In re Edward Espinoza and Anthony Espinoza--Appeal from 131st Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-07-00598-CV
IN RE Edward ESPINOZA and Anthony Espinoza
Original Mandamus Proceeding (1)

Opinion by: Alma L. L pez, Chief Justice

 

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Steven C. Hilbig, Justice

 

Delivered and Filed: November 28, 2007

 

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED IN PART,

DENIED IN PART

 

Relators Edward Espinoza and Anthony Espinoza seek a writ of mandamus directing the trial court to: (1) conduct a hearing and rule on their assertions of the privilege against self-incrimination, and (2) vacate orders compelling them to fully respond to deposition questions and imposing discovery sanctions. We conclude the trial court did not consider and rule on each assertion of privilege and an appeal does not adequately protect the Espinozas' constitutional rights against self-incrimination. We also conclude the trial court did not abuse its discretion by ordering the Espinozas to pay attorney's fees and costs. We therefore conditionally grant the petition in part and deny the petition in part.

Factual and Procedural Background

Jesse Morales and Rosa Morales claim they were assaulted by the Espinozas and suffered personal injuries. These assault allegations are the subject of pending criminal and civil proceedings. A grand jury indicted the Espinozas for aggravated assault with a deadly weapon. The Moraleses filed a civil suit against the Espinozas for damages. In the civil suit, the Moraleses served the Espinozas with eleven interrogatories. In response, the Espinozas asserted their privilege against self-incrimination to each of the interrogatories. The Moraleses then attempted to depose the Espinozas. The Espinozas appeared for their depositions, but invoked their right against self-incrimination in response to each question.

Thereafter, the Moraleses moved to compel answers to the deposition questions. The trial court considered the motions to compel on October 13, 2006, but did not rule immediately. On January 19, 2007 and January 29, 2007, the trial court granted the motions to compel and assessed sanctions. The orders found that the Espinozas had completely failed to respond to discovery. After a legislative continuance, the Espinozas moved for reconsideration of the discovery orders. The trial court denied the motion for reconsideration and directed the Espinozas to appear for new depositions at their own expense and "fully respond" to the Moraleses' deposition questions no later than September 6, 2007. The orders further provided that if the Espinozas "fail[] to answer deposition questions and assert[] [their] Fifth Amendment privilege, [they] shall not be permitted to introduce any evidence on the issue" at trial. As additional sanctions, the orders directed the Espinozas to pay $750 each to reimburse the Moraleses for attorney's fees and expenses associated with bringing the motion to compel.

The Espinozas sought mandamus relief in this court, and we stayed the challenged orders pending resolution of the mandamus petition. The Espinozas contend the trial court had a duty to consider and rule on their assertions of privilege and it abused its discretion in ordering them to answer all questions or be penalized by the exclusion of evidence at trial. Additionally, the Espinozas argue the trial court abused its discretion in assessing discovery sanctions. The Moraleses counter that the trial court acted within its discretion in granting their motions to compel and in levying sanctions.

Mandamus Prerequisites

To obtain mandamus relief, a relator must show the trial court committed a clear abuse of discretion or violated a duty imposed by law and an appeal is not an adequate remedy. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992); Gebhardt v. Gallardo, 891 S.W.2d 327, 329 (Tex. App.--San Antonio 1995, orig. proceeding).

The abuse of discretion standard has different applications in different circumstances. Walker, 827 S.W.2d at 839. With respect to the resolution of factual issues or matters committed to the trial court's discretion, the relator must establish that the trial court could reasonably have reached only one decision. Id. at 840. On the other hand, appellate review of the trial court's determination of the legal principles controlling its ruling is much less deferential. Id. A trial court has no discretion in determining what the law is or in applying the law to the facts. Id. Thus, a clear failure by the trial court to analyze or apply the law correctly constitutes an abuse of discretion and may result in the issuance of a writ of mandamus. Id.

An appeal is not an adequate remedy when the relator is in danger of losing substantial rights, such as constitutional rights. See Tilton v. Marshall, 925 S.W.2d 672, 682 (Tex. 1996); In re Speer, 965 S.W.2d 41, 45 (Tex. App.--Fort Worth 1998, orig. proceeding); Gebhardt, 891 S.W.2d at 330. Nor is appeal an adequate remedy when the trial court's error vitiates the relator's ability to present a claim or defense. In re Van Waters, 145 S.W.3d 203, 210-11 (Tex. 2004); Gebhardt, 891 S.W.2d at 332. The Privilege Against Self-Incrimination

The United States Constitution and the Texas Constitution guarantee a person may not be compelled to testify or give evidence against himself in a criminal case. See U.S. Const. amend. V; Tex. Const. art. I, 10; Maness v. Meyers, 419 U.S. 449, 464 (1975). Generally, the privilege against self-incrimination is given liberal construction in favor of the right it was intended to secure. Hoffman v. U.S., 341 U.S. 479, 486 (1951). The privilege extends not only to answers that would in themselves support a conviction, but embraces answers that would furnish a link in the chain of evidence needed to prosecute the claimant. Maness, 419 U.S. at 461; Hoffman, 341 U.S. at 486.

A person does not lose this fundamental constitutional right when he becomes a party to a civil suit. In re Speer, 965 S.W.2d at 45; Gebhardt, 891 S.W.2d at 330; Burton v. West, 749 S.W.2d 505, 507 (Tex. App.--Houston [1st Dist.] 1988, orig. proceeding). The privilege against self-incrimination does not turn upon the type of proceeding in which its protection is invoked, but upon the nature of the statement or admission and the exposure which it invites. Chapman v. State, 115 S.W.3d 1, 5 (Tex. Crim. App. 2003) (citing Estelle v. Smith, 451 U.S. 454, 462 (1981)). Thus, the privilege against self-incrimination may be asserted in civil cases when "the answer might tend to subject to criminal responsibility him who gives it." Texas Dep't of Pub. Safety Officers Ass'n v. Denton, 897 S.W.2d 757, 760 (Tex. 1995).

The privilege against self-incrimination must be asserted in response to each specific question or it is waived. In re Speer, 965 S.W.2d at 46; Gebhardt, 891 S.W.2d at 330. Each assertion of the privilege rests on its own circumstances. In re Speer, 965 S.W.2d at 46; Gebhardt, 891 S.W.2d at 330. Blanket assertions of the privilege against self-incrimination are generally not allowed. In re Speer, 965 S.W.2d at 46; Gebhardt, 891 S.W.2d at 330.

Upon a party's assertion of the privilege against self-incrimination to a discovery request, the trial court reviews the discovery request; applies the law of privilege, discovery, and protection to the request; and determines how best to protect all of the interests involved. In re Edge Capital Group, 161 S.W.3d 764, 768 (Tex. App.--Beaumont 2005, orig. proceeding); In re R.R., 26 S.W.3d 569, 574 (Tex. App.--Dallas 2000, orig. proceeding); In re Speer, 965 S.W.2d at 46. The witness invoking the privilege against self-incrimination is entitled to introduce evidence to show that an answer is likely to be hazardous to him. In re Speer, 965 S.W.2d at 46. It is the trial court's duty to consider the witness's evidence and argument on each individual question and determine if the assertion of the privilege against self-incrimination is meritorious. In re Speer, 965 S.W.2d at 46; Burton, 749 S.W.2d at 508. The trial court must study each question for which the privilege is claimed and must forecast whether an answer could tend to incriminate the witness in a crime. In re Speer, 965 S.W.2d at 46; Burton, 749 S.W.2d at 508. Sometimes, the ramifications of answering a question are apparent; other times, they are not. In re Speer, 965 S.W.2d at 46. Nevertheless, before a trial court may compel a witness to answer a question, it must be "'perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer(s) cannot possibly have such tendency' to incriminate." Hoffman, 341 U.S. at 488 (citations omitted); see also In re Edge Capital Group, 161 S.W.3d at 768; Burton, 749 S.W.2d at 508.

Failure to Consider and Rule on Each Assertion of Privilege

The Espinozas argue the trial court abused its discretion by failing to consider and rule on each assertion of privilege. We agree. For the Espinozas, the possibility of prosecution was not remote or speculative; they had already been indicted for the conduct at issue in the civil suit. See Burton, 749 S.W.2d at 507 (defendant in drug proceeds forfeiture case entitled to assert privilege against self-incrimination to discovery); Smith v. White, 695 S.W.2d 295, 297 (Tex. App.--Houston [1st Dist.] 1985, orig. proceeding) (defendants under indictment entitled to assert Fifth Amendment rights in civil custody dispute). Thus, it was likely that any information the Espinozas provided in their depositions would be used against them in a criminal proceeding.

The nature of the questions asked and the exposure invited further show the trial court should have considered and ruled on each assertion of privilege. Some of the interrogatories asked the Espinozas to describe their actions during the alleged assaults and explain why they assaulted the Moraleses. Many of the deposition questions asked the Espinozas to explain their intentions and motivations during the alleged assaults and to provide details about the incident. Because of the pending criminal case and the nature of the questions asked and the exposure invited, the Espinozas' assertions of the privilege were not unreasonable. See Hoffman, 341 U.S. at 486 (protection afforded by privilege against self-incrimination is confined to instances where the witness has reasonable cause to apprehend danger from a direct answer). Under the circumstances presented, the trial court had a duty to consider and rule on each assertion of privilege. See Burton, 749 S.W.2d at 508; Smith, 695 S.W.2d at 297.

The Moraleses argue the Espinozas were not entitled to assert their privilege because they failed to request an abatement of the civil suit. We disagree. There is no requirement that a civil litigant request an abatement of the civil proceedings to preserve their privilege against self-incrimination. See Gebhardt, 891 S.W.2d at 332-33 (holding order severing and abating a civil suit during the pendency of a criminal indictment constituted an abuse of discretion); see also Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex. 1988) (noting trial courts generally have discretion in abatement decisions).

The Moraleses also argue the trial court's order compelling responses is justified because the Espinozas asserted their privilege to every question. The Espinozas acknowledge in their mandamus petition that the answers to a small percentage of the deposition questions had no tendency to incriminate them. Although the better practice would have been for the Espinozas to have answered these questions and asserted their privilege in a more selective fashion, we cannot ignore that many of the Espinozas' assertions of privilege appear to be valid on their face. The only way the trial court could have balanced all of the interests involved was by considering and ruling on each assertion of privilege.

The trial court therefore abused its discretion by summarily ordering the Espinozas to fully respond to the deposition questions. Because the trial court's error is of constitutional dimension, appeal is not an adequate remedy. See Tilton, 925 S.W.2d at 682; In re Speer, 965 S.W.2d at 45; Gebhardt, 891 S.W.2d at 330. We conclude the Espinozas are entitled to a writ of mandamus directing the trial court to consider and rule on each assertion of privilege.

Orders Compelling Deposition Answers or the Exclusion of Evidence

Next, the Espinozas challenge the sanctions orders compelling them to fully respond to deposition questions or have evidence excluded at trial. Ordinarily, a court should not penalize a party's assertion of the privilege against self-incrimination. (2) Spevack v. Klein, 385 U.S. 511, 515 (1967); Denton, 897 S.W.2d at 760. Before a trial court may overrule a civil litigant's assertion of the privilege against self-incrimination and compel him to answer, it must be perfectly clear from a careful consideration of all of the circumstances in the case that the witness is mistaken and that the answer cannot possibly have a tendency to incriminate him. Hoffman, 341 U.S. at 488; In re Edge Capital, 161 S.W.3d at 768; Burton, 749 S.W.2d at 508. In this case, absent a question-by-question evaluation, the trial court should not have ruled that the Espinozas' answers could not possibly have had a tendency to incriminate them. The trial court therefore abused its discretion by compelling the Espinozas to fully respond to deposition questions or have evidence excluded.

The Moraleses contend the Espinozas' broad assertion of the privilege justifies sanctions compelling responses and excluding evidence. The Texas Rules of Civil Procedure allows the trial court to sanction a party who fails to comply with a discovery request or improperly resists discovery. See Tex. R. Civ. P. 215.2; 215.3. Although sometimes the exclusion of evidence is an appropriate sanction, we conclude it was not appropriate here where the privilege against self-incrimination was asserted but was not considered and ruled on. See Tex. R. Civ. P. 193.6. (3)

Additionally, appeal is not adequate to remedy this part of the sanctions orders. Absent mandamus relief, the Espinozas stand to lose substantial rights. If the Espinozas elect to answer the deposition questions, they will waive their privilege against self-incrimination. On the other hand, if the Espinozas elect to re-assert their privilege, the resulting exclusion of evidence will hinder their defense. An appeal is not adequate to protect the Espinozas' constitutional rights against self-incrimination. See Tilton, 925 S.W.2d at 682; In re Speer, 965 S.W.2d at 45; Gebhardt, 891 S.W.2d at 330. An appeal is not adequate to rectify the Espinozas' ability to present a defense. See In re Van Waters, 145 S.W.3d at 210-11; Gebhardt, 891 S.W.2d at 332. The Espinozas have shown themselves entitled to mandamus relief on this issue. The orders compelling the Espinozas to fully respond to the deposition questions or have evidence excluded at trial must be vacated.

Attorney's Fees and Costs

Finally, the Espinozas argue that the trial court abused its discretion in assessing attorney's fees and deposition costs against them. An award of expenses in a discovery sanctions order is usually subject to review on appeal of the final judgment, rather than by mandamus. See Tex. R. Civ. P. 215.1(d); TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 920 (Tex. 1991); In re White, 227 S.W.3d 234, 236 (Tex. App.--San Antonio 2007, orig. proceeding).

The Espinozas admit in their mandamus petition that eight of the deposition questions had no tendency to incriminate them. In light of this concession, we cannot say the trial court abused its discretion in charging attorney's fees and deposition costs against the Espinozas. See Tex. R. Civ. P. 215.1(d) (requiring the award of reasonable expenses associated with bringing a motion to compel); Tex. R. Civ. P. 215.2(b)(2) (providing the trial court may render an order charging all or any portion of the expenses of discovery against a party who fails to comply with proper discovery requests). Additionally, the Espinozas do not allege or show that their appellate remedy on this issue will not suffice. Because the Espinozas have not met their mandamus burden on attorney's fees and costs, this portion of the mandamus petition is denied.

We conditionally grant the petition in part, and deny the petition in part. The trial court is ordered to: (1) conduct a hearing on the Espinozas' assertions of privilege; (2) consider and rule on each assertion of the privilege against self-incrimination made by the Espinozas; (3) vacate the portions of its January 19, 2007 order, January 29, 2007 order, and August 20, 2007 orders compelling the Espinozas to fully respond to deposition questions; and (4) vacate the portions of its January 19, 2007 order; January 29, 2007 order, and August 20, 2007 orders excluding evidence in the event the Espinozas re-assert their privilege. The writ will issue only if the trial court fails to comply.

Alma L. L pez, Chief Justice

1. This proceeding arises out of Cause No. 2006-CI-0333, styled Jesse Morales and Rosa Morales v. Shirley Denis, et al., pending in the 131st Judicial District Court, Bexar County, Texas, the Honorable John D. Gabriel, Jr., presiding. However, the challenged orders were signed by the Honorable Martha Tanner, presiding judge of the 166th Judicial District Court, Bexar County, Texas.

2. The offensive use doctrine has no application in this case. Under this doctrine, a trial court has the authority to respond to the offensive use of the privilege against self-incrimination by imposing sanctions. Texas Dep't of Pub. Safety Officers Ass'n v. Denton, 897 S.W.2d 757, 761(Tex. 1995). Three factors must be present before the offensive use doctrine is applicable: (1) the party asserting the privilege is seeking affirmative relief; (2) the party is using the privilege to protect outcome determinative information; and (3) the protected information is not otherwise available to the defendant. Id.; Republic Ins. v. Davis, 856 S.W.2d 158, 163 (Tex. 1993, orig. proceeding). If any one of these factors is not present, the trial court must uphold the privilege, and refrain from imposing sanctions. Denton, 897 S.W.2d at 761; Republic Ins., 856 S.W.2d at 163. All three factors are not present here.

3. Texas Rule of Civil Procedure 193.6 provides in part:

 

(a) Exclusion of Evidence and Exceptions. A party who fails to make, amend, or supplement a discovery response in a timely manner may not introduce in evidence the material or information that was not timely disclosed, or offer the testimony of a witness (other than a named party) who was not timely identified, unless the court finds that:

 

(1) there was good cause for the failure to timely make, amend, or supplement the discovery response; or

 

(2) the failure to timely make, amend, or supplement the discovery response will not unfairly surprise or unfairly prejudice the other parties.

 

Tex. R. Civ. P. 193.6.