Opinion issued June 27, 2019
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-01112-CV
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IN RE GREGORY CHARLES, Relator
Original Proceeding on Petition for Writ of Mandamus
MEMORANDUM OPINION
In this original proceeding, relator, Gregory Charles, seeks relief from the trial
court’s order that requires him to answer discovery in violation of his Fifth
Amendment right.1
1
The underlying case is Yolanda Golden Dailey, Individually and as Heir, and/or
Representative of the Estate of Walter Golden Sr., Deceased Walter Golden, Jr.,
cause number 2018-40931, pending in the 334th District Court of Harris County,
Texas, the Honorable Steven Kirkland presiding.
We conditionally grant mandamus relief.
Background
Relator was involved in a car accident that resulted in the death of Walter
Golden, Sr. The real party in interest, Yolanda Golden Dailey, Individually and as
Heir and/or Representative of the Estate of Walter Golden, Sr., sued relator for
wrongful death and survival damages arising from the motor vehicle collision.
While the civil litigation was pending, the State of Texas charged relator2 with
intoxication manslaughter.3
In the civil litigation, the real party in interest sought discovery from relator
related to the night of the collision. Two discovery questions are relevant in this
mandamus proceeding. First, in interrogatory two, relator was asked to “Identify by
name, address and phone number each person, business or location you were sold,
served, provided or consumed any alcoholic beverages within 24 hours of the motor
vehicle collision in question. Include in your answer when you were served, sold or
provided such alcoholic beverages and what kind, type, and quantity of alcoholic
2
See State of Texas v. Gregory Charles, cause number 1543454, pending in the 209th
District Court of Harris County, Texas, the Honorable Brian Warren presiding.
3
See TEX. PENAL CODE 49.08 (providing that person commits offense if person
operates motor vehicle in public place and is intoxicated, and by reason of that
intoxication, causes death of another by accident or mistake). A person is
considered “intoxicated” if the person: (1) does not have the normal use of their
mental or physical faculties by reason of the introduction of alcohol into the body;
or (2) has an alcohol concentration of .08 or more. TEX. PENAL CODE § 49.01(2).
2
beverage(s) did you consume.” Relator objected, asserting his “Fifth Amendment
privilege against self incrimination to the extent this interrogatory seeks to compel
Defendant to provide evidence or testimony that Defendant reasonably fears would
subject him to criminal responsibility.”
Second, in request for production number 18, relator was asked, “Please
provide a copy of the billing records or other documents for any cellular telephone,
mobile device, or other electronic device Defendant was using, or was available for
Defendant’s use, on the day of the incident forming the basis of this lawsuit, to
include any placed or received cellular telephone calls, emails, text messages, or
multimedia message using a mobile phone or other electronic device on the day of
the incident from the basis of this lawsuit.” Relator objected, asserting his “Fifth
Amendment privilege against self incrimination to the extent this request seeks to
compel Defendant to provide evidence or testimony that Defendant reasonably fears
would subject him to criminal responsibility.”
The real party in interest filed a motion to compel on November 1, 2018,
arguing that the trial court should compel the responses because “Defendant is
making blanket assertions of the privilege against self-incrimination” and “[t]he
underlying facts of this case show Defendant is attempting to evade answering
questions that cannot possibl[y] have any tendency to incriminate but will prevent
Plaintiffs from prosecuting their case.” The real party in interest contended that she
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has a potential dram shop claim4 against the bar that served relator alcohol and that
the two-year statute of limitations runs on March 7, 2019. The real party in interest
specifically referenced interrogatory two and asserted that “[t]he providing of the
identity of these potential Defendants will not be a waiver of the Defendant’s Fifth
Amendment right of self-incrimination, since this interrogatory does not ask the
amount or quantity of any alcohol he was served or which he consumed.”
Relator responded, arguing that interrogatory two “expressly seeks
information related” to intoxication and an element of the criminal charges against
him is that he was intoxicated. Relator further responded that request for production
18 would also violate his Fifth Amendment right.
At the hearing on the motion to compel, relator’s counsel argued that where
relator was drinking and if he was drinking would certainly be privileged. The trial
court stated, “I disagree with that. The defendant’s presence in a public space over
the 24 hours prior to the accident is not privileged.” Relator’s counsel argued that
“it is still a link in the chain of evidence that is leading to a prosecution and—.” The
trial court ultimately issued an order, compelling relator to answer interrogatory 2
and request for production 18.
4
In passing the Dram Shop Act, the Texas Legislature intended to provide a statutory
remedy when a bar’s negligence proximately causes an individual’s injuries. TEX.
ALCO. BEV. CODE § 2.02.
4
Relator then brought this mandamus petition and an emergency motion to stay
the trial court’s discovery order. We granted a stay on January 15, 2019.
Standard of Review and Applicable Law
Mandamus is an extraordinary remedy that is available only when (1) a trial
court clearly abuses its discretion and (2) there is no adequate remedy by appeal. In
re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.
proceeding). A trial court clearly abuses its discretion if it reaches a decision so
arbitrary and unreasonable as to amount to a clear and prejudicial error of law.
Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). With respect
to a trial court’s determination of legal principles, “[a] trial court has no ‘discretion’
in determining what the law is or applying the law to facts.” In re Prudential, 148
S.W.3d at 135 (quoting Walker, 827 S.W.2d at 840).
The United States Constitution both guarantees that a person may not be
compelled to testify or give evidence against herself. See U.S. CONST. amend. V;
Maness v. Meyers, 419 U.S. 449, 461 (1975); In re Commitment of Lowe, 151
S.W.3d 739, 745 (Tex. App.—Beaumont 2004, no pet.). The Fifth Amendment can
be asserted in civil cases whenever “the answer might tend to subject to criminal
responsibility [she] who gives it.” Tex. Dept. of Pub. Safety Officers Ass’n v.
Denton, 897 S.W.2d 757, 760 (Tex. 1995) (quoting McCarthy v. Arndstein, 266 U.S.
34, 40 (1924)). Thus, it may be asserted to avoid general civil discovery if the person
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invoking it reasonably fears the answer would tend to incriminate her. Id.; see also
Wehling v. Columbia Broad. Sys., 608 F.2d 1084, 1086 (5th Cir. 1979). However,
blanket assertions of the privilege in civil cases are impermissible. See Lowe, 151
S.W.3d at 745; In re Commitment of Browning, 113 S.W.3d 851, 862 n.10 (Tex.
App.—Austin 2003, pet. denied). And, the privilege must be asserted on a question-
by-question basis. Lowe, 151 S.W.3d at 745; In re Verbois, 10 S.W.3d 825, 828
(Tex. App.—Waco 2000, orig. proceeding).
Moreover, in a civil suit, a witness’s decision to invoke the privilege is not
absolute. In re Speer, 965 S.W.2d 41, 45 (Tex. App.—Fort Worth 1998, orig.
proceeding). A trial court is entitled to determine whether the assertion of the
privilege appears to be based upon the good faith of the witness and is justifiable
under all of the circumstances. Ex Parte Butler, 522 S.W.2d 196, 198 (Tex. 1975);
In re R.R., 26 S.W.3d 569, 574 (Tex. App.—Dallas 2000, orig. proceeding); Speer,
965 S.W.2d at 45. Before compelling answers to discovery in a civil case over an
assertion of the Fifth Amendment privilege, the court must be “perfectly clear, from
a careful consideration of all the circumstances in the case, that the witness is
mistaken, and that the answer(s) cannot possibly have such tendency to incriminate.”
Butler, 522 S.W.2d at 198. Upon a party’s assertion of the Fifth Amendment
privilege to a discovery request in a civil suit, the trial court reviews the discovery
request, applies the law of privilege, discovery, and protection to the request, and
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determines how best to protect the privilege, the right to proceed with the case, and
the right to defend the suit. Speer, 965 S.W.2d at 45–46; see In re R.R., 26 S.W.3d
at 574. “It is the trial court’s duty to consider the witness’s evidence and argument
on each individual question and determine whether the privilege against self-
incrimination is meritorious.” Lowe, 151 S.W.3d at 745 (quoting Speer, 965 S.W.2d
at 46).
The inquiry by the court is necessarily limited because the witness only has to
show that a response is likely to be hazardous to her. Speer, 965 S.W.2d at 45. The
witness cannot be required to disclose the very information the privilege protects.
Butler, 522 S.W.2d at 198; Speer, 965 S.W.2d at 45. Each question for which the
privilege is claimed must be studied, and the court must forecast whether an answer
to the question could tend to incriminate the witness in a crime. Speer, 965 S.W.2d
at 45. The privilege extends not only to answers that would in themselves support a
conviction, but embraces answers that would furnish a link in the chain of evidence
needed to prosecute the claimant. Maness, 419 U.S. at 461; Hoffman v. United
States, 341 U.S. 479, 486 (1951). It is relator’s burden to establish the applicability
of the Fifth Amendment privilege. Batson v. Rainey, 762 S.W.2d 717, 720 (Tex.
App.—Houston [1st Dist.] 1988, no writ).
Analysis
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Relator argues that the trial court abused its discretion by compelling him to
answer two questions that would tend to incriminate him. We agree. Here, the
possibility of relator’s prosecution for involuntary manslaughter was not remote or
speculative. See Smith v. White, 695 S.W.2d 295, 297 (Tex. App.—Houston [1st
Dist.] 1985, orig. proceeding) (holding that defendants under indictment entitled to
assert Fifth Amendment rights in civil custody dispute). It is undisputed that relator
has already been indicted by the State of Texas for conduct at issue in the civil suit.
Thus, it is likely that any information that relator provides in response to the two
discovery requests would be used against him in the criminal proceeding. See In re
Espinoza, No. 04-07-00598-CV, 2007 WL 4180216, at *3 (Tex. App.—San Antonio
2007, orig. proceeding) (finding that information that relator provided in depositions
would be used against him in criminal proceeding). The interrogatory compelled by
the trial court asked relator about his location on the night that underlies his criminal
indictment, when he consumed alcoholic beverages, and what kind of alcohol he had
been drinking, as well as the quantity. Likewise, the request for production
compelled relator to give information from his phone, including emails, text
messages or multimedia messages on the day of the incident. It is not difficult to
envision that information from relator’s phone could include pictures of the evening
or details of the plans for the evening that would provide the State with a link in the
chain of evidence needed to prosecute appellant in the criminal trial. See Hoffman,
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341 U.S. at 486. Under the facts of this case—the pending criminal case and the
nature of the questions asked—relator’s assertion of the privilege was not
unreasonable, and we cannot conclude that relator’s answers “cannot possibly have
such tendency to incriminate.” See Hoffman, 341 U.S. at 486 (holding that
protection afforded by privilege against self-incrimination is confined to instances
in which witness has reasonable cause to apprehend danger from direct answer). We
therefore conclude that the trial court abused its discretion in compelling relator to
answer these questions in violation of his Fifth Amendment right.
Because the trial court’s error is of constitutional dimension, appeal is not an
adequate remedy. See Tilton v. Marshall, 925 S.W.2d 672, 682 (Tex. 1996); In re
Speer, 965 S.W.2d at 45. Indeed, our Supreme Court has recognized that a writ of
mandamus is available to address discovery orders requiring the disclosure of
information subject to a privilege. In re Nat’l Lloyds Ins. Co., 532 S.W.3d 794, 802–
03 (Tex. 2017) (orig. proceeding). We therefore conclude that relator does not have
an adequate remedy by appeal.
Conclusion
9
Having concluded that the trial court abused its discretion and that relator
lacks an adequate remedy by appeal, we conditionally grant the writ of mandamus.
We order the trial court to vacate the portion of its order that compelled relator to
respond to the discovery at issue in this opinion. We are confident that the
respondent will comply with this order, and a writ of mandamus will issue only in
the event that he does not do so. All pending motions are overruled as moot. We
withdraw our stay order issued January 15, 2019.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Higley and Hightower.
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