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In re Charles

Court of Appeals of Texas, First District

June 27, 2019

IN RE GREGORY CHARLES, Relator

          Original Proceeding on Petition for Writ of Mandamus

          Panel consists of Chief Justice Radack and Justices Higley and Hightower.

          MEMORANDUM OPINION

          SHERRY RADACK, CHIEF JUSTICE

         In this original proceeding, relator, Gregory Charles, seeks relief from the trial court's order that requires him to answer discovery in violation of his Fifth Amendment right.[1]

         We conditionally grant mandamus relief.

         Background

         Relator was involved in a car accident that resulted in the death of Walter Golden, Sr. The real party in interest, Yolanda Golden Dailey, Individually and as Heir and/or Representative of the Estate of Walter Golden, Sr., sued relator for wrongful death and survival damages arising from the motor vehicle collision. While the civil litigation was pending, the State of Texas charged relator[2] with intoxication manslaughter.[3]

         In the civil litigation, the real party in interest sought discovery from relator related to the night of the collision. Two discovery questions are relevant in this mandamus proceeding. First, in interrogatory two, relator was asked to "Identify by name, address and phone number each person, business or location you were sold, served, provided or consumed any alcoholic beverages within 24 hours of the motor vehicle collision in question. Include in your answer when you were served, sold or provided such alcoholic beverages and what kind, type, and quantity of alcoholic beverage(s) did you consume." Relator objected, asserting his "Fifth Amendment privilege against self incrimination to the extent this interrogatory seeks to compel Defendant to provide evidence or testimony that Defendant reasonably fears would subject him to criminal responsibility."

         Second, in request for production number 18, relator was asked, "Please provide a copy of the billing records or other documents for any cellular telephone, mobile device, or other electronic device Defendant was using, or was available for Defendant's use, on the day of the incident forming the basis of this lawsuit, to include any placed or received cellular telephone calls, emails, text messages, or multimedia message using a mobile phone or other electronic device on the day of the incident from the basis of this lawsuit." Relator objected, asserting his "Fifth Amendment privilege against self incrimination to the extent this request seeks to compel Defendant to provide evidence or testimony that Defendant reasonably fears would subject him to criminal responsibility."

         The real party in interest filed a motion to compel on November 1, 2018, arguing that the trial court should compel the responses because "Defendant is making blanket assertions of the privilege against self-incrimination" and "[t]he underlying facts of this case show Defendant is attempting to evade answering questions that cannot possibl[y] have any tendency to incriminate but will prevent Plaintiffs from prosecuting their case." The real party in interest contended that she has a potential dram shop claim[4] against the bar that served relator alcohol and that the two-year statute of limitations runs on March 7, 2019. The real party in interest specifically referenced interrogatory two and asserted that "[t]he providing of the identity of these potential Defendants will not be a waiver of the Defendant's Fifth Amendment right of self-incrimination, since this interrogatory does not ask the amount or quantity of any alcohol he was served or which he consumed."

         Relator responded, arguing that interrogatory two "expressly seeks information related" to intoxication and an element of the criminal charges against him is that he was intoxicated. Relator further responded that request for production 18 would also violate his Fifth Amendment right.

         At the hearing on the motion to compel, relator's counsel argued that where relator was drinking and if he was drinking would certainly be privileged. The trial court stated, "I disagree with that. The defendant's presence in a public space over the 24 hours prior to the accident is not privileged." Relator's counsel argued that "it is still a link in the chain of evidence that is leading to a prosecution and-." The trial court ultimately issued an order, compelling relator to answer interrogatory 2 and request for production 18.

         Relator then brought this mandamus petition and an emergency motion to stay the trial court's discovery order. We granted a stay on January 15, 2019.

         Standard of Review ...


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