I'm working on an appeal right now in which the defense is claiming a violation of CCP 20.08, which requires the trial court's approval for the grand jury to recess for more than 3 days.

The defense did not file a motion to quash the indictment or raise the issue in any way until direct appeal, so unless this voids an indictment, I obviously have a good preservation of error argument.

But here's my issue: In order to attempt to circumvent the obvious failure to put anything in evidence about whether or not the judge consented, the defense designated a bunch of stuff to be included in the court record that I don't think can be included, like the grand jury minutes, an order reconvening the grand jury that was signed well after the 3 days had passed, written orders allowing the grand jury to recess that were signed as to other grand juries in the county from years later, and even letters between the lawyer and the district clerk to the effect that there is no order allowing them to recess.

It seems to me that I should be able to file a motion to strike these things from the record since they weren't even included in the court files of the indicted cases upon which the defendant was convicted. Is there some provision in the appellate rules for that? I've looked and haven't found anything. Does anyone have a suggested motion they could email me, or other suggestions about the best way to proceed?

I should mention that, although I handle a lot of my own appeals, I'm mostly a trial lawyer, so this is foreign territory for me!

This behavior is only marginally different than someone attempting to supplement the record with affidavits and the like. There is caselaw speaking to that and barring the conduct. But at least some of the documents you refer to were generated in these cases and are official documents. I might argue that the appellate court can't consider them because the trial court did not have them brought to its attention in connection with the issue raised (if you can do so in good faith) and they were not even introduced for record purposes. A motion to strike seems reasonable.

I should say I have only (successfully) asked appellate courts to ignore affidavits.

The rule speaks only to "any filing that a party designates to have included". Rule 34.5(a)(13). But, there must surely be a good argument that if the document was not specifically filed in the case being appealed (generally after the indictment was filed) then it is not "any filing". Maybe a motion to disregard is preferable to a motion to strike, but in either I would allege the documents were not properly included in the Clerk's Record and thus must be disregarded for the purposes of appellate decision. As John points out, just because they are in the Clerk's Record does not mean they were brought to the attention of the trial court at the appropriate time and thus should also be disregarded for that reason:
"none of the documents in [the] clerk's record was before the trial court when it considered the . . . motions. Accordingly, we conclude, . . . that we may not consider [that part] of the record." Roventini v. Ocular Scineces, Inc., 111 S.W.3d 719, 726.

[This message was edited by Martin Peterson on 08-10-06 at .]

The appellate courts don't seem to want to strike ridiculous filings. We had a local lawyer attached a printout of the DA website, attempting to make arguments regarding materials posted on a webpage.

Despite the utter absurdity of such including materials in an appeal (long after the trial) by simply stapling them to the defendant's brief, the court of appeals didn't strike the materials. They didn't consider them, but they didn't strike them.

Personally, it seems a bit unethical for a lawyer to circumvent the normal process of adding materials to a record, hoping to influence the appellate judges with obviously irrelevant information. For habitual violators, perhaps a grievance would be more appropriate.

John Bradley
District Attorney
Williamson County, Texas

i had a CPS appeal where the appellant filed a motion for an out-of-time motion for new trial to include records and a transcript from the criminal case. i filed my response and a motion to strike the material. the court not only did not strike the material, but took judicial notice of it and referred to it in their legal sufficiency analysis (without ever being asked to do so). during this . . . well, i can only call it crap, the question came up about whether this was unethical or not. the courts of appeals in houston have made a point of putting out ethical guideliness (or was that the HBA) saying that attorneys should not include matters outside the record, but i never found any uniform ethical rule against doing so. it's a published case (in re j.l., 127 S.W.3d 911), in case you'd like to laugh at my pain.

we were in front of the 13th having been transferred there.

[This message was edited by David Newell on 08-11-06 at .]