dissenting.
I respectfully dissent from the majority opinion in this original mandamus proceeding.
The relator has been indicted for three separate aggravated sexual assaults upon children and his trial on one of the causes, Cause No. 0229533D, was set for trial for November 12, 1984. At a. pretrial hearing before that trial date, the trial court denied relator’s motion under TEX.CODE CRIM. PROC.ANN. art. 39.14 (Vernon 1979) & art. 38.071 (Vernon Supp.1985), to have a videotape interview of the three children involved viewed by relator’s retained psychologist. The motion also sought a copy of the tapes to be prepared at his expense. On November 9,1984, relator filed his original petition for a writ of mandamus in this court to compel the trial court to grant his motion for his psychologist to view the tapes and to have a tape copied for his use during trial. On that same date, November 9, 1984, leave to file that petition was granted by this court and the matter was heard by this court on November 15, 1984.
On November 12, 1984, the date the case was set for trial, a second pretrial hearing during the pendency of the petition for writ of mandamus before this court, was held by the trial court, at which time the testimony of the psychologist, Arthur Swen Helge, as well as that of one of the prosecutors, was taken. A statement of facts of that November 12, 1984, pretrial hearing before the Hon. Charles Dickens, Judge of the 297th District Court, was filed in this court and is before us. That statement of facts on its face states that that hearing “was called for continuing Pre-Trial Motions, before the Honorable Charles Dickens, Judge of the 297th District Court.”
The November 12, 1984 hearing, held after the petition for writ of mandamus was filed in this court, and before it was heard by this court, was a continuing pretrial hearing and, we must assume, was held for the purpose of again trying to persuade the trial judge to grant the motion for discovery concerning the videotaped interview of the three children. At this hearing, relator’s counsel produced the psychologist, obviously for the purpose of convincing the trial judge of the necessity of his again viewing the videotape.
At this point, I deem it important to note that TEX.CODE CRIM.PROC.ANN. art. 38.071, sec. 2(a) (Vernon Supp.1985) provides that the recording of the oral statement of the child is admissible into evidence if (7) the defendant or his attorney is afforded an opportunity to view the recording before it is offered into evidence and (8) the child is available to testify.
It is admitted that on May 9, 1984, the psychologist, Arthur Swen Helge, viewed the videotapes of the interviews with all three children, along with the relator’s then attorney, David Courtade, and one of the prosecutors. Helge also at that time made extensive notes as he viewed the tapes. At the pretrial hearing on November 12, 1984, although he was asked directly twice by one of the relator’s current counsel, Rich*487ard Alley, if it was necessary to see those tapes again in order to render an expert opinion, Helge, on both occasions, would only say that “it would be helpful.” Sometime after May 9, 1984, and before the filing of the discovery motion in the trial court, Steven Laird, one of relator’s present counsel, also viewed the tapes, and at sometime during the first week of November, prior to the November 12th hearing, all three attorneys representing relator, Steven Laird, Randy Turner and Richard Alley, also viewed the tape in Cause No. 0229533D, the cause that was set for trial on November 12,1984. It is therefore clear that the trial court, in denying the motion for the psychologist to again view the tapes, or to have the tapes copied, had before it the fact that the psychologist had already once seen the tapes, and taken full notes, and that four different attorneys had also viewed the tapes, three of them shortly prior to the November 12th pretrial hearing. These are facts that relator and the majority opinion would have us ignore.
Under these facts the requirement of art. 38.071, sec. 2(a)(7) was certainly adequately met, as was sec. 2(a)(8) because the children in this case were available to testify. Moreover, sec. 2(b) provides that if the electronic recording of the oral statement of a child is admitted into evidence, either party may call the child to testify and the opposing party may cross-examine the child. How, in view of all this evidence on the pretrial hearings, we can say that the trial court abused its discretion, is difficult for me to comprehend.
The majority opinion seems to rely rather heavily on several Supreme Court cases in civil matters in support of its holding that mandamus is proper in this case. I submit that there is a considerable difference with respect to discovery procedures in civil and criminal cases. In fact, in civil cases, some of the various discovery procedures permitted are self-executing and do not require trial court ruling. In civil cases the courts have traditionally permitted broad and liberal discovery, while in criminal cases, discovery has traditionally been much more limited, and is sparingly granted, and only at the discretion of the trial court. See art. 39.14. It is emphasized that art. 39.14 says that upon motion of the defendant showing good cause, the court may order the State to produce certain items.
The issue before us, then, is simply whether or not the trial judge, under the facts of this case, abused his discretion in denying relator’s motion for the psychologist to again view the tapes of the interviews with the three children and to permit copying of the tape.
There is no mandatory duty or ministerial act involved in this case. It is clearly a question of the trial court’s discretion in a discovery proceeding. The Court of Criminal Appeals has repeatedly said that there is no general right of discovery under art. 39.14, and that such matters are committed to the trial court’s discretion. Texas Dept. of Corrections v. Dalehite, 623 S.W.2d 420, 424 (Tex.Crim.App.1981); Quinones v. State, 592 S.W.2d 933, 940 (Tex.Crim.App.), cert. denied, 449 U.S. 893, 101 S.Ct. 256, 66 L.Ed.2d 121 (1980).
In Quinones, 592 S.W.2d at 940-41, the court upheld an order of a trial court refusing to allow discovery of a tape recording of the defendant’s and an accomplice’s conversation on the ground that there was no abuse of discretion. The court said that art. 39.14 makes it clear that the decision of what is discoverable is the decision of the trial court and even where, as in Qui-nones, reasons for the ruling by the trial court were incorrect, the reasons behind the trial court’s exercise of its discretion will not create reversible error if the decision itself, regardless of its purported basis, did not exceed the limits of the court’s discretion. Id. at 940; accord United States v. Agurs, 427 U.S. 97, 108-10, 96 S.Ct. 2392, 2399-01, 49 L.Ed.2d 342 (1976). The court in Quinones said that traditionally that court has declined to find reversible errors stemming from discovery motions where the defendant was not denied access to exculpatory or mitigating evidence which would have affected the out*488come of the trial in his favor. See Quinones, 592 S.W.2d at 941; see also Granviel v. State, 552 S.W.2d 107, 119 (Tex.Crim.App.1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2642, 53 L.Ed.2d 250 (1977); Love v. State, 533 S.W.2d 6, 9 (Tex.Crim.App.1976).
Texas has long followed the rule which requires the trial court to permit discovery only if the evidence sought is material to the defense of the accused. See Stone v. State, 583 S.W.2d 410, 415 (Tex.Crim.App.1979) and Frank v. State, 558 S.W.2d 12, 14 (Tex.Crim.App.1977). In the latter two cases, the Court of Criminal Appeals defined “materiality” under Texas law in due process terms, employed by the Supreme Court of the United States in Agurs, saying:
“[U]nless the omission deprived the defendant of a fair trial, there was no constitutional violation requiring that the verdict be set aside; and absent a constitutional violation, there was no breach of the prosecutor’s constitutional duty to disclose” ... “The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense.” ... [i]n determining materiality, the omission must be “evaluated in the context of the entire record,” and constitutional error is committed only “if the omitted evidence creates a reasonable doubt that did not otherwise exist.” [Emphasis added.]
Stone v. State, 583 S.W.2d at 415 (in part quoting United States v. Agurs, 427 U.S. at 109-12, 96 S.Ct. at 2400-02).
In granting the writ of mandamus in this case, this court is opening up “Pandora’s Box.” This could encourage the filing of petitions for writs of mandamus in many cases where the trial court has either granted or denied a defense motion for discovery. Such a practice would often, as the filing for the writ in this case did, result in delays of criminal trials. I submit, respectfully, that the majority decision in this case is an abuse of the well established rule of law that a trial judge’s ruling in criminal discovery matters will not be disturbed unless a clear abuse of discretion is shown.
I would deny the writ of mandamus in this case.
HILL and GRAY, JJ., join.