State ex rel. Munk

• Decision Date: 10 November 2014
• Docket Number: No. 11–14–00268–CV,11–14–00268–CV
• Citation: 448 S.W.3d 687
• Parties: In re the State of Texas ex rel. Michael Munk
• Court: Texas Court of Appeals

448 S.W.3d 687

In re the State of Texas ex rel. Michael Munk

No. 11–14–00268–CV

Court of Appeals of Texas, Eastland.

Opinion filed November 10, 2014

Michael S. Munk, District Attorney, Dawson County, Lamesa, for Appellee.

David Martinez, Law Office of David Martinez, Lubbock, for Appellant.

Panel consists of: Wright, C.J., Willson, J., and Bailey, J.

OPINION

JOHN M. BAILEY, JUSTICE

Relator, the State of Texas, acting by and through the Gaines County District Attorney, Michael Munk, has filed a petition for writ of mandamus with this court alleging that Respondent, the Honorable Carter T. Schildknecht, Judge of the 106th District Court of Gaines County, Texas, has abused her discretion by ordering the State to conduct criminal history searches of all non-law enforcement witnesses in various state and federal databases and to provide the results of those searches to the defendant. The State also seeks a writ of prohibition preventing Respondent from ordering the State, absent a showing of good cause, to run and provide criminal histories of all witnesses in any future cases. Additionally, the State requested an emergency or temporary stay of the proceedings. We granted the State's requested emergency stay in a separate written order entered on October 13, 2014. For the reasons expressed herein, we conditionally grant the petition for writ of mandamus in part, and we deny the petition for writ of prohibition.

Background Facts

The order that is the subject of this original proceeding arises from an order entered in trial court cause numbers 14–4486 and 14–4487 styled State of Texas v. Desirae Monique Mata. Mata is charged with the offenses of capital murder and murder in the underlying proceedings. Respondent entered the challenged order during a pretrial hearing that occurred on October 2, 2014. Mata's attorney presented the following oral request to the trial court at the hearing:

I have received a witness list from the State, and I really need for them to provide us with copies of criminal records of numerous witnesses that are not law enforcement. Specifically one witness by the name of Angie Brown, because we need to get copies of criminal convictions, judgments and sentences certified.

She's a witness from out of state, and I don't have complete access to all her criminal history, but she does have a lengthy criminal history. And I don't want to get into a situation where I'm asking the Court for a continuance because during the time of trial, I find out that she used another name and I have another criminal conviction that I didn't know about.

Respondent granted this request by ordering that “[t]he State is to provide the criminal histories of non-law enforcement witnesses to the defense.” Respondent ordered that the criminal histories were to be produced prior to the next pretrial hearing that was set for October 16, 2014.

The State filed its petition for writ of mandamus and writ of prohibition on October 6, 2014. On October 7, 2014, we requested a response to the petition. Mata filed a response on October 10, 2014. On October 13, 2014, we issued our order granting an emergency stay. We also set the matter for oral argument on October 16, 2014. On the day prior to oral argument (October 15, 2014), Mata filed a motion to dismiss this proceeding on the ground of mootness. Mata's motion to dismiss remains pending before this court.

Mata's Motion to Dismiss

Mata contends that the State's petition for writ of mandamus is moot because defense counsel had received a letter from the prosecutor indicating that the criminal histories of approximately seven of the State's fifty-four non-law enforcement witnesses were in the process of being produced at the time Mata filed the motion to dismiss. We disagree with Mata's contention that the State's petition for extraordinary relief is now moot. A case becomes moot if the controversy no longer exists between the parties. See Williams v. Lara, 52 S.W.3d 171, 184 (Tex.2001). The controversy at issue in this proceeding continues to exist because Mata has not shown that she has withdrawn her discovery request for the criminal histories of all non-law enforcement witnesses and has not shown that Respondent has withdrawn her order requiring the State to obtain the criminal histories of all non-law enforcement witnesses and provide them to the defense. In this regard, Mata states in her motion to dismiss that “there are still other non-law enforcement Criminal histories that have not yet been provided.” Accordingly, we overrule Mata's motion to dismiss.

Mandamus Analysis

Mandamus is appropriate in a criminal proceeding when the relator establishes (1) “that he has no adequate remedy at law to redress the harm that he alleges will ensue” and (2) “that the act he seeks to compel or prohibit does not involve a discretionary or judicial decision.” Simon v. Levario, 306 S.W.3d 318, 320 (Tex.Crim.App.2009) (orig.proceeding); see State ex rel. Hill v. Court of Appeals for Fifth Dist., 34 S.W.3d 924, 927 (Tex.Crim.App.2001) (orig.proceeding). An oral order may be the subject of mandamus relief if the court's ruling is a clear, specific, and enforceable order that is adequately shown by the record. Tex. R. App. P. 52.3(k)(1)(A) ; see In re Bledsoe, 41 S.W.3d 807, 811 (Tex.App.—Fort Worth 2001, orig. proceeding). An appeal from a final judgment will not protect the State from having to produce improper discovery. See Dickens v. Court of Appeals for Second Supreme Judicial Dist. of Tex., 727 S.W.2d 542, 548 (Tex.Crim.App.1987) (orig.proceeding).

The State argues that the trial court exceeded its authority under the former version of Tex.Code Crim. Proc. art. 39.14¹ by ordering the State to conduct an independent investigation by searching the National Crime Information Center and the Texas Crime Information Center (NCIC/TCIC) databases for the criminal histories of non-law enforcement witnesses and providing the results of those searches to the defense.

There are two significant facts that we note at the outset of our analysis. First, this case involves the law of discovery as it existed prior to January 1, 2014, when the Michael Morton Act became effective and significantly changed discovery procedure. See Michael Morton Act, 83rd Leg., R.S., ch. 49, 2013 Tex. Gen. Laws ___ (codified as Crim. Proc. art. 39.14 ). In this regard, the changes made by the Michael Morton Act only apply to offenses committed after January 1, 2014. Id. The underlying offenses are alleged to have occurred prior to January 1, 2014. Accordingly, we express no opinion on the possible effect of the changes made by the Michael Morton Act on the discovery issue presented by this original proceeding.

The second significant fact affecting our analysis are two recent opinions issued by the Dallas Court of Appeals conditionally granting mandamus relief regarding similar discovery orders. In re Watkins, 367 S.W.3d 932 (Tex.App.—Dallas 2012, orig. proceeding) (Watkins I ), involved a standard discovery order requiring the State to obtain criminal histories from NCIC/TCIC records of the State's witnesses and to provide them to the defense. The court held in Watkins I that former Article 39.14 was “definite, unambiguous, and unquestionably [applied] to the indisputable facts of [the] case.” 367 S.W.3d at 933 (quoting Simon, 306 S.W.3d at 321 ). The court further held that the trial court had no discretion to disregard former Article 39.14. Id. The court concluded in Watkins I that the trial court's order circumvented the former version of Article 39.14 because the defendant was not required to file a motion and show good cause before being entitled to discovery.² Id.

In re Watkins, 369 S.W.3d 702 (Tex.App.—Dallas 2012, orig. proceeding) (Watkins II ), involved an order by the trial court requiring the State to conduct an independent investigation of criminal histories of law enforcement witnesses by initiating searches of the NCIC database and to provide the results of those searches to the trial court for inspection. 369 S.W.3d at 704. The court held in Watkins II that the trial court exceeded its authority under former Article 39.14 because there was (1) no oral or written request for the criminal history records, (2) no oral or written showing of good cause for those records, (3) no oral or written showing why those records are material to the defense, and (4) no oral or written showing that those records are in the State's possession. Id. at 707. As set forth below, the court's analysis is more fully developed in Watkins II

The discovery orders that were at issue in Watkins I and Watkins II are similar to the one at issue in this proceeding because the Respondent's order requires the State to obtain criminal histories of witnesses from the same databases and to provide them to the defense. We acknowledge that there are some factual differences between this proceeding and the facts in Watkins I and Watkins II Most notably, Mata presented Respondent with a request for production of the criminal history records. Accordingly, this factor in the court's analysis in Watkins I and Watkins II is inapplicable to the facts in this proceeding.³ As was the case in Watkins II, we direct our focus on the possession element.

After Respondent granted Mata's request, the prosecutor asked Respondent if the criminal histories must be produced whether or not they are currently in the State's possession. Respondent replied in the affirmative to the prosecutor's request for clarification. The court held in Watkins II that neither Brady nor former Article 39.14 imposes a duty upon the State to obtain information from the NCIC database that it has not already obtained. Id. at 706.

We agree with the Dallas Court of Appeals that the trial court does not have authority under former Article 39.14 to require the State to conduct criminal history searches of the NCIC/TCIC databases or to provide information to the defendant from these databases that it has not...