Thornton v. State

• Decision Date: 09 January 2001
• Docket Number: No. 06-99-00142-CR,06-99-00142-CR
• Citation: 37 S.W.3d 490
• Parties: (Tex.App.-Texarkana 2000) LARRY N. THORNTON, Appellant v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

Page 490

37 S.W.3d 490 (Tex.App.-Texarkana 2000)

LARRY N. THORNTON, Appellant v. THE STATE OF TEXAS, Appellee

No. 06-99-00142-CR

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

Submitted October 16, 2000.

Decided October 17, 2000.

Rehearing Overruled Jan. 9, 2001.

On Appeal from the 202nd Judicial District Court Bowie County, Texas Trial Court No. 95-F-541-202

Before Cornelius, C.J., Grant and Ross, JJ.

OPINION

William J. Cornelius, Chief Justice.

Larry Thornton was convicted by a jury of two counts of indecency with a child. The jury assessed punishment at twenty years' confinement, and the trial court ordered that the sentences run concurrently. Thornton was accused of touching the genitals of two girls aged thirteen and fourteen at a local swimming pool. Thornton does not challenge the sufficiency of the evidence. He contends the trial court erred by issuing a pretrial order requiring him to disclose the names of the witnesses he intended to call at trial.¹ He argues that this order violated his rights under the Due Process Clause of the United States Constitution, U.S. Const. amend. XIV, the due course of law provision of the Texas Constitution, Tex. Const. art. I, § 19, and Texas law.

We find these contentions to be improperly briefed. Thornton provides no argument or supporting authority for his contention that the trial court's order violated his right to due process or due course of law. We therefore do not consider his constitutional contentions.

We note, however, that the United States Supreme Court has found no due process violation in a Florida law requiring the defendant to disclose the names of witnesses he intends to call at trial to establish an alibi defense. Williams v. Florida, 399 U.S. 78, 81-82, 90 S.Ct. 1893, 26 L.Ed.2d 446, 450 (1970); see also Wardius v. Oregon, 412 U.S. 470, 474, 93 S.Ct. 2208, 37 L.Ed.2d 82, 87 (1973). In Williams, the court reasoned that Florida's law was designed to enhance the search for truth and was "hedged with reciprocal duties requiring state disclosure to the defendant." Williams v. Florida, 399 U.S. at 81-82; see also Wardius v. Oregon, 412 U.S. at 474. In subsequent cases, the court has expressed strong approval for expanded discovery in criminal cases. See Taylor v. Illinois, 484 U.S. 400, 411-12, 108 S.Ct. 646, 98 L.Ed.2d 798, 812 (1988); Wardius v. Oregon, 412 U.S. at 474. We note also that other jurisdictions give the State pretrial discovery rights to the defendant's witnesses and other material. See Eric D. Blumenson, Constitutional Limitations on Prosecutorial Discovery, 18 Harv. C.R.-C.L. L. Rev. 123 (1983); Robert P. Mosteller, Discovery Against the Defense: Tilting the Adversarial Balance, 74 Cal. L. Rev. 1567 (1986); Vitauts M. Gulbis, Annotation, Right of Prosecution to Discovery of Case-Related Notes, Statements, and Reports State Cases, 23 A.L.R.4th 799 (1983); W.C. Crais III, Annotation, Right of Prosecution to Pretrial Discovery, Inspection, and Disclosure, 96 A.L.R.2d 1224 (1964).

Thornton contends that the trial court's discovery order violated his rights under Texas law. We review a trial court's decision to order pretrial discovery under an abuse of discretion standard. See Kinnamon v. State, 791 S.W.2d 84, 91 (Tex. Crim. App. 1990), overruled on other grounds, Cook v. State, 884 S.W.2d 485 (Tex. Crim. App. 1994); Saldivar v. State, 980 S.W.2d 475, 496 (Tex. App.—Houston [14th Dist.] 1998, pet. ref'd). We determine whether the court acted without reference to any guiding rules or principles so that its actions were arbitrary and unreasonable. Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App. 1993); Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).

There is no Texas statute authorizing the trial court to grant the State pretrial discovery from the defendant. The trial court may order a pretrial hearing at which it can determine, among other things, discovery requirements. Tex. Code Crim. Proc. Ann. art. 28.01, § 1(8) (Vernon 1989). But Texas statutes provide only for the defendant's discovery from the State. For example, the trial court can in certain situations and under certain conditions, permit the defendant discovery of:

[A]ny designated documents, papers, written statement of the defendant, (except written statements of witnesses and except the work product of counsel in the case and their investigators and their notes or report), books, accounts, letters, photographs, objects or tangible things not privileged, which constitute or contain evidence material to any matter involved in the action and which are in the possession, custody or control of the State or any of its agencies.

Tex.Code Crim.Proc.Ann. art. 39.14 (Vernon 1979), amended by, Act of May 21, 1999, 76th Leg., R.S., ch. 578, § 1, 1999 Tex. Gen. Laws 3118. The trial court may also allow the defendant to depose witnesses in some situations. Tex. Code Crim. Proc. Ann. arts. 39.01, 39.02 (Vernon 1979).

Some courts in other jurisdictions have held that the trial court has inherent authority to order discovery from the defendant, while others have held that the Legislature must first authorize such discovery. Gulbis, supra, at § 4. One Texas court has held that the Texas Legislature intended Article 39.14 to be a comprehensive discovery statute limiting the content and scope of discovery orders. See State ex rel. Wade v. Stephens, 724 S.W.2d 141, 144 (Tex. App.—Dallas 1987, orig. proceeding), holding that the trial court had no authority to order the complainant to undergo a medical examination. Another Texas court has held that a trial court could properly order discovery beyond what Article 39.14 outlines, but it could not order the complainant to undergo a psychological examination. See State ex rel. Holmes v. Lanford, 764 S.W.2d 593, 594 (Tex. App.—Houston [14th Dist.] 1989, orig. proceeding).

There is at least some authority, then, for the proposition that Texas courts have inherent authority to order discovery beyond what Article 39.14 expressly provides. Texas courts have generally permitted the trial court to order the State to disclose its witnesses, though Article 39.14(a) does not specifically provide for such disclosures. See Hightower v. State, 629 S.W.2d 920, 925 (Tex. Crim App. [Panel Op.] 1981); Young v. State, 547 S.W.2d 23, 27 (Tex. Crim. App. 1977).

Though one commentator has opined that "[t]here is universal agreement that trial judges lack authority to compel the defense to provide the State" with its witness list, 41 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 22.81 (1995), the case law is notably silent on the matter. Neither party has cited and our research has not revealed any Texas case addressing whether a trial court may order discovery from the defendant.

In Demouchette v. State, 731 S.W.2d 75, 81 (Tex. Crim. App. 1986), the Texas Court of Criminal Appeals commented in dicta that the State has no right of discovery into the defendant's case. That comment was made in the context of determining whether the State could voir dire the jury on the law of parties when the evidence known to the State at the time showed that the accused acted alone. The court held that the State could anticipate within reason the evidence as it might develop at trial and qualify the jury on the law accordingly. However, the court's comment is not a statement about the trial court's authority to permit discovery from the defendant; rather, it is a reflection that the State, like the defendant, has no general right to such discovery. See Washington v. State, 856 S.W.2d 184, 187 (Tex. Crim. App. 1993); Kinnamon v. State, 791 S.W.2d at 91. In Washington, the Court of Criminal Appeals acknowledged its dicta from Demouchette, but commented that it had not previously been called on to address the extent of the State's right to discovery, if any. In that case, the trial court ordered the defendant to produce a tape recording his investigator made of a witness interview. The Court of Criminal Appeals held that the tape was protected work product, but chose not to address the broader issue of the State's right to discovery in criminal cases.

Nevertheless, the Legislature has acted recently with respect to the trial court's authority to order discovery of the defendant's witnesses. In 1999, the Legislature amended Article 39.14 to allow the trial court to grant either party discovery of the other party's expert witnesses.² See Tex. Code Crim. Proc. Ann. art. 39.14(b) (Vernon Supp. 2000). The bill analysis to Senate Bill 577 reveals that it was intended to establish a limited exception to the general rule that the State cannot obtain discovery of the witnesses the defendant intends to call at trial. Senate Comm. on Criminal Justice, Bill Analysis, Tex. S.B. 557, 76th Leg., R.S. (1999). Thus, the 1999 amendment to Article 39.14 reflects the Legislature's understanding that the trial court generally cannot order discovery of the defendant's witnesses and its intent to provide the State...