In re Moore

• Citation: 615 S.W.3d 162
• Decision Date: 11 July 2019
• Docket Number: NO. 03-19-00233-CV,03-19-00233-CV
• Parties: IN RE Renee MOORE, Austin Police Department Custodian of Records for the Austin Police Department; and the City of Austin
• Court: Court of Appeals of Texas

615 S.W.3d 162

IN RE Renee MOORE, Austin Police Department Custodian of Records for the Austin Police Department; and the City of Austin

NO. 03-19-00233-CV

Court of Appeals of Texas, Austin.

Filed: July 11, 2019

Christopher Coppola, for Relator.

Kellie Bailey, Bristol C. Myers, Austin, for Real party in interest Clark, VonTrey Jamal.

Jane Starnes, Bellaire, Bryan Goertz, for Real party in interest The State of Texas.

Before Chief Justice Rose, Justices Triana and Smith

OPINION

Gisela D. Triana, Justice

Relators Renee Moore, Austin Police Department Custodian of Records for the Austin Police Department (APD), and the City of Austin (the City) have filed a petition for writ of mandamus challenging the trial court's denial of the City's motion to quash a subpoena duces tecum that compels production of certain police records. We will conditionally grant mandamus relief.

BACKGROUND

The State of Texas indicted real party in interest VonTrey Jamal Clark, a former APD police officer, for the offense of capital murder. Counsel for Clark, in preparation for trial, sought to review the personnel files of five former and current APD officers who had investigated the alleged offense. The State served a subpoena duces tecum on the City, seeking production of the records requested by the defense.¹ The City filed a motion to quash the subpoena, arguing that the records contained confidential material that was not subject to disclosure. See Tex. Loc. Gov't Code § 143.089(g) ("A fire or police department may maintain a personnel file on a fire fighter or police officer employed by the department for the department's use, but the department may not release any information contained in the department file to any agency or person requesting information relating to a fire fighter or police officer."). However, the City agreed to "tender all confidential records to the Court to conduct an in camera inspection for Brady / Giglio material that may be contained in the confidential records."² Following a non-evidentiary hearing, the trial court denied the motion to quash, including the City's request that the court conduct an in camera inspection of the records. This mandamus proceeding followed.³

STANDARD OF REVIEW

We apply a two-pronged test for granting mandamus relief in criminal cases: "(1) whether the relator has an adequate remedy at law to address his complaint, and (2) whether what he seeks is a ministerial act, not involving discretion or judicial decision-making." In re State ex rel. Mau , 560 S.W.3d 640, 644 (Tex. Crim. App. 2018) ; see also Dickens v. Court of Appeals , 727 S.W.2d 542, 548 (Tex. Crim. App. 1987). A relator satisfies the first prong by showing "that a remedy at law, though it technically exists, ‘may nevertheless be so uncertain, tedious, burdensome, slow, inconvenient, inappropriate, or ineffective as to be deemed inadequate.’ " In re State ex rel. Weeks , 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (quoting Greenwell v. Court of Appeals for the Thirteenth Judicial Dist. , 159 S.W.3d 645, 648–49 (Tex. Crim. App. 2005) ). "A relator may satisfy the second prong by establishing that he has a clear right to the relief he seeks under law that is definite and unambiguous, and that ‘unquestionably applies to the indisputable facts of the case.’ " Mau , 560 S.W.3d at 644 (quoting In re State ex rel. Young v. Sixth Judicial Dist. Court of Appeals , 236 S.W. 3d 207, 210 (Tex. Crim. App. 2007) ).

ANALYSIS

Ministerial duty

The City contends that the trial court had a ministerial duty to conduct an in camera inspection of the records prior to ordering their disclosure. Under the circumstances in this case, we agree.

A defendant does not have a "general right to discovery" of all evidence in the State's possession. See United States v. Bagley , 473 U.S. 667, 675, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) ("The prosecutor is not required to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial."); Weatherford v. Bursey , 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977) ("There is no general constitutional right to discovery in a criminal case, and Brady did not create one."). However, under Brady and its progeny, the State's failure to disclose evidence "favorable to an accused violates due process if the evidence is material to the accused's guilt or punishment." Ex parte Chaney , 563 S.W.3d 239, 266 (Tex. Crim. App. 2018) (citing Brady v. Maryland , 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ). "It is irrelevant whether the evidence was suppressed inadvertently or in bad faith, and the defense need not request disclosure because the State's duty to disclose is an affirmative one." Id. (citing United States v. Agurs , 427 U.S. 97, 112–13, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) ). "For purposes of a Brady claim, ‘the State’ includes the prosecution, other lawyers and employees in the prosecutor's office, and members of law enforcement connected to the investigation and prosecution of the case." Id. (citing Ex parte Miles , 359 S.W.3d 647, 665 (Tex. Crim. App. 2012) ). "Favorable evidence includes exculpatory evidence and impeachment evidence." Id. (citing United States v. Bagley , 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) ). "Exculpatory evidence justifies, excuses, or clears a defendant from fault. Impeachment evidence disputes, disparages, denies, or contradicts other evidence." Id. (citing Harm v. State , 183 S.W.3d 403, 408 (Tex. Crim. App. 2006) ). Impeachment evidence includes information that tends to discredit the testimony of witnesses for the State. See Giglio v. United States , 405 U.S. 150, 154–55, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

Additionally, in Texas, article 39.14 of the Code of Criminal Procedure requires the State to disclose to the defense any documents and other materials "not otherwise privileged that constitute or contain evidence material to any matter involved in the action and that are in the possession, custody, or control of the state or any person under contract with the state." Tex. Code Crim. Proc. art. 39.14(a). "If only a portion of the applicable document, item, or information is subject to discovery under this article, the state is not required to produce or permit the inspection of the remaining portion that is not subject to discovery and may withhold or redact that portion." Id. art. 39.14(c). "The state shall inform the defendant that a portion of the document, item, or information has been withheld or redacted," and upon "request of the defendant, the court shall conduct a hearing to determine whether withholding or redaction is justified under this article or other law." Id. Moreover, even when the documents are "otherwise privileged" and thus not subject to disclosure under article 39.14(a), the State is required under article 39.14(h) to "disclose to the defendant any exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged." Id. art. 39.14(h).

Thus, under both Brady and article 39.14, the responsibility for disclosing evidence favorable to the defense rests with the State. However, in certain cases, the trial court also plays a critical role in the discovery process. Both the United States Supreme Court and the Court of Criminal Appeals have held that when the defense requests access to confidential or privileged information, the trial court should conduct an in camera inspection of the materials prior to ordering disclosure of the information. See Pennsylvania v. Ritchie , 480 U.S. 39, 60–61, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987) ; Thomas v. State , 837 S.W.2d 106, 113–14 (Tex. Crim. App. 1992).

In Ritchie , the defendant in a child-sexual-assault case served a subpoena on a child-protective-services agency, seeking access to records relating to current and prior allegations of abuse that had been made against the defendant.

480 U.S. at 43, 107 S.Ct. 989. The agency refused to comply with the subpoena, claiming that the records were privileged under Pennsylvania law. Id. Specifically, the relevant statute provided that all reports and other information obtained during an agency investigation must be kept confidential, subject to certain exceptions including disclosure pursuant to a court order. Id. at 43–44, 107 S.Ct. 989. The trial court refused to order the agency to disclose the file, the case proceeded to trial, and the defendant was convicted. Id. at 44–45, 107 S.Ct. 989.

On appeal, the defendant argued that the failure to disclose the contents of the file violated his constitutional rights. Id. at 45, 107 S.Ct. 989. The Pennsylvania Supreme Court agreed and concluded that the defendant, "through his lawyer, [was] entitled to review the entire file to search for any useful evidence." Id. at 46, 107 S.Ct. 989. According to the Pennsylvania court, the trial court's in camera examination of the file was insufficient; the defendant "was unlawfully denied the opportunity to have the records reviewed by ‘the eyes and the perspective of an advocate,’ who may see relevance in places that a neutral judge would not." Id.

The United States Supreme Court granted certiorari "in light of the substantial and conflicting interests" of the government and the defendant. Id. Although the Court agreed with the Pennsylvania court that the defendant was entitled to have the trial court review the agency file for possible Brady material, see id. at 57–58, 107 S.Ct. 989, the Court disagreed with the lower court's decision "to the extent that it allows defense counsel access to the [agency] file," id. at 61, 107 S.Ct. 989. The Court explained that "[t]o allow full disclosure to defense counsel in this type of case would sacrifice unnecessarily the Commonwealth's compelling interest in protecting...