Cause No. __________

STATE OF TEXAS				§		IN THE _______________ COURT
						§
V.						§		COURT DESIGNATION
						§
***						§		_______________ COUNTY, TEXAS

MOTION FOR EVIDENCE FAVORABLE TO THE DEFENDANT

TO THE HONORABLE JUDGE OF SAID COURT:

	COMES NOW ***, the Defendant in the above styled and numbered cause, prior to trial, and moves the Court to order the prosecution to disclose to counsel for the Defendant all exculpatory evidence or evidence favorable to the Defendant that the prosecution may have in its possession and for cause would show the Court as follows:

1.  Material or information in the hands of the prosecution is discoverable "where the evidence is material to guilt or to punishment."  It includes evidence "favorable to the accused either direct or impeaching".  Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); Giles v. Maryland, 386 U.S. 66, 76 (1967); Giglio v. United States, 405 U.S. 150 (1972).  

The obligation to disclose favorable evidence to the accused is that of the government and failure to disclose such information is not excused merely because the prosecutor did not have actual knowledge of such favorable evidence.  United States v. Auten, 632 F. 2d 478 (5th Cir. 1980); Rhinehart v. Rhay, 440 F.2d 718, 725 (9th Cir. 1971), cert. denied, 404 U.S. 825.  
	
"The duty of disclosure affects not only the prosecutor, but the government as a whole, including it's investigative agencies."  United States v. Bryant, 142 U.S. App. D.C. 132, 439 F.2d 642, 658 (1971).  
Further, the Texas Disciplinary Rules of Professional Conduct require a prosecutor in a criminal case to "make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigate the offense, and, in connection with sentencing, disclose to the defense and the tribunal all unprivileged mitigating information known to the prosecutor. . . ." Tex. Disciplinary R. Prof. Conduct 3.09(d).

2.  The Defendant specifically requests the Court to order the prosecution to provide defense counsel with any information or material that is exculpatory, favorable to the accused or which act to impeach any State's witness, including but not limited to the following:

a.  Prior statements by a witness that are inconsistent with later statements.  Levin v. Clark, 133 U.S. App. D.C. 6, 408 F.2d 1209 (1967);

b.  Facts or evidence indicating the unreliability of any State's witness. Mesarosh v. United States, 352 U.S. 1 (1956);

c.  Evidence or information indicating the untruthfulness of a State's witness. Napue v. Illinois, 360 U.S. 264 (1959);

d.  Instructions to a State's witness not to speak with defense counsel or to do so only in the presence of the State's counsel. Gregory v. United States, 125 U.S. App. D.C. 140, 369 F.2d 185 (1966).

e.  Evidence regarding any prior false accusations made by the Complainant on behalf of the Complainant against the Defendant that the Defendant or some other person had made threats against the Complainant or engaged in assaultive conduct against the Complainant.  Thomas v. State, 669 S.W.2d 420 (Tex. App.—Houston [1st Dist.] 1984, pet.ref'd.); Rushton v. State, 695 S.W.2d 591(Tex. App.—Corpus Christi 1985,no pet.); Polvado v. State, 689 S.W.2d 945 (Tex. App.—Houston [14th Dist.] 1985, pet. ref'd.); Davis v. Alaska, 415 U.S. 308, 318 (1974); Tex. R. Evid. 412(b).
	
f.  Any evidence which would tend to show that the Defendant did not commit the offense alleged in this cause.

g.  Any evidence which would indicate that a person other than the Defendant committed or is criminally responsible for the offense alleged.  
[Include a sub paragraph requesting any evidence that negates any or all of the 
elements of a particular offense with which your client is charged.]
3.	The Defendant further moves the court to require the prosecution to reveal its entire file to the court, and to order the prosecution to determine if any prosecution witness has knowledge of any evidence that is possibly exculpatory or favorable to the Defendant and that such information be provided to the court for review in camera for the court's determination as to what evidence therein is exculpatory or favorable to the Defendant and that the court order a copy of the aforesaid material not deemed to be exculpatory to be sealed for further review by an appellate court, if necessary.
	WHEREFORE, PREMISES CONSIDERED, the Defendant prays that his motion be in 
all things granted.

Respectfully Submitted,

____________________________________
Attorney Name
State Bar Number
Address
City, State, Zip
Phone 
Fax

Attorney for Defendant
***

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the foregoing Defendant’s Request for Notice of 

Extraneous Offenses was served upon the attorney for the State on ________________________, 

200___.

____________________________________
Attorney for Defendant

Cause No. __________

STATE OF TEXAS				§		IN THE _______________ COURT
						§
V.						§		COURT DESIGNATION
						§
***						§		_______________ COUNTY, TEXAS

ORDER

On this day came on to be heard the foregoing Defendant's Motion For Evidence Favorable To The 

Defendant.  The Court, having considered the motion and argument of counsel, it is hereby  

________________________.

SIGNED this _____ day of ___________________, 200___.

____________________________________
JUDGE PRESIDING