IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. WR-91,936-03, -04, -05, -06
IN RE THE STATE OF TEXAS EX REL. KIM OGG, Relator
ON APPLICATIONS FOR WRITS OF MANDAMUS
IN THE 228TH DISTRICT COURT
FROM HARRIS COUNTY
NEWELL, J., filed a concurring opinion in which HERVEY,
RICHARDSON and WALKER, JJ., joined.
If it were clear that the reports that the State refuses to turn over
are work product without any exculpatory, impeachment, or mitigating
value, mandamus relief might be appropriate. 1 But as Judge Hervey
points out in her concurring opinion, this Court has already held that the
1
In re McCann, 422 S.W.3d 701, 704 (Tex. Crim. App. 2013) (citing In re State ex rel.
Weeks, 391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (“ . . . a relator must show that the
facts and circumstances of the case ‘dictate but one rational decision under unequivocal,
well-settled . . . and clearly controlling legal principles.’”)).
Ogg Concurring — 2
State is required to disclose exculpatory and impeaching evidence as a
matter of federal constitutional law. 2 And under the text of Article 39.14
(h), the State has a duty to disclose any exculpatory, impeachment, or
mitigating information regardless of whether it can be characterized as
“work product.” 3 Further, it is unsettled whether the District Attorney’s
independent investigation, which lead to the charged crimes in the
underlying cases, amounts to an “offense report.” Because the State
cannot demonstrate a clear right of relief, the Court rightly holds that
mandamus relief is inappropriate. 4
This case started with a law enforcement raid on the residence at
7815 Harding Street that resulted in the death of the two residents.
After it was determined that law enforcement relied upon false
information provided by Detective Gerald Goines to support the no-
knock warrant at the center of the narcotics raid, the Harris County
District Attorney’s Office (“Relator”) undertook an independent
2
J. Hervey Concurring Opinion at 2 (citing Ex parte Miles, 359 S.W.3d 647, 670 (Tex. Crim.
App. 2012)).
3
TEX. CODE CRIM. PROC. art. 39.14(h) (“Notwithstanding any other provision of this article,
the state shall disclose to the defendant any exculpatory, impeachment, or mitigating
document, item, or information in the possession, custody, or control of the state that tends
to negate the guilt of the defendant or would tend to reduce the punishment for the offense
charged.”).
4
See McCann, 422 S.W.3d at 704 (“With respect to the requirement that the act sought is
purely ministerial, the relator must have a ‘clear right to the relief sought,’ meaning that the
merits of the relief sought are ‘beyond dispute.’).
Ogg Concurring — 3
investigation of the Houston Police Department Officers involved.
Accordingly, the District Attorney’s Office, itself, was the primary
investigative agency. That investigation led to assorted charges of
misapplication of fiduciary property, tampering with governmental
records, and theft by public servant against the real-parties-in-interest.
They, in turn, filed identical discovery requests for the reports and maps
generated pursuant to the Relator’s investigation.
In response, Relator refused to turn over the requested documents
claiming that the requested information amounted to “work product,”
which is statutorily exempted from disclosure. 5 The trial court ordered
the disclosure of the information after determining that the requested
information amounted to “offense reports,” which Realtor is statutorily
required to disclose. 6 These mandamus proceedings followed.
As the party seeking mandamus relief, Relator must establish that
such relief is warranted. 7 Though everyone seems to agree that Relator
has no other adequate remedy aside from mandamus, Relator must still
5
See TEX. CODE CRIM. PROC. art. 39.14(a).
6
See id. (“. . . the state shall produce and permit the inspection and the electronic
duplication, copying, and photographing, by or on behalf of the defendant, of any offense
reports . . .”).
7
Weeks, 391 S.W.3d at 122 (“To be entitled to mandamus relief, the relator must show two
things: (1) that he has no adequate remedy at law, and (2) that what he seeks to compel is
a ministerial act.”).
Ogg Concurring — 4
establish a clear right of relief. 8 I acknowledge that we have recognized
that reviewing courts can address an application of a legal issue to a
novel factual scenario in a mandamus proceeding. 9 But Relator must
still establish that law surrounding that novel scenario is so clear that
facts and circumstances dictate but one rational decision under well-
settled (i.e., from existing statutory, constitutional, or case law
sources), and clearly controlling legal principles. 10 Further, as with any
appeal, the burden is on the party bringing the mandamus action to
ensure there is an adequate record upon which to resolve the issues. 11
The State represented to the trial court, and represents to this
Court, that the information it is refusing to turn over amounts to “work
product.” However, this conclusion is in dispute and the record does not
8
See id. (“The ministerial-act requirement is satisfied if the relator can show a clear right to
the relief sought.”).
9
Id. (“Although we have sometimes suggested that a legal issue’s status as one of first
impression meant that the law was not well-settled, we have since clarified that an issue of
first impression can sometimes qualify for mandamus relief.”).
10
In re Medina, 475 S.W.3d 291, 298 (Tex. Crim. App. 2015) (citing In re Bonilla, 424
S.W.3d 528, 533 (Tex. Crim. App. 2014) (“The ministerial-act requirement is satisfied if the
relator can show a clear right to the relief sought because the facts and circumstances
dictate but one rational decision under unequivocal, well-settled, and clearly controlling
legal principles.”)).
11
See, e.g., London v. State, 490 S.W.3d 503, 508 (Tex. Crim. App. 2016) (noting that “the
appealing party carries the burden to ensure that the record on appeal is sufficient to
resolve the issues presented” and that “the failure to provide a sufficient appellate record
precludes appellate review of a claim.”); see also Walker v. Packer, 827 S.W.2d 833, 837
(Tex. 1992) (noting that relators seeking mandamus relief carry the burden to provide a
sufficient record to establish a right to mandamus relief).
Ogg Concurring — 5
contain the documents at issue, under seal or otherwise. Without them,
I do not believe the Court can say that there is one rational decision
under clearly established law. There is no way to determine whether
the reports are “work product” or “offense reports” under the statute.
Moreover, as Judge Hervey points out in her concurrence, exculpatory,
impeachment, and mitigating evidence must be disclosed even if it
constitutes “work product” under the statute Relator relies upon. 12 This
is because the work-product privilege is not absolute, and the duty to
reveal exculpatory evidence as dictated by Brady overrides any privilege
under the work-product doctrine. 13
But even if we view the record in the light most favorable to
Relator’s claims, we would still have to decide the legal issue the trial
court highlighted, namely what constitutes an “offense report” under
Article 39.14. Prior to the passage of the Michael Morton Act, Article
39.14 did not require disclosure of “offense reports.” 14 Consequently,
this Court has never had occasion to interpret this new addition to the
statute and clarify what constitutes an offense report. It may very well
be that at some point in the future, this Court will determine that the
12
TEX. CODE CRIM. PROC. art. 39.14(h).
13
Miles, 359 S.W.3d at 670.
14
See Acts 2013, 83rd Leg., ch. 49 (S.B. 1611), § 2, eff. Jan. 1, 2014.
Ogg Concurring — 6
types of reports at issue in this case do not constitute offense reports
and only constitute “work product.” But at this juncture we cannot say
that the existent law, statutory and precedential, mandates one rational
conclusion that the reports in this case are only “work product” and not
“offense reports.” Given that, Relator has not established a clear right
to relief.
Indeed, the “work product” doctrine is designed to protect the
attorney. 15 The purpose of the doctrine is to stimulate the production
of information and reward an attorney’s creative efforts. 16 Under Texas
civil rules, material that reflects the attorney’s personal thought
processes is “core work product” and receives absolute protection, while
other materials, such as documents, reports, or memoranda compiled
by the attorney or his agents and communications made in anticipation
of litigation are “other work product” and receive only qualified
protection. 17 Descriptions of potential witnesses and statements that
15
Pope v. State, 207 S.W.3d 352, 357 (Tex. Crim. App. 2006) (“The attorney work-product
doctrine, while not a true evidentiary privilege, belongs to and protects the attorney.”); see
also United States v. Nobles, 422 U.S. 225 238, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975)
(noting “[a]t its core, the work-product doctrine shelters the mental processes of the
attorney, providing a privileged area within which [the attorney] can analyze and prepare
his client’s case”).
16
Pope, 207 S.W.3d at 357–58 (“[The work-product doctrine’s] purpose is to stimulate the
production of information for trials, and it rewards an attorney’s creative efforts by giving
his work product a qualified privilege from being shared with others.”).
17
Id. at 358.
Ogg Concurring — 7
would reveal whether the party had spoken to potential witnesses are
not work product and are discoverable. 18 Facts that are divulged by or
exist independent of the attorney or his agents are not protected, but
statements or documents that set out their thoughts concerning the
significance of these facts or the strategic conclusions that the attorney
or his agents draw from them may well be protected. 19
Relator’s description of the materials withheld do not clearly fall
within the recognized parameters of “work product.” They do not
appear to be focused upon the thoughts of the State’s attorney relating
the significance of particular facts. Instead, they appear to be
uncovered facts that exist independent of the attorney or his agents.
This is one reason Relator argues that the reports at issue are not
discoverable, because the evidence contained within them exists
independently of the reports themselves. In addition, the State itself
has conceded that “the requested documents would be discoverable if
they had been created by the police department.” 20 This further
suggests that the information within the documents exists independent
18
Id. (citing City of Denison v. Grisham, 716 S.W.2d 121, 123–24 (Tex. App.—Dallas 1986,
orig. proceeding)).
19
Id. at 358–59.
20
Writ – 03 Petition at 6.
Ogg Concurring — 8
of the thought processes of the lawyers and centers more on the discrete
facts underlying the case. 21
Further, without being able to evaluate the reports at issue, it is
impossible for this Court to determine whether they contain exculpatory,
impeachment, or mitigating information. As Judge Hervey notes in her
concurring opinion, under the express terms of the statute, the work
product privilege gives way to a prosecutorial duty to disclose any
exculpatory, impeachment, or mitigating evidence. 22 Moreover, we
have already held that the federal due process requirement that
prosecutors turn over exculpatory or impeachment evidence also
trumps any work-product privilege. 23 The State represents that the
reports at issue do not contain such evidence, but the defense
understandably disagrees. Because the character of the evidence is at
least in dispute, we cannot say there is one clear rational decision
21
See Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 554 n.8 (Tex. 1990, orig. proceeding)
(noting that the attorney work product privilege “protects only the mental impressions,
opinions, and conclusions of the lawyer and not the facts.) (emphasis added).
22
J. Hervey Concurring Opinion at 2 (citing TEX. CODE CRIM. PROC. art. 39.14(h)).
23
Miles, 359 S.W.3d at 670.
Ogg Concurring — 9
regarding the disclosure of the reports. Consequently, mandamus relief
is inappropriate. 24
Finally, I would also add that the State’s argument that the
information contained in the disputed evidence is available through
other sources confuses the issue of error with the issue of harm. It may
very well be that at some later date this Court will determine on direct
appeal that the State’s failure to disclose evidence similar to the
evidence at issue here was harmless because other similar evidence was
disclosed. But on mandamus, we are only concerned with whether the
evidence at issue must be disclosed, not whether the failure to disclose
it harmed the real parties in interest. I agree with the denial of
mandamus relief because I do not believe Relator has established a clear
right to that relief regardless of whether the failure to disclose the
evidence would be determined to be harmless on direct appeal. That is
why I agree with the Court that denial of mandamus relief is appropriate.
With these thoughts, I join the Court’s order.
Filed: September 15, 2021
Publish
24
See Kopeski v. Martin, 629 S.W.2d 743, 745 (Tex. Crim. App. 1982) (stating the principle
of mandamus law that “the writ must not depend on the determination of a doubtful
question of fact.”).