In The
Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-16-00301-CR ____________________
IN RE WILLIAM LEE HON
________________________________________________________________________
Original Proceeding 258th District Court of Polk County, Texas Trial Cause No. 23,343 ________________________________________________________________________
MEMORANDUM OPINION
The Relator, William Lee Hon, in his capacity as the District Attorney of
Polk County, Texas, seeks mandamus relief from a discovery order signed by the
judge of the 258th District Court in a prosecution for driving while intoxicated. On
August 9, 2016, the trial court ordered Hon and the Texas Department of Public
Safety Houston Crime Lab (DPS Crime Lab) to digitally copy and digitally
produce several different categories of documentation relating to a blood sample
analysis in Trial Cause Number 23,343, The State of Texas v. Cindy Pashia-
1 McCormick. We stayed the trial court’s order and obtained a response to the
petition from the real party in interest, Cindy Pashia-McCormick.
Mandamus is appropriate in a criminal case when the relator establishes that
(1) he has no other adequate legal remedy; and (2) the act sought to be compelled
is purely ministerial under the relevant facts and law. State ex rel. Hill v. Ct. of
Appeals for Fifth Dist., 34 S.W.3d 924, 927 (Tex. Crim. App. 2001) (orig.
proceeding). The Relator lacks an adequate remedy at law because a discovery
order is not an order that the State has a right to appeal. See Tex. Code Crim. Proc.
Ann. art. 44.01 (West Supp. 2016). We must determine, therefore, whether
ordering the trial court to vacate the discovery order would compel a ministerial
act. “A ministerial act, by its nature, does not involve the use of judicial discretion;
it must be positively commanded and so plainly prescribed under the law as to be
free from doubt.” In re Allen, 462 S.W.3d 47, 49–50 (Tex. Crim. App. 2015) (orig.
proceeding) (footnotes omitted).
The Relator argues the trial court exceeded the scope of its authority under
article 39.14 of the Texas Code of Criminal Procedure by ordering discovery that
was not shown to be material or otherwise authorized by the Texas Code of
Criminal Procedure article 39.14. See generally Tex. Code Crim. Proc. Ann. art.
39.14 (West Supp. 2016). Evidence is material if it affects the essential proof that
2 the defendant committed the offense charged. See Ehrke v. State, 459 S.W.3d 606,
611 (Tex. Crim. App. 2015) (quoting Quinones v. State, 592 S.W.2d 933, 943
(Tex. Crim. App. 1980).
A review of the mandamus record shows that the defendant articulated why
many of the items she requested are material to her defense. Testifying as an expert
on preparing a defense for a prosecution for driving while intoxicated, attorney
Troy McKinney stated that he personally participated in negotiations with the
Harris County District Attorney’s Office and three of the four forensic laboratories
operating in Harris County for what became a standing discovery order used by the
criminal courts in Harris County. According to McKinney, the information
required by the standing blood discovery order is necessary for a defense lawyer or
a defense expert to review and evaluate the accuracy and reliability of a blood test.
McKinney testified that as part of its accreditation criteria, the laboratory
has written standard operating procedures that must be documented, and the
laboratory is required to perform an annual internal audit. The inspection reports
and audits are critical to evaluating whether the laboratory is following its
operating protocols. Based upon this testimony, the trial court could determine that
the DPS laboratory’s accreditation and internal audit records are material. The
records maintained by the DPS laboratory for the sampling and analysis of the
3 defendant’s blood likewise are material because they are indispensable as its
exclusion from evidence would affect the essential proof that the defendant
committed an offense. See id.
However, other enumerated categories of the discovery ordered are not
reasonably limited to the defendant’s case. In Number 12, the trial court ordered
production of “[a]ll proficiency testing results for any person involved in [the]
sample preparation, analysis, or administrative or technical review in the case[,]”
without limiting it to the time when the defendant’s sample was obtained.
McKinney stated that proficiency testing results did not relate to a single case, but
he indicated that they would show how accurate the lab employee was in other
testing. McKinney stated that, in his opinion, the results could be relevant if they
showed the person got the wrong answer on blind samples. The records ordered to
be produced, however, were not limited to proficiency testing results at or near the
time the defendant’s blood sample was taken. We conclude the defendant failed to
articulate the materiality of the scope of proficiency testing results ordered to be
produced under Number 12.
The trial court ordered, in item number 7 of the discovery order, production
of the “testimonial evaluation forms of each laboratory employee involved in the
testing process.” According to McKinney, the evaluations are kept to maintain the
4 laboratory’s accreditation and production of the forms will show that the laboratory
is doing what it must to maintain their accreditation. McKinney testified that the
DPS laboratory is in fact accredited, however, and the only other reason he
provided for the information was that it would give the defense the ability to
discover other cases in which the person testified and allow the defense to obtain a
copy of the transcript. We conclude that the defendant failed to articulate a reason
why the testimonial evaluation forms were material to the defendant’s case.
Under item number 28, the trial court ordered that the defense have an
opportunity to inspect, diagram, and photograph the areas under the control of the
laboratory containing the equipment used to test the sample in this case. The
sample was tested more than two years ago, however, and McKinney agreed that
ordering access to the chromatograph would not be relevant if the machine used in
the defendant’s case is no longer in the laboratory, or if the equipment that was
used in the defendant’s case is no longer in the laboratory. McKinney stated that
the right to inspect the laboratory was limited to when the case has been set for
trial because the laboratory complained that inspections were occurring for cases
that were not going to trial. He did not explain how it would be material to the
defense that an inspection be performed two years after the test in question, when
the equipment used to test the defendant’s blood may no longer be in the
5 laboratory. Therefore, we conclude that the defendant failed to articulate the
materiality of the discovery sought by such inspection.
The trial court ordered discovery not shown to be material to any matter in
the case; therefore, we conclude the trial court exceeded its authority under article
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In The
Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-16-00301-CR ____________________
IN RE WILLIAM LEE HON
________________________________________________________________________
Original Proceeding 258th District Court of Polk County, Texas Trial Cause No. 23,343 ________________________________________________________________________
MEMORANDUM OPINION
The Relator, William Lee Hon, in his capacity as the District Attorney of
Polk County, Texas, seeks mandamus relief from a discovery order signed by the
judge of the 258th District Court in a prosecution for driving while intoxicated. On
August 9, 2016, the trial court ordered Hon and the Texas Department of Public
Safety Houston Crime Lab (DPS Crime Lab) to digitally copy and digitally
produce several different categories of documentation relating to a blood sample
analysis in Trial Cause Number 23,343, The State of Texas v. Cindy Pashia-
1 McCormick. We stayed the trial court’s order and obtained a response to the
petition from the real party in interest, Cindy Pashia-McCormick.
Mandamus is appropriate in a criminal case when the relator establishes that
(1) he has no other adequate legal remedy; and (2) the act sought to be compelled
is purely ministerial under the relevant facts and law. State ex rel. Hill v. Ct. of
Appeals for Fifth Dist., 34 S.W.3d 924, 927 (Tex. Crim. App. 2001) (orig.
proceeding). The Relator lacks an adequate remedy at law because a discovery
order is not an order that the State has a right to appeal. See Tex. Code Crim. Proc.
Ann. art. 44.01 (West Supp. 2016). We must determine, therefore, whether
ordering the trial court to vacate the discovery order would compel a ministerial
act. “A ministerial act, by its nature, does not involve the use of judicial discretion;
it must be positively commanded and so plainly prescribed under the law as to be
free from doubt.” In re Allen, 462 S.W.3d 47, 49–50 (Tex. Crim. App. 2015) (orig.
proceeding) (footnotes omitted).
The Relator argues the trial court exceeded the scope of its authority under
article 39.14 of the Texas Code of Criminal Procedure by ordering discovery that
was not shown to be material or otherwise authorized by the Texas Code of
Criminal Procedure article 39.14. See generally Tex. Code Crim. Proc. Ann. art.
39.14 (West Supp. 2016). Evidence is material if it affects the essential proof that
2 the defendant committed the offense charged. See Ehrke v. State, 459 S.W.3d 606,
611 (Tex. Crim. App. 2015) (quoting Quinones v. State, 592 S.W.2d 933, 943
(Tex. Crim. App. 1980).
A review of the mandamus record shows that the defendant articulated why
many of the items she requested are material to her defense. Testifying as an expert
on preparing a defense for a prosecution for driving while intoxicated, attorney
Troy McKinney stated that he personally participated in negotiations with the
Harris County District Attorney’s Office and three of the four forensic laboratories
operating in Harris County for what became a standing discovery order used by the
criminal courts in Harris County. According to McKinney, the information
required by the standing blood discovery order is necessary for a defense lawyer or
a defense expert to review and evaluate the accuracy and reliability of a blood test.
McKinney testified that as part of its accreditation criteria, the laboratory
has written standard operating procedures that must be documented, and the
laboratory is required to perform an annual internal audit. The inspection reports
and audits are critical to evaluating whether the laboratory is following its
operating protocols. Based upon this testimony, the trial court could determine that
the DPS laboratory’s accreditation and internal audit records are material. The
records maintained by the DPS laboratory for the sampling and analysis of the
3 defendant’s blood likewise are material because they are indispensable as its
exclusion from evidence would affect the essential proof that the defendant
committed an offense. See id.
However, other enumerated categories of the discovery ordered are not
reasonably limited to the defendant’s case. In Number 12, the trial court ordered
production of “[a]ll proficiency testing results for any person involved in [the]
sample preparation, analysis, or administrative or technical review in the case[,]”
without limiting it to the time when the defendant’s sample was obtained.
McKinney stated that proficiency testing results did not relate to a single case, but
he indicated that they would show how accurate the lab employee was in other
testing. McKinney stated that, in his opinion, the results could be relevant if they
showed the person got the wrong answer on blind samples. The records ordered to
be produced, however, were not limited to proficiency testing results at or near the
time the defendant’s blood sample was taken. We conclude the defendant failed to
articulate the materiality of the scope of proficiency testing results ordered to be
produced under Number 12.
The trial court ordered, in item number 7 of the discovery order, production
of the “testimonial evaluation forms of each laboratory employee involved in the
testing process.” According to McKinney, the evaluations are kept to maintain the
4 laboratory’s accreditation and production of the forms will show that the laboratory
is doing what it must to maintain their accreditation. McKinney testified that the
DPS laboratory is in fact accredited, however, and the only other reason he
provided for the information was that it would give the defense the ability to
discover other cases in which the person testified and allow the defense to obtain a
copy of the transcript. We conclude that the defendant failed to articulate a reason
why the testimonial evaluation forms were material to the defendant’s case.
Under item number 28, the trial court ordered that the defense have an
opportunity to inspect, diagram, and photograph the areas under the control of the
laboratory containing the equipment used to test the sample in this case. The
sample was tested more than two years ago, however, and McKinney agreed that
ordering access to the chromatograph would not be relevant if the machine used in
the defendant’s case is no longer in the laboratory, or if the equipment that was
used in the defendant’s case is no longer in the laboratory. McKinney stated that
the right to inspect the laboratory was limited to when the case has been set for
trial because the laboratory complained that inspections were occurring for cases
that were not going to trial. He did not explain how it would be material to the
defense that an inspection be performed two years after the test in question, when
the equipment used to test the defendant’s blood may no longer be in the
5 laboratory. Therefore, we conclude that the defendant failed to articulate the
materiality of the discovery sought by such inspection.
The trial court ordered discovery not shown to be material to any matter in
the case; therefore, we conclude the trial court exceeded its authority under article
39.14 by ordering the State to produce records of testimonial evaluations and
proficiency testing results under item numbers 7 and 12 of the discovery order and
in ordering the inspection of the DPS laboratory under item number 28. See Tex.
Code Crim. Proc. Ann. art. 39.14; see also In re Hawk, No. 05-16-00462-CV, 2016
WL 3085673, at *2–4 (Tex. App.—Dallas May 31, 2016, orig. proceeding) (mem.
op.). Because a trial court has no discretion in determining what the law is or
applying the law to the facts, its failure to analyze or apply the law correctly
constitutes an abuse of discretion. See In re Thompson, 330 S.W.3d 411, 417 (Tex.
App.—Austin 2010, orig. proceeding); State ex rel. Wade v. Stephens, 724 S.W.2d
141, 144 (Tex. App.—Dallas 1987, orig. proceeding) (conditionally granting
mandamus because trial court’s criminal discovery orders must fall within confines
of limited authorization in article 39.14). Accordingly, we conditionally grant in
part the Relator’s petition for writ of mandamus. 1 Our order staying the trial
1 The Relator complains that he was not provided an opportunity to review the Harris County standing blood discovery order before the trial court adopted it for Polk County. The Relator has since had an opportunity to examine and review 6 court’s discovery order is lifted so that the trial court may vacate the order of
August 9, 2016, and issue a new order in accordance with this opinion. 2 A writ will
issue only if the trial court fails to comply.
PETITION CONDITIONALLY GRANTED IN PART.
PER CURIAM
Submitted on September 12, 2016 Opinion Delivered October 19, 2016 Do Not Publish
Before McKeithen, C.J., Kreger and Horton, JJ.
the proposed Polk County standing blood discovery order and to inquire with the DPS laboratory regarding the burdensomeness of the individual items of discovery. Any specific complaint on which the Relator did not develop evidence because it was not apparent to the Relator at the time of the hearing may be addressed to the trial court on rehearing of the blood discovery order in this case. Therefore, we decline to address that part of the Relator’s argument in this mandamus proceeding. 2 Rule 10 of the Texas Rules of Judicial Administration generally requires any local standing order be adopted by all of the courts of the county before enactment. We express no opinion regarding the application of the standing blood discovery order to any case not before the trial court in this case. 7