# Dickens v. Court of Appeals for the Second Supreme Judicial District of Texas

> Court of Criminal Appeals of Texas · March 25, 1987 · 727 S.W.2d 542

URL: https://www.frixlaw.com/law-library/cases/9771596

## Case

- **Full name:** Honorable Charles DICKENS, Relator, v. COURT OF APPEALS FOR the SECOND SUPREME JUDICIAL DISTRICT OF TEXAS, Respondent
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** March 25, 1987
- **Citations:** 727 S.W.2d 542; 1987 Tex. Crim. App. LEXIS 553
- **Precedential status:** Published
- **Opinion:** Dissent by Clinton
- **Judges:** Campbell, Clinton, White, McCormick, Duncan
- **Cited by:** 230 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9771596

## How later opinions describe it (automated extraction)

- holding no abuse of discretion when trial court denied defense request for copy and expert review of videotaped forensic interview of child victim before trial where prosecution had already complied with Article 38.071 admissibility predicate by permitting defense counsel and …
- noting that current version of Article V, § 5 of the Texas Constitution confers upon Court of Criminal Appeals "general mandamus jurisdiction in criminal law matters in addition to the previously existent mandamus and prohibition authority to enforce its own jurisdiction”
- holding that Texas Court of Criminal Appeals has authority to review, through original mandamus proceeding, mandamus decisions of the courts of appeals in criminal matters
- concluding that “appeal is an adequate remedy in criminal cases for determination of the correctness of a trial judge’s pretrial discovery orders”
- holding the court of appeals erred in granting mandamus relief to a defendant seeking pre-trial discovery

## Opinion text

CLINTON, Judge,
dissenting.
A bare majority would have this Court bestow upon courts of appeals jurisdiction, power and authority to issue writs of mandamus in criminal law matters, and then test propriety of their exercise of the grant by a standard developed on the civil side out of considerations inapposite to criminal law. I dissent to the doing in this cause because Relator is deceased, and to what is ultimately done because erroneous in both aspects.
Mandamus Jurisdiction
When we distill Part III. B. of the majority opinion its essence is deceptively simple: “The word ‘all’ [in former article 1824, Y.A. C.S., and Government Code, § 22.221(b)] removes any jurisdictional restriction upon the subject matter of the writ. Therefore, on their face neither_exclude[s] criminal law matters from mandamus jurisdiction in the courts of appeals.” At p. 548. 1
Constitutionally, original jurisdiction of courts of appeals must be “prescribed by law,” Article V, § 6. The germane ques *554 tion is what has the Legislature specified with authority, not that which it has “removed” or not “excluded.” In context even the word “all” is ambiguous. 2 The answer may indeed be found by resorting to construction aids, and to that endeavor I now turn.
Before 1978 when it was considered a civil action the Supreme Court of Texas alone had general jurisdiction, power and authority to issue the writ of mandamus against a district judge pertaining to a criminal case — for purposes other than to enforce its own jurisdiction and to compel a judge to proceed to trial and judgment in a cause. Article V, § 8; articles 1733 and 1734; e.g., Pope v. Ferguson, 445 S.W.2d 950, 952-957 (Tex.1969), and State ex rel. Pettit v. Thurmond, 516 S.W.2d 119, 121 (Tex.1974). Then this Court had no such jurisdiction, power and authority. Pope v. Ferguson, supra, 445 S.W.2d at 955 .
Effective September 1, 1981, however, Article V, § 3 was substantially amended. Now the Supreme Court is to exercise the judicial power of the State “except as otherwise provided in this Constitution,” and other provisions therein make clear that excepted are, inter alia, “criminal law matters.” See also article 1733, as amended by Acts 1981, 67th Leg. Ch. 291, p. 773, § 19 (S.B. 265), now Government Code, § 22.-002(a).
Also, Article V, § 5 grants generally to this Court “final appellate jurisdiction ... in all criminal cases of whatever grade, with such exceptions and under such regulations as may be provided in this Constitution or as prescribed by law.” More specifically, “appeal of all cases in which the death penalty has been assessed” shall be to this Court. However, “appeal of all other criminal cases shall be to the Courts of Appeal [sic] as prescribed by law.” Such is the allocation of strictly appellate jurisdiction in “criminal cases.” 3
“In addition, [this Court] may, on its own motion, review a decision of a Court of Appeals in a criminal case as provided by law.” Review is, of course, a matter of “sound judicial discretion.”
Also, subject to such regulations as may be prescribed by law, this Court and its judges are empowered to issue the writ of habeas corpus and, “in criminal law matters, writs of mandamus, procedendo, prohibition and certiorari.” 4 Separately, they have the power to issue “such other writs ... to protect its jurisdiction or enforce its judgments.”
Constitutionally, then, this Court has jurisdiction, power and authority in five particulars, viz:
one, to decide a death penalty case on direct appeal;
two, to review a decision of a court of appeals in a criminal case;
three, to issue the Great Writ;
four, in criminal law matters to issue extraordinary writs;
five, to issue protective and enforcive writs.
Consistent with the mandate in Article V, § 5 that appeals of all criminal cases except those in which death penalty is assessed shall be to courts of appeals, Article Y, § 6 grants to courts of appeals “appellate jurisdiction [over] all cases of which the District Courts or County Courts have original or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law [and] such other jurisdic *555 tion, original and appellate, as may be prescribed by law.”
Articles 4.03 and 4.04, V.A.C.C.P. confirm and implement constitutional grants of jurisdiction, power and authority to courts of appeals and to this Court, respectively.
While it is true that there are neither constitutional nor statutory definitions of the terms, whatever a “criminal case” may be both sources make clear that appellate jurisdiction pertains to a “criminal case.” Though the term “criminal law matter” may be broad enough to include “criminal case” for some purposes, facially the provisions distinguish one from the other by prescribing differently those essential functions inhering in each: a criminal case is decided on direct appeal in exercise of appellate jurisdiction under one set of rules, while a criminal law matter is decided in exercise of original jurisdiction under other rules, including maxims of equity. 5
Which brings us directly to the question of jurisdiction, power and authority of courts of appeals to entertain and issue writs of mandamus in criminal law matters. I find that they did not have any under former article 1824, nor do they have any under Government Code, § 22.221(b).
As developed ante, by amendment to Article V, § 5 in 1978 this Court was granted extraordinary writ jurisdiction “regarding criminal matters,” and in 1981 in “criminal law matters.” See Thomas v. Stevenson, 561 S.W.2d 845 (Tex.Cr.App.1978 (Onion, P.J., concurring); see also Dix, Appellate Review by Mandamus and Prohibition in Texas Criminal Litigation, 17 Texas Tech L.R. (1986) 75, at 84.
Under articles 1823 and 1824, V.A.C.S., then extant, a court of civil appeals had mandamus authority only in protection of its jurisdiction and to order a trial judge to proceed to trial and judgment. Crofts v. Eighth Court of Civil Appeals, 362 S.W.2d 101, 104 (Tex.1963). As also amended in 1981, Article V, § 6 did not grant original writ jurisdiction, power and authority to courts of appeals. Instead it provided they shall have such “as may be prescribed by law.” When the 67th Legislature enacted S.B. 265 in 1981 to implement the constitutional amendments that, inter alia, bestowed on courts of appeals only appellate jurisdiction over criminal cases, it did not provide extraordinary writ jurisdiction over criminal law matters. Rather, it left undisturbed the “jurisdictional limitations” of articles 1823 and 1824. Allen v. Guarino, Judge, 635 S.W.2d 129 (Tex.App.—Houston [1st]) 1982.
Section 19 of S.B. 265 did make a conforming addition to former article 1733, V.A.C.S., as underscored below, viz:
“The Supreme Court ... shall have jurisdiction and authority to issue writs of procedendo, certiorari and all writs of quo warranto or mandamus agreeable to the principles of law regulating such writs, against any district judge, or Court of Appeals or justices thereof, or any officer of State Government, except the Governor or the Court of Criminal Appeals or the judges thereof.”
Then, in Acts 1983, 68th Leg., Ch. 839, p. 4767, the Legislature passed
“An act relating to the jurisdiction of the supreme court and the courts of appeals in certain civil cases and the issuance of the writ of mandamus by the courts of appeals or the justices.”
With language obviously taken in part from article 1733, see ante, Section 3 of that act amended former article 1824, Revised Civil Statutes of Texas, as amended, to read as follows:
“Said Courts or any Justice thereof, in vacation, may issue all writs of Mandamus agreeable to the principles of law regulating such writs, against any Judge of a District or County Court.”
It has been found that a “Bill Analysis” prepared by its author indicates the intent of that section is “to expand the mandamus power of the Court of Appeals” because they were being denied the more “extensive mandamus power” vested in the Supreme Court. Nevertheless, some have argued that the explanation by the author of *556 the bill will not support a reasonable inference of civil jurisdiction only, noting much like the majority today, that the plain language is “unrestrictive,” and suggesting that the Legislature must have been aware that two years earlier courts of appeals had been vested with “criminal appellate jurisdiction.”
Of course, vesting “criminal appellate jurisdiction” is not to grant “original jurisdiction” in “criminal law matters.” Moreover, the setting of developments in which article 1824 was amended in 1983 demonstrates conclusively that the foregoing analysis, as well as the simplistic approach by the majority, is flawed.
The 1981 set of amendments to Article V made indisputable the following propositions:
first, that excepted from the judicial power vested in the Supreme Court are “criminal law matters,” § 3;
second, that granted to this Court is the appellate, review and original jurisdiction, power and authority discussed and delineated ante at pages 3-4, particularly that “in criminal law matters” it has the power to issue extraordinary writs, § 5; third, that bestowed on courts of appeals is appellate jurisdiction in criminal cases, and such other jurisdiction, original and appellate, as may be prescribed by law, §§ 5 and 6.
The general jurisdiction, power and authority constitutionally granted this Court has never been implemented by any legislative enactment contained in the Revised Civil Statutes. See Title 38, Y.A.C.S. Along with all other courts having criminal jurisdiction, that has always been provided in the extant code of criminal procedure. See former Chapter Four, especially Article 4.01, 4.03 and 4.04, C.C.P. 1965.
When the Legislature enacted S.B. 265, supra, in 1981, it completely overhauled the statutory scheme of things to comport with the constitutional amendments. In § 19 by amending article 1733 to bar the Supreme Court from issuing writs of mandamus against this Court and its judges, it not only acknowledged that by virtue of revised § 3 the Supreme Court no longer had any civil mandamus jurisdiction over criminal law matters, but it also provided for the supremacy of this Court in criminal law matters. Furthermore, though several sections in Title 38 were amended, none prescribes the general jurisdiction, power and authority of this Court, see §§ 26-29; while several sections of Title 39, dealing with jurisdiction of courts of appeals, were amended none prescribes the newly acquired appellate jurisdiction in criminal cases, see §§ 38-41. 6
Instead, conforming to past practice, the Legislature placed all statutory provisions for jurisdiction, power and authority of courts of appeals in criminal cases solely in the code of criminal procedure. Thus § 101 amended Article 4.01 to include among courts having jurisdiction in “criminal actions” the courts of appeals; § 102 revised Article 4.03 (then prescribing appellate jurisdiction of this Court in criminal cases) to award to courts of appeals “appellate jurisdiction ... in all criminal cases” except death penalty cases, and to exclude certain criminal cases appealed from an inferior court to a county court. As revised, Article 4.03 is absolutely silent as to any extraordinary writ jurisdiction in “criminal law matters.” Of course, the Legislature was not obliged to provide that writ jurisdiction, but silence on that matter while otherwise revising the entire statutory scheme speaks words to me.
In the very next § 103, however, the Legislature did amend Article 4.04 to embrace both writ jurisdiction in criminal law matters and appellate and review jurisdiction in criminal cases, as constitutionally granted to this Court. See pages 544-545.
With the constitutional amendments and statutory provisions, then, as things stood on September 1, 1981, this Court — and no other in the criminal justice system — pos sessed specified jurisdiction, power and *557 authority to issue extraordinary writs in criminal law matters.
Therefore, in 1983 when the author of the bill explained that in amending article 1824, Revised Civil Statutes his purpose was “to expand the mandamus powers of the Court of Appeals” by granting “extensive mandamus power [of the Supreme Court] which is denied the Courts of Appeals," he could only be referring to jurisdiction of courts of appeals in civil cases. By then, as has been demonstrated ante, the Supreme Court had no jurisdiction, power or authority in criminal law matters, having been stripped of that by Article V, § 3. 7 Since he took the term “all writs” and related language directly from article 1733, he surely intended them to have the same meaning and effect, and no more.
To be kept in mind is that courts of appeals have only that original jurisdiction “as may be prescribed by law.” Article V, § 6. The Legislature has not yet specified they are to have jurisdiction, power and authority to issue the writ of mandamus in criminal law matters. To the unsupported conclusion of the majority, I respectfully dissent. 8
Reviewing Standard
Since I also disagree with its belief that adoption and application of “the clear abuse of discretion standard” is necessary in this cause or generally when reviewing “mandamus actions of lower courts” in discovery matters, I dissent. The essence of my objection is that while the majority derives its review standard from opinions of the civil side, policy considerations and rationale for the standard in discovery matters in civil cases are not pertinent to a stricter limitation on discovery more recently devised by this Court for criminal cases. Atpp. 550-551.
The notion of “clear abuse of discretion” did not originate in Womack v. Berry, 156 Tex. 44 , 291 S.W.2d 677 (1956), but in a context of rules of procedure that appears to be the first time the Supreme Court actually based issuance of a writ of mandamus on it. Involved was refusal of a trial court under Tex.R.Civ.Pro. Rule 174(b) to grant plaintiff in a complex suit against many defendants over interests in an estate a severance of a claim against one defendant who successfully asserted his right to a stay of all proceedings against him under the Soldiers’ and Sailors’ Civil Relief Act.
Recognizing that “use of the permissive word ‘may’ imports the exercise of discretion in such matters,” the Supreme Court said that discretion vested in a trial court by the rule is not unlimited discretion — the court is “required to exercise a sound and legal discretion within limits created by the circumstances of each case.” Noting that “the express purpose of the rule is to further convenience and avoid prejudice, and thus promote the ends of justice,” the Supreme Court formulated a rationale for its conclusion, viz:
“When all the facts and circumstances of the case unquestionably require a separate trial to prevent manifest injustice, and there is no fact or circumstance supporting or tending to support a contrary conclusion, and the legal rights of the parties will not be prejudiced thereby, there is no room for the exercise of discretion. The rule [174(b)] then is peremptory in operation and imposes upon the court a duty to order a separate trial. While the refusal to grant a separate *558 trial under such circumstances is usually termed a clear abuse of discretion, it is nevertheless a violation of a plain legal duty.”
Id., 291 S.W.2d 683 . And performance of a plain legal duty may, of course, be enforced by mandamus.
Crane v. Tunks, 160 Tex. 182 , 328 S.W.2d 434 (1959), is a progeny of mandamus proceedings implicating rulings of a trial court on a bill of discovery. 9 Relying on them and Womack v. Berry, supra, the Supreme Court did find that writ of mandamus may issue “to correct a clear abuse of discretion.” Id., 328 S.W.2d at 440 . The trial judge had ordered Crane, defendant in a suit over ownership of real property, to turn over to attorney for plaintiff certain papers, including his federal income tax return for a given year; Crane sought relief from that order by way of mandamus. Reviewing the law relating to a bill of discovery and rejecting his contention that tax returns are privileged, the Supreme Court concluded that while the order for discovery was “a correct one” and issuing it not an abuse of discretion, there was an abuse of discretion in ordering inspection of the entire return without first inspecting it “to determine what portions were relevant and material to this cause.” Id., at 328 S.W.2d at 440-441 . This was viewed in Maresca v. Marks, 362 S.W.2d 299, 301 , (Tex.1962), as “affording extraordinary relief when no discretion has been exercised.” 10
Traditionally and by rules of procedure, then, on the civil side courts and parties place a high value on liberal discovery. As the Supreme Court pointed out in Jampole v. Touchy, 673 S.W.2d 569 (Tex.1984):
“[T]he ultimate purpose of discovery is to seek the truth, so that disputes may be decided by what the facts reveal, not by what facts are concealed, [citations omitted]. For this reason, discovery is not limited to information that will be admissible at trial.To increase the likelihood that all relevant evidence will be disclosed and brought before the trier of fact, the law circumscribes a significantly larger class of discoverable evidence to include anything calculated to lead to the discovery of material evidence. [citations omitted]. This broad grant is limited, however, by the legitimate interests of the opposing party....”
Id., at 573 . Indeed, its remedial actions in that case illustrate how the Supreme Court will critically examine denials of discovery. Id., at 573-575 . It also found that appeal is not an adequate remedy for several reasons. Id., at 576 . 11
*559 After 1983, when writ power of courts of appeals vis a vis judges of district and county courts was expanded, see Government Code, § 22.221(b), the Supreme Court began to review writs issued by them. Jampole v. Touchy is the basis for the following statement of the Supreme Court in Ginsburg v. Fifth Court of Appeals, 686 S.W.2d 107 (Tex.App.1985):
“The proceeding in this court is an original mandamus proceeding. Tex. Rev.Civ.Stat.Ann. art. 1733 authorizes this court to issue writ of mandamus to appellate courts as well as to other entities. Therefore, this court has jurisdiction to review the issuance of the writ of mandamus by the court of appeals, to determine if that issuance constituted a clear abuse of discretion. Jampole v. Touchy, 673 S.W.2d 569 (Tex.1984).”
The Supreme Court stated the underlying procedural facts substantially as summarized in the margin. 12 Rejecting the claim of psychotherapist-patient privilege asserted by plaintiff, the Supreme Court then analyzed the situation thus presented, viz:
“The admission of evidence and the scope of discovery rests within the discretion of the trial court. The trial court was properly within its discretion when it deemed [plaintiffs] medical records discoverable. The court of appeals, therefore, abused its discretion by ordering the trial court to refrain from further discovery pertaining thereto, for the denial of proper discovery constitutes a ‘clear abuse of discretion.’ Jampole ...”
Id., at 108.
This review of early and late opinions reveals the importance of “proper discovery” on the civil side and a ready availability of the writ of mandamus to ensure that it is not denied. Furthermore, a careful reading of the above quoted holding in Ginsberg produces an understanding that, as stated in Johnson v. Fourth Court of Appeals, 700 S.W.2d 916 (Tex.1985), “Our focus remains on the trial court’s order regardless of the court of appeals’ decision on mandamus.” Id., at 918 . 13
In the criminal justice system, however, when a motion for discovery is contested by the prosecution most courts are, to put it gently, chary, and this Court has given mere lip service to a more liberal practice— just as it does again today at page 16 of the majority opinion. 14 As demonstrated in *560 the margin, the stark reality is that this Court has taken a simple job of fulfilling statutory requirements for obtaining discovery — practically like procedure on the civil side — and turned it into a requirement that in its constitutional sense “materiality” to the defense of an accused must be shown when discovery is refused. Unlike a broad scope of discovery in civil cases, in a criminal prosecution, as the majority opinion emphasizes, “the right to discovery is limited to exculpatory or mitigating evidence.” At p. 551. 15
It follows that denial of that “right” implicates more than mere discretion. As the prosecutor is presumed to know when there is no request for discovery, so where one is made the trial judge must make a judicial determination that the evidence an accused seeks to discover is “highly probative of innocence,” such that it would create a reasonable doubt as to guilt. Agurs, 427 U.S., at 110, 96 S.Ct., at 2400, 49 L.Ed.2d 342 (1976).
Therefore, a ruling denying discovery in a criminal case is no longer a matter of exercising discretion, despite recurring rote statements to that effect. Necessarily the judge has found the material sought has so little probative significance in the premises *561 that it would not raise a reasonable doubt; that is, we should hold, a conclusion of law. If an accused believes that conclusion is erroneous, his remedy is to raise the alleged error on direct appeal. Viewed in that light the ruling by the trial judge is not reviewable by way of application for writ of mandamus. State ex rel. Curry v. Gray, 726 S.W.2d 125 (Tex.Cr.App.1987); State ex rel. Wade v. Mays, 689 S.W.2d 893 (Tex.Cr.App.1985); State ex rel. Holmes v. Denson, 671 S.W.2d 896 (Tex.Cr.App.1984).
Conclusion
Accordingly, I would hold that courts of appeals are without jurisdiction, power and authority to issue a writ of mandamus in criminal law matters under Government Code, § 22.221(b). But even assuming ar-guendo the court of appeals has it, in this cause we need not create a new general standard to review its conditional grant, for unlike discovery on the civil side the issue is not whether the trial judge abused his discretion in denying Reynold’s motion but whether his conclusion of law basing that denial is reversible error — an issue to be decided on appeal. 16
For those reasons I respectfully dissent.
McCORMICK and DUNCAN, JJ., join.
. All emphasis is mine throughout unless otherwise stated.
. Former article 1733, V.A.C.S., now Government Code, § 22.002(a), similarly provides that the Supreme Court may issue "all writs of ... mandamus agreeable to the principles of law regulating those writs against a district judge [et cetera].” But we will see that authority does not extend to "criminal law matters,” and in that particular the Supreme Court has none. Thus, in context "all” does not embrace "criminal law matters.”
. There is, of course, the right of appeal to this Court from any judgment or order denying bail pursuant to Article I, § 11a, but that special situation is not pertinent to this discussion and will not be further noticed.
.Effective January 1, 1978, an amendment to Article V, § 5 first identified the power of the Court to issue extraordinary writs "regarding criminal matters.” State ex rel. Vance v. Routt, Judge, 571 S.W.2d 903, 905 (Tex.Cr.App.1978); Thomas v. Stevenson, Judge, 561 S.W.2d 845, 846-847 (Tex.Cr.App.1978).
. As to mandamus, see 38 Tex.Jur.3d 246, § 118. In general, equitable principles.
. Indeed, the Legislature passed over article 1824 but did amend article 1824a, providing concurrent authority with Supreme Court to issue the writ of habeas corpus in certain civil cases. See § 41.
. Just now the Government Code, which is intended to recodify without making a substantive change in the law, § 1.001, carries forward pri- or statutory denial to the Supreme Court of any jurisdiction in criminal law matters, § 22.001. But as disposition and derivation tables make plain, the Government Code codifies only civil statutes. Accordingly, nowhere else in Sub-chapters B., Court of Criminal Appeals; or C., Courts of Appeals, is there any designated allocation of jurisdiction, power or authority, appellate or original, in criminal cases or in criminal law matters — not even to this Court! If one means to include this Court and courts of appeals, a finding that the Government Code "con-ferís] criminal jurisdiction” cannot be supported.
. Especially unsupported is the statement that courts of appeals have mandamus jurisdiction “concurrent with the mandamus jurisdiction of this Court.” At p. 548.
. See, e.g., Southern Bag & Burlap Co. v. Boyd, 120 Tex. 418 , 38 S.W.2d 565 (1931): "It is settled law of this state, that [the trial court] has jurisdiction in the premises to make a proper order [for discovery], and this court will not interfere unless there is an abuse of the trial judge’s discretion” (finding an abuse of discretion, however, the Supreme Court "modified” the order in certain particulars, id., 38 S.W.2d at 570 ); and Rush v. Browning, Judge, 103 Tex. 649 , 132 S.W. 763, 765 (1910) (in a suit between former partners, given that under that particular relationship a partner is entitled to inspect books of account, the duty of the district judge is to secure to a partner his right to inspect the books and to use them in the preparation and conduct of his defense).
. Later, however, the Supreme Court cautioned, "The reasoning in Crane v. Tunks.... does not necessarily apply where a bill of discovery has been denied." Morris v. Hoester, 370 S.W.2d 451 (Tex.1963). But see Barker v. Dunham, 551 S.W.2d 41, 42 (Tex.1977), and Allen v. Humphreys, 559 S.W.2d 798, 901 (Tex.1977), in which denial was reviewed by way of mandamus. Indicating that it was following the lead of the Supreme Court, the Fort Worth Court of Appeals noticed both in the instant cause. Reynolds v. Dickens, 685 S.W.2d 479, 484 (Tex.App.—Fort Worth 1985).
.One, that “it is unlikely [Jampole] would be able to show that the trial court errors were harmful under the standard set out in [applicable rules of civil procedure,] [b]ecause the evidence exempted from discovery would not appear in the record, the appellate courts would find it impossible to determine whether denying the discovery was harmful.”
Another, that "requiring a party to try his lawsuit, debilitated by the denial of proper discovery, only to have the lawsuit rendered a certain nullity on appeal, falls well short of a remedy that is ‘equally convenient, beneficial, and effective as mandamus.’ [citations omitted].”
.During the course of giving her deposition plaintiff revealed she had been treated by a psychiatrist, but objected to giving defendant access to medical records relating to that treatment. The trial court ordered that she produce them and, examining them in camera, found them relevant and discoverable and released them to defendant; it then ordered the psychiatrist be deposed; plaintiff objected on the basis of privilege; the trial court denied her motion for a protective order. The patient sought and the court of appeals issued a writ of mandamus denying defendant the right to depose the psychiatrist; the latter died before the court of appeals considered defendant’s motion for rehearing and dismissed the pending mandamus proceeding. However, it refused to withdraw its prior opinion. Defendant applied to the Supreme Court for mandamus against the court of appeals.
Meanwhile, back in the trial court defendant sought to depose the doctor’s secretary as custodian of records in order to authenticate his medical records. On the strength of the prior opinion by the court of appeals the trial court denied his right to depose; the defendant applied to the court of appeals for writ of mandamus only to be denied relief. He again applied to the Supreme Court for writ of mandamus, and both applications were considered jointly.
. The Supreme Court explained its functions while thus focusing, viz:
“We make an independent inquiry whether the trial court’s order is so arbitrary, unreasonable, or based upon so gross and prejudicial an error of law as to establish an abuse of discretion. Although we may believe that the court of appeals has exercised better judgment than the trial court in the matter, we must nevertheless grant the mandamus and direct the court of appeals to vacate its judgment if there is some basis in reason and law for the order of the trial court. If the matter is truly one of discretion, such discretion lies -with the trial court. An appellate court may not substitute its discretion for that of the trial court.” Id., at 918.
. Early on the Court read and applied Article 39.14 V.A.C.C.P. literally: A motion for discovery must specifically designate the evidence sought and reflect “good cause," and accused must show that the evidence is material, that it is not privileged, that the request is reasonable and that the designated items are in the possession or control of the State or any of its agen *560 cies before overruling the motion is an abuse of discretion with consequent prejudice to accused. Sonderup v. State, 418 S.W.2d 807, 808 (Tex.Cr.App.1967); Bell v. State, 442 S.W.2d 716, 717 (Tex.Cr.App.1969) (adding “and withheld by the state,” presumably under the influence of Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963)); Smith v. State, 455 S.W.2d 748, 753-754 (Tex.Cr.App.1970); Campos v. State, 468 S.W.2d 81, 82 (Tex.Cr.App.1971); Smith v. State, 468 S.W.2d 828, 830 (Tex.Cr.App.1971). Even when the requisite showing was made, however, the Court then held if an appellant had not "affirmatively shown how he was injured by the court’s refusal to allow inspection ..., denial of the motion for inspection constituted harmless error,” Bates v. State, 587 S.W.2d 121, 131 (Tex.Cr.App.1979), and cases cited therein.
With advent of Brady v. Maryland, supra, the socalled "Brady” motion for discovery came in vogue. When the prosecution was obliged to but failed to disclose "Brady material,” the standard applied was whether material or testimony not disclosed "may have had an effect on the outcome of the trial.” Means v. State, 429 S.W.2d 490, 494 (Tex.Cr.App.1968); Ex parte Cherry, 456 S.W.2d 949 (Tex.Cr.App.1970); Crutcher v. State, 481 S.W.2d 113 (Tex.Cr.App.1972); Ridyolph v. State, 503 S.W.2d 276 (Tex.Cr.App.1974). In Quinones v. State, 592 S.W.2d 933 (Tex.Cr.App.1980), the Court recounted:
“Traditionally, this Court has declined to find reversible error stemming from discovery if the defendant was not denied access to exculpatory or mitigating evidence which would have effected the outcome of the trial in his favor, [host of citations omitted].”
Id, at 941.
That traditional approach is now passé, for soon the Court began to take a harder line in reviewing claimed errors in denying discovery, again as related in Quinones, viz:
“Texas has chosen to follow a rule which requires the trial court to permit discovery only if the evidence sought is material to the defense of the accused [emphasis in original]. * * * * More recently in Stone v. State, 583 S.W.2d 410 (Tex.Cr.App.1979) and Frank v. State, 558 S.W.2d 12 (Tex.Cr.App.1977), this Court has expressly chosen to define ‘materiality’ under Texas law in the due process terms employed by the Supreme Court in United States v. Agurs, 427 U.S. 97 , 96 S.Ct. 2392 , 49 L.Ed.2d 342 (1976), one of the more recent elaborations on the disclosure requirements of Brady v. Maryland, supra.
‘_unless the omission deprived the defendant of a fair trial there was no constitutional violation requiring that the verdict be set aside; and absent a constitutional violation, there was no breach of the prosecutor’s constitutional duty to disclose ... The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish "materiality” in the constitutional sense.’ The Court stated that the test for materiality imposes a higher burden on the defendant than the harmless error standard. In determining materiality, the omission must be 'evaluated in the context of the entire record' and constitutional error is committed only ‘if the omitted evidence creates a reasonable doubt that did not otherwise exist.'
Stone v. State, 583 S.W.2d at 415 , in part quoting United States v. Agurs, 427 U.S. at 108-10, 112 , 96 S.Ct. 2392 .”
And that is the status of discovery in criminal cases today. See Robinson v. State, 701 S.W.2d 895, 900 (Tex.Cr.App.1985); but cf. Carmona v. State, 698 S.W.2d 100, 105 (Tex.Cr.App.1985).
. In light of Frank v. State, Stone v. State and Quinones v. State, all supra, in note 14, that even "mitigating evidence” bearing on punishment is still discoverable seems most doubtful. It is under Brady v. Maryland, supra, but Frank, Stone and Quinones are based on Agurs not Brady . See Iness v. State, 606 S.W.2d 306 (Tex.Cr.App.1980) (Clinton dissenting, 324, n. 5). Where a request for designated material is made, I would adhere to Brady v. Maryland.
. While not addressed in the majority opinion, there are yet other threshold questions: By what authority did the late Judge Dickens challenge the conditional grant of writ of mandamus by the court of appeals and by what right is his successor entitled to relief? Knowles v. Scofield, 598 S.W.2d 854, 860 (Tex.Cr.App.1980); State ex rel. Wade v. Mays, supra, 689 S.W.2d at 897-898 . As the adverse party in the trial court, the State through her district attorney may have a sufficient interest to seek relief, Johnson v. Fourth Court of Appeals, supra, but representing Relator before this Court it does not assert any entitlement on his behalf so free from doubt as to be "clear and indisputable.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9771596. Public record. Not legal advice.