in Re the State of Texas
09-15-00193-CR
| Tex. App. | Nov 25, 2015Background
- In two related proceedings the State seeks mandamus to overturn a pre-trial discovery order requiring production of a confidential informant's recording and transcript to defense counsel for Cedrick Jerome Bass.
- Bass is charged in CR31427 with possession of cocaine (400+ grams) and in CR31353 with possession of marijuana (50 pounds or less but more than five pounds).
- The recording documents a CI drug transaction referenced in the probable cause affidavit used to obtain Bass's search warrant; the contraband was seized during the search.
- The State invoked Texas Rule of Evidence 508 to protect the informant's identity; Bass did not invoke any exception or Franks procedure at the hearing.
- Article 39.14 generally requires production of non-privileged items on timely request, but does not override privileges; a privilege determination and possible in-camera review are required before compelled disclosure.
- The intermediate appellate court conditionally grants mandamus relief, to the extent the trial court must vacate its order if it does not comport with this opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 39.14 overrides Rule 508 in requiring production | Bass | Bass argues 39.14 requires production notwithstanding 508 privilege | Mandamus granted; 39.14 does not compel production where privilege applies |
| Whether in-camera review was required before ordering disclosure | State | Court must consider exceptions to privilege via in-camera procedure | Requires in-camera analysis before disclosure; conditional mandamus relief issued |
| Whether the appeal provides an adequate remedy to challenge the discovery order | State | Relief by appeal is inadequate | Yes; mandamus proper because appeal is inadequate remedy |
| Whether the trial court abused its discretion by ordering production before evaluating privilege | State | Order was ministerial | Abuse of discretion; mandamus conditionally granted |
Key Cases Cited
- Ex parte Miles, 359 S.W.3d 647 (Tex. Crim. App. 2012) (evidentiary privileges do not extend to exculpatory material)
- Dickens v. Court of Appeals for Second Supreme Judicial Dist. of Texas, 727 S.W.2d 542 (Tex. Crim. App. 1987) (orig. proceeding; pretrial discovery relief may be inadequate remedy on appeal)
- State ex rel. Wade v. Stephens, 724 S.W.2d 141 (Tex. App.—Dallas 1987) (orig. proceeding; mandamus appropriate to correct abuse of discretion)