                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-14-00308-CV


                          IN RE MICHAEL MUNK, RELATOR

                                   Original Proceeding

                                    August 15, 2014

                            MEMORANDUM OPINION
                   Before CAMPBELL and HANCOCK and PIRTLE, JJ.


      Relator, Michael Munk, serves as the elected district attorney for the 106th

District and has filed his petition for writs of mandamus and prohibition in relation to

orders issued by Respondent, the Honorable Carter T. Schildknecht, presiding judge of

the 106th District Court, in which Respondent granted a defendant’s motion to (1)

consolidate the trial of charges pending in three separate indictments and (2) require

the State to disclose the criminal history of certain witnesses. Relator further seeks a

writ of prohibition that would prevent Respondent from requiring the State to disclose

such criminal history of its witnesses in the future. For the reasons expressed herein,

we will deny Relator’s petition for writs of mandamus and prohibition.
                             Factual and Procedural History


      The subject orders of the instant petition originate in the underlying proceedings

styled State of Texas v. Sammy Carl Williams, trial court cause number 14-3151.

Williams was charged with several offenses stemming from the same criminal episode

in three different indictments under trial court cause numbers 14-3149, 14-3150, and

14-3151. In trial court cause number 14-3149, Williams was charged with aggravated

assault and failure to stop and render aid. In trial court cause number 14-3150, he was

charged with failure to stop and render aid, and, in trial court cause number 14-3151, he

was charged with aggravated assault, intoxication assault, and injury to a child. On

August 4, 2014, Williams moved to consolidate the charges pending in those three

indictments. The State unsuccessfully opposed the consolidation; following a hearing

on the motion held August 11, Respondent granted Williams’s motion to consolidate the

three indictments for trial under a single cause number: 14-3151. On that same day,

Respondent also granted Williams’s motion to list witnesses and request for criminal

histories of the State’s witnesses. Trial on the consolidated indictment is scheduled to

begin on August 15, 2014.


      Relator now seeks extraordinary relief from these two orders in his petition. He

contends that this Court should issue writs of mandamus to compel respondent to

withdraw her orders dated August 11, by which she granted Williams’s motion to

consolidate and his request that the State provide the criminal histories of its witnesses.

He also requests that this Court issue a writ of prohibition against Respondent directing

her to refrain from requiring the State to run criminal background checks on any of its

witnesses in the future. In conjunction with his petition for writs of mandamus and

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prohibition, Relator sought emergency temporary relief in the form of a stay of the

proceedings in trial court cause number 14-3151, proceedings which are scheduled to

begin on Friday, August 15. See TEX. R. APP. P. 52.10(a). By separate order, this

Court denied Relator’s motion for emergency relief. For the reasons outlined below, we

will likewise deny his petition.


                               Petition for Writs of Mandamus


Applicable Law and Standards


       Mandamus will issue only to correct a clear abuse of discretion or the violation of

a duty imposed by law when there is no other adequate remedy by law. Walker v.

Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). Thus, evaluating whether

mandamus relief should be granted requires that we determine whether there has been

a clear abuse of discretion by the trial court and, if so, whether an adequate appellate

remedy exists. See id.


Consolidation of Charges for Trial


       We first address Relator’s contentions in support of his request that this Court

compel Respondent by writ of mandamus to withdraw her order dated August 11, 2014,

in which she granted Williams’s motion to consolidate the charges pending into a single

trial court cause number. Relator maintains that the State’s consent is required before

Respondent may consolidate trial on the three indictments pending against Williams.


       It has long been the rule in this State that, when a defendant is faced with

multiple pending indictments, those indictments may be consolidated into a single

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proceeding with the express or implied—by failure to object—consent of the defendant.

Cervantes v. State, 815 S.W.2d 569, 571 (Tex. Crim. App. 1991) (en banc). That is not

to say that the trial court is required to consolidate the cases on the defendant’s

request. See Ex parte Charlesworth, 600 S.W.2d 316, 317 (Tex. Crim. App. [Panel Op.]

1980).    The general provision of the Texas Penal Code governing consolidation is

treated as permissive, meaning that it does not give a defendant the right to demand

consolidation of offenses committed in the same criminal episode. See TEX. PENAL

CODE ANN. § 3.02(a) (West 2011); Gongora v. State, 916 S.W.2d 570, 575 (Tex. App.—

Houston [1st Dist.] 1996, pet. ref’d) (citing Nelson v. State, 864 S.W.2d 496, 498 (Tex.

Crim. App. 1993) (en banc)); see also McNeil v. State, 398 S.W.3d 747, 758 (Tex.

App.—Houston [1st Dist.] 2011, pet. ref’d), cert. denied, 133 S. Ct. 1264, 185 L. Ed. 2d

205 (2013) (observing that Section 3.02 “does not make consolidation mandatory”).

Generally, “the matter of consolidation of indictments, with the defendant’s approval, [is]

a matter to be left to the discretion of the trial court.” Johnson v. State, 509 S.W.2d 322,

323 (Tex. Crim. App. 1974).


         By moving to consolidate the trial on the several charges pending against him,

Williams has expressly consented that those indictments be consolidated and submitted

the issue to Respondent’s discretion.            See id.   Relator re-urges the State’s

dissatisfaction with Respondent’s exercise of that discretion in favor of consolidation

and re-asserts that the State’s consent was required before consolidation could be

permitted, but it points to nothing that would suggest that Respondent abused her

discretion by deciding to proceed in a single trial on the charged offenses from a single

criminal episode.     That said, we cannot conclude that Respondent abused her


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discretion by granting Williams’s motion and consolidating the charges pending into trial

court cause number 14-3151 for trial in a single proceeding. By failing to show that

Respondent abused her discretion by entering the order granting Williams’s motion to

consolidate, Relator has failed to show himself entitled to the extraordinary relief

requested. Accordingly, we deny his request for such.


Requiring the State to Disclose Witnesses’ Criminal Histories


       Next, we address Relator’s contention that Respondent abused her discretion by

entering an order granting Williams’s motion to list witnesses in which he also requested

that the State provide to him the criminal history of any witnesses the State intends to

call at the guilt/innocence or punishment phase of trial against Williams. In his petition,

Relator characterizes Respondent’s order as one that directs, “if a criminal history was

not already in possession of the State, that the State be required to run a criminal

background check on all of its non-law enforcement witnesses.” Relator maintains the

State has no duty to gather or develop evidence for a defendant that might prove useful

in counteracting the State’s evidence of the defendant’s guilt.


       Initially, we note that we do not see the language in Respondent’s order of which

Relator specifically complains.   To the contrary, Respondent’s order simply granted

Williams’s motion, which had requested only that the State provide Williams with “a

criminal history on each witness the State intends to call, in either guilt/innocence or

punishment stage.” Next, we note that defense counsel mistakenly cites to the former

Texas Rule of Criminal Evidence 609 in support of his request for criminal histories of




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the State’s witnesses. Of course, this rule has been superseded by Rule 609 of the

Texas Rules of Evidence, which govern both civil and criminal evidentiary matters.


       Nonetheless, overlooking this error in citing authority to support Williams’s

request, we note that a prosecutor has an affirmative duty to disclose all material,

exculpatory evidence to the defense. See Lagrone v. State, 942 S.W.2d 602, 615 (Tex.

Crim. App. 1997) (concluding that affirmative duty is “unequivocally clear” under Brady

v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)); see also Ex parte

Kimes, 872 S.W.2d 700, 702 (Tex. Crim. App. 1993) (en banc). A prosecutor violates

the Due Process Clause of the Fourteenth Amendment of the United States Constitution

when he or she fails to disclose material evidence that is favorable to the accused. See

Thomas v. State, 841 S.W.2d 399, 404 (Tex. Crim. App. 1992) (en banc). Favorable

evidence is any evidence, including exculpatory and impeachment evidence, that, if

disclosed and used effectively, may make the difference between conviction and

acquittal. Id. at 403, 404.


       With that in mind and despite the formal error in citation to the rules which could

be read to support this affirmative duty, Respondent’s order granting Williams’s request

that the State provide to him, “prior to trial, a criminal history on each witness the State

intends to call, in either guilt/innocence or punishment stage” is an order consistent on

its face with the prosecutorial duty imposed on Relator under current applicable law and

is, therefore, not an abuse of discretion. See id. By failing to show that Respondent’s

order was an abuse of discretion, Relator has again failed to show that he is entitled to

mandamus relief, and we deny him such.



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                               Petition for Writ of Prohibition


       We next address Relator’s contention in support of his request that this Court

issue a writ of prohibition to prevent Respondent from requiring the State to run criminal

background checks on any of its witnesses in the future.


Applicable Law and Standards


       We first point out that the writ of prohibition is a creature of limited purpose. In re

Lewis, 223 S.W.3d 756, 761 (Tex. App.—Texarkana 2007, orig, proceeding).                 The

purpose of the writ of prohibition is to enable a superior court to protect and enforce its

jurisdiction and judgments. Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 683

(Tex. 1989) (orig. proceeding). The writ is typically used to protect the subject matter of

an appeal or to prohibit an unlawful interference with the enforcement of a superior

court’s orders and judgments. Id. To those ends, a writ of prohibition may issue to

accomplish the following tasks: (1) to prevent interference with higher courts in deciding

a pending appeal, (2) to prevent inferior courts from entertaining suits which will

relitigate controversies which have already been settled by the issuing court, and (3) to

prohibit a trial court’s action when it affirmatively appears that the court lacks

jurisdiction. See In re Lewis, 223 S.W.3d at 761; McClelland v. Partida, 818 S.W.2d

453 (Tex. App.—Corpus Christi 1991, orig. proceeding).            The writ of prohibition is

designed to operate much like an injunction issued by a superior court to control, limit,

or prevent action in a court of inferior jurisdiction. Holloway, 767 S.W.2d at 682.


       In keeping with the limited purpose of the writ of prohibition, an appellate court’s

jurisdiction to issue the writ is likewise limited. See Tex. Employers’ Ins. Ass’n v. Kirby,

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137 Tex. 106, 152 S.W.2d 1073, 1073 (1941). In Kirby, the Texas Supreme Court

concluded that a petition for a writ of prohibition is an ancillary proceeding that is

invoked in aid of an appellate court’s jurisdiction which has otherwise been properly

invoked, not an independent proceeding brought to prohibit an action. See id. That

said, a writ of prohibition is appropriate only after an appellate court’s jurisdiction has

been invoked on independent grounds and then only in aid of that jurisdiction. See id.

So, an appellate court does not have jurisdiction, absent actual jurisdiction of a pending

proceeding, to issue a writ of prohibition requiring that a trial court refrain from

performing a future act. See In re Nguyen, 155 S.W.3d 191, 194 (Tex. App.—Tyler

2003, orig. proceeding); Lesikar v. Anthony, 750 S.W.2d 338 (Tex. App.—Houston [1st

Dist.] 1988, orig. proceeding).


Analysis


       In this instance, Relator has not identified a pending proceeding over which this

Court has jurisdiction and by which this Court might have jurisdiction to issue a writ of

prohibition to prohibit a future act by Respondent.        Nor have we found such a

proceeding.    Simply put, it appears we have no pending jurisdiction to protect or

preserve by way of writ of prohibition. See Kirby, 152 S.W.2d at 1073. The instant case

does not present one of the limited purposes to be achieved by issuance of a writ of

prohibition and, that being the case, we lack jurisdiction to issue such extraordinary

relief. See Holloway, 767 S.W.2d at 683; In re Nguyen, 155 S.W.3d at 194.


       Accordingly, we deny Relator’s request to issue a writ of prohibition in this

context.


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                                    Conclusion


      Having concluded that Relator has failed to show himself entitled to the

extraordinary remedy of mandamus and having concluded that we lack jurisdiction to

issue a writ of prohibition in this context, we deny Relator’s petition for writs of

mandamus and prohibition. See TEX. R. APP. P. 52.8(a).




                                             Per Curiam




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