In re

Roderick Harris,

RELATOR

IN THE COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Cause No.

w0e-0040e-Y(A)

)

)

)

)

)

)

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

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

ABEL ACOSTA

CLERK

 RECEIVED COURT OF CRIMINAL APPEALS 4/21/2015 ABEL ACOSTA, CLERK 
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

STATEMENT OF THE CASE

STATEMENT OF JURISDICTION..........

ISSUES PRESENTED

STATEME,NT OF FACTS

ARGUMENT

A. Standard of Review

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 PostConviction Counsel .............. ......6

C. Harris Has No Other Adequate Remedy at Law Other Than Seeking This

Writ of Prohibition ..........8

PRAYER FOR RELIEF

1

1

a

J

4

4

5

5

9

EXHIBITS

Exhibit A:

Exhibit B:

Exhibit C:

Trial Court Order

State's Motion for Disclosure of Trial File

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)....

Arbelaez v. State,775 So.2d 909 (Fla. 2000)

Coffee v. Wainwright, 172 So.2d 851 (Fla. Dist. Ct. App. 1965)

Ex parte Davts,947 S.W.zd216 (Tex. Crim. App. 1996)......

Ex parte Moreno,245 S.\M.3d 419 (Tex. Crim. App. 2008)

Ex parte Reed,271 S.W.3d 698 (Tex. Crim. App. 2008)

In re McCann,422 S.W.3d 701 (Tex. Crim. App. 2013) 4,5,

7

7

7

a

J

a

J

a

J

8

6

6

5

6

7

Neveuv. Culver, 105 S.W.3d 641 (Tex. Crim. App. 2003).

Simonv. Levario, 306 S.W.3d 318 (Tex. Crim. App. 2009)

State ex rel. Wade v. Mays,689 S.W.2d 893 (Tex. Crim. App. 1985)

l4/est v. solito,563 S.W.zd240 (Tex. 1978)

Statutes

Texas Constitution, Art. V., $5 -

J

Other Authority

ABA, Standing Comm. on Ethics & Prof'l Responsíbilíty, Formal Opinion 10-456

5

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 postconviction 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 capitalmurder 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 postconviction 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, 7 7 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

Brad D. Levenson

Director, Office of Capital Writs

Robert Romig

J y Schepers

Post-Conviction Attorneys

Office of Capital Writs

t

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

P.O. Box 112308

Austin, Texas 787II

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

Honorable Judge Elizabeth Frizell

Criminal District Court No. 7

133 N. Riverfront Blvd.

Lock Box 54

Dallas, Texas 75207

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