state's motion to quash subpoenas duces tecum

8/20/2019 State's Motion to Quash Subpoenas Duces Tecum

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C U S E

N O S .

416-81913-2015, 416-82148-2015 416-82149-2015

TH E STATE OF TEXAS § IN

TH E

DISTRICT COURT

§

V. §

COLLIN

COUNTY

TEXAS

§

WARREN KENNETH PAXTON JR. § 416TH JUDICIAL DISTRICT

S T A TE S M O T IO N

TO

QUASH

SUBPOENAS DUCES

TECUM

N D

M O T I O N F O R P R O TE C TIV E O R D E R

T o THE

Honorab le

G e o r g e

Gal lagher P r e s i d i n g

Judge:

COMES NOW, THE STATE OF TEXAS, by and through its undersigned Collin

County District Attorneys Pro Tern and pursuant to Article 39.04, Texas Code of

Criminal Procedure,

an d Rule

176,

Texas

Rules

o f

Civil Procedure, files its

Motion

to

Quash the Applications for Subpoenas Duces Tecum filed in these causes by Warren

Kenneth Paxton ( Paxton ) to Cynthia Jacobsen, Sue Maienschein, Jan Dugger, Kathy

Bounds, and Sheri Veccera ( Svitnesses ) . For those reasons set out below, Paxton s

applications are an improper, indeed, desperate attempt at obtaining pre-trial discovery,

fall far short of meeting the standard

of

materiality and relevance required by controlling

legal authority, and constitute an unsupported and unsupportable attempt to conduct the

very type of fishing expedition anathema to the criminal justice system. See Sparkman v

State, 997 S.W.2d 660, 667 (Tex.App.- Texarkana 1999, no pet.)(when accused fails to

shoulder his burden of materiality, frivolous and annoying requests [c]ould make the

The rules prescribed in civil cases for issuance of commissions, subpoenaing witnesses,

taking the depositions ofwitnesses and all other formalities goveming depositions shall, as to the

manner and form of taking and retuming the same and other formalities to the taking of same,

govem in criminal actions, when not in conflict with this Code.

1


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trial endless and unduly burdensome on the Court and all officers thereof. )(citation

omitted). Accordingly, this Court should grant the State's motion to quash, and order

that no further subpoenas be issued to the witnesses absent prior written consent

of

the

Court

I. rocedur l

History

nd

Factu al S t at ement

On July 7, 2015, Paxton was indicted for the third-degree felony

of

acting as an

investment advisor representative without being registered by the State Securities Board

by a grand jury empaneled by Judge Chris Oldner, 416 ^ Judicial DistrictCourt ofCollin

County, Texas. On August 28, 2015, Paxton was indicted by that same grand jury for

two counts

of

first-degree securities fraud. Paxton appeared in court with counsel- and

entered pleas of not guilty on all three felony charges on August 27, 2015. On October 1,

Paxton

filed five applications for

subpoena duces tecum with

the

clerk

of the

416 ^

Judicial District Court, requiring the following witnesses to appear before court on

October 9, 2015 by 12:00 p.m., with the following material:

Sheri Vecera,

court

reporter for the 99^ ̂

Judicial

District Court,^ to

produce

Complete transcript and audio recordingof proceedings for the selection and/or

empanelment

of

the 199 ̂ Judicial District Court's January-June 2015 Grand

Jury

Kathy Bounds, court reporter

for

the 4 7^ ^ Judicial District Court,^ to produce

Complete transcript and audio recording

of

proceedings for the selection and/or

- After accepting Paxton's pleas of not guilty, this Court granted the motion to withdraw as

Paxton's counsel filed by his then-counsel, Joe Kendall and the Kendall Law Group. Paxton has

ultimately obtained new counsel.

^ True copies of

these

applications is attached hereto as exhibits. Moreover, this Court can take

judicial notice of the contents of its file in this matter. See Tex. R. Evid. 201(b) (d).

^ The

Honorable Angela Tucker. Judge

Presiding.

The Honorable Cynthia Wheless. Judge Presiding.


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empanelment

of

the

417 ^

Judicial District Court's January-June 2015 Grand

Jury.

Jan Dugger, court reporter for the 296^ ̂ Judicial District Court/' to produce


o f


empanelment of the 296 Judicial District Court's July-December 2015 term

Grand Jury.

Sue Maienschein, court reporter for the 416 ' Judicial District Court, to produce


of


empanelment

of

the 296 ' Judicial District Court's July-December 2015 tenn

Grand Jury.

Cynthia Jacobsen, Human Resource Manager, Collin County, Texas to produce

Copies

of

any and all documents, statements and/or affidavits related to a

personnel action

involving

a deputy

clerk involving

the 416 Judicial District

Court s

July-December 2015 Grand Jury.

11»

The

S t a t e r s

Standing

t o

sser t

t h i s

M o t i o n

As a party to these proceedings, the State is entitled to file a motion to quash an

application for subpoena duces tecum, which has been served on a non-party

witness.^

Tex. R. Civ. Proc. 192; May v. State, 139 S.W.3d 93, 101 (Tex.App. - Texarkana 2004,

pet.

refd);

Ealoms

State. 983 S.W.2d 853, 858 (Tex.App.- Waco 1998. pet.

refd).

Because the State is a party to this criminal proceeding, it has standing to file this motion

to quash.

111.

P a x t o n anno t

D e m o n s t r a t e

th e E v i d e n c e

Sought

is Mater ia l

Before a clerk or his deputy is required or permitted to issue a subpoena in any

felony case pending in any district or criminal district court. Article 24.03(a), Code

of

Th e Honorable John Roach, Jr., Judge Presiding.

^ In civil cases,

courts have concluded

thata party

may

quash a

subpoena served

byan

opposing

party on a non-party witness. In re Shell E P, Inc., am i Swepi, LP., 179 S.W.3d 125, 127

(Tex.App. - San Antonio 2005)(orig. proceeding); Pelt

State

Board

o f Insuranee, 802 S.W.2d

822, 826 Tex.App.-Austin 1990, no writ).


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Criminal Procedure requires that the defendant or his lawyer must file an application

stating, inter a lia, the name and location

o f

a witness and that the testimony

of

said

witness is material to the ...the defense. While Paxton s applications, as they must,

recite this conclusory claim, even a cursory review

o f

the evidence he seeks to obtain

reveals that none of the evidence sought in any of the applications even approaches the

threshold standard of materiality. See Sparkman State, 997 S.W.2d at 667 ( To

exercise the federal constitutional compulsory process right, the defendant must make a

plausible showing to the trial court, by sworn evidence or agreed facts, that the witness'

testimony would be both material and favorable to the defense. ). On this basis alone,

this Court should grant this motion to quash. See Martin v. Darnell, 960 S.W.2d 838,

840-41 (Tex.App.- Amarillo 1997)(orig. proceeding)(if defendant does not shoulder

burden

of

demonstrating materiality, court must quash application for subpoena).

While the Rules

of

Evidence do not define what type

of

evidence may be

material, the Courtof Criminal Appeals has held that for evidence to be material, it

must be shown to be addressed to the proofof a material proposition, i.e., 'any fact that

is of consequence to the determination of the action.' the evidence is offered to help

prove a propositionwhich is not a matter in issue, the evidence is immaterial.' Miller

State, 36 S.W.3d 503, 501 (Tex.Crim.App. 2001)(citing 1 Steven Goode et al.,

TEXAS

Practice

Guide

to

the

Texas Rules

of Evidence: Civil and Criminal §

401.1 (2

ed 1993 Supp. 1995); see also Brown v. State, 757 S.W.2d 739, 740 (Tex.Crim.App.

1988)( [F]oran itemto alter the probabilities

of

the existence

of

the consequential fact...


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it must logically increase

one s

knowledge and enhance the likelihood of ascertaining the

truth about the fact. );

lack s

Law

Dictionary

(7 ed.)(defining materiar evidence

as that which is significant to the issue or matter at hand ). Viewed against this

backdrop

of

authority, none o f the evidence Paxton seeks to obtain comes within an area

code of meeting this standard

of

materiality.

At the outset, the applications for subpoena duces tecum seeking the court

reporters of the

199

and 417 Judicial District Courts to produce Complete transcript

and audio recording of proceedings for the selection and/or empanelment of their

respective January-June 2015 Grand

Juries, or

for the court reporter

of

the 296 Judicial

District Court to produce this material from the July-December 2015 Grand Jury, comes

perilously close to make-work. It is un-contradicted that the State did not present

evidence of Paxton s criminality to either January-June grand jury,^ or for that matter, to

the 296 Judicial District Court. July-December grand jury.Accordingly, Paxton cannot

shoulder his burden

of

showing that any evidence relating to the selection or

^ The

media

has speculated that the transcripts

from

the two January-June grand juries before

whom the Special Prosecutors did not appear, grand juries selected and empaneled well in

advance

of

the investigation in Collin County spearheaded by the Texas Rangers, might reveal

what, if anything, came up about [Paxton] and possible criminal charges during the selection

process. www.dallasnews.com ( Paxton team seeks details on grand jury selection )(October

1, 2015)(last visited October 3, 2015). Assuming the media has managed to hone in on Paxton s

stratagem for filing this application, even if Paxton s name or his ongoing legal troubles were

broached during the selection processes, this information, if any, neither provides any safe haven

for Paxton, nor sheds any light on his three pending felonies, so as to meet the required standard

of

materiality. See Miller

v

State. 36 S.W.3d at 507; Brown v State, 757 S.W.2d at 740.

Whether the Special Prosecutors elected to present evidence of Paxton s criminality to the

416^ ^ Judicial DistrictCourt grand jury as opposed to the grand jury selectedand empaneled by

the 296 Judicial District Court is a decision neither subject to judicial review nor a proper

matter for the subpoena duces tecum Paxton has sought to file in this matter.


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empanelment

of

any

of

these three grand juries is addressed to the proof

of

a material

proposition, i.e., any fact that is

of

consequence to the determination

of

[this] action,

Miller

v. State. 36 S.W.3d at 507. or

that

this evidence will

somehow

alter the

probabilities of the existence of [any] consequential fact [and] ... logically increase one s

knowledge and enhance the

likelihood

of ascertaining the truth about the

[consequential]

fact. Brown v. State. 75 7 S .W .2 d at 740.

Paxton s request

for

evidence

surrounding

the empanelment and selection of the

416^ ^

Judicial District

Court s

grand

jury

suffers

from the same

fatal deficiencies

as his

boilerplate

applications for

infonnation

regarding

the

three other grand

juries. Make

no

mistake,

the

grand jury empaneled in the

416^

Judicial District Court indicted Paxton for

the

third-degree

felony of acting as an investment advisor

representative

without being

registered by the

State

Securities

Board,

and

for

two counts of first-degree securities

fraud. But

that

is

hardly

the end of

the matter

as it relates to the Paxton s

application.

Absent a claim that members of a identifiable minority groupwere purposefully excluded

from serving on the grand

juiy, ̂

nothing about the

random selection

and

empanelment of

In Castenecia v PartidcL 430 U.S. 482, 494-495 (1979), a case that dealt with the now-

repealed

key-man

system of

selecting

grand jurors in Texas,

the

Supreme Court

held

that an

equal protection violation occurs when the government purposefully excludes certain identifiable

groups from serving on a grand jury.

One

of the elements the Court looked to inCasteneda was

the

fact that

the

key-man

system,

sometimes referred

to as

pick-a-pal,

was

a

selection

procedure

that was susceptible

of abuse or is not

racially neutral.

Id. at 494.

This

Court

can

take judicial

notice

that

even

though he was not

required

to

do

so

under

the law

that

existed at

the time

his

grand

jury

was

selected and empaneled.

Judge

Oldner selected and

empaneled this

grand

jury

from a random driver s

license venire

as

he

would with the venire

assembled

for the

selection and empanelment of any petit

jury. And

a review of the racial makeup of

the

grand

jury that indicted Paxton readily reveals that any such claim would be as

baseless

asitwould be

gratuitous.


7/11

this grand jury could ever come close to meeting the threshold mandate

of

materiality.

Indeed, nothing about the selection and empanelment of this grand jury has any bearing

whatsoever on the ultimate facts that are

of

consequence in this matter, including but not

l imited

to

Did Paxton knowingly and intentionally render services as an investment advisor

representative to James and Freddie

Henry

when he was not registered as an

investment adviser representative by andwith the Securities Commissioner of the

State

Texas

Did Paxton

unlawfully and intentionally, offer to sell and sell to

Byron

Cook

securities in an amount of 100,000 or more, namely, stock issued by Servergy,

Inc., and Paxton did then and there directly and indirectly engage in fraud by

intentionally failing to disclose to Cook the material facts known Paxton

for

the

purpose

of

inducing

Cook to

purchase

said securities, to

wit:

that

Paxton would be

compensated by Servergy, Inc. in the

form

of 100,000 shares of Servergy, Inc.

stock,

for

selling stock in Servergy, Inc., to Cook, and that

Paxton

had

not,

and

was not, investing his own funds in Servergy, Inc.?

Did Paxton

unlawfully

and intentionally, offer to

sell

and

sell

to Joel

Hochberg

securities in an amount

of

100,000 or more, namely, stock issued by Servergy,

Inc.. and Paxton did then and there directly and indirectly engage in fraud by

intentionally failing

to

disclose

to

Hochberg

the

material

facts

known

to

Paxton

for

the purpose of inducing

Cook

to purchase

said

securities, towit: that

Paxton would

be compensated by Servergy,

Inc.

in the fonn of

100,000

shares of Servergy,

Inc.

stock, for selling stock in Servergy, Inc., to Cook, and that Paxton

had

not, and

was not, investing his own funds in Servergy, Inc.?

Finally.

Paxton s application for subpoena duces

tecum

to the Human

Resource

Manager, CollinCounty. Texas to produce Copies of anyand all documents, statements

and/or

affidavits

related

to

a

personnel action involving

a

deputy clerk involving the

416 ^

Judicial District Court s July-December 2015 Grand Jur> , is as devoid of merit as its


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ancestors. Once again, even assuming that any such documentation exists, nothing

about it comes close to meeting Paxton s burden of demonstrating materiality. This

Court, accordingly, must grant this motion to quash. See Coleman v. State, 966 S.W.2d

525, 528-29 (Tex.Crim.App. 1998)(court correctly granted motion to quash subpoena

where defendant failed to demonstrate evidence sought to be elicited was material).

IV. Paxton mprop r ly Uses his Subpoenas

as

Weapon s f or Discovery

Paxton does not have a general right to discover evidence in the State s

possession, but has instead been afforded limited discovery as set out in Article 39.14,

Code of Criminal Procedure. - Shpikula State, 68 S.W.3d 212,

221

(Tex.App.-

Houston [14 Dist.] 2002, pet. refd). Article 39.14 provides the exclusive manner by

which Paxton may obtain pretrial discovery and provides that a trial court may order the

State before or during the trial of a criminal action to produce certain evidentiary items

more fully described in that article. Liivano

State, 183 S.W.3d 918 (Tex.App.- El Paso

2006, pet. refd). Although Article 24.02, ̂ Code of Criminal Procedure provides that

Paxton may file an application for subpoena duces tecum. Article 39.14 also mandates

Given the wholly

conclusor>

nature of this request, the State s best guess is that this

application involves the accidental dissemination of the names and addresses of the grandjurors

by a Collin County deputy district clerk, and what involvement, if any. Judge Oldner had in any

investigationof the incident or discipline of those involved. See www.chron.com, Paxton grand

jury names mistakenly released after judge orders them sealed,* (July 9, 20l5)(last visited

October 2, 2015 .

While this case is not governed by the changes to pre-trial discovery as embodied in the

changes to Article 39.14 wrought by the Michael Morton Act. the State is nevertheless

conducting discovery under the Morton Act.

I f a witness have in his possession any instrument of writing or other thing desired as

evidence, the subpoena may specify such evidence and direct that the witness bring the same

with him and produce it in court .

8


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thai Paxton must first show that the material sought are not otherwise privileged and

constitute or contain evidence material to any matter involved in the action. (emphasis

added). As set out above, Paxton does not, because he cannot, meet this threshold

standard. Moreover. Paxton s applications ignore the well-settled precept that a

subpoena duces

tecum

is not to be

used

as a discovery weapon, but as an aid to discovery

based upon a show ing ofmateriality and relevance.

Ealoms

v. Slafe. 983 S.W.2d at 859.

Because

Paxton s ploy in filing these applications for subpoena duces tecum is an

impermissible attempt

at

obtaining pre-trial discovery indeed one wholly bereft

of

materiality, this Court should grant this

motion

to

quash.

See Martin v. Darnell, 960

S.W.2d

838,

840-41.

THEREFORE, the State respectfully prays that this Court set this matter for a

hearing and at the conclusion thereof grant the

foregoing

Motion to Quash and order

that

no

further subpoenas be

issued

to these witnesses absent prior written consent of the

Court .

Respectfully submiUed.

BRIAN W/WICE

Thrt yri /Z

eplre

440 Louisttrtia. Suite 900

Houston , Texas 77002

713 524-9922 PHONE

713 236-7768 FAX

Bar No .

21417800


10/11

KENT

A. SCHAFFER

712 Main,

Suite

2400

Hous ton . Tex as 7 7

713 228-8500 PHONE

713 228-0034 FAX

Bar No.

17724300

NICOLE

DeBORDE

712 Main.

Suite

2400

Houston. Texas 77002

713 228-8500

PHONE

713 228-0034 FAX

Bar No. 787344

A TT OR NE YS P RO T EM

TH E STATE O F TEX AS

CERTIFICATE OF

SERVICE

Pursuant to Tex.R.App.P. 9.5 d . I certify that a copy of this motion was served

upon all counsel for Paxton by e-mail on October 6. 2015.

IAN W.

WI

10


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C A U S E NOS.

416 81913 2015 416 82148 2015 416 82149 2015

THE STATE OF TEXAS § IN THE DISTRICT COURT

§

V. § COLLIN COUNTY TEXAS

§

WARREN KENNETH PAXTON JR. § 416TH JUDICIAL DISTRICT

OR R

It is hereby Ordered

Adjudged and Decreed

that the State s Motion to Quash

and Motion for Protective Order is hereby GRANTED.

No further process shall be exercised against Cynthia Jacobsen Sue Maienschein

Jan Dugger Kathy Bounds and Sheri Veccera without prior written approval by the

Court .

DONE and ENTERED this day of . 2015.

George Gallagher

Assigned Judge

4 6^ ^ Judicial District

Court

Collin County Texas

state's motion to quash subpoenas duces tecum

Documents