Dickens v. Court of Appeals For Second Supreme Judicial Dist. of Texas

• Citation: 727 S.W.2d 542
• Decision Date: 25 March 1987
• Docket Number: No. 69490,69490
• Parties: Honorable Charles DICKENS, Relator, v. COURT OF APPEALS FOR the SECOND SUPREME JUDICIAL DISTRICT OF TEXAS, Respondent.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 542

727 S.W.2d 542

Honorable Charles DICKENS, Relator, v. COURT OF APPEALS FOR the SECOND SUPREME JUDICIAL DISTRICT OF

TEXAS, Respondent.

No. 69490.

Court of Criminal Appeals of Texas,

En Banc.

March 25, 1987.

Tim Curry, Dist. Atty. and C. Chris Marshall, Asst. Dist. Atty., Fort Worth, for relator.

Richard Alley, Fort Worth, for respondent.

Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

CAMPBELL, Judge.

This is an original mandamus proceeding brought by the Judge of the 297th District Court in Tarrant County (relator), ¹ to contest the issuance, by the Court of Appeals for the Second Supreme Judicial District (respondent), of a writ of mandamus directing relator to allow discovery of a complainant's videotaped statement. Relator argues that the act of permitting discovery of evidence is a discretionary act of a trial judge reviewable only on appeal and, therefore, not the proper subject of a writ of mandamus. We agree and will grant relief.

I.

James Dean Reynolds is a defendant currently charged with aggravated sexual assault of a child. He is awaiting trial before the Judge of the 297th District Court. The defendant, through three defense attorneys, filed discovery motions seeking access to videotaped interviews of three complainant children which the State intends to use as evidence at trial. ² Judge Dickens held two hearings on the motions.

In the first hearing on November 2, 1984, Reynolds requested, inter alia, that Dr. Helge, a child psychologist, be allowed to view the videotape prior to trial and that a copy of the video tape, at Reynolds' expense, be made for use by his attorneys. Pursuant to Article 39.14, V.A.C.C.P., Judge Dickens denied both requests. Judge Dickens also rejected an oral request that Dr. Helge be excused from the "rule," see Article 36.03, V.A.C.C.P., and be permitted to view the tape when it was offered in front of the jury. However, Judge Dickens ordered the State to make arrangements for all three defense attorneys to view the tape. The defense attorneys subsequently viewed the tape on November 7, 1984.

In the second hearing on November 12, 1984, Dr. Helge testified that he had already viewed the videotape on May 9, 1984, and had made notes during the viewing. Dr. Helge testified that a second viewing of the videotape would be "helpful" and "beneficial." ³ At the conclusion of the hearing, Judge Dickens did not alter his earlier denial of Reynolds' motions.

After the November 2 hearing, Reynolds sought a writ of mandamus from the Second Court of Appeals. Reynolds v. Dickens, 685 S.W.2d 479 (Tex.App.--Ft. Worth 1985). The Court of Appeals conditionally granted the mandamus with the expectation "that Judge Dickens will vacate his order denying [Reynolds] the right to secure a copy of the videotape at [defendant's] expense and denying [Reynolds'] psychologist expert witness [the right] to view such videotape...." Id. at 486. Judge Dickens then filed an application for writ of mandamus with this Court seeking review of the issuance of mandamus by the Second Court of Appeals. ⁴

II.

Under the Texas Constitution, this Court has been granted broad power to issue writs of mandamus:

Subject to such regulations as may be prescribed by law, the Court of Criminal Appeals and the Judges thereof shall have the power to issue the writ of habeas corpus, and, in criminal law matters, the writs of mandamus, procedendo, prohibition, and certiorari. The Court and the Judges thereof shall have the power to issue such other writs as may be necessary to protect its jurisdiction or enforce its judgments.

Tex. Const., Art. V, § 5 (emphasis added).

Prior to amendment in 1977, this Court only had power to issue writs of mandamus or prohibition to enforce its jurisdiction. Ordunez v. Bean, 579 S.W.2d 911 (Tex.Cr.App.1979). Effective January 1, 1978, this Court acquired the additional power to issue writs of mandamus in cases "regarding criminal matters." Thomas v. Stevenson, 561 S.W.2d 845 (Tex.Cr.App.1978). The language of Article V, § 5, was further altered in an amendment effective January 1, 1981 by separating the sources of extraordinary writ power into two sentences. ⁵ As reflected in the final text quoted above, the first sentence of Art. V, § 5, supra, grants this Court broad mandamus power "in criminal law matters;" the second sentence grants this Court power to issue "such other writs as may be necessary to protect its jurisdiction or enforce its judgments." We have since held that these amendments conferred upon this Court general mandamus jurisdiction in criminal law matters "in addition to the previously existent mandamus and prohibition authority to enforce its own jurisdiction." State ex rel. Wade v. Mays, 689 S.W.2d 893 (Tex.Cr.App.1985).

Article 4.04, § 1, V.A.C.C.P., simply repeats the language of Article V, § 5, supra. Therefore, the legislature has conferred on this Court the same power to issue extraordinary writs as enumerated in Article V, § 5, supra. See Dally and Brockway, Changes in Appellate Review in Criminal Cases Following the 1980 Constitutional Amendment, 13 St. Mary's L.J. 211, 217 (1981).

In the instant case, the Second Court of Appeals issued a writ of mandamus ordering discovery in a pending felony prosecution. That decision clearly required an interpretation of criminal discovery law. Therefore, this case involves a "criminal law matter" that invokes the power of this Court to issue original writs of mandamus under Article V, § 5, supra.

Reynolds, citing Espinoza v. State, 669 S.W.2d 736 (Tex.Cr.App.1984), argues that this Court has held that review of mandamus actions of the courts of appeals lies in the Supreme Court of Texas. In Espinoza, supra, the defendant sought access to State records through the Open Records Act and filed an application for mandamus with the trial court. ⁶ The trial court denied the application, the defendant was convicted, the court of appeals affirmed, and the defendant sought review of the denial of mandamus in his petition for discretionary review. We denied relief because the defendant, by filing the mandamus as a mere motion in the course of a pending criminal case, did not properly present the mandamus to the trial court. However, in dicta, this Court stated: "Review of a decree or judgment in a mandamus action would be through the appeals process for civil cases." Id., at 738. In a footnote, we added: "To be distinguished are mandamus actions instituted in this Court under our original mandamus jurisdiction. A mandamus suit filed under Section 8 of the Open Records Act is not such a proceeding." Id., at n. 1 (emphasis in original).

In Espinoza, supra, we did not hold that all mandamus actions must be reviewed through the civil appeals process. We simply noted, in dicta, that a mandamus under the Open Records Act was a civil matter which does not invoke this Court's power under "criminal law matter" jurisdiction in Article V, § 5, supra.

The instant case does not involve a mandamus pursuant to the Open Records Act. The instant case involves a mandamus from a court of appeals ordering criminal discovery in a pending prosecution. We hold that this procedural posture invokes the original mandamus jurisdiction of this Court "in criminal law matters." Art. V, § 5, supra.

III.

The courts of appeals "shall have such other jurisdiction, original and appellate, as may be prescribed by law." Tex. Const. art. 5, § 6. The Legislature has provided that "[e]ach court of appeals may issue all writs of mandamus, agreeable to the principles of law regulating those writs, against a judge of a district or county court." V.T.C.A., Government Code § 22.221(b) (Pamphlet 1987) (emphasis added). Given the plain language of the statute, it would seem that courts of appeals have original jurisdiction to issue writs of mandamus against any judge of a district or county court, without any restriction upon the subject matter of the writ.

A.

Relator argues, however, that the statutory grant of mandamus jurisdiction to the courts of appeals is unconstitutional because the caption to the legislative bill fails to give adequate notice of its effect. See Ex parte Crisp, 661 S.W.2d 956 (Tex.Cr.App.1983). However, we need not decide that issue.

Regardless of the adequacy of the notice given by the caption of the bill granting courts of appeals mandamus jurisdiction, this Court "no longer has the power to declare an act of the legislature unconstitutional due to the insufficiency of its caption." Baggett v. State, 722 S.W.2d 700 (Tex.Cr.App.1987); see Tex. Const. art. III, § 35(c) ("A law, including a law enacted before the effective date of this subsection, may not be held void on the basis of an insufficient title."). Therefore, we need not address the adequacy of the title or caption.

B.

Relator also argues that the Legislature did not intend to extend mandamus jurisdiction to courts of appeals in criminal law matters. After tracing the legislative history of mandamus jurisdiction, relator concludes that the Legislature only granted the courts of appeals mandamus jurisdiction over civil law matters and not criminal law matters. We disagree.

Section 22.221(b), supra, was "enacted as part of the state's continuing statutory revision program...." § 1.001(a), supra. It was formerly V.A.C.S., art. 1824 (repealed). ⁷ Codification of Article 1824, supra, into the Government Code was accomplished without any substantive change in the law. See § 1.001(a), supra. Therefore, construction of § 22.221(b), supra, largely depends upon the meaning of Article 1824, supra.

To assure that no substantive changes were effected by the statutory revision program, the Code Construction Act provides that "[i]n construing a statute, whether or not the statute is considered ambiguous on its face, a court may consider[,] among other matters," the object of the statute, the circumstances surrounding its enactment, its...