Joe D. Henderson v. State ( 2003 )

NO. 07-03-0274-CR

07-03-0275-CR

07-03-0276-CR

07-03-0277-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

AUGUST 7, 2003 ______________________________



JOE D. HENDERSON, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

NO. 45,363-A; 45,823-A; 45,824-A; 45,825-A; HONORABLE HAL MINER, JUDGE

_______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.

ON ABATEMENT AND REMAND

Appellant Joe D. Henderson has given pro se notice of appeal from convictions in causes numbers 45,363-A, 45,823-A, 45,824-A and 45,825-A in the District Court of Potter County, Texas (the trial court). The clerk of the court of appeals has received motions from the trial court clerk and the court reporter requesting extensions of time for the filing of the respective appellate records. Both motions reflect that no designation of record has been received and no arrangement to pay for the records has been made. No appearance has been made by any counsel for appellant on appeal.

In Texas, every person convicted of a crime has a statutory right to appeal. See Tex. Crim. Proc. Code Ann. § 44.02 (Vernon 1979); Nguyen v. State, 11 S.W.3d 376, 378-79 (Tex.App.--Houston [14^th Dist.] 2000, no pet.); Johnson v. State, 885 S.W.2d 641, 644 (Tex.App.--Waco 1994, pet. ref'd). The Sixth and Fourteenth Amendments of the United States Constitution guarantee to a criminal defendant the right to counsel on a first appeal. See Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963). An attorney must be appointed by the state to represent an indigent defendant on the first appeal. See McCoy v. Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 435, 108 S. Ct. 1895, 1900, 100 L. Ed. 2d 440 (1988). In Texas, the trial court has been designated to appoint the appellate attorney for an eligible indigent defendant. See Tex. Crim. Proc. Code Ann. §§ 1.051(d)(1), 26.04(a).

These appeals are abated and the causes are remanded to the trial court. Upon remand, the judge of the trial court is directed to cause notice to be given of and to conduct a hearing to determine: (1) whether appellant desires to prosecute any or all of the appeals; (2) if appellant desires to prosecute any or all of the appeals, then whether appellant is indigent; (3) if appellant is indigent and desires to prosecute any or all of the appeals, whether counsel should be appointed for appeal; and (4) what orders, if any, should be entered to assure the filing of appropriate notices and documentation to dismiss appellant's appeals if appellant does not desire to prosecute any of the appeals, or, if appellant desires to prosecute any of the appeals, to assure that the appeals will be diligently pursued. If the trial court determines that counsel should be appointed for any or all of the appeals, the trial court should cause the clerk of this court to be furnished the name, address, and State Bar of Texas identification number of the appointed attorney.

The trial court is directed to: (1) conduct any necessary hearings; (2) make and file appropriate findings of fact, conclusions of law and recommendations, and cause them to be included in a supplemental clerk's record; (3) cause the hearing proceedings to be transcribed and included in a reporter's record of the hearing; and (4) have a record of the proceedings made to the extent any of the proceedings are not included in the supplemental clerk's record or the reporter's record of the hearing. In the absence of a request for extension of time from the trial court, the supplemental clerk's record, reporter's record of the hearing, and any additional proceeding records, including any orders, findings conclusions and recommendations, are to be sent so as to be received by the clerk of this court not later than August 29, 2003.

Per Curiam

Do not publish.

See Starflite

, 162 S.W.3d at 413 (the court's resolution of the issue was significantly hindered by the fact they had not been provided with a copy of the real party in interest's re-pleaded cause of action); San Antonio Traction Co. v. Higdon, 123 S.W. 732, 734 (Tex. Civ. App.-San Antonio 1909, writ ref'd) (stating "that to determine the relevancy of evidence the pleadings of the parties must first be looked to for the purpose of ascertaining the issue"). In the underlying suit, Fannin makes only general allegations of negligence and negligence per se against Barlow. General allegations of negligence and negligence per se do not support the trial court's conclusion that Fannin has placed Barlow's medical and mental health conditions at issue. Nor does Barlow's general denial place her medical or mental health conditions at issue.

Because the pleadings do not indicate Barlow's medical and mental health conditions form a basis of Fannin's claims or a basis of Barlow's defense, we find the requests are not reasonably tailored to aid in the resolution of the dispute and the trial court's order requires production beyond what our procedural rules permit. CSX, 124 S.W.3d at 152; Starflite, 162 S.W.3d at 413. We, therefore, conclude the trial court abused its discretion in ordering Barlow to sign medical authorizations and requiring Barlow to provide the names of all her medical care providers since January 11, 1998. ⁽²⁾

In order to determine whether the writ should issue, however, we must further decide whether Barlow has an adequate remedy at law. Walker, 827 S.W.2d at 840. Barlow does not have an adequate remedy by appeal if this court would not be able to cure the trial court's discovery error. Id. at 843. If we uphold the trial court's ruling, Barlow will be required to produce her medical and mental health information. However, after irrelevant and sensitive documents have "been inspected, examined and reproduced... a holding that the court had erroneously issued the order would be of small comfort to relators in protecting their papers." See Crane v. Tunks, 328 S.W.2d 434, 439 (Tex. 1959) (examining whether the ordered production of income tax returns was improper). In addition, a party will not have an adequate remedy by appeal when a discovery order compels the production of patently irrelevant documents. Walker, 827 S.W.2d at 843 (citing Sears, Roebuck & Co. v. Ramirez, 824 S.W.2d 558 (Tex. 1992); General Motors Corp. v. Lawrence, 651 S.W.2d 732 (Tex. 1983)).

In his response to Barlow's mandamus petition, Fannin argues "[c]ounsel for Barlow failed to move for a protective order and failed to follow the order of the [trial court] to authorize in camera inspection of Barlow's medical records...." Rule 192.6 provides that "[a] person from whom discovery is sought... may move within the time permitted for response to the discovery request for an order protecting that person from the discovery sought. A person should not move for protection when an objection to written discovery or an assertion of privilege is appropriate...." TEX. R. CIV. P. 192.6(a) (emphasis added). In this case, counsel for Barlow objected to the relevance of the discovery requests regarding Barlow's medical and mental health information. Therefore, filing a motion for protective order was unnecessary. Id.

Fannin is also mistaken when he states the trial court ordered an in camera inspection of Barlow's medical records. The trial court's order simply indicates the requested information should be provided "to Plaintiff's attorney by August 1, 2005."

Barlow is, therefore, entitled to the relief sought. We conditionally grant the writ of mandamus. We are confident that respondent will promptly set aside the part of her July 12, 2005 discovery order which requires Barlow to sign medical authorizations and to provide the names of all her medical care providers since January 11, 1998. We will direct the clerk to issue the writ only in the event the trial court fails to rescind this portion of her July 12, 2005 order.

James T. Campbell

Justice

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