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National Crime Victim Law Institute

In re State, 599 S.W.3d 577 (Tex. App. 2020)

July 30, 2020

The state filed a petition for writ of mandamus after the district court issued sealed and public discovery orders in a family violence assault case, ratifying defendant’s improperly-issued subpoena duces tecum for the victim’s cell phone and denying the state’s motions to quash the subpoena and for a protective order. On mandamus, the state asserted that the trial court lacked any statutory, constitutional, or inherent authority to order the victim to provide defendant with her cell phone so that an expert could conduct a “phone dump” and gather information that could be used in both the pending case and in a related sexual assault case. First, the court determined that the state had standing to challenge the subpoena directed to the victim. The court explained that under Texas’s Constitution, the state, through its prosecuting attorney, has the right to enforce the rights of crime victims. These rights include the right to be treated with fairness and with respect for the victim’s dignity and privacy, and the right to be reasonably protected from the accused throughout the criminal justice process. Defendant argued that the victim was a complaining witness, not a “victim,” because there had been no judgment of conviction entered in the case. However, the court dismissed this argument, stating that the right to be treated with fairness and respect “spans the entire judicial process and is not limited in time to the post-conviction timeframe.” The court conceded that the procedure employed by defendant was improper, but that the trial court essentially ratified the subpoena with the actions it took. Accordingly, the focus of the court’s inquiry was on whether the trial court had the authority to retroactively ratify defendant’s actions by its orders. The court concluded that it did not have that authority. In a criminal proceeding, a subpoena duces tecum may only properly be used to secure evidence or testimony for a hearing. The defense’s subpoena went far further, allowing defendant to seize and analyze the evidence, and the court found that that the trial court could not later ratify the defective subpoena. The court also rejected constitutional arguments made by defendant, including that relating to compulsory process. The court found that the right to compulsory process does not guarantee the right to secure the attendance and testimony of any and all witnesses; rather, it guarantees only compulsory process for obtaining witnesses whose testimony would be both material and favorable to the defense at trial. Further, the compulsory process clause does not entitle the defendant “to conduct an unsupervised search through a complaining witness’s cell phone and its data. A complaining witness has the right to privacy under the Texas Constitution, and persons generally have a reasonable expectation of privacy in their cell phone.” Allowing a defense investigator to have unsupervised access to a victim’s cell phone “is not acceptable. If trial court supervision is required in the context of Brady, we see no reason why similar supervision should not be required in situations like this, where the potential for abuse and intimidation of a witness remains ever concerning. A defendant has no constitutional right to rifle through the State’s file unsupervised. A defendant similarly has no reason to rifle unsupervised through a complaining witness’s phone.” The court also rejected defendant’s Brady argument, stating that the state is not the victim’s attorney and did not have control over the phone. The victims’ bill of rights, which allows the state to assert the victim’s rights, “does not make them into the complaining witness’s attorney, nor does it turn the complaining witness into the State’s agent for Brady purposes.” Because the court had no authority to issue the subpoena, the court found mandamus relief was warranted. The court directed the trial court to vacate the orders on defendant’s subpoena duces tecum and return the cell phone to the victim.