Opinion
No. 04-17-00198-CR
05-02-2018
The STATE of Texas, Appellant v. Primo TARIN, Appellee
MEMORANDUM OPINION
From the County Court at Law No. 5, Bexar County, Texas
Trial Court No. 500563
Honorable John Longoria, Judge Presiding Opinion by: Karen Angelini, Justice Sitting: Karen Angelini, Justice Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice ABATED AND REMANDED
In this interlocutory appeal, the State appeals from the trial court's order suppressing "all evidence regarding the blood draw." The State argues the trial court erred in suppressing blood-alcohol test results for an alleged violation of a discovery order in the absence of evidence that the prosecution acted with the specific intent to willfully disobey the discovery order. Because we conclude the trial court's factual findings do not contain the essential findings necessary to resolve the legal issue raised on appeal, we abate this appeal and remand this cause to the trial court for further proceedings.
BACKGROUND
The record reflects that on September 24, 2015, Primo Tarin was charged by information with the misdemeanor offenses of driving while intoxicated and obstructing a highway. On September 29, 2015, Tarin filed a Motion for Discovery, Production, and Inspection of Evidence. On June 10, 2016, the trial court granted Tarin's motion in part, but denied his request for information relating to "blood, hair, and threads, etc.," with the notation that Tarin should file the "standard discovery order."
On June 20, 2016, Tarin filed the Standing Discovery Order on Copying and Production of Blood Testing Records. The trial court signed the order that same day. In the order, the trial court ordered "the District Attorney's Office and its agent, the forensic laboratory that analyzed the Defendant's blood in the case, specifically, Bexar County Medical Examiner's Office, . . . to digitally copy and digitally produce" a list of certain items, including information and documents relating to the testing of Tarin's blood. The order requires "any evidence within the scope of the items granted above be provided by the State to the Defendant's attorney's office on or before 5:00 p.m. on the 60th day after this order is signed, or otherwise by mutual agreement." The order further states that it "is continuing and the State will immediately make available to the Defendant's attorney any subsequent discoverable matter within the scope of the above granted items within 48 hours of the time it learns of or obtains such discoverable matter." The order further required pursuant to Brady v. Maryland, 373 U.S. 83 (1963) that "all evidence favorable to the Defendant . . . be produced." Additionally, the order stated that pursuant to Rule 3.09(d) of the Texas Disciplinary Rules of Professional Conduct, "evidence that tends to negate guilt or mitigate the offense shall be disclosed" to Tarin. The court ordered any such evidence "to be produced on or before 5:00 p.m. on the day of its discovery or by agreement." The order stated that "any items herein not produced in violation of this order shall be and are excluded from evidence in this case if offered by the State." Finally, according to the order, "testimony concerning the items not produced in violation of this order, the information contained in those items, and the results obtained from those items shall be and are excluded from evidence in this case if offered by the State."
On December 7, 2016, over a year after Tarin was first charged, the case was reset again for March 10, 2017. On March 10, 2017, the trial court heard preliminary matters. Defense counsel reminded the trial court that it had signed "a standing discovery order on copying a production of blood testing records." Defense counsel emphasized that pursuant to that order, he should have received the items listed in the discovery order by August 2016. According to defense counsel, he had only been provided with results of blood testing that day:
Now, the State has said that they e-mailed [the blood test results] and uploaded it to eDiscovery. I can tell you that I pulled everything from eDiscovery that was available to me at four in the morning today, and there was no blood result there. I do not have a copy of the e-mail in our e-mail and we cannot find it. I have in the past received e-mails from the State but regardless of when this last-minute discovery was provided to us, it is well outside August of 2016 and so we want this order enforced and we want all of the information related to the blood excluded, which is also one of the terms of this order. On the last page, it says the Court further orders that any items herein not produced in violation of this order shall be and are excluded from evidence in this case if offered by the State.
Three prosecutors argued on behalf of the State. First, they explained that the trial court's order directed the Bexar County Medical Examiner's Office to provide blood discovery; however, in this case, the blood was not tested by the Bexar County Medical Examiner's Office, but by the Department of Public Safety ("DPS"). Thus, they argued the discovery order did not apply to DPS. Second, they emphasized that the order asked for results from tests already completed. According to the prosecutors, in this case, DPS received the blood sample to be tested on February 9, 2017, and the results were issued March 6, 2017, just four days before the hearing. Thus, the prosecutors argued that even if the trial court's order applied to DPS, DPS did not violate the order because when the trial court signed the standing discovery order, DPS had not received the blood sample and had not tested it. According to the prosecutors, there was nothing for DPS to produce and no violation of the order. Finally, one of the prosecutors explained that she personally received the results from DPS by email on Thursday, March 9, 2017, at 2:38 p.m. and forwarded the results to defense counsel's email at 2:41 p.m. that same day. Thus, she argued the blood test results were timely produced under the discovery order.
The trial court then asked this prosecutor when she had become aware that the sample in this case had not been tested. The prosecutor replied,
I personally became aware of it when I was looking through the file and I didn't see one in the file. But I - as I understand it, prior prosecutors have tried to track down the blood and get it tested and we were just able to successfully do it, get it over to DPS and have it tested.The trial court again asked when the blood sample had been received by DPS and was again told February 9, 2017.
Defense counsel then stated, "So the blood's just been wandering around for over a year, and it didn't apparently -or maybe it did, I don't know, go to the agency that the State told us it went to . . . ." Defense counsel emphasized that the State provided him with forms in discovery that represented the blood sample had been sent to the Bexar County Medical Examiner's Office. Defense counsel explained this representation by the State was the reason the standing order had been directed to the Bexar County Medical Examiner's Office. Indeed, Defendant's Exhibit 1, which was admitted in evidence, is a "Specimen Routing Report." The report reflects that Tarin's blood was drawn on September 14, 2015 at 1:36 a.m. at the San Antonio Magistration and Detention Facility. The report further reflects that the Bexar County District Attorney's Office is the entity submitting the specimen to the lab and that the blood specimen is being submitted "in person" to the Bexar County Medical Examiner's Office.
The trial court then asked the same prosecutor whether she disputed that it was the District Attorney's Office which had represented the blood drawn had been submitted to the Bexar County Medical Examiner's Office. The prosecutor replied, "Judge, I don't dispute that. It was - the time of this offense was when this office stopped using IFL as their contract laboratory. We were sending some samples over to BCME." The trial court then stated,
[Defense counsel] receives a document from the State upon which he is legitimately depending. All right. So I can see what the problem was. I will say for the record that the current assistant district attorneys in this courtroom, I do not hold responsible as individuals and as attorneys. I'm saying the record's kind of speaking for itself at this point.(emphasis added).
A third prosecutor then jumped into the proceedings:
Judge . . . I would like to make an argument to the Court, if you would. We won't dispute the paperwork in the file did say that the specimen was being routed to the BCME lab. However, the fact - you know, what lab it eventually went to is not really an issue. What we're looking at is whether you should suppress the evidence based on our failure to comply with the discovery order, right? And in this situation, the discovery order signed was impossible; it was ineffective because it was - whoever's fault it was, he didn't know the right lab. The discovery order just wasn't effective because the evidence didn't exist.
The trial judge replied that his concern was the eighteen-month delay in this case. "The testing should have done way before now, not just in February of 2017." The trial judge reiterated that he did not blame the three prosecutors standing before him. However, he expressed great concern over the delay in this case:
[A]t this point, the way I see it [the delay] was a failure of the Office of the District Attorney in Bexar County. I'm not here to fix blame or anything. What I'm seeing is somebody dropped the ball. So then does the defense have the right to rely on the order that was properly rendered? That order was signed back in . . . June [2016]. That should have put somebody on notice that, hey, we've got to look at this. Like [one of the prosecutors] did back in February [2017], [she] check out and [found] out, hey, this hasn't been done, but that obligation existed months ago . . . .
One of the prosecutors disagreed with the trial court's assertion that "there was an obligation anywhere for the State to do one particular thing with its evidence." The prosecutor claimed the issue of whether the specimen was sent to a lab in a timely manner is one for the jury. But, the prosecutor emphasized that at the time the discovery order was signed, "the evidence did not exist." The trial judge responded, "The evidence existed but it had not been tested." The trial judge explained he was referring to "the requirement for diligence in testing [the blood sample] and providing that as evidence." The State responded that there was no obligation on the part of the State to test a blood sample: "Every blood sample that's taken in this county, there are two vials taken. The reason that we have two vials is the defense has the ability to test one of those vials." Defense counsel replied that he had not known where the blood sample was located:
We were told that the blood was missing and they did not know where it was. We were told initially that it was at the Bexar County ME's office. That's where it had been sent. . . . Nobody knew what happened to it and we produced this order because that was the only place that anybody knew the blood had ever been sent.According to defense counsel, it was only the day of the suppression hearing that he had been made aware of the blood samples' actual location.
The trial court then suppressed the blood evidence:
I am going to suppress this evidence based on the violation of the standard order, based on the fact that the defense was led to believe that the Bexar County Medical Examiner's Office was the source or had the location of the testing material, based on the fact that there was a deadline clearly expressed in the order. I know that the prosecutors before me at this time had no knowledge of it and were not complicit in the fact that [defense counsel] was denied access to this material until today. I observed that [defense counsel] crossed his Ts and dotted his Is on it and I think your predecessors left you in the lurch, State. I know it's not in your character to ignore things; you've been working hard. I appreciate you. Nonetheless, I'm suppressing this evidence in this case.The trial court then signed an order suppressing the blood evidence. In the order, the trial court made the following findings of fact:
1. Primo Tarin, Defendant, was arrested on or about September 13, 2015 for the offense Driving While Intoxicated - First Offense.
2. On or about September 14, 2015, a warrant for Defendant's blood was obtained and executed, causing Defendant's blood to be drawn. The blood was taken into custody by agents of the State.
3. A "Specimen Routing Report" was created on or about September 14, 2015, which directed that the blood sample be sent to the Bexar County Medical Examiner's Office . . . .
4. Said Specimen Routing Report was provided to Defense Counsel . . . through discovery. A copy of that document has been admitted for the purpose of the above hearing as Defense Exhibit 1. No other evidence related to the location of the Defendant's blood was provided to Defense Counsel, except that mentioned below.
5. During the pre-trial settings on this cause, no blood analysis results were produced by the State.
6. Defense Counsel requested such results and was eventually informed that the blood could not be located at that time. In response, the Defense moved the Court, on June 20, 2016, to sign and order the Standing Order of Copying and Production of Blood Testing Records, which is commonly used in Bexar County Courts at Law and is included in the record of this cause, in order to establish deadlines for the State to locate and test Defendant's blood sample, if it could be located.
7. On June 20, 2016, after a hearing in which attorneys for the State were present, the Court granted the Standing Order on Copying and Production of Blood Testing Records. Said order directed "the District Attorney's Office" and "the Bexar County Medical Examiner's Office" to produce 29 items of evidence relating to the testing of the sample, including reports regarding the results of any analysis of the blood.
8. Further, the Standing Order set deadlines related to disclosure of blood-related evidence. The deadlines included a deadline of "5:00 p.m. on the 60th day after this order is signed, or otherwise by mutual agreement" for all evidence within the scope of the Standing Order and "on or before 5:00 p.m. on the day of its discovery, or by mutual agreement" for any Brady material.
9. The parties did not agree to any modification of the deadlines in the Standing Order.
10. On February 9, 2017, the Texas Department of Public Safety laboratory in Austin received Defendant's blood from the Bexar County District Attorney's Office. Defense Counsel was not informed at that time.
11. On or about March 6, 2017, the lab reported the results of its analysis of Defendant's Blood to the Bexar County District Attorney's Office. Defense counsel was not informed at that time.
12. Defense counsel was not informed that the blood had been located, sent for testing, nor analyzed until March 10, 2017, prior to a previously set suppression hearing.
13. Neither party sought to approach the Court nor attempted to obtain an agreement to modify the Standing Order until March 10, 2017, just prior to the suppression hearing.
14. At that time, Defense Counsel asked the Standing Order be enforced by the Court and a hearing was held.
15. Defense Counsel had not received any of the information required to be produced by the Standing Order at the time of the hearing resulting in this Order.
16. The State has failed to comply with the terms of the Standing Order, which also previously ordered excluded from evidence anything covered by the Standing Order that was not produced by the deadlines established therein.
The trial court then made the following conclusions of law:
1. The State has failed to comply with the terms of the Standing Order, which also previously ordered excluded from evidence anything covered by the Standing Order that was not produced by the deadlines established therein.
2. The State and specifically the Bexar County District Attorney's Office failed to turn over evidence or information required to be disclosed by Brady v. Maryland, 373 U.S. 83 (1967), and progeny, in either a reasonable or timely manner by failing to disclose that the Defendant's blood had been located, its availability for Defense testing or re-testing, that it had been sent for analysis, where it had been sent, that it had been tested, the results of such testing, and all material covered by the Standing Order. Further, the State failed in its affirmative duty under Brady, to investigate and disclose matters reasonably anticipated to be potentially exculpatory and/or necessary for an adequate defense.
3. The State and specifically the Bexar County District Attorney's Office failed to comply with Texas Disciplinary Rule of Professional Conduct 3.09(d), as cited in the Standing Order, by failing to disclose timely the information described by the Standing Order and required to be disclosed, including the existence, location, availability for Defense testing, chain of custody, and testing results. Such information was known to the State and tended to negate the guilt or mitigate the offense charged and/or could reasonably have been anticipated to do so.
4. The Court declines to find at this time which specific prosecutors may bear responsibility for the failures to disclose evidence cited herein but finds that the prosecutors present for the hearing on March 10, 2017 and giving rise to this Order are not responsible for the conduct cited [above].
Thus, the trial court found the State had not complied with the discovery order for two reasons: (1) because it had not timely produced the blood evidence; and (2) because it had not complied with Texas Disciplinary Rule of Professional Conduct 3.09(d). The trial court also found the State had failed to comply with the requirements enunciated under Brady. The State then filed this interlocutory notice of appeal, stating its intent to appeal the trial court's order suppressing the blood evidence.
BRADY V. MARYLAND
The State argues it did not violate its obligations under Brady v. Maryland, 373 U.S. 83 (1963), because (1) there is nothing in the record to reflect that the blood evidence is favorable to Tarin, and (2) the blood evidence and test results were disclosed before trial, allowing Tarin adequate time to prepare a defense. Pursuant to Brady and its progeny, a defendant suffers a due process violation if the State or one of its surrogates, whether willfully or not, fails to disclose evidence that is favorable to the defense (either because it is exculpatory or because it impeaches) and is material in the sense that, had it been timely disclosed to the defense, there is a reasonable probability the result of the proceeding would have been different. Strickler v. Greene, 527 U.S. 263, 280-82 (1999). The purpose of this rule was to avoid an unfair trial of the accused: "A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant." Brady, 373 U.S. at 87-88.
Here, the trial court found that the State failed to timely disclose (1) the fact Tarin's "blood had been located," (2) "its availability for Defense testing or re-testing," (3) the fact "it had been sent for analysis," (4) the location of where the blood had been sent; (5) the fact "it had been tested," and (6) "the results of such testing," all of which was "covered by the Standing Order." The trial court also found that the State had failed to timely "investigate and disclose matters reasonably anticipated to be potentially exculpatory and/or necessary for an adequate defense." Thus, the trial court held the State's conduct violated Brady and its progeny.
However, in reviewing the record, we agree with the State that there is nothing in the record to reflect whether the blood evidence was favorable to the defense. As the record is silent on this fact, Tarin failed in his burden to show the evidence is favorable to his defense. See Little v. State, 991 S.W.2d 864, 866 (Tex. Crim. App. 1999) (defendant has burden to show a failure to timely disclose favorable evidence).
Moreover, even if Tarin had met his burden of showing the evidence was favorable to his defense, under Brady and its progeny, Tarin must also show that he was prejudiced by the State's failure to timely disclose the evidence and information at issue. See Little, 991 S.W.2d at 866 (explaining that when favorable evidence is not concealed but disclosed untimely, a defendant bears the burden to show the delay resulted in prejudice). The court of criminal appeals has held that if untimely disclosed evidence is "turned over in time for the defendant to use it in his defense, the defendant's Brady claim" fails. Little, 991 S.W.2d at 866. A defendant is prejudiced if the result of the proceeding would have been different had the evidence been disclosed earlier. Id. Prejudice is not shown where the information is disclosed in time for the defendant to make effective use of it at trial. Id. Here, Tarin has yet to proceed to trial. There is nothing in the record to indicate Tarin has been prejudiced by the State's untimely disclosure of the blood evidence. Therefore, based on the evidence in this record, the trial court erred in suppressing the evidence pursuant to a Brady violation.
VIOLATION OF DISCOVERY ORDER
The trial court also suppressed the blood evidence because the State had failed to comply with the discovery order. Specifically, the trial court found the State had not complied with the discovery order because it had not produced the blood evidence by the deadline enunciated in the order, and because it had not complied with Texas Disciplinary Rule of Professional Conduct 3.09(d). The State argues that the trial court erred in suppressing the blood evidence based on a violation of the discovery order because there is no evidence the State willfully violated the discovery order.
The court of criminal appeals has explained that "[e]vidence willfully withheld from disclosure under a discovery order should be excluded from evidence[.]" Francis v. State, 428 S.W.3d 850, 854-55 (Tex. Crim. App. 2014) (quoting Hollowell v. State, 571 S.W.2d 179, 180 (Tex. Crim. App. 1978)). However, "[b]ecause exclusion of evidence in this context is in the nature of a court-fashioned sanction for prosecutorial misconduct, whether the trial court should exclude evidence on this basis has been made to hinge on 'whether the prosecutor acted with the specific intent to willfully disobey the discovery order[.]'" Id. at 855 (quoting Oprean v. State, 201 S.W.3d 724, 727 (Tex. Crim. App. 2006)). "Extreme negligence or even recklessness on the prosecutor's part in failing to comply with a discovery order will not, standing alone, justify the sanction of excluding relevant evidence." Id.; see also State v. LaRue, 152 S.W.3d 95, 97, 99-100 (Tex. Crim. App. 2004) (holding that although the prosecutor "may have been extremely negligent or even reckless with respect to the result of his actions," the evidence in record did not show willful conduct on part of the State).
"An appellate court must review a trial court's ruling to exclude evidence for willful prosecutorial defiance of a discovery order under an abuse-of-discretion standard, deferring to any trial-level ruling that falls within the zone of reasonable disagreement." Id. The court of criminal appeals has explained that it has "adopted a similar appellate posture in this context to that which [it has] applied to review pre-trial motions to suppress evidence." Id. "An appellate court must pay absolute deference to the trial court's findings of fact based on determinations of credibility or demeanor." Id.
The trial court in this case made findings of fact. However, in its findings, the trial court specifically declined to address the issue of whether the State acted willfully. While the trial court found that "the prosecutors present for the hearing on March 10, 2017 and giving rise to this Order are not responsible for the conduct cited," it "decline[d] to find at this time which specific prosecutors may bear responsibility for the failures to disclose evidence cited herein." (emphasis added). However, findings relating to whether specific prosecutors or other state actors willfully disobeyed the discovery order are essential to our review of whether the trial court erred in suppressing the blood evidence for the State's failure to comply with the discovery order. We cannot review the issue without such findings.
We thus conclude the trial court's findings do not include essential facts necessary to resolve the legal questions raised on appeal. See State v. Cullen, 195 S.W.3d 696, 699 (Tex. Crim. App. 2006) (explaining the trial court is required to make essential findings of fact and conclusions of law "adequate to provide an appellate court with a basis upon which to review the trial court's application of the law to the facts"); see also State v. Elias, 339 S.W.3d 667, 676 (Tex. Crim. App. 2011) (extending the trial court's requirement to a more complete determination "covering every potentially dispositive issue that might reasonably be said to have arisen in the course of the suppression proceedings").
We therefore abate this appeal and remand this cause to the trial court. See TEX. R. APP. P. 44.4; Elias, 339 S.W.3d at 676; see also State v. Adams, 454 S.W.3d 38 (Tex. App.—San Antonio 2014, order), disp. on merits, 454 S.W.3d 48 (Tex. App.—San Antonio 2014, no pet.). We direct the trial court to execute more specific findings of fact and conclusions of law consistent with this opinion and as required by Cullen and Elias. We also direct the trial court to file its findings and conclusions on or before June 1, 2016, and the trial court clerk to file the supplemental clerk's record containing the trial court's findings and conclusions on or before June 16, 2018. Upon filing of the supplemental clerk's record containing the findings and conclusions, this appeal will be reinstated.
Karen Angelini, Justice Do not publish