                                   Fourth Court of Appeals
                                            San Antonio, Texas

                                                      OPINION
                                                No. 04-16-00299-CR

                                            IN RE STATE OF TEXAS

                                                Original Proceeding 1

Opinion by:        Luz Elena D. Chapa, Justice

Sitting:           Karen Angelini, Justice
                   Luz Elena D. Chapa, Justice
                   Jason Pulliam, Justice

Delivered and Filed: August 3, 2016

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED; PETITION FOR
WRIT OF PROHIBITION DENIED

           On May 10, 2016, Relator Fred Hernandez, the 63rd District Attorney of Kinney, Val

Verde and Terrell Counties for the State of Texas, filed a petition for writ of prohibition and a

petition for writ of mandamus, complaining of a trial court order that required Relator to provide

information about grand jury proceedings and to assemble the grand jury “so that testimony may

be adduced” from members of the grand jury regarding the presentment of this case and whether

a “no bill” had been returned in this case. We conditionally grant the writ of mandamus. 2




1
  This proceeding arises out of Cause No. 13197CR, styled The State of Texas v. Nina Gonzalez, pending in the 83rd
Judicial District Court, Val Verde County, Texas, the Honorable Robert Cadena presiding.
2
  Relator’s petition for writ of prohibition sought to prevent the trial court from assembling the grand jury in its entirety
on May 12, 2016, at 9:00 a.m. Because we granted a temporary stay of the trial court’s order on May 11, 2016, the
petition for writ of prohibition has become moot. See White v. Reiter, 640 S.W.2d 586, 593 (Tex. Crim. App. 1982)
(explaining writ of prohibition is appropriate only to prevent future actions).
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                                               BACKGROUND

        In December 2014, a grand jury empaneled in July of that year indicted Real Party in

Interest Nina Gonzalez for “recklessly causing the death of an individual” in an auto accident in

Val Verde County, Texas. 3 At an April 1, 2016 pretrial hearing, questions were raised whether

there had been a “no bill” returned in this case. The trial court suggested Real Party in Interest

consider filing a motion under Article 20.02(d) of the Texas Code of Criminal Procedure, which

allows a defendant to petition for disclosure of otherwise secret grand jury information upon a

showing of a particularized need. See TEX. CODE CRIM. PROC. ANN. art. 20.02(d) (West 2015).

        Real Party in Interest filed a motion under Article 20.02(d). In her motion, Real Party in

Interest described the “particularized needs” for which she sought information from the July 2014

grand jury. These needs were to: (1) cross examine and impeach witnesses; (2) discover prior

inconsistent statements; (3) test the credibility of witnesses; (4) test the recollection of witnesses;

and (5) “ascertain the validity of the current Indictment or whether this case should have been ‘No

Billed.’” No particular witness was named or described in the motion and it was later determined

no transcript or recording exists for the July 2014 grand jury proceedings.

        Following an April 22, 2016 hearing, the trial court granted the motion and issued an order

that required Relator to “provide any transcript, recording, information, members of the Grand

Jury [sic], Docket Entries and other information relevant to the Grand Jury’s decision to indict or

No Bill this case,” and ordered the “Grand Jury be assembled in its entirety on May 12, 2016 at 9

a.m. so that testimony may be adduced regarding the presentment of this case and whether a ‘no

bill’ was returned in this case on or about March 30, 2016.” Relator subsequently filed petitions

for writ of prohibition and writ of mandamus.


3
  It appears from the record that in March 2016, another grand jury convened and voted to “no bill” Real Party in
Interest on charges of murder, manslaughter, and aggravated assault arising from the same accident.

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                                              ANALYSIS

       “Mandamus relief may be granted if a relator shows that: (1) the act sought to be compelled

is purely ministerial, and (2) there is no adequate remedy at law.” In re McCann, 422 S.W.3d 701,

704 (Tex. Crim. App. 2013). “An act is ministerial ‘where the law clearly spells out the duty to

be performed . . . with such certainty that nothing is left to the exercise of discretion or judgment.’”

In re Reed, 227 S.W.3d 273, 276 (Tex. App.—San Antonio 2007, no pet.) (quoting Tex. Dep’t of

Corrections v. Dalehite, 623 S.W.2d 420, 424 (Tex. Crim. App. 1981)). The law clearly spells out

the trial court’s duty to keep grand jury proceedings secret. See TEX. CODE CRIM. PROC. art.

20.02(a). However, a trial court may order the disclosure of grand jury information if a defendant

makes “a showing . . . of a particularized need.” Id. art. 20.02(d). Here, the first four grounds in

Real Party in Interest’s motion related to obtaining potentially exculpatory information to cross-

examine and impeach witnesses. Because prosecutors have no duty to present exculpatory

evidence to the grand jury, the accused can show no particularized need to access grand jury

information to obtain such information. In re Grand Jury Proceedings 198.GJ.20, 129 S.W.3d

140, 144 (Tex. App.—San Antonio 2003, pet. dism’d). The only other ground in Real Party in

Interest’s motion was to “ascertain the validity of the current Indictment or whether this case

should have been ‘No Billed.’” However, the mandamus record establishes Real Party in Interest

was indicted for recklessly causing the death of an individual and Real Party in Interest has not

alleged and did not make any showing that the indictment was invalid. Thus, Real Party in Interest

did not make “a showing of . . . a particularized need” and the trial court had the clear ministerial

duty to keep the grand jury proceedings secret. See TEX. CODE CRIM. PROC. art. 20.02(a), (d).

Furthermore, because Relator has no right to appeal this order, he lacks an adequate remedy at

law. See TEX. CRIM. PROC. CODE ANN. art. 44.01 (West Supp. 2015); State ex rel. Healey v.



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McMeans, 884 S.W.2d 772, 774 (Tex. Crim. App. 1994). Therefore, Relator has demonstrated his

entitlement to mandamus relief. See In re McCann, 422 S.W.3d at 704.

                                          CONCLUSION

       We conditionally grant mandamus. We order the trial court to vacate its April 22, 2016

order in its entirety. We deny the motion for prohibition. See White v. Reiter, 640 S.W.2d 586,

593 (Tex. Crim. App. 1982) (when party seeks a writ which would set aside an existing order,

proper relief sought is mandamus, prohibition operates to prevent future actions).

                                                 Luz Elena D. Chapa, Justice

PUBLISH




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