Pre-Indictment Subpoena

Defense counsel must subpoena information prior to indictment in any case where records may be destroyed or become unavailable with the passage of time.  Some prosecutors oppose these subpoena requests with a Motion to Quash if the subpoena is requested prior to indictment.  There is no authority to support that position and defense counsel needs to be able to respond nimbly and effectively.

We confronted this situation when we requested call records from the AT&T National Compliance Center. We filed a Subpoena Duces Tecum directing AT&T to provide all call records for an AT&T telephone customer including incoming and outgoing calls and texts for a specified period of time. We asked that AT&T provide the subscriber’s name and address and incoming and outgoing call detail to include the date, times, texts, minutes used, and telephone numbers called and received.

The prosecutors filed a Motion to Quash claiming among other things that the case was not ripe for discovery because the case is preindictment and has not been presented to a grand jury. The State took the position that a criminal defendant’s constitutional right to subpoena evidence only attaches after a prosecutor presents its case to a grand jury and then only after the grand jury returns a true bill of indictment.

AT&T took the position that it was unable to provide the records based on the State’s Motion to Quash.

In addition to the vast array of investigative tools available to the State, prosecutors in a felony case have the entire limitations period to seek an indictment which in this particular case was 10 years. The State provided no legal authority to support its position that a defendant may not request the issuance of a subpoena prior to indictment. We filed an objection to the State’s Motion to Quash and requested the Court to deny the State’s Motion to Quash. The trial court considered the brief below and denied the State’s Motion to Quash and Ordered AT&T to comply with our request for records.


Does the defendant have the right to obtain non-privileged evidence from a witness through a subpoena immediately after defendant has been arrested and prior to the time his case is indicted?


The defendant maintains that under Texas and Federal caselaw defense counsel has a duty to obtain evidence from a witness through a subpoena immediately after defendant has been arrested and prior to the time defendant’s case is indicted. The law goes further to require defense counsel to diligently and expediently obtain this evidence or face the potential waiver and forfeiture of these rights at trial.

Defendant further maintains that the doctrine of spoliation separately requires defense counsel to obtain non-privileged evidence favorable to the accused through the use of a subpoena before the evidence becomes unavailable due to the passage of time.

Finally, The Michael Morton Act creates a new unmistakable emphasis to provide the Defendant with the tools to mount an effective defense. With respect to evidence in the State’s possession, Morton requires the State to produce any “evidence material to any matter involved in the action”. The Act imposes this duty on the State “as soon as practicable after receiving a timely request from the defendant”. “The Legislature’s broad use of the phrase ‘any matter involved in the action’ cannot reasonably be interpreted as applying only to those actions for which a formal indictment has been filed because that phrase plainly contains no such limitation.” Under Morton, there is no requirement for the defendant to wait until the time of indictment to make a request for production nor is there an exception allowing the state to delay production until the time of indictment. While the evidence sought by defendant’s subpoena is not in the possession of the State, the Morton Act makes clear the legislature’s intent for the production of non-privileged evidence to begin prior to indictment.


Under both the United States Constitution and the Texas Constitution, a defendant has a right to compulsory process for witnesses and information in the possession of witnesses. U.S. Const. amend. VI; Tex. Const. art. I, sec. 19; Tex.Code Crim. Proc. Ann. arts. 24.01–24.29; Etheridge v. State, 903 S.W.2d 1, 7 (Tex.Crim.App.1994); Emenhiser v. State, 196 S.W.3d 915, 921 (Tex. App.—Fort Worth 2006, pet. ref’d). Chapter 24 of the Texas Code of Criminal Procedure authorizes a defendant to obtain a subpoena to secure the presence of witnesses whose testimony is material to its case. Tex.Code Crim. Proc. Ann. arts. 24.01–24.29. Issuance of the subpoena is a matter of right on written, sworn application identifying the witness and stating that the testimony is material to the State or defense. Tex.Code Crim. Proc. Ann. art. 24.03. Article 24.02 specifically authorizes the issuance of a subpoena duces tecum directing the witness to produce in court writings or other things in their possession. Tex.Code Crim. Proc. Ann. art. 24.02. The Sixth Amendment right to compulsory process “is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies.” Coleman v. State, 966 S.W.2d 525, 527 (Tex. Crim. App. 1998) quoting Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967).

The issuance of subpoenas is governed by Chapter 24 of the Texas Code of Criminal Procedure. The language of that chapter does not appear to impose the limitations indicated by the State in its Motion to Quash. There is no restriction that a defendant must wait until after indictment before he can issue a subpoena. Moreover, the right to compulsory process is dependent upon an accused’s initiative, and the nature of the right requires that its effective use be preceded by “deliberate planning and affirmative conduct” by the defendant. Emenhiser v. State, 196 S.W.3d 915, 921 (Tex. App.—Fort Worth 2006, pet. ref’d) citing Rodriguez v. State, 90 S.W.3d 340, 358 (Tex.App.-El Paso 2001, pet. ref’d) (quoting Taylor v. Illinois, 484 U.S. 400, 410, 108 S.Ct. 646, 653–54, 98 L.Ed.2d 798 (1988)). See Emenhiser v. State, at 922 [By waiting until the time of trial to serve a subpoena that would have substantially delayed the trial, Appellant did not exercise the “deliberate planning and affirmative conduct” required to trigger the right to compulsory process.] See also Rodriguez at 358 [holding that trial court did not abuse its discretion by quashing subpoena for school records when appellant waited until the time of trial to complain that subpoena had not been served, and compliance with subpoena would have delayed trial].

In Taylor v. Illinois, 484 U.S. 400, 410, 108 S. Ct. 646, 653–54, 98 L. Ed. 2d 798 (1988) the United States Supreme Court wrote: “There is a significant difference between the Compulsory Process Clause weapon and other rights that are protected by the Sixth Amendment—its availability is dependent entirely on the defendant’s initiative. Most other Sixth Amendment rights arise automatically on the initiation of the adversary process and no action by the defendant is necessary to make them active in his or her case. While those rights shield the defendant from potential prosecutorial abuses, the right to compel the presence and present the testimony of witnesses provides the defendant with a sword that may be employed to rebut the prosecution’s case. The decision whether to employ it in a particular case rests solely with the defendant. The very nature of the right requires that its effective use be preceded by deliberate planning and affirmative conduct.” Taylor at 653–54.

An accused must file his subpoena early or it will not be timely. An accused must exercise “deliberate planning and affirmative conduct” to trigger the right to compulsory process. Finally, the defendant should receive exculpatory evidence in time to use it at trial. Fears v. State, 479 S. W. 3d 315, 327 (Tex. App. –Corpus Christi 2015).


A motion for a continuance based on a missing witness must show, among other things, that the party seeking the continuance exercised due diligence to secure the witness’s attendance. Tex.Code Crim. Proc. Ann. art. 29.06(2); Hughes v. State, 962 S.W.2d 89, 90 (Tex.App.-Houston [1st Dist.] 1997, pet. ref’d). Diligence, in the motion for continuance context, is the exercise of timely and persistent efforts to secure the attendance of witnesses, using the means and agencies provided by law. Edwards v. State, 148 Tex.Crim. 104, 106, 185 S.W.2d 111, 112 (1945); Tucker v. State, 109 S.W.3d 517, 520 (Tex.App.-Tyler 1999, pet. ref’d). It requires timely efforts to procure witnesses as well as timely presentation of a motion for continuance. Dewberry v. State, 4 S.W.3d 735, 756 (Tex.Crim.App.1999).

In Jones v. State, the Texas Court of Criminal Appeals stated that a Defendant has a duty to obtain witness testimony as soon as he is arrested. The Court stated:

It has been ofttimes and plainly stated: “It is the duty of the defendant, as soon as he is arrested, to use the means provided by law to obtain the testimony he desires, or he must show good cause for failure to do so, upon applying for a continuance.” Vernon’s C. C. P. art. 543, note 5, which cites Barrett v. State, 18 Tex. App. 64; Timbrook v. State, 18 Tex. App. 1; Hughes v. State, 18 Tex. App. 130, and many other cases. See, also, Hatton v. State, 109 Tex. Cr. R. 121, 3 S.W. (2d) 87; Shepherd v. State, 111 Tex. Cr. R. 4, 10 S.W.(2d) 730, 732.

Jones v. State, 115 Tex.Crim. 60, 62, 29 S.W.2d 791, 792 (Tex.Crim.App. 1930). [Emphasis added].

The Court repeated this maxim in Carroll v. State where is stated:

Appellant failed to use the diligence demanded by the law. It was incumbent upon appellant, as soon as he was arrested under the charge contained in the indictment, to use the means provided by law to obtain the testimony he desired, or, upon applying for a continuance, to show good cause for failure to use such means. Jones v. State, 115 Tex. Cr. R. 60, 29 S.W.(2d) 791. No excuse was shown for waiting until nine days before the trial to file application for subpoenas for the witnesses. That all of the witnesses could have been subpoenaed if process had timely issued is apparent from the record. Appellant waited approximately six months after the return of the indictment to apply for the witnesses. In the state of the record, we are constrained to hold that the learned trial judge was warranted in overruling the application and denying the motion for a new trial based on the refusal to continue the case. Kelly v. State, 112 Tex. Cr. R. 514, 17 S.W.(2d) 460. The judgment is affirmed.

Carroll v. State, 120 Tex.Crim. 541, 543, 46 S.W.2d 1110, 1110-11 (Tex.Crim.App. 1932). [Emphasis added].

The Trial Court in Jones and Carroll denied the appellants’ requests for continuances because defense counsel waited until shortly before trial to issue subpoenas. The Court of Criminal Appeals found in each of those cases that counsel did not timely issue subpoenas. The Court emphasized that counsel should have sought subpoenas as soon as the appellants were arrested and the time from arrest counted against defense counsel’s claim of due diligence. The triggering event for purposes of computing a time delay for issuing a subpoena is not the return of an indictment but rather the time of arrest.


The Texas Supreme Court has defined spoliation as “an evidentiary concept that allows ‘the factfinder to deduce guilt from the destruction of presumably incriminating evidence.’ ” Cire v. Cummings, 134 S.W.3d 835, 843 (Tex.2004) (citing Trevino v. Ortega, 969 S.W.2d 950, 952 (Tex.1998)). There must be a showing of bad faith on the part of the State to warrant a spoliation instruction. See Moody v. State, 02-15-00267-CR, 2017 WL 117309, at *4 (Tex. App.—Fort Worth Jan. 12, 2017, no. pet. h.) citing Snell v. State, 324 S.W.3d 682, 684 (Tex. App.–Fort Worth 2010, no pet.); White v. State, 125 S.W.3d 41, 44 (Tex. App.–Houston [14th Dist.] 2003, pet. ref’d).

The Texas Court of Criminal Appeals has explained bad faith in the context of spoliation of DNA evidence as follows:

“Bad faith” is more than simply being aware that one’s action or inaction could result in the loss of something that is recognized to be evidence. As the cases we have discussed show, bad faith entails some sort of improper motive, such as personal animus against the defendant or a desire to prevent the defendant from obtaining evidence that might be useful. Bad faith cannot be established by showing simply that the analyst destroyed the evidence without thought, or did so because that was the common practice, or did so because the analyst believed unreasonably that he was following the proper procedure.

Ex parte Napper, 322 S.W.3d 202, 328 (Tex.Crim.App.2010).

The defense maintains that by serving its Motion to Quash, a Motion that provides no supporting legal authority and asserts a claim that is clearly contrary to Texas and Federal law, the State has attempted to prevent the defendant from obtaining evidence that would be useful at trial and has acted in bad faith. Defendant contends that the State’s Motion to Quash if granted violates his right to due process under the Fourteenth Amendment to the United States Constitution and the Due Course of Law provision in article I, section 19 of the Texas Constitution. Defendant also relies on Pena v. State, 226 S.W.3d 634, 637 (Tex. App.—Waco 2007), rev’d, 285 S.W.3d 459 (Tex. Crim. App. 2009).


The Michael Morton Act became effective January 1, 2014 and significantly changed discovery procedure in Texas. See Michael Morton Act, 83rd Leg., R.S., ch. 49, 2013 Tex. Gen. Laws (codified as Crim. Proc. art. 39.14). The changes made by the Michael Morton Act apply to offenses committed after January 1, 2014. Id. The underlying offense is alleged to have occurred on October 8, 2016.

The bill is entitled the Michael Morton Act in honor of a man who spent 25 years in prison wrongly convicted for the murder of his wife. DNA eventually connected another man to the crime. The amendment to Article 39.14, for the first time, makes police reports discoverable and it mandates that witness statements must be turned over to the defense after timely request.” McCormick, Blackwell & Blackwell, 7 Tex. Prac. Series § 58.1, Commentary.

While the Morton Act does not expressly address the use of defense subpoenas preindictment, the unmistakable emphasis of the Act is to provide the Defendant with the tools to mount an effective defense. See Bill Analysis – Author’s / Sponsor’s Statement of Intent.

Most importantly, the Morton Act helps prevent wrongful convictions. Recent high profile cases in Texas show that with open file discovery, the likelihood that evidence relevant to the defendant’s innocence would have been revealed is increased. Every defendant should have access to all the evidence relevant to his guilt or innocence, with adequate time to examine it. … S.B. 1611 will uphold a defendant’s constitutional right to a defense, minimize the likelihood of wrongful convictions, save thousands in taxpayer dollars, promote an efficient justice system, and improve public safety, all while increasing the public’s confidence in the criminal justice system.” Senate Research Center, Bill Analysis, Tex. S.B. 1611, 83rd Leg., R.S., digest and purpose (July 26, 2013).

The Michael Morton Act provides in relevant part:

Art. 39.14. Discovery

(a) Subject to the restrictions provided by Section 264.408, Family Code, and Article 39.15 of this code, as soon as practicable after receiving a timely request from the defendant the state shall produce and permit the inspection and the electronic duplication, copying, and photographing, by or on behalf of the defendant, of any offense reports, any designated documents, papers, written or recorded statements of the defendant or a witness, including witness statements of law enforcement officers but not including the work product of counsel for the state in the case and their investigators and their notes or report, or any designated books, accounts, letters, photographs, or objects or other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action and that are in the possession, custody, or control of the state or any person under contract with the state. The state may provide to the defendant electronic duplicates of any documents or other information described by this article. The rights granted to the defendant under this article do not extend to written communications between the state and an agent, representative, or employee of the state. This article does not authorize the removal of the documents, items, or information from the possession of the state, and any inspection shall be in the presence of a representative of the state.
(b) … (g)
(h) Notwithstanding any other provision of this article, the state shall disclose to the defendant any exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged.

Tex. Crim. Proc. Code Ann. art. 39.14 [Emphasis added].

The Morton Act provides for several important new rights to ensure a fair trial. Among those new rights is the right for the defense to receive more than mere inspection of evidence. The Act requires that the state provide defense counsel with physical copies of documents and other evidence material to any matter involved in the action. Second, the Act does not limit the state’s duty to turn over evidence now in its possession but all exculpatory evidence in the State’s control.

The call record information that the defense seeks is not under the State’s control and defendant only has access to that information through a subpoena. It is inconsistent with the spirit of the Morton Act for the State to thwart the defendant’s attempts to investigate the case and prevent the accused from obtaining evidence that is favorable and material to his defense.


The defendant respectfully requests that the court issue an order denying the State’s Motion to Quash Defendant’s Subpoena together with an order directing AT&T to comply with defendant’s subpoena duces tecum.

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