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In re Tibbe

Court of Appeals of Texas, Third District, Austin

December 31, 2013

In re Honorable Sherri Tibbe, Criminal District Attorney of Hays County, Texas


Before Justices Puryear, Rose, and Goodwin


Jeff Rose, Justice

Relator Sherri Tibbe, Hays County's Criminal District Attorney, filed a petition for writ of mandamus and request for temporary relief alleging that the trial court's order from the bench applying a Hays County Court at Law standing discovery order violates section 39.14 of the Texas Code of Criminal Procedure and should be vacated. We will conditionally grant the writ.

The standing discovery order of which Tibbe complains purports to apply to all criminal misdemeanor and juvenile cases set for trial in the Hays County Courts at Law and provides, in relevant part:

1. The State is Ordered to file with the Hays County Clerk a list of all witnesses the State intends to call in its case in chief (in both guilt and punishment phases) and furnish a copy of same to the Defense. Such list shall set forth the full name and address for each witness. Such list shall include the same information for any rebuttal witnesses the State·reasonably anticipates calling. The State shall file any and all subpoena returns with the Hays County Clerk after service is made, including place, date·and time of service, If service·is not made, ·the return shall state the dates of attempted service and reasons service was not made. Any subpoenas served electronically shall be in accordance with Texas Code of Criminal Procedure Art. 24.04.

Hays Cnty. Ct. at Law Discovery Order, p.1.[1]

In the underlying DWI prosecution at issue herein, the Hays County standing order was the basis for a verbal motion from defense counsel during trial to exclude the State's two testifying witnesses-the officer who arrested the defendant and another officer who performed an inventory of defendant's vehicle -after the State failed to furnish a list disclosing its witnesses to the defense at least fourteen days before trial.[2]

Tibbe contends that the standing order constitutes an abuse of the trial court's discretion because it requires the State to provide discovery that is not authorized by the Texas Code of Criminal Procedure article 39.14. To the extent that the order compels the State's identification of trial witnesses beyond the scope of article 39.14 of the code of criminal procedure and without a defendant's request, we agree.

A trial court has authority to order discovery under article 39.14, which provides a limited right of discovery to defendants in criminal cases. See Tex. Code Crim. Proc. art. 39.14; In re Stormer, No. WR-66865-01, 2007 Tex.Crim.App. Unpub. LEXIS 1154, at *2 (Tex. Crim. App. June 20, 2007) (not designated for publication); In re Tharp, No. 03-12-00400-CV, 2012 Tex.App. LEXIS 6698, at *2 (Tex. App.-Austin Aug. 9, 2012, orig. proceeding); see also 22nd, 207th, 274th, 421st, 428th, and 433rd (Tex.) Dist. Ct. Loc. R. 16 (Comal, Hays, and Caldwell Counties) (requiring pretrial motions in criminal cases to be filed in accordance with Code of Criminal Procedure). Nothing in article 39.14 requires disclosure of witnesses who are not experts. Rather, article 39.14 addresses production of evidence and disclosure of testifying experts:

(a) Upon motion of the defendant showing good cause therefor and upon notice to the other parties, except as provided by Article 39.15, the court in which an action is pending shall order the State before or during trial of a criminal action therein pending or on trial to produce and permit the inspection and copying or photographing by or on behalf of the defendant of any 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. The order shall specify the time, place and manner of making the inspection and taking the copies and photographs of any of the aforementioned documents or tangible evidence; provided, however, that the rights herein granted shall not extend to written communications between the State or any of its agents or representatives or employees. Nothing in this Act shall authorize the removal of such evidence from the possession of the State, and any inspection shall be in the presence of a representative of the State.
(b) On motion of a party and on notice to the other parties, the court in which an action is pending may order one or more of the other parties to disclose to the party making the motion the name and address of each person the other party may use at trial to present evidence under Rules 702, 703, and 705, Texas Rules of Evidence. The court shall specify in the order the time and manner in which the other party must make the disclosure to the moving party, but in specifying the time in which the other party shall make disclosure the court shall require the other party to make the disclosure not later than the 20th day before the date the trial begins.

Tex. Code Crim. Proc. art. 39.14 (emphases added).[3] Further, under its plain language, the disclosure provision of article 39.14(b) is triggered only by a defendant's motion requesting disclosure of the State's testifying experts and a trial court order. Osbourn v. State, 59 S.W.3d 809, 812-13 (Tex. App.-Austin 2001) (noting that State must give notice of those whom it intends to call as expert witnesses upon request by defendant and in accordance with trial court's discovery order), aff'd on other grounds, 92 S.W.3d 531 (2002); see also Williams v. State, No. 04-06-00797-CR, 2007 Tex.App. LEXIS 8622, at * 5-6 (Tex. App.-San Antonio Oct. 31, 2007, no pet.) (mem. op., not ...

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