in Re State of Texas Ex Rel. John H. Best

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. WR-89,923-01, WR-89,923-02
In re State of Texas ex rel. JOHN H. BEST, Relator
PETITION FOR WRITS OF MANDAMUS AND PROHIBITION
IN CAUSE NO. C-17-0982-SB IN THE 340TH JUDICIAL DISTRICT COURT
TOM GREEN COUNTY
YEARY, J., delivered the opinion for a unanimous Court.
OPINION
This is a petition for the writs of mandamus and prohibition filed in this Court,
seeking to overturn the order of a district court judge which requires the Texas Department
of Public Safety [“DPS”] Crime Lab in Lubbock make an audiovisual record of DNA
testing in certain cases. We will grant conditional relief.
BACKGROUND
Relator is John H. Best, the District Attorney for the 119th Judicial District, and this
case involves five codefendants (real parties in interest here) who have all been indicted
for offenses arising out of the same criminal episode, a shooting that occurred “on or about
the 21st day of July, 2017.” Stephen Jennings, Kristen Jennings, and David Navarro were
In re State of Texas ex rel. John H. Best - 2
all indicted for capital murder and lesser offenses. Garry Jennings was indicted for murder
and lesser offenses. And Angella Wray was indicted for aggravated kidnapping and
engaging in organized criminal activity. Relator asserts that the five cases were assigned
to four district courts, with Stephen Jennings’ and Kristen Jennings’ cases assigned to
Respondent’s court, the 340th Judicial District Court. The State has not waived the death
penalty in the three capital murder cases.
Pursuant to Texas Code of Criminal Procedure, Article 38.43, the State submitted
biological evidence collected in these cases to the DPS Crime Lab in Lubbock for DNA
testing. TEX. CODE CRIM. PROC. art. 38.43. However, Stephen Jennings and Navarro
moved in their respective courts to have the DNA testing halted. They argued that some of
the biological samples might not be sufficient for the State to conduct its DNA testing and
for the five defendants to be able to retest the evidence. Respondent stayed the testing until
an evidentiary hearing could be held, and he scheduled a hearing.
Navarro requested that the four trial courts agree on a single DNA testing policy.
Navarro’s judge, the Presiding Judge of the 51st Judicial District Court, signed an “Order
to Halt DNA Testing until Further Order” that directed Relator to provide all five
codefendants with notice of any hearings in any of the four courts related to the scientific
testing of evidence collected in these cases.
In December 2018, Respondent held an evidentiary hearing in which one witness,
DPS DNA Section Supervisor David Young, testified. Defendant Stephen Jennings’ DNA
expert, Dr. Elizabeth Johnson, was standing by on “Court Call” listening to Young’s
testimony.
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Young testified that the DPS lab is periodically audited by various entities and
accredited by a national board. Young conceded that some samples, like a swab used to
collect touch DNA, can be completely “consumed” by the extraction process. Young said
that DPS’s quantification and amplification processes usually leave more than half of the
fifty microliters of extract available for defense testing. But sometimes they must use
another fifteen microliters of the extract, leaving an insufficient quantity of extract for a
defendant to conduct independent testing. Young stated that DPS policy prohibits allowing
non-employees (other than auditors) into the lab work area while they are testing the
evidence. He said that DPS normally runs batch tests which might include samples from a
number of cases. He testified that allowing non-employees into the work area or allowing
electronic monitoring/recording would be “very disruptive,” could make analysts anxious,
and could create a risk of contamination or cause delays in multiple cases.
Respondent adjourned the hearing without taking additional testimony and ordered
the parties to submit briefs. Stephen Jennings and Navarro filed briefs, Relator filed a
“Brief in Opposition to Defense Request for Observation of State DNA Testing,” and
Stephen Jennings filed a reply to Relator’s brief. With his briefing, Stephen Jennings
submitted Johnson’s two declarations discussing her qualifications, best practices for DNA
testing, the proposed DNA testing of the biological samples in the instant case, her past
experience with DPS labs and other crime labs, and her observations responsive to Young’s
testimony.
In February 2019, Respondent sent counsel for all five defendants a letter setting
out his findings of fact and rulings regarding this matter. Respondent found that the State’s
proposed DNA testing would not provide enough remaining DNA sample or extract for
In re State of Texas ex rel. John H. Best - 4
each of the five defendants to conduct their own confirmatory testing of the biological
evidence. Respondent stated that Article 38.43(i) did not grant the State the absolute or
exclusive right to select the DNA lab, 1 and Article 38.43(k) was not applicable here
because no biological evidence had yet been “destroyed or lost.” 2 Respondent found that
the DPS lab was the only statutorily authorized option to conduct the testing because there
was no evidence that any “private, accredited lab would willingly absorb the cost of DNA
testing for another party.” Respondent found the real parties in interest’s constitutional and
fundamental fairness arguments to be “well taken.” Respondent further found that the
State’s and the real parties’ concerns could be addressed by requiring DPS to allow
“indirect or remote observation” of the DNA testing of the samples in question. Respondent
directed Relator to work with the DPS lab to acquire the necessary equipment and to
implement digital audiovisual recording of the handling, preparation, and testing of the
1
Article 38.43(i) provides:
Before a defendant is tried for a capital offense in which the state is seeking the
death penalty, subject to Subsection (j), the state shall require either the Department
of Public Safety through one of its laboratories or a laboratory accredited under
Article 38.01 to perform DNA testing, in accordance with the laboratory’s
capabilities at the time the testing is performed, on any biological evidence that was
collected as part of an investigation of the offense and is in the possession of the
state. The laboratory that performs the DNA testing shall pay for all DNA testing
performed in accordance with this subsection.
TEX. CODE CRIM. PROC. art. 38.43(i).
2
Article 38.43(k) provides:
If an item of biological evidence is destroyed or lost as a result of DNA testing
performed under Subsection (i), the laboratory that tested the evidence must
provide to the defendant any bench notes prepared by the laboratory that are related
to the testing of the evidence and the results of that testing.
TEX. CODE CRIM. PROC. art. 38.43(k).
In re State of Texas ex rel. John H. Best - 5
samples in question, using no fewer than three cameras to capture the entire DNA testing
process.
In March 2019, Respondent signed an order providing that “any DNA testing
conducted on the biological evidence in these cases be recorded by both audio and video.”
Respondent ordered Relator to submit a plan to Respondent for approval, with notice to all
five defendants, “to ensure that the handling, preparation and testing of all of the biological
material that will be consumed by testing (that evidence for which there is insufficient
biological material for each defendant to conduct confirmatory testing) will be audio and
video digitally recorded in such a manner as will capture the entire process and maintain a
constant view of the biological evidence and the individuals involved in the DNA testing
process.” Respondent further ordered that no fewer than three cameras must be used and,
“[t]he digital recording must be sufficient to record all comments and conversations that
occur in the DPS crime lab during the DNA tests, in addition to any other sounds in the
crime lab that are in any way relevant to the DNA tests.” Respondent allowed each
defendant seven days to object to the State’s plan. Respondent stated that his ruling was
“limited to this case, these defendants, and the circumstances before [Respondent].”
Relator filed a motion for reconsideration asking Respondent to withdraw his
orders. Relator argued that Respondent had “no authority—constitutional, statutory,
express, implied, inherent, or otherwise” to enter the orders. Relator also sent Respondent
a letter asserting that “the State has no authority to order DPS to do anything.” Relator
further complained that the “changes to DPS’s physical premises, testing procedures, and
treatment of personnel contemplated by [Respondent] are massive.” Relator estimated that
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the process “could take a year or more.” Stephen Jennings filed a response to Relator’s
motion for reconsideration. In April 2019, Respondent denied Relator’s motion.
In May 2019, Relator filed in this Court the instant petition for writs of mandamus
and prohibition and motion for leave to file the same. Relator argues that Respondent
lacked the judicial authority to enter his orders, which contravene Article 38.43 and the
Separation of Powers Doctrine. Relator maintains that Respondent’s “primary justification
for interfering with” the State’s testing of the biological evidence “is essentially based on
the idea that the real parties in interest have a constitutional right to discover and test
untested biological material. They do not.” Relator contends that, at best, Respondent’s
orders “represent a premature determination that the defenses of the real parties in interest
will be impaired if they cannot each conduct testing on every original sample of biological
material.” Relator maintains that, because Respondent had no authority to execute these
orders, he has a “ministerial duty to withdraw [the] stay and to refrain from enforcing [his]
latest order or otherwise interfering with Relator’s statutorily mandated testing of
biological material.” Relator asks this Court to grant his petition and order Respondent to:
withdraw the order staying testing; withdraw the order requiring Relator to use DPS to
perform testing and compelling DPS to utilize recording devices; and “refrain from further
interference with Relator’s testing of its evidence pursuant to statute.” We granted
Relator’s motion for leave to file his petition and filed and set the cause for resolution by
written opinion.
PADILLA
In Padilla v. McDaniel, Judge, 203rd Judicial District Court, 122 S.W.3d 805, 808
(Tex. Crim. App. 2003), we held that “when a court of appeals and this court have
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concurrent, original jurisdiction of a petition for a writ of mandamus against the judge of a
district or county court, the petition should be presented first to the court of appeals unless
there is a compelling reason not to do so.” Relator has not sought extraordinary relief in
the court of appeals. We agree with Relator, however, that there are compelling reasons
not to have presented his petition of mandamus to the court of appeals. First, it is combined
with a petition for writ of prohibition, over which the courts of appeals lack original
jurisdiction other than to enforce their jurisdiction. 3 And second, several of the cases
involved in this litigation are capital murder cases in which the State has not waived the
death penalty. We agree it is appropriate to present the mandamus and prohibition matters
first in this Court.
THE STANDARD FOR EXTRAORDINARY RELIEF
To obtain extraordinary relief, Relator must show that 1) he has no adequate remedy
at law, and 2) what he seeks to compel or prohibit is ministerial, involving no discretion.
State ex rel. Young v. Sixth Judicial Dist. Court of Appeals, 236 S.W.3d 207, 210 (Tex.
Crim. App. 2007) (mandamus); In re McCann, 422 S.W.3d 701, 704 (Tex. Crim. App.
2013) (prohibition). As to the second requirement, the Court has observed that, “[i]f a
district judge enters an order for which he has no authority, mandamus will issue.” Cobb
v. Godfrey, 739 S.W.2d 47, 48 (Tex. Crim. App. 1987).
3
This Court has original jurisdiction to issue both writs of mandamus and writs of
prohibition. TEX. CONST. art. V, § 5(c); TEX. CODE CRIM. PROC. art. 4.04, § 1. The original
jurisdiction of the courts of appeals extends to writs of mandamus against district court judges, but
it extends to writs of prohibition only to the extent that such writs might be “necessary to enforce
the jurisdiction of the court.” TEX. CONST. art. V, § 6(a); TEX. GOV’T CODE § 22.221.
In re State of Texas ex rel. John H. Best - 8
Relator has no ability to take an interlocutory appeal from the trial court’s order in
this matter pursuant to Article 44.01 of the Texas Code of Criminal Procedure. TEX. CODE
CRIM. PROC. art. 44.01. He has no adequate remedy at law. We therefore proceed to address
whether the act he seeks to compel or prohibit is ministerial—and specifically, whether it
is within the trial court’s authority to enter the order it did in these cases.
THE TRIAL COURT’S AUTHORITY
We have said that Article 38.43—the statute at issue here—grants certain discretion
in the trial court to regulate pre-trial DNA testing, by resolving disputes among the parties
as to which “biological evidence” is necessary to be tested under that statute. In re Solis-
Gonzalez, 489 S.W.3d 459, 461–62 (Tex. Crim. App. 2016). But whatever may be the
permissible scope of a trial court’s discretion over matters of pre-trial discovery, it does
not extend to the point of ordering the State to create or generate evidence that does not
otherwise exist. This Court has plainly said that a trial court does not have the authority to
do that. In In re Harris, 491 S.W.3d 332, 336 (Tex. Crim. App. 2016), we declared that a
trial court lacks authority to require the State, in the name of discovery, to “create a
document that did not exist at the time of the discovery order.” 4 Here, the trial court
essentially ordered the State to generate documentary evidence, in the form of a digital
4
In a footnote, the Court in Harris cited to its unpublished opinion in another extraordinary
matter, In re Stormer, No. WR-66,865-01, 2007 WL 1783853, at *1 (Tex. Crim. App. June 20,
2007) (not designated for publication). Harris, 491 S.W.3d at 336 n.11. In Stormer, we observed:
“While we defer to the trial judge’s decision to deny a discovery request in the absence of a
showing of good cause, we have not held that a trial judge lacks authority to order discovery in the
absence of a showing of good cause. For that reason alone, this Court would not grant mandamus
relief.” 2007 WL 1783853, at *1. Nevertheless, we went on to grant qualified mandamus relief
because the trial court purported to order the State to create certain documents that were not already
in its possession. We observed that “[t]he trial court does not have authority under [TEX. CODE
CRIM. PROC. art. 39.14] to order the State to create a document that it does not already have. Article
39.14 deals with the production of discovery materials, not their creation.” Id., at *2.
In re State of Texas ex rel. John H. Best - 9
audiovisual recording of DPS’s DNA testing of the biological evidence, that would not
exist but for the order itself. Such an order plainly exceeds the permissible scope of a trial
court’s discovery discretion.
NO DUE PROCESS COMPULSION
What is more, we reject the trial court’s conclusion that a failure to order a digital
recording of the State’s DNA testing in this case, or some other such documentary action,
would result in a violation of the accused defendants’ due process rights. That the State’s
DNA testing might exhaust the testable samples and thereby deprive the defendants of the
ability to retest the biological evidence does not deprive them of their due process right to
present a complete defense. Nor does it entitle them to discovery that would not otherwise
be authorized.
“There is no general constitutional right to discovery in a criminal case,” the United
States Supreme Court has concluded, and “‘the Due Process Clause has little to say
regarding the amount of discovery which the parties must be afforded.’” Weatherford v.
Bursey, 429 U.S. 545, 559 (1979) (quoting Wardius v. Oregon, 412 U.S. 470, 474 (1973));
Ex parte Pruett, 207 S.W.3d 767, 767 (Tex. Crim. App. 2005) (quoting Weatherford). And
before evidence in the State’s possession which may be destroyed during testing will be
considered “material” for due process purposes, it “must both possess an exculpatory value
that was apparent before the evidence was destroyed, and be of such a nature that the
defendant would be unable to obtain comparable evidence by other reasonably available
means.” California v. Trombetta, 467 U.S. 479, 489 (1984).
In these pre-trial discovery proceedings, prior to the DNA testing itself, it is not at
all apparent that the biological evidence will have exculpatory value. Nor does it matter
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that the State may be aware in advance that the testing might totally consume the biological
evidence, such that re-testing by the defendants will be impossible. When evidence that the
State destroys is only potentially exculpatory, due process is implicated only when the State
has destroyed that evidence in bad faith. Arizona v. Youngblood, 488 U.S. 51, 57–58
(1988). And as this Court observed in Ex parte Napper, 322 S.W.3d 202, 232 (Tex. Crim.
App. 2010): “If awareness that evidence would be destroyed were enough, by itself, to
constitute bad faith, then officials could never conduct a test that would consume all of the
evidence, even if doing so were necessary to achieve probative results.”
Still, these defendants are not without recourse. We acknowledge that, should DPS’s
DNA testing generate only inculpatory results while at the same time totally consuming
the biological samples, it may not be possible for the defendants to re-test the biological
evidence. But Section (k) of Article 38.43 provides a remedy to defendants when the
biological evidence is lost or destroyed as a result of DNA testing, namely: access to “any
bench notes prepared by the laboratory that are related to the testing of the evidence and
the results of that testing.” TEX. CODE CRIM. PROC. art. 38.43(k). That access should allow
defendants to subject any inculpatory DNA test results to the crucible of cross-
examination. 5 Such a remedy at least minimally satisfies due process so long as the State
has not destroyed the biological evidence in bad faith.
5
Should the State be unable to provide any bench notes as required by Article 38.43(k),
the defendants could present evidence of that inability at trial to impeach any inculpatory DNA
test results. Cf. United States v. Owens, 484 U.S. 554, 559 (1988) (“If the ability to inquire into
these matters suffices to establish the constitutionally requisite opportunity for cross-examination
when a witness testifies as to his current belief, the basis for which he cannot recall, we see no
reason why it should not suffice when the witness’ past belief is introduced and he is unable to
recollect the reason for that past belief. In both cases the foundation for the belief (current or past)
cannot effectively be elicited, but other means of impugning the belief are available.”).
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CONCLUSION
We conclude that Respondent exceeded his discretionary authority in discovery
matters by ordering the State to create evidence in the form of a digital audiovisual
recording of DPS’s DNA testing in these cases. As usual, a formal writ of mandamus and/or
prohibition will not issue unless Respondent should fail to rescind its order and allow DPS
to proceed with the DNA testing without memorialization beyond that contemplated by
Article 38.43(k), i.e., its bench notes.
DELIVERED: February 3, 2021
PUBLISH