date: 12-31-16
            P.O. Box 733
23          Brownfield, Texas 79316
            (806) 637-9256
24

25
        Appendix E

  Pretrial Hearing Transcript
       December 1, 2014

Lynn County Cause # 14-3152,
State v. Ricardo Liendo Quintero
                                                                1


 1                          REPORTER'S RECORD
                          VOLUME 1 of 1 VOLUMES
 2                    TRIAL COURT CAUSE NO. 14-3152

 3

 4
     THE STATE OF TEXAS          )    IN THE DISTRICT COURT
 5                               )
     VS.                         )    LYNN COUNTY, TEXAS
 6                               )
     RICARDO LIENDO QUINTERO     )    106TH JUDICIAL DISTRICT
 7

 8

 9   ********************************************************

10
                            PRETRIAL HEARING
11

12
     ********************************************************
13

14

15

16         On the 1st day of December, 2014 the following

17   proceedings came on to be heard in the above-styled and

18   numbered cause before the Honorable Carter Schildknecht,

19   Judge presiding, held in Tahoka, Lynn County, Texas:

20         Proceedings reported by Machine Shorthand.

21

22

23

24

25
                                                                2


 1                     A P P E A R A N C E S

 2

 3   MICHAEL MUNK                  MARK S. SNODGRASS
     District Attorney             Attorney at Law
 4   SBOT NO. 24052943             SBOT NO. 00795085
     P.O. Box 1124                 1011 13th Street
 5   Lamesa, Texas 79331           Lubbock, Texas 79401
     Phone: (806) 872-2259         Phone: (806) 762-0267
 6   AND                           ATTORNEY FOR THE DEFENDANT
     JASON BUJNOSEK
 7   Assistant District Attorney
     SBOT NO. 24036285
 8   P.O. Box 1124
     Lamesa, Texas 79331
 9   Phone: (806) 872-2259

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25
                                                             3


 1                      CHRONOLOGICAL INDEX
                             VOLUME 1
 2

 3   December 1, 2014                         Page   Vol._

 4   Appearances                                2     1
     Pretrial Hearings                          4     1
 5   Hearing adjourned                          9     1
     Court Reporter's Certificate              10     1
 6

 7

 8

 9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25
                                                                       4


 1                  THE COURT:   Court calls Cause Number

 2   14-3152; the State of Texas versus Ricardo Liendo

 3   Quintero.

 4                  THE STATE:   State's ready, your Honor.

 5                  MR. SNODGRASS:       Mr. Quintero is present and

 6   ready, your Honor.

 7                  THE COURT:   Okay.     And I believe we're here

 8   also on this case on the third setting on the scheduling

 9   order for either a plea agreement or taking up pretrial

10   matters.     We can take up these pretrial motions from the

11   Defendant first.     Do you have orders there?

12                  MR. SNODGRASS:   I do, yes, ma'am.

13                  THE COURT:   Okay.     First, it would be the

14   404(b) Request for Notice of Intent to Offer Extraneous

15   Conduct.

16                  THE STATE:   He's entitled, your Honor.     No

17   objection.

18                  THE COURT:   Granted without objection.     And

19   then the 37.07 Request for Notice of Intent to Offer

20   Extraneous Conduct.

21                  THE STATE:   We will provide that, your

22   Honor.     No objection.

23                  THE COURT:   That is also granted without

24   objection.     Then the Motion for Disclosure of Experts.

25                  THE STATE:   And, your Honor, just heading
                                                                   5


 1   off a potential issue, certainly he's entitled to a list

 2   of our expert witnesses in order to prepare for trial.

 3   But I believe that the motion in this case and the

 4   motion in the previous case in which Defendant -- or

 5   Defense Counsel was representing, that's 14-3145;

 6   Virginia Aleman, I'm not seeing the language in this

 7   motion or in Virginia Aleman's motion that would require

 8   us to provide by 5:00 p.m. on a particular date.     It

 9   only asks for within 20 days of date trial is to begin,

10   and we will certainly provide it by that time.     A copy

11   of the motion that was provided to the State does not

12   appear to have that language in it, your Honor.

13                MR. SNODGRASS:   Judge, in this case, I'm

14   more than happy to -- typically, I'm always happy with

15   it 20 days before.   I just -- I explained to the Court

16   in the previous case, which I don't think has anything

17   to do with this one, the reason for needing it at an

18   earlier time.   I'm fine with them giving it to me at

19   that time.   But I would just -- was forewarning the

20   Court and the State that I'd probably be filing a Motion

21   for Continuance in that other case.

22                THE COURT:   Okay.   In the order -- I'm going

23   to grant the motion as it's been presented, and in the

24   order I will just strike the language that has "no later

25   than 5:00 p.m. on the fifth business day following the
                                                                      6


 1   entry of this order."

 2                MR. SNODGRASS:     No objection to that, Judge.

 3                THE COURT:    So it will read, "to be provided

 4   not later than the 20th day before the date the trial is

 5   scheduled to begin."

 6                THE STATE:    Thank you, your Honor.

 7                THE COURT:    And then based on the last case

 8   that we had that we talked about the pretrial motions, I

 9   think we might take up these last two together, which is

10   the Motion for Disclosure of Impeaching Information

11   Under Kyles versus Whitley and the Motion to List

12   Witnesses and Request for Criminal Histories.

13                THE STATE:    And, your Honor, for the

14   purposes of a complete record, I'll state again my

15   objection.   This is a pre-Michael Morton case wherein

16   the offense date is the 3rd of November, 2013.        I'm just

17   noting that for the record.      The fact is that Michael

18   Morton has not changed discovery in regard to criminal

19   histories.   It is our understanding based on precedent

20   and based on previous filings with this Court that

21   criminal histories that are not in our possession need

22   not be run and produced.      39.14 does not require us to

23   produce new material for discovery by the Defense.        We

24   would object to these motions on that basis.

25                MR. SNODGRASS:     Your Honor, and I will make
                                                                      7


 1   that -- for the record, I'll state the same response,

 2   that I believe that constitutional provisions trumps

 3   statutory provisions.     I think that as for due process

 4   and adequate representation under the Fifth and Sixth

 5   Amendments of the U.S. Constitution apply to the

 6   Fourteenth and the Court should order them to provide

 7   it.   It is solely within the -- by law, I'm not allowed

 8   access to TCIC or that sort of information that's at the

 9   State's control.     It is an agent of the State that

10   controls that.     And in order to be afforded due -- fair

11   trial, I believe it should be ordered that they provide

12   those.   So that's the same response, in essence.

13                THE COURT:    And the Court does agree that

14   this is information that should be provided to the

15   Defense prior to trial and so orders.

16                THE STATE:    And once again, your Honor, does

17   that order of the Court entail requiring the State to

18   run criminal histories and provide criminal histories

19   that are not already in the State's possession?

20                THE COURT:    I ruled that it is granted.     And

21   will reset this also to January the 5th unless you feel

22   that there is anything that might be possibly worked out

23   that there would be a reason to have a setting on it on

24   the 15th.

25                MR. SNODGRASS:    I'm going to be out of town
                                                                     8


 1   on the 15th.     And I don't anticipate that, but if there

 2   is, I'll have Ms. Jacobs -- I'll notify the Court early

 3   and get Ms. Jacobs over here.

 4                  THE COURT:   We'll just go ahead and reset to

 5   January the 5th.

 6                  MR. SNODGRASS:     May we be excused, your

 7   Honor?

 8                  THE COURT:   You may.

 9                  THE STATE:   Judge, actually, I'd like to get

10   something on the record.        This involves a matter of

11   office policy.     I'm putting on the record that this

12   Court has avoided the question of whether we need to run

13   through the TCIC/NCIC data base.        That is not a part of

14   the written request, and it is not a part of the Court's

15   order.    We ask for clarification.      We have not been

16   given any.     Unless it is clarified on the record, we

17   will only comply with what's in our possession within

18   the scope of the 11th Court's Opinion.

19                  THE COURT:   I don't believe we're going to

20   the 11th Court in this county.

21                  THE STATE:   I believe it is persuasive,

22   Judge, and I don't think the 7th Court Opinion is on

23   point.

24                  THE COURT:   Well, the Court has made its

25   ruling.    The Court is ordering that all criminal
                                                                9


 1   histories on all of the State's witnesses be provided to

 2   the Defense prior to trial.   And the Court is of the

 3   opinion that this is not an undue burden on the State

 4   and that it is something that the Defense is entitled

 5   to.

 6               THE STATE:   And that includes running

 7   TCIC --

 8               THE COURT:   I have made my ruling.   Thank

 9   you.

10               THE STATE:   -- NCIC date bases?   The Court

11   understands that this is directly in contrast with the

12   11th Court Opinion?

13               THE COURT:   I have made my ruling.   Let's

14   move to the next case.

15               MR. SNODGRASS:    May I be excused, your

16   Honor?

17               THE COURT:   You may.

18               (Hearing adjourned.)

19

20

21

22

23

24

25
                                                                  10


 1   THE STATE OF TEXAS   )

 2   COUNTY OF LYNN       )

 3      I, Jamie Jackson, Deputy Official Court Reporter in

 4   and for the 106th District Court of Lynn County, State

 5   of Texas, do hereby certify that the above and foregoing

 6   contains a true and correct transcription of all

 7   portions of evidence and other proceedings requested by

 8   the State, to be included in this volume of the

 9   Reporter's Record, in the above-styled and numbered

10   cause, all of which occurred in open court or in

11   chambers and were reported by me.

12      I further certify that this Reporter's Record of the

13   proceedings truly and correctly reflects the exhibits,

14   if any, admitted by the respective parties.

15      I further certify that the total cost for the

16   preparation of this Reporter's Record is $ 50.00       and

17   will be paid by Lynn County.

18          WITNESS MY OFFICIAL HAND this the      11th   day of

19     December , 2014.

20

21          _/S/ Jamie Jackson____________
            JAMIE JACKSON, Texas CSR #2583
22          Expiration Date: 12-31-16
            P.O. Box 733
23          Brownfield, Texas 79316
            (806) 637-9256
24

25
        Appendix F

  Pretrial Hearing Transcript
       December 3, 2014

Dawson County Cause # 13-7340,
    State v. Andrew Ogeda
 1                          PRETRIAL HEARING

 2                         REPORTER'S RECORD

 3                      VOLUME 1 OF   1 VOLUMES

 4                  TRIAL COURT CAUSE NO. 13-7340

 5

 6   THE STATE OF TEXAS           ) IN THE DISTRICT COURT
                                  )
 7   vs.                          ) DAWSON COUNTY, TEXAS
                                  )
 8   ANDREW OGEDA                 ) 106TH JUDICIAL DISTRICT

 9

10

11          _____________________________________________

12                         PRETRIAL HEARING
            _____________________________________________
13

14

15         On the 3rd day of December, 2014, the following

16   proceedings came on to be held in the above-titled and

17   numbered cause before the Honorable Carter T.

18   Schildknecht, Judge Presiding, held in Lamesa, Dawson

19   County, Texas.

20         Proceedings reported by computerized stenotype

21   machine.

22

23

24

25


                           J'Lyn Sauseda, CSR
                              806-872-3740
                          jlynsauseda@yahoo.com
                         December 3, 2014
                                               2




 1                         APPEARANCES

 2   Michael S. Munk
     SBOT NO. 24052943
 3   District Attorney
     Jason Bujnosek
 4   SBOT NO. 24036285
     Assistant District Attorney
 5   P.O. Box 1124
     Lamesa, Texas 79331
 6   Telephone: 806-872-2259
     Fax: 806-872-3174
 7   Attorneys for the State

 8
     Emilio E. Abeyta
 9   SBOT NO. 00809850
     820 Buddy Holly Ave, Suite 6
10   Lubbock, TX 79401
     Phone: 806-765-5161
11   Counsel for the Defense

12

13

14

15

16

17

18

19

20

21

22

23

24

25


                        J'Lyn Sauseda, CSR
                           806-872-3740
                       jlynsauseda@yahoo.com
                                       December 3, 2014
                                                                             3




            1                  THE COURT:    Court calls Cause Number

            2   13-7340, the State of Texas versus Andrew Ogeda.

            3                  MR. BUJNOSEK:     State's ready.

            4                  MR. ABEYTA:     We're ready, Your Honor.

10:33:22    5                  THE COURT:    And this would be pretrial or

            6   a plea agreement setting for Mr. Ogeda, according to the

            7   scheduling order in the letter that had previously been

            8   sent out on a number of cases that were set for jury

            9   trial.

10:33:40   10                  Have -- is there any need for assistance

           11   on any pretrial matters?

           12                  MR. ABEYTA:     Yes, Your Honor.   We have

           13   received an offer.     However, the DA cannot offer

           14   anything that my client is willing to accept.       Mr. Ogeda

10:33:55   15   is not willing to accept what has been offered at this

           16   point.

           17                  In terms of discovery, we have received

           18   discovery.   However, we have not received what we

           19   requested in terms of criminal records of at least two

10:34:12   20   adults who are on the State's witness list.       And that

           21   would be Melissa Morales Rodriguez and John Antonio

           22   Rodriguez.

           23                  And if I may borrow your list for just a

           24   second.

10:34:38   25                  I believe those are the only two that


                                      J'Lyn Sauseda, CSR
                                         806-872-3740
                                     jlynsauseda@yahoo.com
                                       December 3, 2014
                                                                                4




10:34:39    1   would not be law enforcement individuals.          So we ask

            2   for non-law enforcement individuals -- for us to have

            3   criminal records on them.

            4                    THE COURT:    Yes.    And that is -- that

10:34:51    5   request is granted.

            6                    MR. ABEYTA:     And I believe that's all that

            7   we have as far as pretrial, Your Honor.

            8                    THE COURT:    Okay.    Then --

            9                    MR. MUNK:     Judge, this is a little highly

10:35:06   10   unusual.     I believe this is a pre-Michael Morton Act

           11   case.   And I believe -- as for these two witnesses, I

           12   can't speak of it, because this is not my case, but we

           13   will definitely make sure that we don't have any cases

           14   in our possession, in our office, on these two

10:35:23   15   witnesses.    If we do, their criminal histories in those

           16   cases will be turned over.

           17                    However, as for the fact that if we don't

           18   have them in our possession, I don't believe that this

           19   Court can order us to perform those criminal history

10:35:41   20   searches pursuant to the recent Eleventh Court opinion,

           21   as this Court is in their jurisdiction and this is a

           22   pre-Morton case.

           23                    THE COURT:    I recognize that.     The

           24   Court -- the Court is of the opinion that it is not a

10:35:56   25   significant burden on the State to provide those


                                      J'Lyn Sauseda, CSR
                                         806-872-3740
                                     jlynsauseda@yahoo.com
                                     December 3, 2014
                                                                             5




10:36:01    1   criminal histories and that if that would be, in this

            2   case, a -- a help to the defense in knowing anything

            3   about the ability for impeachment, that it would be

            4   certainly something that would be -- should be provided

10:36:26    5   so that we could proceed with a trial in an orderly

            6   manner at the time that it does come to trial.

            7                 Now, it has also been reported to the

            8   Court this morning that one of the witnesses, I

            9   believe, that would be called is going to be

10:36:47   10   unavailable -- I can't remember.     Is it unavailable

           11   next week?

           12                 MR. ABEYTA:     Well, Your Honor, she worked

           13   for the State before.   However, she is now a

           14   schoolteacher --

10:36:57   15                 THE COURT:     That's right.

           16                 MR. ABEYTA:     -- in Comal County, which

           17   would be, I guess, New Braunfels, Texas.     We just

           18   discovered that yesterday.

           19                 THE COURT:     Okay.

10:37:05   20                 MR. ABEYTA:     And I do agree with you, Your

           21   Honor, that the reason that we're seeking the criminal

           22   histories is because it would go to the credibility of

           23   those two witnesses who will be called.

           24                 THE COURT:     So the Court would say, I

10:37:22   25   think we would be safe in saying that, with what has


                                    J'Lyn Sauseda, CSR
                                       806-872-3740
                                   jlynsauseda@yahoo.com
                                       December 3, 2014
                                                                                6




10:37:27    1   been brought up today, that we probably will not be

            2   reaching this case this coming Monday because of the

            3   fact, one, that this one witness is not real close in

            4   proximity, and on the other things, that it would help

10:37:53    5   the defense to know if -- if there would be possible

            6   impeachment on -- and they've only asked for two

            7   witnesses, the -- the histories on those.

            8                    MR. MUNK:     And, Judge, not to be contrary,

            9   but I need to know the extent of the order, because even

10:38:09   10   though it's not going to trial, we still need to -- we

           11   don't want to be back here next time --

           12                    THE COURT:     No, you don't.

           13                    MR. MUNK:     -- and Mr. Abeyta --

           14                    THE COURT:     I don't know how much clearer

10:38:19   15   I can be.     I have said --

           16                    MR. MUNK:     Well --

           17                    THE COURT:     Please do not interrupt me at

           18   this point.

           19                    MR. MUNK:     Yes, Your Honor.

10:38:24   20                    THE COURT:     I have said that the criminal

           21   histories on the two witnesses -- only two witnesses is

           22   what Mr. Abeyta requested, and he requested it because

           23   of the possibility of impeachment information.        The

           24   Court has said that it does not think that is an undue

10:38:41   25   burden on the State to provide those.        And they are to


                                      J'Lyn Sauseda, CSR
                                         806-872-3740
                                     jlynsauseda@yahoo.com
                                       December 3, 2014
                                                                              7




10:38:44    1   be provided, and you have ample time to do that.        And

            2   I --

            3                 MR. MUNK:     By any -- I'm sorry, Judge.

            4                 THE COURT:     I think that's clear enough.

10:38:50    5                 We're adjourned.

            6                 MR. MUNK:     By any means necessary?     That's

            7   what I need to --

            8                 THE COURT:     I didn't say by -- I'm sorry.

            9   You are trying to put words in my mouth, and I will not

10:39:00   10   have words put in my mouth.

           11                 I have ruled on this.       I don't think it

           12   could be any clearer.     I have said those -- for those

           13   two witnesses, criminal histories are to be provided.

           14   There may be nothing there, but the defense has

10:39:12   15   requested only two witnesses for possible impeachment

           16   purposes.

           17                 MR. MUNK:     From our --

           18                 THE COURT:     That is perfectly plain.

           19   We're adjourned.

10:39:22   20                 MR. MUNK:     From our files, Judge, or from

           21   the TCIC database?

           22                 THE COURT:     We're adjourned.

           23                 MR. ABEYTA:     Thank you, Your Honor.

           24                 Your Honor, may I backtrack just a little

10:39:35   25   bit?


                                      J'Lyn Sauseda, CSR
                                         806-872-3740
                                     jlynsauseda@yahoo.com
                                    PRETRIAL HEARING
                                    December 3, 2014                        8




10:39:35    1                 THE COURT:    Oh.

            2                 MR. ABEYTA:    In an abundance of caution, I

            3   prepared a motion for a private process server that we

            4   use out of Lubbock, if I may present it to the Court so

10:39:44    5   that, when this case does come up, we will be prepared

            6   with a private process server if such were --

            7                 THE COURT:    Sure.

            8                 MR. ABEYTA:    May I present that?

            9                 THE COURT:    Yeah, you can do that here or

10:39:55   10   in my office, either one.

           11                 (Proceedings concluded.)

           12                          * * * * *
           13

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           24

           25


                                   J'Lyn Sauseda, CSR
                                      806-872-3740
                                  jlynsauseda@yahoo.com
                          PRETRIAL HEARING
                          December 3, 2014                       9




 1   STATE OF TEXAS

 2   COUNTY OF DAWSON

 3

 4       I, J'Lyn Sauseda, Official Court Reporter in and for

 5   the 106th District Court of Dawson County, State of

 6   Texas, do hereby certify that the above and foregoing

 7   contains a true and correct transcription of all

 8   portions of evidence and other proceedings requested in

 9   writing by counsel for the parties to be included in

10   this volume of the Reporter's Record in the above-styled

11   and numbered cause, all of which occurred in open court

12   or in chambers and were reported by me.

13       I further certify that this Reporter's Record of the

14   proceedings truly and correctly reflects the exhibits,

15   if any, offered by the respective parties.

16       I further certify that the total cost for the

17   preparation of this Reporter's Record is $ 99.00      and

18   was paid/will be paid by Michael S. Munk, District

19   Attorney.

20                             /s/ J'Lyn Sauseda

21                             J'Lyn Sauseda, CSR
                               Texas CSR 7890
22                             Official Court Reporter
                               106th District Court
23                             Dawson County, Texas
                               400 South 1st, Suite 302
24                             Lamesa, Texas 79331
                               Telephone: 806-872-3740
25                             Expiration: 12/31/15


                         J'Lyn Sauseda, CSR
                            806-872-3740
                        jlynsauseda@yahoo.com
