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8/20/2019 State's Motion to Quash Subpoenas Duces Tecum
1/11
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
8/20/2019 State's Motion to Quash Subpoenas Duces Tecum
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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.
8/20/2019 State's Motion to Quash Subpoenas Duces Tecum
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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
Complete transcript and audio recording
o f
proceedings for the selection and/or
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
Complete transcript and audio recording
of
proceedings for the selection and/or
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).
8/20/2019 State's Motion to Quash Subpoenas Duces Tecum
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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...
8/20/2019 State's Motion to Quash Subpoenas Duces Tecum
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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.
8/20/2019 State's Motion to Quash Subpoenas Duces Tecum
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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.
8/20/2019 State's Motion to Quash Subpoenas Duces Tecum
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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
8/20/2019 State's Motion to Quash Subpoenas Duces Tecum
8/11
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
8/20/2019 State's Motion to Quash Subpoenas Duces Tecum
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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