NO. 16CR0129

STATE OF TEXAS	§	IN THE DISTRICT COURT	
	§		
vs.	§	10th JUDICIAL DISTRICT	
	§		
ROBERT WESLEY FAIRCLOTH	§	GALVESTON COUNTY, TEXAS	

MOTION TO SET ASIDE INDICTMENT FOR
FAILURE TO AFFORD CONSTITUTIONAL RIGHT TO SPEEDY TRIAL

TO THE HONORABLE JUDGE OF SAID COURT:
Now comes Robert Wesley Faircloth, Defendant, in the above styled and numbered cause and, pursuant to the Sixth and Fourteenth Amendments to the United States Constitution, Article I, Section 10 of the Texas Constitution, and Articles 1.03, 1.04 and 1.05 of the Texas Code of Criminal Procedure, moves the Court to set aside the indictment for failure to afford Robert Wesley Faircloth, a speedy trial, and shows the following in support:
1.	Robert Wesley Faircloth, was charged with Possession of a Controlled Substance with Intent to Manufacture or Deliver 
2.	 Counsel for defense filed a request for Brady and Morton disclosures on January 21, 2016 and March 21, 2016.  Counsel for defense filed a Motion for Disclosure of Withheld Information on August 3, 2016.      
3.	The State has provided what purports to be a “Brady notice” regarding Deputy Hunt on June 2, 2016.  That notice declares that Deputy Hunt is being investigated for a complaint from a citizen for harassment. The State declines to provide to defense counsel any more evidence or information regarding this so called Brady information. Instead the State seeks a protective order signed by the Court to determine if such information is Brady and if it is admissible.
4.	The refusal to provide this material violates the defendant’s rights under Brady v. Maryland, The Michael Morton act, also known as TCCP Art. 39.14, Texas Rule of Professional Responsibility 3.09(d), the First, Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, Article I, Sections 10 and 19 of the Constitution of the State of Texas. 
5.	Counsel for the Defendant cannot provide effective assistance of counsel without having the opportunity to review and analyze the evidence referenced above. No attorney can. 
6.	 Robert Wesley Faircloth has the right to discovery under the Brady material referenced in the notice from the Galveston County Criminal District Attorney’s office as well as any other evidence exculpatory or inculpatory. Robert Wesley Faircloth has the right to have an attorney advise him regarding how such evidence impacts his options to go to trial or waive his right to trial and his trial strategies. 
7.	Delaying the disclosure of evidence delays the ability for the defendant to have effective assistance of counsel. 
8.	The Defendant has been incarcerated in the Galveston County Jail waiting for his case to be resolved. 
9.	The Defendant takes a huge risk if he pushes for a jury or bench trial without having knowledge of all of the evidence that the State has. The Defendant is forced into a legal quagmire of choosing whether to assert his right to a speedy trial or to assert his right to effective assistance of counsel. 
10.	The Michael Morton Act also known as TCCP Art. 39.14, Texas Rule of Professional Responsibility 3.09(d), the Brady v Maryland opinion require the State to disclose evidence as soon as practicable. That has been determined to be as soon as the prosecution can. That is within hours or days, not weeks and even months.
11.	The Defendant cannot meaningfully assert his right to a speedy trial if the State intentionally delays disclosure of Brady or potential Brady material for months. 
12.	 On November 10, 2016 in the 10th District Court in Cause No. 15CR0122 the State of Texas v Pablo Ariza Gonzales, the Galveston County Criminal District Attorney First assistant Kevin Petroff testified that their office seeks protective orders before disclosing potentially Brady material and Brady material regarding police officers in order to be nice to the police. He also stated under oath that it is not uncommon for several months to pass after their office has access to such material before it is disclosed to the defense. He said this is so even when the material is in a computer database in the Galveston County Criminal District Attorney’s Office and all prosecutors and their staff have access to that database. 
13.	 The State’s willful refusal to comply with their duty to disclose evidence has resulted in the denial of Defendant’s right to a speedy trial. 
14.	There are no satisfactory reasons for the delay in bringing Robert Wesley Faircloth, to trial.
15.	Robert Wesley Faircloth, has been substantially prejudiced because of the failure of the State to afford a speedy trial, in that Robert Wesley Faircloth, has suffered oppressive pretrial incarceration and substantial anxiety and concern. Defendant may have suffered substantial prejudice to his case. That cannot be determined as counsel cannot analyze what remains hidden. Every day and every week and every month that Brady, potentially Brady or Morton evidence remains hidden from the defense counsel is a day, week and month that the defendant is deprived of the effective assistance of counsel. In this case the Defendant has sat in jail for several months without his attorney having adequate resources to provide effective assistance of counsel in complete deprivation of his rights. 
WHEREFORE, PREMISES CONSIDERED, Robert Wesley Faircloth, respectfully prays that this Court set the matter for a hearing and, after said hearing, that the Court order this indictment set aside and dismiss this case with prejudice.
Respectfully submitted,

Criss & Rousseau Law Office
PO Box 17046
Galveston, Texas 77552
409 771 4069
409 7631508

By:	
Susan Criss
State Bar No. 06630475
judgecriss@aol.com
Attorney for Daryle Walker

CERTIFICATE OF SERVICE

This is to certify that on November 14, 2016, a true and correct copy of the above and foregoing document was served on the Galveston County Criminal District Attorney's Office, by hand delivery.

	
Susan Criss

NO. 16CR0129

STATE OF TEXAS	§	IN THE DISTRICT COURT	
	§		
vs.	§	10th JUDICIAL DISTRICT	
	§		
ROBERT WESLEY FAIRCLOTH	§	GALVESTON COUNTY, TEXAS	

ORDER FOR A SETTING
On _____________________________, 2016, the Defendant filed a Motion to Set Aside the Indictment.  The Court finds that the party is entitled to a hearing on this matter, and it is THEREFORE ORDERED that a hearing on this motion is set for ________________, at ______________.
Signed on _______________________________.

JUDGE PRESIDING