IN RE DISTRICT ATTORNEY'S OFFICE OF THE 25TH JUDICIAL DISTRICT (STATE V. CHARLES MORGAN DITTMAN, SR.) (Dissenting)

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

WR-74,593-01
IN RE DISTRICT ATTORNEY'S OFFICE OF THE 25TH JUDICIAL DISTRICT
(STATE V. CHARLES MORGAN DITTMAN, SR.)

ON PETITION FOR A WRIT OF MANDAMUS FROM
CASE 09-1941-CR IN THE 274TH JUDICIAL DISTRICT COURT,
GUADALUPE COUNTY
Keller, P.J., filed a dissenting opinion.

This mandamus petition concerns the trial court's order that the State make a copy of a DVD in its possession for defense counsel in the underlying case. In our opinion in In re Cindy Stormer we addressed this very issue, saying:

The trial court may not order the State to copy documents and provide those copies to a defendant, but it may order the State to produce discoverable materials and allow the defendant to copy them under the supervision of the State. (1)

 

The legal issue has been settled by our Court, and the State has no adequate remedy at law. We ought to grant mandamus relief. The fact that the Court does not do so seems to me to be the result of two extraneous issues. First, since the State has offered to allow defense counsel to view the DVD, the Court may believe that the issue of whether the defense is entitled to a copy has been resolved. And if counsel is entitled to a copy, the Court may think that it doesn't matter much who has to make it. Second is the issue of the scope of Article 39.14. (2) The Court seems to believe that items not included in the statute are nevertheless subject to discovery. I disagree with both of these concepts.

Discovery is a contentious matter. It is true that who makes a copy of the DVD in this particular case seems insignificant. But if a trial judge can order the State to assume the trouble and expense of making the copy in this case, he can also order either party to make extensive copies of documents, photos, statements, and anything else. The Court may believe that such an order must be "reasonable," but the obvious problem with that position is that mandamus relief would not be available to the aggrieved party if the court entered an unreasonable order. That is, if ordering some copies is a matter of discretion, then ordering more copies may be error, but it is not a violation of a ministerial duty.

The second issue is the scope of Article 39.14. Whether that statute limits a trial court's discretion is an important issue. One court of appeals has addressed the question as follows:

This brings us to respondent's main contention that trial courts have "inherent authority" to order pretrial discovery in criminal cases. This position is inconsistent with the previously mentioned opinions (Hackathorn, Freeman and Pettigrew), holding that criminal defendants have no general discovery rights. While Texas courts may have once possessed inherent authority to order criminal discovery, we hold that Article 39.14 now defines and limits that authority. (3)

 

This Court's apparent belief that what is not prohibited is allowed is inconsistent with the history of discovery in Texas. Before the enactment of Article 39.14, this Court consistently held that criminal defendants were not entitled to pretrial discovery. (4) The Fifth Court of Appeals concluded its examination of the history of discovery in criminal cases with these words:

We hold that the Texas Legislature intended Article 39.14 to constitute a comprehensive pretrial discovery statute, and that criminal discovery orders must fall within the confines of that article's limited authorization. A corollary of this rule is that trial courts lack inherent authority to order pretrial discovery any greater than that authorized by Article 39.14. (5)

 

The DVD at issue is of an interview of a child witness in this case, in which Dittman is charged with continuous sexual assault. The State volunteered to allow defense counsel to view the DVD before trial, but the State is reluctant to have copies of the DVD in the hands of anyone else. Because Article 39.14 excepts written witness statements from its scope, it may actually prohibit a trial judge from ordering pretrial inspection of such a videotape. One court of appeals has said explicitly that the issue is unsettled, (6) and this Court has not addressed it. (7) We do not have to answer that particular question today, but it could well arise in a future case: If the trial court can force the State to go further than it intended when it volunteered the DVD for viewing, it seems likely that the next time the issue arises, the State will not make the same offer.

I respectfully dissent.

FILED: March 30, 2011

PUBLISH

1. No. WR-66865-01, 2007 WL 1783853, at 2 (Tex. Crim. App. June 20, 2007) (not designated for publication).

2. Tex. Code Crim. Proc. art. 39.14.

3. State ex rel. Wade v. Stephens, 724 S.W.2d 141, 144 (Tex. App. - Dallas, 1987).

4. Id.

5. Id. (footnote omitted).

6. In re State ex rel. Rosenthal, No. 14-02-00306-CV, 2002 WL 730786 (Tex. App.-Houston [14th Dist.] April 25, 2002) (not designated for publication).

7. See also Craig Jett and Lisa Tanner, Prosecuting and Defending Child Abuse Cases, State Bar of Texas 35th Annual Advanced Criminal Law Course, Dallas, July 20-23, 2009, Ch. 17.2. ("Obviously the defense should argue that 'taped' is not the same as 'written.' However Rule 615, Tex. R. Ev. includes an oral statement in electronic form in the definition of a written statement.").