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Art 39.02 - State taking deposition

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August 11, 2005, 10:28
Art 39.02 - State taking deposition
I have a sexual assault case where the victim is 90 years old. About to turn 91. She is also undergoing treatment for cancer. Of course my concern is that she may pass away prior to trial. However, the new statute says State's ability to take depo only applies to cases presented to grand jury after 9.1.05. In addition, the victim and her daughter do not feel like she will be able to testify at trial due to her emotional and physical condition. I was hoping to get the court to allow me to do a video deposition and use it in trial in lieu of live testimony. The defense attorney is actually okay with all this but for the record has to represent his scumbag of a client.
Any suggestions other than getting it to trial really fast?
August 11, 2005, 11:19
Reindict in September.
August 11, 2005, 18:02
Martin Peterson
If no objection is raised at the time of trial to use of the "deposition" (including deprivation of the right to confront and cross-examine and hearsay), then I guess it will be admissible. The court need not authorize the making of the out-of-court statement ahead of time. But, it may not be effective assistance for defense counsel to waive these objections (even if he participated in the deposition).

I find the final sentence of new art. 39.02 most troubling. What the heck are "the purposes stated in art 39.01" and why are depositions taken under 39.02 now limited to those purposes?

Apparently, if you are going to try to take advantage of 39.02, as amended, you will indeed need to re-indict after August 31, and arrange for an order to take the deposition under 39.02 after that date.
August 11, 2005, 18:45
The little bit at the end of the new 39.02 was a committee amendment, but if you read 39.01, it is probably good for us. It just means that to get a deposition under 39.02, your witness must be about to die, leave the state, be prevented from attending trial by the other party, or be to sick or old to attend trial. Basically, the language you ask about ensures that a 39.02 deposition can never be used for discovery.

I can help you deal with an argument that might arise if you use the new depo statute for a case that occured prior to 9/1.
August 15, 2005, 10:16
Shannon Edmonds
Look for an article on HB 975 and its changes to be published in the next Texas Prosecutor, courtesy of Ben Stool, Dallas ACDA.
August 15, 2005, 20:35
Martha W. Warner
I met a prosecutor in Columbia, SC at a NDCAA school who spent 75% of his time in depositions before trial( all murder cases) Can you imagine how boring trials would be? Guess it would be fun for us to have something to use in cross but seems like a great waste of time. In response to the question I'd just dismiss and reindict to save an appellate issue.
August 16, 2005, 08:25
Thanks for all the information. The trial is set for September 6th. But is #2 on the docket. Just found out my 90 year old victim has more cancer and is undergoing more tests to determine where it is at in her body now. John R. would appreciate any help you could give me with arguments. Thanks.
August 16, 2005, 10:24
Kspears, check your email.

Warnerbee, lucky for us, our deposition statute is not plugged into the discovery statute. Many other states have discovery that includes depositions. That would seem bad to most of us. They sometimes have some good stuff to go with that, though. Anyhow, discovery was a hot topic this session and we will see it again in 2007. I feel like we were lucky to get this change to the depo statute without major changes to discovery practice.
March 19, 2020, 16:18
Just a follow up on this thread. I would like to take a deposition of a witness but the indictment has occurred. Does the last sentence of 39.02 limit me to taking depositions for examining trials only.