                                Fourth Court of Appeals
                                       San Antonio, Texas
                                  MEMORANDUM OPINION

                                          No. 04-17-00198-CR

                                         The STATE of Texas,
                                              Appellant

                                                    v.

                                             Primo TARIN,
                                                Appellee

                      From the County Court at Law No. 5, Bexar County, Texas
                                      Trial Court No. 500563
                             Honorable John Longoria, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Rebeca C. Martinez, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: August 15, 2018

AFFIRMED

           In this interlocutory appeal, the State appeals from the trial court’s order suppressing “all

evidence regarding the blood draw.” The State argues the trial court erred in suppressing blood-

alcohol test results for the State’s alleged violation of a discovery order in the absence of evidence

that the prosecution acted with the specific intent to willfully disobey the discovery order. On May

2, 2018, we issued an opinion in this appeal. See State v. Tarin, No. 04-17-00198-CR, 2018 WL

2024629 (Tex. App.—San Antonio May 2, 2018, order) (not designated for publication). We

explained that the trial court suppressed the blood-alcohol test results because the State had not
                                                                                       04-17-00198-CR


complied with trial court’s discovery order, and the State had failed to comply with the

requirements enunciated under Brady v. Maryland, 373 U.S. 83 (1963). See Tarin, 2018 WL

2024629, at *6. In our opinion, we explained why the trial court erred in suppressing the evidence

pursuant to a Brady violation. See id. Thus, we turned to whether the trial court erred in suppressing

the blood evidence because the State had failed to comply with the discovery order. See id. at *7.

We concluded that the trial court’s findings did not include essential facts necessary to resolve the

legal questions raised on appeal. Id. Thus, we abated the appeal and remanded the cause to the trial

court so that it could make essential findings necessary to resolve the legal issues raised on appeal.

On June 1, 2018, the trial court filed supplemental findings. We then reinstated this appeal so that

we could determine whether the trial court erred in suppressing the blood evidence for failure of

the State to comply with the discovery order.

                                           BACKGROUND

       The record reflects that on September 24, 2015, Primo Tarin was charged by information

with the misdemeanor offenses of driving while intoxicated and obstructing a highway. On

September 29, 2015, Tarin filed a Motion for Discovery, Production, and Inspection of Evidence.

On June 10, 2016, the trial court granted Tarin’s motion in part, but denied his request for

information relating to “blood, hair, and threads, etc.,” with the notation that Tarin should file the

“standard discovery order.”

       On June 20, 2016, Tarin filed the Standing Discovery Order on Copying and Production

of Blood Testing Records. The trial court signed the order that same day. In the order, the trial

court ordered “the District Attorney’s Office and its agent, the forensic laboratory that analyzed

the Defendant’s blood in the case, specifically, Bexar County Medical Examiner’s Office, . . . to

digitally copy and digitally produce” a list of certain items, including information and documents

relating to the testing of Tarin’s blood. The order requires “any evidence within the scope of the
                                                 -2-
                                                                                       04-17-00198-CR


items granted above be provided by the State to the Defendant’s attorney’s office on or before 5:00

p.m. on the 60th day after this order is signed, or otherwise by mutual agreement.” The order

further states that it “is continuing and the State will immediately make available to the

Defendant’s attorney any subsequent discoverable matter within the scope of the above granted

items within 48 hours of the time it learns of or obtains such discoverable matter.” Further, the

order mandated that pursuant to Brady v. Maryland, 373 U.S. 83 (1963), “all evidence favorable

to the Defendant . . . be produced.” Additionally, the order stated that pursuant to Rule 3.09(d) of

the Texas Disciplinary Rules of Professional Conduct, “evidence that tends to negate guilt or

mitigate the offense shall be disclosed” to Tarin. The court ordered any such evidence “to be

produced on or before 5:00 p.m. on the day of its discovery or by agreement.” The order stated

that “any items herein not produced in violation of this order shall be and are excluded from

evidence in this case if offered by the State.” Finally, according to the order, “testimony concerning

the items not produced in violation of this order, the information contained in those items, and the

results obtained from those items shall be and are excluded from evidence in this case if offered

by the State.”

       On December 7, 2016, over a year after Tarin was first charged, the case was reset again

for March 10, 2017. On March 10, 2017, the trial court heard preliminary matters. Defense counsel

reminded the trial court that it had signed “a standing discovery order on copying a production of

blood testing records.” Defense counsel emphasized that pursuant to that order, he should have

received the items listed in the discovery order by August 2016. According to defense counsel, he

had only been provided with results of blood testing that day:

       Now, the State has said that they e-mailed [the blood test results] and uploaded it
       to eDiscovery. I can tell you that I pulled everything from eDiscovery that was
       available to me at four in the morning today, and there was no blood result there. I
       do not have a copy of the e-mail in our e-mail and we cannot find it. I have in the
       past received e-mails from the State but regardless of when this last-minute
                                                 -3-
                                                                                     04-17-00198-CR


       discovery was provided to us, it is well outside August of 2016 and so we want this
       order enforced and we want all of the information related to the blood excluded,
       which is also one of the terms of this order. On the last page, it says the Court
       further orders that any items herein not produced in violation of this order shall be
       and are excluded from evidence in this case if offered by the State.

       Three prosecutors argued on behalf of the State. First, they explained that the trial court’s

order directed the Bexar County Medical Examiner’s Office to provide blood discovery; however,

in this case, the blood was not tested by the Bexar County Medical Examiner’s Office, but by the

Department of Public Safety (“DPS”). Thus, they argued the discovery order did not apply to DPS.

Second, they emphasized that the order asked for results from tests already completed. According

to the prosecutors, in this case, DPS received the blood sample to be tested on February 9, 2017,

and the results were issued March 6, 2017, just four days before the hearing. Thus, the prosecutors

argued that even if the trial court’s order applied to DPS, DPS did not violate the order because

when the trial court signed the standing discovery order, DPS had not received the blood sample

and had not tested it. According to the prosecutors, there was nothing for DPS to produce and no

violation of the order. Finally, one of the prosecutors explained that she personally received the

results from DPS by email on Thursday, March 9, 2017, at 2:38 p.m. and forwarded the results to

defense counsel’s email at 2:41 p.m. that same day. Thus, she argued the blood test results were

timely produced under the discovery order.

       The trial court then asked this prosecutor when she had become aware that the sample in

this case had not been tested. The prosecutor replied,

       I personally became aware of it when I was looking through the file and I didn’t
       see one in the file. But I – as I understand it, prior prosecutors have tried to track
       down the blood and get it tested and we were just able to successfully do it, get it
       over to DPS and have it tested.

The trial court again asked when the blood sample had been received by DPS and was again told

February 9, 2017.


                                                -4-
                                                                                     04-17-00198-CR


       Defense counsel then stated, “So the blood’s just been wandering around for over a year,

and it didn’t apparently –or maybe it did, I don’t know, go to the agency that the State told us it

went to . . . .” Defense counsel emphasized that the State provided him with forms in discovery

that represented the blood sample had been sent to the Bexar County Medical Examiner’s Office.

Defense counsel explained this representation by the State was the reason the standing order had

been directed to the Bexar County Medical Examiner’s Office. Indeed, Defendant’s Exhibit 1,

which was admitted in evidence, is a “Specimen Routing Report.” The report reflects that Tarin’s

blood was drawn on September 14, 2015 at 1:36 a.m. at the San Antonio Magistration and

Detention Facility. The report further reflects that the Bexar County District Attorney’s Office is

the entity submitting the specimen to the lab and that the blood specimen is being submitted “in

person” to the Bexar County Medical Examiner’s Office.

       The trial court then asked the same prosecutor whether she disputed the facts in the

Specimen Routing Report. The prosecutor replied, “Judge, I don’t dispute that. It was—the time

of this offense was when this office stopped using IFL as their contract laboratory. We were

sending some samples over to BCME.” The trial court then stated,

       [Defense counsel] receives a document from the State upon which he is legitimately
       depending. All right. So I can see what the problem was. I will say for the record
       that the current assistant district attorneys in this courtroom, I do not hold
       responsible as individuals and as attorneys. I’m saying the record’s kind of
       speaking for itself at this point.

(emphasis added).

       A third prosecutor then addressed the court:

       Judge . . . I would like to make an argument to the Court, if you would. We won’t
       dispute the paperwork in the file did say that the specimen was being routed to the
       BCME lab. However, the fact – you know, what lab it eventually went to is not
       really an issue. What we’re looking at is whether you should suppress the evidence
       based on our failure to comply with the discovery order, right? And in this situation,
       the discovery order signed was impossible; it was ineffective because it was –


                                                -5-
                                                                                        04-17-00198-CR


       whoever’s fault it was, he didn’t know the right lab. The discovery order just wasn’t
       effective because the evidence didn’t exist.

       The trial judge replied that his concern was the eighteen-month delay in this case. “The

testing should have been done way before now, not just in February of 2017.” The trial judge

reiterated that he did not blame the three prosecutors standing before him. However, he expressed

great concern over the delay in this case:

       [A]t this point, the way I see it [the delay] was a failure of the Office of the District
       Attorney in Bexar County. I’m not here to fix blame or anything. What I’m seeing
       is somebody dropped the ball. So then does the defense have the right to rely on the
       order that was properly rendered? That order was signed back in . . . June [2016].
       That should have put somebody on notice that, hey, we’ve got to look at this. Like
       [the prosecutor] did back in February [2017], [she] checked out and [found] out,
       hey, this hasn’t been done, but that obligation existed months ago . . . .

       One of the prosecutors disagreed with the trial court’s assertion that “there was an

obligation anywhere for the State to do one particular thing with its evidence.” The prosecutor

claimed the issue of whether the specimen was sent to a lab in a timely manner is one for the jury.

But, the prosecutor emphasized that at the time the discovery order was signed, “the evidence did

not exist.” The trial judge responded, “The evidence existed but it had not been tested.” The trial

judge explained he was referring to “the requirement for diligence in testing [the blood sample]

and providing that as evidence.” Defense counsel then stated,

       The blood draw was effected on September 14, 2015. The reason we approached in
       June of 2016 [was] because we still didn’t have a blood result. So when this
       [discovery order] was signed, it was fully understood by everybody that the reason
       we were requesting these deadlines be set [was] because there had already been an
       unreasonable delay in providing this discovery to the defense, and we didn’t want
       to be sandbagged at a hearing or at trial with last-minute production of blood
       evidence. Because the State was just telling us throughout this case we don’t know
       where [the blood specimen] is. And that answer was the same answer I got earlier
       this week and changed as far as I personally was aware of it this morning. So the
       order was signed with the understanding that we’re trying to prevent exactly what
       is occurring now. They had not just from June to comply with your order and to be
       on notice, they were put on notice in June of 2016 because they had blood from
       September of 2015 and hadn’t done anything with it.


                                                 -6-
                                                                                      04-17-00198-CR


       The State responded that there was no obligation on the part of the State to test a blood

sample: “Every blood sample that’s taken in this county, there are two vials taken. The reason that

we have two vials is the defense has the ability to test one of those vials.” Defense counsel replied

that he had not known where the blood sample was located:

       We were told that the blood was missing and they did not know where it was. We
       were told initially that it was at the Bexar County ME’s office. That’s where it had
       been sent. . . . Nobody knew what happened to it and we produced this order
       because that was the only place that anybody knew the blood had ever been sent.

According to defense counsel, it was only the day of the suppression hearing that he had been

made aware of the blood samples’ actual location.

       The trial court then suppressed the blood evidence:

       I am going to suppress this evidence based on the violation of the standard order,
       based on the fact that the defense was led to believe that the Bexar County Medical
       Examiner’s Office was the source or had the location of the testing material, based
       on the fact that there was a deadline clearly expressed in the order. I know that the
       prosecutors before me at this time had no knowledge of it and were not complicit
       in the fact that [defense counsel] was denied access to this material until today. I
       observed that [defense counsel] crossed his Ts and dotted his Is on it and I think
       your predecessors left you in the lurch, State. I know it’s not in your character to
       ignore things; you’ve been working hard. I appreciate you. Nonetheless, I’m
       suppressing this evidence in this case.

                               VIOLATION OF DISCOVERY ORDER

       On appeal, the State argues the trial court erred in suppressing the blood evidence based on

a violation of the discovery order because (1) any duty owed by the State under the order was not

applicable until DPS created the report showing the blood-alcohol results; and (2) there is no

evidence the State willfully violated the discovery order.

       The State first argues the discovery order was not applicable until DPS produced the report.

According to the State, “[w]hen the order was signed, no such documents or records existed

because the blood had not been tested.” We find this argument unpersuasive. The blood samples

did exist at the time the discovery order was signed, and the discovery order makes clear that all
                                                -7-
                                                                                          04-17-00198-CR


discovery was to be completed within sixty days of the order. Under the State’s reasoning, it could

intentionally wait to send evidence to a lab and then produce such evidence on the eve of trial and

not be in violation of the discovery order. This is clearly not the intent of the discovery order. The

State further argues that the “trial court does not have the authority to order the State to create a

document that does not currently exiss.” See In re Stormer, No. WR-66,865-01, 2007 WL

1783853, at *2 (Tex. Crim. App. 2007) (not designated for publication) (“The trial court does not

have authority under article 39.14 [of the Texas Code of Criminal Procedure] to order the State to

create a document that it does not already have.”). Here, however, the trial court was not ordering

the State to create a document. The State did not have to cause the blood sample to be sent to DPS.

However, pursuant to the discovery order, if the State wanted to introduce results related to testing

on the blood sample at trial, then it did need to timely send the blood sample to DPS. See In re

Stormer, 2007 WL 1783853, at *2 n.1 (“Other statutes or rules may, of course, require the State to

create a written response to a timely request for notice if it intends to offer certain evidence trial.”).

The record here reflects that the blood sample was not sent to DPS until 234 days after the trial

court signed the discovery order. We therefore conclude the discovery order is applicable.

        Second, the State argues there is no evidence to support the trial court’s finding that it acted

willfully. The court of criminal appeals has explained that “evidence willfully withheld from

disclosure under a discovery order should be excluded from evidence[.]” Francis v. State, 428

S.W.3d 850, 854-55 (Tex. Crim. App. 2014) (quoting Hollowell v. State, 571 S.W.2d 179, 180

(Tex. Crim. App. 1978)). However, “[b]ecause exclusion of evidence in this context is in the nature

of a court-fashioned sanction for prosecutorial misconduct, whether the trial court should exclude

evidence on this basis has been made to hinge on ‘whether the prosecutor acted with the specific

intent to willfully disobey the discovery order[.]’” Id. at 855 (quoting Oprean v. State, 201 S.W.3d

724, 727 (Tex. Crim. App. 2006)). “Extreme negligence or even recklessness on the prosecutor’s
                                                   -8-
                                                                                     04-17-00198-CR


part in failing to comply with a discovery order will not, standing alone, justify the sanction of

excluding relevant evidence.” Id.; see also State v. LaRue, 152 S.W.3d 95, 97, 99-100 (Tex. Crim.

App. 2004) (holding that although the prosecutor “may have been extremely negligent or even

reckless with respect to the result of his actions,” the evidence in the record did not show willful

conduct on part of the State).

       “An appellate court must review a trial court’s ruling to exclude evidence for willful

prosecutorial defiance of a discovery order under an abuse-of-discretion standard, deferring to any

trial-level ruling that falls within the zone of reasonable disagreement.” Id. The court of criminal

appeals has explained that it has “adopted a similar appellate posture in this context to that which

[it has] applied to review pre-trial motions to suppress evidence.” Id. “An appellate court must pay

absolute deference to the trial court’s findings of fact based on determinations of credibility or

demeanor.” Id.

       The trial court’s initial findings are detailed in our original opinion. See Tarin, 2018 WL

2024629, at *4-5. In its supplemental findings, the trial court found that the Bexar County District

Attorney’s Office acted willfully in not contacting the Department of Public Safety or the Bexar

County Medical Examiner’s Office, which in turn resulted in the blood specimen not being tested

in a timely fashion. Evidence in the record reflects that (1) Tarin’s blood sample was taken on

September 14, 2015, (2) the blood sample was placed in the “Evidence Lockbox” of the San

Antonio Magistration & Detention Facility; and (3) the blood sample was going to be submitted

to “Bexar County Medical Examiner’s Office” by the Bexar County District Attorney’s Office.

However, the record reflects that the Bexar County District Attorney’s Office never sent the blood

sample to the Bexar County Medical Examiner’s Office. It was not until February 9, 2017, that

DPS received the blood specimen as a result of a Bexar County Assistant District Attorney finally

causing the sample to be sent to the lab. And, it was not until March 6, 2017, just four days before
                                                -9-
                                                                                       04-17-00198-CR


the hearing, that defense counsel was finally informed by the Bexar County Assistant District

Attorney that DPS had issued results relating to the blood sample.

       In its findings, the trial court emphasizes the delay and gap of 514 days between the time

in which Tarin’s blood was drawn and the date it was tested by DPS. The trial court also

emphasizes the “gap of approximately 234 days between the granting of the order on June 20,

2016 and the time the blood was sent to [DPS] for testing on February 9, 2017.” The trial court

further points to the “gap of approximately 262 days between the granting of the order on June 20,

2016 and the time the results were purported to have been received and forwarded by the Bexar

County District Attorney’s Office.” In its findings, the trial court stressed that all of the assistant

district attorneys of the Bexar County District Attorney’s Office serve as agents for and

representatives of the Bexar County District Attorney’s Office and that it is the obligation of the

entire office to ensure compliance with the court’s order. The trial court found that the Bexar

County District Attorney’s Office “makes a deliberate choice as to what evidence to sponsor” and

that “the failure to pursue the location of the blood and to secure the results in a timely manner

was therefore willful.” According to the trial court, the Bexar County District Attorney’s Office

“was willful in its decision not to contact the Department of Public Safety or the Bexar County

Medical Examiner’s Office and enforce the need to comply with the court’s order.”

       The trial court also noted the Bexar County District Attorney’s Office had provided no

explanation for the substantial “gaps” referred to above. According to the trial court, the Bexar

County District Attorney’s Office had not offered any explanation “as to any efforts taken to ensure

compliance with the discovery order,” any “attempts to locate the blood evidence in this case,” or

any “explanation as to its location in the time frame in which the blood was missing.” The trial

court stressed the office did not offer any evidence “to show any effort to comply with the court’s

order and/or deadline for production of items in compliance with the court’s order.”
                                                 - 10 -
                                                                                      04-17-00198-CR


       In considering this record, we conclude the trial court could reasonably infer from the

evidence that the Bexar County District Attorney Office willfully violated the discovery order.

The record reflects (1) a gap of 514 days between the time in which Tarin’s blood was drawn and

the date it was tested by DPS; (2) a gap of 234 days between the trial court’s signing of the

discovery order and the time Tarin’s blood was sent to DPS; and (3) a gap of 262 days between

the trial court’s signing of the discovery order and the time the blood-alcohol results were

forwarded by the Bexar County District Attorney’s Office to defense counsel. Further, the record

reflects that defense counsel was given a Specimen Routing Report showing that the blood sample

was placed in the “Evidence Lockbox” of the San Antonio Magistration & Detention Facility and

that the Bexar County District Attorney’s Office was going to be submitting it to the Bexar County

Medical Examiner’s Office. It is undisputed that the Bexar County District Attorney’s Office never

submitted a blood sample to the Bexar County Medical Examiner’s Office and instead represented

to defense counsel that the blood samples were “missing.” It is also undisputed that even though

the blood samples were “missing,” one of the Assistant District Attorneys assigned to the case was

able to review the file before the suppression hearing, realize a blood-alcohol result was not in the

file, and quickly track down Tarin’s blood sample and have it sent to DPS. From this evidence, the

trial court could reasonably infer willful conduct on the part of the Bexar County District

Attorney’s Office. Therefore, we hold the trial court did not abuse its discretion in suppressing the

blood evidence.

       We affirm the trial court’s Order Suppressing Blood Evidence.


                                                   Karen Angelini, Justice

Do not publish




                                                - 11 -
