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
DEFENDANT' S MOTION FOR A HEARING TO MAKE AN
OFFER OF PROOF. etc. --
Page 1
/appeal/routier
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.
DEFENDANT'S MOTION FOR A NEARING TO MAKE AN
OFFER OF PROOF, etc. --
Page 2
/appeal/routier
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
DEFENDANT'S MOTION FOR A HEARING TO MAKE AN
OFFER OF PROOF. etc. --
Page 3
/appeal/routier
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
DEFENDANT'S MOTION FOR A HEARING TO MAKE AN
OFFER OF PROOF, etc. --
Page 4
/appeal/routier
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
DEFENDANT'S MOTION FOR A NEARING TO MAKE AN
OFFER OF PROOF. etc. --
Page 5
/appeal/routier
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
DEFENDANT'S MOTION FOR A HEARING TO MAKE AN
OFFER OF PROOF. etc. --
Page 6
/appeal/routier