Motion For A Hearing to Make An Offer of Proof

Cause No. F96-39973-MJ

 

 

Kerr County No. A96-253

 

Court of Criminal Appeals No. 72,795

 

The State of Texas v. Darlie Lynn Routier

In the Criminal District Court NO 3

Dallas County, Texas

 

DEFENDANT'S MOTION FOR A HEARING TO MAKE AN OFFER OF PROOF OF THE EVIDENCE THAT SHE WOULD HAVE INTRODUCED AT THE HEARING ON HER OBJECTIONS TO THE "SIMMONS RECORD"

 

TO THE HONORABLE JUDGE OF SAID COURT:

 

 

 

COMES NOW DARLIE LYNN ROUTIER, defendant in the above styled and numbered cause and respectfully requests this Court set this cause for a hearing to permit the defendant to make an offer of proof of the evidence that she would have introduced at the previously scheduled hearing on her objections to the new reporter's record, i.e., the "Simmons record." In support of this motion, the defendant would show the following:

 

 

1. Pursuant to this Court's previous orders, on March 2, 2000, the defendant filed her 70 page written objections to the proposed new reporter's record as well as her specific written request for a hearing on these objections. The State filed its 66 page response to defendant's objections on or about April 28, 2000.

 

 

2. After considerable deliberations by this Court and after multiple conferences with the parties, the Court concluded that an

 

 

 

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evidentiary hearing should be held as to the defendant's objections.

 

3. There were several discussions by the Court with the parties as to the date for this hearing and, ultimately, on September 1, 2000, the Court advised the undersigned counsel and the State that the hearing would be on September 8, 2000.

 

4. Without any further communication from the Court or, to counsel's knowledge, any new information being provided to the Court, the Court filed a written order at 3:15 p.m. on September 7, 2000, canceling the next day's hearing.

 

5. On July 12, 2000, the undersigned participated in a lengthy interview with Susan Simmons and it was determined that her previous testimony in this case in material respects was incomplete and potentially misleading as to certain areas.

 

6. On July 14, 2000, a conference was held with the Court and the parties and the Court and the State conceded that as to at least one major objection of the defendant's, further testimony of Susan Simmons was required for the record in this case to reflect the full truth of Simmons' work in her effort to reconstruct the reporter' s record.

 

7. In addition to this conceded point, there are multiple additional facts and opinions from Susan Simmons and other witnesses which bear on both the legality and accuracy of the "Simmons record" which are not now in the record of these proceedings.

 

 

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8. This Court's order of September 7, 2000, asserts that the defendant's previous objections are "clear" and "concise" and "preserved... for review." The order then claims that "any evidentiary hearing is not necessary to comply with the previous orders of the Court of Criminal Appeals" ... "to ensure that the record conforms to what occurred at trial..."

 

 

9. First, whether the defendant's objections are "preserved ... for review" is exclusively within the province of the appellate court and not this Court. Second, by denying the defendant an opportunity to support her objections with evidence, this Court has intentionally or otherwise dictated to the Court of Criminal Appeals that there is insufficient evidence to support the defendant ' s objections.

 

 

10. Due process, whether under the constitution of the United States or that of the State of Texas, includes the right to meaningful access to the courts. Bounds v. State, 430 U.S. 817 (1977). At minimum, the state must assure a defendant "an adequate opportunity to present his claims fairly in the context of the State's appellate process." Pennsylvania v. Finley, 481 U.S. 551, 556 (1987)

 

 

11. The defendant cannot present her claims about the new reporter's record fairly in the context of the State's appellate process without making an offer of proof about the evidence that she was not allowed to introduce at the hearing on her objections to the new reporter's record. "The cases are legion in which appellant's (sic) have lost appeals fore (sic) lack of preservation

 

 

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of error due to counsel's failure to request an opportunity to make an offer of proof." Spencer v. State, 758 S.W.2d 597 (Tex.Crim.App. 1988). The right to "make an offer of proof or perfect a bill of exception is absolute where evidence is excluded by ruling of the trial court. Tatum v. State, 796 S.W.2d 569, 571 (Tex.Crim.App. 1990)

 

 

12. This Court previously ordered the parties not to directly communicate with Susan Simmons, an order which was in blatant contravention of the law. Leahy v. State, 111 Tex.Crim. 874, 13 S.W.2d 874, 882 (1928). Though this order was rescinded and the undersigned then interviewed Simmons for several hours on July 12th the exercise of this constitutional right proved empty when the Court cancelled the hearing at which the fruits of this interview would have been established.

 

 

13. This Court, over appellant's strenuous written and oral objections, previously refused the defendant her constitutional right to question Susan Simmons in open court. See Morrison v. State, 845 S.W.2d 882 (Tex.Crim.App. 1993). This order was rescinded in the conferences which preceded the scheduled September 8th hearing. However, by canceling the hearing, the harm of this purported "rescinded" order remained intact in that the defendant has yet been able to question the central actor in this record reconstruction effort to establish the complete truth.

 

 

14. This Court has asserted on more than one occasion that it was not enough for these record reconstruction proceedings simply to be fair to the defendant, but rather the proceedings had to

 

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appear to be fair to the public. For the defendant's part, the public appearance factor is irrelevant. However, real, true fairness to the defendant is literally an issue of life or death. Only by allowing the defendant an opportunity for the record to reflect the truth can this process have either the appearance of fairness or fairness in fact.

 

WHEREFORE, PREMISES CONSIDERED, the defendant prays this Court set this motion for a hearing to allow the defendant to make an offer of proof of the evidence she would have introduced in support of her objections to the new reporter's record.

 

 

 

 

 

 

 

 

Respectfully submitted,

 

 

 

J. STEPHEN COOPER

3524 Fairmount Street

Dallas, Texas 75219

214-522-0670

FAX 214-522-0670

SBN 04780100

 

STEVEN LOSCH

906 Delia Drive

Longview, Tx. 75601

903-234-1373

SBN 00789805

 

Counsel for Defendant

 

 

 

 

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CERTIFICATE OF SERVICE

 

A true and correct copy of this motion was served on Libby Lange, Assistant District Attorney, by fax, on this the _____ day of September, 2000.

 

J. STEPHEN COOPER

 

 

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