"Evidence willfully withheld from disclosure under a discovery order should be excluded from evidence."?? Texas Justice System spelled "JUST US."

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS


NO. PD-0669-05

CALIN MUGUR OPREAN, Appellant


v.


THE STATE OF TEXAS


ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FROM THE FIRST COURT OF APPEALS

HARRIS COUNTY

Keasler, J., delivered the opinion of the Court in which Meyers, Price, Womack, Johnson, Hervey, and Holcomb, JJ., joined. Cochran, J., filed a concurring opinion in which Keller, PJ., joined.

O P I N I O N


The trial judge signed a pre-trial order, requiring that at least ten days before trial, the prosecutor give Oprean's counsel all videos containing Oprean's voice. Immediately before the trial's punishment phase, Oprean's attorney learned that the prosecutor had such a video. The prosecutor, over Oprean's objection, introduced it into evidence. We must decide whether, under the particular facts of this case, the judge erred in admitting the tape. We hold that he did.

FACTS

On February 25, 2004, Judge Don Stricklin signed a document entitled "Discovery Order," directing the State "to furnish the items ordered for inspection and copying on or before ten (10) days prior to trial." Those items included, among other things, "[a]ll video and tape recordings that contain the defendant's voice." It is undisputed that no such items were produced before trial.

Oprean's felony DWI jury trial began on April 12, 2004. After hearing evidence and deliberating, the jury found Oprean guilty on April 14 and was recessed for the day.

That evening, Oprean's attorney asked the trial prosecutor what evidence she intended to present on the punishment issue the next morning. She replied that she intended to present only the "judgments and sentences" in Oprean's prior convictions.

Just minutes before the punishment phase began, defense counsel learned that the prosecutor was going to offer a videotape depicting one of Oprean's previous offenses into evidence. The prosecutor informed defense counsel of her intent to offer the video only after defense counsel inquired about the presence of a police officer in the courtroom, who he assumed was present for another case. The prosecutor informed the trial judge and defense counsel that the officer was there to "testify that the video is a fair and accurate depiction."

Outside the presence of the jury, defense counsel objected to the admission of the video, pointing out to the judge that the prosecutor had violated the discovery order by failing to allow the defense ten days to inspect the video and relating the conversation he had with the prosecutor the previous evening. The prosecutor replied that "there was no [Article 37.07 (g)] charge in this Court's discovery order and no [37.07] request was ever made by defense counsel, which is required to be made to me to give him this evidence." The trial judge overruled defense counsel's objection to the tape's admission.

Defense counsel then asked the judge to grant a recess so that he could inspect the video and prepare his strategy, but the judge summarily denied his request. The tape was introduced before the jury, and the jury assessed Oprean's punishment at five years' imprisonment and a $5,000 fine.

Oprean appealed, and the First Court of Appeals affirmed his conviction. (1) The court of appeals determined that it could not "conclude that the State's article 37.07, section 3(g) explanation is meritless on it face." (2) As a result, the court stated: "the record does not demonstrate that the State acted with specific intent to willfully disobey the discovery order. We hold that the trial judge did not abuse its discretion in admitting the videotape." (3) We granted Oprean's petition for discretionary review to decide whether the Court of Appeals erred in upholding the trial judge's decision to admit the video over Oprean's objection. (4)

LAW AND ANALYSIS

"Evidence willfully withheld from disclosure under a discovery order should be excluded from evidence." (5) When reviewing a trial judge's decision to admit or exclude evidence, an appellate court must determine whether the judge's decision was an abuse of discretion. (6) Unless the trial judge's decision was outside the "zone of reasonable disagreement," an appellate court should uphold the ruling. (7) When a trial judge makes findings of fact "based on an evaluation of credibility and demeanor," an "appellate court should show almost total deference" to those findings. (8) And when the trial judge fails to enter written or oral findings of fact, an appellate court will "view the evidence in the light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record." (9)

In LaRue v. State, our most recent case addressing whether the State's violation of a discovery order was willful, LaRue sought to prevent the State from introducing its DNA evidence because the State failed to comply with the discovery order by disclosing the evidence in an untimely manner. (10) The trial judge agreed with LaRue, and ruled that the DNA evidence should be excluded. (11) The court of appeals reversed the trial judge's decision, and we affirmed. (12) In doing so, we reviewed three situations cited by the trial judge as evidence of willful conduct by the State. (13)

In the first situation, the prosecutor failed to comply with the discovery order because he was told that LaRue's case was going to be reassigned to another prosecutor. (14) The trial judge found that the prosecutor's failure to turn over the DNA evidence "constituted a 'willful choice.'" (15) We concluded that although the inaction of the prosecutor was "'willful' . . . with respect to the conduct itself, " there was "no evidence in the record that, by his choice, he intended to violate the order or harm the defense." (16)

In the second situation, defense counsel spoke with the prosecutor about discovery, telling him that he needed the evidence immediately and that he would be going out of town. (17) The prosecutor faxed the discovery materials to defense counsel the day he left town. (18) The trial judge found the prosecutor's conduct to be "'gamesmanship at the expense of defendant's constitutional right to a fair trial.'" (19) We disagreed, concluding that it is unreasonable to infer that the timing of the fax "was a strategic and purposeful effort to thwart the defense in its preparation of its case." (20)

In the final circumstance, the prosecutor objected to the trial judge's proposal to grant a continuance. (21) According to the trial judge, the State's decision to "exclude any lesser remedy demonstrates the willfulness of the conduct in withholding the evidence . . . ." (22) Disagreeing with the trial judge's findings, we stated that the prosecutor's objection "was in no way relevant to the nature of the State's conduct when it violated the discovery order." (23) Based on the foregoing, we held that "there is no evidence that the prosecutor in this case acted with the specific purpose of disobeying the court's discovery order. . . ." (24)

In this case we must determine whether the prosecutor acted with the specific intent to willfully disobey the discovery order by failing to turn over the videotape from Oprean's prior 2002 DWI conviction to the defense. We conclude that she did.

It should be noted at the outset that a visiting judge handled the punishment phase and the hearing immediately preceding it, so he may not have been aware of the pretrial order at issue before Oprean's lawyer called it to his attention. Nevertheless, the order was part of the record before him. And the order unambiguously directed the State to disclose ten days before trial the very item introduced into evidence. The plain wording of the order is clear to anyone who can read.

Two things are particularly unacceptable about the prosecutor's conduct. First, the prosecutor told defense counsel the night before the punishment phase began that she intended to introduce only the judgments and sentences from the previous convictions. She did not dispute the fact that she made that statement. There is no suggestion that later that night or early the next morning she suddenly discovered the videotape's existence. And because her signature appears at the end of the discovery order, it cannot be said that she was unaware of it.

Second, when defense counsel argued that he had not received notice as required by the discovery order, the prosecutor responded by stating that "there was no [37.07] charge in [the] Court's discovery order." When affirming the judgment of the trial court, the Court of Appeals relied on the prosecutor's explanation. (25) The court found the explanation was not "meritless on its face" and concluded that "[i]n light of the State's explanation, and regardless of an ultimate determination of its validity, the record does not demonstrate that the State acted with specific intent to willfully disobey the discovery order." (26) But the validity of the explanation offered by the prosecutor is a relevant factor that should be considered when determining willfulness. The discovery order did not mention anything about Article 37.07, and therefore was not limited by that provision. Because the prosecutor knew about the discovery order and chose to invoke Article 37.07 after counsel called her attention to the order, she made a conscious decision to violate the plain directive of the discovery order.

Affording total deference to the trial judge's implicit findings of fact that are supported by the record, we find that the trial judge abused his discretion in admitting the videotape over defense counsel's objection. The record reveals that, unlike the prosecutor in LaRue, the prosecutor's conduct here was a calculated effort to frustrate the defense. Because intent is inferred from acts done and words spoken, we have considered the prosecutor's statements and actions in finding her conduct to be willful.CONCLUSION

The judgment of the Court of Appeals is reversed, and the case is remanded to that court to determine what harm, if any, was caused by the videotape's admission into evidence during the punishment phase of Oprean's trial.

DATE DELIVERED: September 13, 2006

PUBLISH

1. Oprean v. State, No. 01-00461-CR (Tex. App.- Houston [1st Dist.] 2005) (not designated for publication).

2.
Id. at 10.

3.
Id. at 10-11.

4.
In re Oprean, No. PD-0669-05 (Tex. Crim. App. July 27, 2005).

5.
Hollowell v. State, 571 S.W.2d 179, 180 (Tex. Crim. App. 1978).

6.
Martinez v. State, 867 S.W.2d 30, 39 (Tex. Crim. App. 1993).

7.
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991).

8.
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

9.
State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).

10. 152 S.W.3d 95, 96 (Tex. Crim. App. 2004).

11.
Id.

12.
Id. at 96-97.

13.
Id. at 97.

14.
Id.

15.
Id.

16.
Id.

17.
Id. at 97-98.

18.
Id. at 98.

19.
Id.

20.
Id.

21.
Id. at 98-99.

22.
Id. at 99.

23.
Id.

24.
Id.

25.
Oprean, 01-00461-CR at 10.

26.
Id.