In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-03-00225-CR
______________________________
BRIAN DOUGLAS HEDDEN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court No. F02-25184-WR
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Ross
MEMORANDUM OPINION
Brian Douglas Hedden has appealed the trial court's judgment adjudicating his guilt and sentencing him to twelve years' imprisonment. On appeal, Hedden contends (1) the trial court failed to afford him due process because he was not served with a copy of the motion to adjudicate guilt, (2) the trial court erred by adjudicating Hedden's guilt for reasons other than a violation of the original judgment placing him on deferred community supervision, and (3) the evidence is insufficient to support a finding Hedden violated the conditions of his community supervision in the manner alleged in the State's motion to adjudicate guilt. We dismiss the appeal for want of jurisdiction.
Background
On November 5, 2002, Hedden pled guilty to the offense of sexual assault of a child, as charged in the indictment. See Tex. Pen. Code Ann. § 22.011(a)(2)(A) (Vernon Supp. 2004) (sexual assault of a child). Pursuant to a plea agreement, the trial court deferred a finding of guilt and placed Hedden on community supervision for a period of ten years.
On December 4, 2002, the trial court modified Hedden's conditions of community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12, § 10 (Vernon Supp. 2004) (trial court may modify conditions of community supervision). The modification prohibited Hedden from operating a motor vehicle without first obtaining a valid Texas driver's license, and it ordered that, before he obtained a driver's license, Hedden was first to
enter the Dallas County Community Supervision and Corrections Department['s] Antabuse Program to include consuming an Antabuse tablet as prescribed by a doctor, and supply proof to the probation officer that an Antabuse tablet was consumed in the presence of a staff member daily. Comply with the directives and policies of the Antabuse Program.
Hedden's signature, acknowledging and accepting the terms of the trial court's modification, appears at the bottom of the trial court's order.
On June 4, 2003, the State filed a motion to adjudicate Hedden's guilt, alleging Hedden had failed to take the Antabuse on March 6, 11, 21, 24, and 31, on April 10 and 22, and on May 14 of that year. On July 19, 2003, Hedden filed an objection to the State's motion to adjudicate guilt on the basis that the alleged violations were not required by the trial court's order of November 5, 2003.
The following day, Hedden pled "true" to the allegations contained in the State's motion to adjudicate guilt, including failing to take Antabuse as required. The trial court adjudicated his guilt and sentenced him to twelve years' imprisonment.
Analysis
In his first point of error, Hedden contends he was denied due process because the State failed to serve him with written notice of the way in which Hedden allegedly violated his conditions of community supervision. Hedden next asserts the trial court erred by adjudicating his guilt for violating the terms of the modification order of December 4, 2004, because those conditions were "vague and ambiguous." Finally, Hedden argues the trial court abused its discretion by adjudicating his guilt when the evidence presented at the hearing varied from the allegation contained in the State's motion to adjudicate guilt.
"It is well settled that no appeal may be taken of a trial court's determination to adjudicate guilt." Smith v. State, 52 S.W.3d 475, 476 (Tex. App.—Corpus Christi 2001, pet. ref'd) (citing Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b); Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992)). Hedden's points of error concern the trial court's decision to proceed to an adjudication of guilt. We are without jurisdiction to consider issues related to a trial court's decision to proceed to an adjudication of guilt. Cf. Phynes, 828 S.W.2d at 2 (appellate court was without jurisdiction to consider whether trial court erred by proceeding on motion to adjudicate when counsel was not present). But cf. Vidaurri v. State, 49 S.W.3d 880, 885 (Tex. Crim. App. 2001) (appellate court had jurisdiction to consider claim that appellant was denied separate punishment hearing because that issue was separate from court's decision to adjudicate).
Moreover, even if we had jurisdiction to consider the first point of error, Hedden failed to preserve the issue for appellate review. To preserve an issue for appellate review, the record must show (1) the complaint was presented to the trial court by timely request, objection, or motion, and (2) the trial court either ruled on the request, objection, or motion, or the trial court refused to rule and the appellant objected to that refusal to rule. Tex. R. App. P. 33.1(a). Even certain constitutional errors may be waived. Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000). Hedden did not object before, or during, the hearing on the State's motion. Neither did Hedden request a continuance for more time to prepare. The record also shows Hedden was aware of the allegations contained in the State's motion to adjudicate. Cf. Eddie v. State, 100 S.W.3d 437, 440 (Tex. App.—Texarkana 2003, pet. ref'd). Therefore, if we had jurisdiction, we would find Hedden failed to preserve this issue for appellate review.
For the reasons stated, we are without jurisdiction to consider Hedden's appeal. We dismiss the appeal for want of jurisdiction.
Donald R. Ross
Justice
Date Submitted: March 29, 2004
Date Decided: March 30, 2004
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(1) The Hospital Waived Its Objections to the Subpoena
Crane, the real party in interest, argues the Hospital waived any objections by failing to timely object to the subpoena. Any objections to a subpoena must be made "before the time specified for compliance" with the subpoena. Tex. R. Civ. P. 176.6(d), (e); see Young v. Ray, 916 S.W.2d 1, 3 (Tex. App.—Houston [1st Dist.] 1995, orig. proceeding) (former rule 177a). The Hospital acknowledged in its objections filed with the trial court that it received the subpoena July 25, 2005. Compliance with the subpoena was due twenty days after it was served. The Hospital filed its objections November 1, 2005. Because the objections were filed after subpoena compliance was due, and because the Hospital failed to explain or justify its three-month delay in objecting to the subpoena, the Hospital waived its objections to the subpoena.
(2) Even Without Waiver, the Trial Court's Order Was Not an Abuse of Discretion
Even without the Hospital's waiver of its subpoena objections, the requested writ of mandamus would not be available because the Hospital has failed to show that the trial court clearly abused its discretion. There was no abuse of discretion because the trial court's production order neither exceeds the scope of the discovery rules nor clearly places a burden on the Hospital outweighing the benefit to be obtained from the production.
(a) The Production Order Did Not Exceed the Scope of the Discovery Rules
The Hospital argues, in its first issue, that neither Rule 176.6(d) nor Rule 205 of the Texas Rules of Civil Procedure permit custodial transfer of tangible items. The trial court obviously concluded otherwise.
We review de novo the trial court's conclusions concerning the scope of the Texas Rules of Civil Procedure. BASF Fina Petrochemicals L.P. v. H.B. Zachry Co., 168 S.W.3d 867, 871 (Tex. App.—Houston [1st Dist.] 2004, pet. denied). "A trial court has no 'discretion' in determining what the law is or applying the law to the facts." Huie v. DeShazo, 922 S.W.2d 920, 927–28 (Tex. 1996) (orig. proceeding) (quoting Walker, 827 S.W.2d at 840). Therefore, an erroneous legal conclusion by the trial court constitutes an abuse of discretion. Huie, 922 S.W.2d at 927–28. A trial court clearly abuses its discretion when it orders the production of discovery beyond that permitted by the Texas Rules of Civil Procedure.
Discovery from nonparties is governed by Rule 205. See Tex. R. Civ. P. 205.1. Rule 205.1 allows oral depositions, depositions on written questions, and requests for production of documents or tangible things. See Tex. R. Civ. P. 205.1. Rule 205.3 provides for production of documents and tangible things from a nonparty. See Tex. R. Civ. P. 205.3. Any objections to discovery under Rule 205.3 must be in accordance with Rule 176.6. Id.; see Tex. R. Civ. P. 176.6.
The Hospital argues that the production contemplated by Rule 176.6(d) is limited to "inspection or copying of designated documents and things." That reading is too limited. Rule 176.6(d) refers to an order "to produce and permit inspection or copying of designated documents and things." Tex. R. Civ. P. 176.6(d). The quoted language from the rule does not define "production." Further, the Hospital's narrow interpretation would subvert explicit portions of Rule 205.3.
The plain language of Rule 205.3(b)(3) includes "testing" as one legitimate purpose of production of an item from a nonparty. See Tex. R. Civ. P. 205.3(b)(3). Specifically, the rule provides that a notice to produce tangible things must state "the items to be produced or inspected by individual item or by category, describing each item and category with reasonable particularity, and, if applicable, describing the desired testing and sampling with sufficient specificity to inform the nonparty of the means, manner, and procedure for testing or sampling." Id. By requiring notice of proposed testing and the manner and means of the proposed testing, the rules clearly indicate production is available to test tangible objects beyond simple inspection.
Generally, we should interpret rules according to the plain meaning of the words in the rule. See City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003). When two rules govern the same subject matter, an effort should be made to harmonize and give effect to both rules. See Argonaut Ins. Co. v. Baker, 87 S.W.3d 526, 531 (Tex. 2002). The Hospital's proposed interpretation would be contrary to the plain language of the rules and render certain portions of Rule 205.3 meaningless. Certainly, a party has the right to do its own testing. See Tex. R. Civ. P. 205.3(b)(3); In re SWEPI L.P., 103 S.W.3d 578, 585 (Tex. App.—San Antonio 2003, orig. proceeding) (testing of hydrocarbon well).
The question really is whether that testing may be done only while the item remains in the possession of the owner or original custodian. The rule is not so limited. Much testing would either be impossible or extremely limited if the tangible object could be tested only in the custody of the owner or original custodian. The rules expressly provide for production of a tangible item for testing, and one contemplated method by which that production may be accomplished is physically delivering possession of the item to the requesting party or that party's agent. See Gen. Motors Corp. v. Tanner, 892 S.W.2d 862, 863 (Tex. 1995) (orig. proceeding) (per curiam) (granting mandamus to compel party to deliver car seat, apparently into another party's custody, for testing by allowing requesting party to make model of item for subsequent examination using scanning electron microscope); Gen. Elec. Co. v. Salinas, 861 S.W.2d 20, 23–24 (Tex. App.—Corpus Christi 1993, no writ) (error to deny motion to deliver possession of allegedly defective product for testing); see also Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 556 (Tex. 1990) ("produce" to court means deliver to court's possession). Because the production rules are broad enough to include transfer of possession of a tangible item for the purpose of testing it, the trial court's order does not exceed the scope of the Texas Rules of Civil Procedure.
(b) The Trial Court Balanced the Benefits and Burdens Within Its Discretion
In its second issue, the Hospital argues the trial court imposed an undue burden on the Hospital by ordering the production of the pathology materials. We find no abuse of discretion in the trial court's allocation of burdens and benefits.
The scope of discovery is broadextending to "any matter that is not privileged and is relevant to the subject matter of the pending action . . . ." Tex. R. Civ. P. 192.3(a). Further, "only in certain narrow circumstances is it appropriate to obstruct the search for truth by denying discovery." State v. Lowry, 802 S.W.2d 669, 671 (Tex. 1991) (orig. proceeding); Collins v. Cleme Manor Apartments, 37 S.W.3d 527, 532–33 (Tex. App.—Texarkana 2001, no pet.).
With respect to the resolution of factual issues or matters committed to the trial court's discretion, the reviewing court may not substitute its judgment for the trial court. Brady v. Fourteenth Court of Appeals, 795 S.W.2d 712, 714 (Tex. 1990) (orig. proceeding); Walker, 827 S.W.2d at 839–40. The relator must establish that the trial court could reasonably have reached only one decision. Walker, 827 S.W.2d at 840. "An abuse of discretion does not exist if the trial court bases its decision on conflicting evidence and some evidence reasonably supports the trial court's decision." CSR Ltd. v. Link, 925 S.W.2d 591, 600 (Tex. 1996) (orig. proceeding).
A trial court abuses its discretion if it compels discovery which imposes a burden on the producing party far out of proportion to any benefit to the requesting party. In re AIU Ins. Co., 148 S.W.3d 109, 116–17 (Tex. 2004) (orig. proceeding); Walker, 827 S.W.2d at 843. Rule 192.4 of the Texas Rules of Civil Procedure provides as follows:
The discovery methods permitted by these rules should be limited by the court if it determines, on motion or on its own initiative and on reasonable notice, that:
(a) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; or
(b) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.
Tex. R. Civ. P. 192.4. The rules encourage "trial courts to limit discovery when 'the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.'" In re Alford Chevrolet-Geo, 997 S.W.2d 173, 181 (Tex. 1999) (orig. proceeding).
The Hospital argues it has a responsibility, as a research hospital, to preserve and protect pathology materials collected from patients. According to the Hospital, these materials must be readily accessible for researchers, stored in a manner which ensures the integrity of the material, and handled properly. Removal of tissue from the Hospital for testing risks complete loss of the tissue or loss or damage of the tissue through improper handling, such as breaking of glass slides or melting of paraffin blocks, thus jeopardizing the material's value for research.
Seeking to preserve the pathology materials in its possession, the Hospital has adopted a policy for responding to and accommodating requests for testing of pathology materials by allowing only on-site examination of slides or, on request, by Hospital laboratory personnel cutting additional sections from specimen blocks and making those new sections available to the requesting party. The Hospital alleges other litigants have successfully used this procedure and believes this policy balances the needs of its research with the needs of litigants.
The Hospital does not claim or demonstrate that Andrews' tissue samples have unique value to its research, but claims only that they are part of its sample collection. Further, the Hospital has had the tissue available for study, we presume, since 2001, the year of Andrews' death. On the other hand, the materials have specific, unique value to the parties to the lawsuit. In fact, they are of vital importance to the parties' underlying litigation. Without access to the pathology materials, the real party in interest would have difficulty performing the tests necessary to prepare its defense. Both sides in the personal injury litigation have an apparent special need to access the materials, since the Andrews materials may very well be the most important evidence available to them.
The trial court was presented with evidence that the Hospital's procedure may not meet the needs of the litigants. During the hearing, both Russell Brown, counsel for the plaintiff, and Scott C. Skelton, counsel for Crane, testified that many of the experts for both the defense and the plaintiff's side are "from all over this nation" and that inspection at the Hospital would not be cost-effective. Further, at least some of the tests the parties desire to perform on the materials could not be performed under the Hospital's policy. The attorneys also testified that the samples are shipped by reliable shippers and care is taken to follow any protocol requested by the Hospital concerning proper handling of the material.
The trial court has acted to protect the pathology materials. The trial court's order should be read in conjunction with the agreed discovery order of February 2, 2004. The agreed discovery order—agreed between the parties to the litigation, not the Hospital—provides a protocol for testing of all pathology materials in the case and provides protections to the parties as well as the Hospital for preservation of the same. The agreed order provides:
In the event it appears that insufficient pathology material is available, the Court will conduct further hearings to determine how testing shall proceed. If destructive testing shall destroy all, or effectively all, of the pathology material, no testing shall take place without further order of this court.
The agreed order provides a mechanism for the Hospital to protect its interest in the sample. The Hospital has neither requested modification of the agreed order, nor shown that the proposed analyses are inappropriate.
The pathology materials are critically important to the parties, and the Hospital failed to show that the trial court clearly abused its discretion. We recognize that multiple parties have interests in the pathology material in dispute. Although the Hospital clearly has an interest in preserving its samples' integrity for research and maximizing the access researchers have to its samples, the parties have a vital interest in being able to properly and completely analyze the Andrews samples to adequately prepare for the pending litigation. There is sufficient evidence to support the trial court's decision. We cannot say the trial court clearly abused its discretion in balancing these interests and in resolving the conflicting evidence. The trial court did not abuse its discretion in concluding the burden on the Hospital did not outweigh the benefit to the parties.
For the reasons stated, we deny the Hospital's petition for writ of mandamus.
Josh R. Morriss, III
Chief Justice
Date Submitted: July 18, 2006
Date Decided: July 19, 2006