



Death Opinion














IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





No. PD-0985-03


THE STATE OF TEXAS

v.


JOE EDWARD LaRUE, Appellee




ON APPELLEE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE NINTH COURT OF APPEALS

JEFFERSON COUNTY



 Johnson, J., filed a dissenting opinion in which Price, J., joined.

D I S S E N T I N G   O P I N I O N



	"Willful: 1. deliberate, voluntary, or intentional; 2. perversely obstinate; unreasonable
stubborn or headstrong. ...  Synonyms: WILLFUL, HEADSTRONG, PERVERSE, WAYWARD
refer to one who stubbornly insists upon doing as he pleases.  Willful suggests a stubborn persistence
in doing what one wishes, esp. in opposition to those whose wishes or commands ought to be
respected or obeyed." (Emphasis in original.) Webster's Encyclopedic Unabridged Dictionary of the
English Language, p. 1634, Gramercy Books, 1989.  "[W]illful, as we have said, is a word of many
meanings, its construction often being influenced by its context." Spies v. United States, 317 U.S.
492, 497 (1943). "[S]tubbornly, obstinately, perversely, [citations omitted]. The word is also
employed to characterize a thing done without ground for believing it is lawful [citations omitted],
or conduct marked by careless disregard whether or not one has the right so to act [citations
omitted]." United States v. Murdock, 290 U.S. 389, 394 (1933).
	"In representing a client, a lawyer shall not: (1) neglect a legal matter entrusted to the lawyer;
. . .  As used in this Rule, 'neglect' signifies inattention involving a conscious disregard for the
responsibilities owed to a client or clients."  Texas Disciplinary Rules of Professional Conduct, Rule
1.01(b)(2), (c) (2003).   "A lawyer shall not: . . . (d) knowingly disobey, . . . an obligation under the
standing rules of or a ruling by a tribunal . . .." Id., Rule 30.4.The Conduct
	The question here is, at what point does "negligent" become "willful"?  At what point does
extended neglect interfere with the preparation of the defense or raise the constitutional issues of
speedy trial and effective assistance of counsel?  The crime occurred in 1989, and some DNA was
tested.  Appellee was indicted in 1991, but the indictment was dismissed in 1994 "in the interest of
justice" because the state believed that "the case could not be successfully prosecuted with the
evidence in hand at that time."
	The prosecutor in this case submitted DNA samples in March and April 2000 and received
the results in September 2000, yet didn't reveal the results to the defense until January 2003, even
after having been ordered to do so by the trial court in January 2002.  An additional state submission
for DNA testing in December 2001 produced results in April 2002, yet, in spite of an existing court
order, the prosecutor did not reveal the results to the defense until February 2003.  Just before voir
dire began, this same prosecutor revealed that there was additional DNA evidence that he had not
yet submitted for testing.
	It is undisputed that, during the time that DNA results were available and ordered to be given
to the defense, from January 2002 until January 2003, defense counsel repeatedly asked the
prosecutor for the DNA results. There was a hearing on the matter in August, to no avail.  The
District Attorney's office even held a press conference during which it bragged to the press that it
had highly incriminating DNA evidence and a jailhouse confession to another inmate.  In spite of
all this, the prosecutor continued to withhold that long-available and publicly touted evidence from
the defense counsel.  It was only in the face of this extended intransigence by the prosecutor that
defense counsel informed the trial court that he intended to ask that the withheld DNA results be
suppressed.
	The prosecutor at issue here had been assigned to the case from the beginning and had been
a felony prosecutor in Jefferson County for seventeen-and-a-half years. The case was originally set
for August 2002, but was reset "in part" because of the state's continuing failure to comply with the
discovery order. The trial judge retired on December 31, 2002, and was replaced by an experienced
criminal practitioner who had practiced in Jefferson County and was familiar with its procedures and
practices. On January 18, 2003, the prosecutor told the defense about a hair that was found at the
scene but had not yet, 14 years after the crime, been tested. With voir dire set to begin February 13,
2003, the bulk of the ordered discovery was turned over on January 31, 2003, when the state gave
the defense its list of 73 potential witnesses, (1) the autopsy report, Brady material, and evidence-collection and laboratory-submission reports. On February 13, 2003, the day the case was called for
trial, the prosecutor tendered, for the first time, DNA test results from April 17, 2002, for tests
performed on fingernail and hair samples. The results from DNA tests from 1993 were apparently
never tendered. (2)
	The trial court made several attempts to resolve the matter in a manner fair to both sides, but
faced objection by the state for every option except continuing the trial and using the disputed
evidence.  He first suggested a continuance.  Both sides objected, the defense because it required the
defendant to choose between a fair trial and a speedy one, (3) and the state because it was ready.  The
court then offered to declare a mistrial, over defense objection, and reset the case to allow the
defense to examine the DNA evidence and obtain expert witnesses if necessary.  This would have
allowed the state to use the disputed evidence, but at a later date.  Both sides objected again, the
defense because it had a jury that it was satisfied with, the state because the defendant had not
requested a continuance and so should be tried as scheduled.  At that point, the judge gave the state
what it asked for, a trial as scheduled, but excluded the disputed scientific evidence. (4)  The state then
filed an interlocutory appeal.
	The prosecutor's excuse for failing to turn over the DNA evidence until January 2003 is that
he was told in November 2002 that he had been reassigned to another court and that he should give
his files to his successor.  This does nothing to explain his failure to promptly turn over the DNA
results that he had received in September 2000 and April 2002, and he had had in his possession for
twenty-six and six months, respectively.  He provides no explanation for his failure to turn over the
results from the March 2000 submission immediately after the court ordered disclosure in January
2002 or his failure to immediately turn over the results from the December 2001 submission as soon
as he received them in April 2002, after the discovery order was entered.  He attempts to fault
defense counsel, who made repeated requests for the ordered information, his argument seeming to
be that defense counsel did not work hard enough to catch the prosecutor in his office and get the
reports.
	As the trial court noted, on two occasions the prosecutor, believing that he would, in the
future, no longer be in charge of the case, willfully neglected his duty to that case in the present. 
Any attorney of record must remain on the case until he is relieved by the court or substitute counsel
has taken over the case and must continue to represent the client zealously, even when he or she
knows that another attorney will shortly be in charge.  We can require no less of an attorney when
the client is the state of Texas.
	While the trial court initially found, on March 7, 2003, that the prosecutor's conduct was not
willful, the prosecutor continued to assert, in five hearings over four-and-a-half days, that discovery
was timely given and attempted to blame his failure to turn over the ordered evidence on the defense.
The trial court then stated that its previous finding was "prematurely made" and that "the State's
conduct in failing to provide the Court-ordered discovery in a fair and timely fashion exceeds
negligent conduct, and was in fact a willful and egregious effort by the State to defeat the defendant's
constitutional rights."   The only conclusion that I can come to is the same one the trial court
reached: the prosecutor neglected this case for so long and in such degree that his neglect became
willful.
	The trial judge chose not use the state's proposed one-page of findings and conclusion of
negligence and instead filed thirteen pages of detailed findings of fact and conclusions of law. We
have repeatedly held that we will defer to the judgment of the trial court on findings of fact.  We
should do so here.  The only issue should be whether the remedy of exclusion was appropriate.
The Remedy
	The state appeals pursuant to Tex. Code. Crim. Proc. 44.01(a)(5).  In State v. Medrano, 67
S.W.3d 892, 896 (Tex. Crim. App. 2002), we said that "the purpose of the statute is to permit the
pretrial appeal of erroneous legal rulings which eviscerate the State's ability to prove its case." We
therefore should consider whether the action of the trial court "eviscerated" the state's case.
	The trial court found that the state asserted in a letter to counsel, dated January 3, 2003, with
a copy sent to the trial court, that the state had "other evidence to substantiate the allegations in the
indictment independent and separate from the complained of DNA analysis and other scientific
evidence."  The state tendered a witness list that included 28 law enforcement witnesses, 19
scientific and medical witnesses and 26 civilian witnesses, including Raymond Gross, an inmate who
would testify that appellee had confessed the murder to him while in custody.  Other evidence
included autopsy reports, appellee's fingerprints on the inside of a window and, presumably,
witnesses to sponsor them.  As the trial court stated, "this Court concludes by such documents
tendered to this Court by the State that exclusion of the DNA analysis evidence does not necessarily
result in the termination of the prosecution herein." Again, we should defer to the trial court in
matters involving findings of fact and should not disturb its finding that suppressing the DNA
evidence would not eviscerate the state's case.  I would reverse the judgment of the court of appeals 
and affirm the actions of the trial court.
	As a practical matter, this appeal has been pending for almost two years.  If the state has now
complied fully with the court's discovery order in a timely manner and the appellee has now had
time to take whatever steps deemed appropriate in response to the proffered evidence, the trial court
may wish to reconsider its suppression order.  That is a decision best left to the trial court.
	I respectfully dissent.
							Johnson, J.

Filed: November 10, 2004
En banc
Publish
1.  The state tendered only names, without addresses or other contact information.  The stated justification was
that the addresses were from the time of the offense in 1989 and therefore were probably not correct. This raises the
question of how the state expected to find and subpoena those witnesses if the out-dated addresses were all it had.
2.  Those tests were performed with the technology available at the time and are now considered crude and
less reliable than tests that are currently available. The results were tendered to the attorney who defended appellee
on the original indictment, but there is nothing in the record to indicate that they were given to the current attorneys
or that those attorneys had access the previous attorney's file. 
3.  At time of trial , appellee had been in jail for two-and-a-half years.
4. I note that, in the clerk's record, there is a state's proposed findings of fact and conclusions of law that
requests precisely the action by the court that it is now appealing-suppression of the DNA evidence.  
