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Date: 02-22-2021
Case Style:
In Re: The State of Texas
Case Number: 08-19-00198-CR
Judge: JEFF ALLEY
Court: COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
Plaintiff's Attorney: Hon. Yvonne Rosales
Defendant's Attorney:
OR
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Description:
El Paso, Texas - El Paso County District Attorney represented The State of Texas with filing a petition for a writ of mandamus.
The State of Texas, Relator, has filed a petition for a writ of mandamus ordering the
Honorable Francisco X. Dominguez, judge of the 205th District Court, to vacate a discovery order
allowing defendant/real party in interest Thomas DeCarlo to discover certain materials relied upon
by the State’s gang expert witness pretrial.
DeCarlo was indicted on one count of engaging in organized criminal activity as a member
of the Bandidos Outlaw Motorcycle Gang. Co-defendant James Heredia was also indicted in Trial
Court Cause No. 20170D02096 for engaging in organized criminal activity as part of the same
gang. Heredia’s case arose from the same incident that gave rise to the accusations in DeCarlo’s
case.
Both DeCarlo and Heredia filed similar motions for discovery of information relied on by
the State’s gang expert, El Paso Police Officer Francisco Balderrama. On May 2, 2019,
Respondent issued an order in Trial Court Cause No. 20170D02096 permitting Heredia to discover
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information from the State, subject to some limitations. On June 4, 2019, Respondent issued a
discovery order in DeCarlo’s case stating that DeCarlo’s motion “should be GRANTED for the
same reasons set forth in Cause No. 20170D02096 [Heredia’s case].”
We reviewed the order that Respondent issued in Heredia’s case in In re State, No. 08-19-
00151-CR, 2020 WL 5105215, at *2 (Tex.App.--El Paso Aug. 31, 2020, orig. proceeding) (to be
published) (detailing order in relevant part). This Court rejected the State’s argument that a
criminal defendant could only discover a State expert witness’ name and contact information and
nothing more under TEX.CODE CRIM.PROC.ANN. art. 39.14(b), and held that: (1) material relied on
by the expert witness was discoverable under TEX.CODE CRIM.PROC.ANN. art. 39.14(a), and (2)
the specific order issued by Respondent could not and did not require the State to create new
records that did not already exist. See In re State, 2020 WL 5105215, at *9-10.
We again confirm in this companion mandamus action that Respondent did not abuse his
discretion by allowing this discovery, again with the caveat that we do not construe this order as
requiring the State to create new documents that are not already in existence, as such an order
requiring the creation of new documents would likely be an abuse of discretion.
Outcome: For these reasons, this petition for a writ of mandamus is hereby denied.
Plaintiff's Experts:
Defendant's Experts:
Comments: