IN RE 25TH JUDICIAL DISTRICT ATTORNEY'S OFFICE (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

WR-74,593-01

In re District Attorney's Office of the 25th Judicial District, Applicant

(State v. Charles Morgan Dittman, Sr.)

On Petition for a Writ of Mandamus Regarding

Case 09-1941-CR of the 274th Judicial District Court,

Guadalupe County

Womack, J., delivered the order of the Court, in which Meyers, Price, Johnson, Keasler, Hervey, and Cochran, JJ., joined. Keller, P.J., filed a dissenting opinion.

O R D E R

A sexual assault case is pending in the District Court. The complainant was interviewed at the Child Advocacy Center. The State has a DVD recording of the interview, and the District Court has ordered the State to make a copy of the recording for the defendant's counsel. The prosecutor seeks a writ of mandamus ordering the district judge to rescind his order.

The issue is whether the order to make the defense a copy is permitted under the language of the discovery statute, article 39.14(a) of the Code of Criminal Procedure:

Upon motion of the defendant showing good cause therefor and upon notice to the other parties, except as provided by Article 39.15, the court in which an action is pending shall order the State before or during trial of a criminal action therein pending or on trial to produce and permit the inspection and copying or photographing by or on behalf of the defendant of any designated documents, papers, written statement of the defendant, (except written statements of witnesses and except the work product of counsel in the case and their investigators and their notes or report), books, accounts, letters, photographs, objects or tangible things not privileged, which constitute or contain evidence material to any matter involved in the action and which are in the possession, custody or control of the State or any of its agencies. The order shall specify the time, place and manner of making the inspection and taking the copies and photographs of any of the aforementioned documents or tangible evidence; provided, however, that the rights herein granted shall not extend to written communications between the State or any of its agents or representatives or employees. Nothing in this Act shall authorize the removal of such evidence from the possession of the State, and any inspection shall be in the presence of a representative of the State.

The discretion of the trial court in matters of discovery (1) surely includes the discretion to exercise the statutory authority to "order the State before … trial of a criminal action therein pending … to produce and permit the inspection and copying … by or on behalf of the defendant of any designated photographs, objects or tangible things not privileged, which constitute or contain evidence material to any matter involved in the action and which are in the possession, custody or control of the State or any of its agencies."

The same statute authorizes - indeed, requires - that the "order shall specify the time, place and manner of … taking the copies and photographs of any of the aforementioned documents or tangible evidence."

The court's order that the State make a copy of the DVD is supported by the statute's authority.

What would be the alternative to the court's order? The court could have followed the literal language of the statute by ordering the State "to produce and permit the … copying … by …the defendant" of the DVD - that is, to hand over the DVD to the defendant so that he could make the copy. We imagine that the State would prefer to keep the evidence in its possession.

The court's order for the State to make the copy, which is a task both easy and inexpensive, was reasonable. It also was authorized by the statute.

Leave to file the State's petition for a writ of mandamus is denied.

IT IS SO ORDERED THIS THE 30TH DAY OF MARCH, 2011.

Publish.

1. See generally Quinones v. State, 592 S.W.2d 933, 940 (Tex. Cr. App. 1980).