                                     In The

                              Court of Appeals
                   Ninth District of Texas at Beaumont
                            ____________________

                             NO. 09-13-00579-CR
                            ____________________

                 IN RE STEPHEN LOUIS HARTMAN
__________________________________________________________________

                         Original Proceeding
__________________________________________________________________

                                   OPINION

      Stephen Louis Hartman filed a petition for writ of mandamus asking this

Court to compel the Judge of the County Court at Law No. 2 of Orange County,

Texas, to allow Hartman’s counsel access to an audio recording. We conditionally

grant mandamus relief.

      On May 28, 2013, the judge of the 252nd District Court of Jefferson County

was conducting court when Hartman, a process server, attempted to serve the judge

with a summons. Summer Tanner, the court reporter for the 252nd District Court,

was transcribing the court proceedings and recording the proceedings on an audio

recording. Hartman was arrested and charged with hindering a proceeding by

disorderly conduct. Hartman obtained a subpoena for Tanner’s audio recording,

                                       1
which Tanner moved to quash. The trial court granted Tanner’s motion in part,

denied the motion in part, and ordered the entire audio recording sealed. In

findings of fact and conclusions of law, the trial court stated, in pertinent part, that

the inadmissible portions of the audio recording contain no evidence relevant to

Hartman’s guilt or innocence, no exculpatory evidence, and no impeachment

evidence. In this mandamus proceeding, Hartman challenges the trial court’s

ruling.

      A party seeking a writ of mandamus must show that (1) he has no other

adequate remedy at law; and (2) the act sought to be compelled is purely

ministerial. State ex rel. Hill v. Court of Appeals for the Fifth Dist., 34 S.W.3d

924, 927 (Tex. Crim. App. 2001); In re Altschul, 146 S.W.3d 754, 755 (Tex.

App.—Beaumont 2004, orig. proceeding). Regarding the first requirement,

“potential review at a later time is not always or automatically an adequate remedy:

‘In some cases, a remedy at law may technically exist; however, it may

nevertheless be so uncertain, tedious, burdensome, slow, inconvenient,

inappropriate, or ineffective as to be deemed inadequate.’” Greenwell v. Court of

Appeals for the Thirteenth Judicial Dist., 159 S.W.3d 645, 648-49 (Tex. Crim.

App. 2005) (quoting Smith v. Flack, 728 S.W.2d 784, 792 (Tex. Crim. App.

1987)). Under the circumstances of this case, delaying review of the trial court’s

                                           2
order until after the conclusion of Hartman’s criminal case would frustrate the

purpose of furthering judicial economy and would be a waste of the parties’ time

and resources. See id. at 649.

      Regarding the second requirement, the State and Tanner argue that a trial

court’s discovery rulings made in criminal cases are discretionary and not subject

to mandamus. Generally, a trial court’s acts involving discovery under article

39.14 of the Texas Code of Criminal Procedure are discretionary and not subject to

a writ of mandamus, but decisions involving pretrial discovery of evidence that is

exculpatory, mitigating, or privileged are not discretionary. See Kinnamon v. State,

791 S.W.2d 84, 91 (Tex. Crim. App. 1990) overruled on other grounds, by Cook v.

State, 884 S.W.2d 485 (Tex. Crim. App. 1994); see also Dickens v. Court of

Appeals for the Second Supreme Judicial Dist. of Tex., 727 S.W.2d 542, 552 (Tex.

Crim. App. 1987); State ex rel. Simmons v. Moore, 774 S.W.2d 711, 714 (Tex.

App.—El Paso 1989, no pet.). “While Article 39.14 ‘makes it clear that the

decision on what is discoverable is committed to the discretion of the trial court,’

the trial court must permit discovery if ‘the evidence sought is material to the

[d]efense of the accused.’” Ex parte Miles, 359 S.W.3d 647, 670 (Tex. Crim. App.

2012) (quoting Quinones v. State, 592 S.W.2d 933, 940-41 (Tex. Crim. App.

1980)) (emphasis added). Exculpatory and impeachment evidence is material if its

                                         3
effective use may make the difference between a conviction and an acquittal. Little

v. State, 991 S.W.2d 864, 866 (Tex. Crim. App. 1999).

       This Court has reviewed Tanner’s audio recording, and we conclude that

parts of the recording contain evidence that may justify, excuse, or clear Hartman

of the charged offense, as well as evidence that may dispute or contradict other

evidence in the case. See Harm v. State, 183 S.W.3d 403, 408 (Tex. Crim. App.

2006) (“Exculpatory evidence may justify, excuse, or clear the defendant from

fault, while impeachment evidence is that which disputes or contradicts other

evidence.”). These parts of the audio recording that were not disclosed, which

include comments and statements between the trial court and the arresting officer

about what had occurred while Hartman was in the courtroom, are relevant to the

State’s allegation that he disrupted the court’s proceedings and that, in our view,

consist of Brady 1 material. Consequently, there are parts of the undisclosed audio

recording that are especially material to Hartman’s defense, and these statements

would be used by a competent defense attorney in an effort to impeach the State’s

witnesses or to argue that Hartman’s alleged conduct was neither disruptive nor the

actual basis for his arrest.




       1
           Brady v. Maryland, 373 U.S. 83 (1963).
                                           4
      These undisclosed portions of the audio recording consist of Brady material

that is required to be disclosed at a meaningful time prior to trial. Because we

conclude that the trial court erred in its findings, we believe the previously

undisclosed portions of the audio recording that contain comments or statements

by the trial court and the arresting officer that pertain to Hartman must be made

available to him. After listening to the audio recording in camera, the trial court

found that the undisclosed portions of the audio recording contained no relevant

impeachment or exculpatory evidence. We disagree: the undisclosed portions of

the audio recording contain statements by the trial court and the arresting officer

about the specific incident in question and Hartman’s arrest. A competent defense

attorney could use the evidence from the undisclosed portions of the audio

recording to argue that the decision to arrest Hartman was based upon what the

trial court told the arresting officer, and not because of what the arresting officer

had seen Hartman doing in court.

      Given this content, and regardless of the prosecutor’s good or bad faith, this

undisclosed information is favorable to Hartman because it places what happened

during the proceedings in a context that is more favorable to him. It is material

because without those undisclosed portions Hartman will be required to try his

case without evidence from which a jury could reasonably conclude shows that the

                                         5
trial court, not the arresting officer, made both the decision to have Hartman

arrested and supplied the reason for his arrest, and the audio recording would be

admissible, as no one has disputed that the voices in the audio recording include

those of the trial court and the arresting officer. See Hampton v. State, 86 S.W.3d

603, 611-613 (Tex. Crim. App. 2001) (stating Brady standards and explaining that

a de novo standard applies to the application of undisputed historical facts and

requiring the reviewing court to explain why a particular item is especially material

in conducting a Brady review); Brady, 373 U.S. at 87.

      Accordingly, we conclude that the trial court’s discovery action in this case

was ministerial, not discretionary, and the trial court was required to give Hartman

access to relevant portions of the audio recording. See Miles, 359 S.W.3d at 670;

see also Hill, 34 S.W.3d at 928 (Under the ministerial act/clear legal right

requirement, the law must set forth the duty to be performed with such clarity and

certainty that nothing is left to the trial court’s exercise of discretion or judgment.);

Kinnamon, 791 S.W.2d at 91; Simmons, 774 S.W.2d at 714.

      However, not all of the remaining portions of the audio recording are

exculpatory, and Hartman has no general right, reviewable on mandamus, to make

the trial court provide non-Brady material to him. See Pennsylvania v. Ritchie, 480

U.S. 39, 59 (1987) (noting that “[d]efense counsel has no constitutional right to

                                           6
conduct his own search of the State’s file to argue relevance”). We also expressly

reject the State’s argument that the trial court was under no duty to disclose any

part of the audio recording because it was in the possession of the court reporter,

not the State. Although the State argues that such a distinction distinguishes and

limits the Supreme Court’s holding in Brady in a way that makes it inapplicable to

the facts of this case, in our view the constitutional standards apply to the

information that came into the trial court’s possession, regardless of how the trial

court obtained the information. 2

      We conditionally grant Hartman’s petition for writ of mandamus, and we

direct the trial court to vacate its order of March 4, 2014, in which it quashed, in

part, Hartman’s subpoena duces tecum and to issue an order allowing Hartman’s

counsel to review the remainder of the relevant portions of the audio recording.

The writ will issue only if the trial court fails to comply with these instructions.




      2
       In our view, the prosecutor should have requested that the court reporter
allow him to review the recording upon learning that Hartman was claiming that it
contained relevant evidence. Under the Code of Criminal Procedure, the “primary
duty of all prosecuting attorneys, including any special prosecutors, [is] not to
convict, but to see that justice is done.” Tex. Code of Crim. Proc. Ann. art. 2.01
(West 2005).
                                           7
      WRIT CONDITIONALLY GRANTED.



                                              ___________________________
                                                   STEVE McKEITHEN
                                                       Chief Justice

Submitted on January 29, 2014
Opinion Delivered April 16, 2014
Publish

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




                                       8
                             DISSENTING OPINION

      I agree that some of the statements on the remainder of the audio recording

are “relevant.”3 And, depending upon the scope and content of the testimony of the

witnesses and evidence at trial, one or more of those statements may be

exculpatory or impeachment evidence in the trial because the excluded portion of

the audio recording appears to specifically contain conversations between one or

more witnesses about the underlying alleged Hartman incident. But, I cannot agree

with the majority regarding its result because the facts simply are not ripe for

mandamus review at this time. Additionally, it is premature to enter a ruling, at this

stage, regarding the “exculpatory” nature of the remaining portion of the audio

recording because we do not yet know what the evidence will be and if such

statements will indeed be admissible and material to the defense.

      The record indicates the trial court conducted an in-camera inspection of the

audio recording; therefore, the trial court now has an ongoing obligation to release

the evidence if the information becomes “material to the fairness of the trial” at


      3
       Relevant evidence is any evidence that has a “tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” Tex. R. Evid.
401. A limited portion of the excluded audio recording specifically contains oral
statements by court personnel about the alleged Hartman incident, and the
statements are therefore “relevant.”

                                          9
any time during the proceeding. Pennsylvania v. Ritchie, 480 U.S. 39, 60 (1987).

Furthermore, if the individuals that are speaking on the audio recording testify at

trial, the defendant may then request a copy of any recorded or written statement of

that witness in accordance with Texas Rule of Evidence 615. See Tex. R. Evid.

615. The State will also have an ongoing obligation 4 to comply with Brady v.

Maryland, 373 U.S. 83 (1963), and produce exculpatory evidence (which also

includes impeachment evidence) at a meaningful time. The State bears the risk of

having the conviction set aside on appeal if the defendant is convicted at trial for

the alleged offense, and the non-disclosed audio recording is not produced and it is

later determined to have been a Brady violation. To establish a claim under Brady,

the defendant must demonstrate that: 1) the State failed to disclose evidence,

regardless of the prosecutor’s good or bad faith; 2) the withheld evidence is

favorable to the defendant; 3) the evidence is material to the guilt or punishment,

which means that there is a reasonable probability that had the evidence been

disclosed, the outcome of the trial would have been different; and 4) the evidence

is admissible. Ex parte Miles, 359 S.W.3d 647, 665-70 (Tex. Crim. App. 2012).

For Brady purposes, evidence is “material” if there is a probability that it

      4
         The State has an affirmative and ongoing obligation to disclose evidence
that is favorable to an accused and material to his guilt or punishment. See Brady v.
Maryland, 373 U.S. 83, 87-88 (1963).
                                         10
sufficiently “‘undermines confidence in the outcome of the trial.’” Id. at 666

(quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)).

      Therefore, even if the trial court’s rulings are in error, I cannot agree with

the majority opinion which concludes that the trial court’s pretrial discovery ruling

was purely “ministerial.” The record lacks sufficient detail for me to make the

determination as to whether or not the remainder of the audio recording

indisputably contains “favorable evidence” that would be “material.” Furthermore,

under the applicable two prong mandamus standard, this Court should not, at this

time and in the context of the mandamus record before us, order the trial court to

“vacate its order of March 4, 2014. . . and to issue an order allowing Hartman’s

counsel to review the remainder of the relevant portions of the audio recording.”

See Majority at p. 7.

      In Dickens v. Court of Appeals for the Second Supreme Judicial Dist., 727

S.W.2d 542, 551 (Tex. Crim. App. 1987), the Court of Criminal Appeals

explained:

      We have acknowledged the important purposes of pretrial discovery,
      “such as the reduction of surprise and the insurance of a fair trial.”
      Quinones [v. State, 592 S.W.2d 933, 940 (Tex. Crim. App. 1980)].
      We have also observed that the better practice is for the State to allow
      broad discovery. Id. However, a writ of mandamus should not be used
      to effectuate that purpose. If this Court allowed mandamus to be
      substituted for appellate review in discovery situations, the trial of
      cases would be slowed to a crawl, and eventually, mandamus would
                                         11
      be substituted for the appellate process in all pretrial matters.

The Dickens court concluded that the ruling of the trial court was “a discretionary

act of a trial judge reviewable only on appeal and, therefore, not a proper subject of

a writ of mandamus.” Dickens, 727 S.W.2d at 544, 553; see also In re Carroll, No.

09-12-00343-CR, 2012 Tex. App. LEXIS 7787 (Tex. App.—Beaumont Sept. 12,

2012, orig. proceeding) (mem. op., not designated for publication) (Although the

defendant argued the trial court had no discretion to deny the State’s production of

a video recording, the court of appeals cited Dickens and held that the defendant

had “not shown that direct appeal would be an inadequate remedy” especially in

light of the fact that the State and the defendant had a discovery agreement.);

Vanwinkle v. State, No. 02-09-00200-CR, 2010 Tex. App. LEXIS 8686 (Tex.

App.—Fort Worth Oct. 28, 2010, pet. ref’d) (mem. op., not designated for

publication) (The trial court did not abuse its discretion in denying a request to take

a deposition of a non-party for the purpose of obtaining the person’s fingerprints.);

In re Sanchez, 268 S.W.3d 680 (Tex. App.—Corpus Christi 2008, orig.

proceeding) (The trial court’s decision to deny a defendant’s pretrial discovery

request was not reviewable by mandamus even though the defendant argued the

discovery related to exculpatory evidence.). Compare In re State ex rel. Weeks,

391 S.W.3d 117, 122, 126 (Tex. Crim. App. 2013) (orig. proceeding) (The Court

                                          12
of Criminal Appeals granted mandamus relief to the State to compel the trial court

to submit a jury instruction.); Ex parte Miles, 359 S.W.3d at 665-670 (In a post-

conviction habeas proceeding, the Court of Criminal Appeals held that the State’s

failure to produce two undisclosed reports that established possible identities of

other potential suspects and contained favorable evidence material to the defense

violated the defendant’s constitutional right as expressed in Brady.); In re Tharp,

No. 03-12-00400-CV, 2012 Tex. App. LEXIS 6698 (Tex. App.—Austin Aug. 9,

2012, orig. proceeding) (mem. op.) (Trial court’s discovery order in a criminal case

required production of “all records [and] documents” and exceeded the scope and

range of items the State may be compelled to produce under art. 39.14 of the Texas

Code of Criminal Procedure.).

      Mandamus relief is only appropriate in a criminal proceeding when the

relator sufficiently demonstrates he has no adequate remedy at law and the act

sought is purely “ministerial” (i.e. he has a clear right to the relief sought). Weeks,

391 S.W.3d at 122. Based on the record before us at this time, I conclude neither

prong of the mandamus standard has been met. Accordingly, I respectfully dissent.

                                                     _________________________
                                                          LEANNE JOHNSON
                                                               Justice

Dissent Delivered
April 16, 2014
                                          13
