I have a Def Atty who keeps calling me requesting discovery on a case that has not yet been indicted. He sent me some unpublished opinion from the CCA that discovery is mandatory upon a person being charged by complaint or information. My problem is that if the case is still being investigation, then disclosing the file may jeopardize the case. Also, the same Def Atty has been requesting discovery from the arresting agency citing the CCA unpublished opinion and 39.14.
The discovery request is arguably supported by this language in Judge Alcala's concurring statement issued in In re Carrillo:
as an individual who has been charged by a formal criminal complaint by the district attorney's office, relator plainly falls within the provisions of Article 39.14 that require that discovery be provided "as soon as practicable" following a request from a "defendant" as to "any matter involved in the action.
This is the opinion of only one judge; the relief requested by Carrillo was denied by the court without written opinion (and not on the basis suggested by Alcala).
Unpublished opinions of the CCA (even by a majority) have no precedential value, and really should not even be cited by an attorney. TRAP 77.3.
Alcala is just wrong. You are not receiving the request from a "defendant." Someone charged by a formal complaint does not have a case pending against him in the district court.
Provide discovery if you want, but otherwise the request can be ignored.
State ex Rel. Michael Munk, No. 11-15-00169-CV (Tex. App. – Eastland, October 15, 2015)
We've been running into this also. We will provide pre-indictment discovery on simple cases (SJF drug cases, Felony DWI, Forgeries, etc.) pre-indictment in the hope that we can possibly plea the case pre-indictment. This is especially true if someone is in jail. On more complex cases, especially those that tend to require additional work after an arrest (Murder, Sexual Assault, etc.) we refuse to give pre-indictment discovery. Bottom line, we handle to pre-indictment requests on a case by case basis. If a defense attorney comes and says "let me take a look and see if we can move this case" and its an attorney who we trust his representations, we will probably provide discovery pre-trial. Otherwise, probably not.
There's a reporter cite for that one now, Rob: In re State ex rel. Munk, 494 S.W.3d 370 (Tex. App. Eastland 2015)
Yes, I read Judge Alcala's unpublished opinion and I agree that it has no weight to support the Defense attorney's position that "we must" provide pre-indictment discovery. Also, the Munk case is a good case as well, since it provides more guidance when it comes down to pre-indictment discovery. The case I currently have pending indictment is for a F2 Poss CS 5.6g of cocaine.
I have no problem with the Defense looking at the file in my office, but since he demanded by saying that he has a right to obtain a copy, I disagreed.
Thanks all for your guidance. I appreciate it.
Apparently, a defense lawyer gave a talk at the State Bar Advanced course a few weeks ago claiming that prosecutors must provide discovery pre-indictment. Was anyone there for that talk? It seems to be causing some confusion.
Yes, I was there, and she did say that. The speaker was Nicole DeBorde of Houston. She just said that the text of 39.14 plainly requires it.
The Munk opinion offers nothing but a half-hearted assertion that a magistrate presiding over an examining trial lacks jurisdiction to compel the State to comply with 39.14. Indeed, an examining trial must be conducted on the record and subject to the Rules of Evidence. The accused has the right to remain silent, but has the option of making a statement. Witnesses may be subpoenaed and may be attached if they fail to appear. Witnesses must testify in the presence of the defendant and are subject to cross examination by defense counsel. Witness depositions may be used under the circumstances described in 39.01. Meanwhile, nothing in 39.14 says it does not apply to magistrates or examining trials. Article 39.14 gives discovery rights to "the defendant" and chapter 16 uses the terms "the defendant" and "the accused" interchangeably with regard to the rules of conducting examining trials.
I can add some background, since I was involved in the Munk proceedings and the details remain fresh in my mind, because I was pretty ticked about the whole thing.
The decision had to address the issue of whether the district judge was sitting as a district court judge or as a magistrate because, when we filed our petition for mandamus, the respondent apparently realized that they had used the wrong vehicle in trying to get discovery pre-indictment. They had applied to the district court; however, a district court's jurisdiction doesn't vest until a charging instrument is filed.
When it apparently dawned on them that they didn't have a leg to stand on, they tried to pretend that they weren't actually asking the district court to order discovery, they were asking the district court judge as a magistrate to order discovery. The suspect's appellate attorney briefed extensively on the magistrate issue, despite the complete lack of evidence that the judge was acting as a magistrate in ordering discovery and the lack of authority for the proposition that magistrates can order discovery, pre-indictment or otherwise, in a felony case. Apparently, the only path to victory they saw was doing an end-run around the fact that the district court did not have jurisdiction by arguing that the appeals court didn't have mandamus jurisdiction over magistrates.
The 11th Court of Appeals requested a response from us, so I wrote a doozy, probably being more rude and snarky than I needed to be to the other side. You can read their brief and our reply on the case page: 11-15-00169-CV.
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