January-February 2013

How to attach a witness who has failed to appear

Ronald Banerji

Assistant District ­Attorney in the Appellate Division of the El Paso County ­District Attorney’s Office

Rather than ask for a continuance or, gulp, dismiss the case, why not seek an attachment?

Imagine the following scenario: It is trial day in your court and the judge is conducting docket call, asking if you are ready on a case in which you have a non-law enforcement witness whose testimony is necessary to prove your case. You have called out in the lobby a few times for the witness, who was successfully served a subpoena, but she has failed to appear. You can’t reach her by phone, and you have no idea whether she will appear to testify. Furthermore, you know the judge will not grant a continuance. What do you do? Dismiss? Or take a deep breath, announce ready, and seek an attachment?       
    Before seeking an attachment, ask yourself whether you truly need the witness’s testimony to prove your case. For example, in the case of a family-violence assault, where oftentimes victims are uncooperative at trial, you may be better off without the witness if you can prove your case through other evidence, such as hearsay-exception statements, 911 recordings, party-opponent admissions, photographs, medical records, and the like. However, in situations where you simply do not have this type of evidence and you feel that a dismissal is not in the interest of justice, you may have no choice but to seek an attachment.
    Article 24.11 of the Code of Criminal Procedure covers the requisites of an attachment. Specifically, it is a writ issued by a magistrate (i.e., the judge) commanding a peace officer to bring a witness to court “on a day named, or forthwith, to testify.” Article 24.12 governs the requisites for an attachment to issue. The witness must:
1)    reside in the county,
2)    have been served with a subpoena, and
3)    have disobeyed the subpoena (i.e., failed to appear). (Sample at-tachment motions and orders can be found in the book Family Violence Investigation & Prosecution by Ellic Sahualla and Patricia Baca, published by TDCAA and available for sale at www.tdcaa.com/publications.)
    Generally, a trial court should not require sworn testimony or an affidavit before granting a writ of attachment. A prosecutor’s unsworn assertion in open court on the record as to the grounds for the motion and why the testimony is material should suffice.1 The issuance of a writ of attachment for a witness who has been duly served with a subpoena is a matter of right.2
    If the attachment request is denied, the State has no right to appeal per Article 44.01 of the Code of Criminal Procedure. At best, the State is limited to a mandamus action, and at worst, proceeding without the witness. A mandamus action is governed procedurally by Rule 52 of the Rules of Appellate Procedure and substantively by caselaw. Because the issuance of a writ of attachment is a matter of right, the prosecutor should assert in his mandamus petition that the granting of a writ of attachment is a ministerial act because it constitutes a duty clearly fixed and required by law and can be accomplished without the exercise of discretion or judgment.3
    Logistically, it is difficult to mandamus a court while in trial, as it is up to the trial court to stay proceedings while the State prepares and files a mandamus, which the court may not be inclined to do. So be prudent and prepare the mandamus in advance if you think the court will deny the request for attachment (or have your favorite appellate prosecutor on notice to help you).
    Beware seeking a continuance to buy time to bring in a witness, as once a case has been continued, the witness is no longer subject to the subpoena,4 which means there is no longer a right to seek a writ of attachment.
    Courts have wide latitude in how they handle the trial once the writ of attachment has issued, and there is no caselaw that provides guidance. For example, here in El Paso, some courts will give prosecutors only until the end of the case-in-chief to bring a witness to testify. If the State is not able to locate and bring in a witness by the time you close, then you stand a high chance of being directed out by the judge or receiving a not-guilty verdict. In a misdemeanor trial, this can be a huge challenge, as voir dire is typically conducted in the morning with the trial taking place in the afternoon, giving you only a few hours to find and bring in your witness. In a typical felony trial, you will have more time, as voir dire may take the entire day (with the trial taking place the next day), so you have at least a day to find and bring in your witness. Either way, though, you need to get people looking for the witness immediately. Other courts in El Paso will recess the trial until the witness is served with the writ, brought before the court, and admonished (the State will serve a new subpoena upon the witness at this time as well), and then they will continue the trial to a new date.
    To conclude, if you think a State’s witness will not show, prepare a writ before court, be ready to show the judge why you need that witness’s testimony, have your investigator ready to find and bring in your witness, and be prepared to file a writ of mandamus if the judge does not grant the attachment request.


1 See Sturgeon v. State, 106 S.W.3d 81, 82-83 (Tex. Crim. App. 2003) (holding that counsel’s assertion of the anticipated testimony on the record in open court is sufficient to preserve error).
2 Sturgeon, 106 S.W.3d at 90.
3 Perkins v. Ct. App. for Third Supreme Judicial Dist. of Texas at Austin, 738 S.W.2d 276, 284 (Tex. Crim. App. 1987).
4 Gentry v. State, 770 S.W.2d 780, 785-86 (Tex. Crim. App. 1988).