In re El Paso Cnty. Pub. Def.

IN RE: EL PASO COUNTY PUBLIC DEFENDER, Relator.

No. 08-19-00296-CR

Court of Appeals of Texas, Eighth District, El Paso

July 30, 2021

DO NOT PUBLISH

AN ORIGINAL PROCEEDING IN MANDAMUS

Before Rodriguez, C.J., Palafox, and Alley, JJ.

OPINION

JEFF ALLEY, JUSTICE

Challenging a discovery order, Relator Sarah Hernandez^[1] filed a petition for a writ of mandamus against the Honorable Alyssa Perez Judge of the 210th District Court of El Paso County, Texas. But the mandamus as originally filed has been derailed by two significant post-filing events. First, the challenged order was amended by the trial court to delete the most objectionable part--a global requirement that the defendant seek pre-approval from the trial court before issuing any subpoenas. What remained after the amended order was a more routine materiality/relevance question geared toward a particular set of documents germane to a specific witness. Specifically, Hernandez sought to subpoena from the City of El Paso, police academy lesson plans in a case where the State will present an expert traffic accident reconstructionist--the sought-after lesson plans were used to train that expert. That question in large measure turns on whether the lesson plans are "material" to the defense, and during the pendency of this mandamus proceeding the Texas Court of Criminal Appeals issued an opinion clarifying, if not significantly changing, our understanding of what is "material.

We ultimately conclude that Relator has not met the mandamus standard in her challenge to the remaining portion of the trial court's order. We are hamstrung by the absence of the lesson plans in our record, as well as the hearing transcript that would explain the proffered expert's methodology. Accordingly, we deny the mandamus, but do so without violence to any argument that Hernandez, if she so chooses, might advance under the new standard for materiality.

I. Background

Hernandez was indicted on two counts of racing on a highway causing serious bodily injury. The State designated El Paso Sheriff's Deputy Special Traffic Investigator Jose Melero as an expert witness in accident-reconstruction. The State disclosed in its notice of prospective witnesses that the law-enforcement officers:

[W]ill testify as to any facts known to them in the case and to the extent qualified, will testify as experts within their respective fields of knowledge and expertise. This includes expert testimony on accident reconstruction, crash scene analysis, vehicle speed analysis (including 90 degree momentum calculation), general law enforcement procedures and practices, and any other area in which they have specialized knowledge or expertise.

The trial court set a Daubert^[2] hearing for October 22, 2019. Five days prior to the hearing, Hernandez filed with the district clerk an application for a subpoena duces tecum which directed the records custodian for the El Paso Police Department Academy to appear and produce the lesson plans for Course No. 2070 (Accident Investigations) and Course No. 2071 (Accident Reconstruction) for the year 2015. Those two specific courses are listed on Officer Melero's Texas Commission on Law Enforcement ("TCOLE") Personal Status Report for course work that he completed.^[3] The subpoena application asserted that the records custodian was "believed to have material testimony or evidence to the defense in this action."

The City of El Paso moved to quash the subpoena and requested a protective order. After learning of the subpoena, the State filed its own motion to quash and request for protective order.^[4]The State objected generally that the subpoena sought information that was privileged and irrelevant, and that the subpoena was unduly burdensome, harassing, overbroad, and amounted to an improper fishing expedition. Specifically, the State argued in part that Hernandez was attempting to circumvent Article 39.14 of the Texas Code of Criminal Procedure and that Article 24.03 did not authorize issuance of the subpoena because "the defense has not shown how the information is material or favorable to its case so as to be entitled to the issuance of a subpoena in the first place." [Emphasis added]. The State's motion also sought a protective order governing future discovery because it believed Hernandez had engaged in "abuse of process" when utilizing her subpoena power that evinced "a clear preference for 'trial by ambush.'" The City's motion to quash argued that Relator had failed to comply with Article 24.02 which governs issuance of subpoenas. The City urged that "[w]hile § 24.02 does authorize the issuance of the subpoena duces tecum, [Hernandez] is still required to show materiality and good cause," before it could issue. [Emphasis added].

Officer Melero testified at the Daubert hearing, but that hearing transcript is not part of our record. Two days after the Daubert hearing, the trial court heard the motions to quash. Our record does contain the transcript of that October 24, 2019 hearing. At that hearing, the City had available approximately 600 pages of materials in the form of "textbooks" that were responsive to the subpoena requests. But the City objected to releasing the materials without any adequate basis being articulated by Hernandez. Rather, the City argued that the records were being sought merely as a means for defense counsel to prepare for cross-examination of the officer at trial, which it claims is not a purpose authorized by Article 39.14 of the Texas Code of Criminal Procedure. Counsel for the City suggested that the trial court could review the records in camera if necessary, to make a materiality determination.

At the hearing, the State adopted the arguments advanced by the City Attorney. It also argued that a defendant carries the burden to show the items that they are seeking are both material and favorable. Quoting the State's attorney: "But the cases make it plain that the burden is on the Defense to show materiality and favorableness." The State's attorney urged that "materiality" is defined "as something that would change the outcome of the case in their favor[.]" And the State's attorney argued that Hernandez could not meet that standard. Another thread of the State's argument below was that Hernandez should have pursued a motion to compel against the State, as opposed to subpoenaing a third party to produce a document she thinks the State should have turned over.

In response, Hernandez's counsel argued that the subpoena was authorized by her Sixth Amendment right to compulsory process and effective assistance of counsel, which Article 39.14 could not restrict. Counsel asserted that Officer Merelo intended to testify to a skid mark analysis and the course material would be material and relevant to that topic:

The purpose of the Daubert hearing was to decide whether or not he was going to testify as an expert. Whether or not his testimony is admissible at trial and how much weight the jury should give it requires that we be -- that we have some sort of basis to cross-examine him on the methods and the methodologies which he uses to arrive at his conclusions.

What we learned from the Daubert hearing is that he is going to be testifying solely as an expert with regard to skid mark analysis.

[. . .]

I'm not sure what there may be in there with respect to skid mark analysis, but it certainly is relevant. It's been put into issue by the State[.]

[. . .]

I'm entitled to review the materials which the expert relies on for his expertise, and they do not have to be admissible.

Hernandez's counsel also invited the trial court to review the material in camera.

At the end of the hearing, the trial court made an oral finding that there was a lack of sufficient showing of materiality, favorability, or good cause and orally granted the motions to quash. There is no indication from the reporter's record of the hearing that the trial court ever actually viewed the documents in making its ruling.

On October 30, 2019, the trial court signed a written order that quashed the subpoena and granted the State and City's respective protective orders. The written order expressly imposed the following conditions:

[T]he motion for protective order filed by the State should be, and the same is hereby, GRANTED, and that the Defendant shall be, and she is hereby, PROHIBITED from issuing and serving subpoenas or subpoenas duces tecum in this case for pre-trial hearings or otherwise without first filing an application for subpoena with the Court, with notice to the State, showing how the testimony and evidence would be material and favorable to the Defendant, and obtaining an order authorizing the issuance of the subpoena.

II. Mandamus Proceedings

On November 27, 2019, Hernandez filed her petition for a writ of mandamus. She identified four issues. The first issue globally complains that the order was an abuse of discretion. The next three issues focused on the "pre-clearance" feature of the trial court's order that required Hernandez to first come to the trial court before filing an application for a subpoena and demonstrate that the items sought are material and favorable. We stayed the proceedings below pending resolution of this appeal, but we later lifted the stay to allow the State to file a motion in the trial court to vacate the portion of the trial court's protective order imposing the subpoena preclearance requirement on Hernandez. Thereafter, the State filed the motion to vacate in the trial court which then issued an amended order removing the subpoena preclearance requirement.

A. The Remaining Protective Order

After the trial court amended the order to remove the preclearance requirement, the remaining portion of the order quashed the challenged subpoena and...