McDaniel v. State

• Decision Date: 18 August 2021
• Docket Number: 10-20-00091-CR
• Parties: BRANDON DUANE MCDANIEL JR., Appellant v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

BRANDON DUANE MCDANIEL JR., Appellant v. THE STATE OF TEXAS, Appellee

No. 10-20-00091-CR

Court of Appeals of Texas, Tenth District

August 18, 2021

Do not publish

From the 12th District Court Walker County, Texas Trial Court No 28524

Before Chief Justice Gray, Justice Johnson, and Visiting Justice Davis ^[2] (Chief Justice Gray concurring with a note) ^[*]

MEMORANDUM OPINION

MATT JOHNSON, JUSTICE

In three issues, appellant, Brandon Duane McDaniel Jr. complains that the trial court abused its discretion by: (1) sustaining the State's objection to his request for the psychiatric and mental-health records of Officer Joshua Warvel of the Huntsville Police Department by way of a timely-filed subpoena duces tecum; (2) not allowing him to cross-examine Officer Warvel about whether he suffers from post-traumatic stress disorder; and (3) sustaining the State's objection to his request for the Huntsville Police Department policy or procedural manual. Because we overrule all of appellant's issues on appeal, we affirm.

Background

Charging appellant with aggravated assault against a public servant the indictment alleged that appellant intentionally and knowingly threatened Officer Warvel with imminent bodily injury by shooting a firearm in Officer Warvel's direction while knowing that Officer Warvel was a public servant. Approximately a week prior to the guilt-innocence phase of trial, appellant filed a "Notice of Subpoena Duces Tecum" to compel the State to produce the following information:

1. All POLICE RECORDS dealing with Joshua Warvel, former Huntsville Officer . [sic] #262, including but not limited to his disciplinary reports, personnel files, certifications service records, medical history, psychiatric or mental health records and any and all arrest or other reports pertaining to Joshua Warvel during his time of employment with Huntsville Police Department.

2. A copy of the most recent and current edition of the Huntsville Police Department policy or procedural manual which outlines the protocol that officers are to adhere to when executing their duties.

The City of Huntsville and Sergeant Roy Moore of the Huntsville Police Department, neither of which were parties to this proceeding, objected to both requests for production. The trial court sustained both of the objections.

This matter proceeded to trial before a jury. At the conclusion of the evidence, the jury found appellant guilty of the charged offense. The trial court assessed punishment at forty years' incarceration in the Institutional Division of the Texas Department of Criminal Justice.

Thereafter, appellant filed a motion for new trial, which the trial court denied after a hearing. The trial court also certified appellant's right of appeal, and this appeal followed.

Appellant's Subpoena Duces Tecum

In his first and third issues, appellant complains about the trial court's adverse rulings regarding his requests that the State produce Officer Warvel's psychiatric and mental-health records and the Huntsville Police Department policy or procedural manual. Specifically, appellant asserts that the failure to produce this information constituted a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2D 215 (1963).^[1]

Standard of Review & Applicable Law

A defendant in a criminal case has no general right to pre-trial discovery of evidence in the State's possession. See 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."); see also Pena v. State, 353 S.W.3d 797, 809 n.10 (Tex. Crim. App. 2011). However, there exists a federal constitutional right to certain minimal discovery under Brady and its progeny. See United States v. Bagley, 473 U.S. 667, 675, 105 S.Ct. 3375, 3379-80, 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."); United States v. Agurs, 427 U.S. 97, 108-09, 96 S.Ct. 2392, 2399-400, 49 L.Ed.2d 342 (1976); Pena, 353 S.W.3d at 809. This federal constitutional right is violated only if: (1) the State failed to disclose evidence, regardless of the prosecution's good or bad faith; (2) the withheld evidence is favorable to the accused; and (3) the evidence is material-that is, there is a reasonable probability that had the evidence been disclosed, the outcome of the trial would have been different. Hampton v. State, 86 S.W.3d 603, 612 (Tex. Crim. App. 2002).

A "reasonable probability" is a probability sufficient to undermine confidence in the outcome of the trial. Ex parte Kimes, 872 S.W.2d 700, 702-03 (Tex. Crim. App. 1993) (citing United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985)). Moreover, "[f]avorable evidence includes exculpatory evidence and impeachment evidence." Ex parte Chaney, 563 S.W.3d 239, 266 (Tex. Crim. App. 2018) (citing Bagley, 473 U.S. at 676, 105 S.Ct. at 3380-81). "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, 766, 31 L.Ed.2d 104 (1972). "[A] subpoena duces tecum is not to be used as a discovery weapon, but as an aid to discovery based upon a showing of materiality and relevance." Ealoms v. State, 983 S.W.2d 853, 859 (Tex. App.-Waco 1998, pet. ref'd) (internal citations omitted); see Tex. Code Crim. Proc. Ann. art. 24.02 (authorizing the issuance of a subpoena duces tecum to direct a particular witness to produce in court writings and other things in his possession).

Upon a plausible showing that the subpoenaed documents are material and favorable to the defense, the documents must be provided to the defendant unless the documents are privileged or confidential. Pennsylvania v. Ritchie, 480 U.S. 39, 60-61, 107 S.Ct. 989, 1002-03, 94 L.Ed.2d 40 (1987). When a party seeks to compel the production of confidential or privileged documents, the trial court is required to conduct an in camera inspection of those documents prior to ordering their disclosure. See In re Moore, 615 S.W.3d 162, 169 (Tex. App.-Austin 2019, no pet.) (citations omitted); see also Ritchie, 480 U.S. at 60-61, 107 S.Ct. at 1002-03; United States v. Nixon, 418 U.S. 683, 713-14, 94 S.Ct. 3090, 3110, 41 L.Ed.2d 1039 (1974) (approving of the trial court's procedure of ordering "an in camera examination of the subpoenaed material" that the trial court considered to be "presumptively privileged"); Thomas v. State, 837 S.W.2d 106, 114 (Tex. Crim. App. 1992). However, an in camera inspection is not required unless the defendant establishes a basis for his claim that the documents contain material and favorable evidence. See Ritchie, 480 U.S. at 58 n.15, 107 S.Ct. at 1002; see also United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193 (1982) ("He must at least make some plausible showing of how their testimony would have been both material and favorable to his defense.").

Discussion

As stated above, the trial court sustained the objections to appellant's requests for production of Officer Warvel's psychiatric and mental-health records, as well as the Huntsville Police Department policy or procedural manual. And because appellant did not make a bill of exception or attempt to procure the complained-of evidence in another way, the record does not contain the complained-of evidence in any form.

In any event, appellant asserted at trial that he was entitled to Officer Warvel's record as a police officer, as well as his mental-health and psychiatric records, because Officer Warvel was the alleged victim in the case. On this record the trial court could reasonably conclude that the information requested by appellant in the subpoena-all of Officer Warvel's police records-was overbroad. See Tex. Gov't Code Ann. § 552.102(a) (excepting information in a personnel file which would constitute a clearly unwarranted invasion of personal privacy from public disclosure); Page v. State, 7 S.W.3d 202, 206-08 (Tex. App.-Fort Worth 1999, pet. ref'd) (concluding that the defendant did not make a plausible showing that evidence of alleged DWI task force quotas and an officer's arrest reports were material and favorable to his defense); see also Hughes v. State, No. 01-11-00282-CR, 2012 Tex.App. LEXIS 5658, at **6-8 (Tex. App.-Houston [1st Dist.] July 12, 2012, pet. ref'd) (mem. op., not designated for publication) (concluding that a subpoena that did not explain the materiality or relevance of the items requested was overbroad).

Additionally, regarding Officer Warvel's mental-health and psychiatric records, appellant asserted at trial that the subpoenaed documents were relevant to determine whether Officer Warvel was treated for post-traumatic stress disorder ("PTSD") and whether he was mistaken about being fired at because he allegedly suffers from PTSD. However, appellant indicated that he did not have any evidence that Officer Warvel was being treated for PTSD. Rather, appellant stated that he had "a very strong suspicion."

Further the testimony of Officer Warvel belies appellant's "very strong suspicion." Specifically, Officer Warvel recounted that he could hear a bullet whizz by him based on his experience,

in a very combatic [sic] area when I was deployed in Afghanistan, and then as well as in training environments, being in the

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