in Re the State of Texas, Ex Rel Kim Ogg ( 2021 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. WR-91,936-03, -04, -05, -06
IN RE THE STATE OF TEXAS EX REL. KIM OGG, Relator
ON APPLICATIONS FOR WRITS OF MANDAMUS
IN THE 228TH DISTRICT COURT
FROM HARRIS COUNTY
H ERVEY, J., filed a concurring opinion in which R ICHARDSON, N EWELL, and
W ALKER, JJ., joined.
CONCURRING OPINION
Presiding Judge Keller might be correct that the default rule is that the State cannot
be compelled to produce work product under Article 39.14(a). T EX. C ODE C RIM. P ROC.
art. 39.14(a). But that is not the whole story. Article 39.14(h) specifically requires the
State to disclose work product under certain circumstances. Id. art. 39.14(h) (applies
notwithstanding any other provision of the statute). Article 39.14(h) not only codifies the
Brady disclosure requirement that exculpatory and impeachment evidence favorable to
the accused must be turned over, it also requires the disclosure of any “mitigating
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document, item, or information in the possession, custody, or control of the state
that . . . would tend to reduce the punishment for the offense charged.” Id.; see Ex parte
Miles, 359 S.W.3d 647, 670 (Tex. Crim. App. 2012) (recognizing that police reports
containing Brady evidence must be disclosed because Brady supersedes the provisions of
Article 39.14).
With these comments, I agree with the Court that relief should denied.
Filed: September 15, 2021
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