THE STATE OF TEXAS v. JEREMY JAMES BALKE--Appeal from County Court at Law of San Patricio County

   NUMBER 13-05-005-CR

   COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

THE STATE OF TEXAS, Appellant,

v.

JEREMY JAMES BALKE, Appellee.

On appeal from the County Court at Law

of San Patricio County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Garza

  Memorandum Opinion by Justice Garza

The State of Texas appeals from the trial court's order suppressing evidence of intoxilyzer results in its driving while intoxicated (DWI) case against Jeremy James Balke. By one issue, the State claims that the trial court erred in suppressing all evidence pertaining to appellee=s intoxilyzer results due to the State=s failure to comply with a discovery order. We agree. Therefore, the trial court=s suppression order is reversed, and the case is remanded to the trial court for proceedings consistent with this opinion.

I. Jurisdiction

We have jurisdiction under article 44.01 (a) (5) of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (Vernon Supp. 2003). The State may appeal a court order granting a motion to suppress evidence if jeopardy has not attached in the case and if the prosecuting attorney certifies to the trial court that the appeal is not taken for the purpose of delay and that the evidence is of substantial importance in the case. Id. In the present case, the trial court granted appellee=s motion to suppress evidence, jeopardy has not attached, and the State made the appropriate certification.

II. Suppression of Intoxilyzer Results

The issue before us is whether the trial court abused its discretion in imposing the severe sanction of exclusion with respect to appellee=s intoxilyzer results. State v. Wright, 830 S.W.2d 309, 313 (Tex. App.BTyler 1992, no pet.).

On June 7, 2004, defense counsel filed a motion for discovery, requesting production of specified categories of evidence. The trial court granted the motion in part and denied the motion in part on September 27, 2004. The order did not specify a date for the State=s production of the evidence, and the motion did not request one.

Article 39.14(a) of the Texas Code of Criminal Procedure requires that the discovery order specify the time, place, and manner of making the inspection and taking the copies of any of the requested documents or tangible evidence, and also requires that any inspection shall be in the presence of a representative of the State. Tex. Code Crim. Proc. Ann. art. 39.14(a) (Vernon 2003). Nonetheless, a trial court does not err in failing to specify in the discovery order the time, place and manner to produce evidence when the defendant does not ask it to do so. Kinnamon v. State, 791 S.W.2d 84, 91-92 (Tex. Crim. App. 1990), overruled on other grounds, Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App. 1994). When no specific time, place or manner of discovery of the requested materials is specified by the court=s order, production of such materials prior to trial does not violate the discovery order. State v. LaRue, 108 S.W.3d 431, 435 (Tex. App.BBeaumont 2003), aff'd, 152 S.W.3d 95 (Tex. Crim. App. 2004); Murray v. State, 24 S.W.3d 881, 893 (Tex. App.BWaco 2000, pet. ref=d) (holding that there was no violation of court=s discovery order where no deadlines were imposed by trial court).

In the present case, the record reflects that the suppression hearing leading to the exclusion of the intoxilyzer results was held on April 25, 2005. The record further reflects that at the time of the suppression hearing a trial date had not yet been set. A trial date not set until the day after the hearing, at which time trial was scheduled for June 2, 2005. At the suppression hearing, the trial court concluded that the State failed to comply with the discovery order because the State had not produced the requested documents during the six month period between the date the court entered the order granting discovery and the date of the suppression hearing. The State explained that it planned to produce the documents Aconsidering when our trial date would be.@ The court did not conclude that the State=s conduct in failing to comply with the discovery order was in bad faith or willful, nor does the record reflect a willful violation of the order. See Hollowell v. State, 571 S.W.2d 179, 180 (Tex. Crim. App. 1978) (stating that evidence willfully withheld from disclosure under a discovery order should be excluded from evidence); LaRue, 108 S.W.3d at 434 (defining a willful act as one that is "done voluntarily and intentionally, with the specific intent to disobey the law); Osbourn v. State, 59 S.W.3d 809, 816 (Tex. App.BAustin 2001), aff=d, 92 S.W.3d 531 (Tex. Crim. App. 2002) (stating that evidence should not be excluded absent evidence the State acted in bad faith in failing to disclose the evidence or willfully failed to respond to the trial court=s order under art. 39.14(b)); Saldivar v. State, 980 S.W.2d 475, 497 (Tex. App.BHouston [14th Dist.] 1998, pet. ref'd). The extreme sanction of exclusion should not be imposed absent bad faith or willfulness on the part of the State. Pena v. State, 864 S.W.2d 147, 149 (Tex. App.BWaco 1993, no pet.); Wright, 830 S.W.2d at 313.

Because no deadline was imposed in the present case, the State=s failure to produce the documents in a more timely fashion was not a violation of the court=s discovery order. See Murray, 24 S.W.3d at 893. In addition, absent a finding or evidence in the record that the State acted in bad faith or willfully failed to comply with the discovery order, the trial court should not have excluded the evidence. Osburn, 59 S.W.3d at 816. We therefore conclude that the trial court abused its discretion in imposing the sanction of exclusion of evidence with respect to the intoxilyzer results. Therefore, we sustain the State=s sole issue. The trial court=s suppression order is reversed, and the case is remanded to the trial court for proceedings consistent with this opinion.

DORI CONTRERAS GARZA,

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and

filed this the 23rd day of February, 2006.