By Berman H.B. No. 382
77R112 PEP-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to discovery in a criminal case.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Article 39.14, Code of Criminal Procedure, is
1-5 amended to read as follows:
1-6 Art. 39.14. DISCOVERY BY DEFENDANT. (a) Not later than the
1-7 10th day before the date on which the trial on the merits of a
1-8 criminal case commences, the state shall allow the defendant to
1-9 have access to, inspect, copy, or photograph, as applicable, any of
1-10 the following items or information within its possession, custody,
1-11 or control:
1-12 (1) any written statement made or adopted by the
1-13 defendant relating to the offense charged or any extraneous
1-14 offenses;
1-15 (2) any tapes, films, or videotapes of an
1-16 electronically recorded statement made by the defendant, a
1-17 transcript of any recorded statement made by the defendant, and the
1-18 device used to record a statement made by the defendant relating to
1-19 the offense charged or any extraneous offense;
1-20 (3) the substance of any oral statement relating to
1-21 the offense charged or any extraneous offense made by the defendant
1-22 in response to interrogation by a law enforcement officer;
1-23 (4) the prior criminal record of the defendant;
1-24 (5) the report of a physical or mental examination of
2-1 the defendant or of a scientific test or experiment, including a
2-2 summary of the basis for the expert opinion rendered in the report,
2-3 if the state expects to offer the report in evidence at the
2-4 guilt-innocence phase of the trial; or
2-5 (6) any book, document, photograph, tangible object,
2-6 building, or place that:
2-7 (A) the state expects to offer in evidence at
2-8 the guilt-innocence phase of the trial; or
2-9 (B) was obtained from or belongs to the
2-10 defendant.
2-11 (b) If a defendant is a corporation, partnership, or
2-12 association, the court may grant a motion by the defendant for
2-13 discovery of any statement that relates to the offense charged and
2-14 was made by a witness capable of legally binding the defendant at
2-15 the time of the:
2-16 (1) statement; or
2-17 (2) occurrence of the alleged conduct constituting the
2-18 offense, if the witness was personally involved in the conduct.
2-19 (c) Not later than the 10th day before the date on which the
2-20 trial on the merits commences, the state shall furnish to the
2-21 defendant a list of the names and addresses of all witnesses the
2-22 state expects to call in order to directly establish the guilt of
2-23 the defendant for the offense or offenses charged. If the state is
2-24 required to disclose the name and address of a witness under this
2-25 section, the state shall also disclose the prior criminal record of
2-26 the witness if the prior criminal record would be admissible to
2-27 impeach the testimony of the witness at trial.
3-1 (d) Except as provided by Subsections (a)(1) through (a)(5)
3-2 and by Subsection (c), this article does not authorize the
3-3 discovery or inspection of an item or information if the item or
3-4 information is a report, memorandum, or other internal document
3-5 made by a peace officer or the officer's agent or by an attorney
3-6 representing the state or the attorney's agent in the investigation
3-7 or prosecution of the case. [(a) Upon motion of the defendant
3-8 showing good cause therefor and upon notice to the other parties,
3-9 the court in which an action is pending may order the State before
3-10 or during trial of a criminal action therein pending or on trial to
3-11 produce and permit the inspection and copying or photographing by
3-12 or on behalf of the defendant of any designated documents, papers,
3-13 written statement of the defendant, (except written statements of
3-14 witnesses and except the work product of counsel in the case and
3-15 their investigators and their notes or report), books, accounts,
3-16 letters, photographs, objects or tangible things not privileged,
3-17 which constitute or contain evidence material to any matter
3-18 involved in the action and which are in the possession, custody or
3-19 control of the State or any of its agencies. The order shall
3-20 specify the time, place and manner of making the inspection and
3-21 taking the copies and photographs of any of the aforementioned
3-22 documents or tangible evidence; provided, however, that the rights
3-23 herein granted shall not extend to written communications between
3-24 the State or any of its agents or representatives or employees.
3-25 Nothing in this Act shall authorize the removal of such evidence
3-26 from the possession of the State, and any inspection shall be in
3-27 the presence of a representative of the State.]
4-1 [(b) On motion of a party and on notice to the other
4-2 parties, the court in which an action is pending may order one or
4-3 more of the other parties to disclose to the party making the
4-4 motion the name and address of each person the other party may use
4-5 at trial to present evidence under Rules 702, 703, and 705, Texas
4-6 Rules of Evidence. The court shall specify in the order the time
4-7 and manner in which the other party must make the disclosure to the
4-8 moving party, but in specifying the time in which the other party
4-9 shall make disclosure the court shall require the other party to
4-10 make the disclosure not later than the 20th day before the date the
4-11 trial begins.]
4-12 SECTION 2. Chapter 39, Code of Criminal Procedure, is
4-13 amended by adding Articles 39.15, 39.16, and 39.17 to read as
4-14 follows:
4-15 Art. 39.15. DISCOVERY BY STATE. (a) On the state's
4-16 compliance with Article 39.14(a)(6), the defendant shall permit the
4-17 state not later than the fifth day before the date on which the
4-18 trial on the merits commences to have access to, inspect, copy, or
4-19 photograph, as applicable, any book, document, photograph, or
4-20 tangible object that:
4-21 (1) is within the possession, custody, or control of
4-22 the defendant; and
4-23 (2) the defendant expects to offer in evidence at the
4-24 guilt-innocence phase of the trial.
4-25 (b) On the state's compliance with Article 39.14 (a)(5), the
4-26 defendant shall permit the state not later than the fifth day
4-27 before the date on which the trial on the merits commences to have
5-1 access to, inspect, copy, or photograph, as applicable, the report
5-2 of a physical or mental examination of the defendant or of a
5-3 scientific test or experiment, including a summary of the basis for
5-4 an expert opinion rendered in the report, that:
5-5 (1) is in the possession or control of the defendant;
5-6 and
5-7 (2) the defendant expects to offer in evidence at the
5-8 guilt-innocence phase of the trial.
5-9 (c) On the state's compliance with Article 39.14(c), the
5-10 defendant shall furnish to the state not later than the fifth day
5-11 before the date on which the trial on the merits commences the name
5-12 and address of each witness the defendant expects to call to
5-13 testify during the trial.
5-14 (d) Except as to scientific or medical reports, this article
5-15 does not authorize the discovery or inspection of a:
5-16 (1) report, memorandum, or other internal defense
5-17 document made by a defendant or the defendant's attorney or agent
5-18 of the attorney in connection with the case; or
5-19 (2) statement made to the defendant's attorney or
5-20 agent of the attorney by an actual or prospective witness for the
5-21 state or the defense.
5-22 Art. 39.16. NOTICE OF ALIBI. (a) If the attorney
5-23 representing the state requests in writing, not later than the 20th
5-24 day before the date trial on the merits commences, notice of the
5-25 defendant's intention to offer a defense of alibi at trial and the
5-26 request includes the time, date, and place at which the state
5-27 alleges that the offense was committed, the defendant shall serve
6-1 the attorney representing the state with a written notice of the
6-2 defendant's intention to offer a defense of alibi. The defendant
6-3 shall serve the notice not later than the 10th day after the date
6-4 on which the request was received or the 10th day before the date
6-5 on which the trial on the merits commences, whichever date occurs
6-6 first, or at any time the court directs. The notice shall state
6-7 the specific place or places where the defendant claims to have
6-8 been at the time of the alleged offense and the names, addresses,
6-9 dates of birth, and telephone numbers, if known to the defendant,
6-10 of the witnesses on whom the defendant intends to rely to establish
6-11 the alibi.
6-12 (b) After receiving the defendant's notice of alibi, the
6-13 attorney representing the state shall serve the defendant or the
6-14 defendant's attorney with a written notice stating the names,
6-15 addresses, dates of birth, and telephone numbers, if known to the
6-16 state, of the witnesses on whom the state intends to rely to
6-17 establish the defendant's presence at the scene of the alleged
6-18 offense and any other witnesses to be relied on to rebut the
6-19 testimony of any of the defendant's alibi witnesses. The notice
6-20 must be served not later than the fifth day after the date on which
6-21 the attorney representing the state receives the defendant's notice
6-22 or the fifth day before the date on which the trial on the merits
6-23 commences, whichever date occurs first. The court, however, may
6-24 permit service of the notice at any other time as it considers just
6-25 under the circumstances.
6-26 (c) Evidence of an intention to rely on an alibi defense,
6-27 later withdrawn, or of statements made in connection with that
7-1 intention, is not admissible in any civil or criminal proceeding
7-2 against the defendant who gave notice of the intention.
7-3 Art. 39.17. REGULATION OF DISCOVERY. (a) If before or
7-4 during trial a party learns of an additional witness whose
7-5 identity, if known, should have been furnished to the opposing
7-6 party or discovers evidence or material previously requested or
7-7 ordered to be disclosed under Article 39.14, 39.15, or 39.16, the
7-8 party shall promptly notify the other party or the other party's
7-9 attorney of the existence and identity of the additional witness,
7-10 evidence, or material.
7-11 (b) On a sufficient showing the court may at any time order
7-12 that discovery or inspection under Article 39.14, 39.15, or 39.16
7-13 be denied, restricted, or deferred or the time limits be shortened,
7-14 or make any other order it considers appropriate. On the motion of
7-15 a party, the court may permit the party to make the showing in
7-16 whole or in part in the form of a written statement to be inspected
7-17 by the judge alone. If the court enters an order granting relief
7-18 following an ex parte showing, the entire text of the party's
7-19 statement shall be sealed and preserved in the records of the court
7-20 to be made available to the appellate court in the event of appeal.
7-21 (c) If at any time during the course of the proceedings it
7-22 is brought to the attention of the court that a party has failed to
7-23 comply with the requirements of this article, the court may order
7-24 the party to permit the discovery or inspection, grant a
7-25 continuance, prohibit the party from introducing evidence not
7-26 disclosed, or enter any other order it considers just under the
7-27 circumstances. The court may specify the time, place, and manner
8-1 of the discovery or inspection and may prescribe terms and
8-2 conditions it considers appropriate.
8-3 SECTION 3. (a) The change in law made by this Act applies
8-4 to a criminal case in which the indictment or information is
8-5 presented to the court on or after the effective date of this Act.
8-6 (b) This Act does not apply to a criminal case in which the
8-7 indictment or information has been presented to the court before
8-8 the effective date of this Act, and the law as it existed when the
8-9 indictment or information was presented is continued in effect for
8-10 this purpose.
8-11 SECTION 4. This Act takes effect September 1, 2001.