CAUSE NO. __________
STATE OF TEXAS	§	IN THE COUNTY CRIMINAL
	§
VS.	§	COURT AT LAW NO. ______ 
   	§
________________	§	__________ COUNTY, TEXAS

DEFENDANT’S MOTION TO COMPEL PRODUCTION OF VIDEO EVIDENCE, OR ALTERNATIVELY, 
TO SUPPRESS ALL EVIDENCE ASSOCIATED WITH THAT EVIDENCE 
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Defendant in the above entitled and numbered cause, though the undersigned attorney, and presents this Motion to Compel Production of Video Evidence. In support hereof, Defendant will show:
I. SUMMARY OF ARGUMENT
The video of a DWI stop and arrest, and all video electronic audio/video recordings related to that stop/arrest, is discoverable under Tex. Code Crim. P. Articles 39.14(a) (the Michael Morton Act (“MMA”)) and 2.139 (effective Sept. 1, 2015). 
II. AUTHORITY TO COMPEL DISCOVERY
A. Michael Morton Act
The Michael Morton Act, codified within Texas Code of Criminal Procedure Art. 39.14, requires the State to produce discovery “as soon as practicable after receiving a timely request from the defendant.” Tex.Code.Crim.Pro. Art. 39.14(a). The State’s duty to do this is neither discretionary nor dependent upon any “policy,” because this section clearly uses the word “shall.” Id. 
The Code Construction Act found in the Texas Government Code dictates how statutory words and phrases are to be construed. In general, “[w]ords and phrases shall be read in context and construed according to the rules of grammar and common usage.” Tex.Gov’t.Code sec. 311.011(a) (emphasis added). However, when words or phrases a technical meaning, whether by the legislature or otherwise, those words shall be “construed accordingly.” Tex.Gov’t.Code. sec. 311.011(b).
The Code Construction Act states that “unless a different construction is expressly provided by statute . . . ‘shall’ imposes a duty.” Tex.Gov’t.Code 311.016(2) [emphasis added]. Thus, when the Michael Morton Act is to be read and interpreted according to the mandates of the Code Construction Act meaning that the State has a duty to produce discovery to the defendant. The discovery contemplated under the Act is amazingly broad, and includes any audio/video recordings of a DWI related stop, arrest, blood draw, or breath test. See Tex.Code.Crim.P. Art. 39.14(a). 
B. Texas Code of Criminal Procedure 2.139
Notwithstanding that the Michael Morton Act production’s duty “as soon as practicable” for DWI audio/video recordings, Tex.Code Crim. Pro. Article 2.139 (effective Sept. 1, 2015) is equally instructive that the legislature further intended that audio/video electronic recordings be produced even before the filing of formal charges. The legislature recognized a previous production problem, and noted that “persons arrested for certain intoxication offenses under the Penal Code are not [automatically and/or] clearly entitled to a copy of all video recordings of the arrest,” House Committee Report, HB 3791, Engrossed, and provided a remedy. The legislature asserted “that a person [stopped or] arrested for certain intoxication offenses should be entitled to a copy of all video recordings made during the [stop or] arrest.” House Committee Report, HB 3791. 
The Eighty-fourth Legislature passed House Bill 3791, became effective September 1, 2015, and added an additional Article 2.139 to the Code of Criminal Procedure. It provided:*
A person stopped or arrested on suspicion of an offense under Section 49.04, 49.045, 49.07, or 49.08, Penal Code, is entitled to receive from a law enforcement agency employing the peace officer who made the stop or arrest a copy of any video made by or at the direction of the officer that contains footage of:
(1) the stop;
(2) the arrest;
(3) 
the conduct of the person stopped during any interaction with the officer, including during the administration of a field sobriety test; or
(4) a procedure in which a specimen of the person’s breath or blood is taken. (emphasis added).
The mandatory production nature and broadness of Art. 2.139’s phrase “is entitled,” as defined by Tex.Gov’t.Code Sec. 311.016(4), leaving no doubt that said language: “is entitled to” creates or recognizes a right. Thus, the plain meaning of Art. 2.139 (effective Sept. 1, 2015) is that a person who is arrested or stopped for a charge involving Driving While Intoxicated, Driving While Intoxicated Child Passenger, Intoxication Assault, or Intoxication Manslaughter has an entitlement right to any video recording of the stop, the arrest, conduct of the person during any interaction with the officer (including but not limited to the administration of the standardized field sobriety tests), and any procedure in which a specimen of that person’s blood or breath is taken. Clearly, since the statute provides the alternative “or stopped,” it was designed to mandate production, upon request, even for individuals who were not arrested, but only stopped. Importantly, the court is asked to notice that the Texas Attorney General has already spoken on this issue in its 2016 Texas Public Information Handbook, where it clearly approvingly stated that the transparent purpose of the act is to “promote an open and inclusive system of government in Texas that benefits all of our citizens.”
C. Suppression of Evidence Not Produced
In In re: Castillo, 2015 WL 4776080 at p.3 (not designated for publication)(Tex.Crim.App. 2015), Justice Alcala suggested that suppression may be an appropriate remedy when a prosecutor’s office does not timely produce evidence in response to a timely discovery request. The State’s failure to timely produce discovery, such as the electronic video and audio recordings discussed above, will produce irreparable harm to the defendant. 
Prompt discovery production is material and crucial to future proceedings and to due process. By obtaining this discovery, the Defendant is in a better position to do the following:
1. 
Discover the exact location of where the alleged offense occurred and preserve any exculpatory evidence at that location; 
2. 
Assess the road conditions that can quickly change and will disappear long before trial; 
3. 
Obtain other private electronic recordings such as business security surveillance which are typically preserved only for a short amount of time; and
4. 
Discovery potential witnesses, whose memories will fade over time.
Any delay by the State in producing such evidence will cause irreparable harm, and will require the exclusion of any video or audio electronic recordings, and any evidence derived from those recordings. 
III. RELIEF REQUESTED
1. Because [DEFENDANT] was [ARRESTED/STOPPED] by a peace officer employed by [AGENCY] for [DWI, DWI CHILD PASSENGER, INTOX ASSAULT, INTOX MANSLAUGHTER], this Court should ORDER [HEAD OF THE POLICE AGENCY] to produce all electronic audio video recordings relating to the [STOP OR ARREST].
2. Alternatively, if the State elects not to produce the recordings, the Court is requested to issue an Order suppressing all video or audio electronic recordings of the Defendant, and any evidence that is derived from any video or audio electronic recordings of the Defendant. 

	Respectfully submitted,

	By: _____________________
	[ATTORNEY FOR DEFENDANT]

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing Motion has been furnished to the Assistant District Attorney presently assigned to this case on this ______th day of ____________, 201_.

	____________________________________
	[ATTORNEY FOR DEFENDANT]

CAUSE NO. __________
STATE OF TEXAS	§	IN THE COUNTY CRIMINAL
	§
VS.	§	NUMBER ____
   	§
________________	§	__________ COUNTY, TEXAS

ORDER ON DEFENDANT’S MOTION TO COMPEL PRODUCTION OF VIDEO EVIDENCE
On this day came on to be heard Defendant’s Motion to Compel Production of Video Evidence, and the Court having considered the same, it is hereby GRANTED/DENIED.
I.
	It is therefore ORDERED that [AGENCY HEAD] produce to Defendant an electronic digital DVD copy of any audio video recording made by or at the direction of the officer who made the stop/arrest that contains electronic audio/video recording of:
(1) the stop;
(2) the arrest;
(3) the conduct of the person stopped during any interaction with the officer, including
during the administration of a field sobriety test; or
(4) a procedure in which a specimen of the defendant’s breath or blood is taken.
It is further ORDERED that all items mentioned above must be provided to [DEFENSE COUNSEL] at [DEFENSE COUNSEL’S OFFICE ADDRESS] by the ____ day of _________, 2016.
II.
It is ORDERED that any electronic video or audio recordings as described above, along with any evidence derived from those recordings is SUPRESSED if those recordings are not produced to [DEFENSE COUNSEL] as described above.
DONE and SIGNED this    day of          , 2016.

	JUDGE PRESIDING 
A suggested Exparte Application on a Writ of Mandamus is as follows:

CAUSE NO. ______________
In Re [CLIENT NAME] 	§	IN THE COUNTY COURT 
		§	AT LAW OF 
		§	_________ COUNTY, TEXAS 

APPLICATION FOR WRIT OF MANDAMUS FOR THE [POLICE AGENCY CHIEF] TO PRODUCE ALL AUDIO/VIDEO ELECTRONIC RECORDINGS MADE BY THE ARRESTING OFFICER OF [THE DEFENDANT]
TO THE HONORABLE JUDGE OF THIS COURT:
I.
The Applicant, under the authority of Texas Government Code § 552.321 and Texas Code of Criminal Procedure Art. 2.139 (effective Sept. 1, 2015), requests immediate production of the audio/video electronic recordings made of the Defendant made by the stopping/arresting officer in this case. 
II.
The Eighty-fourth Legislature passed an additional Article 2.139 (effective Sept. 1, 2015) to the Code of Criminal Procedure which provides:*
A person stopped or arrested on suspicion of an offense under Section 49.04, 49.045, 49.07, or 49.08, Penal Code, is entitled to receive from a law enforcement agency employing the peace officer who made the stop or arrest a copy of any video made by or at the direction of the officer that contains footage of:
(1) the stop;
(2) the arrest;
(3) 
the conduct of the person stopped during any interaction with the officer, including during the administration of a field sobriety test; or
(4) a procedure in which a specimen of the person’s breath or blood is taken [emphasis added].
The mandatory production nature and broadness of 2.139’s phrase “is entitled,” is defined by Tex.Gov’t.Code Sec. 311.016(4). That definition leaves no doubt that said language: “Is entitled to” creates or recognizes a right. Thus, the plain meaning of Art. 2.139 is that a person who is arrested or stopped for a charge involving Driving While Intoxicated, Driving While Intoxicated Child Passenger, Intoxication Assault, or Intoxication Manslaughter has a right to any video recording of the stop, the arrest, conduct of the person during any interaction with the officer (including but not limited to the administration of the standardized field sobriety tests) and any procedure in which a specimen of that person’s blood or breath is taken. Clearly, since the statute provides the alternative “or stopped,” it was designed to mandate production upon request even for individuals who were not arrested but only stopped. 
III.
On [DATE], Applicant was stopped and arrested by [OFFICER’S TITLE AND NAME] of the [POLICE AGENCY] for an offense under [TEXAS PENAL CODE SECTION 49.04, 49.045, 49.07, or 49.08]. Various electronic recordings, including audio/video recordings, were made of the stop, arrest, conduct of the Applicant during interactions with the office (including standardized field sobriety tests), and the procedure in which the Applicant’s [BREATH/BLOOD] was taken. 
IV.
A letter demand dated _______ was delivered/faxed to the Agency head ___________. (Letter and proof of receipt are attached hereto and incorporated herein for all purposes.) The letter provided _____________ days for compliance. Said production time was reasonable and certainly within the meaning of “as soon as practicable.” Unexplainably, the date came and went without the Agency even responding. Ostensibly, the demand was purposely ignored.
V.
Absent providing an electronic recording at this time, the Applicant has no adequate remedy at law to obtain the aforementioned electronic audio/video recordings. As such, the recording must be produced now. 
VI.
Immediate production of the electronic recording will not be tedious, burdensome, inconvenient, inappropriate, or a hardship on the State.
VII.
Accordingly, this Honorable Court is asked to order the head of the [POLICE AGENCY CHIEF] in compliance with Texas Code of Criminal Procedure Art. 2.139 (effective September 1, 2015), to immediately produce the electronic recording(s). Hence, the Court is respectfully requested to issue the order in the form of a writ of mandamus ordering the [CHIEF OF THE POLICE AGENCY] to do so. 
	Respectfully Submitted,
		
	[COUNSEL FOR APPLICANT]