TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-12-00398-CV

In re Jennifer Tharp, Criminal District Attorney of Comal County, Texas

ORIGINAL PROCEEDING FROM COMAL COUNTY

M E M O R A N D U M O P I N I O N

Relator Jennifer Tharp, Comal County’s Criminal District Attorney, has filed a

petition for writ of mandamus complaining about the trial court’s order granting the motion filed by

the real party in interest seeking discovery related to the underlying DWI case (trial court cause

number 2010-CR-0337). See Tex. R. App. P. 52.1. We deny the petition for writ of mandamus.

William Nickerson, the real party in interest and the defendant in the underlying DWI

prosecution, filed a motion for discovery, seeking thirty items from the DPS Crime Laboratory in

Austin related to the lab’s testing of his blood sample. Following two hearings, the trial court 1

granted most of Nickerson’s requests, ordering the production of twenty specific documents.2

For discovery request 28, the motion states that if a Mass Spectrometer was used, there 1

were three additional documents sought, numbering those items 28.1, 28.2, and 28.3, for a total of

thirty items.

Tharp designated Renee Hawkins, a forensic scientist at the laboratory, as an expert witness.

2

Nickerson then sought a subpoena duces tecum requiring Hawkins to produce the same thirty items

that he sought in his discovery request. Tharp filed a motion to quash, arguing that article 39.14 was

the sole means for pretrial discovery, many of the sought items were privileged, and Nickerson had

not shown that he needed the evidence. The trial court held a hearing and granted the motion to

quash. About a month later, the trial court held a hearing on Nickerson’s motion for discovery,

during which very little additional argument was provided.
In her petition, Tharp asserts that the court’s order is an abuse of discretion because

it violates article 39.14 of the code of criminal procedure by requiring the disclosure of the State’s

work product. See Tex. Code Crim. Proc. Ann. art. 39.14(a) (West Supp. 2012). She also argues

that Nickerson did not establish good cause or the materiality of the evidence to his defense.

The standard we apply in considering a petition for writ of mandamus in a criminal

case is stricter than the abuse-of-discretion standard applied in civil original proceedings. In criminal

mandamus proceedings, we should not grant relief unless the relator shows that “the act sought to

be compelled is purelyministerial.” State v. Court of Appeals for the Fifth District, 34 S.W.3d 924,

927 (Tex. Crim. App. 2001). And, although there is no general right to discovery in a criminal case

beyond exculpatory evidence that the State is constitutionally obliged to disclose, whether certain

evidence is discoverable “isleft to the discretion ofthe trial judge.” McBride v. State, 838 S.W.2d 248,

250 (Tex.Crim. App. 1992). The trial court’s discretion to allow discoveryislimited bythe exceptions

set out in article 39.14, and the court may not order the production of “written statements of

witnesses [or] the work product of counsel in the case and their investigators and their notes or

report.” Tex. Code Crim. Proc. Ann. art. 39.14(a). It is on the work-product exception that Tharp

relies to assert that the trial court erred in granting Nickerson’s motion for discovery.

The court of criminal appeals has discussed when an expert’s identifying information

and opinions are discoverable in the criminal context, seemingly broadening when a criminal

defendant may be granted discovery. See Pope. v. State, 207 S.W.3d 352, 359-62 (Tex. Crim. App. 3

Compare Pope. v. State, 207 S.W.3d 352, 360-62 (Tex. Crim. App. 2006) (discussingwhen 3

an expert is a “testifying” expert rather than a “consulting” expert and holding that the parties to a

criminal proceeding may seek information about the opposing side’s testifying experts and their

opinions), with Feehery v. State, 480 S.W.2d 649, 651 (Tex. Crim. App. 1972) (stating without

explanation or citation to precedent or authority that “[u]nder Article 39.14, . . . a chemical analysis

2
2006). Pope also provides guidance about what kind of information should be considered privileged

work product protected from disclosure in a criminal case, holding that the decision to designate a

potential witness as a testifying expert “may waive many of the protections otherwise provided by

the work-product doctrine, although it will not waive any confidential communications under the

attorney-client privilege.” See id. at 357-58, 366.

Although Tharp asserts that the evidence ordered to be produced is the State’s work

product, she makes only a blanket work-product assertion and has provided no briefing as to why

any specific item is not 

discoverable, nor did she provide any specific explanation or argument in the hearings before the

trial court. When we consider the elevated standard of review we are to apply in such cases, 4

particularly in light of Pope and the discretion granted to the trial court in determining issues related

to discovery, Tharp has not shown that the trial court acted contrary to a clear ministerial duty and

that she is entitled to mandamus relief. We deny Tharp’s petition for writ of mandamus.

__________________________________________

David Puryear, Justice

Before Justices Puryear, Rose and Goodwin

Filed: August 9, 2012

of the drugs is excepted as part of the work product of the prosecutor and his investigators”).

 In sharp contrast to the order in this case, which granted twenty of the defendant’s thirty 4

specific discovery requests, the order presented in In re Tharp, our cause number 03-12-00400-CV,

also decided today, simply ordered the production of “[a]ll records, documents, testing data, and

chain of custody records” in the underlying criminal proceeding, going beyond the motion for

discovery and, potentially, violating article 39.14.

3