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Case 5:11-cv-00360-OLG-JES-XR Document 1203 Filed 08/08/14 Page 1 of 3
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
SHANNON PEREZ; HAROLD
DUT[1TON, JR.; GREGORY TAMEZ;
SERGIO SALINAS; CARMEN
RODRIGUEZ; RUDOLFO ORTIZ;
NANCY HALL and DOROTHY DEBOSE
Plaintiffs
2C11
UG
8 PH
2:
C
i:
CIVIL ACTION NO.
11-CA-360-OLG-JES-XR
CONSOLIDATED ACTION
[Lead case]
V.
STATE OF TEXAS; RICK PERRY,
in his official capacity as Governor of the
State of Texas; DAVID DEWHURST,
in his official capacity as Lieutenant
Governor of the State of Texas; JOE
STRAUS, in his official capacity as Speaker
of the Texas House of Representatives;
NANDITA BERRY, in her official
capacity as Secretary of State of the
State of Texas
Defendants
ORDER
Pending before the Court is the United States' request to call State Representative Aaron Pena
as a rebuttal witness on issues raised during the cross-examination
of Mr. Ryan Downton. Dkt. no.
1195. Defendants oppose the request. Dkt, no. 1200. The United States attempted to use the D.C.
deposition testimony of Representative Pena during the cross-examination of Mr. Downton on July 19,
2014. Defendants objected on the basis that the D.C. deposition testimony was inadmissible and was
being used for improper impeachment purposes. There was some discussion and ensuing confusion
about the admissibility of the deposition testimony. The United States now seeks clarification on the
admissibility of the Pena deposition excerpts or, alternatively, permission to call Representative Pena
as a rebuttal witness.
Case 5:11-cv-00360-OLG-JES-XR Document 1203 Filed 08/08/14 Page 2 of 3
This Court erred in allowing an excerpt of the deposition testimony of Representative Pena to
be read into the record by counsel for the United States during the testimony of Ryan Downton in an
attempt to impeach the testimony of Mr. Downton during his live testimony. The error was twofold.
First, Federal Rule of Civil Procedure 32(a)(2) and (8) contemplate the use of a deposition only to
impeach a witness with his own testimony, not that of another witness deponent. Second, confronting
the witness with the Pena deposition testimony contravened this Court's numerous directives that
testimony from the District of Columbia preclearance proceeding would not be considered except in
the most limited circumstances.1 Accordingly, the deposition testimony of Representative Pena and Mr.
Downton's response to that testimony are hereby stricken from this record and transcript and will not
be considered for any purpose, even assuming the evidence ultimately would have been deemed
relevant.
The Department ofJustice should have known of both of these restrictions and should not have
surprised the Court by mentioning the Pena deposition. On the other hand, once the Court mistakenly
permitted the excerpt to be read into the record for purposes of impeachment, the United States could
reasonably assume that it did not need to present Representative Pena as a live rebuttal witness.
The admission of rebuttal evidence lies solely within the discretion of the trial court. United
States v. Sadler, 488 F.2d 434, 435 (5th Cir. 1974); United States v. Brock, 833 F.2d 519, 522 (5th Cir. 1987).
The request of the United States to reopen the evidence for the purpose of presenting rebuttal witnesses
or other rebuttal evidence is granted, limited to rebuttal of Mr. Downton's testimony regarding House
District 41. It follows that the State or any other party will be permitted, within the Court's discretion,
to present additional witnesses or evidence strictly limited to the rebuttal evidence that the United States
1Those limited circumstances may include the use of deposition testimony for impeachment
purposes, but the United States' use of Representative Pena's deposition testimony was not proper
under the circumstances. For the remainder of these proceedings, counsel should clearly identify the
source of proposed impeachment testimony before using it in trial. If the witness on the stand testified
differently when being deposed in these or other proceedings, the Court may decide to allow the use
of the witness's prior deposition testimony as impeachment evidence. That did not occur here.
2
Case 5:11-cv-00360-OLG-JES-XR Document 1203 Filed 08/08/14 Page 3 of 3
presents as permitted by this order. Nothing in this order should be construed as a comment on the
relevance or probative nature of any of the testimony or potential testimony covered by the order.
IT IS THEREFORE ORDERED that when the Court reconvenes on Monday, August 11,
2014, it plans to continue with trial as follows: (1) the continuation of Mr. Interiano's testimony on the
2011 Texas House plan; (2) Representative Pena's testimony as a rebuttal witness; (3) interim closing
arguments by the Latino Task Force on the 2011 Texas House plan; (3) the State's response to the
Latino Task Force's closing arguments; (4) opening statements by all parties on the 2011 Congressional
plan; and (5) presentation of supplemental evidence on the 2011 Congressional plan.
Counsel should also be prepared to discuss the admissibility of deposition excerpts that have
been submitted to the Court as evidence in this case. For purposes of clarification, the parties should
identify whether the depositions that have been designated as evidence in this case were taken in the
Section 2 proceedings or the Section 5 proceedings and whether the depositions or excerpts thereof are
being offered in lieu of live testimony. If a deponent has provided live testimony in this case, counsel
should be prepared to explain why that witness's deposition testimony should be admissible. This
directive does not pertain to deposition testimony that has been or may be used for impeachment
purposes only.
IT IS SO ORDERED this
day of August, 2014.
ORLANDO L. GARCIA
UNITED STATES DISTRICT JUDGE
[on behalf of the three judge panell