Richard W. Demps v. State ( 2008 )

NO. 07-07-0437-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

FEBRUARY 15, 2008

______________________________



RICHARD W. DEMPS, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2005-410,574; HONORABLE CECIL G. PURYEAR, JUDGE

_______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

ABATEMENT AND REMAND

Following a plea of not guilty, Appellant, Richard W. Demps, was convicted by a jury of sexual assault and sentenced to life imprisonment. Appellant timely filed a notice of appeal challenging his conviction. The clerk's record filed on February 11, 2008, contains the Trial Court's Certification of Defendant's Right of Appeal. The form, however, is not signed by Appellant as required by Rule 25.2(d) of the Texas Rules of Appellate Procedure. ⁽¹⁾

Consequently, we abate this appeal and remand the cause to the trial court for further proceedings. Upon remand, the trial court shall utilize whatever means necessary to secure a Certification of Defendant's Right of Appeal in compliance with Rule 25.2(d). Once properly executed, the certification shall be included in a supplemental clerk's record and filed with this Court on or before March 4, 2008.

It is so ordered.

Per Curiam

Do not publish.

1. Rule 25.2(d) was amended to require that a defendant sign the certification and receive a copy. The amendment became effective September 1, 2007.

controversy were or are indeed such secrets.

Applicable Law

To be entitled to a writ of mandamus, there must be proof that the trial court clearly abused its discretion or violated a duty imposed by law and that review through appeal is inadequate. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992). Furthermore, if the documents involve trade secrets and it is determined that the trial court abused its discretion in requiring their disclosure, then mandamus is appropriate for the wrong is not susceptible to correction through appeal. In re Bass, 113 S.W.3d 735, 745 (Tex. 2003).

Next, whether the trial court abused its discretion in compelling the discovery of trade secrets depends on whether the party seeking the information established that it was necessary for a fair adjudication of its claim or defense. In re Continental General Tire, Inc., 979 S.W.2d 609, 613 (Tex. 1998). In turn, "necessity depends upon whether the [data] . . . is material and necessary to the litigation.'" In re Bass, 113 S.W.3d at 743, quoting In re Continental General Tire, Inc., 979 S.W.2d 609 (Tex. 1998). It is not enough to simply state that the information is necessary. Nor do general assertions of unfairness suffice. In re Bridgestone/Firestone, Inc., 106 S.W.3d 730, 732-33 (Tex. 2003). On the contrary, the party seeking disclosure "must demonstrate with specificity exactly how the lack of the information will impair the presentation of the case on the merits to the point that an unjust result is a real, rather than a merely possible, threat." Id. In other words, the litigant must satisfy the test through the presentation of competent evidence. If it does not, then compelling disclosure amounts to an instance of abused discretion warranting mandamus relief. See e.g., id. at 734 (so recognizing); In re Continental General Tire, Inc., 979 S.W.2d at 615 (so recognizing).

Application of Law

Again, because neither party disputed that the discovery in question comprised trade secrets, we do not address that matter. Instead, we turn our attention to whether the Appraisal District met the test described in Bass, Bridgestone, and Continental.

According to the record before us, the discovery was allegedly sought to facilitate the valuation of the McKee refinery. Such a valuation could occur through several ways, according to the Appraisal District's expert and sole witness. They include both the income or cost approaches. And, when asked by the District if the information in general was "necessary," its expert generally said "[y]es." Yet, why it was went unexplained, save for two instances. Those two instances concerned information about 1) the refinery's workforce and union contracts and 2) Diamond Shamrock's acquisition of other refineries located outside Moore County.

With regard to the union contracts and workforce data, the expert concluded that such information when "using the income approach" would "serve to help make . . . adjustments" for "certain intangibles." Yet, at no time did he suggest that he could not complete his appraisal without the information. Nor did he discuss how withholding the information from him would hamper his task in any way. Instead, he simply said that having the data would "help."

Concerning the matter of other refineries acquired by Diamond Shamrock, the expert opined that the "information would be used to develop the comparable sales approach" and that "[i]t's always necessary to have good information about the comparable sales in order to apply them." Previously though, he had told the trial court that "buyers and sellers both look to the income approach for establishing value." So too did he later admit that he also used the cost approach. Given their different names, one could possibly assume that the income, cost, and comparable sales approaches all differed in some way. Whether they do, however, went undeveloped. And, with the exception of the broad and conclusory statements cited, the expert gave no explanation of why the trade secret information was necessary to his calculation under any valuation method. Nor were we told how the value of realty sold miles from Moore County has any relevance, much less is necessary, to the valuation of realty within Moore County. It went unexplained.

Also of note is the evidence illustrating that the District already had appraised the McKee refinery during the years in question. Arguably, there existed data upon which those appraisals were founded for surely an appraisal district would not calculate values from whole cloth. Yet, the District's expert and sole witness conceded that the District had not provided that information to him. Given this, any suggestion that the previously undisclosed trade secrets of Diamond Shamrock were necessary to complete an appraisal is dubious. Until the extent of that other data, if any, is perused by the expert (and revealed to the court for assessment), it cannot be determined how withholding the trade secrets will impair the District's case on the merits.   

In short, the record before us lacks evidence "demonstrat[ing] with specificity" that the risk of an "unjust result" is "real" if the trade secrets of Diamond Shamrock remain secret. The District failed to prove necessity as required by Bass, Firestone, and Continental. And, the conclusory statements of the District's expert to the contrary do not fill the gap. See Coastal Transp. Co. v. Crown Cent. Petroleum, 136 S.W.3d 227, 232 (Tex. 2004) (holding that conclusory statements are not evidence). Accordingly, we conditionally grant mandamus relief directing the trial court to vacate its June 21, 2006 "Order to Compel." We are confident that it will comply and will issue a writ of mandamus only if does not. Finally, our stay of the trial court's directive will remain in effect until the June 21^st order is vacated.

Brian Quinn

Chief Justice

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon 2005).

2.

The trial court ordered that Diamond Shamrock respond fully and completely to Requests for Production Nos. 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 40, 41, 42, and 43.