In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-14-00308-CV
IN RE MICHAEL MUNK, RELATOR
Original Proceeding
August 15, 2014
MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Relator, Michael Munk, serves as the elected district attorney for the 106th
District and has filed his petition for writs of mandamus and prohibition in relation to
orders issued by Respondent, the Honorable Carter T. Schildknecht, presiding judge of
the 106th District Court, in which Respondent granted a defendant’s motion to (1)
consolidate the trial of charges pending in three separate indictments and (2) require
the State to disclose the criminal history of certain witnesses. Relator further seeks a
writ of prohibition that would prevent Respondent from requiring the State to disclose
such criminal history of its witnesses in the future. For the reasons expressed herein,
we will deny Relator’s petition for writs of mandamus and prohibition.
Factual and Procedural History
The subject orders of the instant petition originate in the underlying proceedings
styled State of Texas v. Sammy Carl Williams, trial court cause number 14-3151.
Williams was charged with several offenses stemming from the same criminal episode
in three different indictments under trial court cause numbers 14-3149, 14-3150, and
14-3151. In trial court cause number 14-3149, Williams was charged with aggravated
assault and failure to stop and render aid. In trial court cause number 14-3150, he was
charged with failure to stop and render aid, and, in trial court cause number 14-3151, he
was charged with aggravated assault, intoxication assault, and injury to a child. On
August 4, 2014, Williams moved to consolidate the charges pending in those three
indictments. The State unsuccessfully opposed the consolidation; following a hearing
on the motion held August 11, Respondent granted Williams’s motion to consolidate the
three indictments for trial under a single cause number: 14-3151. On that same day,
Respondent also granted Williams’s motion to list witnesses and request for criminal
histories of the State’s witnesses. Trial on the consolidated indictment is scheduled to
begin on August 15, 2014.
Relator now seeks extraordinary relief from these two orders in his petition. He
contends that this Court should issue writs of mandamus to compel respondent to
withdraw her orders dated August 11, by which she granted Williams’s motion to
consolidate and his request that the State provide the criminal histories of its witnesses.
He also requests that this Court issue a writ of prohibition against Respondent directing
her to refrain from requiring the State to run criminal background checks on any of its
witnesses in the future. In conjunction with his petition for writs of mandamus and
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prohibition, Relator sought emergency temporary relief in the form of a stay of the
proceedings in trial court cause number 14-3151, proceedings which are scheduled to
begin on Friday, August 15. See TEX. R. APP. P. 52.10(a). By separate order, this
Court denied Relator’s motion for emergency relief. For the reasons outlined below, we
will likewise deny his petition.
Petition for Writs of Mandamus
Applicable Law and Standards
Mandamus will issue only to correct a clear abuse of discretion or the violation of
a duty imposed by law when there is no other adequate remedy by law. Walker v.
Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). Thus, evaluating whether
mandamus relief should be granted requires that we determine whether there has been
a clear abuse of discretion by the trial court and, if so, whether an adequate appellate
remedy exists. See id.
Consolidation of Charges for Trial
We first address Relator’s contentions in support of his request that this Court
compel Respondent by writ of mandamus to withdraw her order dated August 11, 2014,
in which she granted Williams’s motion to consolidate the charges pending into a single
trial court cause number. Relator maintains that the State’s consent is required before
Respondent may consolidate trial on the three indictments pending against Williams.
It has long been the rule in this State that, when a defendant is faced with
multiple pending indictments, those indictments may be consolidated into a single
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proceeding with the express or implied—by failure to object—consent of the defendant.
Cervantes v. State, 815 S.W.2d 569, 571 (Tex. Crim. App. 1991) (en banc). That is not
to say that the trial court is required to consolidate the cases on the defendant’s
request. See Ex parte Charlesworth, 600 S.W.2d 316, 317 (Tex. Crim. App. [Panel Op.]
1980). The general provision of the Texas Penal Code governing consolidation is
treated as permissive, meaning that it does not give a defendant the right to demand
consolidation of offenses committed in the same criminal episode. See TEX. PENAL
CODE ANN. § 3.02(a) (West 2011); Gongora v. State, 916 S.W.2d 570, 575 (Tex. App.—
Houston [1st Dist.] 1996, pet. ref’d) (citing Nelson v. State, 864 S.W.2d 496, 498 (Tex.
Crim. App. 1993) (en banc)); see also McNeil v. State, 398 S.W.3d 747, 758 (Tex.
App.—Houston [1st Dist.] 2011, pet. ref’d), cert. denied, 133 S. Ct. 1264, 185 L. Ed. 2d
205 (2013) (observing that Section 3.02 “does not make consolidation mandatory”).
Generally, “the matter of consolidation of indictments, with the defendant’s approval, [is]
a matter to be left to the discretion of the trial court.” Johnson v. State, 509 S.W.2d 322,
323 (Tex. Crim. App. 1974).
By moving to consolidate the trial on the several charges pending against him,
Williams has expressly consented that those indictments be consolidated and submitted
the issue to Respondent’s discretion. See id. Relator re-urges the State’s
dissatisfaction with Respondent’s exercise of that discretion in favor of consolidation
and re-asserts that the State’s consent was required before consolidation could be
permitted, but it points to nothing that would suggest that Respondent abused her
discretion by deciding to proceed in a single trial on the charged offenses from a single
criminal episode. That said, we cannot conclude that Respondent abused her
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discretion by granting Williams’s motion and consolidating the charges pending into trial
court cause number 14-3151 for trial in a single proceeding. By failing to show that
Respondent abused her discretion by entering the order granting Williams’s motion to
consolidate, Relator has failed to show himself entitled to the extraordinary relief
requested. Accordingly, we deny his request for such.
Requiring the State to Disclose Witnesses’ Criminal Histories
Next, we address Relator’s contention that Respondent abused her discretion by
entering an order granting Williams’s motion to list witnesses in which he also requested
that the State provide to him the criminal history of any witnesses the State intends to
call at the guilt/innocence or punishment phase of trial against Williams. In his petition,
Relator characterizes Respondent’s order as one that directs, “if a criminal history was
not already in possession of the State, that the State be required to run a criminal
background check on all of its non-law enforcement witnesses.” Relator maintains the
State has no duty to gather or develop evidence for a defendant that might prove useful
in counteracting the State’s evidence of the defendant’s guilt.
Initially, we note that we do not see the language in Respondent’s order of which
Relator specifically complains. To the contrary, Respondent’s order simply granted
Williams’s motion, which had requested only that the State provide Williams with “a
criminal history on each witness the State intends to call, in either guilt/innocence or
punishment stage.” Next, we note that defense counsel mistakenly cites to the former
Texas Rule of Criminal Evidence 609 in support of his request for criminal histories of
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the State’s witnesses. Of course, this rule has been superseded by Rule 609 of the
Texas Rules of Evidence, which govern both civil and criminal evidentiary matters.
Nonetheless, overlooking this error in citing authority to support Williams’s
request, we note that a prosecutor has an affirmative duty to disclose all material,
exculpatory evidence to the defense. See Lagrone v. State, 942 S.W.2d 602, 615 (Tex.
Crim. App. 1997) (concluding that affirmative duty is “unequivocally clear” under Brady
v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)); see also Ex parte
Kimes, 872 S.W.2d 700, 702 (Tex. Crim. App. 1993) (en banc). A prosecutor violates
the Due Process Clause of the Fourteenth Amendment of the United States Constitution
when he or she fails to disclose material evidence that is favorable to the accused. See
Thomas v. State, 841 S.W.2d 399, 404 (Tex. Crim. App. 1992) (en banc). Favorable
evidence is any evidence, including exculpatory and impeachment evidence, that, if
disclosed and used effectively, may make the difference between conviction and
acquittal. Id. at 403, 404.
With that in mind and despite the formal error in citation to the rules which could
be read to support this affirmative duty, Respondent’s order granting Williams’s request
that the State provide to him, “prior to trial, a criminal history on each witness the State
intends to call, in either guilt/innocence or punishment stage” is an order consistent on
its face with the prosecutorial duty imposed on Relator under current applicable law and
is, therefore, not an abuse of discretion. See id. By failing to show that Respondent’s
order was an abuse of discretion, Relator has again failed to show that he is entitled to
mandamus relief, and we deny him such.
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Petition for Writ of Prohibition
We next address Relator’s contention in support of his request that this Court
issue a writ of prohibition to prevent Respondent from requiring the State to run criminal
background checks on any of its witnesses in the future.
Applicable Law and Standards
We first point out that the writ of prohibition is a creature of limited purpose. In re
Lewis, 223 S.W.3d 756, 761 (Tex. App.—Texarkana 2007, orig, proceeding). The
purpose of the writ of prohibition is to enable a superior court to protect and enforce its
jurisdiction and judgments. Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 683
(Tex. 1989) (orig. proceeding). The writ is typically used to protect the subject matter of
an appeal or to prohibit an unlawful interference with the enforcement of a superior
court’s orders and judgments. Id. To those ends, a writ of prohibition may issue to
accomplish the following tasks: (1) to prevent interference with higher courts in deciding
a pending appeal, (2) to prevent inferior courts from entertaining suits which will
relitigate controversies which have already been settled by the issuing court, and (3) to
prohibit a trial court’s action when it affirmatively appears that the court lacks
jurisdiction. See In re Lewis, 223 S.W.3d at 761; McClelland v. Partida, 818 S.W.2d
453 (Tex. App.—Corpus Christi 1991, orig. proceeding). The writ of prohibition is
designed to operate much like an injunction issued by a superior court to control, limit,
or prevent action in a court of inferior jurisdiction. Holloway, 767 S.W.2d at 682.
In keeping with the limited purpose of the writ of prohibition, an appellate court’s
jurisdiction to issue the writ is likewise limited. See Tex. Employers’ Ins. Ass’n v. Kirby,
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137 Tex. 106, 152 S.W.2d 1073, 1073 (1941). In Kirby, the Texas Supreme Court
concluded that a petition for a writ of prohibition is an ancillary proceeding that is
invoked in aid of an appellate court’s jurisdiction which has otherwise been properly
invoked, not an independent proceeding brought to prohibit an action. See id. That
said, a writ of prohibition is appropriate only after an appellate court’s jurisdiction has
been invoked on independent grounds and then only in aid of that jurisdiction. See id.
So, an appellate court does not have jurisdiction, absent actual jurisdiction of a pending
proceeding, to issue a writ of prohibition requiring that a trial court refrain from
performing a future act. See In re Nguyen, 155 S.W.3d 191, 194 (Tex. App.—Tyler
2003, orig. proceeding); Lesikar v. Anthony, 750 S.W.2d 338 (Tex. App.—Houston [1st
Dist.] 1988, orig. proceeding).
Analysis
In this instance, Relator has not identified a pending proceeding over which this
Court has jurisdiction and by which this Court might have jurisdiction to issue a writ of
prohibition to prohibit a future act by Respondent. Nor have we found such a
proceeding. Simply put, it appears we have no pending jurisdiction to protect or
preserve by way of writ of prohibition. See Kirby, 152 S.W.2d at 1073. The instant case
does not present one of the limited purposes to be achieved by issuance of a writ of
prohibition and, that being the case, we lack jurisdiction to issue such extraordinary
relief. See Holloway, 767 S.W.2d at 683; In re Nguyen, 155 S.W.3d at 194.
Accordingly, we deny Relator’s request to issue a writ of prohibition in this
context.
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Conclusion
Having concluded that Relator has failed to show himself entitled to the
extraordinary remedy of mandamus and having concluded that we lack jurisdiction to
issue a writ of prohibition in this context, we deny Relator’s petition for writs of
mandamus and prohibition. See TEX. R. APP. P. 52.8(a).
Per Curiam
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