                                                                          WR-80,923-02
                                                            COURT OF CRIMINAL APPEALS
                                                                            AUSTIN, TEXAS
                                                          Transmitted 4/21/2015 10:49:03 AM
                                                            Accepted 4/21/2015 11:20:35 AM
               IN THE COURT OF CRIMINAL APPEALS                              ABEL ACOSTA
                                                                                     CLERK
                         AUSTIN, TEXAS
                                                              RECEIVED
                                                       COURT OF CRIMINAL APPEALS
                                                              4/21/2015
                                )     Cause No.          ABEL ACOSTA, CLERK
In re                           )     w0e-0040e-Y(A)
Roderick Harris,                )
            RELATOR             )
                                )
                                )


        EMERGENCY APPLICATIOI\ FOR WRIT OF PROHIBITION;
                   REQUEST FOR INJUNCTIOI{

                         This is a Capital Case
                   Evidentiary Hearing: May 18,2015


                             BRAD D. LEVENSON (No. 240734rt)
                             Director, Offrce of Capital Writs
                             (E-Mail : Brad.Levenson@ocw.texas. gov)
                             ROBERT ROMIG (No. 240605 17)
                             (E-Mail: Robert.Romig@ocw.texas.gov)
                             JEREMY SCHEPERS (No. 24084578)
                             (E-Mail : Jeremy.Schepers@ocw.texas.gov)
                             Post-Conviction Attorneys
                             Office of Capital Writs
                             1700 North Congress Avenue, Suite 460
                             Austin, Texas 7870I
                             (st2) 463-8600
                             (s12) 463-8se0 (fax)

                             Attorneys for Relator
                  IDENTITY OF PARTIES AND COUNSEL

Relator
Roderick Harris
TDCJ # 99957 7
TDCJ Polunsþ [Jnit
3872 FM 350 South
Livingston, Texas 7735 |

Attorneys for Relator
Office of Capital Writs
Brad D. Levenson
Robert Romig
Jeremy Schepers
1700 North Congress Avenue
Suite 460
Austin, Texas 78701

Respondent
Honorabl e Elizab eth Frizel I
Judge, Criminal District Court No. 7
Frank Crowley Courts Building
133 N. Riverfront Boulevard
Lock Box 54
Dallas, TX 75207

Real Parties in Interest
Dallas County District Attorney's Office
Shelly Yeatts
Frank Crowley Courts Building
133 N. Riverfront Boulevard
Lock Box 19
Dallas, TX 7 5207




                                           1t
                              TABLE OF'CONTENTS

APPLICATION FOR WRIT OF' PROHIBITION                                          1



STATEMENT OF THE CASE                                                         1


                                                                              a
STATEMENT OF JURISDICTION..........                                           J


ISSUES PRESENTED                                                              4

STATEME,NT OF FACTS                                                           4

ARGUMENT                                                                      5


  A.   Standard of Review                                                     5


  B. Harris Has a Clear Right to Relief, as the State Has No Right Under Texas
  Law to Demand Discovery of a Defendant's Trial File Through Post-
  Conviction Counsel ..............                                      ......6

  C. Harris Has No Other Adequate Remedy at Law Other Than Seeking This
  Writ of Prohibition                                           ..........8

PRAYER FOR RELIEF                                                             9

EXHIBITS
     Exhibit A:     Trial Court Order
     Exhibit B:     State's Motion for Disclosure of Trial File
     Exhibit C:     Harris's Response to State's Motion




                                          111
                          TABLE OF AUTHORITIES

State Cases
Aranda v. District Clerk,207 S.W.3d 785 (Tex. Crim. App. 2006)....           7
Arbelaez v. State,775 So.2d 909 (Fla. 2000)                                  7
Coffee v. Wainwright, 172 So.2d 851 (Fla. Dist. Ct. App. 1965)               7
                                                                             a
Ex parte Davts,947 S.W.zd216 (Tex. Crim. App. 1996)......                    J
                                                                             a
Ex parte Moreno,245 S.\M.3d 419 (Tex. Crim. App. 2008)                       J
                                                                             a
Ex parte Reed,271 S.W.3d 698 (Tex. Crim. App. 2008)                          J
In re McCann,422 S.W.3d 701 (Tex. Crim. App. 2013)                    4,5,   8
Neveuv. Culver, 105 S.W.3d 641 (Tex. Crim. App. 2003).                    6
Simonv. Levario, 306 S.W.3d 318 (Tex. Crim. App. 2009)                  5 6
State ex rel. Wade v. Mays,689 S.W.2d 893 (Tex. Crim. App. 1985)             5
 l4/est v. solito,563 S.W.zd240 (Tex. 1978)                                  6

Statutes
Texas Constitution, Art. V., $5                                              -J
Other Authority
ABA, Standing Comm. on Ethics & Prof'l Responsíbilíty, Formal Opinion 10-456
                                                                             7




                                        1V
                  APPLICATION FOR WRIT OF PROHIBITION;
                              REQUEST FOR INJUCTION
        Relator Roderick Harris ("Harris") has been ordered by Judge Elizabeth
Frizell, presiding judge of the Criminal District Court No. 7 in Dallas County, to
turn over the files belonging to his trial defense counsel to the Dallas County
District Attorney's Office (the "State") before May 18, 2015. (Ex. A [Trial Court
Order].) Harris, through his attorneys the Office of Capital Writs ("OCW"),
requests this Court issue an emergency stay of Judge Frizell's order anda writ of
prohibition instructing Judge Frizell to withdraw that order.
        Harris is currently pursuing relief from a capttal conviction and sentence of
death, having filed an application for writ of habeas corpus within the meaning       of
Article      11.071   of the Code of Criminal Procedure. Harris has raised claims of
ineffective assistance of trial counsel as grounds for that relief. The State filed an
answer and the convicting court ordered an evidentiary hearing, which is scheduled

to commence May 18,2015. Upon a motion by the State, the convicting court
ordered the OCW to make available defense counsel's files to the State prior to the

commencement of the hearing. As there is no justification under Texas law for
post-conviction counsel to have to provide the State with such broad discovery,
and because Harris has no other adequate remedy at Iaw, a       writ of prohibition   is

necessary.

                                             I.
                              STATEMENT OF THE CASE
        Harris was convicted and sentenced to death in Criminal District Court No. 7
in Dallas County on May 21,2012. (66 RR at 107;2 CR at709.)1 Pursuant to the
Code of Criminal Procedure, Article 11.071, Section 2(b), the convicting court

I   <cçprr
       refers to the Clerk's Record of Harris's capital     trial. ((RR" refers to the
Reporter's Record of Harris's capital trial.
                                             1
appointed the OCW on }i4ay 22, 2012,             to   represent Harris   in his state post-
conviction habeas litigation. On June       Il,   2014, the OCW timely filed Harris's
Initial Application for Writ of Habeas Corpus ("Application"). The State filed its
Answer to Harris's Application on December 10, 2014. On February 6,2015, the
convicting court set Harris's Application for an evidentiary hearing, to occur the
week of May 18, 2015.
      On March 17,2015, the State filed a Motion for Disclosure of Roderick
Harris's Trial Files. (Ex. B at 1 fState's Motion].) In that motion, the State sought
an order requiring the OCW to disclose any portions of Harris's trial file
potentially related to claims of ineffective assistance of counsel. The State argued
that it "is entitled to access to counsel's actual trial ftles" because by raising claims
of ineffective    assistance   of   counsel, Harris has waived privileges normally
applicable to those files. (Id. at 10.) Haris responded, disputing that he should be
required to provide the State with Harris's       files.   Rather, Harris argued that the

files would be returned to trial counsel and it was trial counsel who would decide
which otherwise privileged material they would choose to disclose in defending
their own actions. (Ex. C at 2 lHarcis's Response].) Oral argument on the State's
motion was held onWarch26.2
       On   April 10,2015, the convicting court, Judge ElizabethFrizell presiding,
granted the State's motion, ordering the OCW to disclose Harris's trial f,rle to the

State. (E*.      A at 1 fTrial Court Order].) Judge Frizell's order limited this
disclosure only    to materials relevant to the claims of ineffective         assistance   of
counsel. (/d.)
       This Emergency Application to Prohibit follows.


2
 Despite numerous attempts, the court reporter has not yet transcribed the
March 26 oral argument. Once the transcript is prepared, Harris will file it with the
Court.
                                             2
                                          II.
                       STATEMENT OF JURISDICTION
       This Court has original jurisdiction over certain writs of habeas corpus and
extraordinary writs. That jurisdiction, including over applications filed pursuant to
Article I1.071, stems from Article V of the Texas Constitution. Article V, section
5 states:

       Subject to such regulations as may be prescribed by law, the Court of
       Criminal Appeals and the Judges thereof shall have the power to issue
       the writ of habeas corpus, and, in criminal law matters, the writs of
       mandamus, procedendo, prohibition, and certiorari. The Court and
       the Judges thereof shall have the power to issue such other writs as
       may be necessary to protect its jurisdiction or enforce its judgments.
       The Court shall have the power upon affidavit or otherwise to
       ascertain such matters of fact as may be necessary to the exercise of
       its jurisdiction.

Tsx. CoNst., Art. V., $5. Since the Legislature enacted Article 11.071 in 1995, the
Court has interpreted that statutory provision as being a "how, where, and when"
type restriction on their exercise of original jurisdiction over habeas writs related to
capital cases. See Ex parte Døvís,947 S.W.2d216,223 (Tex. Crim. App. 1996)
(McCormick, J., concurring) (.'[T]he Legislature clearly has intended for Article
ll.07l to provide the exclusive means by which this Court may exercise its
original habeas corpus jurisdiction in death penalty cases.").
       However, the Court's jurisdiction over Article 11.071 applications continues
to be "original" in this Court, and its inherent power over the application not
circumscribed. See Ex parte Reed,271 S.W.3d 698, 754 (Tex. Crim. App. 2008)
(Price, J., concuning) ("Because this Court lacks the capacity to develop live
testimony,   it is a matter of convenience      only that such writs are hled in     the

convicting court in the first instance; original jurisdiction to resolve the matter lies
with this Court."); Ex parte Moreno,245 S.W.3d 419,427 (Tex. Crim. App. 2008)

                                           J
("\Me find no language in the balance of Article 11.071 that either allows or
prohibits this Court's reconsideration of our initial disposition of a capital writ on
our own motion or expressly or implicitly prescribes temporal limitations on any
such reconsideration.").

      Therefore, because this Court maintains original jurisdiction over Article
11.071 applications for writs of habeas corpus, and because           it has jurisdiction   to
issue writs of prohibition, this Court may rule on the instant     Application. See In re
McCann, 422 S.\M.3d 701, 704 (Tex. Crim. App. 2013) (noting that "the
mandamus action was properly filed directly in this Court because this is a capital-

murder case in which the death penalty was assessed.").
                                            ilI.
                                ISSUES PRESENTED
      Whether, by alleging ineffective assistance of trial counsel, this creates             a

right for the State to     access   trial counsel's files through the defendant's      post-

conviction counsel.
                                            IV.
                              STATEMENT OF FACTS
      At trial, Harris was represented by Brad Lollar, Mike Howard, Doug Parks,
and Calvin Johnson. (2 RR at        5.) In Harris's Application,   he raises five claims    of
ineffective assistance of trial counsel.
      Upon being appointed to represent Harris, the OCW, with a release from
Harris, took possession of the files of Harris's trial counsel. Since the scheduling
of the evidentiary hearing on Harris's Application, the OCW has been in contact
with Harris's trial counsel and is arranging for counsel to have access to their files
prior to testiffing at the hearing.
       Around March 2015, the State, through Assistant District Attorney Shelly
Yeatts, requested access to Harris's trial   file. Harris declined.
                                              4
                                         V.
                                    ARGUMENT
      Harris recognizes that, by having raised specific issues              of ineffective
assistance   of counsel, he has created a limited waiver of privileged information
allowing trial counsel the opportunity to defend themselves from such claims
through the use     of   otherwise privileged information that would typically be
protected by the attorney-client privilege. However, raising such a claim does not

create a discovery mechanism for the State       to    access confidential information in

trial counsel's files through current post-conviction counsel. Further, the State has
not provided any binding authority for the proposition that the limited waiver
extends to   it, nor that such a claim amounts to an unprecedented broad discovery
tool. As such, the trial court erred in granting the State's motion, to the prejudice
of Harris.
   A. Standard of Review
      A writ of prohibition must meet the same standards essentially as a writ of
mandamus, the former being used        to "prevent the commission of a futurc act
whereas the latter operates to undo or nulli$r an act already performed." State ex

rel. Wade v. Mays,689 S.W.2d893,897 (Tex. Crim. App. 1985). To merit                 a   writ
of prohibition, an applicant must first show that the actit wishes the higher court to
restrict "does not involve a discretionary or judicial decision." Simon v. Levario,
306 S.W.3d 318,321 (Tex. Crim. App. 2009). This standard is satisfied                if   the

applicant can show he has a "çIeat right to the relief sought . . . when the facts and
circumstances dictate but one rational decision."        Id.   In In re McCann, this Court
granted mandamus relief during the pendency of a capital post-conviction habeas
proceeding, finding that a "clear right to   relief'   can be met even   if the issue is one
of first-impression. 422 S.W.3d at 704. The Court noted that it "may grant relief
in a mandamus case based on a well-settled, but rarely litigated point of law." Id.
                                             5
       Second, an applicant must show that there is no other adequate remedy at
law to redress his harm. Símon,306 S.W.3d at 320; see also Neveu v. Culver, 105
S.W.3d   64t, 643 (Tex. Crim. App. 2003) (finding no adequate           remedy at law
where there was no procedural mechanism to appeal an adverse ruling regarding
appointment of counsel).
   B. Harris Has a Clear Right to Relief, as the State Has No Right Under
      Texas Law to Demand I)iscovery of a Defendant's Trial FileThrough
       Post-Conviction Counsel
       The key dispute between Harris and the State is whether the raising of an
ineffective assistance of counsel claim bestows upon the State a discovery tool
giving them access to defense counsel's files. Harris maintains that the raising of
such   a claim solely permits trial counsel to use the otherwise              privileged

information to defend against ineffective assistance of counsel claims, but does not
give the State the same access. See West v. Solito,563 S.W.zd 240,245 n.3 (Tex.
1978). While trial counsel is placed in a position to be exempted from the
attorney-client privilege when defending their performance, nothing in Texas law
states that the underlying work product and other files      of counsel are no longer
confidential and are subject to discovery by the State. The State has failed to cite
any binding authority for the proposition that   it is "entitled" to access Harris's trial
files. (Ex. B at 10 fState's Motion],) Nowhere in the State's Motion is there            a

case, statute, or evidentiary rule referenced that allows the State the access to trial

counsel's files that it currently seeks.
       In its Motion, the State cites a long string of cases that stand for the
proposition that raising an ineffective assistance of counsel claim operates as          a

waiver of the attorney-client privilege, to the extent that trial counsel seeks to use
that information to defend themselves. (Ex. B at 3-6 [State's Motion].) Harris
does not dispute this   fact. However, none of these cases stand for the proposition

                                           6
that the State is entitled to access Harris's trial counsel files via post-conviction
counsel.3 This inability to provide binding authority is   telling-the   State seeks to

take a narrow and limited waiver allowing trial counsel the ability to defend
themselves against    an ineffective   assistance   of counsel claim into a broad
discovery tool for the State.
       Disclosure of the trial file to the State is inappropriate and unnecessary to
litigate the claims of ineffective assistance in the case. Trial counsel have stated
they   will testifli at the evidentiary   hearing and intend    to review the files
beforehand. Counsel can reasonably be expected to disclose the information they
believe necessary to defend their perfotmance at that hearing. See þlander           v.

State,   l0l S.W.3d 107, 111 (Tex. Crim. App. 2003) (noting that "trial counsel
should ordinarily be afforded an opportunity to explain his actions before being
denounced as ineffective"). Indeed, persuasive authority that has discussed this
topic seemingly presumes that this information will be in the possession of trial
counsel and disclosed by them. See ABA Standing Comm. on Ethics               & Prof'l
ResponsibíliQ, Formal Opinìon 10-456, at 5 (2010) (noting that while lawyers may
disclose information "reasonably necessary" to resolve ineffectiveness claims, it is



3
  The only case in the State's Motion that specifîcally contemplates the State being
permitted to access trial counsel's files is Arbelaez v. State, 775 So.2d 909,917
(Fla. 2000). However, this case is a poor analogy to the current scenario, as
Florida treats writs of habeas corpus as civil matters, whereas in Texas writs of
habeas corpus are considered criminal in nature. Compare Coffee v. Wainwright,
172 So.2d 851, 852 (Fla. Dist. Ct. App. 1965) (noting that "this type of proceeding
is civil and not criminal in nature."), with Aranda v, District Clerk,207 S.W.3d
785,786 (Tex. Crim. App. 2006) (noting that "the proceeding is criminal, not civil,
in nature.") (citing Ex parte Davis,542 S.W.2d 192, 198 (Tex. Crim. App. 1976).
Civil actions traditionally have much broader discovery rights than criminal
proceedings, limiting any persuasive force that Florida's provisions may have
regarding the State's request.
                                           7
"highly unlikely that a disclosure in response to a prosecution request, prior to                  a

court-supervised response by way of testimony or otherwise,           will   be justif,rable.").

      The State is not trial counsel's representative for the purpose of Harris's
current litigation. How trial counsel chooses to defend themselves from these
claims, and to what extent the limited waiver of privileged information                  will   be

effectuated, is a decision for trial counsel, not the State, to make. Further, the State
may rely on the record of trial and any other non-confidential materials that reflect
the performance of trial counsel. Finally, the burden is on Harris to prove
ineffective assistance of his trial counsel. To do so, he must provide information
about counsel's performance sufficient to overcome the presumption that counsel
acted effectively. See Goodspeed v. State,187 S.W.3d 390, 392 (Tex. Crim. App.

2005) ("A Strickland claim must be 'firmly founded in the record' and'the record
must affirmatively demonstrate' the meritorious nature of the claim."); Jackson                    v.

state, 877 S.W. 2d 7 68,   77   1 (T ex.   Crim. App. 199 4).
      For these reasons, the trial court erred in granting the State's motion and
creating a right to discovery where none exists under Texas            law. As such, Harris
has shown a clear right to relief under the law, necessitating a       writ of prohibition.
   C. Harris Has No Other Adequate Remedy at Law Other Than Seeking
      This Writ of Prohibition
       Should the trial court's order stand, Harris             will be required to disclose
Harris's trial file to the State. Because there will be no practical way to undo the
disclosure   of this information, later proceedings before this Court on Harris's
Application will be inadequate to redress the trial court's error. As such, Harris
can demonstrate there is no other adequate remedy at law to appeal the decision                    of
the trial court outside of this application for writ of prohibition. See In re McCann,

422 S.W.3d at 710-7ll ("Moreover, McCann has no adequate remedy at law
because, although McCann could seek relief from the order of contempt through an

                                                  8
application for writ of habeas corpus, that relief would not resolve the underlying
issue of the trial judge's order compelling McCann to relinquish Turner's trial
file.").
                                             VT.

                                 PRAYER FOR RELTEF
           For the foregoing reasons, Harris respectfully requests this Court issue a writ
of prohibition instructing the convicting court to withdraw its order requiring        the

disclosure of Harris's trial file to the State. Alternately, Harris requests this Court
issue a temporary order enjoining the convicting court from enforcing its order
until this Court has had time to rule on the instant Emergency Application.


                                                   Respectfully submitted,


DATED: April 21,2015                               B                Cè
                                                                             t
                                                   Brad D. Levenson
                                                   Director, Office of Capital Writs



                                                   Robert Romig




                                                   J     y Schepers

                                                   Post-Conviction Attorneys
                                                   Office of Capital Writs




                                               9
                         CERTIFICATE OF SERVICE

I, the undersigned, declare and certify that I have served the foregoing Emergency
Application for Writ of Prohibition to:

Court of Criminal Appeals                    Honorable Judge Elizabeth Frizell
P.O. Box 112308                              Criminal District Court No. 7
Austin, Texas 787II                          133 N. Riverfront Blvd.
                                             Lock Box 54
                                             Dallas, Texas 75207
Dallas County District Attomey
c/o Shelly Yeatts
133 N. Riverfront Blvd.
Lock Box 19
Dallas, Texas 75207

Roderick Harris
TDCJ # 999s7t
TDCJ Polunsky Unit
3872 FM 350 South
Livingston, Texas 77351


      This certification is executed on April2I,2015, at Austin, Texas.

      I declare under penalty of perjury that the foregoing is true and correct to the
best of my knowledge.

                                                                 i

                                                     BRAD D. LE
