Opinion filed November 10, 2014




                                     In The


        Eleventh Court of Appeals
                                  __________

                              No. 11-14-00268-CV
                                  __________

   IN RE THE STATE OF TEXAS EX REL. MICHAEL MUNK


                  Original Mandamus/Prohibition Proceeding


                                  OPINION
      Relator, the State of Texas, acting by and through the Gaines County District
Attorney, Michael Munk, has filed a petition for writ of mandamus with this court
alleging that Respondent, the Honorable Carter T. Schildknecht, Judge of the 106th
District Court of Gaines County, Texas, has abused her discretion by ordering the
State to conduct criminal history searches of all non-law enforcement witnesses in
various state and federal databases and to provide the results of those searches to
the defendant. The State also seeks a writ of prohibition preventing Respondent
from ordering the State, absent a showing of good cause, to run and provide
criminal histories of all witnesses in any future cases. Additionally, the State
requested an emergency or temporary stay of the proceedings. We granted the
State’s requested emergency stay in a separate written order entered on October 13,
2014. For the reasons expressed herein, we conditionally grant the petition for writ
of mandamus in part, and we deny the petition for writ of prohibition.
                                  Background Facts
      The order that is the subject of this original proceeding arises from an order
entered in trial court cause numbers 14-4486 and 14-4487 styled State of Texas v.
Desirae Monique Mata. Mata is charged with the offenses of capital murder and
murder in the underlying proceedings. Respondent entered the challenged order
during a pretrial hearing that occurred on October 2, 2014.           Mata’s attorney
presented the following oral request to the trial court at the hearing:
             I have received a witness list from the State, and I really need
      for them to provide us with copies of criminal records of numerous
      witnesses that are not law enforcement. Specifically one witness by
      the name of Angie Brown, because we need to get copies of criminal
      convictions, judgments and sentences certified.

             She’s a witness from out of state, and I don’t have complete
      access to all her criminal history, but she does have a lengthy criminal
      history. And I don’t want to get into a situation where I’m asking the
      Court for a continuance because during the time of trial, I find out that
      she used another name and I have another criminal conviction that I
      didn’t know about.

Respondent granted this request by ordering that “[t]he State is to provide the
criminal histories of non-law enforcement witnesses to the defense.” Respondent
ordered that the criminal histories were to be produced prior to the next pretrial
hearing that was set for October 16, 2014.
      The State filed its petition for writ of mandamus and writ of prohibition on
October 6, 2014. On October 7, 2014, we requested a response to the petition.
Mata filed a response on October 10, 2014. On October 13, 2014, we issued our
order granting an emergency stay. We also set the matter for oral argument on

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October 16, 2014. On the day prior to oral argument (October 15, 2014), Mata
filed a motion to dismiss this proceeding on the ground of mootness. Mata’s
motion to dismiss remains pending before this court.
                            Mata’s Motion to Dismiss
      Mata contends that the State’s petition for writ of mandamus is moot
because defense counsel had received a letter from the prosecutor indicating that
the criminal histories of approximately seven of the State’s fifty-four non-law
enforcement witnesses were in the process of being produced at the time Mata filed
the motion to dismiss. We disagree with Mata’s contention that the State’s petition
for extraordinary relief is now moot. A case becomes moot if the controversy no
longer exists between the parties. See Williams v. Lara, 52 S.W.3d 171, 184 (Tex.
2001). The controversy at issue in this proceeding continues to exist because Mata
has not shown that she has withdrawn her discovery request for the criminal
histories of all non-law enforcement witnesses and has not shown that Respondent
has withdrawn her order requiring the State to obtain the criminal histories of all
non-law enforcement witnesses and provide them to the defense. In this regard,
Mata states in her motion to dismiss that “there are still other non-law enforcement
Criminal histories that have not yet been provided.” Accordingly, we overrule
Mata’s motion to dismiss.
                               Mandamus Analysis
      Mandamus is appropriate in a criminal proceeding when the relator
establishes (1) “that he has no adequate remedy at law to redress the harm that he
alleges will ensue” and (2) “that the act he seeks to compel or prohibit does not
involve a discretionary or judicial decision.” Simon v. Levario, 306 S.W.3d 318,
320 (Tex. Crim. App. 2009) (orig. proceeding); see State ex rel. Hill v. Court of
Appeals for the Fifth Dist., 34 S.W.3d 924, 927 (Tex. Crim. App. 2001) (orig.
proceeding). An oral order may be the subject of mandamus relief if the court’s
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ruling is a clear, specific, and enforceable order that is adequately shown by the
record. TEX. R. APP. P. 52.3(k)(1)(A); see In re Bledsoe, 41 S.W.3d 807, 811 (Tex.
App.—Fort Worth 2001, orig. proceeding). An appeal from a final judgment will
not protect the State from having to produce improper discovery. See Dickens v.
Court of Appeals for Second Supreme Judicial Dist. of Tex., 727 S.W.2d 542, 548
(Tex. Crim. App. 1987) (orig. proceeding).
       The State argues that the trial court exceeded its authority under the former
version of TEX. CODE CRIM. PROC. art. 39.14 1 by ordering the State to conduct an
independent investigation by searching the National Crime Information Center and
the Texas Crime Information Center (NCIC/TCIC) databases for the criminal
histories of non-law enforcement witnesses and providing the results of those
searches to the defense.
       There are two significant facts that we note at the outset of our analysis.
First, this case involves the law of discovery as it existed prior to January 1, 2014,
when the Michael Morton Act became effective and significantly changed
discovery procedure. See Michael Morton Act, 83rd Leg., R.S., ch. 49, 2013 Tex.
Gen. Laws ___ (codified as CRIM. PROC. art. 39.14). In this regard, the changes
made by the Michael Morton Act only apply to offenses committed after
January 1, 2014. Id. The underlying offenses are alleged to have occurred prior to
January 1, 2014. Accordingly, we express no opinion on the possible effect of the
changes made by the Michael Morton Act on the discovery issue presented by this
original proceeding.
       The second significant fact affecting our analysis are two recent opinions
issued by the Dallas Court of Appeals conditionally granting mandamus relief
regarding similar discovery orders. In re Watkins, 367 S.W.3d 932 (Tex. App.—

       1
         See Act of May 18, 2009, 81st Leg., R.S., ch. 276, § 2, 2009 Tex. Gen. Laws 733 (current
version at TEX. CODE CRIM. PROC. ANN. art. 39.14 (West Supp. 2014)).

                                               4
Dallas 2012, orig. proceeding) (Watkins I), involved a standard discovery order
requiring the State to obtain criminal histories from NCIC/TCIC records of the
State’s witnesses and to provide them to the defense. The court held in Watkins I
that former Article 39.14 was “definite, unambiguous, and unquestionably
[applied] to the indisputable facts of [the] case.” 367 S.W.3d at 933 (quoting
Simon, 306 S.W.3d at 321). The court further held that the trial court had no
discretion to disregard former Article 39.14. Id. The court concluded in Watkins I
that the trial court’s order circumvented the former version of Article 39.14
because the defendant was not required to file a motion and show good cause
before being entitled to discovery. 2 Id.
        In re Watkins, 369 S.W.3d 702 (Tex. App.—Dallas 2012, orig. proceeding)
(Watkins II), involved an order by the trial court requiring the State to conduct an
independent investigation of criminal histories of law enforcement witnesses by
initiating searches of the NCIC database and to provide the results of those
searches to the trial court for inspection. 369 S.W.3d at 704. The court held in
Watkins II that the trial court exceeded its authority under former Article 39.14
because there was (1) no oral or written request for the criminal history records,
(2) no oral or written showing of good cause for those records, (3) no oral or
written showing why those records are material to the defense, and (4) no oral or
written showing that those records are in the State’s possession. Id. at 707. As set
forth below, the court’s analysis is more fully developed in Watkins II.
        The discovery orders that were at issue in Watkins I and Watkins II are
similar to the one at issue in this proceeding because the Respondent’s order
requires the State to obtain criminal histories of witnesses from the same databases
and to provide them to the defense. We acknowledge that there are some factual
        2
         The court additionally stated that the discovery order in Watkins I appeared to require production
of more than is required under Brady v. Maryland, 373 U.S. 83 (1963). However, the court did not
elaborate on its basis for concluding that the discovery order exceeded the requirements of Brady.

                                                    5
differences between this proceeding and the facts in Watkins I and Watkins II.
Most notably, Mata presented Respondent with a request for production of the
criminal history records.           Accordingly, this factor in the court’s analysis in
Watkins I and Watkins II is inapplicable to the facts in this proceeding. 3 As was
the case in Watkins II, we direct our focus on the possession element.
        After Respondent granted Mata’s request, the prosecutor asked Respondent
if the criminal histories must be produced whether or not they are currently in the
State’s possession.        Respondent replied in the affirmative to the prosecutor’s
request for clarification. The court held in Watkins II that neither Brady nor former
Article 39.14 imposes a duty upon the State to obtain information from the NCIC
database that it has not already obtained. Id. at 706.
        We agree with the Dallas Court of Appeals that the trial court does not have
authority under former Article 39.14 to require the State to conduct criminal
history searches of the NCIC/TCIC databases or to provide information to the
defendant from these databases that it has not already obtained.                               Former
Article 39.14 is a limited discovery statute requiring the defendant to show good
cause, materiality, and possession of the discoverable item by the State. State ex
rel. Wade v. Stephens, 724 S.W.2d 141, 144 (Tex. App.—Dallas 1987, orig.
proceeding) (citing Hoffman v. State, 514 S.W.2d 248, 252 (Tex. Crim. App.
1974)). It does not give the defendant a general right to discovery. Id. (citing
Whitchurch v. State, 650 S.W.2d 422, 425 (Tex. Crim. App. 1983)). The Dallas
Court of Appeals determined in Watkins II that former Article 39.14 does not give
the trial court authority to order the State to create a document that does not


        3
          Additionally, Mata asserted at oral argument that Watkins II is also distinguishable because it
involved the criminal histories of law enforcement witnesses; Mata limited her request to the criminal
histories of non-law enforcement witnesses. This is a distinction without a difference because the status
of the witnesses as either law enforcement or non-law enforcement had no bearing on the court’s analysis
in Watkins II.

                                                   6
currently exist. Watkins II, 369 S.W.3d at 706–07. We agree with the court’s
conclusion in Watkins II that requiring the State to conduct searches for criminal
histories in computer databases involves the creation of documents that do not
currently exist and are not in the State’s possession. We also agree with the court’s
conclusion that Brady does not require the State to conduct criminal history
searches in the NCIC/TCIC databases. See Watkins II, 369 S.W.3d at 706. The
Brady requirements only apply to information “known” to the State. Kyles v.
Whitley, 514 U.S. 419, 438 (1995); see Hafdahl v. State, 805 S.W.2d 396, 399
(Tex. Crim. App. 1990) (Brady and its progeny do not require prosecuting
authorities to disclose exculpatory information to defendants that the State does not
have in its possession and that is not known to exist.). The State is not required
under Brady to seek out exculpatory evidence independently on the defendant’s
behalf. United States v. Bagley, 473 U.S. 667, 675 (1985); Harm v. State, 183
S.W.3d 403, 407 (Tex. Crim. App. 2006). The Supreme Court stated in Bagley
that the purpose of the Brady rule is not to displace the adversary system as the
primary means by which truth is uncovered, but only to ensure that a miscarriage
of justice does not occur. 473 U.S. at 675. We conclude that requiring the State to
conduct criminal history searches exceeds the requirements of Brady because the
State would be required to independently seek out exculpatory evidence on behalf
of the defendant.
      Mata cites United States v. Auten, 632 F.2d 478, 481 (5th Cir. 1980), for the
proposition that the State’s access to criminal history databases equates to
possession. We first note that Auten did not involve an application of former
Article 39.14. Additionally, we disagree with the Auten court’s conclusion that
access to information is the same thing as possession of the information.
Individuals have access to a plethora of information (and images) via the internet,
including matters that are inherently criminal in nature. However, the fact that one
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may have access to information does not mean that the person has possession of all
information that he or she could potentially access.         Furthermore, access to
information does not equate to knowledge that the information exists, which is a
component under Brady.
      We are mindful that the Amarillo Court of Appeals recently rejected
mandamus relief sought by the State from a discovery order that appears to be
similar to the one at issue in this appeal. See In re Munk, No. 07-14-00308-CV,
2014 WL 4082109 (Tex. App.—Amarillo Aug. 15, 2014, orig. proceeding) (mem.
op.). At first blush, it might appear that the Amarillo court in Munk disagreed
with the holding in Watkins I and Watkins II. However, the court did not address
either Watkins I or Watkins II in its analysis. Furthermore, a close reading of the
opinion in Munk reveals that the court there considered the language of the trial
court’s order that was before it to be different from the language before the court in
the Watkins cases and in the case before us. In Munk, the defendant had asked that
the State be ordered to furnish the defendant with a list of witnesses and also the
criminal history of any witness that the State intended to call. 2014 WL 4082109,
at *3. The State argued that the effect of the trial court’s order was to require the
State to run a criminal history “on all of its non-law enforcement witnesses.” Id.
In its opinion in Munk, the Amarillo court did not consider that the trial court’s
order went that far, stating, “[W]e do not see the language in [the trial court’s]
order of which Relator specifically complains.” Id. The Amarillo court then
immediately turned its attention to Brady-type materials and also cited to Rule 609
of the Texas Rules of Evidence (Impeachment by Evidence of Conviction of
Crime). The court then wrote that the trial court’s order “is an order consistent on
its face with the prosecutorial duty imposed on [the State] under current applicable
law and is, therefore, not an abuse of discretion.” Id.


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      We do not believe that the Amarillo court’s opinion in Munk is at odds with
the opinions in Watkins I and Watkins II. In Watkins I and Watkins II, the State
was specifically ordered to search for the records from the same databases as the
ones from which the trial court ordered the State to use here. In the case before us,
the State asked the trial court whether it must obtain and produce the criminal
histories whether they were currently in the State’s possession or not. The trial
court was very specific when it answered in the affirmative. It does not appear that
the Amarillo court thought it had the type of language before it as before the court
in Watkins I and Watkins II and as in the trial court order now before us, which
required the State to search for the criminal histories. Therefore, based upon the
statements of the Amarillo court, we do not believe that Munk is necessarily at
odds with our opinion in this case.
      The remaining question to address is the appropriate remedy to ensure
compliance with Brady.        In Watkins II, the court stated as follows in
acknowledging the protections afforded by Brady:
            The State has a constitutional obligation to disclose evidence
      favorable to the defendant whether or not the defendant requests it.
      Brady, 373 U.S. at 87–89, 83 S.Ct. 1194; United States v. Bagley, 473
      U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). This includes
      evidence that may be used to impeach a witness’s credibility. Bagley,
      473 U.S. at 676, 105 S.Ct. 3375. One way to impeach a witness is by
      introducing evidence of a prior criminal conviction of that witness.
      Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 39 L.Ed.2d 347
      (1974). To the extent the State obtained information containing Brady
      material, including from NCIC records, the State was obligated to
      disclose that information. Brady, 373 U.S. at 87–89, 83 S.Ct. 1194;
      Bagley, 473 U.S. at 676, 105 S.Ct. 3375.

369 S.W.3d at 706. We agree with the court’s holding that the State has an
obligation to provide Brady materials that it may have already obtained from the
NCIC/TCIC databases. Accordingly, we decline to grant mandamus relief against

                                          9
Respondent’s discovery order for the production of any criminal histories that the
State already has in its possession or any criminal histories that the State may
obtain in the future by its own volition. In this regard, the State includes, in
addition to the prosecutor, other lawyers and employees in his office and members
of law enforcement connected to the investigation and prosecution of the case. Ex
parte Miles, 359 S.W.3d 647, 665 (Tex. Crim. App. 2012). However, to the extent
that Respondent’s discovery order requires the State to conduct criminal history
searches using the NCIC/TCIC databases and to provide the results of those
searches to Mata, we conditionally grant the State’s petition for writ of mandamus.
A writ will issue only if Respondent fails to vacate her October 2, 2014 order to the
extent that the order requires the State to conduct criminal history searches of the
NCIC/TCIC databases and to provide the results of those searches to Mata. Our
emergency stay of all proceedings in the trial court in the underlying cases shall
remain in place until Respondent vacates that portion of her October 2, 2014
discovery order under the terms provided herein.
                                Writ of Prohibition
      The State also seeks a writ of prohibition to prohibit Respondent from
entering the challenged discovery order in future cases. As noted by the Amarillo
Court of Appeals, the writ of prohibition is a creature of limited purpose that is
appropriate only after an appellate court’s jurisdiction has been invoked on
independent grounds and then only in aid of that jurisdiction. In re Munk, 2014
WL 4082109, at *4–5 (citing Holloway v. Fifth Court of Appeals, 767 S.W.2d 680,
683 (Tex. 1989) (orig. proceeding); Tex. Emp’rs’ Ins. Ass’n v. Kirby, 152 S.W.2d
1073, 1073 (Tex. 1941); and In re Lewis, 223 S.W.3d 756, 761 (Tex. App.—
Texarkana 2007, orig. proceeding)). 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. Id.; see In re
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Nguyen, 155 S.W.3d 191, 194 (Tex. App.—Tyler 2003, orig. proceeding);
Lesikar v. Anthony, 750 S.W.2d 338, 339 (Tex. App.—Houston [1st Dist.] 1988,
orig. proceeding).
      As was the case in Munk, the State 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.
Furthermore, we have not found such a proceeding. Thus, we have no pending
jurisdiction to protect or preserve by way of a writ of prohibition. That being the
case, we lack jurisdiction to issue a writ of prohibition. Accordingly, we deny
Relator’s request to issue a writ of prohibition.
                                   This Court’s Ruling
      Relator’s petition for writ of mandamus is conditionally granted in part. The
Honorable Carter T. Schildknecht is directed to vacate her order of October 2,
2014, to the extent that the order requires the State to conduct criminal history
searches of the NCIC/TCIC databases. A writ of mandamus will issue only if
Judge Schildknecht fails to act by November 25, 2014. Relator’s request for a writ
of prohibition is denied.




                                                     JOHN M. BAILEY
                                                     JUSTICE


November 10, 2014
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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