                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-16-00301-CR
                           ____________________


                          IN RE WILLIAM LEE HON

________________________________________________________________________

                              Original Proceeding
                  258th District Court of Polk County, Texas
                            Trial Cause No. 23,343
________________________________________________________________________

                          MEMORANDUM OPINION

      The Relator, William Lee Hon, in his capacity as the District Attorney of

Polk County, Texas, seeks mandamus relief from a discovery order signed by the

judge of the 258th District Court in a prosecution for driving while intoxicated. On

August 9, 2016, the trial court ordered Hon and the Texas Department of Public

Safety Houston Crime Lab (DPS Crime Lab) to digitally copy and digitally

produce several different categories of documentation relating to a blood sample

analysis in Trial Cause Number 23,343, The State of Texas v. Cindy Pashia-



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McCormick. We stayed the trial court’s order and obtained a response to the

petition from the real party in interest, Cindy Pashia-McCormick.

      Mandamus is appropriate in a criminal case when the relator establishes that

(1) he has no other adequate legal remedy; and (2) the act sought to be compelled

is purely ministerial under the relevant facts and law. State ex rel. Hill v. Ct. of

Appeals for Fifth Dist., 34 S.W.3d 924, 927 (Tex. Crim. App. 2001) (orig.

proceeding). The Relator lacks an adequate remedy at law because a discovery

order is not an order that the State has a right to appeal. See Tex. Code Crim. Proc.

Ann. art. 44.01 (West Supp. 2016). We must determine, therefore, whether

ordering the trial court to vacate the discovery order would compel a ministerial

act. “A ministerial act, by its nature, does not involve the use of judicial discretion;

it must be positively commanded and so plainly prescribed under the law as to be

free from doubt.” In re Allen, 462 S.W.3d 47, 49–50 (Tex. Crim. App. 2015) (orig.

proceeding) (footnotes omitted).

      The Relator argues the trial court exceeded the scope of its authority under

article 39.14 of the Texas Code of Criminal Procedure by ordering discovery that

was not shown to be material or otherwise authorized by the Texas Code of

Criminal Procedure article 39.14. See generally Tex. Code Crim. Proc. Ann. art.

39.14 (West Supp. 2016). Evidence is material if it affects the essential proof that

                                           2
the defendant committed the offense charged. See Ehrke v. State, 459 S.W.3d 606,

611 (Tex. Crim. App. 2015) (quoting Quinones v. State, 592 S.W.2d 933, 943

(Tex. Crim. App. 1980).

      A review of the mandamus record shows that the defendant articulated why

many of the items she requested are material to her defense. Testifying as an expert

on preparing a defense for a prosecution for driving while intoxicated, attorney

Troy McKinney stated that he personally participated in negotiations with the

Harris County District Attorney’s Office and three of the four forensic laboratories

operating in Harris County for what became a standing discovery order used by the

criminal courts in Harris County. According to McKinney, the information

required by the standing blood discovery order is necessary for a defense lawyer or

a defense expert to review and evaluate the accuracy and reliability of a blood test.

       McKinney testified that as part of its accreditation criteria, the laboratory

has written standard operating procedures that must be documented, and the

laboratory is required to perform an annual internal audit. The inspection reports

and audits are critical to evaluating whether the laboratory is following its

operating protocols. Based upon this testimony, the trial court could determine that

the DPS laboratory’s accreditation and internal audit records are material. The

records maintained by the DPS laboratory for the sampling and analysis of the

                                          3
defendant’s blood likewise are material because they are indispensable as its

exclusion from evidence would affect the essential proof that the defendant

committed an offense. See id.

      However, other enumerated categories of the discovery ordered are not

reasonably limited to the defendant’s case. In Number 12, the trial court ordered

production of “[a]ll proficiency testing results for any person involved in [the]

sample preparation, analysis, or administrative or technical review in the case[,]”

without limiting it to the time when the defendant’s sample was obtained.

McKinney stated that proficiency testing results did not relate to a single case, but

he indicated that they would show how accurate the lab employee was in other

testing. McKinney stated that, in his opinion, the results could be relevant if they

showed the person got the wrong answer on blind samples. The records ordered to

be produced, however, were not limited to proficiency testing results at or near the

time the defendant’s blood sample was taken. We conclude the defendant failed to

articulate the materiality of the scope of proficiency testing results ordered to be

produced under Number 12.

      The trial court ordered, in item number 7 of the discovery order, production

of the “testimonial evaluation forms of each laboratory employee involved in the

testing process.” According to McKinney, the evaluations are kept to maintain the

                                         4
laboratory’s accreditation and production of the forms will show that the laboratory

is doing what it must to maintain their accreditation. McKinney testified that the

DPS laboratory is in fact accredited, however, and the only other reason he

provided for the information was that it would give the defense the ability to

discover other cases in which the person testified and allow the defense to obtain a

copy of the transcript. We conclude that the defendant failed to articulate a reason

why the testimonial evaluation forms were material to the defendant’s case.

      Under item number 28, the trial court ordered that the defense have an

opportunity to inspect, diagram, and photograph the areas under the control of the

laboratory containing the equipment used to test the sample in this case. The

sample was tested more than two years ago, however, and McKinney agreed that

ordering access to the chromatograph would not be relevant if the machine used in

the defendant’s case is no longer in the laboratory, or if the equipment that was

used in the defendant’s case is no longer in the laboratory. McKinney stated that

the right to inspect the laboratory was limited to when the case has been set for

trial because the laboratory complained that inspections were occurring for cases

that were not going to trial. He did not explain how it would be material to the

defense that an inspection be performed two years after the test in question, when

the equipment used to test the defendant’s blood may no longer be in the

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laboratory. Therefore, we conclude that the defendant failed to articulate the

materiality of the discovery sought by such inspection.

      The trial court ordered discovery not shown to be material to any matter in

the case; therefore, we conclude the trial court exceeded its authority under article

39.14 by ordering the State to produce records of testimonial evaluations and

proficiency testing results under item numbers 7 and 12 of the discovery order and

in ordering the inspection of the DPS laboratory under item number 28. See Tex.

Code Crim. Proc. Ann. art. 39.14; see also In re Hawk, No. 05-16-00462-CV, 2016

WL 3085673, at *2–4 (Tex. App.—Dallas May 31, 2016, orig. proceeding) (mem.

op.). Because a trial court has no discretion in determining what the law is or

applying the law to the facts, its failure to analyze or apply the law correctly

constitutes an abuse of discretion. See In re Thompson, 330 S.W.3d 411, 417 (Tex.

App.—Austin 2010, orig. proceeding); State ex rel. Wade v. Stephens, 724 S.W.2d

141, 144 (Tex. App.—Dallas 1987, orig. proceeding) (conditionally granting

mandamus because trial court’s criminal discovery orders must fall within confines

of limited authorization in article 39.14). Accordingly, we conditionally grant in

part the Relator’s petition for writ of mandamus. 1 Our order staying the trial

      1
        The Relator complains that he was not provided an opportunity to review
the Harris County standing blood discovery order before the trial court adopted it
for Polk County. The Relator has since had an opportunity to examine and review
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court’s discovery order is lifted so that the trial court may vacate the order of

August 9, 2016, and issue a new order in accordance with this opinion. 2 A writ will

issue only if the trial court fails to comply.

      PETITION CONDITIONALLY GRANTED IN PART.

                                                               PER CURIAM


Submitted on September 12, 2016
Opinion Delivered October 19, 2016
Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.




the proposed Polk County standing blood discovery order and to inquire with the
DPS laboratory regarding the burdensomeness of the individual items of discovery.
Any specific complaint on which the Relator did not develop evidence because it
was not apparent to the Relator at the time of the hearing may be addressed to the
trial court on rehearing of the blood discovery order in this case. Therefore, we
decline to address that part of the Relator’s argument in this mandamus
proceeding.
      2
        Rule 10 of the Texas Rules of Judicial Administration generally requires
any local standing order be adopted by all of the courts of the county before
enactment. We express no opinion regarding the application of the standing blood
discovery order to any case not before the trial court in this case.
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