in Re the State of Texas Ex Rel. Ricardo Rodriguez Jr., District Attorney for Hidalgo County, Texas

NUMBER 13-19-00200-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE THE STATE OF TEXAS EX REL. RICARDO RODRIGUEZ JR.,
DISTRICT ATTORNEY FOR HIDALGO COUNTY, TEXAS
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Hinojosa
Memorandum Opinion by Justice Benavides1
Relator the State of Texas ex rel. Ricardo Rodriguez Jr., the District Attorney for
Hidalgo County, Texas, filed a petition for writ of mandamus seeking to vacate an order
granting the discovery of grand jury testimony in a criminal case.2 See TEX. CODE CRIM.
PROC. ANN. art. 20.02(a), (d). We conditionally grant the petition for writ of mandamus.
1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not
required to do so. When granting relief, the court must hand down an opinion as in any other case.”); see
also id. R. 47.4 (distinguishing opinions and memorandum opinions).
2 This original proceeding arises from trial court cause number CR-5036-18-F, and the respondent
is the Honorable Mario E. Ramirez Jr. See id. R. 52.2.
 I. BACKGROUND
The grand jury charged real party in interest Rodolfo Rosas by indictment with one
count of aggravated assault with a deadly weapon and two counts of aggravated assault
causing serious bodily injury. See TEX. PENAL CODE ANN. § 22.02(a). On January 18,
2019, Rosas filed a “Motion for Discovery of Grand Jury Testimony” which requested that
the trial court order the State “to transcribe and provide to the Defendant the testimony of
any witnesses who testified before the grand jury in this case.” The motion reads, in
relevant part:
The Defendant has reason to believe that a witness or witnesses testified
before the grand jury on the facts of this case currently pending against the
Defendant. The grand jury returned an indictment in this case on December
18, 2018.
....
The State of Texas has made known that it intends to try this case. It is
necessary for the Defendant to receive effective assistance of counsel at
trial to have available the transcript[s] of the witnesses’ grand jury testimony
for purposes of discovery and cross-examination.
....
The Defendant has a particularized need for said testimony under TEX.
CODE CRIM. PROC. art. 20.02. The material sought is necessary to avoid
possible injustice in this proceeding. Defendant needs to be able to know
what the witnesses knew and testified to as it pertains to Defendant’s claim
of self[-]defense and the circumstances surrounding the alleged victims in
order to fairly defend himself.
On February 19, 2019, the trial court held a pretrial hearing on various matters. At
the hearing, Rosas’s counsel informed the trial court that he was requesting that it order
the grand jury testimony to be disclosed “so we can see what was presented.” In apparent
connection with this argument, Rosas’s counsel also asserted that there was a “pattern”
of the police “not doing their job.” He alleged that “[t]hey failed to fingerprint the vehicle,
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they failed to fingerprint the gun. Just simple things that should have been done.” Without
further discussion, the trial court orally granted Rosas’s motion for disclosure of the grand
jury testimony. After the trial court issued its oral ruling, the prosecutor requested time to
prepare for a hearing on the request for the grand jury transcripts because the motion
had not been set for hearing that day, but the trial court responded, “Again, I am granting
the motion.” On February 22, the trial court signed an order granting Rosas’s motion for
the discovery of grand jury testimony which ordered the State “to provide the full
transcripts of the Grand Jury proceedings against Defendant at least one week prior” to
the trial date.
On March 18, 2019, the trial court held another pretrial hearing. In addition to other
matters, Rosas again reiterated his request to obtain the grand jury testimony. The trial
court informed the parties that it was his understanding that “[t]here is no transcript.” In
addressing this issue, a prosecutor informed the court that Hidalgo County “does not
utilize a court reporter for Grand Jury proceedings,” and instead “uses audio recording
equipment.” The prosecutor stated that “I think we use . . . tapes.” The prosecutor
informed the trial court that he did not know if the State had the tapes of the grand jury
proceedings, but he did not think that it did. Another prosecutor responded to the court’s
inquiry that “[w]e do not.” A third prosecutor informed the court that she had spoken with
the individual who presented this case to the grand jury. That individual told her that “if
there was a tape with testimony” it would be provided to the prosecutors “as part of our
file.” The third prosecutor informed the court that such a tape “has not been provided,
therefore, it does not exist,” but confirmed that she would “verify” that information. At the
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end of the argument, the trial court again verbally ordered the State to present to defense
counsel “what it was that you presented in terms of evidence to the . . . Grand Jury.”
This original proceeding ensued on April 26, 2019. By one issue, relator contends
that the respondent has clearly erred in requiring the State “to produce and turn over
transcripts of grand jury proceedings” because Rosas failed to show a particularized need
for the transcripts. This Court requested and received a response to the petition for writ
of mandamus from Rosas. Rosas argues that the trial court’s ruling was discretionary,
and it did not abuse its discretion in ordering production of the grand jury testimony.
Rosas also argues that the State possessed surveillance videotapes of the night of the
alleged incident which have “substantial and exculpatory” value, and the trial court
possessed discretion to order the grand jury transcripts produced to him so that he could
determine if the State provided the surveillance footage to the grand jury for its review
prior to indictment.
II. STANDARD FOR MANDAMUS RELIEF
Mandamus relief may be granted if the relator shows that: (1) the act sought to be
compelled is purely ministerial, and (2) there is no adequate remedy at law. In re McCann,
422 S.W.3d 701, 704 (Tex. Crim. App. 2013) (orig. proceeding); In re State ex rel. Weeks,
391 S.W.3d 117, 122 (Tex. Crim. App. 2013) (orig. proceeding). If the relator fails to meet
both requirements, then the petition for writ of mandamus should be denied. State ex rel.
Young v. Sixth Jud. Dist. Ct. of Apps. at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim.
App. 2007) (orig. proceeding).
To obtain mandamus relief, the act sought to be compelled must be a ministerial
act that does not involve a discretionary or judicial decision. State ex rel. Young, 236
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S.W.3d at 210. The ministerial-act requirement is satisfied if the relator can show a clear
right to the relief sought. In re State ex rel. Weeks, 391 S.W.3d at 122. A clear right to
relief is shown when the facts and circumstances dictate but one rational decision “under
unequivocal, well-settled (i.e., from extant statutory, constitutional, or case law sources),
and clearly controlling legal principles.” Id.; see Bowen v. Carnes, 343 S.W.3d 805, 810
n.6 (Tex. Crim. App. 2011). If the trial court lacks authority or jurisdiction to take a specific
action, the court has a ministerial duty to refrain from taking that action, to reject or
overrule requests that it take such action, and to undo the action if it has already taken it.
In re Medina, 475 S.W.3d 291, 298 (Tex. Crim. App. 2015) (orig. proceeding). In contrast,
a ministerial act is not implicated if the trial court must weigh conflicting claims or collateral
matters which require legal resolution. State ex rel. Hill v. Ct. of Apps. for Fifth Dist., 34
S.W.3d 924, 927 (Tex. Crim. App. 2001) (orig. proceeding).
III. GRAND JURY PROCEEDINGS
“[T]he longstanding common law and statutory rule that grand jury proceedings are
secret is a fundamental component of our system of criminal justice.” Kelly v. State, 151
S.W.3d 683, 686 (Tex. App.—Waco 2004, no pet.); see Stern v. State ex rel. Ansel, 869
S.W.2d 614, 619–23 (Tex. App.—Houston [14th Dist.] 1994, writ denied) (discussing the
historical underpinnings regarding the secrecy of grand jury proceedings). The Texas
Code of Criminal Procedure expressly mandates that “[t]he proceedings of the grand jury
shall be secret.” TEX. CODE CRIM. PROC. ANN. art. 20.02(a). Thus, “[t]he law clearly spells
out the trial court’s duty to keep grand jury proceedings secret.” In re State, 516 S.W.3d
526, 528–29 (Tex. App.—San Antonio 2016, orig. proceeding). The Fourteenth District
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Court of Appeals has summarized the various reasons for mandating secrecy regarding
grand jury proceedings as follows:
The policy reasons for secrecy are compelling. It ensures the utmost
freedom to the grand jury in its deliberations. It prevents other persons
subject to indictment, or their friends, from importuning the grand jurors; no
undue influence should be permitted to sway its counsels or govern its
action. Moreover, grand jurors should be free from the apprehension that
someone may disclose subsequently their opinions and votes. The
requirement of confidentiality also prevents subornation of perjury or
tampering with the witnesses who may testify before the grand jury and later
appear at the trial of those indicted. Further, secrecy encourages free and
untrammeled disclosures by persons who have information with respect to
the commission of crimes. Witnesses can give evidence without fear of
reprisal from an accused or any other person. Confidentiality also protects
the innocent accused who is exonerated from disclosure of the fact that he
has been under investigation. Such a consideration is particularly important
in light of the fact that an elected official’s reputation may be irreparably
harmed by public disclosure even though investigation of the allegations
reveals no basis for prosecution. It also saves persons who have been
cleared by the grand jury from the expense of standing trial where there was
no probability of guilt. Additionally, the requirement saves the public the
trouble, expense, and disgrace of having matters disclosed that no longer
have any merit. Finally, grand jury secrecy also prevents the escape of
those whose indictment is contemplated.
Stern, 869 S.W.2d at 621–22. Accordingly, “an accused is not ordinarily entitled to the
inspection of grand jury minutes or testimony for the purpose of ascertaining evidence in
the hands of the prosecution, or for the purposes of discovery in general.” Garcia v. State,
454 S.W.2d 400, 403 (Tex. Crim. App. 1970); see Villegas v. State, 791 S.W.2d 226, 231
(Tex. App.—Corpus Christi–Edinburg 1990, pet. ref’d).
However, the code of criminal procedure allows the defendant to request a court
to order the disclosure of information “otherwise made secret” by the code, or the
disclosure of a recording or typewritten transcription prepared pursuant to article 20.012,
“as a matter preliminary to or in connection with a judicial proceeding.” See TEX. CODE
CRIM. PROC. ANN. art. 20.02(d); see also id. art. 20.012 (providing that certain testimony
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in a grand jury proceeding must be recorded).3 “The court may order disclosure of the
information, recording, or transcription on a showing by the defendant of a particularized
need.” Id. art. 20.02(d). The “totality of the circumstances” must be examined when
determining whether a particularized need exists. Bynum v. State, 767 S.W.2d 769, 781
(Tex. Crim. App. 1989) (en banc); Legate v. State, 52 S.W.3d 797, 804 (Tex. App.—San
Antonio 2001, pet. ref’d).
“A particularized need is not shown simply because the requested testimony
pertains to a key prosecution witness, or that there is a ‘need’ to locate inconsistencies in
the witness’s testimony.” Legate, 52 S.W.3d at 804 (quoting Bynum, 767 S.W.2d at 783);
see also Crenshaw v. State, No. 13-00-692-CR, 2002 WL 34249771, at *4 (Tex. App.—
Corpus Christi–Edinburg May 23, 2002, pet. ref’d) (mem. op., not designated for
publication) (concluding that the appellant failed to show a particularized need where he
argued that “he needed the grand jury minutes to see what the witnesses testified to and
because the indictment did not describe the charges against him”). Similarly, seeking
information regarding grand jury proceedings for the purposes of possible impeachment,
to refresh the recollection of a witness, or to test the credibility of a witness does not
establish a “particularized need” which is required to pierce the secrecy of grand jury
proceedings. In re 5 Byrd Enters., Inc., 980 S.W.2d 542, 543 (Tex. App.—Beaumont
1998, orig. proceeding). In short, a particularized need is only shown when “it becomes
material to the administration of justice that disclosure be allowed.” See Stern, 869
S.W.2d at 622 (collecting cases).
3 If the prosecutor uses or introduces portions of the grand jury testimony during the trial, the
defense is entitled to inspect and use the testimony that covers the same subject involved in the portions
used and introduced by the prosecution. Garcia v. State, 454 S.W.2d 400, 403 (Tex. Crim. App. 1970);
Villegas v. State, 791 S.W.2d 226, 231 (Tex. App.—Corpus Christi–Edinburg 1990, pet. ref’d).
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IV. ANALYSIS
A. Ministerial or Discretionary Duty
Rosas contends, in part, that the trial court’s decision regarding the production of
grand jury testimony is discretionary rather than ministerial in nature. If so, mandamus
relief is not available. State ex rel. Young, 236 S.W.3d at 210. Under the appropriate
standard of review, the production of grand jury testimony lies within the “sound”
discretion of the trial court. McManus v. State, 591 S.W.2d 505, 523 (Tex. Crim. App.
1979), overruled on other grounds, Reed v. State, 744 S.W.2d 112 (Tex. Crim. App.
1988); see Mott v. State, 543 S.W.2d 623, 625 (Tex. Crim. App. 1976); see also Legate,
52 S.W.3d at 803 (stating that the trial court has “considerable” discretion regarding the
production of grand jury testimony); Villegas, 791 S.W.2d at 231 (referencing the need to
show a special reason or particularized need to obtain grand jury testimony under former
law). Thus, the production of grand jury testimony implicates the use of judicial discretion
rather than a ministerial duty. See Legate, 52 S.W.3d at 803; see, e.g., In re Buchel, No.
13-18-00509-CR, 2018 WL 6381540, at *6 (Tex. App.—Corpus Christi–Edinburg Dec. 6,
2018, orig. proceeding) (mem. op., not designated for publication) (considering whether
a judicial determination was discretionary or ministerial in nature).
However, the San Antonio Court of Appeals, on similar facts, concluded that the
trial court had “the clear ministerial duty to keep the grand jury proceedings secret” when
the defendant failed to make a showing of a “particularized need” under the code. In re
State, 516 S.W.3d at 528. There, the court stated that an act is ministerial where the law
clearly spells out the duty to be performed with such certainty that nothing is left to the
exercise of discretion or judgment, and the code “clearly spells out the trial court’s duty to
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keep grand jury proceedings secret.” Id. (citing In re Reed, 227 S.W.3d 273, 276 (Tex.
App.—San Antonio 2007, orig. proceeding)). The San Antonio court did not otherwise
provide any further analysis regarding its determination that the trial court’s error was
ministerial rather than discretionary in nature. See generally id.
The Texas Court of Criminal Appeals has held that judicial decisions may be
subject to review and correction by mandamus in specific circumstances:
An act is ministerial, and therefore subject to the compulsion of mandamus,
even though a judicial decision is involved, however, when the governing
law is of such absolute clarity and certainty that nothing is left to the court’s
discretion—when the law upon which relator relies is, in other words,
‘definite, unambiguous, and unquestionably applies to the indisputable facts
of the case.’
Powell v. Hocker, 516 S.W.3d 488, 495 (Tex. Crim. App. 2017) (quoting State ex rel.
Young, 236 S.W.3d at 210); see State ex rel. Mau v. Third Ct. of Apps., 560 S.W.3d 640,
644 (Tex. Crim. App. 2018); see also State ex rel. Rosenthal v. Poe, 98 S.W.3d 194, 201
(Tex. Crim. App. 2003) (explaining that a trial court may be compelled by mandamus to
follow the dictates of a statute when its meaning as applied to a particular fact situation is
“clear and indisputable”); Perkins v. Ct. of Apps. for Third Supreme Jud. Dist. of Tex. at
Austin, 738 S.W.2d 276, 285 (Tex. Crim. App. 1987) (orig. proceeding) (concluding that
the court’s decisions pertaining to enforcement of a plea bargain agreement “placed a
ministerial, mandatory, and non-discretionary duty” on the respondent to specifically
enforce a plea bargain). In short, it is proper to order a trial court to exercise its judicial
(as opposed to its ministerial) function in a particular way when the relator has a clear
right to the relief sought and the law at issue is definite, unambiguous, and unquestionably
applies to the indisputable facts of the case. See State ex rel. Young, 236 S.W.3d at 210;
see also In re Dallas County Pub. Def., 553 S.W.3d 926, 927–28 (Tex. Crim. App. 2018)
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(orig. proceeding) (Keller, J., dissenting) (stating that a trial court has no discretion in
determining what the law is or applying the law to the facts).
Based on the foregoing, we disagree with Rosas’s contention that the trial court’s
decision here is fully discretionary in nature so as to foreclose the possibility of mandamus
relief based on a ministerial duty. See id. Accordingly, we proceed with our review
regarding whether “the relator has a clear right to the relief sought and the law at issue is
definite, unambiguous, and unquestionably applies to the indisputable facts of the case.”
See id.
B. “Particularized Need”
In Rosas’s motion for discovery of the grand jury testimony, he argued that in order
for him “to receive effective assistance of counsel,” it is “necessary” to obtain the
transcripts of the grand jury testimony “for purposes of discovery and cross-examination.”
He asserted that he has a particularized need for the information “to fairly defend himself”
because he “needs to be able to know what the witnesses knew and testified to” as it
pertains to his claim of self-defense and “the circumstances surrounding the alleged
victims.” He argued that the “material sought is necessary to avoid possible injustice in
this proceeding.”
At the two hearings that addressed the production of the grand jury testimony,
Rosas argued that there was a “pattern” whereby the police department had failed to
perform its functions in this case because its employees failed to fingerprint a vehicle and
gun involved in the incident. He further argued that he had not been provided with all of
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the body camera footage regarding the underlying incident.4 Rosas did not present any
other arguments to the trial court in support of his request for the grand jury materials.
After reviewing the totality of the circumstances, we conclude that Rosas has not
met his burden to show a particularized need for the grand jury transcripts. The rationales
that Rosas offers for the discovery of the grand jury testimony relate generally to his desire
to obtain potentially exculpatory discovery that could support his defense in this case;
however, this reason does not constitute a particularized need under the statute. See In
re State, 516 S.W.3d at 528–29. Similarly, Rosas’s stated rationales for obtaining the
grand jury transcripts to determine whether there are inconsistencies in testimony, for
possible impeachment, to refresh recollection, or to test credibility does not meet the level
of a “particularized need” as required to pierce the secrecy of grand jury proceedings.
See id.; Legate, 52 S.W.3d at 804; In re 5 Byrd Enters., Inc., 980 S.W.2d at 543. In short,
Rosas has not shown a particularized need by asserting generally that he needs this
information for the purposes of discovery in general. See Garcia, 454 S.W.2d at 403. We
note, in this regard, that the rationales offered by Rosas in support of obtaining the grand
jury transcripts constitute global rationales that would apply in all cases rather than
rationales based on a “particularized need” presented by the unique circumstances of a
specific case.
In this proceeding, Rosas further argues in his response to the petition for writ of
mandamus that he filed a motion to quash the indictment against him based on “the
4 Rosas urged the trial court to dismiss the case because of the alleged Brady violations and
spoliation. See Brady v. Maryland, 373 U.S. 83, 87 (1963) (concluding that the due process clause prevents
criminal prosecutors from suppressing material evidence that is favorable to an accused); see also TEX.
CRIM. PROC. CODE ANN. § 39.14. The trial court denied Rosas’s motion to dismiss the case based on
spoliation.
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State’s failure to present exculpatory evidence” to the grand jury that “it was aware of or
already had in its possession at the time of the grand jury proceedings.” Rosas argues:
In this case the particularized need is to avoid the injustice of a defective
grand jury proceeding by determining whether the witnesses and grand
jurors were aware of the surveillance footage. The State’s failure to show
the grand jury exculpatory evidence that was in its possession would
amount to impermissible suppression of exculpatory evidence in violation
of Defendant’s State Constitutional rights and US Constitutional rights.
In support of this argument, Rosas has attached to his response a copy of his attorney’s
email correspondence to the prosecutor illustrating that he had offered to provide the
surveillance footage to the prosecutor prior to the case being presented to the grand jury
on December 18, 2019.
Based on our review of the record, this argument and associated evidence was
not provided to the trial court. It is well established that arguments which are not
presented to the trial court will not be considered in a petition for writ of mandamus. See
In re Am. Optical Corp., 988 S.W.2d 711, 714 (Tex. 1998) (orig. proceeding); In re Jindal
Saw Ltd., 264 S.W.3d 755, 767 (Tex. App.—Houston [1st Dist.] 2008, orig. proceeding);
In re Advance Payroll Funding, Ltd., 254 S.W.3d 710, 714 (Tex. App.—Dallas 2008, orig.
proceeding). Nevertheless, the applicable law indicates that the State has no duty to
present exculpatory evidence to a grand jury. See United States v. Williams, 504 U.S.
36, 51 (1992); In re State, 516 S.W.3d at 528–29; In re Grand Jury Proceedings, 129
S.W.3d 140, 143–44 (Tex. App.—San Antonio 2003, orig. proceeding [mand. denied]);
Matney v. State, 99 S.W.3d 626, 629 (Tex. App.—Houston [1st Dist.] 2002, no pet.).5 And
generally, “if an indictment is valid on its face,” the court “may not go behind the indictment
5 Seealso Gallegos v. State, No. 08-05-00081-CR, 2006 WL 3317964, at *4 (Tex. App.—El Paso
Nov. 16, 2006, pet. ref’d) (op., not designated for publication); Logan-Gates v. State, No. 05-02-01624-CR,
2005 WL 159627, at *7 (Tex. App.—Dallas Jan. 6, 2005, pet. ref’d) (op., not designated for publication).
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to determine whether it was properly returned or to review alleged procedural errors in its
presentment.” Perkins v. State, 902 S.W.2d 88, 101 (Tex. App.—El Paso 1995),
supplemented, 905 S.W.2d 452 (Tex. App.—El Paso 1995, pet. ref’d) (citing DeBlanc v.
State, 799 S.W.2d 701, 706 (Tex. Crim. App. 1990); Dean v. State, 749 S.W.2d 80, 82
(Tex. Crim. App. 1988); Crocker v. State, 573 S.W.2d 190, 204 (Tex. Crim. App. 1978)).
Thus, because prosecutors have no duty to present exculpatory evidence to the grand
jury, the accused can show no particularized need to access grand jury information to
obtain such information. See In re State, 516 S.W.3d at 528–29; In re Grand Jury
Proceedings, 129 S.W.3d at 144.
Based on the foregoing, we conclude that Rosas did not meet his burden to show
a particularized need for the transcription of the grand jury proceedings. See TEX. CODE
CRIM. PROC. ANN. art. 20.02(d). Stated otherwise, Rosas has not shown that it is “material
to the administration of justice that disclosure be allowed.” See Stern, 869 S.W.2d at 622.
The code of criminal procedure explicitly provides that “[t]he proceedings of the
grand jury shall be secret.” TEX. CODE CRIM. PROC. ANN. art. 20.02(a). Article 20.02
“clearly spells out the trial court’s duty to keep grand jury proceedings secret.” In re State,
516 S.W.3d at 528. The law at issue is “definite, unambiguous, and unquestionably
applies to the indisputable facts of the case.” See State ex rel. Young, 236 S.W.3d at
210. Accordingly, because Rosas did not make “a showing of . . . a particularized need,”
see TEX. CODE CRIM. PROC. ANN. art. 20.02(d), the trial court “had the clear ministerial
duty to keep the grand jury proceedings secret.” See In re State, 516 S.W.3d at 528.
Thus, relator has met the first requirement for mandamus relief by showing that the act
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sought to be compelled is purely ministerial. See In re McCann, 422 S.W.3d at 704; In
re State ex rel. Weeks, 391 S.W.3d at 122.
C. Adequate Remedy at Law
To obtain mandamus relief, the relator must also establish that it lacks an adequate
remedy at law. See In re McCann, 422 S.W.3d at 704; State ex rel. Young, 236 S.W.3d
at 210. In criminal cases, the State has only a limited right of appeal. See TEX. CRIM.
PROC. CODE ANN. art. 44.01; In re State, 564 S.W.3d 58, 64 (Tex. App.—El Paso 2018,
orig. proceeding). Because relator has no right to appeal the order requiring the
production of the grand jury transcript, it lacks an adequate remedy at law. See In re
State, 516 S.W.3d at 528–99.
V. CONCLUSION
The Court, having examined and fully considered the petition for writ of mandamus,
the response, and the applicable law, is of the opinion that relator has met its burden to
obtain relief. Accordingly, we lift the stay previously imposed in this case. We
conditionally grant the petition for writ of mandamus and order the trial court to vacate the
February 22, 2019 order in its entirety. Our writ will issue only if the court fails to comply.
GINA M. BENAVIDES,
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
10th day of June, 2019.
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