








IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. WR-68,348-02


IN RE JUAN LIZCANO, Relator


v.


HON. ANDY CHATHAM, PRESIDING JUDGE, Respondent




ON ORIGINAL APPLICATION FOR A WRIT OF MANDAMUS
FROM THE 282ND JUDICIAL DISTRICT COURT

DALLAS  COUNTY, TEXAS



Alcala,  J., filed a concurring statement, in which Cochran, J., joined.
 
CONCURRING STATEMENT

Relator Juan Lizcano challenges the respondent trial judge's order compelling
discovery. Relator's application for a writ of mandamus asks whether the State is entitled
to discover all of a defense attorney's trial files when a defendant challenges the
effectiveness of that attorney in a writ of habeas corpus.   Because the vagueness of the trial
court's discovery order renders this issue not ripe for judicial review, we cannot answer
relator's question at this juncture.  
Respondent's discovery order provides, in relevant part, that "the State may review
applicant's trial files of this cause, including information protected from disclosure by
statutory or constitutional law, as it relates to applicant's claims of ineffective assistance of
counsel."  Although the record reveals that the trial court has conducted an in camera review
of the files, the order does not specify which files relate to the ineffective-assistance claims. 
Because it is unknown whether any files pertain to relator's claims and whether any such
files contain protected information, this application for mandamus is premature. We are
being asked to review an order with uncertain and contingent future events, which is not
subject to mandamus. See Patterson v. Planned Parenthood of Houston & SE Tex., 971
S.W.2d 439, 442 (Tex. 1998) (explaining that an action is not ripe for judicial review if it
involves "uncertain or contingent future events that may not occur as anticipated, or indeed
may not occur at all").
Furthermore, relator has failed to include with his petition a sealed record containing
the documents that are the subject of this action.  As the party seeking to avoid discovery, it
is relator's burden to plead the basis for exemption and to produce evidence supporting that
claim. See Dominguez v. Gilbert, 48 S.W.3d 789, 795 (Tex. App.--Austin 2001, no pet.). 
In the absence of any additional evidence to support the claimed privilege, an appellate court
must review the documents to determine if they clearly support the privilege as a matter of
law. Id. (citing Barnes v. Whittington, 751 S.W.2d 493, 495 (Tex. 1988)). Moreover, under
the Texas Rules of Appellate Procedure, the relator in a mandamus proceeding prepares and
files the mandamus record.  Rule 52.7(a)(1) requires a relator to file with the petition "a
certified or sworn copy of every document that is material to the relator's claim for relief and
that was filed in any underlying proceeding." Rule 52.3(g) requires that "[e]very statement
of fact in the petition must be supported by citation to competent evidence included in the
appendix or record." And Rule 52.3(k)(1)(A) states that the petition appendix must contain
"a certified or sworn copy of any order complained of, or any other document showing the
matter complained of." In failing to supply the evidence necessary to support the contentions
set forth in his petition, relator fails to comply with these mandatory provisions and prevents
this Court from conducting a meaningful review of his claims.
In sum, having already reviewed the records in camera, the trial court should prepare
an order that specifies which documents, if any, must be disclosed. This may be done by
referring to numbers assigned to the documents, or a discovery log, or something that
identifies to which files the trial court is referring without identifying the content of the
record.  Assuming relator opts to challenge that order, he must include the in camera record
in his application for mandamus as a sealed record that contains all the complained-of
documents.  He should then ask the trial court to stay the order until our Court determines
whether to accept the application for mandamus.    
Although relator presents an important question of law, it is not ripe for review.  I,
therefore, concur in the denial of the application for writ of mandamus. Filed:  October 5, 2011
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