Williаm Edward BEARD, Jr., Appellant, v. STATE of Texas, Appellee.
No. 11-97-00401-CR.
Court of Appeals of Texas, Eastland.
June 18, 2003.
Bill Hill, Dist. Atty. Criminal Dist. Attorney-Appellate Section, Dallas, for appellee.
Panel consists of: ARNOT, C.J., and WRIGHT, J., and DICKENSON, S.J.1
OPINION
PER CURIAM.
On June 11, 2003, the Court of Criminal Appeals issued an opinion stating that it had been furnished with a death certificate showing that William Edward Beard, Jr. had died on August 5, 1999. Beard v. State, 108 S.W.3d 304 (Tex.Cr.App. 2003)(not yet reported). Thе court then permanently abated the appeal and directed this court to withdraw our opinion in the case. Pursuant to Beard, our opinion and judgment dated November 4, 1999, are hereby withdrawn.
In re GRAND JURY PROCEEDINGS 198.GJ.20.
No. 04-02-00402-CV.
Court of Appeals of Texas, San Antonio.
June 18, 2003.
Rehearing Overruled July 16, 2003.
Opinion by: KAREN ANGELINI, Justice.
Harold Lloyd Shields1 petitioned the trial court to order the disclosure of grand jury proceedings pursuant to article
BACKGROUND
Shiеlds seeks the disclosure of state grand jury proceedings related to his indictment for aggravated sexual assault. Specifically, he hopes to use the grand jurors’ deposition testimony as evidence in his federal civil rights and malicious prosecution suit against Donnie Jeanne Coleman and Carol Twiss, the prosecutor and the investigator, respectively, who presented the case against Shields to the grand jury. Coleman, an assistant district attorney, and Twiss, an investigator with the Kerr County Sheriff‘s Office, allegedly failed to present exculpatory evidence to the grand jury.
The grand jury investigation arose from the report of K.S., a seven-year-old girl living in Kerr County, that two male relatives and two other men had repeatedly sexually assaulted her over a period of several years. K.S. described one of the other men as having the initials “M.B.,” owning a computer, living alone, driving a flatbed truck, and being physically capable of variоus sex acts. The investigation yielded strong evidence against K.S.‘s grandfather, an acquaintance of Shields. K.S. was presented with a photo lineup, and she selected Shields‘s photo as one of the other men. However, there was also
Coleman supervised Twiss‘s presentation of the evidence regarding Shields to the grand jury. The presentation was not recorded or transcribed. After hearing the presentation, the grand jury indicted Shields on three counts of aggravated sexual assault. Later, K.S. recanted and the State dismissed its case against Shields.
After the case against him was dismissed, Shields sued Coleman and Twiss in the United States District Court for the Western District of Texas alleging that their failure to present exculpatory evidence to the grand jury violated his civil rights and constituted malicious prosecution. As elements of his malicious prosecution claim, Shields sought to prove that the indictment was not supported by probable cause and the presence of actual malice.3 During discovery, Shields‘s attorneys subpoenaed several grand jurors in an attempt to take their videotaped depositions. In response, Coleman and Twiss moved to quash the subpoenas and moved for a protectivе order preventing Shields from contacting the grand jurors. The federal district court granted the motions.
After failing to get the federal district court‘s permission to depose the grand jurors,4 Shields filed a petition in the 198th Judicial District Court to request disclosure of the grand jury proceedings.5 Specifically, Shields‘s petition requеsted permission to depose several grand jurors regarding whether Coleman and Twiss had presented them with exculpatory evidence about Shields. Shields contended that he could show a “particularized need” for the deposition testimony as required by article
STANDARD OF REVIEW
A trial court‘s decision regarding the disclosure of grand jury proceedings is reviewed under an abuse of discretion standard. See Euresti v. Valdez, 769 S.W.2d 575, 577 (Tex.App.-Corpus Christi 1989, no writ). The test for an abuse of discrеtion is whether the trial court acted without reference to any guiding rules and principles; in other words, whether the trial court‘s action was arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). “The mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred.” Id. at 242.
THE DUTY TO PRESENT EXCULPATORY EVIDENCE TO THE GRAND JURY
Before examining whether Shields made a showing of a particularized need, we will first examine whether Texas law requires prosecutors to present exculpatory evidence to a grand jury. Initially, we note that the United States Supreme Court has squarely addressed the issue and has found that there is no duty to disclose exculpatory material to federal grand juries. See United States v. Williams, 504 U.S. 36, 51, 112 S.Ct. 1735, 118 L.Ed.2d 352 (1992). In Williams, the Supreme Court examined the historical functioning of the grand jury system and stated that “requiring the prosecutor to present exculpatory as well as inculpatory evidence would alter the grand jury‘s historical role, transforming it from an accusatory to an adjudicatory body.” Id. Thus, the Supreme Court has held that there is no duty on the part of the prosecutors to present exculpatory evidence to the grand jury. See id.; accord United States v. Gross, 41 F.Supp.2d 1096, 1097 (C.D.Cal.1999); United States v. McCollough, 855 F.Supp. 882, 886 (W.D.La.1994).
Among the state courts there are essentially three views. See Sharon N. Humble, Annotation, Duty of Prosecutor to Present Exculpatory Evidence to State Grand Jury, 49 A.L.R.5th 639, 649 (1997). Some state courts hold that prosecutors have a broad duty to present exculpatory evidence to grand juries. See, e.g., Cummiskey v. Superior Court, 3 Cal.4th 1018, 13 Cal.Rptr.2d 551, 839 P.2d 1059, 1068-69 (1992); Lay v. State, 110 Nev. 1189, 886 P.2d 448, 453 (1994). Others hold that prosecutors have no duty to present exculpatory evidence to grand juries. See, e.g., People v. Beu, 268 Ill.App.3d 93, 205 Ill.Dec. 811, 644 N.E.2d 27, 30 (1994); State v. Easter, 661 S.W.2d 644, 645 (Mo.Ct.App. 1983). The majority of the state courts that have addressed the issue have found that prosecutors have a limited duty to present exculpatory evidence to grand juries.6 See, e.g., State v. Hogan, 144 N.J. 216, 676 A.2d 533, 541 (1996); People v. Mitchell, 82 N.Y.2d 509, 605 N.Y.S.2d 655, 626 N.E.2d 630, 633 (1993). This limited duty generally requires disclosure if the exculpatory valuе of the evidence is substantial. See Hogan, 676 A.2d at 541.
Only two Texas courts have addressed the issue. One court noted, in dicta, that “[j]ustice, of course, would best be served by a prosecutor affirmatively presenting a grand jury with any information which could affect its decision to re-
CONCLUSION
We affirm the judgment of the trial court.
ALMA L. LÓPEZ, Chief Justice,
dissenting.
The Texas Constitution prohibits a person from being held to answer for a criminal offense punishable by imprisonment in a penitentiary “unless on indiсtment of a grand jury.”
The majority‘s opinion rejects the majority view among the states that prosecutors have a limited duty to presеnt exculpatory evidence to grand juries. Instead, the majority accepts the federal no duty rule without analyzing whether a defendant is entitled to greater protection under the Texas Constitution and Texas laws. See Bauder v. State, 921 S.W.2d 696, 699 (Tex.Crim.App.1996) (adopting more expansive conditions with regard to double jeopardy under statе law). The majority cites as support the global assertion by the Houston court in Matney that the State generally does not have a duty to present exculpatory evidence to a grand jury. See Matney v. State, 99 S.W.3d 626, 629 (Tex. App.-Houston [1st Dist.] 2002, no pet.).
In Matney, the appellant was charged with aggravated perjury after testifying that her husband was thе only person that could possibly have caused her to conceive one of her children. Id. at 627. Later, the appellant admitted to having had extramarital affairs with two men during the time the child was conceived. Id. The appellant identified one of the men as Ralph Gaitan, but she could not identify the other man. Id. at 627-28. The exculpatory evidence was a DNA paternity test that excluded Gaitan as the possible father. Id. at 629. Although the Houston court noted the general no duty rule, citing Williams for support, the basis of the court‘s holding was that the exculpatory evidence did not make the appellant‘s statement thаt her husband was the only possible biological father of her child true. Id. This holding does not exclude the possibility that the Houston court might adopt a limited duty to present exculpatory evidence in a case where the evidence would establish a defendant‘s innocence.
In my opinion, the better reasoned analysis with regard to a prosecutor‘s duty to present exculpatory evidence to a grand jury is contained in State v. Hogan, 144 N.J. 216, 676 A.2d 533 (1996). In that case, the court analyzed the three state
Although the grand jury is not the final adjudicator of guilt and innocence, the presence of the right to indictment in the State Constitution indicates that the grand jury was intended to be more than a rubber stamp of the prosecutor‘s office. Our State Constitution envisions a grand jury that protects persons whо are victims of personal animus, partisanship, or inappropriate zeal on the part of a prosecutor. In order to perform that vital protective function, the grand jury cannot be denied access to evidence that is credible, material, and so clearly exculpatory аs to induce a rational grand juror to conclude that the State has not made out a prima facie case against the accused. If evidence of that character is withheld from the grand jury, the prosecutor, in essence, presents a distorted version of the facts, and interferes with the grand jury‘s decision-making function.
Id. at 542-43 (citations omitted).
Thе reason for adopting a limited duty is best exemplified in this case where Shields was charged with aggravated sexual assault of a seven-year-old girl. See State v. Gaughran, 260 N.J.Super. 283, 615 A.2d 1293, 1296-96 (1992) (dismissing indictment in sexual assault case in which prosecutor failed to present exculpatory medical evidence to the grand jury). Although the indictment has been dismissed, the stigma of the charge and the doubts raised in the minds of those around him cannot be erased. As Justice Stevens stated in his dissenting opinion in Williams:
[W]hile in theory a trial provides the defendant with a full opportunity to contest and disprove the charges against him, in practice, the handing up of an indictment will often have a devastating personal and professional impact that a later dismissal or acquittal can never undo. Where the potential for abuse is so great, and the consequences of a mistaken indictment so serious, the ethical responsibilities of the prosecutor, and the obligation of the judiciаry to protect against even the appearance of unfairness, are correspondingly heightened.
United States v. Williams, 504 U.S. 36, 63, 112 S.Ct. 1735, 118 L.Ed.2d 352 (1992) (Stevens, J., dissenting) (quoting United States v. Serubo, 604 F.2d 807, 817 (3rd Cir.1979)).
In this dissent, I do not explore the scope of the limited duty that I would impose on prosecutors. I simply note that prosecutors should have a limited duty to present exculpatory evidence to a grand jury for several reasons, including: (1) a defendant‘s state constitutional right to a meaningful indictment; (2) a Texas prosecutor‘s statutory duty to see that justice is done; and (3) a Texas prosecutor‘s statutory obligation not to suppress facts. Because the majority holds to the contrary, I respectfully dissent.
UNION GAS CORP., Appellant, v. Jimmie B. GISLER, et al., Appellees.
No. 13-01-734-CV.
Court of Appeals of Texas, Corpus Christi-Edinburg.
Aug. 29, 2003.
Notes
The defendant may petition a court to order the disclosure of information otherwise made secret by this article or the disclosure of a recording or typewritten transcription under Articlе 20.012 as a matter preliminary to or in connection with a judicial proceeding. The court may order disclosure of the information, recording, or transcription on a showing by the defendant of a particularized need.
A petition for disclosure under Subsection (d) must be filed in the district court in which thе case is pending. The defendant must also file a copy of the petition with the attorney representing the state, the parties to the judicial proceeding, and any other persons required by the court to receive a copy of the petition. All persons receiving a petition under this subsection are entitled to appear before the court. The court shall provide interested parties with an opportunity to appear and present arguments for the continuation of or end to the requirement of secrecy.