### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00398- CV

In re Jennif

er Tharp, Crim inal Dis tric t Att orney of Com al County, Texas

ORI GINAL P ROCEEDI NG F ROM CO MAL CO UNTY

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

Relator J ennifer T h ar p, Comal County ’s Criminal District Attorney , has filed a petition for writ of mandamus complaining about the trial court’s order g ranting the motion filed by

t h e re al p arty in interest seeking discovery rela ted to the underly ing DWI case (trial court cause number 2010-CR-0337). See Tex. R. App. P . 52.1. We deny the petition for wr it of mandamus.
Wil liam Nicker son, the rea l party in interest and the defe ndant in the underly ing DWI

prosec ution, filed a m o t i on for discovery , seeking thirty items from the DPS Crime L abora tory in
Austin rela ted to the lab’s testing of his blood sample. Fol l o wi n g t wo h ear ings, the trial court 1

g rante d most of Nicker son’s reque sts, ordering the produc tion of twenty specific documents. 2

For discovery reque st 28, the motion states t h at i f a M ass Spectromete r was used, there 1
wer e three additional documents soug ht, numbe ring those items 28.1, 28.2, and 28.3, for a total of thirty items.
T h a r p d e s ig n a te d Re n e e H a

wk in s , a f o r e n s ic s c ie n

ti s t a t th e la b o r a to r y , a s a n e xp e r t w it n e s s
. 2 Nicker son then soug ht a subpoena duces tecum requiring Hawkins to produce the same thirty items that he soug ht in his discovery reque st. Tharp filed a motion to quash, arg uing that article 39.14 was the sole means for pretria l discovery , many of the soug ht items wer e privileg ed, and Nicker son had not shown that he neede d the evidenc e. The trial court held a hearing and g rante d the motion to quash. About a month later, the trial court held a hear ing on Nicker son’s motion for discovery , during which ver

y littl e additional ar g ument was provide d.I n her petition, Tharp asser ts that the court’s order is an abuse of discretion beca use
it violates article 39.14 of the c ode of criminal proce dure by requiring the disclosure of the State’s work product. See Tex. Code Crim. P roc. Ann. art. 39.14(a) (West Supp. 2012). She also arg ues
that Nicker son did not establish good c ause or the mater iality

of the e vidence to his defense

. The standard we apply in considering a petition f or writ of mandamus in a criminal

case is stricter than the abuse- of-discr etion standard applied in civil orig inal proce eding s. I n c r im in al mandamus proc eeding s, we should not g rant re lief unless the re lator shows t hat “the act soug ht to
be compelled is purely minist eria l.” State v. Court of Appeals for the Fifth District , 34 S.W .3d 924,
927 (Tex. Crim. App. 2001). And, althoug h there is no g ener al rig ht to discovery in a criminal case bey ond exculpatory evidenc e that the S tate is constitutionally oblige d to disclose, whether cer tain

e v id e n c e is d is c o v e r a

b le “ is le f t to th e d is c r e ti o n o f th e tr ia l ju d g e
. ” M c B r id e v

. S ta te , 8 3 8 S. W. 2 d 2 4 8 , 2 5 0 ( T e x. Cr im

. A

p p
. 1 9 9 2 )

. T h e tr

ia l c o u r t’ s d is c r e ti o n to a ll o w d is c o v e r y is li mi te d b y th e e xc e p ti o n s

set out in article 39.14, and the court may not orde r t h e p ro d uction of “wr itten statements of
witnesses [or] the work product of counsel in the case and t h eir investiga tors and their notes or
repor t.” Tex. Code Crim. Proc

. Ann. art. 39.14(a)

. I t is on the work-pr oduct exception tha t T harp
relies to asse rt that the trial cour t erre d in gr anting Nicker son’s motion for discover y
. The court of criminal appea ls has discussed when an expert’s identify ing information

an d opinions are discovera ble in the criminal context, seeming ly broade ning when a crimin al
defe ndant may be g rante d 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) (discussing when 3 an expert is a “te stify ing” expert rather than a “consulting ” expert and holding that the par ties to a criminal proce eding may seek informatio n about the opposing side’s testify ing experts and their opinions), with Fee hery v. State , 480 S.W .2d 649, 651 (Tex. Crim. App. 1972) (stating without explanation or citation to prec edent or authority that “[u] nder Article 39.14,

. . . a chemica l analy sis
22006). Pope also provides g uidance about what kind of information should be considere d privileg ed

work product protec ted from disclosure in a criminal case , holding that the decision to de signa te a potential witness as a te stify ing e x pert “ may waive many of the protec tions other wise provided by
the work-pr oduct doctrine, althoug h it will not waive any confide nti al communications under the
attorney -client privileg e.” See id. at 357-58, 366.

Although Tharp asser

ts that the evidenc e order ed to be produce d is the State’s work product, she make s only a blanket work-pr oduct assertion and has provided no briefing as t o why

any specific item is not
discovera ble, nor did she provide any speci fi c explanation or arg ument in the hear ings befor e the
trial court. When we co n s i d er t h e eleva ted standard of revie w we are to apply in such case s,

4 particula rly in light of Pope and the discretion g rante d to the trial court in deter mining issues rela ted
to disc overy , Tharp ha s not shown that the trial court acte d contra ry to a clea

r minist eria l duty and
that she is entitled to mandamus relief . We deny

Tharp’ s petition for writ of manda mus.

__________________________________________ David Pury ear , J ustice

Be fore J ustices Pury ear , Rose and Goodwin Filed: Aug ust 9, 2012

of the drug s is ex cepte d as par t of the work pr oduct of the pr osecutor a nd his investigator s”).
I n sharp c ontrast to the orde r in this case , which gra nted t wenty of t he defenda nt’s thirty 4 specific discovery reque sts, the order prese nted in In re Tharp , our cause number 03-12-00400- CV, also d ec i d ed today , simply order ed the production of “[a]ll rec ords, documents, testing data, and chain of custody rec ords” in the underly ing criminal proce eding , g oing bey o n d t h e motion for discovery and, potentially , violating a rticle 39.14.

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