Opinion
WR-91 936-03 WR-91 936--04 WR-91 936--05 WR-91 936--06
09-15-2021
IN RE THE STATE OF TEXAS EX REL. KIM OGG, Relator v. 228TH DISTRICT COURT
DO NOT PUBLISH
ON APPLICATIONS FOR WRITS OF MANDAMUS IN THE 228TH DISTRICT COURT FROM HARRIS COUNTY
Keller, P.J., filed a dissenting opinion joined by Yeary, J.; Hervey, J., filed a concurring opinion joined by Newell and Walker, J.J.; Newell, J., filed a concurring opinion joined by Hervey and Walker, J.J.
ORDER
PER CURIAM.
The Harris County District Attorney, in these mandamus applications, asks this Court to order the trial court to rescind its orders compelling the State to make discovery disclosures to the Real Parties in Interest. Before its filing in this Court, the State sought mandamus relief in the First Court of Appeals, as it is required to do, and the First Court denied relief. Padilla v. McDaniel, 122 S.W.3d 805 (Tex.Crim.App. 2003). This Court issued stays of the trial court's orders pending disposition of the mandamus applications.
The underlying cases are: Texas v. Armstrong, Appeal Nos. 01-20-00644-CR (trial no. 1680891), 01-20-00645-CR (trial no. 1684289), and 01-20-00646-CR (trial no. 1684291) (the -05 mandamus); Texas v. Reyna, Appeal Nos. 01-20-00647-CR (trial no. 1680886), 01-20-00648-CR (trial no. 1680887), 01-20-00649-CR (trial no. 1680888), and 01-20-00650-CR (trial no. 1680897) (the -06 mandamus); Texas v. Gonzales, Appeal No. 01-20-00609-CR (trial no. 1680894) (the -03 mandamus); and Texas v. Wood, Appeal Nos. 01-20-00612-CR (trial no. 1680890) and 01-20-00617-CR (trial no. 1680898) (the -04 mandamus).
We deny mandamus relief. See In re State ex rel. Weeks, 391 S.W.3d 117 (Tex. Crim. App. 2013); In re McCann, 422 S.W.3d 701 (Tex. Crim. App. 2013). The stays of the trial court's orders are lifted.
Hervey, J., filed a concurring opinion in which Richardson, Newell, and Walker, JJ., joined.
CONCURRING OPINION
Presiding Judge Keller might be correct that the default rule is that the State cannot be compelled to produce work product under Article 39.14(a). Tex. Code Crim. Proc. art. 39.14(a). But that is not the whole story. Article 39.14(h) specifically requires the State to disclose work product under certain circumstances. Id. art. 39.14(h) (applies notwithstanding any other provision of the statute). Article 39.14(h) not only codifies the Brady disclosure requirement that exculpatory and impeachment evidence favorable to the accused must be turned over, it also requires the disclosure of any "mitigating document, item, or information in the possession, custody, or control of the state that . . . would tend to reduce the punishment for the offense charged." Id.; see Ex parte Miles, 359 S.W.3d 647, 670 (Tex. Crim. App. 2012) (recognizing that police reports containing Brady evidence must be disclosed because Brady supersedes the provisions of Article 39.14).
With these comments, I agree with the Court that relief should denied.
Newell, J., filed a concurring opinion in which Hervey, Richardson and Walker, JJ., joined.
If it were clear that the reports that the State refuses to turn over are work product without any exculpatory, impeachment, or mitigating value, mandamus relief might be appropriate. But as Judge Hervey points out in her concurring opinion, this Court has already held that the State is required to disclose exculpatory and impeaching evidence as a matter of federal constitutional law. And under the text of Article 39.14 (h), the State has a duty to disclose any exculpatory, impeachment, or mitigating information regardless of whether it can be characterized as "work product." Further, it is unsettled whether the District Attorney's independent investigation, which lead to the charged crimes in the underlying cases, amounts to an "offense report." Because the State cannot demonstrate a clear right of relief, the Court rightly holds that mandamus relief is inappropriate.
In re McCann, 422 S.W.3d 701, 704 (Tex. Crim. App. 2013) (citing In re State ex rel. Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (" . . . a relator must show that the facts and circumstances of the case 'dictate but one rational decision under unequivocal, well-settled . . . and clearly controlling legal principles.'")).
J. Hervey Concurring Opinion at 2 (citing Ex parte Miles, 359 S.W.3d 647, 670 (Tex. Crim. App. 2012)).
Tex. Code Crim. Proc. art. 39.14(h) ("Notwithstanding any other provision of this article, the state shall 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.").
See McCann, 422 S.W.3d at 704 ("With respect to the requirement that the act sought is purely ministerial, the relator must have a 'clear right to the relief sought,' meaning that the merits of the relief sought are 'beyond dispute.').
This case started with a law enforcement raid on the residence at 7815 Harding Street that resulted in the death of the two residents. After it was determined that law enforcement relied upon false information provided by Detective Gerald Goines to support the no-knock warrant at the center of the narcotics raid, the Harris County District Attorney's Office ("Relator") undertook an independent investigation of the Houston Police Department Officers involved. Accordingly, the District Attorney's Office, itself, was the primary investigative agency. That investigation led to assorted charges of misapplication of fiduciary property, tampering with governmental records, and theft by public servant against the real-parties-in-interest. They, in turn, filed identical discovery requests for the reports and maps generated pursuant to the Relator's investigation.
In response, Relator refused to turn over the requested documents claiming that the requested information amounted to "work product," which is statutorily exempted from disclosure. The trial court ordered the disclosure of the information after determining that the requested information amounted to "offense reports," which Realtor is statutorily required to disclose. These mandamus proceedings followed.
See id. (". . . the state shall produce and permit the inspection and the electronic duplication, copying, and photographing, by or on behalf of the defendant, of any offense reports . . .").
As the party seeking mandamus relief, Relator must establish that such relief is warranted. Though everyone seems to agree that Relator has no other adequate remedy aside from mandamus, Relator must still establish a clear right of relief. I acknowledge that we have recognized that reviewing courts can address an application of a legal issue to a novel factual scenario in a mandamus proceeding. But Relator must still establish that law surrounding that novel scenario is so clear that facts and circumstances dictate but one rational decision under well-settled (i.e., from existing statutory, constitutional, or case law sources), and clearly controlling legal principles. Further, as with any appeal, the burden is on the party bringing the mandamus action to ensure there is an adequate record upon which to resolve the issues. The State represented to the trial court, and represents to this Court, that the information it is refusing to turn over amounts to "work product." However, this conclusion is in dispute and the record does not contain the documents at issue, under seal or otherwise. Without them, I do not believe the Court can say that there is one rational decision under clearly established law. There is no way to determine whether the reports are "work product" or "offense reports" under the statute. Moreover, as Judge Hervey points out in her concurrence, exculpatory, impeachment, and mitigating evidence must be disclosed even if it constitutes "work product" under the statute Relator relies upon. This is because the work-product privilege is not absolute, and the duty to reveal exculpatory evidence as dictated by Brady overrides any privilege under the work-product doctrine.
Weeks, 391 S.W.3d at 122 ("To be entitled to mandamus relief, the relator must show two things: (1) that he has no adequate remedy at law, and (2) that what he seeks to compel is a ministerial act.").
See id. ("The ministerial-act requirement is satisfied if the relator can show a clear right to the relief sought.").
Id. ("Although we have sometimes suggested that a legal issue's status as one of first impression meant that the law was not well-settled, we have since clarified that an issue of first impression can sometimes qualify for mandamus relief.").
In re Medina, 475 S.W.3d 291, 298 (Tex. Crim. App. 2015) (citing In re Bonilla, 424 S.W.3d 528, 533 (Tex. Crim. App. 2014) ("The ministerial-act requirement is satisfied if the relator can show a clear right to the relief sought because the facts and circumstances dictate but one rational decision under unequivocal, well-settled, and clearly controlling legal principles.")).
See, e.g., London v. State, 490 S.W.3d 503, 508 (Tex. Crim. App. 2016) (noting that "the appealing party carries the burden to ensure that the record on appeal is sufficient to resolve the issues presented" and that "the failure to provide a sufficient appellate record precludes appellate review of a claim."); see also Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (noting that relators seeking mandamus relief carry the burden to provide a sufficient record to establish a right to mandamus relief).
Miles, 359 S.W.3d at 670.
But even if we view the record in the light most favorable to Relator's claims, we would still have to decide the legal issue the trial court highlighted, namely what constitutes an "offense report" under Article 39.14. Prior to the passage of the Michael Morton Act, Article 39.14 did not require disclosure of "offense reports." Consequently, this Court has never had occasion to interpret this new addition to the statute and clarify what constitutes an offense report. It may very well be that at some point in the future, this Court will determine that the types of reports at issue in this case do not constitute offense reports and only constitute "work product." But at this juncture we cannot say that the existent law, statutory and precedential, mandates one rational conclusion that the reports in this case are only "work product" and not "offense reports." Given that, Relator has not established a clear right to relief.
See Acts 2013, 83rd Leg., ch. 49 (S.B. 1611), § 2, eff. Jan. 1, 2014.
Indeed, the "work product" doctrine is designed to protect the attorney. The purpose of the doctrine is to stimulate the production of information and reward an attorney's creative efforts. Under Texas civil rules, material that reflects the attorney's personal thought processes is "core work product" and receives absolute protection, while other materials, such as documents, reports, or memoranda compiled by the attorney or his agents and communications made in anticipation of litigation are "other work product" and receive only qualified protection. Descriptions of potential witnesses and statements that would reveal whether the party had spoken to potential witnesses are not work product and are discoverable. Facts that are divulged by or exist independent of the attorney or his agents are not protected, but statements or documents that set out their thoughts concerning the significance of these facts or the strategic conclusions that the attorney or his agents draw from them may well be protected.
Pope v. State, 207 S.W.3d 352, 357 (Tex. Crim. App. 2006) ("The attorney work-product doctrine, while not a true evidentiary privilege, belongs to and protects the attorney."); see also United States v. Nobles, 422 U.S. 225 238, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975) (noting "[a]t its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which [the attorney] can analyze and prepare his client's case").
Pope, 207 S.W.3d at 357-58 ("[The work-product doctrine's] purpose is to stimulate the production of information for trials, and it rewards an attorney's creative efforts by giving his work product a qualified privilege from being shared with others.").
Id. at 358.
Id. (citing City of Denison v. Grisham, 716 S.W.2d 121, 123-24 (Tex. App.-Dallas 1986, orig. proceeding)).
Id. at 358-59.
Relator's description of the materials withheld do not clearly fall within the recognized parameters of "work product." They do not appear to be focused upon the thoughts of the State's attorney relating the significance of particular facts. Instead, they appear to be uncovered facts that exist independent of the attorney or his agents. This is one reason Relator argues that the reports at issue are not discoverable, because the evidence contained within them exists independently of the reports themselves. In addition, the State itself has conceded that "the requested documents would be discoverable if they had been created by the police department." This further suggests that the information within the documents exists independent of the thought processes of the lawyers and centers more on the discrete facts underlying the case.
Writ - 03 Petition at 6.
See Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 554 n.8 (Tex. 1990, orig. proceeding) (noting that the attorney work product privilege "protects only the mental impressions, opinions, and conclusions of the lawyer and not the facts.) (emphasis added).
Further, without being able to evaluate the reports at issue, it is impossible for this Court to determine whether they contain exculpatory, impeachment, or mitigating information. As Judge Hervey notes in her concurring opinion, under the express terms of the statute, the work product privilege gives way to a prosecutorial duty to disclose any exculpatory, impeachment, or mitigating evidence. Moreover, we have already held that the federal due process requirement that prosecutors turn over exculpatory or impeachment evidence also trumps any work-product privilege. The State represents that the reports at issue do not contain such evidence, but the defense understandably disagrees. Because the character of the evidence is at least in dispute, we cannot say there is one clear rational decision regarding the disclosure of the reports. Consequently, mandamus relief is inappropriate.
J. Hervey Concurring Opinion at 2 (citing Tex. Code Crim. Proc. art. 39.14(h)).
Miles, 359 S.W.3d at 670.
See Kopeski v. Martin, 629 S.W.2d 743, 745 (Tex. Crim. App. 1982) (stating the principle of mandamus law that "the writ must not depend on the determination of a doubtful question of fact.").
Finally, I would also add that the State's argument that the information contained in the disputed evidence is available through other sources confuses the issue of error with the issue of harm. It may very well be that at some later date this Court will determine on direct appeal that the State's failure to disclose evidence similar to the evidence at issue here was harmless because other similar evidence was disclosed. But on mandamus, we are only concerned with whether the evidence at issue must be disclosed, not whether the failure to disclose it harmed the real parties in interest. I agree with the denial of mandamus relief because I do not believe Relator has established a clear right to that relief regardless of whether the failure to disclose the evidence would be determined to be harmless on direct appeal. That is why I agree with the Court that denial of mandamus relief is appropriate.
With these thoughts, I join the Court's order.
Keller, P.J., filed a dissenting opinion in which Yeary, J., joined.
The State seeks mandamus relief from a trial court's order compelling discovery of reports, maps, and power points made by investigators for the district attorney's office. I would grant relief because the discovery statute unambiguously exempts this material from discovery.
This case involves the prosecution of four Houston police officers. The defense sought discovery, including offense reports. The trial court ordered the State to turn over reports, maps, and power points made by investigators for the district attorney's office. The trial court's theory was that the prosecutor's office was the investigating entity for the offenses at issue and, therefore, any reports made were "offense reports" subject to discovery:
The Honorable Leslie Yates presided over the hearings on discovery. The elected judge, the Honorable Frank Aguilar, later orally adopted Judge Yates's ruling.
I don't think that it's fair to say that I should strictly construe [the discovery statute]. In fact, I think that the intent of the code would provide for a broad interpretation to be consistent with the intent of the Legislature. ...
I think that 39.14 contemplated that there were two separate things. There was an offense report by an agency and then separate investigation or work product by the prosecutor. Where the prosecutor's office has taken on the role of the agency that's investigating and charging the case, I think your investigator's report does become the offense report in this case; and other than perhaps notes from the attorneys or notes from the investigators, I am ordering that it be turned over.
The State sought mandamus in the court of appeals, and that court denied relief.
See In re State ex rel. Ogg, No. 01-20-00609-CR, 2021 WL 1679358 (Tex. App.-Houston [1st Dist.] April 29, 2021) (not designated for publication); In re State ex rel. Ogg, Nos. 01-20-00612-CR & 01-20-00617-CR, 2021 WL 1679363 (Tex. App.-Houston [1st Dist.] April 29, 2021) (not designated for publication); In re State ex rel. Ogg, Nos. 01-20-00644-CR, 01-20-00645-CR, & 01-20-00646-CR, 2021 WL 1679362 (Tex. App.-Houston [1st Dist.] April 29, 2021) (not designated for publication), In re State ex rel. Ogg, Nos. 01-20-00647-CR, 01-20-00648-CR, 01-20-00649-CR, & 01-20-00650-CR, 2021 WL 1679547 (Tex. App.-Houston [1st Dist.] April 29, 2021) (not designated for publication).
To obtain mandamus relief, a party must show that (1) it lacks an adequate remedy at law, and (2) what it seeks to compel is ministerial, involving no discretion. Because the State has no right to an interlocutory appeal of a trial court's order compelling discovery, it lacks an adequate remedy at law.
In re State ex rel. Best, 616 S.W.3d 594, 599 (Tex. Crim. App. 2021).
Id. at 600.
The remaining question is the existence of a ministerial duty.
An act is ministerial, and therefore subject to mandamus, when the governing law is of such absolute clarity and certainty that nothing is left to the court's discretion, i.e., when the law upon which relator relies is definite, unambiguous, and unquestionably applies to the indisputable facts of the case.
Powell v. Hocker, 516 S.W.3d 488, 495 (Tex. Crim. App. 2017) (internal quotation marks omitted).
Even an issue of first impression can give rise to a ministerial duty if a statute is unambiguous on the matter.
In re Meza, 611 S.W.3d 383, 389 (Tex. Crim. App. 2020).
The discovery statute provides that the defense has a right to inspect and make copies of:
any offense reports, any designated documents, papers, written or recorded statements of the defendant or a witness, including witness statements of law enforcement officers but not including the work product of counsel for the state in the case and their investigators and their notes or report. . .
Tex. Code Crim. Proc. art. 39.14(a) (emphasis added).
Under this provision, the work product of the investigators for counsel for the State is exempt from discovery, including any notes or reports that they may have prepared. The legislature could not have been more clear. But if that were not enough, in the same statute, the Legislature again expressed the breadth of the State's exemptions from discovery:
The rights granted to the defendant under this article do not extend to written communications between the state and an agent, representative, or employee of the state.
Id.
The materials that are the subject of this dispute include not only the investigators' reports, but mapping and power points. All of this material falls unambiguously within the exemption in Article 39.14(a). The trial court's rationale for nevertheless requiring discovery is that the State, as opposed to a police department, was the investigating agency in this case. Even assuming that to be so, the explicit statutory exemption for work product of a prosecutor's investigators does not provide an exception for such a situation. The trial court's conclusion that the State loses the work-product privilege if it investigates a case has no basis in the law. The trial court had a ministerial duty to deny the request for these materials, and the court of appeals had a ministerial duty to order the trial court to rescind its order compelling their disclosure.
The concurring opinion suggests that, because Article 39.14(h) requires the State to disclose Brady evidence, mandamus relief is not available here because the reports, mapping, and power points could include Brady evidence. There is no allegation in this case that they do, but more importantly, if that were the law, mandamus relief would never be available when the State is ordered to disclose its work product. This case is no different, in regard to Article 39.14(h), than a case investigated by the police. Of course the State must disclose Brady evidence. But if a trial court errs in ordering certain material disclosed, and the State is otherwise entitled to mandamus relief, the mere existence of Article 39.14(h) does not immunize the order from mandamus review.
I would grant relief. Because the Court does not, I respectfully dissent.