In re State ex rel. Skurka

• Decision Date: 13 June 2016
• Docket Number: NUMBER 13–16–00221–CR
• Citation: In re State ex rel. Skurka, 512 S.W.3d 444 (Tex. App. 2016)
• Parties: IN RE STATE of Texas EX REL. Mark SKURKA District Attorney for the 105th Judicial District
• Court: Texas Court of Appeals

512 S.W.3d 444

IN RE STATE of Texas EX REL. Mark SKURKA District Attorney for the 105th Judicial District

NUMBER 13–16–00221–CR

Court of Appeals of Texas, Corpus Christi-Edinburg.

Delivered and filed June 13, 2016.

Mark Skurka, Corpus Christi, TX, pro se.

Douglas K. Norman, Asst. District Attorney, Corpus Christi, TX, for Relator.

Jacqueline A. Del Llano Chapa, Travis W. Berry, Attorney at Law, Corpus Christi, TX, for Real Party in Interest.

Before Chief Justice Valdez and Justices Rodriguez and Garza

OPINION

Opinion by Justice Garza¹

The State of Texas, ex rel. Mark Skurka, the District Attorney for the 105th Judicial District Court of Nueces County, Texas, filed a petition for writ of mandamus contending that the trial court "clearly abused its discretion by ordering the State to disclose prior to trial which specific jail telephone recordings of the defendant it will present as evidence at trial."² We deny the petition for writ of mandamus.

I. BACKGROUND

Real party in interest Antonio Aguilera was indicted for aggravated assault as a habitual felony offender and assault family violence with a prior conviction. See TEX. PENAL CODE ANN. §§ 22.01, 22.02 (West, Westlaw through 2015 R.S.). During the course of the case, the State discovered and produced recordings of more than 1,000 telephone calls made by Aguilera while he was incarcerated.

On March 24, 2016, the case was set for docket call in preparation for trial; however, Aguilera's counsel requested a continuance of the trial date. At that hearing, Aguilera's counsel asserted that she had listened to approximately five hours of the recorded jail calls, and she was only half-way through the first of four compact discs containing the calls. Aguilera's counsel informed the trial court that she had approached the prosecutor for the State and inquired if the State intended to use the recorded jail calls at trial, but the prosecutor informed her that she was "not quite sure." The prosecutor asserted that she notified Aguilera's counsel that the recorded jail calls were available for retrieval on March 4, 2016, and the State's records showed that Aguilera's counsel picked up the compact discs containing the recordings on March 10, 2016.

On March 28, 2016, the trial court granted Aguilera's motion for continuance regarding the trial, and the parties further addressed the recorded jail calls. Aguilera's counsel requested the prosecutor to "pare down exactly which [jail phone calls] that she is going to think she may want to introduce into testimony." The trial court noted on the record that there "has to be some kind of way to work this," particularly with regard to appointed counsel, "because ... the county, the taxpayers, pays for every single second that [Aguilera's counsel] is going to be listening to these things."

At a hearing on April 14, 2016, the parties and trial court revisited the issue of the jail calls. Aguilera's counsel re-urged her request for the prosecutor to notify her as to which jail calls the State was planning to use during its case-in-chief. She estimated that the recorded jail calls constituted "about a month's worth of listening to 24–7." She argued that it would be beneficial to determine, prior to trial, whether any of the calls might be subject to objection. The prosecutor for the State opposed Aguilera's request and contended that forcing the State to designate which calls it intended to use at trial invaded its work product privilege. At the conclusion of the hearing, the trial court ordered the State to produce "any and all jail calls that [it plans] to use in the trial."

At a hearing on April 15, 2016, the trial court and counsel for both parties further discussed the issues and the trial court clarified its ruling as follows:

THE COURT: [A]t this time, what the Court is going to do is clarify for the Court of Appeals the ruling of the district court....

[T]he Defense's requested the State basically to turn over what phone calls, specifically, jail calls they plan—the State plans on using in their case in chief. At this time, to make sure that the record is clear, the Court is ordering the State to turn over an exhibit list and a witness list, and on that exhibit list, the Court is ordering the State to provide not just a blanket exhibit, but for not only the efficiency of the trial, but for the ability to proceed forward with judicial economy, the State needs to prepare an exhibit list, and that exhibit list needs to be trial ready, it needs to be a trial ready exhibit list which means that the State of Texas either has gotten an agreement from the Defense on something, or it needs to be something that is going to come in as evidence, which means that if the State provides to the Defense, Exhibit 5, for instance, that they plan on putting in, that Exhibit 5, in its entirety, is 500 jail phone calls, and in reality, they're only offering three out of that, and they've offered it as an exhibit altogether, and there's any objection to anything else on that exhibit, because it's not trial ready, it's not ready to go to the jury, then the Court would be of the opinion they would keep the whole exhibit out if there's any type of objections.

So the Court is making sure that the record is clear that the State is being ordered, and I understand they've mandamused me, but that the Court is ordering the State to come up with an exhibit list and a witness list, and that was to be turned over by 5:00 today. Now, I'm assuming that we'll see what the Court of Appeals does in regards to whether or not they're going to stay the trial....

PROSECUTOR: If I'm understanding you, Your Honor, then you're saying we will be limited to—am I correct in understanding we would be limited at trial to the exhibits that are on that list, if there are other jail calls later we decide we would like to present, we would not be able to present those at trial?

THE COURT: Yes, because I'm asking you for a trial ready exhibit list and a trial ready witness list. And what I'm trying to circumvent is that I don't want the State to say: Okay, great, here's Exhibit 5, and then, it's got 19 million phone calls on it and you aren't allowed to put in 19 million phone calls because there's an objection one way or the other. And so you have exhibit—you put that in as Exhibit 5, in its entirety. So, if one thing or two things or 18 million things are objected to, and they're not trial ready and they're not relevant, or they're not a statement against interests, or whatever it is, whatever reason that's gonna come in, then I think you're limited on that to what you've put in as your exhibit list.

PROSECUTOR: May I ask for just one clarification, Your Honor?

THE COURT: Sure.

PROSECUTOR: Specifically, with the jail calls. Then are you saying—are we treating each specific call then that's recorded as a separate incident there that we could—in other words, if he makes two calls a day, then each of those two calls would be a separate incident that we would be expected to list?

THE COURT: Exactly.

After further discussion, the trial court stated that it was ordering "an exhibit list of all of the jail calls in regards to this case." Based on further discussions in the record, the parties anticipated that the jail calls would be produced in one compact disc, and the individual calls that the State anticipated using would be designated according to the temporal location that they appeared on the disc.

This original proceeding ensued. By one issue, the State contends that the trial court clearly abused its discretion by ordering the State to disclose prior to trial which specific jail telephone recordings of the defendant it will present at trial. The State contends that: (1) mandamus is an appropriate remedy for the trial court's error; (2) the defendant has only a limited right to discovery which does not include the State's trial exhibits; (3) the State has no duty to create a document that does not currently exist; (4) requiring the State to provide notice regarding what evidence it intends to introduce at trial violates the attorney work product exception to discovery; and (5) the indictment, not a trial exhibit list, should provide the defendant with the State's theory of the case.

The Court requested and received a response to the petition for writ of mandamus from Aguilera. Aguilera contends that the trial court's ruling is a discretionary ruling and not a ministerial act, thus mandamus is not appropriate; the trial court's order did not require the production of attorney work product; and the trial court's order was a proper use of its discretion to promote judicial economy. By reply, the State argues that the order at issue is not "an ordinary discovery order" but is instead an "extraordinary extension of authority justifying mandamus relief."

II. STANDARD OF REVIEW

To be entitled to mandamus relief, the relator must show: (1) that it lacks an adequate remedy at law; and (2) that what it seeks to compel is a ministerial act. In re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex.Crim.App.2013) (orig.proceeding). If the relator fails to meet both of these requirements, then the petition for writ of mandamus should be denied. State ex rel. Young v. Sixth Jud. Dist. Ct. of Apps. at Texarkana, 236 S.W.3d 207, 210 (Tex.Crim.App.2007) (orig.proceeding). The parties do not dispute that the State lacks an appellate remedy for the order at issue in this case. See generally TEX.CODE CRIM. PROC. ANN. art. 44.01 (West, Westlaw through 2015 R.S.).

For mandamus relief, the act sought to be compelled must be a ministerial act that does not involve a discretionary or judicial decision. State ex rel. Young, 236 S.W.3d at 210. The ministerial-act requirement is satisfied if the relator can show a clear right to the relief sought. In re State ex rel. Weeks, 391 S.W.3d at 122. A clear right to relief is shown when the facts and circumstances dictate but one rational decision "under unequivocal, well-settled (i.e., from...