McBride v. State

838 S.W.2d 248, 1992 Tex. Crim. App. LEXIS 158, 1992 WL 139285
CourtCourt of Criminal Appeals of Texas
DecidedJune 24, 1992
Docket1284-91
StatusPublished
Cited by63 cases

This text of 838 S.W.2d 248 (McBride v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McBride v. State, 838 S.W.2d 248, 1992 Tex. Crim. App. LEXIS 158, 1992 WL 139285 (Tex. 1992).

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

BAIRD, Judge.

Appellant was convicted of possession of a controlled substance pursuant to Tex. Health & Safety Code Ann. § 481.112. The jury assessed punishment at confinement for life. Tex. Penal Code Ann. § 12.42(d). The Court of Appeals affirmed. McBride v. State, No. 3-90-002-CR, (Tex.App.—Amarillo 1991, delivered September 30, 1991) (not published). We granted appellant’s petition to review the Court of Appeal’s determination that appellant was not entitled to the appointment of a chemist to assist in his defense.1 We will reverse.

I.

Appellant was charged with possession of a controlled substance, namely cocaine, in an amount less than 28 grams. Appellant filed an affidavit of indigence requesting the appointment of counsel.2 Based [250]*250upon that affidavit, the trial judge found appellant was “too poor to employ counsel” and appointed counsel to represent appellant.3 Shortly thereafter, appellant’s attorney filed a “Motion for the Appointment of an Investigator/Chemist” requesting a chemist “to conduct the necessary scientific and other examinations of evidence in this case.”4 At the hearing on his motion, appellant argued that an expert was necessary to perform a qualitative analysis of the controlled substance alleged in the indictment. The State argued that a qualitative analysis was irrelevant and the trial judge overruled appellant’s motion.

II.

The threshold issue is whether a criminal defendant has a right to inspect the physical evidence to be used against him.5 Tex.Code Crim.Proc.Ann. art. 39.14 which governs the inspection of any evidence in a criminal case provides in part:

Upon motion of the defendant showing good cause therefor and upon notice to the other parties, the court in which an action is pending may order the State before or during trial of a criminal action therein pending or on trial to produce and permit the inspection and copying or photographing by or on behalf of the defendant of any designated documents, papers, written statement of the defendant (except written statements of witnesses and except the work product of counsel in the case and their investigators and their notes or report), books, accounts, letters, photographs, objects or tangible things not privileged, which constitute or contain evidence material to any matter involved in the action and which are in the possession, custody or control of the State or any of its agencies ....

Art. 39.14 places a burden upon the defendant to show “good cause” for the inspection. The decision on what is discoverable is left to the discretion of the trial judge. Quinones v. State, 592 S.W.2d 933, 940 (Tex.Cr.App.1980). We will not disturb a trial judge’s decision under art. 39.14 absent an abuse of discretion. However, the trial judge is required “to permit discovery if the evidence sought is material to the defense of the accused.” Quinones, 592 S.W.2d at 941 (Emphasis in original).

In Detmering v. State, 481 S.W.2d 863 (Tex.Cr.App.1972), the defendant was charged with possession of LSD. Approximately two months prior to trial the defendant filed a motion to inspect the alleged controlled substance. The trial judge responded to the motion by permitting a visual inspection only. We held the trial judge reversibly erred by denying the defendant an opportunity to inspect the alleged substance. Specifically, we held:

In his Special Commentary on Article [39.14], Y.A.C.C.P., our present Presiding Judge said that, “If it is known that the State is planning to base its case on a fingerprint, bullet, pistol or rifle, book or record, the defendant can have his own expert examine the same under the safeguards provided.” Although Judge Onion did not discuss drugs and although [251]*251the Legislature did not name drugs as one of the items which could be “examined” under the discovery statute, it is clear that such is a proper interpretation of the statute....

Id. at 864.

See also, Terrell v. State, 521 S.W.2d 618, 619 (Tex.Cr.App.1975) (failure to grant defendant’s motion for discovery seeking an independent chemical inspection of the alleged controlled substance was reversible error).

Later, we interpreted the foregoing cases as providing the defendant with an absolute right to an independent inspection of evidence “indispensable to the State’s case.” Bates v. State, 587 S.W.2d 121, 131 (Tex.Cr.App.1979). In Quinones, the trial judge overruled the defendant’s motion to evaluate a tape recording to determine its authenticity. We held:

Appellant had no absolute right to a court-appointed independent expert to evaluate the tape. This absolute right has only been extended where the defendant requests an independent examination of the physical evidence of the criminal offense, such as drugs in a drug possession case. See Terrell v. State, 521 S.W.2d 618 (Tex.Cr.App.1975); Detmering v. State, 481 S.W.2d 863 (Tex.Cr.App.1972). Such evidence is legally “indispensable to the State’s case.” Bates v. State, [587 S.W.2d 121, 131 (Tex.Cr.App.1979)]. Tape recordings like the one in this case, while very incriminating, are not so legally indispensable, id.; their exclusion from evidence would not affect the essential proof that appellant committed an offense.

Quinones, 592 S.W.2d at 942-943.

Based on these holdings, we find that a criminal defendant has a right to inspect evidence indispensable to the State’s case because that evidence is necessarily material to the defense of the accused.6 As the cocaine alleged in the indictment was indispensable to the State’s case, appellant had a right to inspect that evidence.7

III.

Having found appellant was entitled to inspect the substance alleged in the indictment, we now turn to appellant’s ground for review to determine whether appellant was denied due process and effective assistance of counsel when the trial judge overruled appellant’s motion for the appointment of an expert to inspect the alleged substance. As previously noted, appellant was determined to be indigent, therefore, appellant was unable to inspect the alleged substance without the assistance of a court appointed chemist.

In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the Supreme Court recognized “that in our adversary system of criminal justice, any person [252]

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Cite This Page — Counsel Stack

Bluebook (online)
838 S.W.2d 248, 1992 Tex. Crim. App. LEXIS 158, 1992 WL 139285, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcbride-v-state-texcrimapp-1992.