1 COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

IN RE: THE STATE OF TEXAS, Relator. § § § § § § No. 08

- 19

- 00183

- CR
AN ORIGINAL PROCEEDING
IN MANDAMUS

CONCURRING OPINION I join in t he majority opinion , and its disposition of the case

. That opinion leaves no doubt that a subpoena not issued in connection with any hearing, and not under the procedure set out in
T EX .C ODE C RIM .P ROC

. A NN . art 24.03 , can not require a citizen to produce their cell phone for a lawyer’s review outside the doors of a courtroom. Because this discovery dispute begins with that action, it was derailed from the start. And no action, particularly a later in camera inspection wherei n one party, but not the other , assisted the court in reviewing the phone’s contents, could put the train back on its tracks. Everything here began with th e subpoena. The State moved to quash that subpoena, and in my opinion the trial court erred in fail ing to grant that motion

. Yet i t bears mention that a t the oral argument of this case, both the State and Defendant conceded that there might be an appropriate procedure whereby the Defendant could pursue the2

discovery of text ual or electronic messages that might be important to this case. One advocate suggested that a trial court retains the discretion to set a pretrial hearing under T EX .C ODE C RIM .P ROC

. A NN . art. 28.01 , § 1 ( “ The court may set any criminal case for a pre

- trial hearing before it is set for trial upon its merits, and direct the defendant and his attorney, if any of record, and the State's attorney, to appear before the court at the time and place stated in the court's order for a conference and hearing. ”). By the terms of Article 28.01 , t hat hearing might address several matters, including “discovery.” Id

. § 1 (8) ; see also State v. Villegas , 506 S.W.3d 717, 730 (Tex. App.

-- El Paso 2016 , pet . dism’d, improv idently granted ) (“ The State recognizes that in general the trial court has the discretion to conduct a pretrial hearing on preliminary matters, including the admissibility of evidence .”). Article 28.01 was designed to enable the trial judge to dispose of certain matters prior to trial to avoid delays after jurors and witnesses have been summoned. Johnson v. State , 803 S.W.2d 272, 283 (Tex.Crim.App. 1990) , cert denied, 501 U.S. 1259 (1991) , overruled on other grounds , Heitman v. State , 815 S.W.2d 681, 685 n.6 (Tex.Crim.App. 1991)

. And a trial court might exercise its discretion to decide disputes regarding the existence or admissibility of t ext messages before and not during trial. I f such a hearing was set ( with notice to all parties ) , then presumably a subpoena to a relevant witness might issue as well. Cf

. State v. Hill , 499 S.W.3d 853, 867 (Tex.Crim.App. 2016) (allowing trial court discretion to set pretrial evidentiary hearing on motion to quash and dismiss )

. Assuming without deciding that such a hearing is sanctioned, that only gets the part ies to the nub of the underlying dispute: is the D efendant entitled to search the complaini ng witness ’ s phone ? I agree with everything the Court’s opinion says about the privacy interests of the complaining witness. Phones contain a trove of private information: who our friends and family3

are , where do we bank, what are the passwords to our fi nancial accounts, what we say on social media, and for some, what photo images of ourselves, family, friends , (and pets) do we most cherish . Yet I also understand the D efendant’s interest in securing evidence that would be material
and favorable to vindicating his due process rights. As with most competing rights, court s have to strike the right balance. I have little doubt the trial court here eventually tried to strike that type of balance. It was done, however, behind closed doors with only the defense lawyer present. The complaining witness was not in the room to voice any concern for her privacy interests. Nor was the District Attorney present to advocate for her. And we do not know how the balance was struck, or how the competing rights wer e valued. At oral argument, and in their briefs, the parties have cited

some authority articulating a balancing test, and the interests that are stake. In evaluating the competing interests, e ach side has raise d legitimate concerns, such as : (1) whether a “phone dump” was the least intrusive means of obtaining the evidence or whether the messages sought were available on the recipients phones or with a service provider ; (2) whether the need for evidence in a related case can be considered in this case; (3 ) whether there is any evidence of spoliation; and (4) if a forensic examination is needed at all , whether an agent of the Defendant should be given the custody and control of the phone, as opposed to a court appointed or agreed expert. Rather than attempt to articulate the balancing test on the sparse record before us, I would leave that in the first instance to the able trial judge below. With these comments, I concur.

March 13, 2020 JEFF ALLEY, Chief Justice