Limine
THE STATE OF TEXAS
V.
JOHN SMITH
IN COUNTY COURT AT LAW NO. 1
HIDALGO COUNTY, TEXAS
DEFENDANT'S MOTION IN LIMINE
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW the Defendant by and through his attorney of record, Johnathan Ball, and submits this Motion in Limine requesting that the Court and Counsel for the State not mention, refer to, allude to or bring to the attention of the jury, directly or indirectly, whether it be during jury selection, opening statement, closing statement, questioning of witnesses or statements to the court in the presence of the jury, any of the following matters without first approaching the bench and obtaining a ruling outside the presence of the jury concerning the admissibility of the same.
I.
The subjects of this Motion in Limine are as follows:
1. Granted/Denied Defendant's application for probation;
2. Granted/Denied Defendant's election for the judge to assess punishment;
3. Granted/Denied The fact that the Defendant or any defense witness has any prior convictions, prior probated sentences or has been placed on deferred adjudication for any offense;
4. Granted/Denied The commission of any extraneous or unadjudicated criminal acts or bad acts;
5. Granted/Denied Any attempt by the State to prove that any defense witness, including the Defendant, has a bad reputation or bad character;
6. Granted/Denied Any evidence that the race or ethnicity of the Defendant makes it more likely that he will engage in future criminal conduct;
7. Granted/Denied That the Defendant has filed any motion in limine;
8. Granted/Denied Any act of misconduct on the part of the Defendant or any defense witness;
9. Granted/Denied Any rebuttal evidence concerning the character of the Defendant;
10. Granted/Denied Any written statement of any State's witness that would not be admissible absent an exception to the hearsay rules;
11. Granted/Denied Any videotaped statement of any State's witness that would not be admissible absent an exception to the hearsay rules;
12. Granted/Denied Any photograph or item of physical evidence for which the proper predicate has not been laid;
13. Granted/Denied Any mention that the State has an open file policy or that it has made its file available to the Defendant in this matter;
14. Granted/Denied Any expert witness testimony until such time that the Defendant has had an opportunity to voir dire the witness out of the presence of the jury;
15. Granted/Denied Any invocation of the right to counsel or right to remain silent;
16. Granted/Denied Any reference to plea bargain negotiations between the State and Defendant in this case or any other case involving the Defendant;
17. Granted/Denied Any reference to the Defendant's invocation of "The Rule";
18. Granted/Denied Any reference to the Defendant's right to appeal.
19 Granted/Denied Any reference to the Defendant having more than two previous DWI convictions. See Tamez v. State, 980 S.W.2d 845 (Tex. App.-San Antonio 1998)
20. Granted/Denied Any reference to the Defendant having been administered a portable breath test and the purported quantitative result of that test. In other words, trying to elicit testimony that the portable breath test showed a certain blood alcohol content of the Defendant at the time of the arrest.
21. Granted/Denied Any reference, suggestion or allusion to the accuracy of the Intoxilyzer 5000.
22. Granted/Denied Any reference, suggestion or allusion that the Defendant could have avoided prosecution by submitting to a breath test at the police department following his arrest.
23. Granted/Denied Any witness discussing the officer's conclusions relating to the administration of the horizontal gaze nystagmus test on the Defendant.
24. Granted/Denied Any reference, suggestion or allusion to any other arrest and/or conviction of the Defendant without first providing the Court sufficient reason, out of the presence of the jury, why such evidence should be admitted under Texas Rule of Evidence 404b or any other relevant rule of evidence, State or Federal law.
25. Granted/Denied Any reference, suggestion or allusion to, during voir dire, the State's case in chief, or closing, to issues of alcohol tolerance, a person being an experienced drinker of alcohol and/or ability to "hold one's liquor." Statements such as these have no bearing on the matter being tried before this Court. These types of statements are outside the scope of evidence and the State has not designated an expert to broach this subject. Defendant further objects to any such statements as being irrelevant, inflammatory, highly prejudicial and violating Texas Rules of Evidence 102 and 403.
26. Granted/Denied Any reference, suggestion, argument or allusion to, during voir dire, the State's case in chief, or closing, to issues of alcohol tolerance, a person being an experienced drinker of alcohol and/or ability to "hold one's liquor." Statements such as these have no bearing on the matter being tried before this Court. These types of statements are outside the scope of evidence and the State has not designated an expert to broach this subject. Defendant objects to any such statements as being irrelevant, inflammatory, highly prejudicial and violating Texas Rules of Evidence 102 and 403.
27. Granted/Denied Any argument by the State in support of a conviction which is in any way premised on the Defendant's prior convictions for driving while intoxicated. Examples of such arguments include:
A. "How many more chances are we going to give the Defendant?"
B. "Are we going to wait until the Defendant kills someone before we do something about this?"
C. "The Defendant has already been convicted twice he should have known better than to drive with any alcohol on his breath."
D. "The Defendant has experience being arrested."
E. "This Defendant has experience performing the field sobriety tests because of his prior convictions"
Arguments to the jury such as these have no bearing on the matter being tried before this Court. They would merely be attempts by the State to inject Defendant's prior convictions into the jury's conscience during its deliberations. This is inappropriate. Defendant objects to any such statements or arguments as being irrelevant, inflammatory, highly prejudicial and violating Texas Rules of Evidence 102, 403 and 404b, the Due Process Clause of the United States Constitution and the Due Course of Laws provision of the Texas Constitution. Defendant requests the State be Ordered to approached the Court at the bench an obtain a ruling prior to making these types of arguments to the jury.
28. Granted/Denied Any reference, suggestion, argument or allusion to, during voir dire, the State's case in chief, or closing arguments that the Defendant has been asked to perform the Standardized Field Sobriety Tests, has actually performed the Standardized Field Sobriety Tests and/or has experience prior to the arrest forming the basis of the case sub judice performing the Standardized Field Sobriety Tests. Statements such as these have no bearing on the matter being tried before this Court. These types of statements are outside the scope of evidence and the State has not designated an expert to broach this subject. Defendant objects to any such statements as being irrelevant, inflammatory, highly prejudicial and violating Texas Rules of Evidence 102 and 403. Defendant requests the State be Ordered to approached the Court at the bench an obtain a ruling prior to making these types of statements to the jury.
II.
The Defendant contends that if the State of Texas is allowed to allude to, comment on, inquire about, or introduce evidence concerning any of the above matters, ordinary objections made during the course of trial, even if sustained and including proper instructions to the jury, will not remove the harmful effect of the evidence in view of its highly prejudicial content.
WHEREFORE, PREMISES CONSIDERED, the Defendant requests this Motion be granted and that the State of Texas and all witnesses called on behalf of the State be instructed and directed not to mention or allude to any of the above subjects until a ruling can be obtained concerning admissibility of these matters outside the presence of the jury.
Respectfully submitted,
Johnathan Ball
Attorney at Law
605 E. Violet, Suite 3
McAllen, Texas 78504
Tel:(956) 501-6565
Fax:(956) 682-1211
_____________/S/___________
JOHNATHAN BALL
STATE BAR NO. 24045443
ATTORNEY FOR DEFENDANT
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has been delivered to the Hidalgo District Attorney's Office, 100 N. Closner Edinburg, Texas 78539 on June 20, 2010.
___________/S/_____________
JOHNATHAN BALL
Cause No.: CR-11-1111-G
THE STATE OF TEXASV.
JOHN SMITH
IN COUNTY COURT AT LAW NO. 1
HIDALGO COUNTY, TEXAS
ORDER SETTING HEARING
On this day came to be considered Defendant's Motion in Limine. The Court finds that all documents are in order and hereby ORDERS that a hearing be scheduled for the _____day of ______________2010, at _____o'clock __.m. The Clerk is to notify all parties.
SIGNED on this ____day of ______________________, 2010.
_______________________________
HONORABLE JUDGE PRESIDING